2002-48

A RESOLUTION

A RESOLUTION FOR APPROVAL OF THE REDEVELOPMENT AGREEMENT BETWEEN THE LAKEWOOD REINVESTMENT AUTHORITY AND GOLDBERG PROPERTY ASSOCIATES, INC.

WHEREAS, the City of Lakewood ("City") has established the Lakewood Reinvestment Authority ("LRA") as an urban renewal authority pursuant to the City's Charter and the Colorado Urban Renewal law; and

WHEREAS, the City Council of the City of Lakewood approved the Colfax/Wadsworth Reinvestment Plan on August 9, 1999; and

WHEREAS, the City Council of the City of Lakewood has amended the Colfax/Wadsworth Reinvestment Plan to include adjacent properties in the urban renewal area and to include the retail land use concept and finding for a feasible method of relocation; and

WHEREAS, the Colfax/Wadsworth Reinvestment Plan as amended calls for the inclusion of quality retail development so as to renew and improve the character and environment of the Reinvestment Area and to reverse the cycle of economic, physical and environmental deterioration; and

WHEREAS, the City of Lakewood will participate in the financing of the public improvements necessary for the Colfax/Wadsworth Reinvestment Area; and

WHEREAS, the Vance Street Metropolitan Districts No. 1 and 2 will also participate in the financing of the public improvements for the Colfax/Wadsworth Reinvestment Area.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Lakewood, Colorado, that:

SECTION 1. The City Council hereby authorizes the City Manager to execute the Redevelopment Agreement between the LRA, Goldberg, the Vance Street Metropolitan Districts No. 1 and 2 and the City of Lakewood in substantially the form as Exhibit 1 attached hereto.

SECTION 2. The City Council hereby authorizes the City Manager to take such actions as are necessary to implement the terms of the Redevelopment Agreement,

INTRODUCED, READ AND ADOPTED by a vote of 9 for and 1 against at a regular meeting of the City Council on July 22, 2002, at 7:00 o'clock p.m. at Lakewood Civic Center, 480 South Allison Parkway, Lakewood, Colorado.

Stephen A. Burkholder, Mayor

ATTEST:
Margy Greer, City Clerk

---

Section 1 DEFINITIONS AND EXHIBITS 2
Section 1.01 Definitions 2
Section 1.02 Exhibits 12
Section 2 DESCRIPTION OF THE REDEVELOPMENT 12
Section 2.01 Engagement and Compensation 12
Section 2.02 Description of the Redevelopment 12
Section 2.03 Provision of Public Improvements 12
Section 2.04 City Public Improvements 13
Section 2.05 Schedule for Construction 13
Section 3 PUBLIC FINANCING, GENERALLY 13
Section 3.01 Closing of Public Financing 13
Section 3.02 Urban Drainage Funds 13
Section 3.03 Reimbursement for Environmental Assessments 14
Section 3.04 Brownfields Grant 14
Section 4 BONDS 14
Section 4.01 Issuance of Bonds 14
Section 4.02 Repayment of Bonds 14
Section 4.03 Refinancing of Bonds 15
Section 4.04 Notice of Net Bond Proceeds 15
Section 5 PLEDGE OF INCREMENTAL PROPERTY TAXES 15
Section 5.01 Pledge 15
Section 5.02 Appointment of Trustee or Escrow Agent 15
Section 5.03 City Agreement Regarding Payment of Incremental Property Taxes 15
Section 6 PLEDGE OF PUBLIC IMPROVEMENTS FEES AND WAIVER OF SALES TAXES 16
Section 6.01 Pledge 16
Section 6.02 Waiver 17
Section 6.03 Collections 17
Section 6.04 Discontinuance of Temporary Waiver of Waived Sales Taxes 18
Section 6.05 No Dominion or Control By Redeveloper 18
Section 7 PAYMENTS TO CITY 19
Section 7.01 Payment of Base Amount 19
Section 7.02 City's Share of Uncommitted Revenues 19
Section 7.03 Designation of City as Post Waiver PIF Payee 20
Section 8 REIMBURSEMENT OF REIMBURSABLE COSTS 20
Section 8.01 Payment Requests 20
Section 8.02 Disbursements of Uncommitted Revenues 20
Section 8.03 Collateral Assignment of Redeveloper's Right to Reimbursements 21
Section 8.04 Authority's Payment Obligation 21
Section 8.05 Status of Incremental Property Taxes 21
Section 9 OTHER FINANCING PROVISIONS 22
Section 9.01 District Levies 22
Section 9.02 Maximum Payment Obligation 22
Section 9.03 Municipal Services 23
Section 9.04 Confidentiality Waiver; Books and Records 23
Section 10 REDEVELOPER'S FINANCING 23
Section 10.01 Redeveloper's Financing 23
Section 10.02 Holder Not Obligated to Construct 24
Section 10.03 Copy of Notice of Default to Holder 24
Section 10.04 Holder's Option to Cure Defaults 24
Section 11 ACQUISITION OF THE PROPERTY 24
Section 11.01 Redeveloper's Acquisition Efforts 24
Section 11.02 Authority's Acquisition Efforts 25
Section 11.03 Eminent Domain 25
Section 11.04 Disclaimer 26
Section 11.05 Purchase Proposal; Purchase and Sale 26
Section 11.06 Development Fees and Expenses 27
Section 11.07 Inspection 27
Section 11.08 Eminent Domain Costs 27
Section 11.09 Conveyance; Condition of Title 28
Section 11.10 Closing 28
Section 11.11 District Property 29
Section 11.12 Rejection of Purchase Proposal 29
Section 12 REPRESENTATIONS AND WARRANTIES 29
Section 12.01 Representations and Warranties by Redeveloper 29
Section 12.02 Representations and Warranties by the Authority 30
Section 12.03 Representations and Warranties by the City 30
Section 12.04 Representations and Warranties by the Districts 30
Section 13 GENERAL COVENANTS 31
Section 13.01 Design Approval 31
Section 13.02 General Insurance Provisions 32
Section 13.03 Property Insurance 32
Section 13.04 Signage 33
Section 13.05 Assistance to Redeveloper 33
Section 13.06 Relocation 33
Section 13.07 Anti?Discrimination Employment 34
Section 13.08 Construction of the Project 34
Section 14 OTHER COVENANTS OF THE CITY 34
Section 14.01 Waiver of Sales Taxes 34
Section 14.02 Cooperation of City; Vacations and Dedications of Streets and Alleys 34
Section 14.03 Intersection Improvements 34
Section 14.04 Lakewood Housing Authority 36
Section 15 INDEMNITY AND RESPONSIBILITY 36
Section 15.01 Redeveloper's Indemnification 36
Section 15.02 Authority's Responsibility 36
Section 16 CONDITIONS PRECEDENT TO REDEVELOPER'S OBLIGATIONS 36
Section 16.01 Conditions Precedent 36
Section 16.02 Redeveloper's Option to Terminate 38
Section 17 EVENTS OF DEFAULT; REMEDIES 38
Section 17.01 Events of Default by Redeveloper 38
Section 17.02 Events of Default by the Authority 38
Section 17.03 Events of Default by the City 39
Section 17.04 Events of Default by a District 39
Section 17.05 Remedies 39
Section 17.06 Notice of Defaults; Opportunity to Cure Such Defaults 40
Section 17.07 Delay 40
Section 17.08 Anchor's Option to Cure Defaults 40
Section 18 TERMINATION 41
Section 18.01 Redeveloper's Option to Terminate 41
Section 18.02 Authority's and City's Option to Terminate 41
Section 18.03 District's Option to Terminate 41
Section 18.04 Action to Terminate 41
Section 18.05 Effect of Termination 42
Section 18.06 Scheduled Termination 42
Section 19 RESTRICTIONS ON ASSIGNMENT AND TRANSFER 42
Section 19.01 Representations as to Redevelopment 42
Section 19.02 Limitation on Assignment by Redeveloper 42
Section 19.03 Limitation on Assignment by a District 43
Section 20 MISCELLANEOUS 43
Section 20.01 Rights of the Bond Trustee 43
Section 20.02 Confidentiality 43
Section 20.03 Implementing Agreements 43
Section 20.04 Notices 44
Section 20.05 Waiver 44
Section 20.06 Attorneys' Fees 44
Section 20.07 Conflicts of Interest 44
Section 20.08 Titles of Sections 44
Section 20.09 No Partnership; No Agency Relationship 44
Section 20.10 Applicable Law 44
Section 20.11 Binding Effect 44
Section 20.12 Further Assurances 45
Section 20.13 Time of Essence 45
Section 20.14 Severability 45
Section 20.15 Good Faith; Consent or Approval 45
Section 20.16 Counterparts 45
Section 20.17 Non?Liability of Authority Officials and Employees 45
Section 20.18 Jointly Drafted; Rules of Construction 45
Exhibit A LEGAL DESCRIPTION OF THE PROPERTY 1
Exhibit B REDEVELOPMENT PLAN 1 Site Plan
Exhibit C DEPICTION OF THE CDOT STREET IMPROVEMENTS 1
Exhibit D DEPICTION OF THE COMBINED STREET IMPROVEMENTS 1
Exhibit E DISTRICT-ELIGIBLE PUBLIC IMPROVEMENTS 1
Exhibit F FORM OF PUBLIC IMPROVEMENTS AGREEMENT 1

---

CITY OF LAKEWOOD,
LAKEWOOD REINVESTMENT AUTHORITY,
VANCE STREET METROPOLITAN DISTRICT NO. 1,
VANCE STREET METROPOLITAN DISTRICT NO. 2,
AND
GOLDBERG PROPERTY ASSOCIATES, INC.
REDEVELOPMENT AGREEMENT
Dated as of _______, 2002

