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HomeMy WebLinkAbout2004-093-07/27/2004-APPROVING AN AGREEMENT BETWEEN THE CITY AND BAYER PROPERTIES TO PROVIDE FINANCIAL ASSISTANCE FOR THE RESOLUTION 2004-093 OF THE COUNCIL OF THE CITY OF FORT COLLINS APPROVING AN AGREEMENT BETWEEN THE CITY AND BAYER PROPERTIES TO PROVIDE FINANCIAL ASSISTANCE FOR THE SUMMIT FRONT RANGE SHOPPING CENTER WHEREAS, on August 19, 2003, the City Council approved amendments to the Harmony Corridor Standards and Guidelines and the City's Land Use Code to allow for the potential development of a Lifestyle Shopping Center in the Harmony Corridor; and WHEREAS, on October 16, 2003, the Planning and Zoning Board approved the "Summit Fort Collins Shopping Center Phase I Project Development Plan" (aka the "Summit Front Range Shopping Center"or the"Lifestyle Center")at the location of Harmony Road and Ziegler Road;and WHEREAS,the first phase of the Lifestyle Center will be approximately 500,000 square feet in size and will encompass approximately 90 acres; and WHEREAS, the Lifestyle Center, if constructed, will be a retail center with amenities and retail outlets sufficient to attract shoppers to the Fort Collins area above and beyond those of the existing Foothills Mall; and WHEREAS,the development of the Lifestyle Center will enable the City to better maintain its place as the regional retail center of Northern Colorado in the face of competing retail facilities that could otherwise draw significant retail sales revenues out of the Fort Collins community; and WHEREAS,subsequent to the Planning and Zoning Board's approval ofthe Lifestyle Center, City staffhas been working with the developer of the Lifestyle Center("Bayer Properties")to discuss ways in which the City can provide financial assistance to the Lifestyle Center that will enhance the likelihood that the Lifestyle Center will actually be developed; and WHEREAS,Bayer Properties estimates that it will invest over$70 million in the Lifestyle Center, including approximately $13,240,000 for public improvements that will be necessary to offset the impacts of the Lifestyle Center, and that will also benefit future development and the community at large; and WHEREAS,according to preliminary estimates,Bayer Properties will also pay City fees and taxes related to the construction of the Lifestyle Center in the approximate amount of$5,980,000; and WHEREAS, a recent report conducted by Economic Planning Systems, Inc. has concluded that,in its first year of operation,the Lifestyle Center will generate approximately$4.5 million worth of sales tax revenue for the City, including approximately$1.5 million in net new revenue, which revenues would constitute a substantial increase to the tax base of the City; and WHEREAS, according to said report, the development of the Lifestyle Center will prevent additional sales from leaving Fort Collins to other shopping venues in Northern Colorado and elsewhere; and WHEREAS,in order to encourage the development of the Lifestyle Center,the Interim City Manager is recommending to the City Council that the Council support a package of financial assistance for the Lifestyle Center consisting of three components: the deferral of impact fees, the sharing of new tax revenues generated by the Lifestyle Center, and the collection of a public improvement fee to be imposed by Bayer Properties upon the purchase of all goods and services at the Lifestyle Center except the purchase of food; and WHEREAS, the City Council has,through the adoption of Resolution 2004-074 on June 15, 2004, expressed its support for the foregoing package of financial assistance; and WHEREAS,the City Council has determined that the provision of such financial assistance is in the best interests of the City and will serve the important public purposes of increasing employment in the City,stabilizing and improving the long term tax base of the City and providing additional economic development benefits to the City; and WHEREAS, City staff has prepared for Council's consideration an agreement between the City and Bayer Properties(the "Agreement")implementing the direction provided by the Council in Resolution 2004-074, which Agreement sets forth the terms and conditions upon which financial assistance will be provided to Bayer Properties by the City; and WHEREAS, the City Council believes that the Agreement is in the best interests in the City. