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AGREEMENT
FOR
CERTAIN ECONOMIC INDUCEMENTS AND INCENTIVES
THIS AGREEMENT FOR CERTAIN ECONOMIC INDUCEMENTS AND
INCENTIVES ("Agreement") is executed effective as of
("Effective Date"), by and between the TOWN OF FRASER, COLORADO, a Colorado
municipal corporation ("Town"), and
(hereinafter referred to as "Owner", whether one or more).
RECITALS:
A. The Town has adopted the Fraser Economic Development Policy to encourage, in
part, the establishment and expansion of new retail sales tax generating businesses
within the Town of Fraser and to further other public purposes.
B. Owner is the owner of the property located at
, Fraser, Colorado ("Property"), which is
further described in Exhibit A hereto, incorporated herein by this reference as if set
forth fully. Owner intends to undertake new commercial real estate and business
development on said Property, generally described as follows (the "Proposed
Development"):
[Insert description of proposed development]
C. In order to facilitate such Proposed Development, Owner desires to obtain the
benefits of certain incentives pursuant to the Fraser Economic Development Policy,
as set forth below. The Town finds and determines that such incentives will facilitate
the Proposed Development, which will generate additional sales tax revenues and
otherwise serve the public interest.
D. It is an appropriate and lawful function of Colorado municipalities to encourage
economic vitality through economic inducements and incentives.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Town and Owner agree as follows:
1. The foregoing Recitals are fully incorporated herein by this reference with the same
force and effect as though restated below.
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2. Determination of Public Benefit, Reliance of the Town.
a. The Town maintains certain guidelines for evaluating the public benefit of
commercial development within its corporate limits, and the value of providing
economic inducements and incentives to encourage and sustain such
development. In reliance upon certain data and information provided to the Town
by Owner, the Town has determined that construction and operation of the
Proposed Development satisfies such guidelines and will be of substantial
economic benefit to the Town.
b. Owner has provided the Town with certain intormation and representations upon
which the Town has relied in determining future tax revenue generation from
commercial activity presently taking place and anticipated to take place in the
foreseeable future within the Property. By entering into this Agreement, the
Town is relying on Owner's representations in good faith.
3. Agreed Incentives and Inducements.
In light of the foregoing, the Town agrees to the following incentives and inducements upon
the terms and conditions set forth below [include applicable and delete inapplicable
provisions]. These incentives shall only apply to the building and improvements included as
part of the Proposed Development, construction of which is commenced and completed within
the time lines specified in Subsection 4.a. below, together with the subdivided lot or parcel on
which such building and improvements are located.
a. Fee Rebate. Owner will pay the applicable permit and review fees for the Proposed
Development, but the Town agrees to rebate a portion of those fees equal to $1.00 per
square foot of new usable commercial space constructed as part of the Proposed
Development, payable upon issuance of the certificate of occupancy for such space.
b. Use Tax Waiver. The Town agrees waive payment of the Town's 4% building and
construction use tax that is otherwise payable on building and construction materials
used or consumed within the Town as provided in the Fraser Municipal Code. Such
waiver shall be limited the building and constriction materials used or consumed in
the construction of the improvements included as part of the Proposed Development.
c. Sales Tax Rebate. The Town will reimburse Owner for certain Town sales taxes
generated by the retail business operations conducted on the Property. Such rebate
shall be in an amount equal to 100% of the Town's 4% municipal sales tax (excluding
the additional 1% sales tax for transit) collected for the period of five (5) years from
the date of this Agreement and 50% of such sales taxes collected during the
subsequent five (5) year period. Such rebates shall be made on an annual or other
periodic basis, as determined by the Town, based on sales tax returns submitted to the
State and reported to the Town. Owner hereby voluntarily waives its right to
confidentiality as provided in State statutes and the Fraser Municipal Code and
consents to disclosure of sales and use tax information specific to taxable activity
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taking place on the Property during the entire period for which such rebates are to be
made, and Owner specifically consents to public discussion and analysis of such
information before Town governmental and administrative bodies. In the event all or
a part of the business premises are leased to a tenant business operator, Owner agrees
to obtain and provide to the Town the tenant's written waiver of confidentiality and
consent to disclosure of the tenants sales tax information, as a condition to the rebate
of sales taxes paid by such tenant. All rebates shall be paid to the Owner, and the
Town is not responsible for any agreement Owner may enter into with a tenant
regarding such rebates.
