HomeMy WebLinkAbout13520RESOLUTION NO. 13520
A RESOLUTION APPROVING AN AGENCY AGREEMENT
AND AN INTERGOVERNMENTAL PUBLIC FACILITIES
AGREEMENT BETWEEN PUEBLO, A MUNICIPAL
CORPORATION, NORTH GATEWAY NO. 1 PUBLIC
IMPROVEMENT CORPORATION AND HUTTON
GROWTH OFP PUEBLO EX, LLC AND CONSENTING TO
A DECLARATION OF COVENANTS RELATING TO
PUBLIC IMPROVEMENTS AND THE CONSTRUCTION
AND REIMBURSEMENT THEREFOR AND AUTHORIZING
THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE
SAID AGREEMENTS AND CONSENT
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The following agreements:
Agency Agreement among Hutton Growth OFP Pueblo EX, LLC and
North Gateway No. 1 Public Improvement Corporation and the City of
Pueblo Colorado; and
Intergovernmental Public Facilities Agreement among the City of
Pueblo, Colorado, North Gateway No.1 Public Improvement Corporation
and Hutton Growth OFP Pueblo EX, LLC
Consent to Declaration of Covenants
(herein collectively the “Agreements”) relating to certain public improvements described
therein and the construction and reimbursement therefore 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 City
Council, for and on behalf of the City and the North Gateway No. 1 Public Improvement
Corporation, but with such changes, modifications, additions deletions as the President
of the City Council and the City Attorney shall deem necessary, desirable or appropriate,
the execution therof 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 and the City Clerk is directed to affix the seal of
the City thereto and attest same.
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 THE 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. AND NO PROVISION OF THIS RESOLUTION OR THE AGREEMENTS SHALL
BE CONSTRUED TO PLEDGE OR TO CREATE A LIEN ON ANY CLASS OR SOURCE
OF CITY MONEYS.
SECTION 4.
The officers and staff of the City are directed and authorized to perform any and
all acts consistent with the intent of this Resolution and the attached Agreements which
are necessary and desirable to effectuate the transactions described therein.
SECTION 5.
This Resolution shall become effective upon final passage and approval.
INTRODUCED: September 26, 2016
BY: Ed Brown
City Clerk’s Office Item # M-1
Background Paper for Proposed
Resolution
COUNCIL MEETING DATE: September 26, 2016
TO: President Stephen G. Nawrocki and Members of City Council
VIA: Gina Dutcher, City Clerk
FROM: Sam Azad, City Manager
SUBJECT: A RESOLUTION APPROVING AN AGENCY AGREEMENT AND AN
INTERGOVERNMENTAL PUBLIC FACILITIES AGREEMENT BETWEEN
PUEBLO, A MUNICIPAL CORPORATION, NORTH GATEWAY NO. 1 PUBLIC
IMPROVEMENT CORPORATION AND HUTTON GROWTH OFP PUEBLO EX,
LLC AND CONSENTING TO A DECLARATION OF COVENANTS RELATING TO
PUBLIC IMPROVEMENTS AND THE CONSTRUCTION AND
REIMBURSEMENT THEREFOR AND AUTHORIZING THE PRESIDENT OF THE
CITY COUNCIL TO EXECUTE SAID AGREEMENTS AND CONSENT
SUMMARY:
The attached Resolution approves and authorizes the President of the City Council, acting on
behalf of the City and the North Gateway No.1 Public Improvement Corporation, to execute the
following agreements:
Agency Agreement
Intergovernmental Public Facilities Agreement
Consent to a Declaration of Covenants
PREVIOUS COUNCIL ACTION:
On November 24, 2003 City Council approved an Intergovernmental Public Facilities Agreement
and Agency Agreement to reimburse Orix Pueblo, LLC as developer of Phase 1 of the Pueblo
Crossing shopping complex.
BACKGROUND:
Hutton Growth OFP Pueblo EX, LLC (“Hutton”) has incurred or will incur costs associated with
the Dick’s Sporting Goods Phase 2 of the Pueblo Crossing development. Under the proposed
agreements, Hutton as the Phase 2 Dick’s Sporting Goods developer, will receive and use Public
Improvement Fee (“PIF”) revenue in the same manner as was used for the Phase 1 development
in 2003.
FINANCIAL IMPLICATIONS:
As was done for the Phase 1 development, retail stores in the Phase 2 development will assess
a ½ cent PIF for each dollar of goods purchased from sales within the Phase 2 development area
to reimburse Hutton for costs associated with the public improvements made by Hutton for the
Dick’s Sporting Goods Phase 2 development. The City will receive a 5% administrative fee for
collecting and administering the PIF revenue.
BOARD/COMMISSION RECOMMENDATION:
Not applicable.
STAKEHOLDER PROCESS:
Not applicable.
ALTERNATIVES:
Failure of Council to approve this Resolution could result in Hutton not going forward with its
Phase 2 Dick’s Sporting Goods development.
RECOMMENDATION:
Approve the Resolution.
Attachments:
Proposed Resolution, Proposed Agency Agreement, Proposed
Intergovernmental Public Facilities Agreement and Proposed Declaration of
Covenants.
AGENCY AGREEMENT
AMONG
HUTTON GROWTH OFP PUEBLO EX, LLC.
NORTH GATEWAY NUMBER 1 PUBLIC IMPROVEMENT CORPORATION
AND
CITY OF PUEBLO, COLORADO
DATED AS OF S4. 4., .1%. , 2016
1225210.1
AGENCY AGREEMENT
This Agency Agreement regarding the collection of Public Improvement Fee Revenues,
dated as of Sc f4. j , 2016, among Hutton Growth OFP Pueblo EX, LLC., North
Gateway Number 1 Public Improvement Corporation and the City of Pueblo, Colorado.
PREFACE
All capitalized terms 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 capitalized terms, 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 rule city under the provisions of Article XX of the Constitution and the laws
of the State of Colorado and the home rule Charter of the City.
B. The City Council has heretofore, to the extent so provided in the
Intergovernmental Agreement, determined and declared that it is in the best interests of the City
that the Corporation Project 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 amended, for the purpose of providing public improvements in
and around the City; including the design, engineering, acquisition, construction, operation and
maintenance of the Corporation Project.
D. The Corporation has 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 Corporation Project is undertaken; provided, however, Bonds will be issued only
if the Corporation determines to issue such Bonds, and the conditions for the issuance of Bonds,
as set forth in the Intergovernmental Agreement, have been fulfilled.
E. The City previously (i) approved the purposes and activities of the Corporation,
and (ii) has agreed to accept legal title to the portion of the Corporation Project that the City will
accept, including all City approved additions thereto, upon completion of the Project 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 guarantee. Upon
such completion and approval, the Developer will transfer title of that portion of the
Corporation Project that the City will accept, to the City.
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F. 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 derived from
the imposition of the PIF on Sales as provided hereunder.
G. Notwithstanding the foregoing, it is clearly intended and understood by the City,
the Corporation and the Developer that (i) the nature of the PIF is that of contractual fee
imposed for the benefit of the Corporation under private 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 are the property of the
Corporation, to pay the Developer for PIF Qualified Costs, as defined in the Intergovernmental
Agreement, and to pay the principal of, and interest on, any Bonds issued by the Corporation,
(iv) the authority of the City to receive the PIF Revenues is derived through the 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 the City by such Development Site Retailers and (B) their
books and records related hereto, and (vi) future City expenditures are subject to annual
appropriation by the City as set forth in the Intergovernmental Agreement.
H. Notwithstanding anything to the contrary herein or any other document related to
the Corporation Project, 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 behalf 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.
I. 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 Corporation and the Developer agree as follows:
ARTICLE I
CITY AGREEMENT TO RECEIVE PIF REVENUES
The Developer, as the party contractually 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. Under the Intergovernmental
Agreement, the Developer has agreed with the Corporation to design, engineer, construct and
finance the Corporation Project. 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. THE CITY
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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.
ARTICLE 2
PUBLIC IMPROVEMENT FEES
Section 2.1. Nature and Imposition of the Public Improvement Fees.
(a) The Corporation Project has been or will be designed, engineered, acquired,
maintained, constructed and/or installed by the Developer, in accordance with the
Intergovernmental Agreement. Costs of the Corporation Project will be paid to the Developer
with the proceeds of the PIF Revenues.
(b) 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
Corporation. The Developer shall record the CC&R's against the real property consisting of the
Development Site that will run with the land and includes the PIF Provisions. Once received by
the City under this Agreement, all right, title and interest in and to the 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.
(c) The PIF 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 Provision under the Developer Leases or the Developer CC&R's.
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 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
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such forms, procedures and other instructions shall be paid as set forth in Section 3.5 hereof. If
the City changes such reporting forms, procedures or other instructions, 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 PIF 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
forms will be on file with the City and available upon reasonable request. Any specific
instructions regarding use of reporting forms 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 the 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 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 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 hereto. If any such adjustment increases the amount of PIF
which the Development Site Retailers 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 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
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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 Developer for inspection
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
collected 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 operation of law) shall be or be
construed to require or authorize the disclosure or release of any such report 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 otherwise 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 PID 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 times be open to inspection by the other parties to this Agency Agreement
or their designees, subject to any other applicable confidentiality restrictions, if any.
(b) The Developer shall not enter into any agreement amending 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.
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(c) The Developer, the Corporation and the City shall at all 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 sums 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 quarter commencing September 30, 2016, 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 form 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 are
delivered by Development Site Retailer 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 default 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 right and authority to enforce the available remedies with respect to a
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 annual unaudited report submitted pursuant to
(v) above.
(b) 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
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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 PIF Revenues that the City receives. The City shall
withhold such administrative fee from PIF Revenue received by the City before remitting the
balance thereon to the Corporation.