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS as follows: Section 1. That the City Council hereby finds that the provision of financial assistance to Bayer Properties by the City,upon the terms and conditions contained in the Agreement, is in the best interests of the City and serves the important public purposes of increasing employment within the City, stabilizing and improving the long-term tax base of the City, and promoting economic development within the City. Section 2. That the Agreement,in substantially the form contained in Exhibit"A" attached hereto and incorporated herein by this reference,is hereby approved by the Council, subject to such modifications as maybe deemed necessary by the Interim City Manager,in consultation with the City Attorney, in order to further the purposes of the Agreement. Section 3. That the Interim City Manager is hereby authorized to execute the Agreement on behalf of the City. Passed and adopted at an adjourned meeting of the City Council hel s 27th day of July, A.D. 2004. ayor ATTEST! City Clerk IN,P",2 �i EXHIBIT A FINANCIAL ASSISTANCE AGREEMENT PERTAINING TO THE DEVELOPMENT OF THE THE SUMMIT FRONT RANGE SHOPPING CENTER THIS AGREEMENT is entered into this day of 2004, by and between the City of Fort Collins, Colorado, a Colorado home rule municipality(the"City"); Bayer Properties Incorporated, an Alabama Corporation and JDJ Development Company, L.L.C., a Delaware limited liability company authorized to do business in Colorado. RECITALS WHEREAS, on October 16, 2003, the Planning & Zoning Board of the City approved the "Summit Fort Collins Shopping Center Overall Development Plan and Phase I Project Development Plan" (also known as The Summit Front Range Shopping Center and referred to below as the "Lifestyle Center") at the location of Harmony Road and Ziegler Road; and WHEREAS,the first phase ofthe Lifestyle Center will be approximately 500,000 square feet in size and will encompass approximately 90 acres; and WHEREAS, the Lifestyle Center will be a retail center with amenities and retail outlets sufficient to attract shoppers to the Fort Collins area above and beyond those of the existing Foothills Mall; and WHEREAS,the development of the Lifestyle Center will enable the City to better maintain its place as the regional retail center of Northern Colorado in the face of competing retail facilities that could otherwise draw significant retail sales revenues out of the Fort Collins community; and WHEREAS, the Developer estimates that it will invest over $70 million in the Lifestyle Center, including approximately $13,240,000 for public improvements that will be necessary to offset the impacts of the Lifestyle Center, and that will also benefit future development and the community at large; and WHEREAS, the Developer will also pay an estimated $5,980,000 in City fees and taxes related to the construction of the Lifestyle Center; and WHEREAS,a recent report conducted by Economic Planning Systems,Inc.obtained by the City has concluded that, in its first year of operation, the Lifestyle Center will generate approximately $4.5 million worth of sales tax revenue for the City, including approximately $1.5 million in net new revenue, which revenues will constitute a substantial increase to the tax base of the City; and Page 1 of 13 WHEREAS, according to said report,the development of the Lifestyle Center will prevent additional sales from leaving Fort Collins to other shopping venues in Northern Colorado and elsewhere; and WHEREAS,in order to encourage the development of the Lifestyle Center,the City Council has determined,through the adoption of Resolution 2004-074 on June 15,2004,that it is in the best interests of the City to provide a package of financial assistance for the Lifestyle Center consisting of three components: the deferral of impact fees,the sharing of new tax revenues generated by the Lifestyle Center,and the collection of a public improvement fee to be imposed by Bayer Properties upon the purchase of all goods and services at the Lifestyle Center except the purchase of food for domestic home consumption as referenced in Sec. 25-71 of the Code; and WHEREAS, the City Council has further determined, through the adoption of Resolution 2004-093 that providing such financial assistance to the Lifestyle Center will serve the important public purposes of increasing employment in the City, stabilizing and improving the long term tax base of the City and providing additional economic development benefits to the City. NOW,THEREFORE,for and in consideration of the mutual covenants herein contained and other good and valuable consideration,the receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows. SECTION 1. DEFINITIONS In this Agreement,unless a different meaning clearly appears from the context,the following definitions shall apply: "Affiliate", shall mean any person directly or indirectly controlling, controlled by, or under common control with the Developer. For the purposes of this definition,"control'(including with correlative meaning, the terms "controlling," "controlled by" and "under common control'), as applied to any person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies ofthat person,whether through the ownership of voting securities,by contract or otherwise,and"person"means and includes natural persons,corporations, limited partnerships,general partnerships,joint stock