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HomeMy WebLinkAbout113 - 08/19/1986 - AUTHORIZING AGREEMENT WITH DOWNTOWN DEVELOPMENT AUTHORITY AND R.P. PLAZA, LTD., FOR THE CONSTRUCTION ORDINANCE NO. 113, 1986 BEING AN ORDINANCE AUTHORIZING THE CITY TO ENTER INTO AN AGREEMENT WITH THE FORT COLLINS DOWNTOWN DEVELOPMENT AUTHORITY AND R.P. PLAZA, LTD. , A COLORADO LIMITED PARTNERSHIP, FOR THE CONSTRUCTION OF CERTAIN PUBLIC IMPROVEMENTS WITHIN THE FORT COLLINS DOWNTOWN DEVELOPMENT DISTRICT WHEREAS, the Fort Collins Downtown Development Authority Board of Directors has authorized its Executive Director to enter into an agreement between the City of Fort Collins, R.P. Plaza, Ltd., a Colorado Limited Partnership, and the Downtown Development Authority for the construction of certain public improvements within the Downtown Development District ; and WHEREAS, said agreement is in furtherance of the goals and objectives of the Plan of Development of the Fort Collins Downtown Development Authority and will promote the health, safety, prosperity, security and general welfare of the inhabitants of the Downtown Development Authority 's District, citizens of the City of Fort Collins, and people of the State of Colorado and will have especial benefit to the properties within the Downtown Development Authority District ; and WHEREAS, the Council of the City Fort Collins desires to enter into such agreement with the Fort Collins Downtown Development Authority and R.P. Plaza, Ltd., a Colorado Limited Partnership, for the construction of certain public improvements relating to the Robinson Piersal Plaza project ; and WHEREAS, R.P. Plaza, Ltd., a Colorado Limited Partnership, and the Fort Collins Housing Authority have satisfactorily demonstrated that as a part of the project , 67 units of elderly housing, thirty percent (30%) of which are to be exclusively reserved for low-income residents, shall be built as a part of the Robinson Piersal Plaza project . NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS: Section 1. That the City Manager and City Clerk be, and they hereby are authorized to execute an agreement with the Fort Collins Downtown Development Authority and R.P. Plaza, Ltd. , a Colorado Limited Partnership, for the construction of certain public improvements in the amount of $850,000 (including sidewalks, retaining walls, utility relocation, and College Avenue improvements ) and onsite improvements for underground parking relating to and associated with Robinson Piersal Plaza project. A copy of the subject agreement is attached hereto and incorporated herein by this reference. Section 2. That the City be, and hereby is authorized to perform the obligations of said agreement as contained therein, to issue and sell bonds according to the terms of the agreement . Section 3. That nothing contained in said agreement or herein shall be deemed to constitute a pledge of the funds, monies, or credits of the City except as the funds of the City may be appropriated in any fiscal year to the payments under said agreement . Introduced, considered favorably on first reading, and ordered published this 5th day of August, A.D. 1986, and to be presented for final passage on the 19th day of August, A.D. 1986. -�' Z -- ATTEST: Mayor Awla .�i City Clerk Passed and adopted on final reading this 19th day of August, A.D. 1986. Mayor ATTEST: City Clerk AGREEMENT THIS AGREEMENT entered into this day of 1986, (Agreement ) , by and between the Fort Collins Downtown Development Authority , a body corporate and politic, having its principal offices at 102 Remington Street , Fort Collins , Colorado , 80524 , (the "DDA" ) ; the City of Fort Collins , a body corporate and politic , having its principal offices at 300 LaPorte, Fort Collins , Colorado ; and R . P . Plaza, Ltd . , a Colorado Limited Partnership, having its principal offices at 812- 8th Street , Greeley , Colorado , 80631 , (the "Developer" ) ; WITNESSETH : WHEREAS , pursuant to C . R .S . 31 -25-801 , et sec . the City Council of the City of Fort Collins , Colorado, ("City" ) established the DDA pursuant to Ordinance No. 45-1981 adopted on a April 21 , 1981 ; and , WHEREAS , the DDA is authorized by the provisions of Title 31 , Article 25 , Part 8 of the Colorado Revised Statutes , (the "Downtown Development Authorities Law" ) to construct public improvements within the Downtown Development Authority District ; and , WHEREAS , the Developer desires to construct private improvements upon real property located within the Downtown Development Authority District which improvements are expected to annually generate $147 , 000. 