HomeMy Public PortalAboutPuri TIF Contract Proposal 7.27.16 TRUMAN TIF CONTRACT
AND ANNEXATION AGREEMENT
JULY 27, 2016
PROPOSED BY
PURI GROUP OF ENTERPRISES
TAX INCREMENT FINANCING
CONTRACT
BETWEEN
THE CITY OF JEFFERSON, MISSOURI
and
PGE HOSPITALITY, INC.
for the
TRUMAN HOTEL
TAX INCREMENT FINANCING PLAN
[As proposed by Puri Group of Enterprises July 27, 2016
with companion Annexation Agreement]
Table of Contents
1. Rules of Interpretation 1
2. Definitions 2
3. Redevelopment Area... 7
4 Redevelopment Project Area 7
5. Protect Improvements 8
6. Redevelopment Schedule 8
7. Design Criteria and Review Procedures for Project Improvements 9
8. Control of Project 10
9. Certificate of Completion and Compliance 10
10. Financing Plan Error! Bookmark not defined.
11 . Funding Sources and Uses of Funds 12
12. Conditions Precedent to Developer's Duties 12
13. Conditions Precedent to City's Duties.... 12
14. De-annexation 14
15. Payments in Lieu of Taxes 13
16. Economic Activity Taxes 14
17. Special Allocation Fund . 15
18. Disbursements from S•ecial Allocation Fund 15
19. Reimbursable Project Cost Certification 16
20. Reimbursement Adjustments Based on Actual Costs and Revenue 20
21 . Payment of Project Costs - "As Collected" Basis.... 20
22. Cost Overruns 20
23. Full Assessment of Redevelopment Area 20
24. Sale or Disposition of Project Property 20
25. Progress Reports 22
26. Compliance with Laws 22
27. Assignment of Developer's Obligations 23
28. Representations and Warranties 24
29. Indemnification 28
30. Breach-Compliance 29
31. Excusable Delays 30
32. Notice 30
33. Modification 31
34. Effective Date 31
35. Recording 31
36. Applicable Law 31
37. Covenant Running With the Land 31
38, Relocation Costs 32
39. City's Administrative Costs and Expenses 32
40. Validity and Severability 32
41. Time and Performance are of the Essence 33
42. Relationship of Parties 33
43. City's Legislative Powers 33
44. Good Faith; Consent or Approval 33
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Exhibits
A Legal Description of Redevelopment Area
B Legal Description of Redevelopment Project Areas
C Redevelopment Schedule
D Redevelopment Project Cost Budget
E Site Plan
F Form of Transferee Agreement
G Individual Project Improvements and Costs
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TAX INCREMENT FINANCING CONTRACT
THIS TAX INCREMENT FINANCING CONTRACT (the "Contract") is made and
entered into as of the day of , 2016 (the "Effective Date"), by
and between THE CITY OF JEFFERSON CITY, MISSOURI ("City"), and PGE
HOSPITALITY, INC., a Missouri corporation ("Developer"), to implement the
redevelopment plan more fully described herein.
Recitals.
A. The Tax Increment Financing Commission of Jefferson City, Missouri (the
"Commission") on June 23, 2016, held a public hearing and voted on its
recommendations to the City Council regarding the Truman Hotel 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 two (2)
redevelopment projects (the "Redevelopment Projects") in Jefferson City, Missouri
which consists of the "Project Improvements" described in Section 5 herein.
C. By Ordinance No. _ , adopted by the City Council of City (the "City
Council") on August 15, 2016, 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 Projects described in the Redevelopment Plan.
NOW, THEREFORE, for and in consideration of the promises and 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 31 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. "City," the City of Jefferson, Missouri.
D. "City Administrator," the designated administrator of the City.
E. "City Code," the municipal code of the City.
F. "City Council," the governing body of the City.
G. "City Engineer," the designated engineer for the City.
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H. "City Fiscal Officer," the Director of Finance and Information
Technology for the City.
I. "Commission" or "TIF Commission," the Tax Increment
Financing Commission of the City.
J. "County," Cole County, Missouri.
K. "County Assessor," the assessor of Cole County, Missouri.
L. "County Collector," the collector of Cole County, Missouri.
M. "Developer," PGE Hospitality, Inc., its successors and
assigns, subject, however, to the provisions of Section 24 hereof.
N. "Economic Activity Account," the separate segregated
account within the Special Allocation Fund into which Economic Activity
Taxes shall be deposited.
O. "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, , 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 the
designation is terminated pursuant to Subsection 2 of Section 99.850 of
the TIF Act.
P. "Financing Costs," all costs reasonably incurred by the
Developer, the City, or other issuer in furtherance of the issuance of
Private Loans or Obligations (Said Obligations shall only be issued if
approved by the City Council, no approval will be required by City Council
for Private Loans), 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, including attorney 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
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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 in the
Redevelopment Projects. Financing Costs/Interest Expense During
Construction" is not a cost included in "Financing Costs" and is a cost
included in "Reimbursable Project Costs" as estimated on Exhibits D and
G as part of the $8.9 million NPV of total reimbursable costs. Funding
Agreement," the agreement between the City and the Developer entered
into on October 12, 2015, regarding the Developer's payment of costs and
expenses incurred by the City as a result of the Redevelopment Project.
Q. "Land Use Approvals," those approvals required pursuant to
City's zoning and subdivision regulations for the construction of the
Redevelopment Project.
R. "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, 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.
S. "Obligations," any bonds approved by the City Council and
Issued to pay for Redevelopment Project Costs.
T. T. "Ordinance," an ordinance enacted by the City
Council.
U. "Payment in Lieu of Taxes," those estimated revenues from
real property in the area selected for a redevelopment project, which
revenues according to the redevelopment project or plan are to be used
for a private use, which taxing districts would have received had a
municipality not adopted tax increment allocation financing, and which
would result from levies made after the time of the adoption of tax
increment allocation financing during the time the current equalized value
of real property in the area selected for the redevelopment project
exceeds the total initial equalized value of real property in such area until
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the designation is terminated pursuant to subsection 2 of Section 99.850
of the TIF Act.
