HomeMy WebLinkAbout2014-004-01/14/2014-APPROVING AN UPDATED REDEVELOPMENT AND REIMBURSEMENT AGREEMENT WITH THE FORT COLLINS URBAN RENEWALREDEVELOPMENT AND REIMBURSEMENT AGREEMENT
THIS REDEVELOPMENT AND REIMBURSEMENT AGREEMENT (the
“Agreement”) dated as of January __, 2014, is made by and among the FORT COLLINS URBAN
RENEWAL AUTHORITY, a body corporate and politic of the State of Colorado (the
“Authority”), WALTON FOOTHILLS HOLDINGS VI, L.L.C., a Delaware limited liability
company (the “Developer”), the CITY OF FORT COLLINS, COLORADO, a municipal
corporation (the “City”), and FOOTHILLS METROPOLITAN DISTRICT, a quasi-municipal
corporation organized and existing in accordance with Title 32, Article 1, C.R.S. (the “District”).
The Authority, the Developer, the City and the District are sometimes collectively called the
“Parties,” and individually, a “Party.”
RECITALS
All capitalized terms used, but not defined, in these Recitals, have the meanings ascribed to
them in this Agreement. The Recitals are incorporated to this Agreement as though fully set forth
in the body of this Agreement.
WHEREAS, Developer or District owns or has the right to construct improvements on the
real property described in Exhibit A, which is known as the Foothills Mall (the “Property”) and
desires to redevelop the Property. Developer has submitted a proposal to the Authority and the
City to redevelop the Property by constructing no fewer than 641,000 square feet of commercial
development (which minimum size does not include the Foothills Activity Center space) and up to
800 multifamily residential units, together with related amenities and uses on the Property (the
“Project”).
WHEREAS, the Authority is carrying out the Midtown Urban Renewal Plan approved by
the City Council on September 6, 2011, as amended on May 8, 2013, and as further defined
hereinafter (the “Urban Renewal Plan”), which includes the Property, by entering into this
Agreement with the City, the District and the Developer to implement the Project in the manner
described herein. The District is expected to provide services and facilities to assist the Authority
in carrying out the Urban Renewal Plan.
WHEREAS, the Authority has selected the Developer for exclusive negotiations based on
the proposal submitted to the Authority and pursuant to that certain Agreement to Negotiate, dated
as of November 16, 2012, by and between the Authority and Developer (the “Agreement to
Negotiate”).
WHEREAS, the City has determined that it is in the best interests of the City and its
inhabitants to assist in the redevelopment of the Property in order to remedy blighted conditions
within and around the Property pursuant to the Urban Renewal Plan, as hereinafter set forth, and to
provide a catalyst for development, increase sales tax revenues and job opportunities, and provide
other economic and social benefits to the City.
WHEREAS, the District was organized by Order and Decree Creating District issued on
November 30, 2012, and recorded on January 10, 2013. The City approved the original Service
EXHIBIT A TO RESOLUTION
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Plan of the District on September 4, 2012, as amended and restated pursuant to City Council
approval on May 8, 2013.
WHEREAS, the Parties have agreed to enter into this Agreement for the redevelopment of
the Property in accordance with the Urban Renewal Plan, the Act (defined hereinafter), the
description of the Project as set forth herein, and the Development Approvals.
WHEREAS, the District was organized for the purpose of, inter alia, issuing the District
Bonds (defined hereinafter), the proceeds of which are intended to pay or reimburse the costs of
the Eligible Improvements and to pay Costs of Issuance (defined hereinafter).
NOW THEREFORE, in consideration of the mutual covenants and promises of the Parties
contained in this Agreement, and other valuable consideration, the receipt and adequacy of which
are acknowledged, the Parties agree to the terms and conditions in this Agreement.
AGREEMENT
1. DEFINITIONS. In this Agreement, unless a different meaning clearly appears from the
context, capitalized terms mean:
“Act” means the Colorado Urban Renewal Law, Part 1 of Article 25 of Title 31 of the
Colorado Revised Statutes.
“Add-On PIF” means the public improvement fee in the amount of 1.00% as set forth in
the PIF Covenant, which will be collected in accordance with the terms of the PIF Covenant, and
will be imposed on retail sales that are occurring on the Property that are subject to the City’s Sales
Tax, subject to the terms and provisions of this Agreement.
“Add-On PIF Revenues” means the revenues generated by the Add-On PIF. The full
amount of the Add-On PIF will remain pledged to payment of the District Bonds for so long as
such District Bonds are outstanding.
“Agreement” means this Redevelopment and Reimbursement Agreement, as it may be
amended or supplemented in writing. References to sections or exhibits are to this Agreement
unless otherwise qualified. All exhibits are incorporated into and made a part of this Agreement.
“Agreement to Negotiate” means the Agreement to Negotiate between the Authority and
the Developer dated as of November 16, 2012.
“Authority” means the Fort Collins Urban Renewal Authority, a body corporate and
politic of the State of Colorado which has been duly created, organized, established and authorized
by the City to transact business and exercise its powers as an urban renewal authority, all under and
pursuant to the Act, and its successors and assigns.
“Authority Administrative Fee” means a fee up to a maximum of 1.5% of the gross
property tax increment revenue received by the Authority from the Larimer County Treasurer each
year, which fee includes all amounts required to pay collection, enforcement, disbursement, and
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administrative fees and costs required to carry out the Urban Renewal Plan, including, without
limitation, collection and disbursement of the Pledged Property Tax Increment Revenue.
“Authority Pledged Revenues” means, collectively, the Pledged Property Tax Increment
Revenues and the Pledged Sales Tax Increment Revenues.
“Cap Amount” means an amount equal to $53,000,000 (Fifty-Three Million US Dollars),
which is the maximum amount of Eligible Costs that shall be paid from the net proceeds of the
District Bonds.
“City” means the City of Fort Collins, Colorado, a home rule municipal corporation.
“City Manager” means the City Manager of the City.
“Commence Construction” or “Commencement of Construction” means the
commencement by the District or the Developer of actual physical work, including, but not limited
to, deconstruction, demolition, site grading, and construction, on the Property as required to carry
out the Project.
“Complete Construction” or “Completion of Construction” means:
(a) With respect to the public improvements, construction acceptance in
accordance with the City Requirements, applicable laws, ordinances, and regulations of the City,
the District, and any other governmental entity or public utility with jurisdiction, subject to any
applicable conditions of maintenance and warranty;
(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; and
(c) With respect to the Project, the completion of all Eligible Improvements
and the issuance of a certificate of occupancy by the City so that no less than ninety-five percent
(95%) of the leasable area within the Project may open for permanent occupancy and utilization
for its intended purposes.
“Costs of Issuance” means the reasonable and necessary costs incurred in connection with
the issuance of the District Bonds, including, without limitation, reserve funds, capitalized interest,
underwriter’s compensation, financial consultant fees, fees and expenses of bond counsel, counsel
to the underwriter, counsel to the District, fees and third party out-of-pocket expenses of the City,
including but not limited to counsel to, and economic analysis and financial consulting services
for, the City, fees and third party out-of-pocket expenses of the Authority, including but not
limited to counsel to, and economic analysis and financial consulting services for, the Authority,
credit enhancement fees and expenses, fees and expenses of the District Bond Trustee, bond
registrar, paying agent, transfer agent, remarketing agent and rating agency fees. Costs of Issuance
shall be approved by the District’s bond counsel and shall be reasonable and in accordance with
market standards.
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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.
“Development Approvals” means the regulatory approvals issued by the City for the
Project, including the Overall Development Plan (ODP), Project Development Plan (PDP), Final
Development Plans (FDPs), Development Agreement or Agreements, Subdivision Plat, and all
other plats, plans and requirements included in or incorporated into the City’s approval of the
Project under the City Land Use Code. Because multiple FDPs will be submitted and reviewed for
up to 3 phases of the Project, with respect to any particular portion of the Project, the term
“Development Approvals” shall mean all of the applicable approvals set forth in this definition for
that particular portion of the Project. With respect to the Project, the term “Development
Approvals” shall mean all of the applicable approvals set forth in this definition for all phases of
the Project.
“District” means the Foothills Metropolitan District, formed pursuant to Sections
32-1-101, et seq., C.R.S., and its successors and assigns.
“District Administrative Account” means an account established by the Authority into
which the Authority shall deposit all of the incremental District Operating Revenue and District
Debt Service Mill Levy received by the Authority from time to time pursuant to Section
31-25-107(9)(a)(II) of the Act and the rules and regulations of the Property Tax Administrator of
the State of Colorado.
“District Bond Documents” means, collectively, the documents pursuant to which the
District Bonds are issued.
“District Bond Indenture” means any indenture or similar documents pursuant to which
the District Bonds are issued.
“District Bond Trustee” means the trustee in connection with the issuance of any District
Bonds.
“District Bonds” means any bonds, certificates of participation, securities or other
obligations issued or incurred by the District to finance or refinance the Eligible Costs in
accordance with the terms and provisions of this Agreement, including any bonds, debt in the form
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of a loan, certificates of participation, or securities issued or incurred by the District to refund any
such Bonds, or any related obligations to reimburse the provider of a guaranty, insurance policy,
liquidity instrument or credit enhancement for the District Bonds. Notwithstanding the foregoing
or any provision to the contrary contained herein, District Bonds shall not include any obligation
by the District to reimburse the Developer for Developer Advances pursuant to reimbursement
agreements or similar agreements between the Developer and the District regarding such matters.
“District Debt Service Mill Levy” means a property tax levy of fifty (50) mills levied by
the District on the taxable property of the District. The District Debt Service Mill Levy rate may
be adjusted as set forth in the Service Plan to take into account legislative or constitutionally
imposed adjustments in assessed values or their method of calculation so that, to the extent
possible, the revenue produced by such District Debt Service Mill Levy is neither diminished nor
enhanced as a result of such changes. The District Debt Service Mill Levy shall be imposed only
so long as there are outstanding District Bonds.
“District Debt Service Mill Levy Revenue” means the revenue generated from the
District Debt Service Mill Levy, net of the County Treasurer’s cost of collection.
“District Operating Mill Levy” means a property tax imposed by the District in an
amount not exceeding ten (10) mills, except as hereinafter provided, separate and apart from the
District Debt Service Mill Levy, for the purpose of paying the administrative, operations and
maintenance expenses of the District, including all amounts required to be paid to the City for the
maintenance of Larimer County Canal No. 2. Notwithstanding the foregoing, the District
Operating Mill Levy may be imposed by the District in an amount up to fifteen (15) mills upon the
written consent of the City Manager upon receipt of evidence satisfactory to the City Manager that
such an increase in the District Operating Mill Levy is necessary for the District to comply with its
operation and maintenance obligations under the Service Plan. The District Operating Mill Levy
may be adjusted as set forth in the Service Plan to take into account legislative or constitutionally
imposed adjustments in assessed values or their method of calculation so that, to the extent
possible, the revenue produced by such District Operating Mill Levy is neither diminished nor
enhanced as a result of such changes.
“District Operating Revenue” means the revenue produced by the District’s Operating
Mill Levy and the Specific Ownership Taxes attributable to the District Operating Mill Levy.
“District Pledged Revenue” means, collectively, (a) the District Debt Service Mill Levy
Revenue, (b) the revenue from the Pledged District Specific Ownership Taxes, and (c) Add-On
PIF Revenue.
“Effective Date” means the date of this Agreement.
“Eligible Costs” means, collectively, the reasonable and customary expenditures for the
design and construction of the Eligible Improvements as set forth in Exhibit D, which shall be
certified and approved in accordance with Exhibit E. Eligible Costs shall include, without
limitation, reimbursement to the Developer for Authority Reimbursable Costs (as defined in the
Agreement to Negotiate) made by the Developer to the Authority. Eligible Costs shall be paid
from the net proceeds of the Bonds, subject to the Cap Amount. District Bond proceeds shall not
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be used to pay, and Eligible Costs shall not include, any accrued interest on unreimbursed
Developer Advances.
“Eligible Improvements” means the public improvements described in Exhibit D that are
to be acquired, constructed or installed as part of the Project.
“Estimated Revenues from Property Taxes” means the amount set forth on Exhibit G
hereto, which is the amount of Pledged Revenues estimated to be generated from property taxes on
the Property.
“Estimated Revenues from Residential Property” means the amount set forth on
Exhibit G hereto, which is the amount of Pledged Revenues estimated to be generated from the
residential component of the Property beginning January 1, 2019, assuming that the residential
component of the Property is constructed in accordance with the schedule set forth in Section 4.3
hereof.
“Exhibits” The following Exhibits are a part of this Agreement:
Exhibit A: Legal Description of the Property
Exhibit B: Description of TIF Area
Exhibit C: Description of the Project
Exhibit D: Eligible Costs and Eligible Improvements
Exhibit E: Procedure for Documenting, Certifying and Paying Eligible Costs
Exhibit F City Specifications for Foothills Activity Center
Exhibit G Estimated Revenues from Property Taxes and Estimated Revenues
from Residential Property
Exhibit H Permitted Uses of Foothills Mall Fund
Exhibit I Maximum Annual Net Debt Service on the District Bonds
“Financing Plan” means a plan prepared by the Developer and the District for review and
approval by the City and the Authority demonstrating that there will be sufficient Pledged
Revenues to service the debt service requirements on the District Bonds. Approval of the
Financing Plan by the City and the Authority shall be a condition precedent to the issuance of the
District Bonds.
“Fiscal Year” means the annual period upon which the City bases its financial accounting
and budgeting.
“Foothills Activity Center” means the Foothills Activity Center to be constructed on the
Project in accordance with Section 4.4 hereof.
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“Foothills Mall Fund” means the fund to be held by the District and applied in accordance
with the terms and provisions of this Agreement.
“Force Majeure” means any delays in or failure of performance by any Party of its
obligations under this Agreement as a result of acts of God; fires; floods; earthquake; strikes; labor
disputes; regulation or order of civil or military authorities; or other causes, similar or dissimilar,
which are beyond the control of such Party.