00 in tax increment funds for a period of not less than 15 years for the use and benefit of the DDA; and , WHEREAS , the DDA desires to construct certain public improvements on public property adjacent to the Site of the Developer 's Project which public improvements are in the vital and best interests of the City and its residents , and in accord with the public purposes and provisions of the applicable state and local laws under which DDA 's objectives have been undertaken and are being carried out; and, WHEREAS , pursuant to Section 31-25-807 (h ) , Colorado Revised Statutes , the DDA has the power to "make and enter into all contracts necessary and incidental to the exercise of its powers and the performance of its duties" ; NOW THEREFORE , consideration of the promises and mutual covenants of the parties hereto, each of them does hereby covenant and agree with the other as follows: I . DEFINITIONS As used in this Agreement, the following terms shall have the following meanings : Project : The construction of a retail shopping center consisting of a Safeway Grocery Store and various other retail shops and offices and the construction of a 67 unit Low Income Elderly Housing Facility 30% of such units being reserved for qualified low income and handicapped individuals and families upon the Site. Site: The real estate underlying the Project . The total area included is 120 , 000 square feet. The Site consists of 2 private property legally described as follows : Lots 1 - 16 , inclusive , Block 124 , City of Fort Collins , County of Larimer , State of Colorado Tax Increment : That amount of real property taxes assessed upon the Site paid into the special fund annually in accordance with Section 31 -25-807 ( 3) , Colorado Revised Statutes . II . DDA COMMITTMENTS 1 . In consideration of the construction by Developer of public improvements described in Article 2 , Paragraph 2 below, DDA agrees to reimburse Developer for its cost thereof in an amount not to exceed the actual cost of construction (which cost shall not include any development fees or construction management fees ) and in no event more than $850, 000 . 00 . 2 . The public improvements for which the DDA shall be obligated to pay shall be as follows: Improvement Estimated Cost a . Offsite Public Improvements , $508, 270. 00 Public Street Improvements and Public Way Landscaping as described in the plans and specifications to be attached as Exhibit A. b. Underground Parking Garage $323 , 066 . 00 owned by FCHA . C. Contingency. $ 18 , 644. 00 3 . The payment for which the DDA is obligated hereunder is specifically contingent upon the happening of the following events : A . The value of the Project (denominated in the total cost 3 of assessable improvements ) upon the completion of the Project will be not less than $9 , 620 , 050 . 00 (NINE MILLION SIX HUNDRED TWENTY THOUSAND FIFTY DOLLARS ) . B. Developer certifies to the Larimer County Assessor its costs expended in the Project which shall be no less than $9 , 620 , 050. 00 (NINE MILLION SIX HUNDRED TWENTY THOUSAND FIFTY DOLLARS ) . Such certification shall include consent by Developer to establishing assessed value of improvements based upon the cost certified. C . The Project shall be valued by the Assessor of the County of Larimer , State of Colorado , for tax assess- ment purposes at not less than $1 , 448 , 310. 00 which will annually generate tax increment funds of not less than $147 , 000 . 00 based upon 1985 tax levies of the various taxing entities authorized to levy ad valorem taxes on said Project . Developer shall certify to the Assessor of the County of Larimer , State of Colorado , of its approval of the assessed valuation $1 , 448 , 310. 00 for said Project . D . Developer and Fort Collins Housing Authority enter into agreements for the construction of a 67 unit residential elderly housing project (Phase II , Robinson-Piersal Plaza ) and the completion of said residential facility at a cost of not less than $3 , 100 , 000 . 00. E . Following completion of construction of public 4 improvements , Developer provides an Architect 's Certificate to DDA certifying the costs of the public improvements constructed hereunder and that such public improvements meet applicable federal , state and local laws and ordinances and comply with the plans and specifications to be (attached hereto as Exhibit A incorporated herein by reference ) . F . City issues tax increment bonds or bond anticipation notes in the principal amount of $850 , 000. 00 (EIGHT HUNDRED FIFTY THOUSAND DOLLARS ) plus issuance costs at an interest rate not to exceed 9. 5% for a term of not to exceed 15 years . 4 . In the event that Developer is unwilling or unable to perform the obligations set forth in subparagraphs A through E , inclusive , of Paragraph 3 above , cr if City is unable to issue Bonds in accordance with subparagraph F of Paragraph 3 , above , DDA shall be released from its obligation , set forth herein , to pay for said public improvements and this Agreement shall be null and void and of no further effect . 5 . DDA shall make payment required in Paragraph 3 above within 30 days following the receipt of the proceeds of the sale of tax increment bonds or bond anticipation notes which bonds or bond anticipation notes shall be issued by the City of Fort Collins for the use and benefit of DDA pursuant to the Downtown Development Authorities Law within 180 days following the certification by the Larimer County Assessor 's office 5 establishing a valuation for assessment of the Project and Site which would result in an annual tax increment in a minumum amount of $147 , 000 . 00 . In the event that ( 1 ) the City of Fort Collins is unable to sell tax increment bonds or bond anticipation notes secured as provided herein and exempt from securities law registration to finance the payment to Developer hereunder , and , (2) , if the Developer has met each and every contingency required by paragraph 3 above, the Developer shall purchase such bonds or bond anticipation notes upon those terms and conditions set forth below which shall be payable from the special funds of the City established pursuant to and in accordance with C .R .S . 