companies,joint ventures,associations,limited liability companies, trusts, land trusts, business trusts or other organizations, whether or not legal entities. "Agreement"shall mean this Financial Assistance Agreement Pertaining to the Development of the The Summit Front Range Shopping Center, and all exhibits thereto. "Base Sales Tax Levy"shall mean that portion of the sales tax imposed under Sec. 25-73 of the Code at the rate of two and twenty-five hundredths percent(2.25%),less any sales taxes imposed upon the sale of food for domestic home consumption as defined in Sec. 25-71 of the Code. Page 2 of 13 "Base Sales Tax Revenues" shall mean all sales tax revenues derived from the Base Sales Tax Levy. "Calendar Quarter" shall mean any three(3)month period beginning on January 1,April 1, July 1 or October 1, commencing with the first calendar quarter after the date of execution of this Agreement. "Charter" shall mean the Charter of the City. "City" shall mean the City of Fort Collins, Colorado. "City Council" shall mean the Council of the City. "Code" shall mean the Code of the City as maintained in the office of the Fort Collins City Clerk and as amended from time to time by the City Council. "Developer" shall mean Bayer Properties Incorporated, an Alabama corporation, or JDJ Development Company,L.L.C., a Delaware limited liability company authorized to do business in Colorado,the principals of Bayer Properties Incorporated(Jeffrey Bayer and David Silverstein),or any other Affiliate of any of the foregoing that is the owner or ground lessee of the Lifestyle Center, or any permitted assignee as provided under Section 9 of this Agreement. "Development Agreement"shall mean the development agreement to be executed between the City and the Developer setting forth the specific terms and conditions upon which the Lifestyle Center has been approved in the City. "Earmarked Tax Revenues"shall mean all sales tax revenues specified in Sec. 25-75 of the Code as being dedicated for specific purposes. "Impact Fees" shall mean and include all fees required to be paid by the Developer to the City under the Development Agreement or the Code as a condition of approval of the Lifestyle Center including,without limitation,any capital improvement expansion fees established in Chapter 7.5, Article II of the Code as well as any plant investment fees required under the Code as a condition of providing water,wastewater,stormwater or electric utilities to the Lifestyle Center by the City. "Lifestyle Center" shall mean the "Summit Fort Collins Shopping Center Overall Development Plan and Phase I Project Development Plan",as approved by the City's Planning and Zoning Board on October 16, 2003. "Net New Sales" shall mean 42% of the taxable sales generated by the Lifestyle Center, excluding sales of food for domestic home consumption as referenced in Sec. 25-71 of the Code, which the parties agree is the portion of the total retail sales at the Lifestyle Center attributable to Page 3 of 13 new retail sales occurring because of the Lifestyle Center and not displaced from other pre-existing retail outlets in the City. "Public Improvement Fee" shall mean a fee equivalent to one-half of one percent (0.50%) on the full purchase price paid or charged for tangible personal property and taxable services sold or purchased at retail at the Lifestyle Center except those specifically exempted under Sec.25-73(c) of the Code and except"food" as defined in Sec. 25-71 of the Code. "Sales Tax Increment" shall mean all sales tax revenue generated by the imposition of the City's Base Sales Tax Levy on Net New Sales at the Lifestyle Center. SECTION 2. DEFERRAL OF IMPACT FEES. 2.1 The City estimates that the Developer will be responsible for the payment of approximately Five million Nine Hundred Eighty Thousand dollars($5,980,000.00)in City Impact Fees. The parties agree that payment of the following Impact Fees may be deferred by the Developer for a period of up to five(5)years from the date of issuance of the first building permit for a structure at the Lifestyle Center: Development Construction Permit Construction Inspection Fee Building Permit Fee Plan Check Fee General Government Capital Improvement Expansion Fee Police Capital Improvement Expansion Fee Fire Capital Improvement Expansion Fee Sewer Connections Sewer Connections for Restaurants Water Connections Water Meters Water Raw Water Requirement Irrigations Connections Irrigation Raw Water Requirement Irrigation Meters Sewer Development Review Fee Water Development Review Fee Water Main Repayment Stormwater Discharge Review fee Stormwater Discharge Permit Electrical Off-Site Facility Fees Electrical On-Site Facility Fees 2.2 Interest will be payable by the Developer upon the outstanding amount of the fees deferred under Section 2.1 above,at the rate of two and two tenths percent(2.2%)per year(simple Page 4 of 13 interest),from the date of issuance