HomeMy WebLinkAbout1994 Ordinance No. 072•
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ORDINANCE NO . 'l1::_
SERIES OP 1994
BY AUTHORITY
COUNCIL BILL NO . 74
INTRODUCED BY COUNCIL
MEMBER HABENICHT
AN ORDINANCE AUTHORIZING CERTAIN AMENDMENTS TO THE FINANCING
DOCUMENTS EXEC UT ED IN CONNECTION WITH THE CITY OF ENGLEWOOD,
COLORADO, MULTIFAMrLY HOU:31NG REVENUE BONDS (THl!J MARKS
APARTMENTS) SERIES 1985 ; RATIFYING CERTAIN ACTION HERETOFORE TAKEN;
AUTHORIZING THE EXECUTION AND DELIVERY BY THE CITY OF A CERTAIN
• SECOND SUPPLEMENTAL INDENT'JRE OF TRUST AND SECOND AMENDMENT TO
WAN AGREEMENT AND CERTAIN CER'l:IFICATES IN CONNECTION THEREWITH.
WHEREAS, t.he City of Englewood, Colorado (the "City") i1 authorized by the County and
Municipality Development Revenue &nd Ad, constituting Sections 29-3-101 through 29-3-
123 , inclusive, Colorado Revised Statute• (the "Act"), to finance and refinance one or more
~rojects, includine any land, buildine or other improvement, and all real and penonal
propertie,, whet.her or not in existence, which aball be suitable for residential facilitiu for
low and middle-income familieo or penon1 and intended for use u the sole place of
residence by the owners or intended occupants to the end that more adequate residential
hou1ine facilitie s for low and middle-income families and persona may be provided, which
promote the public health, welfare, oafety, convenience and prosperity; and
WHEREAS, the Ad authorized the City (i) to i,sue its revenue bonds for the purpose of
defraying the cost of finnncing or refinancing any project and all incidental expenses
inc:mred in connection with the issuance of such bonds, (ii) to enter into financing
agreements wit.h othen fort.he purpose afprovidine revenues to pay the bonds authorized to be
issued under the Act and upon sueh terms and conditions as the City Council cftbe City mey
deem advisable, and (iii) to secure the payment of the principal of, premium, if any, and
interest on such bonds as provided in the Ad; and
WHEREAS, the City has previously issued and sold its Variable Rate Demand
Multifamily Housing Revenue Bonds (The Mnrks Apartments) Series 1985, in the aggregate
principal amount of $18,100 ,000 (the "&nds"), in order to provide financing to HG Venture
II, a Texas limited partnership (the "Original Developer"), for the acquisition, construction
and installation of a multifamily rental housing project (the "Project") located within the
City, to be occupied partially by individuals of low or moderate income within the mearung of
and for the period required by Section 103 (b) (12) oft.he Internal Revenue Code of 1954, as
i\mended (the "1954 Code"), all for the public purpose of providing more adequate residential
housing facilities for kw and mlddle-income families and persons ; and
WHEREAS, the City has previously approved the sale of the Project by the Qrieinal
Developer to Wellsford Group , Inc ., whose ownenhip in t.he Project is held by Wellsford
Marks B Corp ., a Colorado ccrporat;;on (the "Developer"), and has approved the amendment
oftJ-,e Indenture of Trust dated ao of December 1, 1985 by a Fint Supplemental Indenture of
Trust dated as of October 1, 1993 (as amended, the "Indenture") between the City and Mellon
Bank, N.A., as Trustee (the "Trustee"), and has approved the amendment of the Loan
Agreement dated as of December 1, 1985 by a Fint Amendment to Loan Agreement dated as
October 1, 1993 (as amended, the "Loan Agreement") between the City and the Developer;
and
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WHEREAS, the City hu been requested to approve certain other amendmenta t.. the
Indenture and the Loan Agreement u requeated by the Developer to utisfy certain •
requirement, impoaed by Standard & Poor'• Rating Group ("P&P") in order to maintain the
rating uligned by S&P to the Bonds ; and
WHEREAS, the City has determined to approve such changes •ubject to the approval of the
Trustee and the Developer; and
WHEREAS, there have been presented to the City Council Ci) the proposed form of Second
Amendment to Loan Agreement dated u of November 1, 1994, between the City and the
Developer (the "Amended Loan Agreement") and (ii) the proposed form of Secor,1
Supplemental Indenture of Trust with reapect to the Bonda dated as oCNovember 1, 1994 (the
"Supplemental Indenture") between the City and the Trustee;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE Cfl'Y OF
ENGL EWOOD , COLORADO, THAT :
~-All action (not inconsistent with the provisions of this ordinance) heretofore
taken by the City Council and officers of the City directed toward the aale of the Project to the
Developer and the amendment of the Indenture and the Loan Agreement therefon be , and the
same is hereby, ratified, approved and confirmed.
~-The forms, terms and provisions of the Amended Loan Agreement and the
Supplemental Indenture are hereby approved and the City shall enter into the Amended Loan
Agreement and the Supplemental Indenture substantially in the forms of such documents
presented to the City Council at this meeting; and the Mayor of the City is hereby authorized
and directed to execute and deliver the Amended Loan Agreement and the Supplemental
Indenture and the City Clerk is hereby authorized and directed to affix the City seal to and to •
attest the Amended Loan Agreement and the Supplemental Indenture.
~-The officers of the City shall take all action in conformity with the Act
necessary or reasonably requlred to effectuate the carrying out, giving effect to and
consummating the transactions contemplated by this ordinance and =he Amended Loan
Agreement and the Supplemental Indenture, including without limitation, the execution and
delivery of any certificates to be delivered in connection with the amendments.
~-The cost of financing the Project will continue to only be paid out of the proceeds
of the Bonds and none of the Bonds will be the general obligation of the City nor shall any of
the Bonds, including interest thereon, constitute the debt or indebtedness of the City within the
meaning of th e Constitution or statutes of the State of Colorado or ofth, home rule charter of
any political subdivision thereof, including the City, nor shall anything contained in this
ordinance or in the Bonds, the Loan Agreement, the Amended Lo1111 Agreement, the
Indenture, the Supplemental Indenture, or any other instrument give rise to a pecuniary
liability of the City or a charge upon the general credit or taxing powers of the City, nor shall
the breach of any agreement contained in this ordinance, the Bonds, the Loan Agreement, the
Amended Loan Agreement, the Indenture, the Supplemental Indenture impose any
pecuni try liability on the City or a charge upon the general credit or taxing powers of the
City , U. , City having no power to pay out of its general fund , or otherwise contribute any part
of th • .osts of financing the Project, nor power to operate the Project as a business or in any
manner, nor shall th e City condemn any land or other property for the Project nor contribute
any land or other property to the Project. Nothing contained in this ordinance or the Loan
Agreement, the Amended Loan Agreement, the Indenture or the Supplemental Indenture
shall give rise to any pers onal or pecuniary liability of any officer, employee or ag en t of the
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• Scs:t.imi.b. If any section, paragraph, clause or proviaion of thi1 ordinance ■hall for any
reuon be held to be invalid or unenforcea ble, the invalidity or unenforceability of ■uch
aection , paragraph, c1auae or provision 1ha1J not effect any of the remaining provision, of
this ordinance .
~ All bylaws, ordera, resolutions and ordinance•, or part& thenof, inconaiatent
herewith and with the documents hereby approved, are hen.by repealed t.o the extent only of
auch inconsistency. Thia rep-0aler shall not be conatrued u reviving any bylaw, order,
resolution or ordinance, or part thereof.
Introduced, read in full , and pa saed on first reading on the 5th day of December, 1994 .
Published as a Bill for an Ordinance on the 8th day of December, 1994 .
Read by title and passed on final reading on the 19th day of December, 1994.
Published by titl e as Ordinance No . 7!~ Series of 1994, on the 22nd day of December,
1994.
I, Loucrishia A. Ellis, City Clerk of the City of Englewood, Colorado, hereby certify that
the above and for egoing is a true copy of the Ordinance paBSed on final reading and
published by title as Ordinance No . 72:, Series of 1994 .
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Loucrishi• A. Ellis
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SECOND SUPPLEMENTAL
INDENTURE OF TRUST
11fE i..Il Y OF EJGI ·,i.,v JD, COLORADO
and
MELLON BANK, N.A.,
as Trustee
Dated as of November I, 1994
Relating to
City of Englewood, Colorado
Multifamily Housing Revenue Bonds
(The Marks Apartments)
I 985 Series B -SI 8, I 00,000
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SECOND SUPPLEMENT AL
INDENTURE OF TRUST
TIDS SECOND SUPPLEMENT AL INDENTURE OF TRUST (this "Supplemental
Indentur\•") is made and entered into as ofNovanber I, 1994, by and between the CITY OF
EN GLEWOOD , COLORADO , a municipal corporation an.: political subdivision of the State of
Colorado (the "City "), and MELLON BANK, N .A., a national banking association organized and
existing under the laws of the United States of America, with its principal corporate trust office
located in Pirtsburgh, Penn sy lvania, and being qualified to accept and administer the trusts hereby
created (the "Trustee ").
