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HomeMy WebLinkAbout10010 RESOLUTION NO. 10010 A RESOLUTION APPROVING AN INTERGOVERNMENTAL PUBLIC FACILITIES AGREEMENT AND AN AGENCY AGREEMENT AMONG ORIX PUEBLO II, LLC, NORTH GATEWAY NUMBER 1 BUSINESS IMPROVEMENT DISTRICT, NORTH GATEWAY NUMBER I PUBLIC IMPROVEMENT CORPORATION AND THE CITY OF PUEBLO, COLORADO, RELATING TO PUBLIC IMPROVEMENTS AND THEIR CONSTRUCTION AND REIMBURSEMENT THEREFOR, AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Intergovernmental Public Facilities Agreement and the Agency Agreement, both dated as of November 24, 2003, among Orix Pueblo II, LLC, North Gateway Number 1 Business Improvement District, North Gateway Number 1 Public Improvement District, and the City of Pueblo, Colorado (herein collectively the "Agreements") relating to certain public improvements described therein and the construction and reimbursement therefor as provided therein, in substantially the form presented to this meeting of the City Council and with substantially the same content, are hereby approved. SECTION 2. The President of the City Council is authorized to execute and deliver the Agreements in substantially the form and content as presented to this meeting of the City Council, for and on behalf of the City, but with such changes, modifications, additions or deletions therein as the President of the City Council and the City Attorney shall deem necessary, desirable or appropriate, the execution thereof to constitute conclusive evidence of their approval of any and all changes, modifications, additions or deletions therein from the form and content of the Agreements presented to this meeting. SECTION 3. NO PROVISION OF THIS RESOLUTION OR THE AGREEMENTS SHALL BE CONSTRUED OR INTERPRETED AS CREATING A GENERAL OBLIGATION OR OTHER INDEBTEDNESS OF THE CITY WITHIN THE MEANING OF ANY CONSTITUTIONAL, STATUTORY OR CHARTER DEBT LIMITATION. NO PROVISION OF THIS RESOLUTION OR AGREEMENTS SHALL BE CONSTRUED OR INTERPRETED AS A DELEGATION OF GOVERNMENTAL POWERS NOR AS A DONATION BY OR A LENDING OF THE CREDIT OF THE CITY, OR AS CREATING A MULTIPLE-FISCAL YEAR DIRECT OR INDIRECT DEBT OR OTHER FINANCIAL OBLIGATION WHATSOEVER OF THE CITY OR A GENERAL OBLIGATION OR OTHER INDEBTEDNESS OF THE CITY WITHIN THE MEANING OF ANY CONSTITUTIONAL CHARTER OR STATUTORY DEBT LIMITATION, INCLUDING, WITHOUT LIMITATION, ARTICLE X, SECTION 20 OR SECTIONS 1, 2 OR 6 OF ARTICLE XI OF THE CONSTITUTION OF THE STATE. NEITHER THIS RESOLUTION NOR THE AGREEMENTS SHALL, DIRECTLY OR INDIRECTLY, OBLIGATE THE CITY TO MAKE ANY PAYMENTS BEYOND THOSE APPROPRIATED FOR ANY FISCAL YEAR. NO PROVISION OF THIS RESOLUTION OR AGREEMENTS SHALL BE CONSTRUED TO PLEDGE OR TO CREATE A LIEN ON ANY CLASS OR SOURCE OF CITY MONEYS. SECTION 4. This Resolution shall become effective upon final passage and approval. INTRODUCED November 24, 2003 BY Bill Sova\Councilperson APPROVED: President of City Council ATTEST: Gina Dutcher\City Clerk Background Paper for Proposed RESOLUTION AGENDA ITEM # .~ L~ DATE: November 24, 2003 DEPARTMENT: Law Department TITLE A RESOLUTION APPROVING AN INTERGOVERNMENTAL PUBLIC FACILITIES AGREEMENT AND AN AGENCY AGREEMENT AMONG ORIX PUEBLO II, LLC, NORTH GATEWAY NUMBER 1 BUSINESS IMPROVEMENT DISTRICT, NORTH GATEWAY NUMBER 1 PUBLIC IMPROVEMENT CORPORATION AND THE CITY OF PUEBLO, COLORADO, RELATING TO PUBLIC IMPROVEMENTS AND THEIR CONSTRUCTION AND REIMBURSEMENT THEREFOR, AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME ISSUE Should the City Council approve the Intergovernmental Public Facilities Agreement and Agency Agreement? RECOMMENDATION None. BACKGROUND Orix as developer and WL Enterprises, Ltd. as owner of land located South of Dillon Drive and West of 1-25 have proposed a method to reimburse the developer for construction of certain public improvements as follows: (a) Dillon Flyover - an amount based on new sales generated within the development (estimated to equal one-half cent of City's 3.5 cent sales tax to be collected from sales generated within the development) will be presented by the City Manager to the City Council as part of the budget submitted for 2005 and each year thereafter. It is anticipated that the City Council will appropriate such amount to the North Gateway Number 1 Business Improvement District which will be administered by the City, and be used for reimbursing the developer $1,848,000 for hard costs, and $951,775 for soft costs, or a total of $2,799,775 plus interest thereon for the following: 1601 Traffic Study and moving 600,000 cubic yards of dirt as shown in Exhibit G to the Intergovernmental Public Facilities Agreement. (b) Extraordinary Development - Retail vendors within the development area will impose and collect from purchasers an amount equal to one-half percent of all sales as a public improvement fee (PIF). The PIF will be payable to the North Gateway No. 1 Public Improvement Corporation, but received and administered by the City, and be used to reimburse the developer for certain extraordinary public improvements in connection with the development as follows: $4,391,315 for hard costs and $717,200 for soft costs, or a total of $5,108,515 plus interest thereon as shown in Exhibit F to the Intergovernmental Public Facilities Agreement. After the developer is reimbursed $7,908,290 and accrued interest during a maximum period of approximately 35 years depending on the total development, the PIF and sales tax revenue may be used for construction of the Dillon Flyover and associated Platteville-lnterstate 25 interchange. The land owner will be expected to create other BIDs for commercial projects within the master planned area. The additional BIDs will also assist in funding the total Platteville-1-25 interchange including the Dillon Flyover costs now estimated to be $18 million. The developer is required to start the Dillon Flyover construction when Phase III of the development commences. FINANCIAL IMPACT City will divert one-half cent of its 3.5 cent sales tax revenue generated from sales within the development area to reimburse the developer $2,799,775 plus interest for costs associated with the Dillon Flyover as determined by Orix and approved in the Intergovernmental Agreement. The City will receive as an administrative fee for administering the PIF and sales tax revenue as provided in the Agency Agreement. AGENCY AGREEMENT AMONG ORIX PUEBLO, LLC NORTH GATEWAY NUMBER ! BUSINESS IMPROVEMENT DISTRICT NORTH GATEWAY NUMBER 1 PUBLIC IMPROVEMENT CORPORATION CITY OF PUEBLO, COLORADO DATED AS OF NOVEMBER 24, 2003 1493689 This Table of Contents is not a part of this Agency Agreement and is only for convenience of reference. TABLE OF CONTENTS ARTICLE 1 CITY AGREEMENT TO RECEIVE PIF AND SALES TAX REVENUES ARTICLE 2 PUBLIC IMPROVEMENT FEES; SALES TAX Section 2.1 Nature and Imposition of the Public Improvement Fees ...................................... 3 Section 2.2 Provision of PlF lnfo~mation ................................................................................ 4 Section 2.3 Calculation of PIF ................................................................................................. 4 Section 2.4 Remittauee of PIF Revenues to the City ............................................................... 4 ARTICLE 3 COLLECTION OF THE PIF REVENUES Section 3.1 Collection of the PIF Revenues ............................................................................ 6 Section 3.2 Covenants of the Parties ........................................................................................ 6 Section 3.3 Collection of Delinquent PIF Revenues ............................................................... 7 Section 3.4 Bankruptcy of a Development Site Retailer ......................................................... 8 Section 3.5 Fees and Reimbursable Expenses ......................................................................... 8 ARTICLE 4 MISCELLANEOUS Section 4.1 Sovereign Powers and Immunities of the City ..................................................... 9 Section 4.2 General Description of Duties Hereunder; Resignation; Removal; AssJEnment.. 9 Section 4.3 Notices ............................................. ~ .................................................................... 9 Section 4.4 No Third Party Beneficiaries .............................................................................. 10 Section 4.5 Binding Effect ..................................................................................................... 10 Se~ion 4.6 Amendments ....................................................................................................... 10 Section 4.7 Computation of Time., ........................................................................................ 10 Section 4.8 Payments Due on a Day other than a Business Day ........................................... 11 Section 4.9 Severability ......................................................................................................... 11 Section 4.! 0 Execution in Counterparts ................................................................................... 11 Section 4.11 Applicable Law; Conflict with Intergovernmental Agreement .......................... 11 Section 4.12 Captious .............................................................................................................. 11 Section 4.13 Immunity of Officers, Employees and Agents of City, BID and Corporation And Developer .................................................................................................... 11 Section 4.14 Indebtedness of City ........................................................................................... 12 Section 4.15 Effectiveness of this Agreement ......................................................................... 12 Section 4.16 Counterparts ........................................................................................................ 12 ATTACHMENTS EXHIBIT A: GLOSSARY OF TERMS ................................................................................. A-1 EXHIBIT B: DESCRIPTION OP THE DEVELOPMENT SITE .......................................... B-1 EXHIBIT C: DEVELOPER CC&R'S .................................................................................... C-1 EXHlBIT D: GENERAL DESCRIPTION OF THE DUTIES OF THE PARTIES TO THIS AGENCY AGREEMENT ................................................................................ D-1 EXHIBIT E: FORM OF WAIVER OF CONFIDENTIALITY ............................................. E-1 1493699 ii AGENCY AGREEMENT This Agency Agreement regarding the collection of Public Improvement Fee Revenues and Sales Tax Revenues, dated as of November 24, 2003, among Orix Pueblo, LLC, North Gateway Number 1 Business Improvement District, North Gateway Number 1 Public Improvement Corporation and the City of Pueblo, Colorado. PREFACE All capitalized temps used herein will have the meanings ascribed to them in Exhibit A attached to this Agency Agreement, or if not otherwise defined herein, as set forth in the Intergovernmental Public Facilities Agreement ("Intergovernmental Agreement"). In the event of any conflict in the meaning of capitali?ed term.q, the meaning ascribed to those terms in the Intergovernmental Agreement shall control. RECITALS A. The City is a municipal corporation and political subdivision duly organized and existing as a home role city under the provisions of Article XX of the Constitution and the laws of the State of Colorado and the home role Charter of the City. B. The City Council has heretofore, to the extent so provided in the Intergovernmental Agreement, detemfined and declared that it is in the best interests of the City that the BID Project and the CorpomtionProject be designed, engineered, acquired, constructed and installed for the benefit of the City. C. The Corporation is a Colorado nonprofit corporation organized pursuant to the provisions of the Colorado Nonprofit Corporation Act, articles 121 through 137 of title 7, Colorado Revised Statutes, as amen&d, for the purpose of providing public improvements in and around the City, including the design~ en~neering, acquisition, con~h-action, operation and maintenance of the Corporation Project. D. The North Gateway Number 1 Business Improvement Disk'act (the "BID") is a quxqi municipal corporation and political sulxtivision duly organiTed and existing as a Business Improvement District pursuant to the provisions of title 31, article 25, part 12, Colorado Revised Statutes, as amended, and Ordinance 7056 of the City. E. The BID and the Corporation have full power and authority to issue Bonds to provide financing for the Projects, which may be issued in one or more series (taxable or tax- exempt) as various phases of the Projects are undertaken; provided, however, Bonds will be issued only if the Corporation and/or the BID determine to issue such Bonds, and the conditions for the issuance of Bonds, as set forth in the Intergovernmental Agreement, have been fulfilled. F. The City previously (i) approved the purposes and activities of the BID and the Corporation, and (ii) has agreed to accept legal title to the BID Project and that portion of the Corporation Project that the City will accept, including all City approved additions thereto, upon 1493689 completion of the Projects in accordance with the City's standards and specifications and approval thereof by the City's Director of Public Works, conditioned upon compliance with any applicable gamrantee. Upon such completion and approval, the Developer will tmn.qfer tifie of thc BID Project and that portion of thc Corporation Project that thc City will accept, to the City. G. The parties hereto are authorized to enter into this Agency Agreement and, subject to the provisions hereof, the City is willing to receive the PIF Revenues and Sales Tax Revenues derived from the imposition of the PIF and the Sales Tax on Sales as provided hereunder. H. Notwithstanding the foregoing, it is clearly intended and understood by the City, the BID, the Corporation and the Developer that (i) the nature of the PIF is that of a contractual fee imposed for the benefit of the Corporation under tn'irate contract and not through the exercise of any City taxing authority, (ii) the PIF Revenues are not tax revenues in any form, (iii) once received by the City under this Agreement, the PIF Revenues and the Sales Tax Revenues are the property of the Corporation and the BID, respectively, to pay the Developer for (~m!ified Costs, as defined in the Intergovernmental Agreement, and to pay the principal of, and interest on, any Bonds issued by the Corporation or the BID, (iv) the authority of the City to receive the PIF Revenues is derived through this Agency Agreement, the Developer CC&R's and the Developer Leases, (v) that each Development Site Retailer has or will execute a Waiver of Confidentiality with respect to (A) information contained in the reports submitted to thc City by such Development Site Retailers and (B) their books and records related thereto, and (vi) the Sales Tax Revenue is subject to annual appropriation by the City as set forth in the Intergovernmental Agreement. I. Notwithstanding anything to the contrary herein or any other document related to the Projects, the parties hereto acknowledge and agree that (i) the Developer has no dominion or control over the PIF Revenues, (ii) to the extent any PIF Revenues are collected by the Developer, the Developer is acting solely as an agent for and on beho!f of the Corporation, (iii) the PIF is a fee imposed on the Development Site Retailers to finance the public improvements described in the Intergovernmental Agreement. J. THE BONDS, IF ANY, WILL NOT CONSTITUTE OBLIGATIONS, DEBT OR INDEBTEDNESS OR MULTIPLE FISCAL YEAR OBLIGATIONS OF THE CITY, AND WILL NOT CONSTITUTE OR GIVE RISE TO A PECUNIARY LIABILITY OF THE CITY, OR A CHARGE AGAINST ITS GENERAL CREDIT OR TAXING POWERS. THE CITY HAS NO OBLIGATION WHATSOEVER TO PAY THE PRINCIPAL OF AND/OR INTEREST ON ANY'SUCH BONDS. NOW, THEREFORE, for and in consideration of the mutual promises and covenants herein contained, the City, the BID, the Coq~oration and the Developer agree as follows: 1493689 2 ARTICLE 1 CITY AGREEMENT TO RECEIVE PIF AND SALES TAX REVENUES The Developer, as the party contrac, mlly imposing the PIF on behalf of the Corporation, and the Corporation, for the benefit of which the PIF is imposed, hereby appoint the City to receive the PIF Revenues from all Development Site Retailers. The BID, for the benefit of which Sales Tax Revenue may be annually appropriated and budgeted by the City, hereby appoints the City to receive the Sales Tax Revenue, so appropriated and budgeted. Under the Intergovernmental Agreement, the Developer hag agreed with the Corporation and the BID to design, engineer, construct and finance the Corporation Project and the BID Project, respectively. By the execution of this Agency Agreement, the City accepts the responsibility of receiving the PIF Revenues remitted to the City by the Development Site Retailers and depositing the PIF Revenues, less City's Administrative Fee, with the Corporation on a monthly basis, subject to the limitations and terms of this Agency Agreement. Furthermore, by the execution of this Agency Agreement, the City accepts the responsibility of receiving the Sales Tax Revenues annually budgeted and appropriated and depositing Sales Tax Revenue, less City's Administrative Fee, with the BID on a monthly basis, subject to the limitations and terms of this Agency Agreement. THE CITY IS NOT THE AGENT OF ANY PARTY TO THIS AGENCY AGREEMENT AND HAS ONLY THOSE RESPONSIBILITIES EXPRESSLY STATED HEREIN. THE OBLIGATIONS OF THE CITY UNDER THIS AGENCY AGREEMENT SHALL NOT CONSTITUTE A MULTIPLE FISCAL YEAR DIRECT OR INDIRECT DEBT OR OTHER FINANCIAL OBLIGATION WHATSOEVER OF THE CITY, AND THE PAYMENTS OF ANY COSTS OF THE CiTY INCURRED OR TO BE INCURRED IN PERFORMING ITS OBLIGATIONS HEREUNDER SHALL BE SUBJECT TO ANNUAL APPROPRIATION BY THE CITY COUNCIL. THE CITY SHALL HAVE NO OBLIGATION OR LIABILITY FOR UNPAID OR UNCOLLECTED PIF REVENUES OR SALES TAX REVENUES. ARTICLE 2 PUBLIC IMPROVEMENT FEES; SALES TAX Section 2.1. Nature and Imposition of the Public Improvement Fees. (a) The Projects have been or will be designed, engineered, acquired, maintained, constructed and/or installed by the Developer, in accorda_nce with the Intergovernmental Agreement. Costs of the Projects will be paid to the Developer with the proceeds of the PIF Revenues and Sales Tax Revenues, respectively. Co) Pursuant to the Intergovernmental Agreement, the Developer has agreed to include the PIF Provisions in the CC&R's and the Developer Leases for the benefit of the Coq~oration. The Developer shall record the CC&R's again~ the real property consisting of the Development Site that will nm with the land and includes the PIF Provisions. Once received by the City under this Agreement, all fight, title and interest in and to PIF Revenues shall be the property of the Corporation, and the Corporation has agreed to pay the Developer for Qualified Costs of the Corporation Project from the PIF Revenues as provided in the Intergovernmental Agreement. 