“Larimer County Canal No 2” means that portion of the canal or ditch, owned by The
Larimer County Canal No. 2 Irrigation Company, commonly known as the Larimer County Canal
No. 2, in the location to which it will be moved as part of the Project, lying between the west
boundary of the South College Avenue right-of-way and the west boundary of the McClelland
Drive right-of-way, and thence south along and under the west frontage road of College Avenue
past the south boundary of the West Monroe Drive right-of-way, and thence continuing due south
for an approximate distance of 130+\- feet to where the relocated portion of the ditch intersects the
existing Larimer County Canal No. 2 ditch alignment.
“Net Debt Service” means the total payments of principal and interest on the District
Bonds, less the amounts that are paid from funds held by the District Bond Trustee as capitalized
interest and reserve funds, including interest earnings on any such funds.
“Original PDP” means the Project Development Plan relating to the Project approved by
the City’s Planning and Zoning Board on February 7, 2013.
“Party” or “Parties” means one or all of the parties to this Agreement.
“PIF Covenant” means a declaration of covenants by Developer imposing and
implementing the Add-On PIF within the Property.
“Pledged District Specific Ownership Taxes” means the specific ownership tax revenues
received by the District in each year pursuant to § 42-3-107, C.R.S. that is attributable to the dollar
amount of ad valorem taxes generated from the District Debt Service Mill Levy.
“Pledged Property Tax Increment Revenue” means 100% of the annual ad valorem
property tax revenue received by the Authority from the Larimer County Treasurer in excess of the
amount produced by the levy of those taxing bodies that levy property taxes against the Property
Tax Base Amount in the TIF Area in accordance Colorado law, but not including, (a) the District
Operating Revenue, (b) the District Debt Service Mill Levy Revenue, (c) the Authority
Administrative Fee, (d) mill levy override payments approved by the electors of Poudre School
District in 2012 and subsequent years, (e) any offsets collected by the Larimer County Treasurer
for return of overpayments or any reserve funds retained by the Authority for such purposes in
accordance with Sections 31-25-107(9)(a)(III) and (b) of the Act, and (f) $60,000 each year of
such annual revenues.
“Pledged Sales Tax Increment Revenues” means 100% of the Sales Tax Increment
Revenues received annually by the Authority during the period in which taxes are divided in the
TIF Area pursuant to the Urban Renewal Plan and the Act.
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“Pledged Revenue” means, collectively, the District Pledged Revenue and the Authority
Pledged Revenue.
“Project” means the acquisition, construction and installation of no fewer than 641,000
square feet of commercial development (which minimum does not include the Foothills Activity
Center space), together with no fewer than 446 and up to 800 multifamily residential units,
together with related amenities and uses on the Property, in accordance with the Development
Approvals, this Agreement and Exhibit C.. The Project includes off-site improvements provided
for and required under this Agreement or the Development Approvals. Notwithstanding the
foregoing, however, for purposes of determining whether Construction of the Project has been
Completed, the Residential Component of the Project shall be deemed to include 446 multifamily
residential units.
“Project Fund” means the fund to be created pursuant to the District Bond Indenture into
which net proceeds of the District Bonds in the amount of $53,000,000 (Fifty-Three Million US
Dollars) will be deposited to pay Eligible Costs.
“Property” means the real property described in Exhibit A, which is either owned by
Developer or on which the Developer otherwise has the right or will have the right to construct the
Project.
“Property Tax Base Amount” means the amount certified by the Larimer County
Assessor as the valuation for assessment of all taxable property with the TIF Area in accordance
with Section 31-25-107(9)(a)(I) of the Act. The Property Tax Base Amount and increment value
shall be calculated and adjusted from time to time by the Larimer County Assessor in accordance
with Colorado law.
“Reimbursement and Infrastructure Agreement” means that certain agreement
between the District and Developer dated as of April 26, 2013, that requires the District to
reimburse the Developer for the Eligible Costs and sets forth the procedures under which Eligible
Improvements constructed by the Developer for the benefit of the District may be acquired by the
District.
“Residential Component of the Project” means the portion of the Project intended to be
developed for residential uses. The Residential Portion of the Project will generally occur on the
area shown as Blocks 3, 4,5 and 6 on the Original PDP.
“Sales Tax” means the municipal sales tax of the City imposed at the rate of 2.25% on
sales of goods and services that are subject to municipal sales taxes pursuant to Chapter 25, Article
3 of the Fort Collins Municipal Code.
“Sales Tax Base Amount” means the total collection of sales taxes levied at the rate of
2.25% within the TIF Area for the applicable twelve-month period in accordance with Colorado
law.
“Sales Tax Increment” means Sales Tax Revenues collected by the City in excess of the
Sales Tax Base Amount during the period in which taxes are divided in the TIF Area pursuant to
the Act.
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“Sales Tax Revenues” means the funds generated by imposition of the Sales Tax collected
within the TIF Area.
“Service Plan” means the service plan for the District approved by the City on September
4, 2012, as amended and restated.
“Special Fund” means the fund defined in Section 107(9)(a)(II) of the Act.
“TIF” means tax increment financing to which the tax increment provisions of Section
31-25-107(9) of the Act apply.
“TIF Area” means that part of the urban renewal area described in the Urban Renewal
Plan as described and depicted in Exhibit B, within which the tax increment provisions of Section
31-25-107(9) of the Act apply.
“Underpass” means the pedestrian underpass at the current Larimer County Canal No. 2
ditch alignment under College Avenue for the purpose of connecting the Project to the Mason
Corridor and MAX transit facility.
“Urban Renewal Plan” means the Midtown Urban Renewal Plan adopted and approved
by the City Council on September 6, 2011, as amended on May 8, 2013, and as may hereinafter be
amended from time to time; provided, however, that if, prior to June 1, 2014, the City elects to
exclude the Property from the Midtown Urban Renewal Plan and adopts a new urban renewal plan
for the Property in accordance with Section 7.1, such new plan shall, upon written notice to all
Parties, become the “Urban Renewal Plan” for the purposes of this Agreement.
2. FINANCING AND CONSTRUCTION OF PROJECT.
2.1 Construction of Project. The Developer and/or the District, in accordance with the
provisions of this Agreement, shall (i) construct the Project, including without limitation, all
Eligible Improvements, (ii) be responsible for compliance in all respects with the Development
Approvals, and (iii) be responsible for payment of fees related to redevelopment of the Property
and the construction of the Project. The Project may be constructed in phases.
2.2 Financing the Costs of the Project. The Eligible Improvements shall be financed
from the net proceeds of the District Bonds, up to the Cap Amount. The remainder of the Project,
including the cost of any Eligible Improvements that exceed the Cap Amount, shall be financed by
the Developer. The Parties agree that the Urban Renewal Plan provides that one of the methods of
financing the Eligible Improvements shall be the use of property tax and sales tax increment
financing pursuant to Section 31-25-107(9), C.R.S., as more fully described in the Urban Renewal
Plan and that this Agreement implements the tax increment financing provisions of the Urban
Renewal Plan.
3. ISSUANCE OF DISTRICT BONDS. Subject to the terms and provisions hereinafter set
forth, the District will issue the District Bonds to pay or reimburse the Developer or the District for
Eligible Costs, up to the Cap Amount, and to pay the Costs of Issuance related to the District
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
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(Fifty-Three Million US Dollars) to be deposited in the Project Fund and applied to the payment or
reimbursement of Eligible Costs.
3.1 Conditions Precedent to Issuance of District Bonds. The following conditions shall
be satisfied on or prior to the issuance of the District Bonds:
(a) The Developer and the District shall prepare the Financing Plan and the
City Manager and the Executive Director of the Authority shall have approved the
Financing Plan. The Financing Plan shall also be in form and substance satisfactory to the
District’s bond counsel and the underwriter of the District Bonds. The Financing Plan shall
demonstrate that there is expected to be sufficient Pledged Revenues derived from the
construction of the Project to pay the debt service requirements on the District Bonds when
due.
(b) The Developer shall provide to the City Manager evidence satisfactory to
the City Manager that the Developer has obtained all equity and private financing
necessary to construct the non-residential components of the Project.
(c) The Developer shall have obtained executed lease agreements, excluding
the existing department store located on Larimer County Parcel Number 9725391002,
totaling at least 240,000 square footage of the retail area of the Project with tenants that, in
the aggregate, have an average sales per square foot of at least $375 based on average
national sales performance, and, except as hereinafter provided, of which at least 120,000
square feet shall be leased to tenants new to the City of Fort Collins. Notwithstanding the
foregoing, however, in the event that at least 60,000 of such square footage is leased to
tenants that are new to Fort Collins, then this minimum requirement of 120,000 square feet
shall be deemed satisfied with the prior written consent of the City Manager, which consent
shall not be unreasonably withheld, conditioned or delayed, provided that in determining
whether to give such consent the City Manager may consider the impact on the proposed
financing from a reduced percentage of tenants new to the City. The Developer shall
certify to the City upon the City’s request that the conditions of this Subsection (c),
excluding verification of the sales per square foot requirement, have been met in full.
(d) The Developer shall have imposed the Add-On PIF in accordance with
Section 4.7 hereof.
(e) The Developer shall have obtained the Development Approvals for the
Project, as described in this Agreement and in Exhibit C.
(f) The City and the Authority shall receive an opinion of the District’s bond
counsel that the District Bonds have been validly issued and opining as to the tax-exempt
status of the bonds, which opinion shall be addressed to the City and the Authority, or the
City and the Authority shall receive a reliance letter from the District’s bond counsel.
(g) No event of default hereunder shall have occurred and be continuing
hereunder, unless such Event of Default has been cured, remedied or waived, or a remedy
has been agreed upon by the Parties which will become effective with the passage of time.
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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:
(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 applied
by the District Bond Trustee to prepay principal on the District
Bonds upon payment of all scheduled debt service for the year in
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which said Add-On PIF Revenues were collected. In the event that
Add-On PIF Revenues are used to fund or maintain the
Supplemental Reserve Fund and are released after full payment of
the District Bonds, excess Add-On PIF Revenues shall be remitted
to the District for deposit in the Foothills Mall Fund.
(C) Any excess Pledged Property Tax Increment
Revenues shall be released from the lien of the District Bond
Documents and remitted to the Authority.
(D) Any excess Pledged District Specific Ownership
Taxes and District Debt Service Mill Levy Revenues shall be
applied by the District Bond Trustee to debt service payments on the
District Bonds in the following year.
(c) The District Bond Documents shall provide that moneys on deposit in the
Supplemental Reserve Fund shall be applied solely to pay the debt service requirements on
the District Bonds in the event of an insufficiency of Pledged Revenues to make such
payments, provided, however, that moneys on deposit in the reserve fund for the District
Bonds shall be applied to the payment of the debt service requirements on the District
Bonds prior to applying any funds on deposit in the Supplemental Reserve Fund to such
payment. Upon termination of the Supplemental Reserve Fund, the moneys on deposit in
the Supplemental Reserve Fund shall be remitted by the District Bond Trustee based on the
source of Pledged Revenues used to fund and maintain the Supplemental Reserve Fund in
accordance with the provisions set forth in subparagraph (b)(ii) above.
(d) The District Bond Documents shall provide that the net proceeds of the
Bonds shall be deposited in the Project Fund and requisitioned by the District to pay
Eligible Costs as set forth in Exhibit D hereof, with such requisitions to be made
substantially in accordance with Exhibit E hereof. The District Bond Documents shall
provide that any requisition remitted to the District Bond Trustee shall simultaneously be
remitted to the City Manager, or the City Manager’s designee. In the event that the City
provides written notice to the Developer and the District that it disputes that all or any
portion of the requisition qualifies as an Eligible Cost or otherwise fails to comply with the
requisition requirements in Exhibit E, then the City, the Developer and the District agree to
act in good faith to attempt to resolve any such dispute.
(e) Without the prior written consent of the City Manager, the District Bonds
shall mature no later than 25 years after the date of issuance thereof, and shall not contain a
pledge of Pledged Property Tax Increment Revenues or Pledged Sales Tax Revenues that
extends beyond the final payment of said revenues to the Authority; the total Net Debt
Service of the District Bonds shall not exceed $180,000,000, and the maximum annual Net
Debt Service on the District Bonds shall not exceed the amounts set forth in Exhibit I
hereto.
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
13
shall have been approved by the City. The City will have ten (10) business days after receipt of
such District Bond Documents by the City Attorney and the City’s bond counsel to notify the
District in writing if it objects to any provisions set forth in such District Bond Documents, setting
forth its specific objections. If the City does not object in writing to the District Bond Documents
within such ten (10) business day period, then the City will be deemed to have consented to the
form and substance of such District Bond Documents. In addition, the District Bond Documents
shall provide that any material amendments to the District Bond Documents shall be subject to
approval by the City.
3.4 Refunding Bonds. Notwithstanding anything to the contrary contained herein, to
the extent that District Bonds are issued to refund outstanding District Bonds, the Authority shall
have the right to determine whether, and to what extent, it will pledge the Authority Pledged
Revenues to such refunding District Bonds. In the event that all or a portion of the Authority
Pledged Revenues are to be pledged to the payment of such refunding District Bonds, as a
condition to such pledge, the Authority may in its discretion impose conditions and limitations in
any such refunding District Bonds that were not applicable to the District Bonds being refunded.
Any such refunding District Bonds that are secured in part by the Authority Pledged Revenues
shall also be subject to review and approval by the City Attorney and the City’s bond counsel.
4. OBLIGATIONS OF THE DEVELOPER.
4.1 Construction of Project. As set forth in Section 2.1 hereof, the Developer and/or
the District shall construct the Project. The Project shall be constructed substantially in
accordance with the Development Approvals and Exhibit C attached hereto.
4.2 Construction of Eligible Improvements. The Developer shall construct, or cause
the District to construct, the Eligible Improvements set forth in Exhibit D hereto. Such Eligible
Improvements shall be financed with the net proceeds of the Bonds, subject to the Cap Amount,
and, if necessary, other financing sources obtained by the Developer.
4.3 Construction of Residential Component of Project; Affordable Housing. The
Developer shall Complete Construction of the residential components of the Project, subject to
Force Majeure, as follows:
(a) on or prior to December 31, 2016, the Developer shall Complete
Construction of the first phase of the residential component of the Project consisting of a
minimum of 200 units;
(b) on or prior to December 31, 2018, the Developer shall Complete
Construction of the second phase of the residential component of the Project consisting of
at least an additional 246 units.
