HomeMy WebLinkAbout055 - 04/02/2013 - AUTHORIZING AND APPROVING THE EXECUTION AND DELIVERY BY THE CITY OF AN AGREEMENT WITH WOODWARD, INC,1
ORDINANCE NO. 055, 2013
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING AND APPROVING THE EXECUTION AND
DELIVERY BY THE CITY OF AN AGREEMENT WITH
WOODWARD, INC., AND RELATED DOCUMENTS,
INCLUDING AUTHORIZING THE ISSUANCE OF A BOND,
IN CONNECTION WITH AN ECONOMIC DEVELOPMENT
PROJECT RELATING TO WOODWARD, INC.; AND
PROVIDING OTHER MATTERS RELATED THERETO.
WHEREAS, the City of Fort Collins, Colorado (the “City”) is a home rule
municipality and political subdivision of the State of Colorado (the “State”) organized and
existing under a home rule charter (the “Charter”) pursuant to Article XX of the Constitution of
the State; and
WHEREAS, Woodward, Inc. (the “Company”) is a publicly traded industrial
manufacturing company with an approximate market capitalization of $2.7 billion dollars; and
WHEREAS, the Company’s headquarters are currently located in the City at 1000
East Drake Road, Fort Collins, Colorado; and
WHEREAS, the Company has had a long and successful presence in the City for
nearly 60 years; and
WHEREAS, the Company directly employs approximately 1400 people within
Northern Colorado, many of whom are employed at the Company’s headquarters within the City
and many of whom live within the City; and
WHEREAS, the Company’s operations in the City and Northern Colorado
provide significant economic benefits to the City by employing a large number of high-skilled
employees who live, work, and shop in the City, and by contributing to a vibrant and diverse
local economy; and
WHEREAS, the Company’s operations in the City and Northern Colorado
generate a substantial amount of tax revenue for the City, both directly as a business through
vendors and suppliers, and indirectly through the Company’s labor force and residents; and
WHEREAS, the Company is considering relocating its headquarters and
expanding its manufacturing and office facilities to one of several potential locations, including
locations outside of the City; and
WHEREAS, one of the potential sites is approximately 101.5 acres of real
property located in the City south of East Lincoln Avenue and north of Mulberry Street between
Lemay Avenue and Riverside Avenue (the “Property”); and
WHEREAS, the Property is located in the Plan of Development Area of The Fort
Collins, Colorado, Downtown Development Authority (the “Authority”); and
WHEREAS, in light of certain negotiations with the City and the Authority,
among other considerations, the Company has proposed constructing and installing a new
campus on the Property (the “Project”), as more particularly described in a Project Development
Plan that has been approved by the City; and
WHEREAS, the Project is a valuable urban infill project that furthers the
objectives set forth in the City’s long-range comprehensive plan, including the contribution of
high-skilled employment opportunities, tax revenue, and infrastructure improvements to the
City’s urban core; and
WHEREAS, the retention of existing business and employment in the City is the
top priority of the City’s Economic Health Strategic Plan, which has been adopted by the City
Council; and
WHEREAS, according to the Economic Health Office, the Project will prevent
high-paying primary jobs from leaving the City to other sites in Northern Colorado and
elsewhere; and
WHEREAS, the Company has requested, and staff is recommending, that the City
and the Authority enter into an Agreement with Woodward, Inc. (the “Agreement”) that will
provide for the funding of certain public improvements and other infrastructure to be funded by
Woodward, Inc., and reimbursed by the City through tax increment generated from the Project,
and that will contain certain other terms and conditions related to the Project; and
WHEREAS, in order to encourage the Project, the City Council has determined
and hereby determines that it is in the best interests of the City to enter into the Agreement; and
WHEREAS, subject to the terms and provisions of the Agreement, the Company
has agreed to fund the design, acquisition, construction and installation of the Improvement
Projects (as defined in the Agreement) up to a maximum amount of $6,050,000, and the City has
agreed to reimburse Woodward for such expenditures and the applicable interest thereon (the
“Reimbursement Amount”) with available Pledged Tax Increment Revenues (as defined therein)
generated from the Project; and
WHEREAS, the City will issue a bond (the “Bond”) to evidence the
Reimbursement Amount, and the Bond shall be issued in substantially the form set forth as an
Exhibit to the Agreement; and
WHEREAS, the issuance of the Bond has been authorized by an election held in
the City on Tuesday, November 7, 2006 at which a majority of the qualified electors of the area
described in the Plan of Development authorized the City to issue bonds, notes, contracts or
other financial obligations in an amount not to exceed $150,000,000 to finance the costs of
development projects to be undertaken by or on behalf of the Authority, with such debt to be
payable solely from and secured by a pledge of ad valorem property tax increment revenues
levied and collected within the boundaries of the Authority; and
WHEREAS, the Bond will be a special and limited obligation of the City payable
from the Pledged Tax Increment Revenues, and the Bond will not constitute a general obligation
of the City and the full faith and credit of the City will not be pledged to pay the debt service
requirements of the Bond; and
WHEREAS, in connection with the execution and delivery of the Agreement, the
City will enter into an Intergovernmental Agreement for the Design and Relocation of Platte
River Power Authority Transmission Facilities with Platte River Power Authority (the
“Transmission Line IGA”) in substantially the form attached as an Exhibit to the Agreement; and
WHEREAS, the City Council has determined and hereby determines that entering
into the Agreement, the Transmission Line IGA and issuing the Bond, will serve the important
public purposes of maintaining and increasing employment in the City, stabilizing and improving
the long term tax base of the City, and providing additional economic health benefits to the City;
and
WHEREAS, there has been presented to the City Council and are on file with the
City Clerk the proposed form of the Agreement, including without limitation, the proposed form
of the Bond and the Transmission Line IGA attached as Exhibits thereto; and
WHEREAS, capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Agreement; and
WHEREAS, Section 11-57-204 of the Supplemental Public Securities Act,
constituting Title 11, Article 57, Part 2, Colorado Revised Statutes (the “Supplemental Act”),
provides that a public entity, including the City, may elect in an act of issuance to apply all or
any of the provisions of the Supplemental Act.
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT COLLINS,
COLORADO:
Section 1. Ratification and Approval of Prior Actions. All action heretofore
taken (not inconsistent with the provisions of this Ordinance) by the City Council or the officers,
agents or employees of the City Council or the City relating to the development of the Project,
the execution and delivery of the Agreement, and the performance of the City’s obligations
under the Agreement and related documents is hereby ratified, approved and confirmed.
Section 2. Finding of Best Interests and Public Purpose. The City Council
hereby finds and determines, pursuant to the Constitution, the laws of the State, the Charter and
the Code of the City, that entering into the Agreement, the Transmission Line IGA, and issuing
the Bond in connection therewith, are necessary, convenient, and in furtherance of the City’s
purposes and are in the best interests of the inhabitants of the City, and will serve the important
public purposes of maintaining and increasing employment in the City, stabilizing and improving
the long term tax base of the City, and providing additional economic health benefits to the City,
and the City Council hereby authorizes and approves the same.
Section 3. Supplemental Act. The City Council hereby elects to apply all of
the Supplemental Act to the Bond.
Section 4. Approval of Documents. The Agreement, the Bond, and the
Transmission Line IGA (collectively, the “City Documents”), in substantially the forms attached
hereto as Exhibit “A” and incorporated herein by this reference, are in all respects approved,
authorized and confirmed. The Mayor of the City is hereby authorized and directed to execute
and deliver the City Documents, for and on behalf of the City, in substantially the forms and with
substantially the same contents as on file with the City Clerk, provided that such documents may
be completed, corrected or revised as deemed necessary by the parties thereto in order to carry
out the purposes of this Ordinance. The execution of the City Documents by the Mayor shall be
conclusive evidence of the approval by the City Council of such documents in accordance with
the terms hereof and thereof.
Section 5. Direction to Act. The City Clerk is hereby authorized and directed
to attest all signatures and acts of any official of the City in connection with the matters
authorized by this Ordinance and to place the seal of the City on any document authorized and
approved by this Ordinance. The Mayor, the Mayor Pro-Tem of the City, the City Manager, the
Financial Officer, the City Clerk and other appropriate officials or employees of the City are
hereby authorized and directed to execute and deliver for and on behalf of the City any and all
additional certificates, documents, instruments and other papers, and to perform all other acts
that they deem necessary or appropriate, in order to implement and carry out the transactions and
other matters authorized by this Ordinance. The approval hereby given to the various documents
referred to above includes an approval of such additional details therein as may be necessary and
appropriate for their completion, deletions therefrom and additions thereto as may be approved
by the City Manager or the Financial Officer prior to the execution of the documents. The
execution of any instrument by the aforementioned officers or members of the City Council shall
be conclusive evidence of the approval by the City of such instrument in accordance with the
terms hereof and thereof.
Section 6. No General Obligation Debt. No provision of this Ordinance, the
Agreement or the Bond shall be construed as creating or constituting a general obligation
indebtedness of the City within the meaning of any constitutional, statutory or Charter provision
and the full faith and credit of the City shall not be pledged to pay the debt service requirements
of the Bond.
Section 7. No Recourse against Officers and Agents. Pursuant to Section 11-
57-209 of the Supplemental Act, if a member of the City Council, or any officer or agent of the
City acts in good faith, no civil recourse shall be available against such member, officer, or agent
for payment of the principal or interest on the Bond. Such recourse shall not be available either
directly or indirectly through the City Council or the City, or otherwise, whether by virtue of any
constitution, statute, rule of law, enforcement of penalty, or otherwise. By the acceptance of the
Bond, and as a part of the City’s consideration for issuing the Bond, the Company specifically
waives any such recourse.
Section 8. Severability. If any section, subsection, paragraph, clause or
provision of this Ordinance or the documents hereby authorized and approved shall for any
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AGREEMENT WITH WOODWARD, INC.
THIS AGREEMENT WITH WOODWARD, INC. (this “Agreement”) is entered into this
___ day of _________, 2013, by and among the City of Fort Collins, Colorado, a home rule
municipal corporation (the “City”), The Fort Collins, Colorado, Downtown Development
Authority, a duly organized and existing downtown development authority under the
Constitution and laws of the State of Colorado, including, particularly, Title 31, Article 25,
Part 8, Colorado Revised Statutes, as amended (the “Authority”), and Woodward, Inc., a
Delaware corporation (“Woodward” or the “Company”).