V. "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.
W. "Prime Rate," the prime rate reported in the "Money Rates"
column or any successor column of The Wall Street Journal, currently
defined therein as the base rate on corporate loans posted by at least
seventy-five percent (75%) of the nation's thirty (30) largest banks. If The
Wall Street Journal ceases publication of the Prime Rate, then "Prime
Rate" shall mean the "prime rate" or "base rate" announced by an
equivalent publication that evaluates the same criteria as The Wall Street
Journal to report such rate.
X. "Private Loans," private loans obtained by the Developer, or
its successors, assigns or transferees, from third party private lending
institutions to fund Reimbursable Project Costs. Financing Costs, as
defined in Section 2.P 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.
Y. "Project Improvements," shall have the meaning assigned in
Section 5.
Z. "Redevelopment Plan," means the Truman Increment
Financing Redevelopment Plan approved by the City Council by
Ordinance No. on August 15, 2016, and any amendments
thereto.
AA. "Redevelopment Project," the renovation and rehabilitation of
the Truman Hotel, as set forth in the Redevelopment Plan and this
Contract. The Redevelopment Plan anticipates two separate
Redevelopment Projects: thus, this term may be used both singularly or
plural as the context demands.
BB. "Redevelopment Project Cost Budget," the budget setting
forth the Redevelopment Project Costs, 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.
CC. "Redevelopment Project Costs," include the sum total of all
reasonable or necessary costs incurred or estimated to be incurred, and
any such costs incidental to the Redevelopment Plan and the
Redevelopment Projects as applicable. Such costs include, but are not
limited to the costs set forth in Exhibit D, and Including:
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(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.
DD. "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,
Economic Activity Taxes, and revenue as are set forth in the
Redevelopment Project Cost Budget and elsewhere in this Contract, plus
Financing Costs. Reimbursable Project Costs include the portion of
Redevelopment Project Costs incurred by City and, to the extent included
in the Redevelopment Project Cost Budget as being funded or reimbursed
with Payments in Lieu of Taxes, Economic Activity Taxes, or, Developer
as a result of: preparing, reviewing and adopting the Redevelopment Plan
or the Redevelopment Project; designation of the Redevelopment Project
Area; planning, financing, acquiring and constructing of the
Redevelopment Project; and any other work authorized by the
Redevelopment Plan; the oversight of the construction of the
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Redevelopment Project, the implementation of the Redevelopment Plan,
and the management of the Special Allocation Fund. Land acquisition
shall not be a Reimbursable Project Cost. An estimate of Reimbursable
Project Costs is established in Exhibit D.
EE. "Site Plan," the site plan or plans generally depicting the
Project Improvements attached hereto as Exhibit E.
FF. "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.
GG. "TIF Act," the Real Property Tax Increment Allocation
Redevelopment Act, Section 99.800, et seq., RSMo, as amended.
HH. "Tax Increment Financing," tax increment allocation
financing as provided pursuant to the TIF Act,
II. "Taxing Districts," any political subdivision of this state
having the power to levy taxes on sales or property in the Redevelopment
Area.
JJ. "TIF Revenue," Payments in Lieu of Taxes and Economic
Activity Taxes and all interest earned on funds deposited in the Special
Allocation Fund.
KK. "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
depicted on the map and legally described in Exhibit A attached hereto.
4. Redevelopment Project Areas.
A. The Redevelopment Area consists of two (2)
Redevelopment Project Areas 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.
B. Designation of Redevelopment Project Area. Tax Increment
Financing with respect to the individual Redevelopment Projects shall
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become effective only upon the approval thereof by an Ordinance of the
Council (the "Redevelopment Project Ordinance
5. Project Improvements. 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. The Project Improvements generally include
but are not limited to the following:
A. demolish the existing hotel buildings;
B. construct two multi-story hotels, the first being a 121 room
Holiday Inn & Suites, the second being a 145 room Courtyard by Marriott,
or hotels substantially similar in size, quality, and character" providing at
least 266 rooms;
C. fully renovate and remodel the existing conference space in
to a 20,000 square foot conference, meeting, and events center;
D. reconfigure the surface parking and ingress/egress; and
E. provide improved parking areas, signage, landscaping, and
exterior lighting.
The estimated costs of the improvements in each of the two
Redevelopment Project Areas are described in Exhibit G.
6. Redevelopment Schedule.
A. It is the intention of the parties that development activities for
the Redevelopment Project be substantially commenced and completed
on or before the estimated dates set forth on Exhibit C, as may be
reasonably amended from time to time, attached hereto and incorporated
herein by reference (the "Redevelopment Schedule"). Developer shall
construct all Project Improvements, and shall 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. The parties recognize and agree that date of approval,
market and other conditions, as well as the timing of any required
approvals by the City Council, may affect the Redevelopment Schedule.
Therefore, the Redevelopment Schedule is subject to change and/or
modification, upon agreement between the parties.
B. Any amendment to the Redevelopment Plan that is agreed
upon by and between the parties as provided herein shall immediately
operate and be deemed to be an amendment to the approved
Redevelopment Schedule and the provisions of this Contract. Developer
shall render such reasonable aid and assistance as requested by City to
ensure 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 the
Developer fails to complete the project timely solely due to the negligence
or in action of Developer, and provided that the City has fulfilled all of the
terms of this Contract and provided that the delay has not been caused by
event not otherwise in control of the Developer, City may 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 30 hereof.
7. Design Criteria and Review Procedures for Project Improvements.
A. The construction plans, site plans and building elevations for
the Project Improvements shall conform to the Site Plan. In order to
ensure 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) The Developer shall comply with and/or follow controls and
design criteria relating to all improvements as required by the City Code
and all other applicable laws and regulations.
