HomeMy WebLinkAbout2013-042-05/07/2013-APPROVING A REDEVELOPMENT AND REIMBURSEMENT AGREEMENT WITH THE FORT COLLINS URBAN RENEWAL AUTHORITY, RESOLUTION 2013-042
OF THE CITY OF FORT COLLINS
APPROVING A REDEVELOPMENT AND REIMBURSEMENT AGREEMENT
WITH THE FORT COLLINS URBAN RENEWAL AUTHORITY,
WALTON FOOTHILLS HOLDINGS VI, L.L.C., AND THE
FOOTHILLS METROPOLITAN DISTRICT
REGARDING THE REDEVELOPMENT OF FOOTHILLS MALL
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,on June 6, 1978,the City Council adopted Resolution 78-49,adopting findings
and establishing the Fort Collins Urban Renewal Authority (the "Authority") as an urban renewal
authority pursuant to Colorado Revised Statutes, Part 1 of Title 31, Article 25, as amended (the
"Act"); and
WHEREAS, by Resolution 2011-080, adopted and approved on September 6, 2011, the
City Council found and declared that the area described in such resolution(the "Midtown Area') is
a blighted area as described in the Act and appropriate for an urban renewal project; and
WHEREAS, by Resolution 2011-081, adopted and approved on September 6, 2011, the
City Council adopted an urban renewal plan for the Midtown Area in Fort Collins (the "Urban
Renewal Plan"), which area includes an existing shopping mall in the City known as the Foothills
Mall (the "Mall"); and
WHEREAS, the provisions of Title 32 of the.Colorado Revised Statutes allow for the
formation of various kinds of governmental entities to finance and operate public services and
infrastructure; and
WHEREAS, on September 4, 2012, the City Council adopted Resolution 2012-084,
approving a Service Plan for Foothills Metropolitan District (the "District"), the boundaries of
which are wholly within the corporate limits of the City; and
WHEREAS, the District was organized by Order and Decree Creating District issued on
November 30, 2012, and recorded on January 10, 2013; and
WHEREAS, Walton Foothills Holdings VI, L.L.C. (the "Developer") has obtained certain
development approvals from the City and is making final plans and financial arrangements to
proceed with the redevelopment of the Mall; and
WHEREAS, the Developer has submitted a proposal to the City and the Authority to
redevelop the Mall by constructing approximately 735,000 square feet of commercial development
and up to 800 multifamily residential units,together with related amenities and uses(the"Project");
and
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WHEREAS,the City Council has determined that it is in the best interests of the City and its
citizens to assist in the redevelopment of the Mall in order to remedy blighted conditions within and
around the Mall pursuant to the Urban Renewal Plan,using certain property and sales tax increment
revenues in accordance with the Act, together with certain available revenues of the District and the
Developer, to provide a catalyst for redevelopment in the Midtown Area, to increase sales tax
revenues and job opportunities, and to provide other economic and social benefits to the City and
surrounding community; and
WHEREAS, the City, the Authority, the District and the Developer have negotiated terms
and conditions related to the financing, construction and operation of the Project that provides, in
part, for the issuance by the District of certain bonds (the "District Bonds") to provide for the
payment or reimbursement of the acquisition, construction and installation of certain eligible public
improvements in connection with the redevelopment of the Mall, which are outlined in a
Redevelopment and Reimbursement Agreement attached hereto as Exhibit "A" and incorporated
herein by this reference (the "Agreement"); and
WHEREAS, the Developer has agreed pursuant to the provisions of the Agreement to
provide the additional funding necessary to complete the redevelopment of the Project, in
accordance with the terms and conditions set forth in the Agreement; and
WHEREAS, pursuant to the Agreement, the City and Authority have agreed to pledge
certain real property tax increment revenues and a portion of the City's sales tax increment
revenues to be generated from the Project toward the payment of a portion of the debt service
requirements on the District Bonds, in accordance with the terns and provisions of the amended
and restated Midtown Urban Renewal Plan (the "Amended Plan"), which Amended Plan
incorporates provisions implementing the property and sales tax increment provisions of Section
31-25-107(9) of the Act in the area described as the "Foothills Mall Tax Increment District" in the
Amended Plan, which Amended Plan is the subject of Resolution 2013-043; and
WHEREAS, pursuant to the Agreement, the District has also agreed to pledge certain
revenues of the District toward the payment of the debt service requirements of the District Bonds;
and
WHEREAS, in light of the foregoing, the City Council desires to approve the Agreement,
and authorize certain related actions.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT
COLLINS, as follows:
Section 1. Ratification and Approval of Prior Actions. All action heretofore
taken (not inconsistent with the provisions of this Resolution) by the City Council or the officers,
agents or employees of the City Council or the City relating to the redevelopment 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.
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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, and in accordance with the foregoing recitals, that adopting this Resolution,
redeveloping the Mall, and entering into the Agreement and performing all obligations set forth
therein, 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 remedying
blighted conditions within and around the Mall pursuant to the Urban Renewal Plan, providing a
catalyst for redevelopment in the Midtown Area, increasing sales tax revenues and job
opportunities, and providing other economic and social benefits to the City and surrounding
community, and the City Council hereby authorizes and approves the same.
Section 3. Approval of Agreement. The Agreement is hereby approved,
authorized and confirmed in substantially the form shown on Exhibit"A", subject to the following
additions and modifications that are to be incorporated into the Agreement:
a. The Foothills Mall Project Development Plan (the "Project") shall comply with
any affordable housing project requirements that may be adopted by the City
Council on or before December 1, 2013, as if such requirements are fully
applicable thereto. Any affordable housing impact fee that may be adopted as
part of such requirements shall be paid within sixty (60) days of the adoption of
such fee or at such later time as the fee may be due for any portions of the Project
not yet permitted at the time the fee is adopted;
b. The Project shall comply with the 2012 International Building Code;
c. The allowable duration of the Public Improvements Fee shall be reduced from
thirty years to "for so long as the District Bonds are outstanding;"
d. All new construction activities and deconstruction activities for the Project shall
utilize the following standards that are used by the City of Fort Collins
Operations Services Department for the remodeling or demolition of City
buildings: recycle 100% of the concrete, rock, asphalt, dirt, bricks, and metals
(excluding those containing hazardous materials); and achieve 70%diversion by
weight or volume of all other materials;
e. The Developer shall comply with the following commitments as discussed at the
City charrette for the Project environmental sustainability:
i. Implement dust control measures;
ii. Implement construction equipment emissions controls;
iii. Consider on-site renewables;
iv. Incorporate sustainable building materials and local materials in the
Project;
V. Incorporate low energy use lighting, such as LED or compact
fluorescents, wherever possible in site and building functions;
vi. Ensure no-VOC or low-VOC emissions products are used;
vii. Install plug-in electric vehicle charging stations;
viii. Minimize the use of asbestos containing materials;
ix. Incorporate water conservation measures in the Project;
X. Minimize or prohibit vehicle idling on the Mall site;
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xi. Develop and implement a master plan for waste diversion from Mall
operations and public use;
xii. Incorporate features in the Project to promote multifamily recycling;
xiii. Install and operate recycling depots;
xiv. Install and operate public recycling containers;
xv. Require composting of food scraps;
xvi. Require use of compostable materials at Food Court;
xvii. Build so as to accommodate ease of future deconstruction;
xviii. Utilize soil amendments (already a Code requirement);
xix. Use native plants;
xx. Increase transplanting of trees;
xxi. Create an underpass from the Mall site to MAX BRT system;
xxii. Install and operate additional bike racks/lockers at the Mall and near the
bus stops; and
xxiii. Promote citizen and visitor education about environmental
sustainability;
f. For all portions of the Project under the Developer's control, the Project shall
use the services of a single provider for recycling and waste hauling services;
g. The Agreement shall allow for the evaluation of other possible locations for the
Foothills Activity Center, either on the Property or in other locations in the
Midtown Urban Renewal Area, and shall provide for modification of the amount
of the District Bonds and the list of Eligible Improvements based on the final
outcome of that investigation and planning process, as long as such evaluation
and modifications can be accomplished without additional delay to the Project;
h. The Developer shall comply with the terms of the agreement between the
Developer and Arc Thrift Stores regarding the Arc current lease and new lease,
and related commitments, as set forth by representatives of the Developer and
Arc in the record of the City Council hearing on this Resolution; and
i. The Developer shall establish a Tenant Criteria Manual in collaboration with the
City to detail specific existing City Code requirements that may apply to tenant
finish projects and to highlight goals and objectives for tenant opportunities for
sustainable projects.
Section 4. Authorization to Execute. The Mayor of the City is hereby
authorized and directed to execute and deliver the Agreement, for and on behalf of the City, in
substantially the form and with substantially the same content as attached, together with the
additions and modifications described in Section 3, provided that the approval hereby given to the
Agreement includes an approval of such additional details therein as may be necessary and
appropriate for its completion, deletions therefrom and additions thereto as may be approved by the
City Manager or the Financial Officer, in consultation with the City Attorney, prior to the execution
of the Agreement. The execution of the Agreement by the Mayor shall be conclusive evidence of
the approval by the City Council of the same 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 Resolution and to place the seal of the City on any document authorized and approved by
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this Resolution. 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 Resolution. 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. Severability. If any section, subsection, paragraph, clause or
provision of this Resolution or the Agreement hereby authorized and approved shall for any reason
be held .to be invalid or unenforceable, the invalidity or unenforceability of such section,
subsection, paragraph, clause or provision shall not affect any of the remaining provisions of this
Resolution or the Agreement, the intent being that the same are severable.
Section 7. Repealer. All prior resolutions, or parts thereof, inconsistent
herewith are hereby repealed to the extent of such inconsistency.
Section 8. Effectiveness. This Resolution shall take effect immediately upon
its passage.
Passed and adopted at a regular meeting of the Council of the City of Fort Collins convened
on the 7th day of May A.D. 2013.
CITY OF FORT COLLINS, COLORADO
DC9'L�'4
Mayor o TemATTEST:City Clerk
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EXHIBIT "A"
REDEVELOPMENT AND REIMBURSEMENT AGREEMENT
THIS REDEVELOPMENT AND REIMBURSEMENT AGREEMENT (the
"Agreement") dated as of May _, 2013 , is made by and among the FORT COLLINS URBAN
RENEWAL AUTHORITY, a body corporate and politic of the State of Colorado (the
"Authority"), WALTON FOOTHILLS HOLDINGS VI, L .L . C . , a Delaware limited liability
company (the "Developer"), the CITY OF FORT COLLINS, COLORADO, a municipal
corporation (the "City"), and FOOTHILLS METROPOLITAN DISTRICT, a quasi-municipal
corporation organized and existing in accordance with Title 32, Article 1 , C .R. S . (the
"District") . The Authority, the Developer, the City and the District are sometimes collectively
called the "Parties ," and individually, a "Party. "
RECITALS
All capitalized terms used, but not defined, in these Recitals, have the meanings ascribed
to them in this Agreement. The Recitals are incorporated to this Agreement as though fully set
forth in the body of this Agreement.
WHEREAS , Developer or District owns or has the right to construct improvements on
the real property described in Exhibit A, which is known as the Foothills Mall (the "Property")
and desires to redevelop the Property. Developer has submitted a proposal to the Authority and
the City to redevelop the Property by constructing approximately 735 ,979 square feet of
commercial development and up to 800 multifamily residential units, together with related
amenities and uses on the Property (the "Project") .
WHEREAS , the Authority is carrying out the Midtown Urban Renewal Plan approved by
the City Council on September 6, 2011 , as amended (the "Urban Renewal Plan"), which
includes the Property, by entering into this Agreement with the City, the District and the
Developer to implement the Project Development Plan that was approved by the City ' s Planning
and Zoning Board on February 7, 2013 (the "PDP") . The District is expected to provide services
and facilities to assist the Authority in carrying out the Urban Renewal Plan.
WHEREAS , the Authority has selected the Developer for exclusive negotiations based on
the proposal submitted to the Authority and pursuant to that certain Agreement to Negotiate,
dated as of November 16, 20129 by and between the Authority and Developer (the "Agreement
to Negotiate") .
WHEREAS , the City has determined that it is in the best interests of the City and its
inhabitants to assist in the redevelopment of the Property in order to remedy blighted conditions
within and around the Property pursuant to the Urban Renewal Plan, as hereinafter set forth, and
to provide a catalyst for development, increase sales tax revenues and job opportunities, and
provide other economic and social benefits to the City.
WHEREAS , the District was organized by Order and Decree Creating District issued on
November 30, 2012, and recorded on January 10, 2013 . The City approved the original Service
Plan of the District on September 4, 2012 , as amended and restated pursuant to City Council
approval on May 7 , 2013 .
WHEREAS , the Parties have agreed to enter into this Agreement for the redevelopment
of the Property in accordance with the Urban Renewal Plan, the Act (defined hereinafter) and the
PDP .
WHEREAS , the District was organized for the purpose of, inter alia, issuing the District
Bonds (defined hereinafter), the proceeds of which are intended to pay or reimburse the costs of
the Eligible Improvements and to pay Costs of Issuance (defined hereinafter) .
NOW THEREFORE, In consideration of the mutual covenants and promises of the
Parties contained in this Agreement, and other valuable consideration, the receipt and adequacy
of which are acknowledged, the Parties agree to the terms and conditions in this Agreement.
AGREEMENT
1 . DEFINITIONS . In this Agreement, unless a different meaning clearly appears from the
context, capitalized terms mean:
"Act" means the Colorado Urban Renewal Law, Part 1 of Article 25 of Title 31 of the
Colorado Revised Statutes .
"Add-On PIF" means the public improvement fee in the amount of 1 . 00% as set forth in
the PIF Covenant, which will be collected in accordance with the terms of the PIF Covenant, and
will be imposed on retail sales that are occurring on the Property that are subject to the City ' s
Sales Tax, subject to the terms and provisions of this Agreement.
"Add-On PIF Revenues" means the revenues generated by the Add-On PIF . The full
amount of the Add-On PIF will remain pledged to payment of the District Bonds for so long as
such District Bonds are outstanding.
"Agreement" means this Redevelopment and Reimbursement Agreement, as it may be
amended or supplemented in writing. References to sections or exhibits are to this Agreement
unless otherwise qualified. All exhibits are incorporated to this Agreement.
"Agreement to Negotiate" means the Agreement to Negotiate between the Authority
and the Developer dated as of November 16, 2012 .
"Authority" means the Fort Collins Urban Renewal Authority, a body corporate and
politic of the State of Colorado which has been duly created, organized, established and
authorized by the City to transact business and exercise its powers as an urban renewal authority,
all under and pursuant to the Act, and its successors and assigns .
"Authority Administrative Fee" means a fee up to a maximum of 1 . 5 % of the gross
property tax increment revenue received by the Authority from the Larimer County Treasurer
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each year, which fee includes all amounts required to pay collection, enforcement, disbursement,
and administrative fees and costs required to carry out the Urban Renewal Plan, including,
without limitation, collection and disbursement of the Pledged Property Tax Increment Revenue.
"Authority Pledged Revenues" means , collectively, the Pledged Property Tax
Increment Revenues and the Pledged Sales Tax Increment Revenues .
"Cap Amount" means an amount equal to $53 ,000,000 (Fifty-Three Million US
Dollars), which is the maximum amount of Eligible Costs that shall be paid from the net
proceeds of the District Bonds .
"City" means the City of Fort Collins, Colorado, a home rule municipal corporation.
"City Manager" means the City Manager of the City.
"City Requirements" means, collectively, the Ft. Collins ' Land Use Code and the PDP .