RECITALS
WHEREAS, the City is a home rule municipality and political subdivision of the State of
Colorado (the “State”) organized and existing under a home rule charter (the “Charter”) pursuant
to Article XX of the Constitution of the State; and
WHEREAS, pursuant to Ordinance No. 46, 1981, the City has heretofore established the
Authority, a duly organized and existing downtown development authority under the
Constitution and laws of the State of Colorado, including, particularly, Title 31, Article 25,
Part 8, Colorado Revised Statutes, as amended (the “Downtown Development Authority Act”)
and has approved the Plan of Development of the Authority (the “Plan of Development”)
pursuant to Resolution 81-129 of the City, as amended; and
WHEREAS, the Plan of Development contains a provision for division of taxes as
authorized by the Downtown Development Authority Act effective for thirty (30) years
beginning September 8, 1981, and pursuant to Ordinance No. 101, 2008, the City approved a
twenty (20) year extension of such period under the authority of the Downtown Development
Authority Act; and
WHEREAS, the Company is a publicly traded industrial manufacturing company with an
approximate market capitalization of $2.7 billion dollars as of the date of this Agreement; and
WHEREAS, the Company’s headquarters are currently located in the City at 1000 East
Drake Road, Fort Collins, Colorado; and
WHEREAS, the Company has had a long and successful presence in the City for nearly
60 years; and
WHEREAS, the Company directly employs approximately 1400 people within Northern
Colorado, many of whom are employed at the Company’s headquarters within the City and
many of whom live within the City; and
EXHIBIT A
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WHEREAS, the Company’s operations in the City and Northern Colorado provide
significant economic benefits to the City by employing a large number of high-skilled employees
who live, work, and shop in the City, and by contributing to a vibrant and diverse local
economy; and
WHEREAS, the Company’s operations in the City and Northern Colorado generate a
substantial amount of tax revenue for the City, both directly as a business through vendors and
suppliers, and indirectly through the Company’s labor force and residents; and
WHEREAS, the Company has been, and seeks to remain, a leader of innovation, with a
stated mission of “Always innovating for a better future,” and active participation in the City’s
ClimateWise program, as well as local Clean Energy Cluster efforts; and
WHEREAS, the Company is considering relocating its headquarters and expanding its
manufacturing and office facilities to one of several potential locations, including locations
outside of the City; and
WHEREAS, one of the potential sites is approximately 101.5 acres of real property
located in the City south of East Lincoln Avenue and north of Mulberry Street between Lemay
Avenue and Riverside Avenue, and more particularly described in Exhibit A of this Agreement
(the “Property”); and
WHEREAS, the Property is located in the Authority’s Plan of Development Area (as
hereinafter defined); and
WHEREAS, in light of certain negotiations with the City and the Authority, among other
considerations, the Company has proposed constructing and installing a new campus on the
Property (the “Project”), as more particularly described in the Project Development Plan
(hereinafter defined) that has been approved by the City; and
WHEREAS, the Project is a valuable urban infill project that furthers the objectives set
forth in the City’s long-range comprehensive plan, including the contribution of high-skilled
employment opportunities, tax revenue, and infrastructure improvements to the City’s urban
core; and
WHEREAS, the retention of existing business and employment in Fort Collins is the top
priority of the City’s Economic Health Strategic Plan, which has been adopted by the City
Council; and
WHEREAS, according to the Economic Health Office, the Project will prevent high-
paying primary jobs from leaving the City to other sites in Northern Colorado and elsewhere;
and
WHEREAS, Woodward has requested that the City enter into this Agreement for
economic development related to the Project; and
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WHEREAS, in order to encourage the Project, the City Council has determined that it is
in the best interests of the City to enter into this Agreement which provides, among other things,
the following components:
(a) Woodward will fund the design, acquisition, construction and installation of the
Improvement Projects (as hereinafter defined) up to a maximum amount of $6,050,000
(the “Maximum Funding Amount”) in accordance with this Agreement;
(b) Woodward will be reimbursed for such expenditures on the Improvement
Projects, with interest thereon (the “Reimbursement Amount”), from the proceeds of the
Pledged Tax Increment Revenues (as hereinafter defined) generated by the Project, in
accordance with this Agreement, and the City will issue a bond (the “Bond”) to evidence
the Reimbursement Amount;
(c) the City shall rebate or reimburse Woodward for the following fees and revenues
paid by Woodward to the City in connection with the Project:
(i) reimburse or rebate up to 80% of the new City use tax revenues
received for Eligible Equipment (hereinafter defined) and Construction Materials
(hereinafter defined) for the Project (the “Use Tax Rebate”);
(ii) reimburse or rebate up to 100% of the Development Fees
(hereinafter defined) received in connection with the Project (collectively, the
“Development Fee Rebates”); and
(iii) reimburse or rebate up to 50% of the Capital Improvement Fees
(hereinafter defined) received in connection with the Project (collectively, the
“Capital Improvement Fee Rebates”); and
WHEREAS, in order to encourage the Project and to further the Plan of Development,
the Board of Directors of the Authority (the “Board”) has determined that the Authority shall
enter into the Façade Easement Agreement (hereinafter defined) with Woodward whereby the
Authority will agree to purchase easements from Woodward over eligible facades of buildings
within the Project (the “Façade Easements”) from a portion of the Pledged Tax Increment
Revenues and has further determined that a portion of the Pledged Tax Increment Revenues shall
be applied to payment of the Reimbursement Amount, in accordance with the terms and
provisions set forth herein; and
WHEREAS, the Authority has determined that entering into the Façade Easement
Agreement and this Agreement is consistent with and in furtherance of the purposes of the
Authority and is consistent with the Downtown Development Authority Act; and
WHEREAS, the Authority has determined that the addition of the Property into the
District will provide significant economic benefits to the City and downtown through the
Company's operations in the City and Northern Colorado and thus further the objectives and
purposes of the Authority as contained in the Plan of Development, and pursuant to Resolution
2013-01, the Authority has recommended approval of the inclusion of such Property into the
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District, which inclusion was unanimously approved by the City pursuant to Ordinance No. 049,
2013; and
WHEREAS, the City Council has further determined that entering into this Agreement
with Woodward will serve the important public purposes of maintaining and increasing
employment in the City, stabilizing and improving the long term tax base of the City, and
providing additional economic health benefits to the City.
NOW, THEREFORE, in consideration of the promises contained in this Agreement, and
other good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows.
SECTION 1. DEFINITIONS. For purposes of this Agreement, capitalized terms used herein
and not otherwise defined herein shall have the meanings set forth below:
“Application for Use Tax Rebate” means the application process for a Use Tax Rebate using
City approved forms consistent with the form attached as Exhibit K hereto and by this reference
made a part hereof.
“Authority” means The Fort Collins, Colorado, Downtown Development Authority, a duly
organized and existing downtown development authority under the Constitution and laws of the
State of Colorado, including, particularly, Title 31, Article 25, Part 8, Colorado Revised Statutes,
as amended.
“Authority’s Unrestricted Available Fund Balance” means that fund balance required in
accordance with the policy adopted by the Board on October 13, 2011, whereby at the beginning
of each fiscal year, an amount equal to the minimum of one-half of each year’s current debt
payments is reserved.
“Board” means the Board of Directors of the Authority.
“Bond” means the Bond to be issued hereunder duly executed on behalf of City in substantially
the form attached hereto as Exhibit J attached hereto and by this reference made a part hereof,
payable to the order of Company in a principal amount of not more than the Maximum Funding
Amount plus any compound interest.
“Bond Year” means the twelve (12) months commencing on the second day of December of any
calendar year and ending on the first day of December of the next succeeding calendar year.
“Capital Improvement Fees” means, collectively, the following fees received by the City in
connection with all or any portion of the Project:
(a) the Capital Improvement Expansion Fees imposed pursuant to
Chapter 7.5, Article V of the City Code, including (i) the Community Parkland
Capital Improvement Expansion Fee, (ii) the Police Capital Improvement
Expansion Fee, (iii) the Fire Protection Capital Improvement Expansion Fee, (iv)
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the General Government Capital Improvement Expansion Fee, and (v) the Street
Oversizing Capital Improvement Expansion Fee;
(b) the Water Plant Investment Fee imposed pursuant to Section 26-
120 of the City Code;
(c) the Sewer Plant Investment Fee imposed pursuant to Sections 26-
283 to 284 of the City Code;
(d) the Electric Development Fees imposed pursuant to Sections 26-
473 and 475 of the City Code; and
(e) the Stormwater Plant Investment Fees imposed pursuant to Section
26-512 of the City Code.
“Capital Improvement Fee Rebate” means the rebate of up to 50% of the Capital Improvement
Fees to Woodward in accordance with Section 6 of this Agreement.
“Charter” means the Home Rule Charter of the City.
“City” means the City of Fort Collins, Colorado, a home rule municipal corporation.
“City Code” means the Code of the City of Fort Collins.
“City Council” means the City Council of the City.
“Completed” means, when used in reference to a Phase of the Project, eligible for a temporary or
final certificate of occupancy under the City Code.
“Construction Materials” means the materials purchased in connection with the construction of
the Project, or any portion of the Project.
“Development Agreement” means that agreement required in connection with the Project or any
portion of the Project, as described in the Project Development Plan and pursuant to the Land
Use Code.
“Development Fees” means, collectively, the building permit fees, development review fees,
transportation development review fees, and planning review fees received by the City in
connection with the Project or any portion of the Project.
“Development Fee Rebates” means the rebate of up to 100% of the Development Fees to
Woodward in accordance with Section 6 of this Agreement.
“District” means the area described in the Plan of Development and approved by Ordinance No.
46, 1981, of the City, as amended by Ordinance No. 162, 1981, of the City and Ordinance No. 2,
1983, of the City, and as has heretofore been or as may hereafter be amended by valid legislative
action of the City as may be determined in accordance with the decisions of the appellate courts
of the State.
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“Downtown Development Authority Act” means Title 31, Article 25, Part 8, Colorado Revised
Statutes, as amended.
“Eligible Equipment” means manufacturing equipment newly acquired by Woodward for
installation in or delivery to the Property and incorporation into the Project in the maximum
aggregate amount of $50.5 million. All Eligible Equipment must be identified at the time of
purchase as, and be documented as necessary for the Project to the satisfaction of the City, and
must be newly installed and located within the Project within 12 months of the acquisition of
such equipment.
“Estimate of Value” means the Larimer County Assessor’s Estimate of Value Worksheet dated
January 29, 2013 relating to the Property and attached hereto as Exhibit E and by this reference
made a part hereof.
“Façade Easement Agreement” means the agreement between the Authority and Woodward
relating to the Façade Easements generally consistent with the Summary of DDA/Woodward
Façade Easement Agreement set forth in Exhibit I attached hereto and by this reference made a
part hereof.
“Façade Easements” means those easements purchased by the Authority from Woodward, with a
maximum total purchase price for all such easements of $3.8 million, over eligible facades of
buildings within the Project in accordance with the terms and conditions of the Façade Easement
Agreement.
“Improvement Projects” means, collectively, the Transmission Line Relocation, the Right of
Way Improvements and the Open Space Improvements.
“Land Use Code” means the Fort Collins Land Use Code.
“Line of Credit” means that line of credit described in Ordinance No. 089, 2012 of the City,
approved on September 18, 2012, authorizing the establishment of a line of credit to be funded
solely from available Authority tax increment revenues for a period of six (6) years (and subject
to renewal thereafter) to finance Authority projects.
“Manufacturing Equipment Use Tax Rebate Program or Program” means the program for
generally available limited rebate of use taxes for manufacturing equipment, as described in
Chapter 8 of the City Code.
“Maximum Funding Amount” means the amount of $6,050,000, which shall be the maximum
amount of funding that Woodward provides for the design, construction, acquisition and
installation of the Improvement Projects.
“Open Space Improvements” means the improvements to be made to the Open Space Property,
as more specifically set forth in Section 4.1(b) hereof and Exhibit G attached hereto and by this
reference made a part hereof.
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“Open Space Property” means the property to be conveyed by Woodward to the City, as
described in Exhibit B attached hereto and by this reference made a part hereof, which is
approximately 31 acres adjacent to the Cache La Poudre River.
“Phase One” has the meaning set forth on the Phasing Schedule.
“Phase Two” has the meaning set forth on the Phasing Schedule.
“Phase Three” has the meaning set forth on the Phasing Schedule.
“Phase Four” has the meaning set forth on the Phasing Schedule.
“Phasing Schedule” means the schedule for the acquisition, construction and installation of the
Project in accordance with the Project Development Plan, attached hereto as Exhibit D and by
this reference made a part hereof.
“Plan of Development” means the Plan of Development for the Authority, as amended from time
to time, approved by the Board and the City Council in accordance with the Downtown
Development Authority Act.
“Plan of Development Area” means an area in the central business district of the City that the
Board and the City Council have designated as appropriate for a development project.
“Pledged Tax Increment Revenues” means 100% of the Authority’s statutory share of the real
property tax increment attributable to construction of buildings and implementation of uses
within the Project capped at the values shown in the Estimate of Value Worksheet and based on
the Phasing Schedule. Exhibit E-1 illustrates how calculations of available Pledged Tax
Increment Revenues will be made based on the Estimate of Value Worksheet and the Phasing
Schedule.
“Project” means the acquisition, construction and installation of the Company’s headquarters,
manufacturing and office facilities on the Property, as more specifically described on Exhibit C
attached hereto and by this reference made a part hereof. The definition of “Project” does not
include the area marked on Exhibit C and designated as “Future Commercial Project.”
“Project Development Plan” means the plan for the development of the Project approved by the
City.
“Property” means the real property described in Exhibit A attached hereto and by this reference
made a part hereof.
“Reimbursement Amount” means the obligation of the City to reimburse Woodward for the
funding of the Improvement Projects, including interest thereon, in accordance with the terms
and provisions of this Agreement. The Reimbursement Amount shall be evidenced by the Bond
to be issued by the City pursuant to the authority conferred at the 2006 Election.
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“Right of Way Improvements” means the right of way improvements to Lemay Avenue and
Lincoln Avenue as more specifically set forth in Section 4.1(b) hereof and as set forth in the
preliminary design layout on Exhibit F attached hereto.
“Senior Lien Documents” means, collectively, the documents executed and delivered in
connection with the issuance of the Senior Lien Securities.
“Senior Lien Securities” means, collectively, (a) the City of Fort Collins, Colorado, Downtown
Development Authority Taxable Tax Increment Revenue Bonds, Series 2010A, (b) the City of
Fort Collins, Colorado, Downtown Development Authority Tax-Exempt Tax Increment Revenue
Bonds, Series 2010B, (c) all other bonds, warrants, notes, securities, leases or other contracts
having a lien on the Pledged Tax Increment Revenues that is senior or superior to the lien of the
Bond, and (d) the Authority’s obligation for the 2007 City of Fort Collins Lease Certificates of
Participation for the Civic Center Facilities Project.
“Subordinate Lien Bonds” means any bond, warrants, notes, securities, leases or other contracts
evidencing borrowings and payoffs from the Pledged Tax Increment Revenues having a lien
thereon subordinate or junior to the lien of the Bond.
“Supplemental Public Securities Act” means Part 2 of Article 57, Title 11, C.R.S.
“Tax Increment Fund” means the special fund created in Ordinance No. 142, 1985, of the City
designated therein as the “City of Fort Collins, Colorado, Downtown Development Authority
Tax Increment Bonds, Bond Fund.”
“Tax Increment Period” means the period of time during which the Authority is authorized under
State law to collect tax increment revenues from the Property. As of the date of this Agreement,
the Tax Increment Period terminates on December 31, 2031.
“Tax Increment Revenues” means all revenues derived in each Fiscal Year from the levy of ad
valorem taxes at the rate fixed each year by or for each public body having taxing power over the
property upon that portion of the valuation for assessment of the property within the boundaries
of such public body that is in excess of the valuation for assessment on the date that the property
was added to the District by valid legislative action of the City, all in accordance with Section
31-25-807(3) of the Downtown Development Authority Act, less any collection fees lawfully
payable to the City or Larimer County, Colorado, for services rendered in connection with the
collection of such ad valorem taxes.
“Transmission Line IGA” means the Intergovernmental Agreement for the Design and
Relocation of Platte River Power Authority Transmission Facilities between the City and the
Platte River Power Authority, in substantially the form set forth in Exhibit H attached hereto and
by this reference made a part hereof.