REDEVELOPMENT AGREEMENT
THIS REDEVELOPMENT AGREEMENT, dated as of ________, 2002, and any amendments hereto made in accordance herewith (as from time to time amended and supplemented in accordance herewith, this "Agreement"), is made by and among the CITY OF LAKEWOOD, COLORADO, a home rule municipal corporation organized under Article XX of the Constitution of the State of Colorado and the Charter of the City (the "City"), LAKEWOOD REINVESTMENT AUTHORITY, a body corporate duly organized and existing as an urban renewal authority under the laws of the State of Colorado (together with any successors thereto, the "Authority"), VANCE STREET METROPOLITAN DISTRICT NO. 1, a quasi-municipal corporation and political subdivision of the State of Colorado (the "Service District"), VANCE STREET METROPOLITAN DISTRICT NO. 2, a quasi-municipal corporation and political subdivision of the State of Colorado (the "Financing District") and GOLDBERG PROPERTY ASSOCIATES, INC., a Colorado corporation (together with any successors and/or assigns, "Redeveloper").
Recitals
This Agreement is made with respect to the following facts:
A. The Authority is a body corporate and has been duly created, organized, established and authorized to transact business and exercise its powers as an urban renewal authority within the City of Lakewood, Colorado (the "City"), all under and pursuant to the Colorado Urban Renewal Law, constituting Sections 31?25?101, et seq., Colorado Revised Statutes (the "Act").
B. The City has approved the "Colfax-Wadsworth Reinvestment Plan" (as defined in Section 1.01) as amended.
C. Redeveloper has agreed to construct certain improvements at the "Property" (as defined in Section 1.01), in furtherance of the Colfax-Wadsworth Reinvestment Plan. The Property is located in the City and is generally bounded by Wadsworth Boulevard on the west, Teller Street on the east, approximately 17th Avenue on the north, and West Colfax Avenue on the south.
D. Redevelopment of the Property is necessary to alleviate those conditions of blight found in the Colfax/Wadsworth Revitalization Survey.
E. Redeveloper has agreed to redevelop the Property by developing the "Project" (as defined in Section 1.01).
F. The Authority has reviewed Redeveloper's confidential pro forma for the Project dated July 18, 2002, which has been prepared by Redeveloper in good faith and delivered to the Authority, and the Authority has relied on the pro forma in connection with entering into this Agreement.
G. In order to proceed with the Project, Redeveloper or one or more of its Affiliates and the Service District must acquire title to the Property in a condition satisfactory to Redeveloper.
H. Pursuant to the Colfax-Wadsworth Reinvestment Plan, the Authority has the power of eminent domain to acquire and to convey to Redeveloper at fair value and the Service District unencumbered title to portions of the Property.
I. Redeveloper and the Service District wish to acquire unencumbered title to portions of the Property and, provided the Authority obtains such title to portions of the Property, the Authority is willing to sell and convey such title to such portions of the Property to Redeveloper and the Service District upon the terms and conditions set forth in this Agreement.
J. In order to provide funds to meet obligations with respect to public activities and operations of the Authority in connection with the Project in accordance with the Colfax-Wadsworth Reinvestment Plan and the Act, the Authority has designated a tax increment area within the Colfax-Wadsworth Study Area, as described in the Colfax-Wadsworth Reinvestment Plan designated the "Colfax-Wadsworth Tax Increment Area." The Parties anticipate that the Tax Increment Area will be expanded in accordance with the Act.
Agreement
NOW, THEREFORE, in consideration of the premises herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1 DEFINITIONS AND EXHIBITS.
Section 1.01 Definitions. As used in this Agreement, the following terms will have the following meanings:
"Act" has the meaning set forth in Recital A.
"Affiliate" means a corporation, limited liability company, partnership, joint venture, association, business trust or similar entity which directly or indirectly controls, is controlled by, or is under common control with Redeveloper, JDN Development Company, Inc., a Delaware corporation, or JDN Realty Corporation, a Maryland real estate investment trust. For purposes of this definition and this Agreement, "control" means the power to direct the management and policies of an entity through the ownership of at least a majority of its voting securities or otherwise, or the right to designate or elect at least a majority of the members of its governing body by contract or corporate membership rights or otherwise.
"Agreement" has the meaning set forth in the first paragraph of this Agreement. References to Sections and Exhibits are to this Agreement unless otherwise qualified.
"Anchor" means the retail tenant occupying, or having the right to occupy, pursuant to a lease with Redeveloper the largest building indicated on the Site Plan as "Proposed Retail".
"Authority" has the meaning set forth in the first paragraph of this Agreement.
"Base Amount" has the meaning set forth in Section 7.01(b).
"Base Installment" has the meaning set forth in Section 7.01(b).
"Bond Requirements" means principal, redemption or purchase price, premium, if any, interest, reserves and other amounts required to be paid from time to time pursuant to the Public Financing Documents with respect to the Bonds. Bond Requirements may include, by way of example and without limitation, amounts required to be paid or retained by the Bond Trustee from time to time for purposes of satisfying any principal and interest payments, coverage ratio requirements, debt service reserve requirements, and redemption reserve requirements.
"Bond Trustee" means the trustee or trustees for the holders of the Bonds appointed pursuant the Public Financing Documents.
"Bonds" means any of the bonds to be issued from time to time pursuant to Section 4.01.
"CDOT" has the meaning set forth in Section 14.03.
"CDOT Contract" has the meaning set forth in Section 14.03(a).
"CDOT Street Improvements" has the meaning set forth in Section 14.03.
"City" has the meaning set forth in the first paragraph of this Agreement.
"City Code" means the City of Lakewood Municipal Code, as amended from time to time.
"Closing" means the events described in Section 11.10.
"Colfax-Wadsworth Reinvestment Plan" means the urban renewal plan that is known as the Colfax-Wadsworth Reinvestment Plan, that is dated August 9, 1999, and that has been duly and regularly approved by the City Council of the City for the urban renewal project under the Act which is known and designated as the "Colfax-Wadsworth Redevelopment Project", as such plan may be amended from time to time in accordance with the Act.
"Combined Street Improvements" has the meaning set forth in Section 14.03.
"Commencement of Construction" means Redeveloper's commencement of physical construction of the Improvements to be constructed by Redeveloper with the intention to continue the work until the Improvements are completed.
"Committed Revenues" means the aggregate amount of all Incremental Property Taxes, Public Improvements Fee revenues and District Property Taxes derived from a Debt Service Levy that from time to time is required pursuant to the Public Financing Documents to be Pledged to, and held by, the Bond Trustee for payment of the Bond Requirements.
"Conditions Precedent" has the meaning set forth in Section 16.01.
"Contract Modification Order" has the meaning set forth in Section 14.03(b).
"County" means the County of Jefferson in the State of Colorado.
"Debt Service Levy" has the meaning set forth in Section 9.01.
"Default" means any event which with the giving of notice or the lapse of time, or both, would constitute an Event of Default hereunder.
"Designated Receiving Entity" means the City or such other entity as may be designated by the Districts pursuant to the provisions of the PIF Covenant to receive the Public Improvements Fees and to remit such fees to the party entitled thereto pursuant to this Agreement and the applicable Public Financing Documents. Subsequent to the Waiver Termination Date, the "Designated Receiving Entity" will mean: (a) the City with respect to the portion, if any, of the Public Improvements Fee revenues to which the City is entitled pursuant to Section 6.04 subsequent to the Waiver Termination Date other than in its capacity as the Post Waiver PIF Payee; and (b) the Post Waiver PIF Payee (or such other receiving entity as may be designated by the Post Waiver PIF Payee) with respect to the portion of the Public Improvements Fee revenues to which the Post Waiver PIF Payee is entitled pursuant to Section 6.04 subsequent to the Waiver Termination Date.
"District Court" means the District Court in and for the County.
"District-Eligible Public Improvements" means those Public Improvements that are listed on Exhibit E, which constitute those Public Improvements the costs of which may, in accordance with C.R.S. § 32?1?101, et seq., lawfully be paid for by the Districts.
"District-Eligible Public Improvements Costs" means all Hard Costs and Soft Costs paid or incurred in connection with designing, constructing and otherwise providing the District-Eligible Public Improvements and all Property Acquisition Costs which may, in accordance with C.R.S. § 32?1?101, et seq., lawfully be paid for by the Districts.
"District Property" means those portions of the Property that, in the course of the redevelopment activities performed under this Agreement, will be acquired by the Service District and on which will be constructed some, but not necessarily all, of the District-Eligible Public Improvements.
"District Property Taxes" has the meaning set forth in Section 9.01.
"Districts" means, collectively, the Service District and the Financing District, and any one of the Districts is referred to herein as a "District".
"Eligible Overage Costs" means, with respect to any particular District-Eligible Public Improvement described in a Service Plan, the amount, if any, by which the actual cost of designing and constructing such District-Eligible Public Improvement exceeds the estimated cost of such improvement to be set forth in the Service Plan; provided, however, that (a) the Eligible Overage Costs with respect to any such particular District-Eligible Public Improvement will not exceed 10% of the estimated cost of such improvement set forth in the Service Plan; and (b) the aggregate of all Eligible Overage Costs will not exceed 10% of the Maximum Reimbursable Costs.
"Eminent Domain Costs" mean those reasonable costs and expenses incurred by the Authority in an Eminent Domain Proceeding, including attorneys' fees, appraisal costs, witness fees, court fees and charges, deposition costs, travel costs, reimbursable respondent costs, assessable prejudgment and post?judgment interest incurred during the Eminent Domain Proceeding, any amounts required to be deposited with the District Court, costs and expenses of any appeal or retrial of the Eminent Domain Proceeding and Relocation Costs, if any, incurred by the Authority. Notwithstanding any other provision of this Agreement, Eminent Domain Costs will not include attorneys' fees, expenses, judgments, damages or any other costs whatsoever arising from any act of the Authority beyond its contractual rights under this Agreement or any costs of the Authority (other than appraisal costs) incurred prior to May 1, 2001.
"Eminent Domain Proceeding" means an eminent domain action to acquire Subject Property pursuant to C.R.S. § 38?1?101 et seq. or C.R.S. § 38?7?101 et seq.
"Environmental Laws" means all federal, state and local environmental, health and safety statutes, as may from time to time be in effect, including but not limited to federal laws such as the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9602, et seq., the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. § 9601(20)(D), the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq., the Federal Water Pollution Control Act, as amended by the Clean Water Act Amendments of 1977, 33 U.S.C. §§ 1251, et seq., the Clean Air Act of 1966, as amended, 42 U.S.C. §§ 7401, et seq., the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136, et seq., the Occupational Safety and Health Act, 29 U.S.C. §§ 651, et seq., the Safe Drinking Water Act, 42 U.S.C. §§ 300f, et seq., the Toxic Substances Control Act, 15 U.S.C. §§ 2601, et seq., and any and all federal, state and local rules, regulations, authorizations, judgments, decrees, concessions, grants, franchises, agreements and other governmental restrictions and other agreements relating to the environment or to any Pollutants, as may from time to time be in effect.
"Financing District" has the meaning set forth in the first paragraph of this Agreement.
"Fiscal Year" means the fiscal year of the City, which currently begins on January 1 of each year and ends on December 31 of such year.
"Hard Costs" means costs and expenses actually paid or incurred by Redeveloper or a District for labor, materials or equipment used for performing environmental remediation on the Property, demolishing and removing existing improvements on or about the Property and excavating, grading, landscaping, constructing and installing Public Improvements, including providing reports, testing or inspecting in connection therewith, as contemplated by this Agreement and the Redevelopment Plan. By way of example, Hard Costs will include, without limitation, (i) the gross cost of any general or special construction contract for the demolition of existing improvements or construction of Public Improvements which is reduced to writing, and the additional charges for change orders, discharge of mechanic's liens, and other similar extras contemplated by or resulting from such contract; and (ii) any utility tap or other hook-up fees actually incurred by Redeveloper or a District; provided that any costs or expenses included in the computation of Soft Costs or Property Acquisition Costs will not be included in Hard Costs.
"Holder" means the owner of a Mortgage.
"Improvements" means all of the improvements that Redeveloper is required to construct, repair or remodel or cause to be constructed, repaired or remodeled under this Agreement, whether on or about the Property, and that are generally described in the Redevelopment Plan.
