HomeMy WebLinkAboutResolution 2015-0054CITY OF WHEAT RIDGE, COLORADO
RESOLUTION NO. 54
Series of 2015
TITLE: RESOLUTION NO. 54-2015 -A RESOLUTION CONCERNING
THE PROPOSED REDEVELOPMENT AT THE NORTHWEST
CORNER OF WEST 38TH AVENUE AND UPHAM STREE T, AND
AUTHORIZING A COOPERATION AGREEMENT IN
CONNECTION THEREWITH
WHEREAS, the City is a home rule municipality and political subdivision
of the State of Colorado organized and existing under a home rule charter pursuant to
Article XX of the Constitution of the State of Colorado; and
WHEREAS, the City Council of the City (the "City Council") established
the Wheat Ridge Urban Renewal Authority d/b/a/ Renewal Wheat Ridge (the
"Authority") on October 18, 1981 , as an urban renewal authority pursuant to Colorado
Revised Statutes, Part 1 of Title 31 , Article 25 , as amended; and
WHEREAS, the City Council has adopted the West End 38 Urban
Renewal Plan (the "Urban Renewal Plan" or the "Plan") for the area described therein
(the "Urban Renewal Area"); and
WHEREAS, West End 38, LLC (the "Developer") has acquired title to, or
has a letter of intent to purchase certain real property consisting of approximately 3.67
acres which is located at the northwest corner of West 38th Avenue and Upham Street
(the "Property"), which is in the Urban Renewal Area ; and
WHEREAS, the Developer has submitted a proposal to the City and the
Authority to redevelop the Property (the "Project"); and
WHEREAS, the City has determined and hereby determines that it is in
the best interests of the City and its citizens to assist in the redevelopment of the
Project; and
WHEREAS, the Authority has determined that the redevelopment of the
Project in order to remediate blight is consistent with and in furtherance of the purposes
of the Authority and the Plan; and
WHEREAS, the Urban Renewal Plan contemplates that a primary method
of financing projects within the Urban Renewal Area will be through the use of property
tax increment revenues and City sales tax increment revenues; and
WHEREAS, the Plan adopted the utilization of property and sales tax
increment for the Property and authorizes the Authority to pledge such property tax
increment revenues and City sales tax increment revenues to finance public
infrastructure that benefits the Urban Renewal Area pursuant to one or more Cooperation
Agreements (as defined therein); and
WHEREAS, the Authority and the Developer desire to enter into a
Redevelopment Agreement (the "Redevelopment Agreement") EXHIBIT A that sets
forth the rights and responsibilities of each party with respect to the financing and
construction of the Project; and
WHEREAS, in order to finance certain eligible improvements for the
Project, the Redevelopment Agreement provides that, upon compliance with certain
conditions precedent, the Authority will reimburse the Developer for eligible costs
incurred in connection with such eligible improvements in the maximum amount of $4.8
million (the "Reimbursement Amount ") with the Reimbursement Amount to be payable
solely from property tax increment revenues and sales tax increment revenues to be
generated from the redevelopment of the Project; and
WHEREAS, in connection with the execution and delivery of the
Redevelopment Agreement and the repayment of the Reimbursement Amount in
accordance therewith, the City and the Authority believe it is in the best interests of the
City and the Authority to enter into a Cooperation Agreement (the "Cooperation
Agreement") EXHIBIT B related to the Project; and
WHEREAS, there has been filed with the City Clerk of the City (the "City
Clerk") the proposed form of the Cooperation Agreement.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Wheat Ridge, Colorado, that:
Section 1. Finding of Best Interests and Public Purpose. The City
Council hereby finds and determines, pursuant to the Constitution , the laws of the State
and the City's home rule charter (the "Charter"), and in accordance with the foregoing
recitals , that adopting this Resolution , redeveloping the Project and entering into the
Cooperation Agreement are in the best interests of the inhabitants of the City.
Section 2. Approval of Cooperation Agreement. The Cooperation
Agreement, in substantially the form on file with the City Clerk, is in all respects
approved, authorized and confirmed. The Mayor is hereby authorized and directed to
execute and deliver the Cooperation Agreement, for and on behalf of the City, in
substantially the form and with substantially the same contents as is on file with the City
Clerk, provided that such document may be completed, corrected or revised as deemed
necessary by the parties thereto in order to carry out the purposes of this Resolution.
The execution of the Cooperation Agreement by the Mayor shall be conclusive evidence
of the approval by the City Council of such document in accordance with its terms.
Section 3. Direction to Act. The City Clerk is hereby authorized and
directed to attest all signatures and acts of any official of the City in connection with the
matters authorized by this Resolution and to place the seal of the City on any document
authorized and approved by this Resolution . The Mayor, the City Manager, the City
Clerk, the City Attorney, and all other appropriate officials or employees of the City are
hereby authorized and directed to execute and deliver for and on behalf of the City any
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and all additional certificates, documents, instruments and other papers, and to perform
all other acts that they deem necessary or appropriate , in order to facilitate the
redevelopment of the Project and implement and carry out the transactions and other
matters authorized by this Resolution.
Section 4. Ratification. All actions (not inconsistent with the provisions
of this Resolution) heretofore taken by the City Council or the officers, employees or
agents of the City directed toward the redevelopment of the Project and the execution
and delivery of the Cooperation Agreement are hereby ratified , approved and
confirmed.
Section 5. Severability. If any section, subsection, paragraph, clause or
provision of this Resolution or the documents hereby authorized and approved shall for
any reason be held to be invalid or unenforceable, the invalidity or unenforceability of
such section, subsection, paragraph, clause or provision shall not affect any of the
remaining provisions of this Resolution or such documents, the intent being that the
same are severable.
Section 6. Repealer. All prior resolutions, or parts thereof, inconsistent
herewith are hereby repealed to the extent of such inconsistency.
Section 8. Effectiveness. This Resolution shall take effect immediately.
DONE AND RESOLVED this 14th day of December, 2015.
oyce Jay, Mayor
[SEAL]
Attest:
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EXHIBIT A
REDEVELOPMENT AGREEMENT
THIS REDEVELOPMENT AGREEMENT (this "Agreement") dated as of October 20,
2015, is made by and between WHEAT RIDGE URBAN RENEWAL AUTHORITY dfb/al
RENEWAL WHEAT RIDGE, an urban renewal authority and a body corporate and politic of
the State of Colorado (the "Authority") and West End 38, LLC a Colorado limited liability
company (the "Developer"). The Authority and Developer are sometimes collectively called the
"Parties,'' and individually, a "Party."
RECITALS
All capitalized terms used, but not defined, in these Recitals, have the meanings ascribed
to them in this Agreement. The Recitals are incorporated to this Agreement as though fully set
forth in the body of this Agreement.
WHEREAS, the City of Wheat Ridge. Colorado (the "City") is a home rule municipality
and political subdivision of the State of Colorado organized and existing under a home rule
charter pursuant to Article XX of the Constitution of the State of Colorado; and
WHEREAS, the City Council of the City (the "City Co1mcil") established the Authority
on October 1 8, 1981 ; and
WHEREAS, an urban renewal plan known as the West End 38 Urban Renewal Plan (the
"Urban Renewal Plan" or the "Plan") has been prepared and will be considered for approval by
the City Council of the City pursuant to the requirements of Title 31, Article 25, Part 1, Colorado
Revised Statutes (the "Urban Renewal Law"); and
WHEREAS, Developer has acquired title to, or has a letter of intent to purchase, all of
the real property described in Exhibit A-I attached hereto, consisting of approximately 3.67
acres, which is located at the northwest comer of West 381h Avenue and Upham Street in the City
(the "Property"), which is within an urban renewal area and which is in the West End 38 TIF
Area; and
WHEREAS, Developer has submitted a proposal to the City and the Authority to
redevelop the Property as further set forth in Exhibit B attached hereto (the "Project"); and
WHEREAS, the Authority has determined that the redevelopment of the Project in order
to remediate blight is consistent with and in furtherance of the purposes of the Authority and the
Urban Renewal Plan; and
WHEREAS, in order to facilitate the acquisition, construction and installation of the
Project, the Authority and Developer desire to finance certain Eligible Improvements related to
the Project up to a maximum aggregate amount of Four Million Eight Hundred Thousand Dollars
($4,800,000) (as further defined below, the "Reimbursement Amount") as set forth in this
Agreement; and
WHEREAS, pursuant to the Act and the Urban Renewal Plan, the Authority may finance
undertakings pursuant to the Plan by any method authorized under the Act or any other applicable
law, including without limitation, issuance of notes, bonds and other obligations in an amount
sufficient to finance all or part of the Plan; borrowing of funds and creation of indebtedness;
advancement of reimbursement agreements; agreements with public or private entities; and loans,
advances and grants from any other available sources; and the Plan authorizes the Authority to
pay the principal and interest on any such indebtedness from property and sales tax increments, or
any other funds, revenues, assets or properties legally available to the Authority; and
WHEREAS. the Urban Renewal Plan contemplates that a primary method of financing
projects \l.rithin the urban renewal area will be through the use of property tax increment revenues
and sales tax increment revenues; and
WHEREAS, the Urban Renewal Plan allows the use of tax increment financing related
to the property tax and sales tax for the Property; and
\\'HEREAS, Developer will initially fund the design, acqUJsttton, construction and
installation of the El igible Improvements in accordance with this Agreement; and
WHEREAS, subject to the tenns and provisions of this Agreement, Developer will be
reimbursed fo r Eligible Costs incurred on the Eligible Improvements in an amount equal to the
Reimbursement Amount from the proceeds of the Pledged Tax Increment Revenues generated by
the Project (the "Pledged Revenues''); and
WHEREAS, the Authority will execute and deliver a promissory note (the "Note") to the
Developer to evidence its obligation to pay the Reimbursement Amount. subject to the tenns and
provisions of this Agreement. which Note shall be a special and limited obligation of the
Authority payable solely from the Pledged Revenues; and
WHEREAS, the Parties have agreed to enter into this Agreement for the redevelopment
of the Property in accordance with the Urban Renewal Plan and the Act.
NOW THEREFORE, In consideration of the mutual covenants and promises of the
Parties contained in this Agreement, and other valuable consideration, the receipt and adequacy
of which are acknowledged, the Parties agree to the tenns and conditions in this Agreement.
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AGREEMENT
I. DEFINITIONS. ln this Agreement, unless a different meaning clearly appears from the
context, capitalized terms mean:
"Act" means the Colorado Urban Renewal Law, Part 1 of Article 25 of Title 31 of the
Colorado Revised Statutes, as amended.
"Agreement" means this Redevelopment Agreement, as it may be amended or
supplemented in writing. References to Sections or Exhibits are to this Agreement unless
otherwise qualified. Al l exhibits attached to and referenced in this Agreement are hereby
incorporated into this Agreement.
"Authority" means Wheat Ridge Urban Renewal Authority d/b/a Renewal Wheat Ridge,
an urban renewal authority and a body corporate and politic of the State of Colorado which has
been duly created, organized, established and authorized by the City to transact business and
exercise its powers as an urban renewal authority, all under and pursuant to the Act, and its
successors and assigns.
"Bonds" means, collectively, bonds. certificates of participation, other obligations or
securities issued by the Authority to refinance or repay the Note in accordance with the terms
and provisions of this Agreement, including any bonds, certificates of participation, other
obligations or securities issued by the Authority to refund any such Bonds.