“Transmission Line Relocation” means the relocation of the Transmission Lines in accordance
with the Transmission Line IGA.
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“Transmission Lines” means the 230kV/115kV double circuit overhead transmission line that
crosses the Property, specifically the approximately 3600 linear feet of the line segment between
structure TP28 on the north and TR-19 on the south.
“2006 Election” means the election held in the City on Tuesday, November 7, 2006 at which a
majority of the qualified electors of the District authorized the City to issue bonds, notes,
contracts or other financial obligations in an amount not to exceed $150,000,000 to finance the
costs of development projects to be undertaken by or on behalf of the Authority, with such debt
to be payable solely from and secured by a pledge of the special fund of the City which shall
contain ad valorem property tax increment revenues levied and collected within the boundaries
of the Authority.
“Use Tax Rebate” means the rebate of up to 80% of the Use Taxes to Woodward in accordance
with Section 6 of this Agreement.
“Use Taxes” means the Use Taxes received by the City from Woodward in connection with
Eligible Equipment and Construction Materials for the Project.
SECTION 2. REPRESENTATIONS AND COVENANTS
2.1. The City represents and covenants that:
2.1.1. The City is a home rule municipal corporation of the State of Colorado.
2.1.2. There is no litigation or administrative proceeding pending or, to the knowledge
of the City, threatened in writing, seeking to question the authority of the City to
enter into or perform this Agreement.
2.1.3. The City has the authority to enter into this Agreement, and the City Council has
duly and regularly authorized the City to execute and deliver this Agreement.
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.
2.2. The Authority represents and covenants that:
2.2.1. The Authority is a duly organized and existing downtown development authority
under the Constitution and laws of the State of Colorado, including, particularly,
the Downtown Development Authority Act.
2.2.2. There is no litigation or administrative proceeding pending or, to the knowledge
of the Authority, threatened in writing, seeking to question the authority of the
Authority to enter into or perform this Agreement or the Façade Easement
Agreement.
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2.2.3. The Authority has the authority to enter into this Agreement, and the Board has
properly and regularly authorized the Authority to enter into this Agreement.
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.
2.3. Woodward represents and covenants that:
2.3.1. Woodward is a corporation, duly organized and validly existing under the laws of
the State of Delaware, is authorized to do business in the State of Colorado, is not
in violation of any provisions of its organizational documents or, to its
knowledge, the laws of the State of Colorado.
2.3.2. Woodward has the power and legal right to enter into the Agreement and has duly
authorized the execution, delivery and performance of this Agreement by proper
action, which Agreement shall be enforceable against Woodward in accordance
with 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.
2.3.3. The consummation of the transactions contemplated by this Agreement shall not
violate any provision of the governing documents of Woodward or, to its
knowledge, constitute a default or result in the breach of any term or provision of
any contract or agreement to which Woodward is a party or by which it is bound.
2.3.4. To its knowledge, there is no litigation, proceeding, or investigation contesting the
power of authority of Woodward with respect to the Project or this Agreement or
any other agreements contemplated herein, and Woodward is unaware of that any
such litigation, proceeding, or investigation has been threatened.
2.3.5. Woodward has submitted a Project Development Plan to the City which
Woodward reasonably believes to be in accordance with all applicable procedures
set forth in the Land Use Code, and the Project Development Plan was duly
approved by the Planning & Zoning Board in a public hearing on February 21,
2013.. Woodward shall develop the Property with appropriate care and diligence
and cause the Project to be constructed in a manner consistent with the Project
Development Plan, as approved in accordance with the Land Use Code.
2.3.6. In developing the Property, Woodward shall comply with all applicable zoning
and land use requirements and other applicable federal, state, county, and City
statutes, rules, regulations and ordinances. Woodward agrees to comply with all
City codes, ordinances, resolutions and regulations, and to pay all taxes, fees and
expenses due to the City under the City Code, the Land Use Code or this
Agreement, subject to any variances or modifications of standards that may be
granted to Woodward under the City Code or the Land Use Code, and to comply
with the terms and conditions of the Development Agreement.
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2.3.7. Woodward shall cooperate with the City in taking reasonable actions to defend
against any litigation brought by a third party concerning the Project or this
Agreement or any other agreements contemplated herein.
2.3.8. Woodward shall have the right to seek a reduction in the Project's property tax
assessed valuation and to seek an abatement of property taxes, provided that
Woodward covenants that it will not seek such a reduction or abatement to the
extent that any such reduction or abatement would result in Pledged Tax
Increment Revenues being less than those shown on the Estimate of Value
attached hereto as Exhibit E, as adjusted to account for the Phasing Schedule
attached hereto as Exhibit D and assuming completion dates for Phase Two and
Phase Four of no later than 24 months from those shown on the Phasing Schedule.
In the event that Woodward seeks, and successfully obtains, a reduction or
abatement in the Project’s property tax assessed valuation that results in the
Pledged Tax Increment Revenues being less than such amounts, there shall be a
proportionate reduction in the Reimbursement Amount and the maximum
purchase price for the Façade Easements. Woodward shall provide written notice
to the City and to the Authority of any requested reduction in the Project's
property tax assessed valuation or abatement of the Project's property taxes. A
memorandum of this covenant shall be recorded with the Larimer County Clerk
and Recorder's Office.
SECTION 3. COMMITMENT TO PROCEED WITH PROJECT; ACQUISITION OF
PROPERTY; CONVEYANCE OF OPEN SPACE PROPERTY
3.1 If Woodward's board of directors selects the Property as the site for the Project,
Woodward shall, on or prior to April 30, 2013, submit written evidence to the City and the
Authority that the Company has determined to proceed with the Project as described in the
Project Development Plan and locate its new campus headquarters on the Property. Compliance
with the provisions of this Section 3.1 shall be a condition subsequent to the City and the
Authority’s obligations hereunder. The obligations of all the parties under this Agreement are
conditioned on Woodward’s board of directors selecting the Property as the site for the Project.
3.2 On or prior to April 30, 2013, or such later date as may be agreed upon between
Woodward and the current owners of the Property, but in no event later than July 31, 2013,
Woodward shall acquire fee simple title to the Property and shall submit written evidence of
such purchase to the City and the Authority. Compliance with the provisions of this Section 3.2
shall be a condition subsequent to the City and the Authority’s obligations hereunder.
3.3 No later than forty-five (45) days after the acquisition of the Property by Woodward, the
Company shall have entered into a purchase and sale agreement with the City to convey the
Open Space Property to the City by bargain and sale deed. The purchase and sale agreement
may establish reasonable conditions and reservations for the conveyance of the Open Space
Property to the extent required for the completion of the Project, including, without limitation,
any responsibilities to be retained by Woodward, conditions or reservations restricting the use of
such property to open space or natural areas uses, reserving to the Company certain temporary
and permanent easements and other rights of access relating to the Project, and certain permanent
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rights of access to the Open Space Property for the Company and its employees, and providing to
the City temporary and permanent access to the Open Space Property across the Property, and
such other appurtenances as may be necessary for the City to carry out the Open Space
Improvements and operate and maintain the Open Space Improvements for the benefit of the
public. The City agrees to make diligent efforts to complete commercially reasonable due
diligence related to the Open Space Property, and, subject to any associated adjustments, delays
or conditions reasonably required in light of issues identified in the City’s due diligence process,
the City agrees to accept title to the Open Space Property.
SECTION 4. CONSTRUCTION AND INSTALLATION OF IMPROVEMENT
PROJECTS; FAÇADE EASEMENTS
4.1 Funding of Improvement Projects. Woodward shall fund the design, acquisition,
construction and installation of the Improvement Projects, up to the Maximum Funding Amount,
in the order of priorities hereinafter set forth. The City shall make a written request for funding
to the Company and the Company shall remit such requested amount to the City within thirty
(30) days of such request, provided that the Company shall have no obligation to provide funding
in the last ten (10) days of any calendar quarter. The Improvement Projects shall be funded in
the following order of priorities:
(a) Relocation of Transmission Lines. Woodward agrees to fund the Transmission
Line Relocation in accordance with the Transmission Line IGA. The City shall not modify or
amend the Transmission Line IGA without the prior written consent of the Company. The City
shall use its best efforts to cause the Transmission Lines to be relocated by the Platte River
Power Authority within a time frame that supports the Project development, and, if necessary to
comply with the Project schedule, shall cause the Platte River Power Authority to construct a
temporary transmission line.
(b) Right of Way Improvements. Woodward agrees to fund certain right of way
improvements to Lemay Avenue and Lincoln Avenue as required by the Land Use Code for the
Project, as generally shown in the preliminary design layout on Exhibit F attached hereto and by
this reference made a part hereof, the final design of which shall be determined by mutual
agreement of the parties in connection with Final Development Plan approval for Phase One of
the Project (collectively, the “Right of Way Improvements”). Unless otherwise agreed by
Woodward, the City shall design, acquire, construct and install the Right of Way Improvements,
and shall agree in good faith on a schedule acceptable to the City and Woodward.
(c) Open Space Improvements. No later than sixty (60) days after the execution of
the purchase and sale agreement for the conveyance of the Open Space Property as described in
Section 3.3, the City shall propose and coordinate the design and schedule of the landscaping and
habitat improvements to be constructed on the Open Space Property in accordance with the
City’s guidelines, with such improvements to be substantially in accordance with the 50% design
drawings attached hereto as Exhibit G and by this reference made a part hereof (the “Open Space
Improvements”), subject to approval by the Company, and the parties shall agree on a set of
terms and conditions to be included in the deed between Woodward and the City conveying the
Open Space Property. The terms of the deed conveying the Open Space Property to the City
shall supersede any terms to the contrary in this Section 4.1(c). Woodward shall fund the
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construction of the Open Space Improvements, provided that such funding shall not exceed the
Maximum Funding Amount available after funding the Transmission Line Relocation and the
Right of Way Improvements. To the extent that the amount available from the Company to fund
the Open Space Improvements is less than $3.0 million, the City shall provide the additional
funding necessary to complete the Open Space Improvements. Unless otherwise agreed by
Woodward, the City shall design, construct and install the Open Space Improvements on a
schedule mutually agreeable to the parties. The parties anticipate that the Open Space
Improvements will not commence before Woodward conveys the Open Space Property to the
City. The City shall not commence the Open Space Improvements until: (a) Woodward has
completed overlot grading to 6” below the finished grade as shown in the Conditional Letter of
Map Revision (“CLOMR”) submitted to the Federal Emergency Management Agency
(“FEMA”) on March 18, 2013 with a 1/10th of a foot tolerance or as may be consistent with any
changes to such CLOMR required by FEMA, and surveyed the site; and (b) the City has
reviewed and approved the site grading as consistent with the CLOMR approved by the FEMA
for the Open Space Property. The parties acknowledge and agree that modifications to the
design and schedule for the Open Space Improvements may be necessary to address specific site
conditions or other conditions encountered during implementation of the design, and the parties
agree to cooperate in good faith to mutually agree upon such modifications.
(d) Lincoln Boulevard Improvements. The City is currently considering the
construction of significant improvements to Lincoln Avenue in the area approximately between
the Cache la Poudre River and Lemay Avenue, as generally described in the City’s
comprehensive plan (the “Lincoln Boulevard Improvements”). The Lincoln Boulevard
Improvements may include, but are not limited to, the construction of new or improved street
and intersections; sidewalks and benches; bicycle lanes and racks; trees and other landscaping;
gateway features similar to those at the intersection of Harmony Road and College Avenue;
transit-related infrastructure; storm water improvements; directional signage; public art and other
projects for a positive neighborhood image; and interpretive features of culture and history
relevant to the area. In addition, the City is considering long-range plans for transit services in
the Lincoln Avenue area, which may include expanded bus service, a dedicated transit “loop”
servicing the Lincoln Avenue corridor and downtown Fort Collins, or a dedicated trolley service.
The City hereby agrees to use its reasonable best efforts to complete the study of possible
designs for the Lincoln Boulevard Improvements no later than April 30, 2014.
In addition, the City Manager agrees to present a package to the City Council of
improvements to be funded by a renewal of the Building on Basics dedicated sales tax, including
a portion of the Lincoln Boulevard Improvements valued at approximately $8 million, on a
schedule to allow consideration of that measure by the voters no later than November 2014. If
approved by the voters, and if Phase One, Phase Two and Phase Four have been Completed, and
the completion of Phase Three is either in compliance with the Phasing Schedule, or no more
than 24 months delayed from the Phasing Schedule, (a) the City shall, subject to approval by the
City Council, use its reasonable best efforts to construct approximately $8.0 million of the
Lincoln Boulevard Improvements with the dedicated proceeds of the approved sales tax, and (b)
subject to the availability of Pledged Tax Increment Revenues as reasonably determined by the
City and the Board of the Authority, and subject to the approval by the Board of the Authority,
use its reasonable best efforts to apply no more than $2.85 million of any such available Pledged
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Tax Increment Revenues to finance a portion of the construction of the Lincoln Boulevard
Improvements.
4.2 Façade Easements. The Authority and Woodward shall enter into the Façade Easement
Agreement on terms that are generally consistent with the Summary of DDA/Woodward Façade
Easement Agreement set forth in Exhibit I.
4.3 Mulberry Corridor. The City shall continue its efforts to effect an annexation of the
properties along Mulberry Street between Lemay Avenue and Interstate 25, subject to the
discretion of the City Council, as applicable.