14936s9 3 (c) All fight, title and interest to the Sales Tax Revenues shall be the property of the BID, and the BID has agreed to pay the Developer for Qualified Costs of the BID Project from Sales Tax Revenues as provided in the Intergovernmental Agreement. (d) The P1F shall be imposed upon and collected from each Development Site Retailer's customers and become due and payable from each Development Site Retailer in regard to all Sales. The Developer shall notify Development Site Retailers of any procedures that the Development Site Retailers should follow with respect to notifying customers concerning the PIF, as such procedures are developed by the Developer in consultation with the City and Corporation, so as to comply with all applicable laws and reasonable business practices. Development Site Retailers shall calculate and report PIF Revenues to the City as provided in the PIF Provisions under their Developer Leases or the Developer CC&R's. (e) The Sales Tax Revenue shall be collected in the usual and customary way by the Department of Finance of the City. Section 2.2. Provision of PIF Information. On or before January 1 each year, the Developer shall provide each Development Site Retailer with an Information Booklet prepared as provided in the Intergovernmental Agreement, as the same may be changed from time to time, regarding the imposition of the PIF and collection of the PIF Revenues. In addition, the City shall supply all Development Site Retailers which obtain a City Sales Tax License with reporting forms, procedures and other instructions concerning the collection and remittance of PIF Revenues. The City's costs of preparation of such fro,,,.% procedures and other instractions shall be paid as set forth in Section 3.5 hereof. If the City changes such reporting form% procedures or other in.~ixactions, the City shall promptly communicate such changes to Development Site Retailers, the Developer and the Corporation upon the preparation thereof. Section 2.3. Calculation of PIF. Pursuant to the terms of the Intergovernmental Agreement, the PIF shall be determined by multiplying the amount of each Sale by one half percent (.50%); provided, however, that after the Developer is paid for the PI1~ Qualified Costs, the amount of the PIF shall be reduced from .50% to .25% of all Sales. The PIF shall be due and payable in accordance with the provisions of Section 2.4 hereof. Section 2.4. Remittance of PIF Revenues to the City. PIF Revenues shall be remitted to the City substantially as set forth below: (a) Not later than the 20th day of the first month following the end of a Collection Month, Development Site Retailers shall remit Collected PIF Revenues to the City by means of reporting forms, as the same may be changed from time to time, and procedures to be provided by the City to the Development Site Retailers consistent with Section 2.2 hereof. Reporting 1493689 4 forms will be on file with the City and available upon reasonable request. Any specific instructions regarding use of reporting fo, a~s and payment procedures in addition to the information set forth in the Information Booklet will be provided to the Development Site Retailers by the City. (b) The PIF shall be calculated and imposed on all Sales at the rate stated in Section 2.3 hereof prior to the calculation and assessment of City's Sales Tax, and before any other State, county, municipal or other sales taxes required to be imposed by law. PIF shall be added to and become part of the sales price with respect to Sales subject to City's Sales Tax prior to the addition of the City's Sales Tax. All Sales Tax and sales taxes of other taxing entities shall be calculated and assessed on the sum of the sales price plus the mount of the PIF. (c) It is the intent of the parties hereto that all adjusiments, including, but not limited to refunds, additions, or other modifications to PIF Revenues due from the Development Site Retailers, shall be processed in a manner substantially similar to the process used by the City for any appropriate adjustments to City's Sales Tax. If any subsequent adjustments, additions, or modifications are made to any PIF Revenues remitted or paid, or report made, by a Development Site Retailer to the City, that Development Site Retailer shall provide the City with tree and complete copies of all revised reports or other written material issued or received by a Development Site Retailer in regard thereto. If any such adjustment increases the amount of PIF which the Development Site Retailer is required to remit or pay, or results in a refund of excess PI~, the Development Site Retailer shall immediately pay such additional PIF in the amount due, or shall receive an appropriate credit against the next P1F due from that Development Site Retailer in the amount of such excess PIF. The Development Site Retailer shall claim such credits and/or pay such additional PIF in the next monthly reporting period by use of the standard reporting and remittance forms. All reports made or provided by Development Site Retailers shall be maintained by the respective Development Site Retailers for at least four (4) years from the date of submission thereof to the City and, upon written request to a Development Site Retailer, shall be made available to the City, the Corporation and/or the Developer for i~.qpection and audit. Reports received by the City, the Corporation or the Developer will remain confidential, to the extent permitted or required by law, and be used only for purposes of collecting PIF due, enforcing Development Site Retailers' obligations under the Developer CC&R's or their respective Developer Leases, and otherwise monitoring compliance with the provisions thereof. (d) Notwithstanding anything contained in this Agreement to the contrary, all sales and use tax reports filed by any taxpayer, including, but not limited to, any Development Site Retailer and information contained therein are confidential, and nothing contained in this Agreement or the Intergovernmental Agreement (other than by operation of law) shall be or be conch ued to require or authorize the disclosure or release of any such report or information. ARTICLE 3 COLLECTION OF THE PIF REVENUES Section 3.1. Collection of the PIF Revenues. As described below, the City, as agent of the Corporation and the Developer, shall be the party charged with the initial responsibility of receiving the PIF Revenues. Notwithstanding the foregoing, the Corporation is the lawful recipient of its portion of the PIF Revenues; and the Corporation and the Developer are hereby and under the Developer CC&R's and Developer Leases expressly made third party beneficiaries of the Development Site Retailers' obligations under the PIF Provisions contained in the Developer CC&R's and Developer Leases, including, but not limited to, the assessment, collection, and remittance of PIF Revenues. Nothing in this Agency Agreement shall impair the City's right, as agent of the Corporation and the Developer, to enforce its rights against Development Site Retailers under the Developer CC&R's and Developer Leases. If the Developer receives or othevecise possesses any PIF Revenues, either through exercising its rights (reserved under this Section) to enforce the provisions of the Developer CC&R's and Developer Leases or otherwise, the Developer hereby agrees that it shall hold such funds in trust as an agent for the Corporation and to remit the PIF Revenues to the City, immediately and without demand, all such sums so received or otherwise in its possession. Section 3.2. Covenants of the Parties, (a) To the extent permitted by law, and subject to Section 2.4(d) hereof, all books and documents in the possession of any party to this Agency Agreement relating to the PIF Revenues shall at all reasonable limes be open to inspection by the other parties to this Agency Agreement or their designees, subject to any other applicable confidentiality restrictions, if any. Co) The Developer shall not enter into any agreement mending any of the PIF Provisions contained in the Developer CC&R's or the Developer Leases or waive any such provision, and any such purported amendment or waiver shall be void and of no force and effect. (c) The Developer, the Corporation and the City shall at ail times fully perform and comply with any agreements, covenants, terms and conditions imposed upon or assumed by them pertaining to the PIF; and if any party fails to do so, the City shall, if it has actual knowledge of such failure, give written notice to the Developer and the Corporation, or, in the case of the City, the Corporation shall give written notice to the City of such failure. If the identified failure is not corrected within thirty (30) days of the receipt of such written notice, the City may with respect to the Developer or the Corporation, or the Corporation, may, with respect to the City (but neither the City nor the Corporation is obligated to), take any action the City or the Corporation, respectively, reasonably deems necessary or desirable to prevent or to cure any default by a party in the performance of, or compliance with, any of a party's covenants or obligations pertaining to such PIF. The City or Corporation may (but neither the City nor the Corporation is obligated to) pay and expend such sum.q of moneys as the City or Corporation, in its reasonable discretion, deems necessary for this purpose. (d) The Developer shall, from time to time, but not later than the end of each calendar qn~rter commencing December 31, 2003, provide to the City and the Corporation current listings of the names and addresses of all Development Site Retailers and the date of opening of a Development Site Retailer's store or operation. The Developer shall provide such other information reasonably requested by the City or the Corporation to allow them to fulfill their respective obligations under this Agency Agreement. (e) The Developer shall provide a waiver by each Development Site Retailer either through or in the Developer Leases or transactions involving the Developer CC&R's or by a waiver in fom~ reasonably satisfactory to the City with respect to allowing the City to share the information pertaining to the PIF contained in the reports, returns and other documents as are delivered by Development Site Retailers pursuant to the terms of the Developer CC&R's and Developer Leases and in substantially the form set forth in Exhibit E attached hereto. (f) Within thirty (30) days of receipt of a written request and tender of all reasonable costs thereof from the Developer, Developer's lender, or a Development Site Retailer, the Corporation shall provide an estoppel certificate or substantially similar evidence confirming (or disclosing if applicable) that, to the best of its or their knowledge, as the case may be, (i) there have been no defaults or breaches of any of Developer's obligations pertaining to the PIF under the Intergovernmental Agreement or this Agency Agreement and (ii) providing such other information or requests relating to the PIF as the Developer, Developer's lender or a Development Site Retailer may reasonably request. Section 3.3. Collection of Delinquent PIF Revenues. (a) The City shall take the following specific actions in connection with the receipt of PIF Revenues: (i) The City shall receive the PIF Revenues as remitted by each Development Site Retailer after the close of each Collection Month, as required by the Developer CC&R's and under the Developer Leases. Upon receipt thereof, such PIF Revenues shall be remitted monthly by the City to the Corporation in accordance with the Intergovernmental Agreement. . (ii) The City shall receive from the Development Site Retailers, on or before the 20th day of the first month following the close of each Collection Month, such reports, returns and other documents as are delivered by Development Site Retailers pursuant to the terms of the Developer CC&R's and Developer Leases. (iii) To the extent permitted by law, the City shall receive and collect PIF Revenues in a manner similar to the procedures and processes used for receipt and collection of City's Sales and Use Tax. (iv) The City may, as agent of the Corporation and the Developer, take all commercially reasonable action necessary to effect a direct cause of action and exercise the Developer's full fight and authority to enforce the available remedies with respect a 7 breach of the PIF Provisions by a Development Site Retailer of its obligations imposed by the Developer CC&R's or under its Developer Lease. The City may take commercially reasonable efforts, to complete collection of delinquent PIF Revenues, reports, returns and other documents. If the City fails to pursue legal action to collect the delinquent PIF, the Developer is authorized to pursue such action. (v) The City shall provide to the Corporation and the Developer, within ninety (90) days after the end of each Fiscal Year, an annual unaudited report setting forth the PIF Revenues received by the City for the preceding Fiscal Year. At reasonable times during regular business hours, upon not less than twenty (20) days notice to the City, the Developer or the Corporation are hereby authorized to audit or cause audits to be conducted of the City's books and records (except confidential sales and use tax reports and information) with respect to the City's receipt of the PIF. If an audit uncovers a deficiency in deposits of PIF Revenues with the Corporation resulting from misapplication of moneys by the City, the City shall pay within sixty (60) days the full amount of such misapplication to the Corporation. (vi) In addition to the foregoing procedures, the City hereby agrees to provide written notice to the Corporation and the Developer of the amount of the Reported Sales for the preceding Fiscal Year as part of the alLrlnal unaudilP~d report submitted pursuant to (v) above. Co) The City, or its designated representative, is authorized and the Developer shall include such authorization in the Developer's Leases and Developer CC&R's: (i) to audit the books and records of the Development Site Retailers in determining compliance with the PIF collection and remittance obligations of Development Site Retailers under the Developer CC&R's and Developer Leases; and (ii) to release such audited information and any reports, returns and other documents as are delivered to the City by the Development Site Retailer (except confidential sales and use tax reports and information) and any information pertaining to the PIF gathered by the City during an audit. Section 3.4. Bankruptcy of a Development Site Retailer. If any party to this Agency Agreement receives actual notice in writing with respect to any action in bankruptcy by a Development Site Retailer, such party shall as soon as practicable give written notice or convey copies of the written notice it received to all of the other parties hereto. Section 3.5. Fees and Reimbursable Expenses. In consideration of its performance of services hereunder, the City shall receive a five percent (5%) Administrative Fee on all