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Memo - Read Before Packet - 1/14/2014 - Memorandum From Darin Atteberry Re: Agenda Item #1: Revised Foothills Mall Redevelopment And Reimbursement Agreement
REDEVELOPMENT AND REIMBURSEMENT AGREEMENT THIS REDEVELOPMENT AND REIMBURSEMENT AGREEMENT (the “Agreement”) dated as of January __, 2014, is made by and among the FORT COLLINS URBAN RENEWAL AUTHORITY, a body corporate and politic of the State of Colorado (the “Authority”), WALTON FOOTHILLS HOLDINGS VI, L.L.C., a Delaware limited liability company (the “Developer”), the CITY OF FORT COLLINS, COLORADO, a municipal corporation (the “City”), and FOOTHILLS METROPOLITAN DISTRICT, a quasi-municipal corporation organized and existing in accordance with Title 32, Article 1, C.R.S. (the “District”). The Authority, the Developer, the City and the District are sometimes collectively called the “Parties,” and individually, a “Party.” RECITALS All capitalized terms used, but not defined, in these Recitals, have the meanings ascribed to them in this Agreement. The Recitals are incorporated to this Agreement as though fully set forth in the body of this Agreement. WHEREAS, Developer or District owns or has the right to construct improvements on the real property described in Exhibit A, which is known as the Foothills Mall (the “Property”) and desires to redevelop the Property. Developer has submitted a proposal to the Authority and the City to redevelop the Property by constructing no fewer than 641,000 square feet of commercial development (which minimum size does not include the Foothills Activity Center space) and up to 800 multifamily residential units, together with related amenities and uses on the Property (the “Project”). WHEREAS, the Authority is carrying out the Midtown Urban Renewal Plan approved by the City Council on September 6, 2011, as amended on May 8, 2013, and as further defined hereinafter (the “Urban Renewal Plan”), which includes the Property, by entering into this Agreement with the City, the District and the Developer to implement the Project in the manner described herein. The District is expected to provide services and facilities to assist the Authority in carrying out the Urban Renewal Plan. WHEREAS, the Authority has selected the Developer for exclusive negotiations based on the proposal submitted to the Authority and pursuant to that certain Agreement to Negotiate, dated as of November 16, 2012, by and between the Authority and Developer (the “Agreement to Negotiate”). WHEREAS, the City has determined that it is in the best interests of the City and its inhabitants to assist in the redevelopment of the Property in order to remedy blighted conditions within and around the Property pursuant to the Urban Renewal Plan, as hereinafter set forth, and to provide a catalyst for development, increase sales tax revenues and job opportunities, and provide other economic and social benefits to the City. WHEREAS, the District was organized by Order and Decree Creating District issued on November 30, 2012, and recorded on January 10, 2013. The City approved the original Service JANUARY 14, 2014 READ-BEFORE VERSION 2 Plan of the District on September 4, 2012, as amended and restated pursuant to City Council approval on May 8, 2013. WHEREAS, the Parties have agreed to enter into this Agreement for the redevelopment of the Property in accordance with the Urban Renewal Plan, the Act (defined hereinafter), the description of the Project as set forth herein, and the Development Approvals. WHEREAS, the District was organized for the purpose of, inter alia, issuing the District Bonds (defined hereinafter), the proceeds of which are intended to pay or reimburse the costs of the Eligible Improvements and to pay Costs of Issuance (defined hereinafter). NOW THEREFORE, in consideration of the mutual covenants and promises of the Parties contained in this Agreement, and other valuable consideration, the receipt and adequacy of which are acknowledged, the Parties agree to the terms and conditions in this Agreement. AGREEMENT 1. DEFINITIONS. In this Agreement, unless a different meaning clearly appears from the context, capitalized terms mean: “Act” means the Colorado Urban Renewal Law, Part 1 of Article 25 of Title 31 of the Colorado Revised Statutes. “Add-On PIF” means the public improvement fee in the amount of 1.00% as set forth in the PIF Covenant, which will be collected in accordance with the terms of the PIF Covenant, and will be imposed on retail sales that are occurring on the Property that are subject to the City’s Sales Tax, subject to the terms and provisions of this Agreement. “Add-On PIF Revenues” means the revenues generated by the Add-On PIF. The full amount of the Add-On PIF will remain pledged to payment of the District Bonds for so long as such District Bonds are outstanding. “Agreement” means this Redevelopment and Reimbursement Agreement, as it may be amended or supplemented in writing. References to sections or exhibits are to this Agreement unless otherwise qualified. All exhibits are incorporated into and made a part of this Agreement. “Agreement to Negotiate” means the Agreement to Negotiate between the Authority and the Developer dated as of November 16, 2012. “Authority” means the Fort Collins Urban Renewal Authority, a body corporate and politic of the State of Colorado which has been duly created, organized, established and authorized by the City to transact business and exercise its powers as an urban renewal authority, all under and pursuant to the Act, and its successors and assigns. “Authority Administrative Fee” means a fee up to a maximum of 1.5% of the gross property tax increment revenue received by the Authority from the Larimer County Treasurer each year, which fee includes all amounts required to pay collection, enforcement, disbursement, and JANUARY 14, 2014 READ-BEFORE VERSION 3 administrative fees and costs required to carry out the Urban Renewal Plan, including, without limitation, collection and disbursement of the Pledged Property Tax Increment Revenue. “Authority Pledged Revenues” means, collectively, the Pledged Property Tax Increment Revenues and the Pledged Sales Tax Increment Revenues. “Cap Amount” means an amount equal to $53,000,000 (Fifty-Three Million US Dollars), which is the maximum amount of Eligible Costs that shall be paid from the net proceeds of the District Bonds. “City” means the City of Fort Collins, Colorado, a home rule municipal corporation. “City Manager” means the City Manager of the City. “Commence Construction” or “Commencement of Construction” means the commencement by the District or the Developer of actual physical work, including, but not limited to, deconstruction, demolition, site grading, and construction, on the Property as required to carry out the Project. “Complete Construction” or “Completion of Construction” means: (a) With respect to the public improvements, construction acceptance in accordance with the City Requirements, applicable laws, ordinances, and regulations of the City, the District, and any other governmental entity or public utility with jurisdiction, subject to any applicable conditions of maintenance and warranty, including; (b) With respect to any specifically identified portion of the Project, the issuance of a certificate of occupancy by the City so that the portion of the Project described in such certificate may open for permanent occupancy and utilization for its intended purposes; orand (c) With respect to the Project, the completion of all Eligible Improvements and the issuance of a certificate of occupancy by the City so that no less than ninety-five percent (95%) of the leasable area within the Project may open for permanent occupancy and utilization for its intended purposes. “Costs of Issuance” means the reasonable and necessary costs incurred in connection with the issuance of the District Bonds, including, without limitation, reserve funds, capitalized interest, underwriter’s compensation, financial consultant fees, fees and expenses of bond counsel, counsel to the underwriter, counsel to the District, fees and third party out-of-pocket expenses of the City, including but not limited to counsel to, and economic analysis and financial consulting services for, the City, fees and third party out-of-pocket expenses of the Authority, including but not limited to counsel to, and economic analysis and financial consulting services for, the Authority, credit enhancement fees and expenses, fees and expenses of the District Bond Trustee, bond registrar, paying agent, transfer agent, remarketing agent and rating agency fees. Costs of Issuance shall be approved by the District’s bond counsel and shall be reasonable and in accordance with market standards. JANUARY 14, 2014 READ-BEFORE VERSION 4 “Default” or “Event of Default” means any of the events described in Section 18; provided, however, that such events will not give rise to any remedy until effect has been given to all grace periods, cure periods and periods of enforced delay provided for in this Agreement. “Developer” means Walton Foothills Holdings VI, L.L.C., a Delaware limited liability company and any successors and assigns approved in accordance with this Agreement. “Developer Advances” means, collectively, amounts advanced or incurred by the Developer to pay any Eligible Costs. Developer Advances shall include, without limitation, (a) Eligible Costs paid directly or advanced by the Developer, (b) advances to the District for design and construction by the District of Eligible Improvements, and (c) Authority Reimbursable Costs (as defined in the Agreement to Negotiate) from the Developer to the Authority in compliance with the requirements of the Agreement to Negotiate. All Developer Advances to the District must be made in accordance with the provisions of the Reimbursement and Infrastructure Acquisition Agreement. “Development Approvals” means the regulatory approvals issued by the City for the Project, including the Overall Development Plan (ODP), Project Development Plan (PDP), Final Development Plans (FDPs), Development Agreement or Agreements, Subdivision Plat, and all other plats, plans and requirements included in or incorporated into the City’s approval of the Project under the City Land Use Code. Because multiple FDPs will be submitted and reviewed for up to 3 phases of the Project, with respect to any particular portion of the Project, the term “Development Approvals” shall mean all of the applicable approvals set forth in this definition for that particular portion of the Project. With respect to the Project, the term “Development Approvals” shall mean all of the applicable approvals set forth in this definition for all phases of the Project. “District” means the Foothills Metropolitan District, formed pursuant to Sections 32-1-101, et seq., C.R.S., and its successors and assigns. “District Administrative Account” means an account established by the Authority into which the Authority shall deposit all of the incremental District Operating Revenue and District Debt Service Mill Levy received by the Authority from time to time pursuant to Section 31-25-107(9)(a)(II) of the Act and the rules and regulations of the Property Tax Administrator of the State of Colorado. “District Bond Documents” means, collectively, the documents pursuant to which the District Bonds are issued. “District Bond Indenture” means any indenture or similar documents pursuant to which the District Bonds are issued. “District Bond Trustee” means the trustee in connection with the issuance of any District Bonds. “District Bonds” means any bonds, certificates of participation, securities or other obligations issued or incurred by the District to finance or refinance the Eligible Costs in accordance with the terms and provisions of this Agreement, including any bonds, debt in the form JANUARY 14, 2014 READ-BEFORE VERSION 5 of a loan, certificates of participation, or securities issued or incurred by the District to refund any such Bonds, or any related obligations to reimburse the provider of a guaranty, insurance policy, liquidity instrument or credit enhancement for the District Bonds. Notwithstanding the foregoing or any provision to the contrary contained herein, District Bonds shall not include any obligation by the District to reimburse the Developer for Developer Advances pursuant to reimbursement agreements or similar agreements between the Developer and the District regarding such matters. “District Debt Service Mill Levy” means a property tax levy of fifty (50) mills levied by the District on the taxable property of the District. The District Debt Service Mill Levy rate may be adjusted as set forth in the Service Plan to take into account legislative or constitutionally imposed adjustments in assessed values or their method of calculation so that, to the extent possible, the revenue produced by such District Debt Service Mill Levy is neither diminished nor enhanced as a result of such changes. The District Debt Service Mill Levy shall be imposed only so long as there are outstanding District Bonds. “District Debt Service Mill Levy Revenue” means the revenue generated from the District Debt Service Mill Levy, net of the County Treasurer’s cost of collection. “District Operating Mill Levy” means a property tax imposed by the District in an amount not exceeding ten (10) mills, except as hereinafter provided, separate and apart from the District Debt Service Mill Levy, for the purpose of paying the administrative, operations and maintenance expenses of the District, including all amounts required to be paid to the City for the maintenance of Larimer County Canal No. 2. Notwithstanding the foregoing, the District Operating Mill Levy may be imposed by the District in an amount up to fifteen (15) mills upon the written consent of the City Manager upon receipt of evidence satisfactory to the City Manager that such an increase in the District Operating Mill Levy is necessary for the District to comply with its operation and maintenance obligations under the Service Plan. The District Operating Mill Levy may be adjusted as set forth in the Service Plan to take into account legislative or constitutionally imposed adjustments in assessed values or their method of calculation so that, to the extent possible, the revenue produced by such District Operating Mill Levy is neither diminished nor enhanced as a result of such changes. “District Operating Revenue” means the revenue produced by the District’s Operating Mill Levy and the Specific Ownership Taxes attributable to the District Operating Mill Levy. “District Pledged Revenue” means, collectively, (a) the District Debt Service Mill Levy Revenue, (b) the revenue from the Pledged District Specific Ownership Taxes, and (c) Add-On PIF Revenue. “Effective Date” means the date of this Agreement. “Eligible Costs” means, collectively, the reasonable and customary expenditures for the design and construction of the Eligible Improvements as set forth in Exhibit D, which shall be certified and approved in accordance with Exhibit E. Eligible Costs shall include, without limitation, reimbursement to the Developer for Authority Reimbursable Costs (as defined in the Agreement to Negotiate) made by the Developer to the Authority. Eligible Costs shall be paid from the net proceeds of the Bonds, subject to the Cap Amount. District Bond proceeds shall not JANUARY 14, 2014 READ-BEFORE VERSION 6 be used to pay, and Eligible Costs shall not include, any accrued interest on unreimbursed Developer Advances. “Eligible Improvements” means the public improvements described in Exhibit D that are to be acquired, constructed or installed as part of the Project. “Estimated Revenues from Property Taxes” means the amount set forth on Exhibit G hereto, which is the amount of Pledged Revenues estimated to be generated from property taxes on the Property. “Estimated Revenues from Residential Property” means the amount set forth on Exhibit G hereto, which is the amount of Pledged Revenues estimated to be generated from the residential component of the Property beginning January 1, 2019, assuming that the residential component of the Property is constructed in accordance with the schedule set forth in Section 4.3 hereof. “Exhibits” The following Exhibits are a part of this Agreement: Exhibit A: Legal Description of the Property Exhibit B: Description of TIF Area Exhibit C: Description of the Project Exhibit D: Eligible Costs and Eligible Improvements Exhibit E: Procedure for Documenting, Certifying and Paying Eligible Costs Exhibit F City Specifications for Foothills Activity Center Exhibit G Estimated Revenues from Property Taxes and Estimated Revenues from Residential Property Exhibit H Permitted Uses of Foothills Mall Fund Exhibit I Maximum Annual Net Debt Service on the District Bonds “Financing Plan” means a plan prepared by the Developer and the District for review and approval by the City and the Authority demonstrating that there will be sufficient Pledged Revenues to service the debt service requirements on the District Bonds. Approval of the Financing Plan by the City and the Authority shall be a condition precedent to the issuance of the District Bonds. “Fiscal Year” means the annual period upon which the City bases its financial accounting and budgeting. “Foothills Activity Center” means the Foothills Activity Center to be constructed on the Project in accordance with Section 4.4 hereof. JANUARY 14, 2014 READ-BEFORE VERSION 7 “Foothills Mall Fund” means the fund to be held by the District and applied in accordance with the terms and provisions of this Agreement. “Force Majeure” means any delays in or failure of performance by any Party of its obligations under this Agreement as a result of acts of God; fires; floods; earthquake; strikes; labor disputes; regulation or order of civil or military authorities; or other causes, similar or dissimilar, which are beyond the control of such Party. “Larimer County Canal No 2” means that portion of the canal or ditch, owned by The Larimer County Canal No. 2 Irrigation Company, commonly known as the Larimer County Canal No. 2, in the location to which it will be moved as part of the Project, lying between the west boundary of the South College Avenue right-of-way and the west boundary of the McClelland Drive right-of-way, and thence south along and under the west frontage road of College Avenue past the south boundary of the West Monroe Drive right-of-way, and thence continuing due south for an approximate distance of 130+\- feet to where the relocated portion of the ditch intersects the existing Larimer County Canal No. 2 ditch alignment. “Net Debt Service” means the total payments of principal and interest on the District Bonds, less the amounts that are paid from funds held by the District Bond Trustee as capitalized interest and reserve funds, including interest earnings on any such funds. “Original PDP” means