Failure to Complete Construction of the residential components of the Project in
accordance with this Section 4.3 shall not be deemed to be an Event of Default under this
Agreement, provided, however, that if Construction of the residential components of the Project is
not Completed as set forth above, then beginning with the 2020 Fiscal 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
14
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 applied toward principal on the District Bonds.
The Project shall pay any affordable housing fees that may be enacted by the City Council
on or before December 1, 2014, as if such fees had been in place and applicable to the Project. Any
affordable housing impact fee that may be adopted as part of such requirements shall be paid by
the Developer when due for the Project, except that for any portion of the Project developed prior
to the imposition of the fee, such fee shall be paid no later than sixty days after adoption.
4.4 Construction and Transfer of Foothills Activity Center.
(a) The Developer and/or District, as applicable, shall construct the Foothills
Activity Center in substantial conformance with the specifications set forth on Exhibit F
(the “City Specifications”). The construction of the Foothills Activity Center shall be
completed no later than March 31, 2015.
(b) The Developer shall transfer to the City the Foothills Activity Center within
thirty (30) days after the occurrence of (i) Completion of Construction of the Foothills
Activity Center; (ii) acceptance of the same by the City in writing as consistent with the
requirements of this Agreement, (iii) payment by the City of any Excess Costs, as defined
below, and (vi) approval by the City Manager and the Developer of the instruments
hereinafter described or to be used, in connection with transfer of the Foothills Activity
Center as and to the extent said approvals are specifically required in this Section 4.4.
(c) The Developer will transfer the Foothills Activity Center and the
underlying real estate to the City by a special warranty deed in a form reasonably
satisfactory to the City, together with appropriate reciprocal easements and other
easements to provide for access to the Foothills Activity Center, as well as for utilities,
shared walls and other similar necessary arrangements for use of the property, as a
separately platted lot.
(d) In lieu of the form of transfer described in subsection (c), the Developer
may transfer the Foothills Activity Center to the City as a separate property interest within
a common interest community established by declaration of covenant reasonably
satisfactory to the City and consistent with Exhibit F, together with such easement and
access rights and other appurtenances as the City may reasonably request. The City shall
review and respond to a request for approval with reasonable promptness, and shall be
obligated to approve said declaration of covenant if:
(i) It burdens the Foothills Activity Center interest only in a manner
(A) not inconsistent with the constitutions, statutes, charter and other applicable
laws constraining the City’s authority to obligate itself, and (B) that does not
15
unreasonably interfere with, impair or burden the City’s right or ability to operate
the Foothills Activity Center (“FAC”) as a public recreation facility with related
accessory uses and activities consistent with other recreation facilities operated by
the City, or conflict with the terms of this Agreement;
(ii) It allocates to the Foothills Activity Center only costs for the
operation, maintenance, repair and replacement of common areas of and benefitting
the building in which the Foothills Activity Center is located and structural
elements of such building required for the Foothills Activity Center space,
excluding: 1) real property taxes and personal property taxes; 2) operations,
maintenance, repair and replacement paid for by the District; and 3) operations,
maintenance, repair and replacement of common facilities that are duplicative of
facilities provided in the FAC (“Operating Expenses”), allocated fairly to the
Foothills Activity Center as a proportion of all space within the building and other
buildings within the relevant Operating Expense measurement area, excluding
common areas, with the FAC square footage amount deemed for the purpose of this
Section to be capped at 18,000 square feet (the “FAC Allocation of Expenses”).
The FAC Allocation of Expenses hereunder shall not exceed $2.25 per square foot
of the Foothills Activity Center space per year, with no increase in that rate during
the first three (3) calendar years following transfer of the Foothills Activity Center
to the City. After the end of the third (3
rd
) full calendar year after transfer to the
City, the FAC Allocation of Expenses shall not increase by more than three percent
(3%) in any calendar year.
(e) The City and Developer and/or District, as applicable, will coordinate the
construction and tenant finish of the Foothills Activity Center to ensure that it meets the
City Specifications; however, in no event shall the total cost (hard costs, soft costs and
permit costs) of constructing the Foothills Activity Center in accordance with the City
Specifications for the Foothills Activity Center that Developer and/or District, as
applicable, is required to expend, exceed $5.1 million. The City and Developer and/or
District agree to share information regarding costs associated with the FAC and will work
together in good faith to obtain the best pricing for equivalent bids for the work, consistent
with all applicable requirements for public projects. The Developer and/or the District
agree to keep the City informed of any potential cost overruns exceeding $5.1 million. In
the event that such potential cost overruns are identified, the City shall be responsible for
designating, in consultation with the Developer/District, sufficient modifications to the
City Specifications to reduce the total costs of the Foothills Activity Center to $5.1
million, or to such other amount as the City may, in its discretion, agree may be incurred.
Any such City-approved costs in excess of $5.1 million will either require that the City will
pay to the Developer or the District, as the case may be, the difference between the costs of
the updated City Specifications and the $5.1 million (“Excess Costs”), within 90 days of
written demand by the Developer or District accompanied by reasonable documentation,
subject to annual appropriation by the City Council at its sole discretion. Alternatively,
upon notice of potential cost overruns in connection with the initial bidding of the Project
for the tenant finish or equipment and furnishings for the FAC, which notice shall be
provided no later than five (5) business days after receipt of such bids, the City may elect to
assume responsibility for completion of the tenant finish and equipment and furnishings
16
(the “City Elective Work”) by providing written notice to the Developer/District of such
election, within fifteen (15) days of receipt of Developer/District notice. In such event, the
Developer/District shall complete the core and shell to obtain a letter of completion for
those elements of the FAC, shall convey the FAC to the City, and shall cooperate with the
City to enable the City to move forward with the City Elective Work. Costs incurred for
completion of the core and shell shall continue to be eligible improvements reimbursable to
the Developer/District. However, remaining funds for the City Elective Work available
under Exhibit D for completion of the FAC shall become reimbursable to the City for the
City Elective Work. The Developer/District obligation to Complete the City Elective
Work shall terminate except as provided herein upon the City’s election hereunder. The
City shall remain responsible for cost overruns for the core and shell in accordance with
this Section 4.4(e).
(f) The City agrees that the Foothills Activity Center will be subject to any
covenants, easements or other documents recorded against the Property as of the date of
this Agreement, any other documents, covenants or easements recorded in the normal
course of the development of the Project, including a declaration of covenant as described
above, and certain use restrictions relating to tenant leases entered into prior to said date of
transfer, provided any such covenants, easements or other documents burden the Foothills
Activity Center interest only in a manner (A) not inconsistent with the constitutions,
statutes, charter and other applicable laws constraining the City’s authority to obligate
itself, and (B) that does not unreasonably interfere with, impair or burden the City’s right or
ability to operate the FAC as a public recreation facility with related accessory uses and
activities consistent with other recreation facilities operated by the City, or conflict with
the terms of this Agreement. Any such documents, covenants or easements shall be subject
to the City’s review and approval of the same solely for compliance with the requirements
of this Agreement. No covenants, easements or declarations recorded after transfer of the
Foothills Activity Center to the City shall be effective as against the City without the City’s
express written approval, which shall be subject to the action of the City Council, in its
discretion. The City shall review and respond to a request for approval with reasonable
promptness.
(g) The Developer and/or District agree to cooperate with the City in
connection with any applicable procedural requirements of the City related to the
construction of the Foothills Activity Center. In connection with design and construction
of the Foothills Activity Center, the Developer and/or District shall use good faith efforts to
require that all available third-party contractor and material warranties to the extent that
they relate to labor or materials supplied for the Foothills Activity Center, extend to the
benefit of the City in a form reasonably satisfactory to the City.
4.5 Solar and Other Energy Efficiency Improvements. The Developer and/or the
District, as applicable, agree to construct the Project to accommodate the addition of solar panels
to the roof tops of the principal non-residential components subsequent to the Completion of
Construction of the Project. The City agrees that funds in the Foothills Mall Fund may be applied
by the Developer to pay the costs of installing solar panels or other energy efficiency
improvements within the Project upon reasonable documentation being provided to the City.
Within five (5) years after the issuance of the last certificate of occupancy for the non-residential
17
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 as of the Effective Date, the Developer shall use its best efforts to impose such
Add-On PIF on such retail sales occurring on any such Property, subject to the consent of the
owners of such Property. All property under the Developer’s control as of the Effective Date shall
be made subject to the Add-On PIF, and any property within the Project acquired by the Developer
subsequent to the Effective Date shall become subject to this requirement. The Add-On PIF shall
be imposed only for so long as the District Bonds are outstanding. So long as the District Bonds
are outstanding, the Developer covenants to cause all Add-On PIF Revenues to be remitted to the
District Bond Trustee and such Add-On PIF Revenues shall be pledged to the payment of the
District Bonds. To the extent that the Add-On PIF is imposed prior to the initial issuance of the
District Bonds, the Developer covenants to cause all Add-On PIF Revenues to be held in a trust
account and remitted to the District Bond Trustee upon the initial issuance of the District Bonds.
The Developer agrees that it shall be responsible for enforcing the placard requirements and for the
implementation of the Add-On PIF with the retailers in the Project.
4.8 Access to Property. Developer will permit representatives of the City and the
Authority access to the Property and the Project at reasonable times during regular business hours
and with prior notice as necessary for the purpose of carrying out or determining compliance with
the Agreement, the Urban Renewal Plan, or any City code or ordinance, including, without
limitation, inspection of any work being conducted. No compensation will be payable for such
access. The City and the Authority, as applicable, agree to restore the Property and any component
of the Project to its condition prior to any tests or inspections made by the City and further agree
that they shall be responsible for any damage that results from the City or the Authority, as
applicable, accessing the Property pursuant to their respective rights under this Agreement, to the
extent permitted by law and, in the case of the City, subject to annual appropriation of funds by the
City Council, in its sole discretion.
4.9 Class A Shopping Center. The Developer represents and warrants that, following
Completion of Construction of the Project, the physical condition of the Project will be maintained
at a level of quality consistent with Sections 11, 12 and 15 of Exhibit C, and as a “Class A”
shopping center consistent with comparable shopping centers in the State of Colorado.
4.10 Maintenance of Project. The Developer and/or District shall be responsible for the
maintenance of the Project, except for the Foothills Activity Center (when and to the extent owned
by the City), the Underpass (upon Completion and subject to standard City maintenance, repair
18
and replacement warranties required for public improvements constructed for the City) and the
Larimer County Canal No. 2 (upon Completion and acceptance by the City and the Larimer
County Canal No. 2 Irrigating Company, and subject to standard maintenance, repair and
replacement warranties) (each of which shall be maintained by the City), provided that the District
shall provide funding for the City to maintain Larimer County Canal No. 2. The City’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, and any lease with a total term, with options, in excess of 60
years in length, of all or any portion of the Property.
4.13 Payment of City and URA Expenses. The Developer agrees that it shall pay or
reimburse the City and the Authority for all fees, costs and out-of-pocket third party expenses
incurred by them in connection with developing, negotiating and preparing this Agreement and
related documents and issuing the District Bonds, including without limitation, all legal fees and
out-of-pocket third party expenses, provided that, to the extent that such fees and expenses qualify
as Costs of Issuance, such fees and expenses may be paid from the proceeds of the District Bonds.
In the event that the District Bonds are not issued on or prior to March 31, 2014, the Developer
shall pay or reimburse the City and the Authority for such fees and expenses no later than April 15,
2014. In addition, to the extent that the District’s Bond Counsel determines that not all such fees
and expenses qualify as Costs of Issuance hereunder, then the Developer shall pay or reimburse the
City and the Authority for any such fees and expenses not paid from proceeds of the District Bonds
as Costs of Issuance. Upon satisfaction of the reimbursement obligation pursuant to this Section,
the Agreement to Negotiate shall be deemed to be terminated and to have no further force or effect.
19
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, 2015, and the District covenants to continue to impose the District Debt Service Mill
Levy for so long as any District Bonds remain outstanding. The District further covenants that so
long as any District Bonds remain outstanding, the District will remit all District Pledged
Revenues to the District Bond Trustee for such outstanding District Bonds. Notwithstanding
expiration of the time or times that the Pledged Property Tax Increment Revenue may be collected
pursuant to the Act, the District agrees that the full amount of the District Debt Service Mill Levy
shall at all times remain pledged to the payment of any outstanding Bonds to the extent required by
the District Bond Documents or to the payment of any outstanding District Bonds to the extent
required by the District Bond Documents. In the event that the District Pledged Revenues are
imposed and collected by the District after all outstanding District Bonds have been paid or
defeased, the District shall thereafter deposit all District Pledged Revenues in the Foothills Mall
Fund.
5.4 District Operating Revenue; Maintenance Expenses. The District will use the
District Operating Revenue to pay its normal and reasonable operating and maintenance expenses,
to pay the City for the maintenance of Larimer County Canal No. 2, and for any other lawful
purpose. The District covenants that, upon the written request of the City, it shall use District
Operating Revenues to pay all costs incurred by the City in maintaining Larimer County Canal No.
2.
5.5 Reimbursement and Infrastructure Agreement. The District will acquire certain
tracts of the Property and/or easements as necessary, as designated in the Development Approvals,
from Developer (the “District Property”) and will manage the District Property in accordance
with the Service Plan.
5.6 Foothills Mall Fund. The District covenants to deposit any Add-On PIF Revenues
released from the lien of the District Bond Documents and remitted by the District Bond Trustee to
20
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 the TIF Area. The
Authority will transfer all of the revenue in the District Administrative Account to the District on
or before the 20
th
day of each month. The obligation of the Authority to make deposits in the
District Administrative Account and to transfer such revenue to the District shall expire when the
Authority’s right to receive such revenue expires pursuant to the Act. The District shall use the
District Operating Revenue to pay its normal and reasonable administrative, operating and
maintenance expenses. The District shall pledge the District Debt Service Mill Levy Revenue to
payment of the District Bonds.
6.3 Multi-Fiscal Year Obligation. The Parties acknowledge that, according to the
decision of the Colorado Court of Appeals in Olson v. City of Golden, 53 P.3d 747 (2002), an
urban renewal authority is not a local government and therefore is not subject to the provisions of
Article X, Section 20 of the Colorado Constitution. Accordingly, the Authority’s obligation to
remit the Authority Pledged Revenue to the District Bond Trustee in accordance with the
21
provisions of this agreement does not require electoral authorization and is not subject to annual
appropriation.