4.4 Reimbursement From Third Parties. To the extent that Woodward receives payment or
reimbursement from any other parties (but expressly excluding any State of Colorado incentive
payments or grants) to reimburse Woodward for the acquisition, construction and completion of
the Improvement Projects financed by Woodward, Woodward hereby agrees to apply any such
payment or reimbursement to reduce the Reimbursement Amount due from the City.
SECTION 5. REIMBURSEMENT AMOUNT; ISSUANCE OF BOND
5.1 Issuance of Bond. The Reimbursement Amount shall be evidenced by a Bond in
substantially the form set forth as Exhibit J attached hereto. The Bond shall not be transferable
by the Company except as set forth in Section 8 of this Agreement (provided that the City
receives evidence satisfactory to it that any such transfer complies with all applicable securities
laws) or otherwise with the prior written consent of the City.
(a) The Bond is being issued pursuant to art. XX, §6 of the Colorado Constitution,
Art. V, Section 19.8 of the Charter, the Downtown Development Authority Act, the
Supplemental Act, and pursuant to the 2006 Election.
(b) Section 11-57-204 of the Supplemental Act provides that a public entity,
including the City, may elect in an act of issuance to apply all or any of the provisions of the
Supplemental Act to such issuance. The Council hereby elects to apply all of the Supplemental
Act to the Bond. The Bond is issued under the authority of the Supplemental Act and shall so
recite. Pursuant to Section 11-57-210 C.R.S., such recital conclusively imparts full compliance
with all provisions of said sections, and the bonds issued containing such recital shall be
incontestable for any cause whatsoever after their delivery for value.
(c) Except as expressly provided in this Agreement and in the documents authorizing
the Senior Lien Securities, the Pledged Tax Increment Revenues shall be and hereby are
irrevocably pledged and set aside to pay the principal of and interest on the Bond. The Bond
constitutes an irrevocable lien (but not a first lien nor an exclusive lien) upon the Pledged Tax
Increment Revenues. The creation, perfection, enforcement, and priority of the pledge of
revenues to secure or pay the Bond shall be governed by §11-57-208 of the Supplemental Act.
The Pledged Tax Increment Revenue shall immediately be subject to the lien of such pledge
without any physical delivery, filing, or further act. The lien of such pledge on the Pledged Tax
Increment Revenue shall be subordinate or junior to the Senior Lien Securities. The lien of such
pledge shall be valid, binding, and enforceable as against all persons having claims of any kind
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in tort, contract, or otherwise against the City irrespective of whether such persons have notice of
such liens. The Bond shall recite in substance that the Bond is not a general obligation of the
City and that the full faith and credit of the City is not pledged to pay the debt service
requirements of such Bond.
(d) Interest shall begin to accrue on the Bond from the date of the first funding
advance made by the Company to fund an Improvement Project (the “Initial Funding Date”)
until the one year anniversary of the Initial Funding Date at a rate equal to 0.25% per annum.
Thereafter, the interest rate on the Bond shall be reset on each one year anniversary of the Initial
Funding Date (the “Reset Date”) at a rate equal to the difference between the interest rate on the
10 year U.S. Treasury Note on the Initial Funding Date (the “Initial Treasury Rate”) and the
average of the interest rate on the 10 year U.S. Treasury Note during the 30 day period up to and
including the Reset Date, provided that in no event shall the interest rate be less than 0.25% per
annum. The City shall calculate the applicable interest rate on each Reset Date and shall provide
written notice thereof to the Authority and the Company. Absent manifest error, the City’s
determination of the applicable interest rate on each Reset Date shall be conclusive. Unpaid
interest shall compound on each Reset Date.
(e) The unpaid principal balance of the Bond at any time shall be the total amount
paid by the Company to fund the Improvement Projects, plus any compound interest, less the
amount of payments of the principal made on the Bond. The Bond shall mature on
December 31, 2031.
(f) The Pledged Tax Increment Revenues shall be applied to the payment of the
principal of and interest on the Bond as follows:
(i) Principal and interest on the Bond shall be payable solely from Pledged
Tax Increment Revenues during the Tax Increment Period to the extent available. By
December 31 in each year, available Pledged Tax Increment Revenues shall be applied
first to the payment of interest on the Bond and then to the payment of principal.
(ii) For so long as the Façade Easements have not been paid in full, the
Pledged Tax Increment Revenues shall be applied as follows:
(A) Upon Completion of Phase One, 20% of the Pledged Tax
Increment Revenues shall be applied to the payment of Façade Easements
in accordance with the Façade Easement Agreement and 80% of the
Pledged Tax Increment Revenues shall be applied to the payment of the
principal of and interest on the Bond;
(B) Upon Completion of Phase One and Phase Two, 27% of
the Pledged Tax Increment Revenues shall be applied to the payment of
Façade Easements in accordance with the Façade Easement Agreement
and 73% of the Pledged Tax Increment Revenues shall be applied to the
payment of the principal of and interest on the Bond;
(C) Upon Completion of Phase One, Phase Two and either
Phase Three or Phase Four (or both Phases Three and Four), 32% of the
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Pledged Tax Increment Revenues shall be applied to the payment of
Façade Easements in accordance with the Façade Easement Agreement
and 68% of the Pledged Tax Increment Revenues shall be applied to the
payment of the principal of and interest on the Bond;
(D) After payment in full of the Façade Easement, 100% of the
Pledged Tax Increment Revenues shall be applied to the payment of the
principal of and interest on the Bond.
(E) After payment in full of the Bond, 100% of the Pledged
Tax Increment Revenues shall be applied to the payment of the Façade
Easement.
(iii) In the event that the available Pledged Tax Increment Revenues are not
sufficient to repay the principal of and interest on the Bond in full during the Tax
Increment Period, and amounts remain unpaid on the Bond at the expiration of the Tax
Increment Period, this shall not constitute an Event of Default hereunder or under the
Bond. In the event of any such insufficiency, then the City hereby declares its intent to
pay any such unpaid amounts of principal and interest on the Bond from legally available
funds of the City, subject to appropriation by the Council. The City agrees that the City
Manager shall, at such time, present to the City Council for its consideration a resolution
or ordinance authorizing the City to pay such unpaid amounts. Notwithstanding the
foregoing, however, any failure by the Council to appropriate any payments necessary to
pay any unpaid principal of or interest on the Bond on the expiration of the Tax
Increment Period shall not be deemed a Default or an Event of Default hereunder. The
Council’s declaration of intent to make such payments shall not be binding upon the
Council or any future Council in any future fiscal year. Any such payments by the City
shall constitute currently appropriated expenditures of the City. Neither this Agreement
nor the issuance of the Bond shall obligate or compel the City to make payments on the
Bond from sources other than the Pledged Tax Increment Revenues beyond those
appropriated in the Council’s sole discretion.
(iv) In connection with the execution and delivery of this Agreement and the
issuance of the Bond, the City shall appropriate $2.2 million of available money of the
City (the “Reserve Amount”) to be applied to the payment of the Bond in the event that
only Phase One of the Project is Completed and there are insufficient Pledged Tax
Increment Revenues to repay the principal of and interest on the Bond in full during the
Tax Increment Period. Pursuant to the Charter, the Reserve Amount shall be subject to
appropriation in each subsequent year. In the event that the Company substantially
completes Phase One and has broken ground on Phase Two and Phase Four of the
Project, the City may, in its discretion, release the $2.2 million Reserve Amount and
apply such amount to any lawful purpose of the City, provided that at the time such
Reserve Amount is released by the City, the amount of Pledged Tax Increment Revenue
estimated to be available to repay the Bond during the Tax Increment Period is not less
than the outstanding principal amount of the Bond, plus the maximum estimated amount
of interest to be paid on the Bond.
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(v) Notwithstanding the foregoing, or anything else to the contrary contained
in this Agreement, the Company acknowledges that the terms and provisions of the
Senior Lien Documents govern the application of the Pledged Tax Increment Revenues
and that the obligation of the City to apply the Pledged Tax Increment Revenues to the
repayment of the Bond shall be subordinate to the Senior Lien Securities.
(h) The principal of and interest on the Bond are payable in any coin or currency of
the United States of America which on the payment date is legal tender for the payment of
public and private debts. Payments made by the City on the Bond shall be applied first to any
interest payments owing thereunder which are due and unpaid, and shall be applied second to
any outstanding principal thereunder. The principal of and interest on the Bond shall be payable
by wire transfer or as otherwise directed in writing by the Company. The final principal
payment of and final installment of interest on the Bond shall be payable to the Company upon
presentation and surrender of the Bond to the City at maturity or upon prior prepayment in
whole.
(i) The City may prepay the Bond in whole or in part, at any time, without
prepayment premium, upon ten (10) days prior written notice to the Company. Any partial
prepayments received in accordance with this provision will not, unless agreed to by the
Company in writing, relieve the City of its obligation to continue to make payments as set forth
herein or in the Bond; rather, such prepayments will reduce the principal balance due on the
Bond.
(j) The Bond shall be executed by and on behalf of the City with the facsimile or
manual signature of the Mayor, shall bear a facsimile or manual impression of the seal of the
City, shall be attested with the facsimile or manual signature of the City Clerk and shall be
countersigned with the manual signature of the Financial Officer of the City. Should any officer
whose facsimile or manual signature appears on the Bond cease to be such officer before
delivery of the Bond to the Company, such facsimile or manual signature shall nevertheless be
valid and sufficient for all purposes.
(k) When the principal of and interest on the Bond have been paid in full, the pledge
and lien of the Pledged Tax Increment Revenues and all obligations hereunder and under the
Bond shall thereby be discharged and the Bond shall no longer be deemed to be outstanding
within the meaning of this Agreement.
(l) The parties acknowledge that any express or implicit tax advice provided in this
Agreement cannot be used by any taxpayer to avoid penalties that may be imposed on any
taxpayer by the Internal Revenue Service.
5.2 Disposition of Pledged Tax Increment Revenues. For so long as the Bond shall be
outstanding, except as otherwise provided herein, the Tax Increment Revenues, upon their
receipt from time to time by the City, shall be set aside and credited immediately to the Tax
Increment Fund. For so long as the Bond shall be outstanding, the Pledged Tax Increment
Revenues on deposit in the Tax Increment Fund shall be accumulated and administered, and the
moneys on deposit therein shall be applied, in the following order of priority:
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(a) First, to the extent that there are outstanding Senior Lien Securities, the Pledged
Tax Increment Revenues shall be applied to make all payments required by the Senior Lien
Documents, including, without limitation, the payment of the debt service requirements of the
Senior Lien Securities and the accumulation of any reserve funds required in connection with the
Senior Lien Securities, at the times and in the manner specified therein.
(b) Second, after all amounts required to be applied or accumulated in connection
with the Senior Lien Securities have been made or provided for in the current Bond Year, any
Pledged Tax Increment Revenues remaining in the Tax Increment Fund in any Bond Year shall
be used by the City for the payment of the principal of and interest on the Bond and the
reimbursement for the Façade Easements, as set forth in Section 5.1(f)(ii) hereof; but the lien of
the Bond on the Pledged Tax Increment Revenues and the pledge thereof for the payment of the
Bond shall be subordinate and junior to the lien and pledge for the payment of all outstanding
Senior Lien Securities as herein provided.
(c) Third, after all the amounts required to be applied or accumulated pursuant to
paragraphs 5.2(a) and (b) above have been made or provided for in the current Bond Year, any
Pledged Tax Increment Revenues remaining in the Tax Increment Fund in any Bond Year may
be used to pay the debt service requirements of any Subordinate Lien Bonds, and any required
reserve fund payments or accumulations required in connection therewith.
(d) After the payments required to be made by Sections 5.2(a), (b) and (c) have been
made or provided for in any Bond Year and provided the City shall has made or provided for all
payments required in connection with the Bond in such Bond Year, any remaining Pledged Tax
Increment Revenues may be used for any one or any combination of purposes allowed by State
law, including the Downtown Development Authority Act, as the City may from time to time
determine.
(e) The sums required to make the payments specified in this Section 5.2 are hereby
appropriated for the purposes, and the amounts so required to make the payments specified in
this Section in each year shall be included in the budget and the appropriation ordinance or
measures to be adopted or passed by the Council while the Bond is outstanding and unpaid. No
provisions of any constitution, charter, statute, ordinance, resolution, or other order or measure
enacted after the issuance of the Bond shall in any manner be construed as limiting or impairing
the obligation of the City to keep and perform the covenants contained in this Agreement so long
as the Bond remains outstanding and unpaid.
5.3 Issuance of Additional Securities. So long as the Bond remains outstanding, the City may
issue additional securities payable in whole or in part from the Pledged Tax Increment Revenues
only in accordance with the following provisions:
(a) The City may issue additional Senior Lien Securities only to refund, in whole or
in part, outstanding Senior Lien Securities, provided that the debt service requirements payable
in any Bond Year on such Senior Lien Securities after such refunding is not increased above the
debt service requirements payable in such Bond Year on the Senior Lien Securities outstanding
prior to the refunding.
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(b) The City may not issue additional securities payable from the Pledged Tax
Increment Revenues having a lien thereon that is on a parity with the lien thereon of the Bond.
(c) The City may issue additional Subordinate Securities for any lawful purpose
payable from the Pledged Tax Increment Revenues having a lien thereon subordinate or junior to
the lien thereon of the Bond.
(d) Notwithstanding the foregoing or any provisions to the contrary contained herein,
the Authority may continue to renew the Line of Credit without prior approval of the Company.