Sales Tax Revenues and PI1~ Revenues that the City receives. The City shall withhold such administrative fee from all Sales Tax Revenue and PIF 1493689 Revenue received by the City before remitting the balance thereon to the BID and the Corporation, respectively. ARTICLE 4 MISCELLANEOUS Section 4.1. Sovereign Powers and Immunities of the City. Nothing in this Agency Agreement shall be construed as diminishing, delegating, or otherwise restricting any of the sovereign powers or immunities of the City. Section 4.2. General Description of Duties Hereunder; Resignation; Removal; Assignment. Attached hereto as Exhibit D is a general description of the duties of the parties to this Agency Agreement. Exhibit D is intended to be a general description for reference only and in the event there is any inconsistency between any provision of this Agency Agreement and any general description contained in Exhibit D, the provision of this Agency Agreement shall control. Neither the Developer nor the Corporation nor the BID is authorized to resign fxom its position under this Agency Agreement. The City may resign by written resignation given as provided in Section 4.3 hereof to the other parties to this Agency Agreement not less than ninety (90) days before the date when such resignation is intended to take effect. The City's resignation shall take place without the appo'mtment of a successor to its duties hereunder; provided, however, if no agreement is entered into by the Corporation, the BID and the Developer with a substitute agent, the Corporation shall assume all obligations of the City hereunder prior to the effectiveness of the City's resi~maafion. This Agency Agreement may be assigned by any party hereto to a financiallY viable entity that can perform the obligations of the assi~ing party. Section 4.3. Notices. All notices, certificates or other communications to be given hereunder shall be sufficiently given and shall be deemed given when delivered or mailed by certified or registered mail, po~ge prepaid, addressed as follows: Notices to the City: City of Pueblo 1 City Hall Plaza Pueblo, CO 81003 Attention: Director of Finance and City Manager Fax: 719/553-2698 Notices to Corporation: North Gateway Number 1 Public Improvement Corporation c/o City,of Pueblo 1 City Hall Plaza Pueblo, CO 81003 1493689 9 Attention: City Manager Fax: 719/553-2698 Notices to BID: North Gateway Number 1 Business Improvement District c/o City of Pueblo 1 City Hall Plaza Pueblo, CO 81003 Attention: City Manager Fax: 719/553-2698 Notices to Developer: ORIX Pueblo, LLC c/o ORIX Real Estate Equities, Inc. 100 North Riverside Plaza, Suite 1400 Chicago, IL 60606 Fax: 312/669-6464 The City, the BID, the Corporation and the Developer may, by written notice, designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent. Section 4.4. No Third Party Beneficiaries. It is expressly understood and agreed that enforcement of the tes,,,.q and conditions of this Agency Agreement, and all rights of action relating to such enforcement, shall be slrictly reserved to the City, the Developer, the BID, the Corporation, and their respective successors and assigns, and nothing contained in this Agency Agreement shall give or allow any such claim or right of action by any other person with respect to this Agency Agreement. It is the express intention of the City, the BID, the Corporation and the Developer that any person other than the City, the BID, the Corporation and the Developer, with respect to this Agency Agreement receiving services or benefits under this Agency Agreement shall be deemed to be an incidental beneficiary only. Section 4.5. Binding Effect. This Agency Agreement shall inure to the benefit of and shall be binding upon the BID, the City, the Corporation and the Developer and their respective successors and assign.q. Section 4.6. Amendments. This Agency Agreement may be amended, changed, modified or altered only in writing signed by all parties hereto. Section 4.7. Computation of Time. 1493689 10 In computing a period of days, the first day is excluded and the last day is included. If' the last day of any period is not a Business Day, the period is extended to include the next succeeding Business Day. If a number of months is to be computed by counting the months from a particular day, the period ends on the same l~umerical day in the concluding month as the day of the month firom which the computation is begun, unless there are not that many days in the concluding month, in which case the period ends on the last day of that month. Section 4.8. Payments Due on a Day other than a Business Day. If the date for making any payment or the last day for performance of any act or the exercising of any right, as provided in this Agency Agreement, shall be a day other than a Business Day, such payment may be made or act performed or right exercised on the next succe~'ling Business Day, with the same force and effect as if done on the nominal date provided in this Agency Agreement~ Section 4.9. Severability. If any provision of this Agency Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. Section 4.10. Execution in Counterparts. This Agency Agreement may be executed in several counterparts, each of which shall be an ori~nal and all of which shall constitute but one and the same in.qtmment. Section 4.11. Applicable Law; Conflict with Intergovernmental Agreement, This Agency Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. Venue for any action arising out of this Agreement shall be Pueblo County, Colorado. If there is a conflict with the provisions of this Agreement and the Intergovernmental Agreement, the provisions of the Intergovernmental Agreement shall govern. · Section 4.12. Captions. The captions or headings herein are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this Agency Agreement. Section 4.13. Immunity of Officers, Employees and Agents of City, BID and Cool, oration and Developer. No recourse shall be had for the payment of any moneys or interest thereon or for any claim based upon any obligation, covenant or agreement contained in this Agreement and its Exhibits (collectively the "Agreement") against any past, present or future officer, director, employee or agent of: (a) the City, (b) the BID, or (c) the Co~pomtion, or of any successor public corporation of the City, under any role of law or equity, statute or constitution or by the 1493689 11 enforcement of any assessment or penalty or otherwise, and all such liability of any such officers, directors, employees or agents as such are hereby expressly waived and released as a condition of and consideration for the execution of the Agreement; provided, however, any recourse for the payment of moneys or interest again~qt any past, present or future officer, director, employee, partner or agent of the Developer shall be satisfied only out of the assets of the Developer. Section 4.14. Indebtedness of City. No provision of this Agreement shall be constructed or interpreted as creating a general obligation or other indebtedness of the City within the meaning of any constitutional, statutory or Charter debt limitation. No provision of this Agreement shall be construed or interpreted as a delegation of governmental powers nor as a donation by or a lending of the credit of the City, or as creating a multiple-fiscal year direct or indirect debt or other financial obligation whatsoever of the City or a general obligation or other indebtedness of the City within the meaning of any constitutional Charter or statutory debt limitation, including, without limitation, Article X, Section 20 or Sections 1, 2 or 6 of Article 311 of the Constitution of the State. This Agreement shall not, directly or indirectly, obligate the City to make any payments beyond those appropriated for any fiscal year. No provision of this Agreement shall be construed to pledge or to create a lien on any class or source of City moneys. Section 4.15. Effectiveness of this Agreement. This Agreement shall become effective simultaneously with the Developer closing on phase one of the Development Site, pursuant to the temps of an agreement between the Developer and WL ENTERPRISES LTD, a New Mexico limi~xl partnership (the "Purchase Agreement"). This Agreement shall become effective for each of phases two, three, four and five of the Development Site when the respective closings for each of these phases occur pursuant to the terms of the Purchase Agreement. Section 4.16. Counterparts. This Agreement may be executed in any number of counterparts, each of which, when combined with the other counterparts to this Agreement, shall constitute a signed Agreement. This Agency Agreement is entered into and executed by the respective parties hereto this 24th day of November 2003 .... CITY OF PUEBL~ By Presidenq(-C:~~l - Bi ] ] Soya NOV 84 2883 17:55 FR ORIX REAL ESTATE 312 ~69 S4~5 TO 91719S840850 P.03/03 TOTAL PAGE.OOG ** NORTH GATEWAY NUMBER 1 BUSINESS IMPROVEMENT DISTRICT By President, City Council ORIX Pueblo, LLC, an Illinois limited liability company By: ORIX Real Estate E.qu~ies, Inc., a~ ~aware Corpomitiqfn,'C~ole member FJ'lmes ki.¥~rin[on President and Chief Executive Officer NORTH GATEWAY NUMBER 1 PUBLIC IMPROVEMENT CORPORATION By President, City Council 1493689 13 EXIq~IT A GLOSSARY OF TERMS Set forth below is a compilation of defined terms used in this Agency Agreement and the Intergovernmental Agreement. Reference is hereby made to the provisions of the Intergovernmental Agreement for a complete recital of the terms defined therein, some of which are set forth below. "Administrative Fee" means the fee received by the City pursuant to Section 3.5 of the Agency Agreement for receiving the PIF Revenues and the Sales Tax Revenues. "Agency Agreement" means the agreement by such name with the City dated as of November 24, 2003, as amended from time to time, or any successor agreement with the City or another PIF or Sales Tax receiving entity. "Bonds" means any Bonds in the form of bonds, notes, commercial paper, or other securities issued by the Corporation or the BID purs,,~nt to the provisions of a bond resolution adopted by the Board of Directors of the Corporation or the BID which are payable from the PIF Revenues or the Sales Tax Revenues, respectively, and which payment is secured by a pledge of, and lien on, such PIF Revenues or the Sales Tax Revenues, including, without limitation, Refunding Bonds and Variable Rate Bonds; but the term does not include any Subordinate "Business Day" means a day which is not (a) a Saturday, Sunday or legal holiday on which banking insfitutons in (i) the State, or (ii) the State of New York are authorized or required by law to close or (b) a day on which the New York Stock Exchange is closed. "Business Improvement District" or BID means the North Gateway Number 1 Business Improvement District created pursuant to the provisions of Title 31, Article 25, Part 12, Colorado Revised Statutes, as amended, and Ordinance 7056 of the City. "City" means the City of Pueblo, Colorado. "Collected PIF Revenues" means, for any Fiscal Year, the total amount of PIF Revenues received by the Corporation from the City, or any successor receiving entity, as set forth in a report of the Corporation. "Collection Month" means each calendar month in which the PIF Revenues are collected by the Development Site Retailers. "Corporation" means the North Gateway Number 1 Public Improvement Corporation, a nonprofit corporation organized under the laws of the State of Colorado. "Developer" means Orix Pueblo, LLC, an Illinois limited liability corporation. "Developer CC&R's" means the North Gateway Number 1 master declaration of easements, covenants, conditions and restrictions, called the "Operation and Easement Agreement," to be executed and recorded in the records of the County Clerk and Recorder of Pueblo County with respect to the Development Site, the burdens of which will run with the land. "Developer Leases" mean.q the leases entered into or to be entered into by the Developer with retail tenants and business establishments located or to be located within the Development Site. The term "Developer Leases" shall also include any occupancy agreement, licenses, sales contracts or similar arrangements under which a Person may become a Development Site Retailer. "Development Site" means, collectively, real property, described in Exhibit A attached to the Intergovernmental Agreement. "Development Site Retailers" shall have the same meaning as defined in Recital K of the Intergovernmental Agrcement. "Fiscal Year" means each the 12-month period beghaning January 1 and ending December 31. "Information Booklet" means the Information Booklet prepared by the Developer after review by the City regarding the imposition of PIF and the collection of PIF Revenues as such lnfoimation Booklet may be changed fxom time to time. "Intergovernmental Public Facilities ~4greement" or "Intergovernmental ~lgreement" means the Intergovernmental Public Facilities Agreement, d~ted as of November 24, 2003, entered into between the City, the Corporation, the BID and the Developer pursu_ant to which the Developer agrees to design, plan, engineer, acquire, construct and finance the Public Improvements that the BID and the Corporation desire, the City agrees to consider allocating the Sales Tax Revenues to the BID each year in its annual appropriation and budget ordinance, and the Developer agrees to require in the Developer Leases the imposition of the PIF on Sales (as defined in the Agreement and Intergovernmental Agreement) and to provide for the payment of the PIF Revenues to the Corporation. "Person(s)" means an individual, firm, corporation, partnership, company, association, joint stock company, trust, body politic or any other unincorporated organi?ation or any trustee, receiver, assignee, or other similar representative thereof. "PIF' means the public improvement fee required pursuant to the Developer Leases and Developer CC&R's to be assessed by retail tenants and business establishments located or to be located within the Development Site on all Sales occurring within the Development Site. The initial PIF shall be .50%, but such PIF may be increased as indicated in the PIF Provisions. "PIF Provisions" means the provisions relating to the imposition of the PIF set forth in Exhibit C to the Intergovernmental Agreement. A-2 "PIF Revenues" means the PIF Revenues derived t~om the imposition of the PIF payable to the Corporation puts-ant to the Intergovernmental Agreement, the Developer Leases and Developer CC&R's. "Reported Sales" means, for any Fiscal Year, Sales occurring from or within the Development Site in such Fiscal Year. "Sales" shall have the meaning ascribed thereto in recital 0 of the Intergovernmental Agreement. "Sales Tax Revenues" means the Sales Tax Revenues defined in Article 1, Section 1 of the Intergovernmental Agreement, to the extent such Sales Tax Revenues a~e budgeted and appropriated by the City on an annual basis in its budget. Notwithstanding anything contained in the Agency Agreement or the Intergovernmental Agreement, the City shall not be compelled to budget and appropriate the Sales Tax Revenues in any fiscal year, and such appropriation shall not constitute a multiple fiscal year obligation of the City. "Waiver of Confidentiality" means the Waiver of Confidentiality, the foam of which is attached to the Agency Agreement as Exhibit E, which each Development Site Retailer has or will execute with respect to (a) information contained in the reports submitted to the City by such Development Site Retailers and (b) their books and records related thereto. 