(2) No Project Improvements shall be commenced or made
unless and until all the construction plans therefore, in the detail herein, or
any changes thereto, shall have been submitted to City staff, all in
accordance with Section 7.A.(1) above. It is expressly acknowledged that
Developer may commence construction of the Project Improvements prior
to the approval of a Site Plan, provided that the construction plans for
such Project Improvements are in conformance with Legal Requirements.
(3) 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
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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.
(4) 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 8.A hereof and as required by Legal Requirements.
(5) Unless otherwise provided by law, neither City, nor any
officer, director, elected official, commissioner, member, employee or
agent of the same, shall be liable to Developer with respect to construction
plans or modifications submitted for approval.
8. 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, during the construction
phase Developer hereby grants to City, its agents and employees the right
to enter at reasonable times for the purpose of inspecting the
Redevelopment Project which shall be done by appointment in presence
of a representative of Developer.
9. Certificate of Substantial Completion and Compliance.
A. Upon the completion of construction of a Redevelopment
Project, Developer shall submit a report certifying that the Project
Improvements contained therein have been substantially completed in
accordance with the Redevelopment Plan and that it is in material
compliance with all other provisions of this Contract. Developer shall, as
part of its report, submit its certificate setting forth on an aggregate basis
and to Developer knowledge, a reasonable estimate of (1) the total cost of
completing the Project Improvements; and (2) Redevelopment Project
Costs incurred which are eligible for reimbursement pursuant to the
Redevelopment Plan or which have been paid for or are to be reimbursed
with the revenues deposited in the Special Allocation Fund.
B. The City Employee that will conduct the inspections and
issue the certificate of substantial completion may conduct an
investigation and if the City Employees determines that the
Redevelopment Project or any portion 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, all of the
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obligations of Developer that are due at the time of the request pursuant
to this Contract have been performed, then it shall issue a Certificate of
Completion and Compliance within fifteen days of submittal of request by
Developer. If City Employee determines that the Redevelopment Project
or any portion thereof which is the subject of an investigation or review
under this Section 9.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 the Employee shall not
issue a Certificate of Completion and Compliance and shall specify in
writing the reason or reasons for withholding the certification and shall
describe the measures required to correct any and all matters deemed not
substantially completed in material accordance with the Redevelopment
Plan. . If the City Employee does not respond within said fifteen day
period, the City shall be deemed to have issued a Certificate of
Substantial Completion and Compliance and Developer may record
documentation in the Records of Cole County evidencing such issuance
without any further action required by the City.
(1) The issuance or deemed 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 applicable Project Improvement
within the dates for the beginning and completion thereof, but shall not
prevent City from future action in the event of any subsequent default by
Developer in the performance of any of its other obligations under this
Contract.
(2) Each such certificate issued or deemed 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.
The City shall respond within fifteen (15) days to all requests by Developer
for the issuance of a certificate or hearing under this Section.
10. Financing Certificate.
11. A. Developer has delivered to City its certificate stating that to the best
of its knowledge and belief; (1) the sources of funds and financing commitments
described in the financing plan will enable Developer to timely implement the
Redevelopment Project by constructing the Project Improvements contained therein; (2)
the information and statements contained in the Financing Plan, taken as a whole, are
accurate in all material respects and complete for the purposes for which used and
made; and (3) the information and statements contained in the Financing Plan do not
fail to state any material facts necessary in order to make the statements or
representations made in the Financing Plan, in light of the circumstances under which
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they were made, not misleading. Developer's warranties and representations as set
forth herein shall be deemed to be ongoing until termination or expiration of this
Contract 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. Pay-As-You-Go. Reimbursement of the Developer's and
City's eligible project costs shall be made from available revenues
deposited in the Special Allocation Fund as provided in this Contract. The
City will not issue any bonds to fund Reimbursable Project Costs.
12. Conditions Precedent to Developer's Duties. Developer's obligations
hereunder are expressly conditioned upon the occurrence of each of the following
events:
A. City approval of the Financing Plan if necessary pursuant to
Section 10;
B. Subject to the terms of Section 7.A 44 City approval of all
zoning, subdivision and permit applications required for implementation of
the Redevelopment Plan;
C. Developer obtaining the financing substantially in
accordance with the terms set forth in the Financing Plan, provided such
financing is deemed satisfactory in the sole discretion of Developer to
implement the Redevelopment Plan; and
13. 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 including that the City shall process timely and
consider all requests of Developer and applications of Land Use Approvals as received
in accordance with the applicable City Ordinances and the laws of the State of Missouri.
Conditions Precedent to City's Duties. City's obligations hereunder are expressly
conditioned upon the occurrence of each of the following events:
A. City approval of the Financing Plan if necessary pursuant to
Section 10;
B. Subject to the terms of Section 7.A (2), City approval of all
zoning, subdivision and permit applications required for implementation of
the Redevelopment Plan;
C. C. Developer obtaining the financing substantially in
accordance with the terms set forth in the Financing Plan, provided such
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financing is deemed satisfactory in the sole discretion of Developer to
implement the Redevelopment Plan; and City approval of the voluntary
annexation of the Developer owned Comfort Suites and Hampton Inn
hotel projects into the City's jurisdictional boundaries.
D.
City and Developer agree to use good faith efforts and cooperate with and
assist each other in accomplishing all of the foregoing conditions precedent.
14. 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
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 County of Cole on each such
tax parcel as constituted from time to time and shall be enforceable
against the 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)under the provisions of
Section 30 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
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Ordinance, City shall use all reasonable and diligent efforts to promptly
notify the County Assessor, County Collector, the City Fiscal Officer 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.
15. 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 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 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 Fiscal Officer 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 16 hereof 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
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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. Certification by City. City, following reasonable research and
investigation, using independent consultants, accountants and counsel
shalt 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.
16. Special Allocation Fund.
A. The City Fiscal Officer shall establish and maintain the
Special Allocation Fund which shall contain the following two (2) separate
segregated accounts:
(1) Payments in Lieu of Taxes shall be deposited into the
Payment in Lieu of Taxes Account within the Special Allocation Fund.