of the first building permit for the Lifestyle Center to the date that such fees are actually paid to the City;provided,however,that,if any of the foregoing fees have been increased or decreased by the City Council during the deferral period, the Developer shall pay the fee in effect at the time of such payment,in lieu of the initial fee plus interest. In order to enable the Developer to determine whether to pay the initial fee plus interest prior to the date that such fee may be increased or decreased by the City Council,the City will provide written notice to the Developer of any such proposed fee increase or decrease, which notice shall be provided to the Developer no less than thirty (30) days before the date of the City Council's formal consideration of the fee increase or decrease. In the event that the City fails to timely provide such written notice as required under this provision, the Developer will be responsible for paying the lesser of either the initial fee plus interest or the fee at the time of payment. 2.3. The Impact Fees which may be deferred by the Developer under this provision shall not include any stormwater basin fees payable under Sec. 26-511 of the Code or any electric development fees or charges payable under Sec. 26-471 or Sec. 26-473 of the Code unless and until said Code sections have been amended by the City Council so as to permit such deferral. SECTION 3. COLLECTION OF PUBLIC IMPROVEMENT FEE 3.1 The Developer agrees to use its best commercially reasonable efforts to include in all agreements between the Developer and retail tenants or occupants at the Lifestyle Center, or in recorded instruments affecting the Lifestyle Center, a provision requiring such retail tenants and other occupants to pay the Public Improvement Fee, and the City agrees to collect all revenues generated by such fees at the same time and in the same manner as it collects City sales taxes due from such tenants or occupants. Said Public Improvement Fees shall be imposed upon such tenants and occupants until the amount of Eight Million and no/100 Dollars ($8,000,000) is generated. 3.2 The proceeds of the Public Improvement Fee, when collected by the City, shall be deposited into a separate, internal escrow account for the benefit of the Developer and shall not be the property of the City. The proceeds shall be held solely for disbursement to the Developer pursuant to the terms and condition of this Agreement, and shall not be considered revenue of the City for any purpose. Within sixty(60)days following the close of each Calendar Quarter,the City shall pay to the Developer the entire amount of Public Improvement Fee revenues received by the City during that Calendar Quarter. SECTION 4. REIMBURSEMENT OF SALES TAX INCREMENT REVENUES 4.1 To the extent not prohibited under the constitution and laws of the State of Colorado or the Charter, the City shall pay to the Developer fifty percent (50%) of the Sales Tax Increment actually received by the City from the Lifestyle Center. The City shall begin to collect such Sales Taxes Increment, and shall hold the same for payment to the Developer according to the terms and conditions of this Agreement, immediately upon receipt of the first sales tax revenues from the Lifestyle Center. The City shall thereafter commence payment of the Sales Tax Increment to the Page 5 of 13 Developer when stores occupying no less than two hundred fifty thousand square feet(250,000 sq. ft.) of the Lifestyle Center have been opened to the public and have begun operations, and construction of at least three hundred fifty thousand square feet (350,000 sq. ft.) of the Lifestyle Center has been completed, as evidenced by temporary certificates of occupancy. Upon the occurrence of these conditions, quarterly payments of the Developer's share of such Sales Tax Increment shall be made by the City to the Developer within sixty(60)days following the close of each Calendar Quarter. The City's efforts to collect such Sales Tax Increment from retail sales at the Lifestyle Center shall be consistent with the City's overall efforts to collect sales tax revenues. Nothing in this Agreement shall be construed as imposing upon the City any obligation to exert special efforts in the collection of such revenues. 4.2 The payment of Sales Tax Increment by the City to the Developer shall continue for such period of time as may be necessary to pay the amount of Five million and no/100 dollars ($5,000,000.00) to the Developer, or for a period of ten (10) years from the date of the first such payment,whichever first occurs,with the understanding that the City's obligation to pay such Sales Tax Increment Revenues shall apply only to the City's Base Tax Levy of 2.25%and shall not apply to any Earmarked Tax Revenues received by the City. 4.3 The City's payment obligation under this Section shall be limited to the amount of the Sales Tax Increment actually received by the City. Nothing herein shall be construed to require the City to make any payments to the Developer in excess of such amount. Accordingly, the Developer agrees to assume the entire risk that the Sales Tax Increment generated by the Lifestyle Center will be insufficient to enable the City to pay Five million and no/100 dollars($5,000,000.00) to the Developer within the ten (10) year period referenced in Section 4.2. 