5.4 City Covenants. The City hereby particularly covenants and agrees with the Company,
as the owner of the Bond, and makes provisions that shall be a part of its contract with the
Company, which covenants and provisions shall be kept by the City continuously until the Bond
has been fully paid and discharged:
(a) Continuance and Collection of Pledged Tax Increment Revenues.
(i) The Plan of Development, as approved and amended as described
in this Agreement, is now in full force and effect. The City will not revoke
its approval or amend the Plan of Development in any manner that would
materially diminish the Pledged Tax Increment Revenues.
(ii) The City shall continue to collect the Tax Increment Revenues in
accordance with the Downtown Development Authority Act and all
applicable City ordinances related thereto.
(iii) The City shall maintain the Tax Increment Fund as a fund of the
City separate and distinct from all other funds of the City and shall place
the Tax Increment Revenues therein. The Tax Increment Fund shall be
subject to appropriation only as authorized by the Downtown
Development Authority Act and all applicable City ordinances related
thereto.
(b) Defense of Legality of Pledged Revenues. There is not pending or
threatened in writing any suit, action or proceeding against or affecting the City
before or by any court, arbitrator, administrative agency or other governmental
authority that affects the validity or legality of this Agreement, any ordinance
affecting the Pledged Tax Increment Revenues or any of the City's obligations
under such ordinances. The City shall, to the extent permitted by law, defend the
validity and legality of all ordinances affecting the Pledged Tax Increment
Revenues and all amendments thereto against all claims, suits and proceedings
that would materially diminish or impair the Pledged Tax Increment Revenues.
(c) Further Assurances. At any and all times the City shall, so far as it may be
authorized by law, pass, make, do, execute, acknowledge, deliver, and file or
record all and every such further instruments, acts, deeds, conveyances,
assignments, transfers, other documents, and assurances as may be necessary or
desirable for the better assuring, conveying, granting, assigning and confirming
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all and singular the rights, the Pledged Tax Increment Revenues and other funds
and accounts hereby pledged, or intended so to be, or that the City may hereafter
become bound to pledge, or as may be reasonable and required to carry out the
purposes of this Agreement. The City, acting by and through its officers, or
otherwise, shall at all times, to the extent permitted by law, defend, preserve and
protect the pledge of the Pledged Tax Increment Revenues and other funds and
accounts pledged hereunder and all the rights of the owner of the Bond against all
claims and demands of all persons whomsoever.
SECTION 6. PAYMENT AND REBATE OF USE TAXES, DEVELOPMENT FEES
AND CAPITAL IMPROVEMENT FEES
6.1 Woodward shall pay to the City all Use Taxes, Development Fees and Capital
Improvement Fees due from Woodward in connection with the Project.
6.2 To the extent permitted by the constitution and laws of the State of Colorado and the
Charter, including but not limited to, applicable prohibitions on multiple fiscal year obligations
and the condition all obligations be contingent upon the appropriation of funds sufficient and
intended therefore by the City Council of the City, in its sole discretion, the City agrees to rebate
the following amounts to Woodward:
(a) 80% of the Use Taxes paid by Woodward for Eligible Equipment and
Construction Materials for the Project under the terms and conditions set forth in this Section 6
(the “Use Tax Rebate”), subject to the contingencies and requirements described in this
Agreement. Woodward shall not be eligible for a Use Tax Rebate for any Use Tax paid on any
Eligible Equipment or Construction Material for the Project unless it has accurately designated
and identified the Eligible Equipment or such Construction Materials on a separate schedule as
part of the Use Tax submission for such Eligible Equipment or Construction Materials.
(b) 100% of the Development Fees received by the City under the terms and
conditions set forth in this Section 6 (the “Development Fee Rebate”), subject to the
contingencies and requirements described in this Agreement.
(c) 50% of the Capital Improvement Fees received by the City under the terms and
conditions set forth in this Section 6 (the “Capital Improvement Fee Rebate”), subject to the
contingencies and requirements described in this Agreement.
6.3 The Use Tax Rebates, Development Fee Rebates and Capital Improvement Fee Rebates
(collectively, the “Rebates”) shall be conditioned upon the full payment by Woodward to the
City of all Use Taxes, Development Fee Rebates and Capital Improvement Fee Rebates, as the
case may be, due and owing from Woodward, subject to the following provisions:
(a) If Woodward has not paid any Use Taxes owed to the City due to a good faith
dispute as to whether such Use Tax is due, and such dispute has not been resolved by the time
the Company requests a Use Tax Rebate hereunder, or if Woodward otherwise fails to pay any
Use Taxes owed to the City when due and such Use Taxes remain unpaid at the time the
Company requests a Use Tax Rebate hereunder, then the City may reduce the requested Use Tax
21
Rebate by the amount in dispute until resolution of the dispute, payment of the Use Tax or
payment under protest of the Use Tax, as the case may be.
(b) If Woodward has not paid any Development Fees owed to the City due to a good
faith dispute as to whether such Development Fee is due, and such dispute has not been resolved
by the time the Company requests a Development Fee Rebate hereunder, or if Woodward
otherwise fails to pay any Development Fee owed to the City when due and such Development
Fees remain unpaid at the time the Company requests a Development Fee Rebate hereunder, then
the City may reduce the requested Development Fee Rebate by the amount in dispute until
resolution of the dispute or payment of the Development Fee, as the case may be.
(c) If Woodward has not paid any Capital Improvement Fees owed to the City due to
a good faith dispute as to whether such Capital Improvement Fee is due, and such dispute has not
been resolved by the time the Company requests a Capital Improvement Fee Rebate hereunder,
or if Woodward otherwise fails to pay any Capital Improvement Fee owed to the City when due
and such Capital Improvement Fees remain unpaid at the time the Company requests a Capital
Improvement Fee Rebate hereunder, then the City may reduce the requested Capital
Improvement Fee Rebate by the amount in dispute until resolution of the dispute or payment of
the Capital Improvement Fee, as the case may be.
6.4 The Company shall apply for the Rebates in accordance with the provisions hereinafter
set forth. The amount of Rebates payable by the City and the time when such Rebates shall be
paid are hereinafter set forth:
(a) In order to be eligible for any Use Tax Rebate hereunder,
Woodward shall submit an Application for Use Tax Rebate. Any such
Application (and each such Application for Use Tax Rebate submitted pursuant to
this Section 6.4) must identify each item of Eligible Equipment or Construction
Materials used on the Project in a manner consistent with, and corresponding to,
the manner in which such item of Eligible Equipment or Construction Materials
were designated and identified in connection with the payment of Use Taxes for
said item. Woodward shall be eligible to submit an Application for Use Tax
Rebate to the City in the first quarter of each year for any Use Taxes paid in the
prior year. The Use Tax Rebate to Woodward shall be made by the City within
ninety (90) days of receipt of such request by Woodward, subject to annual
appropriation by the City Council of funds sufficient and intended for such
purpose.
(b) In order to be eligible for any Development Fee Rebate or Capital
Improvement Fee Rebate hereunder, Woodward shall submit a request for
Development Fee Rebate or Capital Improvement Fee Rebate, as the case may be,
in a form or manner reasonably satisfactory to the City. Any such request shall
identify all applicable Development Fees or Capital Improvement Fees, as the
case may be, that have been paid by Woodward in connection with the Project.
Woodward shall be eligible to submit such a request to the City at any time for
any Development Fees or Capital Improvement Fees that have been paid at the
time of such request. The Development Fee Rebate or Capital Improvement Fee
22
Rebate to Woodward shall be made by the City within one hundred twenty (120)
days of receipt of such request by Woodward, subject to annual appropriation by
the City Council of funds sufficient and intended for such purpose.
(c) Woodward acknowledges that the Rebates are being offered by the
City in part based on certain employment levels being increased and maintained
by Woodward. Specifically, the City and Woodward have agreed that the
minimum target for employment within the City shall be 1400 Employees
hereinafter defined) by December 31, 2018. If the Company applies for a Use
Tax Rebate, Development Fee Rebate or Capital Improvement Fee Rebate prior to
December 31, 2018, then the City may withhold 40% of the requested Rebate
until it has verified that Woodward has achieved this level of employment on or
prior to December 31, 2018. If the Company’s employment level reaches or
exceeds 1400 Employees within the City on or prior to December 31, 2018, any
Use Tax Rebates, Development Fee Rebates and Capital Improvement Fee
Rebates held back by the City shall be remitted to the Company. If the
Company’s employment level has not reached 1400 Employees within the City by
December 31, 2018, but has reached 1400 Employees within the City on or prior
to December 31, 2020, then upon reaching such level, the City shall retain
$500,000 of the amount held back for all Rebates and shall remit the remaining
amount held back from all Rebates to the Company. If the Company’s
employment level has not reached 1400 Employees within the City by
December 31, 2020, the City shall be entitled to thereafter retain all amounts held
back by the City on the Rebates. In no event shall Woodward be required to
repay to the City all or any portion of the initial 60% of the Rebates paid by the
City to Woodward.
Woodward shall be considered to have reached 1400 Employees if,
throughout any four (4) week period prior to the relevant date, no fewer than 1400
Woodward Employees are working at all Woodward worksites within Fort
Collins combined. For the purposes of this provision:
(i) “Employee” means a full time employee, or the
equivalent of one full time employee, for whom Benefits
(hereinafter defined) are available and who is working at a
Woodward worksite located in Fort Collins. Multiple persons
working as permanent or contract employees on less than a full
time schedule may be deemed to constitute a full time equivalent
“Employee” for the purpose of this provision, calculated as
follows: the total number of hours worked by such multiple
persons working less than full time, divided by the total hours
customarily worked by a single full time worker. In order to be
eligible to include a non-full time person in the calculation of
equivalent full time Employees, Benefits shall be available to such
person.
23
(ii) “Benefits” shall mean benefits that are customarily
available to Woodward employees. It is mutually understood that
such benefits will be modified by Woodward and/or its contracting
agencies over time as required by law or as they otherwise deem
appropriate.
At the time of any application by Woodward for release of any Rebate amount
withheld pursuant to this Subsection 6.4(c), Woodward shall demonstrate that the
required employment level has been met by providing to the City and the Authority a
report of the number of Woodward Employees that worked at all Woodward worksites
within Fort Collins combined during the four (4) week period of compliance, in a form
reasonably satisfactory to the City.
6.5 The City, in its sole discretion, may pre-pay all or any portion of the Rebates, without
penalty.
6.6 It is not the parties’ intent that Woodward be paid or entitled to any interest or penalty on
Use Taxes, Development Fees or Capital Improvement Fees paid by Woodward, or any penalty
or interest on Rebate payments delayed or withheld by the City.
6.7 The parties further acknowledge and agree that the Use Tax Rebate for any Eligible
Equipment or Construction Materials for the Project shall not at any time be allowed to exceed
the amount of City Use Tax actually paid to the City on such Eligible Equipment or such
Construction Materials. Woodward further acknowledges and agrees that the City is in no way
responsible for the amount of City Use Tax actually paid or collected for the Eligible Equipment
or Construction Materials for the Project or any other equipment or corporeal property of
Woodward. The Use Tax Rebate as described herein is intended to be in lieu of, and not a
duplication of, the Manufacturing Equipment Use Tax Rebate Program. On an annual basis, the
Company may elect to either apply for Use Tax Rebates in accordance with the provisions
hereof, or participate in the Manufacturing Equipment Use Tax Rebate Program.
6.8 The parties agree that the provisions of this Agreement do not constitute an indebtedness
of the City within the meaning of any constitutional or statutory limitation or Charter provision.
The commitment of the City to pay the Use Tax Rebate, the Development Fee Rebate and the
Capital Improvement Fee Rebate under this Agreement is from year to year only and does not
constitute a mandatory payment obligation of the City in any fiscal year. This Agreement does
not directly or indirectly obligate the City to make any payment of a Rebate beyond those for
which funds have been appropriated as of the date of this Agreement. The City Manager (or any
other officer or employee at the time charged with the responsibility of formulating budget
proposals) shall make a good faith effort to include in the budget proposals and appropriation
ordinances proposed to the City Council, in each year prior to expiration of this Agreement,
amounts sufficient to meet the City’s commitments hereunder, subject to the conditions and
contingencies set forth herein. Notwithstanding the foregoing, the parties expressly
acknowledge that the decision as to whether to appropriate such amounts is in the discretion of
the City Council.
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SECTION 7. RECORDS AND AUDITS
7.1 Woodward shall keep true, accurate and complete records of the acquisition and
installation of the Eligible Equipment, which records shall be available for inspection by the City
without unreasonable delay and without City expense. Woodward agrees that the City has the
right, through its duly authorized agents or representatives, to examine all such records upon ten
(10) days notice at all reasonable times, as well as the right to inspect and inventory the Eligible
Equipment in order to confirm that the same is in place and in use as required in connection with
any Use Tax Rebate hereunder. This right of review and inspection terminates upon termination
of the City’s payments of Use Tax Rebates. In the event that the City becomes the custodian of
any such records which may contain trade secrets or confidential or proprietary information, and
are so marked, the City shall, to the extent permitted by law, protect the confidentiality of such
information and deny any request for inspection of such records.