1493689 A-3 EXHIBIT B DESCRIPTION OF THE DEVELOPMENT SITE EXHIBIT B DESCRIPTION OF THE DEVELOPMENT SITE A parcel of land being a portion of the SW 1/4of the SE 1/4 and the SW 1/4 of Section 1 and a portion of the NW 1/4 and the W 1/2 of the NE 1/4 of Section 12, Township 20 South. Range 65 West of the Sixth Principal Meridim~, Pueblo Count- Colorado, being more particularly described as follows: BEGINNING at the most northwesterly comer of Sky¥iew Subdivision according to the recorded plat thereof, filed for record November 5, 1980 in Book 2049 at Page 905 in the records of the Pueblo Count, Clerk and Recorder, said point also being on the easterly line of that parcel of land described in that document, filed for record January 18, 1985 in Book 2228 at Page 426 in the records of the Pueblo Count5' Clerk and Recorder, from which the SW comer of said Section 1 bears N 61°21'38" W (Bearings based on the west line of the SW 1/4 of said Section 1 monumented at the north end with a 1 1/2" aluminum Tri-Co cap PLS 7168 and at the south end with a 3" brass cap on a 2" iron pipe PLS 9009 assumed to bear N 07°03'43"E) a distance of 2255.54 feet; thence along the easterly and northerly line of said parcel described in Book 2228 at Page 426 the following three courses~ l. N 13017'40'' W a distance of 697.51 feet: (S 13°19'17'` E deed) 2. S 87°55'44" W a distance of 257.8t feet; (N 87° ~4 07 E,~57.81 feet deed) 3. S 52038'33'' W a distance of 198.63 feet; (N 52°36'56'E deed) thence N 15o42'29'' W a distance of 1773.73 feet; thence S 74°17'31'' W a distance of 81.00 feet; thence N 13006'53'' W a distance of 1033.88 feet to a point on the southerly right of way line of Platteville Boulevard, according to that document filed ~br record October 5, 1992 in Book 2617 at Page 298-299 in the records of the Pueblo County, Clerk and Recorder, thence along said southerly right of way line of Platteville Boulevard the following four (4) courses: l. along the arc ora non-tangent curve to the right whose center bears S _0 o2 ~4 E, having a central angle of 3°00'09'', a radius of 1000.27 feet, and a distance of 52.42 feet; 2. N 72027'35'' E a distance of 901.85 feet; 3. along the arc of a curve to the right having a central angle of 17003, 15" a radius of 800.22 feet, and a distance 238.19 feet; 4. N 89030'50'' E a distance of 449.61 feet to a point on the westerly right of way line of Interstate Number 25; th,nc~ alone said westerlx' right of way line of Interstate Number 2~ the following seven courses: t. along the arc ora non-tangent curve to the left whose center bears ix- 83°14'08" £. having a central angle of 6°30'00' a radius of 3830.00 feet, and a distance of 661.39 feet: 2. S 13°15'52'' E a distance of 767.60 feet; 3. S 08°32'0T' W a distance of 107.70 feet: 4. S 13°15'52 E a distance of 200.00 feet: 5. S o_~ 0o ~o E a distance of 107.70 feet: 6. S 13015'52" E a distance of,~8.74 feet: 7. S 05°44'52" E a distance of 343.09 feet to the northeasterly comer of Eaglecross Subdivision 4th Filing according to the recorded plat thereof filed for record December 30, 1998 at Reception No. 1256096 in the records of the Pueblo County Clerk and Recorder; thence N 89°56'51" W along the northerly line of said Eaglecross Subdivision 4th Filing a distance of 355.39 feet to a point on the easterly line of said Skyview Subdivision, thence along the northerly and said easterly line of said Sk}wiew Subdivision the following four (4) courses: 1. N 08°55'47" W a distance of 1048.11 feet; 2. S 80°57'35" W a distance of 474.24 feet; 3. N 57°57'07" W a distance of 95.30 feet; 4. thence S 32°02'03"W a distance of 209.96 feet to the POINT OF BEGINNING. EXHIBIT C PIF PROVISION C-1 In consideration of **Landlord's/Seller's** construction of extensive public improvements, the City of Pueblo (the "City"), Colorado (a) will include in its budget proposals submitted in fiscal year 2004 for fiscal year 2005, and for each fiscal year thereafter, an amount equal to one-half (1/2) cent of the City's three and one-half (3 ½) cent sales tax generated within the Development Site (as defined in the Sale Tax Agreement, hereinafter defined) for the next fiscal year, which amount will, subject to annual appropriation, be annually budgeted to a business improvement district (the "BID") pursuant to an Intergovernmental Agreement, referred to as the "Sales Tax Agreement" (as such agreement may be hereafter amended from time to time or supplemented by a new agreement which affects the development), which sales tax revenues will pay for certain public improvements, and (b) through the North Gateway Number 1 Public Improvement Corporation (the "Public Improvement Corporation") which will receive revenues from certain Public Improvement Fees ("PIF") (imposed in addition to applicable City of Pueblo sales taxes) as more fully set forth in that certain Intergovernmental Agreement, dated as of November 24, 2003,' between 'the City the Public Improvement Corporation and **Landlord/Seller** (as such agreement may be hereafter amended from time to time or supplemented by a new agreement which affects the development) (the "PIF Agreement") which PIF will pay for certain other public improvements. Notwithstanding the above, the Sales Tax Agreement and the P1F Agreement may be one (1) agreement. Leases or other occupancy agreements for the following "Non-Retail Users", which do not normally engage in retail sales, shall not require inclusion of the PIF provisions: (i) office users; (ii) industrial users; (iii) health care facilities; (iv) educational facilities; (v) instrumentalities of the federal, state or local government, (vi) post offices; (vii) banks; and (viii) service producers not providing services to the general public (e.g. research corporation). The following sales are exempted from the PIF: (i) sales of automobiles or other vehicles required to be registered under the Colorado Uniform Motor Vehicle Law to a purchaser who is not a resident of the City and who purchases such vehicles for use outside of the City, if at the time of sale, such purchaser executes and delivers to the retailer an affidavit, on forms approved by the Director, that he or she is not a resident of the City and that such vehicle will be used and registered outside the City. CAVEAT: The purchase of any such vehicle outside the City by a resident of the City for use in the City shall be subject to tax under applicable Pueblo codes, which tax shall be payable at the time such vehicle is registered. If any purchaser who is a resident of the City shall file a false affidavit under this subsection (i) or reg/ster any such vehicle to a place or address outside the Ci/y, he or she shall be liable for City sale and use tax on such purchase and shall be guilty of a violation of applicable Pueblo ordinances and be punished as provided in Section 1-2-1 of applicable Pueblo ordinances; (ii) sales under conditional sales contracts made prior to January 1, 1956; (iii) sales of tangible personal property shall be exempt if both the following conditions exist: (a) the purchaser is not a resident of the City as defined in Section 14-4-21 (18) in applicable Pueblo ordinances; and (b) the articles purchased are to be delivered to the purchaser outside the City at the purchaser's residence or place of business by common carrier or by the conveyance of the seller or by mail; (iv) all commodities which are taxed under the provisions of Section 138-2-5 to 138-2-23, C.R.S., and all commodities which are taxed under said provisions and the tax refunded, all sales and purchases of aviation fuel upon which no City sales tax was in fact, collected and retained prior to July 1, 1963 shall be exempt and the storage use of consumption of such aviation fuel shall additionally be exempt; (v) all sales of food as defined in Section 14-4-21(13) of applicable Pueblo ordinances, but not including food or drink taxable under Section 14-4-61(5) of applicable Pueblo ordinances; (vi) all sales of medical supplies as defined in Section 14-4-21 of applicable Pueblo ordinances; (vii) sales to the United States government; to the State of Colorado, its departments or institutions and the political subdivisions thereof, in their governmental capacities only, and provided that where delivery is to be made within the City at the time of sale or purchase present satisfactory evidence of being issued a current sales tax license for the City to the vendor or retailer, and he or she shall record such license number in documents relating to the transaction in support of the exemption claimed; (viii) Sales to charitable organizations as defined in Section 14- 4-21 of applicable Pueblo ordinances, in the conduct of their regular religious or charitable functions and activities, which organizations, at the time of sale or purchase, present satisfactory evidence of being issued a current tax exempt license for the City to the vendor or retailer, and he or she shall record such license number in documents relating to the transaction in support of the exemption claimed; (ix) sales which the City is prohibited from taxing under the Constitution or laws of the United States or the State of Colorado; (x) sales and purchases of neat cattle, sheep, lambs, swine and goats; and all sales and purchases of mares and stallions for breeding purposes; and all farm auction close-out sales; (xi) sales and purchases of feed for livestock or poultry, all sales and purchases of seeds, and all sales and purchases of orchard trees; (xii) sales of cigarettes; (xiii) sales of newspapers as def'med in Section 14-4-21 of applicable Pueblo ordinances, excluding preprinted newspaper supplements as defined in Section 14-4-21 of applicable Pueblo ordinances; (xiv) all sales and purchases of straw and other bedding for use in the care of' livestock shall be exempt, and the storage, use or consumption of straw and other bedding for use in the care of livestock shall be except; (xv) all sales of lodging services, as defined in Section 14-4-21 of applicable Pueblo ordinances, to any occupant who is a permanent resident of any establishment listed therein, under a written agreement for occupancy for a period of at least thirty (30) consecutive days; and (xvi) such other Non-Retail Users or exclusions as Public Improvement Corporation shall agree in its sole discretion taking into account ordinary and customary business practices and the likelihood that such users or category or users would ever conduct includable Sales at its premises. **Tenant/Buyer/Purchaser** hereby agrees that the entire "PIF Revenues" (as defined in the PIF Agreement) belong solely to **Landlord/Seller**, and **Tenant/Buyer/Purchaser** agrees to file any and all reports or forms, including, without limitation, the "Waiver of Confidentiality" agreement, required under the P~ Agreement to enable **Landlord/Seller** to receive such PII: Revenues, including, but not limited to, all monthly, quarterly and annual sales and sales tax information furnished to the State of Colorado Department of Revenues, the City and any other applicable agency(ies). **Tenant/Buyer/Purchaser** agrees to comply with the provisions of the PIF Agreement, and to the extent required to facilitate the PIF, agrees to execute any separate or supplemental agreement that may be required by the City or the Public Improvement Corporation. **Landlord/Seller**, at its election, may increase the PIF during any period, provided that such increase does not increase **Tenant//Buyer/Purchaser**'s** sales tax obligation thereunder more than what other similar retailers are paying as sales taxes in the Pueblo, Colorado metropolitan area. It is expressly agreed that the sales tax revenues relate to contractual arrangements between **Landlord/Seller** and the BID under applicable Colorado laws. It is expressly agreed that the PIF Revenues relate to contractual arrangements between **Landlord/Seller** and the Public Improvement Corporation under applicable Colorado laws. The Sales Tax Agreement and the PIF Agreement are binding obligations upon the Shopping Center, its tenants, purchasers, the City, the BID and the Public Improvement .Corporation. Revenues shall re remitted to the City substantially as set forth below: (a) The City shall supply all Development Site Retailers which obtain a City sales tax license, with reporting forms, procedures and other instructions concerning the collection and remittance of PIF Revenues. If the City changes such reporting forms, procedures or other instructions, the City shall promptly communicate such changes to Development Site Retailers, **Landlord/Seller** and the Corporation upon the preparation thereof. Not later than the 20t~ day of the first month following the end of a Collection Month (as defined in the Agency Agreement by and between the City, **Seller/Landlord**, Public Improvement Corporation and the .BID which agreement is hereinafter referred to as the "Agency Agreement"), Development Site Retailers (as defined in the Agency Agreement) shall remit collected P[F Revenues to the City by means of reporting forms, as the same may be changed from time to time, and procedures to be provided by the City to the Development Site Retailers consistent with Section 2.2 of the Agency Agreement. Reporting forms and any specific instructions regarding use of reporting forms and payment procedures in addition to the information set forth in the Information Booklet (as defined in the Agency Agreement) will be provided to **Landlord/Seller** and the Development Site Retailers by the City. (b) The P~ shall be calculated and imposed on all Sales, subject to the City's sales tax ordinances, at the rate stated in Section 2.3 of the Agency Agreement prior to the calculation and assessment of the City's Sales Tax (as defined in the Agency Agreement), before any other State of Colorado, county, municipal or other sales taxes required to be imposed by law are imposed: The PIF shall be added to and become part of the sales price with respect to Sales subject to the City's Sales Tax prior to the addition of the City's Sales Tax. All Sales Tax and sales taxes of other taxing entities shall be calculated and assessed on the stun of the s/~les price plus the amount of the PI1~. (c) It is the intent of the parties hereto that all adjustments, including, but not limited to refunds, additions, or other modifications to PIF Revenues due from the Development Site Retailers, shall be processed in a manner substantially similar to the process used by the City for any appropriate adjustments to the City's Sales Tax. If any subsequent adjustments, additions, or modifications are made to any PIF Revenues remitted or paid, or report made, by a Development Site Retailer to the City, that Development Site Retailer shall provide the City with true and complete copies of all revised reports or other written material issued or received by a Development Site Retailer in regard thereto. If any such adjustment increases the amount of PIF which the Development Site Retailer is required to remit or pay, or results in a refund of excess PIF, the Development Site Retailer shall immediately pay such additional PIF in the amount due, or shall receive an appropriate credit against the next PIF due from the Development Site Retailer in the amount of such excess PIF. The Development Site Retailer shall claim such credits and/or pay such additional PIF in the next monthly reporting period by use of the standard reporting and remittance forms. All reports made or provided by the Development Site Retailers shall be maintained by the respective Development Site Retailers for at least four (4) years from the date of submission thereof to the City and, upon written request of a Development Site Retailer, shall be made available to the City, the Corporation and/or the **Landlord/Seller** for inspection and audit. Reports received by the City, the Corporation or the **Landlord/Seller** will remain confidential, to the extent permitted or required by law, and be used only for purposes of collecting the PIF due, enforcing Development Site Retailer's obligations under the CC&R's (as defined in the Agency Agreement) or their respective Leases (as defined in the Agency Agreement), and otherwise monitoring compliance with the provisions thereof. (d) Notwithstanding anything contained in this **Lease/Contract/Agreement** to ~the contrary, all sales and use tax reports filed by any taxpayer, including, but not limited to, any Development Site Retailer and information contained therein are confidential, and nothing contained in this **Lease/Contract/Agreement** or the Intergovernmental Agreement (other than by operation of law) shall be construed to require or authorize the disclosure or release of any such report or info.nation. Notwithstanding anything to the contrary contained herein, the City, or its designated representative, is authorized (i) to audit the books and records of the Development Site Retailers in order to determine compliance with the PIF collection and remittance obligations of Development Site Retailers under the CC&R's and Leases; and (ii) to release such audited information and any reports, returns and other documents as are delivered to the City by the Development Site Retailer (except confidential sales and use tax reports and information) and any information pertaining to the PIF gathered by the City during an audit. [**MAKE SURE TO DELETE SELLER/LANDLORD/TENANTfI~URCHAS ER/BUYER/CONTRACT/AGREEMENT/LEASE AS NEEDED DEPENDING ON WHAT DOCUMENT THIS LANGUAGE IS GOING INTO.