31-25- 807(3 ) (a ) (II ) . Said bonds or bond anticipation notes shall not constitute an indebtedness of the City of Fort Collins within the meaning of any constitutional or statutory limitations. Said bonds or bond anticipation notes , including interest thereon , shall be payable soley from the tax increment revenues and other funds pledged to the payment thereof and such loan or advance does not constitute a debt of the municipality within the meaning of any constitutional or statutory limitations . Further , such bonds or bond anticipation notes shall be subordinate to any notes or bonds previously issued by the City for the use and benefit of the DDA. If purchased by Developer , the bonds or bond anticipation notes shall be payable in substantially equal payments of principal and interest over a term of not less than 15 years at a net effective interest rate of not more than 9 . 5% with such 6 provisions for prior redemption as the City and Developer may agree upon interest accruing from the date that Developer would have been entitled to receive payment if bonds were issued to finance said payment . Developer specifically acknowledges that DDA and City have not made and , by provisions of this Agreement are not making any representations , promises or covenants relating to the tax status of the interest which may be paid to Developer on such bonds or bond anticipation notes . III . DEVELOPER 'S COMMITTMENTS 1 . Developer will construct its proposed Project in full. Construction thereof shall be in accord with the accepted standards of the industry and shall conform with the plans and specifications presented to DDA . A resume of the Project is attached hereto as Exhibit B , along with the legal description of the boundaries of the Project. Developer guarantees to DDA that the additional value (denominated in total cost of the assessable improvements , added to the Project Site upon completion of the project will be not less than $9 , 620 , 050. 00 (NINE MILLION SIX HUNDRED TWENTY THOUSAND FIFTY DOLLARS ) . Such projected cost is based upon the budget estimate set forth in Exhibit C . This amount reflects the amount to be invested by Developer, less the 1985 assessed value of the site. Developer agrees to certify to the Larimer County Assessor of its costs expended in the Project which shall be no less than as set forth above. Such certificate (s ) shall include consent to the establishment of the assessed value of the improvements based upon the cost certified. 7 If, for any reason , Developer fails to complete its Project as agreed herein , Developer hereby agrees that DDA shall be released from its obligations hereunder and that this Agreement shall be null and void and of no further effect. 2. Developer guarantees that the low-income elderly housing portion of the Project (Phase II , Robinson-Piersal Plaza ) shall be constructed so as to include 67 residential units which facility shall cost Developer no less than $3 , 100 , 000. 00. 3. If the Developer shall sell all or any part of the Project before the DDA has recaptured the sum of $2 , 212 , 125 . 00 (TWO MILLION TWO HUNDRED TWELVE THOUSAND ONE HUNDRED TWENTY FIVE DOLLARS ) in a tax increment funds , the instruments conveying Developer 's interest in said Project shall contain a provision executed by the Developer and all subsequent transferees , requiring that the subsequent transferees shall be bound by this Agreement. 4. Developer shall construct public improvements for which the DDA is obligated to pay which construction shall be in accordance the accepted standards of the industry and , further , in compliance with applicable federal , state, and local statutes , laws , ordinances and rules and regulations and the submitted plans and specifications which shall be attached hereto as Exhibit A and incorporated herein by reference upon review of said plans and specifications by DDA . In the event that said public improvements are damaged or destroyed prior to completion of the Project and certification to the Larimer County Assessor 8 of the costs expended in the Project , Developer shall reconstruct said public improvements at no additional expense or cost to DDA. Further, Developer shall maintain builders risk insurance during the course of construction until the completion of said Project. 5. In the event that real property taxes assessed against said Project are reduced due to a reduction in the mill levies imposed by various taxing entities authorized to levy taxes upon Project which reduction causes the tax increment generated by Project to fall below $ 147 , 000. 00 in any year during the 15 years following the completion of the Project , Developer shall annually pay directly to City for deposit in DDA Tax Increment Special Fund the difference between $147 , 000 . 