7.2 The City shall keep, or cause to be kept, true, accurate and complete records of: (a) all
expenditures related to all costs incurred by the City in connection with the Improvement
Projects and the use of all funding provided by the Company to the City hereunder; (b) all
Pledged Tax Increment Revenues received by the City; and (c) all calculations relating to the
Use Tax Rebates, Development Fee Rebates and Capital Improvement Fee Rebates and such
other calculations, allocations and payments required by this Agreement. The City’s obligation
to keep records in accordance with (a) and (b) shall terminate two years after the Bond is paid in
full and the City’s obligation to keep records in accordance with (c) shall terminate one year after
all rebates have been paid or such obligation to pay rebates has terminated. The City shall make
such records available for inspection by Woodward upon ten (10) days notice at all reasonable
times, to the extent permitted by law.
SECTION 8. RESTRICTIONS ON ASSIGNMENT
8.1 The qualifications of Woodward to accomplish the objectives of the City hereunder are of
particular concern to the City and the Authority. Therefore, no voluntary or involuntary
successor in interest of Woodward shall acquire any rights or powers under this Agreement
except as expressly set forth herein and Woodward shall not assign all or any part of this
Agreement, except either:
(a) with the prior written approval of the City Council and the Board, in their sole
discretion; or
(b) as collateral to a lender in connection with the financing of the Project; or
(c) to a successor by merger, consolidation or by acquisition of all or a substantial
portion of the shares or assets of Woodward.
8.2 Woodward shall notify the City and the Authority within fifteen (15) days of any and all
changes whatsoever in the identity of the parties in control of Woodward, or the degree thereof,
of which it or any of its officers have been notified or otherwise have knowledge or information.
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SECTION 9. EVENTS OF DEFAULT; REMEDIES
9.1 Default or an event of default by Woodward shall mean one or more of the following
events:
(a) Determination that any representation or warranty made in this
Agreement by Woodward was materially inaccurate when made or shall prove to be
materially inaccurate;
(b) The assignment of, or an attempt to assign, this Agreement by Woodward
in violation of Section 8 of this Agreement; or
(c) The failure by Woodward to substantially observe or perform any other
material covenant, obligation or agreement required under this Agreement.
9.2 In order to exercise any remedy for default hereunder, upon the occurrence of any event
of default, the City or the Authority shall provide written notice to Woodward. Woodward must
immediately proceed to cure or remedy such default, and in any event, such default shall be
cured within thirty (30) days after receipt of the notice, or such longer time as the City, the
Authority and Woodward agree in writing. Upon the failure of Woodward to so cure any such
default, the City and the Authority shall have all remedies available to it, in law or in equity,
excluding specific performance.
9.3 Default or an event of default by the City shall mean one or more of the following events:
(a) A determination that any representation or warranty made in this
Agreement by the City was materially inaccurate when made or shall prove to be
materially inaccurate; or
(b) The failure by the City to perform any nonmonetary, material covenant,
obligation or agreement required of it under this Agreement.
9.4 In order to exercise any remedy for default hereunder, upon the occurrence of any event
of default, Woodward shall provide written notice to the City. The City must immediately
proceed to cure or remedy such default, and in any event, such default shall be cured within
thirty (30) days after receipt of the notice, or such longer time as the City and Woodward agree
in writing. Upon the failure of the City to so cure any such default, Woodward shall have all
remedies available to it, in law or in equity excluding specific performance.
9.5 Default or an event of default by the Authority shall mean one or more of the following
events:
(a) A determination that any representation or warranty made in this
Agreement by the Authority was materially inaccurate when made or shall prove to be
materially inaccurate; or
26
(b) The failure by the Authority to perform any nonmonetary, material
covenant, obligation or agreement required of it under this Agreement.
9.6 In order to exercise any remedy for default hereunder, upon the occurrence of any event
of default, Woodward shall provide written notice to the Authority. The Authority must
immediately proceed to cure or remedy such default, and in any event, such default shall be
cured within thirty (30) days after receipt of the notice, or such longer time as the Authority and
Woodward agree in writing. Upon the failure of the Authority to so cure any such default,
Woodward shall have all remedies available to it, in law or in equity excluding specific
performance.
9.7 Notwithstanding the foregoing or any provision to the contrary contained herein, 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.
SECTION 10. NOTICES
10.1 All notices required or permitted hereunder shall be in writing and shall be effective upon
mailing, deposited in the United States Mail, postage prepaid, and addressed to the intended
recipient as follows. Any party can change its address by written notice to the other given in
accordance with this Section. Any party can change the method by which it can receive notice
hereunder by written notice to the other parties hereunder.
City of Fort Collins: City of Fort Collins
Attention: City Manager
300 LaPorte Avenue, PO Box 580
Fort Collins, CO 80522-0580
With a copy to: City of Fort Collins
Attention: City Attorney
300 LaPorte Avenue, PO Box 580
Fort Collins, CO 80522-0580
Authority: The City of Fort Collins,
Downtown Development Authority
Attention: Executive Director
19 Old Town Square, STE 230
Fort Collins, CO 80524
With a copy to: Liley, Rogers & Martell, LLC
Attention: Lucia A. Liley
300 S. Howes Street
Fort Collins, CO 80521
27
Woodward: Woodward, Inc.
Attention: Robert K. Scott
1000 East Drake Road
Fort Collins, CO 80525
1-970-498-3033
rocky.scott@woodward.com
With a copy to: Woodward, Inc.
Attention: Steve Roberti
1000 East Drake Road
Fort Collins, CO 80525
Steve.Roberti@woodward.com
With a copy to: Brownstein Hyatt Farber Schreck LLP
Attn: Carolynne C. White
410 17th St., Suite 2200
Denver, CO 80202
303-223-1197
email: cwhite@bhfs.com
SECTION 11. MISCELLANEOUS
11.1 Future Commercial Project. The Project Development Plan includes an approximately
7.66 acre tract which has, pursuant to such plan, been approved for commercial development
which is more particularly depicted on Exhibit C attached hereto and incorporated herein by
reference. The Authority and the City agree to consider, in good faith, any future proposal for
business assistance/façade easement agreements with the Authority and/or the City in connection
with development of such tract, in accordance with the then existing regulations and policies of
the City and the Authority for such agreements, such consideration may include, but is not
necessarily limited to, purchase of façade easements, rebates of Use Tax, Capital Improvement
Fees and Development Fees, tax increment financing and the other City programs identified in
Section 11.3.
11.2 Future Expansion on Property. In connection with any future expansion by Woodward
on the Property beyond Phases One, Two, Three and Four, as set forth on the Phasing Schedule,
and which is not related to the Future Commercial Project, the Company reserves the right to
request, and the City agrees to consider in good faith, additional rebates of Use Tax, Capital
Improvement Fees and Development Fees, tax increment financing and the other City programs
identified in Section 11.3.
11.3 Participation in Utility Programs. The parties acknowledge and agree that it is their
intent and desire that Woodward partner with the City and participate in the City’s Fort Collins
Solar Program, and the City’s Integrated Design Assistance Program (with a maximum amount
up to $75,000), both offered through the City’s electric utility, as well as the City’s ClimateWise
Program, in accordance with the terms and Council authorizations for those programs. In
28
addition, the City will rebate to Woodward 50% of the Electric Development Fees paid by
Woodward, which are included among the Capital Improvement Fees to be rebated by the City
pursuant to Section 6. Such fees include any fees paid by Woodward to the City for the cost of
installation of electric facilities such as switches, transformers, substation meters, and primary
circuits, to connect the Project to the Linden Substation, pursuant to Section 26-473 and Section
26-475 of the Code. The City would own and maintain the two S&C Electric VISTA-523, 600
Amp switches anticipated to be located at the Project, in order to ensure adequate cybersecurity
controls and protection for the City’s system.
11.4 Drake Road Property. The Company's plans for expansion of its employment and
facilities within the City include possible renovation and expansion of the Company's existing
campus at 1000 Drake Road. The City agrees to consider, in good faith, any future proposal for
business assistance in connection with redevelopment or expansion of all or part of the Drake
Road property, in accordance with the then existing regulations and policies of the City for such
agreements, such consideration may include, but is not necessarily limited to, rebates of Use Tax,
Capital Improvement Fees and Development fees and other City programs being made available
for the Project pursuant to this Agreement.
11.5 Appropriation of Funds. Pursuant to the Charter, obligations of the City arising under
this Agreement are contingent upon the appropriation of funds sufficient and intended for the
same by the City Council.
11.6 Binding Effect. This Agreement inures to the benefit of and is binding upon the City, the
Authority and Woodward and Woodward’s assignees which are permitted pursuant to Section 8
of this Agreement.
11.7 No Third Party Beneficiaries. The City and the Authority are not obligated or liable under
the terms of this Agreement to any person or entity not a party hereto except any assignee
permitted pursuant to Section 8 of this Agreement. Further, the City and the Authority are not
bound by any contracts or conditions that Woodward may negotiate with third parties related to
the Project.
11.8 Interpretation, Jurisdiction and Venue. This Agreement is being executed and delivered
and is intended to be performed in the State of Colorado, and the laws of Colorado govern the
validity, construction, enforcement and interpretation of this Agreement. Exclusive jurisdiction
and venue for resolution of any dispute arising hereunder shall be in the Larimer County,
Colorado District Court.
11.9 Amendment. This Agreement may be amended only by a written instrument signed by
the parties to this Agreement.
11.10 Additional Documents or Action. The parties to this Agreement agree to execute any
additional documents or take any additional action that is necessary to carry out this Agreement
or is reasonably requested by another party to confirm or clarify the intent of the provisions
hereof and to effectuate the agreements herein contained and the intent hereof. If all or any
portion of this Agreement are asserted or determined to be invalid, illegal or are otherwise
precluded, the parties to this Agreement, within the scope of their powers and duties, shall
29
cooperate in the joint defense of such documents and, if such defense is unsuccessful, such
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.
11.11 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.
11.12 Waiver of Breach. Any waiver of any requirement or obligation hereunder must be in
writing to be effective. Any waiver by any party to this Agreement of any term or provision of
this Agreement shall be narrowly construed, and shall not operate or be construed as a
subsequent or continuing waiver of said term or provision.
11.13 Article and Section Captions. The captions of the articles and sections of this Agreement
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.
11.14 City, Authority and Woodward Not Partners. Notwithstanding any language in this
Agreement, neither the City nor the Authority is a member, partner, or joint venturer of
Woodward, and neither the City nor the Authority shall be responsible for any debt or liability of
Woodward or its contractors or agents. Woodward is not responsible for any debt or liability of
the City, the Authority, or their respective contractors or agents.
11.15 Severability. If any portion or portions of this Agreement are determined to be illegal or
unenforceable, the remainder of this Agreement shall not be affected thereby and shall remain in
full force and effect as if such illegal or unenforceable portion or portions did not exist. If all or
any portion of the payments required by the terms of this Agreement are determined, by a court
of competent jurisdiction in a final non-appealable judgment, to be contrary to public policy or
otherwise precluded, and if the decision of such court clearly indicates how the payments may be
made differently and in a manner that is legal, valid and enforceable, then the Parties shall utilize
their reasonable, best, good faith efforts to promptly restructure and/or amend this Agreement in
accordance with such court decision, or to enter into a new agreement, to assure, to the extent
legally permissible, that all payments are made to Woodward as contemplated by this
Agreement.
11.16 Originals. This Agreement may be simultaneously executed in any number of
counterparts, each of which shall be deemed original but all of which constitute one and the same
Agreement.
11.17 Joint Draft. The parties agree they drafted this Agreement jointly with each having the
advice of legal counsel and an equal opportunity to contribute to its content.
IN WITNESS WHEREOF, the City, the Authority and Woodward have executed this
Agreement as of the date first above written.
30
CITY OF FORT COLLINS, COLORADO
a municipal corporation
By:
Karen Weitkunat, Mayor
By:
Darin Atteberry, City Manager
Attest:
Wanda Nelson, City Clerk
Approved as to form:
Stephen J. Roy, City Attorney
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing Agreement with Woodward, Inc. was executed before me this ______ day of
___________________, 2013, by Karen Weitkunat, as Mayor, by Wanda Nelson, as City Clerk,
and by Darin Atteberry, City Manager, of the CITY OF FORT COLLINS, COLORADO, a
municipal corporation.
WITNESS my hand and official seal.
My commission expires
Notary Public
31
THE FORT COLLINS, COLORADO,
DOWNTOWN DEVELOPMENT AUTHORITY
_______________________________________
Wynne Odell, Chairperson
(SEAL)
Attest:
____________________________________
Janet Bramhall, Secretary
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing Agreement with Woodward, Inc. was executed before me this ______ day of
___________________, 2013, by Wynne Odell, as Chairperson, and by Janet Bramhall, as
Secretary, of THE FORT COLLINS, COLORADO, DOWNTOWN DEVELOPMENT
AUTHORITY.
WITNESS my hand and official seal.
My commission expires
Notary Public
32
WOODWARD, INC., a Delaware corporation
By:
Title:
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing Agreement with Woodward, Inc. was executed before me this _____ day of
_____________, 2013, by _______________ as __________________, of WOODWARD,
INC., a Delaware corporation.
WITNESS my hand and official seal.