(2) Economic Activity Taxes shall be deposited into the
Economic Activity Account within the Special Allocation Fund.
(3) -
B. Payments in Lieu of Taxes and Economic Activity Taxes so
deposited and any interest earned on such deposits will be used for the
payment of Reimbursable Project Costs, including Financing
Costs/Interest Expense During Construction, the retirement of the
Obligations and for the distribution to the Taxing Districts, in the manner
set forth in the Redevelopment Plan and this Contract.
17. Disbursements from Special Allocation Fund. Subject to satisfaction of
the conditions precedent established in Section 13, the City will make disbursements
from the Special Allocation Fund in the following manner and order of priority:
A. Payment of fees and expenses incurred by the City in the
administration of the Redevelopment Plan and this Contract as detailed in
Section 39.Ahereof, said costs to reimbursable from TIF funds, said
reimbursement to be above and beyond the reimbursable amounts outline
in Exhibit d and G.to the extent not reimbursed pursuant to the Funding
Agreement referenced in Section 39 hereof;
B. Reimbursement of Reimbursable Project Costs; provided
that any such disbursements from the Special Allocation Fund shall be
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divided equally between the City and the Developer until such time that
the City has been fully reimbursed for its administrative costs and
expenses not paid under the Funding Agreement as provided for in
Section 39.
18. Reimbursable Project 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 of 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.
(1) The Developer shall submit requests for reimbursement from
TIF Revenues and Revenues deposited into the Special Allocation Fund
on a form provided by the City's finance department (the
"Reimbursement Request"). Each reimbursement request shall specify
the total actual costs (whether or not reimbursement is requested for any
portion) incurred by the Developer, both cumulatively and for the specific
request being sought, and shall be accompanied by copies of invoices,
canceled checks or such other reasonable confirmation of payment,
receipts, lien waivers, and such other supporting documentation related to
the requested reimbursement as the City shall reasonably require.
(2) The Reimbursement Request shall (a) identify each item of
Reimbursable Project Cost by line item category in the Redevelopment
Project Cost Budget separately; (b) aggregate all costs in the
Reimbursement Request by line item category as set forth in the
Redevelopment Project Cost Budget or elsewhere in this Contract; (c)
include a report setting forth the total amount, by line item category from
the Redevelopment Project Cost Budget, of all Reimbursable Project
Costs set forth in the then-current Reimbursement Request and all prior
Reimbursement Requests approved by City or for which approval is
pending; and (d) include a report setting forth the percentage of work, by
line item category from the Redevelopment Project Cost Budget,
completed as of the date of the current Reimbursement Request.
C. Reimbursement of Reimbursable Project Costs. Land
acquisition shall not be a reimbursable project cost. Development Costs
related to Hard Construction Costs and Soft Renovation Costs shall be
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reimbursed from TIF funds in accordance with the ratio established in the
Sources and Uses of Funds & Estimated Redevelopment Project Costs
and Reimbursable Project Costs budget included as Appendix C of the
Redevelopment Plan (i.e., 15.6% of Redevelopment Project Costs;
provided, however, that in no event shall the aggregate amount of
reimbursement from TIF sources of funds exceed the Total Development
Costs total indicated for the respective source of funds column for TIF
(i.e., $19,078,295, which has a net present value of $8,890,468). Except
with respect to land acquisition, and subject to statutory requirements for
the use of TIF Revenues and funds, the Developer may shift costs among
the line item costs in each column of sources of funds categories;
however, Developer may not (i) transfer to line items that are not approved
as Reimbursable Project Costs (i.e., show a zero balance in the
Reimbursable Project Costs columns of Appendix C of the
Redevelopment Plan); (ii) add to the Developer Fee; or (iii) add to the
Hard Cost or Soft Cost Contingency line items. The City shall not be
responsible for payment of the balance of the Reimbursable Project Costs
to the Developer should the TIF and Hotel funds be insufficient.
D. City Review of Reimbursement Requests. Within 15 days of
receiving the Developer's presentation to the City Employee designated, 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.
(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 promptly state the
reasons for such disapproval to Developer and shall describe the
necessary actions required to cause the Reimbursement Request
to be approved. Developer shall respond to any such response to
a request by amending the request in accordance with such
response and by resubmitting the Reimbursement Request to the
[City employee] for reconsideration within 15 days of receiving such
response. Any such disapproval may be appealed by Developer.
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
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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.
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. All Reimbursement Requests and Draw
Certificates for City Reimbursable Project Costs shall be submitted
by the City Administrator or his designee to Developer for review,
verification, and approval. If Developer determines that the request
accurately reflects reimbursement of such costs to the City under
this Contract and the Redevelopment Plan, Developer shall notify
City of Same and City may disburse such funds as may be
available from the Special Allocation Fund. If Developer
determines otherwise, Developer shall promptly state in writing to
the City the reasons why and describe the action required to cause
the request to be approved. At Developer's request, City shall
provide to Developer a report detailing any and all Reimbursement
Requests and Draw Certificates for City Reimbursable Project
Costs approved by the City Administrator. The City Administrator
or his designee shall respond within a reasonable time period not to
exceed thirty (30) days to all requests for approval under this
Section.
E. Payment of Interest Expenses
(1) Interest Generally: The Developer is eligible to be
reimbursed for interest incurred on the principal amount of certified
Reimbursable Project Costs pursuant to this Section.
(2) Third Party Borrowing: In the event Developer incurs
Financing Costs, including actual interest, on amounts Developer was
loaned to finance and pay for Reimbursable Project Costs from a third
party in an arms-length transaction the City shall reimburse Developer as
a Reimbursable Project Cost the actual Financing Costs accrued and
certified pursuant to the TIF Contract. Interest subject to reimbursement
shall not exceed the Prime Rate plus 3%, and will not compound.
