HomeMy Public PortalAboutORD15258 BILL NO.: 2014-3
SPONSORED BY COUNCILMAN Schulte
ORDINANCE NO.: 15258
AN ORDINANCE APPROVING A TAX INCREMENT FINANCING CONTRACT BETWEEN
THE CITY OF JEFFERSON, MISSOURI, AND CAPITAL MALL JC, LLC, FOR THE
IMPLEMENTATION OF THE CAPITAL MALL REDEVELOPMENT PLAN AND
AUTHORIZING THE MAYOR TO EXECUTE THE AGREEMENT
WHEREAS, by Ordinance No. 15222, adopted by the City Council of the City of Jefferson,
Missouri ("City"), on January 21, 2014, the City approved the Capital Mall
Redevelopment Plan (the 'Redevelopment Plan"), declared the Redevelopment
Area as a blighted area, and Capital Mall JC, LLC (`Developer") as the developer
to implement the Redevlopment Plan; and
WHEREAS, Section 5 of Ordinance No. 15222 provides that the designation of the Developer
as the developer of the Redevelopment Projects and any reimbursement to the
Developer of TIF revenues for reimbursable project expenses is conditioned
upon the execution of a Redevelopment Agreement between the City and the
Developer approved by the City Council by ordinance, upon terms and conditions
as agreed upon by the parties to carry out the goals and objectives of the
Redevelopment Plan; and
WHEREAS, the City and the Developer have agreed upon the terms and conditions
necessary to carry out the goals and objectives of the Redevelopment Plan and
desire to enter into the Tax Increment Financing Contract between the City of
Jefferson, Missouri and Capital Mall JC, LLC, attached hereto as Exhibit A.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
JEFFERSON, MISSOURI, as follows:
SECTION 1: That the Tax Increment Financing Contract between the City of Jefferson,
Missouri and Capital Mall JC, LLC, a copy of which is attached hereto as Exhibit A, is hereby
approved and adopted.
SECTION 2: That the Mayor is authorized to execute the Tax Increment Financing
Contract on behalf of the City.
SECTION 3: This ordinance shall be in full force and effect from and after its passage
and approval by the Mayor and City Council.
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PASSED by theCit Council of the City of Jefferson, Missouri, and approved by the
Mayor of Jefferson, this day of 2014.
j e
Eric J. Struemptr yor
ATTEST -; :, APPROVED AS TO FORM:
Ity.Clerk N ! Cit ounselor
7 1st reading /
2nd reading rl / 7
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EXHIBIT A
LEGAL DESCRIPTION Of REDEVELOPMENT PROJECT
Part of the South Half of Section 4, and part of the Northeast Quarter of the Northwest
Quarter and part of the West Half of the Northwest Quarter of the Northeast Quarter of Section 9,
all in Township 44 North, Range 12 W, in the City of Jefferson. Cole County, Missouri, more
particularly described as follows:
BEGINNING at the northeast corner of the West Half of the Northwest Quarter of the
Northeast Quarter of said Section 9; thence S4°26'19"E, 760.31 feet to the northerly line of Old
U.S. Route No. 50 (now Country Club Drive); thence S4°44'37"E, crossing said Country Club
Drive right-of-way, 101.20 feet to a point on the southerly line thereof and said corner being the
northwest comer of a tract of land described by deed of record in Book 136, page 132, and on the
easterly boundary of a tract described by deed of record in Book 239, page 903, Cole County
Recorders Office; thence S4°34'31"E, along the easterly boundary of said tract described in Book
239, page 903, 375.37 feet to the southeasterly comer thereof, said comer being on the northerly
line of U.S. Route No. 50: thence S75°33'03"W, along the northerly line of said U.S. Route No. 50,
77.73 feet: thence N88°24'20"W, along the northerly line of said U.S. Route No. 50, 125.05 feet to
the southeasterly comer of a tract of land described by deed of record in Book 362, page 519, Cole
County Recorder's Office; thence N7°57'56"W, along the easterly boundary of said tract described
in Book 362, page 519, 346.95 feet to the northeasterly comer thereof, said comer being on the
southerly line of the aforesaid Country Club Drive; thence S77°59'08"W, along the southerly line
of said Country Club Drive, 334.21 feet to the northwesterly comer of a tract of land described by
deed of record in Book 315, page 773, Cole County Recorder's Office; thence S 14°07'00"E, along
the westerly boundary of said tract described in Book 315, page 773, 273.73 feet to the
southwesterly corner thereof, said corner being on the northerly line of the aforesaid U.S. Route No.
50; thence N88°24'20"W, along the northerly line of said U.S. Route No. 50, 765.43 feet; thence
S75°24'00"W, along the northerly line of said U.S. Route No. 50, 36.12 feet to the southeasterly
comer of a tract of land described by deed of record in Book 298, page 83, Cole County Recorder's
Office; thence N3°07'58"W, along the easterly boundary of said tract described in Book 298, page
83, 96.22 feet to the northeasterly comer thereof, said comer being on the southerly line of the
aforesaid Country Club Drive: thence continuing N3007'58"W, 102.09 feet to the northerly line of
said Country Club Drive; thence S78°00'23"W, along the northerly line of said Country Club
Drive, 104.04 feet to the most easterly comer of the U.S. Highway 50 connection right-of-way
described by deed of record in Book 240, page 660, Cole County Recorder's Office; thence. along
the northerly line of said connection right-of-way, the following courses: N85'29;44"W, 264.86
feet; thence N49°07'58"W, 230.71 feet; thence N47005'00"W, 313.86 feet to the easterly line of
West Truman Boulevard (formerly known as North Ten Mile Drive); thence N8°34'28"E, along the
easterly line of said West Truman Boulevard, 490.41 feet; thence N6°37'21"E, along the easterly
line of said West Truman Boulevard, 401.12 feet to the northerly end of the aforesaid connection
right-of-way; thence N79°05'18"W, 36.28 feet to the centerline of West Truman Boulevard (as
described in Parcel 1 of the deed of record in Book 626, page 565 Cole County Recorders Office);
thence, leaving the aforesaid connection right-of-way line, described in Book 240, page 660.
N3°27'09"E, along the centerline of West Truman Boulevard (as per said Parcel 1 description),
113.55 feet; thence N23°44'10"E, along the centerline of West Truman Boulevard (as per said
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Parcel 1 description), 233.03 feet to the southerly end of the property deeded to the City of Jefferson
for the street right-of-way, now known as West Truman (formerly known as North Ten Mile Drive)
as per deed of record in Book 275, page 214, Cole County Recorder's Office; thence N85°03'03"E,
along the southerly line of said property described in Book 275, page 214, and along the southerly
boundary of the property described by deed of record in Book 555, page 698, along the southerly
boundary of El Mercado Development, Section 1, as per plat of record in Plat Book 11, page 402
and along the southerly boundary of those properties described by deeds of record in Book 529,
page 947 and in Book 462, page 649, Cole County Recorder's Office, 1461.95 feet; thence
N86°11'11"E, along the southerly boundary of said property described in Book 462, page 649 and
along the southerly boundary of the property described by deed of record in Book 546, page 150,
Cole County Recorders Office, 692.99 feet to the southeasterly corner of said property described in
Book 546, page 150 and said corner being on the westerly boundary of Monticello Acres, Section
Nine, as per plat of record in Plat Book 11, page 859, Cole County Recorder's Office; thence
S3°59'18"E, along the westerly boundary of Monticello Acres, Section Nine, 700.95 feet to the
southwesterly corner thereof, being a point on the south line of said Section 4. Township 44 North,
Range 12 West, at the southeasterly corner of the property described by deed of record in Book 629,
page 196, Cole County Recorder's Office; thence S86032'02"W, along the Section Line, 389.43 feet
to the POINT OF BEGINNING.
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TAX INCREMENT FINANCING
CONTRACT
BETWEEN
THE CITY OF JEFFERSON, MISSOURI
and
CAPITAL MALL JC, LLC
for the
CAPITAL MALL
TAX INCREMENT FINANCING PLAN
47924655.2
Table of Contents
1. Rules of Interpretation................................................................................................ 1
2. Definitions .................................................................................................................. 2
3. Redevelopment Area.................................................................................................. 7
4. Redevelopment Project Area ..................................................................................... 7
5. Project Improvements ................................................................................................ 8
6. Redevelopment Schedule .......................................................................................... 8
7. RESERVED ............................................................................................................... 9
8. Design Criteria and Review Procedures for Project Improvements............................ 9
9. Control of Proiect...................................................................................................... 10
10. Certificate of Completion and Compliance ............................................................. 11
11. RESERVED ........................................................................................................... 12
12. Funding Sources and Uses of Funds ..................................................................... 12
13. Conditions Precedent to Issuance of Obligations................................................... 13
14. Conditions Precedent to Developer's Duties .......................................................... 13
15. Conditions Precedent to City's Duties .................................................................... 13
16. Payments in Lieu of Taxes..................................................................................... 13
17. Economic Activity Taxes ........................................................................................ 15
18. Special Allocation Fund.......................................................................................... 16
19. Disbursements from Special Allocation Fund......................................................... 17
20. Reimbursable Project Cost Certification................................................................. 17
21. RESERVED for Payment of Project Costs with Bond Proceeds ............................ 20
22. Payment of Proiect Costs - "As Collected" Basis ................................................... 20
23. RESERVED ........................................................................................................... 20
24. Full Assessment of Redevelopment Area .............................................................. 20
25. Public Participation................................................................................................. 20
26. Calculation of Public Participation .......................................................................... 23
27. Tenant Approvals and Prohibitions......................................................................... 23
28. Sale or Disposition of Project Property................................................................... 24
29. Progress Reports ................................................................................................... 25
30. Compliance with Laws............................................................................................ 26
31. Assignment of Developer's Obligations.................................................................. 26
32. Assignment of Payments........................................................................................ 27
33. Collateral Assignment of Contract.......................................................................... 27
34. Transfer of Interests in Developer - City Approval.................................................. 27
35. Representations and Warranties............................................................................ 28
36. Indemnification ....................................................................................................... 31
37. Breach-Compliance................................................................................................ 32
38. Excusable Delays................................................................................................... 34
39. Notice..................................................................................................................... 34
40. Modification ............................................................................................................ 35
41. Effective Date......................................................................................................... 35
42. Recording............................................................................................................... 35
43. Applicable Law....................................................................................................... 35
44. Covenant Running With the Land........................................................................... 35
45. Relocation Costs.................................................................................................... 35
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46. Administrative Costs and Expenses....................................................................... 36
47. Validity and Severability ......................................................................................... 36
48. Time and Performance are of the Essence............................................................ 36
49. Relationship of Parties ........................................................................................... 36
50. Cit1/s Legislative Powers........................................................................................ 36
51. Good Faith; Consent or Approval........................................................................... 36
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Exhibits
A Legal Description of Redevelopment Area
B Legal Description of Redevelopment Project Area
C Redevelopment Schedule
D Redevelopment Project Cost Budget
E Site Plan
F Description of Project Improvements
G Form of Certificate of Completion
H Form of Reimbursement Request
47924655.2
TAX INCREMENT FINANCING CONTRACT
THIS TAX INCREMENT FINANCING CONTRACT (the "Contract") is made and
entered into as of the day of 2014 (the "Effective Date"), by
and between THE CITY OF JEFFERSON CITY, MISSOURI ("City"), and CAPITAL
MALL JC, LLC, a Missouri limited liability company, the developer selected by the City
("Developer") to implement its plan of redevelopment more fully described herein.
Recitals.
A. The Tax Increment Financing Commission of Jefferson City, Missouri (the
"Commission") on October 28, 2013, held a public hearing and voted on its
recommendations to the City Council regarding the Capital Mall Tax Increment
Financing Plan (the "Redevelopment Plan") in an area described in the
Redevelopment Plan determined to be a Blighted Area and as set forth in Exhibit A,
attached hereto and incorporated herein by reference (the "Redevelopment Area").
B. The Redevelopment Plan provides for the construction of one (1)
redevelopment project (the "Redevelopment Project") in Jefferson City, Missouri which
consists of the "Project Improvements" described in Section 5 herein.
C. By Ordinance No. 15222, adopted by the City Council of City (the "City
Council") on January 21, 2014, City approved the Redevelopment Plan, determined
that the Redevelopment Area is a Blighted Area and that it met the other applicable
requirements of the TIF Act, selected Developer to implement the Redevelopment Plan,
and authorized City to enter into a contract with Developer for the implementation of the
Redevelopment Project described in the Redevelopment Plan.
NOW, THEREFORE, for and in consideration of the premises, and the mutual
covenants herein contained, City and Developer agree as follows:
1. Rules of Interpretation. Unless the context clearly indicates to the contrary
or unless otherwise provided herein, the following rules of interpretation shall apply to
this Contract:
A. The terms defined in this Contract which refer to a particular
agreement, instrument or document also refer to and include all renewals,
extensions, modifications, amendments and restatements of such
agreement, instrument or document; provided, that nothing contained in
this sentence shall be construed to authorize any such renewal, extension,
modification, amendment or restatement other than in accordance with
Section 40 of this Contract.
B. The words "hereof', "herein" and "hereunder" and words of
similar import when used in this Contract shall refer to this Contract as a
whole and not to any particular provision of this Contract. Section,
subsection and exhibit references are to this Contract unless otherwise
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specified. Whenever an item or items are listed after the word "including",
such listing is not intended to be a listing that excludes items not listed.
C. Words of the masculine gender shall be deemed and
construed to include correlative words of the feminine and neuter genders.
Unless the context shall otherwise indicate, words importing the singular
number shall include the plural and vice versa, and words importing
person shall include individuals, corporations, partnerships, joint ventures,
associations, joint stock companies, trusts, unincorporated organizations
and governments and any agency or political subdivision thereof.
D. The table of contents, captions and headings in this Contract
are for convenience only and in no way define, limit or describe the scope
or intent of any provisions or sections of this Contract.
2. Definitions. All capitalized words or terms used in this Contract and
defined in the Redevelopment Plan shall have the meaning ascribed to them in the
Redevelopment Plan. In addition thereto and in addition to words and terms defined
elsewhere in this Contract, the following words and terms shall have the meanings
ascribed to them in this Section 2 unless the context in which such words and terms
are used clearly requires otherwise.