the Project Development Plan relating to the Project approved by the City’s Planning and Zoning Board on February 7, 2013. “Party” or “Parties” means one or all of the parties to this Agreement. “PIF Covenant” means a declaration of covenants by Developer imposing and implementing the Add-On PIF within the Property. “Pledged District Specific Ownership Taxes” means the specific ownership tax revenues received by the District in each year pursuant to § 42-3-107, C.R.S. that is attributable to the dollar amount of ad valorem taxes generated from the District Debt Service Mill Levy. “Pledged Property Tax Increment Revenue” means 100% of the annual ad valorem property tax revenue received by the Authority from the Larimer County Treasurer in excess of the amount produced by the levy of those taxing bodies that levy property taxes against the Property Tax Base Amount in the TIF Area in accordance Colorado law, but not including, (a) the District Operating Revenue, (b) the District Debt Service Mill Levy Revenue, (c) the Authority Administrative Fee, (d) mill levy override payments approved by the electors of Poudre School District in 2012 and subsequent years, (e) any offsets collected by the Larimer County Treasurer for return of overpayments or any reserve funds retained by the Authority for such purposes in accordance with Sections 31-25-107(9)(a)(III) and (b) of the Act, and (f) $60,000 each year of such annual revenues. “Pledged Sales Tax Increment Revenues” means 100% of the Sales Tax Increment Revenues received annually by the Authority from the City during the period in which taxes are divided in the TIF Area pursuant to the Urban Renewal Plan and the Act. JANUARY 14, 2014 READ-BEFORE VERSION 8 “Pledged Revenue” means, collectively, the District Pledged Revenue and the Authority Pledged Revenue. “Project” means the acquisition, construction and installation of no fewer than 641,000 square feet of commercial development (which minimum does not include the Foothills Activity Center space), together with no fewer than 446 and up to 800 multifamily residential units, together with related amenities and uses on the Property, in accordance with the Development Approvals, this Agreement and Exhibit C.. The Project includes off-site improvements provided for and required under this Agreement or the Development Approvals. Notwithstanding the foregoing, however, for purposes of determining whether Construction of the Project has been Completed, the Residential Component of the Project shall be deemed to include 446 multifamily residential units. “Project Fund” means the fund to be created pursuant to the District Bond Indenture into which net proceeds of the District Bonds in the amount of $53,000,000 (Fifty-Three Million US Dollars) will be deposited to pay Eligible Costs. “Property” means the real property described in Exhibit A, which is either owned by Developer or on which the Developer otherwise has the right or will have the right to construct the Project. “Property Tax Base Amount” means the amount certified by the Larimer County Assessor as the valuation for assessment of all taxable property with the TIF Area in accordance with Section 31-25-107(9)(a)(I) of the Act. The Property Tax Base Amount and increment value shall be calculated and adjusted from time to time by the Larimer County Assessor in accordance with Colorado law. “Reimbursement and Infrastructure Agreement” means that certain agreement between the District and Developer dated as of April 26, 2013, that requires the District to reimburse the Developer for the Eligible Costs and sets forth the procedures under which Eligible Improvements constructed by the Developer for the benefit of the District may be acquired by the District. “Residential Component of the Project” means the portion of the Project intended to be developed for residential uses. The Residential Portion of the Project will generally occur on the area shown as Blocks 3, 4,5 and 6 on the Original PDP. “Sales Tax” means the municipal sales tax of the City imposed at the rate of 2.25% on sales of goods and services that are subject to municipal sales taxes pursuant to Chapter 25, Article 3 of the Fort Collins Municipal Code. “Sales Tax Base Amount” means the total collection of sales taxes levied at the rate of 2.25% within the TIF Area for the applicable twelve-month period in accordance with Colorado law. “Sales Tax Increment” means Sales Tax Revenues collected by the City in excess of the Sales Tax Base Amount during the period in which taxes are divided in the TIF Area pursuant to the Act. JANUARY 14, 2014 READ-BEFORE VERSION 9 “Sales Tax Revenues” means the funds generated by imposition of the Sales Tax collected within the TIF Area. “Service Plan” means the service plan for the District approved by the City on September 4, 2012, as amended and restated. “Special Fund” means the fund defined in Section 107(9)(a)(II) of the Act. “TIF” means tax increment financing to which the tax increment provisions of Section 31-25-107(9) of the Act apply. “TIF Area” means that part of the urban renewal area described in the Urban Renewal Plan as described and depicted in Exhibit B, within which the tax increment provisions of Section 31-25-107(9) of the Act apply. “Underpass” means the pedestrian underpass at the current Larimer County Canal No. 2 ditch alignment under College Avenue for the purpose of connecting the Project to the Mason Corridor and MAX transit facility. “Urban Renewal Plan” means the Midtown Urban Renewal Plan adopted and approved by the City Council on September 6, 2011, as amended on May 8, 2013, and as may hereinafter be amended from time to time; provided, however, that if, prior to June 1, 2014, the City elects to exclude the Property from the Midtown Urban Renewal Plan and adopts a new urban renewal plan for the Property in accordance with Section 7.1, such new plan shall, upon written notice to all Parties, become the “Urban Renewal Plan” for the purposes of this Agreement as long as: (a) all property included within such new plan is acceptable to the Developer and the District, and (b) such new plan is consistent with the Act and with the terms and conditions of this Agreement. 2. FINANCING AND CONSTRUCTION OF PROJECT. 2.1 Construction of Project. The Developer and/or the District, in accordance with the provisions of this Agreement, shall (i) construct the Project, including without limitation, all Eligible Improvements, (ii) be responsible for compliance in all respects with the Development Approvals, and (iii) be responsible for payment of fees related to redevelopment of the Property and the construction of the Project. The Project may be constructed in phases. 2.2 Financing the Costs of the Project. The Eligible Improvements shall be financed from the net proceeds of the District Bonds, up to the Cap Amount. The remainder of the Project, including the cost of any Eligible Improvements that exceed the Cap Amount, shall be financed by the Developer. The Parties agree that the Urban Renewal Plan provides that one of the methods of financing the Eligible Improvements shall be the use of property tax and sales tax increment financing pursuant to Section 31-25-107(9), C.R.S., as more fully described in the Urban Renewal Plan and that this Agreement implements the tax increment financing provisions of the Urban Renewal Plan. 3. ISSUANCE OF DISTRICT BONDS. Subject to the terms and provisions hereinafter set forth, the District will issue the District Bonds to pay or reimburse the Developer or the District for Eligible Costs, up to the Cap Amount, and to pay the Costs of Issuance related to the District JANUARY 14, 2014 READ-BEFORE VERSION 10 Bonds. The District Bonds shall be issued in one or more series in a combined aggregate principal amount sufficient to generate net proceeds of the District Bonds in the amount of $53,000,000 (Fifty-Three Million US Dollars) to be deposited in the Project Fund and applied to the payment or reimbursement of Eligible Costs. 3.1 Conditions Precedent to Issuance of District Bonds. The following conditions shall be satisfied on or prior to the issuance of the District Bonds: (a) The Developer and the District shall prepare the Financing Plan and the City Manager and the Executive Director of the Authority shall have approved the Financing Plan. The Financing Plan shall also be in form and substance satisfactory to the District’s bond counsel and the underwriter of the District Bonds. The Financing Plan shall demonstrate that there is expected to be sufficient Pledged Revenues derived from the construction of the Project to pay the debt service requirements on the District Bonds when due. (b) The Developer shall provide to the City Manager evidence satisfactory to the City Manager that the Developer has obtained all equity and private financing necessary to construct the non-residential components of the Project. (c) The Developer shall have obtained executed lease agreements, excluding the existing department store located on Larimer County Parcel Number 9725391002, totaling at least 240,000 square footage of the retail area of the Project with tenants that, in the aggregate, have an average sales per square foot of at least $375 based on average national sales performance, and, except as hereinafter provided, of which at least 120,000 square feet shall be leased to tenants new to the City of Fort Collins. Notwithstanding the foregoing, however, in the event that at least 60,000 of such square footage is leased to tenants that are new to Fort Collins, then this conditionminimum requirement of 120,000 square feet shall be deemed satisfied with the prior written consent of the City Manager, which consent shall not be unreasonably withheld, conditioned or delayed, provided that in determining whether to give such consent the City Manager may consider the impact on the proposed financing from a reduced percentage of tenants new to the City. The Developer shall certify to the City upon the City’s request that the conditions of this Subsection (c), excluding verification of the sales per square foot requirement, have been met in full. (d) The Developer shall have imposed the Add-On PIF in accordance with Section 4.7 hereof. (e) The Developer shall have obtained the Development Approvals for the Project, as described in this Agreement and in Exhibit C. (f) The City and the Authority shall receive an opinion of the District’s bond counsel that the District Bonds have been validly issued and opining as to the tax-exempt status of the bonds, which opinion shall be addressed to the City and the Authority, or the City and the Authority shall receive a reliance letter from the District’s bond counsel. JANUARY 14, 2014 READ-BEFORE VERSION 11 (g) No event of default hereunder shall have occurred and be continuing hereunder, unless such Event of Default has been cured, remedied or waived, or a remedy has been agreed upon by the Parties which will become effective with the passage of time. 3.2 Provisions to be Included in District Bond Documents. The District Bond Documents shall contain the following provisions: (a) The District Bonds shall be payable from the Pledged Revenues in the following order of priority: (i) the District Debt Service Mill Levy Revenues; (ii) the Pledged District Specific Ownership Taxes; (iii) the Pledged Property Tax Increment Revenues; (iv) the Add-On PIF Revenues; and (iii) the Pledged Sales Tax Increment Revenues. (b) After the debt service requirements on the District Bonds have been paid or provided for in each fiscal yearFiscal Year, and after all payments have been made to replenish the reserve fund for the District Bonds and to make any payments into any required rebate funds for the District Bonds, any excess Pledged Revenues shall be applied by the District Bond Trustee as follows: (i) To the extent required by the underwriter of the District Bonds based on market conditions, the District Bond Documents may establish a supplemental reserve fund (the “Supplemental Reserve Fund”) and provide that any excess Pledged Revenue shall be deposited into the Supplemental Reserve Fund to be maintained in an amount that is not more than 10% of the original aggregate principal amount of the District Bonds. The District Bond Trustee shall keep a record of the sources of the Pledged Revenue that are used to fund and maintain the Supplemental Reserve Fund, if any. (ii) After the Supplemental Reserve Fund, if any, has been fully funded, any excess Pledged Revenues shall be applied by the District Bond Trustee as follows: (A) The District, the City and the Authority hereby agree pursuant to Section 31-25-107(11) C.R.S. that any such excess Sales Tax Increment Revenues shall be released from the lien of the District Bond Documents and remitted by the District Bond Trustee to the City. The District Bond Documents shall provide that the City is a third-party beneficiary under the District Bond Documents with respect to this provision relating to the requirement of remitting any excess Sales Tax Increment Revenues to the City as set forth above. JANUARY 14, 2014 READ-BEFORE VERSION 12 (B) Any excess Add-On PIF Revenues shall be applied by the District Bond Trustee to prepay principal on the District Bonds upon payment of all scheduled debt service for the year in which said Add-On PIF Revenues were collected. In the event that Add-On PIF Revenues are used to fund or maintain the Supplemental Reserve Fund and are released after full payment of the District Bonds, excess Add-On PIF Revenues shall be remitted to the District for deposit in the Foothills Mall Fund. (C) Any excess Pledged Property Tax Increment Revenues shall be released from the lien of the District Bond Documents and remitted to the Authority. (D) Any excess Pledged District Specific Ownership Taxes and District Debt Service Mill Levy Revenues shall be applied by the District Bond Trustee to debt service payments on the District Bonds in the following year. (c) The District Bond Documents shall provide that moneys on deposit in the Supplemental Reserve Fund shall be applied solely to pay the debt service requirements on the District Bonds in the event of an insufficiency of Pledged Revenues to make such payments, provided, however, that moneys on deposit in the reserve fund for the District Bonds shall be applied to the payment of the debt service requirements on the District Bonds prior to applying any funds on deposit in the Supplemental Reserve Fund to such payment. Upon termination of the Supplemental Reserve Fund, the moneys on deposit in the Supplemental Reserve Fund shall be remitted by the District Bond Trustee based on the source of Pledged Revenues used to fund and maintain the Supplemental Reserve Fund in accordance with the provisions set forth in subparagraph (b)(ii) above. (d) The District Bond Documents shall provide that the net proceeds of the Bonds shall be deposited in the Project Fund and requisitioned by the District to pay Eligible Costs as set forth in Exhibit D hereof, with such requisitions to be made substantially in accordance with Exhibit E hereof. The District Bond Documents shall provide that any requisition remitted to the District Bond Trustee shall simultaneously be remitted to the City Manager, or the City Manager’s designee. In the event that the City provides written notice to the Developer and the District that it disputes that all or any portion of the requisition qualifies as an Eligible Cost or otherwise fails to comply with the requisition requirements in Exhibit E, then the City, the Developer and the District agree to act in good faith to attempt to resolve any such dispute. (e) Without the prior written consent of the City Manager, the District Bonds shall mature no later than 25 years after the date of issuance thereof, and shall not contain a pledge of Pledged Property Tax Increment Revenues or Pledged Sales Tax Revenues that extends beyond the final payment of said revenues to the Authority; the total Net Debt Service of the District Bonds shall not exceed $180,000,000, and the maximum annual Net Debt Service on the District Bonds shall not exceed the amounts set forth in Exhibit I hereto. JANUARY 14, 2014 READ-BEFORE VERSION 13 3.3 Approval by City of District Bond Documents. Prior to the issuance of any District Bonds, including any bonds issued to refund any District Bonds, the District Bond Documents shall have been approved by the City. The City will have ten (10) business days after receipt of such District Bond Documents by the City Attorney and the City’s bond counsel to notify the District in writing if it objects to any provisions set forth in such District Bond Documents, setting forth its specific objections. If the City does not object in writing to the District Bond Documents within such ten (10) business day period, then the City will be deemed to have consented to the form and substance of such District Bond Documents. In addition, the District Bond Documents shall provide that any material amendments to the District Bond Documents shall be subject to approval by the City. 3.4 Refunding Bonds. Notwithstanding anything to the contrary contained herein, to the extent that District Bonds are issued to refund outstanding District Bonds, the Authority shall have the right to determine whether, and to what extent, it will pledge the Authority Pledged Revenues to such refunding District Bonds. In the event that all or a portion of the Authority Pledged Revenues are to be pledged to the payment of such refunding District Bonds, as a condition to such pledge, the Authority may in its discretion impose conditions and limitations in any such refunding District Bonds that were not applicable to the District Bonds being refunded. Any such refunding District Bonds that are secured in part by the Authority Pledged Revenues shall also be subject to review and approval by the City Attorney and the City’s bond counsel. 4. OBLIGATIONS OF THE DEVELOPER. 4.1 Construction of Project. As set forth in Section 2.1 hereof, the Developer and/or the District shall construct the Project. The Project shall be constructed substantially in accordance with the Development Approvals and Exhibit C attached hereto. 4.2 Construction of Eligible Improvements. The Developer shall construct, or cause the District to construct, the Eligible Improvements set forth in Exhibit D hereto. Such Eligible Improvements shall be financed with the net proceeds of the Bonds, subject to the Cap Amount, and, if necessary, other financing sources obtained by the Developer. 