"City" means the City of Wheat Ridge, Colorado, a home rule municipality and political
subdivi sion of the State of Colorado organized and existing under a home rule charter pursuant
to Article XX of the Constitution of the State of Colorado.
·'City Requirements" means, collectively, the Wheat Ridge Zoning and Development
Code, Architectural and Site Design Manual, Subdivision Improvement Agreement, Streetscape
Design Manual, International (Building) Codes, Site Drainage Requirements, and right-of-way
design standards, except as may be amended by mutual written agreement of the City and
Developer through land use, building and right-of-way permit approvals or otherwise.
''Commence Construction" or "Commencement of Construction" means the
commencement by Developer of actual physical work on the Project, including without
lirnitatjon deconstruction, demolition and/or site grading on the Property as required for the
Proje.ct.
"Complete" or "Complete Construction,. or ''Completion" or "Completion of
Construction" means construction acceptance in accordance with the City Requirements, the
Subdivision improvement Agreement, applicable laws, ordinances, and regulations of the City
and any other governmental entity or public utility with jurisdiction, subject to any applicable
conditions of maintenance and warranty, including without limitation, the issuance of a
permanent certificate of occupancy or completion by the City, with or without conditions, so that
the portion of the Project described in such certificate may open for permanent occupancy and
utilization for its intended purposes.
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"Default" or ''Event of Default" means any of the events described in Section 16;
provided, however, that such events will not give rise to any remedy until effect has been given
to all grace periods. cure periods and periods of enforced delay provided for in this Agreement.
·'Developer" means West End 38, LLC, a Colorado limited liability company, and any
successors and assigns approved in accordance with this Agreement.
"Developer Advances" means, collecti vely, amounts advanced or incurred by Developer
to pay any Eligible Costs.
"Effective Date" means the date of this Agreement.
"Eligible Costs" means. collectively. the reasonable and customary expenditures for the
acquisition. design. construction and installation of the Eligible Improvements, including without
limitation reasonable and customary soft costs and expenses. as set forth in Exhibit C attached
hereto, as it may be amended hereund er. Eligible Costs also includes all reasonable and
customary costs and expenses related to the engineering and design work for the Eligible
Lmprovements. The maximum amount of Eligible Costs to be paid or reimbursed pursuant to
this Agreement shall be Four Million Eight Hundred Thousand Dollars ($4,800,000) as set forth
in this Agreement.
"Eligible Improvements" means the improvements set forth on Exhibit C attached
hereto, as amended in accordance with this Agreement.
"Executive Director" means the Executive Director of the Authority.
"Exhibits" The following Exhibits attached to this Agreement are hereby incorporated
into and made a part of thts Agreement:
Exhibit A-1: Legal Description of the Property
Exhibit A-2: Legal Description of the West End 38 T IF Area
Exhibit B: Description of the Project
Exhibit C: Eligible Improvements
Exhibit D: Fonn of Project Completion Certificate
Exhibit E Form of Note
Exhibit F: Form of Subdivision Improvement Agreement
"Note" means the promissory note executed and delivered by the Authority to
Developer that evidences the obligation to pay the Reimbursement Amount in accordance with
the terms and provisions of this Agreement, in substantially the form of Exhibit E attached to this
Agreement. The Note shall be a special and limited obligation of the Authority payable solely
from the Pledged Revenues. Interest shall not accrue on the Note.
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"Party" or "Parties" means one or both of the parties to this Agreement.
"Pledged Property Tax Increment Revenue" means the annual ad valorem property tax
revenue received by the Authority from the Jefferson County Treasurer in excess of the amount
produced by the levy of those taxing bodies that levy property taxes against the Property Tax
Base Amount in the West End 38 TIF Area in accordance with the Act and the regulations of the
Property Tax Administrator of the State of Colorado, but not including, (a) any mills imposed by
the Wheat Ridge Fire District; and (b) any offsets collected by the Jefferson County Treasurer
for return of overpayments or any reserve funds retained by the Authority for such purposes in
accordance with Sections 31-25-1 07(9)(a)(III) and (b) of the Act.
"Pledged Sales Tax Increment Revenues" means, for each year that this Agreement
remains in effect, that portion of the Sales Tax revenue received by the City, and remitted to the
Authority in accordance with the Act and the Plan, equal to the product of the Sales Tax rate of
three percent (3.00%) times the amount of the taxable transactions subject to the Sales Tax in the
West End 38 TJF Area, less the Sales Tax Base Amount.
"Pledged Revenues" means the Pledged Tax Increment Revenues in the total aggregate
principal amount of $4,800,000.
"Pledged Tax Increment Reveouest' means, coll ectively, the Pledged Property Tax
Increment Revenues and the Pledged Sales Tax Increment Revenues.
"Project" means the redevelopment of the Property, as further set forth in Exhibit B
attached hereto.
"Project Account" means the account of the Special Fund created in Section 5.2 into
which the Authority shall deposit the Pledged Tax In crement Revenues.
''Project Completion Certificate" means the certificate in substantially the form of
Exhibit D attached hereto relating to the satisfaction of the conditions precedent set forth in
Section 3.1 relating to the payment of the Reimbursement Amount.
"Property" means the real property described in Exhibit A-1 attached hereto, which
consists of approximately 3.67 acres. The Property is included in the West End 38 TIF Area.
"Property Tax Base Amount'' means the amount certified by the Jefferson County
Assessor as the valuation for assessment of all taxable property within the West End 38 TIF Area
in accordance with Section 3 1-25-1 07(9)(a)(l) of the Act. The Property Tax Base Amount and
increment value shall be calculated and adjusted from time to time by the Jefferson County
Assessor in accordance with Section 31-25-1 07(9) of the Act and the rules and regulations of the
Property Tax Administrator of the State of Colorado.
"Reimbursement Amount" means a maximum amount equal to $4,800,000, which is
the maximum amount that will be paid to the Developer to reimburse the Developer for Eligible
Costs in accordance with the terms and provisions hereof. No interest shall accrue on the
Reimbursement Amount.
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"Sales Tax·· means the municipal sales tax of the City on sales of goods and services that
are subject to municipal sales taxes pursuant to the Wheat Ridge City Code. ln the event that the
Sales Tax is subsequently increased abo\ e 3.00%, the amount of Sales Tax subject to this
Agreement shall not be increased above 3.00% unless otherwise authorized by the City Council.
"Sales Tax Base Amount'' means the total coll ection of Sales Taxes levied at the rate of
three percent (3.00%) within the West End 38 TIF Area for the applicable twelve-month period
in accordance with Section 31-25-1 07(9)(a)(l) of the Act. The Sales Tax Base Amount is SO.OO.
"Special Fund'' means the special fund of the Authority defined in Section l 07(9)(a)(II)
of the Act.
"Subdivision Improvement Agreement" means that Subdivision Improvement
Agreement for the Project to be submitted by Developer to the City in substantially the form set
forth hereto as Exhibit F attached hereto.
"Ur ban Renewal Plan" or "Pla n" means the West End 38 l.,rban Rene\,al Plan
approved by the City Council. as amended from time to time.
"West End 38 T IF Area" means the approximately 4.535 acres within whtch the
Property is located and that is legally described on Exhibit A-2. The West End 38 TlF Area is
the same as the urban renewal area described in the Urban Renewal Plan within whtch the tax
increment provisions of Section 31-25-I 07(9) of the Act apply.
2. FINANCING AND CONSTRUCTION Of PROJECT.
2. I Construction of Project. As set forth in Section 4, if Developer proceeds with the
Project. then Developer shall be responsible for acquiring, constructing and installing the Project.
including without limitation, all Eligible Improvements, and shall be responsible for compliance
in all respects with the City Requirements.
2.2 Financing the Eligible Improvements. Developer shall be responsible for initially
financing the costs and expenses in connection with the acquisition, construction and installation
ofthc Eligible Improvements, including without limitation all design costs, engineering costs and
other soft costs incurred in connection therewith.
3. CONDITIONS PRECEDENT TO PAYMENT OF RE IMBURSEMENT AMOUNT.
3.1 Conditions Precedent. Unless waived in writing by the Executive Director, the
following conditions precedent shall be satisfied prior to Developer receiving any reimbursement
for Eligible Costs pursuant to the tenns and provisions of this Agreement:
(a) The Developer shall have acquired all the Property;
(b) The Subdivision Improvement Agreement shall have been approved by
the City and recorded in the real estate records;
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(c) Substantially all of the Eligible Improvements that are public
improvements that the Developer is required to install in connection with the Project pursuant to
the Subdivision Improvement Agreement and the site plan shall be Completed;
(d) An apartment complex on the Property with at least 110 apartment units
has been Completed;
(e) At least 8,000 square feet of retail space shall have been Completed on the
Property;
(f) Developer shall have submitted the Project Completion Certificate to the
Authority, and the Authority shall not have disputed the certification in accordance with Section
5.1 hereof; provided, however, that in the event that only a portion of the Reimbursement
Amount is disputed, this condition precedent shall be deemed satisfied with respect to the
undisputed portion of the Reimbursement Amount;
(g) No Events of Default by Developer shall have occurred and be continuing
under this Agreement.
4. DEVELOPER.
4. 1 Acquisition. Construction and Installation of Project. This Agreement shall not
obligate the Developer to proceed with the Project. If Developer proceeds with the Project,
Developer shall be responsible for the financing, design, acquisition, construction and
installation of the Project, subject to the provisions in this Agreement regarding reimbursement
of Eligible Costs in accordance herewith. The design and construction of the Project shall
comply in all material respects with all applicable codes and regulations of entities having
jurisdiction, including the City Requirements. Notwithstanding any provisions to the contrary
contained herein, the Developer shall be entitled to reimbursement for Eligible Costs incurred in
connection with an Ehgible Improvement only if such Eligible Improvement complies with City
Requirements.
The Developer will use reasonable efforts to diligently pursue (i) prospective commercial
lease tenants, including Vectra Bank; (ii) responsive general contractor construction bids; and
(iii) all City of Wheat Ridge development review approvals, including site plan review and
building permits, leading to the acquisition, construction, improvement and lease-up of the
Project.
If Developer proceeds with the Project, Developer will pay or cause to be paid all
required fees and costs, including those imposed by the City, in connection with the design,
construction, applicable warranty requirements, and use of the Project.
The Parties agree that if the Developer has not Commenced Construction of the Project
by January 1, 2019, that this shall not constitute an Event of Default hereunder, but that the
Authority shall have the right to terminate this Agreement as set forth in Section 18.
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4.2 Eligible Improvements. The list of Eligible Improvements set forth in Exhibit C
attached hereto may be amended at the written request of Developer with the written consent of
the Executive Director, unless such consent is not required pursuant to the terrns of Exhibit C.
4.3 Access to Property. Developer will pennit representatives of the City and the
Authority access to the Property and the Project at reasonable times during regular business
hours and with prior notice as necessary for the purpose of carrying out or detennining
compliance with this Agreement, the Urban RcnewaJ Plan, the City Requirements or any City
code or ordinance, including without limitation, inspection of any work being conducted.
4.4 Maintenance of Project. Developer shall be responsible for the maintenance of
those portions of the Project as set forth in the Subdivision Improvement Agreement.
4.5 Appeal of Property Taxes. Developer shall provide written notice to the
Authority of any requested reduction by Developer in any portion of the Property's real property
tax assessed valuation or abatement of any portion of the Property's real property taxes.
4.6 Notification of Sale of Property. Developer shall provide written notice to the
Authority of the sale of all or any portion of the Property by Developer during the tenn of this
Agreement.