A. "Affiliate," any person, entity or group of persons or entities
which controls a party, which a party controls or which is under common
control with a party. As used herein, the term 'control' shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of management and policies, whether through the ownership of
voting securities, by contract or otherwise.
B. 'Blighted Area," an area which, by reason of the
predominance of defective or inadequate street layout, unsanitary or
unsafe conditions, deterioration of site improvements, improper
subdivision or obsolete platting, or the existence of conditions which
endanger life or property by fire and other causes, or any combination of
such factors, retards the provision of housing accommodations or
constitutes an economic or social liability or a menace to the public health,
safety, morals, or welfare in its present condition and use.
C. "CID," means the Capital Mall Community Improvement
District approved by the City Council on January 21, 2014 pursuant to
Ordinance No. 15223, and any amendments thereto.
D. "CID Act," the Community Improvement District Act, Sections
67.1401 to 67.1471 RSMo, as amended.
E. "CID Revenue," all funds derived from the CID Sales Tax
revenue and any interest earned thereon.
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F. "CID Sales Tax," a sales tax imposed by the CID on all retail
sales within the boundaries of the CID in accordance with the CID Act in
an amount up to one percent (1%).
G. "City," the City of Jefferson City, Missouri.
H. "City Administrator," the City Administrator of Jefferson City,
Missouri.
I. "City Council," the governing body of Jefferson City,
Missouri.
J. "City Engineer," the city engineer of Jefferson City, Missouri.
K. "City Treasurer," the Finance Director of Jefferson City,
Missouri.
L. "Commission" or `TIF Commission," the Tax Increment
Financing Commission of Jefferson City, Missouri;
M. "County," Cole County, Missouri.
N. "County Assessor," the assessor of Cole County, Missouri.
O. "County Collector," the collector of Cole County, Missouri.
P. "Debt Service," the amount required for the payment of
interest and principal on the Obligations and/or Private Loans as they
come due, for the payment of mandatory or optional redemption payments
and for payments to reserve funds required by the terms of the Obligations
to retire or secure the Obligations and/or Private Loans.
Q. "Developer," Capital Mall JC, LLC, its successors and
assigns, subject, however, to the provisions of Section 29 hereof.
R. "Economic Activity Account," the separate segregated
account within the Special Allocation Fund into which Economic Activity
Taxes shall be deposited.
S. "Economic Activity Taxes" or "EATs," fifty percent (50%) of
the total additional revenue from taxes which are imposed by City or other
Taxing Districts, which are generated by economic activities within the
Redevelopment Area, while Tax Increment Financing remains in effect,
excluding licenses, fees, personal property taxes, taxes imposed on sales
or charges for sleeping rooms paid by transient guests of hotels and
motels, utility taxes, taxes levied pursuant to Section 70.500 RSMo, taxes
levied for the purpose of public transportation pursuant to Section 94.660
RSMo, or special assessments, other than payments in lieu of taxes, until
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the designation is terminated pursuant to Subsection 2 of Section 99.850
of the TIF Act.
T. "Financing Costs," all costs reasonably incurred by the
Developer, the CID, the City, or other issuer in furtherance of the issuance
of Private Loans or Obligations, including but not limited to interest, loan
fees and points not exceeding one percent (1%) of the principal amount of
the loan, loan origination fees not to exceed two percent (2%) of the
principal amount of the loan and interest payable to banks or similar
financing institutions that are in the business of loaning money, plus
reasonable expenses, fees and expenses of the Developer's or City's
attorneys (including City Attorney, special TIF counsel and Bond Counsel),
the Developer's or City's administrative fees and expenses (including
planning and/or financial consultants), underwriters' discounts and fees,
the costs of printing any Obligations and any official statements relating
thereto, the costs of credit enhancement, if any, capitalized interest, debt
service reserves and the fees of any rating agency rating any Obligations.
Any costs related to the financing of non-Reimbursable Project Costs shall
not be a Financing Cost or a Reimbursable Project Cost. Unless
expressly agreed to by Ordinance, Financing Costs shall not include any
interest accruing on Developer's equity investment attributable to
acquisition in the Redevelopment Projects.
U. "Land Use Approvals," those approvals required pursuant to
City's zoning and subdivision regulations for the construction of the
Redevelopment Project.
V. "Legal Requirements," any applicable constitution, treaty,
statute, rule, regulation, ordinance, order, directive, code, interpretation,
judgment, decree, injunction, writ, determination, award, permit, license,
authorization, directive, requirement or decision of or agreement with or by
any and all jurisdictions, entities, courts, boards, agencies, commissions,
offices, divisions, subdivisions, departments, bodies or authorities of any
nature whatsoever of any governmental unit (federal, state, county,
district, municipality, city or otherwise), whether now or hereafter in
existence and specifically including but not limited to all ordinances, rules
and regulations of the City of Jefferson City, Missouri, such as zoning
ordinances, subdivision ordinances, building codes, property maintenance
codes, and City's adopted Public Works engineering standards and
requirements; provided, however, unless otherwise provided herein
Developer shall have the right to contest, in any manner provided by law
and at its sole expense, the applicability or validity of any Legal
Requirement.
W. "Ordinance," an ordinance enacted by the City Council.
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X. "Payment in Lieu of Taxes." those estimated revenues from
real property in the Redevelopment Area, which revenues are to be used
to pay Reimbursable Project Costs, which Taxing Districts would have
received had the City not adopted Tax Increment Financing, and which
would result from levies made after the time of the adoption of Tax
Increment Financing during the time the current equalized value of real
property in the Redevelopment Project Area exceeds the Total Initial
Equalized Value of real property in such area until the designation is
terminated pursuant to subsection 2 of Section 99.850 of the TIF Act,
which shall not be later than twenty three (23) years after the
Redevelopment Project and Redevelopment Project Area are approved by
an Ordinance of the City Council. Payments in Lieu of Taxes which are
due and owing shall constitute a lien against the real estate in the
Redevelopment Project Area from which they are derived, the lien of
which may be foreclosed in the same manner as a special assessment
lien as provided in Section 88.861 RSMo.
Y. 'Payment in Lieu of Taxes Account," the separate
segregated account within the Special Allocation Fund into which
Payments in Lieu of Taxes are to be deposited.
Z. 'Private Loans," private loans obtained by the Developer, or
its successors, assigns or transferees, from third party private lending
institutions or equity provided by the Developer to fund Reimbursable
Project Costs. Financing Costs, as defined in Section 2.T., relating to
Private Loans, including interest thereon shall be a Reimbursable Project
Cost over and above the total amount shown in the Redevelopment
Project Cost Budget.
AA. 'Project Improvements." shall have the meaning assigned in
Section 5.
BB. "Redevelopment Plan," means the Capital Mall Tax
Increment Financing Redevelopment Plan approved by the City Council
by Ordinance No. 15222 on January 21, 2014, and any amendments
thereto.
CC. "Redevelopment Project," the renovation and rehabilitation of
the Capital Mall, as set forth in the TIF Plan and this Contract.
DD. 'Redevelopment Proiect Cost Budget," the budget setting
forth the total anticipated Redevelopment Project Costs, including the
Redevelopment Project Costs associated with the first phase of the
Redevelopment Project as a subset thereof, and identifying those
Redevelopment Project Costs to be funded or reimbursed in accordance
with this Contract, attached hereto as Exhibit D and incorporated herein
by reference.
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EE. "Redevelopment Project Costs," include the sum total of all
reasonable or necessary costs incurred or estimated to be incurred, any
such costs incidental to the Redevelopment Plan and the Redevelopment
Project. Such costs include, but are not limited to the costs set forth in
Exhibit D, specifically:
(1) Costs of studies, surveys, plans and specifications;
(2) Professional service costs, including, but not limited to,
architectural, engineering, legal, marketing, financial, planning or special
services. Except the reasonable costs incurred by the City or Commission
established in the TIF Act for the administration of the Redevelopment
Plan, such costs shall be allowed only as an initial expense which, to be
recoverable, shall be included in the costs of the Redevelopment Plan and
the Redevelopment Project;
(3) Property assembly costs, including but not limited to,
acquisition of land and other property, real or personal, or rights or
interests therein, demolition of buildings, and the clearing and grading of
land;
(4) Costs of construction, rehabilitation and/or repair or
remodeling of existing buildings and fixtures or any other public or private
improvements;
(5) Cost of construction of public works or improvements;
(6) Financing Costs;
(7) All or a portion of a taxing district's capital cost resulting from
the Redevelopment Project necessarily incurred or to be incurred in
furtherance of the objectives of the Redevelopment Plan, to the extent the
City, by written agreement, accepts and approves such costs;
(8) Relocation costs to the extent that the City determines that
relocation costs shall be paid or are required to be paid by federal or state
law; and
(9) Payments in Lieu of Taxes.
FF. "Reimbursable Project Costs," the portion of Redevelopment
Project Costs, which pursuant to the Redevelopment Plan and this
Contract are to be funded or reimbursed with Payments in Lieu of Taxes
and Economic Activity Taxes or, at the sole discretion of the City Council,
the proceeds of Obligations as are set forth in the Redevelopment Project
Cost Budget and elsewhere in this Contract, plus Financing Costs.
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GG. "Site Plan," the site plan or plans generally depicting the first
phase of the Project Improvements attached hereto as Exhibit E and any
subsequent plan or plan submitted by the Developer or third parties
pertaining to completion of the Project Improvements.
HH. "Special Allocation Fund," the fund established by the City
into which, as required by the TIF Act, all Payments in Lieu of Taxes and
Economic Activity Taxes from the Redevelopment Project are deposited
for the purpose of paying Redevelopment Project Costs and Obligations
incurred in the payment thereof.
ll. 'TIF Act," the Real Property Tax Increment Allocation
Redevelopment Act, Section 99.800, et seq., RSMo, as amended.
JJ. 'Tax Increment Financing," tax increment allocation
financing as provided pursuant to the TIF Act.
KK. "Taxing Districts," any political subdivision of this state
having the power to levy taxes on sales or property in the Redevelopment
Area.
LL. 'TIF Obligations," bonds, loans, debentures, notes, special
certificates, or other evidences of indebtedness issued by the City,
Commission, or other issuer approved by the City pursuant to the TIF Act
to carry out the Redevelopment Project or to refinance outstanding
Obligations.
MM. 'TIF Revenue," Payments in Lieu of Taxes and Economic
Activity Taxes and all interest earned on funds deposited in the Special
Allocation Fund.
NN. 'Total Initial Equalized Assessed Value," that amount
certified by the County Assessor which equals the most recently
ascertained equalized land assessed value of each taxable lot, block, tract
or parcel or real property within the Redevelopment Project Area
immediately after the Ordinance approving each such Redevelopment
Project has been approved by the City Council.
3. Redevelopment Area. The Redevelopment Area consists of the area
legally described on Exhibit A attached hereto.
4. Redevelopment Project Area.
A. The Redevelopment Area consists of one (1)
Redevelopment Project Area legally described on Exhibit B, in
accordance with the provisions of the Redevelopment Plan. The
Redevelopment Project Area may only be changed, modified or amended
in accordance with the TIF Act.
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B. Designation of Redevelopment Project Area. Tax Increment
Financing with respect to the Redevelopment Project shall become
effective only upon the approval thereof by an Ordinance of the Council
(the "Redevelopment Project Ordinance").
5. Project Improvements. The Project Improvements consist of the exterior
and interior renovations proposed for the Capital Mall as described in Exhibit F and the
development of any outlying pad sites. The first phase of such Project Improvements
are depicted in Exhibit E. In accordance with the TIF Act and the terms and conditions
of the Redevelopment Plan and this Contract, to ameliorate or satisfy those conditions
which are the basis for eligibility and designation of the Redevelopment Area as a
Blighted Area and otherwise eligible as a redevelopment area under the TIF Act,
Developer shall cause the Redevelopment Project Area to be redeveloped through the
construction of the Project Improvements.
6. Redevelopment Schedule.
A. Subject to applicable anchor and junior anchor requirements
and design approvals as well as market and other conditions that affect
the Developer's ability to proceed with development activities for the
Redevelopment Project, it is the intention of the parties that the first phase
of development activities for the Redevelopment Project be substantially
commenced and completed on or before the estimated dates, as may be
reasonably amended from time to time, set forth on Exhibit C attached
hereto and incorporated herein by reference (the "Redevelopment
Schedule"). Developer will use commercially reasonable efforts to
construct all remaining Project Improvements, and will use commercially
reasonable efforts to complete all other development-related activities
including, but not necessarily limited to design, land preparation,
environmental evaluation and remediation, construction, management,
maintenance and procurement of private financing in sufficient time to
comply with the Redevelopment Schedule. Changes in the development
program contemplated by the Redevelopment Plan that require a
Redevelopment Plan amendment under the TIF Act (as determined by
City) shall be processed in accordance with the TIF Act, and changes in
the development program contemplated by the Redevelopment Plan that
do not require a statutorily mandated Redevelopment Plan amendment
shall be made by agreement of the parties hereto. The parties hereto
recognize and agree that market and other conditions may affect the
Redevelopment Schedule. Therefore, the Redevelopment Schedule is
subject to change and/or modification, with the written approval of City,
which shall not be unreasonably conditioned, delayed or withheld.
B. Any amendment to the Redevelopment Plan that is
approved by City as provided herein shall immediately operate and be
deemed to be an amendment to the approved Redevelopment Schedule
and the provisions of this Contract. In order to implement the
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Redevelopment Schedule, City will endeavor to facilitate the timely
passage of the Redevelopment Project Ordinance referred to in
Section 4.13. hereof. Developer shall render such reasonable aid and
assistance as requested by City to insure favorable consideration of any
such Redevelopment Project Ordinance by the City Council. City shall
endeavor to expedite the approval of the Redevelopment Plan and the
Land Use Approvals; provided, however, that nothing herein shall
constitute or be deemed to be a waiver by City or the City Council of its
legislative authority. If as a result of solely the Developer's failure to timely
complete its obligations under this Contract and provided that the City has
fulfilled all of the terms of this Contract and provided that the delay has not
been caused by an event not otherwise in control of the Developer, City
may provide written notice to Developer stating that the City intends to
require Developer to appear before the City Council to show cause why
this Contract and the Redevelopment Plan shall not be terminated in
accordance with Section 37 hereof. Developer may, within one hundred
eighty (180) days following its receipt of such notice, cure such failure to
timely complete Developer's obligations under the Contract or provide the
City with written notice of the reasons why the Developer is unable to
timely cure such failure. Following such one hundred eighty (180) day
period, the City may, in its sole reasonable discretion, require Developer
to appear before the City Council to show cause why this Contract and the
Redevelopment Plan shall not be terminated in accordance with Section
37 hereof.