(3) Other Types of Borrowing: In the event the Developer
obtains financing through equity or an Affiliate lender, reimbursement of
interest for such lending may require the mutual agreement of the parties.
(4) Interest Paid Not Included in Total Reimbursable Project
Costs. Any interest paid or reimbursed to Developer pursuant to this
Section shall not be included as an expense against the total amount set
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out in the Redevelopment Project Cost Budget for Reimbursable Project
Costs.
Certification of Interest Expenses. For purposes of calculating interest
expenses for reimbursement pursuant to this Section, Developer shall
certify its interest pursuant to this Section as a separate item on a
Reimbursement Request submitted to the City pursuant to Section 19 D.
of this Contract.
19. Reimbursement Adjustments Based on Actual Costs and Revenue.
A. Adjustments Based on Certified Costs: If actual total
certified project costs result in a savings of more than thirteen (13) percent
than the amount shown on the Redevelopment Cost Budget, then the
aggregate principal amount of Reimbursable Project Costs shall be
decreased by the incremental amount over thirteen (13) percent (e.g., if
actual costs are fourteen (14) percent less than projected, then the
aggregate principal amount of Reimbursable Project Costs would be
decreased by one (1) percent; however, if actual costs are 13% less than
expected, then no adjustment would be made). In order to determine the
total actual certified project costs the Developer shall submit to the City all
costs associated with the Redevelopment Plan, including both
reimbursable and non-reimbursable costs.
B. Adjustments Based on Actual Revenue: If actual project
revenue on each individual project exceeds the Developer's projections by
more than fourteen (14) percent then the principal amount of
Reimbursable Project Costs shall be decreased in the incremental amount
over fourteen (14) percent (e.g., if revenue is fifteen (15) percent more
than projected, then the principal amount of Reimbursable Project Costs
on a per project basis would be decreased by one (1) percent). Revenue
calculations shall accrue cumulatively on a per project basis (e.g., if
increased revenue of fifteen (15) percent resulted in Reimbursable Project
Costs being decreased by one (1) percent in a given adjustment year,
followed by a revenue increase of thirteen (13) percent in a subsequent
adjustment year, then the cumulative adjustment to Reimbursable Project
Costs would be zero (0) percent, i.e., no change). In order to determine
actual project revenue the City shall rely on calculations derived from the
City's lodging tax receipts as provided by the Jefferson City Convention
and Visitors Bureau.
C. Timing of Adjustments: Adjustments related to actual costs
shall be made at each project's completion as set forth in Section 9, while
adjustments for actual revenue shall be made five (5), ten (10), fifteen
(15), and twenty (20) years following the approval of an ordinance by the
City Council activating each of the respective projects as outlined in the
Redevelopment Plan.
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20. Payment of Project Costs - "As Collected" Basis. Reimbursable Project
Costs are to be reimbursed from the Special Allocation Fund on an "as collected" basis.
Developer shall present to the City a Reimbursement Request for the City's certification
pursuant to the procedure set forth in Section 19. The City shall disburse to Developer
sufficient proceeds from the Special Allocation Fund and in accordance with the
priorities specified in Section 18, to the extent such funds are available in the Special
Allocation Fund, to pay those amounts identified on the certified Reimbursement
Request within thirty (30) 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.
21. 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 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.
22. 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 ad valorem
taxes assessed on property in the Redevelopment Project Area, including but not
limited to, City, State, and County taxes, shall no longer be subject to capture and
redirection and shall be subject to assessments and payment 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.
23. Sale or Disposition of Project Property.
A. Purchasing Entity. During the Construction of the
Redevelopment Projects, as a condition precedent to the transfer of any
property interest within the boundaries of the Redevelopment Area to any
transferee, other than a Lender, the Developer shall require the transferee
to enter into, and shall deliver to the City, an agreement in a form that is in
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substantial compliance with the form set forth in Exhibit F attached hereto
and incorporated herein ("Form of Transferee Agreement") or upon
other terms requested by such transferee and acceptable to City
obligating the transferee to comply with the requirements of the
Redevelopment Plan and the obligations in this Contract relating to the
property. Upon execution of such agreement, the Developer shall be
released from its obligations in this Contract relating to said transferred
property.
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.
C. Obligation to Ameliorate Existing Conditions. Developer's
obligations pursuant to Section 5 hereof, unless earlier satisfied and
certified pursuant to Section 9 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 Section 24
hereof, shall be incorporated into any deed or other instrument conveying
an interest in real property during Construction, other than a lease
agreement, 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 any or all of the real property in the Redevelopment Area or any interest
therein. Such notice shall be provided not greater than thirty (30 ) days
after the proposed effective date of the sale or other transfer in a manner
as described in Section 24 hereof and shall include a copy of the
instrument effecting such sale or other disposition to enable City to
confirm that the requirements set forth above in this Section 24 hereof
have been fulfilled. Notwithstanding anything to the contrary herein, prior
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to Developer's sale or other transfer of any or all of the real property in the
Redevelopment Area or any interest therein during the Construction of
either Redevelopment Project Area, Developer must obtain the consent to
such sale or transfer by the City Council, such consent not to be
unreasonably withheld.
24. Progress Reports.
A. At the first regularly-scheduled meeting of the City Council
following the first anniversary of the execution of this Contract, and upon
the City's written request thereafter (not to exceed more than once per
year) until all Project Improvements are completed, 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;
and
(5) estimated start date of Project Improvements not yet
commenced at date of report.
B. Developer shall from time to time furnish such other reports
on specific matters not addressed by the foregoing as City may
reasonably require.
25. Compliance with Laws.
A. 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.
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B. Developer represents that it is aware that City shall comply
with all applicable laws regarding the public availability of documents and
records, including but not limited to Chapter 610, RSMo.