6.4 No Impairment. The Authority will not enter into any agreement or transaction that
impairs the rights of the Parties, including, without limitation, the right to receive and apply
Authority Pledged Revenue in accordance with the terms and provisions of this Agreement.
6.5 Cooperation with District and Developer. The Authority agrees to cooperate in a
reasonable manner to assist the District in issuing District Bonds and to pledge the Authority
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 Amendment of Urban Renewal Plan. The City agrees that it will not amend or
modify the Urban Renewal Plan as it relates to this Agreement without the consent of all of the
other Parties. Notwithstanding the foregoing, the City may, prior to June 1, 2014, elect to exclude
the Property from the Midtown Urban Renewal Plan and adopt a new urban renewal plan for the
Property, provided that the City cooperates with all Parties to ensure that such new plan is
consistent with the Act and with the terms and conditions of this Agreement.
7.2 Underpass. The City agrees to accept ownership of the Underpass from the
Developer or the District upon Completion of Construction of the Underpass in accordance with
this Agreement.
8. PAYMENT OR REIMBURSEMENT OF ELIGIBLE COSTS. The Developer or District,
as applicable, will be paid or reimbursed for Eligible Costs from the net proceeds of the District
Bonds on deposit in the Project Fund upon compliance with the requisition process set forth in the
District Bond Documents, which shall substantially comply with the requirements set forth in
Exhibit E hereto. Such payment or reimbursement of Eligible Costs shall also comply with the
Reimbursement and Infrastructure Agreement between the Developer and the District. Cost
savings in the line items listed in Exhibit D may be allocated to cost overruns in other line items
only in accordance with the provisions set forth in Exhibit D.
9. BOOKS AND ACCOUNTS; FINANCIAL STATEMENTS. The Authority and District
will keep proper and current itemized records, books, and accounts in which complete and
accurate entries will be made of the receipt and use of all amounts of revenue received from any
and all sources and such other calculations required by this Agreement, the District Bond
Documents, and any applicable law or regulation. The Authority and the District will prepare after
the close of each of their fiscal years, a complete financial statement prepared in accordance with
generally accepted accounting principles accepted in the United States of America for such year in
reasonable detail covering the above information, and if required by statute, certified by a public
accountant, and will furnish a copy of such statement to the other Parties within two hundred and
ten (210) days after the close of each fiscal year of the Authority and the District or upon such
earlier date as may be required by the District Bond Documents.
9.1 Inspection of Records. All books, records and reports (except those allowed or
required by applicable law to be kept confidential) in the possession of the City, the Authority, and
22
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.
12. REPRESENTATIONS, WARRANTIES AND COVENANTS.
12.1 Representations and Warranties by the Authority. The Authority represents and
warrants as follows:
(a) The Authority is a body corporate and politic of the State of Colorado, duly
organized under the Act, and has the power to enter into and has taken all actions to date required
to authorize this Agreement and to carry out its obligations.
(b) The Authority knows of no litigation, proceeding, initiative, referendum,
investigation or threat of any of the same contesting the powers of the Authority or its officials
with respect to this Agreement that has not been disclosed in writing to the Parties.
(c) The execution and delivery of this Agreement and the documents required
and the consummation of the transactions contemplated by this Agreement will not (a) conflict
with or contravene any law, order, rule or regulation applicable to the Authority or to its governing
documents, (b) result in the breach of any of the terms or provisions or constitute a default under
any agreement or other instrument to which the Authority is a party or by which it may be bound or
23
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
default under any agreement or other instrument to which the District is a party or by which it may
be bound or affected, or (c) permit any party to terminate any such agreement or instruments or to
accelerate the maturity of any indebtedness or other obligation of the District.
(d) The District knows of no litigation, proceeding, initiative, referendum, or
investigation or threat of any of the same contesting the powers of the Authority, the District or any
of its officials with respect to this Agreement that has not been disclosed in writing to the Parties.
(e) The District Pledged Revenue is not subject to any other or prior pledge or
encumbrance, and the District will not pledge or encumber it except as specified herein or as may
be provided in the District Bond Documents or the documents related to the issuance of the District
Bonds.
(f) This Agreement constitutes a valid and binding obligation of the District,
enforceable according to its terms, except to the extent limited by bankruptcy, insolvency and
other laws of general application affecting creditors’ rights and by equitable principles, whether
considered at law or in equity.
24
12.3 Representations, Warranties and Covenants by the Developer. Developer
represents and warrants as follows:
(a) Developer is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of Delaware and in good standing and authorized
to do business in the State of Colorado and has the power and the authority to enter into and
perform in a timely manner its obligations under this Agreement.
(b) The execution and delivery of this Agreement have been duly and validly
authorized by all necessary action on its part to make this Agreement and are valid and binding
upon Developer.
(c) The execution and delivery of this Agreement will not (a) conflict with or
contravene any law, order, rule or regulation applicable to Developer or to Developer’s governing
documents, (b) result in the breach of any of the terms or provisions or constitute a default under
any agreement or other instrument to which Developer is a party or by which it may be bound or
affected, or (c) permit any party to terminate any such agreement or instruments or to accelerate
the maturity of any indebtedness or other obligation of Developer.
(d) Developer knows of no litigation, proceeding, initiative, referendum, or
investigation or threat or any of the same contesting the powers of the Developer or any of its
principals or officials with respect to this Agreement that has not been disclosed in writing to the
other Parties.
(e) Developer agrees that it shall enforce the imposition and collection of the
Add-On PIF and the remittance of the Add-On PIF to the District Bond Trustee.
(f) Developer covenants and agrees that it shall complete the Project in strict
conformance with the terms of this Agreement, and Exhibit C, including but not limited to high
quality architectural and landscape design exceeding the City of Fort Collins Land Use Code
minimum standards and consistent in character with the approved Project Development Plan dated
February 7, 2013, and the environmental sustainability measures set forth in Exhibit C, except as
approved in writing by the City Manager.
(g) Except with regard to the signature pages from ARC, as defined below, in
escrow with Fidelity National Title Company (“Fidelity”) are: (i) a Termination and Relocation
Agreement between the Developer and arc Thrift Stores (“ARC”), (ii) an Estoppel Agreement
between the Developer, ARC, Crown Financial, LLC (“Crown”) and Larimer Park Associates
(“LPA”), (iii) an Escrow Agreement, between the Developer, ARC and Fidelity (collectively the
“ARC Escrow Documents”), (iv) assignments between Crown and the Developer and LPA and the
Developer, and (v) funds in an amount sufficient to cover the payment obligations to Crown and
LPA pursuant to the separate assignment agreements with Crown and LPA and the escrow deposit
required under the Escrow Agreement.
Provided ARC has delivered fully executed copies of the ARC Escrow Documents
with instructions to permit the completion of the escrow as hereinafter described, the Developer
covenants and agrees that on or before Noon on January 15, 2014, the Developer shall deliver
confirmation to Fidelity to complete the escrow so that fully-executed copies of the ARC Escrow
25
Documents are delivered to the applicable parties and funding related to the same occurs in
accordance with each applicable document.
12.4 Representations and Warranties by the City. The City represents and warrants as
follows:
(a) The City is a body corporate and politic and a home rule municipality of the
State of Colorado, and has the power to enter into and has taken all actions to date required to
authorize this Agreement and to carry out its obligations under this Agreement.
(b) The City knows of no litigation, proceeding, initiative, referendum,
investigation or threat of any of the same contesting the powers of the City or its officials with
respect to this Agreement that has not been disclosed in writing to the Parties.
(c) The execution and delivery of this Agreement and the documents required
hereunder and the consummation of the transactions contemplated by this Agreement will not (a)
conflict with or contravene any law, order, rule or regulation applicable to the City or to its
governing documents, (b) result in the breach of any of the terms or provisions or constitute a
default under any agreement or other instrument to which the City is a party or by which it may be
bound or affected, or (c) permit any party to terminate any such agreement or instruments or to
accelerate the maturity of any indebtedness or other obligation of the City.
(d) This Agreement constitutes a valid and binding obligation of the City,
enforceable according to its terms, except to the extent limited by bankruptcy, insolvency and
other laws of general application affecting creditors’ rights and by equitable principles, whether
considered at law or in equity.
13. TERM. The term of this Agreement is the period commencing on the Effective Date and
terminating on the later of: (i) the date of payment in full of the District Bonds, or (ii) thirty years
from the Effective Date; provided, however, that the Authority’s obligation to remit the Authority
Pledged Revenue to the District Bond Trustee shall terminate upon the expiration of the time
period that the Authority is authorized pursuant to the Act to receive the Authority Pledged
Revenue, and provided, further, that the following provisions, without limitation, shall continue
beyond the term of this Agreement: (A) the District’s and Developer’s obligation to operate and
maintain the Project in accordance with the standards set forth herein, (B) the District’s obligation
to reimburse the City for the costs of maintaining Larimer County Canal No. 2, (C) the limitation
on the imposition of the Add-on PIF for only so long as any District Bonds are outstanding without
the written consent of the City, (D) the Developer’s indemnification obligations under Section 11
hereof, (E) any rights and remedies that a Party has for an Event of Default hereunder, and (F) any
rights that a Party has to inspect books and records as set forth in Section 9 hereof.
14. CONFLICTS OF INTEREST. None of the following will have any personal interest,
direct or indirect, in this Agreement: a member of the governing body of the Authority or the City,
an employee of the Authority or of the City who exercises responsibility concerning the Urban
Renewal Plan, or an individual or firm retained by the City or the Authority who has performed
consulting services to the Authority in connection with the Urban Renewal Plan, this Agreement,
or the Authority Financing. None of the above persons or entities will participate in any decision
26
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.
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;
27
(e) The Developer fails in the timely performance of its obligations under
Section 12.3(g).
19. REMEDIES.
To the extent that an Event of Default has occurred and is continuing hereunder, and
District Bonds have not yet been issued, no District Bonds shall be issued until such Event of
Default has been cured, remedied, or waived, or a remedy has been agreed upon by the Parties
which will become effective with the passage of time.
Upon the occurrence and continuation of an Event of Default, the non-defaulting Party’s
remedies will be limited to the right to enforce the defaulting Party’s obligations by an action for
injunction, specific performance, or other appropriate equitable remedy or for mandamus, or by an
action to collect and enforce payment of sums owing hereunder, and no other remedy, and no Party
will be entitled to or claim damages for an Event of Default by the defaulting Party, including,
without limitation, lost profits, economic damages, or actual, direct, incidental, consequential,
punitive or exemplary damages. In the event of any litigation or other proceeding to enforce any of
the terms, covenants or conditions of this Agreement, the prevailing party in such litigation or
other proceeding will receive, as part of its judgment or award, its reasonable attorneys’ fees and
costs. The occurrence and continuation of an Event of Default will not affect the obligation of the
Authority or the District to collect and remit Pledged Revenues or the obligation of the Authority
to remit the District Debt Service Mill Levy Revenue or the District Operating Revenue to the
District in accordance with the terms and provisions of this Agreement.
20. TERMINATION. In the event that the District Bonds are not issued on or prior to June 30,
2014, then any Party shall have the option to terminate this Agreement.
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 4.13 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
28
District Bonds, this Agreement will not be assigned in whole or in part by any Party without the
prior written consent of the other Parties; provided, however, the following assignments and
transfers will not require any such consent: (a) Developer may assign all or a portion of this
Agreement to the District; (b) subject to written notice to the City and the Authority from
Developer containing the name and address of the lender or other party, Developer may pledge,
collaterally assign or otherwise encumber all or any part of its rights under this Agreement,
including its right to receive any payment or reimbursement, to any lender or other party that
provides acquisition, construction, working capital, tenant improvement or other financing to
Developer in connection with development of the Property and/or construction of the Eligible
Improvements; and (c) on and after Completion of Construction of the Project and subject to
advance written notice to the City and the Authority of no less than thirty (30) days, the Developer
may assign all or any part of its rights under this Agreement to any purchaser of all or any portion
of the Project, provided that a transfer of all or substantially all of the Property owned by
Developer shall require that the purchaser or its property manager have property management
experience equal to or better than Alberta Development Partners, L.L.C. On and after Completion
of Construction of the Project and in the event that the Developer sells all or a portion of the
Project to a purchaser, and such purchaser accepts all or a part of the Developer’s obligations
hereunder, then Developer shall be released from all of its obligations hereunder that have been
assumed or accepted by such purchaser, provided, however, that no such release shall be effective
until the City and the Authority have received written confirmation that such purchaser has
assumed or accepted any such obligations hereunder. The Authority recognizes that Developer
may form, together with investors, a separate, special purpose entity to develop, own and/or
operate all or a portion of the Property or of the Eligible Improvements to be constructed thereon
and that one or more assignments of all or a portion of this Agreement may be required in
connection with such activities and such transfer(s) will not require any consent by the Parties.
Except as otherwise specifically set forth in Section 4.4 (prior to the transfer of the FAC to
the City) and 4.11 hereof, no covenants or obligations of the Developer or the District hereunder
shall run with the land.
23. COOPERATION REGARDING DEFENSE. In the event of any litigation or other legal
challenge involving this Agreement, the District Bonds, the validity of the Urban Renewal Plan,
the District, or any other material part or provision of this Agreement or the ability of any Party to
enter into this Agreement, the Parties will cooperate and jointly defend against such action or
challenge, to the extent permitted by law.
24. SECTION CAPTIONS. The captions of the sections are set forth only for the convenience
and reference of the Parties and are not intended in any way to define, limit, or describe the scope
or intent of this Agreement.
29
25. ADDITIONAL DOCUMENTS OR ACTION.
25.1 The Parties agree to execute any additional documents or take any additional
action, including but not limited to estoppel documents requested or required by third parties,
including without limitation, lenders, tenants or potential purchasers, that is necessary to carry out
this Agreement or is reasonably requested by any Party to confirm or clarify the intent of the
provisions of this Agreement and to effectuate the agreements and the intent. Notwithstanding the
foregoing, however, no Party shall be obligated to execute any additional document or take any
additional action unless such document or action is reasonably acceptable to such Party.