7. RESERVED.
8. Design Criteria and Review Procedures for Project Improvements.
A. The construction plans, site plans and building elevations for
the first phase of Project Improvements shall conform to the Site Plan,
which shall be subject to amendment and modification to meet applicable
anchor and junior anchor approvals and design criteria and Developer
requirements, in Developer's sole reasonable discretion, but subject to
any Legal Requirements, including specifically design requirements that
have been adopted in the City Code. In order to insure that Project
Improvements and their construction will be in accordance with the
provisions of this Contract, and in substantial agreement with proposals
made by Developer to City, the parties agree as follows:
(1) No Project Improvements shall be commenced or made
unless and until all the construction plans have been approved by City
Planning and Protective Services and Public Works staff. It is expressly
acknowledged that Developer may commence construction of the Project
Improvements prior to the approval of a Site Plan, provided that all Land
Use Approvals have been obtained by Developer.
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(2) City shall have the absolute right, in its sole judgment and
discretion at any time to the extent allowed by State law or the City's
ordinances, to approve a variance from conformance to, or a waiver of
compliance with, the Site Plan and the Land Use Approvals relating to
exterior improvements, or to eliminate any one or more of such
requirements in connection with the approval or disapproval of the above
construction plans or changes thereto, subject to all applicable City
ordinance provisions.
(3) Subsequent to commencement of the Project Improvements
and until said Project Improvements have been completed, Developer
shall be subject to inspection by representatives of City as described in
Section 9.A. hereof and as required by Legal Requirements.
(4) Unless otherwise provided by law, neither City, nor any
officer, director, commissioner, member, employee or agent of the same,
shall be liable to Developer with respect to construction plans or
modifications submitted for approval, nor for any other action in
connection with its or their duties hereunder.
9. Control of Project.
A. Construction. Except as otherwise provided in this Contract,
Developer shall have complete and exclusive control over construction of
the Project Improvements, subject, however, to all Legal Requirements.
As to all parts of the Redevelopment Project, Developer hereby grants to
City, its agents and employees the right to enter at reasonable times for
the purpose of inspecting the Redevelopment Project. Notwithstanding
any provision of this Contract to the contrary, the City shall not impose any
prevailing wage (or similar) requirement on the Developer for purposes of
any work performed on the Redevelopment Project unless required by
state or federal law.
B. Maintenance and Repair. Developer, at its sole cost and
expense, at all times shall use commercially reasonable efforts to (1)
maintain and operate the Developer Controlled Improvements like other
similarly situated shopping centers, (2) timely make all necessary repairs
to and replacements and restorations of all parts of the Developer
Controlled Improvements, and (3) keep the Developer Controlled
Improvements in good condition, repair and appearance. Developer shall
further maintain casualty insurance on the Developer Controlled
Improvements in an amount equal to the full replacement value thereof
and provide City with evidence of such insurance upon demand.
Unless Developer has agreed to fulfill such obligations, Developer
shall use commercially reasonable efforts to contractually obligate any
tenant, purchaser, transferee, developer, manager, contractor or
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subcontractor ("User") to comply with the provisions of this Section 9.113.
for its respective portion of the Private Improvements. Developer shall
enforce the provisions of this Section 9.B. in a commercially reasonable
manner.
10. Certificate of Completion and Compliance.
A. Upon the completion of any phase of construction of the
Redevelopment Project, Developer may submit a report certifying that the
Project Improvements contained therein have been completed in
accordance with the Redevelopment Plan and that it is in material
compliance with all other provisions of this Contract. At the Completion of
each phase of construction of the Redevelopment Project, Developer shall
submit a report certifying that the Project Improvements contained therein
have been completed in accordance with the Redevelopment Plan and
that it is in material compliance with all other provisions of this Contract.
Such report shall be in the form and substance of the Certification
attached hereto as Exhibit G.
B. Following certification by the Developer under Section
10_A., City may conduct an investigation, and if City determines that the
Redevelopment Project or any phase thereof has been completed in
material accordance with the Redevelopment Plan and other applicable
Legal Requirements, and that as of the date of the request, Developer is
not in default under a material provision of this Contract, then it shall issue
a Certificate of Completion and Compliance. If City determines that the
Redevelopment Project or any portion thereof which is the subject of an
investigation or review under this Section 10.B. has not been completed
in material accordance with the Redevelopment Plan, or that
Redevelopment Project Costs have not been incurred as certified, or that
Developer is not in material compliance with the terms of this Contract,
then it shall not issue a Certificate of Completion and Compliance and
shall specify in writing the reason or reasons for withholding its
certification within ten (10) business days of such finding. At Developer's
request, the City shall, within forty-five (45) days of Developer's request,
hold a special hearing at which Developer may present additional
evidence of compliance or seek further clarification of the City's finding of
non-compliance. The City shall conduct any further investigation in order
to issue its Certificate of Completion within ten (10) business days of
Developer's request.
(1) The issuance of a Certificate of Completion and Compliance
by City shall be a conclusive determination of the satisfaction of the
covenants in this Contract with respect to the obligations of Developer to
complete the Project Improvements within the dates for the beginning and
completion thereof, but shall not prevent City from future action in the
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event of any subsequent default by Developer in the performance of any
of its other obligations under this Contract.
(2) Each such certificate issued by City shall contain a
description of the real property affected thereby and shall be in such form
as will enable it to be accepted for recording in the Office of the Recorder
of Deeds for Cole County, Missouri.
11. RESERVED.
12. Funding Sources and Uses of Funds.
A. Private Funds. Developer shall construct the Project
Improvements with private funds. The private funds will be derived from a
combination of Developer's equity or equity investment provided by third
parties, and debt incurred by Developer or third parties (hereinafter the
"Private Funds").
B. RESERVED for TIF Obligations. In the event that TIF
Obligations are to be considered by the City Council for approval, the
Parties shall first amend this Contract to include specific provisions related
to such obligations.
C. Community Improvement District. By Ordinance No. 15223
adopted on January 21, 2014, the Capital Mall Community Improvement
District was established within the boundaries of the Redevelopment Area.
(1) CID Sales Tax. City and Developer shall use commercially
reasonable efforts to ensure that, in accordance with the CID Act, the CID
will take all steps necessary, and as expeditiously as possible, to impose
the CID Sales Tax on all retail sales in the CID area.
(2) Capture of CID Sales Tax Revenue as EATS. Following the
activation by Ordinance of the Redevelopment Project and
Redevelopment Project Area, the CID Sales Tax will be an Economic
Activity Tax. As such, subject to the calculation of Economic Activity
Taxes as defined in the TIF Act, approximately fifty percent (50%) of the
revenues generated by the CID Sales Tax occurring within the
Redevelopment Project Area will be directed to the Special Allocation
Fund. All Redevelopment Project Costs which are included within the
definition of "projects" in the CID Act will also be declared as
Reimbursable Project Costs as shown on Exhibit D.
(3) CID Cooperative Agreement. The parties will enter into a
contract with the CID that shall specify the rights, duties and obligations of
the City, Developer and CID with respect to the operation and
management of the CID and the use of the CID Revenues (the "CID
Cooperative Agreement').
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13. RESERVED for Conditions Precedent to Issuance of Obligations.
14. Conditions Precedent to Developer's Duties. Developer's obligations
hereunder are expressly conditioned upon the occurrence of each of the following
events:
A. The imposition of the CID Sales Tax;
B. Activation of Tax Increment Financing and City passage of
the ordinance approving the Redevelopment Project, pursuant to the TIF
Act.
C. Subject to the terms of Section 8.A(2), City approval of all
zoning, subdivision and permit applications required for implementation of
the Redevelopment Plan; and
D. Developer obtaining the financing substantially necessary to
implement this Redevelopment Plan.
City and Developer agree to use good faith efforts and cooperate with and assist
each other in accomplishing all of the foregoing conditions precedent on or before the
date set forth above.
15. Conditions Precedent to CitVs Duties. City's obligations hereunder are
expressly conditioned upon the occurrence of each of the following events:
A. The imposition of the CID Sales Tax;
B. Activation of Tax Increment Financing and City passage of
the ordinance approving the Redevelopment Project, pursuant to the TIF
Act.
C. Developer obtaining the financing substantially necessary to
implement this Redevelopment Plan; and
D. Subject to the terms of Section 8.A(2), City approval of all
zoning, subdivision and permit applications required for implementation of
the Redevelopment Plan.
City and Developer agree to use good faith efforts and cooperate with and
assist each other and the CID in accomplishing all of the foregoing conditions
precedent.
16. Payments in Lieu of Taxes.
A. Pursuant to the provisions of the Redevelopment Plan and
the TIF Act, including, but not limited to, Section 99.845 thereof, when Tax
Increment Financing is established by Ordinance for a Redevelopment
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Project Area, the real property located therein is subject to assessment for
annual Payments in Lieu of Taxes. Payments in Lieu of Taxes shall be
due November 30 of each year in which said amount is required to be paid
and will be considered delinquent if not paid by December 31 of each such
year or as otherwise determined by applicable law. The obligation to
make said Payments in Lieu of Taxes shall be a covenant running with the
land for the duration of the Redevelopment Plan (and any renewal periods
thereof) and shall create a lien in favor of City on each such tax parcel as
constituted from time to time and shall be enforceable against Developer
and its successors and assigns in ownership of property in the
Redevelopment Project Area.
B. Failure to pay Payments in Lieu of Taxes as to any property
in a Redevelopment Project Area shall constitute a default by the owner,
assignee, and/or tenant of such property (but not the Developer in the
event Developer is not the owner of such property) of the provisions of
Section 37 hereof, and shall entitle City, the County Collector or any other
government official or body charged with the collection of any such sums
(any one or more of such persons hereinafter individually or collectively
referred to as the "Collection Authority") to proceed against such
property and/or the tenant or the owner thereof (but not Developer in the
event Developer is not the owner of such property) as in other delinquent
property tax cases or otherwise as permitted at law or in equity, and, if
applicable, such failure shall entitle the Collection Authority to seek all
other legal and equitable remedies it may have to ensure the timely
payment of all such sums or of the principal of and interest on any
outstanding TIF Obligations secured by such payments; provided,
however, that the failure of any property in a Redevelopment Project Area
to yield sufficient payments in lieu of taxes because the increase in the
current equalized assessed value of such property is or was not as great
as expected, shall not by itself constitute a breach or default. Promptly
upon the designation and approval of a Redevelopment Project
Ordinance, City shall use all reasonable and diligent efforts to promptly
notify the County Assessor, County Collector, the City Director of Finance,
the City Treasurer and all other appropriate officials and persons and seek
to assess the property within the Redevelopment Project Area as
described in the TIF Act and fully collect the Payments in Lieu of Taxes
and implement reimbursement of Reimbursable Project Costs as provided
in this Contract and in the Redevelopment Plan.
C. Notwithstanding anything to the contrary herein, the lien on
property within a Redevelopment Project Area shall be deemed (1)
released as to any public street or other public way included within any
plat proposed by Developer, effective upon the passage of an Ordinance
by City approving the same, and (2) subordinated to the lot lines, utility
easements and other similar matters established by any such plat (but not
to any private access or parking rights granted or created by any such
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plat), effective upon the passage of Ordinance by City as aforesaid, and to
any easement or like interests granted to City or any public utility for public
facilities or utilities or connection(s) thereto.
17. Economic Activity Taxes. In addition to the Payments in Lieu of Taxes
described herein, and pursuant to Section 99.845.3 of the TIF Act, Economic Activity
Taxes shall be allocated to, and paid by the collecting officer, who shall be the City, as
hereinafter provided, to the City Treasurer or other designated financial officer of City,
who shall deposit such funds in the Economic Activity Account within the Special
Allocation Fund. Following the approval of the Redevelopment Project, for as long as
the Redevelopment Project Area is subject to Tax Increment Financing, Economic
Activity Taxes shall be determined in accordance with the following procedures (subject,
however, to the provisions of Section 99.835 of the TIF Act):
A. Documentation of Economic Activity Taxes. So long as
Developer owns the subject property within the Redevelopment Project
Area, Developer shall use commercially reasonable efforts to include the
provisions as specified in Section 17.13. in all lease documents with
tenants located at such subject property within the Redevelopment Project
Area requiring said sales tax information to be provided to City. Developer
shall use commercially reasonable efforts to include a similar provision in
all sales contracts with purchasers of property located in the
Redevelopment Project Area requiring said sales tax information to be
provided to City. So long as Developer owns the subject property within
the Redevelopment Project Area, Developer shall use commercially
reasonable efforts to enforce said provisions with respect to such subject
property, and Developer shall use commercially reasonable efforts to
provide that each such lease or sales contract provide that City is an
intended third party beneficiary of such provisions and has a separate and
independent right to enforce such provisions directly against any such
tenant or purchaser. City shall comply with all applicable state laws
limiting disclosure of sales tax information related to individual business
provided to the City as documentation of Economic Activity Taxes. The
City shall provide copies of all such sales tax information provided by
tenants, users, occupants and owners within the Redevelopment Project
Area to Developer upon request by Developer, but in no event later than
thirty (30) days after such request.