WITNESSETH ·
WHEREAS, the City is authorized by the Co unty and Municipality Development
Re venue Bonds Act, constituting Article 3, Title 29, Colorado Revised Statutes (the "Act "), to
finance one or more proj~ including any land, building or other improvement, and all real and
pCTSOnai properties, whether or not in existence, which shall be suitable for residential facilities for
low-and middle-income families and pCTSODS and intended for use as the sole place of residence by
the ownm or intended occupants 10 the end that more adequate residential housing facilities for low-
and middle -income families and persons may be provided, which promo•~ the public health, welfare ,
safety, crnv,,nience and prosperity ; and
WHEREAS , the Act authorizes the City (a) 10 issue its revenue boods for the pwpose
of defray' .:,g the cost of financing any project and all incidallal expenses incurred in comiection with
the issuance of such bonds and (b) 10 se<:ure the payment of the principal of, premium, if any, and
interest on such bonds as provided in the Act; and
WHEREAS, pursuant to the Act, the City has issued its Variable Rate Demand
Multi famil y Housin g Re venue Bonds (The Marie., Apa~nents) 198 5 Se rie s B in the aggregate
principal am ount ofSl8,IOO ,000 (the "Bonds ") a..s provided in an Indenture ofTrust dated as of
December I , 1985, as amended by a First Supplemental Indenture of Trust dated as of October I,
1993 , (as amended, the "Indenture"), between the City and the Trustee ; and
WHEREAS , the loan to the Developer of the proceeds of the Bonds is evidenced by
a Loan Agreement dated as of December I, 1985 , as amended by a First Amendment to Loan
Agreement dated as of October I, 1993, (:is amended, the "Loan Agreement") between the City and
Wcllsfo rd Marks B Corp . (the "Developer "); and
WHEREAS , the Developer has requested the City and the Trustee further amend the
Indenture and the Loan Agreement to incorporate_ certain changes required by Standard & Poor's
Rating Group , which changes a-:c: presently contained in the Second Amendment to Deed of Trust
dated as of October I , 1993 anci in that certain Investment Instruction dated January 20 , 1994, to
maintain the rating on the Bonds ; and
WHE'. r.:AS, after due dehlieralio,1, the City and the Trustee have determined to
amend the Indent -:c as provided in this Suppleme.,ta! Indenture. •
NOW, THEREFORE, THIS SUPPLEMLtIT AL INDENTIJRE WITNESSElH :
Section I. Defined ICIIJJs . Section 1.01 r,f thr lnd,:nturc is hereby amended and
supplemented by !he amendment of the following definition:
Investment Securities " means (i) direct general obligations of the United States of
America; (ii) obligations, the payment of principal of 1111d intrrcst on which is unconditionally
guaranteed by the United States of America; (iii) bonds , debentmes, panicipation certificates or
notes issued by any of the following: Banks for Cooperatives . Federal Financing Bank, F ,deral Land
Banks , Federal Home Loan Banks, Federal Intermediate Creo..t Banks, Federal National Mortgage
Association, Expon-Import Blllk oftbe United States, Srudent Loan Marketing Association, Farmers
Home Ad.ministration, Federal Home Loan Mongage Corporation or Government National
Mortgage Association, or any other agency or corporation which has been or may hereafter be
created by or pumiant to an Act of Congress of the United States of Aruerica as an agency or
instnm.Y.atality the!eof; (iv) bank repurchase agreements which are fully secured by obligations of
a ctJara:',r desaibed in clauses (i) or (ii) above; (v) sbb.cs of an investment company registered
under the ~edcral Investment Company Act of 1940 whose only investments me obligations ofa
character descnl>ed in clauses (i) or (ii) above ; (vi) unsecured investment agreements with banks,
trust compames, national bankillg a.,sociarlons or other depository instituti011S provided that any such
institution bas a combined capital and surplus of at least $25,000,000171d has a long-tmn unsecured
debt rating of al least AA-3 by the Raring Agency ; and (vii) in the case of amounts held hereunder
and required to be invested al a restricted yield, any obligations on which the interest is exempt from
federal income taxation which arc l"lllt:d ',y the Rating Agency in its highest long-term or sbon-term
rating category .•
Section 2. Addjtional Bonds. The City hereby au:es that notwithstanding the
provisions of Section 2.08 of the l'ldenturc it shall not request, and the Trustee agrees it shall not
approve , the issuance of any Additional Bonds under the Indenture.
Section 3. Piscbme of!ndeorure . Section 10.DI of the Indenture is hereby amended
by the additior. of the following paragraph at the end of such Section :
Notwithstanding any other provisions of this Indenture , tlie Trust!¥. shall not
coo:.:der defeased hereunder any Bonds unless the Developer shall prc,;ide to the
T rustC<· upon any defeasancc of any Bond or Bonds, an opinion of counsel addressed
to the Trustee and dated as of the date of defeasance that (i) the cash and/or
government obligations delivered to the Trustee to effect tht defeasance (the
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"Defeuance Collateral") bu been duly and validly a.,signcd and clcliveml to thc
Trustee; (ii) thc security iJJlt:n:st of the Trustee for the ratable benefit of the owners
of the Bonds with respect to the Defeasance Collateral, is a fim priority perfected
security intaest as seairity for payment of the Bonds, which opinion may contain,
and be subject to, i:onditions, excepljons or qualifications as arc then customarily
included in such opinions, (iii) making the payment which accompanies such opinion
would not constitute an avoidable preference 1U1der Section 547 of the United Swes
Bankruptcy Code, 11 U.S.C . §§ 101-1330 (the "Bankruptcy Code") or 1U1der
applicable state law in the event of a tiling of a petition for relief 1U1der the
Bankruptcy Code or such applicable state law by or against the Developer, and (iv)
the Defeasance Collal,:ral would not be patt of the bankrupt estate under Section 54 l
of the Bankruptcy Code or be subject to the automatic stay under Section 362 of the
Bankruptcy Code in the event of a tiling of a petition for relief under the Banlcruptcy
Code by or against the Developer.
Section 4 . Infonnation Proyjded to Developer . The Trustee shall provide 10 the
Developer, in writing , the name and address of any registered owner of the Bo nds who shall have
requested information from the Trustee pursuant to Secti on 5.24 of the Loan Agreement, which
Section was added to the Loan Agreement by Section JO of the Second Amendment to Loan
Agreement dated as of November · 1994 .
Section 5. I ,mtation of Rjghts to Parries and Bondholders . Nothing in this
·supplemental Indenture, the lndc:nture or in the Bonds expressed or implied is intended or shall be
constrUed to give to any person other than the City, the Trustee, the Developer, the Agents and the
holders of the Bonds any legal or ,quitable right, remedy or claim 1U1der or in respect of this
Supplemental Indenture, the Indenture or any covenant, condition or provision therein or herein
contained ; and all such covenants, conditions and provisions arc and shall be held to be for the sole
and exc lusive benefit of the Authority, the Trustee, the Developer, the Agr:its and the holders of the
Bonds .
Section 6. Sg,arabjijty of lnya)jd Proyjsjons . In case any one or more of the
provisions contained in this Supplcmc:ntal Indenture or in the Bonds shall for any reason be held to
be invalid, illegal or unenforceable in an y respect, such invalidity , illega)jty or unenforceability shall
not affect any other provision of the Indenture or this Supplemental Indenture , but this Supplemental
Indenture shall be construed as if such invalid or illegal or unenforceable provision had never been
contained herein .
Section 7. Wajver of Persona) I jabj!jty . No present or future councilmember,
offi=, agent or employee of the City, shall be individually or personally liable for the payment of
the principal of or premium or interest on the Series B Bonds or be subject to any personal liability
or accountability by reason of the issuance thereof; and all such liability is hereby expressly waived
and released as a condition of the execution of this Suppkmental Ir.denture. It is und o1stood and
agreed by the Developer that the City an d its officers and eIUployces shall incur no pecuniary
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liability bereuodcr, and shall not pay out of its 1encnl fimd or otherwise contribute any part of the
cost and shall not be liable for any expenses related bm:to . •
Section 8. Execution in 5eYml Cowlcmart,. This Supplemen!N lndenr..irc may be
executed in any number of cowrterJmts and each of such counterparts shall for all plllpOses be
deemed to be an original; and all such counterparts, shall together constitute l!lrt one and the same
instrumenL
Section 9. Goypnjng yw. This Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of Colorado.
IN WITNESS WHEREOF , the City of Englewood, Colorado has caused this
Supplemental Indenture to be signed in its name and its seal to be hereunto affixed and attested by
its duly authorizl:d officers, and Bank, NA., bas caused this Indenture to be signed in its name and
its seal to be hereunto affixed, all as of the day and year first above written .
CITY OF ENGLEWOOD, COLORADO
By :_,. __________ _
Mayor
[SEAL]
Attest:
City Clerk
MELLON BANK, NA., as Trustee
By : __________ _
Title : __________ _
[SEAL]
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SECOND AMENDMENT TO
LOAN AGREEMENT
Between
CITY OF ENGLEWOOD , COLORADO
and
WELLSFORD MARKS B CORP .