25.2 If all or any portion of this Agreement, or other agreements approved in connection
with this Agreement are asserted or determined to be invalid, illegal or are otherwise precluded,
the Parties, within the scope of their powers and duties, will cooperate in the joint defense of such
documents and, if such defense is unsuccessful, the Parties will use reasonable, diligent good faith
efforts to amend, reform or replace such precluded items to assure, to the extent legally
permissible, that each Party substantially receives the benefits that it would have received under
this Agreement.
25.3 At the time of issuance of the District Bonds, each of the Authority and the City
shall deliver an opinion of counsel addressed to the District, or with a reliance letter delivered to
the District, with respect to this Agreement and the Urban Renewal Plan, which opinions shall state
in substance that the Agreement and the Urban Renewal Plan have been duly authorized, executed,
and delivered by the Authority and the City, as applicable, constitute valid and binding agreements
of the Authority and the City, as applicable, and are enforceable according to their terms, subject to
any applicable bankruptcy, reorganization, insolvency, moratorium, or other law affecting the
enforcement of creditors rights generally and subject to the application of general principles of
equity.
25.4 At the time of issuance of the District Bonds, the District shall deliver an opinion of
counsel addressed to the City and the Authority, or with a reliance letter delivered to the City and
the Authority, with respect to this Agreement, which opinion shall state in substance that the
Agreement has been duly authorized, executed, and delivered by the District, constitutes a valid
and binding agreement of the District, and is enforceable according to its terms, subject to any
applicable bankruptcy, reorganization, insolvency, moratorium, or other law affecting the
enforcement of creditors rights generally and subject to the application of general principles of
equity.
25.5 The City Manager shall have the authority to act on behalf of the City under this
Agreement and the Executive Director shall have the authority to act on behalf of the Authority
under this Agreement.
26. AMENDMENT. This Agreement may be amended only by an instrument in writing
signed by the Parties.
27. WAIVER OF BREACH. A waiver by any Party to this Agreement of the breach of any
term or provision of this Agreement must be in writing and will not operate or be construed as a
waiver of any subsequent breach by any Party.
30
28. GOVERNING LAW. The laws of the State of Colorado, excluding choice of law
principles, govern this Agreement. The District Court of Larimer County will be the exclusive
venue for any litigation.
29. BINDING EFFECT. This Agreement will inure to the benefit of and be binding upon the
Parties and their respective legal representatives, successors, heirs, and assigns, provided that
nothing in this paragraph permits the assignment of this Agreement except as set forth in Section
22.
30. EXECUTION IN COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which will be deemed an original and all of which will constitute but one and
the same instrument.
31. LIMITED THIRD-PARTY BENEFICIARIES. Except for the District Bond Trustee for
any District Bonds, direct lenders to the District that have been assigned rights hereunder in
accordance with Section 22, or any provider of credit enhancement for the District Bonds, this
Agreement is not intended and shall not be deemed to confer any rights on any person or entity not
named as a Party to this Agreement.
32. NO PRESUMPTION. The Parties and their attorneys have had a full opportunity to review
and participate in the drafting of the final form of this Agreement. Accordingly, this Agreement
will be construed without regard to any presumption or other rule of construction against the Party
causing the Agreement to be drafted.
33. SEVERABILITY. If any provision of this Agreement as applied to any Party or to any
circumstance is adjudged by a court to be void or unenforceable, the same will in no way affect any
other provision of this Agreement, the application of any such provision in any other
circumstances or the validity, or enforceability of the Agreement as a whole.
34. DAYS. If the day for any performance or event provided for herein is a Saturday, a
Sunday, a day on which national banks are not open for the regular transactions of business, or a
legal holiday pursuant to Section 24-11-101(1), C.R.S., such day will be extended until the next
day on which such banks and state offices are open for the transaction of business.
35. GOOD FAITH OF PARTIES. In the performance of this Agreement or in considering any
requested approval, consent, acceptance, or extension of time, the Parties agree that each will act in
good faith and will not act unreasonably, arbitrarily, capriciously, or unreasonably withhold,
condition, or delay any approval, acceptance, or extension of time required or requested pursuant
to this Agreement.
36. PARTIES NOT PARTNERS. Notwithstanding any language in this Agreement or any
other agreement, representation, or warranty to the contrary, the Parties will not be deemed to be
partners or joint venturers, and no Party is responsible for any debt or liability of any other Party.
37. NO WAIVER OF IMMUNITY. Nothing contained in this Agreement constitutes a waiver
of sovereign immunity or governmental immunity by any Party under applicable state law.
31
IN WITNESS WHEREOF, this Agreement is executed by the Parties as of January __,
2014.
FORT COLLINS URBAN RENEWAL AUTHORITY
_____________________________________
ATTEST: Gerry Horak, Vice Chairperson
_____________________________
Darin Atteberry, Executive Director
Notice Address:
Fort Collins Urban Renewal Authority
300 LaPorte Avenue
P.O. Box 580
Fort Collins, CO 80522
Attention: Darin Atteberry, Executive Director
Email: DATTEBERRY@fcgov.com
32
CITY OF FORT COLLINS, COLORADO
By:
Gerry Horak, Mayor Pro Tem
(SEAL)
Attest:
_______________________
Wanda Nelson, City Clerk
APPROVED AS TO FORM
_______________________
Steve Roy, City Attorney
Notice Address:
City of Fort Collins
300 LaPorte Avenue
P.O. Box 580
Fort Collins, Colorado 80522
Attention: Steve Roy, Esq., City Attorney
Email: SROY@fcgov.com
33
FOOTHILLS METROPOLITAN DISTRICT
_________________________________
ATTEST: ________________________, President
_____________________________
Secretary
Notice Address:
c/o White, Bear and Ankele, P.C.
The Streets at Southglenn
2154 E.Commons Avenue, Suite 2000
Centennial, CO 80122
Attention: Kristen Bear
Email: kbear@wbapc.com
34
WALTON FOOTHILLS HOLDINGS VI, L.L.C.,
a Delaware limited liability company
By: Foothills Alberta Management, LLC,
a Colorado limited liability company
Its: Authorized Agent
By: ____________________________
Donald G. Provost
Its: Manager
Notice Address:
Walton Foothills Holdings VI, L.L.C.
5750 DTC Pkwy, Suite 210
Greenwood Village, CO 80111
Attention: Donald G. Provost
Email: dgp@albdev.com
With a copy to:
Brownstein Hyatt Farber Schreck, LLP
410 Seventeenth Street, Suite 2200
Denver, CO 80202
Attention: Carolynne C. White, Esq.
Email: cwhite@bhfs.com
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
Foothills Mall:
PARCEL I - FEE SIMPLE:
Tract 2, The Foothills Fashion Mall Expansion, City of Fort Collins, County of Larimer, State of
Colorado.
PARCEL II - FEE SIMPLE:
Tract 3, The Foothills Fashion Mall Expansion, City of Fort Collins, County of Larimer, State of
Colorado.
PARCEL III - FEE SIMPLE:
Lot #1 of Replat of Tracts F, G and J and Vacated Service Road, Southmoor Village Fifth Filing,
City of Fort Collins, Colorado, a municipal corporation, according to the replat filed December 13,
1973, except that portion conveyed to the City of Fort Collins, for public use by Deed of
Dedication recorded April 21, 1989, as Reception No. 890178208, more particularly described as
follows:
A part of Lot 1 of the Replat of Tracts F, G and J and Vacated Service Road, Southmoor Village,
Fifth Filing, City of Fort Collins, County of Larimer, State of Colorado, which begins at a point
which bears South 00°12' East 105.36 feet from the Northeast corner of said Lot 1, and runs thence
South 00°12' East 137.44 feet; Thence along the arc of a 15.00 foot radius curve to the right a
distance of 17.77 feet, the long chord of which bears South 33°43'30" West 16.75 feet; Thence
along the arc of a 360.77 foot radius curve to the left a distance of 146.61 feet, the long chord of
which bears South 56°01'30" West 145.60 feet; Thence North 44°23' East 85.72 feet; thence along
the arc of a 243.83 foot radius curve to the left a distance of 189.80 feet, the long chord of which
bears North 22°05' East 185.04 feet to the Point of Beginning.
PARCEL IV - FEE SIMPLE:
A part of Tract T and U and a part of the vacated frontage road adjacent to said Tract U, Southmoor
Village Fifth Filing, City of Fort Collins, County of Larimer, State of Colorado, which begins at a
point on the West line of said Tract T which bears South 01°57' East 7.19 feet and again South
12°17'30" West 180.10 feet from the Northwest corner of said Tract T, and run thence North
89°45'30" East 243.55 feet to a point on the Northerly line of East Monroe Drive; Thence along
said Northerly right-of-way line, South 51°45' West 231.73 feet and again along the arc of a
193.41 foot radius curve to the right a distance of 127.73 feet, the long chord of which bears South
70°40'06" West 125.42 feet and again South 89°35'15" West 137.00 feet; Thence along the arc of a
15.00 foot radius curve to the right a distance of 23.56 feet, the long chord of which bears North
A1 - 2
45°24'45" West 21.21 feet; Thence North 00°24'45" West 169.17 feet along the East line of South
College Avenue; Thence North 89°45'30" East, 210.10 feet to the point of beginning.
Also:
A part of Tract T of Southmoor Village, Fifth Filing which begins at the Northwest corner of said
Tract T and run thence North 89°45'30" East 227.00 feet; Thence South 74°54' East 170.06 feet;
Thence South 00°14'30" East 24.45 feet to a point on the North line of Monroe Drive; Thence
along said North line along the arc of a 301.32 foot radius curve to the left a distance of 124.25
feet, the long chord of which bears South 63°33'47" West 123.37 feet, and again South 51°45'
West 95.97 feet; Thence South 89°45'30" West 243.55 feet; Thence North 12°17'30" East 180.10
feet; Thence North 01°57' West 7.19 feet to the point of beginning: AND a part of Tract U of
Southmoor Village, Fifth Filing, and a part of the vacated frontage road adjacent to said Tract U
which begins at the Northeast corner of said Tract U and run thence South 01°57' East 7.19 feet;
Thence South 12°17'30" West 180.10 feet; Thence South 89°45'30" West 210.10 feet to a point on
the East right-of-way line of South College Avenue; Thence North 00°24'45" West 183.00 feet;
Thence North 89°45'30" East 249.52 feet to the point of beginning; City of Fort Collins, County of
Larimer, State of Colorado.
EXCEPT that portion described in Partial Release recorded August 19, 1988 as Reception No.
88039190.
The above described Parcel IV is also known as:
A part of Tract T, Tract U and the vacated frontage road adjacent to the West side of Tract U, all in
Southmoor Village, Fifth Filing, City of Fort Collins, County of Larimer, State of Colorado, which
begins at the Northwest corner of said Tract T and runs thence North 89°45'30" East 225.25 feet;
Thence along the arc of a 140.00 foot radius curve to the right a distance of 61.50 feet, the long
chord of which bears South 12°49'33" East 61.00 feet; Thence South 00°14'30" East 97.00 feet;
Thence South 51°45' West 274.70 feet; Thence along the arc of a 193.41 foot radius curve to the
right a distance of 127.73 feet, the long chord of which bears South 70°40'06" West 125.42 feet;
Thence South 89°35'15" West 137.00 feet; Thence along the arc of a 15.00 foot radius curve to the
right a distance of 23.56 feet, the long chord of which bears North 45°24'45" West 21.21 feet;
Thence North 00°24'45" West 352.17 feet; Thence North 89°45'30" East 249.52 feet to the Point
of Beginning.
PARCEL V - FEE SIMPLE:
Tract A, The Foothills Fashion Mall Foley's Expansion, City of Fort Collins, County of Larimer,
State of Colorado.
PARCEL VI - FEE SIMPLE:
Tract 1 and Tract 7 of The Foothills Fashion Mall Expansion, City of Fort Collins, County of
Larimer, State of Colorado.
A1 - 3
PARCEL VII - FEE SIMPLE:
Tract 10 of The Foothills Fashion Mall Expansion, City of Fort Collins, County of Larimer, State
of Colorado.
PARCEL VIII - FEE SIMPLE:
Tract E, Southmoor Village, Fifth Filing, together with a tract of land beginning at the Southwest
corner of Tract E of Southmoor Village Fifth Filing and runs:
Thence South 89°45'30" West, 50.00 feet;
Thence North 00°24'45" West, 414.93 feet;
Thence North 89°35'15" East, 50.00 feet;
Thence South 00°24'45" East, 415.08 feet to the beginning, Larimer County, Colorado.
PARCEL IX - EASEMENTS:
Together with those rights and easements constituting rights in real property created, defined and
limited by that certain Easement Agreement recorded June 23, 1972 in Book 1509 at Page 306,
Amended Agreement recorded June 23, 1972 in Book 1509 at Page 316, Amended Construction,
Operation Reciprocal Easement Agreement recorded June 23, 1972 in Book 1509 at Page 201,
Restatement of Amended Construction, Operation and Reciprocal Easement Agreement recorded
May 31, 1979, in Book 1956 at Page 796, Amendment No. 1 to Restatement of Amended
Construction, Operation and Reciprocal Easement Agreement, recorded September 27, 1988 at
Reception No. 88042996, and Amendment No. 2 to Restatement of Amended Construction,
Operation and Reciprocal Easement Agreement recorded September 7, 1999 at Reception No.
99079223, Assignment and Assumption of Restatement of Amended Construction, Operation and
Reciprocal Easement Agreement recorded December 19, 2003 at Reception No. 20030158946,
and Assignment and Assumption of Restatement of Amended Construction, Operation and
Reciprocal Easement Agreement recorded January 30, 2004 at Reception No. 2004009265.
PARCEL X - EASEMENTS:
Together with those rights and easements constituting rights in real property created, defined and
limited by that certain Cross-Easement Agreement recorded September 7, 1988 at Reception No.
88042989, Grant of Easement recorded September 7, 1988 at Reception No. 88042997 and Grant
of Easement recorded January 26, 1993 at Reception No. 93005028.
PARCEL XI - EASEMENTS:
Together with those rights and easements constituting rights in real property created, defined and
limited by that certain Easement Agreement recorded April 24, 1997 at Reception No. 97025069.