d. Property Tax Rebate. The Town will reimburse Owner for the increase in Town ad
valorem real and personal property taxes collected by the Town for the five-year
period following the date of this Agreement. The increase in such taxes, and the
amount to be reimbursed, shall be measured by the difference between the amount of
real and personal property taxes collected by the Town with respect to the lot or
parcel on which the commercial improvements are constructed and any business
personal property used in connection therewith for the tax year preceding the year of
the Effective Date of this Agreement (the "Base Year"), and the amount of such taxes
collected for each of the succeeding five (5) tax years. Annually, after payment of the
property taxes for which a rebate is due hereunder, the Owner shall make written
application to the Town for such rebate, which shall include copies of the tax bills
reflecting the amount of taxes attributable to the Town's levies for the Base Year and
the year for which the rebate is requested and proof of payment of such taxes. The
reimbursement shall be paid within 90 days after the Town's receipt of such
application and after verification of the rebate amount due.
e. Deferral of Plant Investment Fees. The Town agrees to allow the deferred payment
of water and wastewater plant investment fees, which are normally payable at the
time of issuance of a building permit. Owner will be allowed to pay such plant
investment fees in three (3) equal annual installments, without interest, with the first
installment payable on or before the date that is one (1) year after the issuance of the
certificate of occupancy for the commercial improvements to be constructed as part of
the Proposed Development, and with subsequent annual installments payable on or
before each anniversary date thereafter.
f. Service Fee Waiver/Deferral. The Town agrees to waive payment of service fees
for water and wastewater service until the issuance of a certificate of occupancy for
any of the improvements included in the Proposed Development, or until three (3)
years after the date of this Agreement, whichever comes first.
4. Conditions; Enforcement.
a. Commencement and Completion of Improvements. This Agreement is entered
into upon the conditions that Owner shall commence construction of the
commercial improvements included in the Proposed Development prior to
January 1, 2019, and shall complete such improvements and obtain the issuance
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of a certificate of occupancy therefore, not later than two (2) years after
commencement of construction. If either of these conditions is not satisfied by
the specified date, the Town may terminate this Agreement by giving written
notice to Owner. In the event of such termination, Owner shall be responsible of
payment of all fees, taxes and other charges due, which otherwise have been or
would be waived, rebated or deferred pursuant to Section 3 hereof
b. Length of Operation. The incentives provided herein contemplate that the new
business will continue operations for a period of time to accomplish the public
purposes for which such incentives are intended. In addition, the incentives are
intended to facilitate creation of a new business within the Town, not a relocation
of an existing business. At a minimum, Owner shall operate the proposed retail
business, or a similar new sales tax generating business on the Property for a
period of ten (10) years from the issuance of a certificate of occupancy for the
proposed improvements. If, at any time prior to that date, Owner decides to
terminate its retail sales tax generating business operations on the Property, or if
the premises are to be used for the relocation of another existing retail business,
Owner shall provide the Town with written notice of its decision no later than
thirty (30) days prior to the actual termination or transfer of operations. In that
event, and within thirty (30) days following written demand by the Town, Owner
shall repay to the Town an amount equal to ten percent (10%) of the aggregate
amount of all rebates and waivers of fees and/or taxes actually provided to Owner
pursuant to this Agreement, multiplied by the total number of calendar years
remaining in said 10 -year period.
c. Lien. In the event that Owner fails to repay any rebates, taxes and fees within the
time provided for herein, the Town shall have and may enforce a lien upon the
Property and all of the tangible personal property of or used by Owner on the
Property, for payment of all such sums owed, together with all costs of collection,
including reasonable attorney fees. Such lien shall have priority over other liens
or claims of whatever kind or nature, except any liens for the nonpayment of
property taxes and State sales and use taxes, and may be foreclosed in the same
manner as a mechanics lien under the laws of State of Colorado. In addition
to said lien, the Town shall have all other rights and remedies granted to it by
state and local law for the collection of unpaid taxes and fees.