B. Developer, or any third party, may lease real property within
the Redevelopment Area. With regard to leases entered into following the
Effective Date of this Contract, Developer shall use commercially
reasonable efforts to insert in any such lease, and shall use commercially
reasonable efforts to cause any third party to insert language reasonably
similar to the following and shall use commercially reasonable efforts to
have such Developer-lease signed by the lessee indicating
acknowledgment and agreement to the following provision:
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47924655.2
Economic Activity Taxes and Community Improvement District
Taxes
Tenant acknowledges that the Leased Premises are a part of a Tax
Increment Financing district ("TIF District") created by the City and that
certain taxes generated by Tenant's economic activities), including sales
taxes, will be applied toward the costs of certain improvements for the
Development. In addition, Tenant acknowledges that the Shopping
Center (including Tenant's Premises) are or may become within the area
of a Community Improvement District ("CID") which will have the power to
impose a sales tax on any retail sales generated within Tenant's
Premises. Tenant shall forward to the City copies of Tenant's State of
Missouri sales tax returns for its property located in the TIF District when
and as they are filed with the Missouri Department of Revenue, and, upon
good cause shown, shall provide such other reports and returns regarding
other local taxes generated by Tenant's economic activities in the TIF
District and/or the City which will permit the City to administer the TIF as
well as the CID.
Tenant shall provide to Landlord upon Landlord's request a
certification to the City that this Lease includes the provisions of preceding
paragraph. Tenant shall further provide the Tenant's Missouri Tax ID
number to Landlord for purposes of disclosing same to City.
C. Failure of Developer to require that such restrictions be
placed in any such lease shall in no way modify, lessen or diminish the
obligations and restrictions set forth herein relating to the Redevelopment
Area. The City shall comply with all applicable state laws limiting
disclosure of sales tax information related to individual businesses
provided to the City as documentation of Economic Activity Taxes.
D. Certification by City. City, following reasonable research and
investigation, using independent consultants, accountants and counsel
shall certify the nature and amount of Economic Activity Taxes payable by
each Taxing District from which Economic Activity Taxes are due, or as
otherwise required by the procedures and requirements of the Taxing
District from time to time established. Upon written request from
Developer or Taxing District, City shall provide its certification of Economic
Activity Taxes due to the governing body of each such Taxing District.
18. Special Allocation Fund. The City Treasurer shall establish and maintain
the Special Allocation Fund which shall contain two (2) separate segregated accounts.
Payments in Lieu of Taxes shall be deposited into the Payment in Lieu of Taxes
Account within the Special Allocation Fund. Economic Activity Taxes, including the
EATS portion of the CID Sales Tax, shall be deposited into the Economic Activity
Account within the Special Allocation Fund. Payments in Lieu of Taxes and Economic
Activity Taxes so deposited and any interest earned on such deposits will be used for
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the payment of Reimbursable Project Costs, including the retirement of the TIF
Obligations and for the distribution to the Taxing Districts, in the manner set forth in the
Redevelopment Plan and this Contract.
19. Disbursements from Special Allocation Fund. Disbursements from the
Special Allocation Fund will be made in the following manner and order of priority:
A. Payment of the City Administrative Fee, as detailed in
Section 47. hereof;
B. Reimbursement of Reimbursable Project Costs.
20. Reimbursable Proiect Cost Certification.
A. Request for Certification. Developer shall have the right to
submit requests for certification for the line items and within the budget
amounts identified on Exhibit D as reimbursable expenses, and including
Financing Costs incurred by Developer relating to Private Loans obtained
to fund Reimbursable Project Costs. Developer shall submit its request
for certification of Reimbursable Project Costs incurred within one hundred
twenty (120) days after incurring any such costs. For all Reimbursable
Project Costs incurred by Developer prior to the execution of this Contract,
such Reimbursable Project Costs shall be submitted for certification within
one hundred (120) days from the date of execution of this Contract.
B. Content and Form of Reimbursement Request. The
Developer shall submit requests for reimbursement from TIF revenues
deposited into the special allocation fund in form and substance of the
attached Exhibit H (the "Reimbursement Request').
C. Reimbursement of Reimbursable Proiect Costs. Land
acquisition shall not be a reimbursable project cost. Development Costs
related to Hard Construction Costs and Soft Renovation Costs shall be
reimbursed from TIF sources of funds in accordance with the ratio to total
Redevelopment Project Costs (including acquisition costs) established in
the Project Budget included as Exhibit D herein (i.e., TIF 28.80%);
provided, however, that in no event shall the aggregate amount of TIF
Reimbursable Project Costs (excluding Financing Costs) that are
reimbursed to the Developer exceed the total indicated under the TIF
column (i.e., $10,334,585) (the 'TIF Reimbursement Cost Cap"). Except
with respect to land acquisition, and subject to statutory requirements for
the use of TIF and CID funds, the Developer may shift costs among the
line item costs in each column of sources of funds categories; however,
reimbursements of costs associated with Land Acquisition, Contingency
and Developer Fees in excess of $300,000 may not be shifted from
another column to a cost indicated in the TIF column.
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47924655.2
D. City Review of Reimbursement Reguests. Upon the
Developer's presentation to City of a Reimbursement Request, City shall
review, verify and confirm the information included in the Reimbursement
Request.
(1) Approval. If City determines that: (i) the Reimbursement
Request accurately reflects Reimbursable Project Costs paid in
accordance with this Contract and the Redevelopment Plan and (ii) the
Reimbursable Project Costs for which certification is requested
(considered in combination with all prior amounts certified for the same
cost category or item, as applicable) are in accordance with the
Redevelopment Project Cost Budget, it shall approve and certify the
Reimbursement Request within twenty (20) days of receipt of such
Reimbursement Request from Developer.
(2) Disapproval and Review of Decision. If City, pursuant to its
review of such Reimbursement Request and supporting documentation,
determines that any portion of the request for reimbursement should not
be approved, it shall within twenty (20) days of receipt of such
Reimbursement Request state the reasons for such disapproval to
Developer along with evidence supporting such disapproval. Any such
disapproval may be appealed by Developer to the City Administrator, or
his or her designee, whom shall upon Developer's request hold a hearing
at which Developer may present new and/or additional evidence. If City
disapproves a portion of a request, the approved portion of such request
shall be paid without delay as provided herein. If the City fails to respond
to a Reimbursement Request within sixty (60) days of receipt of such
Reimbursement Request, it shall be deemed to have approved the
Reimbursement Request.
(3) Requests in Excess of Approved Budget. No
Reimbursement Request will be approved if it causes the total
Reimbursable Project Costs, excluding Financing Costs, to exceed the
total amount set out in the Redevelopment Project Cost Budget for
Reimbursable Project Costs without the formal approval by City Council of
an amended and restated Exhibit D reflecting such an increase.
(4) Procedural Matters. Each Reimbursement Request for
Developer Reimbursable Project Costs shall be approved administratively,
and no action of the City Council shall be required to approve such
Reimbursement Request.
E. Payment of Interest Expenses
(1) Third Party Borrowing Without a Developer Guaranty. In the
event Developer incurs Financing Costs, including interest, on amounts
Developer was loaned to finance and pay for Reimbursable Project Costs
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47924655.2
from a third party in an arms-length transaction for which the Developer
has not provided a personal guaranty as a component of the security for
the loan, the City shall reimburse Developer as a Reimbursable Project
Cost the actual Financing Costs incurred and certified pursuant to this
Section.
(2) Third Party Borrowing Subject to a Developer Guaranty. In
the event Developer incurs Financing Costs, including interest, on
amounts Developer was loaned to finance and pay for Reimbursable
Project Costs from a third party in an arms-length transaction for which the
Developer has provided a personal guaranty as a component of the
security for the loan, the City shall reimburse Developer as a
Reimbursable Project Cost with the actual Financing Costs incurred and
certified pursuant to this Section, plus one percent (1%).
(3) Interest on Developer Equity — Developer Publicly Funded
Project Improvements. In the event Developer finances a portion of the
public project improvements with equity, Developer shall receive as a
Reimbursable Project Cost, in addition to the return of its equity, interest
on said equity as and from the date the equity was advanced at the same
rate charged to Developer by a third party in an arms-length transaction
for which the Developer has not provided a personal guaranty as a
component of the security for the loan as described above in Section 2 A
(1), plus one percent (1%).
(4) Interest Paid Not Included in Total Reimbursable Proiect
Costs. Any interest paid or reimbursed to Developer pursuant to this
Section shall not be included as an expense against the total amount set
out in the Redevelopment Project Cost Budget for Reimbursable Project
Costs.
(5) Certification of Interest Expenses. For purposes of
calculating interest expenses for reimbursement pursuant to this Section,
Developer shall certify its interest expense pursuant to this Section as a
separate line item expense. For the month in which interest expense is
initially incurred with respect to any advance of funds, the interest expense
shall accrue from the 15th day of the month incurred for costs certified
from the 1 st through the 14th day of a month and from the last day of the
month incurred for costs certified after the 15th day of a given month.
F. Cost Overruns. The Project Improvements shall be
constructed in substantial accordance with the Redevelopment Project
Cost Budget attached hereto as Exhibit D. Except as otherwise stated
herein, in no event shall the aggregate total of the Reimbursable Project
Costs that is to be paid for in whole or in part from the Special Allocation
Fund exceed the aggregate of the total Reimbursable Project Costs set
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out on Exhibit D; and if, and to the extent that, the Reimbursable Project
Costs exceed said Redevelopment Project Cost Budget in the aggregate,
then Developer, subject to its right to seek to amend the Redevelopment
Plan or this Contract, shall pay and be responsible for such Reimbursable
Project Costs that exceed said Redevelopment Project Cost Budget in the
aggregate.
21. RESERVED for Payment of Project Costs with Bond Proceeds.
22. Payment of Proiect Costs - "As Collected" Basis. If the Reimbursable
Project Costs are to be reimbursed from the Special Allocation Fund on an "as
collected" basis rather than paid with proceeds from the sale of Obligations, Developer
shall present to the City a Reimbursement Request for the City's certification pursuant
to the procedure set forth in Section 20. The City shall disburse to Developer sufficient
proceeds from the Special Allocation Fund and in accordance with the priorities
specified in Section 19, to the extent such funds are available in the Special Allocation
Fund, to pay those amounts identified on the certified Reimbursement Request within
ten (10) days following City's certification of such Reimbursement Request. City shall
have the right to require lien releases (full or partial) and such other releases and
documents as City may reasonably require prior to authorizing any such disbursement.
23. RESERVED.
24. Full Assessment of Redevelopment Area. After all Reimbursable Project
Costs have been reimbursed and distribution of any excess moneys pursuant to Section
99.845 and 99.850 of the TIF Act has been made (but not later than twenty-three (23)
years from the adoption of an Ordinance approving and designating the Redevelopment
Project), the City shall adopt an Ordinance dissolving the Special Allocation Fund and
terminating the designation of the Redevelopment Area as a redevelopment area under
the TIF Act (the "Termination Ordinance"). From that date forward, all property in the
Redevelopment Project Area shall be subject to assessments and payment of all ad
valorem taxes, including, but not limited to, City, State, and County taxes, based on the
full true value of the real property and the standard assessment ratio then in use for
similar property by the County Assessor. After the adoption of the Termination
Ordinance, the Redevelopment Area shall be owned and operated by Developer free
from the conditions, restrictions and provisions of the TIF Act, of any rules or regulations
adopted pursuant thereto, of the Ordinance, of the Redevelopment Plan, and of this
Contract, except as otherwise set forth herein or therein.
25. Public Participation. The purpose of affording public assistance to the
Redevelopment Project is to accomplish the stated public purposes and not to subsidize
an otherwise economically viable development project. While it has been determined
by both the TIF Commission and the City Council that the Redevelopment Project would
not be undertaken but for the public assistance being provided, the parties recognize
that the ongoing profitability of the Redevelopment Project to Developer is based upon
projections that may or may not be fulfilled. Therefore, in order to ensure that the public
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assistance being provided does not subsidize an unreasonable level of earnings for
Developer, the parties agree that a reasonable level of earnings for the combined
Redevelopment Project is an annual cash on costs rate of return (the "Annual Rate of
Return") upon the Private Funds invested in the Redevelopment Project from time to
time by Developer ("Private Investment') of twenty percent (20%). The amount of
Private Investment shall be reduced by the net proceeds of any sale of property in the
Redevelopment Area by Developer.
A. Cash Flow. If, as of the last day of each calendar year after
the Effective Date and prior to the termination of the Redevelopment Area
as a development area, the Net Cash Flow (as hereinafter defined)
exceeds the cash flow necessary to generate a cumulative Annual Rate of
Return of twenty percent (20%) on the Private Investment, the Developer
shall pay the Public Share (as hereinafter defined) to the City to be
deposited into the Special Allocation Fund for the purposes of paying
Reimbursable Project Costs.
B. Developer Financial Information.
(1) Developer shall submit annually a complete written financial
statement to a third party consultant selected by the City (the
"Consultant") in a format reasonably acceptable to Consultant showing in
reasonable detail the calculation of actual earnings from the
Redevelopment Project and Net Cash Flow. Such statement shall be on a
form or forms as mutually agreed between the Developer and the
Consultant and shall include the income inuring to Developer, its
successors and assigns, and attributable to all Project Improvements.
The financial statement shall include only those expenses which are
reasonable and necessary to the operation of the Project Improvements
and are directly attributable thereto. The financial statement shall not
include any indirect general administrative expenses or charge backs.
The City shall require the Consultant to enter into a non-disclosure
agreement with the Developer to protect the Developer's proprietary
interests in its financial records. The Consultant, after reviewing the
Developer's annual statement as described below, shall report to the City
indicating whether the reported return is above or below the 20% annual
return threshold established in this Section.
(2) Developer shall also submit to the Consultant annually a
statement setting forth in detail reasonably acceptable to Consultant the
amount of Private Investment (by Developer and any third parties) and the
month in which each item constituting a component of the Private
Investment was expended (it being agreed that Developer shall be entitled
to a return upon each such amount constituting a component of the
Private Investment from the date the Private Investment was made). Such
statement shall also include the total amount of all net proceeds of any
sale of property in the Redevelopment Area by Developer (reflecting the
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gross proceeds of any sale and the reductions in such gross proceeds to
determine the net sale proceeds), together with a calculation of
Developer's Annual Rate of Return on Private Investment in accordance
with the provisions of this Section.
(3) Developer shall provide such statements within one hundred
twenty (120) days after the end of each calendar year following the
execution of this Contract. Upon request from the Consultant, Developer
shall provide such additional information or documentation as the
Consultant shall reasonably require to verify or confirm the information set
forth in such statements or to otherwise determine Developer's obligations
hereunder and compliance with the requirements hereof.