A1 - 4
Macy's:
Tract "B" of The Foothills Fashion Mall Foley's Expansion, located in the Southwest Quarter of
Section 25, Township 7 North, Range 69 West of the 6th Principal Meridian, City of Fort Collins,
County of Larimer, State of Colorado, being more particularly described as follows:
Considering the North line of said Tract "B" as bearing North 89°47'08" East with all bearings
contained herein relative thereto:
Beginning at the Northwest corner of said Tract "B"; thence along said North line, North 89°47'08"
East, 147.00 feet to the Northwest corner of Tract "A" of said The Foothills Fashion Mall Foley's
Expansion; thence along the West and Southerly lines of said Tract "A" by the following four (4)
courses and distances, South 00°12'52" East, 180.00 feet; thence North 89°47'08" East 714.79 feet;
thence North 00°12'52" West,1 28.00 feet; thence North 89°47'08" East, 132.28 feet to a point on
the West right-of-way line of Stanford Road, said point being on a non-tangent curve concave to
the Northwest having a central angle of 14°33'25", a radius of 1319.21 feet and a long chord which
bears South 09°19'18" West, 334.27 feet; thence along the arc of said curve 335.17 feet; thence
South 16°36'00" West, 93.03 feet to a point being on a non tangent curve concave to the Southwest
having a central angle of 89°58'58", a radius of 15.00 feet and a long chord which bears North
28°24'00" West, 21.21 feet; thence along the arc of said curve 23.56 feet; thence North 73°24'00"
West, 242.72 feet; thence South 00°14;39: East, 306.31 feet; thence South 89°45'30" West, 329.50
feet; thence South 44°45'30" West, 98.72 feet; thence North 45°14'30" West, 48.00 feet; thence
South 44°45'30" West, 93.53 feet; thence North 45°14'30" West, 151.44 feet; thence South
44°45'30" West, 47.26 feet; thence North 00°14'30" West, 332.20 feet; thence North 89°47'00"
East, 99.70 feet; thence North 00°13'00" West, 280.13 feet to the Point of Beginning.
Sears:
Tract 8, The Foothills Fashion Mall Expansion to the city of Fort Collins, County of Larimer, State
of Colorado
Christy Sports:
Parcel One:
Tract "D" Southmoor Village Fifth Filing AND the following described portion of the vacated
frontage road vacated by Ordinance No. 98 as recorded in Book 1580 at page 897, which begins at
the Southwest corner of said Tract "D" and run
thence N 00°00'45" West 143.71 feet along the West line of said Tract D;
thence S 44°59'15" West 70.71 feet;
thence S 00°00'45" East 93.71 feet;
thence N 89°59'15" East 50.00 feet to the Point of Beginning,
together with the following described easement:
A1 - 5
Parcel Two: (easement)
A portion of Tract 8, Foothills Fashion Mall Expansion, formerly known as a part of Tract "C" of
Southmoor Village, Fifth Filing, in the City of Fort Collins, which begins at the Northeast corner
of Tract "D" of said Southmoor Village, Fifth Filing, and run
thence S 00°00'45" East 158.71 feet;
thence S 89°59'15" West 158.71 feet;
thence S 00°00'45" East 50.00 feet;
thence N 89°59'15" East 185.00 feet;
thence N 13°44 East 130.45 feet;
thence along the Arc of a 200 foot radius curve to the left a distance of 55.72 feet;
thence along the arc of a 35-foot radius curve to the right a distance of 31.81 feet;
thence along the Southerly line of Foothills Parkway, on the arc of a 359.23 foot radius curve to the
right a distance of 43.81 feet, and again along the Southerly line of Foothills Parkway South
89°59'15" West 29.29 feet to the Point of Beginning.
Subject to the terms, agreements, provisions, conditions and obligations as contained in Easement
Agreement recorded December 11, 1972, in Book 1532 at Page 904 and Assignment recorded
January 8, 1973, in Book 1536 at Page 448.
EXHIBIT B
DESCRIPTION OF THE FOOTHILLS
TAX INCREMENT FINANCING DISTRICT
A TRACT OF LAND LOCATED IN THE SOUTHWEST QUARTER OF SECTION 25 AND THE
SOUTHEAST QUARTER OF SECTION 26, TOWNSHIP 7 NORTH, RANGE 69 WEST OF THE
SIXTH P.M.; CITY OF FORT COLLINS, COUNTY OF LARIMER, STATE OF COLORADO; BEING
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE WEST QUARTER CORNER OF SAID SECTION 25, AND CONSIDERING
THE WEST LINE OF THE SOUTHWEST QUARTER OF SAID SECTION 25 AS HAVING AN
ASSUMED BEARING OF S00°04’53”W, SAID LINE BEING MONUMENTED ON ITS NORTH END
BY A 3" ALUMINUM CAP STAMPED LS 20123, AND ON ITS SOUTH END BY A 2-1/2"
ALUMINUM CAP STAMPED LS 14823, WITH ALL BEARINGS CONTAINED HEREIN RELATIVE
THERETO;
THENCE ALONG THE NORTHERLY BOUNDARY OF LOT 1 OF THE “REPLAT OF TRACTS F, G,
AND J, AND VACATED SERVICE ROAD, SOUTHMOOR VILLAGE, FIFTH FILING” AND THE
WESTERLY EXTENSION THEREOF, N89°52'45"E, A DISTANCE OF 314.48 FEET TO A POINT ON
THE WESTERLY RIGHT OF WAY LINE OF REMINGTON STREET;
THENCE CONTINUING ALONG SAID NORTHERLY BOUNDARY THE FOLLOWING FIVE (5)
COURSES:
1) ALONG THE WESTERLY RIGHT OF WAY LINE OF REMINGTON STREET, S00°05'37"W,
A DISTANCE OF 50.00 FEET;
2) ALONG THE SOUTHERLY RIGHT OF WAY LINE OF REMINGTON STREET, N89°52'45"E,
A DISTANCE OF 60.00 FEET;
3) S51°41'04"E, A DISTANCE OF 145.40 FEET;
4) S89°35'23"E, A DISTANCE OF 138.50 FEET;
5) N00°05'37"E, A DISTANCE OF 141.63 FEET;
THENCE CONTINUING ALONG SAID NORTHERLY BOUNDARY AND ITS EASTERLY
EXTENSION, N89°52'45"E, A DISTANCE OF 357.21 FEET TO A POINT ON THE EASTERLY
RIGHT OF WAY LINE OF MATHEWS STREET, SAID POINT ALSO BEING THE NORTHWEST
CORNER OF TRACT K, SOUTHMOOR VILLAGE, FIFTH FILING;
THENCE ALONG THE WESTERLY, SOUTHERLY, AND EASTERLY BOUNDARIES OF SAID
TRACT K THE FOLLOWING FIVE (5) COURSES:
1) ALONG SAID EASTERLY RIGHT OF WAY LINE OF MATHEWS STREET, S00°14'56"E, A
DISTANCE OF 215.33 FEET;
2) 23.98 FEET ALONG THE ARC OF A TANGENT CURVE TO THE LEFT, HAVING A
RADIUS OF 15.00 FEET, A CENTRAL ANGLE OF 91°36'53", AND A CHORD WHICH
BEARS S46°03'22"E A DISTANCE OF 21.51 FEET;
B - 2
3) 11.02 FEET ALONG THE ARC OF A REVERSE CURVE, HAVING A RADIUS OF 360.77
FEET, A CENTRAL ANGLE OF 01°45'00", AND A CHORD WHICH BEARS N89°00'07"E A
DISTANCE OF 11.02 FEET;
4) N89°52'37"E, A DISTANCE OF 173.52 FEET;
5) N00°07'23"W, A DISTANCE OF 230.12 FEET TO THE NORTHWEST CORNER OF TRACT B
OF THE FOOTHILLS FASHION MALL FOLEY’S EXPANSION;
THENCE ALONG THE NORTHERLY BOUNDARY OF TRACTS B AND A OF SAID FOOTHILLS
FASHION MALL FOLEY’S EXPANSION, N89°52'46"E, A DISTANCE OF 996.10 FEET TO A POINT
ON THE WESTERLY RIGHT OF WAY LINE OF STANFORD ROAD;
THENCE ALONG SAID WESTERLY RIGHT OF WAY LINE THE FOLLOWING SEVEN (7)
COURSES:
1) ALONG THE EASTERLY BOUNDARY OF TRACT B OF SAID FOOTHILLS FASHION
MALL FOLEY’S EXPANSION, 387.18 FEET ALONG THE ARC OF A NON-TANGENT
CURVE TO THE RIGHT, HAVING A RADIUS OF 1,319.30 FEET, A CENTRAL ANGLE OF
16°48'53", AND A CHORD WHICH BEARS S08°17'12"W A DISTANCE OF 385.79 FEET;
2) CONTINUING ALONG SAID EASTERLY BOUNDARY, S16°41'39"W, A DISTANCE OF
93.03 FEET;
3) ALONG THE EASTERLY BOUNDARY OF THE FOOTHILLS FASHION MALL
EXPANSION, S16°41'36"W, A DISTANCE OF 482.09 FEET;
4) CONTINUING ALONG SAID EASTERLY BOUNDARY, 327.62 FEET ALONG THE ARC OF
A TANGENT CURVE TO THE LEFT, HAVING A RADIUS OF 1,114.57 FEET, A CENTRAL
ANGLE OF 16°50'30", AND A CHORD WHICH BEARS S08°16'21"W A DISTANCE OF
326.44 FEET;
5) CONTINUING ALONG SAID EASTERLY BOUNDARY, S00°08'53"E, A DISTANCE OF
170.00 FEET;
6) CONTINUING ALONG SAID EASTERLY BOUNDARY, S05°51'32"E, A DISTANCE OF
110.54 FEET;
7) CONTINUING ALONG SAID EASTERLY BOUNDARY AND ITS SOUTHERLY
EXTENSION, S00°08'53"E, A DISTANCE OF 451.00 FEET TO A POINT ON THE
SOUTHERLY BOUNDARY OF THAT TRACT OF LAND DESCRIBED IN THE SPECIAL
WARRANTY DEED RECORDED OCTOBER 30, 2012 AT RECEPTION NO. 20120076539 IN
THE OFFICE OF THE LARIMER COUNTY CLERK AND RECORDER;
THENCE ALONG THE SOUTHERLY BOUNDARY OF THE TRACTS DESCRIBED IN THE DEEDS
RECORDED AT RECEPTION NO. 20120076539, RECEPTION NO. 20050022855, AND RECEPTION
NO. 2001099396, THE FOLLOWING SEVEN (7) COURSES:
B - 3
1) 23.56 FEET ALONG THE ARC OF A NON-TANGENT CURVE TO THE LEFT, HAVING A
RADIUS OF 15.00 FEET, A CENTRAL ANGLE OF 90°00'00", AND A CHORD WHICH
BEARS N45°08'53"W A DISTANCE OF 21.21 FEET;
2) S89°51'07"W, A DISTANCE OF 214.00 FEET;
3) 312.91 FEET ALONG THE ARC OF A TANGENT CURVE TO THE RIGHT, HAVING A
RADIUS OF 398.41 FEET, A CENTRAL ANGLE OF 44°59'59", AND A CHORD WHICH
BEARS N67°38'53"W A DISTANCE OF 304.93 FEET;
4) N45°08'54"W, A DISTANCE OF 129.24 FEET;
5) 275.94 FEET ALONG THE ARC OF A TANGENT CURVE TO THE LEFT, HAVING A
RADIUS OF 351.34 FEET, A CENTRAL ANGLE OF 45°00'00", AND A CHORD WHICH
BEARS N67°38'54"W A DISTANCE OF 268.90 FEET;
6) S89°51'06"W, A DISTANCE OF 199.36 FEET;
7) 23.56 FEET ALONG THE ARC OF A TANGENT CURVE TO THE LEFT, HAVING A
RADIUS OF 15.00 FEET, A CENTRAL ANGLE OF 90°00'00", AND A CHORD WHICH
BEARS S44°51'06"W A DISTANCE OF 21.21 FEET TO A POINT ON THE EASTERLY
RIGHT OF WAY LINE OF JOHN F. KENNEDY PARKWAY;
THENCE S89°51'06"W, A DISTANCE OF 66.00 FEET TO A POINT ON THE WESTERLY RIGHT OF
WAY LINE OF JOHN F. KENNEDY PARKWAY;
THENCE 23.56 FEET ALONG THE ARC OF A NON-TANGENT CURVE TO THE LEFT, HAVING A
RADIUS OF 15.00 FEET, A CENTRAL ANGLE OF 90°00'00", AND A CHORD WHICH BEARS
N45°08'54"W A DISTANCE OF 21.21 FEET TO A POINT ON THE SOUTHERLY RIGHT OF WAY
LINE OF EAST MONROE DRIVE;
THENCE ALONG SAID SOUTHERLY RIGHT OF WAY LINE THE FOLLOWING FIVE (5)
COURSES:
1) S89°51'06"W, A DISTANCE OF 12.16 FEET;
2) 146.82 FEET ALONG THE ARC OF A TANGENT CURVE TO THE LEFT, HAVING A
RADIUS OF 221.32 FEET, A CENTRAL ANGLE OF 38°00'29", AND A CHORD WHICH
BEARS S70°50'52"W A DISTANCE OF 144.14 FEET;
3) S51°50'37"W, A DISTANCE OF 327.70 FEET;
4) 179.17 FEET ALONG THE ARC OF A TANGENT CURVE TO THE RIGHT, HAVING A
RADIUS OF 273.41 FEET, A CENTRAL ANGLE OF 37°32'46", AND A CHORD WHICH
BEARS S70°37'00"W A DISTANCE OF 175.98 FEET;
5) S89°23'22"W, A DISTANCE OF 138.44 FEET;
THENCE 23.56 FEET ALONG THE ARC OF CURVE TO THE LEFT, HAVING A RADIUS OF 15.00
FEET, A CENTRAL ANGLE OF 90°00'00", AND A CHORD WHICH BEARS S44°23'23"W A
DISTANCE OF 21.21 FEET TO A POINT ON THE EASTERLY RIGHT OF WAY LINE OF SOUTH
COLLEGE AVENUE;
B - 4
THENCE ALONG SAID EASTERLY RIGHT OF WAY LINE THE FOLLOWING TWO (2) COURSES:
1) ALONG THE WESTERLY BOUNDARY OF STRACHAN SUBDIVISION, SECOND FILING,
S00°19'07"E, A DISTANCE OF 576.93 FEET;
2) CONTINUING ALONG SAID WESTERLY BOUNDARY, S45°28'37"E, A DISTANCE OF
44.78 FEET TO A POINT ON THE NORTHERLY RIGHT OF WAY LINE OF HORSETOOTH
ROAD AS SHOWN ON THE PLAT OF SAID STRACHAN SUBDIVISION, SECOND FILING;
THENCE S03°26'10"W, A DISTANCE OF 105.31 FEET TO A POINT ON THE SOUTHERLY RIGHT
OF WAY LINE OF HORSETOOTH ROAD AS SHOWN ON THE FIRST REPLAT OF 1ST CHOICE
BANK OF FORT COLLINS;
THENCE N88°14'59"W, A DISTANCE OF 154.42 FEET TO A POINT ON THE SOUTHERLY RIGHT
OF WAY LINE OF HORSETOOTH ROAD AND THE WESTERLY RIGHT OF WAY LINE OF
SOUTH COLLEGE AVENUE AS SHOWN ON THE REPLAT OF LOTS 1, 2, 3 & 4 – CREGER PLAZA
SUBDIVISION;
THENCE N00°32'51"W, A DISTANCE OF 100.00 FEET TO A POINT ON THE WESTERLY RIGHT
OF WAY LINE OF SOUTH COLLEGE AVENUE AS SHOWN ON THE PLAT OF MATTERHORN
P.U.D.;
THENCE ALONG THE WESTERLY RIGHT OF WAY LINE OF SOUTH COLLEGE AVENUE THE
FOLLOWING TEN (10) COURSES:
1) ALONG THE EASTERLY BOUNDARY OF LOT 1, MATTERHORN P.U.D., N44°33'53"E, A
DISTANCE OF 9.22 FEET;
2) ALONG THE EASTERLY BOUNDARY OF LOTS 1 AND 2, MATTERHORN P.U.D.,
N00°19'07"W, A DISTANCE OF 503.93 FEET;
3) ALONG THE NORTHERLY BOUNDARY OF LOT 2, MATTERHORN P.U.D., S53°56'23"W,
A DISTANCE OF 44.81 FEET;
4) ALONG THE EASTERLY BOUNDARY OF LOTS 2, 3, 4, 5 AND 11 OF SOUTH MESA
SUBDIVISION AND THE SOUTHERLY EXTENSION THEREOF, N00°19'07"W, A