"Commence Construction" or "Commencement of Construction" means the
commencement by the District or the Developer of actual physical work, including, but not
limited to, deconstruction, demolition, site grading, and construction, on the Property as required
to carry out the Project.
"Complete Construction" or "Completion of Construction" means :
(a) With respect to the public improvements, construction acceptance in
accordance with the City Requirements, applicable laws, ordinances, and regulations of the City,
the District, and any other governmental entity or public utility with jurisdiction, subject to any
applicable conditions of maintenance and warranty, including;
(b) With respect to any specifically identified portion of the Project, the
issuance of a certificate of occupancy by the City so that the portion of the Project described in
such certificate may open for permanent occupancy and utilization for its intended purposes ; or
(c) With respect to the Project, the issuance of a certificate of occupancy by
the City so that no less than ninety-five percent (95 %) of the leasable area within the Project may
open for permanent occupancy and utilization for its intended purposes.
"Costs of Issuance" means the reasonable and necessary costs incurred in connection
with the issuance of the District Bonds, including, without limitation, reserve funds, capitalized
interest, underwriter' s compensation, financial consultant fees, fees and expenses of bond
counsel, counsel to the underwriter, counsel to the District, fees and third party out-of-pocket
expenses of the City, including but not limited to counsel to, and economic analysis and financial
consulting services for, the City, fees and third party out-of-pocket expenses of the Authority,
including but not limited to counsel to, and economic analysis and financial consulting services
for, the Authority, credit enhancement fees and expenses, fees and expenses of the District Bond
Trustee, bond registrar, paying agent, transfer agent, remarketing agent and rating agency fees .
Costs of Issuance shall be approved by the District ' s bond counsel and shall be reasonable and in
accordance with market standards .
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"Default" or "Event of Default" means any of the events described in Section 18 ;
provided, however, that such events will not give rise to any remedy until effect has been given
to all grace periods , cure periods and periods of enforced delay provided for in this Agreement.
"Developer" means Walton Foothills Holdings VI, L .L .C . , a Delaware limited liability
company and any successors and assigns approved in accordance with this Agreement.
"Developer Advances" means, collectively, amounts advanced or incurred by the
Developer to pay any Eligible Costs. Developer Advances shall include, without limitation, (a)
Eligible Costs paid directly or advanced by the Developer, (b) advances to the District for design
and construction by the District of Eligible Improvements, and (c) Authority Reimbursable Costs
(as defined in the Agreement to Negotiate) from the Developer to the Authority in compliance
with the requirements of the Agreement to Negotiate. All Developer Advances to the District
must be made in accordance with the provisions of the Reimbursement and Infrastructure
Acquisition Agreement.
"District" means the Foothills Metropolitan District, formed pursuant to Sections 32- 1 -
101 , et seq. , C .R. S . , and its successors and assigns .
"District Administrative Account" means an account established by the Authority into
which the Authority shall deposit all of the incremental District Operating Revenue and District
Debt Service Mill Levy received by the Authority from time to time pursuant to Section 31 -25 -
107(9)(a)(1I) of the Act and the rules and regulations of the Property Tax Administrator of the
State of Colorado .
"District Bond Documents" means , collectively, the documents pursuant to which the
District Bonds are issued.
"District Bond Indenture" means any indenture or similar documents pursuant to which
the District Bonds are issued.
"District Bond Trustee" means the trustee in connection with the issuance of any
District Bonds .
"District Bonds" means any bonds , certificates of participation, securities or other
obligations issued or incurred by the District to finance or refinance the Eligible Costs in
accordance with the terms and provisions of this Agreement, including any bonds, debt in the
form of a loan, certificates of participation, or securities issued or incurred by the District to
refund any such Bonds, or any related obligations to reimburse the provider of a guaranty,
insurance policy, liquidity instrument or credit enhancement for the District Bonds .
Notwithstanding the foregoing or any provision to the contrary contained herein, District Bonds
shall not include any obligation by the District to reimburse the Developer for Developer
Advances pursuant to reimbursement agreements or similar agreements between the Developer
and the District regarding such matters .
"District Debt Service Mill Levy" means a property tax levy of fifty (50) mills levied by
the District on the taxable property of the District. The District Debt Service Mill Levy rate may
be adjusted as set forth in the Service Plan to take into account legislative or constitutionally
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imposed adjustments in assessed values or their method of calculation so that, to the extent
possible, the revenue produced by such District Debt Service Mill Levy is neither diminished nor
enhanced as a result of such changes. The District Debt Service Mill Levy shall be imposed only
so long as there are outstanding District Bonds .
"District Debt Service Mill Levy Revenue" means the revenue generated from the
District Debt Service Mill Levy, net of the County Treasurer' s cost of collection.
"District Operating Mill Levy" means a property tax imposed by the District in an
amount not exceeding ten ( 10) mills, except as hereinafter provided, separate and apart from the
District Debt Service Mill Levy, for the purpose of paying the administrative, operations and
maintenance expenses of the District, including all amounts required to be paid to the City for
the maintenance of Larimer County Canal No , 2 . Notwithstanding the foregoing, the District
Operating Mill Levy may be imposed by the District in an amount up to fifteen ( 15 ) mills upon
the written consent of the City Manager upon receipt of evidence satisfactory to the City
Manager that such an increase in the District Operating Mill Levy is necessary for the District to
comply with its operation and maintenance obligations under the Service Plan. The District
Operating Mill Levy may be adjusted as set forth in the Service Plan to take into account
legislative or constitutionally imposed adjustments in assessed values or their method of
calculation so that, to the extent possible, the revenue produced by such District Operating Mill
Levy is neither diminished nor enhanced as a result of such changes .
"District Operating Revenue" means the revenue produced by the District' s Operating
Mill Levy and the Specific Ownership Taxes attributable to the District Operating Mill Levy.
"District Pledged Revenue" means, collectively, (a) the District Debt Service Mill Levy
Revenue, (b) the revenue from the Pledged District Specific Ownership Taxes, and (c) Add-On
PIF Revenue.
"Effective Date" means the date of this Agreement.
"Eligible Costs" means, collectively, the reasonable and customary expenditures for the
design and construction of the Eligible Improvements as set forth in Exhibit D, which shall be
certified and approved in accordance with Exhibit E. Eligible Costs shall include, without
limitation, reimbursement to the Developer for Authority Reimbursable Costs (as defined in the
Agreement to Negotiate) made by the Developer to the Authority. Eligible Costs shall be paid
from the net proceeds of the Bonds, subject to the Cap Amount, District Bond proceeds shall not
be used to pay, and Eligible Costs shall not include, any accrued interest on unreimbursed
Developer Advances .
"Eligible Improvements" means the public improvements described in Exhibit D that
are to be acquired, constructed or installed as part of the Project.
"Estimated Revenues from Property Taxes" means the amount set forth on Exhibit G
hereto, which is the amount of Pledged Revenues estimated to be generated from property taxes
on the Property.
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"Estimated Revenues from Residential Property" means the amount set forth on
Exhibit G hereto, which is the amount of Pledged Revenues estimated to be generated from the
residential component of the Property beginning January 1 , 2019, assuming that the residential
component of the Property is constructed in accordance with the schedule set forth in Section 4 . 3
hereof.
"Exhibits" The following Exhibits are a part of this Agreement:
Exhibit A : Legal Description of the Property
Exhibit B : Description of TIF Area
Exhibit C : Description of the Project
Exhibit D : Eligible Costs and Eligible Improvements
Exhibit E : Procedure for Documenting, Certifying and Paying Eligible Costs
Exhibit F City Specifications for Foothills Activity Center
Exhibit G Estimated Revenues from Property Taxes and Estimated Revenues
from Residential Property
Exhibit H Permitted Uses of Foothills Mall Fund
Exhibit I Maximum Annual Net Debt Service on the District Bonds
"Financing Plan" means a plan prepared by the Developer and the District for review
and approval by the City and the Authority demonstrating that there will be sufficient Pledged
Revenues to service the debt service requirements on the District Bonds . Approval of the
Financing Plan by the City and the Authority shall be a condition precedent to the issuance of the
District Bonds .
"Foothills Activity Center" means the Foothills Activity Center to be constructed on the
Project in accordance with the provisions of Section 4 .4 hereof.
"Foothills Mall Fund" means the fund to be held by the District and applied in
accordance with the terms and provisions of this Agreement.
"Force Majeure" means any delays in or failure of performance by any Party of its
obligations under this Agreement as a result of acts of God; fires ; floods ; earthquake; strikes ;
labor disputes; regulation or order of civil or military authorities; or other causes, similar or
dissimilar, which are beyond the control of such Party.
"Larimer County Canal No 2 " means that portion of the canal or ditch, owned by The
Larimer County Canal No . 2 Irrigation Company, commonly known as the Larimer County
Canal No. 2 , in the location to which it will be moved as part of the Project, lying between the
west boundary of the South College Avenue right-of-way and the west boundary of the
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McClelland Drive right-of-way, and thence south along and under the west frontage road of
College Avenue past the south boundary of the West Monroe Drive right-of-way, and thence
continuing due south for an approximate distance of 130+\- feet to where the relocated portion of
the ditch intersects the existing Larimer County Canal No . 2 ditch alignment.
"Net Debt Service" means the total payments of principal and interest on the District
Bonds, less the amounts that are paid from funds held by the District Bond Trustee as capitalized
interest and reserve funds, including interest earnings on any such funds .
"Party" or "Parties" means one or all of the parties to this Agreement.
"PDP" means the Project Development Plan relating to the Project approved by the
City ' s Planning and Zoning Board on February 7, 2013 .
"PIF Covenant" means a declaration of covenants by Developer imposing and
implementing the Add-On PIF within the Property.
"Pledged District Specific Ownership Taxes" means the specific ownership tax
revenues received by the District in each year pursuant to § 42-3 - 107 , C .R. S . that is attributable
to the dollar amount of ad valorem taxes generated from the District Debt Service Mill Levy.
"Pledged Property Tax Increment Revenue" means 100% of the annual ad valorem
property tax revenue received by the Authority from the Larimer County Treasurer in excess of
the amount produced by the levy of those taxing bodies that levy property taxes against the
Property Tax Base Amount in the TIF Area in accordance with the Act and the regulations of the
Property Tax Administrator of the State of Colorado, but not including, (a) the District Operating
Revenue, (b) the District Debt Service Mill Levy Revenue, (c) the Authority Administrative Fee,
(d) mill levy override payments approved by the electors of Poudre School District in 2012 and
subsequent years, (e) any offsets collected by the Larimer County Treasurer for return of
overpayments or any reserve funds retained by the Authority for such purposes in accordance
with Sections 31 -25 - 107(9)(a)(II1) and (b) of the Act, and (f) $60,000 each year of such annual
revenues .
"Pledged Sales Tax Increment Revenues" means 100% of the Sales Tax Increment
Revenues received annually by the Authority from the City.
"Pledged Revenue" means, collectively, the District Pledged Revenue and the Authority
Pledged Revenue .
"Project" means the acquisition, construction and installation of approximately 734,979
square feet of commercial development and up to 800 multifamily residential units, together with
related amenities and uses on the Property, in accordance with the PDP, including any
amendments to the PDP or deviations from the PDP as may be approved pursuant to the City ' s
Land Use Code, and consistent with Exhibit C attached hereto, with such amendments to or
variances from Exhibit C as are approved by the City Manager, including off-site improvements
provided for and required in the approved development plan. Notwithstanding the foregoing,
however, for purposes of determining whether Construction of the Project has been Completed,
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the residential component of the Project shall be deemed to include 446 multifamily residential
units .
"Project Fund" means the fund to be created pursuant to the District Bond Indenture into
which net proceeds of the District Bonds in the amount of $ 53 ,000,000 (Fifty-Three Million US
Dollars) will be deposited to pay Eligible Costs.
"Property" means the real property described in Exhibit A, which is either owned by
Developer or Developer otherwise has the right or will have the right to construct improvements
on the Property.
"Property Tax Base Amount" means the amount certified by the Larimer County
Assessor as the valuation for assessment of all taxable property with the TIF Area in accordance
with Section 31 -25 - 107(9)(a)(I) of the Act. The Property Tax Base Amount and increment value
shall be calculated and adjusted from time to time by the Larimer County Assessor in accordance
with Section 31 -25 - 107(9) of the Act and the rules and regulations of the Property Tax
Administrator of the State of Colorado .
"Reimbursement and Infrastructure Agreement" means that certain agreement
between the District and Developer dated as of April 26, 2013 , that requires the District to
reimburse the Developer for the Eligible Costs and sets forth the procedures under which
Eligible Improvements constructed by the Developer for the benefit of the District may be
acquired by the District.
"Sales Tax" means the municipal sales tax of the City imposed at the rate of 2 .25 % on
sales of goods and services that are subject to municipal sales taxes pursuant to Chapter 25 ,
Article 3 of the Fort Collins Municipal Code.
"Sales Tax Base Amount" means the total collection of sales taxes levied at the rate of
2 .25 % within the TIF Area for the applicable twelve-month period in accordance with Section
31 -25 - 107(9)(a)(1) of the Act.
"Sales Tax Increment" means Sales Tax Revenues collected by the City in excess of the
Sales Tax Base Amount.
"Sales Tax Revenues" means the funds generated by imposition of the Sales Tax.
"Service Plan" means the service plan for the District approved by the City on
September 4, 2012 , as amended and restated.
"Special Fund" means the fund defined in Section 107(9)(a)(II) of the Act.
"TIF" means tax increment financing to which the tax increment provisions of Section
31 -25 - 107(9) of the Act apply.
"TIF Area" means that part of the urban renewal area described in the Urban Renewal
Plan as described and depicted in Exhibit B , within which the tax increment provisions of
Section 31 -25 - 107(9) of the Act apply.
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"Underpass" means the pedestrian underpass at the current Larimer County Canal No . 2
ditch alignment under College Avenue for the purpose of connecting the Project to the Mason
Corridor and MAX transit facility.
"Urban Renewal Plan" means the Midtown Urban Renewal Plan adopted and approved
by the City Council on September 6, 2011 , and as may hereinafter be amended from time to
time.
2 . FINANCING AND CONSTRUCTION OF PROJECT .
2 . 1 Construction of Project. The Developer and/or the District, in accordance with
the provisions of this Agreement and the PDP, shall (i) construct the Project, including without
limitation, all Eligible Improvements, (ii) be responsible for compliance in all respects with the
City Requirements, and (iii) shall be responsible for payment of fees related to redevelopment of
the Property and the construction of the Project. The Project may be constructed in phases.
2 .2 Financing the Costs of the Project. The Eligible Improvements shall be financed
from the net proceeds of the District Bonds, up to the Cap Amount. The remainder of the
Project, including the cost of any Eligible Improvements that exceed the Cap Amount, shall be
financed by the Developer and may be reimbursed by the District from excess Pledged District
Specific Ownership Taxes and District Debt Service Mill Levy Revenues released from the
District Bond Documents in accordance with the provisions of Section 3 .2 of this Agreement.
3 . ISSUANCE OF DISTRICT BONDS . Subject to the terms and provisions hereinafter set
forth, the District will issue the District Bonds to pay or reimburse the Developer or the District
for Eligible Costs, up to the Cap Amount, and to pay the Costs of Issuance related to the District
Bonds. The District Bonds shall be issued in one or more series in a combined aggregate
principal amount sufficient to generate net proceeds of the District Bonds in the amount of
$53 ,000,000 (Fifty-Three Million US Dollars) to be deposited in the Project Fund and applied to
the payment or reimbursement of Eligible Costs.
