Title
A RESOLUTION TO IMPOSE THE TANGER PROJECT FEES IN THE TANGER PROJECT FEE AREA IN THE CITY OF FOLEY, ALABAMA
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BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF FOLEY PUBLIC FACILITIES COOPERATIVE DISTRICT:
Section 1. Definitions
For purposes hereof:
Applicable Business means and includes each Person who shall have obtained a business license from the City for the establishment and operation of a trade or business within the Tanger Project Fee Area
prior to, on, or after, the Effective Date.
Authorizing Act means Chapter 99B of Title 11 of the Code of Alabama 1975.
City means the City of Foley, Alabama.
District means The City of Foley Public Facilities Cooperative District.
Economic Development Agreement means the Economic Development Agreement to be dated the date of delivery by the City and COROC/Riviera, L.L.C.
Effective Date means the date on which a judgment entered by the Circuit Court of Baldwin County, Alabama, validating and confirming this Resolution and the Tanger Project Fees shall have become forever
conclusive pursuant to the Validation Act.
Governmental Authority means any agency, authority, board, bureau, commission, court, department, or instrumentality of the (i) United States of America, (ii) the State of Alabama, or (iii) any county, municipality, political subdivision or public corporation established or organized under the Constitution and laws of the State of Alabama.
Gross Sales means the actual sales price of, or the value proceeding or accruing from, or other charge or consideration paid or payable for, all tangible personal property or lodging and accommodations sold,
leased, licensed, delivered, or rented, and all places of amusement or entertainment conducted or operated, and all services performed, by any Person, whether for wholesale, retail, cash, credit, trade-ins
or otherwise, without reserve or deduction for inability or failure to collect. Each installment or credit sale are treated as a sale for the full price in the month during which such sale is made, regardless of whether
or when a Person receives payment therefor. No franchise or capital stock tax and no income or similar tax based on income or profits are deducted from Gross Sales. Gross Sales shall not include (a) any
exchange of merchandise between stores simultaneously owned by a Person where such exchange is made solely for the convenient operation of said Person’s business and not for the purpose of
consummating a sale made in the Tanger Project Fee Area, (b) returns to shippers or manufacturers, (c) cash or credit refunds to customers on transactions (not to exceed the actual selling price of the item
returned) otherwise included in Gross Sales, (d) sales of trade fixtures, machinery and equipment after use thereof in the conduct of a Person’s business, (e) amounts collected and paid by a Person to any
government for any sales or excise tax, (f) the amount of any discount on sales to employees, and (g) the amount of rent paid for the lease of real property or buildings located thereon.
Lease Agreement means that certain Lease Agreement dated September 1, 2009, as amended by First Amendment to Lease Agreement dated February 1, 2022, by the District and the City with respect to the
Project and other public facilities subject thereto.
Person means any natural person, corporation (for profit or nonprofit), general or limited partnership, limited liability company or partnership, joint venture, association, trust, unincorporated organization or
juridical person, or Governmental Authority.
Prior Tanger Resolution means that certain Resolution adopted by the District on September 5, 2017 entitled "A Resolution Imposing Project User Fees and Authorizing a Note Payable Therefrom" with respect
to the Tanger Project Fee Area.
Project means the public infrastructure, including without limitation streets, roads, drainage facilities, traffic lighting, landscaping and traffic safety facilities, and utilities which are constructed, maintained and repaired
by the City and which benefit the Tanger Project Fee Area.
Project User Fee for Property means a fee for the use of the Project imposed by the District in the amount of $________________ on each Applicable Business which (i) is located within the Tanger Project
Fee Area and (ii) is not subject to the Project User Fee for Transactions.
Project User Fee for Transactions means a fee for the use of the Project imposed by the District in the amount of one percent (1.00%) of Gross Sales produced within the Tanger Project Fee Area by an
Applicable Business which is not subject to the Project User Fee for Property.
Project User means any Person who uses, or benefits from, the Project or any facility directly or indirectly
served by the Project.
Tanger Project Fee Area means the real property located within the City as described on Exhibit A.
Tanger Project Fees means collectively the:
(a) Project User Fee for Property; and
(b) Project User Fee for Transactions.
Tanger Project Fee Agreement means that certain Project User Fee Agreement (Tanger Project Fee Area), to be dated the date of delivery by the District and the City, as attached hereto on Exhibit B.
Termination Date means the first to occur of:
(a) December 31, 2050; or
(b) the first date on which the Economic Development Agreement shall have been
terminated in accordance with the terms thereof.
Validation Act means Article 17 of Chapter 6 of Title 6 of the Code of Alabama 1975.
Section 2. Representations; Continuation of Agreements; Consideration.
The Board of Directors of the District, upon evidence duly presented to and considered by it, has found and determined, and finds, determines and declares as follows:
(a) The District will levy the Tanger Project Fees pursuant to this Resolution, in consideration of the financial expenditures and obligations of the City pursuant to the Lease Agreement with respect to
the Project for the benefit of the District, for the period set forth in Section 4.
(b) The Project constitutes a “project” for all purposes of the Authorizing Act.
Section 3. Imposition of Tanger Project Fees; Repeal of Prior Fees
(a) The District, subject to Section 3(e) and for the use and benefit of the Project, imposes the Tanger Project Fees on each Applicable Business pursuant to the Authorizing Act (including without limitation
Section 11-99B-11)
(b) Each Applicable Business may collect the Tanger Project Fees levied thereupon from a Project User.
