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
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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.
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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
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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.
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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