ARTICLE 4
MISCELLANEOUS
Section 4.1. Sovereign Powers and Immunities of the City.
Nothing in this Agency Agreement shall be construed as diminishing, delegation, 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 is authorized
to resign from 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 appointment of
a successor to its duties hereunder; provided, however, if no agreement is entered into by
the Corporation 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 resignation.
This Agency Agreement may be assigned by any party hereto to a financially viable
entity that can perform the obligations of the assigning party.
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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, postage 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
Attention: City Manager
Fax: 719-553-2698
Notices to Developer: Hutton Growth OFP Pueblo EX, LLC.
736 Cherry Street
Chattanooga, TN 37402
The City, the Corporation and the Developer may, by written notice, designate any
further of different address 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 terms and conditions of this
Agency Agreement, and all rights of action relating to such enforcement, shall be strictly
reserved to the City, the Developer, 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 Corporation and the Developer that any person other than the City, the Corporation
and the Developer, with respect, 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 City,
the Corporation and the Developer and their respective successors and assigns.
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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.
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 numerical day in the concluding month as the day
of the month from 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
succeeding 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 be invalidate or render unenforceable any
other provision thereof.
Section 4.10. Execution in Counterparts.
This Agency Agreement may be executed in several counterparts, each of which shall be
an original and all of which shall constitute but one and the same instrument.
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, Corporation and
Developer.
11
No recourse shall be had for the payment of any moneys or interest thereon or for any
claim based upon 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, or(b) the Corporation, or of any successor public corporation of the City,
under any rule of law or equity, statute or constitution or by the 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 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.
Section 4.14. Indebtedness of City.
No provision of this Agreement 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 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 of 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. 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 as of the date first set forth above.
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.
;t This Agency Agreement is entered into and executed by the respective parties hereto this
2b day of SF.? , 2016.
CITY OF :11/
By• I
� •���'" �ouncil
12
HUTTON GROWTH OFP PUEBLO EX, LLC.,
a Colorado limited liability corporation
By: SEA Holdings, LLC, a Georgia limited liability company,
Its: Manager and Sole-Member
By:
Ricky B. Novlk, Manager
NORTH GATEWAY NUMBER 1 PUBLIC
illIMPROVEM ► 'O''-' i a ' ON
By: ---4
President,
13
EXHIBIT 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.
"Agency Agreement" means the agreement by such name with the City dated as of
, 2016, 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 pursuant to the provisions of a bond resolution adopted by
the Board of Directors of the Corporation which are payable from the PIF Revenues and which
payment is secured by a pledge of, and lien on, such PIF Revenues including, without limitation,
Refunding Bonds and Variable Rate Bonds; but the term does not include any Subordinate
Bonds.
"Business Day" means a day which is not (a) a Saturday, Sunday or legal holiday on
which banking institutions 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.
"City" means the City or 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 Hutton Growth OFP Pueblo EX, LLC., a Colorado limited liability
company.
"Developer CC&R's" means the master declaration of easements, covenants, conditions
and restrictions, called the "Declaration of Covenants Imposing and Implementing the Public
Improvement Fees," 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.
14
"Developer Leases" means 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 Agreement.
"Fiscal Year" means each the 12-month period beginning 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
Information Booklet may be changed from time to time.
"Intergovernmental Public Facilities Agreement" or " Intergovernmental Agreement"
means the Intergovernmental Public Facilities Agreement, dated as of , 2016
entered into between the City, the Corporation and the Developer pursuant to which the
Developer agrees to design, plan, engineer, acquire, construct and finance the Public
Improvements that the Corporation desires 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 organization or any trustee,
receiver, assignee, or other similar representative thereof.
"PIE" 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 revised as indicated in the PIF Provisions.
"PIF Provisions" means the provisions relating to the imposition of the PIF set forth in
Exhibit G to the Intergovernmental Agreement.
"PIF Revenues" means the PIF Revenues derived from the imposition of the PIF payable
to the Corporation pursuant 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.
15
"Sales" shall have the meaning ascribed thereto in recital 0 of the Intergovernmental
Agreement.
"Waiver of Confidentiality"means the Waiver of Confidentiality, the form 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.
16
EXHIBIT B
DESCRIPTION OF THE DEVELOPMENT SITE
Lots 1, 2 and 3, Pueblo Crossing Filing No. 3, recorded July 27, 2016, under Reception No.
2043662, County of Pueblo, State of Colorado.
17
EXHIBIT C
SUBSTANTIVE PROVISIONS OF THE PIF AGREEMENT
In consideration of Landlord's, construction of extensive public improvements, the City of
Pueblo (the "City"), Colorado, through the North Gateway Number 1 Public Improvement
Corporation (the "Public Improvement Corporation"), will receive revenues from certain Public
Improvement Fees ("PIF") of.50% (imposed in addition to applicable City of Pueblo sales taxes)
as more fully set forth in the Intergovernmental Agreement (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. The amount of
the PIF will be reduced from .50% to .25% after Landlord or its successors or assigns, are paid
for PIF Qualified Costs (as defined in the PIF Agreement and subject to amendment of Exhibit F
contained therein). 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 sales 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) of 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., as re-
codified, 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
18
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, 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 hereby agrees that the entire "PIF Revenues" (as defined in the PIF Agreement) related to
the Property belong solely to the Landlord or other party as designated in the PIF Agreement.
Tenant shall file any and all reports or forms, including, without limitation, the "Waiver of
Confidentiality" agreement, required under the PIF Agreement to enable Landlord, or other party
as set forth in the PIF Agreement, to receive such PIF Revenues, including, but not limited to, all
monthly, quarterly and annual sales and sales tax information furnished to the State of Colorado
Department of Revenue, the City and any other applicable agency(ies). Tenant shall comply with
the provisions of the PIF Agreement, and if required to facilitate the PIF, shall execute any
separate or supplemental agreement that may be required by the City or the Public Improvement
Corporation. It is expressly agreed that the sales tax revenues relate to contractual arrangements
between Landlord and the BID under applicable Colorado laws. It is expressly agreed that the
PIF Revenues relate to contractual obligations between Landlord and the Public Improvement
Corporation under applicable Colorado Laws.
PIF Revenues shall be remitted to the City substantially as set forth below:
(a) The City shall supply all Development Site Retailers (as defined in the Agency Agreement)
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 and the Public Improvement Corporation upon the
preparation thereof. Not later than the 20th day of the first month following the end of a
Collection Month (as defined in the Agency Agreement by and between the City, Landlord, and
Public Improvement Corporation which agreement is hereinafter referred to as the "Agency
19
Agreement"), 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 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 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 (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 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 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 Public Improvement Corporation and/or the Landlord for
inspection and audit. Reports received by the City, the Public Improvement Corporation or the
Landlord 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 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 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.
20
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 hereunder; 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.
21
EXHIBIT D
GENERAL DESCRIPTION OF THE DUTIES OF THE
PARTIES TO THE AGENCY AGREEMENT
Section of PIF Collection Duty(ies) Party(ies)
Agreement
Article 1 Appoint City to receive PIF Corporation/Developer
Revenues
Section 2.1.(b) Establish PIF by executing and Developer
recording Developer CC&R's
Section 2.1.(d) Required Development Site Developer
Retailers to impose PIF; notify
Development Site retailers of
imposition and collection
procedures; develop collection
procedures in consultation with
City
Require all Development Site Developer
Retailers to impose PIF and
collect PIF Revenues
Section 2.2. Supply Development Site City
Retailers with reporting forms;
communicate changes in
reporting forms and remittance
procedures to Development Site
Retailers, Corporation and
Developer
Annually distribute latest Developer
version of Information Booklet
to all Development Site
Retailers
Section 2.4.(a) Receive PIF Revenues City
Provide Information Booklet to Corporation
Development Site Retailers
Section 3.1. Responsible for receipt of PIF City
Revenue
Authorized to enforce City
imposition of PIF and collection
of PIF Revenues
Deliver any PIF Revenues in its Developer
possession to the Corporation
22
Section of PIF Collection Duty(ies) Party(ies)
Agreement
Section 3.2.(c) Notify either Developer, City/Corporation
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.
Section 3.2.(d) Provide list of Development Developer
Site Retailers to City and
Corporation and waiver or
release of information
Section 3.2.(e) May request information City
regarding Development Site
Retailers
Section 3.3.(a) PIF Revenue collection City
procedures and responsibilities
Section 3.3.(a)(i) Receive and process PIF City
Revenues
Section 3.3.(a)(iv) Pursue delinquent PIF Revenues City/Developer
Section 3.3.(a)(v) Provide annual unaudited report City
Authorized to cause audits to Corporation/Developer
City's PIF records
Section 3.3.(a)(vi) Give written notice to City
Corporation and Developer of
(annual) PIF Collection
Section 3.5. Withhold administrative fee of City
City
Section 4.2. May resign City
23
EXHIBIT E
FORM OF WAIVER OF CONFIDENTIALITY AGREEMENT
PARTIES TO LEASE: Hutton Growth OFP Pueblo EX, LLC.
LANDLORD:
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 Hutton Growth OFP Pueblo EX, 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
(Name)
By:
Its:
24
INTERGOVERNMENTAL PUBLIC FACILITIES AGREEMENT
AMONG
HUTTON GROWTH OFP PUEBLO EX, LLC.
NORTH GATEWAY NUMBER I PUBLIC IMPROVEMENT
CORPORATION
AND
CITY OF PUEBLO, COLORADO
DATED AS OF SETTF.r 1),E . 4 , 2016
1
1191107.4
This Table of Contents is not a part of this Agreement and is only for convenience of reference.