DISTANCE OF 561.00 FEET;
5) N89°51'53"E, A DISTANCE OF 10.71 FEET;
6) N09°43'23"E, A DISTANCE OF 22.91 FEET;
7) 29.36 FEET ALONG THE ARC OF A NON-TANGENT CURVE TO THE LEFT, HAVING A
RADIUS OF 167.50 FEET, A CENTRAL ANGLE OF 10°02'32", AND A CHORD WHICH
BEARS N04°42'09"E A DISTANCE OF 29.32 FEET;
8) N00°19'07"W, A DISTANCE OF 198.22 FEET;
9) S89°58'15"W, A DISTANCE OF 7.27 FEET TO THE SOUTHEAST CORNER OF LOT B,
VILLA P.U.D.;
10) ALONG THE EASTERLY BOUNDARY OF SAID LOT B, N00°19'07"W, A DISTANCE OF
226.70 FEET TO A POINT ON THE SOUTHERLY BOUNDARY OF TRACT A, RICHIE’S
EXPRESS CARWASH SUBDIVISION;
THENCE ALONG SAID SOUTHERLY BOUNDARY OF TRACT A, AND ALONG THE
SOUTHERLY BOUNDARY OF TRACT A, MOURNING SUBDIVISION, N89°59'07"W, A
DISTANCE OF 665.15 FEET TO A POINT ON THE EASTERLY RIGHT OF WAY LINE OF
MCCLELLAND DRIVE AS SHOWN ON THE PLAT OF SAID MOURNING SUBDIVISION;
THENCE ALONG SAID EASTERLY RIGHT OF WAY LINE, N00°39'53"E, A DISTANCE OF 20.17
FEET;
THENCE 23.39 FEET ALONG THE ARC OF A CURVE TO THE RIGHT, HAVING A RADIUS OF
15.00 FEET, A CENTRAL ANGLE OF 89°21'00", AND A CHORD WHICH BEARS N45°20'23"E A
B - 5
DISTANCE OF 21.09 FEET TO A POINT ON THE SOUTHERLY RIGHT OF WAY LINE OF WEST
FOOTHILLS PARKWAY AS SHOWN ON SAID MOURNING SUBDIVISION PLAT;
THENCE ALONG SAID SOUTHERLY RIGHT OF WAY LINE, S89°59'07"E, A DISTANCE OF 213.00
FEET;
THENCE CONTINUING ALONG SAID SOUTHERLY RIGHT OF WAY LINE, 69.10 FEET ALONG
THE ARC OF A CURVE TO THE LEFT, HAVING A RADIUS OF 160.00 FEET, A CENTRAL ANGLE
OF 24°44'46", AND A CHORD WHICH BEARS N77°38'30"E A DISTANCE OF 68.57 FEET TO THE
WESTERLY BOUNDARY OF LOT 1, RICHIE’S EXPRESS CARWASH SUBDIVISION;
THENCE ALONG SAID WESTERLY BOUNDARY, S00°04'53"W, A DISTANCE OF 14.69 FEET;
THENCE ALONG THE SOUTHERLY BOUNDARY OF SAID LOT 1, S89°59'07"E, A DISTANCE OF
407.26 FEET TO A POINT ON THE WESTERLY RIGHT OF WAY LINE OF SOUTH COLLEGE
AVENUE;
THENCE ALONG THE WESTERLY RIGHT OF WAY LINE OF SOUTH COLLEGE AVENUE THE
FOLLOWING FOUR (4) COURSES:
1) ALONG THE EASTERLY BOUNDARY OF SAID LOT 1, N00°19'07"W, A DISTANCE OF 78.17
FEET;
2) CONTINUING ALONG SAID EASTERLY BOUNDARY, N00°04'53"E, A DISTANCE OF 86.83
FEET;
3) ALONG THE NORTHERLY BOUNDARY OF SAID LOT 1, N89°59'07"W, A DISTANCE OF
37.50 FEET TO THE SOUTHEAST CORNER OF LOT 3, MOURNING SUBDIVISION;
4) N00°04'53"E, A DISTANCE OF 870.84 FEET (BEING THE WESTERLY RIGHT OF WAY LINE
OF SOUTH COLLEGE AVENUE AS SHOWN ON THE MOURNING SUBDIVISION, THE
POUDRE VALLEY MOTORS SUBDIVISION, AND THE REPLAT OF THE SWALLOW
SUBDIVISION);
THENCE S89°57'07"E, A DISTANCE OF 100.00 FEET TO THE POINT OF BEGINNING.
CONTAINING 89.729 ACRES MORE OR LESS AND BEING SUBJECT TO ALL EASEMENTS AND
RIGHTS-OF-WAY OF RECORD OR THAT NOW EXIST ON THE GROUND.
I HEREBY STATE THAT THE ABOVE DESCRIPTION WAS PREPARED BY ME AND IS TRUE
AND CORRECT TO THE BEST OF MY PROFESSIONAL KNOWLEDGE, BELIEF, AND OPINION.
THE ABOVE DESCRIBED TRACT IS BASED UPON PREVIOUSLY RECORDED PLATS AND
DEEDS AND NOT UPON AN ACTUAL FIELD SURVEY.
JOHN STEVEN VON NIEDA, COLORADO P.L.S. 31169
FOR AND ON BEHALF OF THE CITY OF FORT COLLINS
P.O. BOX 580, FORT COLLINS, CO 80522
EXHIBIT C
DESCRIPTION OF THE PROJECT
The Project is a mixed-use redevelopment of the existing Foothills Fashion Mall, which
will include a commercial/retail component, a commercial parking structure and up to 800
multi-family dwelling units on the Property. In its final form, the Project may include additional
land adjoining the Property.
The Project will deliver the following components:
1. Demolish portions of the existing Foothills Fashion Mall and renovate the original
structure into a one-level, enclosed shopping mall with no less than 358,003square feet of
habitable space. Any portions of the Mall which are removed shall be processed in such a
way as to safely remove all asbestos and lead paint contaminants. Where possible all
remaining materials shall be recycled such as doors, windows, cabinets, and fixtures,
concrete and masonry, wood, metals, and cardboard. Compliance shall be certified by the
hauler through receipts and signed affidavits.
2. Demolish various free standing buildings including the Commons at Foothills Mall
buildings, the Shops at Foothills Mall buildings, the Plaza at Foothills Mall, The Corner
Bakery, Christy Sports, Tres Margaritas and the Youth Activity Center building. Buildings
or portions of buildings which are removed shall be processed in such a way as to safely
remove all asbestos and lead paint contaminants. Where possible all remaining materials
shall be recycled such as doors, windows, cabinets, and fixtures, concrete and masonry,
wood, metals, and cardboard. Compliance shall be certified by the hauler through receipts
and signed affidavits.
3. Construct eight new commercial buildings along South College Avenue, ranging from
approximately 6,300 square feet to 38,000 square feet of gross building area.
4. Construct six new retail buildings internal to the site northwest of the existing enclosed
mall ranging in size from approximately 8,500 square feet to 17,000 square feet of gross
building area.
5. Construct four new restaurants ranging in size from approximately 6,000 square feet to
8,000 square feet of gross building area.
6. Construct a new Foothills Activity Center to replace the Youth Activity Center, as
described in the Agreement and Exhibit F.
7. Construct a new theater building with no less than 42,500 square feet of gross building area
located southeast of the new restaurants.
8. Construct a large east green area and smaller west green plazas providing no less than
14,000 square feet of landscaped park for use by the general public, to anchor the
pedestrian network.
9. Construct no fewer than 978 parking spaces via a four level parking structure, and
additional surface parking spaces.
10. Construct no less than 446 and up to 800 multi-family units distributed among five
building ranging in height from two to five stories, and including a mix of subterranean,
C - 1
surface, and structured parking spaces, all to be located in the Residential Component of
the Project.
11. High quality architectural and landscape design exceeding the City of Fort Collins Land
Use Code minimum standards and consistent in character with the approved Project
Development Plan dated February 7, 2013, including but not limited to, the following:
a. Fully shielded street, parking, pedestrian, and ornamental lighting;
b. Pedestrian oriented site amenities;
c. Hardscape materials and design;
d. Site drainage design incorporating runoff reduction measures and water quality
treatment, as described in the Fort Collins Stormwater Criteria Manual, to the
maximum extent practicable; and
e. Variety of high-quality building materials.
12. The final building detailing, materials, colors, and other site design details for the Project
are subject to Development Review staff review at the time of Final Plan and building
permit to assure the approved architecture and design and high quality materials, so as to be
substantially similar in quality to that shown in the depictions of the Project on Attachment
1 to this Exhibit C.
13. The Project shall comply with the 2012 International Building Code, as approved by the
International Code Council, in addition to all other applicable City codes and legal
requirements.
14. All new construction activities and deconstruction activities for the Project shall utilize the
following standards that are used by the City of Fort Collins Operations Services
Department for the remodeling or demolition of City buildings: (i) recycle 100% of the
concrete, rock, asphalt, dirt, bricks and metal (excluding those containing hazardous
materials) and (ii) achieve 70% diversion by weight or volume of all other materials.
15. The Developer and/or the District shall comply with the following commitments as
discussed at the City workshop for the Project environmental sustainability:
a. Implement dust control measures, such as spraying water or covering
stockpiles on all construction areas where there will be significant soil
disturbances or heavy equipment activity, covering all loads, and
minimizing airborne emissions associated with loading and unloading
materials;
b. Implement construction equipment emissions controls, such as using lower
emissions equipment performing at Tier IV emissions levels, minimizing
the use of diesel generators, avoiding residential areas with construction
equipment emissions, and minimizing warm-up time for construction
equipment and vehicles;
c. Consider on-site renewables;
d. Incorporate sustainable building materials and local materials in the Project,
such as flagstone from local sources, to the extent feasible;
e. Incorporate low energy use lighting, such as LED or compact fluorescents,
wherever feasible in site and building functions;
f. Ensure no-VOC or low-VOC emissions products are used in the Project;
g. Install at least two plug-in electric vehicle charging stations and conduit for
C - 2
additional stations on the Project site;
h. Minimize the use of asbestos containing materials in the Project;
i. Incorporate water conservation measures in the Project, such as indoor high
efficiency water fixtures and outdoor water features designed to maximum
sustainability and water conservation;
j. Minimize or prohibit vehicle idling on the Project site, including such
measures as avoiding the use of drive-throughs, and installing reminder
signs regarding the harmfulness of idling in delivery, parking and
drop-off/pick up areas, along with other efforts to encourage reduction in
vehicle idling;
k. Develop and implement a master plan for waste diversion from Mall
operations and public use, including establishment of a waste diversion goal
that includes retailer activities, residential areas and waste generation and
minimization and recycling by the general public using the Mall;
l. Incorporate features to promote multifamily recycling that exceed local and
industry standards;
m. Install and operate recycling depots for consolidation and processing of
materials in order to increase efficiency of recycling of materials from the
Mall, and establish and implement a plan for reuse of cardboard generated
at the Mall site;
n. Install and operate public recycling containers within the public space at the
Mall, and ensure that tandem recycling and trash bins are provided
throughout;
o. Encourage composting of food scraps from food-related activities and
establishments, and install small-scale on-site composting units, such as
“Earth Tubs;”
p. Encourage the use of compostable materials by food vendors at the Mall,
and discourage the use of Styrofoam and other non-compostable materials;
q. Construct the Project using measures that will accommodate ease of future
deconstruction, such as using screws instead of nails;
r. Utilize soil amendments as required in the City Code;
s. Use native plants as required in the Land Use Code;
t. Increase the transplanting of trees so as to maximize the number of existing
trees on the Mall site that are relocated on the site and preserved;
u. Create an underpass from the Mall site to MAX BRT system, as provided in
the Development Approvals;
v. Install and operate additional bike racks/lockers at the Mall and near the bus
stops, including capacity for no fewer than 1,400 bikes; and
w. Promote citizen and visitor education about environmental sustainability,
particularly in areas of public activities and events.
