Loading...
HomeMy WebLinkAboutCovenants Corners PIFDECLARATION OF COVENANTS IMPOSING AND IMPLEMENTING THE CORNERS PUBLIC IMPROVEMENT FEE THIS DECLARATION OF COVENANTS IMPOSING AND IMPLEMENTING THE CORNERS PUBLIC IMPROVEMENT FEE (the "PIF Covenant") is made as of the 24th day of Januray, 2017, by Quadrant Wheat Ridge Corners, LLC, a Missouri limited liability company ("Declarant"). RECITALS This PIF Covenant is made with respect to the following facts: A. The Declarant is the owner of the real property set forth on Exhibit "A" attached hereto and incorporated herein by reference (the "Declarant's Property"), all of which real property is included in the development generally known as "The Corners." B. The Renewal Authority (as defined herein) is the owner of the real property set forth on Exhibit "B" attached hereto and incorporated herein by reference ("Lot 2'', together with Declarant's Property, the "PIF Property"); Lot 2 is included in The Corners. C. Declarant and the Renewal Authority entered into that certain Redevelopment Agreement (as defined herein) pursuant to which (1) Declarant will construct and install the Eligible Improvements (as defined herein), and (2) the Renewal Authority will reimburse Declarant for the Eligible Costs (as defined herein). D. The Declarant is recording this covenant (which burdens the entirety of the PIF Property) concerning the collection of the Public Improvement Fee (defined herein) to pay the Eligible Costs, including the Note and any Bonds (defined herein). E. The Renewal Authority has previously consented to the recording of this PIF Covenant against Lot 2 pursuant to that certain Consent to Declaration of Covenants Imposing and Implementing The Corners Public Improvement Fee recorded on January ____, 2017 at Reception No. in the Office of the Jefferson County Clerk and Recorder. F. The Public Improvement Fee will be in the amount of one percent (1 %), unless terminated in accordance with the provisions herein, of any PIF Sales (as defined herein). From and after the date hereof, each Retailer (as defined herein) shall be obligated to pay the Public Improvement Fee in the amount of one percent (1 .00%) on all PIF Sales, as set forth in Section 2 hereof. G. So long as the Note and any Bonds are outstanding and except as otherwise set forth in the Redevelopment Agreement, all Public Improvement Fee revenues are payable to the Renewal Authority or to the Renewal Authority's designee (the "Primary PIF Recipient," as further defined herein). H. Pursuant and subject to the terms of this PIF Covenant, the Public Improvement Fee will be required to be collected by all sellers or providers of goods or services who engage in PIF Sales transactions within the PIF Property subject to this PIF Covenant from the purchaser or DEN-130448-8 recipient of such goods or services and then paid over to a PIF Collection Agent (as defined herein) designated by Declarant. I. Subject to and in accordance with the terms and provisions of this PIF Covenant, the Declarant now desires to impose the obligation to collect and pay, and to provide for the implementation of the collection and payment of, a Public Improvement Fee on all PIF Sales that occur within the real property subject to this PIF Covenant. 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 the Declarant, the Declarant hereby declares as follows: 1. Defined Terms. The following terms, when used in this PIF Covenant, will have the following meanings: 1.1 "Add-On PIF Collection Services Agreement" shall have the meaning set forth in the Redevelopment Agreement. 1.2 "Bonds" shall have the meanmg set forth m the Redevelopment Agreement. 1.3 "City" shall mean and refer to the City of Wheat Ridge, a home rule municipality and political subdivision of the State of Colorado organized and existing under a home rule charter pursuant to Article XX of the Constitution of the State of Colorado. 1.4 "Confidential Information" shall have the meaning ascribed to such term as set forth in Section 6 below. 1.5 "Construct", "Constructed" and/or "Construction" shall mean refer to and include the design, construction, installation, maintenance, repair, replacement, reconstruction, improvement, expansion and operation of the described improvements. 1.6 "Declarant" shall mean Quadrant Wheat Ridge Comers, LLC, a Missouri limited liability company, or its assignee. 1. 7 "Declarant' s Property" shall mean and refer to the real property described on Exhibit "A" attached hereto and incorporated herein by reference. 1.8 "Default Rate" shall mean and refer to interest charged on delinquent payments hereunder at the rate of one percent (1 %) per month. 1.9 "Dissemination Agent" shall mean and refer to any entity charged with providing information to purchasers of any Bonds. DEN-130448-8 2 1.10 "Eligible Costs" shall have the meaning set forth in the Redevelopment Agreement. 1.11 "Eligible Improvements" shall have the meanmg set forth m the Redevelopment Agreement. 1.12 "Enforcing Party" shall have the meaning ascribed to such term as set forth in Section 7 below. 1.13 "Lot 2" shall mean and refer to the real property described on Exhibit "B" attached hereto and incorporated herein by reference. 1.14 "Note" shall have the meaning set forth in the Redevelopment Agreement. 