26. Assignment of Developer's Obligations.
A. Without limiting the rights of Developer or any third party
under Section 24, during the Construction phase of either Redevelopment
Project Area, 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, which consent will
not be unreasonably withheld. Any proposed assignee shall have all of
the qualifications and financial responsibility, as reasonably determined by
the City, necessary and adequate to fulfill the obligations of Developer,
and, if the proposed assignment relates to a portion of the Redevelopment
Area, such obligations to the extent that they relate to such portion of the
Redevelopment Area.
B. Any proposed assignee shall, utilizing a form substantially
similar to the form attached hereto as Exhibit F (the "Assignment
Agreement"), expressly for the benefit of City, assume all of the
obligations of Developer under this Agreement and agree to be subject to
all the conditions and restrictions to which Developer is subject (or, in the
event the assignment is of or relates to a portion of the Redevelopment
Area, such obligations, conditions and restrictions to the extent that they
specifically relate to such portion). For purposes of this section, any sale,
transfer, assignment, pledge or hypothecation of an interest in Developer
(other than to a lender or an Affiliate of Developer) that results in a change
in management control of Developer will constitute an assignment of this
Agreement. Upon approval of the Assignment Agreement by City as set
forth herein, Developer shall be released from such obligations accruing
after the date of such assignment, and any default by any such assignee
shall not affect Developer's rights under this Agreement, including the right
to reimbursement from TIF Revenue generated within the Redevelopment
Area.
C. Notwithstanding the provisions of this Section 27, for
purposes of securing financing, Developer may, without the City's consent,
assign, hypothecate, or pledge to the party providing financing
Developer's right to receive reimbursement for Reimbursable Project
Costs incurred, but Developer shall provide City with notice of any such
assignment, hypothecation, or pledge. Such assignment or pledge shall
remain subject to the terms, provisions and conditions of this Agreement.
Upon the request of Developer, City agrees to execute documentation that
may be required by any such entity providing financing, which evidences
the City's consent to any such assignment, hypothecation, or pledge.
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27. 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.
(4) Governmental or Corporate Consents. Except for approval
of this Contract by Ordinance of the City Council, 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.
(6) Construction Permits. The City reasonably believes that all
permits and licenses necessary to construct the Project Improvements can
be obtained.
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B. 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.
(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
25
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 Private 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 Private 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, after due inquiry of the appropriate
governmental officials, that such permits and licenses will be issued in a
timely manner in order to permit the Private Project Improvements to be
constructed.
(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.
(11) Project. The Developer represents and warrants that the
Redevelopment Area is of sufficient size to construct the Project as
contemplated in the Plan and this Contract.
28. Indemnification.
A. Developer shall indemnify, protect, defend and hold City and
its officers, directors, elected officials, members, commissioners,
employees and agents (collectively, the "Indemnified Parties" or,
individually, an "Indemnified Party") harmless from and against any and
26
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.
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
Indemnified Party Developer of the occurrence of such event, 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
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 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 they 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
27
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 shall
survive the termination of this Contract.
29. Breach-Compliance.
A. If Developer or City does not comply with provisions of this
Contract, including provisions of the Redevelopment Plan, within the time
limits and in the manner for the completion of the Redevelopment Project
as therein stated, except for any extensions or waivers described herein
and Excusable Delays (as defined in Section 31 hereof), in that
Developer or City shall do, permit to be done, or fail or omit to do, or shall
be about so to do, permit to be done, or fail or omit to have done, anything
contrary to or required of it by this Contract or the TIF Act, 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 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 the non-defaulting party may 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 party in default of its obligations and, in the case of default by
Developer, City is granted the right to terminate this Contract, the right to
apply any deposit or other funds submitted by Developer to City in
payment of the damages suffered by it, the right to withhold or apply funds
from the Special Allocation Fund to such extent as is necessary to protect
City from loss or to ensure that the Redevelopment Plan and the
Redevelopment Project are fully and successfully implemented in a timely
fashion, and the right to withhold issuance of a Certificate of Completion
and Compliance.
B. If any action is instituted by either party hereunder, the non-
prevailing party in such action shall pay any and all costs, fees and
expenses, including attorneys' fees incurred by the prevailing party in
enforcing this Contract.
C. The rights and remedies of the parties to this Contract,
whether provided by law or by this Contract, shall be cumulative and the
exercise by either party of any one or more of such remedies shall not
preclude the exercise by it, at the same or different times, of any other
28
remedies for the same default or breach. No waiver made by either party
shall apply to obligations beyond those expressly waived.
D. Developer (for itself and its successors and assigns, and for
all other persons who are or who shall become liable, by express or
implied assumption or otherwise, upon or subject to any obligation or
burden under this Contract), waives to the fullest extent permitted by law
and equity all claims or defenses otherwise available on the ground of
being or having become a surety or guarantor, whether by agreement or
operation of law. This waiver includes, but is not limited to, all claims and
defenses based upon extensions of time, indulgence or modification of
terms of contract.
E. 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.
F. 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
30.A herein, and City has provided notice of such default as required
under Section 30 . 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 30 .F 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.
G. 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, elected official, commissioner, member, employee, or agent of
any of them, except that this Section 28.G shall not be prevent the award
of attorneys' fees under Section 30.B hereof in the event of a default by
City under this Contract. Actions brought in equity or which otherwise do
not seek to recover damages are not precluded by this Section, nor are
actions brought against any officer, director, elected official,
29
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.
30. 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. Nothing herein shall excuse Developer
from any obligation to pay money hereunder, nor shall this Section excuse Developer
from performance of its obligations because of a lack of funds or inability to obtain
financing, except as provided in Section 12 hereof and except if financing commitments
obtained by Developer and approved by City as provided in this Contract are not fulfilled
by the party issuing such commitment through no fault of Developer, in which case
Developer shall be entitled to additional time not to exceed one hundred eighty (180)
days to obtain new financing commitments.
31. 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
30
Any notice to Developer shall be addressed to:
PGE Hospitality, Inc.
422 Monroe Street
Jefferson City, MO 65101
With a copy to:
Puri Law Firm, LLC.