Dated as of Novem ber I , I 994
SECOND AMl:."NDMENT TO
LOAN AGREEMENT
TIDS SECOND AMENDMENT TO LOAN AGREEMENT dated as of November I,
1994 (the "Amended Loan Agreement"), by and between the CITY OF ENGLEWOOD,
COLORADO, a municipal corporation and political subdivision of the State of Colorado (the
"City"), and WELLSFORD MARKS B CORP., a corporation duly organized and existing Ullder the
laws of the State of Colorado , as successor in interest to HG VEN11JRE II , a limited partne,ship
organized and existing under th e laws of the State ofTexas, (the "Developer").
WI TN ES SE TH:
RECITALS
WHEREAS, the City is authorized by the County and Municipality De-,elopment
Revenue Bond Act, coostituting Article 3, Title 29, Colorado Revised Statutes (the • Act "), to finance
one or more projects , including any land, building , or other improvement, and all real and personal
properties , whether or not in existence, which shall be suitable for residential facilities for low-and
middle-income families or persons and intended for use as the sole place or residence by the owners
or intended occupants to the end that more adequate residential housing facilities for low-a.:d
middle-income families and persons may be provided, which promote the public health, welfare ,
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safety, convenience and prosperity ; and •
WHEREAS , the Act authorizes the City (a) to issue its revenue bonds for the purpose
of defraying the cost of financing any project and all incidaital expenses incurred in connection with
the issuance of such bonds, (b) to enter into financing agn:ements with others for the purpose of
providing n:venues to pay bonds authorized to be issued under the Act and upon such terms and
conditions as the City Council of the City may deem advisable, and (c) to secure the payment of the
principal of, premium, if any , and interest on such bonds as provided in the Act; and
WHEREAS, the City bas issued its Variable Rate Demand Multifamily Housing
Revenue Bonds (Tbe Marks Apartments) 1985 Series B in the aggregate principal amount of
Sl8,IOO ,OO0 (the "Bonds ") as provided in an Indenture ofT=1 dated as of December I , 1985 , as
amended by a First Supplemental Indenture ofTrust dated as of October 1, 1993 (as amended, the
"Indenture"), between the City and Mellon Bank N.A., as trustee (the "Trustee"); and
WHEREAS , the loan to the Developer of the proceeds of the Bonds is evidenced by
a Loan Agreement dated as of December 1, 1985, as amended by a First Amendment to Loan
Agreement dated as of October I, 1993 (as amended, the "Loan Agreement"), b-'tWCen the City and
the Developer ; and
WHEREAS, the Developer bas requested the City and the Trustee ft:rthcr amend the
Indenture 11nd the Loan Agreement to incorporate certain cb.'lnges required by Standard & Poor's
Rating Group ("S&P"), which changes are presently contained in the Second Amendment to Deed •
of Trust dated as of October I, 1993 and in that certain Investment Instruction dated January 20 ,
• 1994, in order to maintain the rating on the Bonds; and
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WHEREAS , after due deliberation. the City bas determined to approve the following
amendments to the Loan Aifeemcnt; and
NOW TiiEREFORE, in consideration of the premises and the respective
represeotations and covenants herein co lllaincd, the parties hereto agree as follows :
Section I . Acknowlf:da;mcnt and Consent IP Second Supplemental Indenture of
Inm-The De veloper hereby acknowled ges, consents to, and agrees to be bound by the amendments
made to the Indenture in the Second Supplemental Indenture ofTrust dated as of November I, 1994
between the City and the Trustee .
Section 2. Qcfinjtions . Section 1.1 is hereby amended and suppl!mentr.d by the
addition of the foll owing definitions :
"Permitted Activities " means, UDtil repayment of all amounts due and owing
pursuant to this Agreement, the sole business of the Developer shall be to acquire,
own, openuc, manage , finance , refinance, maintain, repair, replace , sell , exchange
and transfer the Project aod related properly , and to enpge in all such other activities
and to exercise all such other powers, rights or privileges now or hereafter permi rtcd
to co rporations under the laws of the Swc of Colorado that are inc idental to or
connected with the foregoing activities or occessary or desirable to accomplish the
foregoing .
"Second Amendment to Deed of Tr,151" means the Second Amendment to
Deed ofTrust dated as of October I , 1993 be1 ween the Trustee and the Developer.
Section 3. RatiQi! Review . Section 5.7 (a) of th e Loan Agreement is hereby
amended to read as follo ws:
(a) The Developer shall certify annuall y, within thirty days after December
3 1, 1994, that no Event of Default shall have occurred and be continuing under th e
terms of the Loan Agreement and that no event has occurred that with the passage
o f time or the giving of notice , or both, would constitute an Event of Defaul t, or if
an Event of Default bas occuncd and is continuing under the terms of the Lor.n
Agreement, a certificate indicating the correcti ve acti on, if an y, that the De ve loper
. is pursuing to cure such Event of Default
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Section 4. lpsunmcc · Majnbma; and Repair. Section S.B(a) of the Loan Agn:ement
is hereby amended and supplemented by the deletion of the existing Section S.B(a) and the addition •
in its place of the following:
(a) The Developer agrees and covenants (i) to maintain or cause to be
maintained and continuously in effect, at its sole cost and expense , all insw'ance
polices required pursuant to Section 2 of the Second Amendment to Deed ofTrust,
(ii) to assign all such policies or the proceeds thereof to the Trustee as provided in
Section 3 of the Second Amendment to Deed ofTrust, (iii) to notice the appropriate
insurance can iers in the event of any daruace or loss to the Premises (as defined in
the Second De :d of Trust), and not to adjust any damage or loss payment except as
provided in Section 4 of the Second Amendment to Deed ofTrust, (iv) to apply the
proceeds of any insurance policy required pursuant to the Second Deed of Trust in
the manner provided in Section 5 of the Second Amendment to Deed of Trust, and
(v) 10 promptly reimbune the Trustee upon demand for all of the Trustee's reasonable
expenses incurred in connection with the collection of insw'ancc proceeds and all
other such expenses, «>gcther with interest on such expenses , in the manner and the
amounts specified in Section 6 of the Second Amendment to Deed ofTrust.
Section S. I jmjtation on Addjtjona) In<Jcbtc:;dn,;$s A new Section 5.19 of the Loan
Agreement is added, which shall read as follows :
Section 5.19. lnsuftjcjency of Addjtjonal Ljens . The Developer hereby •
agrees, except as otherwise provided in Section 11 of the Second Amendment to
Deed of Trust, until repayment of all amounts due and owing pursuant to this
Agreement have been paid, not to incur my indebtedness except that permitted
pursuant to Section 8 of the Second Amendment to Deed of Trust and further agrees
that no Additional Bonds shall be issued pursuant to the tmns of Section 2.08 of the
Jndenture .
Sec ti on 6. I jmjtation on Addjtiona) Ljer,s. A new Section 5.20 of the Loan
Agreement is added, which shall read as follows :
Section S .20 Ljmjtation on Addjtiona) Liens . Except as otherwise provided
in Section 11 of the Second Amendment to Deed of Trust, the Developer shall not
create , incur, or suffer to exist any lien, encumbrance , or charge on the Trust Estate
or an y pan thereof, whether on a parity , junior or prior to the lien of the Deed of
Trust, other than those permitted by Section 9 of the Secooa Amendment to Deed of
Trust. In no event do an y current liens , uor may any additional liens be created ,
which impair the use of the property as a multi -family housing project or materially
impair repayment of the atnounts owed pursuant to this Agreement. Th e prohibition
on additional liens contained herein sball include , without limitatio n, th e issuance of
Additional Bonds pursuant to Section 2.08 of the Indenture.
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• Section 7. Payment of Bal Eswte Iaxcs-A new Section 5.21 of the Loan
Agreement is added, which shall read as follows :
Section s .21 . Payment of Real Estate Taxes . The Developer agrees, cxe<.-pt
as otherwise provided in Section I I of the Second Amendment to Deed of Trust, it
shall annually evidence to the Trustee in form satisfactory to the Trustee its payment
of all i;pplicable real estate wees applicable to the Project.
Sc,,ti on 8. Addjtjopal Repres;ntatigps and Cgy;nants of Developer. A new Section
5.22 of the Loan Agreement is added. which shall read as follows :
Section 5.22 . A,dditiopal Representations and Co y;nants of~. The
Developer further rep=ts and covenants that :
(a) The onl y issued and outstanding class of stock of the Developer is its no par
value common stoclc, and that Wellsford Residential Property Trust, a Mmylar:d real
estate investment trust (the "Parent "), owns all the issued and outstanding sha :cs of
stock of the Developer;
(b) Until repayment of all amounts owed under this Agreement, the
De ve loper mall not terminate its corporate existence , merge with any other
corporation or entity ar amend its articles of incorporation to change the nature and
scope of the business which it is permitted to conduct themmdcr;
(c) Until repayment of all amounts owed under this Agreement, the
Developer shall at all times (i) maintain the Developer's books, financial S!atements ,
accounting records and other corporate documents and records separate from those
of the PlUCl!t or any other entity, provided that the Developer may rcpon its income
or losses for any fiscal year as a member of a consolidated iiroup for federal incom r.
we purposes, (111 not commingle the Developer's assets with those of the Parent ur
any other entity , (ii) maintain the Developer's books and account payroll separate
from those of the Parent and its afliliates , (i v) act solely in its corporate name and
through its own authorized officers , contractors and agents , and (v) separatel y
manage the Developer's liabilities from those of the Parent and its affiliates, and pay
its own liabilities, from its own separate assets . The Developer covenants to observe
corporate formalities , and to cause its financial statements to be prepared in a manner
that indicates the separate existenc e of the corporation and its assets and liabilities .