C. Audit Right. Upon ten (10) days prior written notice, the
Consultant, with the authorization of the City, may cause an audit of
Developer's statements and calculations referred to herein by the
Consultant; except as provided below regarding under-reported earnings,
the costs of any such audit shall be paid by the City and shall not be
reimbursable to the City from TIF funds. If, as a result of any such audit,
the Consultant believes that Developer owes City more money than has
been remitted by Developer as heretofore described, then the Consultant
shall inform Developer of its position in writing along with providing
reasonable details and the material basis for the Consultant's position.
Developer and the Consultant shall meet and discuss their conflicting
positions (the "Audit Meeting"). If after the Audit Meeting, the Consultant
and Developer are not in agreement, then Developer may request the
conflict be reviewed by the City Council. If the audit indicates that
Developer has under-reported its earnings by three percent (3%) or
greater, Developer shall immediately remit the shortfall, if any, allocable to
the Public Share to City, as well as all costs of Consultant's audit,
subsequent to the Audit Meeting and review by the City Council (if
requested by Developer); if the audit indicates that Developer has
overstated the amount of Private Investment in the Redevelopment
Project, then Developer shall immediately remit the costs of Consultant's
audit, and shall submit its revised statement.
D. For purposes of this Section 25, the following terms shall
have the meaning set forth below:
(1) Public Share: Fifteen percent (15.00%).
(2) Net Cash Flow: The net operating income from the
Redevelopment Project, determined in accordance with accounting
principles consistently applied and mutually agreed to between the
Developer and the Consultant (except as otherwise specified herein), for
each calendar year during which the provisions of this Section are
applicable , plus if not already included, all net proceeds from sales of all
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or any part of the Project or any real property in the Redevelopment Area
(after deduction of reasonable costs and expenses of such sale). In
determining the net operating income from the Redevelopment Project
there shall be no reduction for debt service (principal or interest),
depreciation, amortization or any other non-cash charges, with the
exception of standard reserves (e.g., a reserve for replacement).
(3) Private Investment: The total cost incurred by the Developer
in the acquisition, construction, development and operation of the Project
Improvements which are paid by Developer with Private Funds, as
determined in accordance with accounting principles consistently applied
and mutually agreed to, reduced by all net proceeds (after deduction of
reasonable costs and expenses of such sale) from sales of all or any part
of the Redevelopment Project or any real property in the Redevelopment
Area; subject, however, to the provisions of this Section 25.
26. Calculation of Public Participation. From and after the consummation of
any sale or conveyance (not including leases) to any unaffiliated third party of any
portion of the Redevelopment Project, City's participation pursuant to Section 25 hereof
and as outlined in this Section shall end as to that part so sold or conveyed after the
date of such sale or conveyance and, if not already included, the proceeds thereof shall
be taken into account in determining Net Cash Flow pursuant to the terms hereof.
27. Tenant Approvals and Prohibitions.
A. The Developer shall have complete and exclusive control
over the leasing or sales of property that it owns within the
Redevelopment Area including, without limitation, the fixing of rentals and
the selection or rejection of users; provided, however, that the City
prohibits certain uses and shall have the right to review and approve the
following Tenants within the Redevelopment Area:
(1) Existing Users in the City. Without the approval of the City,
the Developer shall not cause the relocation of a tenant into the
Redevelopment Area, which is then open and operating in the City and
then ceases to operate the existing facility within six (6) months of the
opening of the new facility within the Redevelopment Area.
(a) In the event that Developer violates the requirements
of this subsection and fails to receive the prior approval of the City
as set forth above, for each such violation the Developer shall pay
to the City an amount equal to one and one-half (1.5) times the
amount of all City retail sales taxes generated by such store at its
prior location during the preceding calendar year ("Relocation
Penalty Payment'). Any Relocation Penalty Payment shall be due
and payable within fifteen (15) business days after receipt of
written notice from the City for such payment. Failure to make any
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Relocation Penalty Payment when due shall be an event of default
of this Contract and Developer shall be subject to the remedies set
forth herein. All Relocation Penalty Payments shall be expended
by the City in a manner consistent with this Contract and, provided
the City obtains an Opinion of Bond Counsel to the effect that the
receipt of such payments will not adversely affect the tax-exempt
status of any outstanding Obligations, in accordance with funds
expended from the Special Allocation Fund.
(b) The Relocation Penalty shall not apply to instances
where a tenant temporarily ceases to operate its existing facility in
the City (but outside of the Redevelopment Area) and relocates to
property in the Redevelopment Area pursuant to a lease not to
exceed six (6) months in length, and following the expiration of
such lease, the tenant relocates to a facility within the City but
outside of the Redevelopment Area.
28. Sale or Disposition of Project Property. Subject to the conditions of
Section 28 and Section 32 hereof, Developer may freely sell or transfer any of its
property within the Redevelopment Area without the approval of the City.
A. Transfer of Property by Developer. If the Developer desires
to sell or transfer the property commonly known as the Capital Mall (such
property shall exclude all underlying outlots or pad sites) to any transferee,
other than a Lender, and maintain Tax Increment Financing within the
Redevelopment Area, the Developer shall, as a condition precedent to
such transfer, obtain the written approval from the City. As a condition to
such approval, the City may obligate the transferee to comply with the
requirements of the Redevelopment Plan and the obligations in this
Contract relating to the property. Should the Developer sell or transfer the
property commonly known as the Capital Mall without the approval of the
City, this Contract shall automatically terminate and the City shall have the
unilateral right to terminate the TIF.
B. Continuation of Payments in Lieu of Taxes. In the event of
the sale or other voluntary or involuntary disposition of any or all of the
real property of Developer or any third party in the Redevelopment Area,
Payments in Lieu of Taxes with respect to the real property so sold or
otherwise disposed of shall continue and shall constitute a lien against the
property from which they are derived, and such obligations shall inure to
and be binding upon Developer and its successors and assigns in
ownership of said property as if they were in every case specifically
named and shall be construed as a covenant running with the land and
enforceable as if such purchaser, transferee or other possessor thereof
were originally a party to and bound by this Contract.
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C. Obligation to Ameliorate Existing Conditions. Developer's
obligations pursuant to Section 5 hereof, unless earlier satisfied and
certified pursuant to Section 10 hereof, shall inure to and be binding upon
the heirs, executors, administrators, successors and assigns of the
respective parties as if they were in every case specifically named.
D. Incorporation. The restrictions set forth above in this
Section 28 hereof, shall be incorporated into any deed or other instrument
of conveyance in the sale or transfer set forth pursuant to Section 28.A,
within the Redevelopment Area and shall provide that said obligations or
restrictions shall constitute a benefit held by both Developer and City and
that City is an intended third party beneficiary of said obligations and
restrictions. Failure of Developer to require that such restrictions be
placed in any such deed or other instrument shall in no way modify, lessen
or diminish the obligations and restrictions set forth herein relating to the
Redevelopment Area.
E. Notification to City of Transfer; City Council Approval.
Developer shall notify City in writing of any proposed sale or other transfer
of the property commonly known as the Capital Mall. Such notice shall be
provided not more than thirty (30) days after the date upon which an
agreement establishing the terms of such sale or other transfer is fully
executed by the parties thereto.. In the event the Developer seeks City
approval of such sale pursuant to Section 28.A., then such notice shall
include (i) a copy of the instrument effecting such sale or other disposition
to enable City to confirm that the requirement set forth above in this
Section 28 hereof have been fulfilled and (ii) a request that the City
approve such transfer pursuant to Section 28.A hereof.
29. Proqress Reports.
A. Annually, Developer shall report to the City Council the
progress of its implementation of the Redevelopment Project. Such
reports shall include such information as is required under the reporting
requirements of the TIF Act, such additional information as City may
reasonably require, and such additional information as Developer wishes
to present, including, without limitation:
(1) Project Improvements completed;
(2) status of Project Improvements in progress but not yet
completed;
(3) actual Redevelopment Project Costs in the Redevelopment
Area compared to Redevelopment Plan estimates;
(4) actual start and completion dates of Project Improvements in
the Redevelopment Area compared to Redevelopment Plan estimates;
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(5) estimated start date of Project Improvements not yet
commenced at date of report:
(6) a summary of businesses that have moved into or out of the
Redevelopment Area in the preceding year along with the dates of move-
in and move-out for each business; and
(7) a listing of Missouri tax identification numbers obtained in
accordance with Section 17.B.
B. Developer shall from time to time furnish such other reports
on specific matters not addressed by the foregoing as City may
reasonably require.
30. Compliance with Laws. Subject to Developer's rights to contest the same
in any manner permitted by law, Developer, its officers, directors and principals, at its
sole cost and expense, shall comply in every respect with all Legal Requirements,
ordinances, rules and regulations of all federal, state, county and municipal
governments, agencies, bureaus or instrumentalities thereof now in force or which may
be enacted hereafter which pertain to construction of the Project Improvements, the
ownership, occupancy, use and operation of the Redevelopment Project and the
Redevelopment Area.
31. Assignment of Developer's Obligations. The Developer represents that its
undertakings pursuant to this Contract are for the purpose of redevelopment. Without
limiting the rights of Developer or any third party under Section 31 hereof, Developer
agrees that this Contract and the rights, duties and obligations hereunder may not and
shall not be assigned by Developer without the prior written consent of the City, not to
be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing:
A. Developer may at any time without the City's consent convey
the Redevelopment Area, assign its rights, and delegate its duties and
obligations under this Contract to any entity controlled by the Developer or
the principals of the Developer, provided that the management of the
entity is provided by the principals, or by an entity which they together or
individually control.
B. For so long as any of the principals of the Developer or their
entities continues to be the managing member or managing partner of
Developer or any successor entity to Developer, no sale, transfer,
assignment, pledge or hypothecation of an interest in Developer, to an
investor, or other person will be construed as resulting in a change of
control or construed as constituting an assignment of this Contract that
requires the City's consent.
C. No consent will be required under this section for any pledge
or assignment of this Contract or pledge or assignment of an interest in
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Developer or any interest in any member of Developer as collateral
security for Developer's financing.
D. No consent will be required under this section for any sale or
lease of a parcel for the construction of improvements thereon or the
operation of such property by the purchaser or lessee of the parcel or its
affiliate or borrower (such as the sale, lease, or transfer of a retail building
area for the construction and operation thereon).
Upon approval of such transfer by City as set forth herein, Developer shall be released
from such obligations accruing after the date of such assignment.
32. Assignment of Payments. Notwithstanding the provisions of Section 31,
the Developer may assign or pledge its right to receive reimbursement for Reimbursable
Project Costs incurred by providing City with notice of any such assignment or pledge.
In the event that Developer desires to assign its rights to reimbursement pursuant to this
Contract to any third party, the Developer shall first obtain the written approval of the
City. Any assignment or pledge shall remain subject to the terms, provisions and
conditions of this Contract.
33. Collateral Assignment of Contract. Notwithstanding the provisions of
Section 31, the Developer may assign or pledge its right to receive reimbursement for
Reimbursable Project Costs incurred by providing City with notice of any such
assignment or pledge. Such assignment or pledge shall remain subject to the terms,
provisions and conditions of this Contract.
34. Transfer of Interests in Developer — City Approval. Developer shall, prior
to the sale, conveyance, merger or other transfer of greater than fifty percent (50%) of
the voting interest in Developer membership interests to any person or entity other than
an Affiliate, if Developer is a limited liability company and any transfers by operation of
law, deliver to City a request for approval of such transfer, and no such transfer shall be
permitted except with the prior approval of City; provided, however, that the members,
partners or shareholders of Developer as of the Effective Date, shall have the right to
transfer, in one or more transactions, the ownership interest in Developer, without City's
consent, to any entity or entities to which Developer is permitted, without City's consent,
to transfer property and assign its obligations in the Redevelopment Area pursuant to
Section 31 hereof. Upon submission by Developer of any request for transfer to City,
City shall have the right to request such documentation and information as City shall
determine to be reasonably necessary or desirable to determine whether such transfer
is acceptable to City. In addition, City may require Developer, as a condition precedent
to the transfer of any interests in Developer, to require the transferee to enter into an
agreement with City in form and substance acceptable to the City and such transferee.
Notwithstanding the foregoing, Developer or Developer's members, or any one of them,
may, without notice to or approval of City, transfer interests in Developer to any Affiliate
of such member if such transfer does not result in a material change in the controlling
interests of Developer.
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35. Representations and Warranties.
A. Representations of the City. The City makes the following
representations and warranties, which are true and correct on the date hereof:
(1) Due Authority. The City has full constitutional and lawful
right, power and authority, under current applicable law, to execute,
deliver and perform the terms and obligations of this Contract, and all of
the foregoing have been or will be duly and validly authorized and
approved by all necessary City proceedings, findings and actions.
Accordingly, this Contract constitutes the legal valid and binding obligation
of the City, enforceable in accordance with its terms.
(2) No Defaults or Violation of Law. The execution and delivery
of this Contract, the consummation of the transactions contemplated
hereby, and the fulfillment of the terms and conditions hereof do not and
will not conflict with or result in a breach of any of the terms or conditions
of any agreement or instrument to which it is now a party, and do not and
will not constitute a default under any of the foregoing.
(3) Litigation. To the best of the City's knowledge, there is no
litigation or proceeding pending against the City with respect to the
Redevelopment Plan or this Contract. In addition, to the best of the City's
knowledge, there is no other litigation or proceeding that is pending
against the City seeking to restrain, enjoin or in any way limit the approval
or issuance and delivery of this Contract or which would in any manner
challenge or adversely affect the existence or powers of the City to enter
into and carry out the transactions described in or contemplated by the
execution, delivery, validity or performance by the City of the terms and
provisions of this Contract. The City represents that it is aware that an
applicant to the Plan selection process has indicated to the Developer that
litigation against the City or the Developer with respect to the Plan has
been suggested, but on the Effective Date of this Contract the City has not
been served with a summons in connection with such litigation.
(4) Governmental or Corporate Consents. Except for approval
of this Contract by Ordinance of the Board of Aldermen, no consent or
approval is required to be obtained from, and no action need be taken by,
or document filed with, any governmental body or corporate entity in
connection with the execution and delivery by the City of this Contract.