3 . 1 Conditions Precedent to Issuance of District Bonds. The following conditions
shall be satisfied on or prior to the issuance of the District Bonds :
(a) The Developer and the District shall prepare the Financing Plan and the
City Manager and the Executive Director of the Authority shall have approved the
Financing Plan. The Financing Plan shall also be in form and substance satisfactory to the
District ' s bond counsel and the underwriter of the District Bonds . The Financing Plan
shall demonstrate that there is expected to be sufficient Pledged Revenues derived from
the construction of the Project to pay the debt service requirements on the District Bonds
when due.
(b) The Developer shall provide to the City Manager evidence satisfactory to
the City Manager that the Developer has obtained all equity and private financing
necessary to construct the non-residential components of the Project.
(c) The Developer shall have obtained executed lease agreements, excluding
the existing department store located on Larimer County Parcel Number 9725391002,
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totaling at least 240,000 square footage of the retail area of the Project with tenants that,
in the aggregate, have an average sales per square foot of at least $ 350 based on average
national sales performance, and, except as hereinafter provided, of which at least 120,000
square feet shall be leased to tenants new to the City of Fort Collins. Notwithstanding the
foregoing, however, in the event that at least 60,000 of such square footage is leased to
tenants that are new to Fort Collins, then this condition shall be deemed satisfied with the
prior written consent of the City Manager, which consent shall not be unreasonably
withheld, conditioned or delayed, provided that in determining whether to give such
consent the City Manager may consider the impact on the proposed financing from a
reduced percentage of tenants new to the City.
(d) The Developer shall have imposed the Add-On PIF in accordance with
Section 4 . 7 hereof.
(e) The District' s Service Plan shall be amended in a form acceptable to the
Parties (the "Service Plan Amendment"), subject to approval by the City Council, to
allow the District to issue the District Bonds and impose the District Debt Service Mill
Levy in accordance with the terms and provisions of this Agreement.
(f) The Urban Renewal Plan shall be amended in a form acceptable to the
Parties , subject to approval by the City Council.
(g) The City and the Authority shall receive an opinion of the District ' s bond
counsel relating to the validity of the District Bonds and the tax-exempt status thereof
addressed to the City and the Authority, or the City and the Authority shall receive a
reliance letter from the District ' s bond counsel.
3 .2 Provisions to be Included in District Bond Documents . The District Bond
Documents shall contain the following provisions :
(a) The District Bonds shall be payable from the Pledged Revenues in the
following order of priority :
(i) the District Debt Service Mill Levy Revenues ;
(ii) the Pledged District Specific Ownership Taxes ;
(iii) the Pledged Property Tax Increment Revenues ;
(iv) the Add-On PIF Revenues; and
(iii) the Pledged Sales Tax Increment Revenues .
(b) After the debt service requirements on the District Bonds have been paid
or provided for in each fiscal year, and after all payments have been made to replenish
the reserve fund for the District Bonds and to make any payments into any required
rebate funds for the District Bonds, any excess Pledged Revenues shall be applied by the
District Bond Trustee as follows :
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(i) To the extent required by the underwriter of the District Bonds
based on market conditions, the District Bond Documents may establish a
supplemental reserve fund (the "Supplemental Reserve Fund") and provide that
any excess Pledged Revenue shall be deposited into the Supplemental Reserve
Fund to be maintained in an amount that is not more than 10% of the original
aggregate principal amount of the District Bonds . The District Bond Trustee shall
keep a record of the sources of the Pledged Revenue that are used to fund and
maintain the Supplemental Reserve Fund, if any.
(ii) After the Supplemental Reserve Fund, if any, has been fully
funded, any excess Pledged Revenues shall be applied by the District Bond
Trustee as follows :
(A) The District, the City and the Authority hereby
agree pursuant to Section 31 -25 - 107( 11 ) C .R. S . that any such
excess Sales Tax Increment Revenues shall be released from the
lien of the District Bond Documents and remitted by the District
Bond Trustee to the City. The District Bond Documents shall
provide that the City is a third-party beneficiary under the District
Bond Documents with respect to this provision relating to the
requirement of remitting any excess Sales Tax Increment Revenues
to the City as set forth above .
(B) Any excess Add-On PIF Revenues shall be released
from the lien of the District Bond Documents and remitted to the
District for deposit in the Foothills Mall Fund.
(C) Any excess Pledged Property Tax Increment
Revenues shall be released from the lien of the District Bond
Documents and remitted to the Authority.
(D) Any excess Pledged District Specific Ownership
Taxes and District Debt Service Mill Levy Revenues shall be
remitted to the District.
(c) The District Bond Documents shall provide that moneys on deposit in the
Supplemental Reserve Fund shall be applied solely to pay the debt service requirements
on the District Bonds in the event of an insufficiency of Pledged Revenues to make such
payments, provided, however, that moneys on deposit in the reserve fund for the District
Bonds shall be applied to the payment of the debt service requirements on the District
Bonds prior to applying any funds on deposit in the Supplemental Reserve Fund to such
payment. Upon termination of the Supplemental Reserve Fund, the moneys on deposit in
the Supplemental Reserve Fund shall be remitted by the District Bond Trustee based on
the source of Pledged Revenues used to fund and maintain the Supplemental Reserve
Fund in accordance with the provisions set forth in subparagraph (b)(ii) above .
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(d) The District Bond Documents shall provide that the net proceeds of the
Bonds shall be deposited in the Project Fund and requisitioned by the District to pay
Eligible Costs as set forth in Exhibit D hereof, with such requisitions to be made
substantially in accordance with Exhibit E hereof. The District Bond Documents shall
provide that any requisition remitted to the District Bond Trustee shall simultaneously be
remitted to the City Manager, or the City Manager' s designee. In the event that the City
provides written notice to the Developer and the District that it disputes that all or any
portion of the requisition qualifies as an Eligible Cost or otherwise fails to comply with
the requisition requirements in Exhibit E, then the City, the Developer and the District
agree to act in good faith to attempt to resolve any such dispute .
(e) Without the prior written consent of the City Manager, the District Bonds
shall mature no later than 25 years after the date of issuance thereof, the total Net Debt
Service of the District Bonds shall not exceed $ 180,000,000, and the maximum annual
Net Debt Service on the District Bonds shall not exceed the amounts set forth in Exhibit I
hereto .
3 . 3 Approval by City of District Bond Documents. Prior to the issuance of any
District Bonds, including any bonds issued to refund any District Bonds, the District Bond
Documents shall have been approved by the City. The City will have ten ( 10) business days
after receipt of such District Bond Documents by the City Attorney and the City' s bond counsel
to notify the District in writing if it objects to any provisions set forth in such District Bond
Documents, setting forth its specific objections . If the City does not object in writing to the
District Bond Documents within such ten ( 10) business day period, then the City will be deemed
to have consented to the form and substance of such District Bond Documents . In addition, the
District Bond Documents shall provide that any material amendments to the District Bond
Documents shall be subject to approval by the City.
3 A Refunding Bonds . Notwithstanding anything to the contrary contained herein, to
the extent that District Bonds are issued to refund outstanding District Bonds, the Authority shall
have the right to determine whether, and to what extent, it will pledge the Authority Pledged
Revenues to such refunding District Bonds . In the event that all or a portion of the Authority
Pledged Revenues are to be pledged to the payment of such refunding District Bonds, as a
condition to such pledge, the Authority may in its discretion impose conditions and limitations in
any such refunding District Bonds that were not applicable to the District Bonds being refunded.
Any such refunding District Bonds that are secured in part by the Authority Pledged Revenues
shall also be subject to review and approval by the City Attorney and the City ' s bond counsel.
4. OBLIGATIONS OF THE DEVELOPER,
4. 1 Construction of Project. As set forth in Section 2 . 1 hereof, the Developer and/or
the District shall construct the Project. The Project shall be constructed substantially in
accordance with the PDP and Exhibit C attached hereto, unless otherwise agreed to by the City
Manager and the Executive Director of the Authority.
4.2 Construction of Eligible Improvements . The Developer shall construct, or cause
the District to construct, the Eligible Improvements set forth in Exhibit D hereto . Such Eligible
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Improvements shall be financed with the net proceeds of the Bonds, subject to the Cap Amount,
and, if necessary, other financing sources obtained by the Developer.
4. 3 Construction of Residential Component of Project. The Developer shall
Complete Construction of the residential components of the Project, subject to Force Majeure, as
follows :
(a) on or prior to December 31 , 2015 , the Developer shall Complete
Construction of the first phase of the residential component of the Project consisting of a
minimum of 200 units ;
(b) on or prior to December 31 , 2017 , the Developer shall Complete
Construction of the second phase of the residential component of the Project consisting of
at least an additional 246 units .
Failure to Complete Construction of the residential components of the Project in
accordance with this Section 4 . 3 shall not be deemed to be an Event of Default under this
Agreement, provided, however, that if Construction of the residential components of the Project
is not Completed as set forth above, then beginning with the 2019 fiscal year, the Developer shall
be obligated to pay in such fiscal year and each fiscal year thereafter, regardless of whether the
Developer is the owner of the Property on which the residential component of the Project is to be
constructed, an amount equal to 50% of the difference between the Pledged Revenues generated
from the residential component of the Project and the Estimated Revenues from the Residential
Property, as follows : (i) such payment shall be made to the City to the extent that any Pledged
Sales Tax Increment Revenues are applied in such fiscal year to the payment of the debt service
requirements on the District Bonds ; and (ii) to the extent that such payment is not due and owing
to the City in any fiscal year, the balance of any such amount to be paid by the Developer in such
fiscal year shall be deposited in the Foothills Mall Fund.
4.4 Construction of Foothills Activity Center. The Developer and/or District, as
applicable, shall construct the Foothills Activity Center in substantial conformance with the
specifications set forth on Exhibit F (the "City Specifications") and upon Completion of
Construction of the Foothills Activity Center will dedicate the Foothills Activity Center to the
City, either by platting a separate lot, or by recording a declaration of covenant creating a
common interest community with the Foothills Activity Center as a separate unit, so that the City
has fee ownership of the Foothills Activity Center. The City and Developer and/or District, as
applicable, will coordinate the construction and tenant finish of the Foothills Activity Center to
ensure that it meets the City Specifications ; however, in no event shall the total cost of the City
Specifications for the Foothills Activity Center that Developer and/or District, as applicable, is
required to expend, exceed $4. 8 million. Any costs in excess of $4. 8 million will either require
(i) amendments to the City ' s Specifications so that as built, the cost does not exceed $4 . 8
million, which amendments shall be agreed upon by the Parties within ten ( 10) business days of
Developer/District notification of a cost overrun, or (ii) the City will pay to the Developer or the
District, as the case may be, the difference between the costs of the City Specifications and the
$4. 8 million, within 30 days of written demand by the Developer or District accompanied by
reasonable documentation, subject to annual appropriation by the City Council at its sole
discretion. The Developer and/or the District agree to keep the City informed of any potential
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cost overruns exceeding $4 . 8 million. The City agrees that the Foothills Activity Center will be
subject to any covenants, easements or other documents recorded against the Property as of the
date of conveyance. The Developer and/or District agree to cooperate with the City in
connection with any applicable procedural requirements of the City related to the construction of
the Foothills Activity Center.
4. 5 Solar and Other Energy Efficiency Improvements . The Developer and/or the
District, as applicable, agree to construct the Project to accommodate the addition of solar panels
to the roof tops of the principal non-residential components subsequent to the Completion of
Construction of the Project. The City agrees that funds in the Foothills Mall Fund may be
applied by the Developer to pay the costs of installing solar panels or other energy efficiency
improvements within the Project upon reasonable documentation being provided to the City.
Within five (5) years after the issuance of the last Certificate of Occupancy for the non-
residential component of the Project, Developer agrees to make application to the City for the
addition of one or more solar panels or other energy efficiency improvements to the Project.
4. 6 Compliance with Design and Construction Regulations ; Payment of Fees and
Costs . The design and construction of the Project will comply with all applicable codes and
regulations of entities having jurisdiction, including the City Requirements . The Developer
and/or the District will pay or cause to be paid all required fees and costs , including those
imposed by the City, in connection with the design, construction, applicable warranty
requirements , and use of the Project.
4. 7 Imposition of Add-On PIF . On or prior to the issuance of the District Bonds , the
Developer shall impose the Add-On PIF on retail sales occurring on the Property that are subject
to the City' s Sales Tax, provided, however, that in connection with any property that is not
owned by the Developer, the Developer shall use its best efforts to impose such Add-On PIF on
such retail sales occurring on any such Property, subject to the consent of the owners of such
Property. The Add-On PIF shall be imposed for so long as the District Bonds are outstanding, or
thirty years from the Effective Date, whichever is longer. So long as the District Bonds are
outstanding, the Developer covenants to cause all Add-On PIF Revenues to be remitted to the
District Bond Trustee and such Add-On PIF Revenues shall be pledged to the payment of the
District Bonds . Upon payment in full or defeasance of all outstanding District Bonds, to the
extent that the Add-On PIF is still being imposed, the Developer covenants that it shall cause all
Add-On PIF Revenues to be deposited in the Foothills Mall Fund. The Developer agrees that it
shall be responsible for enforcing the placard requirements and for the implementation of the
Add-On PIF with the retailers in the Project.
4. 8 Access to Property. Developer will permit representatives of the City and the
Authority access to the Property and the Project at reasonable times during regular business
hours and with prior notice as necessary for the purpose of carrying out or determining
compliance with the Agreement, the Urban Renewal Plan, or any City code or ordinance,
including, without limitation, inspection of any work being conducted. No compensation will be
payable for such access . The City and the Authority, as applicable, agree to restore the Property
and any component of the Project to its condition prior to any tests or inspections made by the
City and further agree that they shall be responsible for any damage that results from the City or
the Authority, as applicable, accessing the Property pursuant to their respective rights under this
14
Agreement, to the extent permitted by law and, in the case of the City, subject to annual
appropriation of funds by the City Council, in its sole discretion.
4. 9 Class A Shopping Center. The Developer represents and warrants that, following
Completion of Construction of the Project, the physical condition of the Project will be
maintained as a "Class A" shopping center, in a manner consistent with comparable shopping
centers in the State of Colorado .
4. 10 Maintenance of Project. The Developer and/or District shall be responsible for
the maintenance of the Project, except for the Foothills Activity Center, the Underpass and the
Larimer County Canal No . 2 (which shall be maintained by the City), provided that the District
shall provide funding for the City to maintain Larimer County Canal No . 2 . The City shall pay
for the costs of maintaining the Foothills Activity Center and the Underpass . The costs incurred
by the Developer and/or the District in maintaining the Project shall be paid from the District
Operating Revenue. The City' s obligations shall be subject to the annual appropriation of funds
by the City Council, in its sole discretion.
4. 11 Appeal of Property Taxes . In the event that the Developer seeks a reduction in all
or any portion of the Property ' s real property tax assessed valuation or seeks an abatement of real
property taxes on all or any portion of the Property, and any such reduction or abatement results
in the Pledged Revenues generated from the real property taxes on the Property being less than
the Estimated Revenues from Property Taxes such that the Pledged Sales Tax Increment
Revenues that would otherwise be remitted to the City are needed to pay the debt service
requirements on the District Bonds, then beginning with the fiscal year in which such reduction
or abatement becomes effective, the Developer shall be obligated to pay to the City in such fiscal
year and each fiscal year thereafter where such reduction or abatement results in the property
taxes on the Property being less than the Estimated Revenues from Property Taxes, an amount
equal to 50% of the amount of Pledged Sales Tax Increment Revenues applied to the payment of
the District Bonds in such fiscal year. Notwithstanding the foregoing, in any fiscal year that the
Pledged Sales Tax Increment Revenues are not applied to the payment of the debt service
requirements on the District Bonds, no payments shall be due and owing from the Developer to
the City pursuant to this Section 4. 11 . In the event that the Developer who sought the reduction
or abatement sells all or a portion of the Property, the subsequent owner shall be obligated to
make any payments to the City required by this Section 4. 11 . A memorandum of this covenant
satisfactory to the City and the Authority shall be recorded with the Larimer County Clerk and
Recorder's Office.