1.15 "Occupant" shall mean and refer to any Person who has the legal right, pursuant to a deed, lease, sublease, license, concession, easement or other occupancy agreement of any type or nature, to possess or occupy any portion of the PIF Property, including, without limitation, any space within any building Constructed on any PIF Property; provided that a mortgagee, a trustee under or beneficiary of a deed of trust, or any other Person who has such a right of possession primarily for the purpose of securing a debt or other obligation owed to such Person, will not constitute an "Occupant" unless and until such Person becomes an 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 an "Occupant" hereunder. 1.16 "Owned/Leased PIF Property" shall mean and refer, with respect to any Owner, to the portion of the PIF Property to which such Owner owns fee title and, with respect to any Occupant, the portion of the PIF Property which such Occupant has the right to possess or occupy pursuant to its lease, sublease, license, concession or other occupancy agreement. 1.17 "Owner" shall mean and refer to any Person who owns fee title to any portion of the PIF Property. 1.18 "Person" shall mean and refer to any individual, partnership, corporation, limited liability company, limited liability limited partnership, association, trust or other type of entity or organization. 1.19 "PIF Collection Agent" shall mean and refer to any entity designated by Declarant from time to time to receive, from Retailers, the Public Improvement Fee revenues and perform any other functions in connection with the Public Improvement Fee revenues as designated by the Add-On PIF Collection Services Agreement (as defined herein). Notice of any PIF Collection Agent shall be given by Declarant in accordance with Section 4( c) hereof. 1.20 "PIF Covenant" shall mean and refer to this Declaration of Covenants Imposing and Implementing the Public Improvement Fee. 1.21 "PIF Property" shall mean and refer to the real property described on Exhibit "A" and Exhibit "B" attached hereto and incorporated herein by reference. DEN-130448-8 3 1.22 "PIF Reports" shall have the meaning ascribed to such term as set forth in Section 4 below. 1.23 "PIF Sales" shall mean and refer to any and all retail sales transactions by any Retailer of personal property initiated, consummated, conducted, transacted or otherwise occurring from or within any portion of the PIF Property which are on the date of recording of this PIF Covenant subject to a retail Sales Tax pursuant to the Sales Tax Ordinances, plus any and all retail sales transactions by any Retailer of personal property initiated, consummated, conducted, transacted or otherwise occurring from or within any portion of the PIF Property which are from time to time in the future subject to a retail Sales Tax pursuant to the Sales Tax Ordinances. PIF Sales shall also include PIF Services; however, PIF Sales shall at no time include internet sales made from internet terminals in the PIF Property or catalog sales placed by telephone from the PIF Property. 1.24 "PIF Services" shall mean and refer to any and all services by any Retailer of personal property initiated, consummated, conducted, transacted or otherwise occurring from or within any portion of the PIF Property, with the exception of medical services (including dental services), financial services, legal services, and accounting services. A detailed listing of such PIF Services, as the same may be modified from time to time by the Declarant, shall be provided to the PIF Collection Agent by the Declarant, and subject to the Sales Tax pursuant to the Sales Tax Ordinances. 1.25 "Pledge" or "Pledged" shall mean and refer to any assignment, conveyance, pledge, remittance or other transfer as may be customary and necessary or appropriate to make fully available the Public Improvement Fee revenue for payment of the Note or any Bonds. 1.26 "Primary PIF Recipient" shall mean the Renewal Authority or its designee, or any entity to whom the Primary PIF Recipient has assigned its rights in and control over, as provided herein, the Public Improvement Fee revenues. 1.27 "Public Improvement Fee" shall mean and refer to a fee assessed pursuant to this PIF Covenant against all PIF Sales initiated, consummated, conducted, transacted or otherwise occurring from or within the PIF Property in the amount of 1.0 percent (1 %) of PIF Sales for so long as the Note or any Bonds are outstanding. 1.28 "Reasonable" or "Reasonably" shall mean and refer to what would generally be considered just, fair, proper, usual, customary and appropriate by a prudent person under the same, or substantially similar, circumstances. 1.29 "Redevelopment Agreement" shall mean and refer to that certain Redevelopment Agreement, entered into by and among the Renewal Authority and TKG Wheat Ridge, LLC, a Missouri limited liability company (as predecessor in interest to Declarant), dated as of June 22, 2015, as supplemented by that certain letter from the Renewal Authority to Declarant dated February 23, 2016, as the same may subsequently be amended, modified, or supplemented from time to time. DEN-130448-8 4 1.30 "Renewal Authority" shall mean the Wheat Ridge Urban Renewal Authority d/b/a Renewal Wheat Ridge, a Colorado urban renewal authority and body corporate and politic. 