TABLE OF CONTENTS
ARTICLE I
RESERVED
ARTICLE II
COVENANT TO IMPOSE PUBLIC IMPROVEMENT FEE;
COLLECTION OFPIFAND SALES TAX REVFNUFS
1. Imposition ofthe PIF 4
2. Collection of the PIF Revenue 5
3. Information Booklet 5
4. Use of PIF Revenues 6
ARTICLE I I I
CONS IRUCT1ON AND OPERATION OF PROJECTS
I. Use of'PIF Revenues 7
2. Projects' Construction Use of PIF Revenues .7
3. Conditions to Issue Bonds 7
4. Schedule 7
5. Construction Manager 7
6. Compliance with Laws 7
7. Project Maintenance 8
8. Subdivision Maintenance 8
ARTICLE I V
MISCELLANEOUS`TERMS AND CONDITIONS
I. Representations and Warranties 8
2. Corporate Governance 8
3. Attorney' s Fees 8
4. Entire Agreement 9
5. Amendment 9
6. Notices 9
7. Severability 9
8. Successors and Assigns 10
9. Counterpart Execution 10
10.I nterpretation 10
I l.Exhibits 10
12. Indebtedness 10
13.Immunity of Officers, Employees and Agents of City, Corporation
and Developer 10
14.Parties Interested Herein 11
15.Effectiveness of this Agreement 11
2
1191107.4
INTERGOVERNMENTAL PUBLIC FACILITIES
AGREEMENT
THIS INTERGOVERNMENTAL PUBLIC FACILITIES AGREEMENT
("Agreement") is made and entered into as of the 2.6�i" day
of S E PT is 1n*3 , 2016, by and among the CITY OF PUEBLO,
COLORADO (the "City"). NORTH GATEWAY NUMBER I PUBLIC
IMPROVEMENT CORPORATION, a Colorado non-profit corporation (the
"Corporation"), and HUTTON GROWTH OFP PUEBLO EX, LLC., a Colorado
limited liability corporation (the "Developer"). The City, the Corporation and the
Developer are sometimes hereinafter referred to as the "Parties" or "Parties."
RECITALS
A. 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, construct, finance, operate and maintain public improvements for the benefit
of, and on behalf of, the City of Pueblo, Colorado, and its inhabitants; and
B. The Corporation is authorized to enter into contracts and agreements
affecting the affairs of the Corporation; and
C. The Developer has proposed to develop a retail shopping project (the
"Development"), on certain real property more particularly described in Exhibit A
attached hereto. (the "Development Site") located in the City; and
D. Pursuant to this Agreement, the Developer proposes to design, plan,
engineer, acquire, construct and finance certain public improvements that the
Corporation desires to be constructed in connection with the Development
(collectively. the "Corporation Project") all as more fully set forth in Exhibit C
hereto; and
E. 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; and
F. 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 has or will record in the records of the County
Clerk and Recorder of Pueblo County with respect to the Development Site the
covenants, conditions and restrictions called the "Declaration of Covenants
Imposing and Implementing the Public Improvement Fees" (the "Developer
CC&R's"),the burdens of which will run with the land; and
3
1191107.4
G. 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 Sales, subject to those exemptions as set forth on Exhibit E
hereto; and
H. Pursuant to an Agency Agreement, dated as of $.Q.vlie,,,,,,6�r ,
2016 (the "Agency Agreement"), among the Developer, the Corporation and the
City, the City has agreed to receive the PIF Revenues on behalf of the Corporation
and remit the PIF Revenues received less an Administrative Fee of five percent (as
defined in the Agency Agreement), to the Corporation; and
1. The City, the Corporation and Developer desire to set forth herein their
intentions with respect to the design, planning, engineering, acquisition, construction,
finance, maintenance. and operation of the Project, the Developer's contractual
obligation to impose the PIF, the use and payment of PIF Revenues, and other
matters as set forth herein; and
J. 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
RESERVED
ARTICLE II
COVENANT TO IMPOSE PUBLIC IMPROVEMENT
FEE; COLLECTION OF PIF REVENUES
I. 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, contractually 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,
beginning January 20, 2017.
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
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1191107.4
Development Site ("Developer Leases") of provisions substantially in the form attached
hereto and incorporated herein by reference as Exhibit G (the "PIF Provisions"). The
Developer shall have no obligation to include the PIF 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 contractual 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 substantially 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 P1F
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 PIF 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 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 Revenue. The Parties hereto acknowledge that
pursuant to the Agency Agreement, the City shall receive the PIF Revenues directly from
Development Site Retailers. The Developer agrees that it will cooperate with the City in its
receipt of PIF 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 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.
3. Information Booklet. In order to provide information 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 annually prepare an Information
Booklet, the form 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 final and distributed
by the Developer to the then current Development Site Retailers no later than January I of the
subsequent year. The cost of preparation, printing and distribution of the Information Booklet
shall be borne by the Developer and may be paid as a P1F Qualified Cost.• The Developer
may, in lieu of providing an Information Booklet, rely on the information furnished in the
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1191107.4
City's website.
4. Use of PIF Revenues,
(a) The Parties agree that all P1F 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, Exhibit F
is appropriately amended; provided, however, that the line items for PIF Qualified 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 relating to the Project; provided, however, that after the Developer is paid for
the PIF Qualified Costs, the amount of the PIF shall be reduced from .50% to .25% of all
Sales.
(b) The Parties acknowledge and agree that (i) Developer has 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 pursuant to the PIF
Provisions. The Developer hereby assigns all of its right, title 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 PIE 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 Qualified Costs. An invoice for payment of the PIF 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 PIF Qualified 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.
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1191107.4
ARTICLE III
CONSTRUCTION AND OPERATION OF PROJECT
1. Working Collaboratively. The City, the Corporation and the Developer hereby
agree to work collaboratively to implement those covenants and agreements contained herein
and in the Agency Agreement.
2. Project's Construction, 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
$1,415,955 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 Corporation can utilize the PIF Revenues for any public purpose of the
Corporation, subject to Article II, Sections 4(a) of this Agreement.
3. Conditions to Issue Bonds. Notwithstanding anything to the contrary herein,
the Corporation may, but shall not be required to, issue Bonds to finance the design,
engineering, acquisition, construction or installation of public improvements, the following
conditions have been met, as determined by the board of directors of the Corporation 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);
(b) Issuance and delivery of the Bonds meet the requirements of Rule
15c2-12 of the Securities and Exchange Commission; and
(c) The issuance and delivery of the Bonds are in compliance with
all other applicable law.
4. Schedule. The Parties acknowledge that the timeframe necessary for design
and construction of the Project is critical, and each agrees to work cooperatively to meet the
timeframes needed for the acquisition, design, planning, engineering, financing, and
construction of the Project.
5. Construction Manager. The Developer as the construction manager for
construction of the Project shall be entitled to a fee of two percent (2%) of the hard costs, as
set forth in Exhibit F.
6. Compliance with Laws, The Corporation Project shall be constructed by the
Developer for the public improvements that the Corporation desires to be constructed to
standards and specifications required by the City's standards, specifications, rules, regulations
and policies. The Developer shall promptly post requisite collateral with the City, if any,
related thereto. The Corporation shall endeavor in good faith and use its best efforts to
cooperate with and assist the Developer as construction manager and in its performance of its
obligations thereunder.
7
1191107.4
7. Project Maintenance. Prior to the approval and acceptance of any part of the
Project by the City, maintenance of that part of the Project will be the responsibility of the
Developer.
8. Subdivision Improvements Attreements. 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 PIF Qualified Costs, as indicated in Exhibit F to this Agreement, which
costs are governed by, among other provisions, Article 11, Section 4 and Article Ill, Section 2
of this Agreement. If the Developer becomes entitled to cost reimbursement under City's
subdivision ordinances for any PIF Project, Developer shall perfect its right to such cost
reimbursement and does hereby transfer and assign all its right, title and interest in and to
such cost reimbursement to the Corporation for the purposes of reimbursing Developer for
PIF Qualified Costs incurred by Developer in constructing the Project.
ARTICLE IV
MISCELLANEOUS TERMS AND CONDITIONS
1. Representations and Warranties. The City, the Corporation and the
Developer hereby represent and warrant to and for the benefit of each other that:
(a) Each entity has the full power and legal authority to enter into this
Agreement;
(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 organizational or operational documents to confirm its
authority to execute, deliver and perform each of its obligations under
this Agreement.
2. Corporate Governance. The Corporation agrees to promptly provide
Developer with notice of all meeting and minutes of all proceedings and actions taken by the
Corporation's board of directors. Upon Developer's request, the Corporation 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
1191107.4
4. Entire A¢reemenli. 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 terms 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 pursuant 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 recognized 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
(I) 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 telccopy 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
Manager Fax: (719) 553-2698
Notices to Corporation: North Gateway Number l
Public Improvement Corporation
c/o City of Pueblo
1 City Hall Plaza
Attention: City Manager
Pueblo, CO 81003
Fax: (719) 553-2698
Notices to Developer: Hutton Growth OFP Pueblo EX, LLC.
736 Cherry Street
Chattanooga, TN 37402
7. Severability. 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
9
1191107.4
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 terms 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 pursuant 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 Agreement 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=dare incorporated herein by this reference.
12. 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 I, 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 construed to pledge or to create a lien on any class or
source of City moneys.
13. Immunity of Officers. Employees and Agents of City, 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") against any past,
present or future officer, director, employee or agent of: (a) the City, (b) the Corporation, or of
any successor public corporation of the City, under any rule of law or equity, statute or
constitution or by the 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 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.
10
1191 107.4
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 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, or the Developer shall be for the sole and exclusive benefit of the City,
the Corporation, and the Developer.
15. Effectiveness of this Agreement. This Agreement shall become effective
as of the date first set forth above.
IN WITNESS WHEREOF, the parties hereto have executed this Public Facilities
Agreement on the date and year first above written.