The De veloper covenants not to assume or guaranty the liabilities of Wellsford
Residential Propeny Trust or its affiliates. The Developer further covenants that it
will not conduct business with any of its affiliates or its parent, Wellsford Residential
Propeny Trust, except in the ordinary course of business and upon fair and
reaso nable terms no less favorable to either party than would exist in a comparable
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arm's-length transaction. The Developer will not make any loan or other advances
which constitute indebtedness to any of its affiliates . •
(d) Until repayment of all amounts owed under this Agreement,
notwithstanding any provision of the Indenture to the contrary , when consent of the
ownern of the Bonds is requiffil under the Indenture to effect an amendment of the
Indenture, the Loan Agreement, the Note or the Deed of Trust, the Developer will not
consent to any such amendment requiring consent of the O"-ner.; of the Bonds and the
Developer without the written consent of the owners of 66 2/3% of the aggregate
principal amount of the Bonds then outstanding . Such consent shall be acquiffil in
the same manner as is set forth in Article IX of the Indenture .
(e) The title exceptions stated in policy of title insurance obtained by the
Developer in connection with its acquisition of the Project and any and all other liens
and encumbrances of any kind arising thereafter do not, and will not, impair the
Developer':. use of the J>n,)cct as a multifamily housing project and will not
materiall y impair the Dcve:oper's repayment of the amounts due and owing under
this Loan Agreement
Section 9. B.•ting Reyjcw . A new Section 5.23 of the Loan Agreement is added,
which shall read as follows :
Section 5.7.3 . B•ting Rcyjew. The O,,,reloper further represents and
covenants that the l'leveloper shall submit such qlWtcrly and annual infonnation as
shall be reasonably requested by the Rating Agency in order to permit the Ratiag
Agency to complete ., rating review for the Project In addition, the Developer shall
not permit either (i) any sale of the Developer's stock which would cause more than
25% of such stock to be held by any r,arty or parties other than Wellsford Residential
Property Trust or (ii) transfer, sell or otherwise convey the Project to any person or
entity , unless the Rating Agency bas reconfirmed that such sale or transfer in and of
itself will not canse the rating on the Bonds to be reduced from that rating which
prevailed immediately prior to such sale or tr a.nsier All fees, charges and expenses
of any such rating review shall be paid by the Develope r without any set-off of
amounts otherwise due under tbe Loan Agreement. The Developer is required
hereunder to assure that a rating on the Bo nds from the Rating Agency , or its
successors , is publicl y available for the Bonds . In no event, however , is the
Developer required to maintain a particular grade of rating on the Bonds other than
in the case of a sale or tranSfer described in the second sentence of this Section.
Section JO . Raring Rcyjcw . A new Section 5.24 of the Loan Agreement is added,
which shall re,:d as follows :
-5-
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• Section 5.24 . lpfgnnaripn Rgx,ajna . The Developer shall furnish 1o the
Trustee within forty-five days of the cod oC each calendar qumter, commencing
December 31, 1994, an income stalemcnt a.id balance sheet reflcctina the financial
results for the Project for the preceding calendar quarter. At the same time as the
preceding fir<mCial reports arc delivered lo !ht Trustcc, the Developer shall furnish
its most rec... • rent roll reflecting the occupancy of the Project, rental rates,
apartment occupancy mix, lease expirations dates and other customary information
which may be reasonably requested. Th e De veloper shall i.1so furnish within 120
days of the end of each calendar year, a compilation report reviewed by an
independent certified public accountant of the results of operations of the Project.
The Dcvclr 'lCf shall also provide by postage prepaid first class mail a copy of the
information provided to !ht Trustee pursuant to this Section, to each registered owner
who shall have n:qucstcd such information from the Trustee . The Trustee shall
provi de to the Developer, in writing, the name and address of any registered owner
of the Bonds who shall have requested such information from the Trustee .
Section 11 . AppljcaiiPD pf Net Proceeds . Section 6.2 of the Loan Agreement is
hereby amended and supplemented by the addition of the following paragraph at the end of Section
6.2:
Notwithstanding any other provision hereof, the Developer agrees to the i=vocable
assignment to the T rustcc of the award or payment (but not in excess of the
iodcbtedncss owing under this Agreement) which becomes payable by reason of the
taking of the Premises , or any pan thereof, whether directly or indirectl y or
temporaril y or pe:mancntl y, in or by condemnation or other eminent domain
proceedings or t,y reason of sale under threat thereof, or in anticipation of the
exen:ise of the ,igbt of condemnation or other eminent domain proceedings or by
reamn of sale under threat thereof in the manner specified in Section 7 of the Second
Amendment to Deed of Trust.
Section 12 . SeparabjJjty of ln ya)jd Proyjsjops . In case any one or more of the
provisions contained in this Amended Loan Agreement shall for any reason be held lo be invalid ,
illegal or unenforceable in any respect, such invalidity , illegality or unenforccability shall not affect
any other provision of the Loan Agreement or this Amen ded Loan Agreement, b?1t this Amended
Loan Agrc,ement shall be construed as if such invalid or illegal or IUICllforceable provision had never
been contai ned herein .
Section 13. Execution io Se vera) Countgpans . This Amended Loan Agreement may
h exec •ned in an y number cf counterparts and each of such counterparts shall for all purposes be
dc,:med c, be an orig : ·'II : :nd :ill such counterparts , shall together constitute but one and the same
instnur.~nt.
Seclioa 14. Olm:r-.LD-'JbiJ Amended LoanAareement shall be governed by •
and construed in acconlance with the laws of the State of Colorado.
IN WITNESS WHEREOF, the City has caused this Amended Loan Agreement to
be executed in its name and its seal -to be hereunto affixed and attested by its duly authorized
officers, and the Developer has caused this Amended Loan Aareement to be executed in its name,
all as of the date fust above written.
CITY OF ENGLEWOOD, COLORADO
By · .. _-----------
[SEAL] Mayor
At'.est:
City Clerk
WELLSFORD MARKS B CORP .
By : Title :. __________ _
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4. Iinll o1 f'ldAaDIIJGI . Toil con1nc:1111111 become aff9ctive upon proper encution of thil
Connet The Project~ herein IMII CIOfflllWIOI N 100n • piacticable ftrthe-UO,, althla
Conlrad and ahall be undertalcen and pe,1almed in the Nq-Ml lolth In the "Tune of ~,c:e• In
the -.:l18d Exhibit A. l\lo Economc Development Ccmmluion Funds provided under thil contract will be
mcpended prior to the ful exea.11on of thia contract. The Contraclor lgrNS that time la of the -"!Ce In the
perfonnance of Its obligl lions ur,,M thla Connet. and that completion ol the Project. llhaU occur no la,'W than
the tarmlnation date Ml lolth In the "Tome ol Perfonnance."
5. ~lilm!Und Me1bAd of payrotQ l The State agrees to pay to the Contractor, in
consideration for the wnrx and services to ~:, performed , a total amount not to exceed~
ANO NPt1 oo P9LWS 1~7 ooo 00) The ~ and time of payment lhzll be made in IICCDl'dance with the
"Payment Schedule" Ml '!:Ith in Exh1b11 A.
6. ~-At all times from the ellective date cA this Conlnlct until ~ cA this Project.
the Contractor shall maintain propeny seg19gated books of 5-■ funds, matching funds , and other funds
associated with !his Project. Al receipts and expandilurw ,llNOCiat9d with uld Project shall be documented
r a deta iled and specific manner. and shall accord with the "Budger aet forth in Exhibit A. Contradllr may
adj ust budgeted expenditure amounts up to ten percent (10%) within said Budget without approval of !he
Slate. Adjustments or budget expenditure amounts In-.. nf1en percent (10%) must be authorized by !he
Sla1e in an amendment to this Connet propeny executed and approved pursuant to the State Fiscal Ru l ...
In no event shall the ! 1te·s total conaidetalion exceed !he amount shown in Paragraph 5 above.
a. Unless otherwise provided in this Conlnlct, ff Exhibit A provides for more than one payment
by the State, the initial payment NI forth in the Payment Schedule shall be made as soon as
pmcticable after proper execution of this Con1nlct. The Conlractor shall initiate all
subsequent pay ment reqUe515 by submitting documented proof of proper expenditure of
State funds thus f-dr received to a contract monitor designated by the State .
b. The Contractor shall req.-t the liDII payrnen~ which is the amount withheld by the State
until the Projecl is oornplete, for the Project by submitting to the contract nionitor a detailed
cost accounting of all S-funds receiYed and expended towards C0ff1)1etion of~ r',Oj9Ct
Upon determining to it,, satisfaction that all funds received by the Contractor have been
property spent towards acx:omplishment of the Project, the State llhall promptly mai<e final
payment to the Contractor.
c. With in ninety (90) days of completion of the Project, the Contractor shall submit to the
contract mon rtor 'a detailed cost accounting of expenditures of the final payment received
from the State. Any State funds not expended in connection with the Project shall be
remitted to the State at that time .