"Incremental Property Taxes" means, for each Fiscal Year or portion thereof from August 9, 1999 to the Termination Date, the Property Taxes derived from the Tax Increment Area in excess of the Property Tax Base Amount, less an administrative fee retained by the Authority equal to one percent of such excess.
"Intersection Improvements" has the meaning set forth in Section 14.03.
"Maximum Reimbursable Costs" means the maximum amount of Reimbursable Costs for which Redeveloper or the Districts will be entitled to payment pursuant to this Agreement (whether such payment is received in the form of Net Bond Proceeds pursuant to Section 4 or in the form of reimbursements pursuant to Section 8) from Net Bond Proceeds financed by the Pledge of, or from reimbursement payments paid out of, the Incremental Property Taxes, Public Improvements Fee revenues and District Property Taxes derived from a Debt Service Levy to be Pledged or otherwise made available for such purposes hereunder, which maximum amount is $26,777,000 plus the amount of the Eligible Overage Costs, if any. However, the Maximum Reimbursable Costs will not apply to any Public Improvements Fee revenues that are paid to the Post Waiver PIF Payee subsequent to the Waiver Termination Date pursuant to Section 6.04 or to any District Property Taxes derived from an Operating Levy. Maximum Reimbursable Costs includes neither interest payable on the outstanding principal amount of the Bonds pursuant to the Public Financing Documents nor interest accrued on Reimbursable Costs and reimbursed to Redeveloper or the Service District pursuant to Section 8.02.
"Mortgage" means any mortgage or deed of trust conveying an interest in the Property for the purpose of securing a debt or other obligation.
"Net Bond Proceeds" means, with respect to any issuance of Bonds, the gross proceeds from such issuance less the costs of such issuance and less the amount of any required reserves or capitalized interest.
"Net Maximum Reimbursable Costs" means the Maximum Reimbursable Costs less the Net Bond Proceeds resulting from the issuance of Bonds pursuant to Section 4.01.
"Notice Address" means the address for notice set forth below, as amended from time to time:
Authority: Lakewood Reinvestment Authority
480 South Allison Parkway
Lakewood, CO 80226
Attention: Executive Director
Telecopy: (303) 987-7063
Telephone: (303) 987-7050
Redeveloper: Goldberg Property Associates, Inc.
1120 Lincoln Street, Suite 1101
Denver, Colorado 80203
Attention: Mark A. Goldberg, President
Telecopy: (303) 863-0275
Telephone: (303) 759-8000
City: City of Lakewood
480 South Allison Parkway
Lakewood, CO 80227
Attention: City Manager
Telecopy: (303) 987-7063
Telephone: (303) 987-7050
and
City of Lakewood
480 South Allison Parkway
Lakewood, CO 80227
Attention: Finance Director
Telecopy: (303) 987-7662
Telephone: (303) 987-7600
Service District: Vance Street Metropolitan District No. 1
c/o Goldberg Property Associates, Inc.
1120 Lincoln St.
Suite 1101
Denver, CO 80203-2136
Attention: Mark A. Goldberg
Telecopy: (303) 863-0275
Telephone: (303) 759-8000
and
McGeady Sisneros, P.C.
1675 Broadway, Suite 2100
Denver, CO 80202
Attention: Darlene Sisneros
Telecopy: (303) 592-4385
Telephone: (303) 592-4380
Financing District: Vance Street Metropolitan District No. 2
c/o Goldberg Property Associates, Inc.
1120 Lincoln St.
Suite 1101
Denver, CO 80203-2136
Attention: Mark A. Goldberg
Telecopy: (303) 863-0275
Telephone: (303) 759-8000
and
McGeady Sisneros, P.C.
1675 Broadway, Suite 2100
Denver, CO 80202
Attention: Darlene Sisneros
Telecopy: (303) 592-4385
Telephone: (303) 592-4380
"Operating Levy" has the meaning set forth in Section 9.01.
"Owner" or "Owners" mean the individuals and entities who own the fee interest in any portion of the Property.
"Payment Request" means a written request for payment of Reimbursable Costs given by Redeveloper to the Authority and the City in the form reasonably specified by the Authority and the City.
"Permitted Exceptions" has the meaning set forth in Section 11.09.
"PIF Covenant" means a real property covenant encumbering, and running with title to, the Tax Increment Area, pursuant to which every owner of real property within the encumbered area is required (a) if such owner constitutes a Retailer, to collect from the purchaser or the recipient of goods or services in each applicable transaction described in the PIF Covenant, and to pay to the Designated Receiving Entity, the Public Improvements Fee with respect to such transaction; and (b) if such owner leases any portion of its real property within the encumbered area to a Retailer or otherwise permits a Retailer to occupy any portion of such real property, to require pursuant to such owner's lease or other occupancy agreement with such Retailer that such Retailer collect from the purchaser or the recipient of goods or services in each applicable transaction described in the PIF Covenant, and to pay to the Designated Receiving Entity, the Public Improvements Fee with respect to such transaction.
"Pledge" means such assignment, conveyance, pledge, remittance or other transfer as may be customary and necessary or appropriate to make fully available for payment of the Bond Requirements and the Base Installments any tax or other revenue source to be so made available pursuant to this Agreement.
"Post Waiver PIF Payee" means any one or both of the Districts or such other party as may be designated in accordance with the provisions of the PIF Covenant to receive, subsequent to the Waiver Termination Date, a Public Improvements Fee of up to the amount of one and one-half percent (1.5%) of all applicable transactions within the Tax Increment Area.
"Project" means demolishing existing improvements, constructing or causing one or more metropolitan districts to construct new public improvements, such as public streets, sidewalks, utilities and parking facilities, a storm water management system and open space, and constructing new retail improvements, all as more fully described in the Redevelopment Plan and in accordance with this Agreement.
"Property" means the real property described on Exhibit A attached to this Agreement and any interests in such real property, including, without limitation, fee simple title, leaseholds or other interests.
"Property Acquisition Costs" means costs and expenses actually paid or incurred by Redeveloper or the Service District for the acquisition of any fee, leasehold or other interest in any Property, including, without limitation, the amounts payable by Redeveloper or the Service District pursuant to Section 11.08; provided that any costs or expenses included in the computation of Hard Costs or Soft Costs will not be included in Property Acquisition Costs.
"Property Taxes" means the real and personal property taxes produced by the levy at the rate fixed each year by the governing bodies of the various taxing jurisdictions, other than the Districts, within or overlapping the Tax Increment Area.
"Property Tax Base Amount" means the amount derived from the levy of Property Taxes on the total valuation assessment of, as applicable, all taxable property within the Tax Increment Area as certified by the County Assessor in the calendar year 1999.
"Public Financing" means the sale of Bonds or other acquisition of funds to finance, or otherwise to reimburse the Districts or Redeveloper for costs incurred in connection with, the design and construction of Public Improvements.
"Public Financing Documents" means any documents executed or delivered in connection with the closing of any Public Financing.
"Public Improvements" means those Improvements that are or will be owned by the City, the Districts or another governmental or quasi-governmental entity created under the laws of the State of Colorado, that are generally described in the Redevelopment Plan, and that comprise improvements the costs of which may, in accordance with the Colorado Urban Renewal Law, C.R.S. § 31?25?101, et seq. (the "Act"), lawfully be paid for by the Authority, including, without limitation, public streets, sidewalks, utilities and parking facilities, storm water management facilities and open space and associated land acquisition, demolition and remediation.
"Public Improvements Agreement" has the meaning set forth in Section 2.04.
"Public Improvements Fee" has the meaning set forth in Section 6.01.
"Purchase Price" is the price paid by Redeveloper or, pursuant to Section 11.11, the Service District for the Property or portions thereof or interests therein which are conveyed to Redeveloper or the Service District by the Authority. Any amounts deposited with the District Court with respect to any portion of or interest in the Property will be credited against the Purchase Price for such portion of or interest in the Property. For portions of or interests in the Property acquired as a consequence of an Eminent Domain Proceeding, the Purchase Price will equal the total cash compensation paid or payable by the Authority to the Owners and other owners or holders of interests in the Property, including any pre? and post?judgment interest and reimbursable costs of the Owners and other owners or holders of interests in the Property, as determined by negotiation, settlement, and/or the Eminent Domain Proceeding, and the Authority has determined that such compensation will be the "fair value" of the portion of or interest in the Property so acquired pursuant to C.R.S. § 31?25?106(1).
"Redeveloper" has the meaning set forth in the first paragraph of this Agreement.
"Redeveloper's Financing" means the financing described in Section 10.01, any refinancing thereof from time to time, and any other financing obtained by Redeveloper from time to time to finance the construction of Improvements other than Public Improvements.
"Redevelopment Plan" means Redeveloper's narrative, including the Site Plan, for the redevelopment of the Property attached hereto as Exhibit B.
"Reimbursable Costs" means all District-Eligible Public Improvements Costs that are paid or incurred by Redeveloper or the Districts, together with all other costs for the Project which may, in accordance with the Act, lawfully be paid for by the Authority or the Districts (including, without limitation, all Property Acquisition Costs, Hard Costs, Soft Costs, Relocation Costs and other amounts payable by Redeveloper to the Authority pursuant to this Agreement) and which are paid or incurred by Redeveloper or the Districts.
"Reinvestment Area" has the meaning set forth in the Colfax-Wadsworth Reinvestment Plan.
"Relocation Costs" means all costs related to the relocation of businesses and residents in the Project Area in accordance with the Lakewood Reinvestment Authority Relocation Policy for the Colfax-Wadsworth Project, including, without limitation, costs relating to the relocation of residents of Vance Terrace pursuant to the Vance Terrace Agreement.
"Retailer" means any seller or provider of goods or services who engages in any of the applicable transactions described in the PIF Covenant within the Tax Increment Area.
"Revised Scope" has the meaning set forth in Section 14.03.
"Right-of-way Condemnation" has the meaning set forth in Section 14.03(e).
"Sales Tax" means that tax levied by the City pursuant to Section 3.01 of the City Code (or any modifications thereto or replacement thereof adopted from time to time by the City) and any increase or decrease in the amount of such levy.
"Service District" has the meaning set forth in the first paragraph of this Agreement.
"Service Plan" means, with respect to the Service District, the Service Plan for Vance Street Metropolitan District No. 1 and, with respect to the Financing District, the Service Plan for Vance Street Metropolitan District No. 2, each of which is dated as of March 18, 2002 and was approved by the City on March 18, 2002, and as each of them may be further modified, supplemented or amended from time to time. "Service Plans" means, collectively, the Service Plan for the Service District and the Service Plan for the Financing District.
"Site Plan" means the site plan attached hereto as a part of Exhibit B until such time as the site plan for the Project has been approved by the City pursuant to Article 15 of the City's Zoning Ordinance and, from and after the approval of such site plan by the City, the term "Site Plan" will mean such approved site plan, as the same may be modified from time to time with the approval of Redeveloper and the City.
"Soft Costs" means the following costs paid or incurred by Redeveloper or a District with respect to any matter for which Hard Costs or Property Acquisition Costs may be paid or incurred: reasonable fees and expenses of architects, surveyors, engineers, accountants, attorneys, construction managers and other professional consultants; direct salary and overhead expenses; development, administration and overhead charges; permit charges; commissions, interest charges, loan fees, the development fees and other amounts payable to the Authority pursuant to Section 11.06, and other costs of obtaining and maintaining Public Financing; provided that any costs or expenses included in the computation of Hard Costs or Property Acquisition Costs will not be included in Soft Costs.
"Subject Property" means any portion of or interest in the Property which pursuant to this Agreement is necessary for the Project and which is intended to be acquired by the Authority, whether by a voluntary purchase or by an Eminent Domain Proceeding.
"Substantial Project Completion" means substantial completion of construction of retail Improvements having at least 220,000 gross square feet of floor area and the Public Improvements.
"Tax Increment Area" means the Colfax-Wadsworth Tax Increment Area, as defined in the Recitals and which, as of the date of this Agreement, has the same legal description as the Property, as the same may be amended by expansion of it from time to time in accordance with the Act.
"Termination Date" means August 9, 2024, which date is 25 years after the date on which the Colfax-Wadsworth Reinvestment Plan was approved by the City.
"Title" has the meaning set forth in Section 11.09.
"Title Commitment" has the meaning set forth in Section 11.09.
"Title Company" has the meaning set forth in Section 11.09.
"Title Policy" means an ALTA Extended Coverage Owner's title insurance policy issued by the Title Company with all preprinted exceptions deleted, dated as of Closing and reflecting Redeveloper or, pursuant to Section 11.11, the Service District as fee owner of each parcel of the Subject Property in the amount of the Purchase Price, subject only to the Permitted Exceptions.