4.3 Construction of Residential Component of Project; Affordable Housing. The Developer shall Complete Construction of the residential components of the Project, subject to Force Majeure, as follows: (a) on or prior to December 31, 2016, the Developer shall Complete Construction of the first phase of the residential component of the Project consisting of a minimum of 200 units; (b) on or prior to December 31, 2018, the Developer shall Complete Construction of the second phase of the residential component of the Project consisting of at least an additional 246 units. Failure to Complete Construction of the residential components of the Project in accordance with this Section 4.3 shall not be deemed to be an Event of Default under this Agreement, provided, however, that if Construction of the residential components of the Project is not Completed as set forth above, then beginning with the 2020 fiscal yearFiscal Year, the JANUARY 14, 2014 READ-BEFORE VERSION 14 Developer shall be obligated to pay in such fiscal yearFiscal Year and each fiscal yearFiscal Year thereafter, regardless of whether the Developer is the owner of the Property on which the residential component of the Project is to be constructed, an amount equal to 50% of the difference between the Pledged Revenues generated from the residential component of the Project and the Estimated Revenues from the Residential Property, as follows: (i) such payment shall be made to the City to the extent that any Pledged Sales Tax Increment Revenues are applied in such fiscal year to the payment of the debt service requirements on the District Bonds; and (ii) to the extent that such payment is not due and owing to the City in any fiscal year, the balance of any such amount to be paid by the Developer in such fiscal year shall be deposited in the Foothills Mall Fundapplied toward principal on the District Bonds. The Project shall pay any affordable housing fees that may be enacted by the City Council on or before December 1, 2014, as if such fees had been in place and applicable to the Project. Any affordable housing impact fee that may be adopted as part of such requirements shall be paid by the Developer when due for the Project, except that for any portion of the Project developed prior to the imposition of the fee, such fee shall be paid no later than sixty days after adoption. 4.4 Construction and Transfer of Foothills Activity Center. (a) The Developer and/or District, as applicable, shall construct the Foothills Activity Center in substantial conformance with the specifications set forth on Exhibit F (the “City Specifications”). The construction of the Foothills Activity Center shall be completed no later than March 31, 2015. (b) The Developer shall transfer to the City the Foothills Activity Center within thirty (30) days after the occurrence of (i) Completion of Construction of the Foothills Activity Center; (ii) acceptance of the same by the City in writing as consistent with the requirements of this Agreement, (iii) payment by the City of any Excess Costs, as defined below, and (vi) approval by the City Manager and the Developer of the instruments hereinafter described or to be used, in connection with transfer of the Foothills Activity Center as and to the extent said approvals are specifically required in this Section 4.4. (c) The Developer will transfer the Foothills Activity Center and the underlying real estate to the City by a special warranty deed in a form reasonably satisfactory to the City, together with appropriate reciprocal easements and other easements to provide for access to the Foothills Activity Center, as well as for utilities, shared walls and other similar necessary arrangements for use of the property, as a separately platted lot. (d) In lieu of the form of transfer described in subsection (c), the Developer may transfer the Foothills Activity Center to the City as a separate property interest within a common interest community established by declaration of covenant reasonably satisfactory to the City and consistent with Exhibit F, together with such easement and access rights and other appurtenances as the City may reasonably request. The City shall review and respond to a request for approval with reasonable promptness, and shall be obligated to approve said declaration of covenant if: JANUARY 14, 2014 READ-BEFORE VERSION 15 (i) It burdens the Foothills Activity Center interest only in a manner (A) not inconsistent with the constitutions, statutes, charter and other applicable laws constraining the City’s authority to obligate itself, and (B) that does not unreasonably interfere with, impair or burden the City’s right or ability to operate the Foothills Activity Center (“FAC”) as a public recreation facility with related accessory uses and activities consistent with other recreation facilities operated by the City, or conflict with the terms of this Agreement; (ii) It allocates to the Foothills Activity Center only costs for the operation, maintenance, repair and replacement of common areas of and benefitting the building in which the Foothills Activity Center is located and structural elements of such building required for the Foothills Activity Center space, excluding: 1) real property taxes and personal property taxes; 2) operations, maintenance, repair and replacement paid for by the District; and 3) operations, maintenance, repair and replacement of common facilities that are duplicative of facilities provided in the FAC (“Operating Expenses”), allocated fairly to the Foothills Activity Center as a proportion of all space within the building and other buildings within the relevant Operating Expense measurement area, excluding common areas, with the FAC square footage amount deemed for the purpose of this Section to be capped at 18,000 square feet (the “FAC Allocation of Expenses”). The FAC Allocation of Expenses hereunder shall not exceed $2.25 per square foot of the Foothills Activity Center space per year, with no increase in that rate during the first three (3) calendar years following transfer of the Foothills Activity Center to the City. After the end of the third (3 rd ) full calendar year after transfer to the City, the FAC Allocation of Expenses shall not increase by more than three percent (3%) in any calendar year. (e) The City and Developer and/or District, as applicable, will coordinate the construction and tenant finish of the Foothills Activity Center to ensure that it meets the City Specifications; however, in no event shall the total cost (hard costs, soft costs and permit costs) of constructing the Foothills Activity Center in accordance with the City Specifications for the Foothills Activity Center that Developer and/or District, as applicable, is required to expend, exceed $5.1 million. The City and Developer and/or District agree to share information regarding costs associated with the FAC and will work together in good faith to obtain the best pricing for equivalent bids for the work, consistent with all applicable requirements for public projects. The Developer and/or the District agree to keep the City informed of any potential cost overruns exceeding $5.1 million. In the event that such potential cost overruns are identified, the City shall be responsible for designating, in consultation with the Developer/District, sufficient modifications to the City Specifications to reduce the total costs of the Foothills Activity Center to $5.1 million, or to such other amount as the City may, in its discretion, agree may be incurred. Any such City-approved costs in excess of $5.1 million will either require that the City will pay to the Developer or the District, as the case may be, the difference between the costs of the updated City Specifications and the $5.1 million (“Excess Costs”), within 90 days of written demand by the Developer or District accompanied by reasonable documentation, subject to annual appropriation by the City Council at its sole discretion. JANUARY 14, 2014 READ-BEFORE VERSION 16 (f) The City agrees that the Foothills Activity Center will be subject to any covenants, easements or other documents recorded against the Property as of the date of this Agreement, any other documents, covenants or easements recorded in the normal course of the development of the Project, including a declaration of covenant as described above, and certain use restrictions relating to tenant leases entered into prior to said date of transfer, provided any such covenants, easements or other documents burden the Foothills Activity Center interest only in a manner (A) not inconsistent with the constitutions, statutes, charter and other applicable laws constraining the City’s authority to obligate itself, and (B) that does not unreasonably interfere with, impair or burden the City’s right or ability to operate the FAC as a public recreation facility with related accessory uses and activities activities consistent with other recreation facilities operated by the City, or conflict with the terms of this Agreement. Any such documents, covenants or easements shall be subject to the City’s review and approval of the same solely for compliance with the requirements of this Agreement. No covenants, easements or declarations recorded after transfer of the Foothills Activity Center to the City shall be effective as against the City without the City’s express written approval, which shall be subject to the action of the City Council, in its discretion. The City shall review and respond to a request for approval with reasonable promptness. (g) The Developer and/or District agree to cooperate with the City in connection with any applicable procedural requirements of the City related to the construction of the Foothills Activity Center. In connection with design and construction of the Foothills Activity Center, the Developer and/or District shall use good faith efforts to require that all available third-party contractor and material warranties to the extent that they relate to labor or materials supplied for the Foothills Activity Center, extend to the benefit of the City in a form reasonably satisfactory to the City. 4.5 Solar and Other Energy Efficiency Improvements. The Developer and/or the District, as applicable, agree to construct the Project to accommodate the addition of solar panels to the roof tops of the principal non-residential components subsequent to the Completion of Construction of the Project. The City agrees that funds in the Foothills Mall Fund may be applied by the Developer to pay the costs of installing solar panels or other energy efficiency improvements within the Project upon reasonable documentation being provided to the City. Within five (5) years after the issuance of the last cCertificate of oOccupancy for the non-residential component of the Project, Developer agrees to make application to the City for the addition of one or more solar panels or other energy efficiency improvements to the Project. 4.6 Compliance with Design and Construction Regulations; Payment of Fees and Costs. The design and construction of the Project will comply with all applicable codes and regulations of entities having jurisdiction, including the City Requirements. The Developer and/or the District will pay or cause to be paid all required fees and costs, including those imposed by the City, in connection with the design, construction, applicable warranty requirements, and use of the Project. 4.7 Imposition of Add-On PIF. On or prior to the issuance of the District Bonds, the Developer shall impose the Add-On PIF on retail sales occurring on the Property that are subject to the City’s Sales Tax, provided, however, that in connection with any property that is not owned by JANUARY 14, 2014 READ-BEFORE VERSION 17 the Developer as of the Effective Date, the Developer shall use its best efforts to impose such Add-On PIF on such retail sales occurring on any such Property, subject to the consent of the owners of such Property. All property under the Developer’s control as of the Effective Date shall be made subject to the Add-On PIF, and any property within the Project acquired by the Developer subsequent to the Effective Date shall become subject to this requirement. The Add-On PIF shall be imposed only for so long as the District Bonds are outstanding. So long as the District Bonds are outstanding, the Developer covenants to cause all Add-On PIF Revenues to be remitted to the District Bond Trustee and such Add-On PIF Revenues shall be pledged to the payment of the District Bonds. To the extent that the Add-On PIF is imposed prior to the initial issuance of the District Bonds, the Developer covenants to cause all Add-On PIF Revenues to be held in a trust account and remitted to the District Bond Trustee upon the initial issuance of the District Bonds. The Developer agrees that it shall be responsible for enforcing the placard requirements and for the implementation of the Add-On PIF with the retailers in the Project. 4.8 Access to Property. Developer will permit representatives of the City and the Authority access to the Property and the Project at reasonable times during regular business hours and with prior notice as necessary for the purpose of carrying out or determining compliance with the Agreement, the Urban Renewal Plan, or any City code or ordinance, including, without limitation, inspection of any work being conducted. No compensation will be payable for such access. The City and the Authority, as applicable, agree to restore the Property and any component of the Project to its condition prior to any tests or inspections made by the City and further agree that they shall be responsible for any damage that results from the City or the Authority, as applicable, accessing the Property pursuant to their respective rights under this Agreement, to the extent permitted by law and, in the case of the City, subject to annual appropriation of funds by the City Council, in its sole discretion. 4.9 Class A Shopping Center. The Developer represents and warrants that, following Completion of Construction of the Project, the physical condition of the Project will be maintained at a level of quality consistent with Exhibit C, and as a “Class A” shopping center, in a manner consistent with comparable shopping centers in the State of Colorado. 4.10 Maintenance of Project. The Developer and/or District shall be responsible for the maintenance of the Project, except for the Foothills Activity Center (when and to the extent owned by the City), the Underpass (upon Completion and subject to standard City maintenance, repair and replacement warranties required for public improvements constructed for the City) and the Larimer County Canal No. 2 (upon Completion and acceptance by the City and the Larimer County Canal No. 2 Irrigating Company, and subject to standard maintenance, repair and replacement warranties) (each of which shall be maintained by the City), provided that the District shall provide funding for the City to maintain Larimer County Canal No. 2. The City shall pay for the costs of maintaining the Foothills Activity Center and the Underpass. The costs incurred by the Developer and/or the District in maintaining the Project shall be paid from the District Operating Revenue. The City’s obligations shall be subject to the annual appropriation of funds by the City Council, in its sole discretion. 4.11 Appeal of Property Taxes. In the event that the Developer seeks a reduction in all or any portion of the Property’s real property tax assessed valuation or seeks an abatement of real property taxes on all or any portion of the Property, and any such reduction or abatement results in JANUARY 14, 2014 READ-BEFORE VERSION 18 the Pledged Revenues generated from the real property taxes on the Property being less than the Estimated Revenues from Property Taxes such that the Pledged Sales Tax Increment Revenues that would otherwise be remitted to the City are needed to pay the debt service requirements on the District Bonds, then beginning with the fiscal yearFiscal Year in which such reduction or abatement becomes effective, the Developer shall be obligated to pay to the City in such fiscal yearFiscal Year and each fiscal yearFiscal Year thereafter where such reduction or abatement results in the property taxes on the Property being less than the Estimated Revenues from Property Taxes, an amount equal to 50% of the amount of Pledged Sales Tax Increment Revenues applied to the payment of the District Bonds in such fiscal yearFiscal Year. Notwithstanding the foregoing, in any fiscal yearFiscal Year that the Pledged Sales Tax Increment Revenues are not applied to the payment of the debt service requirements on the District Bonds, no payments shall be due and owing from the Developer to the City pursuant to this Section 4.11. In the event that the Developer who sought the reduction or abatement sells all or a portion of the Property, the subsequent owner shall be obligated to make any payments to the City required by this Section 4.11. A memorandum of this covenant satisfactory to the City and the Authority shall be recorded with the Larimer County Clerk and Recorder's Office. The Developer shall provide written notice to the City and to the Authority of any requested reduction in any portion of the Property’s real property tax assessed valuation or abatement of any portion of the Property’s real property taxes. 4.12 Notification of Sale of Property. The Developer shall provide written notice to the City and the Authority of any sale, and any lease with a total term, with options, in excess of 60 years in length, of all or any portion of the Property. 4.13 Payment of City and URA Expenses. The Developer agrees that it shall pay or reimburse the City and the Authority for all fees, costs and out-of-pocket third party expenses incurred by them in connection with developing, negotiating and preparing this Agreement and related documents and issuing the District Bonds, including without limitation, all legal fees and out-of-pocket third party expenses, provided that, to the extent that such fees and expenses qualify as Costs of Issuance, such fees and expenses may be paid from the proceeds of the District Bonds. In the event that the District Bonds are not issued on or prior to March 31, 2014, the Developer shall pay or reimburse the City and the Authority for such fees and expenses no later than April 15, 2014. In addition, to the extent that the District’s Bond Counsel determines that not all such fees and expenses qualify as Costs of Issuance hereunder, then the Developer shall pay or reimburse the City and the Authority for any such fees and expenses not paid from proceeds of the District Bonds as Costs of Issuance. Upon satisfaction of the reimbursement obligation pursuant to this Section, the Agreement to Negotiate shall be deemed to be terminated and to have no further force or effect. 5. THE DISTRICT. 