(5) No Default. No default or event of default has occurred and
is continuing, and no event has occurred and is continuing which with the
lapse of time or the giving of notice, or both, would constitute a default or
an event of default in any material respect on the part of the City under
this Contract.
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(6) Construction Permits. The City reasonably believes that all
permits and licenses necessary to construct the Project Improvements can
be obtained.
(7) Compliance with Laws. The City is in compliance with all
valid laws, ordinances, orders, decrees, decisions, rules, regulations and
requirements of every duly constituted governmental authority,
commission and court applicable to any of its affairs, business, operations
as contemplated by this Contract.
(8) Other Disclosures. The information furnished to the
Developer by the City in connection with the matters covered in this
Contract are true and correct and do not contain any untrue statement of
any material fact and do not omit to state any material fact required to be
stated therein or necessary to make any statement made therein, in the
light of the circumstances under which it was made, not misleading.
B. Representations of the Developer. The Developer makes the
following representations and warranties, which are true and correct on the date
hereof:
(1) Due Authority. The Developer has all necessary power and
authority to execute, deliver and perform the terms and obligations of this
Contract and to execute and deliver the documents required of the
Developer herein, and such execution and delivery has been duly and
validly authorized and approved by all necessary proceedings.
Accordingly, this Contract constitutes the legal valid and binding obligation
of the Developer, enforceable in accordance with its terms.
(2) No Defaults or Violation of Law. The execution and delivery
of this Contract, the consummation of the transactions contemplated
hereby, and the fulfillment of the terms and conditions hereof do not and
will not conflict with or result in a breach of any of the terms or conditions
of any corporate or organizational restriction or of any agreement or
instrument to which it is now a party, and do not and will not constitute a
default under any of the foregoing.
(3) Litigation. To the best of the Developer's actual knowledge,
there is no litigation, proceeding or investigation pending or threatened
against the Developer seeking to restrain, enjoin or in any way limit the
approval or issuance and delivery of this Contract or which would in any
manner challenge or adversely affect the existence or powers of the
Developer to enter into and carry out the transactions described in or
contemplated by the execution, delivery, validity or performance by the
Developer, of the terms and provisions of this Contract. The Developer
represents that an applicant to the Plan selection process has indicated to
the Developer that litigation against the City or the Developer with respect
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to the Plan has been suggested, but on the Effective Date of this Contract
the Developer has not been served with a summons in connection with
such litigation.
(4) No Material Change. (1) The Developer has not incurred
any material liabilities or entered into any material transactions other than
in the ordinary course of business except for the transactions
contemplated by this Contract and (2) there has been no material adverse
change in the business, financial position, prospects or results of
operations of the Developer, which could affect the Developer's ability to
perform its obligations pursuant to this Contract from that shown in the
financial information provided by the Developer to the City prior to the
execution of this Contract.
(5) Governmental or Corporate Consents. No consent or
approval is required to be obtained from, and no action need be taken by,
or document filed with, any governmental body or corporate entity in
connection with the execution, delivery and performance by the Developer
of this Contract other than the subsequent approvals addressed in this
Contract.
(6) No Default. No default or event of default has occurred and
is continuing, and no event has occurred and is continuing which with the
lapse of time or the giving of notice, or both, would constitute a default or
an event of default in any material respect on the part of the Developer
under this Contract, or any other material agreement or material
instrument to which the Developer is a party or by which the Developer is
or may be bound.
(7) Approvals. Except for subsequent approvals addressed in
this Contract, the Developer has obtained all certificates, licenses,
inspections, franchises, consents, immunities, permits, authorizations and
approvals, governmental or otherwise, necessary to acquire, construct,
equip, operate and maintain the Project Improvements. The Developer
reasonably believes that all such certificates, licenses, consents, permits,
authorizations or approvals which have not yet been obtained will be
obtained in due course.
(8) Construction Permits. Except for subsequent approvals
addressed in this Contract, all governmental permits and licenses required
by applicable law to construct, occupy and operate the Project
Improvements have been issued and are in full force and effect or, if the
present stage of development does not allow such issuance, the
Developer reasonably believes that such permits and licenses will be
issued in a timely manner in order to permit the Project Improvements to
be constructed.
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(9) Compliance with Laws. The Developer is in compliance with
all valid laws, ordinances, orders, decrees, decisions, rules, regulations
and requirements of every duly constituted governmental authority,
commission and court applicable to any of its affairs, business, operations
as contemplated by this Contract.
(10) Other Disclosures. The information furnished to the City by
the Developer in connection with the matters covered in this Contract are
true and correct and do not contain any untrue statement of any material
fact and do not omit to state any material fact required to be stated therein
or necessary to make any statement made therein, in the light of the
circumstances under which it was made, not misleading.
36. Indemnification.
A. Developer shall indemnify, protect, defend and hold City and
its officers, directors, members, commissioners, employees and agents
(collectively, the "Indemnified Parties" or, individually, an "Indemnified
Party") harmless from and against any and all claims, demands, liabilities
and costs, including reasonable attorneys' fees, costs and expenses,
arising from damage or injury, actual or claimed, of whatsoever kind or
character (including consequential and punitive damages), to persons or
property occurring or allegedly occurring as a result of any acts or
omissions of Developer, its constituent members or partners, their
employees, agents, independent contractors, licensees, invitees or others
acting by, through or under such indemnifying parties, in connection with
its or their activities conducted pursuant to this Contract and/or in
connection with the ownership, use or occupancy and development or
redevelopment of the Redevelopment Area or a portion thereof and the
Project Improvements.
B. In the event any suit, action, investigation, claim or
proceeding (collectively, an "Action") is begun or made as a result of
which Developer may become obligated to one or more of the Indemnified
Parties hereunder, the Indemnified Party shall give prompt notice to
Developer of the occurrence of such event, but the failure to notify
Developer will not relieve Developer of any liability that it may have to an
Indemnified Party. After receipt of such notice, Developer may elect to
defend, contest or otherwise protect the Indemnified Party against any
such Action, at the cost and expense of Developer, utilizing counsel of
Developer's choice. The Indemnified Party shall have the right, but not the
obligation, to participate, at the Indemnified Party's own cost and expense,
in the defense thereof by counsel of the Indemnified Party's choice. In the
event that Developer shall fail timely to defend, contest or otherwise
protect an Indemnified Party against such Action, the Indemnified Party
shall have the right to do so, and (if such defense is undertaken by the
Indemnified Party after notice to Developer asserting Developer's failure to
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timely defend, contest or otherwise protect against such Action), the
Indemnified Party may submit any bills for fees and costs received from its
counsel to Developer for payment and, within thirty (30) business days
after such submission, Developer shall transfer to the Indemnified Party
sufficient funds to pay such bills. Developer acknowledges that such bills
may be redacted to delete any information which would constitute
attorney-client communication or attorney work product.
C. An Indemnified Party shall submit to Developer any
settlement proposal that the Indemnified Party shall receive. Developer
shall be liable for the payment of any amounts paid in settlement of any
Action to the extent that Developer consents to such settlement. Neither
Developer nor the Indemnified Party will unreasonably withhold its consent
to a proposed settlement.
D. Developer expressly confirms and agrees that it has
provided this indemnification and assumes the obligations under this
Contract imposed upon Developer in order to induce City to enter into this
Contract. To the fullest extent permitted by law, an Indemnified Party shall
have the right to maintain an action in any court of competent jurisdiction
to enforce and/or to recover damages for breach of the rights to
indemnification created by, or provided pursuant to, this Contract. If such
court action is successful, the Indemnified Party shall be reimbursed by
Developer for all fees and expenses (including attorneys' fees) actually
and reasonably incurred in connection with such action (including, without
limitation, the investigation, defense, settlement or appeal of such action).
E. The right to indemnification set forth in this Contract:
(1) Shall not apply to circumstances of breach, the remedies of
which are provided for in Section 37; and
(2) shall survive the termination of this Contract and the
Redevelopment Area as a development area.
37. Breach-Compliance.
A. If the City defaults on its certification or payment obligation
pursuant to Sections 10, 19 and 20 of this Contract (and Developer is not
in default under this Contract) and within thirty (30) days of such default by
the City, City shall not have cured such default, then Developer shall be
entitled to file suit or seek an extraordinary writ to compel the City to cure
such default.
B. Subjection to the foregoing Section 37.A., if Developer or
City does not comply with provisions of this Contract and if, within ninety
(90) days after notice of such default by the non-defaulting party to the
defaulting party, the defaulting party shall not have cured such default or
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commenced such cure and be diligently pursuing the same if such cure
would reasonably take longer than said ninety (90) day period (but in any
event if the defaulting party shall not have cured such default within one
hundred eighty (180) days), then:
(1) in the case of default by the City, the Developer shall have
the right to institute such proceedings as may be necessary in its opinion
to cure the default including, but not limited to, proceedings to compel
specific performance by the City,
(2) in the case of default by Developer, City shall have the right
to terminate this Contract and the right to withhold payment or issuance of
a Certificate of Completion and Compliance. In no event shall the City be
entitled to seek specific performance against the Developer. Neither party
shall be entitled to any punitive, special or consequential damages, and
neither party shall be entitled to any attomeys' fees.
C. Any delay by either party in instituting or prosecuting any
such actions or proceedings or otherwise asserting its rights under this
paragraph shall not operate as a waiver of such rights or limit them in any
way. No waiver in fact made by either party of any specific default by the
other party shall be considered or treated as a waiver of the rights with
respect to any other defaults, or with respect, to the particular default
except to the extent specifically waived.
D. In no event shall City be obligated to certify any
Reimbursable Project Costs, approve any Reimbursement Request or
reimburse Developer for any Reimbursable Project Costs incurred or paid
by Developer at any time while any default by Developer has occurred and
remained uncured beyond Developer's cure period as provided in Section
37_A. herein, and City has provided notice of such default as required
under Section 39. Notwithstanding the above, if the City validly
terminates this Contract, the City shall be required to, in due course
according to the standards set forth herein, certify any Reimbursable
Project Costs, approve any Reimbursement Request and reimburse
Developer for any Reimbursable Project Costs incurred or paid by
Developer prior to any such notice of default. If City shall at any time elect
to rely upon the provisions of this Section 37 as the basis for an action by
City, City shall, at the time of such election, notify Developer in writing of
such decision and the specific facts or events relied upon by City as the
basis for such action by City.
E. Notwithstanding anything to the contrary herein, Developer
agrees that in the event of any default by City under this Contract, it will
not bring any action or suit to recover damages against City or any officer,
director, commissioner, member, employee, or agent of any of them.
Actions brought in equity or which otherwise do not seek to recover
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damages are not precluded by this Section, nor are actions brought
against any officer, director, commissioner, member, employee, or agent
of any of them for any acts or omissions committed outside the course and
scope of such individual's position with the City.
38. Excusable Delays. The parties understand and agree that Developer shall
not be deemed to be in default of this Contract because of delays or temporary inability
to commence, complete or proceed in accordance with the Redevelopment Schedule,
due in whole or in part to causes beyond the reasonable control or without the material
fault of Developer which are caused by the action or failure to act of any governmental
body, department or agency, including but not limited to, failure to approve complete
applications for permits that comply with all applicable laws and regulations within thirty
(30) days of submission and failure to provide any consent required by this Contract
where all applicable requirements for said consent have been complied with within
twenty (20) days of submission, acts of war or civil insurrection, breach of this Contract
by City or any natural occurrence, strikes, lock-outs, riots, floods, earthquakes, fires,
casualties, acts of God, labor disputes, governmental restrictions or priorities,
embargoes, litigation, tornadoes, or unusually severe weather (collectively "Excusable
Delays"). The time of performance hereunder shall be extended for the period of any
delay or delays caused or resulting from any of the foregoing causes, which approval
shall not be arbitrarily or unreasonably withheld.
39. Notice. Any notice required by this Contract shall be deemed to be given if
it is mailed by United States registered mail, postage prepaid, and addressed as
hereinafter specified.
Any notice to City shall be addressed to:
City Administrator
City Hall
320 E. McCarty
Jefferson City, MO 65101
With a copy to:
Joe Lauber
Lauber Municipal Law, LLC
529 SE 2nd Street, Suite D
Lee's Summit, MO 64063
Any notice to Developer shall be addressed to:
Capital Mall JC, LLC
Attn: Kirk Farmer and Rob Kingsbury
221 Bolivar Street, Suite 400
Jefferson City, Missouri 65101
34
47924655.2
With a copy to:
Polsinelli PC
Attn: Korb Maxwell
900 W. 48th Place, Suite 900
Kansas City, Missouri 64112
Each party shall have the right to specify that notice be addressed to any other address
by giving to the other party ten (10) days' written notice thereof.
40. Modification. The terms, conditions, and provisions of this Contract and of
the Redevelopment Plan can be neither modified nor eliminated except in writing and by
mutual agreement between City and Developer. Any modification to this Contract as
approved shall be attached hereto and incorporated herein by reference.
41. Effective Date. This Contract shall become effective on the Effective Date
and shall remain in full force and effect until the completion of all Project Improvements,
as described herein, and so long as any Obligations or Redevelopment Project Costs
remain outstanding and unpaid, subject, however, to the provisions of Section 38
hereof.
42. Recording. Upon full execution by City and Developer, this Contract or a
memorandum thereof shall be recorded by City, at Developers expense, in the Office of
the Recorder of Deeds for Cole County, Missouri. Such expense shall be a
Reimbursable Project Cost over and above the total amount set out in the
Redevelopment Project Cost Budget for Reimbursable Project Costs.
43. Applicable Law. This Contract shall be governed by and construed in
accordance with the laws of the State of Missouri.
44. Covenant Running With the Land. The provisions of this Contract shall
remain in effect for the duration of the Redevelopment Plan and any renewal period or
periods of the Redevelopment Plan at the end of which time they shall cease. They
shall be covenants running with the land and shall be binding, to the fullest extent
permitted by law and equity, for the benefit and in favor of, and be enforceable by, City,
its successors and assigns, against Developer, its successors and assigns; provided,
(a) subject to sales, transfers and assignments under Section 28 and Section 31
herein, this Contract shall not be a covenant against or binding upon any future owner
or tenant of property within the Redevelopment Area and (b) subject to the provisions of
Section 34 hereof, any such covenants shall be binding on Developer, and its
successors and assigns, only during their period of ownership.