4.4. If the City's Base Sales Tax Levy is decreased during the ten-year period described in Section 4.2, then such period shall be extended by a time period reasonably necessary to enable the City to pay the five million dollars referenced in Section 4.3, up to a maximum of fifteen(15) years from the date of the City's first payment of Sales Tax Increment to the Developer. SECTION 5. PARTY ENTITLED TO RECEIVE PAYMENTS UNDER THIS AGREEMENT The Developer shall at all times during the term of this Agreement provide to the City Officer the name and address of the parry or parties who are duly authorized by the Developer to receive the proceeds of the Public Improvement Fee and the Sales Tax Increment under the provisions of this Agreement. Payment by the City to the party or parties so identified by the Developer shall fully satisfy the City's obligation to make such payments to the Developer or to any assignee of the Developer. Page 6 of 13 SECTION 6. ALL PAYMENTS SUBJECT TO ANNUAL APPROPRIATIONS The obligations ofthe City hereinunder shall not constitute an indebtedness of the City within the meaning of any constitutional or statutory limitation or provision. The obligations of the City for payment of the Sales Tax Increment under this Agreement shall be from year to year only and shall not constitute a mandatory payment obligation of the City in any fiscal year beyond the present fiscal year. This Agreement shall not directly or indirectly obligate the City to make any payments of Sales Tax Increment beyond those appropriated for any fiscal year in which this Agreement shall be in effect. The City Manager (or any other officer or employee at the time charged with the responsibility of formulating budget proposals)is hereby directed to include in the budget proposals and appropriation ordinances submitted to the City Council, in each year prior to expiration of this Agreement, amounts sufficient to meet its obligations hereunder, but only if it shall have received such amounts in the form of Sales Tax Increment, it being the intent, however,that the decision as to whether to appropriate such amounts shall be at the discretion of the City Council. SECTION 7. CITY'S RIGHT TO WITHHOLD OR OFFSET PAYMENTS The Developer 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 Code, the City's Land Use Code or this Agreement,subject to any variances or modifications of standards that may be granted to the Developer under the Code or the City's Land Use Code,and to comply with the terms and conditions of the Development Agreement. If the Developer is in violation of the provisions of the Code,the City's Land Use Code,this Agreement or the Development Agreement,the City shall provide written notice to the Developer of such violation, and allow the Developer a period of ninety (90) days in which to cure such violation. The City may thereafter withhold any payments of Sales Tax Increment due to the Developer under this Agreement until such time as said violations are cured or abated. In addition to the foregoing, the City, at its option, may, after such notice and after the expiration of the cure period if any such violations have not been cured or abated, apply any Sales Tax Increment that would otherwise be payable to the Developer under this Agreement to any unpaid amounts theretofore due and payable to the City by the Developer under this Agreement,the Code, the City's Land Use Code, or the Development Agreement, in which event the Developer shall be credited with the full amount of any such payments. SECTION 8. REPRESENTATIONS AND WARRANTIES Section 8.1. The Developer represents and warrants that: (a) Bayer Properties Incorporated is a corporation duly organized, validly existing and in good standing under the laws of the State of Alabama, and JDJ Development Company, L.L.C. is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and authorized to do business in Colorado; each of them has the legal capacity and the authority to enter into and perform its obligations under this Agreement and the documents to be executed and delivered hereto; the execution and delivery of this Agreement and Page 7 of 13 such documents and the performance and observance of their terms,conditions and obligations have been duly and validly authorized by all necessary action on its part to make this Agreement, such documents and such performance and observance valid and binding upon the Developer. (b) The execution and delivery of this Agreement and the documents required