HUTTON GROWTH OFP
PUEBLO EX, LLC.
a Colorado limited liability corporation
By:
Its: Mang er
NORTH GATEWAY NUMBER I
PUBLIC I i • e NT IIIECTION
041.1°
By: = —.��� -
Its: President
CITY OF PUEBLO, COLORADO
driM
President of Council
ATTEST:
City erk
11
1191107.4
EXHIBIT A
DEVELOPMENT SITE
Lots 1,2 and 3,Pueblo Crossing Filing No.3,recorded July 27,2016,under Reception No.2043662,County of
Pueblo,State of Colorado.
12
1191107.4
EXHIBIT B
RESERVED
13
1191107.4
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.
14
1191 1 07.4
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:
1. Office users.
2. industrial users.
3. Health Care Facilities,
4. Educational Facilities.
5. instrumentalities of the federal, state or local government.
6. Post offices.
7. Banks.
8, Service providers not providing services to general public (e.g., research corporation).
9. 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.
15
1191107.4
EXHIBIT E
SALES EXEMPTION
The following shall be excluded for purposes of determining "Sales"(insert Sec. 14-4-76 of
Pueblo Ordinances).
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1191107.4
EXHIBIT F
PHASE 2 PIF QUALIFIED COSTS
All of these Phase 2 PIF Qualified Costs are
for public improvements in areas open
to the public including facilities such as
parking, landscaping,streets,sidewalks,
pedestrian facilities,access ways,parks,
and utilities.
ITEM UNIT QUANTITY UNIT PRICE TOTAL
HARD COST
1 Earthwork CY 45000 4.00 180,000
2 Drainage LS 1 48,000 48,000
3 Landscaping LS 1 25,000 25,000
4 Parking Area(Paving,Curb&Gutter) SYS 26000 24 624,000
5 , Lighting LS I 65,000 65,000
6 Interstate Pylon Signage LS 1 130,000 130,000
7 Water Main Extension LF 970 40 38,800
8 Sanitary Sewer Main Extension LF 175 30 5,250
9 Hard Cost Contingency 10% LS 1 26,803 111,605
Subtotal: 1,227,655
SOFT COST _
1 Engineering LS 1 45,000 45,000
2 Geotechnical LS 1 12,000 12,000
3 Legal LS 1 50,000 50,000
4 Landscape Design LS 1 4,500 4,500
5 Phase I Environmental Report LS 1 3,200 3,200
6 Legal Description/Survey LS I 23,000 23,000
7 Deferred Cost Factor LS 1
8 Soft Cost Contingency 10% LS 1 13,770 13,770
Subtotal: 151,470
CM Fee 3%of Hard Cost 36,830
GRAND TOTAL PHASE 2 PIF QUALIFIED
COSTS * 1,415,955
1111•11111.111111•11•
* Plus interest carry at one-month LIBOR rate,plus 300 basis points, accruing from the time that the line
items above are expended.
March,2016
OP 1225211.1
EXHIBIT G
SUBSTANTIVE PROVISIONS OF THE PIF AGREEMENT
In consideration of Landlord's, construction of extensive public improvements, the City of
Pueblo(the"City"), Colorado,through the North Gateway Number 1 Public Improvement
Corporation(the"Public Improvement Corporation"),will receive revenues from certain Public
Improvement Fees("PIF")of.50%(imposed in addition to applicable City of Pueblo sales taxes)
as more fully set forth in the Intergovernmental Agreement(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. The amount of
the PIF will be reduced from .50%to .25%after Landlord or its successors or assigns, are paid
for PIF Qualified Costs(as defined in the PIF Agreement and subject to amendment of Exhibit F
contained therein). 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)of 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., as re-codified,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
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1191107.4
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,use or consumption of straw and
other bedding for use in the care of livestock shall be exempt; (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
of users would ever conduct includable Sales at its premises.
Tenant hereby agrees that the entire"PIF Revenues"(as defined in the PIF Agreement)related to
the Property belong solely to the Corporation or other party as designated in the PIF Agreement.
Tenant shall file any and all reports or forms, including, without limitation,the"Waiver of
Confidentiality"agreement,required under the PIF Agreement to enable Landlord, or other party
as set forth in the PIF Agreement,to receive such PIF Revenues, including, but not limited to,all
monthly,quarterly and annual sales and sales tax information furnished to the State of Colorado
Department of Revenue, the City and any other applicable agency(ies). Tenant shall comply with
the provisions of the PIF Agreement, and if required to facilitate the PIF,shall execute any
separate or supplemental agreement that may be required by the City or the Public Improvement
Corporation. It is expressly agreed that the sales tax revenues relate to contractual arrangements
between Landlord and the BID under applicable Colorado laws. It is expressly agreed that the
PIF Revenues relate to contractual obligations between Landlord and the Public improvement
Corporation under applicable Colorado Laws.
PIE Revenues shall be remitted to the City substantially as set forth below:
(a)The City shall supply all Development Site Retailers(as defined in the Agency Agreement)
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 and the Corporation upon the preparation thereof.Not
later than the 20th day of the first month following the end of a Collection Month(as defined in
the Agency Agreement by and between the City, Landlord, Public Improvement Corporation and
the BID which agreement is hereinafter referred to as the"Agency Agreement"),Development
18
1191107.4
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 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 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(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 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 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 for inspection and audit.
Reports received by the City, the Corporation or the Landlord 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 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 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
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in order to determine compliance with the PIF collection and remittance obligations of
Development Site Retailers hereunder; 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.
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DE
Page:2059433 of 21 R 113.00
C 117 D .00875113.00
Gilbert Ortiz Clerk/Recorder. Pueblo County. Co
1111 PA1Tilidlii Inti L'i''t�l�',�i��i�w��'t�il+t�Qf'�'� "r� 11111
DECLARATION OF COVENANTS
IMPOSING AND IMPLEMENTING
THE PUBLIC IMPROVEMENTS FEES
When recorded, return to:
Spencer Fane LLP
Attn: Rick Kron and Ron Fano
1700 Lincoln Street, Suite 2000
Denver, Colorado 80203
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Gilbert Ortiz Clerk/Recorder. Pueblo County. Co
1111 kIrirdlti hillIC«1'1:101 i��ik' Jt,t�,NT�Iti' �I' III III
TABLE OF CONTENTS
1. Defined Terms 2
2. Assessment of Add-On PIF 4
3. Payment of Public Improvements Fees 5
4. PIF Amounts and Limitations 6
5. PIF Guidelines 6
6. Additional Reporting Requirements 6
7. Audits and Release of Information by the PIF Collecting Agent 7
8. Compliance and Enforcement 8
9. Use and Pledge of Regular PIF Revenues 9
10. PIF Collecting Agent Designation 9
11. Project Owner/Project Occupant Obligations 9
12. Inclusion of Additional Property 12
13. Exclusion of Property 13
14. No Dominion or Control By Declarant 13
15. Dissolution of Corporation 13
16. Notices to Project Occupants 13
17. Tax Obligations 14
18. Governing Laws 14
19. Covenants Run with the Land; Termination 14
20. Residential Use Prohibition; CCIOA Exemption 14
21. Amendment 14
22. Severability 15
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Gilbert Ortiz Clerk/Recorder, Pueblo County, Co
uIII 14,Ulthiri llOd'IAMO IRIAIIwMPHAIIIY), i II I
DECLARATION OF COVENANTS IMPOSING AND IMPLEMENTING
THE PUBLIC IMPROVEMENTS FEES
THIS DECLARATION OF COVENANTS IMPOSING AND IMPLEMENTING THE
PUBLIC IMPROVEMENTS FEES (this "Declaration") is made as of 5*PIe,,,,A.t r .t, , 2016
by HUTTON GROWTH OFP PUEBLO EX, LLC., a Colorado limited liability corporation.
Recitals
This Declaration is made with respect to the following facts:
A. Declarant (as defined below) is the owner in fee simple of the PIF Property (as
defined below). The PIF Property is located in the City of Pueblo, Colorado, a home-rule
municipality of the County of Pueblo, State of Colorado (the "City").
B. Declarant is developing and desires to further develop, and redevelop from time to
time, on the PIF Property, a commercial retail shopping center project. Such development will
require (initially and from time to time thereafter) numerous infrastructure improvements,
including, without limitation, public streets, sidewalks, art, plazas, utilities, parking facilities,
storm water management facilities, trail systems, and parks and open space (the "Public
Improvements").
C. The Declarant will, among other things, provide for and facilitate the planning,
design, engineering, financing, acquiring, construction, completion, ownership, operation,
maintenance, replacement and repair of the Public Improvements (some of which may be
dedicated to or otherwise owned by the City).
D. Declarant desires that the reasonable and necessary costs of planning, designing,
engineering, financing,acquiring, constructing, managing construction of and installing the Public
Improvements, and all other costs and expenses incurred or advanced in connection with the
financing,acquisition,construction,completion and redevelopment from time to time of the Public
Improvements, including,without limitation,operation,maintenance,repair and replacement costs
incurred for the Public Improvements, and including without limitation all "Eligible Costs" as
defined in the IGA (as defined below) (all of such costs together, the "Public Improvements
Costs"), be funded, paid and reimbursed, in part, from the Public Improvement Fees (as defined
below) imposed and collected pursuant to this Declaration.
E. Subject to and in accordance with the terms and provisions of this Declaration,
Declarant desires to impose the obligation to collect and pay,and to provide for the implementation
of the collection and payment of, the Public Improvement Fees on all Taxable Transactions (as
defined below) that occur within or from the PIF Property.