45. Relocation Costs. To the extent necessary, individuals or entities that
may be required to relocate in implementation of the TIF Plan will be processed
pursuant to the relocation policy included in the Redevelopment Plan.
35
47924655.2
46. City's Administrative Costs and Expenses. In order to fund the additional
professional service costs and other expenses incurred by City in connection with the
implementation of the Redevelopment Plan, this Contract, or otherwise relating to the
Redevelopment Project, the City shall be entitled to a fixed administrative fee in the
amount of $7,500, which shall increase five (5) percent annually but shall not exceed
$10,000, (the "City Administrative Fee"). Such City Administrative Fee shall be
reimbursed from the Special Allocation Fund in accordance with Section 19, and shall
not be considered an expense against the TIF Reimbursement Cost Cap. City shall be
responsible for any and all of its administrative costs and expenses that exceed the
then-current City Administrative Fee up to $10,000. Developer hereby agrees that it will
provide the City with the name and Missouri state tax identification number of each
tenant or operator within the Redevelopment Area, and the dates such tenants or
operators begin operations within the Redevelopment Area or cease operations within
the Redevelopment Area.
47. Validity and Severability. It is the intention of the parties hereto that the
provisions of this Contract shall be enforced to the fullest extent permissible under the
laws and public policies of State of Missouri, and that the unenforceability (or
modification to conform with such laws or public policies) of any provision hereof shall
not render unenforceable, or impair, the remainder of this Contract. Accordingly, if any
provision of this Contract shall be deemed invalid or unenforceable in whole or in part,
this Contract shall be deemed amended to delete or modify, in whole or in part, if
necessary, the invalid or unenforceable provision or provisions, or portions thereof, and
to alter the balance of this Contract in order to render the same valid and enforceable.
All exhibits attached hereto are hereby incorporated into this Contract by reference.
48. Time and Performance are of the Essence. Except as otherwise provided
in this Contract, time and exact performance are of the essence of this Contract.
49. Relationship of Parties. Nothing contained in this Contract shall be
deemed or construed by the parties hereto or by any third party to create the
relationship of principal and agent, partnership, joint venture or any association between
the City and Developer.
50. City's Legislative Powers. Notwithstanding any other provisions in this
Contract, nothing herein shall be deemed to usurp the governmental authority or police
powers of City or to limit the legislative discretion of the City Council, and no action by
the City Council in exercising its legislative authority shall be a default under this
Contract.
51. Good Faith; Consent or Approval. In performance of this Contract or in
considering any requested extension of time, the City shall have no obligation to
consider a requested extension of time that would extend a time period established in
this Contract for the performance of an obligation of the Developer by more than five (5)
years from the Effective Date. Except as otherwise provided in this Contract, whenever
consent or approval of either party is required, such consent or approval will not be
unreasonably withheld, conditioned or delayed. The City agrees to reasonably
36
47924655.2
cooperate with the Developer with respect to (i) applications for building permits from
the City and the issuance thereof, and any permits or approvals required from any
governmental agency, whenever reasonably requested to do so; provided, however,
that all applications for such permits and approvals are in compliance with the
applicable ordinances and regulations, approved plans and specifications, and all
applicable codes, (ii) securing any construction and permanent financing that the
Developer may reasonably require in connection with the performance of its obligations
under this Contract, (iii) reviewing and approving Developers plans, including but not
limited to site plans and building elevations, construction plans and the Design Criteria
and any amendments thereto. The Developer, in recognition of the significant public
investment of the City; and the City, in recognition of the substantial financial
commitment of the Developer, agrees to cooperate in good faith to accomplish the
expeditious and optimal utilization of the retail space in Redevelopment Area. The
Developer agrees and acknowledges that in each instance in this Contract or elsewhere
where the City is required or has the right to review or give its approval or consent, no
such review, approval or consent will imply or be deemed to constitute an opinion by the
City, nor impose upon the City any responsibility for the design or construction of
building elements, including but not limited to the structural integrity or life/safety
requirements or adequacy of budgets or financing or compliance with any applicable
federal or state law, or local ordinance or regulation, including the Environmental Laws.
All reviews, approval and consents by the City under the terms of this Contract are for
the sole and exclusive benefit of the Developer and no other person or party will have
the right to rely thereon.
[Remainder of Page Intentionally Left Blank.]
37
47924655.2
IN WITNESS WHEREOF, the parties hereto have executed this Contract the day
and year first above written.
CITY:
THE CITY OF JEFFERSON CITY, MISSOURI,
a municipal corp on
By:
Eric J. Struemph, Wayor
ATTEST: APPROVED AS TO FORM:
By:(A/)Th,
c Zoe e By: ;g �C
Phy is Powell, City Clerk C4 Counselor
STATE OF M ; 5 JOv-j )
COUNTY OF C )(C ) ss.
l
On this I day of M w`7 2014, before me personally appeared
Hon. Eric J. Struemph, to me known, who being by me duly sworn, did say that he is the
Mayor of The City of Jefferson City, Missouri, a Missouri municipal corporation, that said
corporation has no corporate seal, that said instrument was signed on behalf of said
corporation by authority of its City Council, and acknowledged said instrument to be the
free act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial
seal the day and year last above written
G
Print Name:
Notary Public in and for said County-and State
My Commission Expires:
0%%111111111R11111,D
zl-
38
47924655.2
DEVELOPER:
CAPITAL MALL JC, LLC,
a Missouri limited liability company
By:
Print Name: i dip c CtA-AkiA. Git—L,U3132-L
Title
1,Iva LU • •1
STATE OF ktr)/ C)CLAJL__ )
COUNTY OF 0-0129•_ ) SS.
On this 3 day o , 2014, before me personally appeared
Q
t--()AAA_ , to me known to be the person described in and who
executed the foregoing ins rument, who being by me duly sworn, did say he is a member
of Capital Mall JC, LLC, a Missouri limited liability company, and acknowledged said
instrument to be his free act and deed and the free act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial •
seal the day and year last above written.
Print NameV\ QC IC
Notary Public in and for said County and State
My Commission Expires: JEAN MACKNEY
Notary Public-Notary Seal
STATE OF MISSOURI
Ij l� County of Cole
My Commission Expires 1/12712015
Commission# 11500009
39
47924655.2
EXHIBIT A
LEGAL DESCRIPTION OF REDEVELOPMENT AREA
Part of the South Half of Section 4, and part of the Northeast Quarter of the Northwest
Quarter and part of the West Half of the Northwest Quarter of the Northeast Quarter of Section 9,
all in Township 44 North, Range 12 W, in the City of Jefferson, Cole County, Missouri, more
particularly described as follows:
BEGINNING at the northeast corner of the West Half of the Northwest Quarter of the
Northeast Quarter of said Section 9; thence S4°26'19"E, 760.31 feet to the northerly line of Old
U.S. Route No. 50 (now Country Club Drive); thence S4°44'3T'E, crossing said Country Club
Drive right-of-way, 101.20 feet to a point on the southerly line thereof and said comer being the
northwest comer of a tract of land described by deed of record in Book 136, page 132, and on the
easterly boundary of a tract described by deed of record in Book 239, page 903, Cole County
Recorder's Office; thence S4°34'31"E, along the easterly boundary of said tract described in Book
239, page 903, 375.37 feet to the southeasterly corner thereof, said comer being on the northerly
line of U.S. Route No. 50; thence S75°33'03"W, along the northerly line of said U.S. Route No. 50,
77.73 feet; thence N88°24'20"W, along the northerly line of said U.S. Route No. 50, 125.05 feet to
the southeasterly comer of a tract of land described by deed of record in Book 362, page 519, Cole
County Recorder's Office; thence N7°5756"W, along the easterly boundary of said tract described
in Book 362, page 519, 346.95 feet to the northeasterly comer thereof, said comer being on the
southerly line of the aforesaid Country Club Drive; thence S77°59'08"W, along the southerly line
of said Country Club Drive, 334.21 feet to the northwesterly comer of a tract of land described by
deed of record in Book 315, page 773, Cole County Recorder's Office; thence S 14°07'00"E, along
the westerly boundary of said tract described in Book 315, page 773, 273.73 feet to the
southwesterly comer thereof, said comer being on the northerly line of the aforesaid U.S. Route No.
50; thence N88°24'20"W, along the northerly line of said U.S. Route No. 50, 765.43 feet; thence
S75024'00"W, along the northerly line of said U.S. Route No. 50, 36.12 feet to the southeasterly
comer of a tract of land described by deed of record in Book 298, page 83, Cole County Recorder's
Office; thence N3007'58"W, along the easterly boundary of said tract described in Book 298, page
83, 96.22 feet to the northeasterly comer thereof, said comer being on the southerly line of the
aforesaid Country Club Drive; thence continuing N3°07'58"W, 102.09 feet to the northerly line of
said Country Club Drive; thence S78°00'23"W, along the northerly line of said Country Club
Drive, 104.04 feet to the most easterly comer of the U.S. Highway 50 connection right-of-way
described by deed of record in Book 240, page 660, Cole County Recorder's Office; thence, along
the northerly line of said connection right-of-way, the following courses: N85°29'44"W, 264.86
feet; thence N49°07'58"W, 230.71 feet; thence N47°05'00"W, 313.86 feet to the easterly line of
West Truman Boulevard (formerly known as North Ten Mile Drive); thence N89428"E, along the
easterly line of said West Truman Boulevard, 490.41 feet; thence N69721"E, along the easterly
line of said West Truman Boulevard, 401.12 feet to the northerly end of the aforesaid connection
right-of-way; thence N79°05'18"W, 36.28 feet to the centerline of West Truman Boulevard (as
described in Parcel 1 of the deed of record in Book 626, page 565 Cole County Recorder's Office);
thence, leaving the aforesaid connection right-of-way line, described in Book 240, page 660,
N3°27'09"E, along the centerline of West Truman Boulevard (as per said Parcel I description),
113.55 feet; thence N23°44'10"E, along the centerline of West Truman Boulevard (as per said
47924655.2
Parcel 1 description), 233.03 feet to the southerly end of the property deeded to the City of Jefferson
for the street right-of-way, now known as West Truman (formerly known as North Ten Mile Drive)
as per deed of record in Book 275, page 214, Cole County Recorder's Office; thence N85003'03"E,
along the southerly line of said property described in Book 275, page 214, and along the southerly
boundary of the property described by deed of record in Book 555, page 698, along the southerly
boundary of EI Mercado Development, Section 1, as per plat of record in Plat Book 11, page 402
and along the southerly boundary of those properties described by deeds of record in Book 529,
page 947 and in Book 462, page 649, Cole County Recorder's Office, 1461.95 feet, thence
N86°I 1'11"E, along the southerly boundary of said property described in Book 462, page 649 and
along the southerly boundary of the property described by deed of record in Book 546, page 150,
Cole County Recorder's Office, 692.99 feet to the southeasterly comer of said property described in
Book 546, page 150 and said comer being on the westerly boundary of Monticello Acres, Section
Nine, as per plat of record in Plat Book 11, page 859, Cole County Recorder's Office; thence
S3°59'18"E, along the westerly boundary of Monticello Acres, Section Nine, 700.95 feet to the
southwesterly corner thereof, being a point on the south line of said Section 4, Township 44 North,
Range 12 West, at the southeasterly corner of the property described by deed of record in Book 629,
page 196, Cole County Recorder's Office; thence S86°32'02"W, along the Section Line, 389.43 feet
to the POINT OF BEGINNING.
47924655.2
EXHIBIT B
LEGAL DESCRIPTION OF REDEVELOPMENT PROJECT AREA
Part of the South Half of Section 4, and part of the Northeast Quarter of the Northwest
Quarter and part of the West Half of the Northwest Quarter of the Northeast Quarter of Section 9,
all in Township 44 North, Range 12 W, in the City of Jefferson, Cole County, Missouri, more
particularly described as follows:
BEGINNING at the northeast corner of the West Half of the Northwest Quarter of the
Northeast Quarter of said Section 9; thence S4°26'19"E, 760.31 feet to the northerly line of Old
U.S. Route No. 50 (now Country Club Drive); thence S4°44'3T'E, crossing said Country Club
Drive right-of-way, 101.20 feet to a point on the southerly line thereof and said comer being the
northwest corner of a tract of land described by deed of record in Book 136, page 132, and on the
easterly boundary of a tract described by deed of record in Book 239, page 903, Cole County
Recorder's Office; thence S4°34'31"E, along the easterly boundary of said tract described in Book
239, page 903, 375.37 feet to the southeasterly comer thereof, said comer being on the northerly
line of U.S. Route No. 50; thence S75°33'03"W, along the northerly line of said U.S. Route No. 50,
77.73 feet; thence N88024'20"W, along the northerly line of said U.S. Route No. 50, 125.05 feet to
the southeasterly comer of a tract of land described by deed of record in Book 362, page 519, Cole
County Recorder's Office; thence N7°57'56"W, along the easterly boundary of said tract described
in Book 362, page 519, 346.95 feet to the northeasterly comer thereof, said comer being on the
southerly line of the aforesaid Country Club Drive; thence S77°59'08"W, along the southerly line
of said Country Club Drive, 334.21 feet to the northwesterly comer of a tract of land described by
deed of record in Book 315, page 773, Cole County Recorder's Office; thence S 14°07'00"E, along
the westerly boundary of said tract described in Book 315, page 773, 273.73 feet to the
southwesterly comer thereof, said corner being on the northerly line of the aforesaid U.S. Route No.