My commission expires
Notary Public
33
List of Exhibits
Exhibit A Legal Description of Property
Exhibit B Description of Open Space Property
Exhibit C Description of the Project
Exhibit D Phasing Schedule for Project
Exhibit E Estimate of Value, including Exhibit E-1, illustration of Pledged Tax Increment
Revenues
Exhibit F Right of Way Improvements
Exhibit G Open Space Improvements
Exhibit H Transmission Line IGA
Exhibit I Summary of DDA/Woodward Façade Easement Agreement
Exhibit J Form of Bond
Exhibit K Application for Use Tax Rebate
LEGAL DESCRIPTION OF THE PROPERTY
A tract of land located in the Southeast Quarter of Section 12, Township 7 North, Range 69 West
and the Southwest Quarter of Section 7, Township 7 North, Range 68 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 the Southeast Quarter of said Section 12 as bearing North
89°29'04" West and with all bearings contained herein relative thereto:
Commencing at the East Quarter corner of said Section 12; thence along the North line of
said Southeast Quarter, North 89°29'04” West, 81.40 feet to the POINT OF
BEGINNING; thence, South 10°44'56” West, 40.66 feet to the northwest corner of that
tract of land described at Reception No. 94091198, recorded with the Larimer County
Clerk and Recorder; thence, along the west and southerly lines of said Reception No.
94091198 the following 3 courses and distances, South 10° 44' 56" West, 314.08 feet;
thence, South 71° 25' 09" East, 198.03 feet; thence, North 87° 59' 46" East, 138.53 feet to
the westerly right-of-way line of North Lemay Avenue; thence along said westerly right-
of-way line the following 6 courses and distances beginning with a curve concave to the
West having a central angle of 25° 27' 37", a radius of 930.93 feet, an arc length of
413.68 feet, and the chord of which bears South 10° 56' 48" East, 410.28 feet; thence,
South 01° 47' 03" West, 1519.07 feet to a point on the west line of that tract of land
described at Reception No. 20050097395, recorded with the Larimer County Clerk and
Recorder; thence, along said west line the following 4 courses and distances, South 05°
25' 37" West, 59.94 feet; thence, South 02° 03' 31" West, 64.95 feet; thence along a curve
concave to the West having a central angle of 17° 18' 36", a radius of 299.50 feet, an arc
length of 90.48 feet, and the chord of which bears South 10° 42' 48" West, 90.14 feet;
thence, South 19° 22' 04" West, 13.69 feet to the north line of East Mulberry Street;
thence, along said north line the following 2 courses and distances, North 89° 47' 09"
West, 205.09 feet; thence, North 89° 38' 44" West, 127.10 feet to the southeast corner of
Lot 2, Springer Third Subdivision, a plat of record with the Larimer County Clerk and
Recorder; thence along the easterly line of said Lot 2 the following 4 courses and
distances beginning with a curve concave to the West having a central angle of 30° 50'
23", a radius of 1013.60 feet, an arc length of 545.58 feet, and the chord of which bears
North 19° 18' 37" West, 539.01 feet; thence along a curve concave to the northeast
having a central angle of 04° 42' 22", a radius of 487.50 feet, an arc length of 40.04 feet,
and the chord of which bears North 32° 23' 02" West, 40.03 feet; thence along a curve
concave to the Southwest having a central angle of 13° 56' 38", a radius of 512.50 feet, an
arc length of 124.73 feet, and the chord of which bears North 36° 59' 47" West, 124.42
feet; thence along a curve concave to the Southwest having a central angle of 00° 36' 28",
a radius of 1023.60 feet, an arc length of 10.86 feet, and the chord of which bears North
44° 16' 20" West, 10.86 feet to the north corner of said Lot 2; thence along the
northwesterly line of said Lot 2, South 22° 29' 42" West, 24.98 feet to a point on the
northeasterly line of that tract of land described in Book 883, Page 318, recorded with the
EXHIBIT A
Page 1 of 2
Larimer County Clerk and Recorder; thence along said northeasterly line the following 2
courses and distances beginning with a curve concave to the Southwest having a central
angle of 14° 52' 11", a radius of 998.60 feet, an arc length of 259.16 feet, and the chord of
which bears North 51° 43' 42" West, 258.43 feet; thence, North 59° 09' 48" West, 276.50
feet to the northwest corner of said tract of land described in Book 883, Page 318; thence
along the west line of said tract of land, South 00° 20' 12" West, 239.20 feet to a point on
the north line of the Wastewater Treatment Plant No.1, a plat of record with the Larimer
County Clerk and Recorder; thence along said north line the following 4 courses and
distances, North 53° 16' 04" West, 5.70 feet; thence, North 79° 09' 04" West, 251.50 feet;
thence, North 88° 17' 04" West, 452.30 feet; thence, South 41° 12' 56" West, 89.29 feet;
thence, North 79° 27' 04" West, 590.41 feet; thence, North 09° 34' 10" East, 985.84 feet
to the southeast corner of Baldwin Minor Subdivision; thence along the east line of said
Baldwin Minor Subdivision, North 09° 34' 10" East, 813.89 feet to a point on the north
line of the Southeast Quarter of said Section 12; thence along said north line, South 89°
29' 04" East, 1848.09 feet to the Point of Beginning.
The above described area contains 4,427,328 square feet or 101.637 acres more or less
and is subject to all easements and rights-of-way (including E. Lincoln Avenue) now
on record or existing.
Also described as follows in the records of the Larimer County Assessor:
Parcel No. 97124-00-062;
Parcel No. 97124-00-071;
Parcel No. 97124-00-006;
Parcel No. 87073-00-096;
Parcel No. 97124-00-005;
Parcel No. 97124-00-017; and
Parcel No. 87073-00-099.
EXHIBIT A
Page 2 of 2
EXHIBIT C
(As of March 28, 2013)
Square feet
(approximate)
Planned
Completion
Date
Phase One Industrial Turbomachinery Systems Facility 209,000 Apr‐15
Receiving/material space 12,000 Apr‐15
Production Support Building 22,000 Apr‐15
Café‐multipurpose building 16,000 Apr‐15
Phase Two Headquarters Office Facility 60,000 Oct‐15
Phase Three Engine Systems Facility 209,000 Oct‐15*
Phase Four Energy Technology Center 72,000 Oct‐15
600,000
*The parties acknowledge that the stated completion date for Phase III is solely for the purpose of determining
financial commitments under this Agreement, and recognize that Woodward's present position is that Phase III
may not occur until October 2020.
Woodward Project ‐ Phasing Schedule
EXHIBIT D
EXHIBIT E
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EXHIBIT E
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EXHIBIT E
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EXHIBIT E
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EXHIBIT E
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EXHIBIT E
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EXHIBIT E
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EXHIBIT E
Page 8 of 9
EXHIBIT E
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EXHIBIT F
S
S
S
S
S
S
S
D
D
Y
R
H2O
R
H2O
H2O
H2O
H2O
H2O
W
H2O
Y
H2O
W
W
Y
Y
6'
MEDIAN LANDSCAPE &
IRRIGATION REPLACEMENT
R.O.W. PARKWAY
LANDSCAPE & IRRIGATION
MEDIAN LANDSCAPE &
IRRIGATION REPLACEMENT
R.O.W. PARKWAY
LANDSCAPE & IRRIGATION
RESTAURANT
(FUTURE)
INDUSTRIAL
TURBOMACHINERY
SYSTEMS
(PHASE 1)
PRODUCTION
SUPPORT
(PHASE 1)
0 40' 80' 160'
LINK-N-GREENS
LEMAY AVE RIGHT-OF-WAY IMPROVEMENTS - LANDSCAPE
03.26.2013
BHA Design Incorporated
1603 Oakridge Drive
Fort Collins, Colorado 80525
voice: 970.223.7577
fax: 970.223.1827
EXHIBIT F
S
S
S
S
S
S
S
S
S
S S
S
S
S
S
S
S
S
S
D
D
D D
D
Y
H2O
H2O
H2O
W
Y
H2O
H2O Y
H2O
W
H2O
H2WO
WW
W
W
Y
Y
6'
INTERIM R.O.W. IMPROVEMENTS
LANDSCAPE & IRRIGATION
INTERIM R.O.W. IMPROVEMENTS
DRY-LAND SEED
INTERIM R.O.W. IMPROVEMENTS
DRY-LAND SEED
ENGINE
SYSTEMS
(FUTURE)
INDUSTRIAL
TURBOMACHINERY
SYSTEMS
(PHASE 1)
PRODUCTION
SUPPORT
(PHASE 1)
PHASE ONE AREA
0 40' 80' 160'
LINK-N-GREENS
LEMAY AVE RIGHT-OF-WAY IMPROVEMENTS - LANDSCAPE
Intergovernmental Agreement for the Design and Relocation of Platte River Power Authority Transmission Facilities
Page 1 of 3
INTERGOVERNMENTAL AGREEMENT FOR THE DESIGN AND RELOCATION OF
PLATTE RIVER POWER AUTHORITY TRANSMISSION FACILITIES
This Intergovernmental Agreement for the Design and Relocation of Platte River Power
Authority Transmission Facilities is entered on this __ day of ____________, 2013, between
Platte River Power Authority, a political subdivision of the State of Colorado (Platte River), and
the City of Fort Collins, a Colorado home rule municipality (Fort Collins).
RECITALS
WHEREAS, Platte River owns and operates a 230kV/115kV double circuit overhead
transmission line that crosses the Link-N-Greens Golf Course in Fort Collins; and
WHEREAS, Woodward, Inc. (Woodward) is considering moving its corporate
headquarters facilities to the property currently occupied by Link-N-Greens Golf Course; and
WHEREAS, in order to make the Link-N-Greens Golf Course property useable as a
Woodward headquarters complex, approximately 3600 linear feet of the overhead transmission
line crossing the Link-N-Green property, specifically the line segment between structures TP-28
on the north and TP-19 on the south (Transmission Facility) will need to be removed and new
transmission facilities of a like configuration relocated to a route that runs parallel to Lemay
Street (Relocated Transmission Facility); and
WHEREAS, construction schedules for Woodward facilities may necessitate the
construction and removal of a Temporary Transmission Facility; and
WHEREAS, Platte River is willing to remove the Transmission Facility, to construct and
remove the Temporary Transmission Facility, and design and construct the Relocated
Transmission Facility to accommodate the requirements of Woodward, provided it is
reimbursed for the costs associated with this effort; and
WHEREAS, Fort Collins is negotiating with Woodward and the Fort Collins Downtown
Development Authority to develop a plan for funding of public improvements and related
financial incentives and financing arrangements in light of the expected benefits to the Fort
Collins community in the event that Woodward constructs its new headquarters facility as
described herein; and
WHEREAS, subject to the specific terms of this Agreement, Fort Collins is willing to
reimburse Platte River the reasonable costs of removal of the Transmission Facility, the
EXHIBIT H
Page 1 of 6
Intergovernmental Agreement for the Design and Relocation of Platte River Power Authority Transmission Facilities
Page 2 of 3
reasonable costs of construction and removal of the Temporary Transmission Facility, if
necessary, and the reasonable costs of design and construction of the Relocated Transmission
Facility; and
WHEREAS, the parties have the authority under C.R.S. § 29-1-203 to enter into
intergovernmental agreements provided such agreements are approved by the legislative body
of each party.
AGREEMENT
1) Platte River agrees to undertake the removal of the Transmission Facility, the
construction and removal of the Temporary Transmission Facility, if necessary,
and the design and construction of the Relocated Transmission Facility on the
Link-N-Green Golf Course, in accordance with plans and specifications mutually
approved and consistent with the reasonable expectations of the parties (the
“Work”). The routes of the Temporary Transmission Facility and the Relocated
Transmission Facility are displayed on Exhibit A. The Temporary Transmission
Facility and the Relocated Transmission Facility will be constructed overhead.
2) Fort Collins agrees to reimburse Platte River for all reasonable costs incurred in
the performance of the Work; provided however that Fort Collins will have no
reimbursement obligation unless and until: 1) Fort Collins provides written
notice to Platte River that Fort Collins has completed the arrangements necessary
for Fort Collins to move forward with the financing or funding of the Work; and
2) Woodward purchases the Link-N-Green property. If the obligation to
reimburse Platte River accrues, Fort Collins acknowledges that some of the
reimbursable costs were incurred by Platte River prior to the date of this
Agreement, but such costs, if reasonable and necessary for the completion of the
Work, will be treated as part of the Work and reimbursable hereunder.
3) Platte River will invoice Fort Collins for the costs of the relocation project on a
quarterly basis, invoices payable within thirty (30) days of receipt. Invoices will
itemize all costs for which reimbursement is sought.
4) Exhibit B contains an estimate of the costs for the removal of the Transmission
Facilities, the construction and removal of the Temporary Transmission Facility,
and costs for the design and construction of the Relocated Transmission Facility.
Fort Collins acknowledges that Exhibit B is an estimate of anticipated costs, and
EXHIBIT H
Page 2 of 6
Intergovernmental Agreement for the Design and Relocation of Platte River Power Authority Transmission Facilities
Page 3 of 3
that actual costs may vary. Subject to the limitations set forth herein, Fort Collins
is responsible for the reimbursement of all reasonable costs incurred by Platte
River to carry out the Work. In the event that Platte River discovers conditions
or circumstances that are expected to lead to costs in excess of the estimates
contained in Exhibit B, Platte River will promptly notify Fort Collins in writing of
such conditions or circumstances and will discuss with Fort Collins such cost
impacts and possible mitigation. If the reimbursable costs of the Work exceed
$2,000,000.00, Platte River will credit Fort Collins all “PRPA Project
Management” expenses, presently estimated to amount to $168,000.00.