5. THE AUTHORITY.
5.1 Payment of Reimbursement Amount. Upon compliance with the conditions
precedent set forth in Section 3.1 relating to the payment of the Reimbursement Amount, or Lhe
Executive Director's waiver of any such conditions precedent, the Authority agrees that it shall
reimburse De\ eloper for Eligible Costs tncurred in connection with the acquisition, construction
and installation of Eligible Improvements in the Project in an amount equal to the
Reimbursement Amount, but solely from the Pledged Revenues received by the Authority. The
Authority will have thirty (30) days after the Developer has submitted the Project Completion
Certificate to confirm whether or not such Certificate complies with the terms and provtsions of
this Agreement and whether the conditions precedent set forth in Section 3.1 have been satisfied
or waived by the Executive Director. If the Authority does not provide written approval or
disapproval within such thirty (30) day period, the Certificate shall be deemed approved by the
Authority. If the Authority notifies the Developer in writing within such thirty (30) day period
that the Authority disputes that the conditions precedent set forth in Section 3.1 have been
satisfied or waived, or that there is not sufficient documentation relating to aU or any portion of
the Eligible Costs that have been incurred by the Developer, and sets forth a detailed explanation
why the conditions precedent have not been satisfied, waived or sufficiently documented, such
portion of the Reimbursement Amount that is in dispute shaH not become due and payable until
Developer and Authority have resolved the dispute. The Parties agree to cooperate in good faith
to resolve any dispute relating to the satisfaction of the conditions precedent set forth in Section
3 .I within thirty (30) days after either Party's written request therefor.
5.2 Special Fund; Pro ject Account. The Authority agrees to establish the Special
Fund in accordance with the provisions of the Act and to establish the Project Account as a
separate trust account within the Special Fund. The Authority agrees to deposit the Pledged Tax
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Increment Revenues into the Project Account of the Special Fund upon receipt of the same. All
Pledged Tax Increment Revenues on deposit in the Project Account of the Special Fund are
hereby pledged to the payment of the Note for as long as the Note remains outstanding. ln the
event that Bonds are issued by the Authority to prepay the Note in whole or in part, all Pledged
Tax Increment Revenues on deposit in the Project Account of the Special Fund are hereby
pledged to the payment of the Bonds for as long as the Bonds remain outstanding. ln the event
that the Bonds and the Note are outstanding at the same time, the priority of the lien of the Bonds
and the Note on such Pledged Tax Increment Revenues shall be detennined at the time of
issuance of the Bonds with the prior written consent of Developer.
5.3 No Election Required. The Parties acknowledge that, according to the decision of
the Colorado Court of Appeals in Olson v. City of Golden, 53 P.3d 747 (2002), an urban renewal
authority is not a local government and therefore is not subject to the provisions of Article X,
Section 20 of the Colorado Constitution. Accordingly, the Authority may enter into this
Agreement with Developer, execute and deliver the Note and agree to remit the Pledged
Revenues to Developer to reimburse Developer for Eligible Costs in accordance with the
provisions of this Agreement without electoral authorization, and such obligations are not subject
to annual appropriation.
5.4 No Impairment. The Authority will not enter into any agreement or transaction
that impairs the rights of the Parties. including without limitation, the right to receive and apply
the Pledged Revenue in accordance with the tenns and provisions of this Agreement.
6. PAYMENT OR REIMBURSEMENT OF ELIGIBLE COSTS: NOTE FROM
AUTHORITY. Upon compliance with the conditions precedent set forth in Section 3.1,
Developer shall be reimbursed by the Authority for Eligible Costs incurred in connection with
the Project, but solely from Pledged Revenues, in an amount not to exceed the Reimbursement
Amount. The obligation to pay the Reimbursement Amount shall be evidenced by the Note to be
executed by the Authority and delivered to Developer.
(a) Upon the execution and delivery of this Agreement, the Authority shall
execute and deliver the Note to Developer in substantially the form set forth in Exhibit E
attached hereto. The maximum amount of the Note shall be Four Million Eight Hundred
Thousand Dollars ($4,800,000). Upon compliance with the conditions precedent set forth in
Section 3.1, the Reimbursement Amount shall become due and payable in accordance with the
terms, provisions and limitations of this Agreement. The Note shall mature on November I,
2040.
(b) The Note shall be a special and limited obligation of the Authority payable
solely from the Pledged Revenues. The Pledged Revenues are hereby pledged to the payment of
the Note. The obligation to reimburse Developer for Eligible Costs, which obligation is
evidenced by the Note, is and shall be a special and limited obligation of the Authority secured
by an irrevocable pledge of, and payable solely from, the Pledged Revenues. Developer may not
look to any general or other fund of the Authority for the payment of the Note except the Pledged
Revenues. The Note shall not constitute an indebtedness, financial obligation or liability of the
City or the State or any county, municipality or public body thereof, and neither the City, the
State nor any political subdivision thereof shall be liable thereon, nor in any event shall the Note
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be payable out of any funds or properties other than the Pledged Revenues. Further, the Note
shall not constitute a debt, indebtedness, financial obligation or liability of the City within the
meaning of any constitutional. statutory or charter debt limitation or provision.
(c) So long as the Note is outstanding, no later than November I of each year
(beginning on the first November 1 after the conditions precedent set forth in Section 3.1 have
been met). the Authority shall remit to Developer all Pledged Revenues on deposit with the
Authority in the Project Account of U1e Special Fund. Any such Pledged Revenues remitted by
the Authority to Developer shall be applied on each November 1 to the payment of the
Reimbursement Amount represented by the Note. Developer shall note on the Table of
Outstanding Reimbursement Amount attached to U1e Note the amount paid on the Note on each
November I. The Authority shall remit the Pledged Revenues to Developer by wire transfer
unless otherwise directed in writing by Developer.
(d) The Authority shall have the option to prepay the Note in whole or in part
on any date upon payment of the amount thereof outstanding, without prepayment premium.
Unless waived in writing by Oe\'eloper. the Authority shall provide Developer with at least ten
(I 0) business days' notice prior to any prepayment date.
(e) The Note shall be made payable to Developer. De' eloper may not sell or
transfer the Note in part, and may not sell or transfer the Note in whole prior to Completion of
Construction ofthe Project without the prior written consent of the Authority. After Completion
of the Project, the Note may be sold or transferred in whole to any entity that has been ass1gned
all the Developer's rights under this Agreement in compliance with the tenns and provisions of
Section 21 hereof. or w1th the pnor written consent of the Authority.
(f) For so long as the Note is outstanding, the Authority shall not issue any
Bonds that are payable in whole or in part from the Pledged Revenues without the prior written
consent of Developer. In the event that the Authority determines to issue Bonds to prepay the
Note in part, and not in whole, the Authority shall not issue such Bonds without the prior written
consent of Developer.
(g) Notwithstanding any other provision contained herein, any outstanding
balance due on the Note as of the maturity date of November J, 2040 for which the Authority
does not have sufficient available Pledged Revenues to pay will be fully discharged and satisfied
as of that date notwithstanding such nonpayment. Any such nonpayment shall not constitute an
Event of Default hereunder or under the Note and the twenty-five (25)-ycar period of limitation
set forth in Section 3 1-25-1 07(9)(a) of the Act shall not be extended pursuant to Section 31-25-
1 07(9)(f) of the Act to make any payment on the Note after November 1, 2040. If the Note has
been discharged pursuant to this paragraph, then the Authority's obligation to reimburse
Developer for Eligible Costs shall be deemed satisfied hereunder and Developer shall have no
further rights to reimbursement under this Agreement.
7. BOOKS AND ACCOUNTS; INSPECTION OF RECORDS. The Authority will keep
proper and current itemized records, books, and accounts in which complete and accurate entries
will be made of the receipt and use of all amounts of revenue received from any and all sources
and such oU1er calculations required by tllis Agreement and any applicable law or regulation.
10
Developer shall keep accurate books and records of all costs incurred in connection with
the design, management, acquisition, construction and warranty (as applicable) of the Eligible
Improvements. and the receipt of payment or reimbursement of Eligible Costs. During regular
business hours and upon reasonable advance notice, the Authority or its designee is hereby
authorized to review, at the Authority's cost and expense, Developer's books and records
relating to the Eligible Improvements and the receipt of payment or reimbursement of Eligible
Costs.
All books, records and reports (except those allowed or required by applicable law to be
kept confidential) in the possession of the Authority relating to the collection and disbursement
of the Pledged Revenues and the payment of the Eligible Costs shall at all reasonable times be
open to inspection by such accountants or other agents as the respective Parties may from time to
time designate.
8. INSURANCE. On or prior to the Commencement of Construction Developer will
provide the City and the Authority with certificates of insurance showing that Developer is
carrying, or causing prime contractors to carry, the following insurance: General Liability, with
a general aggregate of Two Million Dollars ($2,000,000); fire damage of One Hundred
Thousand Dollars ($1 00,000); medical expense of Five Thousand Dollars ($5,000);
products/completed operations aggregate of Two Million Dollars ($2,000,000); personal and
advertising injury of One Million Dollars ($1 ,000,000) with each occurrence up to One Million
Dollars ($1,000,000), with deductible of Twenty-five Hundred Dollars ($2,500) per claim.
Excess liability shall be covered in an amount equal to Ten Million Dollars ($1 0,000.000) per
occurrence/ Ten Million Dollars ($1 0,000,000) aggregate.
9. INDEMNIFICATION. Except as hereinafter provided, from Commencement of
Construction of the Project through Completion of Construction of the Project, and for any
action arising during that time period, Developer agrees to indemnify, defend and hold ham1less
the City and the Authority, its officers, agents and employees, from and against all liability,
claims, demands, and expenses, including fines imposed by any applicable state or federal
regulatory agency, court costs and attorney fees, on account of any injury, loss, or damage to the
extent arising out of any of the work to be performed by Developer, any subcontractor of
Developer, or any officer, employee, agent, successor or assign of Developer under this
Agreement, but only to the extent such injury, loss, or damage is caused by the negligent act or
omission, error, professional error, mistake, accident, or other fault of Developer, any
subcontractor of Developer, or any officer, employee, agent, successor or assign of Developer,
but excluding any injuries, losses or damages which are due to the gross negligence, breach of
contract or willful misconduct of the City or the Authority, as the case may be.
Notwithstanding the foregoing or any provision to the contrary contained herein, in the
event that all or a portion of the Project is financed with a HUD-insured Section 220 or 22 I (d)( 4)
loan, and so long as any such loan remains outstanding, any obligation of the Developer to
provide indemnification under this Agreement shall be limited to (i) amounts mandated by State
law, if any, (ii) coverage afforded under any liability insurance carried by the Developer, and (iii)
available "surplus cash" of the Developer as defined in the Regulatory Agreement executed in
connection with any such loan. Until funds from a permitted source for payment of
indemnification costs are available for payment, the Developer shall not (a) pay funds to any
I 1
indemnitee under thts Agreement, or (b) pay the deductible on an indemnification policy for any
indemnitee under this Agreement.
10. REPRESENTATIONS AND WARRANTIES.
I 0.1 Representations and Warranties by the Authority. The Authority represents and
warrants as follows:
(a) The Authority is a body corporate and politic of the State of Colorado,
duly organized under the Act, and has the power to enter into and has taken all actions to
date required to authorize this Agreement and to carry out its obligations.