hereunder and the consummation of the transactions contemplated by the Agreement will not(i)conflict with or contravene any law, order, rule or regulation applicable to the Developer or to the Developer's governing documents,(ii)result in the breach of any of the terms or provisions or constitute a default under any agreement or other instrument to which the Developer is a party or by which it may be bound or affected, or (iii) permit any party to terminate any such agreement or instruments or to accelerate the maturity or any indebtedness or other obligation of the Developer. (c) The Developer has the necessary legal ability to execute and perform the Agreement and has or will obtain the necessary financing to construct the public and private improvements required by the City as a condition of approval of the Lifestyle Center. Section 8.2. The City represents and warrants that: (a) The City is a home rule Colorado municipal corporation and has the power to enter into and has taken all actions required to date to authorize this Agreement and to carry out its obligations hereunder; and (b) The City acknowledges that the construction of the Lifestyle Center and related public improvements serves a valid public purpose and will be of substantial benefit to the health, safety and welfare of its citizens. SECTION 9 RESTRICTIONS ON ASSIGNMENT The qualifications and identity of the Developer are of particular concern to the City. Therefore,no voluntary or involuntary successor in interest of Developer shall acquire any rights or powers under this Agreement except as expressly set forth herein and the Developer shall not assign all or any part of this Agreement without the prior written approval of the City Council, except that the Developer may assign its rights and obligations under this Agreement to Affiliates as defined herein or as collateral to a lender in connection with the financing of the Lifestyle Center. The Developer shall promptly notify the City of any and all changes whatsoever in the identity of the parties in control of the Developer, or the degree thereof, of which it or any of its officers have been notified or otherwise have knowledge or information. SECTION 10. NOTICES 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 Page 8 of 13 as follows. Any party can change its address by written notice to the other given in accordance with this paragraph. 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 Developer: Bayer Properties, Incorporated. Attention: General Counsel 2222 Arlington Avenue Birmingham, AL 35205 JDJ Development Company L.L.C. Attention: General Counsel 2222 Arlington Avenue Birmingham, AL 35205 With a copy to: Brownstein Hyatt & Farber, P.C. Attention: Lynda McNeive 410 Seventeenth Street Twenty second floor Denver, CO 80202 SECTION 11. RECORDS AND AUDITS Section 11.1. The Developer shall keep true,accurate and complete records of all income received by the Developer from the Lifestyle Center, together with true, accurate and complete records of all expenses incurred by the Developer in constructing and operating the Lifestyle Center, which records shall be available for inspection by the City without unreasonable delay and without expense. The Developer agrees that the City shall have the right,through its duly authorized agents or representatives,to examine all such records upon ten(10)days notice at all reasonable times,for the purpose of determining the accuracy and propriety of the financial representations which have been made by the Developer. This right of review shall terminate upon termination of the City's payments of Sales Tax Increment as provided in Section 4.2 of this Agreement. 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. Page 9 of 13 Section l l.2. The City will keep, or cause to be kept,true, accurate and complete records of all calculations relating to the Sales Tax Increment; the amounts deposited into and paid out from the Special Fund and Public Improvement Fee escrow account; interest credited to these accounts; and such other calculations, allocations and payments required by this Agreement, and shall make such records available for inspection by the Developer upon ten(10) days notice at all reasonable times, to the extent permitted by law. The City shall also, at the request of the Developer or any lender,provide a letter stating that the Developer is in compliance with the terms of this Agreement or, if not, stating the nature of any noncompliance. SECTION 12. MISCELLANEOUS 12.1 Binding Effect. This Agreement shall inure to the benefit of and shall be binding upon the City and the Developer and the Developer's assignees which are permitted pursuant to Section 8 of this Agreement. 12.2 No Third Party Beneficiaries. The City shall not be 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 shall not be bound by any contracts or conditions that the Developer may negotiate with third parties related to the Project, other than customary rights required by a lender. 