5. Miscellaneous.
a. TABOR. Nothing herein shall be deemed a multiple -fiscal year obligation in
violation of the limitations set forth in Article X, Section 20 of the Colorado
Constitution. All sums payable hereunder by the Town in any future fiscal year
shall be subject to legal availability and annual appropriation.
b. Subsequent legislation, constitutional limits. The Town shall not be required to
reimburse Owner in the event that subsequent legislation adopted by the State of
Colorado makes such reimbursement unlawful, or in the event a court of
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competent jurisdiction declares any portion of this Agreement or legislation
authorizing payment under this Agreement to invalid or unconstitutional.
c. Compliance With Title 31, Article 15, Part 9, C.R.S. In connection with
providing these incentives, the Town agrees to comply with any obligations
imposed pursuant to Section 31-15-903, including the notification requirements of
sub -section (4) thereof.
d. Assignment. Owner shall not assign or subcontract with respect to any of its
rights, benefits, obligations or duties under this Agreement except upon prior
written consent and approval of the Town. In the event of a sale of the Property,
the Town will approve an assignment to the new owner, provided the Owner is
not then in default hereunder and the new owner expressly assumes the Owner's
obligations hereunder in writing.
e. Entire Agreement. This writing constitutes the entire agreement between the
parties with respect to its subject matter, and supersedes any prior written or oral
communication, negotiations, agreements, representations and understandings
between them with respect to its subject matter.
f. Modification. This Agreement may not be modified, enlarged or altered, except
in writing, signed by both parties.
g. No Third Party Beneficiaries. No person not a signatory hereto shall have any
right to seek enforcement or declaration of status under this Agreement. No third
parry beneficiaries are intended.
h. Attorney fees, costs of litigation. In the event of litigation between the parties
arising out of this Agreement, and in which the Town shall prevail, in addition to
any judgment for damages or declaratory relief, Owner shall pay all costs incurred
by the Town, including attorney fees, expert witness fees and other costs of suit.
i. Venue. This Agreement shall be governed by and construed in accordance with
the law of the State of Colorado. Venue for all purposes shall be deemed proper
in the District Court of Grand County, Colorado.
j. No Waiver. A waiver by either party of a breach of any of the provisions of this
Agreement shall not constitute a continuing waiver or a waiver of any subsequent
breach of the same or another provision of this Agreement.
k. Severability. If any part, term or provision of this Agreement is held by the
courts to be illegal or otherwise unenforceable, such illegality or unenforceability
shall not affect the validity of any other part, term of provision, and the rights of
the parties shall be construed as if the part, term or provision in question was
never part of this Agreement.
Agreement For Certain Economic Inducements and incentives
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Covenant Running with the Land. This Agreement shall be deemed to run with
the Property and, upon its execution by the parties, shall be recorded by the Town
with the Grand County Clerk and Recorder. Upon execution by the parties, this
Agreement shall be binding upon the parties, their respective successors and
permitted assigns.
In witness whereof, the parties have executed this Agreement as of the Effective Date.
TOWN:
The Town of Fraser, Colorado,
a Colorado municipal corporation
Philip Vandernail, Mayor
ATTEST:
Antoinette McVeigh, Town Clerk
(SEAL)
STATE OF COLORADO)
)ss.
COUNTY OF GRAND )
OWNER:
The foregoing instrument was acknowledged before me on the day of
, 2017, by Philip Vandernail, as Mayor, and Antoinette McVeigh, as Town
Clerk, of The Town of Fraser, Colorado, a Colorado municipal corporation.
Witness my hand and official seal.
My Commission expires:
(SEAL) Notary Public
[INSERT NOTARY FOR OWNER]
Agreement For Certain Economic Inducements and Incentives
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