7. Allllil-The State or its authonzed representative shall have the right to inspect. examine, and
aud it Contractors record s. boo ks and accounts , includ ing the right to hire an indep,,nden t Certified Public
Accountant of the State's choos ing and at the State's expense to do so . Such discretionary ao'<iit may be
called for at any time and for any reason from the effective data of !his Contract until fiva (5) yea,s after the
da1re final payment for th is Project is received by the Contractor, provided that the audrt is performed at a time
convenient to the Contractor and during 111gular business hours . VVhether o, not !he State cal ls for a
discretionary audrt as provided for in this pangraph, ~ the Project is accomplished within a single fiscal year
of !he Contractoi', the Contractor shall, at the conclusion of the Project, and in addition to any other reports
required , subm it a report and aud itors statement of !he Project account to the Economic Development
Commission in the Department of Local Allairs . Such report shall be piepared in conjunction with Contractors
reyular yearly audit. and must be submitted within six (6) months after the close of the then current
Contractol's fiscal ;•ear .
Page 2 of 7 Pages
e. fllllmllll. The Contr-.tor ,.,,.-111a1 he tw, orwtl -at hill own expenN, unteu
c.~ 111111911111 EllhlbilA. II peraonnel , N ~of !he~.~ to petform lleW0ftc
an~ •ffiiees required to !le ~.ffl0fflled by the ConlraclDr undat thil Conlract. Such peraonnet may not be •
en, ._, of or hlVtt rry contrac1ull '91ation1hlp willl the State and no 1ueh penionnel ..., eligible for any
emrt<,yee beneffl:I , u,employm.."flf con:;,enutloo ,.,, any other benefttl ICCOlded to -employ-and
Contractor agrees to indemnify the-for any cwa lorwhlell Ille-may be found liable in a-regards.
Con~r shall pay when due al required employ.-.t taxes and income tax witht-oidlng . All of the M1Vices
reqv ,rea he1eunder will be performed by e,,, Contractor or under his supervision , 1,1d all personnel engaged
., the v.url< sha, t>e f\Jlly quatifted and shall be 1U1hartted under~ and 10':al law to perform such Mrvices.
9. Worl<meo's Compensation Cgyen,ge. The Contrad0r is responsible for providing Worlcmen's
Compensation Coverage and Unemployment Compensation Co,erage for 111 of its employ-to the extent
requ ired by law , and for providing sUCh coverage for themselves . and for providing sUCh coverage or requiting
its subccntractors to provide sUCh coverage for the subcontraclot'I employees . In no case is the SIP.te
responsible for provid ing Workmen 's Compensation Coverage for ar,y •mploy-or subcontraclo<S of
Contractor pursuant to this Agreement and ~ agrees to Indemnify the Stllll!l for any costs for which
the State may be found liable in this regard .
10. To!minatioQ of Contract for CoQ'ffl!icnce of either party . Either the State or the Contractor
"2'f tenninate this Contract at a,rry tine the party detll!!TmeS that the purpose of the Contract would no lonyer
be served by completion of the Project. The party desiring to tenninate the Contract shall ef!9ct such
termination by giving written notice of lennination to the other party and specifying the effective date thereof.
at least thirty (30 ) days p,;:X themto . In ~,at event al finished or unfinished documents and other materials
shall, at the option of the State. bei':omf, its property Contractor shall not be relieved of any obliga:.:,ns to
repay funds advanced as a loan , notwit istandiog any telffllnation of the contract for conVttnience .
11 . Imnination of Contract tor Cause· Aa;tlf1ra!jgn in Event of Ptfautt if Loan .
a . If. through any cause . the Contractt>r shal! fa il to fulfill in • timely and proper manner its •
obligations under this Contract. or if the Coo1rac:lor Shill violltll any of the covenants . agreements, or
stipulations of this Contract. the state shaA thereupon hive the right to terminate this Contract for cause by
giving written notice to the Contractor of such termination and specifying the eflectlve dlll& thereof, at least
five (5) days before the effective dale of such tem'ination . In that 8"ent. all ftnished or unftnished documents ,
data , studies . surveys , drawings , maps , models , photographs , media contracts and reports or other materia '
prepared by the Contractor under this Contract shall, at the option of the State , become its property ; .,nd the
Contractor shall be entitied to reas e just and equitable compensation for any satisfactory work completed
on such documents and other matenals .
b. Notwithstanding the above, the Contractor shall not be relieved of liability to the Stall; for any
damages susta ined by the State by virtue of any breach of the Contract by the Contractor. and the State may
withhold any payment to the Contractor for the purpose of setoff until such time as the exact amount of
damages due to !tie State from the Contractor is determined.
c. If funds haYe been advanced to Contractor pursuant to a loan agr, temen~ any faUure by the
Contractor to fu Ifill in a timely and proper manner its obligations under this Contract, or any violation of the
covenants . agreements , or stipulations of this Contract. shlH constitute a default und~r such loan agreement.
Upon the existence of sueh default. or upon any dissolution , cessation, ftllng of a petition In bankruptcy , sale ,
encumbrance , or other transfer of the business during the term of said loan , the State may, at its sole option ,
declare all sums due under the loan agreement to be immediately due and payable .
12 . ~-The State may , from time ID time , require changes In the scope of services of the
Co ntract to be perfonned hereunder. ,However, this Contract is intended as the complete integratio:1 of all
understand ings between the parties at tnis time , and no prior or contemporaneous addition , deletion , or other
amendment here to, includi ng any increase or decrease in the amount of monies to be paid lo the Contractor,
shall have any force or effect whatsoever unless embodied in a written contract amendment incorporating •
Paga 3 of 7 Pages
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IUCh ~ ~ and approved pursuant 10 the s-·· Filcal R .... Nolwithlland'.11\l this proyialon ,
ctlangea in the lime ot pe,fom•101 may be agl'Md 10 by llllllr If 10 pruvtded for In ExhtA A, 111d contractor
IN!Y make adjustmenls of 1u1 than 10 pen::ent in budget line lt9rns • provided ,-..,, in HCtion e cf this
Conlract.
13. .Bllllm, Al least two (2) copies of al reports p,epa,lld as • result of lhe Project wll1 be
submilled 10 the Economic Development Commiasion in the Department ot Local Affairs within two (2) weeks
of completion of such reports .
,.. conflict of loterest
a. No employee of the Contractor shal peffcnn or provide part-time MIVices l'0r corr.,ensation ,
monetary or otherwise, to a consultant or conaulllmt firm that has been retained by the
Contraclor under the authority of this Contract
b. The Contractor agrees that no person at any time enn:ising any function or responsibility ,
in connection with the elements of this project that are llnanced wit~ t late funds , on beha~
of the Contractor shall have or acquire any pe!SONll llnaicial or 8COl .omic interest, direct or
indirect. which will be materially affected by this Conl1acl. except to the extent that he may
receive compensalJOn for his performance pursuant 10 this Contract
c. A personal financial or economic interest includes, but is not limijed ID :
any business en tity 1n which the person has a direct or indirect monetary interest
ii. any real property in which the peBOn has a direct or indirect monetary interest
iii . any source of Income , loans . or gifts received by or promised ro the pe,son within
twelve (12) months prior to the execution date tlf this Contract;
iv. any business entity in Ylllich the person is a director. officer, general or limited
partner, trustee , employee, or holds any position ot management
For purposes of th is subsection , iMirect Investmen t or interest means any investment or
interest owned by the spouse , purent ~rather, sister. son , daughter, falher-irHaw,
mother-i n-law, brother~n-law, sister-in-law , son~n-law , or daughter~n-law of the person by
an agent on his/her behalf, by a general, limijed , or silent partner of lhe person. by any
business entity controlled by said person , or by a trust in which he/she has substantial
interest A business entity is controlled by a person ~ that person, his/her agent. or a relative
as defined above possesses more than fifty percent (50%) of the ownetahip interest Said
person has a substantial economic interest in a trust when the person or an above-defined
relative has a present or Mum interesh'Ot1h more than One Thousand Dollan; ($1,000.00).
d. In the event a confl ict of interest as described in this Paragraph 14, cannot be avoided
without frustrating the purposes of this Contract the person involved in such a conflict of
interest shall submit to the Contractor and th<' State a ful disclosure -men! selling forth
the details of such conflict of interest In cases of extreme and unacceptable conflicts of
i1 •terest . as deterMined by the State , the State reserves the right to terminate the Contract
to · cause , as provided in Paragraph 11 above . Failure 10 tile a disclosure stltement required
b) this Paragraph 14 shall constitute grounds for termination of this .;ontract for cause by the
State .
Page 4 of 7 Pages
15. Cl¥ll'AloGI wjlh Apppblt YDYI · Al II ~ during 1h11 performance ol this Comract. 1h11
Ccnractlrlhalslridl'/..,._tllll!)l)lcllllllldllllandSlallllwsthal'-bNn°'nwyi..ftwbeNlllllll,m .