The Developer shall provide written notice to the City and to the Authority of any
requested reduction in any portion of the Property' s real property tax assessed valuation or
abatement of any portion of the Property ' s real property taxes .
4. 12 Notification of Sale of Property. The Developer shall provide written notice to
the City and the Authority of any sale of all or any portion of the Property.
4. 13 Payment of City and URA Expenses . The Developer agrees that it shall pay or
reimburse the City and the Authority for all fees, costs and out-of-pocket third party expenses
incurred by them in connection with developing, negotiating and preparing this Agreement and
15
related documents and issuing the District Bonds, including without limitation, all legal fees and
out-of-pocket third party expenses, provided that, to the extent that such fees and expenses
qualify as Costs of Issuance, such fees and expenses may be paid from the proceeds of the
District Bonds . In the event that the District Bonds are not issued on or prior to July 31 , 2013 ,
the Developer shall pay or reimburse the City and the Authority for such fees and expenses no
later than August 15 , 2013 . In addition, to the extent that the District' s Bond Counsel determines
that not all such fees and expenses qualify as Costs of Issuance hereunder, then the Developer
shall pay or reimburse the City and the Authority for any such fees and expenses not paid from
proceeds of the District Bonds as Costs of Issuance. Upon satisfaction of the reimbursement
obligation pursuant to this Section, the Agreement to Negotiate shall be deemed to be terminated
and to have no further force or effect.
5 . THE DISTRICT.
5 . 1 Compliance with Service Plan and Applicable Law. At all times the District will
comply with the requirements of the Service Plan as it may be amended from time to time. To
the extent authorized by its Service Plan, the District may design, construct, finance, own,
acquire, maintain, and operate Eligible Improvements in accordance with all applicable laws,
ordinances, standards , policies, and specifications of the State of Colorado, the City, and any
other entity with jurisdiction.
5 .2 District Bonds . Subject to the terms and provisions of this Agreement, the
District shall issue the District Bonds within ninety (90) days of the satisfaction of the conditions
precedent set forth in Section 3 . 1 hereof. Net proceeds of the District Bonds in the amount of
$53 ,000,000 (Fifty-Three Million US Dollars) shall be deposited to the Project Fund and used to
pay or reimburse the Developer for Eligible Costs, as further set forth herein and in the District
Bond Documents. The District agrees to irrevocably pledge the District Pledged Revenue to the
payment of such District Bonds . The District Bonds shall be issued in compliance with Section
3 hereof.
5 . 3 District Pledged Revenue . The District covenants to impose the District Debt
Service Mill Levy so that such District Debt Service Mill Levy will be in effect no later than
January 1 , 2014, and the District covenants to continue to impose the District Debt Service Mill
Levy for so long as any District Bonds remain outstanding. The District further covenants that
so long as any District Bonds remain outstanding, that the District will remit all District Pledged
Revenues to the District Bond Trustee for such outstanding District Bonds . Notwithstanding
expiration of the time or times that the Pledged Property Tax Increment Revenue may be
collected pursuant to the Act, the District agrees that the full amount of the District Debt Service
Mill Levy shall at all times remain pledged to the payment of any outstanding Bonds to the
extent required by the District Bond Documents or to the payment of any outstanding District
Bonds to the extent required by the District Bond Documents . In the event that the District
Pledged Revenues are imposed and collected by the District after all outstanding District Bonds
have been paid or defeased, the District shall thereafter deposit all District Pledged Revenues in
the Foothills Mall Fund.
5A District Operating Revenue ; Maintenance Expenses . The District will use the
District Operating Revenue to pay its normal and reasonable operating and maintenance
16
expenses, to pay the City for the maintenance of Larimer County Canal No. 2, and for any other
lawful purpose. The District covenants that, upon the written request of the City, it shall use
District Operating Revenues to pay all costs incurred by the City in maintaining Larimer County
Canal No . 2 .
5 . 5 Reimbursement and Infrastructure Agreement, The District will acquire certain
tracts of the Property and/or easements as necessary, as designated on the PDP, from Developer
(the "District Property") and will manage the District Property in accordance with the Service
Plan.
5 . 6 Foothills Mall Fund. The District covenants to deposit any Add-On PIF
Revenues released from the lien of the District Bond Documents and remitted by the District
Bond Trustee to the District pursuant to Section 3 .2 hereof into the Foothills Mall Fund. Without
the prior written consent of the City Manager, the District shall apply or disburse moneys on
deposit in the Foothills Mall Fund only in accordance with Exhibit H. The Parties acknowledge
and agree that any expenditure of funds on deposit in the Foothills Mall Fund shall be
constrained by and must be in compliance with applicable State and federal law governing the
use of such funds, which, in part, will be governed by the source of such funds . In addition, the
Parties acknowledge that the District may only undertake activities and expend funds for
purposes authorized by the Special District Act and the approved Service Plan of the District.
The District shall provide the City with all documentation relating to the application of moneys
on deposit in the Foothills Mall Fund.
5 . 7 No Impairment. The District will not enter into any agreement or transaction that
impairs the rights of the Parties, including, without limitation, the right to receive, apply and
pledge District Pledged Revenue to payment of the District Bonds.
6 , THE AUTHORITY.
6 . 1 Authority Pledged Revenues . The Authority covenants and agrees that it will
pledge the Authority Pledged Revenues to the payment of the District Bonds in accordance with
the terms and provisions of this Agreement. The Authority agrees to establish the Special Fund
in accordance with the provisions of the Act and deposit the Authority Pledged Revenues into
the Special Fund upon receipt. All moneys on deposit in the Special Fund, and any other
Pledged Property Tax Increment Revenues or Pledged Sales Tax Increment Revenues received
by the Authority, will be remitted to the District Bond Trustee in accordance with the terms and
provisions of the District Bond Indenture so long as any District Bonds remain outstanding.
6 .2 District Debt Service Mill Levy and District Operating Revenue. The Authority
hereby irrevocably pledges any amounts received from the District Debt Service Mill Levy and
the District Operating Revenue to the District. The District Debt Service Mill Levy and the
District Operating Revenue, when and as received by the Authority, will be subject to the lien of
such pledge without any physical delivery, filing, or further act. The Authority will deposit into
the District Administrative Account any and all of the District Debt Service Mill Levy and/or
District Operating Revenue received by the Authority from time to time in accordance with
Section 31 -25 - 107(9)(a)(II) of the Act and the rules and regulations of the Property Tax
Administrator of the State of Colorado from the levy of the District on taxable property within
17
the TIF Area. The Authority will transfer all of the revenue in the District Administrative
Account to the District on or before the 20th day of each month. The obligation of the Authority
to make deposits in the District Administrative Account and to transfer such revenue to the
District shall expire when the Authority ' s right to receive such revenue expires pursuant to the
Act. The District shall use the District Operating Revenue to pay its normal and reasonable
administrative, operating and maintenance expenses . The District shall pledge the District Debt
Service Mill Levy Revenue to payment of the District Bonds .
6 . 3 Multi- Fiscal Year Obli ag tion. The Parties acknowledge that, according to the
decision of the Colorado Court of Appeals in Olson v. City of Golden, 53 P . 3d 747 (2002), an
urban renewal authority is not a local government and therefore is not subject to the provisions of
Article X, Section 20 of the Colorado Constitution. Accordingly, the Authority ' s obligation to
remit the Authority Pledged Revenue to the District Bond Trustee in accordance with the
provisions of this agreement does not require electoral authorization and is not subject to annual
appropriation.
6A No Impairment. The Authority will not enter into any agreement or transaction
that impairs the rights of the Parties, including, without limitation, the right to receive and apply
Authority Pledged Revenue in accordance with the terms and provisions of this Agreement.
6 . 5 Cooperation with District and Developer. The Authority agrees to cooperate in a
reasonable manner to assist the District in issuing District Bonds and to pledge the Authority
Pledged Revenue to the payment of such District Bonds in accordance with the provisions of this
Agreement and the District Bond Documents .
7 , THE CITY.
7 . 1 Cooperation with District and Developer. The City agrees to cooperate with the
Developer and District in reviewing, scheduling hearings for, and scheduling the Service Plan
Amendment for approval by the City Council.
7 .2 Cooperation with Authority. The City agrees to cooperate with the Authority in
reviewing, scheduling hearings for, and scheduling the amendment to the Urban Renewal Plan
for approval by the City Council .
7 . 3 Collection of Authority Pledged Revenue . The City agrees to pay to the
Authority any Authority Pledged Revenues when, as and if received by the City, but which are
due and owing to the Authority pursuant to the Urban Renewal Plan.
7 .4 Underpass . The City agrees to accept ownership of the Underpass from the
Developer or the District upon Completion of Construction of the Underpass and in accordance
with the terms and conditions of the development agreement related thereto .
8 . PAYMENT OR REIMBURSEMENT OF ELIGIBLE COSTS . The Developer or
District, as applicable, will be paid or reimbursed for Eligible Costs from the net proceeds of the
District Bonds on deposit in the Project Fund upon compliance with the requisition process set
forth in the District Bond Documents, which shall substantially comply with the requirements set
forth in Exhibit E hereto . Such payment or reimbursement of Eligible Costs shall also comply
18
with the Reimbursement and Infrastructure Agreement between the Developer and the District.
Cost savings in the line items listed in Exhibit D may be allocated to cost overruns in other line
items only in accordance with the provisions set forth in Exhibit D .
9 . BOOKS AND ACCOUNTS ; FINANCIAL STATEMENTS . The Authority and District
will keep proper and current itemized records, books, and accounts in which complete and
accurate entries will be made of the receipt and use of all amounts of revenue received from any
and all sources and such other calculations required by this Agreement, the District Bond
Documents, and any applicable law or regulation. The Authority and the District will prepare
after the close of each fiscal year, a complete financial statement prepared in accordance with
generally accepted accounting principles accepted in the United States of America for such year
in reasonable detail covering the above information, and if required by statute, certified by a
public accountant, and will furnish a copy of such statement to the other Parties within two
hundred and ten (210) days after the close of each fiscal year of the Authority and the District or
upon such earlier date as may be required by the District Bond Documents .
9 . 1 Inspection of Records . All books, records and reports (except those allowed or
required by applicable law to be kept confidential) in the possession of the City, the Authority,
and the District, including, without limitation, those relating to the Pledged Revenue, the
Authority Administration Fee, Eligible Improvements, Eligible Costs, District Pledged Revenue,
District Operating Revenue, District Bonds will at all reasonable times be open to inspection by
such accountants or other agents as the respective Parties may from time to time designate.
10 . INSURANCE . At all times prior to Completion of Construction of the Project, the
District and the Developer, within ten ( 10) days after request by the City or the Authority, will
provide the City or the Authority, as the case may be, with proof of payment of premiums and
certificates of insurance showing that the District and the Developer are carrying, or causing
prime contractors to carry, builder's risk insurance (if appropriate), commercial general liability,
automobile, and worker's compensation insurance policies in commercially reasonable amounts
and coverages approved by the City Manager or the Executive Director of the Authority. Such
policies of insurance shall be placed with financially sound and reputable insurers.
11 . INDEMNIFICATION. For each Eligible Improvement, from Commencement of
Construction through Completion of Construction, and for any action arising during that time
period, Developer agrees to indemnify, defend and hold harmless the City and the Authority, its
officers, agents and employees, from and against all liability, claims, demands, and expenses,
including fines imposed by any applicable state or federal regulatory agency, court costs and
attorney fees, on account of any injury, loss, or damage, which arise out of or are in any manner
connected with any of the work to be performed by Developer, any subcontractor of Developer,
or any officer, employee, agent, successor or assign of Developer under this Agreement, if such
injury, loss, or damage is caused in whole or in part by, the negligent act or omission, error,
professional error, mistake, accident, or other fault of Developer, any subcontractor of
Developer, or any officer, employee, agent, successor or assign of Developer, but excluding any
injuries, losses or damages which are due to the gross negligence, breach of contract or willful
misconduct of the City or the Authority, as the case may be.
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12 . REPRESENTATIONS AND WARRANTIES .
12 . 1 Representations and Warranties by the Authority. The Authority represents and
warrants as follows :
(a) The Authority is a body corporate and politic of the State of Colorado,
duly organized under the Act, and has the power to enter into and has taken all actions to date
required to authorize this Agreement and to carry out its obligations .
(b) The Authority knows of no litigation, proceeding, initiative, referendum,
investigation or threat of any of the same contesting the powers of the Authority or its officials
with respect to this Agreement that has not been disclosed in writing to the Parties .
(c) The execution and delivery of this Agreement and the documents required
and the consummation of the transactions contemplated by this Agreement will not (a) conflict
with or contravene any law, order, rule or regulation applicable to the Authority or to its
governing documents, (b) result in the breach of any of the terms or provisions or constitute a
default under any agreement or other instrument to which the Authority is a party or by which it
may be bound or affected, or (c) permit any party to terminate any such agreement or
instruments or to accelerate the maturity of any indebtedness or other obligation of the Authority.
(d) The Authority Pledged Revenue is not subject to any other or prior pledge
or encumbrance, and the Authority will not pledge or encumber it except as specified herein or
as may be provided in the District Bond Documents or the documents related to the issuance of
any District Bonds .
(e) This Agreement constitutes a valid and binding obligation of the
Authority, enforceable according to its terms, except to the extent limited by bankruptcy,
insolvency and other laws of general application affecting creditors ' rights and by equitable
principles, whether considered at law or in equity.
12 .2 Representations and Warranties by the District. The District represents and
warrants as follows :
(a) The District is a quasi-municipal corporation and political subdivision of
the State of Colorado, organized and existing in accordance with Title 32, Article 1 , C .R. S . , and
has the legal capacity and the authority to enter into and perform its obligations under this
Agreement and the documents to be executed and delivered pursuant hereto .
(b) The execution and delivery of this Agreement and such documents and the
performance and observance of their terms, conditions and obligations have been duly and
validly authorized by all necessary action on its part, and such documents and such performance
and observance are valid and binding upon the District.
(c) The execution and delivery of this Agreement and the documents required
and the consummation of the transactions contemplated by this Agreement will not (a) conflict
with or contravene any law, order, rule or regulation applicable to the District or to the District' s
governing documents, (b) result in the breach of any of the terms or provisions or constitute a
20
default under any agreement or other instrument to which the District is a party or by which it
may be bound or affected, or (c) permit any parry to terminate any such agreement or
instruments or to accelerate the maturity of any indebtedness or other obligation of the District.
(d) The District knows of no litigation, proceeding, initiative, referendum, or
investigation or threat of any of the same contesting the powers of the Authority, the District or
any of its officials with respect to this Agreement that has not been disclosed in writing to the
Parties.
(e) The District Pledged Revenue is not subject to any other or prior pledge or
encumbrance, and the District will not pledge or encumber it except as specified herein or as
may be provided in the District Bond Documents or the documents related to the issuance of the
District Bonds .
(f) This Agreement constitutes a valid and binding obligation of the District,
enforceable according to its terms, except to the extent limited by bankruptcy, insolvency and
other laws of general application affecting creditors ' rights and by equitable principles, whether
considered at law or in equity.
12 . 3 Representations and Warranties by the Developer. Developer represents and
warrants as follows :
(a) Developer is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of Delaware and in good standing and
authorized to do business in the State of Colorado and has the power and the authority to enter
into and perform in a timely manner its obligations under this Agreement.