5.1 Compliance with Service Plan and Applicable Law. At all times the District will comply with the requirements of the Service Plan as it may be amended from time to time. To the extent authorized by its Service Plan, the District may design, construct, finance, own, acquire, maintain, and operate Eligible Improvements in accordance with all applicable laws, ordinances, standards, policies, and specifications of the State of Colorado, the City, and any other entity with jurisdiction. JANUARY 14, 2014 READ-BEFORE VERSION 19 5.2 District Bonds. Subject to the terms and provisions of this Agreement, the District shall issue the District Bonds within ninety (90) days of the satisfaction of the conditions precedent set forth in Section 3.1 hereof. Net proceeds of the District Bonds in the amount of $53,000,000 (Fifty-Three Million US Dollars) shall be deposited to the Project Fund and used to pay or reimburse the Developer for Eligible Costs, as further set forth herein and in the District Bond Documents. The District agrees to irrevocably pledge the District Pledged Revenue to the payment of such District Bonds. The District Bonds shall be issued in compliance with Section 3 hereof. 5.3 District Pledged Revenue. The District covenants to impose the District Debt Service Mill Levy so that such District Debt Service Mill Levy will be in effect no later than January 1, 2015, and the District covenants to continue to impose the District Debt Service Mill Levy for so long as any District Bonds remain outstanding. The District further covenants that so long as any District Bonds remain outstanding, that the District will remit all District Pledged Revenues to the District Bond Trustee for such outstanding District Bonds. Notwithstanding expiration of the time or times that the Pledged Property Tax Increment Revenue may be collected pursuant to the Act, the District agrees that the full amount of the District Debt Service Mill Levy shall at all times remain pledged to the payment of any outstanding Bonds to the extent required by the District Bond Documents or to the payment of any outstanding District Bonds to the extent required by the District Bond Documents. In the event that the District Pledged Revenues are imposed and collected by the District after all outstanding District Bonds have been paid or defeased, the District shall thereafter deposit all District Pledged Revenues in the Foothills Mall Fund. 5.4 District Operating Revenue; Maintenance Expenses. The District will use the District Operating Revenue to pay its normal and reasonable operating and maintenance expenses, to pay the City for the maintenance of Larimer County Canal No. 2, and for any other lawful purpose. The District covenants that, upon the written request of the City, it shall use District Operating Revenues to pay all costs incurred by the City in maintaining Larimer County Canal No. 2. 5.5 Reimbursement and Infrastructure Agreement. The District will acquire certain tracts of the Property and/or easements as necessary, as designated in the Development Approvals, from Developer (the “District Property”) and will manage the District Property in accordance with the Service Plan. 5.6 Foothills Mall Fund. The District covenants to deposit any Add-On PIF Revenues released from the lien of the District Bond Documents and remitted by the District Bond Trustee to the District pursuant to Section 3.2 hereof into the Foothills Mall Fund. Without the prior written consent of the City Manager, the District shall apply or disburse moneys on deposit in the Foothills Mall Fund only in accordance with Exhibit H. The Parties acknowledge and agree that any expenditure of funds on deposit in the Foothills Mall Fund shall be constrained by and must be in compliance with applicable State and federal law governing the use of such funds, which, in part, will be governed by the source of such funds. In addition, the Parties acknowledge that the District may only undertake activities and expend funds for purposes authorized by the Special District Act and the approved Service Plan of the District. The District shall provide the City with all documentation relating to the application of moneys on deposit in the Foothills Mall Fund. JANUARY 14, 2014 READ-BEFORE VERSION 20 5.7 No Impairment. The District will not enter into any agreement or transaction that impairs the rights of the Parties, including, without limitation, the right to receive, apply and pledge District Pledged Revenue to payment of the District Bonds. 6. THE AUTHORITY. 6.1 Authority Pledged Revenues. The Authority covenants and agrees that it will pledge the Authority Pledged Revenues to the payment of the District Bonds in accordance with the terms and provisions of this Agreement. The Authority agrees to establish the Special Fund in accordance with the provisions of the Act and deposit the Authority Pledged Revenues into the Special Fund upon receipt. All moneys on deposit in the Special Fund, and any other Pledged Property Tax Increment Revenues or Pledged Sales Tax Increment Revenues received by the Authority, will be remitted to the District Bond Trustee in accordance with the terms and provisions of the District Bond Indenture so long as any District Bonds remain outstanding. 6.2 District Debt Service Mill Levy and District Operating Revenue. The Authority hereby irrevocably pledges any amounts received from the District Debt Service Mill Levy and the District Operating Revenue to the District. The District Debt Service Mill Levy and the District Operating Revenue, when and as received by the Authority, will be subject to the lien of such pledge without any physical delivery, filing, or further act. The Authority will deposit into the District Administrative Account any and all of the District Debt Service Mill Levy and/or District Operating Revenue received by the Authority from time to time in accordance with Section 31-25-107(9)(a)(II) of the Act and the rules and regulations of the Property Tax Administrator of the State of Colorado from the levy of the District on taxable property within the TIF Area. The Authority will transfer all of the revenue in the District Administrative Account to the District on or before the 20 th day of each month. The obligation of the Authority to make deposits in the District Administrative Account and to transfer such revenue to the District shall expire when the Authority’s right to receive such revenue expires pursuant to the Act. The District shall use the District Operating Revenue to pay its normal and reasonable administrative, operating and maintenance expenses. The District shall pledge the District Debt Service Mill Levy Revenue to payment of the District Bonds. 6.3 Multi-Fiscal Year Obligation. The Parties acknowledge that, according to the decision of the Colorado Court of Appeals in Olson v. City of Golden, 53 P.3d 747 (2002), an urban renewal authority is not a local government and therefore is not subject to the provisions of Article X, Section 20 of the Colorado Constitution. Accordingly, the Authority’s obligation to remit the Authority Pledged Revenue to the District Bond Trustee in accordance with the provisions of this agreement does not require electoral authorization and is not subject to annual appropriation. 6.4 No Impairment. The Authority will not enter into any agreement or transaction that impairs the rights of the Parties, including, without limitation, the right to receive and apply Authority Pledged Revenue in accordance with the terms and provisions of this Agreement. 6.5 Cooperation with District and Developer. The Authority agrees to cooperate in a reasonable manner to assist the District in issuing District Bonds and to pledge the Authority JANUARY 14, 2014 READ-BEFORE VERSION 21 Pledged Revenue to the payment of such District Bonds in accordance with the provisions of this Agreement and the District Bond Documents. 7. THE CITY. 7.1 Collection of Authority Pledged RevenueAmendment of Urban Renewal Plan. The City agrees that its will not amend or modify the Urban Renewal Plan as it relates to this Agreement without the consent of all of the other Parties. Notwithstanding the foregoing, the City may, prior to June 1, 2014, elect to exclude the Property from the Midtown Urban Renewal Plan and adopt a new urban renewal plan for the Property, provided that the City cooperates with all Parties to ensure that such new plan is consistent with the Act and with the terms and conditions of this Agreement. 7.2 Underpass. The City agrees to accept ownership of the Underpass from the Developer or the District upon Completion of Construction of the Underpass in accordance with this Agreement. 8. PAYMENT OR REIMBURSEMENT OF ELIGIBLE COSTS. The Developer or District, as applicable, will be paid or reimbursed for Eligible Costs from the net proceeds of the District Bonds on deposit in the Project Fund upon compliance with the requisition process set forth in the District Bond Documents, which shall substantially comply with the requirements set forth in Exhibit E hereto. Such payment or reimbursement of Eligible Costs shall also comply with the Reimbursement and Infrastructure Agreement between the Developer and the District. Cost savings in the line items listed in Exhibit D may be allocated to cost overruns in other line items only in accordance with the provisions set forth in Exhibit D. 9. BOOKS AND ACCOUNTS; FINANCIAL STATEMENTS. The Authority and District will keep proper and current itemized records, books, and accounts in which complete and accurate entries will be made of the receipt and use of all amounts of revenue received from any and all sources and such other calculations required by this Agreement, the District Bond Documents, and any applicable law or regulation. The Authority and the District will prepare after the close of each of their fiscal years, a complete financial statement prepared in accordance with generally accepted accounting principles accepted in the United States of America for such year in reasonable detail covering the above information, and if required by statute, certified by a public accountant, and will furnish a copy of such statement to the other Parties within two hundred and ten (210) days after the close of each fiscal year of the Authority and the District or upon such earlier date as may be required by the District Bond Documents. 9.1 Inspection of Records. All books, records and reports (except those allowed or required by applicable law to be kept confidential) in the possession of the City, the Authority, and the District, including, without limitation, those relating to the Pledged Revenue, the Authority Administration Fee, Eligible Improvements, Eligible Costs, District Pledged Revenue, District Operating Revenue, District Bonds will at all reasonable times be open to inspection by such accountants or other agents as the respective Parties may from time to time designate. 10. INSURANCE. At all times prior to Completion of Construction of the Project, the District and the Developer, within ten (10) days after request by the City or the Authority, will provide the JANUARY 14, 2014 READ-BEFORE VERSION 22 City or the Authority, as the case may be, with proof of payment of premiums and certificates of insurance showing that the District and the Developer are carrying, or causing prime contractors to carry, builder's risk insurance (if appropriate), commercial general liability, automobile, and worker's compensation insurance policies in commercially reasonable amounts and coverages approved by the City Manager or the Executive Director of the Authority. Such policies of insurance shall be placed with financially sound and reputable insurers. 11. INDEMNIFICATION. For each Eligible Improvement, from Commencement of Construction through Completion of Construction, and for any action arising during that time period, Developer agrees to indemnify, defend and hold harmless the City and the Authority, its officers, agents and employees, from and against all liability, claims, demands, and expenses, including fines imposed by any applicable state or federal regulatory agency, court costs and attorney fees, on account of any injury, loss, or damage, which arise out of or are in any manner connected with any of the work to be performed by Developer, any subcontractor of Developer, or any officer, employee, agent, successor or assign of Developer under this Agreement, if such injury, loss, or damage is caused in whole or in part by, the negligent act or omission, error, professional error, mistake, accident, or other fault of Developer, any subcontractor of Developer, or any officer, employee, agent, successor or assign of Developer, but excluding any injuries, losses or damages which are due to the gross negligence, breach of contract or willful misconduct of the City or the Authority, as the case may be. 12. REPRESENTATIONS, WARRANTIES AND COVENANTS. 12.1 Representations and Warranties by the Authority. The Authority represents and warrants as follows: (a) The Authority is a body corporate and politic of the State of Colorado, duly organized under the Act, and has the power to enter into and has taken all actions to date required to authorize this Agreement and to carry out its obligations. (b) The Authority knows of no litigation, proceeding, initiative, referendum, investigation or threat of any of the same contesting the powers of the Authority or its officials with respect to this Agreement that has not been disclosed in writing to the Parties. (c) The execution and delivery of this Agreement and the documents required and the consummation of the transactions contemplated by this Agreement will not (a) conflict with or contravene any law, order, rule or regulation applicable to the Authority or to its governing documents, (b) 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 (c) permit any party to terminate any such agreement or instruments or to accelerate the maturity of any indebtedness or other obligation of the Authority. (d) The Authority Pledged Revenue is not subject to any other or prior pledge or encumbrance, and the Authority will not pledge or encumber it except as specified herein or as may be provided in the District Bond Documents or the documents related to the issuance of any District Bonds. JANUARY 14, 2014 READ-BEFORE VERSION 23 (e) This Agreement constitutes a valid and binding obligation of the Authority, enforceable according to its terms, except to the extent limited by bankruptcy, insolvency and other laws of general application affecting creditors’ rights and by equitable principles, whether considered at law or in equity. 12.2 Representations and Warranties by the District. The District represents and warrants as follows: (a) The District is a quasi-municipal corporation and political subdivision of the State of Colorado, organized and existing in accordance with Title 32, Article 1, C.R.S., and has the legal capacity and the authority to enter into and perform its obligations under this Agreement and the documents to be executed and delivered pursuant hereto. (b) The execution and delivery of this Agreement and such documents and the performance and observance of their terms, conditions and obligations have been duly and validly authorized by all necessary action on its part, and such documents and such performance and observance are valid and binding upon the District. (c) The execution and delivery of this Agreement and the documents required and the consummation of the transactions contemplated by this Agreement will not (a) conflict with or contravene any law, order, rule or regulation applicable to the District or to the District’s governing documents, (b) result in the breach of any of the terms or provisions or constitute a default under any agreement or other instrument to which the District is a party or by which it may be bound or affected, or (c) permit any party to terminate any such agreement or instruments or to accelerate the maturity of any indebtedness or other obligation of the District. (d) The District knows of no litigation, proceeding, initiative, referendum, or investigation or threat of any of the same contesting the powers of the Authority, the District or any of its officials with respect to this Agreement that has not been disclosed in writing to the Parties. (e) The District Pledged Revenue is not subject to any other or prior pledge or encumbrance, and the District will not pledge or encumber it except as specified herein or as may be provided in the District Bond Documents or the documents related to the issuance of the District Bonds. (f) This Agreement constitutes a valid and binding obligation of the District, enforceable according to its terms, except to the extent limited by bankruptcy, insolvency and other laws of general application affecting creditors’ rights and by equitable principles, whether considered at law or in equity. 12.3 Representations, Warranties and Covenants by the Developer. Developer represents and warrants as follows: (a) Developer is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and in good standing and authorized to do business in the State of Colorado and has the power and the authority to enter into and perform in a timely manner its obligations under this Agreement. JANUARY 14, 2014 READ-BEFORE VERSION 24 (b) The execution and delivery of this Agreement have been duly and validly authorized by all necessary action on its part to make this Agreement and are valid and binding upon Developer. (c) The execution and delivery of this Agreement will not (a) conflict with or contravene any law, order, rule or regulation applicable to Developer or to Developer’s governing documents, (b) result in the breach of any of the terms or provisions or constitute a default under any agreement or other instrument to which Developer is a party or by which it may be bound or affected, or (c) permit any party to terminate any such agreement or instruments or to accelerate the maturity of any indebtedness or other obligation of Developer. (d) Developer knows of no litigation, proceeding, initiative, referendum, or investigation or threat or any of the same contesting the powers of the Developer or any of its principals or officials with respect to this Agreement that has not been disclosed in writing to the other Parties. (e) Developer agrees that it shall enforce the imposition and collection of the Add-On PIF and the remittance of the Add-On PIF to the District Bond Trustee. (f) Developer covenants and agrees that it shall complete the Project in strict conformance with the terms of this Agreement, and Exhibit C, including but not limited to high quality architectural and landscape design exceeding the City of Fort Collins Land Use Code minimum standards and consistent in character with the approved Project Development Plan dated February 7, 2013, and the environmental sustainability measures set forth in Exhibit C, except as approved in writing by the City Manager. (g) Except with regard to the signature pages from ARC, as defined below, in escrow with Fidelity National Title Company (“Fidelity”) are: (i) a Termination and Relocation Agreement between the Developer and arc Thrift Stores (“ARC”), (ii) an Estoppel Agreement between the Developer, ARC, Crown Financial, LLC (“Crown”) and Larimer Park Associates (“LPA”), (iii) an Escrow Agreement, between the Developer, ARC and Fidelity (collectively the “ARC Escrow Documents”), (iv) assignments between Crown and the Developer and LPA and the Developer, and (v) funds in an amount sufficient to cover the payment obligations to Crown and LPA pursuant to the separate assignment agreements with Crown and LPA and the escrow deposit required under the Escrow Agreement. Provided ARC has delivered fully executed copies of the ARC Escrow Documents with instructions to permit the completion of the escrow as hereinafter described, the Developer covenants and agrees that on or before Noon on January 15, 2014, the Developer shall deliver confirmation to Fidelity to complete the escrow so that fully-executed copies of the ARC Escrow Documents are delivered to the applicable parties and funding related to the same occurs in accordance with each applicable document. JANUARY 14, 2014 READ-BEFORE VERSION 25 12.4 Representations and Warranties by the City. The City represents and warrants as follows: (a) The City is a body corporate and politic and a home rule municipality of the State of Colorado, and has the power to enter into and has taken all actions to date required to authorize this Agreement and to carry out its obligations under this Agreement. (b) The City knows of no litigation, proceeding, initiative, referendum, investigation or threat of any of the same contesting the powers of the City or its officials with respect to this Agreement that has not been disclosed in writing to the Parties. (c) The execution and delivery of this Agreement and the documents required hereunder and the consummation of the transactions contemplated by this Agreement will not (a) conflict with or contravene any law, order, rule or regulation applicable to the City or to its governing documents, (b) 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, or (c) permit any party to terminate any such agreement or instruments or to accelerate the maturity of any indebtedness or other obligation of the City. (d) This Agreement constitutes a valid and binding obligation of the City, enforceable according to its terms, except to the extent limited by bankruptcy, insolvency and other laws of general application affecting creditors’ rights and by equitable principles, whether considered at law or in equity. 