**] EXHIBIT D GENERAL DESCRIPTION OF THE DUTIES OF THE PARTIES TO THE AGENCY AGREEMENT Section of PIF Collection Agreement Duty(ies) Party(ies) Article 1 Appoint City to receive PIF Revenues Corporation/Developer Appoint City to receive Sales Tax Revenues BID §2.1 (b) Establish PIF by executing and recording Developer CC&R's Developer §2.1 (d) Require Development Site Retailers to impose PIle; notify Development Site retailers of imposition and collection procedures; develop collection procedures in consultation with City Developer Require all Development Site Retailers to impose PIF and collect PIF Revenues Developer §2.2 Supply Development Site retailers with reporting forms; communicate changes in reporting foims and remittance procedures to Development Site Retailers, Corporation and City Developer Annually distribute latest version of Information Booklet to all Development Site Retailers Developer §2.4(a) Receive PIF Revenues City Provide Information Booklet to Development Site Retailers Corporation §3.1 Responsible for receipt of PIF Revenue City Authorized to enforce imposition of PlF and collection of PIF Revenues City Deliver any PIF Revenues in its possession to the Corporation Developer §3.2(c) Notify either Developer, Corporation or City of party's failure to perform and comply with PIF Provisions; if not corrected, may (but is not obligated to) take such action as deems reasonably necessary to cure default City/Corporation 1493689 D-1 §3.2(d)(e) Provide list of Development Site Retailers to City and Corporation and waiver or release of Developer information Section of PI1~ Collection Agreement Duty(ies) Party(ies) §3.2(e) May request information regarding Development Site Retailers City 93.3(a) PIF Revenue collection procedures and responsibilities City §3.3(a)(i) Receive and process PIF Revenues City §3.3(a)(iv) Pursue delinquent PIF Revenues City/Developer §3.3(a)(v) Provide annual unaudited report City Authorized to cause audits of City's PIF records CorporationfDeveloper §3.3(a)(vi) Give written notice to Corporation and Developer of (annual) PIF Collection City 93.5 Withhold administrative fee of City City 94.2 May resign. · City 1493689 D-2 EXHIBIT E FORM OF WAIVER OF CONFDENTIALITY AGREEMENT PARTIES TO LEASE: LANDLORD ORIX Pueblo, LLC TENANT: DATE OF LEASE: LEASE TERM: PROPERTY/STORE DESCRIPTION OR NAME: ADDRESS OF TENANT: Tenant hereby acknowledges that it is a party to the above referenced Lease which contains provisions regarding the duty to impose and collect a Public Improvement Fee ("PIF") as specifically addressed in Article __ of said Lease. Tenant has been provided a PIF Information Booklet from Orix Pueblo, LLC ("Developer") and/or the North Gateway Number 1 Public Improvement Corporation (the "Corporation") that has been prepared by the Developer and the City of Pueblo, Colorado (the "City"). The undersigned is fully authorized to act on behalf of the Tenant in the matters covered by this Waiver of Confidentiality and, in such capacity, does hereby agree to the terms of Article __ of the Lease and specifically authorizes the City to: (i) audit the books and records of the Tenant in determining compliance with the PIF collection and remittance obligations of Tenant under the Lease; and (ii) release to the Landlord and the Corporation such audited information and any reports, returns and other documents as are delivered to City by the Tenant (except confidential sales and use tax reports and information) and any material information pertaining to the PIF gathered by the City during an audit. In addition, all audited information, reports, returns and other documents provided to the City by Tenant shall be maintained by the Tenant in accordance with Article __ of the Lease for at least four (4) years from the date of submission thereof to the City and, upon written request of the Corporation, shall be made available to the Corporation and/or the Landlord for inspection and audit at the Tenant's place of business. TENANT: ¢,lame) By: Its: 1493689 E-1 INTERGOVERNMENTAL PUBLIC FACILITIES AGREEMENT AMONG ORIX PUEBLO, LLC NORTH GATEWAY NUMBER 1 BUSINESS IMPROVEMENT DISTRICT NORTH GATEWAY NUMBER 1 PUBLIC IMPROVEMENT CORPORATION CITY OF PUEBLO, COLORADO DATED AS OF NOVEMBER 24, 2003 1493692 This Table of Contents is not a part of this Agency Agreement and is only for convenience of reference. 2. 3. 4. 2. 3. 4. 5. 6. 7. 8. TABLE OF CONTENTS ARTICLE 1 BUS[NESS IMPROVEMENT DISTRICT ARTICLE lI COVENANT TO IMPOSE PUBLIC IMPROVEMENT FEE; COLLECTION OF PIF AND SALES TAX REVENUES Imposition of the PIF ........................................................................................................ 4 Collection of the PI~ and Sales Tax Revenue .................................................................. 5 In formation Booklet .......................................................................................................... 5 Use of PIF Revenues and Sales Tax Revenues ................................................................. 5 ARTICLE In CONSTRUCTION AND OPERATION OF PROJECTS Use of PIF Revenues and Sales Tax Revenues ................................................................. 6 Projects' Conslxuetion Use of PIF Revenues and Sales Tax Revenues ............................ 6 Conditions to Issue Bonds ................................................................................................ 7 Schedule ............................................................................................................................ 7 Construction Manager ....................................................................................................... 7 Compliance with Laws ..................................................................................................... 7 Project Maintenance .......................................................................................................... 8 Subdivision Maintenance .................................................................................................. 8 ARTICLE IV MISCELLANEOUS TERMS AND CONDmONS 1. Representations and Warranties ........................................................................................ 8 2. Corporate Governance ...................................................................................................... 8 3. Attorney's Fees ................................................................................................................. 4. Entire Agreement .............................................................................................................. 9 5. Amendment ....................................................................................................................... 9 6. Notices .............................................................................................................................. 9 7. Severability ..................................................................................................................... 10 8. Successors and Assigns ................................................................................................... 10 9. Counter Execution .......................................................................................................... 10 10. Interpretation ................................................................................................................... 10 11. Exhibits ........................................................................................................................... 10 12. Indebtedness .................................................................................................................... 10 13. Immunity of Officers, Employees and Agents of City, BID and Corporation and Developer ................................................................................................................. 11 14. Parties Interested Herein ................................................................................................. 11 15. Effectiveness of this Agreement ..................................................................................... 11 16. Counterparts .................................................................................................................... 11 1493692 INTERGOVERNMENTAL PUBLIC FACILITIES AGREEMENT THIS INTERGOVERNMENTAL PUBLIC FACILITIES AGREEMENT ("Agreement") is made and entered into as of the 24th day of November, 2003, by and among the'CITY OF PUEBLO, COLORADO (the "City"), NORTH GATEWAY NUMBER 1 PUBLIC IMPROVEMENT CORPORATION, a Colorado non-profit corporation (the "Corporation"), NORTH GATEWAY NUMBER 1 BUSINESS IMPROVEMENT DISTRICT, a Colorado quasi- municipal corporation (the "BID") and OR1X PUEBLO, LLC, an Illinois limited liability company (the "Developer"). The City, the BID, the Corporation and the Developer are sometimes hereinafter referred to as the "parties" or "Parties." RECITALS A. The BID has been duly organized pursuant to the provisions of the Colorado Business Improvement District Act, sections 32-25-1201 et seq., Colorado Revised Statutes, as amended (the "Act"), and is authorized to provide for the design, planning, engineering, acquisition, construction and financing of certain public improvements within the BID; the public improvements and services pertain to the development of the Platteville-I-25 interchange for the benefit of, and on behalf of, the City of Pueblo, Colorado, and its inhabitants; and B. The Corporation has been duly organized pursuant to the provisions of the Colorado Nonprofit Corporation Act, articles 121 through 137 of title 7, Colorado Revised Statutes, as amended (the "Act"), and is authorized to design, plan, engineer, acquire, coustmct, finance, operate and maintain public improvements alSO pertaining to the development of the Platteville-I-25 interchange, and related public improvements, particularly as it relates to the Dillon Flyover, for the benefit of, and on behalf of, the City of Pueblo, Colorado, and its inhabitants; and C. The BID is authorized to enter into contracts and agreements affecting the affairs of the District; and D. The Corporation is authorized to enter into contracts and agreements affecting the affairs of the Corporation; and E. The Developer has proposed to develop a regional retail shopping center (the "Development"), in five phases, on certain real property more particularly described in Exhibit A attached hereto, (the "Development Site") located in the City and within the boundaries of the BID; and F. Pursuant to this Agreement, the Developer proposes to design: plan, engineer, construct and finance, in ph~qes, certain public improvements that the BID desires to be constructed pertaining to the development of the Platteville4-25 interchange, particularly as it relates to the Dillon Flyover, including roads, utilities, structures and related public facilities in connection with the Development (collectively, the "BID Project") all as more fiflly set forth in Exhibit B hereof; and 1493692 G. PllrSllarlt to this Agreement, the Developer proposes to design, plan, en~necr, acquire, construct and finance certain extraordinary public improvements that the Corporation desires to be constructed in connection with the Development (collectively, the "Corporation Project" and collectively with the BID Project, the "Projects") ail as more fully set forth in Exhibit C hereto; and H. The BID proposes to pay the Developer for BID qualified costs of the public improvements as defined in Exhibit G to this Agreement (the "BID Q~mlified Costs") from Saies Tax Revenues received from the City pursuant to Article I hereof. I. The City proposes to provide moneys to the BID based upon retail sales within the Development Site which would not other0vise have been generated within the City as provided in Article I hereof. J. The Corporation proposes to pay the Developer for PIF qualified costs as defined in Exhibit F to this Agreement (the "PIF Qualified Costs") from the PIF funds the Corporation receives pursuant to Article II hereof. IC In connection with the Development, the Developer (i) has entered into and will enter into leases, ground leases, sales contracts, license agreements and similar occupancy agreements (the "Developer Leases") with retail tenants and business establishments located or to be located on the Development Site (subject to those exceptions listed on Exhibit D attached hereto), (the "Development Site Retailers"); and (ii) has executed and recorded in the records of the County Clerk and Recorder of Pueblo County with respect to the Development Site the easements, covenants, conditions and restrictions cailed the "Operation and Easement Agreement" (the "Developer CC&R's"), the burdens of which will run with the land; and L. Pursuant to the Developer Leases and Developer CC&R's, Development Site Retailers will be required to assess a public improvement fee (the "PIF") of 0.50% on the Saies, subject to those exemptions as set forth on Exhibit E hereto; and M. Pursuant to an Agency Agreement, dated as of November 24, 2003 (the "Agency Agreement"), among the Developer, the BID, the Corporation and the City, the City has agreed to receive the Saies Tax Revenues on behaif of the BID and the PIF Revenues on behalf of the 'Corporation and remit the Sales Tax Revenues and PIF Revenues received, less an Administrative Fee of five percent (as defined in the Agency Agreement), to the BID and the Corporation, respectively; and N. The City, the BID, the Corporation and Developer desire to set forth herein their intentions with respect to the design, p]annin§, engineering, acquisition, construction, finance, maintenance, and operation of the Projects, the City's procedure to annually appropriate the Saies Tax Revenues, the Developer's contractual obligation to impose the PIF, the use and payment of Saies Tax Revenues, PIF Revenues, and other matters as set forth herein. 2 1493692 O. For purposes of this Agreement, "Sales" means and includes all sales and purchases of tangible personal property at retail upon which sales tax is levied pursuant to the City's sales tax ordinances. NOW, THEREFORE, for and in consideration of the foregoing recitals, the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE I BUSINESS IMPROVEMENT DISTRICT 1. The City will make moneys available to the BID based upon New Sales within all five phases of the Development Site (the "New Sales") in order for the BID to pay the Developer for public improvements that the BID desires to be constructed related to the BID Project and identified as BID Qnalified Costs. The Developer contemplates that the New Sales would constitute at least fifty (50) percent of all Sales generated within the Development Site. For purposes of this Agreement, if a retailer is new to the City, all sales generated from that store will be considered New Sales; if a retailer relocates to the Development Site from another part of the City, then New Sales shall be determined on a pro-rata basis based on the increase in sqnare footage of the retailer at the Development Site. The City Manager of the City (or other officer at any time charged with the responsibility of formulating budget proposals) is hereby directed to include in the budget proposals submitted in fiscal year 2004 for fiscal year 2005, and for each fiscal year thereafter, an item for payment of moneys to the BID in an amount estimated to equal one-half (½) cent of the City's three and one-half (3.5) cent sales taxes to be collected from Sales generated within the Development Site during the next fiscal year (the "Sales Tax Revenues"). The Developer may pwvide to the City Manager each year the Developer's estimate of New Sales for the Development Site for the coming year. The decision whether to budget the Sales Tax Revenues shall be solely by the City Council of City and not be any other City officer. Failure of the City Council, for any reason, to budget and appropriate, specifically with respect to the Sales Tax Revenues as herein provided, shall not constitute a default by City under this Agreement nor give rise to any liability or claim agaln.qt the City. Furthermore, it shall not be a default under this Agreement, and there shall be no liability or claim against the Developer, for the Developer to stop work on the BID Project, in any year that the City Council does not budget and appropriate the Sales Tax Revenues as indicated in this section. 