Declaration
In consideration of the facts set forth in the Recitals and for other good and valuable
consideration, the receipt and sufficiency of which are acknowledged by Declarant, Declarant
hereby declares as follows:
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Gilbert Ortiz Clerk/Recorder, Pueblo County, Co
•III rdiiNIII 4VI01 11110iniP4,1w1710krir II III
1. Defined Terms. The following capitalized terms, when used in this Declaration,
have the following meanings:
"Add-On PIF" means a public improvements fee in the initial amount of one-half percent
(0.5%) of the gross receipts of each Taxable Transaction imposed pursuant to Section 2 of this
Declaration. The percentage rate of the Add-On PIF may be reduced pursuant to Section 4 of this
Declaration.
"Affiliate" means any entity associated with or acting at the direction or on behalf of
Declarant.
"Agency Agreement" means that certain Agency Agreement by and between Declarant,
the North Gateway No. 1 Public Improvement Corporation, and the City of Pueblo, Colorado,
dated Seri, t, , 2016.
"City" has the meaning set forth in Recital A of this Declaration.
"City Reimbursement Costs" means all amounts required to be remitted to the City
pursuant to Section 4.1.C.2 of the IGA, less any such amounts paid to the City by Declarant
pursuant to Sections 4.1.A, 4.1.B and 6.1 of the IGA.
"Commencement Date" means the date on which this Declaration is recorded in the
Records.
"Confidential Information"has the meaning set forth in Section 7 of this Declaration.
"Corporation"means the North Gateway Number 1 Public Improvement Corporation. The
"Corporation" is the same as the "Public Improvement Corporation."
"Declarant" means Hutton Growth OFP Pueblo EX, LLC., a Colorado limited liability
corporation, and any successor to such entity designated as the "Declarant" hereunder in a written
instrument executed by the then-current Declarant and recorded in the Records. "Declarant"is the
"Developer" and the "Landlord/Seller" and "Seller/Landlord" as used herein.
"Default Rate" means the rate of 18% per annum, but if such rate exceeds the maximum
interest rate permitted by applicable law, such rate will be reduced to the highest rate allowed by
applicable law under the circumstances.
"Development Site Retailer" means "Retailers."
"Enforcing Party" has the meaning set forth in Section 8(b) of this Declaration.
"Intergovernmental Agreement" means that certain Intergovernmental Public Facilities
Agreement by and between the City, Corporation, and Declarant dated S af}e„,,b e,- a t., 2016.
"Owned/Leased PIF Property" means, with respect to any Project Owner, the portion of
the PIF Property to which such Project Owner owns fee simple title and,with respect to any Project
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Gilbert Ortiz Clerk/Recorder Pueblo County Co
11111NPAIThililVililitilIA 11111
Occupant,the portion of the PIF Property such Project Occupant has the right to possess or occupy
pursuant to its lease, sublease, license, concession or other occupancy agreement.
"Person" means any individual, partnership, corporation, limited liability company,
association, trust, government, special district or other type of entity or organization.
"PIF Collecting Agent"means the Person that is designated by the Corporation as its agent
from time to time pursuant to the provisions of Section 10 of this Declaration to collect and receive
the PIF Revenues and to remit the same to the party entitled thereto pursuant to this Declaration.
"PIF Guidelines" is defined in Section 5 of this Declaration.
"PIF Property" means the real property in the City described on Exhibit A of this
Declaration, and any additional real property made a part of the PIF Property pursuant to
Section 12 of this Declaration, together with all improvements thereon and appurtenances thereto.
"PIF Revenues" means the Regular PIF Revenues.
"Project" means the commercial development project that Declarant is developing and
intends to further develop on the PIF Property.
"Project Occupant" means any Person, including without limitation each Project Owner,
who has the legal right, pursuant to a deed, lease, sublease, license, concession, easement or other
occupancy agreement of any type or nature (exclusive of utility or governmental easements), to
possess or occupy any portion of the PIF Property, including, without limitation, any space within
any building constructed on any portion of the PIF Property; provided that a mortgagee, a trustee
under or beneficiary of a deed of trust, or any other Person who has such of right of possession
primarily for the purpose of securing a debt or other obligation owed to such Person, will not
constitute a "Project Occupant" unless and until such Person becomes a Project Owner or a
mortgagee in possession or otherwise possesses or occupies a portion of the PIF Property pursuant
to such right by an intentional or voluntary act of its own, whereupon the subject mortgagee,
trustee,beneficiary or other Person will be a"Project Occupant"hereunder. A"Project Occupant"
is also a "Tenant/Buyer/Purchaser" hereunder.
"Project Owner" means any Person who owns fee simple title to any portion of the PIF
Property.
"Public Improvements" has the meaning set forth in Recital B of this Declaration.
"Public Improvements Costs"has the meaning set forth in Recital D of this Declaration.
"Public Improvements Fees" or"PIF" means the Add-On PIF.
"Records"means the real property records maintained by the Clerk and Recorder of Pueblo
County, Colorado.
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Gilbert Ortiz Clerk/Recorder, Pueblo County. Co
■III EiciltinidriiAlif ' 111141‘)111111111%3111141j111141 lI 111
"Regular PIF Revenues" means the net revenues (after payment of all permitted costs of
administration and collection permitted by law, and the IGA) generated from the imposition and
collection of the Add-On PIF pursuant to this Declaration.
"Report Recipients" has the meaning set forth in Section 6 of this Declaration.
"Reports" has the meaning set forth in Section 6 of this Declaration.
"Retailer" means any Project Occupant who is a seller of tangible personal property at
retail or furnisher of services who engages in any Taxable Transaction. A "Retailer" is a
"Development Site Retailer."
"Sales Tax" means that tax obligation on the sale of tangible personal property at retail or
the furnishing of services levied by the City pursuant to the Sales Tax Code.
"Sales Tax Code" means Chapter 4 of Title XIV of the Municipal Code of the City, and
any regulations promulgated pursuant thereto, as amended and/or replaced from time to time.
"Taxable Transaction" means any sale of tangible personal property at retail or the
furnishing of services initiated, consummated, conducted, transacted or otherwise occurring from
or within any portion of the PIF Property upon which the Sales Tax is payable pursuant to the
Sales Tax Code. If the Sales Tax Code is repealed, invalidated or otherwise is terminated for any
reason and not replaced with a new provision of the Municipal Code of the City to implement a
Sales Tax,then"Taxable Transaction"will mean any sale of tangible personal property at retail or
the furnishing of services initiated, consummated, conducted, transacted or otherwise occurring
from or within any portion of the PIF Property upon which the Sales Tax would have been payable
pursuant to the Sales Tax Code last in effect.
"Termination Date" means the earlier to occur of: (A) first date on which all of the
following have occurred: (i) Declarant and its Affiliates have been reimbursed for all expenses
incurred or moneys advanced by them for any Public Improvements Costs; and (ii) all Public
Improvements Costs have otherwise been paid in full; or(B) December 31, 2116.
2. Assessment of Add-On PIF. From and after the Commencement Date and
continuing until the Termination Date:
(a) every Retailer will collect from the purchaser or the recipient of goods or
services in each Taxable Transaction initiated, consummated, conducted, transacted or
otherwise occurring from or within the such Retailer's Owned/Leased PIF Property, and
pay to the PIF Collecting Agent on behalf of the District, the Add-On PIF with respect to
each such Taxable Transaction from and after the first date of opening for sales occurring
from or within such Retailer's Owned/Leased PIF Property; and
(b) every Project Owner or Project Occupant who leases or subleases any
portion of its Owned/Leased PIF Property to a Retailer,or who permits a Retailer to occupy
any portion of its Owned/Leased PIF Property by license, concession or otherwise, will
require, pursuant to the lease, sublease, license, concession or other occupancy agreement
between such Project Owner or Project Occupant and such Retailer by virtue of which such
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Gilbert Ortiz Clerk/Recorder, Pueblo County. Co
VIII ri.rK 11'Ii'Wiled«itL' L'I!iPI.I Tl:" I"i 11111
Retailer is given the right to possess or occupy any portion of such Owned/Leased PIF
Property, that such Retailer will collect from the purchaser or the recipient of goods or
services in each Taxable Transaction initiated, consummated, conducted, transacted or
otherwise occurring from or within the portion of the PIF Property possessed or occupied
by such Retailer pursuant to such lease, sublease, license, concession or other occupancy
agreement, and pay to the PIF Collecting Agent on behalf of the District, the Add-On PIF
with respect to each such Taxable Transaction from and after the first date of opening for
sales occurring from or within such Retailer's Owned/Leased PIF Property. The failure of
a Project Owner or Project Occupant to incorporate such terms into or in conjunction with
its lease, sublease, license, concession or other occupancy agreement with a Retailer shall
not in any way excuse, exonerate, or release such Retailer from its obligation to collect the
Add-On PIF with respect to each Taxable Transaction and pay the same to the PIF
Collecting Agent pursuant to this Declaration.
3. Payment of Public Improvements Fees.
(a) Taxable Transactions. Whether or not collected from customers, each
Retailer will pay the Public Improvements Fees monthly, in arrears, with respect to all
Taxable Transactions initiated, consummated, conducted, transacted or otherwise
occurring during the immediately preceding monthly payment period from or within the
portion of the PIF Property occupied by such Retailer during such monthly payment period.
The Public Improvements Fees will be due and payable without notice within twenty (20)
days after the close of each monthly payment period and each Retailer will pay the same
directly to the PIF Collecting Agent. Each Retailer will report Taxable Transactions and
remit the Public Improvements Fees on such Taxable Transactions to the PIF Collecting
Agent on a monthly basis when such Retailer reports and remits sales taxes to the State of
Colorado (or any other governmental entity or agency which assumes under applicable law
responsibility for collection of sales taxes levied with respect to the PIF Property),
employing reporting forms and following the procedures required by the PIF Collecting
Agent. The reporting forms used by the PIF Collecting Agent will be modeled on the Sales
Tax reporting forms used for remittance of the Sales Tax by the Retailers. The Public
Improvements Fees will be calculated and imposed on Taxable Transactions at the
percentage rates established pursuant to this Declaration prior to the calculation and
assessment of any City Sales Taxes or any Pueblo County or State of Colorado sales taxes
and before any sales taxes of any other taxing authority required to be imposed by law,
meaning the Public Improvements Fees will be added to, and be considered part of, the
gross receipts for each Taxable Transaction prior to the calculation of all sales taxes that
are levied thereon.