(b) The execution and delivery of this Agreement have been duly and validly
authorized by all necessary action on its part to make this Agreement and are valid and binding
upon Developer.
(c) The execution and delivery of this Agreement will not (a) conflict with or
contravene any law, order, rule or regulation applicable to Developer or to Developer' s
governing documents, (b) result in the breach of any of the terms or provisions or constitute a
default under any agreement or other instrument to which Developer is a party or by which it
may be bound or affected, or (c) permit any party to terminate any such agreement or
instruments or to accelerate the maturity of any indebtedness or other obligation of Developer.
(d) Developer knows of no litigation, proceeding, initiative, referendum, or
investigation or threat or any of the same contesting the powers of the Developer or any of its
principals or officials with respect to this Agreement that has not been disclosed in writing to the
other Parties .
21
12 .4 Representations and Warranties by the City. The City represents and warrants as
follows :
(a) The City is a body corporate and politic and a home rule municipality of
the State of Colorado, and has the power to enter into and has taken all actions to date required to
authorize this Agreement and to carry out its obligations under this Agreement.
(b) The City knows of no litigation, proceeding, initiative, referendum,
investigation or threat of any of the same contesting the powers of the City or its officials with
respect to this Agreement that has not been disclosed in writing to the Parties .
(c) The execution and delivery of this Agreement and the documents required
hereunder and the consummation of the transactions contemplated by this Agreement will not (a)
conflict with or contravene any law, order, rule or regulation applicable to the City or to its
governing documents, (b) result in the breach of any of the terms or provisions or constitute a
default under any agreement or other instrument to which the City is a party or by which it may
be bound or affected, or (c) permit any party to terminate any such agreement or instruments or
to accelerate the maturity of any indebtedness or other obligation of the City.
(d) This Agreement constitutes a valid and binding obligation of the City,
enforceable according to its terms, except to the extent limited by bankruptcy, insolvency and
other laws of general application affecting creditors ' rights and by equitable principles, whether
considered at law or in equity.
13 . TERM. The term of this Agreement is the period commencing on the Effective Date and
terminating on the later of: (i) the date of payment in full of the District Bonds, or (ii) thirty years
from the Effective Date; provided, however, that the Authority ' s obligation to remit the
Authority Pledged Revenue to the District Bond Trustee shall terminate upon the expiration of
the time period that the Authority is authorized pursuant to the Act to receive the Authority
Pledged Revenue, and provided, further, that the following provisions, without limitation, shall
continue beyond the term of this Agreement: (A) the District' s and Developer' s obligation to
operate and maintain the Project in accordance with the standards set forth herein, (B) the
District ' s obligation to reimburse the City for the costs of maintaining Larimer County Canal No.
2 , (C) the limitation on the imposition of the Add-on PIF for no more than thirty years from the
Effective Date without the written consent of the City, (D) the Developer' s indemnification
obligations under Section 1 I hereof, (E) any rights and remedies that a Party has for an Event of
Default hereunder, and (F) any rights that a Party has to inspect books and records as set forth in
Section 9 hereof.
14 . CONFLICTS OF INTEREST. None of the following will have any personal interest,
direct or indirect, in this Agreement: a member of the governing body of the Authority or the
City, an employee of the Authority or of the City who exercises responsibility concerning the
Urban Renewal Plan, or an individual or firm retained by the City or the Authority who has
performed consulting services to the Authority in connection with the Urban Renewal Plan, this
Agreement, or the Authority Financing. None of the above persons or entities will participate in
any decision relating to the Agreement that affects his or her personal interests or the interests of
any corporation, partnership or association in which he or she is directly or indirectly interested.
22
15 . ANTIDISCRIMINATION. Developer, for itself and its successors and assigns, agrees
that in the construction of the Eligible Improvements and in the use and occupancy of the
Property and the Eligible Improvements, Developer will not discriminate against any employee
or applicant for employment because of race, color, creed, religion, sex, sexual preference,
disability, marital status, ancestry, or national origin.
16 . NOTICES . Any notice required or permitted by this Agreement will be in writing and
will be deemed to have been sufficiently given for all purposes if delivered in person, by prepaid
overnight express mail or overnight courier service, by certified mail or registered mail, postage
prepaid return receipt requested, addressed to the Party to whom such notice is to be given at the
address set forth on the signature page below or at such other or additional addresses as may be
furnished in writing to the other Parties . Additionally, the Parties agree to provide concurrent
notice via electronic mail.
17 . DELAYS ; FORCE MAJEURE. Subject to the following provisions, time is of the
essence. Any delays in or failure of performance by any Party of its obligations under this
Agreement shall be excused if such delays or failure are a result of acts of God, fires, floods,
earthquake, strikes, labor disputes, regulation or order of civil or military authorities, or other
causes, similar or dissimilar, which are beyond the control of such Party.
18 , EVENTS OF DEFAULT. The following events shall constitute an Event of Default
under this Agreement:
(a) Failure by the Authority to pledge the Authority Pledged Revenue to any
outstanding District Bonds in accordance with the District Bond Documents or failure to remit
any such Authority Pledged Revenues within five (5) business days of the date they are required
to be remitted;
(b) Failure by the District to impose the District Debt Service Mill Levy or to
remit the District Pledged Revenues within five (5) business days of the date they are required to
be remitted;
(c) Any representation or warranty made by any Party in this Agreement
proves to have been untrue or incomplete in any material respect when made and which untruth
or incompletion would have a material adverse effect upon any other Party;
(d) Any Party fails in the performance of any other covenant in this
Agreement and such default continues for thirty (30) days after written notice specifying such
default and requiring the same to be remedied is given by a non-defaulting Party to the defaulting
Party. If such default is not of a type which can be cured within such thirty (30) day period and
the defaulting Party gives written notice to the non-defaulting Party or Parties within such thirty
(30) day period that it is actively and diligently pursuing such cure, the defaulting Party shall
have a reasonable period of time given the nature of the default following the end of such thirty
(30) day period to cure such default, provided that such defaulting Party is at all times within
such additional time period actively and diligently pursuing such cure in good faith.
19 . REMEDIES . Upon the occurrence and continuation of an Event of Default, the non-
defaulting Parry ' s remedies will be limited to the right to enforce the defaulting Parry' s
23
obligations by an action for injunction, specific performance, or other appropriate equitable
remedy or for mandamus, or by an action to collect and enforce payment of sums owing
hereunder, and no other remedy, and no Party will be entitled to or claim damages for an Event
of Default by the defaulting Party, including, without limitation, lost profits, economic damages,
or actual, direct, incidental, consequential, punitive or exemplary damages . In the event of any
litigation or other proceeding to enforce any of the terms, covenants or conditions of this
Agreement, the prevailing party in such litigation or other proceeding will receive, as part of its
judgment or award, its reasonable attorneys ' fees and costs . The occurrence and continuation of
an Event of Default will not affect the obligation of the Authority or the District to collect and
remit Pledged Revenues or the obligation of the Authority to remit the District Debt Service Mill
Levy Revenue or the District Operating Revenue to the District in accordance with the terms and
provisions of this Agreement.
20, TERMINATION. Upon the occurrence of any of the following events, this Agreement
may be terminated in accordance with the provisions hereinafter set forth:
(a) In the event that the District Bonds are not issued on or prior to December 1 ,
2013 , then any Parry shall have the option to terminate this Agreement.
(b) In the event that the District Bonds have not been issued and the Developer or the
District have not Commenced Construction of any portion of the Project on or prior to October 1 ,
2013 , then any Party shall have the option to terminate this Agreement.
In order to terminate this Agreement, a Party shall provide written notice of such
termination to the other Parties . Such termination shall be effective thirty (30) days after the date
of such notice unless prior to such time, the Parties are able to negotiate in good faith to reach an
agreement to avoid such termination. Upon such termination, this Agreement shall be null and
void and of no effect, and no action, claim or demand may be based on any term or provision of
this Agreement. In addition the Parties agree to execute a mutual release or other instruments
reasonably required to effectuate and give notice of such termination.
In the event that this agreement is terminated pursuant to this Section 20, the Developer
agrees that it shall continue to be obligated to pay or reimburse the Authority for Authority
Reimbursable Costs in accordance with the Agreement to Negotiate and shall continue to be
obligated to pay or reimburse the City and the Authority for its costs, fees and expenses as set
forth in Section 4 . 11 hereof.
21 . NONLIABILITY OF OFFICIALS , AGENTS , MEMBERS, AND EMPLOYEES .
Except for willful or wanton actions, no trustee, board member, commissioner, official,
employee, consultant, manager, member, shareholder, attorney or agent of any Party, nor any
lender to any Party or to the Project, will be personally liable under the Agreement or in the
event of any default or for any amount that may become due to any Party.
22 , ASSIGNMENT . Except for a District Bond Trustee in connection with the issuance of
the District Bonds, this Agreement will not be assigned in whole or in part by any Party without
the prior written consent of the other Parties ; provided, however, the following assignments and
transfers will not require any such consent: (a) Developer may assign all or a portion of this
24
Agreement to the District; (b) subject to written notice to the City and the Authority from
Developer containing the name and address of the lender or other party, Developer may pledge,
collaterally assign or otherwise encumber all or any part of its rights under this Agreement,
including its right to receive any payment or reimbursement, to any lender or other party that
provides acquisition, construction, working capital, tenant improvement or other financing to
Developer in connection with development of the Property and/or construction of the Eligible
Improvements ; and (c) on and after Completion of Construction of the Project and subject to
written notice to the City and the Authority, the Developer may assign all or any part of its rights
under this Agreement to any purchaser of all or any portion of the Project. On and after
Completion of Construction of the Project and in the event that the Developer sells all or a
portion of the Project to a purchaser, and such purchaser accepts all or a part of the Developer' s
obligations hereunder, then Developer shall be released from all of its obligations hereunder that
have been assumed or accepted by such purchaser, provided, however, that no such release shall
be effective until the City and the Authority have received written confirmation that such
purchaser has assumed or accepted any such obligations hereunder. The Authority recognizes
that Developer may form, together with investors, a separate, special purpose entity to develop,
own and/or operate all or a portion of the Property or of the Eligible Improvements to be
constructed thereon and that one or more assignments of all or a portion of this Agreement may
be required in connection with such activities and such transfer(s) will not require any consent by
the Parties .
Except as otherwise specifically set forth in Section 4 . 11 hereof, no covenants or
obligations of the Developer or the District hereunder shall run with the land.
23 . COOPERATION REGARDING DEFENSE. In the event of any litigation or other legal
challenge involving this Agreement, the District Bonds, the validity of the Urban Renewal Plan,
the District, or any other material part or provision of this Agreement or the ability of any Party
to enter into this Agreement, the Parties will cooperate and jointly defend against such action or
challenge, to the extent permitted by law.
24. SECTION CAPTIONS . The captions of the sections are set forth only for the
convenience and reference of the Parties and are not intended in any way to define, limit, or
describe the scope or intent of this Agreement.
25 , ADDITIONAL DOCUMENTS OR ACTION.
25 . 1 The Parties agree to execute any additional documents or take any additional
action, including but not limited to estoppel documents requested or required by third parties,
including without limitation, lenders, tenants or potential purchasers, that is necessary to carry
out this Agreement or is reasonably requested by any Party to confirm or clarify the intent of the
provisions of this Agreement and to effectuate the agreements and the intent. Notwithstanding
the foregoing, however, no Party shall be obligated to execute any additional document or take
any additional action unless such document or action is reasonably acceptable to such Party.
25 .2 If all or any portion of this Agreement, or other agreements approved in
connection with this Agreement are asserted or determined to be invalid, illegal or are otherwise
precluded, the Parties, within the scope of their powers and duties, will cooperate in the joint
25
defense of such documents and, if such defense is unsuccessful, the Parties will use reasonable,
diligent good faith efforts to amend, reform or replace such precluded items to assure, to the
extent legally permissible, that each Party substantially receives the benefits that it would have
received under this Agreement.
25 . 3 At the time of issuance of the District Bonds, each of the Authority and the City
shall deliver an opinion of counsel addressed to the District, or with a reliance letter delivered to
the District, with respect to this Agreement and the Urban Renewal Plan, which opinions shall
state in substance that the Agreement and the Urban Renewal Plan have been duly authorized,
executed, and delivered by the Authority and the City, as applicable, constitute valid and binding
agreements of the Authority and the City, as applicable, and are enforceable according to their
terms, subject to any applicable bankruptcy, reorganization, insolvency, moratorium, or other
law affecting the enforcement of creditors rights generally and subject to the application of
general principles of equity.
25 .4 At the time of issuance of the District Bonds, the District shall deliver an opinion
of counsel addressed to the City and the Authority, or with a reliance letter delivered to the City
and the Authority, with respect to this Agreement, which opinion shall state in substance that the
Agreement has been duly authorized, executed, and delivered by the District, constitutes a valid
and binding agreement of the District, and is enforceable according to its terms, subject to any
applicable bankruptcy, reorganization, insolvency, moratorium, or other law affecting the
enforcement of creditors rights generally and subject to the application of general principles of
equity.
25 . 5 The City Manager shall have the authority to act on behalf of the City under this
Agreement and the Executive Director shall have the authority to act on behalf of the Authority
under this Agreement.
26 , AMENDMENT . This Agreement may be amended only by an instrument in writing
signed by the Parties .
27 , WAIVER OF BREACH. A waiver by any Party to this Agreement of the breach of any
term or provision of this Agreement must be in writing and will not operate or be construed as a
waiver of any subsequent breach by any Party.
28 . GOVERNING LAW. The laws of the State of Colorado govern this Agreement. The
District Court of Larimer County will be the exclusive venue for any litigation.
29 . BINDING EFFECT. This Agreement will inure to the benefit of and be binding upon the
Parties and their respective legal representatives, successors, heirs, and assigns, provided that
nothing in this paragraph permits the assignment of this Agreement except as set forth in Section
22 ,
30 . EXECUTION IN COUNTERPARTS . This Agreement may be executed in several
counterparts, each of which will be deemed an original and all of which will constitute but one
and the same instrument.
26
31 . LIMITED THIRD-PARTY BENEFICIARIES . Except for the District Bond Trustee for
any District Bonds, direct lenders to the District that have been assigned rights hereunder in
accordance with Section 22 , or any provider of credit enhancement for the District Bonds, this
Agreement is not intended and shall not be deemed to confer any rights on any person or entity
not named as a Party to this Agreement.
32 , NO PRESUMPTION. The Parties and their attorneys have had a full opportunity to
review and participate in the drafting of the final form of this Agreement. Accordingly, this
Agreement will be construed without regard to any presumption or other rule of construction
against the Party causing the Agreement to be drafted.
33 . SEVERABILITY. If any provision of this Agreement as applied to any Party or to any
circumstance is adjudged by a court to be void or unenforceable, the same will in no way affect
any other provision of this Agreement, the application of any such provision in any other
circumstances or the validity, or enforceability of the Agreement as a whole.
34. MINOR CHANGES . This Agreement has been approved in substantially the form
submitted to the governing bodies of the Parties . The officers executing this Agreement are
authorized to make and may have made, minor changes to this Agreement and attached exhibits
as they have considered necessary. So long as such changes were consistent with the intent and
understanding of the Parties at the time of approval by the governing bodies, the execution of the
Agreement will constitute the approval of such changes by the respective Parties .
35 , DAYS . If the day for any performance or event provided for herein is a Saturday, a
Sunday, a day on which national banks are not open for the regular transactions of business, or a
legal holiday pursuant to Section 24- 11 - 101 ( 1 ), C .R. S . , such day will be extended until the next
day on which such banks and state offices are open for the transaction of business .
36 . 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.