"Uncommitted Revenues" means the amount from time to time by which the aggregate of all Incremental Property Taxes, Public Improvements Fee revenues and District Property Taxes derived from a Debt Service Levy exceeds the sum of the amount of any Base Installments either due and payable or held for payment by the Bond Trustee plus the Committed Revenues. Without limiting the generality of the foregoing, Uncommitted Revenues may result from either (a) the aggregate of all Incremental Property Taxes, Public Improvements Fee revenues and District Property Taxes derived from a Debt Service Levy exceeding the sum of the amounts then required to be Pledged to the Bond Trustee for payment of the Bond Requirements and Base Installments pursuant to the then-existing Public Financing Documents; or (b) the aggregate of all Incremental Property Taxes, Public Improvements Fee revenues and District Property Taxes derived from a Debt Service Levy then Pledged to the Bond Trustee exceeding the sum of the amounts then required to be held by the Bond Trustee for payment of the Bond Requirements and any Base Installments, all pursuant to the then-existing Public Financing Documents.
"Urban Drainage District" has the meaning set forth in Section 3.02.
"Urban Drainage Funds" has the meaning set forth in Section 3.02.
"Vance Terrace" has the meaning set forth in Section 14.04.
"Vance Terrace Agreement" has the meaning set forth in Section 14.04.
"Waived Sales Taxes" has the meaning set forth in Section 6.02.
"Waiver Commencement Date" means the later of the date on which the PIF Covenant is recorded in the real property records of the County or the date on which the Anchor opens for business.
"Waiver Termination Date" means the earlier of (a) the date that is 25 years after the Waiver Commencement Date; or (b) the first date on which both (i) all Bond Requirements have been paid in full and there are no longer any Bonds outstanding; and (ii) Redeveloper or the Districts have received the Maximum Reimbursable Costs, whether in the form of Net Bond Proceeds pursuant to Section 4 or in the form of reimbursements pursuant to Section 8.
Section 1.02 Exhibits. The following exhibits are attached to and made part of this Agreement:
Exhibit A Legal Description of the Property
Exhibit B Redevelopment Plan
Exhibit C Depiction of the CDOT Street Improvements
Exhibit D Depiction of the Combined Street Improvements
Exhibit E District-Eligible Public Improvements
Exhibit F Form of Public Improvements Agreement
SECTION 2 DESCRIPTION OF THE REDEVELOPMENT.
Section 2.01 Engagement and Compensation. The Authority hereby selects and designates Redeveloper as the redeveloper of the Project and engages Redeveloper and the Districts to perform the redevelopment services with respect to the Project described in this Agreement. All payments to be made hereunder by the Authority or the City to or for the benefit of Redeveloper or the Districts will be considered as compensation of the performance for such redevelopment services.
Section 2.02 Description of the Redevelopment. The Project will consist of the redevelopment of the Property in accordance with the Redevelopment Plan. Subject to the satisfaction of the Conditions Precedent, Redeveloper agrees to redevelop the Property with appropriate care and diligence and to construct or cause to be constructed the Improvements in accordance with the Redevelopment Plan. All construction by Redeveloper will be undertaken and completed in accordance with all applicable laws and regulations (including, without limitation, City codes and ordinances and Environmental Laws), the Colfax-Wadsworth Reinvestment Plan and this Agreement.
Section 2.03 Provision of Public Improvements. Without limiting the generality of Section 2.01 and Section 2.02, Redeveloper and the Districts agree to design and construct Public Improvements generally as described in the Redevelopment Plan and as may be specifically set forth in the Service Plans. All Public Improvements in the Project will be designed and constructed in accordance with City requirements.
Section 2.04 City Public Improvements. Without limiting the generality of Section 2.03, a portion of the Public Improvements are improvements that, upon their completion, will be conveyed to and owned and operated by the City (the "City Public Improvements"). The City Public Improvements are described in the form of "Public Improvements Agreement" attached to this Agreement as Exhibit F. Redeveloper, the Districts and the City will execute the Public Improvements Agreement concurrently with the execution of this Agreement.
Section 2.05 Schedule for Construction.
(a) Commencement of Construction. As of the date of this Agreement, it is Redeveloper's intention to commence demolition on the Property during the fourth quarter of 2002, and to commence construction of the Project during the second quarter of 2003, in each case subject to the satisfaction of the Conditions Precedent. Understanding that the actual timing of the redevelopment will depend upon a number of factors, Redeveloper covenants that it will use commercially reasonable efforts to cause Commencement of Construction by no later than June 30, 2003, subject to the satisfaction of the Conditions Precedent and subject to Section 17.07.
(b) Completion of Construction. As of the date of this Agreement, it is Redeveloper's intention to complete the Project by the end of the third quarter of 2004. Understanding that the actual timing of the redevelopment will depend upon a number of factors, Redeveloper covenants that it will use commercially reasonable efforts to cause Substantial Project Completion by no later than September 30, 2004, subject to the satisfaction of the Conditions Precedent and subject to Section 17.07.
SECTION 3 PUBLIC FINANCING, GENERALLY.
Section 3.01 Closing of Public Financing. The Project will include the design and construction of Public Improvements. The parties intend that the costs of designing and constructing the Public Improvements will be financed generally in accordance with this Agreement. Prior to the Commencement of Construction with respect to any of the Public Improvements, the parties will cooperate to obtain, pursuant to the terms and provisions of this Agreement, the closing of the Public Financing for the Public Improvements, including the execution and delivery by each party of all Public Financing Documents required in connection with such closing. Redeveloper's obligation under this Agreement to construct the Improvements and the Districts' obligation under this Agreement to construct the Public Improvements is expressly conditional upon the closing the Public Financing for the Public Improvements.
Section 3.02 Urban Drainage Funds. As part of the Project, Redeveloper will undertake certain storm water and flood control improvements and maintenance of such improvements with respect to Dry Gulch, which passes through the Property. Redeveloper, from time to time, may be eligible to receive funds from Urban Drainage and Flood Control District ("Urban Drainage District") to use for the acquisition of real property for and the construction and maintenance of such improvements or for reimbursement of funds expended by Redeveloper for such purposes (the "Urban Drainage Funds"). The City and the Authority will cooperate with Redeveloper to apply to Urban Drainage District and to take such other actions as may be necessary and appropriate to obtain the Urban Drainage Funds.
Section 3.03 Reimbursement for Environmental Assessments. The City will pay Redeveloper up to $25,000 as compensation for an environmental site assessment for the Property pursuant to an Agreement for Professional Services dated April 29, 2002 between the City and Redeveloper.
Section 3.04 Brownfields Grant. The identification and remediation of environmental conditions within the Property may become part of the Project. Pursuant to the Small Business Liability Relief and Brownfields Revitalization Act of 2001, grants and/or loans may be available to pay for or reimburse the costs of such activities. The City and the Authority, with Redeveloper's cooperation, will take such actions as may be necessary and appropriate to obtain one or more Federal grants and/or loans for such costs (including, without limitation, applying for such grants and/or loans if applicable). To the extent that Redeveloper conducts such activities on behalf of the City and the Authority in connection with the Project and to the extent that the City or the Authority receives grants and/or loans for such activities, then the City or the Authority will pay Redeveloper for costs incurred by it in connection with such activities.
SECTION 4 BONDS.
Section 4.01 Issuance of Bonds. In order to fund or refund District-Eligible Public Improvements Costs, the Service District or the Financing District will issue Bonds from time to time, subject to the terms of its Service Plan. Further, if it is determined by the Colorado Supreme Court that urban renewal authorities formed pursuant to the Act are exempt from the provisions of Article X, Section 20 of the Colorado Constitution for the purposes of issuing bonds, the Authority may issue Bonds from time to time in order to fund or refund Reimbursable Costs that may or may not constitute District-Eligible Public Improvements Costs. The issuance of Bonds by the Districts will be subject to the terms and conditions of the Service Plans. The Net Bond Proceeds of all Bonds issued by any District will be used to pay for District-Eligible Public Improvements Costs and the Net Bond Proceeds of any Bonds issued by the Authority will be used to pay for Reimbursable Costs. The priorities among the various Bonds that may be issued from time to time as to the revenues or other amounts Pledged to meet the Bond Requirements thereof will be established by the applicable Public Financing Documents. The Bonds will be issued at such time or times as necessary to provide for the timely design and construction of the Public Improvements when and as the same is undertaken by Redeveloper in accordance with this Agreement.
Section 4.02 Repayment of Bonds. Funds for the payment of the Bond Requirements will be made available by the Pledges described in Section 5.01 and Section 6.01 below and, at the option of the Districts, may also be made available by a Pledge of revenues from a Debt Service Levy made pursuant to Section 9.01 below. Each of such Pledges will be effected through execution by the necessary parties of the appropriate Public Financing Documents at the time the subject Bonds are issued. Each party who agrees pursuant to any provision of this Agreement to make a Pledge to provide funds for the repayment of Bonds or payment of interest thereon further hereby agrees to execute such Public Financing Documents, in form reasonably acceptable to such party, as may be necessary or appropriate to effect that Pledge.
Section 4.03 Refinancing of Bonds. Subsequent to their initial issuance, no Bonds will be refinanced (other than pursuant to the express provisions of the Public Financing Documents executed in connection with their initial issuance) without the consent of the City and the Authority, which consent will not be unreasonably withheld; provided, however, that no such consent will be required after the Waiver Termination Date so long as, at that time, in accordance with Section 6.04 either (a) the temporary waiver of the Waived Sales Taxes has been discontinued and the City is again collecting such taxes; or (b) the City is receiving a Public Improvements Fee in the amount of two percent (2%), or such other percentage equal to the prevailing rate of Sales Tax levied by the City as of the Waiver Termination Date, of the value of all applicable transactions within the Tax Increment Area.
Section 4.04 Notice of Net Bond Proceeds. Promptly after the issuance of any Bonds, Redeveloper and, with respect to any Bonds issued by the Districts, the Districts will notify the City and the Authority of the Net Bond Proceeds resulting from such issuance. The City and the Authority may use such information, together with the Authority's records as to the amount of all reimbursement payments made pursuant to Section 8, to ensure that Redeveloper and the Districts do not receive Net Bond Proceeds pursuant to this Section 4 or reimbursement payments pursuant to Section 8 for Reimbursable Costs in excess of the Maximum Reimbursable Costs.
SECTION 5 PLEDGE OF INCREMENTAL PROPERTY TAXES.
Section 5.01 Pledge. Subject to Section 8.04, the Authority will Pledge and pay to the Districts, the Bond Trustee or Redeveloper, whichever may be required pursuant to the applicable Public Financing Documents, so much of the Incremental Property Taxes ( commencing with the Incremental Property Taxes produced from the levy of Property Taxes for the calendar year in which Bonds are first issued) as may be required to be Pledged for the payment of the Bond Requirements pursuant to such Public Financing Documents. To the extent that any Incremental Property Taxes constitute Uncommitted Revenues, the Authority will make the same available (or cause the same to be made available) for reimbursement to Redeveloper or, at Redeveloper's direction, the Service District of Reimbursable Costs pursuant to Section 8.02.
Section 5.02 Appointment of Trustee or Escrow Agent. The Authority may, from time to time, designate one or more trustees or escrow agents to act as its collection and disbursing agent for Incremental Property Taxes. Redeveloper hereby consents to any such designation.
Section 5.03 City Agreement Regarding Payment of Incremental Property Taxes.
(a) Subject to the provisions of this Section 5.03, including the requirement of Section 5.03(c) that the City has made an annual appropriation of funds to accomplish the purposes of this Section 5.03, upon receipt of written notice from an entity to which the Authority has agreed to Pledge and pay Incremental Property Taxes in accordance with Section 5.01 hereof, which notice states that such entity has not received the City's portion of such Incremental Property Taxes from the Authority as provided in the applicable Public Financing Documents for any reason or reasons (except if the reason for nonpayment by the Authority is the occurrence and continuance of an Event of Default by Redeveloper or a District under this Agreement), the City will pay the City's portion of the Incremental Property Taxes, as provided in the Public Financing Documents, directly to such entity. Payments will be made by the City pursuant to this Section 5.03(a) only for so long as and to the extent that the reason or reasons for nonpayment by the Authority continue. Payments by the City under this Section 5.03 will be limited to that portion of the Incremental Property Taxes received from a mill levy established and imposed for the benefit of the City. Nothing in this Agreement will be construed to require the City to make any payments to the Districts, the Bond Trustee or Redeveloper in excess of such amounts.