1.31 "Report Recipients" shall mean and refer to: (i) the Primary PIF Recipient, Declarant, and the City, (ii) with respect to the specific information of any particular Retailer, Owner or Occupant leasing, subleasing or otherwise granting rights to such Retailer to occupy such Owner's or Occupant's Owned/Leased PIF Property, (iii) any Dissemination Agent; and (iv) any investor or potential investor in The Comers and its consultants, any mortgagee, prospective mortgagee, encumbrancer or purchaser of any part of The Comers or a prospective purchaser of any interest in the Declarant. 1.32 "Retailer" shall mean and refer to any Occupant who is a seller or provider of goods or services who engages in any PIF Sales initiated, consummated, conducted, transacted or otherwise occurring from or within any portion of the PIF Property. 1.33 "Sales Tax" shall mean and refer to that tax levied by the City pursuant to the Sales Tax Ordinances. 1.34 "Sales Tax Ordinances" shall mean and refer to the Chapter 22, Article I of the City's Municipal Code, and regulations promulgated thereto, but only to the extent such ordinance and regulations pertain to sales tax and not use tax, as amended from time to time. 1.35 "State" means State of Colorado. 1.36 "Tax Reports" shall have the meaning ascribed to such term as set forth in Section 5 below. 2. Assessment of Public Improvement Fee. Subject to subparagraph (C) hereof, following the recording in the County Clerk and Recorder's office for the County of Jefferson, Colorado of this PIF Covenant: A. Every Occupant who constitutes a Retailer will collect from the purchaser or the recipient of goods or services in each PIF Sales transaction initiated, consummated, conducted, transacted or otherwise occurring from or within the portion of such Occupant's Owned/Leased PIF Property that is possessed or occupied by such Occupant in its capacity as a Retailer, and pay to the PIF Collection Agent, the Public Improvement Fee with respect to such transaction; and B. Every Owner or 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 Owner or Occupant and such Retailer by virtue of which such Retailer is given the right to possess or occupy any portion of such Owned/Leased PIF Property, that such Retailer collect from the purchaser or the recipient of goods or services in each PIF Sales 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, DEN-130448-8 5 concession or other occupancy agreement, and pay to the PIF Collection Agent, the Public Improvement Fee with respect to such transaction. C. The obligations of each Occupant, Owner and Retailer hereunder shall terminate only at such time as the Declarant provides written notice of such termination to each (provided that such notice shall also be recorded in the real property records of Jefferson County, Colorado, and further provided that this PIF Covenant may not be terminated while the Note and any Bonds are outstanding). D. Retailers shall notify customers of the imposition of the Public Improvement Fee by permanently posting signage, satisfactory to the Primary PIF Recipient and Declarant, during the term of this Covenant identifying the rate of the Public Improvement Fee and reciting that THE PUBLIC IMPROVEMENT FEE IS NOT A TAX IN ANY FORM AND THAT THE AUTHORITY OF THE PRIMARY PIF RECIPIENT OR ANY OTHER RECIPIENT OF PIF REVENUES TO RECEIVE THE PIF REVENUES IS DERIVED THROUGH THIS COVENANT AND CERTAIN OTHER CONTRACTUAL AGREEMENTS AND NOT THROUGH THE EXERCISE OF ANY GOVERNMENTAL TAXING AUTHORITY. In addition, Retailers shall cause any receipts provided in connection with PIF Sales to specify the Public Improvement Fee on such transaction as a separate line item, separate and apart from any Sales Tax of the City or sales tax of any other governmental entity. 3. PIF Sales Guidelines. The PIF Collection Agent, in its sole discretion (subject to the provisions of the following sentence), may from time to time establish uniform guidelines relating to the calculation and payment of the Public Improvement Fee due hereunder to the extent consistent with the definition of "PIF Sales" in Section 1 hereof. The PIF Collection Agent shall provide a copy of such guidelines to the City for its review and approval, which such approval shall not be unreasonably withheld, conditioned or delayed. Such guidelines will be delivered by the PIF Collection Agent to all Retailers in writing (and for purposes of determining the names and addresses of Retailers, any Owner will, within ten (10) business days after receipt of a written request therefor from the PIF Collection Agent, provide the PIF Collection Agent with the name and address of all Retailers that then occupy any PIF Property owned by such Owner). Each Retailer will be entitled to rely on such guidelines for purposes of compliance with this PIF Covenant. In all events, in addition to the Public Improvement Fee, each Retailer will be subject to all sales taxes that may be imposed by the State of Colorado, the City and any other applicable taxing authority. In the event of conflict between the PIF Sales guidelines and the Sales Tax Ordinances, the Sales Tax Ordinances shall prevail. 