37 , PARTIES NOT PARTNERS . Notwithstanding any language in this Agreement or any
other agreement, representation, or warranty to the contrary, the Parties will not be deemed to be
partners or joint venturers , and no Party is responsible for any debt or liability of any other Party.
38 . NO WAIVER OF IMMUNITY. Nothing contained in this Agreement constitutes a
waiver of sovereign immunity or governmental immunity by any Party under applicable state
law.
27
IN WITNESS WHEREOF , this Agreement is executed by the Parties as of ,
2013 .
FORT COLLINS URBAN RENEWAL AUTHORITY
ATTEST : Chairperson
Executive Director
Notice Address :
Fort Collins Urban Renewal Authority
300 LaPorte Avenue
P . O . Box 580
Fort Collins, CO 80522
Attention: Darin Atteberry, Executive Director
Email : DATTEBERRY@fcgov. com
28
CITY OF FORT COLLINS , COLORADO
By :
Mayor
(SEAL)
Attest :
City Clerk
APPROVED AS TO FORM
City Attorney
Notice Address :
City of Fort Collins
300 LaPorte Avenue
P . O . Box 580
Fort Collins, Colorado 80522
Attention: Steve Roy, Esq. , City Attorney
Email : SROY@fcgov. com
29
FOOTHILLS METROPOLITAN DISTRICT
ATTEST : President
Secretary
Notice Address :
Attention:
Email :
30
WALTON FOOTHILLS HOLDINGS VI, L.L. C . ,
a Delaware limited liability company
By: Foothills Alberta Management, LLC,
a Colorado limited liability company
Its : Authorized Agent
By :
Donald G. Provost
Its : Manager
Notice Address :
Walton Foothills Holdings VI, L .L . C .
5750 DTC Pkwy, Suite 210
Greenwood Village, CO 80111
Attention: Donald G. Provost
Email:
With a copy to :
Brownstein Hyatt Farber Schreck, LLP
410 Seventeenth Street, Suite 2200
Denver, CO 80202
Attention: Carolynne C. White, Esq.
Email : cwhite@bhfs . com
31
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
Foothills Mall :
PARCEL I - FEE SIMPLE :
Tract 2, The Foothills Fashion Mall Expansion, City of Fort Collins, County of Larimer, State of
Colorado.
PARCEL II - FEE SIMPLE :
Tract 3 , The Foothills Fashion Mall Expansion, City of Fort Collins, County of Larimer, State of
Colorado.
PARCEL III - FEE SIMPLE :
Lot # 1 of Replat of Tracts F, G and J and Vacated Service Road, Southmoor Village Fifth Filing,
City of Fort Collins, Colorado, a municipal corporation, according to the replat filed December
131 1973 , except that portion conveyed to the City of Fort Collins, for public use by Deed of
Dedication recorded April 21 , 1989, as Reception No . 890178208 , more particularly described as
follows :
A part of Lot 1 of the Replat of Tracts F, G and J and Vacated Service Road, Southmoor Village,
Fifth Filing, City of Fort Collins, County of Larimer, State of Colorado, which begins at a point
which bears South 00° 12' East 105 . 36 feet from the Northeast corner of said Lot 1 , and runs
thence South 00° 12' East 137 .44 feet; Thence along the arc of a 15 . 00 foot radius curve to the
right a distance of 17 . 77 feet, the long chord of which bears South 33 °43 '30 " West 16 . 75 feet;
Thence along the arc of a 360 . 77 foot radius curve to the left a distance of 146 . 61 feet, the long
chord of which bears South 56'01 '30 " West 145 . 60 feet; Thence North 44°23 ' East 85 . 72 feet;
thence along the arc of a 243 . 83 foot radius curve to the left a distance of 189 . 80 feet, the long
chord of which bears North 22 °05 ' East 185 . 04 feet to the Point of Beginning.
PARCEL IV - FEE SIMPLE :
A part of Tract T and U and apart of the vacated frontage road adjacent to said Tract U,
Southmoor Village Fifth Filing, City of Fort Collins, County of Larimer, State of Colorado,
which begins at a point on the West line of said Tract T which bears South 01 °57' East 7 . 19 feet
and again South 12° 17'30 " West 180 . 10 feet from the Northwest corner of said Tract T, and run
thence North 89°45 '30" East 243 . 55 feet to a point on the Northerly line of East Monroe Drive ;
Thence along said Northerly right-of-way line, South 51 °45 ' West 231 . 73 feet and again along
the arc of a 193 .41 foot radius curve to the right a distance of 127 . 73 feet, the long chord of
which bears South 70°40'06" West 125 .42 feet and again South 89°35 ' 15 " West 137 . 00 feet;
Thence along the arc of a 15 .00 foot radius curve to the right a distance of 23 . 56 feet, the long
chord of which bears North 45 °24'45 " West 21 .21 feet; Thence North 00°24'45 " West 169 . 17
feet along the East line of South College Avenue; Thence North 89°45 '30 " East, 2 10 . 10 feet to
the point of beginning.
Also :
A part of Tract T of Southmoor Village, Fifth Filing which begins at the Northwest corner of
said Tract T and run thence North 89°45 '30 " East 227 . 00 feet; Thence South 74° 54' East 170 . 06
feet; Thence South 00° 14'30" East 24 .45 feet to a point on the North line of Monroe Drive;
Thence along said North line along the arc of a 301 . 32 foot radius curve to the left a distance of
124.25 feet, the long chord of which bears South 63 ° 33 '47 " West 123 . 37 feet, and again South
51 °45 ' West 95 . 97 feet; Thence South 89°45 '30 " West 243 . 55 feet; Thence North 129730 " East
180. 10 feet; Thence North 01 °57' West 7 . 19 feet to the point of beginning : AND a part of Tract
U of Southmoor Village, Fifth Filing, and a part of the vacated frontage road adjacent to said
Tract U which begins at the Northeast corner of said Tract U and run thence South 01 ° 57' East
7 . 19 feet; Thence South 12° 17'30 " West 180 . 10 feet; Thence South 89°45 '30 " West 210 . 10 feet
to a point on the East right-of-way line of South College Avenue ; Thence North 00°24'45 " West
183 . 00 feet; Thence North 89°45 '30" East 249 . 52 feet to the point of beginning; City of Fort
Collins, County of Larimer, State of Colorado.
EXCEPT that portion described in Partial Release recorded August 19, 1988 as Reception No .
88039190 ,
The above described Parcel IV is also known as :
A part of Tract T, Tract U and the vacated frontage road adjacent to the West side of Tract U, all
in Southmoor Village, Fifth Filing, City of Fort Collins, County of Larimer, State of Colorado,
which begins at the Northwest corner of said Tract T and runs thence North 89°45 '30 " East
225 .25 feet; Thence along the arc of a 140 . 00 foot radius curve to the right a distance of 61 . 50
feet, the long chord of which bears South 12°49'33 " East 61 . 00 feet; Thence South 00° 14'30 "
East 97 . 00 feet; Thence South 51 °45 ' West 274. 70 feet; Thence along the arc of a 193 .41 foot
radius curve to the right a distance of 127 . 73 feet, the long chord of which bears South 70°40'06 "
West 125 .42 feet; Thence South 89°35 ' 15 " West 137 . 00 feet; Thence along the arc of a 15 . 00
foot radius curve to the right a distance of 23 . 56 feet, the long chord of which bears North
45 °24'45 " West 21 . 21 feet; Thence North 00°24'45 " West 352 . 17 feet; Thence North 89°45 '30"
East 249 . 52 feet to the Point of Beginning.
PARCEL V - FEE SIMPLE :
Tract A, The Foothills Fashion Mall Foley's Expansion, City of Fort Collins, County of Larimer,
State of Colorado .
PARCEL VI - FEE SIMPLE :
Tract 1 and Tract 7 of The Foothills Fashion Mall Expansion, City of Fort Collins, County of
Larimer, State of Colorado .
Al - 2
PARCEL VII - FEE SIMPLE :
Tract 10 of The Foothills Fashion Mall Expansion, City of Fort Collins, County of Larimer, State
of Colorado .
PARCEL VIII - FEE SIMPLE :
Tract E, Southmoor Village, Fifth Filing, together with a tract of land beginning at the Southwest
corner of Tract E of Southmoor Village Fifth Filing and runs :
Thence South 89°45 '30 " West, 50 . 00 feet;
Thence North 00°24'45 " West, 414 . 93 feet;
Thence North 89°35 ' 15 " East, 5 0. 00 feet;
Thence South 00°24'45 " East, 415 .08 feet to the beginning, Larimer County, Colorado .
PARCEL IX - EASEMENTS :
Together with those rights and easements constituting rights in real property created, defined and
limited by that certain Easement Agreement recorded June 23 , 1972 in Book 1509 at Page 306 ,
Amended Agreement recorded June 23 , 1972 in Book 1509 at Page 316, Amended Construction,
Operation Reciprocal Easement Agreement recorded June 23 , 1972 in Book 1509 at Page 201 ,
Restatement of Amended Construction, Operation and Reciprocal Easement Agreement recorded
May 31 , 1979 , in Book 1956 at Page 796, Amendment No . 1 to Restatement of Amended
Construction, Operation and Reciprocal Easement Agreement, recorded September 27, 1988 at
Reception No . 88042996, and Amendment No . 2 to Restatement of Amended Construction,
Operation and Reciprocal Easement Agreement recorded September 7 , 1999 at Reception No .
99079223 , Assignment and Assumption of Restatement of Amended Construction, Operation
and Reciprocal Easement Agreement recorded December 19 , 2003 at Reception No .
20030158946 , and Assignment and Assumption of Restatement of Amended Construction,
Operation and Reciprocal Easement Agreement recorded January 30, 2004 at Reception No.
2004009265 .
PARCEL X - EASEMENTS :
Together with those rights and easements constituting rights in real property created, defined and
limited by that certain Cross-Easement Agreement recorded September 7, 1988 at Reception No .
88042989 , Grant of Easement recorded September 7 , 1988 at Reception No . 88042997 and Grant
of Easement recorded January 26, 1993 at Reception No. 93005028 .
PARCEL XI - EASEMENTS :
Together with those rights and easements constituting rights in real property created, defined and
limited by that certain Easement Agreement recorded April 24, 1997 at Reception No . 97025069 .
Al - 3
Macy' s :
Tract "B " of The Foothills Fashion Mall Foley's Expansion, located in the Southwest Quarter of
Section 25 , Township 7 North, Range 69 West of the 6th Principal Meridian, City of Fort
Collins, County of Larimer, State of Colorado, being more particularly described as follows :
Considering the North line of said Tract "B " as bearing North 89°47'08 " East with all bearings
contained herein relative thereto :
Beginning at the Northwest corner of said Tract "B " ; thence along said North line, North
89°47'08 " East, 147 . 00 feet to the Northwest corner of Tract "A" of said The Foothills Fashion
Mall Foley's Expansion; thence along the West and Southerly lines of said Tract "A" by the
following four (4) courses and distances, South 00° 12'52 " East, 180 . 00 feet; thence North
89°47'08 " East 714 . 79 feet; thence North 00° 12'52 " West, 1 28 . 00 feet; thence North 89°47'08 "
East, 132 .28 feet to a point on the West right-of-way line of Stanford Road, said point being on a
non-tangent curve concave to the Northwest having a central angle of 14°33 '25 " , a radius of
1319 .21 feet and a long chord which bears South 09° 19' 18 " West, 334 .27 feet; thence along the
arc of said curve 335 . 17 feet; thence South 16°36'00" West, 93 . 03 feet to a point being on a non
tangent curve concave to the Southwest having a central angle of 89°58 '58 " , a radius of 15 . 00
feet and a long chord which bears North 28 °24'00 " West, 21 .21 feet; thence along the arc of said
curve 23 . 56 feet; thence North 73 °24'00 " West, 242 . 72 feet; thence South 00° 14 ; 39 : East, 306 . 31
feet; thence South 89°45 '30 " West, 329 . 50 feet; thence South 44°45 '30 " West, 98 . 72 feet; thence
North 45 ° 14'30" West, 48 . 00 feet; thence South 44°45 '30 " West, 93 . 53 feet; thence North
45 ° 14'30 " West, 151 .44 feet; thence South 44°45 '30 " West, 47 .26 feet; thence North 00° 14'30 "
West, 332 .20 feet; thence North 89°47'00" East, 99 . 70 feet; thence North 00° 13 '00 " West, 280 . 13
feet to the Point of Beginning.
Sears :
Tract 8 , The Foothills Fashion Mall Expansion to the city of Fort Collins, County of Larimer,
State of Colorado
Christy Sports :
Parcel One :
Tract "D " Southmoor Village Fifth Filing AND the following described portion of the vacated
frontage road vacated by Ordinance No . 98 as recorded in Book 1580 at page 897 , which begins
at the Southwest corner of said Tract "D " and run
thence N 00°00'45 " West 143 . 71 feet along the West line of said Tract D ;
thence S 44° 59' 15 " West 70 . 71 feet;
thence S 00°00'45 " East 93 . 71 feet;
thence N 89' 59' 15 " East 50. 00 feet to the Point of Beginning,
together with the following described easement:
Al - 4
Parcel Two : (easement)
A portion of Tract 8 , Foothills Fashion Mall Expansion, formerly known as a part of Tract " C " of
Southmoor Village, Fifth Filing, in the City of Fort Collins, which begins at the Northeast corner
of Tract "D " of said Southmoor Village, Fifth Filing, and run
thence S 00°00'45 " East 158 . 71 feet;
thence S 89° 59' 15 " West 158 . 71 feet;
thence S 00°00'45 " East 50 . 00 feet;
thence N 89° 59' 15 " East 185 . 00 feet;
thence N 13 °44 East 130 .45 feet;
thence along the Arc of a 200 foot radius curve to the left a distance of 55 . 72 feet;
thence along the arc of a 35 -foot radius curve to the right a distance of 3 1 . 8 1 feet;
thence along the Southerly line of Foothills Parkway, on the arc of a 359 .23 foot radius curve to
the right a distance of 43 . 81 feet, and again along the Southerly line of Foothills Parkway South
89°59' 15 " West 29 .29 feet to the Point of Beginning.
Subject to the terms, agreements, provisions, conditions and obligations as contained in
Easement Agreement recorded December 11 , 1972, in Book 1532 at Page 904 and Assignment
recorded January 8 , 1973 , in Book 1536 at Page 448 .