(b) Upon receipt of the written notice described in Section 5.03(a) hereof, the City will: (i) determine and deposit in a separate special fund or account the City's portion of Incremental Property Taxes required to be paid to the Districts or the Bond Trustee for payment of the Bond Requirements as set forth in the Public Financing Documents, and will pay the same monthly to the entity designated in the Public Financing Documents to receive such amounts; and (ii) determine and deposit in a separate special fund or account the amount of the City's portion of Incremental Property Taxes that constitute Uncommitted Revenues and make such amounts available for reimbursement to Redeveloper or, at Redeveloper's direction, the Service District as provided in Section 8.02 hereof.
(c) The parties hereto acknowledge and agree that any and all payments made by the City pursuant to this Agreement will constitute currently appropriated expenditures of the City. If the City has received the written notice described in Section 5.03(a) hereof, then (i) on or before the September 1 preceding the commencement of the next Fiscal Year of the City, the City and the District will estimate the amount of the City's portion of the Incremental Property Taxes to be received by the City during such next Fiscal Year, and (ii) such estimated amount, equivalent to the payments to be made by the City under Section 5.03(b) hereof, will be included in the proposed annual budget of the City submitted to the City Council for such next Fiscal Year. However, the decision to appropriate or not appropriate will be made by the City Council acting by resolution or ordinance without compulsion and solely in the City's discretion. This Agreement will not create a general obligation or other indebtedness or multiple fiscal year direct or indirect debt or other financial obligation of the City within the meaning of its Charter or any constitutional debt limitation.
SECTION 6 PLEDGE OF PUBLIC IMPROVEMENTS FEES AND WAIVER OF SALES TAXES.
Section 6.01 Pledge. Redeveloper covenants with the City, the Authority and the Districts that Redeveloper, for the benefit of the City, the Authority or the Districts, will cause the PIF Covenant to be prepared, executed, acknowledged and recorded so that, from and after such recording, any Retailer who engages in any of the applicable transactions described in the PIF Covenant within the Tax Increment Area will be required to collect from the purchaser or recipient of goods or services and pay to the Designated Receiving Entity a public improvements fee in the amount of three and one-half percent (3.5%) of such transaction until the Waiver Termination Date and, thereafter (a) a public improvements fee for the benefit of the City in the amount of two percent (2%), or such other percentage equal to the prevailing rate of Sales Tax levied by the City as of the Waiver Termination Date, of the value of such transaction for so long as the City is unable to discontinue the temporary waiver of the Waived Sales Taxes as set forth in Section 6.04; and (b) a public improvements fee for the benefit of the Post Waiver PIF Payee in the amount of one and one-half percent (1.5%) of such transaction, except to the extent waived by the Post Waiver PIF Payee (collectively, the "Public Improvements Fee"). Redeveloper further covenants for the benefit of the City, the Authority or the Districts that, in accordance with the PIF Covenant, Redeveloper will require that all of its tenants who may be or become Retailers collect and pay the Public Improvements Fee by providing, in all leases with tenants who may be or become Retailers for premises within the Tax Increment Area, that such tenants must collect and pay the Public Improvements Fee. The PIF Covenant will authorize the Districts to Pledge the Public Improvements Fee revenues, or any portion thereof, received by the Designated Receiving Entity for the payment of the Bond Requirements and, pursuant to Section 7.01, the Base Installments and will require the Designated Receiving Entity to pay so much of such Public Improvements Fee revenues received by it as may be so Pledged to the party entitled thereto pursuant to the applicable Public Financing Documents and the balance thereof to the Bond Trustee or other party entitled thereto pursuant to the applicable Public Financing Documents for such other purposes as may be provided for the in the Public Financing Documents, including, without limitation, payment the City's share of Uncommitted Revenues. With respect to any portion of the Public Improvements Fee revenues comprising any portion of Uncommitted Revenues accruing before the Waiver Termination Date, such portion of the Public Improvements Fee revenues, but not to exceed half of such Uncommitted Revenues, will be made available for payment to the City pursuant to Section 7.02, and the remainder of such portion of the Public Improvements Fee revenues, pursuant to the Public Financing Documents, will be made available for payment to Redeveloper or the Service District as reimbursement for Reimbursable Costs as provided in Section 8.02, to pay the costs of operating and maintaining the Public Improvements, to pay the Bond Requirements, or any combination of the three. Prior to recording, the PIF Covenant will be subject to review by counsel for the Authority and the City and counsel for the Service District to confirm that the same contains the provisions required by this Agreement.
Section 6.02 Waiver. Subject to the provisions set forth below, so long as the Public Improvements Fee is imposed as provided in Section 6.01, in consideration therefor and for the application of revenues from such Public Improvements Fee toward reimbursement of Reimbursable Costs incurred in providing Public Improvements for the Project and toward payment of the Bond Requirements and operating and maintaining such Public Improvements, the City will temporarily waive with respect to transactions occurring within the Tax Increment Area imposition of the City's Sales Tax (the "Waived Sales Taxes"), so that, during the effective temporary waiver period described below, the City will impose no Sales Tax on transactions occurring within the Tax Increment Area. The City will take such action as is necessary to cause such temporary waiver to become effective on or before the Waiver Commencement Date and such temporary waiver will remain effective until the Waiver Termination Date. The waiver of the City's Sales Taxes pursuant to this Section 6.02 is intended to be temporary only and not a change in the City's tax policy pursuant to applicable law.
Section 6.03 Collections. The City agrees initially to act as the Designated Receiving Entity. In its capacity as Designated Receiving Entity, the City will be entitled to charge, and will be paid, a fee or reimbursement in an amount not to exceed the City's pro rated costs of collecting and remitting the portion of the Public Improvements Fee revenues not paid to the City pursuant to this Agreement. So long as the City is providing such services, any Retailer will be required, pursuant to the PIF Covenant and/or its lease to prepare and file a return with the City for the Public Improvements Fees. The City will not undertake to collect or enforce collection of any Public Improvements Fees not received by it. Either the City or the Districts will be entitled to terminate the City's services as the Designated Receiving Entity upon not less than 180 days' prior notice to the other party together with such notice to such other parties as may be required by the terms of any Public Financing Documents. The City agrees to cooperate with the Districts and Redeveloper to: (i) determine the timing of payment of the Public Improvements Fees to the City; (ii) produce and update materials for Retailers collecting the Public Improvements Fees stating the procedures related thereto and reporting forms; (iii) develop procedures for advising the City of those Retailers subject to the Public Improvements Fee and for the City reporting of collected and delinquent Public Improvements Fees; (iv) develop procedures for adjusting the Public Improvements Fees for refunds and other post-sale events; and (v) take any other actions reasonably necessary to allow for the orderly and uninterrupted collection of Public Improvements Fees; provided, however, that any costs incurred by the City in connection with the provision of any other services agreed to in accordance herewith will be paid to, or deducted by, the City from the Public Improvements Fees received by it. The City authorizes the City Manager to enter into such agreement or agreements as may be necessary or appropriate to implement the provisions of this Section 6.03.
Section 6.04 Discontinuance of Temporary Waiver of Waived Sales Taxes. It is the intention of the City that, immediately upon the occurrence of the Waiver Termination Date, the City's temporary waiver of the Waived Sales Taxes will expire or will otherwise be discontinued so that the City will from and after that time again impose and collect such taxes. However, notwithstanding the discontinuance of the temporary waiver of the Waived Sales Taxes upon the occurrence of the Waiver Termination Date, the Post Waiver PIF Payee may continue to receive a Public Improvements Fee up to the amount of one and one-half percent (1.5%) of the value of all applicable transactions within the Tax Increment Area to pay costs of constructing, maintaining or operating Public Improvements and for other lawful purposes. In addition, if the City is legally precluded from discontinuing the temporary waiver of the Waived Sales Taxes for any reason, notwithstanding the occurrence of the Waiver Termination Date, the PIF Covenant will provide that, in addition to any Public Improvements Fee that may remain in effect subsequent to the Waiver Termination Date for the benefit of the Post Waiver PIF Payee as provided above, a Public Improvements Fee in the amount of two percent (2%), or such other percentage equal to the prevailing rate of Sales Tax levied by the City as of the Waiver Termination Date, of the value of all applicable transactions within the Tax Increment Area will remain in effect after the Waiver Termination Date for the benefit of the City, will be payable directly to the City and may be used by the City for so long as the City is so precluded from discontinuing the temporary waiver of the Waived Sales Taxes.
Section 6.05 No Dominion or Control By Redeveloper. Except as may be otherwise provided in the Public Financing Documents, the parties acknowledge that at all times prior to the Waiver Termination Date Redeveloper does not have and will not be legally entitled, authorized or empowered to exercise any dominion or control over any of the Public Improvements Fee revenues imposed or collected pursuant to this Agreement and the PIF Covenant. To the extent any Public Improvements Fee revenue is collected by Redeveloper, Redeveloper is merely acting on behalf of the Authority, the City or the Districts in implementing the PIF Covenant and providing for the collection and payment of Public Improvements Fee revenues under this Agreement. The parties further acknowledge that, subject to the express terms of this Section 6: (a) the Public Improvements Fee is a fee imposed on Retailers to finance the construction of Public Improvements and to compensate the City for certain lost sales tax revenue as provided herein; (b) the nature of the Public Improvements Fee is that of a fee imposed for the benefit of the Authority, the City or the Districts under private contract and not through the exercise of any City taxing authority; (c) the Public Improvements Fee revenues are not tax revenues in any form and the Public Improvements Fee will not be enforceable by the City; (d) the Pledged Public Improvements Fee revenues are the property of the Authority or the Districts to be used for the payment of the Bond Requirements and the Base Installments and as otherwise may be provided in this Agreement or the Public Financing Documents; and (e) the authority of the City, the Authority or the Districts to receive the Public Improvements Fee revenues is derived through this Agreement and the PIF Covenant.
SECTION 7 PAYMENTS TO CITY.
Section 7.01 Payment of Base Amount.
(a) Redeveloper acknowledges that, as of the date of this Agreement, the City collects sales tax revenue annually from the existing Wal-Mart store located at 1st Avenue and Wadsworth Boulevard in the City (the "Existing Store"). As part of Redeveloper's redevelopment activities relating to the Project, Redeveloper has entered into a lease with Wal-Mart whereby Wal-Mart will relocate the Existing Store to the Property as the Anchor (the "New Store"). If the Existing Store is in fact relocated to the Property as contemplated in this Section 7.01, then the City will be compensated for lost sales tax revenue relating to the Existing Store in accordance with the provisions of this Section 7.01.
(b) For the period commencing on the earlier of the date that the Existing Store closes for business or the 60th day after the date that the New Store opens for business, and continuing until the Waiver Termination Date (the "Base Payment Period"), the City will receive an annual amount for each calendar year equal to $1,000,000 (the "Base Amount") from the Public Improvements Fee revenues. If the Base Payment Period commences on a day other than the first day of a calendar year or ends on a day other than the last day of a calendar year, then Base Amount for such first or last calendar year will be appropriately prorated. The Base Amount for each calendar year will be paid to the City in monthly installments of $83,333.34 each (each, a "Base Installment") from the Public Improvements Fee revenues; provided that if the Base Payment Period commences on a day other than the first day of a calendar month or ends on a day other than the last day of a calendar month, then Base Installment will be appropriately prorated for such calendar month. The Public Financing Documents will provide that the Bond Trustee will pay each Base Installment to the City within ten days after the Public Improvements Fee revenues collected for such calendar month have been received by the Bond Trustee and that the payment of each Base Installment will have priority over all other amounts required to be paid or to be held by the Bond Trustee, including without limitation, amounts to be paid or held in satisfaction of the Bond Requirements.