16. ~ To the extent that this Contract may be executed and performance of the
obligations of the parties may be accoml)llahed within the Intent of the Contract. the temll of lhil Contract .,.
::everable , and should any term°' provision he!90I be declanld Invalid°' become Inoperative for any reaaon ,
suet, invalidity or failure shall nol alfecl the ~alldity of any other term or pmvlsion he!901. The waiver ol any
breach of a term hereof shall nol be oonstrued as waiver of any other term.
17 . Binding on Syccessp(J . Except e.s herein otherwise provided , this agrMmenl ahall inure lo
the beneftt of and be binding upon the parties , ,v aay subcontractors hereto , and their respective succeuons
and assigns .
18 . AllislD.mcDI, Neither party , nor any subcontractons hereto, may assign Its rights or duties
under !his Contract without the prior written consent of the other party .
19. Limitaljon to particy!ar funds . The parties hereto expressly recognize that the Contractor
is lo be paid , reimbursed , 0< olhelwise compensated with funds pro\'ided to the St.ate for the purpose of
contracting for the services provided for herein , and therefore , the Con1ractor expressly understands and
agrees !hat au its rights , demandS and claims to compensation arising under this Contract are contingent upon
receipt of such funds by the State . In !he event thal such funds or any part lhereor are not received by the
Slate, the Stale may immediately terminate th is Contract
20. Minority Bysjness EnternrtM participation . II is the policy of the State of Colorado that
minori1y bus iness enterprises shall have the maximum practicable opportunity to participate in the
performance of its cons1ruction grant contracts . The ContraclO< agrees to use its best efforts to cany out this
policy to !he fullest extent plllCticable and consistent with the efficient performance of this Contract. A!> used
in th rs Contract the term "minOrily business enterprise" -. a business , at least 50 percent (50%) of which
is owned by minority group members 0<, in the case of publicly owned businesses , at least 51 percent (51%)
of the stod< of which is owned by minority group members. For !he purposes of this definition , minori1y group
members are Negroes or Blacl< Americans , Spanish-speaking Amencans, Asian Americans , American
Indians. American Eskimos and American Aleuts . The Contractor may rely on written representations by
bidders , contractors , and subconlraclDrs regarding !heir status as minori1y enterprises an d need not conduct
an independent investigation .
2 1. Parties ' RelationslJip . If this contract is for the purpose of providing a loan . the parties intend
and agree thal !he relationsh ip between !hem is that of lender-borrower. Except with respect to its fiduciary
obligatiorrs to the Slate set forth in Exh ibit A. the Contractor shall not be deemed an empl<lyee or agent of the
St'.:e . No agenl or employee of Contractor shall be or shall be deemed to be an em~.r . ee or agent of the
Slate , other than for purposes of compliance with the fiduciary obligations to !he State in Exhibit A. Contractor
will be solely and entirely respons ible for its acts and the acts of its agents , employee9 and subcontractors
du ring th e performance of !his contract.
Page 5 of 7 Pages
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SPI.CIAL PRO\ ISJONS
COlff"ROLLErs APPF.OYAL
•
I. --11111:ootbo-•llld...UklMll __ _,....,. .. ea..n.., .. __ ,c_or _____ ......,, 111,,
lllflM"'-il~lr anyi:onnalnvolvbtadlt,_...o(_,.t,ydtilSC..
FUND AVAILAIILlt'V
2. r-1o1.-.1p11on1or11ws .. orc-.io,.,-----,_ .. ........,J __ .,.._,.._"""-__,lluda<lcd
IDd octiawbc made 1uUablc.
80!'1D R[QUIRCM[NT
l If this conna Involves the payment of fflOft thwi fifty ltlouslnd ~I., b die COftSUUClion. fflCdon. rq>lir. ffllialmlnc:c, or impoYcmall of•y buildln1,
road, bridJe, viaduct. tunnel. u:cavadon or OChtr public won b &WI S&m. •~shall, brrfOft mlaina upon die petfonnance of my such wen: indudc:d
■IMs-ol,ly......,andddl>s.,..., ___ _.lip .. _, ____ .,_...,.._., ... _....1,y,.wofflcioJ
1o,,... ... ,...,....,one-11o1ror...,_,_,.,_..,...,,_.,,.._ ---•...ry-1,y,..,.lllad_._-...,
-lllorlilllrul ........... o(lhc-andlo-wllp,o¥1dothllWdll.--,,orhlt-~l.,dulypoyl'ar_,,.1-.--hiff.
~ awovtliom. provcndor or ocher 1UJ'f)lks med or conMMd by Adi canncwor Im IUbc:onnaor bi pafbnnlDcc o(thc ~ CClllr-=ad ID be done, 0, fails
IO pay my pmon who suc,plics rcnW mKhinef)', IOOls. or Ciql&ipmcnl In chc p,otCClllian of the wort me Am)' will pay lht nrne in III llll0llffl not cxc:ccdina the sum
lptCifitd in &he bond. IOICchtr with intaat • the ra or ri&hl per en pa-.. lWcu Nth bond ii UCCU'&d. dcllvcrcd and flkd, no claim in favOf ofU. COOlfK&Of
nincinia"dhlCONl"Klshall be u:littd, allowed or p&id. A catificdcwCllhicr's dlUi: or at.lk IDOIIC)'onkrpayabk to the Trasumoflhc s-ofCokndo may
bc~inlicvofabond. Thisprovisionis inCOl\'lpianc.wilbcas ll-26-106.
IND[MNfFICATION
◄. To lhc-cxicn1 anhoriz:cd by law. I.he connctor shall mdaanify, s.avt ad ~d harmkss the SU&r:, tu employees 111d llffllS, 11ainst any N all claims ,
c&.uca, liabi lity .and c:oun aw•ds includin& com. npcnscs. md ID0mc'y lea inaamd as • rau.11 of any act or ,.;cniuk>n by the contnctor. ot its c:mploycts ,
1p:1111. sabcoMnaon. or mip,cn punuant ID me aa. r,llhil ~
DJSCJUML"'i.ATION AND AFFIRMATIVE ACTION
5. The contrxU>r tptt:s to comply with the lcacr and spirit of the Colondo Anodiscriminaion Act of 1957. a tmtndtd. and other appllcabk ltw respecrin,
discriooiuooo lod ,mr.it -1•,,.... pnaioa (ca5 24--~ lod • ........ by Eucull" Onlcr, Equal Oppomanity 111d Alll!fflltl,c Action. dalcd April 16,
1975. Pw:a,o,u dwnto. rJwfollowurrJ'l'O'YUio,u,J,o,IJ t.c:talllMdutoJJ~ ~or~ •
•
Ourinc the performance of this c:onaact. the c::oncraaor ~ • follows :
(1) The comnctor will not di.saimina apinst any employee or .,iican1 for anploymcnt becau:et of racc, cncd. color, nmoGII orf&in. sex.
mama! scarus. reli1k>n. ancestry, mental or physical handicap, or•· The~ will take affltrnltm IClion ro insure thll appllaab ~ cmpk,ycd. md thtt
cmpktyc,es arc~ dwina: cmploymmt. wkhout rqsd to die abo¥t mamcmed cbac:laistks. Suell -=don shall iDcludc, bul not be lmulltd 10 die foUowiac:
anpk,yrncm. uppading. dcmodon. °' tra'llfc:r. i=uitmtnt or rcc::ruivncr. ldYatisiq; lay-otr. or tamludons; r.a of Pl)' or odlCf fomtl of c:ompcnlldon ; and
tdectiori foe tninin&, includin1 appmtkcshil,. The concncaorasrca IO post II~,.., ..... IO~and tpp,lkaa b cmpJoymc:m. nocica ID
be provided b)· lhc contnctina: officer Kttin& fonti provisklnl of this non-discriminaion danc.
(b) The contnctof will. in all solicil&lions or llltvatisantm fOf employocs ~aced by of on behalf of the connctot, sll&C that aJI qualified ll'Plicanu will
re:cc:;, ~c:onsidcndon for employment withoulre:prdto rxc. CllleCI. color, rlllional aripl.a.ffllri&al mnia.reliJion. tnccsU)', mental OC"pllylic&I halldkaf, Ol'IIC ,
(c) ~ oorcaaor will 501d to clCh labor union or~rAwortcm wi1!i whic:tl: he ha 1coUccliw: bapinina llpCl'nCnt or Olhct ooanctor~ notice
1> be~ by i:hc awunctinsoffica. advisr,s thc labortrionarworicm',q:menadvc of the c:oncnctot'1 oonwnitrncn1 lmdtrlhc E.ucuttvc Order, E.,,.i Opoonun1ry
Md Affinnllm Action. dae,d April 16, 197S, ..t ofdac rula., ,.aions,. and rdcvftOnlcn of the Govanor.