(b) Generally. Declarant hereby acknowledges, any other Project Owner, by
acquiring fee simple title to any portion of the PIF Property, will be deemed to have
acknowledged, any other Project Occupant, by acquiring the right to possess or occupy any
portion of the PIF Property,will be deemed to have acknowledged,and each Project Owner
and Project Occupant will cause any Retailer whom such Project Owner or Project
Occupant permits to possess or occupy (by lease or otherwise) any portion of its
Owned/Leased PIF Property to acknowledge, prior to conducting any business from any
portion of the PIF Property, THAT THE PUBLIC IMPROVEMENTS FEES ARE NOT A
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TAX IN ANY FORM AND THAT THE AUTHORITY OF THE PIF COLLECTING
AGENT TO RECEIVE PUBLIC IMPROVEMENTS FEES IS DERIVED THROUGH
THIS DECLARATION. However, the failure of a Project Owner or Project Occupant to
cause a Retailer to make such acknowledgement shall not in any way excuse, exonerate, or
release such Retailer from its obligation to collect the Public Improvements Fees with
respect to each Taxable Transaction and pay the same to the PIF Collecting Agent pursuant
to this Declaration. In the event the District changes the PIF Collecting Agent for the
Public Improvements Fees (as further described in Section 10 of this Declaration), the
District will promptly notify each Project Occupant of the same and provide appropriate
direction for payment and reporting of the Public Improvements Fees thereafter. For
purposes of compliance with this Section 3, each Retailer will be entitled to rely upon
written notice from the District that the PIF Collecting Agent has changed.
4. PIF Amounts and Limitations. The percentage rate of the Add-On PIF established
pursuant to the definition of Add-On PIF in Section 1 of this Declaration will not be changed
except as provided in Section 11 of this Declaration.
5. PIF Guidelines. The Corporation and the PIF Collecting Agent may from time to
time establish uniform guidelines further clarifying and delineating the procedures to be followed
for the collection and remittance of the Public Improvements Fees by the Retailers, including the
reporting forms to be used in remitting the Public Improvements Fees to the PIF Collecting Agent
(the"PIF Guidelines"). The PIF Guidelines will apply and be enforced in a uniform and consistent
manner to all of the PIF Property and each portion of the PIF Property. The PIF Guidelines will
be delivered to all Retailers in writing (and for purposes of determining the names and addresses
of Retailers, any Project Owner or applicable Project Occupant will, within 10 business days after
receipt of a written request therefor from the District or the PIF Collecting Agent, provide such
requesting party with the name and address of all Retailers that then occupy any PIF Property of
such Project Owner or Project Occupant). Each Retailer will be entitled to rely on the then-current
PIF Guidelines for purposes of complying with this Declaration. FAILURE OF ANY RETAILER
TO RECEIVE THE PIF GUIDELINES SHALL NOT IN ANY WAY EXCUSE, EXONERATE,
OR RELEASE SUCH RETAILER FROM ITS OBLIGATIONS PURSUANT TO THIS
DECLARATION, AND EACH RETAILER SHALL BE FULLY BOUND BY THE TERMS OF
THIS DECLARATION NOTWITHSTANDING SUCH RETAILER'S RECEIPT OR
POSSESSION OF THE PIF GUIDELINES.
6. Additional Reporting Requirements. Each Retailer will deliver to the Corporation,
the PIF Collecting Agent, and, at the express written direction of the Corporation, to the City
(collectively, "Report Recipients"), true and complete copies of all written reports, returns,
statements, records and declarations, including any supplements or amendments thereto
(collectively the"Reports")made or provided to the City or the State of Colorado by such Retailer
in connection with all Sales Taxes for the corresponding tax period or activity at the same time
such Reports are delivered to the City or the State of Colorado. If any subsequent adjustments,
additions or modifications are made to any Sales Taxes or the Public Improvements Fees reported,
remitted or, paid, or Report made, by a Retailer to the Report Recipients, the City or the State of
Colorado with respect to Sales Taxes, or the Public Improvements Fees, such Retailer will provide
the Report Recipients with true and complete copies of all revised Reports or other written material
issued or received by such Retailer in regard thereto. If any such adjustment increases the amount
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• uIII EiraltliNdiffiEfi ION FIVII,RIVIh M:41kV iliiyi, 111111
of the Public Improvements Fees a Retailer is required to remit or pay, or results in a refund of
such Public Improvements Fees, such Retailer will immediately pay such additional Public
Improvements Fee in the amount due, or will, in the discretion of the PIF Collecting Agent receive
either an appropriate refund or an appropriate credit against the next Public Improvements Fees
due from such Retailer in the amount of such excess Public Improvements Fees. Any such Retailer
will claim such credits or pay such additional Public Improvements Fees with respect to Taxable
Transactions in the next applicable reporting period by use of the standard reporting and remittance
forms. All Reports made or provided by a Retailer will be maintained by such Retailer for at least
three years from the date of submission thereof to the City and/or State of Colorado, and upon
written request, will be made available at the Retailer's expense to the Report Recipients for
inspection and audit. Subject to Section 7 of this Declaration, Reports received by Declarant, the
PIF Collecting Agent, the Corporation will remain confidential and be used only for purposes of
collecting the Public Improvements Fees due, enforcing Retailers' obligations hereunder, and
otherwise monitoring compliance with the provisions of this Declaration.
7. Audits and Release of Information by the PIF Collecting Agent. By acquiring its
possessory interest in and to its Owned/Leased PIF Property subject to the terms and conditions of
this Declaration, each Retailer hereby specifically authorizes the PIF Collecting Agent and the
City to audit the books and records of such Retailer, upon 30 days' prior written notice and at the
principal place of business of such Retailer or another mutually agreed location, to determine
compliance with the Public Improvements Fees collection and remittance obligations of such
Retailer pursuant to this Declaration and, subject to the restrictions set forth in the next sentence,
to release to the Corporation such audited information and any Public Improvements Fees-related
Reports, returns (including sales tax returns) and other documents as are delivered to the PIF
Collecting Agent by such Retailer and any relevant information gathered by the PIF Collecting
Agent or the City (or the State of Colorado to the extent it is collecting any Sales Taxes on behalf
of the City) during an audit or in reviewing such reports, returns or other documents (collectively,
the "Confidential Information"); provided, however, that all Confidential Information, together
with the contents thereof,will be kept confidential and will not be disclosed or otherwise published
by any person to whom the PIF Collecting Agent so releases Confidential Information, except for
such disclosures or publications as may be required by applicable laws. Without limiting the
foregoing confidentiality and non-disclosure requirements, to the fullest extent permitted under
applicable laws, any publication or disclosure of Confidential Information submitted by or
pertaining to a specific Retailer (or the contents of such Confidential Information) by the PIF
Collecting Agent,the Corporation(or by anyone else to whom the PIF Collecting Agent is required
by law to disclose Confidential Information) that is otherwise required to be made, will be made
only on an aggregated basis with the similar information submitted by other Retailers and without
separate identification(direct or indirect)of the Public Improvements Fees or sales of such specific
Retailer. Each Retailer will write "CONFIDENTIAL COMMERCIAL INFORMATION" on
every Report that it furnishes to the Corporation, the City (or the State of Colorado to the extent it
is collecting any Sales Taxes on behalf of the City) or the PIF Collecting Agent to assist with the
maintenance of confidentiality, notwithstanding the Colorado Open Records Act, as the same may
be amended from time to time; provided, however, that a Retailer will not be required to include
such statement on its regular monthly returns for remittance of the Public Improvements Fees to
the PIF Collecting Agent and the failure of a Retailer to include such statement on any Report will
not affect the status of such report as Confidential Information pursuant to the preceding terms of
this Section 7.
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8. Compliance and Enforcement.
(a) Taxable Transactions. Each Retailer will comply with all policies and
requirements of the Corporation and the PIF Collecting Agent regarding notification to
customers of the assessment and collection of the Public Improvements Fees on Taxable
Transactions as such policies and requirements are contained in the PIF Guidelines or
otherwise disseminated from time to time. The failure or refusal of any Retailer to assess,
collect or remit the Public Improvements Fees, or to comply with the requirements
concerning notification to customers as required in this Declaration, will constitute a
default by such Retailer under the terms of this Declaration. THE CORPORATION, THE
PIF COLLECTING AGENT IS HEREBY EXPRESSLY MADE A THIRD PARTY
BENEFICIARY OF THE RETAILERS' OBLIGATIONS UNDER THIS
DECLARATION, INCLUDING, BUT NOT LIMITED TO, THE ASSESSMENT,
COLLECTION AND REMITTANCE OF THE PUBLIC IMPROVEMENTS FEES.