(b) The Authority knows of no litigation, proceeding. initiative, referendum,
investigation or threat of any of the same contesting the powers of the Authority or its
officials with respect to this Agreement that has not been disclosed in writing to
Developer.
(c) The execution and delivery of this Agreement and the documents required
and the consummation of the transactions contemplated by this Agreement will not (i)
conflict with or contravene any law, order, rule or regulation applicable to the Authority
or to its governing documents, (ii) result in the breach of any of the terms or provisions
or constitute a default under any agreement or other instrument to which the Authority is
a party or by which it may be bound or affected. or (iii) permit any party to tenninate any
such agreement or instruments or to accelerate the maturity of any indebtedness or other
obligation of the Authority.
(d) The Pledged Revenues are not subject to any other or prior pledge or
encumbrance, and the Authority will not pledge or encumber the Pledged Revenues so
long as lhe Note is outstanding without the prior written consent of Developer.
(e) This Agreement constitutes a valid and binding obligation of lhe
Authority. enforceable according to its terms, except to the extent limited by bankruptcy,
insolvency and other Jaws of general application affectmg creditors' rights and by
equitable principles, whether considered at law or in equity.
I 0 .2 Representations and Warranties by Developer. Developer represents and warrants
as follows:
(a) Developer is a Colorado limited liability company and in good standing
and authorized to do business in the State of Colorado and has the power and the
authority to enter into and perform in a timely manner its obligations under this
Agreement.
(b) The execution and delivery of this Agreement has been duly and validly
authorized by all necessary action on its part to make this Agreement valid and binding
upon Developer.
12
(c) The execution and delivery of this Agreement will not (i) conflict with or
contravene any law, order, rule or regulation applicable to Developer or to Developer's
governing documents, (ii) result in the breach of any of the tenns or provisions or
constitute a default under any agreement or other instrument to which Developer is a
party or by which it may be bound or affected, or (iii) permit any party to terminate any
such agreement or instruments or to accelerate the maturity of any indebtedness or other
obligation of Developer.
(d) Developer knows of no litigation, proceeding, initiative, referendum, or
investigation or threat or any of the same contesting the powers of Developer or any of its
principals or officials with respect to this Agreement that has not been disclosed in
writing to the Authority.
(e) Developer has prepared or caused to be prepared a financing and
development plan for the Project and Developer reasonably expects that the Pledged
Revenues to be generated from the Project will be sufficient to pay the Reimbursement
Amount represented by the Note prior to the maturity date of the Note.
(f) This Agreement constitutes a valid and binding obligation of Developer,
enforceable according to its terms, except to the extent limited by bankruptcy, insolvency
and other laws of general application affecting creditors' rights and by equitable
principles, whether considered at law or in equity.
II. TERM. The tenn of this Agreement is the period commencing on the Effective Date and
tenninating on the date that the Note and any Bonds issued by the Authority are no longer
outstanding~ provided, that the following provisions shall continue beyond the tenn of this
Agreement: (A) any rights and remedies that a Party has for an Event of Default hereunder; (B)
any rights that a Party has to inspect books and records as set forth herein for a period of four (4)
years following termination of this Agreement; and (C) the indemnification provisions set forth
in Section 9.
12. CONFLICTS OF INTEREST. None of the following will have any personal interest,
direct or indirect, in this Agreement: a member of the governing body of the Authority or the
City, an employee of the Authority or of the City who exercises responsibility concerning the
Urban Renewal Plan, or an individual or finn retained by the City or the Authority who has
performed consulting services to the Authority or the City in connection with the Urban Renewal
Plan or this Agreement. None of the above persons or entities will participate in any decision
relating to the Agreement that affects his or her personal interests or the interests of any
corporation, partnership or association in which he or she is directly or indirectly interested.
13. ANTJ-DISCRIMINA TION. Developer, for itself and its successors and assigns, agrees
that in the construction of the Eligible lmprovements and in the use and occupancy of the
Property and the Eligible Improvements, Developer will not discriminate against any employee
or applicant for employment because of race, color, creed, religion, sex, sexual orientation,
disability, marital status, ancestry, or national origin.
13
14. NOTICES. Any notice required or permitted by this Agreement will be in writing and
will be deemed to have been sufficientl y given for all purposes if delivered in person, by prepaid
overnight express mail or overnight courier service, by certified mail or registered mail , postage
prepaid return receipt requested. addressed to the Party to whom such notice is to be given (and
such Party's additional persons to copy) at the address(es) set forth on the signature page below
or at such other or additiona l addresses as may be furnished in writing to the other Parties. The
Parties may also agree on a different means of providing written notice hereunder, including
without limitation, noti ce via electronic mail.
Notice shall be deemed received: (i) if delivered in person, upon actual receipt (or refusal
to accept delivery), (ii) if by prepaid overnight express mail or overnight courier service, on the
first business day followmg sending of the notice, and (iii) if by cert ified mail or registered mail.
postage prepaid return receipt requested, on the earli er of the date of the receipt or the third
business day following sending of the notice.
15. DELAYS; FORCE MAJEURE. Subject to the following provisions, time is of the
essence. Any delays m or fatlure of performance by any Party of its obligations under thi s
Agreement shall be excused if such delays or failure are a result of acts of God. fires, floods.
excessive rain, earthquake, strikes. labor disputes, regulation. initiative. referendum, legislation,
litigation, or order of civil or military authorities, or other causes. similar or dissimilar, which are
beyond the control of such Party.
16. EVENTS OF DEFAULT. The following e\ents shall constitute an Event of Default
under this Agreement:
(a) Any representation or warranty made by any Party in this Agreement
proves to have been untrue or incomplete in any material respect when made and which
untruth or incompletion would have a material adverse effect upon the other Party.
(b) So long as the Note remains outstanding. the Authority fai ls to remit the
Pledged Revenues on deposit with the Authority to Developer on or prior to November I
of each year.
(c) Except as otherwi se provided in this Agreement, any Party fails in the
performance of any other covenant in this Agreement and such default continues for
thirty (30) days after written notice specifying such default and requiring the same to be
remedied is given by a non-defaulting Party to the defaulting Party. If such default is not
of a type which can be cured wi thin such thirty (30) day period and the defaulting Party
gives written notice to the non-defaulting Party or Parties within such thirty (30)-day
period that it is actively and diligently pursuing such cure, the defaulting Party shall have
a reasonable penod of time given the nature of the default following the end of such
thirty (30)-day period to cure such default, provided that such defaulting Party is at all
times within such additional time period acti vely and diligently pursuing such cure in
good faith.
17. REMEDIES. Upon the occurrence and continuation of an Event of Default, the non-
detaulting Party's remedies will be limited to the right to enforce the defaulting Party's
14
obligations by an action for injunction, specific performance, or other appropriate equitable
remedy or for mandamus, or by an action to collect and enforce payment of sums owing
hereunder, and no other remedy, and no Party will be entitled to or claim damages for an Event
of Default by the defaulting Party, including without limitation, lost profits, economic damages,
or actual, direct, incidental, consequential. punitive or exemplary damages. In the event of any
litigation or other proceeding to enforce any of the terms, covenants or conditions of this
Agreement, the prevailing party in such litigation or other proceeding shall receive, as part of its
judgment or award, its reasonable attorneys' fees and costs.
18. TERMINATION. This Agreement may be terminated by the Developer at any time prior
to the Commencement of Construction of the Project. In the event that Developer has not
Commenced Construction of the Project on or prior to January 1, 2019, then the Authority shall
have the option to terminate this Agreement.
In the event that the City Council of the City has not approved the Urban Renewal Plan
on or prior to December 31, 2015, then the Developer and the Authority shall each have the
option to terminate this Agreement.
In order to terminate this Agreement, a Party shall provide written notice of such
termination to the other Party. Such tennination shall be effective thirty (30) days after the date
of such notice, without any further action by the Parties, unless prior to such time, the Parties are
able to negotiate in good faith to reach an agreement to avoid such tennination. Upon such
termination, this Agreement shall be null and void and of no effect, and no action, claim or
demand may be based on any term or provision of this Agreement, except as otherwise expressly
set forth herein. In addition the Parties agree to execute a mutual release or other instruments
reasonably required to effectuate and give notice of such termination.
19. PAYMENT OF FEES AND EXPENSES. Each Party agrees to pay for its own fees,
costs and expenses incurred by such Party in connection with the execution and delivery of this
Agreement and related agreements and documents.
20. NONLIABILITY OF OFFICIALS, AGENTS, MEMBERS, AND EMPLOYEES.
Except for willful or wanton actions, no trustee, board member, commissioner. official,
employee, consultant, manager, member, shareholder, attorney or agent of any Party, nor any
lender to any Party or to the Project, will be personally liable under the Agreement or in the
event of any default or for any amount that may become due to any Party.
21. ASSIGNMENT. Except as hereinafter provided, this Agreement shall not be assigned in
whole or in part by either Party without the prior written consent of the other Party, provided,
however, the following assignments and transfers will not require any such consent: (a) subject
to written notice to the Authority from Developer containing the name and address of the lender
or other party. Developer may pledge, collaterally assign or otherwise encumber all or any part
of its rights under this Agreement> including without limitation its right to receive any payment
or reimbursement, to any lender or other party that provides acquisition, construction, working
capital, tenant improvement or other financing to Developer in connection with development of
the Property and/or construction of the Eligible Improvements, and (b) on or after Completion of
Construction of the Project and subject to written notice to the Authority from Developer,
15
Developer may assign all of its rights under this Agreement to any entity that purchases all of the
Property, prO\ ided that any such entity has the financial capability and experience to manage the
Project and the Developer has provided the Authority with satisfactory ev1dence of such
financial capability and experience. Notwithstanding anything to the contrary in this Section 21,
the Authority recognizes that Developer may form, together with its investors, separate, special
purpose entities to develop, own and/or operate all or a portion of the Property or of the Eligible
Improvements to be constructed thereon and that one or more assignments of all or any part of
Developer's rights under this Agreement may be required in connection with such activities and
such transfer(s) will not require any consent by the Parties.
22. COOPERATION REGARDING DEFENSE. In the event of any litigation or other legal
challenge involving this Agreement, the validity of the Urban Renewal Plan, or any other
material part or provision of this Agreement or the ability of any Party to enter into this
Agreement. the Parties will cooperate and jointly defend against such action or challenge. to the
extent permitted by law.
23. SECTION CAPTIONS. The captions of the Sections are set forth only fo r the
convenience and reference of the Parties and arc not intended in an) way to define, limit. or
describe the scope or intent of this Agreement.
24. ADDITIONAL DOCUMENTS OR ACTION.
(a) The Parties agree to execute any additional documents or take any
additional action, including without limitation estoppel documents requested or required by third
parties, including without limitation, lenders, tenants or potential purchasers, that IS necessary to
carry out this Agreement or is reasonably requested by any Party to confirm or clarify the intent
of the provisions of this Agreement and to effectuate the agreements and the tntent.
Notwithstanding the foregoing. however, no Party shall be obligated to execute any additional
document or take any additional action unless such document or action is reasonably acceptable
to such Party.
(b) If all or any portion of this Agreement, or other agreements approved in
connection with this Agreement are asserted or determined to be invalid, illegaJ or are otherwise
precluded, the Parties, within the scope of the1r powers and duties, will cooperate in the joint
defense of such documents and, if such defense is unsuccessful, the Parties will use reasonable.
diligent good faith efforts to amend. reform or replace such precluded items to assure, to the
extent legally permissible, that each Party substantially receives the benefits that it would have
received under this Agreement.