Al - 5
EXHIBIT B
DESCRIPTION OF THE FOOTHILLS
TAX INCREMENT FINANCING DISTRICT
A TRACT OF LAND LOCATED IN THE SOUTHWEST QUARTER OF SECTION 25 AND THE
SOUTHEAST QUARTER OF SECTION 26 , TOWNSHIP 7 NORTH , RANGE 69 WEST OF THE SIXTH
P . M . ; CITY OF FORT COLLINS , COUNTY OF LARIMER , STATE OF COLORADO ; BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS :
BEGINNING AT THE WEST QUARTER CORNER OF SAID SECTION 25 , AND CONSIDERING THE
WEST LINE OF THE SOUTHWEST QUARTER OF SAID SECTION 25 AS HAVING AN ASSUMED
BEARING OF S00004 ' 53 "W , SAID LINE BEING MONUMENTED ON ITS NORTH END BY A 3 "
ALUMINUM CAP STAMPED LS 20123 , AND ON ITS SOUTH END BY A 2- 1 /2" ALUMINUM CAP
STAMPED LS 14823 , WITH ALL BEARINGS CONTAINED HEREIN RELATIVE THERETO ,
THENCE ALONG THE NORTHERLY BOUNDARY OF LOT 1 OF THE " REPLAT OF TRACTS F , G , AND
J , AND VACATED SERVICE ROAD , SOUTHMOOR VILLAGE , FIFTH FILING " AND THE WESTERLY
EXTENSION THEREOF , N89052 '45" E , A DISTANCE OF 314 . 48 FEET TO A POINT ON THE
WESTERLY RIGHT OF WAY LINE OF REMINGTON STREET ;
THENCE CONTINUING ALONG SAID NORTHERLY BOUNDARY THE FOLLOWING FIVE (5 )
COURSES :
1 ) ALONG THE WESTERLY RIGHT OF WAY LINE OF REMINGTON STREET , S0000513711W ) A
DISTANCE OF 50 . 00 FEET ;
2 ) ALONG THE SOUTHERLY RIGHT OF WAY LINE OF REMINGTON STREET , N8905214511E , A
DISTANCE OF 60 . 00 FEET ;
3 ) S51 °41 '04 " E , A DISTANCE OF 145 . 40 FEET ;
4) S89035123 " E5 A DISTANCE OF 138 . 50 FEET ;
5 ) N00005137" E5 A DISTANCE OF 141 . 63 FEET ;
THENCE CONTINUING ALONG SAID NORTHERLY BOUNDARY AND ITS EASTERLY EXTENSION ,
N89052 '45" E , A DISTANCE OF 357 . 21 FEET TO A POINT ON THE EASTERLY RIGHT OF WAY LINE
OF MATHEWS STREET , SAID POINT ALSO BEING THE NORTHWEST CORNER OF TRACT K ,
SOUTHMOOR VILLAGE , FIFTH FILING ;
THENCE ALONG THE WESTERLY , SOUTHERLY , AND EASTERLY BOUNDARIES OF SAID TRACT K
THE FOLLOWING FIVE ( 5 ) COURSES :
1 ) ALONG SAID EASTERLY RIGHT OF WAY LINE OF MATHEWS STREET , S0001415611E , A
DISTANCE OF 215 . 33 FEET ;
2 ) 23 . 98 FEET ALONG THE ARC OF A TANGENT CURVE TO THE LEFT , HAVING A RADIUS OF
15 . 00 FEET , A CENTRAL ANGLE OF 91 ° 36'53" , AND A CHORD WHICH BEARS S46003'22 " E A
DISTANCE OF 21 . 51 FEET ;
3 ) 11 . 02 FEET ALONG THE ARC OF A REVERSE CURVE , HAVING A RADIUS OF 360 . 77 FEET ,
A CENTRAL ANGLE OF 01 045'00 " 5 AND A CHORD WHICH BEARS N89000'07 " E A DISTANCE
OF 11 . 02 FEET ;
4) N89052 '3711E , A DISTANCE OF 173 . 52 FEET ;
5 ) N00007123"W5 A DISTANCE OF 230 . 12 FEET TO THE NORTHWEST CORNER OF TRACT B
OF THE FOOTHILLS FASHION MALL FOLEY' S EXPANSION ;
THENCE ALONG THE NORTHERLY BOUNDARY OF TRACTS B AND A OF SAID FOOTHILLS
FASHION MALL FOLEY' S EXPANSION , N89052'46" E , A DISTANCE OF 996 . 10 FEET TO A POINT ON
THE WESTERLY RIGHT OF WAY LINE OF STANFORD ROAD ;
THENCE ALONG SAID WESTERLY RIGHT OF WAY LINE THE FOLLOWING SEVEN ( 7 ) COURSES :
1 ) ALONG THE EASTERLY BOUNDARY OF TRACT B OF SAID FOOTHILLS FASHION MALL
FOLEY' S EXPANSION , 387 . 18 FEET ALONG THE ARC OF A NON -TANGENT CURVE TO THE
RIGHT , HAVING A RADIUS OF 1 , 319 . 30 FEET , A CENTRAL ANGLE OF 16048'53 " , AND A
CHORD WHICH BEARS S08017' 12 "W A DISTANCE OF 385 . 79 FEET ,
2 ) CONTINUING ALONG SAID EASTERLY BOUNDARY, S16041139"W , A DISTANCE OF 93 . 03
FEET ;
3 ) ALONG THE EASTERLY BOUNDARY OF THE FOOTHILLS FASHION MALL EXPANSION ,
S16041 '36 "W , A DISTANCE OF 482 . 09 FEET ;
4) CONTINUING ALONG SAID EASTERLY BOUNDARY , 327 . 62 FEET ALONG THE ARC OF A
TANGENT CURVE TO THE LEFT , HAVING A RADIUS OF 1 , 114 . 57 FEET, A CENTRAL ANGLE
OF 16050'30" , AND A CHORD WHICH BEARS S08016 '21 "W A DISTANCE OF 326 . 44 FEET ;
5 ) CONTINUING ALONG SAID EASTERLY BOUNDARY, S00008153" E , A DISTANCE OF 170 . 00
FEET ;
6 ) CONTINUING ALONG SAID EASTERLY BOUNDARY, S05051132" E , A DISTANCE OF 110 . 54
FEET ;
7 ) CONTINUING ALONG SAID EASTERLY BOUNDARY AND ITS SOUTHERLY EXTENSION ,
S00008'53 " E , A DISTANCE OF 451 . 00 FEET TO A POINT ON THE SOUTHERLY BOUNDARY
OF THAT TRACT OF LAND DESCRIBED IN THE SPECIAL WARRANTY DEED RECORDED
OCTOBER 30 , 2012 AT RECEPTION NO . 20120076539 IN THE OFFICE OF THE LARIMER
COUNTY CLERK AND RECORDER ;
THENCE ALONG THE SOUTHERLY BOUNDARY OF THE TRACTS DESCRIBED IN THE DEEDS
RECORDED AT RECEPTION NO . 20120076539 , RECEPTION NO . 20050022855 , AND RECEPTION
NO . 2001099396 , THE FOLLOWING SEVEN (7 ) COURSES :
1 ) 23 . 56 FEET ALONG THE ARC OF A NON -TANGENT CURVE TO THE LEFT, HAVING A
RADIUS OF 15 . 00 FEET , A CENTRAL ANGLE OF 90000 ' 00" , AND A CHORD WHICH BEARS
N45008 '53"W A DISTANCE OF 21 . 21 FEET ;
2 ) S8905110711W, A DISTANCE OF 214 . 00 FEET ;
3 ) 312 . 91 FEET ALONG THE ARC OF A TANGENT CURVE TO THE RIGHT , HAVING A RADIUS
OF 398 .41 FEET , A CENTRAL ANGLE OF 4405915911 , AND A CHORD WHICH BEARS
N67038 '53"W A DISTANCE OF 304 . 93 FEET ;
4) N4500815411W , A DISTANCE OF 129 . 24 FEET ;
B - 2
5 ) 275 . 94 FEET ALONG THE ARC OF A TANGENT CURVE TO THE LEFT , HAVING A RADIUS
OF 351 . 34 FEET , A CENTRAL ANGLE OF 45000'00 " , AND A CHORD WHICH BEARS
N67038 '54 "W A DISTANCE OF 268 . 90 FEET ;
6) S8905110611WI A DISTANCE OF 199 . 36 FEET ;
7) 23 . 56 FEET ALONG THE ARC OF A TANGENT CURVE TO THE LEFT , HAVING A RADIUS OF
15 . 00 FEET , A CENTRAL ANGLE OF 90000'00" , AND A CHORD WHICH BEARS S4405110611W
A DISTANCE OF 21 . 21 FEET TO A POINT ON THE EASTERLY RIGHT OF WAY LINE OF
JOHN F . KENNEDY PARKWAY ;
THENCE S89051 '06 "W, A DISTANCE OF 66 . 00 FEET TO A POINT ON THE WESTERLY RIGHT OF
WAY LINE OF JOHN F . KENNEDY PARKWAY ;
THENCE 23 . 56 FEET ALONG THE ARC OF A NON -TANGENT CURVE TO THE LEFT , HAVING A
RADIUS OF 15 . 00 FEET , A CENTRAL ANGLE OF 90000 ' 00" , AND A CHORD WHICH BEARS
N45008'54 "W A DISTANCE OF 21 . 21 FEET TO A POINT ON THE SOUTHERLY RIGHT OF WAY LINE
OF EAST MONROE DRIVE ;
THENCE ALONG SAID SOUTHERLY RIGHT OF WAY LINE THE FOLLOWING FIVE (5 ) COURSES :
1 ) S89051106 "W, A DISTANCE OF 12 . 16 FEET ;
2 ) 146 . 82 FEET ALONG THE ARC OF A TANGENT CURVE TO THE LEFT , HAVING A RADIUS
OF 221 . 32 FEET , A CENTRAL ANGLE OF 38000'29" , AND A CHORD WHICH BEARS
S70050'52 "W A DISTANCE OF 144 . 14 FEET ;
3 ) S51 ° 50'37 "W, A DISTANCE OF 327 . 70 FEET ;
4) 179 . 17 FEET ALONG THE ARC OF A TANGENT CURVE TO THE RIGHT , HAVING A RADIUS
OF 273 .41 FEET , A CENTRAL ANGLE OF 37032'46" , AND A CHORD WHICH BEARS
S70037'00 "W A DISTANCE OF 175 . 98 FEET ;
5 ) S89023122 "W, A DISTANCE OF 138 . 44 FEET ;
THENCE 23 . 56 FEET ALONG THE ARC OF CURVE TO THE LEFT , HAVING A RADIUS OF 15 . 00
FEET , A CENTRAL ANGLE OF 90000'00 " , AND A CHORD WHICH BEARS S4402312311W A DISTANCE
OF 21 . 21 FEET TO A POINT ON THE EASTERLY RIGHT OF WAY LINE OF SOUTH COLLEGE
AVENUE ;
THENCE ALONG SAID EASTERLY RIGHT OF WAY LINE THE FOLLOWING TWO (2 ) COURSES :
1 ) ALONG THE WESTERLY BOUNDARY OF STRACHAN SUBDIVISION , SECOND FILING ,
S00019'07 " E , A DISTANCE OF 576 . 93 FEET ;
2 ) CONTINUING ALONG SAID WESTERLY BOUNDARY, S45028137" E , A DISTANCE OF 44 . 78
FEET TO A POINT ON THE NORTHERLY RIGHT OF WAY LINE OF HORSETOOTH ROAD AS
SHOWN ON THE PLAT OF SAID STRACHAN SUBDIVISION , SECOND FILING ;
THENCE S03026' 10 "W , A DISTANCE OF 105 . 31 FEET TO A POINT ON THE SOUTHERLY RIGHT OF
WAY LINE OF HORSETOOTH ROAD AS SHOWN ON THE FIRST REPLAT OF 1ST CHOICE BANK OF
FORT COLLINS ;
THENCE N88014 ' 59"W , A DISTANCE OF 154 . 42 FEET TO A POINT ON THE SOUTHERLY RIGHT OF
WAY LINE OF HORSETOOTH ROAD AND THE WESTERLY RIGHT OF WAY LINE OF SOUTH
COLLEGE AVENUE AS SHOWN ON THE REPLAT OF LOTS 1 , 213 & 4 - CREGER PLAZA
SUBDIVISION ;
THENCE N00032 ' 51 "W5 A DISTANCE OF 100 . 00 FEET TO A POINT ON THE WESTERLY RIGHT OF
WAY LINE OF SOUTH COLLEGE AVENUE AS SHOWN ON THE PLAT OF MATTERHORN P . U . D . ;
THENCE ALONG THE WESTERLY RIGHT OF WAY LINE OF SOUTH COLLEGE AVENUE THE
FOLLOWING TEN ( 10 ) COURSES :
B - 3
1 ) ALONG THE EASTERLY BOUNDARY OF LOT 1 , MATTERHORN P . U . D . , N44033153" E , A
DISTANCE OF 9 . 22 FEET ;
2 ) ALONG THE EASTERLY BOUNDARY OF LOTS 1 AND 2 , MATTERHORN P . U . D . ,
N00 ° 19'07"W , A DISTANCE OF 503 . 93 FEET ;
3 ) ALONG THE NORTHERLY BOUNDARY OF LOT 2 , MATTERHORN P . U . D . , S5305612311W7 A
DISTANCE OF 44 . 81 FEET ;
4) ALONG THE EASTERLY BOUNDARY OF LOTS 2 , 3 , 4 , 5 AND 11 OF SOUTH MESA
SUBDIVISION AND THE SOUTHERLY EXTENSION THEREOF , N00019' 07"W , A DISTANCE
OF 561 . 00 FEET ;
5 ) N8905115311E , A DISTANCE OF 10 . 71 FEET ;
6) N09043123" E5 A DISTANCE OF 22 . 91 FEET ;
7) 29 . 36 FEET ALONG THE ARC OF A NON -TANGENT CURVE TO THE LEFT, HAVING A
RADIUS OF 167 . 50 FEET , A CENTRAL ANGLE OF 10002'32 " , AND A CHORD WHICH BEARS
N04042 '09" E A DISTANCE OF 29 . 32 FEET ;
8 ) N00 ° 19'07"W , A DISTANCE OF 198 . 22 FEET ;
9) S8905811511W , A DISTANCE OF 7 . 27 FEET TO THE SOUTHEAST CORNER OF LOT B , VILLA
P . U . D . ;
10) ALONG THE EASTERLY BOUNDARY OF SAID LOT B , N00019107"W , A DISTANCE OF 226 . 70
FEET TO A POINT ON THE SOUTHERLY BOUNDARY OF TRACT A, RICHIE ' S EXPRESS
CARWASH SUBDIVISION ;
THENCE ALONG SAID SOUTHERLY BOUNDARY OF TRACT A , AND ALONG THE SOUTHERLY
BOUNDARY OF TRACT A, MOURNING SUBDIVISION , 1\189059' 07"W , A DISTANCE OF 665 . 15 FEET
TO A POINT ON THE EASTERLY RIGHT OF WAY LINE OF MCCLELLAND DRIVE AS SHOWN ON
THE PLAT OF SAID MOURNING SUBDIVISION ;
THENCE ALONG SAID EASTERLY RIGHT OF WAY LINE , N00039'53" E , A DISTANCE OF 20 . 17 FEET ;
THENCE 23 . 39 FEET ALONG THE ARC OF A CURVE TO THE RIGHT , HAVING A RADIUS OF 15 . 00
FEET , A CENTRAL ANGLE OF 89021 '00 " , AND A CHORD WHICH BEARS N4502012311E A DISTANCE
OF 21 . 09 FEET TO A POINT ON THE SOUTHERLY RIGHT OF WAY LINE OF WEST FOOTHILLS
PARKWAY AS SHOWN ON SAID MOURNING SUBDIVISION PLAT ;
THENCE ALONG SAID SOUTHERLY RIGHT OF WAY LINE , S89059' 07" E , A DISTANCE OF 213 . 00
FEET ;
THENCE CONTINUING ALONG SAID SOUTHERLY RIGHT OF WAY LINE , 69 . 10 FEET ALONG THE
ARC OF A CURVE TO THE LEFT , HAVING A RADIUS OF 160 . 00 FEET , A CENTRAL ANGLE OF
24044 '46" , AND A CHORD WHICH BEARS N77038'30 " E A DISTANCE OF 68 . 57 FEET TO THE
WESTERLY BOUNDARY OF LOT 1 , RICHIE ' S EXPRESS CARWASH SUBDIVISION ;
THENCE ALONG SAID WESTERLY BOUNDARY, S00004 ' 53"W , A DISTANCE OF 14 . 69 FEET ;
THENCE ALONG THE SOUTHERLY BOUNDARY OF SAID LOT 1 , S89059' 07" E3 A DISTANCE OF
407 . 26 FEET TO A POINT ON THE WESTERLY RIGHT OF WAY LINE OF SOUTH COLLEGE
AVENUE ;
THENCE ALONG THE WESTERLY RIGHT OF WAY LINE OF SOUTH COLLEGE AVENUE THE
FOLLOWING FOUR (4 ) COURSES :
1 ) ALONG THE EASTERLY BOUNDARY OF SAID LOT 1 , N00019107"W5 A DISTANCE OF 78 . 17
FEET ;
2 ) CONTINUING ALONG SAID EASTERLY BOUNDARY, N00004153" E , A DISTANCE OF 86 . 83 FEET ;
3 ) ALONG THE NORTHERLY BOUNDARY OF SAID LOT 1 , N8905910711W , A DISTANCE OF 37 . 50
FEET TO THE SOUTHEAST CORNER OF LOT 3 , MOURNING SUBDIVISION ;
4) N0000415311E , A DISTANCE OF 870 . 84 FEET ( BEING THE WESTERLY RIGHT OF WAY LINE OF
SOUTH COLLEGE AVENUE AS SHOWN ON THE MOURNING SUBDIVISION , THE POUDRE
VALLEY MOTORS SUBDIVISION , AND THE REPLAT OF THE SWALLOW SUBDIVISION ) ;
B - 4
THENCE S89057'07 " E , A DISTANCE OF 100 . 00 FEET TO THE POINT OF BEGINNING .