4. Payment of the Public Improvement Fee. A. Whether or not collected from customers, each Retailer will pay the Public Improvement Fee monthly in arrears, in an amount equal to the applicable percentage set forth in the definition of "Public Improvement Fee" in Section 1 above, of all PIF Sales initiated, consummated, conducted, transacted or otherwise occurring during the immediately preceding month from or within the portion of the PIF Property occupied by such Retailer during such month. The Public Improvement Fee, together with the related reporting forms ("PIF Reports"), will be due and payable without notice within twenty (20) days after the close of each calendar month and each Retailer shall pay such Public Improvement Fees directly to the location of the DEN-130448-8 6 PIF Collection Agent, in funds payable to the Primary PIF Recipient or other payee in accordance with the guidelines provided by the PIF Collection Agent. Specific instructions regarding reporting forms and payment procedures will be provided to all Retailers by the PIF Collection Agent and each Retailer will be entitled to rely thereon for purposes of compliance with this Section 4. In order to facilitate compliance for remitters of the Public Improvement Fee, the procedures for reporting, assessment, collection and segregation of the Public Improvement Fee (but not the calculation or, necessarily, payment location) are intended to be substantially similar in all material respects to those set forth in the Sales Tax Ordinances and, unless otherwise advised by the PIF Collection Agent, each Retailer will report PIF Sales and remit the Public Improvement Fee to the PIF Collection Agent on a monthly basis when such Retailer reports and remits Sales Taxes to the City, employing reporting forms and following procedures provided by the PIF Collection Agent intended to be substantially similar to those used and required by the City for the remittance of Sales Tax. B. The Public Improvement Fee will be calculated and imposed on transactions at the rate stated above (in the definition of "Public Improvement Fee") prior to the calculation and assessment of any City or State sales tax, and before any sales taxes of any other taxing entity required to be imposed by law. The Public Improvement Fee will be added to the sales price for transactions subject to sales tax prior to the calculation of sales taxes such that all City Sales Tax and sales taxes of other taxing entities will be calculated and assessed on the sum of the PIF Sales price plus the amount of the Public Improvement Fee. The Declarant hereby acknowledges and any other Owner (by acquiring fee title to any portion of the PIF Property subject to this PIF Covenant) and any Occupant (by acquiring the right to possess or occupy any portion of the PIF Property subject to this PIF Covenant) will be deemed to have acknowledged, and each Owner and Occupant will cause any Retailer whom such Owner or 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 at any PIF Property, THAT THE PUBLIC IMPROVEMENT FEE IS NOT A TAX IN ANY FORM AND THAT, TO THE EXTENT THAT THE PRIMARY PIF RECIPIENT, ANY PIF COLLECTION AGENT OR ANY OTHER ENTITY ENTITLED TO PUBLIC IMPROVEMENT FEE REVENUES UNDER ANY AGREEMENT IS ENTITLED TO RECEIVE THE PUBLIC IMPROVEMENT FEE, SUCH AUTHORITY IS DERIVED THROUGH THIS PIF COVENANT, AN ADD-ON PIF COLLECTION SERVICES AGREEMENT TO BE EXECUTED BY THE DECLARANT AND ANY PIF COLLECTION AGENT, AND THE REDEVELOPMENT AGREEMENT, AND NOT THROUGH ANY EXERCISE OF GOVERNMENTAL POWERS. C. Declarant will promptly notify each Retailer of the designation of any PIF Collection Agent, or successor thereto, and provide appropriate direction for payment and reporting of the Public Improvement Fee thereafter. For purposes of compliance with this Section 4, each Retailer will be entitled to rely upon written notice from Declarant as to the identity of any such PIF Collection Agent and, in such event, each Retailer will be entitled to rely upon the specific instructions regarding reporting forms and payment procedures for the Public Improvement Fee provided in writing to such Retailer by the Declarant or the specified PIF Collection Agent. 5. Additional Reporting Requirements. Each Retailer will deliver to the PIF Collection Agent true and complete copies of all written reports, returns, statements, records and DEN-130448-8 7 declarations, including any supplements or amendments thereto (collectively, "Tax Reports") made or provided to the City and the State by such Retailer in connection with all sales tax of the City and the State for the corresponding sales tax period at the same time such Tax Reports are delivered to the City or the State, respectively; provided that, if available at the time that Public Improvement Fees are to be paid in accordance with Section 4 hereof, such Tax Reports for the corresponding sales tax period shall be submitted to the PIF Collection Agent together with the Public Improvement Fee and PIF Reports for such period. If any subsequent adjustments, additions or modifications are made to any City or State sales taxes reported, remitted or paid, or Tax Reports made, by a Retailer to the City or the State with respect to sales taxes, such Retailer will provide the PIF Collection Agent with true and complete copies of all revised Tax Reports or other written material issued or received by such Retailer in regard thereto. If any such adjustment increases the amount of the Public Improvement Fee which a Retailer is required to remit or pay, or results in a refund of such Public Improvement Fee, such Retailer will immediately pay such additional Public Improvement Fee in the amount due, or will receive an appropriate credit against the next Public Improvement Fee due from such Retailer in the amount of such excess Public Improvement Fee. Such Retailer will claim such credits or pay such additional Public Improvement Fee in the next monthly reporting period by use of the standard PIF Reports relating to reporting and remittance forms. All PIF Reports and Tax Reports made or provided by a Retailer will be maintained by such Retailer for at least three (3) years from the date of submission thereof to the PIF Collection Agent, the City and/or State, and upon written request, will be made available to the PIF Collection Agent and any Enforcing Party for inspection and audit. Subject to Section 6 hereof, reports received by the PIF Collection Agent will remain confidential and be used only for purposes of collecting the Public Improvement Fee due, enforcing Retailers' obligations hereunder and otherwise monitoring compliance with the provisions of this PIF Covenant. 