(c) The Executive Director shall have the authority to act on behalf of the
Authority under this Agreement.
25. AMENDMENT. This Agreement may be amended only by an instrument in writing
signed and delivered by the Parties.
26. WAfVER OF BREACH. A waiver by any Party to this Agreement of the breach of any
term or provision of this Agreement must be in writing and will not operate or be construed as a
waiver of any subsequent breach by any Party.
16
27. GOVERNING LAW. The laws of the State of Colorado govern this Agreement.
28. BINDING EFFECT. This Agreement will inure to the benefit of and be binding upon the
Parties and their respective legal representatives, successors, heirs, and assigns, provided that
nothing in this paragraph permits the assignment of this Agreement except as set forth in
Section 21.
29. EXECUTION IN COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which will be deemed an original and all of which will constitute but one
and the same instrument.
30. LIMITED THIRD-PARTY BENEFICIARIES. Except as hereinafter provided, this
Agreement is not intended and shall not be deemed to confer any rights on any person or entity
not named as a Party to this Agreement; provided, however, that the City shall be deemed to be a
third-party beneficiary under this Agreement to the extent that Developer or Authority have
agreed to undertake certain actions for the benefit of the City.
31. NO PRESUMPTION. The Parties and their attorneys have had a full opportunity to
review and participate in the drafting of the final forn1 of this Agreement. Accordingly, this
Agreement will be construed without regard to any presumption or other rule of construction
against the Party causing the Agreement to be drafted.
32. SEVERABILITY. If any provision of this Agreement as applied to any Party or to any
circumstance is adjudged by a court to be void or unenforceable, the same will in no way affect
any other provision of this Agreement, the application of any such provision in any other
circumstances or the validity, or enforceability of the Agreement as a whole.
33. MINOR CHANGES. This Agreement has been approved in substantially the form
submitted to the governing bodies of the Parties. The officers executing this Agreement are
authorized to make and may have made, minor changes to this Agreement and attached exhibits
as they have considered necessary. So long as such changes were consistent with the intent and
understanding of the Parties at the time of approval by the governin g bodies, the execution of the
Agreement will constitute the approval of such changes by the respective Parties.
34. DAYS. If the day for any performance or event provided for herein is a Saturday, a
Sunday, a day on which national banks are not open for the regular transactions of business, or a
legal holiday pursuant to Section 24-11-101(1), C.R.S., such day will be extended until the next
day on which such banks and state offices are open for the transaction of business.
35. GOOD FAITH OF PARTIES. ln the performance of this Agreement or in considering
any requested approval, consent, acceptance, or extension of time, the Parties agree that each will
act in good faith and will not act unreasonably, arbitrarily, capriciously, or unreasonably
withhold, condition, or delay any approval, acceptance, or extension of time required or
requested pursuant to this Agreement.
36. PARTIES NOT PARTNERS. Notwithstanding any language in this Agreement or any
other agreement, representation, or warranty to the contrary, the Parties will not be deemed to be
partners or joint venturers, and no Party is responsible for any debt or liability of any other Party.
17
37. NO WAIVER OF IMMUNITY. Nothing contained in tllis Agreement constitutes a
waiver of sovereign immunity or governmental immunity by the Authority under applicable state
law.
[The remainder of this page is intentionall y left blank.]
18
2015.
JN \J,..[ f';£SS WHEREOF, this Agreement is executed by the P:~rtics a.; of .Q-L 7~
AITEST·
Noucc: Address:
WHEAT RJDGE GIHiAN RE~EWAI. AUTIIORITY
)~ ~:~:. --= )\lf~""?vis, Cha~--:::2::::=:===~
Wheat R adge Urban Renewal Authority
7500 West 29111 Avenue
\\'heat Ridge, (olorado 80033
Anentton· Patnck Gon. Lxecutive Darector
Email: pgolJi'4ca whcauidgc ... o u"
Notice Address
West rnd 38. L I C
2300 151h Street, SUite 235
Denver. Colorado 80202
Attention· Tyler Downs
Email. tdowns:g;wazeepartners.com
\\ E.Sl END 38. Ll.C.
a Co lorado limited liability company
19
EXHIBIT A-1
LEGAL DESCRIPTION OF THE PROPERTY
Those parcels of land, situate, lying and being in the County of Jefferson. City of Wheat Ridge, State of
Colorado, including improved land, buildings and unimproved adjacent land, more particularly known
and described as follows, to wit:
Parcel 1: Lot 1. E.S. AJlen Subdivision, containing a land area of36,49J.5 square feet;
Parcel 2: Tax ID Parcel #39-234-00-088, con taining a land area of 12,325 square feet. and a
garage facility improvement;
Parcel 3: Tax lD Parcel #39-234-00-089, containing a land area of 53,840 square feet, and a
residential office building; and
Parcel 4: Tax 10 Parcel #39-234-00-086, containing a land area of 57.150 square feet,
and an office/bank building.
II!
I
I
I
I
I I
I.
EXHIB£T A-2
LEGAL DESCRIPTION OF THE WEST END 38 TIF AREA
D.LUSTRATION FOR ZONB LOT
~Df'IBaD 1,14aa:;u:a 21 &Jia II' IICDDNM. T!l,lltiW,OI',_tiRP.IL
arYOP~TJDIXIK.UJCMH Of........_ll'ABOPOCU1'ADO
N81"31!1'12•E
131.113'
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PONT OF BECINNINC
SM"34'48"'W
131.7i'
'----------11:!.
ZONE LOT
1Q7,537 sa. FT .•
OR 4.535 ACR[S ± .......
Do ;,
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VICINITY MAP
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cl GRAPHIC SCALE
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A-1
LEGAL DESCRIPTION FOR WEST END 38 TIF AREA
A PARCEL OF LAND LOCATED IN THE SOUTHEAST 1/4 OF SECTION 23, TOWNSHIP 3
SOUTH, RANGE 69 WEST OF THE 6r11 PRINCIPAL MERIDIAN, AND THE NORTHEAST 1/4
OF SECTION 26, TOWJ\ISHIP 3 SOUTH. RANGE 69 WEST OF THE 6m PRINCIPAL
MERIDIAN CITY OF WHEAT RIDGE, COUNTY OF JEFFERSON. STATE OF COLORADO.
BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTH I /4 CORNER OF SECTION 23 FROM WHENCE THE
SOUTHEAST CORNER OF SAID SECTION 23 BEARS N 89°38'24" E A DISTANCE OF
2633.65 FEET WITH ALL BEAR INGS HEREIN RELATlVE THERETO;
THENCE N 75°46'40" E A DISTANCE OF 542.64 FEET TO THE POINT OF BEGINNING;
THENCE N 00°10'12" W, ALONG THE WEST UNE OF A PARCEL OF LAND AS DESCRIBED
TN DEED RECORDED IN JEFFERSON COUNTY RECORDERS OFFICE UNDER RECEPTION
NUMBER F0050611 A DISTANCE OF 200.55 FEET;
THENCE N 89°38'12" E. ALONG THE NORTH LINE OF SAID PARCEL A DISTANCE OF
131.83 FEET TO THE SOUTHWeST CORNER OF LOT I, E S. ALLEN SUBDIVISION AS
RECORDED IN JEFFERSON COUNTY RECORDERS OFFICE UNDER RECEPTION NUMBER
20 I 0000090;
THENCE N 00°12'07" W. ALONG THE WEST LNE OF SAID LOT I A DISTANCE OF 119.99
FEET;
THENCE N 89°38'48" E. ALONG THE NORTH LINE OF SAID LOT I A DISTANCE OF 354.09
FEET TO THE EAST RIGHT OF WAY LINE OF UPHAM STREET AS PER EASEMENT
DOCUMENT ReCORDED JN JEFFERSON COUNTY RECORDERS OFFICE UNDER
RECEPTIO 1 NUMBER 94 11 3597:
THENCE S 00°13'03" E. ALONG SAID EAST RIGHT OF WAY LINE A DISTANCE OF 483.01
FEET TO THE SOUTH RIGHT OF WAY U NE OF WEST 38TH AVENUE AS PER EASEMENT
DOCUMENTS RECORDED Tl'\ JEFFERSON COUNTY RECORDERS OFFICE UNDER
RECEPTION NUMBERS 90086570. 90086575, 90086572 AND 90086573;
TliENCE S 89°38'24" W, ALONG SAID SOUTH RIGHT OF WAY LINE A DISTANCE OF
354.42 FEET;
THENCE N 00°11'13" W, A DISTANCE OF 162.65 FEET TO THE SOUTH LINE OF A PARCEL
Of LAND AS DESCRIBED IN DEED RECORDED IN JEFFERSON COUNTY RECORDERS
OFFICE UNDER RECEPTION NUMBER F0050611 A;
THENCE S 89°34'48" W, ALONG SAID SOUTH LINE A DISTANCE OF 131 .79 FEET TO THE
POINT OF BEGINNING.
CONTAINING: 197,537 SQUARE FEET OR 4.535 ACRES OF LAND, MORE OR LESS.
2
EXHIBITB
DESCRIPTION OF THE PROJECT
The Project consists of the redevelopment of approximately 3.67 acres of the Property,
which is located at the northwest comer of West 381h Avenue and Upham Street in the City of
Wbeatridge. The Project is expected to be constructed in two phases.
The Project is zoned for Mixed Use-Commercial (MU-C) and shall meet all the setbacks
and design standards as per the City of Wheat Ridge zoning code.
It is expected that along 38th Avenue, the Project will feature street-fronting ground floor
retail shops and restaurants with two levels of residences above for a total of three stories.
Further west on the Property will be a free standing bank building. Behind these two buildings
will be a parking courtyard with approximately 88 parking spaces and a four story residential
building. The residential building will include a parking structure with approximately 138
parking spaces. The Project will consist of approximately 150 residences and approximately
13,800 square feet of retail space.
B-1
EXHIBIT C
ELIGIBLE IMPROVEMENTS
The Eligible Improvements are set forth in the table below. The costs for the Elig1ble
Improvements as set forth in the table below are estimates. The cost amount in each line item in
the table below may be increased or decreased as directed by Developer. Accordingly, cost
savings in one line item may be applied to increase the amount of reimbursable costs in other
line items. However, notwithstanding any other provision of thi s Agreement. Eligible Costs to
be paid or reimbursed from the Pledged Revenues shall not exceed Four Million Eight Hundred
Thousand Dollars ($4,800.000) as set forth in this Agreement, and shall be paid or reimbursed
solely from Pledged Revenues in accordance with the Agreement.
TOTAL
ELIGIBLE IMPROVEMENTS ELIGIBLE COSTS
Demolition and Environmental Abatement $290,869
Utilities (Water, Sewer, Electric, Gas, Stonn I ,131 ,689
Water and Relocations/Burying
Streets. Sidewalks. Plaza. Hardscape. I ,308,409
Landscaping and Facades
Parking Garage 2,378,167
Soft Costs (Architecture, Engineering, 837,343
Pennitting. Financing. Legal and Fees)
Total $5,946,476
C-1
EXHIBIT D
FORM OF PROJECT COMPLETION CERTIFICATE
Wheat Ridge Urban Renewal Authority
7500 West 291h Avenue
Wheat Ridge, Colorado 80033
Attention: Executive Director
The undersigned representative of West End 38, LLC (the "Developer") hereby makes
the following certifications in accordance with the terms and provisions of section 3.1 (a) of the
Redevelopment Agreement dated as of _, 2015 (the "Redevelopment Agreement")
between the Wheat Ridge Urban Renewal Authority and Developer. All capitalized tenns used
herein and not otherwise defined shall have the meanings set forth in the Redevelopment
Agreement.