2. The Sales Tax Revenues annually appropriated and budgeted to the BID for any fiscal year, less City's Administrative Fee, shall be remitted to the BID on a monthly pm-rata basis, no later than the fifteen (15) days of each month during such fiscal year. The City may amend its budget for any fiscal year to reflect the appropriate amount of Sales Tax Revenues to be remitted to the BID during such fiscal year. 3. The Board of Directors of the BID, or its designated representative, is authorized to pay the Developer monthly available Sales Tax Revenues for BID Qualified Costs for public improvements that the BID desires to be cor~tracted upon submission by the Developer and approval of the BID's Board of Directors, or its designated representative, of detailed invoices and documentation showing the status, nature and scope of the BID Qualified Costs to be 3 1493692 reimbursed. An invoice for payment of the BID Qualified Costs certified to be true and correct by an officer of the Developer that (i) the invoice and supporting documents are accurate, (ii) the amounts included in the invoice have not been included in any prior invoice for payment, (iii) the BID Q~mlified Costs identified in the invoice constitute a part of the BID Project and are included within the BID Qualified Costs set forth in Exhibit G and Section 4(b) to this Agreement, (iv) the BID Qualified Costs identified in the invoice have been completed, and (v) Developer has paid the BID Qualified Costs identified in the invoice, shall be considered prima facie acceptable for payment. ARTICLE II COVENANT TO IMPOSE PUBLIC IMPROVEMENT FEE; COLLECTION OF PI1e AND SALES TAX REVENUES 1. Imposition of the PIF. The Developer hereby agrees that in consideration of the Corporation paying the Developer for PIF Qualified Costs, the Developer shall undertake the design, engineering, acquisition, construction and. financing of the Corporation Project, and the Developer shall, for the benefit of Corporation, eontractuaily obligate Development Site Retailers, to assess, collect and remit a PIF equal to .50% of all Sales. The Corporation shall be entitled to receive such PIF Revenues, to the extent set forth in Article II, Section 4, herein, pursuant to the Agency Agreement, monthly, no later than the 20th day of each month, be~nning January 20, 2005. The contractual obligation of the Developer to impose the PIF and to assign any rights to PIF Revenues to the Corporation as herein set forth shall be satisfied by inclusion within each Development Site Retailer's lease or other agreement with the Developer pursuant to which such Development Site Retailer occupies a portion of the Development Site ("Developer Leases") of provisions substantially in the form attached hereto and incorporated here'm by reference as Exhibit F (the "PIF Provisions"). The Developer shall have no obligation to include the Plle Provisions in any Developer Lease with any Nonretail User within the Development Site. For purposes hereof, a "Nonretail User" shall mean those users as set forth on Exhibit D attached hereto. In addition, the Developer shall incorporate the foregoing contracbml obligation provisions into the Developer CC&R's to be recorded in the land records contemporaneously with the execution of this Agreement. The Parties agree that the PIF Provisions have been or shall be agreed to, and relied upon, by the Parties hereto. Therefore, the Parties agree that the PIF Provisions in any Developer Lease shall not be amended, modified or waived without the written consent of the Parties, and that any such purported amendment, modification or waiver without such consent shall be void and of no force and effect. During any period, if any, in which there are outstanding Bonds, no such amendment, modification or waiver of the PIF Provisions in any Developer Lease shall be permitted without the trustee's written consent thereto, and only those changes that are deemed nonmaterial to holders of the Bonds shall be permitted. The Developer's obligation to include the PIF Provisions in the Developer Leases and the PW Provisions shall commence upon the date hereof and continue in perpetuity. The Developer, the Corporation and the City may agree to change this period; provided in no event 4 1493692 shall this period be changed at any time in which Bonds of the Corporation are outstanding. The Developer, the Corporation, and the City shall agree upon reasonable procedures to verify Developer's compliance with this Section. In accordance with the Agency Agreement, the Developer shall provide complete and accurate listings to the City and the Corporation, of all current Development Site Retailers, and make available for inspection those portions of any Developer Lease containing the PIF Provisions with respect to such Development Site Retailers. 2. Collection of the PIF and Sales Tax Revenue. The Parties hereto acknowledge that pursa,ant to the Agency Agreement, the City shall receive the PIF revenues and Sales Tax Revenues directly from Development Site Retailers. The Developer agrees that it will cooperate with the City in its receipt of PIF Revenues and Sales Tax Revenues and will, through its agent, enforce the PIF Provisions, all as more fully set forth in the Agency Agreement. During any period in which the Agency Agreement is not in effect, the PIF and the Sales Tax Revenue will be collected by the Corporation or the City, respectively, or their respective agent. The City shall have no obligation or liability for unpaid or uncollected PIF Revenues or Sales Tax Revenues. 3. lnfomsation Booklet. In order to provide infomiation to Development Site Retailers regarding the calculation, collection and enforcement of the PIF, as well as the other general information relating thereto, the Developer shall annnally prepare an Information Booklet, the foi'm of which shall be provided to the City for review and comment no later than October 15 of each year. Comments, if any, shall be delivered to the Developer no later than November 15 of such year so that the Information Booklet may be finalized and distributed by the Developer to the then current Development Site Retailers no later than January 1 of the subsequent year. The cost of preparation, printing and distribution of the lnt~ormation Booklet shall be borne by the Developer and may be paid as a PIF Qualified Cost. 4. Use of PIF Revenues and Sales Tax Revenues. (a) The Parties agree that all PIF Revenues, less the City's Administrative Fee, will be used solely to pay the Developer for "PIF Qualified Costs" as defined in Exhibit F to this Agreement (including the one month LIBOR interest rate, plus 300 basis points, indicated therein) . .~, as such PIF Qualified Costs may be amended, from time to time, as additional phases of the Development Site are built by the Developer and Exhibit F is appropriately amended; provided, however, that the line items for PIF Qnalified Costs may be adjusted upward or downward so that the total PIF Qualified Costs shall not exceed the total amount in this Exhibit, unless otherwise agreed to by the City, the Corporation and the Developer. Once the Corporation pays the Developer for PIF Qualified Costs, the Corporation may use the PIF Revenues for any public improvement that a public improvement corporation can undertake; provided, however, that atter the Developer is paid for the PIF Qu_alified Costs, the amount of the PIF shall be reduced from .50% to .25% of all Sales. (b) The Parties agree that all Sales Tax Revenues, less the City's Administrative Fee, shall be used to pay the Developer for "BID Qualified Costs;" as defined in Exhibit G (including the one month LIBOR interest rate, plus 300 basis points, indicated therein) to this Agreement as such BID Qualified Costs may be amended, from time to time, as such 5 1493692 additional phases of the Development Site are built by the Developer and Exhibit G is appropriately amended; provided however, that the line items for BID Qualified Costs may be adjusted upward or downward so that the BID Qualified costs shall not exceed the total amount in this Exhibit, unless otherwise agreed to by the City, the BID and the Developer. Once the BID pays the Developer for BID Qualified Costs, the BID may use the Sales Tax Revenues for any public improvement that the business improvement district can undertake. (c) The Parties acknowledge and agree that (i) Developer ha~ no dominion or control over the PIF Revenues; (ii) to the extent any PIF Revenues are collected by the Developer, Developer is acting solely as an agent for and on behalf of the Corporation, and (iii) the PIF is a fee imposed on the Development Site Retailers pursup_nt to the PIF Provisions. The Developer hereby assign.~ all of its right, tire and interest in and to PIF Revenues to the Corporation and shall hold such PIF Revenues in trust and immediately remit same to City during any period in which the Agency Agreement is in effect and, if not, to the Corporation. 5. The Board of Directors of the Corporation, or its designated representative, is authorized to pay the Developer monthly from available PIF Revenues for PIF Qualified Costs for public improvements that the Corporation desires to be constructed, upon submission by the Developer and approval of the Board of Directors of the Corporation, or its designated representative, of detailed invoices and documentation showing the status, nature and scope of the PIF Q~mlified Costs. An invoice for payment of the PIF Qualified Costs certified to be l~'ue and correct by an officer of the Developer that (i) the invoice and supporting documents are accurate, (ii) the amounts included in the invoice have not been included in any prior invoice for payment, (iii) the PIF Q~alified Costs identified in the invoice constitute a part of the Corporation Project and are included within the PIF Qualified Costs set forth in Exhibit F and Section 4(a) to this Agreement, (iv) the PIF Qualified Costs identified in the invoice have been completed, and (v) Developer has paid the PIF Qualified Costs identified in the invoice, shall be considered prima facie acceptable for payment. ARTICLE III CONSTRUCTION AND OPERATION OF PROJECTS 1. Working Co.llaborativel¥. The City, the BID, the Corporation and the Developer hereby agree to work collaboratively to implement those covenants and agreements contained herein and in the Agency Agreement. 2. Projects' Construction. The Developer shall desi~ engineer, acquire, finance and con~tmct the Projects that the BID and the Corporation desire to have constructed in accordance with the estimated construction schedule described in Section 4 hereof, which schedule may be amended from time to time, with the consent of the parties to the BID Project or the Corporation Project, as appropriate. The Parties acknowledge that the Developer shall be entitled to be paid from the BID or the Corporation, respectively, therefore from the first revenues, less the City' Administrative Fee, from sales tax revenues received by the BID, or from first PIF revenues, less the City's Administrative Fee, received by Corporation, subject to the BID's or Corporation's reviewing and approving a detailed invoice of the Developer which itemi?es the hard and soft costs, plus accrued interest at the one month LIBOR rate, plus 300 6 1493692 basis points, of the Developer incurred under this Agreement. The Developer shall be reimbursed for its BID Project Costs from the first revenues received from the BID, on a monthly basis, until the Developer is reimbursed the amount of $2,836,735, less the City's Administrative Fee, plus accrued interest at one month LIBOR, plus 300 basis points. The Developer shall be reimbursed for its Corporation Project costs from the first PIF revenues, less the City's Administrative Fee, received by the Corporation on a monthly basis, until the Developer has been reimbursed the amount of $5,196,342, less the City's Administrative Fee, plus accrued interest at one month LIBOR, plus 300 basis points. Once the Developer is reimbursed for the amounts previously referred to in this paragraph, the BID and the Corporation can utilize the Sales Tax Revenues and PIF revenues, respectively, for any public purpose of the BID or the Corporation, subject to Article II, Sections 4(a) and (la) of this Agreement. 3. Conditions to Issue Bonds. Notwithstanding anything to the contrary herein, the BID or the Corporation may, but shall not be required to, issue Bonds to finance the desi~tm; en~neering, acquisition, conslxtaction or installation of public improvements if the following conditions have been met, as determined by the board of directors of the BID or the Corporation, whichever is applicable, in its sole discretion: (a) Issuance and delivery of the Bonds meet the requirements of federal and state tax laws to the exclusion of interest on the Bonds from gross income for Federal and Colorado income tax purposes (to the extent any portion of the Bonds is a tax-exempt issue); 0a) Issuance and delivery of the Bonds meet the requirements of Rule 15c2-12 of the Securities and Exchange Commission; and (c) applicable law. The issu_a_nce and delivery of the Bonds are in compliance with all other 4. Schedule. The Parties acknowledge that the timeframe necessary for design and construction of the Projects is critical, and each agrees to work cooperatively to meet the timeframes set forth in the estimated Construction Schedule set forth in Exhibits F and G, for the acquisition, design, planning, engineering, financing, and construction of the Projects. 5. Consmaction Manager. The Developer as the construction manager for construction of the respective Projects shall be entitled to a fee of two percent (2%) of the hard costs, as set forth in Exhibits F and G. 6. .Compliance with Laws. The BID Project and the Corporation Project shall be constructed by the Developer for the public improvements that the BID and the Corporation, respectively, desire to be constructed to standards and specifications required by the City's standards, specifications, roles, regulations and policies. The Developer shall promptly post requisite collateral with the City, if any, related thereto. The BID and the Corporation shall endeavor in good faith and use their best efforts to cooperate with and assist the Developer as construction manager and in its performance of its obligations thereunder. 7 1493692 7. Project Maintenance. Prior to the approval and acceptance of the Projects by the City, maintenance of the Projects will be the responsibility of the Developer. 8. Subdivision Improvements Agreements. Developer understands and agrees that each subdivision within the Development Site will require the Developer thereof to enter into a Subdivision Improvements Agreement with the City relating to the subdivision,~ If any provision of this Agreement conflicts, directly or indirectly, either on its face or in its application, with any provision of the Subdivision Improvements Agreement, the provision of the Subdivision Improvements Agreement shall control to the extent of such conflict. Notwithstanding the foregoing, this Agreement shall govern the amount of, and payment mechanism for, the BID Qualified Costs and the PIF Qualified Costs, as indicated in Exhibit G and F to this Agreement, which costs are governed by, among other provisions, Article II, Section 4 and Article III, Section 2 of this Agreement. If the Developer becomes entitled to cost reimbur~maent under City's subdivision ordinances for any BID Project and/or PIF Project, Developer shall perfect its fight to such cost reimbursement and does hereby transfer and assign all its fight, title and interest in and to such cost reimbursement to the BID and the Corporation respectively for the purposes of reimbursing Developer for BID Qualified Costs and PIF Qualified Costs incurred by Developer in constructing the Projects, whichever is appropriate. ARTICLE IV MISCELLANEOUS TERMS AND CONDITIONS 1. Representations and Warranties. The City, the BID, the Corporation and the Developer hereby represent and warrant to and for the benefit of each other that: Agreement; Each entity has the full power and legal authority to enter into this (b) Neither the execution and delivery of this Agreement nor the compliance with any of its terms, covenants or conditions is or shall become a default under any other agreement or contract to which the party is a party or by which the party hereto is or may be bound; and (c) It has taken or performed all requisite acts or actions that may be required by the organi?afional or operational documents to confirm its authority to execute, deliver and perform each of its obligations under this Agreement. 2. Corporate Governance. The BID and the Corporation agree to promptly provide Developer with notice of all meeting and minutes of all proceedings and actions taken by the BID's or the Corporation's board of directors. Upon Developer's request, the BID or the Coal~omtion shall make its books and records available to Developer for review and inspection. 3. Attorney's Fees. In the event that any party hereto brings an action or proceeding, the prevailing party shall be entitled to recover all reasonable attorney's fees and expenses and costs associated with such action or proceeding; venue for any such action shall be Pueblo, Colorado. 8 1493692 4. Entire Agreement. This Agreement and its Exhibits and the Agency Agreement represent the entire integrated agreement between the parties with respect to the matters set forth herein and supersedes all negotiations, representations or agreements as respect those matters, either written or oral. 5. Amendment. This Agreement, and each and every of its term.q and conditions, may be added to or amended only by the mutual written agreement of the parties hereto, which agreement shall be executed with the same formalities as this original Agreement. Special terms and conditions, if any, which are agreed upon by the parties thereto at the time this Agreement is executed shall be reduced to writing in accordance with this paragraph and appended to this Agreement. Any amendments or modifications not made in accordance with this Section shall be null and void and of no legal force or effect. 