Section 7.02 City's Share of Uncommitted Revenues. With respect to any Uncommitted Revenues accruing before the Waiver Termination Date, the Public Financing Documents will provide that no later than 30 days following delivery by the Bond Trustee or other holder of Uncommitted Revenues to the parties of a written notice indicating that Uncommitted Revenues exist (and, during such 30-day period, verification by the parties of the existence of Uncommitted Revenues), subject to the requirements of the Public Financing Documents, the Bond Trustee or such other holder will pay to the City one-half (½) of the amount of Uncommitted Revenues then held by the Bond Trustee or other holder, but not to exceed the amount of Public Improvements Fee revenues comprising a portion of Uncommitted Revenues.
SECTION 8 REIMBURSEMENT OF REIMBURSABLE COSTS.
Section 8.01 Payment Requests. In order to receive any reimbursement of Reimbursable Costs pursuant to this Section 8, Redeveloper or the Service District will provide to the Authority a Payment Request. The Payment Request will indicate the aggregate Reimbursable Costs to be reimbursed to Redeveloper or the Service District and such other information as the Authority may from time to time reasonably require, such as, for example, evidence substantiating any or all of the Reimbursable Costs indicated in such notice. The Payment Request will further include (a) a certification by Redeveloper or the Service District that all Reimbursable Costs requested in such Payment Request were actually incurred by Redeveloper or the Service District, were not and will not be paid for from any Net Bond Proceeds and have not been previously requested pursuant to a prior Payment Request; and (b) a certification by the architect or engineer of the subject Public Improvements that the Public Improvements made therewith were constructed in compliance with applicable laws, ordinances and regulations, the Redevelopment Plan and the Colfax-Wadsworth Reinvestment Plan.
Section 8.02 Disbursements of Uncommitted Revenues. With respect to any Uncommitted Revenues accruing before the date that all Bond Requirements have been paid in full and there are no longer any Bonds outstanding, the Public Financing Documents will provide that no later than 30 days following delivery by the Bond Trustee or other holder of Uncommitted Revenues to the parties of a written notice indicating that Uncommitted Revenues exist (and, during such 30-day period, verification by the parties of the existence of Uncommitted Revenues), subject to the requirements of the Public Financing Documents, the Bond Trustee or other holder of the Uncommitted Revenues will pay such Uncommitted Revenues, other than the portion of Uncommitted Revenues payable to the City pursuant to Section 7.02, to Redeveloper or the Service District (i) as reimbursement for Reimbursable Costs as provided in this Section 8.02, plus interest at the rate of 7.15% per year, compounded annually, from the date such Reimbursable Costs are incurred by Redeveloper or the Service District until reimbursed pursuant to this Section 8.02; (ii) to pay the costs of operating and maintaining the Public Improvements; (iii) to pay the Bond Requirements; or (iv) for any combination of the uses described in the preceding clauses (i) through (iii). Payments made to Redeveloper or the Service District for any Reimbursable Costs will be based on a Payment Request submitted by Redeveloper or the Service District, as the case may be, and will included accrued interest; provided, however, that the maximum amount of Reimbursable Costs, not including interest, for which Redeveloper and the Service District may be reimbursed under this Agreement will be the Net Maximum Reimbursable Costs. If Redeveloper or the Service District submits one or more Payment Requests prior to the time that Uncommitted Revenues exist, the Authority will hold such Payment Requests until such time as Uncommitted Revenues do exist and then pay them at that time, to the extent of the existing Uncommitted Revenues less the City's share of Uncommitted Revenues pursuant to Section 7.02. If, on the other hand, Uncommitted Revenues exist at a time when no Payment Requests have been submitted but Redeveloper and the Districts have not yet received the Maximum Reimbursable Costs (either in the form of Net Bond Proceeds pursuant to Section 4 or in the form of reimbursements pursuant to this Section 8), then the City, the Authority and the Districts will cause the Authority or other holder of such Uncommitted Revenues to hold the same, except as otherwise provided in Section 7.02, until such time as (a) one or more Payment Requests are received for reimbursement; or (b) such Uncommitted Revenues become Committed Revenues.
Section 8.03 Collateral Assignment of Redeveloper's Right to Reimbursements. In order to obtain private financing for any Reimbursable Costs that will not be funded from Net Bond Proceeds, Redeveloper and the Service District will have the right to collaterally assign their respective rights to receive reimbursements for Reimbursable Costs pursuant to this Agreement, subject to the Bond Requirements as set forth in the Public Financing Documents from time to time. The City, the Districts and the Authority agree to execute such acknowledgements of, and consents to, any such collateral assignments as may be reasonably requested by Redeveloper's or the Service District's lender.
Section 8.04 Authority's Payment Obligation. The parties acknowledge that, as of the date of this Agreement, the Authority's payment obligations under this Agreement with respect to Incremental Property Taxes are subject to annual appropriation. The Authority agrees that, until such time, if any, as counsel satisfactory to the Authority renders an opinion to the Authority that such payment obligations are no longer required to be subject to annual appropriation, the Authority will include the amount of Incremental Property Taxes otherwise required to be paid by the Authority pursuant to this Agreement as a line item in its annual budget and in good faith consider appropriating such amount to or for the account of the Districts, the Bond Trustee or Redeveloper, as applicable. The Authority's payment obligation under Section 5 above and under this Section 8 will be limited to the amount of Incremental Property Taxes actually received from the County and legally available for such purpose. Nothing in this Agreement will be construed to require the Authority to make any payments to the Districts, the Bond Trustee or Redeveloper, on a periodic or aggregate basis, in excess of such amount or to make any payments to Redeveloper or the Service District for reimbursement of Reimbursable Costs that, in the aggregate, exceed the Net Maximum Reimbursable Costs. The Authority's payment obligation hereunder will terminate on the Termination Date with respect to all Incremental Property Taxes arising from the Tax Increment Area, whether or not all Reimbursable Costs have been reimbursed. Redeveloper and the Service District acknowledge that the generation of Incremental Property Taxes is totally dependent upon the success of the Project and agree that the Authority is in no way responsible for the amount of Incremental Property Taxes actually generated. Redeveloper and the Service District therefore agree to assume the entire risk that insufficient Incremental Property Taxes or Public Improvements Fee revenues will be generated to reimburse all Reimbursable Costs. Notwithstanding any other provision hereof, for purposes of this Section 8.04, "Incremental Property Taxes" will include all amounts paid to the Authority by the City or the County in respect of Incremental Property Taxes regardless of whether the City or the County is legally obligated to make such payments or whether, even if not legally obligated, the City or the County makes such payments pursuant to an annual appropriation. Notwithstanding the foregoing, however, the City acknowledges that, by virtue of the Act and the Colfax-Wadsworth Reinvestment Plan, but subject to the provisions of applicable law, the Authority is entitled to receive the Incremental Property Taxes through the Termination Date with respect to all Incremental Property Taxes arising from the Tax Increment Area, and to Pledge and pay the same as provided in Section 5 above and in this Section 8.
Section 8.05 Status of Incremental Property Taxes. Notwithstanding any provision of this Agreement to the contrary, the Authority agrees that in the event that the City or the County is required by law to make any refund of any sales and/or property taxes, the Authority will not reduce or limit the Incremental Property Taxes paid to or for the account of the Districts, the Bond Trustee or Redeveloper, except to the extent the Incremental Property Taxes otherwise available to the Authority are reduced by the City or the County.
SECTION 9 OTHER FINANCING PROVISIONS.
Section 9.01 District Levies. Redeveloper and the Districts intend that the Financing District's mill levy Pledged for repayment of the Bonds or other obligations ("Debt Service Levy") shall not exceed 50 mills, with adjustments as described hereafter ("Mill Levy Cap") until such time as the ratio of the Financing District's Debt to its assessed valuation is 50% or greater. "Debt" shall mean the Financing District's Bonds or other obligations to which revenue generated from a Debt Service Levy are Pledged as payment. For any portion of the Financing District's Debt with respect to which the ratio of its Debt to its assessed valuation is less than 50%, the Financing District shall be permitted to impose a Debt Service Levy for the payment thereof that shall not be subject to the Mill Levy Cap. The Mill Levy Cap will be automatically adjusted by the same proportion as any increase or decrease by the State of Colorado of the ratio for assessment of commercial or residential property from the ratios of 29% and 9.15% respectively, in order to produce the same revenues as would have been produced from the imposition of 50 mills had the valuation of property not been changed as a result of changes in Colorado law. Further, in the event the method of calculating assessed valuation is changed after the date of approval of the Financing District's Service Plan by any change in law, change in method of calculation, or in the event of any legislation or constitutionally mandated tax credit, cut or abatement, the Mill Levy Cap herein provided may be increased or decreased to reflect such changes, such increases or decreases to be determined by the Board of Director's of the Financing District in good faith (such determination to be binding and final) so that, to the extent possible, the actual tax revenues generated by the mill levy, as adjusted, are neither diminished nor enhanced as the result of such change. It is intended that the Mill Levy Cap not be applicable to the Financing District's ability to increase its mill levy as necessary for provision of ongoing administrative costs and the operation and maintenance of Public Improvements (an "Operating Levy"). Real and personal property Taxes derived from a Debt Service Levy and an Operating Levy for each Fiscal Year or portion thereof from the date of this Agreement to the Termination Date are referred to as "District Property Taxes". It is the intention of the parties to this Agreement that all District Property Taxes will be paid by the County directly to the Financing District or its assigns, and nothing set forth in this Agreement will be deemed to restrict or impair the Financing District from imposing any of such levies or from using or pledging the District Property Taxes derived therefrom. The parties acknowledge that no District Property Taxes will be included in any Incremental Property Taxes; accordingly, the Authority agrees to direct the County to pay all District Property Taxes directly to the Financing District.
Section 9.02 Maximum Payment Obligation. To the extent of the Incremental Property Taxes or Public Improvements Fee revenues to be Pledged or otherwise made available for reimbursement pursuant to this Agreement, the City and the Authority are obligated, subject to the provisions of this Agreement, to provide through the Public Financing contemplated by this Agreement up to (but not in excess of) the Maximum Reimbursable Costs to pay for Public Improvements, which funds may be provided either through Net Bond Proceeds obtained pursuant to Section 4 or through reimbursements made pursuant to Section 8. In addition, the revenue sources committed by the City or the Authority pursuant to this Agreement need only remain so committed to the extent necessary to secure payment of the Bond Requirements for such Bonds as may be issued pursuant Section 4 and to make such reimbursements as may be required to be made pursuant to Section 8.
Section 9.03 Municipal Services. The Districts will be obligated to maintain and repair all Public Improvements owned by the Districts, such as any parking areas owned by the Districts. In addition, the Districts will have the right to provide upgraded maintenance services to Public Improvements dedicated to the City within the Project (such as upgraded snow and ice removal from, or upgraded cleaning of, the public sidewalks within the retail portions of the Project) in accordance with procedures to be established and agreed upon by and among the City and the Districts. However, notwithstanding the creation of the Districts, the temporary waiver of the Waived Sales Taxes, the imposition of the Public Improvements Fee, the City will have the responsibility and obligation to provide ordinary municipal services to the Property, including, without limitation, police protection, building code enforcement and other administrative services, of a scope, with a level of service and on the same basis as those provided to other commercial properties in the City generally.