The following conditions have been satisfied or waived in writing by the Executive
Director:
l. The Property has been acquired by the Developer.
2. Substantially all of the Eligible Improvements that are public improvements that
Developer is required to install pursuant to the Subdivision Improvement Agreement and the site
plan have been Completed.
3. An apartment complex on the Property with at least II 0 apartment units has been
Completed.
4. At least 8,000 square feet of retail space has been Completed on the Property.
5. No Events of Default by Developer have occurred and are continuing under the
Redevelopment Agreement.
The total amount of Eligible Costs for which reimbursement is requested is
$ (which amount shall not exceed $4,800,000). Attached to this Certificate is
documentation related to the Eligible Costs incurred by the Developer in connection with the
financing, acquisition, construction and installation of the Eligible Improvements for which such
reimbursement is requested.
The foregoing certification shall constitute the Project Completion Certificate under the
Redevelopment Agreement.
West End 38, LLC,
a Colorado limited liability company
Date: _________ _ By: _________________ _
Name:
Title:
D-1
Within thirty (30) days of receipt of this Certificate by the Authority, the Authority shaJJ
complete the applicable provision below and remit to Developer:
The Authority hereby \·erifies that: (a) this Project Completion Certificate complies with
the terms and conditions of the Redevelopment Agreement and that the conditions
precedent set forth in Section 3.1 of the Redevelopment Agreement have been satisfied or
waived in writing by the Executive Director. and (b) the documentation submitted with
this Certificate is sufficient to verify that the Reimbursement Amount requested pursuant
to this Certificate has been allocated to the reimbursement of Eligible Costs incurred in
connection with Eligible Improvements in accordance with the Redevelopment
Agreement.
The Authority hereby notifies Developer that (a) the Authority disputes that the
conditions precedent set iorth in Section 3.1 of the Redevelopment Agreement have been
satisfied or waived. and/or (b) that the documentation submitted with this Certificate is
not sufficient to verify that the total Reimbursement Amount requested pursuant to this
Certificate IS for the reimbursement of Eligible Cost incurred in connection with Eligible
Improvements. Set f01th below is a detailed explanation of the reasons why the
Authority disputes that these conditions precedent have been satisfied or waived or that
such documentation is insufficient:
WHEAT RIDGE URBAN RENEWAL AUTHORITY
Date: __________ _ By: __________________________________ __
Name:
Title:
D-2
EXHJBITE
FORM OF NOTE
PROMISSORY NOTE
MAXIMUM AMOUNT: US $4,800,000 . 2015
FOR VALUE RECEIVED, WHEAT RIDGE URBAN RENEWAL AUTHORITY
DIBIN RENEWAL WHEAT RIDGE, a public body corporate and politic duly organized and
existing as an urban renewal authority under the laws of the State of Colorado (hereinafter
referred to as "Authority"). promises to pay to the order of West End 38, LLC, a Colorado
limited liability company, and its successors (hereinafter referred to as "Developer''), at the
office of Developer, or such place as Developer may from time to time designate in writing, the
maximum sum of FOUR MILLION EIGHT HUNDRED THOUSAND DOLLARS (US
$4,800,000) or such lesser amount due from the Authority to Developer pursuant to the terms of
the Redevelopment Agreement dated of even date herewith (the "Redevelopment Agreement")
by and between the Authority and Developer, in lawful money of the United States of America.
All capitalized terms used and not otherwise defined herein shall have the respective meanings
ascribed in the Redevelopment Agreement.
This Note shall evidence the obligation of the Authority to pay the Reimbursement
Amount to Developer in accordance with the terms and provisions of the Redevelopment
Agreement, but solely from the Pledged Revenues. No interest shall accrue on this Note. This
Note shall mature on November I, 2040.
Notwithstanding any provisions to the contrary contained herein or in the Redevelopment
Agreement, no amounts shall be due and payable under this Note unless or until the conditions
precedent set forth in Section 3.1 of the Redevelopment Agreement have been satisfied or
waived by the Executive Director.
All payments hereunder shall be made to Developer in accordance with the
Redevelopment Agreement. This Note shall be payable, mature and be enforceable pursuant to
the terms and provisions of the Redevelopment Agreement.
Upon receipt of any payments made by the Authority on this Note, Developer shall
record the payments so received on the Table of Outstanding Reimbursement Amount attached
to this Note and by this reference made a part hereof.
This Note shall be a special and limited obligation of the Authority payable solely from
the Pledged Revenues. The Pledged Revenues are hereby pledged to the payment of this Note.
The obligation to reimburse Developer for Eligible Costs, which obligation is evidenced by this
Note, is and shall be a special and limited obligation of the Authority secured by an irrevocable
pledge of, and payable solely from the Pledged Revenues. Developer may not look to any
general or other fund of the Authority for the payment on this Note except the Pledged
Revenues. This Note shall not constitute an indebte-dness, financial obligation or liability of the
City or the State or any county, municipality or public body thereof, and neither the City, the
State nor any political subdivision thereof shall be liable thereon, nor in any event sball this Note
E-1
be payable out of any funds or properties other than the Pledged Revenues. Further, this Note
shall not constitute a debt, indebte{}ncss, financial obligation or liability of the City within the
meaning of any constitutional, statutory or charter debt limitation or provision.
This Note is governed by and interpreted in accordance with the Jaws of the State of
Colorado.
Pursuant to Section 11-57-210 of the Colorado Revised Statutes, as amended. this Note is
entered into pursuant to certain provisions of the Supplemental Public Securities Act being Title
II, Article 57, of the Colorado Revised Statutes, as amended. Such recital shall be conclusive
evidence of the validity and the regularity of the issuance of this Note after delivery for value.
lf any provision in this Note 1s held invalid, illegal or unenforceable in any jurisdiction,
the validity, legality or enforceability of any defective provisions shall not impair the validity,
legality or enforceability of any other provision of this Note.
All notices under this Note must be sent to the addresses given in. and in accordance with
the provisions of. the Redevelopment Agreement.
THE PROVISIO NS OF THIS NOTE MAY BE AMENDED OR REVISED ONLY
BY AN INSTRu MENT IN \VRITING SIGNED BY TilE AUTHORITY AND
DEVELO PER.
IN WITNESS WHEREOF. an authonzed representative of the Wheat Ridge Urban
Renewal Authority dlblaf Renewal Wheat Ridge has executed this Promissory Note as of the day
and year first above wntten.
[SEAL]
ATTEST:
Patrick Goff, Executive Director
WHEAT RIDGE URBAN RENEWAL
AUTHORITY
K.risti Davis. Chairperson
E-2
TABLE OF OUTSTANDING REIMBURSEMENT AMO UNT
Total Reimbursement Amount Due Under this Note: -----
Date of Project Completion Certificate: ____ _
On each November I, the owner of this Note shall make the appropriate notation on the table
below relating to the payment of amounts due on this Note.
Beginning
Date Outstanding Balance Amount Paid on Note Remaining Balance
E-3
EXHIBIT F
FORM OF SUBDIVISION IMPROVEMENT AGREEMENT
THIS AGREEMENT made this of , by
and between the CITY OF WHEAT RI DGE , COLORADO, a home rule municipal
corporation (the "City"), and , (the "Developer"),
together referred to as the "Parties".
RECITALS:
The Developer is the owner of certain real property located in the City of Wheat
Ridge, which is more particularly described in Exhibit A and made a part hereof (the
"Property"), commonly known as---------------
On , the City Council of the City of Wheat Ridge,
after holding all required public hearings, approved the final plat for the Property titled
A copy of the Final Plat is
attached hereto as Exhibit B and incorporated herein.
The approvals cited above are contingent upon the express condition that all
duties created by this Agreement be faithfully performed by the Developer.
AGREEMENT
NOW, therefore, for and in consideration of the mutual promises and covenants
contained herein, the sufficiency of which are mutually acknowledged, the parties hereto
agree as follows:
1. Purpose. The purpose of this Agreement is to set forth the terms,
conditions, and fees to be paid by the Developer upon subdivision of the Property. All
conditions contained herein are in addition to any and all requirements of the City of
Wheat Ridge Subdivision Ordinance and Zoning Ordinance, the City of Wheat Ridge
Charter, any and all state statutes, and any other sections of the City of Wheat Ridge
Municipal Code and are not intended to supersede any requirements contained therein.
2. Other Requirements. See Exhibit attached hereto.
3. Fees. The Developer hereby agrees to pay City Development Review
fees to the City for engineering, hydrological, surveying, legal, and other services
rendered in connection with the review of the subdivision of the Property.
4. Parkland dedication fee-in lieu. Fees in lieu of land dedication, when
required, shall be calculated pursuant to the formula in Section 26-413 and shall be paid
at the time of plat recordation .
F-1
5. Title Policy. Prior to recording of the final plat (or, if no plat is associated
with the development; prior to and as a condition of final approval of the development
by the City), title commitment for all those portions of the Property, as well as any other
interests in real property (easements, etc.) to be reserved for public purposes or
dedicated to the City shall be provided to the City. The title commitment shall show that
all such property is or shall be, subsequent to the execution and recording of this
Agreement. free and clear of all liens and encumbrances (other than real estate taxes
which are not yet due and payable) which would make the dedication or reservation
unacceptable as the City determines in its reasonable discretion. The City, in its sole
discretion, may accept any dedication regardless of encumbrances. The title policy
evidenced by the title commitment shall be provided within thirty (30) days after the
recording of this Agreement, in an amount equal to the fair market value of the property
so dedicated or reserved.
6. Breach by the Developer; the City's Remedies. In the event of a breach of
any of the terms and conditions of this Agreement by the Developer, the City Council
shall be notified immediately and the City may take such action as permitted and/or
authorized by law, this Agreement, or the ordinances and Charter of the City as the City
deems necessary to protect the public health, safety and welfare; to protect lot buyers
and builders; and to protect the citizens of the City from hardship and undue risk.
These remedies include, but are not limited to:
(a) The refusal to issue any building permit or certificate of occupancy;
(b) The revocation of any building permit previously issued under which
construction directly related to such building permit has not commenced ,
except a building previously issued to a third party,
(c) A demand that the security given for the completion of the Public
Improvements be paid or honored, or
(d) Any other remedy available at law or in equity.
Unless necessary to protect the immediate health, safety and welfare of the City or to
protect the City's interest with regard to security given for the completion of the Public
Improvements, the City shall provide the Developer thirty (30) days written notice of its
intent to take any action under this paragraph during which thirty day period the
Developer may cure the breach described in the notice.
7. Public Improvements and Warranty. All storm sewer lines, drainage
structures, paved streets, curb, gutter and sidewalk, including the undergrounding of all
overhead utilities, and necessary appurtenances as shown on the subdivision plat and
the associated construction documents (the "Public Improvements" or "Improvements")
as approved by the Director of Public Works or designee of the City, shall be installed
and completed at the expense of the Developer within the timeframes set forth in
Section 10 of this Agreement. The itemized costs of the Public Improvements required
by this Agreement and shown on the construction documents approved by the Director
of Public Works of the City are set forth on Exhibit C. All Public Improvements covered
F-2
by this Agreement shall be made in accordance with the construction documents drawn
according to regulations and construction standards for such improvement and
approved by the Director of Public Works of the City. It is understood by the Parties that
the description of the Public Improvements may be general in nature, and that
reasonable modifications of the scope, nature, costs, and similar aspects of the Public
Improvements may be necessary to secure final approval of the Public Improvements.