Declarant hereby acknowledges, any other Project Owner, by acquiring fee title to any
portion of the PIF Property, will be deemed to have acknowledged, any Project Occupant,
by acquiring the right to possess or occupy any portion of the PIF Property subject to this
Declaration, will be deemed to have acknowledged, and each Project Owner and Project
Occupant will cause any Retailer whom such Project Owner or Project Occupant permits
to possess or occupy (by lease or otherwise) any portion of its Owned/Leased PIF Property
to acknowledge,prior to conducting any business from any part of the PIF Property,THAT
THE CORPORATION COLLECTING AGENT WILL HAVE A DIRECT CAUSE OF
ACTION AND FULL RIGHT AND AUTHORITY TO ENFORCE EACH RETAILER'S
OBLIGATIONS UNDER THIS DECLARATION, AND THAT NO DEFAULT BY A
RETAILER'S LANDLORD (OR EQUIVALENT) UNDER ANY PROVISION OF THE
LEASE OR OTHER OCCUPANCY AGREEMENT PURSUANT TO WHICH SUCH
RETAILER OCCUPIES ANY PART OF THE PIF PROPERTY WILL ENTITLE SUCH
RETAILER TO ANY OFFSET, DEDUCTION OR OTHER DEFENSE TO PAYMENT
OF THE PUBLIC IMPROVEMENTS FEES DUE HEREUNDER.
(b) Default Rate, Late Charge and Enforcement Costs. Any payment of the
Public Improvements Fees not paid when due hereunder will bear interest at the Default
Rate, and the defaulting Retailer will bear all costs of enforcement and collection thereof,
including reasonable attorneys' fees and costs. In addition, if a Retailer fails to pay any
Public Improvements Fee when due, the PIF Collecting Agent may charge such Retailer,
and such Retailer will be obligated to pay the PIF Collecting Agent, a late charge in an
amount equal to the greater of 10%of the delinquent Public Improvements Fees or$100.00
(which $100 amount will be automatically increased by 15% every five years beginning
on January 1 of the fifth full calendar year following the recording of this Declaration).
Notwithstanding anything to the contrary contained in this Declaration, Declarant, the
Corporation,the PIF Collecting Agent or any third party designated by any of the foregoing
(collectively, an "Enforcing Party"), will have the right to enforce the provisions of this
Declaration against any Retailer that fails to abide by any of the terms and conditions of
this Declaration. An Enforcing Party will be awarded and recover from such a defaulting
Retailer all costs and expenses incurred by such Enforcing Party in successfully enforcing
the obligations of such Retailer under this Declaration in any legal proceedings brought(or
defended) by such Enforcing Party.
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Gilbert10rtiz CIle rk/Recorde0 D 0blo County Co
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9. Use and Pledge of Regular PIF Revenues. The Regular PIF Revenues are and will
be the property of the Corporation, and the Add-On PIF is imposed for the benefit of the
Corporation, subject to the terms of this Declaration. The Regular PIF Revenues generated by the
Add-On PIF imposed pursuant to this Declaration will be used only for the payment or
reimbursement of Public Improvements Costs as provided in this Declaration. All Regular PIF
Revenues that are received will be delivered by the PIF Collecting Agent to the Corporation
(and/or such other Person(s) designated by the Corporation from time to time) for the payment or
reimbursement of Public Improvements Costs.
10. PIF Collecting Agent Designation. The PIF Collecting Agent will be the City as
provided in the IGA and Agency Agreement or, if the City ceases to be the PIF Collecting Agent,
then an accounting firm, management company or other Person that is reasonably qualified to
collect the Public Improvements Fees pursuant to this Declaration. The PIF Collecting Agent will
not be Declarant or any Affiliate of Declarant. Subject to the terms of the Agency Agreement, the
Corporation will have the right to appoint, terminate and replace the PIF Collecting Agent from
time to time upon not less than 45 days' prior written notice to the Project Occupants, except that
in the event of an emergency or the resignation of the then-existing PIF Collecting Agent on short
notice less than 45 days' prior written notice will be permitted. If the PIF Collecting Agent is
changed on less than 45 days' prior written notice pursuant to the preceding sentence, then any
Retailer who remits Public Improvements Fees to the prior PIF Collecting Agent within 45 days
after receiving such written notice will be deemed in compliance with this Declaration and the
District will cause the prior PIF Collecting Agent to forward any such remittances to the new PIF
Collecting Agent. The PIF Collecting Agent will be entitled to receive a commercially reasonable
fee in consideration for collecting and disbursing the PIF Revenues pursuant to this Declaration
and the Public Financing Documents.
11. Project Owner/Project Occupant Obligations. In the event of a conflict between
any section of this Agreement and this Section 11, this Section 11 shall control. Each Project
Owner and Project Occupant will cause any Retailer to whom such Project Owner or Project
Occupant leases or whom such Project Owner or Project Occupant otherwise permits to occupy
any portion of its Owned/Leased PIF Property, in its lease or other occupancy agreement with such
Retailer pursuant to which such Retailer occupies any portion of such Project Owner's or Project
Occupant's Owned/Leased PIF Property, to acknowledge and agree to (in a manner that causes
such Retailer to be bound by) all provisions of this Declaration that pertain to such Retailer,
including, without limitation, the following provisions:
In consideration of Landlord's, construction of extensive public improvements, the City of Pueblo
(the "City"), Colorado, through the North Gateway Number 1 Public Improvement Corporation
(the "Public Improvement Corporation"), will receive revenues from certain Public Improvement
Fees ("PIF") of.50% (imposed in addition to applicable City of Pueblo sales taxes) as more fully
set forth in the Intergovernmental Agreement (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. The amount of the PIF
will be reduced from .50% to .25% after Landlord or its successors or assigns, are paid for PIF
Qualified Costs(as defined in the PIF Agreement and subject to amendment of Exhibit F contained
therein). 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
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• fill KIWI!! Fill I ihrettlf � �G ,���r iI II I
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 sales 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) of 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.,
as re-codified, 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 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, 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
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Gilbert Ortiz Clark/Recorder; Pueblo County; Co
�l;11G'1��Yia 1hIP�IJ lidttJ, 111111
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 hereby agrees that the entire "PIF Revenues" (as defined in the PIF Agreement) related to
the Property belong solely to the Landlord or other party as designated in the PIF Agreement.
Tenant shall file any and all reports or forms, including, without limitation, the "Waiver of
Confidentiality" agreement, required under the PIF Agreement to enable Landlord, or other party
as set forth in the PIF Agreement, to receive such PIF Revenues, including, but not limited to, all
monthly, quarterly and annual sales and sales tax information furnished to the State of Colorado
Department of Revenue, the City and any other applicable agency(ies). Tenant shall comply with
the provisions of the PIF Agreement, and if required to facilitate the PIF, shall execute any separate
or supplemental agreement that may be required by the City or the Public Improvement
Corporation. It is expressly agreed that the sales tax revenues relate to contractual arrangements
between Landlord and the BID under applicable Colorado laws. It is expressly agreed that the PIF
Revenues relate to contractual obligations between Landlord and the Public Improvement
Corporation under applicable Colorado Laws.
PIF Revenues shall be remitted to the City substantially as set forth below:
(a) The City shall supply all Development Site Retailers (as defined in the Agency Agreement)
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 and the Public Improvement Corporation upon the
preparation thereof.Not later than the 20th day of the first month following the end of a Collection
Month (as defined in the Agency Agreement by and between the City, Landlord, and Public
Improvement Corporation which agreement is hereinafter referred to as the"Agency Agreement"),
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 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 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 (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 sum of the sales price plus the amount of the PIF.
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II12i
erk/Recorder, Pueblo County�I11111104 ��l �IJ�� 111 II1
(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 Public Improvement Corporation and/or the Landlord for inspection and
audit. Reports received by the City, the Public Improvement Corporation or the Landlord 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 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 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 hereunder; 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.
12. Inclusion of Additional Property. Declarant may include any additional property,
as part of the PIF Property at any time by recording in the Records a supplement to this Declaration
setting forth the legal description of such included property and stating that, from and after the
date of such recording, such additional property will be included within the PIF Property for all
purposes under this Declaration. If the property to be included as part of the PIF Property is owned
by any Person other than Declarant, then such supplement to this Declaration must, in addition to
being executed by Declarant,be executed by the owner in fee simple of the property to be included
and consented to by the holder of any deed of trust, mortgage or other security for an obligation
encumbering such property. From and after the date any such supplement is properly executed
and recorded,the property described therein will become a part of the PIF Property for all purposes
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Gilbert Ortiz Clerk/Recorder, Pueblo County. Co
VIII UEi+.11i, I,N1011X.1Ali 10 it III
under this Declaration. Until such time as such additional property becomes part of the PIF
Property pursuant to the foregoing provisions, such additional property will not be bound,
encumbered or benefitted in any manner by this Declaration.
13. Exclusion of Property. Declarant may,without the prior consent of any other party,
exclude any property from the PIF Property by recording in the Records a notice of such exclusion
describing the property to be excluded from the PIF Property (an "Exclusion Notice"). Upon the
recording of any Exclusion Notice (or upon the effective date specified in the Exclusion Notice if
different from the date of recording), the property described in the Exclusion Notice will be
excluded from the PIF Property and will no longer be subject to the terms, obligations, covenants
and requirements of this Declaration, except with respect to Public Improvements Fee obligations
or other obligations arising under this Declaration prior to the effectiveness of such exclusion.
14. No Dominion or Control By Declarant. Except as expressly provided in this
Section 14, the Corporation will have all right, title and interest in and to the Add-On PIF.
Declarant does not have and will not be legally entitled, authorized or empowered to exercise any
dominion or control over any of the Regular PIF Revenues collected pursuant to this Declaration
unless, and until such time as, if ever, Declarant becomes entitled to receive the Regular PIF
Revenues or any portion thereof to reimburse Declarant for Public Improvements Costs paid or
otherwise advanced by Declarant. If and to the extent that Declarant is deemed to have any right,
title or interest in or to the Add-On PIF that is not provided for in the Public Financing Documents,
all right,title and interest of Declarant in and to the Add-On PIF and the obligations of the Retailers
hereunder with respect thereto will irrevocably, absolutely and unconditionally be transferred,
sold, assigned and conveyed by Declarant to the Corporation for financing or otherwise paying the
Public Improvements Costs. Unless and to the extent the Public Financing Documents provide
otherwise,to the extent any Regular PIF Revenues are collected by Declarant, Declarant is merely
acting on behalf of the Corporation PIF Collecting Agent in implementing this Declaration and
providing for the collection and payment of Regular PIF Revenues under this Declaration and the
Public Financing Documents. Subject to the express terms of this Section 14: (a) the Add-On PIF
is a fee imposed on Retailers to pay Public Improvements Costs as provided herein; (b) the nature
of the Add-On PIF is that of fees imposed under private covenant and not through the exercise of
any City taxing authority; (c) the Regular PIF Revenues are not tax revenues in any form and the
Add-On PIF will not be enforceable by the City; and (d) the Regular PIF Revenues are to be used
for the payment of Public Improvement Costs as provided in this Declaration.