Section 9.04 Confidentiality Waiver; Books and Records. The PIF Covenant will contain a waiver by each Retailer who owns or leases premises within the Tax Increment Area pursuant to which such Retailer waives the confidentiality of its Sales Tax and Public Improvements Fees returns to the extent necessary to permit the information set forth therein to be provided by the City (or other Designated Receiving Entity) to Redeveloper, the Bond Trustee or the Districts. Redeveloper will also use commercially reasonable efforts to obtain such a waiver in writing from all Retailers who lease premises within the Tax Increment Area from Redeveloper. The City, the Authority, Redeveloper and each District will maintain adequate books and records to accurately perform and account for its respective obligations under this Agreement. Each such party will, upon request of any other party, permit representatives of the requesting party reasonable access during normal business hours to such books and records in order to permit the requesting party to determine compliance with the terms of this Agreement or the accuracy of any information contained in any statement, notice, invoice or report required to be provided under this Agreement. All parties will use commercially reasonable efforts to resolve any issues, discrepancies, or inaccuracies discovered in any such statement, notice, invoice or report or in the requesting party's review of the applicable books and records.
SECTION 10 REDEVELOPER'S FINANCING.
Section 10.01 Redeveloper's Financing. Prior to the Commencement of Construction, Redeveloper will deliver to the Authority for the Authority's review and approval a copy of any loan commitment obtained by Redeveloper for the construction financing necessary to construct all Improvements other than the Public Improvements. The scope of the Authority's right to approve such loan commitment for Redeveloper's Financing will be limited to confirming that: (a) the committing lender has sufficient financial capacity to provide the committed funds; (b) the proceeds of Redeveloper's Financing, when added to the proceeds of the Public Financing and Redeveloper's equity investment, will be sufficient to fund the design and construction of all Improvements; and (c) the lender has not imposed any conditions that will materially impair Redeveloper's ability to perform its obligations under this Agreement. The Authority will not unreasonably withhold its approval of the loan commitment. The Authority will notify Redeveloper within 10 days after Redeveloper delivers the loan commitment to the Authority whether the Authority approves it; otherwise the loan commitment will be deemed approved. From and after approval by the Authority of such loan commitment, Redeveloper will keep the Authority advised of any material changes to the terms of Redeveloper's Financing.
Section 10.02 Holder Not Obligated to Construct. Notwithstanding the provisions of this Agreement, a Holder (including a Holder or other person or entity who obtains title to all or part of the Property as a result of foreclosure proceedings, or deed in lieu thereof and including any other party who thereafter obtains title to the Property or such part from or through such Holder or other person or entity) will not be obligated by this Agreement to construct or complete the Improvements, or any of them, or to guarantee such construction or completion. A Holder and such other persons specified above and their successors in interest may, at their option, construct the Improvements required under this Agreement in accordance with Section 10.04.
Section 10.03 Copy of Notice of Default to Holder. In the event that the Authority delivers to Redeveloper a demand or notice of any claimed Default or Event of Default by Redeveloper under this Agreement, the Authority will at the same time transmit a copy of such demand or notice to each Holder at the last address of such Holder shown in the records of the Authority. All notices under this Section 10.03 will be given in accordance with the provisions of Section 20.04.
Section 10.04 Holder's Option to Cure Defaults. After any Default or Event of Default under this Agreement any Holder will have the right, at its option, to cure or remedy or to commence to cure or remedy any such Default or Event of Default (or such Default or Event of Default to the extent that it relates to the part of the Property covered by its Mortgage) within the period for cure set forth in Section 17.06 after receipt of such notice (or so long as cure has been commenced within such period, for so long as the Holder is diligently and continuously prosecuting such cure), and to add the cost thereof to the indebtedness secured by the Mortgage; provided, that such cure or remedy is undertaken in accordance with the terms and provisions of this Section 10.04. Nothing contained in this Agreement will be deemed to permit or authorize a Holder to undertake or continue the construction of the Improvements, except to the extent such Holder reasonably deems the same necessary to conserve or protect the Improvements or construction already made, without first having expressly assumed Redeveloper's obligations with respect to the portion of the Property and Improvements which Holder elects to construct by written agreement reasonably satisfactory to the Authority. The Holder, in that event, must agree to complete in the manner provided in this Agreement, such portion of the Improvements (or such other improvements as the Authority may approve in writing pursuant to the provisions for submittal of plans and/or change orders contained in Section 13.01) which the Holder has elected to construct and submit evidence satisfactory to the Authority that it has the qualifications and financial responsibility necessary to perform such obligations.
SECTION 11 ACQUISITION OF THE PROPERTY.
Section 11.01 Redeveloper's Acquisition Efforts. Redeveloper will use commercially reasonable efforts to contact and negotiate with the Owners of the Property in order to acquire the portions of and interests in the Property which Redeveloper deems sufficient for purposes of redeveloping the Property in a manner consistent with this Agreement and at prices deemed acceptable to Redeveloper. In the event that, and at such time as, Redeveloper determines that any portion of or interest in the Property cannot be acquired voluntarily pursuant to the immediately preceding sentence, Redeveloper will notify the Authority that such portion of or interest in the Property is necessary for the Project and should be included in the Subject Property.
Section 11.02 Authority's Acquisition Efforts.
(a) The Authority agrees to use all good faith efforts to negotiate with the Owners of the Subject Property to purchase the Subject Property or portions of it without resorting to eminent domain. If any of the Owners of the Subject Property are willing to sell voluntarily, the Authority will present a written proposal to Redeveloper for its review and approval. Redeveloper will not be obligated to reimburse the Authority for any voluntary acquisition or settlement of an Eminent Domain Proceeding unless such voluntary acquisition or settlement is made with the prior written approval of Redeveloper.
(b) The parties acknowledge that nothing in this Agreement will be construed as prohibiting or infringing upon the Authority's ability to exercise its lawful power of eminent domain.
(c) The Authority will timely deliver to Redeveloper copies of all appraisals obtained by the Authority for any of the Property.
Section 11.03 Eminent Domain.
(a) If the Authority is unsuccessful in its negotiations with the Owners of any portion of the Subject Property to purchase such portion without resorting to eminent domain, the Authority will commence an Eminent Domain Proceeding in the District Court with respect to such portion of the Subject Property and will prosecute such proceeding to completion using all good faith efforts.
(b) The Authority hereby grants Redeveloper a license to enter upon and occupy any portion of the Subject Property, and grants to the Service District a license to enter upon and occupy any portion of the Subject Property that will become District Property, to the extent (i) that such portion of the Subject Property is covered by an order for immediate possession effective as of such time as the Authority obtains immediate possession of such portion of the Subject Property or (ii) title to such portion of the Subject Property has been acquired by the Authority effective as of the time and date as the Authority acquires title to such portion of the Subject Property, and once the license is effective Redeveloper and the Service District may enter upon such portion of the Subject Property and commence their respective redevelopment activities thereon. No compensation will be payable to the Authority for such license. Without limiting Redeveloper's right under such license, the Authority acknowledges that Redeveloper will have the right to sublicense portions of the Subject Property to permit tenants or licensees to occupy portions of the Property and to permit the Service District to conduct redevelopment activities on portions of the Property. Similarly, the Authority acknowledges that the Service District will have the right to sublicense portions of the Subject Property to permit Redeveloper to conduct redevelopment activities on portions of the Property.
Section 11.04 Disclaimer. The Authority makes no representation or warranty that it will prevail in the Eminent Domain Proceeding; provided, however, that nothing in this Section will negate the Authority's obligation to use all good faith efforts to prevail in the Eminent Domain Proceeding. Notwithstanding any other provision of this Agreement, Neither Redeveloper nor the Service District will be liable to the Authority for any costs, expenses, judgments or damages arising from any act of the Authority beyond the contractual rights and obligations under this Agreement.
Section 11.05 Purchase Proposal; Purchase and Sale. On or before August 30, 2002, the Authority, pursuant to C.R.S. § 31?25?106(2), will invite proposals to be submitted no later than September 13, 2002 for the purchase of all lands and other interests in real property within the Property which may be or become Subject Property, and such proposals shall be offered and in connection with the redevelopment of the Property in accordance with the Colfax-Wadsworth Reinvestment Plan. The Authority will render its decision regarding all submitted proposals no later than September 20, 2002. To qualify for approval by the Authority, a response to such invitation must demonstrate to the City and the Authority that the responding purchaser satisfies the following conditions:
(a) The responding purchaser has substantial experience in the development of retail centers in the Denver Metropolitan Area Market.
(b) The responding purchaser has sufficient development expertise to redevelop such Subject Property in accordance with the Colfax-Wadsworth Reinvestment Plan and the Redevelopment Plan within the time required by this Agreement.
(c) The responding purchaser has prepared a site plan for the Property showing, among other things, the locations of proposed structures and uses on the Property, consistent with the Colfax-Wadsworth Reinvestment Plan and the Redevelopment Plan, and the location of adequate parking for such uses; improvements for pedestrian and vehicular access to and circulation within the Property; off-site Public Improvements; and proposed drainage patterns and improvements for the Property.
(d) The responding purchaser has prepared architectural and engineering drawings for all proposed structures and uses on the Property and for all off-site Public Improvements, all consistent with the Colfax-Wadsworth Reinvestment Plan and the Redevelopment Plan.
(e) The responding purchaser is a party to a lease with or has other commitments from a major discount retailer who will occupy a retail structure on the site containing at least 220,000 gross square feet of floor area.
(f) The responding purchaser can demonstrate to the reasonable satisfaction of the City and the Authority that its financing (including equity, loans and other sources) is adequate to construct all improvements proposed for the Property.
In the event the proposal of Redeveloper is accepted by the Authority, Redeveloper agrees to purchase and the Authority agrees to sell the Subject Property for the Purchase Price for uses in accordance with the Colfax-Wadsworth Reinvestment Plan and otherwise on the terms and conditions set forth herein.
Section 11.06 Development Fees and Expenses.
(a) In consideration of the Authority's making sufficient staff time available to assist with the timely processing of all submittals to, and approvals by, the Authority and the City required in connection with the Project, Redeveloper agrees to pay to the Authority as a development fee the amount of $100,000, which development fee will be paid in installments, subject to satisfaction of the following conditions, at the following times:
(i) $30,000 will be paid on the earlier of the first date that either of the Districts issues Bonds to fund District-Eligible Public Improvements Costs or December 1, 2002;
(ii) $30,000 will be paid on or before December 15, 2002, if this Agreement has not then been terminated; and
(iii) $40,000 will be paid on June 30, 2003, if this Agreement has not then been terminated.
(b) Redeveloper will reimburse the Authority, within 30 days after receipt of an invoice from the Authority, for the Authority's reasonable attorneys' and consultants' fees and expenses incurred in connection with the Project (in addition to those fees and expenses included in Eminent Domain Costs and paid by Redeveloper pursuant to Section 11.08) and for the Colfax-Wadsworth Revitalization Survey. The fees and expenses incurred by the Authority in connection with the Colfax-Wadsworth Revitalization Survey equal $124,778.
(c) All amounts paid to the Authority pursuant to this Section 11.06 will be included within Reimbursable Costs. The Service District will reimburse Redeveloper for a reasonably pro-rated portion, based on the ratio of land area of District Property to land area of the entire Property, all amounts paid to the Authority pursuant to this Section 11.06, and such portion will qualify to be funded in full out of the proceeds of the Public Financing. Amounts paid to the Authority pursuant to this Section 11.06 that are not reimbursed to Redeveloper by the Service District will qualify for reimbursement to Redeveloper pursuant to Section 8.