6. Audits and Release of Information by PIF Collection Agent. By acquiring its possessory interest in and to its Owned/Leased PIF Property subject to the terms and conditions of this PIF Covenant, each Retailer hereby specifically authorizes the PIF Collection Agent and any Enforcing Party to audit the books and records of such Retailer to determine compliance with the Public Improvement Fee collection and remittance obligations of such Retailer under this PIF Covenant and, subject to the restrictions of the following sentence, to release to the Report Recipients (but not to any other person or entity, except as required by law) such audited information, PIF Reports, Tax Reports, returns (including sales tax returns) and other documents as are delivered to the PIF Collection Agent by such Retailer and any relevant information gathered by the PIF Collection Agent or any Enforcing Party during an audit or in reviewing such reports, returns or other documents (collectively, "Confidential Information"); provided, however, that all Confidential Information, together with the contents thereof, will be kept strictly confidential, will not be disclosed or otherwise published by any person to whom the PIF Collection Agent so releases Confidential Information, and will be used only for purposes of collecting the Public Improvement Fee due, enforcing Retailers' obligations hereunder and otherwise monitoring compliance with the provisions of this PIF Covenant, except with respect to information provided to Report Recipients described in Section 1.31(iii) or (iv) (including Dissemination Agents), and 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 Confidential Information submitted by or pertaining to a specific Retailer (or the contents of such Confidential Information) provided by DEN-130448-8 8 the PIF Collection Agent to Report Recipients described in Section l.31(iii) or (iv) (including Dissemination Agents) will be made only on an aggregated basis with the similar information submitted by other Retailers in the same retail center within The Comers and/or all Retailers, and without separate identification (direct or indirect) of the Public hnprovement Fee, the PIF Sales or City or State sales taxes of such specific Retailer. Dissemination Agents may distribute such aggregated information to purchasers of any Bonds or any other debt or obligation secured in whole or in part by the Public hnprovement Fee revenues. Each Retailer agrees to execute, upon request, a Waiver of Confidentiality further evidencing the authorizations provided herein with respect to use and disclosure of the information described in this paragraph. 7. Compliance and Enforcement. Each Retailer will comply with all policies and requirements of the PIF Collection Agent regarding notification to customers of the assessment and collection of the Public hnprovement Fee as such policies and requirements are communicated by the PIF Collection Agent to such Retailer in writing from time to time. The failure or refusal of any Retailer to assess, collect or remit the Public hnprovement Fee, or to comply with the requirements concerning notification to customers as required in this PIF Covenant, will constitute a default by such Retailer under the terms of this PIF Covenant. DECLARANT, THE RENEWAL AUTHORITY, THE PRIMARY PIF RECIPIENT, THE CITY, AND ANY PIF COLLECTION AGENT ARE HEREBY EXPRESSLY MADE THIRD PARTY BENEFICIARIES OF RETAILERS' OBLIGATIONS UNDER THIS PIF COVENANT, INCLUDING, BUT NOT LIMITED TO, THE ASSESSMENT, COLLECTION AND REMITTANCE OF THE PUBLIC IMPROVEMENT FEE. The Declarant hereby acknowledges and any other Owner (by acquiring fee title to any portion of the PIF Property subject to this PIF Covenant) and any Occupant (by acquiring the right to possess or occupy any portion of the PIF Property subject to this PIF Covenant) will be deemed to have acknowledged, and each Owner and Occupant will cause any Retailer whom such Owner or 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 at any PIF Property, THAT IN ADDITION TO ANY ONE (1) OR MORE OF THE DECLARANT, THE RENEWAL AUTHORITY, THE PRIMARY PIF RECIPIENT, THE CITY, OR ANY PIF COLLECTION AGENT WILL HA VE A DIRECT CAUSE OF ACTION AND FULL RIGHT AND AUTHORITY TO ENFORCE EACH RETAILER'S OBLIGATIONS UNDER THIS PIF COVENANT, AND THAT NO DEFAULT BY AN OCCUPANT UNDER ANY PROVISION OF A LEASE OR OTHER OCCUPANCY AGREEMENT PURSUANT TO WHICH A RETAILER OCCUPIES ANY PORTION OF SUCH OCCUPANT'S OWNED/LEASED PIF PROPERTY WILL ENTITLE SUCH RETAILER TO ANY OFFSET, DEDUCTION OR OTHER DEFENSE TO PAYMENT OF THE PUBLIC IMPROVEMENT FEE DUE HEREUNDER. Any payment of the Public Improvement Fee 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. In addition, if a Retailer