(c) The Tanger Project Fees imposed by this Resolution are in addition to all other fees and licenses and taxes imposed or levied by law or by any taxing authority; provided, the fees levied pursuant to the
Prior Tanger Resolution are repealed from and after the Effective Date.
(d) All Tanger Project Fees paid pursuant to this Resolution are conclusively presumed to be fees paid by the Project Users for the use of and benefit from the Project.
(e) In order that the District, as a public corporation, produce revenue as provided under the Authorizing Act by means consistent with those considerations of public policy by which the State of
Alabama and any Governmental Authority in Baldwin County, Alabama, produce revenue for governmental and public purposes, the District exempts from the payment of the Tanger Project Fees any transaction or
property to the extent such transaction or property is exempt from taxation under the laws of the State of Alabama or other any political subdivision thereof, such that those persons or transactions exempt from the
payment of any state or local tax with respect to Gross Sales or Property are likewise exempt from the payment of the Tanger Project Fees with respect to the Project.
Section 4. Period of Levy and Collection of Tanger Project Fees.
The District will levy the Tanger Project Fees for the period beginning on (and including) the Effective Date and continuing thereafter until (and not including) the Termination Date.
Section 5. Payment of Tanger Project Fees
(a) The Project User Fee for Transactions will be due and payable in monthly installments on or before the twentieth day of the month next succeeding the month in which such fees accrue.
(b) The Project User Fee for Property will be due and payable on or before December 31 in each year.
(c) Each Applicable Business will remit the Tanger Project Fees to, or at the direction of, the District on forms prescribed by the District or its designee.
Section 6. Special Obligations of Each Applicable Business; Records.
(a) The District will require:
(1) each Applicable Business to cause the amount of the Tanger Project Fees due from any Project User to be separately and distinctly denominated as a fee (and not a tax or included as
part of a tax) on any receipt or other written notation or record provided to such Project User; and
(2) each Applicable Business to keep and maintain an accurate and complete set of records, books and other information sufficient to allow the District and the City to determine the correct
amount of the Tanger Project Fees such Applicable Business must pay under this Resolution, which records, books and other information shall be open and available for inspection by the
District and the City upon request at a reasonable time and location.
(b) The District and the City reserve the right to examine and audit, in the manner provided by law with respect to ad valorem and privilege, license and excise taxes, the records, books and other
information maintained by each Applicable Business pursuant hereto for the purposes of determining the correct amount of the Tanger Project Fees such Applicable Business must remit to, or at the direction of,
the District.
Section 7. Confidentiality.
The District will not disclose or divulge, except to the City, any information secured in arriving at the amount of any Project User Fee any Applicable Business must pay without the prior written consent of such
Person.
Section 8. Penalties and Remedies.
(a) If any Applicable Business fails to pay to the District, or the City as assignee of the District, the amount of Tanger Project Fees due under this Resolution on any date established under Section 5(a)
therefor, the District shall add a late fee of ten percent (10%) of the unpaid amount of the Tanger Project Fees to the amount due hereunder from such Applicable Business.
(b) The District, or the City as assignee of the District, may exercise all rights and remedies available at law or in equity for the administration and enforcement of the provisions of this Resolution, including
specifically and without limitation all provisions, rights and remedies of the sales and use tax statutes of the State of Alabama for the enforcement and collection of sales and use taxes by the State of Alabama.
Section 9. The Tanger Project Fee Agreement .
The District, having reviewed the Tanger Project Fee Agreement: (a) approves, authorizes and confirms the representations of fact, agreements and obligations of the District in, and the terms and provisions of, the Tanger
Project Fee Agreement and (b) authorizes and directs the officers of the District to (i) execute, under seal, and deliver the Tanger Project Fee Agreement in form and of content as presented to the District with such changes
(by addition or deletion) as shall not create an additional, or extend or increase any present, obligation of the District under the Tanger Project Fee Agreement and as such officers shall approve by execution and delivery
thereof, and (ii) take such action, and execute and deliver such certificates and documents, at such times and in such form and manner, as shall be required by applicable law, legal counsel to the District, or otherwise
necessary, to establish the validity, or effect the purposes, of the Tanger Project Fee Agreement.
Section 10. Approval of Prior Actions.
The District approves, authorizes, ratifies and confirms all prior actions taken, and all agreements, documents or notices executed and delivered, by any officer of the District or other representative thereof,
in furtherance of the purposes of this Resolution.
Section 11. Severability.
The provisions of this Resolution are severable. In the event that any one or more of such provisions shall, for any reason, be invalid, such invalidity shall not affect the other provisions of this Resolution, and this
Resolution will operate and be construed as if such illegal or invalid provision had not been contained herein or therein.
Section 12. Repeal of Conflicting Provisions.
The District repeals all resolutions, or parts of any thereof, of the District in conflict, or inconsistent, with any provision of this Resolution to the extent of such conflict or inconsistency.
Section 13. Validation.
The District desires to determine the authority of the District to levy and collect the Tanger Project Fees and deliver and perform the Tanger Project Fee Agreement and the validity and legality of the Tanger Project Fees
and the Tanger Project Fee Agreement and all proceedings had or taken in connection therewith and therefore authorizes and directs Maynard Nexsen PC, as special counsel to the District, to institute such validation
proceedings in the name and on behalf of the District pursuant to the Validation Act and file all certificates, documents, instruments, and proceedings, and take all actions, as shall be necessary and desirable to effect
judicial validation of the Tanger Project Fees and Tanger Project Fee Agreement.
Section 14. Immediate Effect.
The provisions of this Resolution shall take effect immediately.