6. Notices. Any notice to be given or served hereunder or under any document or instrument executed pursnant hereto shall be in writing and shall be (i) delivered personally, with a receipt requested therefor; or (ii) sent by telecopy facsimile; or (iii) sent by a nationally reco~tmi?ed overnight courier service with receipt of the recipient; or (iv) delivered by United States registered or certified mail, return receipt requested, postage prepaid. All notices shall be addressed to the Parties at their respective addresses set forth below, and shall be effective (a) upon receipt or refusal if delivered personally or by telecopy facsimile; (b) one (1) business day after depositing with such an overnight courier service or (c) two (2) business days after deposit in the United States mails, if mailed. A Party may change its address for receipt of notices by service of a notice of such change in accordance with this Section. All notices by telecopy facsimile shall be subsequently confirmed by U.S. certified or registered mail, return receipt requested. Notices to the City: City of Pueblo 1 City Hall Plaza Pueblo, CO 81003 Attention: City Manager Fax: 719/553-2698 Notices to Corporation: North Gateway Number 1 Public Improvement Corporation c/o City of Pueblo 1 City Hall Plaza Attention: City Manager Pueblo, CO 81003 Fax: 719/553-2698 Notices to BID: North Gateway Number 1 Business Improvement District c/o City of Pueblo 1 City Hall Plaza Pueblo, CO 81003 9 1493692 Attention: City Manager Fax: 719/553-2698 Notices to Developer: ORIX Pueblo, LLC c/o ORIX Real Estate Equities, Inc. 100 North Riverside Plaza, Suite 1400 Chicago, IL 60606 Fax: 312/669-6464 7. Sevembility. If any provisions, covenant, agreement or portion of this Agreement, or its application to any person, entity or property, is held invalid, such invalidity shall not affect the application or validity of any other provisions, covenants, agreement or portions of this Agreement and, to that end, all provisions, covenants, agreement or portions of this Agreement are declared to be severable. 8. Successors and Assigns. This Agreement shall inure to the mutual benefit of the parties hereto, their respective successors and assigns, and shall be enforceable according to its temss and conditions under the laws of the State of Colorado. In this regard, the parties hereto agree that this Agreement may be enforced in law or in equity, by decree of specific performance or damages, or pursu_a_nt to such other legal and/or equitable relief as may be available under the laws of the State of Colorado. Venue for such action shall be Pueblo, Colorado. 9. Counterpart Execution. This Agreemem may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same agreement. 10. Interpretation. This Agreement has been jointly negotiated by the Parties and shall not be construed against a Party because that Party may have primarily assumed responsibility for the drafting of this Agreement. 11. Exhibits. All Exhibits attached hereto are declared to be a part of this Agreement and are incorporated herein by this reference. 12. Indebtedness of City. No provision of this Agreement shall be constructed or interpreted as cre~ng a general obligation or other indebtedness of the City within the meaning of any constitutional, statutory or Charter debt limitation. No provision of this Agreement shall be construed or interpreted as a delegation of governmental powers nor as a donation by or a lending of the credit of the City, or as creating a multiple-fiscal year direct or indirect debt or other financial obligation whatsoever of the City or a general obligation or other indebtedness of the City within the meaning of any constitutional Charter or statutory debt limitation, including, withom limitation, Article X, Section 20 or Sections 1, 2 or 6 of Article XI of the Constitution of the State. This Agreement shall not, directly or indirectly, obligate the City to make any payments beyond those appropriated for any fiscal year. No provision of this Agreement shall be con, hoed to pledge or to create a lien on any class or source of City moneys. 10 1493692 13. Immunity of Officers, Employees and Agents of City, BID and Corporation and Developer. No recourse shall be had for the payment of any moneys or interest thereon or for any claim based upon any obligation, covenant or agreement contained in this Agreement and its Exhibits and the Agency Agreement (collectively the "Agreement") again.qt any past, present or future officer, director, employee or agent off (a) the City, (b) the BID, or (c) the Corporation, or of any successor public corporation of the City, under any nde of law or equity, statute or constitution or by the enforcement of any assessment or penalty or otherwise, and ail such liability of any such officers, directors, employees or agents as such are hereby expressly waived and released as a condition of and consideration for the execution of the Agreement; provided, however, any recourse for the payment of moneys or interest against any past, present or future officer, director, employee, partner or agent of the Developer shall be satisfied only out of the assets of the Developer. 14. Parties Interested Herein. Nothing in this Agreement expressed or implied is intended or shall be construed to confer upon, or to give to, any person other than the City, the BID, the Corporation, and the Developer, any right, remedy or claim under or by reason of this Agreement or any covenant, condition or stipulation hereof; and all the covenants, stipulations, promises and agreements in this Agreement contained by and on behalf of the Corporation, the City, the BID or the Developer shall be for the sole and exclusive benefit of the City, the Corporation, the BID and the Developer. 15. Effectiveness of this Agreement. This Agreement shall become effective simultaneously with the Developer closing on phase one of the Development Site, pursuant to the terms of an agreement between the Developer and WL ENTERPRISES LTD, a New Mexico limited partnership (the "Purchase Agreement"). This Agreement shall become effective for each of phases two, three, four and five of the Development Site when the respective closings for each of these phases occur purmmnt to the terms of the Purchase Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Public Facilities Agreement on the date and year first above written. CITY OF P By President, City Council - Bi 11 Sova 11. 1493692 NOU 24 2003 17:55 FR ORIX RERL ESTRTE 312 669 6465 TO 917195840850 P.02/0~ ORIXPUEBLO, LLC. an Illinoislimitedliab~company By: ORIX Real Es~e Equities, Inc., k.]H~de~l and Chi~fI~xccutive Officer NORTH GATEWAY ~LIC IMPROVE~o~RATIOlq/~ .., Presi~ CityCotmcil - Bill S0va WL Enterprises Ltd. ("WL") her0by con,wnts to the foregoing Agr~ment in~ofar as the Agreement affects land ~h~! WL presently owns within thc Dcwlopm~t Site, and asters that th, impositionl of thc PIF and the p, ovisions of Article H, S~cfion 1, of ~lai.q A.greeme~ shall bind such land and subsequent owners thcs'eof and shall be consumed to be covc-~ants lm~ning with the land, WL ENTERPRISES LTD. a New Mexico limited par~ By Wayne Lovelady, Gialeral Parlnex 12 ORIX PUEBLO, LLC. an Illinois limited liability company By: ORIX Real Estate Equities, Inc., '/x a Dqla~are Corporatign,~its so]t~ember / ' [ J~rr~es H. Purlnton X,_l~resident and Chief Executive Officer NORTH GATEWAY NUMBER 1 PUBLIC IMPROVEMENT CORPORATION By President, City Council WL Enterprises Ltd. ("WL") hereby consents to the foregoing Agreement insofar as the Agreement affects land that WL presently owns within the Development Site, and agrees that the imposition of the PI1~ and the provisions of Article II, Section 1, of this Agreement shall bind such land and subsequent owners thereof and shall be construed to be covenants running with the land. WL ENTERPRISES LTD. a New Mexico limited partnership By_ Wayne Lovelady, General Partner 1493692 12 ~ov 24 03 OB:OBp Wayne Lovelad~ 505-B~8-7302 p. 14 ORIX PUEBLO, LLC. an Illinois limited liability company By: ORIX Real Estate Equities, Inc., a Delaware Corporation, its sole member By: James H. Purinton President and Chief Executive Officer NORTH GATEWAY NUMBER I PUBLIC IMPROVEMENT CORPORATION By Presidem, City Council - ~l 1 Sova WL Enterprises Ltd. ("WL") hereby consems to the foregoing Agreemem insofar as the Agreement affects land that WL presently owns within the Development Site, and agrees that the imposition of the PIF and the provisions of Article II, Section I, of this Agreemem shall bind such land and subsequent owners thereof and shall be construed to he covenants framing with the land. WI. ENTERPRISES LTD. a New Mexico limited partnership Wayne ~/~eiady, Oefier~l Pa~t~ 12 1493692 ORIX PUEBLO, LLC. an Illinois limited liability company By: ORIX Real Estate Equities, Inc., a Delaware Corporation, its sole member By: James H. Purinton President and Chief Executive Officer NORTH GATEWAY NUMBER 1 PUBLIC IMPROVEMENT CORPORATION By President, City Council WL Enterprises Ltd. ("WL") hereby consents to the foregoing Agreement insofar as the Agreement affects land that WL presently owns within the Development Site, and agrees that the imposition of the PIF and the provisions of Article II, Section 1, of this Agreement shall bind such land and subsequent owners thereof and shall be construed to be covenants running with the land. WL ENTERPRISES LTD. a New Mexico limited partnership By Wayne L/oveiady, 0e~era~ Pa~t e~ 12 1493692 EXHIBIT A DEVELOPMENT SITE 1493692 EXHIBIT A DEVELOPMENT SITE A parcel ofiand bein~ a portion of the 5'¢' i '4of the SE 1/4 and the SW 1,4 of Section and a portion of the NYV 1/4 and the W 1:'2 of the NE 1,4 of Section 12. Township 20 South. Range 6_~ West of the Sixth Principal Meridian. Pue01o Count' Colorado, being more particularly described as follows: BEGINNING at the most northwesterl, comer of Skyview Subdivision according to the recorded plat thereof, filed for record November 5.1980 in Book 2049 at Page 905 in the records of the Pueblo County Clerk and Recorder. said point also being on the easterly line of that parcel of land described in that document, filed for record Januau, 18. 1985 in Book 2228 at Page 426 in the records of the Pueblo County Clerk and Recorder. from which the SW comer of said Section 1 bears N 61°2] '38" W (Bearings based on the west line of the SW 1/4 of said Section 1 monumented m the north end with a 1 1/2" aluminum Tri-Co cap PLS 7168 and m the south end with a 3" brass cap on a 2" iron pipe PLS 9009 assumed to bear N 07°03'43"E) a distance of 2255.54 leer; thence along the easterly and northerly line of said parcel described in Book 2228 m Page 426 the following three courses: l. N 13°17'40" W a distance of 697.51 feet: (S 13°19'IT'E deed) 2. S87°55'44"Wadistanceof257.81feet; (N87°Sa'07"E. 257.81 feetdeed) 3. S 3, ~8 ~2 W a distance of 198.63 feet: (N 52°36'56"E deed) thence N 15°42'29'' W a distance of 1773.73 feet; thence S 74°17'31" W a distance of 81.00 feet: thence N 13006'53'' W a distance of 1033.88 feet to a point on the southerly right of way line of Platteville Boulevard, according to that document filed for record October 5, 1992 in Book 2617 m Page 298-299 in the records of the Pueblo CounU' Clerk and Recorder. thence along said southerly right of way line of Plarteville Boulevard the following four (4) courses: 1. along the arc of a non-tangent curve to the right whose center bears S 20032'34'` E, having a central angle of 3000'09''. a radius of 1000..~ / feet. and a distance of 52.42 feet: 2. N 7~, -7 ~ E a distance of 901.85 feet: 3. along the arc of a curve to the right having a central angle of 17003' 15" a radius of 800.22 feet. m~d a distance 238.19 feet; 4. N 89°30'50'' E a distance'of 449.61 feet to a point on the westerly right of oI Intelstam: umo~r wavline - ' N ~ ~q' said -~., ...... ~q' ri_~h: of v~ n~- line of' in~ersla[~ ~-umbe: 27 the ~oi~owinu harms a cemrai an}is of 6~3("'00'' a radius ofSg3L'.0f ieet. and a distance 2. S i2~15'52"E a distance of 767.60 feet: 3. S 08~32'07'' V: a distance of 10... 0 1 .... S lv-~> 3, l a distance of 2O0.00 S ]?0~'57 E a diet,ce of 107.7C) o. ~ 13~5~'~'~ adismnce 7. S 0?44'52" E a distance of 343.09 feet to the no~heasterlv come]' of ~ ~ .... h Eazlecross ~ usd~x ~s~on 4 ~iling according to the recorded plat thereof filed for ~ tn~ records of the Pueblo record December v0. 1998 at ~eception No. 1256096 in ~ ~ County Clerk and Recorder: thence N 89°56'51" W along the northerly line of said Eaglecross Subdivision 4th Filing a d~stanc~ of o_~..o9 feet to a point on the easterly line of said Skyview Subdivision. thence along the northerly and said easterly line of said Skyview Subdivision the following four (4) courses: 1. N 08°55'47" W a distance of 1048.11 feet: S 80 >7 ~3 W a distance of 474.24 feet; 3. N 57°57~0T' W a distance of 95.30 feet: 4. thence S 32°02'03"W a distance of 209.96 feet to the POINT OF BEGINNING. EXHIBIT B BID PROJECT The design, planning, engineering, acquisition, construction, and financing of certain public improvements that the BID desires to be constructed concerning the development of the Plateville-I-25 interchange which include, but are not limited to, the items set forth in Exhibit G to this Agreement. 1493692 EXHIBIT C CORPORATION PROJECT The design, planning, engineering, acquisition, construction and finance of certain public improvements that the Corporation desires to be constructed in connection with the Development, which include, but are not limited to, the items set forth in Exhibit F to this Agreement. 1493692 EXHIBIT D NON-RETAIL USERS The following shall be Non-Retail Users which do not normally engage in retail sales whose lease or other occupancy agreement shall not require inclusion of the PIF Provisions: 2. 3. 4. 5. 6. 7. 8. 9. Office users. Industrial users. Health Care Facilities. Educational Facilities. Instrumentalities of the federal, state or local government. Post offices. Banks. Service providers not providing services to general public (e.g., research corporation). Such other Non-Retail Users as Corporation shall agree in its sole discretion taking into account ordinary and customary business practices and the likelihood that such users or category of users would ever conduct includable Sales at its premises. 1493692 EXHIBIT E SALES EXEMPTION The following shall be excluded for purposes of detemfining "Sales" (insert Sec. 14-4-76 of Pueblo Ordinances). 1493692 The following classes of tangible personal property are exempt from taxation under this Chapter: (1) Sales of automobiles or other vehicles required to be registered under the Colorado Uniform Motor Vehicle Law to a purchaser who is not a resident of the City and who purchases such vehicle for use outside the City if, at the time of sale, such purchaser executes and delivers to the retailer an affidavit, on forms approved by the Director, that he or she is' not a resident of the City and that such vehicle will be used and registered outside the City. CAVEAT: The purchase of any such vehicle outside the City by a res?dent of the City for use in the City shall be subject to tax.hereunder, which tax shall be payable at the time such vehicle is registered. If an~, purchaser who is a resident of the City shall file a false affidavit under Subsection (1) above or register any such vehicle to a place or address outside the City, he or she shall be liable for City sales and use tax on such purchase and shall be guilty of a violation o~this Chapter and be punished as provided in Section 1-2-1 of this Co~le. i (2) Sales under conditional sales contracts made prior to JanuarY 1, 1956. (3) Sales of tangible personal property shall be exempted from the operation of this Chapter if both the following conditions exist: a. The purchaser is not a resident of the City as defined in Section 14-4-21(18) hereof; and b. The articles purchased are to be delivered to the purchaser or,side the City at the purchaser's residence or place of business by common carder 'or by-the conveyance of the seller or by mail. (4) All commodities Which are taxed under the provisions of Sections 138-2-5 to 138- 2-23, C.R.S., and all commodities which are taxed under said provisions and the tax refunded, and all sales and purchases, of aviation fuel upon which no City sales tax was in fact collected and retained prior to July 1, 1963, shall be exempt from taxation under this Chapter and the storage, use or consumption of such aviation fuel shall additionally be exempt from taxation under this Chapter. (5) All sales of food as defined in Section 14-4-21(14) herein, but not including food or ddnk taxable under Section 14.4-61(5) herein. (6) Ail sales of medical supplies as defined in Section 14.4-21 above. (7) Sales to the United States government; to the. State, its departments or inst tutions and the political subdivisions thereof, in their governmental capacities only, and provided that where delivery is to b® made within the City at the time of sale or purchase, 'present satisfactory e,~idence of being issued a current sales tax license for the City to the vendor or retailer, and he or she shall record such license number in documents relating to the transaction in support of the exemption claimed. (8) Sales to charitable organizations as defined in Section 14--4-21 above, in the conduct of their regular religious or charitable functions and activities, which organizations, at the time of sale or purchase, present satisfactory evidence of being issued a current tax exempt license for the City to the vendor or retailer, and .he or she · shall record such license number in documents r;91ating to the transaction in support of the exemption claimed. (9) Sales which the City is prohibited from taXing under the Constitution or laws of the United States or the State. (10) Sales and purchases of neat cattle, sheep, lambs, swine