fails to assess, collect and or remit the Public hnprovement Fee as provided herein, such Retailer will be obligated to pay a late fee in an amount equal to the greater of 10% of the delinquent Public hnprovement Fees or $100.00, plus interest at the Default Rate. The PIF Collection Agent will have the right to take any lawful action to collect the Public hnprovement Fee, default interest or late fees due hereunder. Notwithstanding anything to the contrary contained in this PIF Covenant, any one (1) or more of the Declarant, the Renewal Authority, the City, the Primary PIF Recipient, any PIF Collection Agent, or any third party designated by any of the foregoing (each, an "Enforcing Party"), will DEN-130448-8 9 have the right to enforce the provisions of this PIF Covenant against any Retailer that fails to abide by any of the terms and conditions of this PIF Covenant. An Enforcing Party will be awarded and recover from a defaulting Retailer all costs and expenses incurred by such Enforcing Party in successfully enforcing the obligations of such Retailer under this PIF Covenant in any legal proceedings brought (or defended) by such Enforcing Party. 8. Use and Pledge of Public Improvement Fee Revenues. The Public Improvement Fee revenues generated by the Public Improvement Fee imposed pursuant to this PIF Covenant shall be used for payment of the Note and any Bonds so long as the Note and any Bonds are outstanding. Any right, title and interest of the Declarant, the Renewal Authority, the Primary PIF Recipient, or any other Enforcing Party that may be entitled to receive Public Improvement Fee revenues pursuant to any other agreement, in the Public Improvement Fee and the obligations of the Retailers as set forth in this PIF Covenant, may be assigned by such parties to any other entity; provided, however, notwithstanding any such assignment, the Enforcing Parties will continue to be entitled to enforce this PIF Covenant against any Retailer in the event such Retailer fails to comply with the provisions hereof. Without limiting the foregoing, the Renewal Authority is hereby expressly authorized to Pledge for the payment of the Note and any Bonds all Public Improvement Fee revenues, or any portion thereof, generated by the Public Improvement Fee imposed pursuant to this PIF Covenant in accordance with the Redevelopment Agreement. 9. PIF Collection Agent Succession. The PIF Collection Agent is responsible for the collection and disbursement of the Public Improvement Fee. Declarant shall appoint another entity (referred to herein as the "PIF Collection Agent") to receive the Public Improvement Fee revenues and perform certain other functions in connection with the Public Improvement Fee on behalf of the Primary PIF Recipient or the terms of the Add-On PIF Collection Services Agreement. Upon such appointment, the Primary PIF Recipient will notify all Retailers thereof pursuant to Section 4 above. 10. General Acknowledgement and Amendment Provisions. The Declarant hereby acknowledges and any other Owner (by acquiring fee title to any portion of the PIF Property subject to this PIF Covenant) and any Occupant (by acquiring the right to possess or occupy any portion of the PIF Property subject to this PIF Covenant) will be deemed to have acknowledged, prior to conducting any business at any PIF Property, THAT THE PROVISIONS OF THIS PIF COVENANT HAVE BEEN APPROVED OR AGREED TO BY THE ENFORCING PARTIES AND THAT THE ENFORCING PARTIES ARE OR WILL BE RELYING UPON THESE PROVISIONS IN TAKING CERTAIN ACTIONS WITH RESPECT TO THE PUBLIC IMPROVEMENT FEE, THE NOTE, ANY BONDS, AND THE ELIGIBLE COSTS WITH THE EXPRESS CONDITION THAT THIS PIF COVENANT WILL NOT BE AMENDED, MODIFIED OR WAIVED WITHOUT THE PRIOR WRITTEN CONSENT OF THE PRIMARY PIF RECIPIENT, THE RENEWAL AUTHORITY, AND THE DECLARANT; ACCORDINGLY, THE DECLARANT HEREBY AGREES AND ALL OTHER OWNERS AND OCCUPANTS WILL BE DEEMED TO HAVE AGREED THAT NO AMENDMENT OR MODIFICATION WILL BE MADE TO, NOR ANY WAIVER MADE OR ACCEPTED BY THE DECLARANT, ANY OWNER OR ANY OCCUPANT WITH RESPECT TO THIS PIF COVENANT WITHOUT THE PRIOR WRITTEN CONSENT OF THE PRIMARY PIF RECIPIENT, THE RENEWAL AUTHORITY, AND DECLARANT, AND THAT ANY SUCH DEN-130448-8 10 PURPORTED AMENDMENT, MODIFICATION OR WAIVER IN THE ABSENCE OF SUCH CONSENT WILL BE VOID AND OF NO FORCE AND EFFECT. EACH OWNER AND OCCUPANT WILL CAUSE ANY RETAILER WHOM SUCH OWNER OR 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 AT ANY PIF PROPERTY, THAT THE PROVISIONS OF THIS PIF COVENANT THAT PERTAIN TO RETAILERS HAVE BEEN APPROVED OR AGREED TO BY THE ENFORCING PARTIES AND THAT SUCH PARTIES ARE OR WILL BE RELYING UPON SUCH PROVISIONS IN TAKING CERTAIN ACTIONS WITH RESPECT TO THE PUBLIC IMPROVEMENT FEE, THE NOTE, ANY BONDS, AND THE ELIGIBLE COSTS WITH THE EXPRESS CONDITION THAT THE PROVISIONS OF THIS PIF COVENANT THAT PERTAIN TO RETAILERS MAY NOT BE AMENDED, MODIFIED OR WAIVED WITHOUT THE PRIOR WRITTEN CONSENT OF THE PRIMARY PIF RECIPIENT, THE RENEWAL AUTHORITY, AND DECLARANT; ACCORDINGLY, SUCH RETAILER WILL BE DEEMED TO HA VE AGREED THAT NO AMENDMENT OR MODIFICATION WILL BE MADE TO, NOR ANY WAIVER MADE OR ACCEPTED BY SUCH RETAILER WITH RESPECT TO THE PROVISIONS OF THIS PIF COVENANT THAT PERTAIN TO RETAILERS UNLESS CONSENTED TO IN WRITING BY THE PRIMARY PIF RECIPIENT AND THE RENEWAL AUTHORITY AND DECLARANT, AND THAT ANY SUCH PURPORTED AMENDMENT, MODIFICATION OR WAIVER WITHOUT SUCH CONSENT WILL BE VOID AND OF NO FORCE AND EFFECT. 