(d) Tht c:ontnaoJ and labor un M),s will finish all infonnaioft and rq,oru rcquiftd by ~ Order, ~ Opponunity Ind Affirmluw Action of April
16. l'175 , md by the Nies, rqularions and 0rdm ol1he Govanor. orpnlarl: lhmlD., md vwill pc:rmil ICCCSII IO hb boob, records. and ClOWlb by the conlnCWII IICnc)'
Ind lhc offic::c oflhc CiovCfflOl"or his dcsisnec for Jl'A1KdCS of~ to IICCttlin complWICC wtch such rulcs, rq,.ll ations Ind crdcn.
(c; A IIDOl'orpuzllitn will noicxdude my individual ocherwisc i,&alificd from fi.111 mc:mbcnhip rishts in such labororpni7.mon,orapcl ,ny such individual from
mcmbc:nhip m suc.h 1, >0r organiution or discrimlnllt ICainst.,., of its manbcn m the !\di cnjoymcnl of wort~. because ofrtCC., creed. CX>&or, sex. naiontl
orion.or~.
(0 A btlororptWltion.orthccmployc:csormanbcnitaa>fwill not aid. abet. indlc.. compel Ol'C1>CR:C d'ICdoin1ofa,yta ckftncd ln lhls c::omna ro bcdilaimml&Or)'
o,obmua.o, pm'ml..,, pcnon lrom complrins with lhc provisioN of this conna o, any otdcf issued ihc:m.ftder; or~ ciChu diftc:dy o, inditudy, to oomrnit an y
ICI defined ,n th is confll:I 10 be disaimirwory
_....A._.,,_1_-
~:::!-t--.. ~=-=~.,:!!.':e-:.:::.· '•='===-=-:=:==---~~ ln-..Oldlr,e..,.Oppc,n,m.::rllld-•AaiooofApril"'l'l t97l,llld .. nilcs,.-o,-~--•-::«...:. •• ::~:-ut:..i-:".:..:t~=:.':".~~•t!:.""o,,c,r..yad -o(Ajlrit 16, l97l,llld
(h) n,,........,..,rilllnciudolhcpnmsloosof~-"i•>-.i,(b)ln....,,..,_llld_,__ ___ ..,._wc,,A..,,,
or ordcn ~ panuant to Executive Order. Eq&aa' ~icy IDd A1r.ma:i¥C Acdon of April 16, 197', so e. IUdl provlskn win be w....a ~ uc.h =-.:.~i:'::'.:=,::c"~-:.CC~v::11!'!..u':°~~:==:::c.~=ft.-::=-.:.:d~
lltipdon--lb.t ,-.onnclOf'or vndor • amult of Ndl dnccioa by the ODIOICdaa aeencY, &ht COMnc:IOf-, ~INS. orCokndo ID~ into 1uch
litipdon to prolCC1 the i.maat of the Sta&t ofColondo.
COLORADO I..UOR 1'11£FERENCE
6a. P'i'ovbkm 'lfCR.S 1-17-101 ,t 102 forp,tfttenc:c o(Cokndo labof we appliabk tothts cont?Kt ifpu.bUc worts within the Staten liNCftlkc:n ~and
~ ftnanctd in wh. ik or in pat by Stitt funds .
b. wt.I CONt llo:IOl coreta. b I publk prvjec:l ls to be IWlfdcd IO a biddlr, a residc:at bidder lhlll be .. loMd a prci:raa apina. a~ bidlk:r 6cm a statt or =i~=:i:wr~~==is'i..::~':r~~:=:::s::~~~~li:.=d=:~:
iac:oA&is&cnl widl ~ti ofFcdcfal law, tllissubsecuon shall be suspended. but only to the cxllent necasa,y to prncatdenlal ofthc moneys ortO ctimlnatt tht
inconsistm::y with fedcnl rcquimncna (CltS 1·19--101 and 10'2).
GENERAL
~ei!~~s~b'~=~::S rM)~r:= = ~ ~~!fdts"T!"!~=«~j~ ~ °'cn=~~f::: ~~c:~•:::~;~!~:2~~:°::~:u~~i'=1v=:~r:::!rt:=t~=~l~by~o'7C:;i.:~
adi::mc ot OChcrwtlc.. Arr; provision rcndctcd nul l and void by thc opcnlion of dmprovision will not invllida&t the ranainda of this conlnCC to the CX1COC dim the i;::::::!ract
ii capable of cxcculion
I. Al all times durin& the pc::rf~ of this conna. the Conncwr shall szriaty ~ IO 111-.,Pic:lbk fedcrw and Am: ID'I. Nia. and~-have been or
-haeaftcrbcaubl_,,.d,
9. Tht sipaoncsrn,·ttmthcy an: familirrwtthCRS 114-30 1,ct. seq _, (Brit,erymdCor.uptlnfluenca)lndCP.S 11--1--401, ct. seq., (Abuse o(Public:Offlc:c).and that
ao Yiolaion of such provisions is ~L
10. 'The sipaorics rvcr that 10 their biowlcdac, no nm employee has a pcnonlll or bcna'1:oll ~ WNlbOCTct in tt.c tcmoc or propcny dacribcd beftin:
[N WITNESS WHEREOF. the parties hefflo hlYC cxecu~ WI ContrlCI Ofl the di)' fim above written.
Coanaor.
CITY OF ENGLEWOOD
(F,111 '-<lalN..,.) _____________ _
Shed Gulley
PmitionITitkl_~Ma-v~o~r ___________ _
11+§000583
orc:o.i,o,,.;o.,,1
Ancst(Scal)
..__,,,_,,._o_
A TTOR..'1£Y GENER.AL
By _________________ _
• SJ A Tl Of COLOI.ADO
I\OY ROMER. GOVERNOR
e, _______________ _
""""""""'""""'"-Larry Kallenbe,Jer
DEPARTMENT OF ____ ...... Lpcal...,c,A,..jfaj-·p._ ______ _
APPROVALS
CONTROLLER
e, _______________ _
•
•
EXHIBIT A
• SCOPE OF SERVICES AND PAYMENT SCHEDULE
•
l!Xl9ITA
Colorado Economic: Development Commiu!on
SCOPE OF SERVICES
, . SCOQI of S,rylcn
The Project cons ists of provid ing the Contractor with match ing funds for the promotion of economic
development in the Arapahoe County Enterprise Zone area . These funds shall be used for the purposes
of promotiona l activities that will market and advertise the advantages of locating a business in the
contractor's enterprise zone area . create a positive identity for the enterprise zone area , encourage
retention and expans ion of existing businesses , promote red~velopment. expand the region's tourism
industiy, attract new businesses, and genera lly enhance the economic g"""1h of the enterprise zone area .
Such actJvities shall include the preparation , production , and/or distribution of market research , printed
materia ls. direct ma il campaigns , print media advertising , trade show promotions , special events , direct
bus iness prospect visitati-.1 , and other closely related activities . These funds may not be used to pay for
contractor's admin istrative or staff costs .
Contractor may allocate funds to one or more subcontractors involved in promotion and economic
developmen t activities in the enterpnse zone . Contractor shall be respon sible for ensu ri na and
documenti ng the expenditure of the requ ired local match ing funds by Contrac:1or or by its subcontr · Jrs .
Cop ies of all subcontracts entered into by the Contractor in order to accomplish th is project sha11 · be
submitted to the Department of Local Affairs upon execution , and any and all contracts entered into by the
Contractor or any of its subcontrac:1ors shall comply with all applicable federal and Colorado State laws
and shall be govemed by the laws of the State of Co lo rado notwithstand ing provis ions there in to th e
contra ry . ' ·
The contribution from the Economic: Development Fund under this Contract sha ll not exceed the amount
of local matching funds expended on this project or SE fEN Tij(}USAND dofLalJ 1S7 000) whichever is •
less . AU project ccsts in excess of this amount will be the responsibility of the Contractor. ContraciDr sha~
match E.D.C. funds used on this project with at least a dollar-for-<lollar cash match from local sources .
Loca l expenditures on enterprise zone marketing projects incorred prior to the eflec:tive date of this project
but subsequent to July 1, 1994, may be counted toward the match ing funds requ irement. provided that
such expenditures have not been used to meet othe r state contractual matching fund requ irements .
2. Time of Perfonn1nc1
The Project sha ll commence upon execu tion of th is Contract. The Contract will expire on December 31
~ except that the Contract may be extended a maximum of 12 month s subject to th e mul\Jal
agreement of the State and the Contrac:1o r. A request for extens ion by the Contractor shall be submitted
to the State at least 30 days prior to the expirati on of the Contract with a full justifica tion for ths extens ion
request If approved by the State , written notification will be provided to the offices of the State Controller
and the State Attorney Genera l.
EOC # 246 • Exh ibi•. A
Page 1 of 2 Pages
•
•
•
•
r
3.IIIIIIIIS
~ EXPENPIIYBES
E.D .C. Funds $7 ,000 Market Research , Publications, Advertillng, $14 ,000
and Direct Marketing for the Arapahoe County
Enterprise Zone Program
Local Funds 7,000
TOTAL: $14 ,000 TOTAL : $14 ,000
4. PIYmtDI Scbtd!U
I S 6,000 Initial payment to be paid upon request b) ~,e contractor following the execution of this
contract.
1. 000 Final payment to be made upon satisfactcly completion of the Project. The Contractor wi ll
submij a final ftnanciaJ and narrative report documenting the expenditure of all E.D.C. funds
fo r which payment has been requested and of matching local funds .