3405 Beech Cove Court
Columbia, MO 65203
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.
32. 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.
33. 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 29
hereof.
34. Recording. Upon full execution by City and Developer, this Contract or a
memorandum thereof shall be recorded by City, at Developer's 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.
35. Applicable Law. This Contract shall be governed by and construed in
accordance with the laws of the State of Missouri.
36. 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, and every
successor in interest to the subject real property, or any part of it or any interest in it and
any party in possession or occupancy of the real property or any part thereof (provided,
subject to the provisions of Section 35 hereof, that any such covenants shall be binding
on Developer itself, such successor in interest to the subject property, and every part of
31
the subject real property, and each party in possession or occupancy of the subject real
property or any part thereof, only during their period of ownership).
37. Relocation Costs. To the extent necessary, individuals or entities that
may be required to relocate in implementation of the Redevelopment Plan will be
processed pursuant to the relocation policy included in the Redevelopment Plan.
38, City's Administrative Costs and Expenses.
A. Basis For Administrative Fee: In order to reimburse the City
for its administrative costs and expenses (including staff time and
contracted services) in connection with the ongoing administration of the
Redevelopment Plan and TIF Contract, and any other agreements related
thereto, the City shall be entitled to a fixed administrative fee in the
amount of seven thousand five hundred dollars ($7,500.00) per fiscal year,
which shall increase five (5) percent annually but shall not exceed ten
thousand dollars ($10,000.00) (the "City Administrative Fee"). If the
balance of the aggregate amount of City Administrative Fees collected but
not yet spent is equal to or greater than $30,000, further City
Administrative Fee deposits will not be made; however, the City may at
any time thereafter reinstate annual City Administrative Fee payments in
the amounts described herein if the City has incurred costs that have
caused the balance of the aggregate City Administrative Fees collected
buy not yet spent to be less than $30,000 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.
B. Payment of Administrative Fee: The City Administrative Fee
shall be reimbursed from the Special Allocation Fund but shall not be
deducted from the aggregate amount of the Developer's Reimbursable
Project Costs. Reimbursement of the City Administrative Fee shall occur
when funds are available in the Special Allocation Fund. The City shall be
responsible for any and all administrative costs and expenses that exceed
the then-current City Administrative Fee.
39. 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.
32
40. Time and Performance are of the Essence. Time and exact performance
are of the essence of this Contract.
41. 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.
42. 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.
43. Good Faith; Consent or Approval. In performance of this Contract or in
considering any requested extension of time, the parties agree that each will act in good
faith, cooperate in expeditious and timely approvals, and will not act unreasonably,
arbitrarily, or capriciously or unreasonably withhold or delay any approval required by
this Contract. 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 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 Developer's 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 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.]
33
IN WITNESS WHEREOF, the parties hereto have executed this Contract the day
and year first above written.
CITY:
CITY OF JEFFERSON, MISSOURI,
a municipal corporation
By:
Carrie Tergin, Mayor
ATTEST:
By:
Phyllis Powell, City Clerk
STATE OF )
}
COUNTY OF ) ss.
On this day of , 2016, before me personally appeared
Hon. Carrie Tergin, to me known, who being by me duly sworn, did say that she is the
Mayor of The City of Jefferson, 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.
Print Name:
Notary Public in and for said County and State
My Commission Expires:
34
DEVELOPER:
PGE HOSPITALITY, INC.,
a Missouri corporation
By:
Print Name: Dr. Ravi K. Puri
Title: President and CEO
STATE OF )
COUNTY OF ) ss.
On this day of , 2016, before me personally appeared
, to me known to be the person described in and who
executed the foregoing instrument, who being by me duly sworn, did say he is an officer of
PGE Hospitality, Inc., a Missouri corporation, 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 Name:
Notary Public in and for said County and State
My Commission Expires:
35
EXHIBIT A
LEGAL DESCRIPTION OF REDEVELOPMENT AREA
Overall Redevelopment Area
A TRACT OF LAND IN THE SOUTHEAST QUARTER OE SECTION 13,TOWNSHIP 44
NORTH, RANGE 12 WEST,COLE COUNTY, MISSOURI, DESCRIBED AS.
BEGINNING AT A POINT IN THE SOUTHEASTERLY LINE OF OLD MISSOURI!TATE
ROUTE`C" NOW KNOWN AS SOUTHRIDGE DRIVE, SAID POINT BEING THE SOUTHWESTERN
CORNER OF PROPERTY CONVEYED TO BRECKENRIDGE HOTELS CORPORATION, BY DEED
RECORDED IN BOOK 182, PAGE 323;THENCE ALONG SAID SOUTHEASTERLY UNE NORTH 54
DEGREES 48 MINUTES EAS",119.92 FEET,TO A POINT BEING THE INTERSECTION OF THE
SOUTHEASTERLY RIGHT OF-WAY LINE OF OLD ROUTE ":", NOW KNOWN AS SOUTHRIDGE
DRIVE OF THE SOUTHWESTERLY UNE OF OLD ROUTE "Ca CONNECTION NOW KNOWN AS
ZUMWALT ROAD;THENCE ALONG SAID SOUTHWESTERLY LINE,SOUTH 35 DEGREES 15
MINUTES EAST,214.2.5 FEET,TO A POINT IN THE NORTHWESTERLY RIGHT-OF-WAY LINE Of
U.S HIGHWAY NO 54;THENCE ALONG SAID NORTHWESTERLY LINE OF U.S. HIGHWAY NO.