5) Financial obligations of Fort Collins payable in future fiscal years shall be subject
to the annual appropriation of funds sufficient and intended for the same. Fort
Collins will notify Platte River in writing as soon as practicable concerning the
appropriation of funds during future fiscal years. Platte River will have no
obligation to perform any activity associated with the Work beyond December
31, 2013, unless and until receipt of notice that funds have been appropriated.
6) This is the entire agreement of the parties on this issue. This Agreement may
only be modified by a writing executed by both parties.
7) Fort Collins agrees to be the lead agency and take responsibility for all public
processes and for obtaining all necessary permits for the work.
IN WITNESS WHEREOF, the Parties have caused this Agreement, to be executed the
day and year first above written.
PLATTE RIVER POWER AUTHORITY ATTEST:
By: By:
General Manager Assistant Secretary
CITY OF FORT COLLINS, COLORADO ATTEST:
By: By:
Mayor City Clerk
EXHIBIT H
Page 3 of 6
EXHIBIT H
Page 4 of 6
EXHIBIT H
Page 5 of 6
EXHIBIT H
Page 6 of 6
SUMMARY OF DDA/WOODWARD
FAÇADE EASEMENT AGREEMENT
I. Introduction
A. Woodward is proposing to develop its project, the Link-n-Greens Project
Development Plan, #PDP130001 (the “Project”) in four (4) phases.
B. Woodward has requested DDA funding of its eligible building facades, which are
those fronting East Lincoln Avenue, the Poudre River and the Open Space Natural Area between
the Project and the Poudre River, as shown on an attached exhibit (“Eligible Facades”).
C. The DDA has received the Larimer County Assessor’s Estimate of Value
Worksheet dated January 29, 2013, relating to the Project.
D. Based on the Estimate of Value and the Phasing Schedule, the DDA has
calculated the maximum amount of Project Tax Increment Revenues (same definition as
“Pledged Tax Increment Revenues” in Agreement with Woodward, Inc.) available per Phase to
reimburse Woodward for the design and construction costs of its Eligible Facades.
E. Woodward and the DDA desire to enter into an agreement whereby the DDA,
utilizing its Line of Credit, can annually make payments to Woodward to reimburse Façade
Improvement costs in exchange for the grant of Façade Easements to the DDA.
II. Agreement
A. Commitments to Proceed with Project by April 30, 2013 and Acquire the Property
by no later than July 31, 2013.
B. Maximum Façade Reimbursements
1. By Phases:
Phase 1: $1,500,000
Phase 2: $ 800,000
Phase 3: $ 900,000
Phase 4: $ 600,000
2. Total Reimbursement: Up to $3,800,000
C. Description of Eligible Façade Improvements by Phase:
Phase One: The facia, soffits, exterior walls, signage, doors, windows, canopies
and all structural support materials therefor for the south façade of the Industrial
Turbomachinery Systems Building, the south façade of the Cafeteria/Multi-
Purpose Building and the north façade of the Production Support Building;
EXHIBIT I
Page 1 of 3
Phase Two: The facia, soffits, exterior walls, signage, doors, windows, canopies
and all structural support materials therefor for the southwest façade of the
Headquarters – Office Facility;
Phase Three: The facia, soffits, exterior walls, signage, doors, windows, canopies
and all structural support materials therefor for the southwest façade of the Engine
Systems Facility Building; and
Phase Four: The facia, soffits, exterior walls, signage, doors, windows, canopies
and all structural support materials therefor for the north façade of the Energy
Technology (Test) Center Building.
D. Conditions precedent to reimbursement for each set of Eligible Façade
Improvements by Phase:
1. Final designs submitted by Woodward and approved by DDA Board;
DDA Façade Design Policies will be attached to the Façade Reimbursement
Agreement as an exhibit (i.e. elements relating to quality materials, pedestrian-
friendly street presentation and timeless design).
2. Construction to be completed in accordance with final designs.
3. Customary documentation provided to DDA regarding such completion
and actual eligible construction costs; DDA staff certification of total DDA façade
reimbursement obligation for the Phase based on actual costs up to the maximum
reimbursement amount for the Phase.
4. Execution of a façade easement for each façade funding request in
accordance with façade easement form attached to the Façade Reimbursement
Agreement as an exhibit.
5. Title insurance provided for each closing by Woodward and payment of
closing costs.
E. Reimbursement of Façade Costs
1. One year from completion of Phase 1 improvements (anticipated to be
2016), payments made annually on December 1st, from DDA’s Line of Credit in
accordance with a Payment Schedule using Tax Increment Revenues based on
Assessor’s Estimate of Value and the Phasing Schedule.
2. Reimbursement subject to annual DDA Board resolution recommending
City Council appropriation of a Line of Credit draw equal to annual amount of the
façade reimbursement payment and the debt service from Project Tax Increment
Revenues to service the Line of Credit debt and City Council adoption of an
EXHIBIT I
Page 2 of 3
ordinance appropriating the Line of Credit draw equal to the annual amount of the
façade reimbursement payment and the debt service from Project Tax Increment
Revenues to service the Line of Credit debt.
3. Annual amount of Project Tax Increment Revenues available is allocated
between payments on the Bond and reimbursements for Façade Easement which
allocation changes depending upon the Phases of the Project which are completed.
4. If Phases Two, Three or Four are delayed beyond twenty-four (24) months
from the Completion dates shown on the Phasing Schedule, the Maximum Façade
Reimbursement by Phase shall, for each year of delay beyond such twenty-four
(24) month period, be reduced by the Allocated Project Tax Increment Revenues
percentage shown on the Payment Schedule.
F. Façade Easements
1. 25-year term.
2. Continuing obligations:
• Maintenance of facade improvements.
• Maintaining adequate insurance.
• Prior DDA approval for alterations or additions to façades funded by
DDA (including signage).
G. Covenant not to seek a reduction in the Project’s property tax assessed valuation
or a tax abatement to an amount below that needed to generate sufficient Project Tax
Increment Revenues to pay the Façade Reimbursement and the Bond based on the
Estimate of Value and the Phasing Schedule.
H. Representation regarding environmental conditions of the Property.
EXHIBIT I
Page 3 of 3
1
EXHIBIT J
FORM OF THE BOND
UNITED STATES OF AMERICA
STATE OF COLORADO COUNTY OF LARIMER
CITY OF FORT COLLINS
DOWNTOWN DEVELOPMENT AUTHORITY
SUBORDINATE TAX INCREMENT REVENUE BOND
SERIES 2013A
Date of Bond: ______ __, 2013
The City of Fort Collins, in the County of Larimer and State of Colorado, for value
received, hereby promises to pay to the order of Woodward, Inc., a Delaware corporation (the
“Company”), in accordance with the terms of the Agreement with Woodward, Inc., dated
______ __, 2013, among the City, The Fort Collins, Colorado, Downtown Development
Authority and the Company, as the same may be amended, restated or modified (the
“Agreement’), the principal sum of Six Million Fifty Thousand Dollars
($6,050,000) plus any compounded interest, as set forth in the Agreement (the
“Reimbursement Amount”). All capitalized terms used and not otherwise defined in this Bond
shall have the respective meanings ascribed to them in the Agreement. The unpaid principal
balance of this Bond at any time shall be the total amount funded by the Company to design,
acquire, construct and install the Improvement Projects pursuant to the Agreement, less the
amount of payments of the principal made on this Bond, plus any compounded interest.
Interest shall accrue on this Bond in accordance with the provisions set forth in the
Agreement. Payments on this Bond shall be made in accordance with the provisions set forth
in the Agreement. All such payments of principal and interest shall be made in lawful
currency of the United States in immediately available funds as directed in writing by the
Company.
This Bond is a special and limited obligation of the City payable solely out of and
secured by a pledge (but not necessarily an exclusive pledge) of the Pledged Tax Increment
Revenues, all as more specifically provided in the Agreement. At the time of issuance of this
Bond, certain bonds and other obligations are outstanding that have a lien on the Pledged Tax
Increment Revenues that is superior and senior to the lien thereon of this Bond. Additional
bonds and other types of securities may be issued and made payable from the Pledged Tax
Increment Revenues having a lien thereon superior and senior to the lien of this Bond in
accordance with the provisions of the Agreement.
This Bond does not constitute a debt or an indebtedness of the City within the meaning of
any constitutional, charter or statutory provision or limitation of the State of Colorado or of the
City. This Bond is not a general obligation of the City, and the full faith and credit of the City is
not pledged for the payment of the principal of or interest on this Bond.
1 of 4
2
Reference is hereby made to the Agreement, and to any and all modifications and
amendments thereof, for a description of the provisions, terms and conditions upon which this
Bond is issued and secured, including, without limitation, the nature and extent of the security
for this Bond, the bonds and other obligations that are currently outstanding and that have a lien
on the Pledged Tax Increment Revenues that is senior to the lien thereon of this Bond, provisions
with respect to the collection and disposition of the Pledged Tax Increment Revenues, and the
nature and extent of the security and pledge afforded thereby for the payment of the principal of
and interest on this Bond.
This Bond is authorized and issued for the purpose of financing certain improvements and
projects pursuant to, by virtue of and in full conformity with the Constitution of the State of
Colorado, the City Charter, the Downtown Development Authority Act, and all other laws of the
State of Colorado thereunto enabling and pursuant to an election held November 7, 2006, and the
ordinance duly adopted prior to the issuance of this Bond. This Bond is also issued pursuant to
Title 11, Article 57, Part 2, C.R.S. (the “Supplemental Act”). Pursuant to Section 11-57-210 of
the Supplemental Act, this recital shall be conclusive evidence of the validity and the regularity
of the issuance of the Bond after its delivery for value.
Interest on this Bond is not excluded from gross income or alternative minimum taxable
income under federal income tax laws in effect on the date of delivery of this Bond.
IN WITNESS WHEREOF, the City has caused this Bond to be executed in its name and
on its behalf with the facsimile or manual signature of the Mayor of the City, to be sealed with a
facsimile or manual impression of the seal of the City, to be attested with the facsimile or manual
signature of the City Clerk of the City, and to be countersigned with the manual signature of the
Financial Officer of the City.
CITY OF FORT COLLINS, COLORADO
(CITY) By: (Facsimile or Manual Signature)
(SEAL) Mayor
ATTEST:
(Facsimile or Manual Signature)
City Clerk
Countersigned:
(Manual Signature)
Financial Officer
2 of 4
3
FUNDING PROVIDED BY COMPANY
The following amounts have been funded by the Company in accordance with the
terms of the Agreement authorizing the issuance of this Bond.
Date of Funding Amount of Funding
3 of 4
PUBFIN/1634749.1 4
PAYMENT PANEL
The following installments of principal of this Bond have been paid in accordance
with the terms of the Agreement authorizing the issuance of this Bond.
Date of
Payment
Principal
Paid
Signature of
Authorized Representative of
the Company
4 of 4
City of Fort Collins
Economic Development - Use Tax Rebate Application
2013
Company Name
Mailing Address
Contact Person
Project Information:
Date Project Operations began in Fort Collins
Briefly describe project operations? (Please include: Project Phase & Business Unit/Division)
Rebate Information:
Signature of Taxpayer Title Date
Square footage of Project facility _________________________
A claim by an agent must be accompanied by power of attorney.
I hereby authorize the City to review and consider sales and use tax records, vendor records, contract and other information available
regarding the company's eligibility for a rebate under this program. I further authorize the City to release to the public information
contained in this application, as well as information regarding any rebates issued to the company under this rebate program.
I declare under penalty of perjury that this claim (including any accompanying schedules and statements) has been examined by me
and to the best of my knowledge and belief is true and made in good faith for the stated purpose. Further, I represent and warrant that I
have the necessary authority to execute this application on behalf of the company, and to make the above certifications, authorizations,
and declaration.
The following information is mandatory for the rebate process.
Phone Number __________________________
Fort Collins License Number ______________
Purchase price of Eligible Equipment purchased in 2013: __________________________________
Amount of rebate requested: ____________________________________
I certify to the best of my actual knowledge, after reasonable investigation, that the company requesting this rebate is in compliance
with all Federal, State and local laws and regulations for the manufacturing facility located in Fort Collins. I also certify, to the best of
my actual knowledge, after reasonable investigation, that the company is current with all City of Fort Collins contractual, payment and
sales and use tax obligations.
EXHIBIT K
Page 1 of 2
OTHER INFORMATION
You must provide a list of the Eligible Equipment purchased that includes the following:
1. Invoice number
2. Invoice date
3. Vendor name
4. Description of machinery purchased
5. Intended use of the machinery
6. Date the use tax was paid to the City of Fort Collins
7. Purchase price of the equipment
8. Amount of purchase subject to Fort Collins tax
9. Amount of Fort Collins use tax paid
You are not required to submit copies of the invoices for which the rebate is requested. However, in the event
that there are questions regarding the eligibility of certain equipment, supporting documentation, including
invoices, will be required.
Submit applications and list of equipment purchased to:
City of Fort Collins
Financial Services
Attn: Jessica Ping-Small
P.O. Box 580
Fort Collins, CO 80522-0580
For specific questions regarding the rebate program, call Jessica Ping-Small at (970) 221-6626.
For general sales and use tax questions, call the Sales Tax Office at (970) 221-6780.
Application may be submitted by March 31, 2014
EXHIBIT K
Page 2 of 2
03.26.2013
BHA Design Incorporated
1603 Oakridge Drive
Fort Collins, Colorado 80525
voice: 970.223.7577
fax: 970.223.1827
EXHIBIT F