11. Owner/Occupant Obligations. Each Owner and Occupant will cause any Retailer to whom such Owner or Occupant leases or whom such Owner or Occupant otherwise permits to occupy any portion of its Owned/Leased PIF Property, in its lease, sublease, consent to assignment of lease or other occupancy agreement with such Retailer pursuant to which such Retailer occupies any portion of such Owner's or 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 PIF Covenant that pertain to such Retailer. In addition, each Owner and Occupant will take all actions reasonably necessary to assist the Primary PIF Recipient and any other Enforcing Party in collecting the Public Improvement Fees due hereunder and causing compliance with the provision hereof by any Retailer occupying such Owner's or Occupant's Owned/Leased PIF Property, including but not limited to specifically assigning the rights to enforce the provisions of its lease, consent to assignment of lease, sublease or other occupancy agreement relating to the Public Improvement Fee to any Enforcing Party upon written request. 12. Intentionally Deleted. 13. No Dominion or Control bv Declarant. Notwithstanding anything contained in this PIF Covenant to the contrary or in any other document related to the PIF Property, neither the Declarant nor the PIF Collection Agent (except as expressly set forth in the Add-On PIF Collection Services Agreement) shall have and will not be legally entitled, authorized or empowered to exercise any dominion or control over any of the Public Improvement Fee revenues imposed or collected pursuant to this PIF Covenant unless such entity is specifically assigned rights to such revenues. To the extent any Public Improvement Fee revenue is collected by the Declarant or the PIF Collection Agent, such parties shall be acting as agent for, and on behalf of, the Primary PIF Recipient in implementing this PIF Covenant and providing for the DEN-130448-8 11 collection and payment of Public Improvement Fee revenues pursuant to this PIF Covenant. Subject to the express terms of this Section 13: (a) the Public Improvement Fee is a fee imposed on Retailers to be used as provided herein; (b) the nature of the Public Improvement Fee is that of a fee imposed for the benefit of the Declarant, the City, the Renewal Authority, and the Primary PIF Recipient under private contract and not through the exercise of the taxing authority of the City or any other governmental entity; (c) the Public Improvement Fee revenues are not tax revenues in any form; (d) any Pledged Public Improvement Fee revenues shall be the property of the party to whom they have been pledged and as otherwise may be provided in this PIF Covenant, or the Redevelopment Agreement; and ( e) the authority of the Declarant, the City, the Renewal Authority, the Primary PIF Recipient or the PIF Collection Agent to receive the Public Improvement Fee revenues is derived through this PIF Covenant, the Add-On PIF Collection Services Agreement and the Redevelopment Agreement. 14. Notices to Retailers. Whenever a party is required pursuant to the provisions of this PIF Covenant to give notice to "all" Retailers, the notice given will be deemed sufficient if given to all Retailers, 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 Retailers. 15. Governing Laws and Venue. This PIF Covenant will be governed by, and enforced in accordance with, the laws of the State of Colorado. In the event of any dispute arising out of this PIF Covenant, the courts of the State of Colorado shall have exclusive jurisdiction over such dispute and venue shall be in the Jefferson County District Courts. 16. Covenants Run With Land. The covenants, agreements, promises and duties as set forth in this PIF Covenant will be construed as covenants and not as conditions and, to the fullest extent legally possible, all such covenants will run with and be enforceable against any Owner, Occupant and Retailer and the land and will constitute equitable servitudes burdening such respective parties and the PIF Property for the benefit of the Declarant, the Renewal Authority and the Primary PIF Recipient. Each covenant to do or refrain from doing some act on or with respect to activities on any portion of the PIF Property under this PIF Covenant (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 each Owner, Occupant and Retailer and each successor and assign to their respective interests in the PIF Property and will inure to the benefit of each of the Declarant, the other Owners, the Renewal Authority, the Primary PIF Recipient and the PIF Collection Agent, and their successors and assigns. 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 , 2106]. 17. No Unintended Beneficiaries to Ancillary Agreements. Notwithstanding any provision contained in this PIF Covenant, no Retailer, Owner or Occupant, shall, by virtue of this PIF Covenant, be a third party beneficiary or otherwise be entitled to enforce any terms or condition of any agreement to which the Declarant, the Primary PIF Recipient, the Renewal Authority, the City or any other Enforcing Party is a party, pertaining to the imposition, DEN-130448-8 12 collection, disbursement or assignment of the Public Improvement Fees, including but not limited to the Redevelopment Agreement, the Add-On PIF Collection Services Agreement and any other collection agreement entered into by the Declarant with a PIP Collection Agent. Any such agreement may be modified, amended, waived or terminated without the consent of any Retailer, Owner or Occupant. 