15. Dissolution of Corporation. If the City takes any action toward dissolving the
Corporation or the Corporation otherwise comes under threat of dissolution by any other means,
then the Corporation may assign all of its rights, interests and privileges under this Declaration
(including without limitation its rights to receive the Add-On PIF) to any entity that agrees to
assume all of the Corporation's obligations under this Declaration. Any such assignment and
assumption will be made in the form of a written agreement recorded in the Records. If the
Corporation is dissolved before entering into such an assignment and assumption, then Declarant
will have the right to designate a successor to the rights, interests and privileges of the Corporation
by recording a written declaration to such effect in the Records.
16. Notices to Project Occupants. Whenever a notice is required to be given pursuant
to the provisions of this Declaration to "all" Project Occupants, the notice given will be deemed
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Gilbert Ortiz Clerk/Recorder, Pueblo County, Co
liii�Ir11161 I l.1110,Mi,1'01%111, 11111
sufficient if given to all Project Occupants the names and addresses of which were known to the
party giving such notice after a reasonably diligent effort to ascertain the names and addresses of
all Project Occupants. Notwithstanding the foregoing, any notice to be given pursuant to this
Declaration to a Retailer who is a Project Occupant by virtue of a lease, sublease, license,
concession, or other occupancy agreement will be given to such Retailer at the notice address(es)
contained in such Retailer's occupancy agreement and the landlord, sublessor, licensor,concession
or other granting party under such occupancy agreement will provide such notice address(es) for
any Retailer upon demand to any party who has a right to send any notice pursuant to this
Declaration.
17. Tax Obligations. In addition to the Public Improvements Fees, each Retailer is
subject to all sales and use taxes that may be imposed and otherwise not waived or credited by the
State of Colorado, the City, Pueblo County or any other applicable taxing authority.
18. Governing Laws. This Declaration will be governed by, and enforced in
accordance with, the laws of the State of Colorado. Venue for all actions hereunder shall be in the
District Court in and for Pueblo County, Colorado.
19. Covenants Run with the Land; Termination. The covenants, agreements, promises
and duties as set forth in this Declaration will be construed as real covenants, and not as conditions,
and all such covenants will run with title to and affect the PIF Property. Each such covenant to do
or refrain from doing some act on or with respect to activities on any portion of the PIF Property
under this Declaration (i) is a burden upon such portion of the PIF Property and is for the benefit
of the remainder of the PIF Property, (ii) will be a covenant running with the land with respect to
both the burdened and benefited portions of the PIF Property, and (iii) will be binding upon of
each Project Occupant and each successor thereto in the PIF Property and will inure to the benefit
of Declarant, the other Project Owners, the Corporation, the PIF Collecting Agent, and the City.
All covenants and agreements under this Declaration will terminate and expire on the Termination
Date, except with respect to any obligation arising under this Declaration that has not been paid,
discharged or satisfied in full as of the Termination Date. If and to the extent that any of the
covenants or other provisions herein would otherwise be unlawful or void for violation of(a) the
rule against perpetuities, (b)the rule restricting restraints on alienation, or(c) any other applicable
statute or common law rule analogous thereto or otherwise imposing limitations upon the time for
which such covenants may be valid, then the provisions concerned will continue and endure only
until the expiration of a period of 90 years after the Commencement Date.
20. Residential Use Prohibition; CCIOA Exemption. No portion of the PIF Property
may be used for "residential use" as defined in the Colorado Common Interest Ownership Act,
C.R.S § 38-33.3-101 et seq.,and this Declaration shall not be subject to Colorado Common Interest
Ownership Act.
21. Amendment. Subject to the terms of the Public Financing Documents and the
following sentence of this Section 21, this Declaration may be amended by a written instrument
that is recorded in the Records and executed by or on behalf of all of the following: (a) Declarant,
so long as Declarant is a Project Owner; (b) the then-current holder of any "Encumbrance"
identified in any Subordination and Consent of Lender attached to this Declaration; and (c)Project
Owners (which may include Declarant)that collectively own more than fifty percent (50%) of the
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Gilbert Ortiz Clerk/Recorder, Pueblo County, Co
■III Rl�.r'����l J!f� i� �i <JP6141,1111.itiligV INfliiiii 11111
total land area within the PIF Property, excluding all publicly owned lands, including, without
limitation,all rights-of-way,open space areas and similar areas that are owned by any public entity,
quasi-public entity, or political subdivision. This Declaration may not be amended to increase the
percentage rate of the Add-On PIF without the written consent of more than fifty percent(50%)of
the Retailers located within the Project at the time such amendment is made.
22. Severability. Invalidation of any of the provisions contained in this Declaration, or
of the application thereof to any person or entity, by judgment or court order, will in no way affect
any of the other provisions of this Declaration or the application of the terms hereof to any other
person or entity or circumstance and the remainder of this Declaration will remain in effect;
provided, however, that in the event such invalidation would render the remaining portions of this
Declaration ineffective to carry out the material intentions of Declarant as expressed or implied by
this Declaration,then the objectionable provision(s)hereof will be construed, and this Declaration
will be deemed amended, as if such provision were replaced with an enforceable provision which
effectuates, as nearly as possible, the material intentions of Declarant.
[remainder of page is intentionally blank]
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Gilbert Ortiz Clerk/Recorder, Pueblo County Co
11111 MllidlIVII)A111 11A41'i)'�1111111110 IVAIIIiiiall1111 /1111
IN WITNESS WHEREOF Declarant has executed this Declaration as of the date first set
forth above.
DECLARANT:
HUTTON GROWTH OFP PUEBLO EX, LLC., a
Colorado limited liability corporation
By: SEA Holdings, LLC, a Georgia limited
liability company
Its: Manager and Sole-Member
By:
Ricky, - ovak, Manager
STATE OF
) ss:
COUNTY OF :7Av )
The foregoing instrument was acknowledged before me as of the /q"day of
1C�r»6e,- ,2016,by Ricky B.Novak,Manager of SEA Holdings,LLC,a Georgia limited
liability company, Managing Member of HUTTON GROWTH OFP PUEBLO EX, LLC., a
Colorado limited liability corporation.
WITNESS my hand and official seal.
Notary Public
My Commission Expires: o9-029-a0 40%111M/44_���'
.........•�/C9
g1ON
.a�OTARy9N•s
r iN pUB-
C?
G F.O n . Cr
,
III,,itfl�rrrrr
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Gilbert Ortiz Clerk/Recorder, Pueblo County. Co
• gill W!rjnliiia iii iNtiliriliIl'hiIqi 11itliN ill Li 111111
CONSENT BY CORPORATION:
�'' NORTH GATEWAY NUMBER 1 PUBLIC
' IMPROVEMEN _ ! 'P I ' • •
}. By: 41.6111111161.— —
Stephen G. Nawrocki , President
.'''.R.N,,..,.0.:•+ , .
By: ''''
Name: ` na Dutcher
Title: City Clerk
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Gilbert Ortiz Clerk/Recorder. Pueblo County, Co
111114,11.111,'1140:1 10,11400 411.0 Wilk), 11 III
SUBORDINATION AND CONSENT OF LENDER
ihNK
The undersigned j Qv c T M NZ IC NterIONA, -("Lender"), as holder of that certain Deed of Trust
with Assignment of Rents recorded on (/t/zo iiP at Reception No. 2046cl81 (as it
may be amended or extended from time to time,the"Encumbrance")encumbering all or a portion
of the real estate described on Exhibit A-1 attached hereto, hereby consents to the above and
foregoing Declaration of Covenants Imposing and Implementing the Public Improvements Fees
(the "Declaration"), and Lender hereby subordinates the lien of the Encumbrance to the
Declaration and agrees that the terms and conditions of the Declaration the rights of parties
thereunder will not be disturbed in the event of a foreclosure under the Encumbrance. Further,the
terms and conditions of the Declaration will be binding upon Lender or any third party as the
purchaser at foreclosure or any deed in lieu thereof under the Encumbrance.
Lender:
______ v, / .J, k Ira///L.
i
By: a4:5± �_(-�Yi,i�1fl Q- (C
Name: j ro,cy iZ i D
Title: Spni \);,ot ,I
Title: jf„,.±
STATE OF �____� )
� J� *t `%'_ )S5:
COUNTY OF y� C� (,( )
The foregoing instrument was cknowledged before me as of the 2? da of
e44✓ , 20(1.6, by (z,( , as ..- (fes, 1��c iof
WITNESS my hand and official seal.
/i
S A
,_ .. ,E , yJt..
.fi
Notary Pu
My Commission Expires: 3 /S /
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Gilbert Ortiz Clerk/Recorder, Pueblo County, Co
11111 �l�.��Q iM�L��tiJ nW'1 j1k'd, 11111
EXHIBIT A4
LEGAL DESCRIPTION OF THE PIF PROPERTY
Lots 1, 2 and 3, Pueblo Crossing Filing No. 3, recorded July 27, 2016, under Reception No.
2043662, County of Pueblo, State of Colorado.
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