S7,000 TOTAL
Requests for payment will be initiated by the Contractor in accordance with the provisions of Paragraph
6 of the main body of this con1ract.
5. Ml!.nJ:ll!dng
The Department of Local Affairs , Field Services section, will monitor this Project on an as-needed basis .
s. B•portlng ScbtdYI•
The Contractor will submij an interim llnancial and narrative report prope!1y documenting all expenditures
of E.D.C. funds at the time intelim payments are requested . The Contractor will submit a flnal linanoal
status report properly documenting all expenditures of E.D.C. funds at the time the final payment is
requested , in accordance •'<ith the payment schedule .
EDC I 246 · Exh ibit A
Page 2 of 2 Paij••
IXlCUTIVf CHAMIUS
116> Staait CNMtO.
Deft¥rr , Cobado I010l·1792
l'honeU0))ll4-J47 1
May 19, 1994
Ray Biker, Chainnan
STATE OF COLORi\oo
Colorado Economic Development. Commission
1625 Broadway , #1700
Denver, CO 80202
RE : 1994-95 Enterprise Zone Marlceting Grants
Dear Ray :
In accordance with CRS 24-46-105 , I have authority to review and approve
recommendations by the Colorado Economic Development Commission for
expenditures from the Economic Development Fund. I h1vo reviewed the enterprise
zone marlceting grant projects as specified on the attached list and hereby approve
the expenditure of up to a total of $278,000 from the Colorado Economic
Development Fund for these projects.
Anachment
•
•
•
IXIC\ITl\'I CMAMIIRS
,,.sc..c:...oi
~. ColcnclOIOJo.J-17'2
,,... ODJI ,...,J,n
May 19, 1994
Ray Balcer, Chairman
STATE OF COlDRADO
Colo~o Economic Development Commission
1625 Broadway, #1700
Denver, r0 80202
RE : 1994-95 Enterprise Zone Marlcetin1 Grants
Dear Ray :
In acC<1dar :e with CRS 2~-105, I have authority ID review ad approve
recommen.i.ttions by die Colorado Economic :o.ve!opmlllt Commiaioe for
expenditures ftoom Ille Economic n.v.lopmmt F1111d. I haw mri-.d llie 111111]1ri8e
zone marlceting grant projects u specified mi dae 111111:bed list md blniby approve
Ille expenditure o( up ID a total or $271,000 fillln dae Colorado Economic
D~elopment Fund (or ~ projects.
Attachment
#245
#246
#247
#248
#249
#250
#251
#252
#253
#254
#255
#256
#257
#258
#259
#260
#261
#262
Economic Development Commlalon
1994-95 EnterpriM Zone Merketlng Granta
Detail of Fundlng Recommendation,
Adams County Economic Development, Inc.
City of EngllWOOd (Arapahoe County EZ)
Denver Urban Economic Development Corp.
East Central Council of Local Governm enta
El Paso County
Greeley/Weld Economic Development Action Partnership, Inc.
Huerfano/Las Animas Council of Governments
Jefferson Economic Council, Inc.
Larimer County
Grand Junction Downtown Development Auth . (Mesa County EZ)
Northeast Colorado Asloc:iltion of Local Governments
Associated Governments of Northwest Colorado
Pueblo County
Region 10 League far Economic Asllltance & Planning
Upper Arbnsas Arn COG (S..n LuilllJW; Arklnlls EZ)
Southeast Colotado Enlarprlae Oft91opment, Inc.
Region 9 Economic o.welopment Dillrlct of Southwest Colorado
Enterprise Zone Trade Show Marketing (East Central COG)
$10,000
7,000
10,000
20,000
7,000
10,000
20,000
7,000
7,000
20,000 .
20,000
20,000
10,000
20 ,000
20 ,000
.20,000
20,000
30 ,000
$278,000
•
•
•
STATE Gf.-coLORl\00
08'.uTMIHT Of LOCAL AffAIIS
I }tl Sfw,nen SW.., ltm, 511
f """'9f', Colcndo 10201
~()0])"6-2711
FAX 130)1 866-22.SI
TOD 13011166-SJOO
November 8 , 1994
Sheri Gulley, Mayor
City of Englewood
3400 S. Elati St.
Englewood , Colorado 80110
RE : EDC #246 • Arapahoe County EZ
Dear Mayor Gulley :
Enclosed are four copies of the Economic Development Commission
contract for the above-referenced project. Please sign each copy of the
contract in the block provided on the appropriate pages. Your Federal ID
number is required below your signature. The contracts will not be
processed without this number (Social Security numbers will nm be
accepted). Please have your corporate secretary (or equivalent) sign and
~ in the space marked ·Attest.· If your organization does not have a
seal , you will need to write a letter to David Kaye , Assistant Attorney
General , State Services Building, Denver, Colorado 80203 , stating that you
do not have a seal. This letter MUST accompany the enclosed contract:.
when mailing them back to this office. Please do NOT date the contracts .
Once signed , please return all four copies of the contract to me:
Ms. Mindy R. Gewuerz
Field Services
Department of Local Affairs
1313 Shennan Street. Room 518
Denver, CO 80203
If you have any questions pertaining to content, please call Evan Metcalf
at 86 6-2771 .
S•,1:;.e re ly,
v-})~~-~?<:/
Mindy R . Gewilea:_) ~
lnfom,ation Specialist
Enc.
110¥11:c:,n.,
eo..,,,..
Liff't'~I~
UK'Uh~0l l'f'C10,
•
DATE
December S, 19'1S
COUNCIL COMMUNICATION
I I AGENDA ITEM
I
I
I J 4 a
SUBJECT
Markctin& Grant for Enter-
prise Zone Promotion
INITIATED BY: STAIT SOURCE:
Community Developmen t Lee Merkel
~IL GOAL AND PREVIOUS COUNCIL ACTION;
The City Council has established an economic development division with an advertising and
printing budget. A portion of these budget items are used to promote the enterprise zone mar-
keting activity . Each year the State of Colorado allocates $7000 for matching grants to each
zone designated after 1990 ( previous zones get larger funds). For the last 3 years Englewood
has received a grant for approximately $7,000 (the first year Sheridan participated). We do
not always spend the entire amount , but it is available if we incur up to $14,000 promo ti ng the
zone , half of which is grant re imbursable.
RECOMMENDED ACTION;
Adopt Council Bill No . 69 authorizing City Council to enter into a contract with the State of
Colorado to receive a 1994-199S Enterprise Zone Marketing grant.
BACKGROUND. ANALYSIS. AND ALTERNA.TIYES IDENTIFIED;
Each year the Enterprise Zone Administrator contacts the other communities within the zone to
eetermine if they are interested in receiving any of the allocation for zone marketing . This
year neither Sheridan nor Littleton are interested in receiving funds, but both would l',ke to see
the brochure reprinted .
Therefc re in this yr.ar 's application the enterprise zone administrator applied for funds to ad-
vertise the zone, pr.int new zone brochures and mail to zone businesses , and to participate in
one state trade sho w. Last year we did not participate although one was budgeted . In 1994 we
only spent approximately $8 ,000 of which half was reimbursed . Our participation with the
Englewood Chamber of Commerce in the Always Buy Colorado Expo was part of the grant
marketing . Several of our manufacturers participated in this trade show. A special graphic
presentation for the Hampden Center Office Building which was shortlisted by the World Vi-
sion Society as a possible headquarten building was also a grant marketing project . These
araphics can be used for other prospects as well .
tJNANCJAL JMPACT:
The financial impact to the Ciry of Englewood is very positive . Some of these marketing ac-
tivities would be undertaken without the grant being available The grant makes it more fea -
sible to panidpate in the ABC Expo and the specialized marketing for specific properties in
the zone .
LIST OF ATTACHMENTS :
Letter of Request to the Dcpartl11Cllt of Local Affairs
Bill for (Jrdinan ce
•
October 19, 1994
Mr. Evan Metcalf
Enterprize Zone Coordinator
State of Colorado/Department of Local Affairs
1313 Sherman Street Room 518
Denver, CO 80203
Dear Evan:
The Arapahoe County Enterprise Zone would benefit from an Enterprise Zone Marketing
Grant in 1995 . The funds would be used primarily for advertising, trade show participation,
and re ,irinting and updating our Enterprise Zone brochure.
The ad vertising in trade magazines and print media would include the Metro Denver Economic
Profile, The Denver Business Journal and Plants, Sites and Parks and/or Expansion
Management Magazine . Total estimated for advertising would be $7500. Trade show
panicipation for NAPCON or the medical instrumentation show, or a prospecting trip
sponsored by the state , is estimated at $2500. The remainder would be budgeted for the
upda te of the map and the printing of the Arapahoe Enterprise Zone brochure and mailing the
new brochure and letters to the manufacturing sector. The budget for the brochure and
mailing is estimated at $4,000. Of the grand total of $14,000, $7000 would be grant
reimbursable .
If you have an y questions , please give me or Lee M.-,kel a call at 762-2342.
Pam Pepper
Enterprise Zone Administrator
Ec onomi c Development Adm inistrator, City of Englewood