C - 3
x. For all portions of the Project under the control of the Developer or the District, the
Project shall use the services of a single provider for recycling and waste hauling
services.
y. The Developer shall establish a Tenant Criteria Manual in collaboration with the
City to detail specific existing City Code requirements that may apply to tenant
finish projects and to highlight goals and objectives for tenant opportunities for
sustainable projects.
16. In addition, the Project shall include the following off-site improvements, together with
other off-site improvements as required by the Development Approvals:
a. Construct pedestrian connection, for the purpose of connecting the Project to the
Mason Corridor and MAX transit facility, from the Project along the existing
alignment of the Larimer No. 2 Ditch extending from McClelland Street to the
western property line of the Property. Pedestrian connection shall consist of a
12-foot wide concrete sidewalk, as well as a pedestrian underpass under College
Avenue that is a minimum of 12’ wide with 8’ of clearance, internally illuminated,
and constructed of concrete.
b. Realign Larimer No. 2 Ditch from its from its current location immediately north of
Red Lobster restaurant so that it flows underground in a box culvert, south within
the College Avenue frontage road and day lighting at its current location
immediately south of Monroe Avenue.
C - 4
EXHIBIT D
ELIGIBLE COSTS AND ELIGIBLE IMPROVEMENTS
ELIGIBLE IMPROVEMENTS ELIGIBLE COSTS
Land Acquisition (for land underlying
District public improvements)
$ 5.5 million (Maximum amount; any surplus from
other line items may not be transferred
to this line item)
Parking Structure 9.6 million*
Demolition/ Abatement 3.9 million*
Furniture, Fixture & Amenities 1.4 million*
Foothills Activity Center 4.8 million (To the extent that Construction is
Completed on the Foothills Activity Center and such
construction conforms to the City Specifications set forth
in Exhibit F hereto, as confirmed by the City Manager, any
cost savings may be transferred to another line item)
Pedestrian Crossing / Culvert 3.0 million (Actual cost must be paid, even if it
exceeds this amount, which may
require a transfer from another line
item)
Relocation of Larimer County Canal No. 2
(including related land acquisition costs)
2.8 million*
Site Work 12.9 million*
Earthwork 2.3
Site Walls 0.7
Asphalt Paving 2.5
Striping & Signage 0.3
Curb & Gutter 0.5
Sidewalks 1.5
Landscaping/Irrigation 0.6
East Lawn – Landscaping & Irrigation 2.1
East Lawn – Sidewalks/Hardscapes 0.3
West Lawn – Landscaping & Irrigation 0.9
West Lawn – Sidewalks/Hardscapes 0.1
Tree Salvage/Storage/Maintenance Replant 0.3
Off-Site Work Asphalt Patching 0.2
Off-Site Work Signals/Right Turn Lanes 0.6
Utilities 4.5 million*
Sanitary Sewer 0.8
Storm Water 2.0
Water 1.0
Fire Water 0.7
D - 1
Soft Costs 4.6 million (Maximum amount; any surplus from
other line items may not be transferred
to this line item; amounts may be adjusted
among subcategories of this line item)
Parking Structure A&E 0.7
FAC A&E 0.3
Engineering 1.3
Environmental/Abatement Management 1.3
Materials Testing & Geotechnical 0.6
Fort Collins URA 0.4
TOTAL $ 53.0 Million
* Within the asterisked line items amounts may shift due to (1) actual costs of construction, and
cost savings in one line item may be applied to cost overruns in other line items and/or (2) based on
final determination by Bond Counsel of the eligible amount of public use.
D - 2
EXHIBIT E
PROCEDURE FOR DOCUMENTING, CERTIFYING AND PAYING ELIGIBLE COSTS
1. Applicability. All capitalized terms that are not specifically defined in this Exhibit E
will have the same meaning as defined in the Agreement. The Parties recognize and acknowledge
that in connection with issuance and sale of District Bonds, the District Bond Documents related to
such District Bonds may establish a different procedure for the requisition of District Bond
proceeds, in which event that procedure shall be substituted for the procedure in this Exhibit E to
the extent that they conflict with the procedures in this Exhibit E; provided, however, the Parties
agree to cooperate so that the District Bond Documents or bond documents related to District
Bonds will include a procedure for certifying the Eligible Costs payable under in-process
construction and other contracts to permit District Bond proceeds to be applied to direct payments
under such contracts.
2. Engineer. The District will select an independent licensed engineer experienced in the
design and construction of public improvements in the Fort Collins metropolitan area (the
“Engineer”). The Engineer shall be responsible for reviewing, approving, and providing the
certificate required by paragraph 3.
3. Documentation. The District or Developer as applicable will be responsible for
documenting all Eligible Costs. Eligible Costs may be certified when a pay application has been
submitted by a contractor that complies with the procedure set forth in this Exhibit E or upon
Completion of Construction of an Eligible Improvement. All such submissions shall include a
certification signed by both the Engineer and an authorized representative of the District or
Developer, as applicable. The certificate shall state that the information contained therein is true
and accurate to the best of each individual’s information and belief and, to the best knowledge of
such individual, qualifies as Eligible Costs. Such submissions will include copies of backup
documentation supporting the listed cost items, including bills, statements, pay request forms from
first-tier contractors and suppliers, 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.
E - 1
EXHIBIT F
CITY SPECIFICATIONS FOR FOOTHILLS ACTIVITY CENTER
The Foothills Activity Center (also referred to as “FAC”) shall be constructed
consistent with Resolution 2006-096, of the City Council of the City of Fort Collins,
which established a “Leadership in Energy and Environmental Design” green building
certification goal for new municipal buildings. The FAC shall include a minimum total
of 24,705 square feet (usable programming space plus circulation space). The FAC shall
incorporate the following programming spaces following the schematic layout that is
attached to determine space needs. The terms of this Exhibit F shall govern the design
and specifications for the FAC, except as otherwise agreed in writing by the parties as the
final design and construction of the FAC proceeds.
Program Square Feet (*)
Lobby Area (Including stairs and elevator) 1535 sf
Front Desk 180 sf
IT Closet 200 sf
Offices (x4), work & copy area 900 sf
(2) Child Development Rooms 900 sf
1 Multi-Purpose Room (lower level) 1000 sf
Lower level storage 200 sf
Lower Level Restrooms 400 sf
2-3 Multi-Purpose Rooms (2
nd
Floor) 2700 sf
2
nd
floor storage room 400 sf
2
nd
floor restrooms & IT space 700 sf
3
rd
floor Fitness/Dance Room with Storage 1690 sf
Cardio/Weight Room 2300 sf
Gymnasium 5820 sf
Changing Room (2) with lockers 600 sf
Gym Storage 300 sf
Top floor tumbling room 2165 sf
21,990 sf
*Excludes Circulation
The Foothills Activity Center must meet or exceed the following criteria:
• The FAC must meet City approved design standards:
http://www.fcgov.com/opserv/design-standards.php -- LEED GOLD certifiable at
a minimum. Building to be certifiable as meeting the LEED GOLD standard, with
all required documentation and assurances provided to the City in a manner and
time that would allow for possible certification.
• The Developer must coordinate weekly and upon request with the City of Fort
Collins, Operation Services Department to ensure the project management team
has access to all information regarding this project.
F - 1
• The Developer must participate in an integrated design program for the FAC, and
conform to the new requirements for Fort Collins Utilities Integrated Design
Assistance Program (IDAP) described
at: http://www.fcgov.com/utilities/business/conserve/rebates-
incentives/integrated-design-assistance
• Design lobby area so as to discourage loitering in that space. (Parents waiting to
pick up their child will be accommodated in an alternative area.)
• Interior finishes must meet or exceed the quality of finishes at Northside Aztlan
Community Center (NACC).
o Fitness/Dance floor and Gymnasium floor must meet or exceed the Ponder
quality of the wood floor.
o All finishes will be approved by the City Recreation Director
o The specification for the gym floor at Northside Aztlan Center is attached
• All spaces must be designed so as to be suitable for usage by both youth and
adults (Furniture sizes, restroom fixture heights, etc.)
• A space study is attached for planning and discussion purposes only. Final design
of FAC space shall be subject to review and approval by the City Recreation
Director.
• Upon completion of record drawings, the electronic media (cad or revit) files
must be provided to the City of Fort Collins, Operation Services Department.
• All building systems (such as, for example, plumbing, mechanical and heating,
ventilation and air conditioning) shall be designed and constructed to be
independent and separate from the systems for the remainder of the Mall. A
commissioning process to demonstrate and inform appropriate City staff
regarding all such building systems shall be carried out in advance of transfer of
the FAC to the City.
• Gymnasium Equipment must include a keypad controlled Porter system or
equivalent and 6 basketball standards, wrestling mat hoist, volleyball standard and
divider net that can be stored in the ceiling of the gymnasium.
• Gymnasium acoustical sound barrier system must be agreed upon in advance by
the City Recreation Director.
• Signage must be provided on FAC entryways and on both sides of the exterior of
the FAC Gymnasium with the City of Fort Collins logo and the words Foothills
Activity Center, and must be consistent with the standards for signage on City
facilities, all to the extent allowed by City of Fort Collins sign code.
• The FAC must be designed and constructed to allow the City to secure it with the
City’s access control system.
• City fiber must be provided to allow City staff access to City network system.
o This must be closely coordinated with City’s IT department.
o Installation must be carried out by H&H Data, the City’s fiber contractor.
• Conduit must be installed throughout the FAC to enable the City to add security
cameras and wiring during a designated time in the construction process.
• Casework must be provided for a front desk that meets the quality standards at
NACC.
• Cabinets and sinks must be provided in child development rooms and multi-
purpose rooms that meet the quality standards at NACC.
F - 2
• Data ports and electrical outlets must be provided throughout the FAC as
specified by the City Recreation Director.
• HVAC communication system must be provided that ties into the current City
Operation Services system, which is from Johnson Controls.
• IT closets must be provided that meet City standards.
• Full public access from the FAC to the parking structure walkway, and access to
and from the Mall Common Area during hours when the Mall is open to the
public. If determined to be technically feasible, the City may include in the City
Specifications an exterior doorway on the ground level to provide direct access to
and from the FAC lobby, or may add such a doorway in the future.
• Cardio/Weight Equipment satisfactory to the City must be provided to accessorize
the 2000 sq. ft.cardio area (Cardio equipment to meet or exceed Star Tek
recumbent bike model E-RB, upright bike model E-UB, stairmill model E-SM,
treadmill model E-TRx, cross trainer model E-CT, impact strength selectorize
equipment, dumbbells 5 lbs. – 80 lbs. plus rack, free weight equipment specified
by staff). The cardio area will require 4 wired TV’ outlets by the cardio area.
F - 3
F - 4
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F - 9
F - 10
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F - 13
F - 14
EXHIBIT G
ESTIMATED REVENUES FROM DISTRICT PROPERTY TAXES
AND PROPERTY TAX INCREMENT
Year
50 mills Retail
Property Tax
50 Mills Residential
Property Tax
Retail Property
Tax TIF
Residential
Property Tax TIF
2013 -- - - -
2014 $ 650,079 - - -
2015 650,079 - - -
2016 171,815 - - -
2017 1,410,397 - $ 1,242,559 -
2018 1,478,038 $ 136,533 1,357,058 $ 231,115
2019 1,478,038 136,533 1,334,161 231,115
2020 1,507,599 280,785 1,384,199 475,294
2021 1,507,599 280,785 1,360,844 475,294
2022 1,537,751 286,401 1,411,883 484,800
2023 1,537,751 286,401 1,388,061 484,800
2024 1,568,506 292,129 1,440,121 494,496
2025 1,568,506 292,129 1,415,822 494,496
2026 1,599,876 297,971 1,468,923 504,386
2027 1,599,876 297,971 1,444,139 504,386
2028 1,631,874 303,931 1,498,302 514,474
2029 1,631,874 303,931 1,473,021 514,474
2030 1,664,511 310,009 1,528,268 524,763
2031 1,664,511 310,009 1,502,482 524,763
2032 1,697,801 316,209 1,558,833 535,259
2033 1,697,801 316,209 1,532,531 535,259
2034 1,731,757 322,534 1,590,010 545,964
2035 1,731,757 322,534 1,563,182 545,964
2036 1,766,393 328,984 1,621,810 556,883
2037 1,766,393 328,984 1,594,446 556,883
2038 1,801,720 335,564 1,654,246 568,021
G - 1
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;
H - 1
• Any capital cost typically associated with the on-going maintenance of the Project,
including but not limited to:
o Repaving of parking lots;
o Replacement of landscaping identified on the Development Approvals;
o Replacement of site lighting, signs, or other decorations; and
o Any capital cost associated with releasing the original Gross Leasable Area,
unless otherwise noted.
H - 2
EXHIBIT I
MAXIMUM ANNUAL NET DEBT SERVICE ON THE DISTRICT BONDS
Without the prior written consent of the City Manager, the District Bonds shall be
structured so that the debt service requirements on the District Bonds do not exceed the
maximum annual Net Debt Service amounts set forth below. Neither the total maximum
nor the maximum annual Net Debt Service are intended to limit the amount of Pledged
Revenue that can be collected in any year and used to pay debt service payments then due
on the District Bonds or deposited to a Supplemental Reserve Fund, if required by the
District Bond Documents.
Year
Maximum Annual Net Debt
Service Requirements
2013 $ 0(1)
2014 0(1)
2015 0(1)
2016 6,270,450
2017 6,270,450
2018 6,280,450
2019 6,369,598
2020 6,806,078
2021 6,899,644
2022 7,081,282
2023 7,182,472
2024 7,368,326
2025 7,470,324
2026 7,663,578
2027 7,768,716
2028 7,970,850
2029 8,079,756
2030 8,285,546
2031 8,402,570
2032 8,615,088
2033 8,737,024
2034 8,957,212
2035 9,083,724
2036 9,314,968
2037 9,442,738
2038 9,678,442 (2)
Total: $ 179,999,286
________________
(1) The debt service on the District Bonds in these years is expected to be paid
from capitalized interest.
(2) Additional debt service requirements on the District Bonds are expected to
be paid from amounts on deposit in the reserve fund securing the District Bonds.
I - 1