The quantities and locations for the Public Improvements are based on information that
was available at the time of approval of the Final Plat. Additional Public Improvements
may be required, and Developer shall be responsible for submitting revisions to the
Final Plat approved by the City. The Public Improvements shall be substantially
complete, with only such exceptions as shall be approved in advance by the Director of
Public Works in the exercise of his or her sole discretion, prior to the issuance of the
first Building Permit.
The Developer shall also warrant any and all Public Improvements which are
conveyed to the City pursuant to this Agreement for a period of two (2) years from the
date the City's Director of Public Works certifies that the same conforms to the
specifications approved by the City. Specifically, but not by way of limitation, the
Developer shall warrant the following:
(a) That the title conveyed shall be marketable and its transfer rightful;
(b) Any and all facilities conveyed shall be free from any security interest or
other lien or encumbrance; and
(c) Any and all facilities so conveyed shall be free of defects in materials or
workmanship for a period of two (2) years as stated above.
(d) To the degree the Developer is required to install and maintain
landscaping on public or private property, it is the obligation of Developer
and its successors and assigns, to maintain the required landscaping in
perpetuity.
The City will finally accept for maintenance all Public Improvements, exclusive of
landscaping materials, after the warranty period has expired provided all warranty work
has been completed. The City shall accept for snow removal purposes only, all
dedicated public streets after the City issues the first certificate of occupancy.
8. Installation of Traffic Signal. A traffic signal may be required to serve this
development. Determination of the need for the signal shall be made by the City's
Public Works Director, hereinafter "Director". prior to building permit issuance and
based upon a traffic study for this development approved by the City. The Developer
shall provide collateral for the estimated cost of installation of the traffic signal prior to
building permit issuance, if the Director has determined that a signal is needed. Prior to
building permit issuance, the Developer shall provide traffic signal plans for approval by
the Developer and the Colorado Department of Transportation.
F-3
The Developer shall notify the City in writing, a minimum of one hundred sixty
(160) days prior to the desired time of installation/modification of the traffic signal in
order to allow the City to coordinate the timing of the traffic signal improvements. If the
Director approves installation of the signal based on meeting traffic warrants, the City
shall then notify the Developer in writing of the exact amount required for the traffic
signal improvements. The Developer shall then make payment to the City in cash for
the required amount within sixty (60) days of receipt of such letter. The City will not
commence traffic signal improvements until the Developer has paid to the City the total
amount determined by the Director to be the total cost of improvements.
9. Observation. Inspection and Testing. The City shall have the right to
require reasonable engineering observations and testing at the Developer's expense.
Observation and testing, acquiescence in, or approval by any engineering inspector of
the construction of physical facilities at any particular time shall not constitute the
approval by the City of any portion of the construction of such Public Improvements.
Such approval shall be made by the City, only after completion of construction and in
the manner hereinafter set forth.
The Director is designated by the City to exercise authority on its behalf under
this Agreement and to see that this Agreement is performed according to its terms.
Work under this Agreement may, without cost or claim against the City, be suspended
by the Director for substantial cause.
The Director shall, within a reasonable time after presentation, make decisions in
writing on all claims of Developer and on all other matters relating to the execution and
progress of the work or the interpretation of this Agreement, the master plan and
specifications. All such decisions of the Director shall be final.
The Director shall make all determinations of amounts and quantities of work
performed hereunder. To assist him in this work Developer shall make available for
inspection any records kept by Developer.
The Director shall make all determinations of amounts and quantities of work
performed hereunder. To assist him in this work Developer shall make available for
inspection any records kept by Developer.
The Director and his authorized representatives shall have free access to the
work at all times, and Developer shall furnish them with facilities for ascertaining
whether the work being performed, or the work which has been completed, is in
accordance with the requirements of the Agreement.
The Director will make periodic observations of construction (sometimes
commonly referred to as ''supervision"). The purpose of these observations and
construction checking is to determine the progress of the work and to see if the work is
being performed in accordance with the plans and specifications. He will in no way be
F-4
responsible for how the work is performed, safety in, on, or about the job site, methods
of performance, or timeliness in the performance of the work.
Inspectors may be appointed to inspect materials used and work done.
Inspections may extend to all or any part of the work and to the preparation or
manufacture of the materials to be used. The inspectors will not be authorized to alter
the provisions of this Agreement or any specifications or to act as foreman for
Developer. The Inspector will have authority to reject defective materials and to
suspend any work that is being done improperly, subject to the final decision of the
Director.
10. Completion of Public Improvements. The obligations of the Developer
provided for in paragraph 6 of this Agreement, including the inspections hereof, shall be
performed on or before , and
proper application for acceptance of the Public Improvements shall be made on or
before such date. Upon completion of construction by the Developer of such
Improvements, the City's Director of Public Works or designee, shall inspect the
Improvements and certify with specificity its conformity or lack thereof to the City's
specifications. The Developer shall make all corrections necessary to bring the
Improvements into conformity with the City's specifications. Once approved by the
City's Director of Public Works, the City shall accept said Improvements upon
conveyance; provided , however, the City shall not be obligated to accept the Public
Improvements until the actual costs described in this Agreement are paid in full by the
Developer.
11 . Protection. Developer, at its expense, shall continuously maintain
adequate protection of all Improvements from damage prior to acceptance by the City
and shall protect the City's property from injury and loss arising in connection with this
Agreement. Developer shall make good any such damage, injury or loss except such
as may be caused directly by authorized agents or employees of the City. Developer
shall adequately protect adjacent property and shall provide and maintain all
passageways, guard fences, lights and other facilities for protection required by public
authority or local conditions.
Developer shall be responsible for damage to any public and private property on
and adjacent to the site of Developer's Improvements caused by negligent or willful acts
of Developer, its agents or subcontractors. Developer shall take all reasonable effort
necessary to prevent damage to pipes, conduits, and other underground structures and
to overhead wires, and to water quality. Developer shall protect carefully from
disturbance or damage all land monuments and property marks until an authorized
agent of the City has witnessed or otherwise referenced their location, and shall not
remove them until directed. When any direct or indirect damage or injury is done to
public or private property by or on account of any act, omission, neglect or misconduct
in the construction of Improvements, or in consequence of the non-execution thereof on
his part, such damaged property shall be restored by Developer at its own expense to a
condition similar or equal to that existing before such damage or injury.
F-5
Developer shall at all times, whether or not so specifically directed by the
Director, take necessary precautions to insure the protection of the public. Developer
shall furnish, erect and maintain, at its own expense, all necessary barricades, suitable
and sufficient red lights, construction signs, provide a sufficient number of watchmen,
and take all necessary precautions for the protection of the work and safety of the public
through or around his construction operations as Developer and the Director shall deem
reasonably necessary.
12. Related Costs -Public Improvements. The Developer shall provide all
necessary engineering designs, surveys, field surveys, testing and incidental services
related to the construction of the Public Improvements at its sole cost and expense,
including final drainage study letter certified accurate by a professional engineer
registered in the State of Colorado.
13. Improvements to be the Property of the Citv. All Public Improvements for
roads, concrete curb and gutters, public storm sewers and public drainage
improvements accepted by the City shall be dedicated to the City and warranted for a
period of twenty-four (24) months following acceptance by the City, as provided above.
14. Performance Guarantee. In order to secure the construction and
installation of the Public Improvements the Developer shall, prior to recording the Final
Plat, if applicable, in the real estate records of Jefferson County, which recording shall
occur no later than ninety (90) days after the execution of this Agreement, furnish the
City, at the Developer's expense, with the Performance Guarantee described herein.
The Performance Guarantee provided by the Developer shall be an irrevocable letter of
credit in which the City is designated as beneficiary, for one hundred twenty-five percent
(125%) of the estimated costs of the Public Improvements to be constructed and
installed as set forth in Exhibit C, if applicable to secure the performance and
completion of the Public Improvements as required by Section 26-418 Security for
Required Improvements, of the Wheat Ridge Subdivision Regulations. The Developer
agrees that approval of this Agreement by the City is contingent upon the Developer's
provision of an irrevocable letter of credit to the City within ninety (90) days of the
execution of this Agreement in the amount and form provided herein. Failure of the
Developer to provide an irrevocable letter of credit to the City in the manner provided
herein shall negate the City's approval of this Agreement. Letters of credit shall be
substantially in the form and content set forth in Exhibit D, if applicable, and shall be
subject to the review and approval of the City Attorney. The Developer shall not start
any construction of any public or private improvement on the Property including, but not
limited to, staking, earthwork, overlot grading or the erection of any structure, temporary
or otherwise, until the City has received and approved the irrevocable letter of credit.
The estimated costs of the Public Improvements shall be a figure mutually
agreed upon by the Developer and the City's Director of Public Works, as set forth in
Exhibit C if applicable. If, however, they are unable to agree, the Director of Public
Works' estimate shall govern after giving consideration to information provided by the
F-6
Developer including, but not limited to, construction contracts and engineering
estimates. The purpose of the cost estimate is solely to determine the amount of
security. No representations are made as to the accuracy of these estimates, and the
Developer agrees to pay the actual costs of all such Public Improvements.
The estimated costs of the Public Improvements may increase in the future.
Accordingly, the City reserves the right to review and adjust the cost estimate on an
annual basis. If the City adjusts the cost estimate for the Public Improvements, the City
shall give written notice to the Developer. The Developer shall, within thirty (30) days
after receipt of said written notice, provide the City with a new or amended letter of
credit in the amount of the adjusted cost estimates. If the Developer refuses or fails to
so provide the City with a new or amended letter of credit, the City may exercise the
remedies provided for in this Agreement; provided, however, that prior to increasing the
amount of additional security required, the City shall give credit to the Developerfor all
required Public Improvements which have actually been completed so that the amount
of security required at all time shall relate to the cost of required Public Improvements
not yet constructed.
In the event the Public Improvements are not constructed or completed within the
period of time specified by paragraph 9 of this Agreement or a written extension of time
mutually agreed upon by the parties to this Agreement, the City may draw on the letter
of credit to complete the Public Improvements called for in this Agreement. In the event
the letter of credit is to expire within fourteen (14) calendar days and the Developer has
not yet provided a satisfactory replacement, the City may draw on the letter of credit and
either hold such funds as security for performance of this Agreement or spend such
funds to finish Public Improvements or correct problems with the Public Improvements
as the City deems appropriate.
Upon completion of performance of such improvements, conditions and
requirements within the required time, the Developer shall issue an irrevocable Jetter of
credit to the City in the amount of twenty-five percent (25%) of the total cost of
construction and installation of the Public Improvements, to be held by the City during
the warranty period . If the Public Improvements are not completed within the required
time, the monies may be used to complete the improvements.
15. Indemnification. The Developer shall indemnify and hold harmless the
City and its officers, employees, agents or servants from any and all suits, actions, and
claims of every nature and description caused by, arising from or on account of this
Agreement any act or omission of the Developer, or of any other person or entity for
whose act or omission the Developer is liable, with respect to the Public Improvements;
and the Developer shall pay any and all judgments rendered against the City as a result
of any suit, action, or claim, together with all reasonable expenses and attorney's fees
and costs incurred by the City in defending any such suit, action or claim.