13. TERM. The term of this Agreement is the period commencing on the Effective Date and terminating on the later of: (i) the date of payment in full of the District Bonds, or (ii) thirty years from the Effective Date; provided, however, that the Authority’s obligation to remit the Authority Pledged Revenue to the District Bond Trustee shall terminate upon the expiration of the time period that the Authority is authorized pursuant to the Act to receive the Authority Pledged Revenue, and provided, further, that the following provisions, without limitation, shall continue beyond the term of this Agreement: (A) the District’s and Developer’s obligation to operate and maintain the Project in accordance with the standards set forth herein, (B) the District’s obligation to reimburse the City for the costs of maintaining Larimer County Canal No. 2, (C) the limitation on the imposition of the Add-on PIF for only so long as any District Bonds are outstanding without the written consent of the City, (D) the Developer’s indemnification obligations under Section 11 hereof, (E) any rights and remedies that a Party has for an Event of Default hereunder, and (F) any rights that a Party has to inspect books and records as set forth in Section 9 hereof. 14. CONFLICTS OF INTEREST. None of the following will have any personal interest, direct or indirect, in this Agreement: a member of the governing body of the Authority or the City, an employee of the Authority or of the City who exercises responsibility concerning the Urban Renewal Plan, or an individual or firm retained by the City or the Authority who has performed consulting services to the Authority in connection with the Urban Renewal Plan, this Agreement, or the Authority Financing. None of the above persons or entities will participate in any decision relating to the Agreement that affects his or her personal interests or the interests of any corporation, partnership or association in which he or she is directly or indirectly interested. JANUARY 14, 2014 READ-BEFORE VERSION 26 15. ANTIDISCRIMINATION. Developer, for itself and its successors and assigns, agrees that in the construction of the Eligible Improvements and in the use and occupancy of the Property and the Eligible Improvements, Developer will not discriminate against any employee or applicant for employment because of race, color, creed, religion, sex, sexual preference, disability, marital status, ancestry, or national origin. 16. NOTICES. Any notice required or permitted by this Agreement will be in writing and will be deemed to have been sufficiently given for all purposes if delivered in person, by prepaid overnight express mail or overnight courier service, by certified mail or registered mail, postage prepaid return receipt requested, addressed to the Party to whom such notice is to be given at the address set forth on the signature page below or at such other or additional addresses as may be furnished in writing to the other Parties. Additionally, the Parties agree to provide concurrent notice via electronic mail. 17. DELAYS; FORCE MAJEURE. Subject to the following provisions, time is of the essence. Any delays in or failure of performance by any Party of its obligations under this Agreement shall be excused if such delays or failure are a result of acts of God, fires, floods, earthquake, strikes, labor disputes, regulation or order of civil or military authorities, or other causes, similar or dissimilar, which are beyond the control of such Party. 18. EVENTS OF DEFAULT. The following events shall constitute an Event of Default under this Agreement: (a) Failure by the Authority to pledge the Authority Pledged Revenue to any outstanding District Bonds in accordance with the District Bond Documents or failure to remit any such Authority Pledged Revenues within five (5) business days of the date they are required to be remitted; (b) Failure by the District to impose the District Debt Service Mill Levy or to remit the District Pledged Revenues within five (5) business days of the date they are required to be remitted; (c) Any representation or warranty made by any Party in this Agreement proves to have been untrue or incomplete in any material respect when made and which untruth or incompletion would have a material adverse effect upon any other Party; (d) Any Party fails in the performance of any other covenant in this Agreement and such default continues for thirty (30) days after written notice specifying such default and requiring the same to be remedied is given by a non-defaulting Party to the defaulting Party. If such default is not of a type which can be cured within such thirty (30) day period and the defaulting Party gives written notice to the non-defaulting Party or Parties within such thirty (30) day period that it is actively and diligently pursuing such cure, the defaulting Party shall have a reasonable period of time given the nature of the default following the end of such thirty (30) day period to cure such default, provided that such defaulting Party is at all times within such additional time period actively and diligently pursuing such cure in good faith; (e) The Developer fails in the timely performance of its obligations under Section 12.3(g). JANUARY 14, 2014 READ-BEFORE VERSION 27 19. REMEDIES. To the extent that an Event of Default has occurred and is continuing hereunder, and District Bonds have not yet been issued, no District Bonds shall be issued until such Event of Default has been cured, or remedied, or waived, or a remedy has been agreed upon by the Parties which will become effective with the passage of time. Upon the occurrence and continuation of an Event of Default, the non-defaulting Party’s remedies will be limited to the right to enforce the defaulting Party’s obligations by an action for injunction, specific performance, or other appropriate equitable remedy or for mandamus, or by an action to collect and enforce payment of sums owing hereunder, and no other remedy, and no Party will be entitled to or claim damages for an Event of Default by the defaulting Party, including, without limitation, lost profits, economic damages, or actual, direct, incidental, consequential, punitive or exemplary damages. In the event of any litigation or other proceeding to enforce any of the terms, covenants or conditions of this Agreement, the prevailing party in such litigation or other proceeding will receive, as part of its judgment or award, its reasonable attorneys’ fees and costs. The occurrence and continuation of an Event of Default will not affect the obligation of the Authority or the District to collect and remit Pledged Revenues or the obligation of the Authority to remit the District Debt Service Mill Levy Revenue or the District Operating Revenue to the District in accordance with the terms and provisions of this Agreement. 20. TERMINATION. Upon the occurrence of any of the following events, this Agreement may be terminated in accordance with the provisions hereinafter set forth: 20. (a) TERMINATION. In the event that the District Bonds are not issued on or prior to June 30, 2014, then any Party shall have the option to terminate this Agreement. (b) In the event that the District Bonds have not been issued and the Developer or the District have not Commenced Construction of any portion of the Project on or prior to March 1, 2014, then any Party shall have the option to terminate this Agreement. In order to terminate this Agreement, a Party shall provide written notice of such termination to the other Parties. Such termination shall be effective thirty (30) days after the date of such notice unless prior to such time, the Parties are able to negotiate in good faith to reach an agreement to avoid such termination. Upon such termination, this Agreement shall be null and void and of no effect, and no action, claim or demand may be based on any term or provision of this Agreement. In addition the Parties agree to execute a mutual release or other instruments reasonably required to effectuate and give notice of such termination. In the event that this agreement is terminated pursuant to this Section 20, the Developer agrees that it shall continue to be obligated to pay or reimburse the Authority for Authority Reimbursable Costs in accordance with the Agreement to Negotiate and shall continue to be obligated to pay or reimburse the City and the Authority for its costs, fees and expenses as set forth in Section 4.113 hereof. 21. NONLIABILITY OF OFFICIALS, AGENTS, MEMBERS, AND EMPLOYEES. Except for willful or wanton actions, no trustee, board member, commissioner, official, employee, consultant, manager, member, shareholder, attorney or agent of any Party, nor any lender to any Formatted: Legal2_L1 JANUARY 14, 2014 READ-BEFORE VERSION 28 Party or to the Project, will be personally liable under the Agreement or in the event of any default or for any amount that may become due to any Party. 22. ASSIGNMENT. Except for a District Bond Trustee in connection with the issuance of the District Bonds, this Agreement will not be assigned in whole or in part by any Party without the prior written consent of the other Parties; provided, however, the following assignments and transfers will not require any such consent: (a) Developer may assign all or a portion of this Agreement to the District; (b) subject to written notice to the City and the Authority from Developer containing the name and address of the lender or other party, Developer may pledge, collaterally assign or otherwise encumber all or any part of its rights under this Agreement, including its right to receive any payment or reimbursement, to any lender or other party that provides acquisition, construction, working capital, tenant improvement or other financing to Developer in connection with development of the Property and/or construction of the Eligible Improvements; and (c) on and after Completion of Construction of the Project and subject to advance written notice to the City and the Authority of no less than thirty (30) days, the Developer may assign all or any part of its rights under this Agreement to any purchaser of all or any portion of the Project. On and after Completion of Construction of the Project and in the event that the Developer sells all or a portion of the Project to a purchaser, and such purchaser accepts all or a part of the Developer’s obligations hereunder, then Developer shall be released from all of its obligations hereunder that have been assumed or accepted by such purchaser, provided, however, that no such release shall be effective until the City and the Authority have received written confirmation that such purchaser has assumed or accepted any such obligations hereunder. The Authority recognizes that Developer may form, together with investors, a separate, special purpose entity to develop, own and/or operate all or a portion of the Property or of the Eligible Improvements to be constructed thereon and that one or more assignments of all or a portion of this Agreement may be required in connection with such activities and such transfer(s) will not require any consent by the Parties. Except as otherwise specifically set forth in Section 4.4 (prior to the transfer of the FAC to the City) and 4.11 hereof, no covenants or obligations of the Developer or the District hereunder shall run with the land. 23. COOPERATION REGARDING DEFENSE. In the event of any litigation or other legal challenge involving this Agreement, the District Bonds, the validity of the Urban Renewal Plan, the District, or any other material part or provision of this Agreement or the ability of any Party to enter into this Agreement, the Parties will cooperate and jointly defend against such action or challenge, to the extent permitted by law. 24. SECTION CAPTIONS. The captions of the sections are set forth only for the convenience and reference of the Parties and are not intended in any way to define, limit, or describe the scope or intent of this Agreement. JANUARY 14, 2014 READ-BEFORE VERSION 29 25. ADDITIONAL DOCUMENTS OR ACTION. 25.1 The Parties agree to execute any additional documents or take any additional action, including but not limited to estoppel documents requested or required by third parties, including without limitation, lenders, tenants or potential purchasers, that is necessary to carry out this Agreement or is reasonably requested by any Party to confirm or clarify the intent of the provisions of this Agreement and to effectuate the agreements and the intent. Notwithstanding the foregoing, however, no Party shall be obligated to execute any additional document or take any additional action unless such document or action is reasonably acceptable to such Party. 25.2 If all or any portion of this Agreement, or other agreements approved in connection with this Agreement are asserted or determined to be invalid, illegal or are otherwise precluded, the Parties, within the scope of their powers and duties, will cooperate in the joint defense of such documents and, if such defense is unsuccessful, the Parties will use reasonable, diligent good faith efforts to amend, reform or replace such precluded items to assure, to the extent legally permissible, that each Party substantially receives the benefits that it would have received under this Agreement. 25.3 At the time of issuance of the District Bonds, each of the Authority and the City shall deliver an opinion of counsel addressed to the District, or with a reliance letter delivered to the District, with respect to this Agreement and the Urban Renewal Plan, which opinions shall state in substance that the Agreement and the Urban Renewal Plan have been duly authorized, executed, and delivered by the Authority and the City, as applicable, constitute valid and binding agreements of the Authority and the City, as applicable, and are enforceable according to their terms, subject to any applicable bankruptcy, reorganization, insolvency, moratorium, or other law affecting the enforcement of creditors rights generally and subject to the application of general principles of equity. 25.4 At the time of issuance of the District Bonds, the District shall deliver an opinion of counsel addressed to the City and the Authority, or with a reliance letter delivered to the City and the Authority, with respect to this Agreement, which opinion shall state in substance that the Agreement has been duly authorized, executed, and delivered by the District, constitutes a valid and binding agreement of the District, and is enforceable according to its terms, subject to any applicable bankruptcy, reorganization, insolvency, moratorium, or other law affecting the enforcement of creditors rights generally and subject to the application of general principles of equity. 25.5 The City Manager shall have the authority to act on behalf of the City under this Agreement and the Executive Director shall have the authority to act on behalf of the Authority under this Agreement. 26. AMENDMENT. This Agreement may be amended only by an instrument in writing signed by the Parties. 27. WAIVER OF BREACH. A waiver by any Party to this Agreement of the breach of any term or provision of this Agreement must be in writing and will not operate or be construed as a waiver of any subsequent breach by any Party. JANUARY 14, 2014 READ-BEFORE VERSION 30 28. GOVERNING LAW. The laws of the State of Colorado, excluding choice of law principles, govern this Agreement. The District Court of Larimer County will be the exclusive venue for any litigation. 29. BINDING EFFECT. This Agreement will inure to the benefit of and be binding upon the Parties and their respective legal representatives, successors, heirs, and assigns, provided that nothing in this paragraph permits the assignment of this Agreement except as set forth in Section 22. 30. EXECUTION IN COUNTERPARTS. This Agreement may be executed in several counterparts, each of which will be deemed an original and all of which will constitute but one and the same instrument. 31. LIMITED THIRD-PARTY BENEFICIARIES. Except for the District Bond Trustee for any District Bonds, direct lenders to the District that have been assigned rights hereunder in accordance with Section 22, or any provider of credit enhancement for the District Bonds, this Agreement is not intended and shall not be deemed to confer any rights on any person or entity not named as a Party to this Agreement. 32. NO PRESUMPTION. The Parties and their attorneys have had a full opportunity to review and participate in the drafting of the final form of this Agreement. Accordingly, this Agreement will be construed without regard to any presumption or other rule of construction against the Party causing the Agreement to be drafted. 