and goats; and all sales and purchases of mare~ and stallions for breeding purposes; and all farm auction close- out sales. (11) Sales and purchases of feed for livestock or poultry, 'all sales and purchases of seeds, and all sales and purchases of orchard trees. (12) Sales of cigarettes. '. (13) Sales of newspapers aS defined' in Section 14.4-21 above, excluding prepdnted newspaper supplements as defiAed in Section 14-4-21 above. (14) All'sales and purchases of straw and other bedding for use in the care of livestock shall be exempt from taxation under this Chapter, and the storage, use or consumption of straw and other bedding for.use in the care of livestock shall be exempt from taxation under this Chapter. (15) All sales of lodging services, as defined in Section 14-4-21 above, to any occupant who is a permanent resident of any.eStablishment listed therein, under a wdtten agreement for occupancy for a period of at least thirty (30) consecutive days. (1957 . Code, §25.11; Ord. No. 3450, §1, 5-24-71; Ord. No. 4235, 9-27-76; 'Ord. No. 4734, 4-28- 80; Ord. No. 5667, 3-25-91; Ord. No. 5717, 12-9-91) EXHIBIT F PIF PROVISIONS, INCLUDING PIF QUALIFIED COSTS 1493692 In consideration of **Landlord's/Seller's** construction of extensive public improvements, the City of Pueblo (the "City"), Colorado (a) will include in its budget proposals submitted in fiscal year 2004 for fiscal year 2005, and for each fiscal year thereafter, an amount equal to one-half (1/2) cent of the City's three and one-half (3 79 cent sales tax generated within the Development Site (as defined in the Sale Tax Agreement, hereinafter defined) for the next fiscal year, which amount will, subject to annual appropriation, be annually budgeted to a business improvement district (the "BID") pursuant to an Intergovernmental Agreement, referred to as the "Sales Tax Agreement" (as such agreement may be hereafter amended from time to time or supplemented by a new agreement which affects the development), which sales tax revenues will pay for certain public improvements, and Co) through the North Gateway Number 1 Public Improvement Corporation (the "Public Improvement Corporation") which will receive revenues from certain Public Improvement Fees ("PIF") (imposed in addition to applicable City of Pueblo sales taxes) as more fully set forth in that certain Intergovernmental Agreement, dated as of November 24, 2003, between the City the Public Improvement Corporation and **Landlord/Seller** (as such agreement may be hereafter amended from time to time or supplemented by a new agreement which affects the development) (the "PIF Agreement") which PIF will pay for certain other public improvements. Notwithstanding the above, the Sales Tax Agreement and the PIF Agreement may be one (1) agreement. Leases or other occupancy agreements for the following "Non-Retail Users", which do not normally engage in retail sales, shall not require inclusion of the PIF provisions: (i) office users; (ii) industrial users; (iii) health care facilities; (iv) educational facilities; (v) instrumentalities of the federal, state or local government, (vi) post offices; (vii) banks; and (viii) service ~producers not providing services to the general public (e.g. research corporation). The following sales are exempted from the PIF: (i) sales of automobiles or other vehicles required to be registered under the Colorado Uniform Motor Vehicle Law to a purchaser who is not a resident of the City and who purchases such vehicles for use outside of the City, if at the time of sale, such purchaser executes and delivers to the retailer an affidavit, on forms approved by the Director, that he or she is not a resident of the City and that such vehicle will be used and registered outside the City. CAVEAT: The purchase of any such vehicle outside the City by a resident of the City for use in the City shall be subject to tax under applicable Pueblo codes, which tax shall be payable at the time such vehicle is registered. If any purchaser who is a resident of the City shall file a false affidavit under this subsection (i) or register any such vehicle to a place or address outside the City, he or she shall be liable for City sale and use tax on such purchase and shall be guilty of a violation of applicable Pueblo ordinances and be punished as provided in Section 1-2-1 of applicable Pueblo ordinances; (ii) sales under conditional sales contracts made prior to January 1, 1956; (iii) sales of tangible personal property shall be exempt if both the following conditions exist: (a) the purchaser is not a resident of the City as defined in Section 14-4-21 (18) in applicable Pueblo ordinances; and Co) the articles purchased are to be delivered to the purchaser outside, the City at the purchaser's residence or place of business by common carrier or by the conveyance of the seller or by mail; (iv) all commodities which are taxed under the provisions of Section 138-2-5 to 138-2-23, C.R.S., and all commodities which are taxed under said provisions and the tax refimded~ all sales and purchases of aviation fuel upon which no City sales tax was in fact, collected and retained prior to July 1, 1963 shall be exempt and the storage use of consumption of such aviation fuel shall additionally be exempt; (v) all sales of food as defined in Section 14-4-21(13) of applicable Pueblo ordinances, but not including food or drink taxable under Section 14-4-61(5) of applicable Pueblo ordinances; (vi) all sales of medical supplies as defined in Section 14-4-21 of applicable Pueblo ordinances; (vii) sales to the United States government; to the State of Colorado, its depathnents or institutions and the political subdivisions thereof, in their governmental capacities only, and provided that where delivery is to be made within the City at the time of sale or purchase present satisfactory evidence of being issued a current sales tax license for the City to the vendor or retailer, and he or she shall record such license number in documents relating to the transaction in support of the exemption claimed; (viii) sales to charitable organizations as defined in Section 14- 4-21 of applicable Pueblo ordinances, in the conduct of their regular religious or charitable functions and activities, which organizations, at the time of sale or purchase, present satisfactory evidence of being issued a current tax exempt license for the City to the vendor or retailer, .and he or she shall record such license number in documents relating to the transaction in support of the~ exemption claimed; (ix) sales which the City is prohibited from taxing under the Constitution or laws of the United States or the State of Colorado; (x) sales and purchases of neat cattle, sheep, lambs, swine and goats; and all sales and purchases of mares and stallions for breeding purposes; and all farm auction close-out sales; (xi) sales and purchases of feed for livestock or poultry, all sales and purchases of seeds, and all sales and purchases of orchard trees; (xii) sales of cigarettes; (xiii) sales of newspapers as defined in Section 14-4-21 of applicable Pueblo ordinances, excluding preprinted newspaper supplements as defined in Section 14-4-21 of applicable Pueblo ordinances; (xiv) all sales and purchases of straw and other bedding for use in the care of livestock shall be exempt, and the storage, i~se or consumption of straw and other bedding for use in the care of livestock shall be except; (xv) all sales of lodging services, as defined in Section 14-4-21 of applicable Pueblo ordinances, to any occupant who is a permanent resident of any establishment listed therein, under a written agreement for occupancy for a period of at least thirty (30) consecutive days; and (xvi) such other Non-Retail Users or exclusions as Public Improvement Corporation shall agree in its sole discretion taking into account ordinary and customary business practices and the likelihood that such users or category or users would ever conduct includable Sales at its premises. **Tenant/Buyer/Purchaser** hereby agrees that the entire "pile Revenues" (as defined in the PIF Agreement) belong solely to **Landlord/Seller**, and **Tenant/Buyer/Purchaser** agrees to file any and all reports or forms, including, without limitation, the "Waiver of Confidentiality" agreement, required under the PIF Agreement to enable **Landlord/Seller** tO receive such PI1e Revenues, including, but not limited to, all monthly, quarterly and annual sales and sales tax information furnished to the State of Colorado Depathiient of Revenues, the City and any other applicable agency(ies). **Tenant/Buyer/Purchaser** agrees to comply with the provisions of the PIF Agreement, and to the extent required to facilitate the PIF, agrees to execute any separate or supplemental agreement that may be required by the City or the Public Improvement Corporation. **Landlord/Seller**, at its election, may increase the PIF during any period, provided that such increase does not increase **Tenant//Buyer/Purchaser**'s** sales tax obligation thereunder more than what other similar retailers are paying as sales taxes in the Pueblo, Colorado metropolitan area. It is expressly agreed that the sales tax revenues relate to contractual arrangements between **Landlord/Seller** and the BID under applicable Colorado laws. It is expressly agreed that the PIF Revenues relate to contractual arrangements between **Landlord/Seller** and the Public Improvement Corporatipn under applicable Colorado laws. The Sales Tax Agreement and the PIF Agreement are binding obligations upon the Shopping Center, its tenants, purchasers, the City, the BID and the Public Improvement Corporation. Revenues shall re remitted to the City substantlally as set forth below: (a) The City shall supply all Development Site Retailers which obtain a City sales tax license, with reporting forms, procedures and other instructions concerning the collection and remittance of PI~ Revenues. If the City changes such reporting forms, procedures or other instructions, the City shall promptly communicate such changes to Development Site Retailers, **Landlord/Seller** and the Corporation upon the preparation thereof. Not later than the 20t~ day of the first month following the end of a Collection Month (as defined in the Agency Agreement by and between the City, **Seller/Landlord**, Public Improvement Corporation and the BID which agreement is hereinafter referred to as 'the "Agency Agreement"), Development Site Retailers (as defined in the Agency Agreement) shall remit collected PIF Revenues to the City by means of reporting forms, as the same may be changed from time to time, and procedures to be provided by the City to the Development Site Retailers consistent with Section 2.2 of the Agency Agreement. Reporting forms and any specific instructions regarding use of reporting forms and payment procedures in addition to the information set forth in the Information Booklet (as defined in the Agency Agreement) will be provided to **Landlord/Seller** and the Development Site Retailers by the City. (b) The PIF shall be calculated and imposed on all Sales, subject to the City's sales tax ordinances, at the rate stated in Section 2.3 of the Agency Agreement prior to the calculation and assessment of the City's Sales Tax (a,s defined in the Agency Agreement), before any other State of Colorado, county, municipal or other sales taxes required to be imposed by law are imposed. The P~ shall be added to and become part of the sales price with respect to Sales subject to the City's Sales Tax prior to the addition of the City's Sales Tax. All Sales Tax and sales taxes of other taxing entities shall be calculated and assessed on the sum of the sales price plus the amount of the PIF. (c) It is the intent of the parties hereto that all adjustments, including, but not limited to refunds, additions, or other modifications to PIF Revenues due from the Development Site Retailers, shall be processed in a manner substantially similar to the process used by the City for any appropriate adjustments to the City's Sales Tax. If any subsequent adjustments, additions, or modifications are made to any PIF Revenues remitted or paid, or report made, by a Development Site Retailer to the City, that Development Site Retailer shall provide the City with true and complete copies of all revised reports or other written material issued or received by a Development Site Retailer in regard thereto. If any such adjustment increases the amount of PIF which the Development Site Retailer is required to remit or pay, or results in a refund of excess PIF, the Development Site Refailer shall immediately pay such additional PIF in the amount due, or shall receive an appropriate credit against the next PIF due from the Development Site Retailer in the amount of such excess PIF. The Development Site Retailer shall claim such credits and/or pay such additional PIF in the next monthly reporting period by use of the standard reporting and remittance forms. All reports made or provided by the De. velopment Site Retailers shall be maintained by the respective Development Site Retailers for at least four (4) years from the date of submission thereof to the City and, upon written request of a Development Site Retailer, shaI1 be made available to the City, the Corporation and/or the **Landlord/Seller** for inspection and audit. Reports received by the City, the Corporation or the **Landlord/Seller** will remain confidential, to the extent permitted or required by law, and be used only for purposes of collecting the PIF due, enforcing Development Site Retailer's obligations under the CC&R's (as defmed in the Agency Agreement) or their respective Leases (as defined in the Agency Agreement), and otherwise monitoring compliance with the provisions thereof. (d) Notwithstanding anything contained in this **Lease/Contract/Agreement** to the contrary, all sales and use tax reports filed by any taxpayer, including, but not limited to, any Development Site Retailer and information contained therein are confidential, and nothing contained in this **Lease/Contract/Agreement** or the Intergovernmental Agreement (other than by operation of law) shall be construed to require or authorize the disclosure or release of any such report or information. Notwithstanding anything to the contrary contained herein, the City, or its designated representative, is authorized (i) to audit the books and records of the Development Site Retailers in order to determine compliance with the PIF collection and 'remittance obligations of Development Site Retailers under the CC&R's and Leases; ar/d (ii) to release such audited information and any reports, returns and other documents as are delivered to the City by the Development Site Retailer (except confidential sales and use tax reports and information) and any information pertaining to the PIF gathered by the City during an audit. [**MAKE SURE TO DELETE SELLER/LANDLORD/TENANT/PURCHAS ER/BUYER/CONTRACT/AGREEMENT/LEASE AS NEEDED DEPENDING ON WHAT DOCUMENT THIS LANGUAGE IS GOING INTO.**] PIF QUALIFIED COSTS ITEM UNIT · QUAN UNIT/PRICE TOTAL - HARD COSTS 1 Earthwork (excess on site) CY 200000 $2.63 $526,000 2 Elizabeth St. (excess map and ut) LS I $2;304,492.00 $2,304,492 3 Wills Blvd (excess mat and ut) LS 1 $531,613.00 $531,613 4 Relocate Power Line LS I $360,000.00! $360,000 5 Vlonument Signage LS I $70,000.00 $70,000 6 Landscaping LS 1 $200,000.00 $200;000 7 Hard Cost Contingency 10% LS 1 $399,210.50 $399 211 ~htntal $4.391.316 SOFT COSTS Engineering LS 1 $100,000.00 $100,000 Geotechnical LS 1 $75,000.00 $75,000 Legal description/survey LS I $155,000.00 $155,000 Deferred Cost Factor LS I $322,000.00 SR??.000 Soft cost contingency 10% LS I $65,200.00 $65,200 .~lh Tetal $717.200 Hard & Soft Cost Subtotal CM Fee 2% of Hard Cost $5,108,516 Subtotal $5,108,516 $87,826' TOTAL * $5,196,342 * Plus interest carry at one-month LIBOR rate, plus 300 basis points, accruing from the time that the line items above are expended. qovember, 2003 EST. COMPL. 12/03-05/04 03/04-10/04 03/04-10/04 12/03-01/04 06/04-10/04 07/04-10/04 12/03-12/04 PIF QUALIFIED COSTS t funds for EXHIBIT G BID QUALIFIED COSTS 1493692 BID QUALIFIED COSTS ITEM UNIT QUAN UNIT/PRICE TOTAL HARD COSTS Earth work flyover (west) CY 400000 $2.65 $1,060,000 Earth work flyover (east) CY 200000 $3.10 $620,000 Hard Cost Contingency 10% LS I $168,000.00 $168,000 Subtotal $1,848;000 SOFT COSTS 1601 Traffic Study LS I $300,000.00 $300,000 Legal Fees LS 1 $100,000.00 $100,000 Flyover engineering fees LS I $85,000.00 $85,000 ;)eferred Cost Recovery Factor I $195,250.00 $195,250 Plat LS I $40,000.00 $40,000 Environmental Audit LS 1 $35,000.00 $35,000 Geotech/Testing LS 1 $80,000.00 $80,000 Survey Fees LS 1 $30,000.00 $30,000 Soft cost contingency 10% LS I $86,525.00 $86,525 Subtotal $951, Hard & Soft Cost Subtotal CM Fee 2% of Hard Cost Subtotal TOTAL $2,799,775' $2,799,775 $36,960 * $2,836,735 * Plus interest carry at one-month LIBOR rate, plus 300 basis points, accruing from the time that funds for any of the line items above are expended. November, 2003 EST. COMPL 12/03-05/04 12/03-05/04 12/03-05/04 BID QUALIFIED COSTS