12.3 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 shall 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. 12.4 Entire Agreement. This Agreement embodies the whole agreement of the parties concerning financial assistance by the City for the Lifestyle Center. Although it is anticipated there will be at least one other agreement governing general development issues related to the Lifestyle Center, There are no promises,terms, conditions, or obligations other than those contained herein exist with respect to the financial assistance package. This Agreement shall supersede all provisions, communications,representations,or agreement,either verbal or written,between the parties hereto with respect to the financial assistance package. 12.5 Waiver of Breach. A written waiver by either party to this Agreement of the breach of any term or provision of this Agreement shall not operate or be construed as a waiver or any subsequent breach by another party. 12.6 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. Page 10 of 13 12.7 City and Developer Not a Partner. Notwithstanding any language in this Agreement,the City shall not be deemed to be a member,partner,or joint venturer of the Developer, and the City shall not be responsible for any debt or liability of the Developer or its contractors or agents. The Developer shall not be responsible for any debt or liability of the City or their contractors or agents. 12.8 Severability. If any portion or portions of this Agreement shall be 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 such 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 the Developer as contemplated by this Agreement. SECTION 13. EVENTS OF DEFAULT; REMEDIES 13.1 Default or an event of default by the Developer shall mean one or more of the following events: (a) The Developer, assigns or attempts to assign this Agreement in violation of Section 9 of this Agreement; or (b) The Developer fails to substantially observe or perform any other material covenant, obligation or agreement required under this Agreement. 13.2 Upon the occurrence of any event of default,the City shall provide written notice to the Developer. The Developer shall 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 the Developer agree in writing. Upon the failure of the Developer to so cure any such default,the City shall have all remedies available to it, in law or in equity, including,but not limited to, specific performance. 13.3. Default or an event of default by the City shall mean one or more of the following events: (a) Any representation or warranty made in this Agreement by the City was materially inaccurate when made or shall prove to be materially inaccurate; (b) The City fails to deposit the proceeds of the Public Improvement Fee in a separate escrow account as required under Section 3.2 above, or fails to pay the proceeds of the Public Page 11 of 13 Improvement Fee or the Sales Tax Increment as and when provided in this Agreement (except to the extent such failure is the result of the action,inaction or failure of the Developer or other owner or tenant of the Property to document liability for, collect, account for or pay such Public Improvement Fee or Sales Tax Increment,or to the extent such failure is the result of the Developer's failure to identify the party to whom such payment(s) should be made as required under Section 5 above). (c) The City fails to pay or perform any other material covenant,obligation or agreement required of it under this Agreement. 13.4 Upon the occurrence of any event of default, the Developer shall provide written notice to the City. The City shall 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 the Developer agree in writing. Upon the failure of the City to so cure any such default,the Developer shall have all remedies available to it, in law or in equity, including, but not limited to, specific performance. IN WITNESS WHEREOF,the City and the Developer have executed this Agreement of the date first above written. CITY OF FORT COLLINS, COLORADO a Colorado municipal corporation By: Darin A. Atteberry, Interim City Manager Attest: City Clerk Approved as to form: City Attorney Page 12 of 13 Developer: BAYER PROPERTIES INCORPORATED an Alabama corporation By: Name and title State of ) )ss. County of ) The foregoing was acknowledged before me this day of 2004, by as of BAYER PROPERTIES INCORPORATED, an Alabama corporation. Witness my hand and official seal. My commission expires: Notary Public Developer: JDJ DEVELOPMENT COMPANY, LLC, a Delaware limited liability company By: Name and title State of ) )ss. County of ) The foregoing was acknowledged before me this day of 2004, by as of JDJ DEVELOPMENT COMPANY, LLC, a Delaware limited liability company. Witness my hand and official seal. My commission expires: Notary Public Page 13 of 13