The Developer shall pay all property taxes on the Property dedicated to the City
and shall indemnify and hold harmless the City for any property tax liability.
F-7
16. Waiver of Defects. In executing this Agreement, the Developer waives all
objections it may have concerning defects, if any, in the formalities whereby it is
executed, or concerning the power of the City to impose conditions on the Developer as
set forth herein, and concerning the procedure, substance, and form of the ordinances
or resolutions adopting this Agreement.
17. Third Party Beneficiaries. There are and shall be no third party
beneficiaries to this Agreement.
18. Modifications. This instrument embodies the whole agreement of the
Parties. There are no promises, terms, conditions, or obligations other than those
contained herein; and this Agreement shall supersede all previous communications,
representations, or agreements, either verbal or written, between the parties. There
shall be no modification of this Agreement except in writing, executed with the same
formalities as this instrument. Subject to the conditions precedent herein, this
Agreement may be enforced in any court of competent jurisdiction.
19. Release of Liability. It is expressly understood that the City cannot be
legally bound by the representations of any of its agents or their designees except in
accordance with the City of Wheat Ridge Code of Ordinances and the laws of the State
of Colorado.
20. Captions. The captions to this Agreement are inserted only for the
purpose of convenient reference and in no way define, limit, or prescribe the scope or
intent of this Agreement or any part thereof.
21 . Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, successors, and assigns as the
case may be.
22. No Waiver. No waiver of any of the provisions of this Agreement shall be
deemed or constitute a waiver of any other provisions herein, nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided, nor shall the waiver
of any default hereunder be deemed a waiver of any subsequent default hereunder.
23. Invalid Provision. If any provision of this Agreement shall be determined
to be void by any court of competent jurisdiction, then such determination shall not
affect any other provision hereof, all of the other provisions shall remain in full force and
effect. It is the intention of the Parties that if any provision of this Agreement is capable
of two constructions, one of which would render the provision void, and the other which
would render the provision valid, then the provision shall have the meaning which
renders it valid.
24. Governing Law. The laws of the State of Colorado shall govern the
validity, performance and enforcement of this Agreement. Should either party institute
F-8
legal suit or action for enforcement of any obligation contained herein, venue of such
suit or action shall be in Jefferson County, Colorado.
25. Attorneys Fees. Should this Agreement become the subject of litigation to
resolve a claim of default of performance or payment by the Developer and a court of
competent jurisdiction finds in favor of the City, the Developer shall pay the City's
attorney's fees and court costs.
26. Notice. All notices required under this Agreement shall be in writing and
shall be hand delivered or sent by registered or certified mail, return receipt requested ,
postage prepaid , to the addresses of the parties herein set forth. All notices so given
shall be considered effective seventy-two (72) hours after deposit in the United States
mail with the proper address as set forth below. Either party by notice so given may
change the address to which future notices shall be sent.
Notice to Developer:
Notice to City:
Director of Public Works
7500 West 291h Avenue
Wheat Ridge, CO 80033
27. Force Majeure. Whenever the Developer is required to complete the
construction, repair, or replacement of Public Improvements by an agreed deadline, the
Developer shall be entitled to an extension of time equal to a delay in completing the
foregoing due to unforeseeable causes beyond the control and without the fault or
negligence of the Developer including, but not restricted to , acts of God, weather, fires
and strikes.
28. Assignment or Assignments. There shall be no transfer or assignment of
any of the rights or obligations of the Developer under this Agreement without the prior
written approval of the City.
29. Recording of Agreement. This Agreement shall be recorded in the real
estate records of Jefferson County and shall be a covenant running with the Property in
order to put prospective purchases or other interested parties on notice as to the terms
and provisions hereof.
30. Title and Authority. The Developer,-------------
expressly warrants and represents to the City that it is the record owner of the property
F-9
constituting the Property and further represents and warrants, together with the
undersigned individual(s) that the undersigned individual(s) has or have full power and
authority to enter into this Subdivision Improvement Agreement. The Developer and the
undersigned individual(s) understand that the City is relying on such representations
and warranties in entering into this Agreement.
WHEREFORE, the parties hereto have executed this Agreement on the day and
year first above written.
By:
ATTEST:
Janelle Shaver, City Clerk
APPROVED AS TO FORM:
Gerald Dahl, City Attorney
STATE OF COLORADO
CITY OF WHEAT RIDGE, COLORADO
Joyce Jay, Mayor
DEVELOPER
By: __________________________ _
)
) SS.
COUNTY OF ________________________ )
The foregoing instrument was acknowledged before me this __ day of
_____________ ,20 ___ ,by ______________________ ,as
__________________ of __________________________________ _
Witness my hand and official seal.
My commission expires: ----------------------------
Notary Public
(S EAL )
F-10
EXHIBITB
WEST END 38 COOPERATION AGREEMENT
BETWEEN THE CITY OF WHEAT RIDGE AND
WHEAT RIDGE URBAN RENEWAL AUTHORITY
THIS WEST END 38 COOPERATION AGREEMENT (this "Agreement") dated as of
December 14, 2015, is made and entered into between the CITY OF WHEAT RIDGE,
COLORADO (the '"City'') and the WHEAT RIDGE URBAN RENEWAL AUTHORITY d/b/a/
RENEWAL WHEAT RIDGE (the "Authority").
WHEREAS, the City is a Colorado home rule municipality with all the powers and
authority granted pursuant to Article XX of the Colorado Constitution and its horne rule charter
(the ·'Charter"); and
WHEREAS, the Authority is a Colorado Urban Renewal Authority, with all the powers
and authority granted to it pursuant to Title 31 , Article 25, Part 1, Colorado Revised Statutes
C·C.R.S.") (the "Urban Renewal Law"); and
WHEREAS, pursuant to Article XIV of the Colorado Constitution, and Title 29,
Article l , Part 2, C.R.S., the City and the Authority are authorized to cooperate and contract with
one another to provide any function, service or facility lawfully authorized to each governmental
entity; and
WHEREAS, an urban renewal plan known as the West End 38 Urban Renewal Plan (the
"Urban Renewal Plan" or the "Plan") for the area described therein (the "Urban Renewal Area")
has been prepared and will be considered for approval by the City Council of the City pursuant
to the requirements of Urban Renewal Law; and
WHEREAS, this Agreement shall take effect only upon the approval of the Urban
Renewal Plan by the City Council of the City; and
WHEREAS, West End 38, LLC (the "Developer") has acquired title to, or has a letter of
intent to purchase, certain real property consisting of approximately 3.67 acres, which is located
at the northwest comer of West 38th Avenue and Upham Street (the "Property"), which is in the
Urban Renewal Area; and
WHEREAS, the Developer has submitted a proposal to the City and the Authority to
redevelop the Property (the "Project"); and
WHEREAS, the Project is being undertaken to facilitate the elimination and prevention
of blighted areas and to promote redevelopment, conservation and rehabilitation of the Urban
Renewal Area; and
WHEREAS, pursuant to section 31-25-112, C.R.S., the City is specifically authorized to
do all things necessary to aid and cooperate with the Authority in connection with the planning
or undertaking of any urban renewal plans, projects, programs. works, operations, or activities of
the Authority, to enter into agreements with the Authority respecting such actions to be taken by
the City, and appropriating funds and making such expenditures of its funds to aid and cooperate
with the Authority in undertaking the Project and carrying out the Plan; and
WHEREAS, the Authority and the Developer have entered into a Redevelopment
Agreement dated as of October_, 2015 (the '·Redevelopment Agreement") that sets forth the
rights and responsibilities of each party with respect to the financing and construction of the
Project; and
WHEREAS, capitalized tem1s used herein and not otherwise defined shall have the
meanings set forth in the Redevelopment Agreement; and
WHEREAS, under the Redevelopment Agreement, the Developer has agreed to initially
fund the design, acquisition, construction and installation of certain Eligible Improvements for
the Project; and
WHEREAS, subject to the terms and provisions of the Redevelopment Agreement, the
Developer will be reimbursed for Eligible Costs incurred on the Eligible lmprovements in a
maximum amount of $4.800,000 (the ·'Reimbursement Amount") from the proceeds of the
Pledged Tax Increment Revenues generated by the Project (the ''Pledged Revenues"); and
WHEREAS, the Authority will execute and deliver a promissory note (the ''Note") to the
Developer to evidence its obligation to pay the Reimbursement Amount, subject to the terms and
provisions of the Redevelopment Agreement, which Note shall be a special and limited
obligation of the Authority payable solely from the Pledged Revenues.
NOW, THEREFORE, in consideration of the mutual promises set forth below, the
City and the Authority agree as follows:
l. COOPERATION.
(a) The City shall continue to make available such employees of the City as
may be necessary and appropriate to assist the Authority in carrying out any authorized duty or
activity of the Authority pursuant to the Urban Renewal Law, the Plan, or any other lawfully
authorized duty or activity of the Authority.
(b) The City agrees to assist the Authority by pursuing all lawful procedures
and remedies available to it to collect and transfer to the Authority on a timely basis all Pledged
Sales Tax Increment Revenues for deposit into the Project Account of the Special Fund. The
City agrees that so long as the Note remains outstanding, that by the last business day of each
month that it will remit to the Authority for deposit into the Project Account of the Special Fund
all Pledged Sales Tax Increment Revenues collected by the City in such month.
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(c) To the extent lawfully possible, the City will take no action that would
have the effect of reducing tax collections that constiMe Pledged Tax Increment Revenues.
2. GENERAL PROVISIONS.
(a) Separate Entities. Nothing in this Agreement shall be interpreted in any
manner as constituting the City or its officials, representatives, consultants. or employees as the
agents of the Authority, nor as constituting the Authority or its officials, representatives,
consultants, or employees as agents of the City. Each entity shall remain a separate legal entity
pursuant to applicable law. Neither party shall be deemed hereby to have assumed the debts,
obligations, or liabilities of the other.
(b) Third Parties. Neither the City nor the Authority shall be obligated or
liable under the terms of this Agreement to any person or entity not a party hereto, provided,
however, that so long as the Note is outstanding. the owner of the Note shall be a third party
beneficiary to the provisions hereof related to the collection and remittance to the Authority of
the Pledged Sales Tax Increment Revenues.
(c) Modifications. No modification or change of any prOVlSIOn in this
Agreement shall be made, or construed to have been made, unless such modification is mutually
agreed to in writing by both parties and incorporated as a written amendment to this Agreement.
Memoranda of understanding and correspondence shall not be construed as amendments to the
Agreement.
(d) Entire Agreement. This Agreement shall represent the entire agreement
between the parties with respect to the subject matter hereof and shall supersede all prior
negotiations, representations, or agreements, either written or oral, between the parties relating to
the subject matter of this Agreement and shall be independent of and have no effect upon any
other contracts.
(e) Severability. lf any provision of this Agreement is held to be invalid,
illegal or unenforceable, the validity. legality and enforceability of the remaining provisions shall
not in any way be affected or impaired.
(t) Assignment. Except as hereinafter provided, this Agreement shall not be
assigned, in whole or in part, by either party without the written consent of the other; provided
that this Agreement may be assigned or pledged without the written consent of the parties hereto
to secure the payments due on the Note.
(g) Waiver. No waiver of a breach of any provision of this Agreement by
either party shall constitute a waiver of any other breach or of such provision. Failure of either
party to enforce at any time, or from time to time, any provision of this Agreement shall not be
construed as a waiver thereof. The remedies reserved in this Agreement shall be cumulative and
additional to any other remedies in law or in equity.
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