00 and the tax increment generated by Project following the reduction in mill levies . Further, during the 15 years following the completion of the Project, Developer , its heirs , assigns and transferees agree not to seek reassessment of said Project and, further , not to seek tax exempt status for said Project. IV . CITY COMMITMENTS 1 . The City shall in good faith make every reasonable effort to sell a sufficient amount of tax increment bonds or bond anticipation notes, at one time or from time to time, so that at the time required for payment to Developer in accordance with Article II , Paragraph 5 , above, there will be or have been sufficient net proceeds from such bonds or note sales , to pay in full the obligation of the DDA to the Developer hereunder. Nothing herein shall be construed to prohibit the City from 9 issuing and selling any revenue bonds or bond anticipation notes other than the bonds or bond anticipation notes to be issued to secure funds for payment to the Developer or any bond anticipation notes or from applying the proceeds of such bonds or notes for any lawful purpose determined by the council , even though all or a portion of the payment due by the DDA to the Developer hereunder may then be outstanding and unpaid. V. INSURANCE 1 . In addition to Builder 's Risk insurance required in Article III , Paragraph 3 , above , the Developer , its successors and assigns shall during their ownership of the Project purchase at their sole costs and expense and continually maintain in effect insurance against such risks , both generally and specifically with respect to the Project , as are customarily insured against in developments of like size and character , and including, but not limited to: A. Casualty Insurance insuring the Project to its full replacement value against any loss or damage including but not limited to damage by fire , lightning, winds , storm, hail , explosion , collapse, vandalism, malicious mischief and damage from aircraft and vehicles and smoke damage and such other risks as are from time to time included in standard all risk coverage endorsements in the State of Colorado. The minimum amount of Developer 's coverage of the premises comprising the project shall be the insurable value of the Project as determined by the replacement cost approach without allowance for depreciation . 10 B. Boiler and Pressure Vessel Insurance in an amount sufficient to protect the private improvements. C . Comprehensive General Liability Insurance including blanket contractual liability insurance and comprehensive automobile insurance against liability for personal injury , including death, or persons resulting from injuries occurring on or in any way related to the private improvements in a minimum amount of $3 , 000 , 000 . 00 per occurrence and against liability for damage to property occurring on or in or relating in any way due to the private improvements in the minimum amount of $3, 000 , 000 . 00 per occurrence . D . Physical Damage Insurance insuring the DDA 's full insurable interest in the costs identified to be recaptured from the tax increment until said costs are recaptured. E . General Insurance Provisions - all other forms of insurance reasonable required generally by the State of Colorado for entities such as the Developer including, without limitation, Workers Compensation Insurance , with minimum limits at least equivalent to those minimum amounts required by the State of Colorado from time to time during the construction and operation of the private improvements. Such insurance coverage may consist of a combination of primary and umbrella policies , with deductibles of no greater than $50 , 000. 00. Each policy obtained pursuant to this section as outlined above shall name DDA as an additional insured as its interest may appear . The insurance coverage to be provided by Developer shall also be extended to 11 cover the indemnities provided for in Article V, Section 1 , hereof. DDA shall be named as an additional insured on any and all insurance policies procurred by Developer upon Project . VI . INDEMNIFICATION 1 . During the course of construction of said Project, in addition to builders risk insurance as required in Article III , Paragraph 3 above, Developer shall maintain casualty insurance , naming the DDA as an additional insured, which insurance shall be in a minimum amount of $3 , 000 ,000 . 00 per occurrance. Said general liability insurance shall include blanket contractual liability insurance and comprehensive automobile insurance against liability for personal injury , including death, and property damage . In the event that such insurance is insufficient to pay for any damages resulting from the construction of the public improvements by Developer , Developer hereby agrees to indemnify and hold the DDA, its officers , agents and employees , harmless from any and all liability , claims , demands , losses , costs , damages , expenses , and causes of action of every kind and description or claims of any character, including liability and expenses in connection with the loss of life, personal injury or damage to property, or any of them, brought because of any injuries or damages received or sustained by any person , persons, or property resulting from or rising out of the construction of said public improvements occasioned wholly or in part by any act or omission on Developer 's part or on the part of its agents , contractors , 12 invitees or employees . This requirement shall apply with equal force to work performed by the Developer, the architect, contractors or any subcontractors or any other party directly or indirectly employed by or retained by the Developer . The DDA and their officers , agents and employees shall be additionally indemnified for, but not limited to , any claims arising out of the construction of the public improvements , including safe guarding the work and the use of acceptable materials ; claims arising because of any act , omission , neglect or misconduct of the architect, contractors or any subcontractors or any other party direct and indirect employed by or retained by the Developer ; claims arising from infringment of patent, trademark or copyright; claims arising out of workers compensational ; claims arising from the violation of any law, ordinance, order or decree. 