18. Severability. Invalidation of any of the proVIstons contained in this PIF Covenant, or of the application thereof to any Person, by judgment or court order, will in no way affect any of the other provisions of this PIP Covenant or the application thereof to any other Person or circumstance and the remainder of this PIP Covenant will remain in effect; provided, however, that in the event such invalidation would render the remaining portions of this PIF Covenant ineffective to carry out the material intentions of the Declarant as expressed or implied by this PIF Covenant, then the objectionable provision(s) hereof will be construed, and this PIF Covenant will be deemed amended, as if such provision were replaced with an enforceable provision which effectuates, as nearly as possible, the material intentions of the Declarant. [Remainder of Page Intentionally Left Blank] DEN-130448-8 13 Draft 01119117 IN WITNESS WHEREOF, the Declarant has executed this PIP Covenant as of the date first set forth above. SIGNATURE PAGE ATTACHED TO AND MADE A PART OF DECLARATION OF COVENANTS IMPOSING AND IMPLEMENTING THE PUBLIC IMPROVEMENT FEE The undersigned, being the Declarant set forth in the foregoing Declaration of Covenants Imposing and Implementing the Public Improvement Fee, hereby executes this page as part of said Declaration and expressly ratifies, approves, confirms and agrees to the foregoing Declaration of Covenants Imposing and Implementing the Public Improvement Fee as more fully provided therein. STATE OF COLORADO ) ) SS. COUNTY OF ) Quadrant Wheat Ridge Corners, LLC, a Missouri limited liability company By:~---------~--~--­ Name: R. Otto Maly As: Manager The foregoing instrument was acknowledged before me this day of January, 2017, by R. Otto Maly as Manager of Quadrant Wheat Ridge Comers, LLC, a Missouri limited liability company Witness my hand and official seal. My Commission Expires: ______ _ Notary Public DEN-130448-8 EXHIBIT A Declarant's Property Legal Description Lots 1, 3, 4, and 5, The Comers Filing No. 1 in the City of Wheat Ridge, State of Colorado, as shown on that certain plat recorded at Reception No. ~~~~~~~~~ , County of Jefferson, State of Colorado. [To be revised to match the legal description contained within the title commitment following recording of The Corners Filing No. 1 subdivision plat] DEN-130448-8 EXHIBITB Lot2 Legal Description Lot 2, The Comers Filing No. 1 in the City of Wheat Ridge, State of Colorado, as shown on that certain plat recorded at Reception No. , County of Jefferson, State of Colorado. [To be revised to match the legal description contained within the title commitment following recording of The Corners Filing No. 1 subdivision plat] DEN-130448-8 CONSENT TO DECLARATION OF COVENANTS IMPOSING AND IMPLEMENTING THE CORNERS PUBLIC IMPROVEMENT FEE The Wheat Ridge Urban Renewal Authority, d/b/a Renewal Wheat Ridge, a Colorado urban renewal authority and body corporate and politic, hereby consents to the recording and imposition of the covenants contained in the Declaration of Covenants Imposing and Implementing the Public Improvement Fee ("Declaration") on the following land: Lot 2, The Comers Filing No. 1 in the City of Wheat Ridge, State of Colorado, as shown on that certain plat recorded at Reception No. ~~~~~~~~----' County of Jefferson, State of Colorado. [To be revised to match the legal description contained within the title commitment following recording of The Comers Filing No. l subdivision plat]. Wheat Ridge Urban Renewal Authority, d/b/a Renewal Wheat Ridge a Colorado urban renewal authority and body corporate and politic By~~Ov--- Name: j} "" 12-bbe'<f.J. Title: ~A.fu C,tJ IA\ (j.. Date: o l -J..'4. ·~ ""2-Dr1 STATE OF C:_o\c::ca.dP) ~rf'-. ) SS. COUNTY OF j~150Y1) The foregoing was acknowledged bef~re me on this~ day ofJo.nua.ry , ~17 by J;._;Ko~~ as ~ Ur.c,...,,.r Wheat Ridge Urban Renewal Authority, d/b/a Renew~ Wheat Ridge, a Colorado urban renewal authority and body corporate and politic. WITNESS my hand and official seal. DEN-130448-8 JAYMESUE MCRIMMON NOTARY PUBLIC STATE OF COLORADO NOTARY ID# 20154009457 MY COMMISSION EXPIRES MARCH 06. 2019 CONSENT TO THE RECORDING AND IMPOSITION OF DECLARATION OF COVENANTS IMPOSING AND IMPLEMENTING THE PUBLIC IMPROVEMENT FEE [ ] ("Beneficiary") is the beneficiary under a certain Deed of Trust dated _, 20_, granted by [ ], in favor of Beneficiary and recorded on _, 20_ at Reception No. ("Deed of Trust"), in the official records of the County of Jefferson, Colorado, related to the property more particularly described therein. Beneficiary hereby consents to the recording and imposition of the covenants contained in the Declaration of Covenants Imposing and Implementing the Public Improvement Fee ("Declaration"), and said covenants shall run with the land and be binding on all owners thereof, and the rights of Beneficiary shall be subordinated thereto, so that the terms of the Declaration shall apply as though recorded prior to the Deed of Trust. By: ________ ~----- Name: ---------------Its: ---------------- STATE OF _____ ) ) SS. COUNTY OF ____ ) The foregoing was acknowledged before me on this __ day of ______ , 2012, by _______ as of[ ___________ _ __ ]. WITNESS my hand and official seal. My Commission expires: ______ _ Notary Public DEN-130448-8