33. SEVERABILITY. If any provision of this Agreement as applied to any Party or to any circumstance is adjudged by a court to be void or unenforceable, the same will in no way affect any other provision of this Agreement, the application of any such provision in any other circumstances or the validity, or enforceability of the Agreement as a whole. 34. DAYS. If the day for any performance or event provided for herein is a Saturday, a Sunday, a day on which national banks are not open for the regular transactions of business, or a legal holiday pursuant to Section 24-11-101(1), C.R.S., such day will be extended until the next day on which such banks and state offices are open for the transaction of business. 35. GOOD FAITH OF PARTIES. In the performance of this Agreement or in considering any requested approval, consent, acceptance, or extension of time, the Parties agree that each will act in good faith and will not act unreasonably, arbitrarily, capriciously, or unreasonably withhold, condition, or delay any approval, acceptance, or extension of time required or requested pursuant to this Agreement. 36. PARTIES NOT PARTNERS. Notwithstanding any language in this Agreement or any other agreement, representation, or warranty to the contrary, the Parties will not be deemed to be partners or joint venturers, and no Party is responsible for any debt or liability of any other Party. 37. NO WAIVER OF IMMUNITY. Nothing contained in this Agreement constitutes a waiver of sovereign immunity or governmental immunity by any Party under applicable state law. JANUARY 14, 2014 READ-BEFORE VERSION 31 IN WITNESS WHEREOF, this Agreement is executed by the Parties as of January __, 2014. FORT COLLINS URBAN RENEWAL AUTHORITY _____________________________________ ATTEST: Gerry Horak, Vice Chairperson _____________________________ Darin Atteberry, Executive Director Notice Address: Fort Collins Urban Renewal Authority 300 LaPorte Avenue P.O. Box 580 Fort Collins, CO 80522 Attention: Darin Atteberry, Executive Director Email: DATTEBERRY@fcgov.com JANUARY 14, 2014 READ-BEFORE VERSION 32 CITY OF FORT COLLINS, COLORADO By: Gerry Horak, Mayor Pro Tem (SEAL) Attest: _______________________ Wanda Nelson, City Clerk APPROVED AS TO FORM _______________________ Steve Roy, City Attorney Notice Address: City of Fort Collins 300 LaPorte Avenue P.O. Box 580 Fort Collins, Colorado 80522 Attention: Steve Roy, Esq., City Attorney Email: SROY@fcgov.com JANUARY 14, 2014 READ-BEFORE VERSION 33 FOOTHILLS METROPOLITAN DISTRICT _________________________________ ATTEST: ________________________, President _____________________________ Secretary Notice Address: c/o White, Bear and Ankele, P.C. The Streets at Southglenn 2154 E.Commons Avenue, Suite 2000 Centennial, CO 80122 Attention: Kristen Bear Email: kbear@wbapc.com JANUARY 14, 2014 READ-BEFORE VERSION 34 WALTON FOOTHILLS HOLDINGS VI, L.L.C., a Delaware limited liability company By: Foothills Alberta Management, LLC, a Colorado limited liability company Its: Authorized Agent By: ____________________________ Donald G. Provost Its: Manager Notice Address: Walton Foothills Holdings VI, L.L.C. 5750 DTC Pkwy, Suite 210 Greenwood Village, CO 80111 Attention: Donald G. Provost Email: dgp@albdev.com With a copy to: Brownstein Hyatt Farber Schreck, LLP 410 Seventeenth Street, Suite 2200 Denver, CO 80202 Attention: Carolynne C. White, Esq. Email: cwhite@bhfs.com JANUARY 14, 2014 READ-BEFORE VERSION EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY Foothills Mall: PARCEL I - FEE SIMPLE: Tract 2, The Foothills Fashion Mall Expansion, City of Fort Collins, County of Larimer, State of Colorado. PARCEL II - FEE SIMPLE: Tract 3, The Foothills Fashion Mall Expansion, City of Fort Collins, County of Larimer, State of Colorado. PARCEL III - FEE SIMPLE: Lot #1 of Replat of Tracts F, G and J and Vacated Service Road, Southmoor Village Fifth Filing, City of Fort Collins, Colorado, a municipal corporation, according to the replat filed December 13, 1973, except that portion conveyed to the City of Fort Collins, for public use by Deed of Dedication recorded April 21, 1989, as Reception No. 890178208, more particularly described as follows: A part of Lot 1 of the Replat of Tracts F, G and J and Vacated Service Road, Southmoor Village, Fifth Filing, City of Fort Collins, County of Larimer, State of Colorado, which begins at a point which bears South 00°12' East 105.36 feet from the Northeast corner of said Lot 1, and runs thence South 00°12' East 137.44 feet; Thence along the arc of a 15.00 foot radius curve to the right a distance of 17.77 feet, the long chord of which bears South 33°43'30" West 16.75 feet; Thence along the arc of a 360.77 foot radius curve to the left a distance of 146.61 feet, the long chord of which bears South 56°01'30" West 145.60 feet; Thence North 44°23' East 85.72 feet; thence along the arc of a 243.83 foot radius curve to the left a distance of 189.80 feet, the long chord of which bears North 22°05' East 185.04 feet to the Point of Beginning. PARCEL IV - FEE SIMPLE: A part of Tract T and U and a part of the vacated frontage road adjacent to said Tract U, Southmoor Village Fifth Filing, City of Fort Collins, County of Larimer, State of Colorado, which begins at a point on the West line of said Tract T which bears South 01°57' East 7.19 feet and again South 12°17'30" West 180.10 feet from the Northwest corner of said Tract T, and run thence North 89°45'30" East 243.55 feet to a point on the Northerly line of East Monroe Drive; Thence along said Northerly right-of-way line, South 51°45' West 231.73 feet and again along the arc of a 193.41 foot radius curve to the right a distance of 127.73 feet, the long chord of which bears South 70°40'06" West 125.42 feet and again South 89°35'15" West 137.00 feet; Thence along the arc of a 15.00 foot radius curve to the right a distance of 23.56 feet, the long chord of which bears North JANUARY 14, 2014 READ-BEFORE VERSION A1 - 2 45°24'45" West 21.21 feet; Thence North 00°24'45" West 169.17 feet along the East line of South College Avenue; Thence North 89°45'30" East, 210.10 feet to the point of beginning. Also: A part of Tract T of Southmoor Village, Fifth Filing which begins at the Northwest corner of said Tract T and run thence North 89°45'30" East 227.00 feet; Thence South 74°54' East 170.06 feet; Thence South 00°14'30" East 24.45 feet to a point on the North line of Monroe Drive; Thence along said North line along the arc of a 301.32 foot radius curve to the left a distance of 124.25 feet, the long chord of which bears South 63°33'47" West 123.37 feet, and again South 51°45' West 95.97 feet; Thence South 89°45'30" West 243.55 feet; Thence North 12°17'30" East 180.10 feet; Thence North 01°57' West 7.19 feet to the point of beginning: AND a part of Tract U of Southmoor Village, Fifth Filing, and a part of the vacated frontage road adjacent to said Tract U which begins at the Northeast corner of said Tract U and run thence South 01°57' East 7.19 feet; Thence South 12°17'30" West 180.10 feet; Thence South 89°45'30" West 210.10 feet to a point on the East right-of-way line of South College Avenue; Thence North 00°24'45" West 183.00 feet; Thence North 89°45'30" East 249.52 feet to the point of beginning; City of Fort Collins, County of Larimer, State of Colorado. EXCEPT that portion described in Partial Release recorded August 19, 1988 as Reception No. 88039190. The above described Parcel IV is also known as: A part of Tract T, Tract U and the vacated frontage road adjacent to the West side of Tract U, all in Southmoor Village, Fifth Filing, City of Fort Collins, County of Larimer, State of Colorado, which begins at the Northwest corner of said Tract T and runs thence North 89°45'30" East 225.25 feet; Thence along the arc of a 140.00 foot radius curve to the right a distance of 61.50 feet, the long chord of which bears South 12°49'33" East 61.00 feet; Thence South 00°14'30" East 97.00 feet; Thence South 51°45' West 274.70 feet; Thence along the arc of a 193.41 foot radius curve to the right a distance of 127.73 feet, the long chord of which bears South 70°40'06" West 125.42 feet; Thence South 89°35'15" West 137.00 feet; Thence along the arc of a 15.00 foot radius curve to the right a distance of 23.56 feet, the long chord of which bears North 45°24'45" West 21.21 feet; Thence North 00°24'45" West 352.17 feet; Thence North 89°45'30" East 249.52 feet to the Point of Beginning. PARCEL V - FEE SIMPLE: Tract A, The Foothills Fashion Mall Foley's Expansion, City of Fort Collins, County of Larimer, State of Colorado. PARCEL VI - FEE SIMPLE: Tract 1 and Tract 7 of The Foothills Fashion Mall Expansion, City of Fort Collins, County of Larimer, State of Colorado. JANUARY 14, 2014 READ-BEFORE VERSION A1 - 3 PARCEL VII - FEE SIMPLE: Tract 10 of The Foothills Fashion Mall Expansion, City of Fort Collins, County of Larimer, State of Colorado. PARCEL VIII - FEE SIMPLE: Tract E, Southmoor Village, Fifth Filing, together with a tract of land beginning at the Southwest corner of Tract E of Southmoor Village Fifth Filing and runs: Thence South 89°45'30" West, 50.00 feet; Thence North 00°24'45" West, 414.93 feet; Thence North 89°35'15" East, 50.00 feet; Thence South 00°24'45" East, 415.08 feet to the beginning, Larimer County, Colorado. PARCEL IX - EASEMENTS: Together with those rights and easements constituting rights in real property created, defined and limited by that certain Easement Agreement recorded June 23, 1972 in Book 1509 at Page 306, Amended Agreement recorded June 23, 1972 in Book 1509 at Page 316, Amended Construction, Operation Reciprocal Easement Agreement recorded June 23, 1972 in Book 1509 at Page 201, Restatement of Amended Construction, Operation and Reciprocal Easement Agreement recorded May 31, 1979, in Book 1956 at Page 796, Amendment No. 1 to Restatement of Amended Construction, Operation and Reciprocal Easement Agreement, recorded September 27, 1988 at Reception No. 88042996, and Amendment No. 2 to Restatement of Amended Construction, Operation and Reciprocal Easement Agreement recorded September 7, 1999 at Reception No. 99079223, Assignment and Assumption of Restatement of Amended Construction, Operation and Reciprocal Easement Agreement recorded December 19, 2003 at Reception No. 20030158946, and Assignment and Assumption of Restatement of Amended Construction, Operation and Reciprocal Easement Agreement recorded January 30, 2004 at Reception No. 2004009265. PARCEL X - EASEMENTS: Together with those rights and easements constituting rights in real property created, defined and limited by that certain Cross-Easement Agreement recorded September 7, 1988 at Reception No. 88042989, Grant of Easement recorded September 7, 1988 at Reception No. 88042997 and Grant of Easement recorded January 26, 1993 at Reception No. 93005028. PARCEL XI - EASEMENTS: Together with those rights and easements constituting rights in real property created, defined and limited by that certain Easement Agreement recorded April 24, 1997 at Reception No. 97025069. JANUARY 14, 2014 READ-BEFORE VERSION A1 - 4 Macy's: Tract "B" of The Foothills Fashion Mall Foley's Expansion, located in the Southwest Quarter of Section 25, Township 7 North, Range 69 West of the 6th Principal Meridian, City of Fort Collins, County of Larimer, State of Colorado, being more particularly described as follows: Considering the North line of said Tract "B" as bearing North 89°47'08" East with all bearings contained herein relative thereto: Beginning at the Northwest corner of said Tract "B"; thence along said North line, North 89°47'08" East, 147.00 feet to the Northwest corner of Tract "A" of said The Foothills Fashion Mall Foley's Expansion; thence along the West and Southerly lines of said Tract "A" by the following four (4) courses and distances, South 00°12'52" East, 180.00 feet; thence North 89°47'08" East 714.79 feet; thence North 00°12'52" West,1 28.00 feet; thence North 89°47'08" East, 132.28 feet to a point on the West right-of-way line of Stanford Road, said point being on a non-tangent curve concave to the Northwest having a central angle of 14°33'25", a radius of 1319.21 feet and a long chord which bears South 09°19'18" West, 334.27 feet; thence along the arc of said curve 335.17 feet; thence South 16°36'00" West, 93.03 feet to a point being on a non tangent curve concave to the Southwest having a central angle of 89°58'58", a radius of 15.00 feet and a long chord which bears North 28°24'00" West, 21.21 feet; thence along the arc of said curve 23.56 feet; thence North 73°24'00" West, 242.72 feet; thence South 00°14;39: East, 306.31 feet; thence South 89°45'30" West, 329.50 feet; thence South 44°45'30" West, 98.72 feet; thence North 45°14'30" West, 48.00 feet; thence South 44°45'30" West, 93.53 feet; thence North 45°14'30" West, 151.44 feet; thence South 44°45'30" West, 47.26 feet; thence North 00°14'30" West, 332.20 feet; thence North 89°47'00" East, 99.70 feet; thence North 00°13'00" West, 280.13 feet to the Point of Beginning. Sears: Tract 8, The Foothills Fashion Mall Expansion to the city of Fort Collins, County of Larimer, State of Colorado Christy Sports: Parcel One: Tract "D" Southmoor Village Fifth Filing AND the following described portion of the vacated frontage road vacated by Ordinance No. 98 as recorded in Book 1580 at page 897, which begins at the Southwest corner of said Tract "D" and run thence N 00°00'45" West 143.71 feet along the West line of said Tract D; thence S 44°59'15" West 70.71 feet; thence S 00°00'45" East 93.71 feet; thence N 89°59'15" East 50.00 feet to the Point of Beginning, together with the following described easement: JANUARY 14, 2014 READ-BEFORE VERSION A1 - 5 Parcel Two: (easement) A portion of Tract 8, Foothills Fashion Mall Expansion, formerly known as a part of Tract "C" of Southmoor Village, Fifth Filing, in the City of Fort Collins, which begins at the Northeast corner of Tract "D" of said Southmoor Village, Fifth Filing, and run thence S 00°00'45" East 158.71 feet; thence S 89°59'15" West 158.71 feet; thence S 00°00'45" East 50.00 feet; thence N 89°59'15" East 185.00 feet; thence N 13°44 East 130.45 feet; thence along the Arc of a 200 foot radius curve to the left a distance of 55.72 feet; thence along the arc of a 35-foot radius curve to the right a distance of 31.81 feet; thence along the Southerly line of Foothills Parkway, on the arc of a 359.23 foot radius curve to the right a distance of 43.81 feet, and again along the Southerly line of Foothills Parkway South 89°59'15" West 29.29 feet to the Point of Beginning. Subject to the terms, agreements, provisions, conditions and obligations as contained in Easement Agreement recorded December 11, 1972, in Book 1532 at Page 904 and Assignment recorded January 8, 1973, in Book 1536 at Page 448. JANUARY 14, 2014 READ-BEFORE VERSION EXHIBIT B DESCRIPTION OF THE FOOTHILLS TAX INCREMENT FINANCING DISTRICT A TRACT OF LAND LOCATED IN THE SOUTHWEST QUARTER OF SECTION 25 AND THE SOUTHEAST QUARTER OF SECTION 26, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE SIXTH P.M.; CITY OF FORT COLLINS, COUNTY OF LARIMER, STATE OF COLORADO; BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE WEST QUARTER CORNER OF SAID SECTION 25, AND CONSIDERING THE WEST LINE OF THE SOUTHWEST QUARTER OF SAID SECTION 25 AS HAVING AN ASSUMED BEARING OF S00°04’53”W, SAID LINE BEING MONUMENTED ON ITS NORTH END BY A 3" ALUMINUM CAP STAMPED LS 20123, AND ON ITS SOUTH END BY A 2-1/2" ALUMINUM CAP STAMPED LS 14823, WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO; THENCE ALONG THE NORTHERLY BOUNDARY OF LOT 1 OF THE “REPLAT OF TRACTS F, G, AND J, AND VACATED SERVICE ROAD, SOUTHMOOR VILLAGE, FIFTH FILING” AND THE WESTERLY EXTENSION THEREOF, N89°52'45"E, A DISTANCE OF 314.48 FEET TO A POINT ON THE WESTERLY RIGHT OF WAY LINE OF REMINGTON STREET; THENCE CONTINUING ALONG SAID NORTHERLY BOUNDARY THE FOLLOWING FIVE (5) COURSES: 1) ALONG THE WESTERLY RIGHT OF WAY LINE OF REMINGTON STREET, S00°05'37"W, A DISTANCE OF 50.00 FEET; 2) ALONG THE SOUTHERLY RIGHT OF WAY LINE OF REMINGTON STREET, N89°52'45"E, A DISTANCE OF 60.00 FEET; 3) S51°41'04"E, A DISTANCE OF 145.40 FEET; 4) S89°35'23"E, A DISTANCE OF 138.50 FEET; 5) N00°05'37"E, A DISTANCE OF 141.63 FEET; THENCE CONTINUING ALONG SAID NORTHERLY BOUNDARY AND ITS EASTERLY EXTENSION, N89°52'45"E, A DISTANCE OF 357.21 FEET TO A POINT ON THE EASTERLY RIGHT OF WAY LINE OF MATHEWS STREET, SAID POINT ALSO BEING THE NORTHWEST CORNER OF TRACT K, SOUTHMOOR VILLAGE, FIFTH FILING; THENCE ALONG THE WESTERLY, SOUTHERLY, AND EASTERLY BOUNDARIES OF SAID TRACT K THE FOLLOWING FIVE (5) COURSES: 1) ALONG SAID EASTERLY RIGHT OF WAY LINE OF MATHEWS STREET, S00°14'56"E, A DISTANCE OF 215.33 FEET; 2) 23.98 FEET ALONG THE ARC OF A TANGENT CURVE TO THE LEFT, HAVING A RADIUS OF 15.00 FEET, A CENTRAL ANGLE OF 91°36'53", AND A CHORD WHICH BEARS S46°03'22"E A DISTANCE OF 21.51 FEET; JANUARY 14, 2014 READ-BEFORE VERSION B - 2 3) 11.02 FEET ALONG THE ARC OF A REVERSE CURVE, HAVING A RADIUS OF 360.77 FEET, A CENTRAL ANGLE OF 01°45'00", AND A CHORD WHICH BEARS N89°00'07"E A DISTANCE OF 11.02 FEET; 4) N89°52'37"E, A DISTANCE OF 173.52 FEET; 5) N00°07'23"W, A DISTANCE OF 230.12 FEET TO THE NORTHWEST CORNER OF TRACT B OF THE FOOTHILLS FASHION MALL FOLEY’S EXPANSION; THENCE ALONG THE NORTHERLY BOUNDARY OF TRACTS B AND A OF SAID FOOTHILLS FASHION MALL FOLEY’S EXPANSION, N89°52'46"E, A DISTANCE OF 996.10 FEET TO A POINT ON THE WESTERLY RIGHT OF WAY LINE OF STANFORD ROAD; THENCE ALONG SAID WESTERLY RIGHT OF WAY LINE THE FOLLOWING SEVEN (7) COURSES: 1) ALONG THE EASTERLY BOUNDARY OF TRACT B OF SAID FOOTHILLS FASHION MALL FOLEY’S EXPANSION, 387.18 FEET ALONG THE ARC OF A NON-TANGENT CURVE TO THE RIGHT, HAVING A RADIUS OF 1,319.30 FEET, A CENTRAL ANGLE OF 16°48'53", AND A CHORD WHICH BEARS S08°17'12"W A DISTANCE OF 385.79 FEET; 2) CONTINUING ALONG SAID EASTERLY BOUNDARY, S16°41'39"W, A DISTANCE OF 93.03 FEET; 3) ALONG THE EASTERLY BOUNDARY OF THE FOOTHILLS FASHION MALL EXPANSION, S16°41'36"W, A DISTANCE OF 482.09 FEET; 4) CONTINUING ALONG SAID EASTERLY BOUNDARY, 327.62 FEET ALONG THE ARC OF A TANGENT CURVE TO THE LEFT, HAVING A RADIUS OF 1,114.57 FEET, A CENTRAL ANGLE OF 16°50'30", AND A CHORD WHICH BEARS S08°16'21"W A DISTANCE OF 326.44 FEET; 5) CONTINUING ALONG SAID EASTERLY BOUNDARY, S00°08'53"E, A DISTANCE OF 170.00 FEET; 6) CONTINUING ALONG SAID EASTERLY BOUNDARY, S05°51'32"E, A DISTANCE OF 110.54 FEET; 7) CONTINUING ALONG SAID EASTERLY BOUNDARY AND ITS SOUTHERLY EXTENSION, S00°08'53"E, A DISTANCE OF 451.00 FEET TO A POINT ON THE SOUTHERLY BOUNDARY OF THAT TRACT OF LAND DESCRIBED IN THE SPECIAL WARRANTY DEED RECORDED OCTOBER 30, 2012 AT RECEPTION NO. 20120076539 IN THE OFFICE OF THE LARIMER COUNTY CLERK AND RECORDER; THENCE ALONG THE SOUTHERLY BOUNDARY OF THE TRACTS DESCRIBED IN THE DEEDS RECORDED AT RECEPTION NO. 