2 . During the construction of said public improvements , Developer shall maintain separate books and records relating to the costs of said public improvements and, upon reasonable notice, shall produce said books and records for examination by the DDA for its designated representative . 3 . In the event that said public improvements are not constructed in accordance with applicable federal, state, or local statutes, laws, ordinances and rules and regulations , Developer , at its sole costs and expense, shall remedy said violations within 30 days of notice of said violations. 4. Developer hereby agrees that in the event that the cost 13 of said public improvements exceeds the sum of $850, 000 . 00 , Developer shall complete construction according to plans and specifications of said public improvements and shall bear any excess cost incurred therewith. VII . REMEDIES 1 . In the event of any default in , or breach of , this Agreement or any of its terms or conditions by either party hereto, or any successor in interest to such party, (or successor ) shall, upon written notice from the other, proceed immediately to cure or remedy such default or breach , and in any event shall cure any such default or breach within 60 days of receipt of such notice. In case such action is not taken or is not diligently pursued, or the default or breach cannot be cured or remedied withing the aforesaid time , the aggrieved party may institute such proceedings as may be necessary and desirable in its opinion to cure the default or breach, including but not limited to proceedings to compel specific performance by the party in default or breach of its obligations , the parties hereto acknowledging that once construction has commenced damages to Developer and DDA, as the case may be, are incapable of measurement . Any costs incurred by the non-defaulting party to cure or remedy any default or breach shall be recoverable by said party from the defaulting party. 2. Notwithstanding any provision contained herein to the contrary, the obligations of the City shall be limited soley to the issuance of bonds or bond anticipation notes as required in 14 Article IV above provided, however , any obligations of the City issued as required herein shall be secured by a pledge of funds including tax increment revenue and such other funds as may be pledged by the City expected to be sufficient for the payment of principal and interest thereon. VIII . SPECIAL PROVISIONS 1 . This Agreement shall be deemed to had been made in the State of Colorado and its validity, construction, performance, breach and operation shall be governed by the laws of the State of Colorado. No right or remedy conferred hereunder is exclusive of any other right or remedy , but each such right or remedy is accumulative and in additon to any other right or remedy under or by law provided, and may be exercised without exhausting and without regard to any other right or remedy. No waiver by the Developer or DDA of any defect shall affect any subsequent default or breach of duty or contract or shall impair the exercise of any right or remedy occurring upon any default or the exercise thereof, nor shall it be construed as a waiver of any such default or breach of duty or contract or action therein . 2 . The DDA shall have the right upon reasonable notice to inspect any and all records , contracts , financial statements , ledgers or written documents from, to or in possession of the Developer which relate to the construction of the public improvements or the costs thereof. This right of inspection shall apply to not only those records and documents that are within the physical control and custody of the Developer or also 15 any records , statements , and documents that may be within the custody and control of third parties or generated by third parties in the performance of the obligations and responsibilities hereunder, including, but not limited to the architect , contractors and also contractors of the Developer. 3 • Notices, demands or other communications under this Agreement by any party to the other party shall be delivered to: a . In the case of Developer to R .P . Plaza , Ltd. , a Colorado Limited Partnership , 812-8th Street , Greeley, Colorado , 80631 ; and b. In the case of the DDA to Fort Collins Downtown Development Authority , 102 Remington Street, Fort Collins, Colorado , 80524 . Attention: Executive Director . 4 . This Agreement may be supplemented or amended only by written instrument executed by the parties affected by such supplement or amendment. 5 . This Agreement shall inure to the benefit of and be binding by the parties hereto. 6. If any provision of this Agreement is held invalid, the remainder of this Agreement shall not be affected thereby, and such remainder would then continue to conform with the requirements of the applicable laws. 16 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date above written. DOWNTOWN DEVELOPMENT AUTHORITY BY: CITY OF FORT COLLINS BY : R . P . PLAZA , LTD . , A COLORADO LIMITED PARTNERSHIP BY : 17