50; thence N88°24'20"W, along the northerly line of said U.S. Route No. 50, 765.43 feet; thence
S75°24'00"W, along the northerly line of said U.S. Route No. 50, 36.12 feet to the southeasterly
comer of a tract of land described by deed of record in Book 298, page 83, Cole County Recorder's
Office; thence N3007'58"W, along the easterly boundary of said tract described in Book 298, page
83, 96.22 feet to the northeasterly comer thereof, said comer being on the southerly line of the
aforesaid Country Club Drive; thence continuing N3°07'58"W, 102.09 feet to the northerly line of
said Country Club Drive; thence S78°00'23"W, along the northerly line of said Country Club
Drive, 104.04 feet to the most easterly comer of the U.S. Highway 50 connection right-of-way
described by deed of record in Book 240, page 660, Cole County Recorder's Office; thence, along
the northerly line of said connection right-of-way, the following courses: N85°29'44"W, 264.86
feet; thence N49°07'58"W, 230.71 feet; thence N47°05'00"W, 313.86 feet to the easterly line of
West Truman Boulevard (formerly known as North Ten Mile Drive); thence N8°34'28"E, along the
easterly line of said West Truman Boulevard, 490.41 feet; thence N69721"E, along the easterly
line of said West Truman Boulevard, 401.12 feet to the northerly end of the aforesaid connection
right-of-way; thence N79°05'18"W, 36.28 feet to the centerline of West Truman Boulevard (as
described in Parcel 1 of the deed of record in Book 626, page 565 Cole County Recorder's Office),
thence, leaving the aforesaid connection right-of-way line, described in Book 240, page 660,
N3°27'09"E, along the centerline of West Truman Boulevard (as per said Parcel 1 description),
113.55 feet; thence N23°44'10"E, along the centerline of West Truman Boulevard (as per said
Parcel 1 description), 233.03 feet to the southerly end of the property deeded to the City of Jefferson
47924655.2
for the street right-of-way, now known as West Truman (formerly known as North Ten Mile Drive)
as per deed of record in Book 275, page 214, Cole County Recorder's Office; thence N85°03'03"E,
along the southerly line of said property described in Book 275, page 214, and along the southerly
boundary of the property described by deed of record in Book 555, page 698, along the southerly
boundary of EI Mercado Development, Section 1, as per plat of record in Plat Book 11, page 402
and along the southerly boundary of those properties described by deeds of record in Book 529,
page 947 and in Book 462, page 649, Cole County Recorder's Office, 1461.95 feet; thence
N86°11'l l"E, along the southerly boundary of said property described in Book 462, page 649 and
along the southerly boundary of the property described by deed of record in Book 546, page 150,
Cole County Recorder's Office, 692.99 feet to the southeasterly comer of said property described in
Book 546, page 150 and said corner being on the westerly boundary of Monticello Acres, Section
Nine, as per plat of record in Plat Book 11, page 859, Cole County Recorder's Office; thence
S3°59'18"E, along the westerly boundary of Monticello Acres, Section Nine, 700.95 feet to the
southwesterly comer thereof, being a point on the south line of said Section 4, Township 44 North,
Range 12 West, at the southeasterly corner of the property described by deed of record in Book 629,
page 196, Cole County Recorder's Office; thence S86°32'02"W, along the Section Line, 389.43 feet
to the POINT OF BEGINNING.
47924655.2
EXHIBIT C
REDEVELOPMENT SCHEDULE
Renovation: Phase 1 Commencement: May 2014'
Activity: Replace signage, rehabilitate entrances and similar
common areas, repair/rehabilitate parking lot, and
repair/rehabilitate roof;
Phase 1 Completion: April 2015'
Phase 2 Commencement: To be decided. Projected
approximately June 2015
Activity: Redevelop and lease/sell vacant pad site and redevelop
and lease vacant units within Capital Mall
Phase 2 Completion: To be decided. Projected June 2016
Phase 3 Commencement: To be decided. Projected
approximately June 2016
Activity: Redevelop and lease/sell vacant pad site and redevelop
and lease vacant units within Capital Mall
Phase 2 Completion: To be decided. Projected June 2017
Phase 4 Commencement: To be decided. Projected
approximately June 2017
Activity: Redevelop and lease/sell vacant pad site and redevelop
and lease vacant units within Capital Mall
Phase 4 Completion: To be decided. Projected June 2018
Phase 5 Commencement: To be decided. Projected
approximately June 2018
Activity: Redevelop and lease/sell vacant pad site and redevelop
and lease vacant units within Capital Mall
Phase 5 Completion: To be decided. Projected June 2019
The dates of Phase 1 Commencement and Completion shall be extended by the
number of days that have passed between the date that the City, by ordinance,
approved the execution of the Contract and the date that all conditions precedent to
Developer's and City's duties, pursuant to Section 14 of the Contract, have been
satisfied.
47924655.2
EXHIBIT D
REDEVELOPMENT PHASE 1 BUDGET AND TOTAL BUDGET
TOTAL BUDGET
Reimbursable Project Costs'
Category
Total Project Developer's CID 1%
Development Costs Costs Costs TIF" Sales Tax
Land Acquisition $ 11,000,000 $ 11,000,000 $ $
Hard Construction Costs $ 20,316,500 $ 6,620,031 $ 9,604,932 $ 4,091,537
Renovations $ 8,680,500 $ - $ - $ -
Landscaping S 250,000 $ $ $
_ Public Space FF&E $ 886,000 $ $ - S
Common Area Improvements $ 10,000,000 $ S $
ReplacementRMU's $ 500,000 $ $ $
E Soft Renovation Costs $ 2,115,825 $ 525,721 $ 729,653 $ 860,452
m ArchitecWral&Engineering S 350,000 $ - _$ $
_ General Conditions $ 100,000 $ S S _
J
_ Taxes,Insurance,Appraisal S 50,000 $ $ $ _
_ Adninistrative/Overhead $ 300,000 $ $ $
Legal $ 250,000 $ _ $ $
_ Survey S 50,000 $ _ $ __ $
Developer Fee $ 1,015,825 $ $ $
Conlingency_ $ 2,451,650 $ 2,451,650 $ $
Hard Cost Contingency(10%) $ 2,031,650 $ $ $ _
Sot Cost Contingency 20% _$ 220,000 $ 5 $
Total Development Costs $ 35,683,975 1 $ 20,597,402 $ 10,334,585 $ 4,951,989
Percentages of Total Project i
Costs by Category 100% ( 57.4000% 28.80% 13.80%
47924ess.z
PHASE 1 BUDGET
Projected Total
Development Costs Phase 1 Costs
Land Acquisition _ _ $ 11,000,000
Hard Construction Costs _ $ 2,313,000
_ Renovafions $ 1,963,000
Parking Lot Renovations $ 500,000
_HVAC ReptacemenWpgrades $ 100,000
Waterproofing Joint Replacement $ 18,000
---- — — Cedng 8 Lighting Upgrades $ 100,000 _—
_ Interior Painting improvement $ 45,000
Interior Facade Improvement $ 75,000 _
F Pylon Sign Highvmy $ 125,000 _
Fagade Improvement to Ma®Entrances $ 700,000 _
_ i Roof Repiacement $ 300,000
Landscaping _ __ __ $ 100,000
— _—_-- — InteriorLandscaping $ 25,000 -- --_
1 E.deriorLandscapig $ 75,000
_
Public Space FFBE I $ 250,000
_
Interior Furniture UpgradesrReplacement $ 36,000 _
_ Fboring Improvements $ 214,000 _
Common Area Inprovementsi _{ $
_ Replacement RMU's _ I $
Soft Renovation Cost $ 900,000
Archil ral&Engineering $ 175,000
GeneralCondidons� _ $ 50,000
Taxes,Insurance,Appraisal _ $ 25,000
__ AdninistrativelOverhead _ $ 150,000
Legal _ _ $ 200,000
_ Survey $ 50,000
_
Developer Fee� __ _ __ $ 250,000
Contingency _ $ 361,300
Hard Costonfingenq(10°h)� _ I $ ___ 231,300
Sot Cost Confingency(20%)! S 130,000
Total Development Costs $ 14,574,300
47924655.2
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EXHIBIT F
DESCRIPTION OF PROJECT IMPROVEMENTS
I. Exterior
A. Parking Lot — Repaving, renovating, resurfacing, installing adequate
lighting and repairing existing lighting.
B. Structure/facade — Repair and replace roof, repair and replace RMU's,
repair and replace waterproofing exterior construction joints, install and
improve exterior facade with cultured stone and masonry, install
composite metal panels and reform parapet, install new glazing for entry
and windows, install fabric awnings and decorative light fixtures with wall
wash, install internally illuminated frosted glass tower at entry, install solar
paneling, install pylon signs and additional exterior signage, install solar
panels, and repair, replace and install common area HVAC units.
II. Interior
A. Facade — Upgrade and install new lighting, install new furniture fixture and
equipment, replace outdated interior signage and facade structures,
replace interior flooring, modernize shopping and common areas, install
landscaping and paint interior.
47924655.2
EXHIBIT G
FORM OF COMPLETION CERTIFICATION
The undersigned, Capital Mall JC, LLC (the "Developer"), pursuant to that certain Tax
Increment Financing Contract dated as of _, 2014, between the City of
Jefferson, Missouri (the "City") and the Developer (the "Contract"), hereby certifies to the City
as follows:
1. That as of , 20 , the construction, renovation, repairing,
equipping and constructing of the [ phase of the Redevelopment Project/Redevelopment
Project] (as such term is defined in the Contract) has been substantially completed in
accordance with the Contract.
2. The [ phase of the Redevelopment Project/Redevelopment Project] has
been completed in a workmanlike manner and in accordance with the Redevelopment Plan and
that Developer is in material compliance with the provisions of the Contract (as those terms are
defined in the Contract).
3. Lien waivers for applicable portions of the [ phase of the Redevelopment
Project/Redevelopment Project] have been obtained with respect to the [ phase of the
Redevelopment Project/Redevelopment Project].
4. This Certificate of Completion and Compliance is accompanied by (a) a
certificate of substantial completion (or the substantial equivalent thereof), a copy of which is
attached hereto as Appendix A and by this reference incorporated herein), certifying that the
[ phase of the Redevelopment Project/Redevelopment Project] has been substantially
completed in accordance with the Contract; and (b) a copy of the certificate(s) of occupancy
issued by the City, to the extent applicable.
5. Attached hereto as Appendix B are the total Redevelopment Project Costs
incurred by Developer to date and total Redevelopment Project Costs that have been
reimbursed from TIF Revenue (as those terms are defined in the Contract).
6. This Certificate of Completion and Compliance is being issued by the Developer
to the City in accordance with the Contract to evidence the Developer's satisfaction of all
obligations and covenants with respect to the [ phase of the Redevelopment
Project/Redevelopment Project].
47924655.2
This Certificate is given without prejudice to any rights against third parties which exist
as of the date hereof or which may subsequently come into being.
Terms not otherwise defined herein shall have the meaning ascribed to such terms in
the Contract.
IN WITNESS WHEREOF, the undersigned has hereunto set his/her hand this day
of 20
DEVELOPER:
Capital Mall JC, LLC
By:
Name:
Title:
ACCEPTED:
CITY OF JEFFERSON, MISSOURI
By:
Name:
Title:
47924655.2
APPENDIX A TO CERTIFICATE OF COMPLETION AND COMPLIANCE
CERTIFICATE OF SUBSTANTIAL COMPLETION AND CERTIFICATE OF OCCUPANCY
47924655.2
APPENDIX B TO CERTIFICATE OF COMPLETION AND COMPLIANCE
REDEVELOPMENT PROJECT COSTS
Total Costs Reimbursed
Reimbursable from TIF Revenue to
Category Total Project Costs Project Costs Date
Land Acquisition
Hard Construction Costs
Renovations
Landscaping
Public Space FF&E
Common Area Improvements
Replacement RMLI's
Soft Renovation Costs
Architectural & Engineering
General Conditions
Taxes, Insurance, Appraisal
Adm inistrative/Overhead
Legal
Survey
Developer Fee
Contingency
Hard Cost Contingency
Soft Cost Contin enc
Total
47924655.2
EXHIBIT H
FORM OF REIMBURSEMENT REQUEST
Request No. Date:
Pursuant to the Tax Increment Financing Contract (the "Contract°) between the City of
Jefferson, Missouri and Capital Mall JC, LLC (the "Developer"), the Developer requests a TIF
reimbursement and hereby states and certifies as follows:
1. The date and number of this request are as set forth above.
2. All terms in this request shall have and are used with the meanings
specified in the Contract.
3. The names of the persons, firms or corporations to whom the payments
have been made and reimbursement is hereby requested, the amounts to be reimbursed
and the general classification and description of the costs for which each obligation
requested to be reimbursed hereby was incurred are as set forth on Attachment 1
hereto. The total Reimbursable Project Costs by line item category for this
Reimbursement Request, the total Reimbursement Project Costs by line item category
from all prior Reimbursement Requests, and the estimate percentage of work by line
item category completed as of the current Reimbursement Request are set forth by line
item category on Attachment 11.
4. These costs have been incurred and are Reimbursable Project Costs
under the Contract.
5. Each item listed above has not been previously reimbursed from and no
part thereof has been included in any Reimbursement Request or other disbursement
request previously filed with the City or other political subdivision.
CAPITAL MALL JC, LLC
By:
Title:
Approved this_day of , 20_
CITY OF JEFFERSON, MISSOURI
By:
City Representative
47924655.2 .
ATTACHMENT
TO CERTIFICATION OF EXPENDITURES
REQUEST NO. DATED
SCHEDULE OF PAYMENTS REQUESTED
Person, firm
or corporation
to whom payment Amount to Line Item Category
was made be reimbursed From Redevelopment Cost Budget
47924655.2
47924655.2
ATTACHMENT II
TO CERTIFICATION OF EXPENDITURES
REQUEST NO. DATED
REIMBURSEMENT REQUEST REPORT
Reimbursable- Reimbursable
Costs—Current Costs—Total Estimate
Total Project Request to Date of%Work
Development Cost Budget Costs by category), by category) Completed
Land Acquisition $ 11,000,000
Hard Construction Costs $ 20,316,500
Renovations $ 8,680,500
Landscaping $ 250,000
Public Space FF&E $ 886,000
Common Area Improvements $ 10,000,000
Replacement RMU's $ 500,000
Soft Renovation Costs $ 2,115,825
Architectural & Engineering $ 350,000
General Conditions $ 100,000
Taxes, Insurance, Appraisal $ 50,000
Administrative/Overhead $ 300,000
Legal $ 250,000
Survey $ 50,000
Developer Fee $ 1,015,825
Contingency $ 2,451,650
Hard Cost Contingency $ 2,031,650
Soft Cost Contingency $ 220,000
Total $ 35,883,975
47924655.2