CONTAINING 89 . 729 ACRES MORE OR LESS AND BEING SUBJECT TO ALL EASEMENTS AND
RIGHTS-OF-WAY OF RECORD OR THAT NOW EXIST ON THE GROUND .
I HEREBY STATE THAT THE ABOVE DESCRIPTION WAS PREPARED BY ME AND IS TRUE AND
CORRECT TO THE BEST OF MY PROFESSIONAL KNOWLEDGE , BELIEF , AND OPINION . THE
ABOVE DESCRIBED TRACT IS BASED UPON PREVIOUSLY RECORDED PLATS AND DEEDS AND
NOT UPON AN ACTUAL FIELD SURVEY .
JOHN STEVEN VON NIEDA, COLORADO P . L . S . 31169
FOR AND ON BEHALF OF THE CITY OF FORT COLLINS
P . O . BOX 580 , FORT COLLINS , CO 80522
B - 5
EXHIBIT C
DESCRIPTION OF THE PROJECT
The Project is a mixed-use redevelopment of the existing Foothills Fashion Mall,
containing a commercial/retail component, a commercial parking structure and up to 800 multi-
family dwelling units on 76. 3 acres .
The Project will deliver the following components :
• Deconstruct portions of the existing Foothills Fashion Mall and renovate the original
structure into a 388 ,084 square foot, one-level, enclosed shopping mall.
• Deconstruct various free standing buildings including the Commons at Foothills Mall
buildings, the Shops at Foothills Mall buildings, The Plaza at Foothills Mall, The Corner
Bakery, Christy Sports and the Youth Activity Center building.
• Construct eight new retail buildings along South College Avenue, ranging from 9 ,300
square feet to 31 ,715 square feet in size.
• Construction five new retail buildings internal to the site northwest of the existing
enclosed mall ranging in size from 7 ,636 square feet to 12 ,000 square feet.
• Construct four new restaurants ranging in size from 8 ,088 square feet to 14,000 square
feet as well as a new Foothills Activity Center to replace the Youth Activity Center.
• Construct a new 86,754 square foot entertainment and theater building located southeast
of the new restaurants.
• Construct a large east green area and smaller west green plazas to anchor the pedestrian
network.
• Construction of 3 , 581 parking spaces via a six level 84, 663 square foot parking structure
and surface parking spaces .
• Construction up to 800 multi-family units distributed among five building ranging in
height from two to five stories, including a mix of subterranean, surface, and structured
parking spaces .
EXHIBIT D
ELIGIBLE COSTS AND ELIGIBLE IMPROVEMENTS
ELIGIBLE IMPROVEMENTS ELIGIBLE COSTS
Land Acquisition (for land underlying $ 5 . 5 million (Maximum amount; any surplus from
public improvements to be owned and other line items may not be transferred
operated by the District) to this line item)
Parking Structure 9 . 6 million*
Demolition/ Abatement 3 . 9 million*
Furniture, Fixture & Amenities 1 .4 million*
Foothills Activity Center 4 . 8 million (To the extent that Construction is
Completed on the Foothills Activity Center and such
construction conforms to the City Specifications set
forth in Exhibit F hereto, as confirmed by the City
Manager, any cost savings may be transferred to
another line item
Pedestrian Crossing / Culvert 3 . 0 million (Actual cost must be paid, even if it
exceeds this amount, which may
require a transfer from another line
item
Relocation of Larimer County Canal 2 . 8 million*
No. 2
Site Work 12 . 9 million*
Earthwork 2 .3
Site Walls 0.7
Asphalt Paving 2 .5
Striping & Signage 0.3
Curb & Gutter 0.5
Sidewalks 1 .5
Landscaping/Irrigation 0.6
East Lawn — Landscaping & Irrigation 2. 1
East Lawn — Sidewalks/Hardsca es 0.3
West Lawn — Landscaping & Irrigation 0.9
West Lawn — Sidewalks/Hardsca es 0. 1
Tree Salvage/Storage/Maintenance Replant 0.3
Off-Site Work Asphalt Patching 0.2
Off-Site Work Signals/Right Turn Lanes 0.6
Utilities 4. 5 million*
Sanitary Sewer 0.8
Storm Water 2 .0
Water 1 .0
Fire Water 0.7
Soft Costs 4 . 6 million (Maximum amount; any surplus from
other line items may not be transferred
to this line item
Parking Structure A&E 0.7
FAC A&E 0.3
Engineering 1 .3
EnvironmentaFAbatement Management 1 .3
Materials Testing & Geotechnical 0.6
Fort Collins URA 0.4
TOTAL $ 53.0 Million
* Within the asterisked line items amounts may shift due to ( 1 ) actual costs of construction, and
cost savings in one line item may be applied to cost overruns in other line items and/or (2) based
on final determination by Bond Counsel of the eligible amount of public use.
EXHIBIT E
PROCEDURE FOR DOCUMENTING, CERTIFYING AND PAYING ELIGIBLE COSTS
1 . Applicability. All capitalized terms that are not specifically defined in this Exhibit E
will have the same meaning as defined in the Agreement. The Parties recognize and
acknowledge that in connection with issuance and sale of District Bonds, the District Bond
Documents related to such District Bonds may establish a different procedure for the requisition
of District Bond proceeds, in which event that procedure shall be substituted for the procedure in
this Exhibit E to the extent that they conflict with the procedures in this Exhibit E, provided,
however, the Parties agree to cooperate so that the District Bond Documents or bond documents
related to District Bonds will include a procedure for certifying the Eligible Costs payable under
in-process construction and other contracts to permit District Bond proceeds to be applied to
direct payments under such contracts .
2 . En ig neer. The District will select an independent licensed engineer experienced in the
design and construction of public improvements in the Fort Collins metropolitan area (the
"Engineer") . The Engineer shall be responsible for reviewing, approving, and providing the
certificate required by paragraph 3 .
3 . Documentation. The District or Developer as applicable will be responsible for
documenting all Eligible Costs . Eligible Costs may be certified when a pay application has been
submitted by a contractor that complies with the procedure set forth in this Exhibit E or upon
Completion of Construction of an Eligible Improvement. All such submissions shall include a
certification signed by both the Engineer and an authorized representative of the District or
Developer, as applicable. The certificate shall state that the information contained therein is true
and accurate to the best of each individual ' s information and belief and, to the best knowledge of
such individual, qualifies as Eligible Costs . Such submissions will include copies of backup
documentation supporting the listed cost items, including bills, statements, pay request forms
from first-tier contractors and suppliers, conditional lien waivers, and copies of each check
issued by the District or the Developer for each item listed on the statement. The District or the
Developer, as the case may be, will allocate the Eligible Costs to the Eligible Improvements
according to the category for each listed in Exhibit D , and each requisition shall contain an
aggregate running total of the Eligible Costs in each category. Unless required by a District or
Developer construction contract then being performed, statements for payment of Eligible Costs
shall not include advance payments of any kind for unperformed work or materials not delivered
and stored on the Property.
4. Verification, Submission, and Payment. Each payment request will be submitted to
the applicable District representative and the District Bond Trustee for review within ten ( 10)
business days . Such review is for the purpose of verifying that the work represented in each
payment request and supporting documentation complies with the requirements of this
Agreement. Upon the earlier of approval of such documentation or expiration of the ten ( 10)
business day period, the District Bond Trustee will make payments of Eligible Costs as set forth
in such requisition request from moneys on deposit in the Project Fund. A copy of each payment
request will also be sent to the City concurrently with submittal to the Bond Trustee .
EXHIBIT F
CITY SPECIFICATIONS FOR FOOTHILLS ACTIVITY CENTER
The proposed Foothills Activity Center shall be constructed consistent with City
of Fort Collins Resolution 2006-096, which established a "Leadership in Energy and
Environmental Design" green building certification goal for new municipal buildings.
The Activity Center shall include a total of 24, 852 square feet. Finishes, furniture and
fixtures are to be determined. The Activity Center shall incorporate the following
programming (Note : Square footages are approximate and may be amended through the
design process) :
Proposed Program Proposed Square Feet
Lobby 550 sf
Front Desk 180 sf
Offices (x4) , Work & Copy Area 700 sf
Child Development 2300 sf
Multi-Purpose Rm. 1100 sf
Stairs (300sf>425sf) 1275 sf
Storage 480 sf
Elevator 120 sf
Elev. Machine Rm. 85 sf
Mechanical Rm. 120 sf
Fitness/Dance 1420 sf
Restroom/Locker Rms . (M&W) 1000 sf
Cardio/Weight Rm. 880 sf
Gymnasium 8875 sf
Gym Storage 391 sf
Fitness Storage 223 sf
Janitor Closet 20 sf
Stairs (300sf5425sf) 1275 sf
Elevator 120 sf
Total 21 ,119 sf *
*Excludes circulation sf
EXHIBIT G
ESTIMATED REVENUES FROM PROPERTY TAXES AND
ESTIMATED REVENUES FROM RESIDENTIAL PROPERTY
50 Mills
50 mills Retail Residential Retail Property Residential
Year Property Tax Property Tax Tax TIF Property Tax TIF
2013 -- -- -- --
2014 $6501079 -- -- --
2015 147,871 -- -- --
2016 147,871 -- -- --
2017 157379494 $278,054 $ 1 ,796,248 $470,672
2018 117371494 278M54 15796,248 4705672
2019 1 ,772,244 283 ,615 11832J 73 4801085
2020 1 ,7729244 283 ,615 19832J73 4809085
2021 118079689 2891288 158681817 4895687
2022 L8071689 289,288 15868,817 4895687
2023 L8431843 295M73 11906J93 4991481
2024 118439843 2951073 199061193 4995481
2025 L8801720 300,875 15944,317 5095471
2026 L8801720 300,875 11944X7 5091471
2027 1 ,9189334 306,994 19983 ,203 5199660
2028 119189334 3061994 159831203 5199660
2029 L9561701 313J34 2102207 5301053
2030 1 ,9569701 313J34 29022,867 5309053
2031 119959835 3191397 290631325 5401654
2032 L9951835 319,397 25063X5 5405654
2033 2,0351751 325 ,785 21104,591 5511467
2034 210359751 3251785 251041591 5515467
2035 2M761466 332,301 2514603 5625497
2036 2,0761466 332,301 2114603 5621497
2037 2, 1179996 338,847 29189,617 5739747
2038 21117,996 3381847 251891617 5735747
EXHIBIT H
PERMITTED USES OF FOOTHILLS MALL FUND
The Parties agree that the long-term viability and success of the Project will be
improved by creating a Foothills Mall Fund to be held by the District. It is the purpose of
this fund to provide resources for the continued upgrade and enhancement of the Project.
Specifically the upgrades and enhancements are intended to preserve the competitive
position of the Project in the market and maintain and/or enhance the overall aesthetic
quality of the Project. The Parties acknowledge and agree that any expenditure of funds
on deposit in the Foothills Mall Fund shall be constrained by and must be in compliance
with applicable State and federal law governing the use of such funds, which, in part, will
be governed by the source of such funds . In addition, the Parties acknowledge that the
District may only undertake activities and expend funds for purposes authorized by the
Special District Act.
Subject to the foregoing limitations, the following improvements are eligible for
reimbursement from the Foothills Mall Fund:
• Energy efficiency, renewable energy, and similar upgrades or improvements that
reduce the environmental impact of the project;
• Upgrades and improvements to or additional public amenities such as parks,
plazas, community gathering areas and streetscapes that enhance the aesthetics of
the Project;
• Upgrades and improvements to the pedestrian, bicycle, and vehicular circulation
and accessibility of the site, both interior and exterior to the Project site;
• Upgrades and improvements to the Project for public health and safety, either to
comply with new standards/regulations or to address unforeseen issues on the site
or from the development of the Project;
• Capital costs associated with the construction of additional gross leasable area, as
approved by the City Manager;
• In entirety or part, contributing to Capital Improvement Projects as identified by
the City of Fort Collins in the adopted Capital Improvement Plan; and
• Upgrades, improvements, or replacement of essential infrastructure required to
maintain the overall character of the Project, including :
o Replacement or maintenance of the roof,
o Maintenance of significant exterior common area features, such as
fountains, ice rinks, or similar features
o Maintenance of significant interior common area features, including
fountains, fire places, or similar features
The following improvements are not eligible for reimbursement from the Foothills Mall
Fund:
• Any operating or maintenance costs typically funded by the District from the
District Operating Revenues, except as set forth above ;
• Any operating or maintenance costs typically funded by the Developer from
common area maintenance fees, charges, or assessments, except as set forth
above ;
• Any capital cost typically associated with the on-going maintenance of the
Project, including but not limited to :
o Repaving of parking lots ;
o Replacement of landscaping identified on the original landscaping plan
approved by the Planning and Zoning Board (P&Z Board), on February 7 ,
2013 , and later approved by City staff on the Final Development Plan;
o Replacement of site lighting, signs, or other decorations originally listed
on the plans approved by P&Z Board; and
o Any capital cost associated with releasing the original Gross Leasable
Area, unless otherwise noted.
EXHIBIT I
MAXIMUM ANNUAL NET DEBT SERVICE ON THE DISTRICT BONDS
Without the prior written consent of the City Manager, the District Bonds shall be
structured so that the debt service requirements on the District do not exceed the
maximum annual Net Debt Service amounts set forth. Neither the total maximum nor the
maximum annual Net Debt Service are intended to limit the amount of Pledged Revenue
that can be collected in any year and used to pay debt service payments then due on the
District Bonds or deposited to a Supplemental Reserve Fund, if required by the District
Bond Documents .
Maximum Annual Net
Year Debt Service
Requirements
2013 $ 0( 1 )
2014 0( 1 )
2015 19537, 872
2016 61136, 109
2017 69348441
2018 61440,089
2019 69597 , 115
2020 61695 ,084
2021 69856,061
2022 61955 ,610
2023 79120,734
2024 7,226,604
2025 7139409
2026 79510,634
2027 71684, 845
2028 7, 802 ,565
2029 719795738
2030 8 , 18% 897
2031 813785526
2032 8 , 504,938
2033 816995493
2034 8 , 830,447
2035 910325705
2036 9, 173 ,732
2037 913775768
2038 91526, 104(2)
Total : $ 18090005000
( 1 ) The debt service on the District Bonds in these years is expected to be paid
from capitalized interest.
(2) Additional debt service requirements on the District Bonds are expected to
be paid from amounts on deposit in the reserve fund securing the District Bonds .