20120076539, RECEPTION NO. 20050022855, AND RECEPTION NO. 2001099396, THE FOLLOWING SEVEN (7) COURSES: JANUARY 14, 2014 READ-BEFORE VERSION B - 3 1) 23.56 FEET ALONG THE ARC OF A NON-TANGENT CURVE TO THE LEFT, HAVING A RADIUS OF 15.00 FEET, A CENTRAL ANGLE OF 90°00'00", AND A CHORD WHICH BEARS N45°08'53"W A DISTANCE OF 21.21 FEET; 2) S89°51'07"W, A DISTANCE OF 214.00 FEET; 3) 312.91 FEET ALONG THE ARC OF A TANGENT CURVE TO THE RIGHT, HAVING A RADIUS OF 398.41 FEET, A CENTRAL ANGLE OF 44°59'59", AND A CHORD WHICH BEARS N67°38'53"W A DISTANCE OF 304.93 FEET; 4) N45°08'54"W, A DISTANCE OF 129.24 FEET; 5) 275.94 FEET ALONG THE ARC OF A TANGENT CURVE TO THE LEFT, HAVING A RADIUS OF 351.34 FEET, A CENTRAL ANGLE OF 45°00'00", AND A CHORD WHICH BEARS N67°38'54"W A DISTANCE OF 268.90 FEET; 6) S89°51'06"W, A DISTANCE OF 199.36 FEET; 7) 23.56 FEET ALONG THE ARC OF A TANGENT CURVE TO THE LEFT, HAVING A RADIUS OF 15.00 FEET, A CENTRAL ANGLE OF 90°00'00", AND A CHORD WHICH BEARS S44°51'06"W A DISTANCE OF 21.21 FEET TO A POINT ON THE EASTERLY RIGHT OF WAY LINE OF JOHN F. KENNEDY PARKWAY; THENCE S89°51'06"W, A DISTANCE OF 66.00 FEET TO A POINT ON THE WESTERLY RIGHT OF WAY LINE OF JOHN F. KENNEDY PARKWAY; THENCE 23.56 FEET ALONG THE ARC OF A NON-TANGENT CURVE TO THE LEFT, HAVING A RADIUS OF 15.00 FEET, A CENTRAL ANGLE OF 90°00'00", AND A CHORD WHICH BEARS N45°08'54"W A DISTANCE OF 21.21 FEET TO A POINT ON THE SOUTHERLY RIGHT OF WAY LINE OF EAST MONROE DRIVE; THENCE ALONG SAID SOUTHERLY RIGHT OF WAY LINE THE FOLLOWING FIVE (5) COURSES: 1) S89°51'06"W, A DISTANCE OF 12.16 FEET; 2) 146.82 FEET ALONG THE ARC OF A TANGENT CURVE TO THE LEFT, HAVING A RADIUS OF 221.32 FEET, A CENTRAL ANGLE OF 38°00'29", AND A CHORD WHICH BEARS S70°50'52"W A DISTANCE OF 144.14 FEET; 3) S51°50'37"W, A DISTANCE OF 327.70 FEET; 4) 179.17 FEET ALONG THE ARC OF A TANGENT CURVE TO THE RIGHT, HAVING A RADIUS OF 273.41 FEET, A CENTRAL ANGLE OF 37°32'46", AND A CHORD WHICH BEARS S70°37'00"W A DISTANCE OF 175.98 FEET; 5) S89°23'22"W, A DISTANCE OF 138.44 FEET; THENCE 23.56 FEET ALONG THE ARC OF CURVE TO THE LEFT, HAVING A RADIUS OF 15.00 FEET, A CENTRAL ANGLE OF 90°00'00", AND A CHORD WHICH BEARS S44°23'23"W A DISTANCE OF 21.21 FEET TO A POINT ON THE EASTERLY RIGHT OF WAY LINE OF SOUTH COLLEGE AVENUE; JANUARY 14, 2014 READ-BEFORE VERSION B - 4 THENCE ALONG SAID EASTERLY RIGHT OF WAY LINE THE FOLLOWING TWO (2) COURSES: 1) ALONG THE WESTERLY BOUNDARY OF STRACHAN SUBDIVISION, SECOND FILING, S00°19'07"E, A DISTANCE OF 576.93 FEET; 2) CONTINUING ALONG SAID WESTERLY BOUNDARY, S45°28'37"E, A DISTANCE OF 44.78 FEET TO A POINT ON THE NORTHERLY RIGHT OF WAY LINE OF HORSETOOTH ROAD AS SHOWN ON THE PLAT OF SAID STRACHAN SUBDIVISION, SECOND FILING; THENCE S03°26'10"W, A DISTANCE OF 105.31 FEET TO A POINT ON THE SOUTHERLY RIGHT OF WAY LINE OF HORSETOOTH ROAD AS SHOWN ON THE FIRST REPLAT OF 1ST CHOICE BANK OF FORT COLLINS; THENCE N88°14'59"W, A DISTANCE OF 154.42 FEET TO A POINT ON THE SOUTHERLY RIGHT OF WAY LINE OF HORSETOOTH ROAD AND THE WESTERLY RIGHT OF WAY LINE OF SOUTH COLLEGE AVENUE AS SHOWN ON THE REPLAT OF LOTS 1, 2, 3 & 4 – CREGER PLAZA SUBDIVISION; THENCE N00°32'51"W, A DISTANCE OF 100.00 FEET TO A POINT ON THE WESTERLY RIGHT OF WAY LINE OF SOUTH COLLEGE AVENUE AS SHOWN ON THE PLAT OF MATTERHORN P.U.D.; THENCE ALONG THE WESTERLY RIGHT OF WAY LINE OF SOUTH COLLEGE AVENUE THE FOLLOWING TEN (10) COURSES: 1) ALONG THE EASTERLY BOUNDARY OF LOT 1, MATTERHORN P.U.D., N44°33'53"E, A DISTANCE OF 9.22 FEET; 2) ALONG THE EASTERLY BOUNDARY OF LOTS 1 AND 2, MATTERHORN P.U.D., N00°19'07"W, A DISTANCE OF 503.93 FEET; 3) ALONG THE NORTHERLY BOUNDARY OF LOT 2, MATTERHORN P.U.D., S53°56'23"W, A DISTANCE OF 44.81 FEET; 4) ALONG THE EASTERLY BOUNDARY OF LOTS 2, 3, 4, 5 AND 11 OF SOUTH MESA SUBDIVISION AND THE SOUTHERLY EXTENSION THEREOF, N00°19'07"W, A DISTANCE OF 561.00 FEET; 5) N89°51'53"E, A DISTANCE OF 10.71 FEET; 6) N09°43'23"E, A DISTANCE OF 22.91 FEET; 7) 29.36 FEET ALONG THE ARC OF A NON-TANGENT CURVE TO THE LEFT, HAVING A RADIUS OF 167.50 FEET, A CENTRAL ANGLE OF 10°02'32", AND A CHORD WHICH BEARS N04°42'09"E A DISTANCE OF 29.32 FEET; 8) N00°19'07"W, A DISTANCE OF 198.22 FEET; 9) S89°58'15"W, A DISTANCE OF 7.27 FEET TO THE SOUTHEAST CORNER OF LOT B, VILLA P.U.D.; 10) ALONG THE EASTERLY BOUNDARY OF SAID LOT B, N00°19'07"W, A DISTANCE OF 226.70 FEET TO A POINT ON THE SOUTHERLY BOUNDARY OF TRACT A, RICHIE’S EXPRESS CARWASH SUBDIVISION; THENCE ALONG SAID SOUTHERLY BOUNDARY OF TRACT A, AND ALONG THE SOUTHERLY BOUNDARY OF TRACT A, MOURNING SUBDIVISION, N89°59'07"W, A DISTANCE OF 665.15 FEET TO A POINT ON THE EASTERLY RIGHT OF WAY LINE OF MCCLELLAND DRIVE AS SHOWN ON THE PLAT OF SAID MOURNING SUBDIVISION; THENCE ALONG SAID EASTERLY RIGHT OF WAY LINE, N00°39'53"E, A DISTANCE OF 20.17 FEET; THENCE 23.39 FEET ALONG THE ARC OF A CURVE TO THE RIGHT, HAVING A RADIUS OF 15.00 FEET, A CENTRAL ANGLE OF 89°21'00", AND A CHORD WHICH BEARS N45°20'23"E A JANUARY 14, 2014 READ-BEFORE VERSION B - 5 DISTANCE OF 21.09 FEET TO A POINT ON THE SOUTHERLY RIGHT OF WAY LINE OF WEST FOOTHILLS PARKWAY AS SHOWN ON SAID MOURNING SUBDIVISION PLAT; THENCE ALONG SAID SOUTHERLY RIGHT OF WAY LINE, S89°59'07"E, A DISTANCE OF 213.00 FEET; THENCE CONTINUING ALONG SAID SOUTHERLY RIGHT OF WAY LINE, 69.10 FEET ALONG THE ARC OF A CURVE TO THE LEFT, HAVING A RADIUS OF 160.00 FEET, A CENTRAL ANGLE OF 24°44'46", AND A CHORD WHICH BEARS N77°38'30"E A DISTANCE OF 68.57 FEET TO THE WESTERLY BOUNDARY OF LOT 1, RICHIE’S EXPRESS CARWASH SUBDIVISION; THENCE ALONG SAID WESTERLY BOUNDARY, S00°04'53"W, A DISTANCE OF 14.69 FEET; THENCE ALONG THE SOUTHERLY BOUNDARY OF SAID LOT 1, S89°59'07"E, A DISTANCE OF 407.26 FEET TO A POINT ON THE WESTERLY RIGHT OF WAY LINE OF SOUTH COLLEGE AVENUE; THENCE ALONG THE WESTERLY RIGHT OF WAY LINE OF SOUTH COLLEGE AVENUE THE FOLLOWING FOUR (4) COURSES: 1) ALONG THE EASTERLY BOUNDARY OF SAID LOT 1, N00°19'07"W, A DISTANCE OF 78.17 FEET; 2) CONTINUING ALONG SAID EASTERLY BOUNDARY, N00°04'53"E, A DISTANCE OF 86.83 FEET; 3) ALONG THE NORTHERLY BOUNDARY OF SAID LOT 1, N89°59'07"W, A DISTANCE OF 37.50 FEET TO THE SOUTHEAST CORNER OF LOT 3, MOURNING SUBDIVISION; 4) N00°04'53"E, A DISTANCE OF 870.84 FEET (BEING THE WESTERLY RIGHT OF WAY LINE OF SOUTH COLLEGE AVENUE AS SHOWN ON THE MOURNING SUBDIVISION, THE POUDRE VALLEY MOTORS SUBDIVISION, AND THE REPLAT OF THE SWALLOW SUBDIVISION); THENCE S89°57'07"E, A DISTANCE OF 100.00 FEET TO THE POINT OF BEGINNING. CONTAINING 89.729 ACRES MORE OR LESS AND BEING SUBJECT TO ALL EASEMENTS AND RIGHTS-OF-WAY OF RECORD OR THAT NOW EXIST ON THE GROUND. I HEREBY STATE THAT THE ABOVE DESCRIPTION WAS PREPARED BY ME AND IS TRUE AND CORRECT TO THE BEST OF MY PROFESSIONAL KNOWLEDGE, BELIEF, AND OPINION. THE ABOVE DESCRIBED TRACT IS BASED UPON PREVIOUSLY RECORDED PLATS AND DEEDS AND NOT UPON AN ACTUAL FIELD SURVEY. JOHN STEVEN VON NIEDA, COLORADO P.L.S. 31169 FOR AND ON BEHALF OF THE CITY OF FORT COLLINS P.O. BOX 580, FORT COLLINS, CO 80522 JANUARY 14, 2014 READ-BEFORE VERSION EXHIBIT C DESCRIPTION OF THE PROJECT The Project is a mixed-use redevelopment of the existing Foothills Fashion Mall, which will include a commercial/retail component, a commercial parking structure and up to 800 multi-family dwelling units on the Property. In its final form, the Project may include additional land adjoining the Property. The Project will deliver the following components: 1. Demolish portions of the existing Foothills Fashion Mall and renovate the original structure into a one-level, enclosed shopping mall with no less than 358,003square feet of habitable space. Any portions of the Mall which are removed shall be processed in such a way as to safely remove all asbestos and lead paint contaminants. Where possible all remaining materials shall be recycled such as doors, windows, cabinets, and fixtures, concrete and masonry, wood, metals, and cardboard. Compliance shall be certified by the hauler through receipts and signed affidavits. 2. Demolish various free standing buildings including the Commons at Foothills Mall buildings, the Shops at Foothills Mall buildings, the Plaza at Foothills Mall, The Corner Bakery, Christy Sports, Tres Margaritas and the Youth Activity Center building. Buildings or portions of buildings which are removed shall be processed in such a way as to safely remove all asbestos and lead paint contaminants. Where possible all remaining materials shall be recycled such as doors, windows, cabinets, and fixtures, concrete and masonry, wood, metals, and cardboard. Compliance shall be certified by the hauler through receipts and signed affidavits. 3. Construct eight new commercial buildings along South College Avenue, ranging from approximately 6,300 square feet to 38,000 square feet of gross building area. 4. Construct six new retail buildings internal to the site northwest of the existing enclosed mall ranging in size from approximately 8,500 square feet to 17,000 square feet of gross building area. 5. Construct four new restaurants ranging in size from approximately 6,000 square feet to 8,000 square feet of gross building area. 6. Construct a new Foothills Activity Center to replace the Youth Activity Center, as described in the Agreement and Exhibit F. 7. Construct a new theater building with no less than 42,500 square feet of gross building area located southeast of the new restaurants. 8. Construct a large east green area and smaller west green plazas providing no less than 14,000 square feet of landscaped park for use by the general public, to anchor the pedestrian network. 9. Construct no fewer than 978 parking spaces via a four level parking structure, and additional surface parking spaces. 10. Construct no less than 446 and up to 800 multi-family units distributed among five building ranging in height from two to five stories, and including a mix of subterranean, JANUARY 14, 2014 READ-BEFORE VERSION surface, and structured parking spaces, all to be located in the Residential Component of the Project. 11. High quality architectural and landscape design exceeding the City of Fort Collins Land Use Code minimum standards and consistent in character with the approved Project Development Plan dated February 7, 2013, including but not limited to, the following: a. Fully shielded street, parking, pedestrian, and ornamental lighting; b. Pedestrian oriented site amenities; c. Hardscape materials and design; d. Site drainage design incorporating runoff reduction measures and water quality treatment, as described in the Fort Collins Stormwater Criteria Manual, to the maximum extent practicable; and e. Variety of high-quality building materials. 12. The final building detailing, materials, colors, and other site design details for the Project are subject to Development Review staff review at the time of Final Plan and building permit to assure the approved architecture and design and high quality materials. 13. The Project shall comply with the 2012 International Building Code, as approved by the International Code Council, in addition to all other applicable City codes and legal requirements. 14. All new construction activities and deconstruction activities for the Project shall utilize the following standards that are used by the City of Fort Collins Operations Services Department for the remodeling or demolition of City buildings: (i) recycle 100% of the concrete, rock, asphalt, dirt, bricks and metal (excluding those containing hazardous materials) and (ii) achieve 70% diversion by weight or volume of all other materials. 15. The Developer and/or the District shall comply with the following commitments as discussed at the City workshop for the Project environmental sustainability: a. Implement dust control measures, such as spraying water or covering stockpiles on all construction areas where there will be significant soil disturbances or heavy equipment activity, covering all loads, and minimizing airborne emissions associated with loading and unloading materials; b. Implement construction equipment emissions controls, such as using lower emissions equipment performing at Tier IV emissions levels, minimizing the use of diesel generators, avoiding residential areas with construction equipment emissions, and minimizing warm-up time for construction equipment and vehicles; c. Consider on-site renewables; d. Incorporate sustainable building materials and local materials in the Project, such as flagstone from local sources, to the extent feasible; e. Incorporate low energy use lighting, such as LED or compact fluorescents, wherever feasible in site and building functions; f. Ensure no-VOC or low-VOC emissions products are used in the Project; g. Install at least two plug-in electric vehicle charging stations and conduit for additional stations on the Project site; h. Minimize the use of asbestos containing materials in the Project; JANUARY 14, 2014 READ-BEFORE VERSION i. Incorporate water conservation measures in the Project, such as indoor high efficiency water fixtures and outdoor water features designed to maximum sustainability and water conservation; j. Minimize or prohibit vehicle idling on the Project site, including such measures as avoiding the use of drive-throughs, and installing reminder signs regarding the harmfulness of idling in delivery, parking and drop-off/pick up areas, along with other efforts to encourage reduction in vehicle idling; k. Develop and implement a master plan for waste diversion from Mall operations and public use, including establishment of a waste diversion goal that includes retailer activities, residential areas and waste generation and minimization and recycling by the general public using the Mall; l. Incorporate features to promote multifamily recycling that exceed local and industry standards; m. Install and operate recycling depots for consolidation and processing of materials in order to increase efficiency of recycling of materials from the Mall, and establish and implement a plan for reuse of cardboard generated at the Mall site; n. Install and operate public recycling containers within the public space at the Mall, and ensure that tandem recycling and trash bins are provided throughout; o. Encourage composting of food scraps from food-related activities and establishments, and install small-scale on-site composting units, such as “Earth Tubs;” p. Encourage the use of compostable materials by food vendors at the Mall, and discourage the use of Styrofoam and other non-compostable materials; q. Construct the Project using measures that will accommodate ease of future deconstruction, such as using screws instead of nails; r. Utilize soil amendments as required in the City Code; s. Use native plants as required in the Land Use Code; t. Increase the transplanting of trees so as to maximize the number of existing trees on the Mall site that are relocated on the site and preserved; u. Create an underpass from the Mall site to MAX BRT system, as provided in the Development Approvals; v. Install and operate additional bike racks/lockers at the Mall and near the bus stops, including capacity for no fewer than 1,400 bikes; and w. Promote citizen and visitor education about environmental sustainability, particularly in areas of public activities and events. x. For all portions of the Project under the control of the Developer or the District, the Project shall use the services of a single provider for recycling and waste hauling services. JANUARY 14, 2014 READ-BEFORE VERSION y. The Developer shall establish a Tenant Criteria Manual in collaboration with the City to detail specific existing City Code requirements that may apply to tenant finish projects and to highlight goals and objectives for tenant opportunities for sustainable projects. 16. In addition, the Project shall include the following off-site improvements, together with other off-site improvements as required by the Development Approvals: a. Construct pedestrian connection, for the purpose of connecting the Project to the Mason Corridor and MAX transit facility, from the Project along the existing alignment of the Larimer No. 2 Ditch extending from McClelland Street to the western property line of the Property. Pedestrian connection shall consist of a 12-foot wide concrete sidewalk, as well as a pedestrian underpass under College Avenue that is a minimum of 12’ wide with 8’ of clearance, internally illuminated, and constructed of concrete. b. Realign Larimer No. 2 Ditch from its from its current location immediately north of Red Lobster restaurant so that it flows underground in a box culvert, south within the College Avenue frontage road and day lighting at its current location immediately south of Monroe Avenue. JANUARY 14, 2014 READ-BEFORE VERSION EXHIBIT D ELIGIBLE COSTS AND ELIGIBLE IMPROVEMENTS ELIGIBLE IMPROVEMENTS ELIGIBLE COSTS Land Acquisition (for land underlying District public improvements) $ 5.5 million (Maximum amount; any surplus from other line items may not be transferred to this line item) Parking Structure 9.6 million* Demolition/ Abatement 3.9 million* Furniture, Fixture & Amenities 1.4 million* Foothills Activity Center 4.8 million (To the extent that Construction is Completed on the Foothills Activity Center and such construction conforms to the City Specifications set forth in Exhibit F hereto, as confirmed by the City Manager, any cost savings may be transferred to another line item) Pedestrian Crossing / Culvert 3.0 million (Actual cost must be paid, even if it exceeds this amount, which may require a transfer from another line item) Relocation of Larimer County Canal No. 2 (including related land acquisition costs) 2.8 million* Site Work 12.9 million* Earthwork 2.3 Site Walls 0.7 Asphalt Paving 2.5 Striping & Signage 0.3 Curb & Gutter 0.5 Sidewalks 1.5 Landscaping/Irrigation 0.6 East Lawn – Landscaping & Irrigation 2.1 East Lawn – Sidewalks/Hardscapes 0.3 West Lawn – Landscaping & Irrigation 0.9 West Lawn – Sidewalks/Hardscapes 0.1 Tree Salvage/Storage/Maintenance Replant 0.3 Off-Site Work Asphalt Patching 0.2 Off-Site Work Signals/Right Turn Lanes 0.6 Utilities 4.5 million* Sanitary Sewer 0.8 Storm Water 2.0 Water 1.0 Fire Water 0.7 JANUARY 14, 2014 READ-BEFORE VERSION Soft Costs 4.6 million (Maximum amount; any surplus from other line items may not be transferred to this line item; amounts may be adjusted among subcategories of this line item) Parking Structure A&E 0.7 FAC A&E 0.3 Engineering 1.3 Environmental/Abatement Management 1.3 Materials Testing & Geotechnical 0.6 Fort Collins URA 0.4 TOTAL $ 53.0 Million * Within the asterisked line items amounts may shift due to (1) actual costs of construction, and cost savings in one line item may be applied to cost overruns in other line items and/or (2) based on final determination by Bond Counsel of the eligible amount of public use. JANUARY 14, 2014 READ-BEFORE VERSION EXHIBIT E PROCEDURE FOR DOCUMENTING, CERTIFYING AND PAYING ELIGIBLE COSTS 1. Applicability. All capitalized terms that are not specifically defined in this Exhibit E will have the same meaning as defined in the Agreement. The Parties recognize and acknowledge that in connection with issuance and sale of District Bonds, the District Bond Documents related to such District Bonds may establish a different procedure for the requisition of District Bond proceeds, in which event that procedure shall be substituted for the procedure in this Exhibit E to the extent that they conflict with the procedures in this Exhibit E; provided, however, the Parties agree to cooperate so that the District Bond Documents or bond documents related to District Bonds will include a procedure for certifying the Eligible Costs payable under in-process construction and other contracts to permit District Bond proceeds to be applied to direct payments under such contracts. 