Section 11.07 Inspection. The Authority will use its best efforts (including obtaining court orders therefor) to cause the owners of the Property to provide Redeveloper with access to the Property to inspect it, conduct any due diligence, tests, surveys, environmental or other studies or analysis, or collect any data, samples, specimens or information as Redeveloper deems necessary, in its sole discretion; provided that such due diligence is conducted so as not to damage the Property.
Section 11.08 Eminent Domain Costs. Redeveloper will reimburse the Authority for all Eminent Domain Costs incurred by the Authority within 30 days after receipt of an invoice from the Authority therefor, provided that in the case of any amounts required to be deposited with the District Court in connection with an Eminent Domain Proceeding, Redeveloper or the Service District will make such reimbursement within any shorter period of time that such deposit is required by the District Court. Alternatively, the Service District may, with respect to any of the District Property, so reimburse the Authority in accordance with this Section 11.08. All amounts paid to the Authority pursuant to this Section 11.08 will be included within Reimbursable Costs. The Service District will reimburse Redeveloper for any Eminent Domain Costs that Redeveloper reimburses to the Authority pursuant to this Section 11.08 with respect to any of the District Property, and the amounts so reimbursed by the Service District will qualify to be funded in full out of the proceeds of the Public Financing. Eminent Domain Costs reimbursed to the Authority pursuant to this Section 11.08 that are not reimbursed to Redeveloper by the Service District will qualify for reimbursement to Redeveloper pursuant to Section 8.
Section 11.09 Conveyance; Condition of Title. The Authority will provide to Redeveloper a current ALTA owner's title insurance commitment ("Title Commitment") issued by Security Title Guaranty Company ("Title Company") for each portion of the Subject Property, together with clear and legible copies of all documents referred to therein and a current certificate of taxes and assessments due for the Subject Property issued by the treasurer or assessor of the City within 30 days following the Authority's receipt of Redeveloper's notice designating such Property as Subject Property. The Title Commitment will be in the full amount of the appraisal obtained by the Authority for the Subject Property and will commit the Title Company to issue its standard Owners Title Policy subject only to (i) current, non?delinquent general real property taxes, (ii) the Colfax-Wadsworth Reinvestment Plan, and (iii) this Agreement (collectively the "Permitted Exceptions"). Additionally, at any time prior to Closing, Redeveloper will have the right to waive any objection to the Title Commitment of which it has previously notified the Authority. At Closing, the Authority will convey to Redeveloper fee simple title to and possession of the Subject Property pursuant to a special warranty deed, free and clear of all liens, defects, encumbrances and other matters of record, except the Permitted Exceptions. Such title, including the Permitted Exceptions, is referred to as "Title" in this Agreement.
Section 11.10 Closing. If no Default has then occurred and is continuing, Closing of the acquisition by Redeveloper from the Authority of such Subject Property will take place at the Title Company on a mutually agreeable date not more than 10 days after the date that the Authority has acquired fee simple title, subject only to the Permitted Exceptions, to all of the Subject Property and Redeveloper has acquired fee simple title to the remainder of the Property. At Closing, the following will occur, each being a condition precedent to the others and all being considered as occurring simultaneously:
(a) The Authority will deliver to Redeveloper a special warranty deed, executed and acknowledged as required by law, conveying Title to the applicable Subject Property to Redeveloper.
(b) Redeveloper will pay the Purchase Price to the Authority, less a credit for any amounts deposited with the District Court.
(c) The parties will execute settlement sheets and such other agreements and documents (with customary prorations in accordance with local practice for commercial property transactions) as may be required to implement and to carry out the intent of this Agreement.
(d) The Title Company will record the deed in the real property records of the County. Redeveloper will pay for the costs of such recording, including the documentary fee.
(e) The Title Company will issue the Title Policy to Redeveloper, or unconditionally commit to so issue the Title Policy promptly following Closing.
Section 11.11 District Property. If Redeveloper's proposal made pursuant to Section 11.05 is accepted by the Authority, Redeveloper may assign its rights and delegate its duties under Section 11.09 and Section 11.10 to the Service District to the extent such rights and duties relate to the District Property. Alternatively, Redeveloper and the Service District may enter into a separate agreement regarding the conveyance of the District Property from Redeveloper to the Service District.
Section 11.12 Rejection of Purchase Proposal. If a proposal made by Redeveloper to purchase Subject Property in response to an invitation for proposals made by the Authority pursuant to C.R.S. § 31?25?106(2) and Section 11.05 above is rejected by the Authority, the Authority will within 60 days after such rejection reimburse Redeveloper for all monies advanced under this Agreement, including the Eminent Domain Costs, any amounts deposited with the District Court and any development fees or expenses paid by Redeveloper pursuant to Section 11.06, together with interest on all such amounts from the date advanced by Redeveloper to the day reimbursed by the Authority at the prime rate of interest then in effect, as announced from time to time by Bank One, N.A. in Denver, Colorado, plus 2% per annum.
SECTION 12 REPRESENTATIONS AND WARRANTIES.
Section 12.01 Representations and Warranties by Redeveloper. Redeveloper represents and warrants that:
(a) Redeveloper is a corporation duly organized and validly existing under the laws of the State of Colorado is not in violation of any provisions of its organizational documents or the laws of the State of Colorado, has power and legal right to enter into this Agreement and has duly authorized the execution, delivery and performance of this Agreement by proper action.
(b) The consummation of the transactions contemplated by this Agreement will not violate any provisions of the governing documents of Redeveloper or constitute a default or result in the breach of any term or provision of any contract or agreement to which Redeveloper is a party or by which it is bound.
(c) Redeveloper will cooperate with the Authority, at the Authority's expense, with respect to any litigation brought by a third party concerning the Colfax-Wadsworth Reinvestment Plan, the Project, the Property, the Improvements or this Agreement.
(d) There is no litigation, proceeding or investigation contesting the power or authority of Redeveloper or its officers with respect to the Project, this Agreement, Redeveloper's Financing or the Improvements, and Redeveloper is unaware of any such litigation, proceeding, or investigation that has been threatened except threats of litigation that have been made by owners of certain portions of the Property and that have been disclosed to Redeveloper by the Authority.
Section 12.02 Representations and Warranties by the Authority. The Authority represents and warrants that:
(a) The Authority is an urban renewal authority duly organized and validly existing under the laws of the State of Colorado.
(b) The Authority has the power to enter into and has taken all actions required to authorize this Agreement and to carry out its obligations hereunder, including compliance with the publication requirements of Section 31?25?106(2) of the Act.
(c) There is no litigation, proceeding or investigation contesting the power or authority of the Authority or its officials to enter into or consummate the transactions contemplated by this Agreement, and the Authority is unaware of any such litigation, proceeding or investigation that has been threatened.
(d) The execution and delivery of this Agreement and the documents required hereunder 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 the Authority's 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 terminate any such agreement or instruments or to accelerate the maturity of any indebtedness or other obligation of the Authority.
Section 12.03 Representations and Warranties by the City. The City represents and warrants that:
(a) The City is a municipal corporation duly organized and validly existing under the State of Colorado;
(b) The City has the power to enter into and has taken all actions required to authorize this Agreement and to carry out its obligations hereunder;
(c) There is no litigation, proceeding or investigation contesting the power or authority of the City or its officials to enter into or consummate the transactions contemplated by this Agreement, and the City is unaware of any such litigation, proceeding or investigation that has been threatened;
(d) The execution and delivery of this Agreement and the documents required hereunder 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 City, the City Code or the City's Charter, or (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 City is a party or by which it may be bound or affected.
Section 12.04 Representations and Warranties by the Districts. Each of the Districts represents and warrants that:
(a) Such District is quasi-municipal corporation and political subdivision of the State of Colorado duly organized and validly existing under Title 32 of the Colorado Revised Statutes;
(b) Such District has the power to enter into and has taken all actions required to authorize this Agreement and to carry out its obligations hereunder;
(c) There is no litigation, proceeding or investigation contesting the power or authority of such District or its officials to enter into or consummate the transactions contemplated by this Agreement, and such District is unaware of any such litigation, proceeding or investigation that has been threatened; and
(d) The execution and delivery of this Agreement and the documents required hereunder 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 such District or to such District's 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 such District 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 such District.
SECTION 13 GENERAL COVENANTS.
Section 13.01 Design Approval.
(a) The Authority hereby approves the Redevelopment Plan.
(b) For any proposed substantial change in the Redevelopment Plan, Redeveloper will provide notice to the Authority with a detailed explanation of such change and the reasons therefor.
(c) Any approval of a proposed substantial change in the Redevelopment Plan required by this Section 13.01 will not be unreasonably withheld or conditioned and will be given or withheld within 21 days after it is requested, or it will be deemed approved. If the Authority rejects any substantial change, it will deliver its rejection to Redeveloper in writing, specifying the reasons for rejection within such 21?day period.
(d) In the event that Redeveloper disagrees with the Authority's rejection of any substantial change in the Redevelopment Plan, Redeveloper and the Authority will promptly submit such disagreement to mediation under the auspices of the Judicial Arbiter Group, 1601 Blake Street, Suite 400, Denver, Colorado 80202?1328, or such other independent agency providing similar services upon which Redeveloper and the Authority may mutually agree. If such disagreement is not settled to the mutual satisfaction of the Authority and Redeveloper within 30 days of the commencement of the mediation proceedings, the mediator will issue a notice of termination of the mediation proceedings, and, thereafter, the parties will be entitled to their respective remedies set forth in Section 17.05 of this Agreement.
(e) During the period of construction of the Project, Redeveloper will provide the Authority with quarterly updates of the construction budget for the Public Improvements and with quarterly overall Project progress updates.
Section 13.02 General Insurance Provisions.
(a) From the date the license granted in Section 11.03(b) becomes effective until Substantial Project Completion, Redeveloper will provide the Authority with certificates of insurance as follows:
(i) The property insurance described in Section 13.03(a);
(ii) Commercial general liability insurance with XC&U exclusions deleted (including completed operations, operations of subcontractors, blanket contractual liability insurance, owned, non?owned and hired motor vehicle liability, personal injury liability) with combined single limits against bodily injury and property damage of not less than $1,000,000 and with excess umbrella coverage raising the total coverage to not less than $5,000,000; and
(iii) Worker's compensation insurance, with statutory coverage.
(b) The policies of insurance required under this Section 13.02 will, for Commercial General Liability, list the Authority as an additional insured, will be placed with financially sound and reputable insurers licensed to transact business in the State of Colorado, and will require the insurer to give at least 30 days' advance written notice to the Authority prior to cancellation or material reduction in coverage. Redeveloper will provide certified copies of all policies of insurance required under this Section 13.02, to the Authority upon request. For the property insurance required to be carried by Redeveloper under Section 13.03, Redeveloper will require its insurer(s) to provide the Authority and its commissioners, directors, officers, employees and agents with waivers of subrogation. Redeveloper will not obtain any property insurance that prohibits the insured from waiving subrogation. The Authority agrees to seek waivers of subrogation for the benefit of Redeveloper as to any property insurance it carries from time to time.
(c) Insurance coverage specified herein constitutes the minimum requirements, and said requirements will in no way lessen or limit the liability of Redeveloper under the terms of this Agreement. Redeveloper will procure and maintain, at its own expense and cost, any additional kinds and amounts of insurance that, in its judgment, may be necessary for its