2. Engineer. The District will select an independent licensed engineer experienced in the design and construction of public improvements in the Fort Collins metropolitan area (the “Engineer”). The Engineer shall be responsible for reviewing, approving, and providing the certificate required by paragraph 3. 3. Documentation. The District or Developer as applicable will be responsible for documenting all Eligible Costs. Eligible Costs may be certified when a pay application has been submitted by a contractor that complies with the procedure set forth in this Exhibit E or upon Completion of Construction of an Eligible Improvement. All such submissions shall include a certification signed by both the Engineer and an authorized representative of the District or Developer, as applicable. The certificate shall state that the information contained therein is true and accurate to the best of each individual’s information and belief and, to the best knowledge of such individual, qualifies as Eligible Costs. Such submissions will include copies of backup documentation supporting the listed cost items, including bills, statements, pay request forms from first-tier contractors and suppliers, conditional lien waivers, and copies of each check issued by the District or the Developer for each item listed on the statement. The District or the Developer, as the case may be, will allocate the Eligible Costs to the Eligible Improvements according to the category for each listed in Exhibit D, and each requisition shall contain an aggregate running total of the Eligible Costs in each category. Unless required by a District or Developer construction contract then being performed, statements for payment of Eligible Costs shall not include advance payments of any kind for unperformed work or materials not delivered and stored on the Property. 4. Verification, Submission, and Payment. Each payment request will be submitted to the applicable District representative and the District Bond Trustee for review within ten (10) business days. Such review is for the purpose of verifying that the work represented in each payment request and supporting documentation complies with the requirements of this Agreement. Upon the earlier of approval of such documentation or expiration of the ten (10) business day period, the District Bond Trustee will make payments of Eligible Costs as set forth in such requisition request from moneys on deposit in the Project Fund. A copy of each payment request will also be sent to the City concurrently with submittal to the Bond Trustee. JANUARY 14, 2014 READ-BEFORE VERSION EXHIBIT F CITY SPECIFICATIONS FOR FOOTHILLS ACTIVITY CENTER The Foothills Activity Center (also referred to as “FAC”) shall be constructed consistent with Resolution 2006-096, of the City Council of the City of Fort Collins, which established a “Leadership in Energy and Environmental Design” green building certification goal for new municipal buildings. The FAC shall include a minimum total of 24,705 square feet (usable programming space plus circulation space). The FAC shall incorporate the following programming spaces following the schematic layout that is attached to determine space needs. The terms of this Exhibit F shall govern the design and specifications for the FAC, except as otherwise agreed in writing by the parties as the final design and construction of the FAC proceeds. Program Square Feet (*) Lobby Area (Including stairs and elevator) 1535 sf Front Desk 180 sf IT Closet 200 sf Offices (x4), work & copy area 900 sf (2) Child Development Rooms 900 sf 1 Multi-Purpose Room (lower level) 1000 sf Lower level storage 200 sf Lower Level Restrooms 400 sf 2-3 Multi-Purpose Rooms (2 nd Floor) 2700 sf 2 nd floor storage room 400 sf 2 nd floor restrooms & IT space 700 sf 3 rd floor Fitness/Dance Room with Storage 1690 sf Cardio/Weight Room 2300 sf Gymnasium 5820 sf Changing Room (2) with lockers 600 sf Gym Storage 300 sf Top floor tumbling room 2165 sf 21,990 sf *Excludes Circulation The Foothills Activity Center must meet or exceed the following criteria: • The FAC must meet City approved design standards: http://www.fcgov.com/opserv/design-standards.php -- LEED GOLD certifiable at a minimum. Building to be certifiable as meeting the LEED GOLD standard, with all required documentation and assurances provided to the City in a manner and time that would allow for possible certification. • The Developer must coordinate weekly and upon request with the City of Fort Collins, Operation Services Department to ensure the project management team has access to all information regarding this project. JANUARY 14, 2014 READ-BEFORE VERSION • The Developer must participate in an integrated design program for the FAC, and conform to the new requirements for Fort Collins Utilities Integrated Design Assistance Program (IDAP) described at: http://www.fcgov.com/utilities/business/conserve/rebates- incentives/integrated-design-assistance • Design lobby area so as to discourage loitering in that space. (Parents waiting to pick up their child will be accommodated in an alternative area.) • Interior finishes must meet or exceed the quality of finishes at NACC (Northside Aztlan Community Center). o Fitness/Dance floor and Gymnasium floor must meet or exceed the Ponder quality of the wood floor. o All finishes will be approved by the City Recreation Director o The specification for the gym floor at Northside Aztlan Center is attached • All spaces must be designed so as to be suitable for usage by both youth and adults (Furniture sizes, restroom fixture heights, etc.) • A space study is attached for planning and discussion purposes only. Final design of FAC space shall be subject to review and approval by the City Recreation Director. • Upon completion of record drawings, the electronic media (cad or revit) files must be provided to the City of Fort Collins, Operation Services Department. • All building systems (such as, for example, plumbing, mechanical and heating, ventilation and air conditioning) shall be designed and constructed to be independent and separate from the systems for the remainder of the Mall A commissioning process to demonstrate and inform appropriate City staff regarding all such building systems shall be carried out in advance of transfer of the FAC to the City. • Gymnasium Equipment must include a keypad controlled Porter system or equivalent and 6 basketball standards, wrestling mat hoist, volleyball standard and divider net that can be stored in the ceiling of the gymnasium. • Gymnasium acoustical sound barrier system must be agreed upon in advance by the City Recreation Director. • Signage must be provided on FAC entryways and on both sides of the exterior of the FAC Gymnasium with the City of Fort Collins logo and the words Foothills Activity Center, and must be consistent with the standards for signage on City facilities, all to the extent allowed by City of Fort Collins sign code. • The FAC must be designed and constructed to allow the City to secure it with the City’s access control system. • City fiber must be provided to allow City staff access to City network system. o This must be closely coordinated with City’s IT department. o Installation must be carried out by H&H Data, the City’s fiber contractor. • Conduit must be installed throughout the FAC to enable the City to add security cameras and wiring during a designated time in the construction process. • Casework must be provided for a front desk that meets the quality standards at NACC. • Cabinets and sinks must be provided in child development rooms and multi- purpose rooms that meet the quality standards at NACC. JANUARY 14, 2014 READ-BEFORE VERSION • Data ports and electrical outlets must be provided throughout the FAC as specified by the City Recreation Director. • HVAC communication system must be provided that ties into the current City Operation Services system, which is from Johnson Controls. • IT closets must be provided that meet City standards. • Full public access from the FAC to the parking structure walkway, and access to and from the Mall Common Area during hours when the Mall is open to the public. If determined to be technically feasible, the City may include in the City Specifications an exterior doorway on the ground level to provide direct access to and from the FAC lobby, or may add such a doorway in the future. • Cardio/Weight Equipment satisfactory to the City must be provided to accessorize the 2000 sq. ft.cardio area (Cardio equipment to meet or exceed Star Tek recumbent bike model E-RB, upright bike model E-UB, stairmill model E-SM, treadmill model E-TRx, cross trainer model E-CT, impact strength selectorize equipment, dumbbells 5 lbs. – 80 lbs. plus rack, free weight equipment specified by staff). The cardio area will require 4 wired TV’ outlets by the cardio area. JANUARY 14, 2014 READ-BEFORE VERSION FDP MAJOR AMENDMENT PLANNING AREA 2 DECEMBER 20, 2013 Do not scale prints. Use figured dimensions. ©Architects 2013 JPRA A204 Bulding Elevations Main Mall - East Match Line Match Line Match Line Match Line 6 Scale: East Mall 1/8”=Elevation 1’-0” 5 Scale: East Mall 1/8”=Elevation 1’-0” KEY PLAN SCALE - Not to Scale 20’-0" 20’-4" E-4 E-9 E-7 C-1 C-2 E-9 S-1 Transformer Truck Dock Service Area (shielded by Parking Garage in foreground) 59’-0" 27’-6" W-1 E-15 B-1 P-8 P-2 S-6 Section cut through FAC 40’-8" 40’-8" 30’-9" 59’-0" 27’-6" 20’-0" 20’-0" 20’-4" 26’-6" 41’-0" 26’-6" 21’-6" 22’-0" 24’-0" 20’-0" 20’-0" 20’-0" 22’-0" 23’-0" 25’-0" 22’-0" S-2 S-2 E-9 P-13 B-1 E-13 E-9 P-12 P-12 E-2 E-8 C-3 T-1 B-1 C-2 B-4 E-9 E-5 E-8 FDP MAJOR AMENDMENT PLANNING AREA 2 DECEMBER 20, 2013 Do not scale prints. Use figured dimensions. ©Architects 2013 JPRA A211 Bulding Elevations FAC 1 Scale: North FAC 1/8”=Elevation 1’-0” 2 Scale: South 1/FAC 8”=1’-Elevation 0” KEY PLAN SCALE - Not to Scale 100’-0" First Level Parapet 160’-4" 100’-0" First Level Parapet 154’-6" Parapet 154’-6" Parapet 160’-4" P-2 P-6 E-13 P-2 E-1 E-13 P-2 E-1 E-13 P-2 P-6 E-13 Main Mall Main Mall Parking Deck Parking Deck P-9 Matthews Paint to match B.M. Willow Creek 1468 General Notes: 1. Roof mounted mechanical to be located in designated mid-roof zone to allow building parapet to provide required screening. 2. Wall mounted meters to be located within building passage ways which are not facing College Ave. Meters will be screened by locating behind changes in building wall offsets. RE: 505 Materials & Elevations package 3. Transformers will be screened by landscaping beds. RE: 505 Materials & Elevations package RE: Studio Outside landscape package E-13 Sto Corp or Dryvit to match B.M. Squirrel Tail 1476 JANUARY 14, 2014 READ-BEFORE VERSION JANUARY 14, 2014 READ-BEFORE VERSION JANUARY 14, 2014 READ-BEFORE VERSION JANUARY 14, 2014 READ-BEFORE VERSION JANUARY 14, 2014 READ-BEFORE VERSION JANUARY 14, 2014 READ-BEFORE VERSION JANUARY 14, 2014 READ-BEFORE VERSION JANUARY 14, 2014 READ-BEFORE VERSION JANUARY 14, 2014 READ-BEFORE VERSION JANUARY 14, 2014 READ-BEFORE VERSION JANUARY 14, 2014 READ-BEFORE VERSION JANUARY 14, 2014 READ-BEFORE VERSION Field Code Changed EXHIBIT G ESTIMATED REVENUES FROM DISTRICT PROPERTY TAXES AND PROPERTY TAX INCREMENT Year 50 mills Retail Property Tax 50 Mills Residential Property Tax Retail Property Tax TIF Residential Property Tax TIF 2013 -- - - - 2014 $ 650,079 - - - 2015 650,079 - - - 2016 171,815 - - - 2017 1,410,397 - $ 1,242,559 - 2018 1,478,038 $ 136,533 1,357,058 $ 231,115 2019 1,478,038 136,533 1,334,161 231,115 2020 1,507,599 280,785 1,384,199 475,294 2021 1,507,599 280,785 1,360,844 475,294 2022 1,537,751 286,401 1,411,883 484,800 2023 1,537,751 286,401 1,388,061 484,800 2024 1,568,506 292,129 1,440,121 494,496 2025 1,568,506 292,129 1,415,822 494,496 2026 1,599,876 297,971 1,468,923 504,386 2027 1,599,876 297,971 1,444,139 504,386 2028 1,631,874 303,931 1,498,302 514,474 2029 1,631,874 303,931 1,473,021 514,474 2030 1,664,511 310,009 1,528,268 524,763 2031 1,664,511 310,009 1,502,482 524,763 2032 1,697,801 316,209 1,558,833 535,259 2033 1,697,801 316,209 1,532,531 535,259 2034 1,731,757 322,534 1,590,010 545,964 2035 1,731,757 322,534 1,563,182 545,964 2036 1,766,393 328,984 1,621,810 556,883 2037 1,766,393 328,984 1,594,446 556,883 2038 1,801,720 335,564 1,654,246 568,021 JANUARY 14, 2014 READ-BEFORE VERSION Field Code Changed EXHIBIT H PERMITTED USES OF FOOTHILLS MALL FUND The Parties agree that the long-term viability and success of the Project will be improved by creating a Foothills Mall Fund to be held by the District. It is the purpose of this fund to provide resources for the continued upgrade and enhancement of the Project. Specifically the upgrades and enhancements are intended to preserve the competitive position of the Project in the market and maintain and/or enhance the overall aesthetic quality of the Project. The Parties acknowledge and agree that any expenditure of funds on deposit in the Foothills Mall Fund shall be constrained by and must be in compliance with applicable State and federal law governing the use of such funds, which, in part, will be governed by the source of such funds. In addition, the Parties acknowledge that the District may only undertake activities and expend funds for purposes authorized by the Special District Act. Subject to the foregoing limitations, the following improvements are eligible for reimbursement from the Foothills Mall Fund: • Energy efficiency, renewable energy, and similar upgrades or improvements that reduce the environmental impact of the project; • Upgrades and improvements to or additional public amenities such as parks, plazas, community gathering areas and streetscapes that enhance the aesthetics of the Project; • Upgrades and improvements to the pedestrian, bicycle, and vehicular circulation and accessibility of the site, both interior and exterior to the Project site; • Upgrades and improvements to the Project for public health and safety, either to comply with new standards/regulations or to address unforeseen issues on the site or from the development of the Project; • Capital costs associated with the construction of additional gross leasable area, as approved by the City Manager; • In entirety or part, contributing to Capital Improvement Projects as identified by the City of Fort Collins in the adopted Capital Improvement Plan; and • Upgrades, improvements, or replacement of essential infrastructure required to maintain the overall character of the Project, including: o Replacement or maintenance of the roof, o Maintenance of significant exterior common area features, such as fountains, ice rinks, or similar features o Maintenance of significant interior common area features, including fountains, fire places, or similar features The following improvements are not eligible for reimbursement from the Foothills Mall Fund: • Any operating or maintenance costs typically funded by the District from the District Operating Revenues, except as set forth above; • Any operating or maintenance costs typically funded by the Developer from common area maintenance fees, charges, or assessments, except as set forth above; JANUARY 14, 2014 READ-BEFORE VERSION Field Code Changed • Any capital cost typically associated with the on-going maintenance of the Project, including but not limited to: o Repaving of parking lots; o Replacement of landscaping identified on the Development Approvals; o Replacement of site lighting, signs, or other decorations; and o Any capital cost associated with releasing the original Gross Leasable Area, unless otherwise noted. JANUARY 14, 2014 READ-BEFORE VERSION Field Code Changed EXHIBIT I MAXIMUM ANNUAL NET DEBT SERVICE ON THE DISTRICT BONDS Without the prior written consent of the City Manager, the District Bonds shall be structured so that the debt service requirements on the District Bonds do not exceed the maximum annual Net Debt Service amounts set forth below. Neither the total maximum nor the maximum annual Net Debt Service are intended to limit the amount of Pledged Revenue that can be collected in any year and used to pay debt service payments then due on the District Bonds or deposited to a Supplemental Reserve Fund, if required by the District Bond Documents. Year Maximum Annual Net Debt Service Requirements 2013 $ 0(1) 2014 0(1) 2015 0(1) 2016 6,270,450 2017 6,270,450 2018 6,280,450 2019 6,369,598 2020 6,806,078 2021 6,899,644 2022 7,081,282 2023 7,182,472 2024 7,368,326 2025 7,470,324 2026 7,663,578 2027 7,768,716 2028 7,970,850 2029 8,079,756 2030 8,285,546 2031 8,402,570 2032 8,615,088 2033 8,737,024 2034 8,957,212 2035 9,083,724 2036 9,314,968 2037 9,442,738 2038 9,678,442 (2) Total: $ 179,999,286 ________________ (1) The debt service on the District Bonds in these years is expected to be paid from capitalized interest. (2) Additional debt service requirements on the District Bonds are expected to be paid from amounts on deposit in the reserve fund securing the District Bonds. JANUARY 14, 2014 READ-BEFORE VERSION S-3 W-1 E-9 E-21 E-21 E-7 E-4 E-9 E-7 P-2 W-1 E-15 B-1 P-8 P-2 T-4 C-3 C-1 C-2 E-9 T-4 S-1 S-3 P-2 P-2 E-14 S-5 B-4 C-2 C-2 S-6 S-6 P-9 E-14 C-2 Section cut through FAC Service Area (shielded by Building 1F/ gate in foreground) Transformer Service Area (shielded by Building 1F in foreground) Service Area (shielded by Building 1F in foreground) Service Area (shielded by Building 1J in foreground) Truck Dock Service Area (shielded by Parking Garage in foreground) 59’-0" 27’-6" 20’-0" 20’-4" E-4 E-9 E-7 W-1 E-15 B-1 P-8 P-2 C-1 C-2 E-9 S-1 S-6 Section cut through FAC TTransformer Truck Dock Service Area (shielded by Parking Garage in foreground) General Notes: 1. Roof mounted mechanical to be located in designated mid-roof zone to allow building parapet to provide required screening. 2. Wall mounted meters to be located within building passage ways which are not facing College Ave. Meters will be screened by locating behind changes in building wall offsets. RE: 505 Materials & Elevations package 3. Transformers will be screened by landscaping beds. RE: 505 Materials & Elevations package RE: Studio Outside landscape package JANUARY 14, 2014 READ-BEFORE VERSION