54,SOUTH 35 DEGREES 00 MINUTES WEST, 1019.45 FEET TO THE NORTHEASTERLY CORNER
OF A TRACT OF LAND DESCRIBED IN BOOK 212, PAGE 473,COLE COUNTY RECORDER'S
OFFICE;THENCE LEAVING THE RIGHT•OF•WAY LINE OF SAID U.S ROUTE 54, NORTH 55
DEGREES 00 MINUTES 00 SX.CONDS WEST ALONG THE NORTHERLY LINE Of SAID TRACT AND
THE NORTHWESTERLY EXTENSION THEREOF, 283.00 FEET TO A POINT ON THE WESTERN
BOUNDARY OF A TRACT OF LAND DESCRIBED IN BOOK 232,PAGE 165,COLE COUNTY
RECORDER'S OFFICE;THENCE NORTH 35 DEGREES 00 MINUTES 00 SECONDS EAST, ALONG
SAID WESTERN BOUNDARY 151.00 FEET TO THE MOST SOUTHERLY CORNER OF A TRACT OF
LAND DESCRIBED IN BOOK 255, PAGE 683,COLE COUN—Y RECORDER'S OFFICE, THENCE
NORTH 05 DEGREES 23 MINUTES 44 SECONDS EAST, ALONG THE WESTERLY LINE OF SAID
TRACT, 50.61 FEET TO A POINT ON THE SOUTHERLY BOUNDARY OF THE AFORESAID TRACT IN
BOOK 232, PAGE 165; THENCE NORTH 55 DEGREES 00 MINUTES 00 SECONDS WEST ALONG
THE SOUTHERLY UNE OF SAID TRACT,213.71 FEET TO THE SOUTHEASTERLY LINE OF OLD
MISSOURI STATE ROUTE "C, NOW KNOWN AS SOUTHFIDGE DRIVE, THENCE ALONG SAID
SOUTHEASTERLY LINE OF THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 925 37
TCCT,A DISTANCE Or 70.0 FEET TO A POINT OF TANGENCY, nit NU NORTH 54 OEOREE5 48
MINUTES EAST ALONG SAIC SOUTHEASTERLY LINE 162.25 FEET TO THE POINT OF BEGINNING.
Subject to any and ail easements,conditions, restrictions and other Items, now of record.
EXHIBIT B
LEGAL DESCRIPTION OF REDEVELOPMENT PROJECT AREAS
Redevelopment Project Area 1
A TRACT OF LAND LOCATED IN THE SOUTHEAST QUARTER OF S€(TION 13
T44N R12W, IN THE CI TY OF JEFFERSON, COLE COUNTY, MISSOURI, BEING PART
OF THE TRACT DESCRIBED BY A DEED RECORDED IN BOOK 633 PAGE 962 AND
FURTHER DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE SOUTHEASTERLY LINE OF OLD MISSOURI
STATE ROUTE "C"f NOW KNOWN AS SOU THRIDGE DRIVE, SAID POINT BEING THE
SOUTHWESTERN CORNER OF PROPERTY CONVEYED TO BRECKENRIDGE HOTELS
CORPORATION, BY DEED RECORDED IN BOOK 182 PAGE 323, THENCE
N 54'42'20"E, ALONG SAID SOUTHEASTERLY LINE, 221.20 FEET; THENCE
LEA V7NG SAID LINE, S 55'00'00"E 200.32 FEET; THENCE S 35'00'OO"W
174.50 FEET; THENCE S 5.5'00'00"E 169.50 FEET TO THE NORTHWESTERLY
RIGHT—OF—WAY OF U.S. HIGHWAY 54; THENCE S 35'00'00"W, ALONG SAID LINE,
449.44 FEET TO THE NORTHEASTERLY CORNER OF A TRACT OF LAND
DESCRIBED BY A DEED RECORDED IN BOOK 212 PAGE 473; THENCE
N 55'06"40"W, ALONG THE NORTHERLY LINE OF SAID TRACT, AND THE
NORTH WESTERLY EXTENSION THEREOF, 283.39 FEET TO A POINT ON THE
WESTERN BOUNDARY OF A TRACT OF LAND DESCRIBED BY A DEED RECORDED
IN BOOK 232 PAGE 165; THENCE N 35'07'50"E, ALONG THE WESTERLY LINE OF
SAID TRACT, 152.68 FEET TO THE MOST SOUTHERLY CORNER OF A TRACT OF
LAND DESCRIBED BY A DEED RECORDED IN BOOK 255 PAGE 683; THENCE
N 5'28'30"E ALONG THE WESTERLY LINE THEREOF, 50.57 FEET TO A POINT ON
THE SOUTHERLY BOUNDARY OF A TRACT OF LAND DESCRIBED BY A DEED
RECORDED IN BOOK 232 PAGE 165; THENCE N 54'52'10-W, ALONG THE
SOUTHERLY LINE OF SAID TRACT, 212.74 FEET TO THE SOUTHEASTERLY
RIGHT—OF—WAY LINE OF OLD MISSOURI STATE ROUTE "C", NOW KNOWN AS
SOUTHRIDGE DRIVE; THENCE ALONG SAID LINE, ON A CURVE TO THE RIGHT
HAVING A RADIUS OF 925.37 FEET, A DISTANCE OF 69.63 FEET, THE CHORD
BEING N 5237'40"E 69.61 FEET; THENCE N 54'42'20"E 162.25 FEET TO
THE BEGINNING AND CONTAINING 5.00 ACRES.
(ALL OF THE BOOKS IN THIS DESCRIPT70N ARE IN THE COLE COUNTY
RECORDER OF DEEDS OFFICE)
Redevelopment Project Area 2
A TRACT OF LAND LOCATED IN THE SOUTHEAST QUAR TER OF SECTION 13
T44N R12 W, IN THE CITY OF JEFFERSON, COLE COUNTY, MISSOURI, BEING PART
OF THE TRACT DESCRIBED BY A DEED RECORDED IN BOOK 633 PAGE 962, AND
ALL OF THE TRACT DESCRIBED BY A DEED RECORDED IN BOOK 657 PAGE 8707
FURTHER DESCRIBED AS FOLLOWS:
STARTING AT A POINT IN THE SOUTHEASTERLY LINE OF OLD MISSOURI
STATE ROU TE "C", NOW KNOWN AS SOU7HRIDGE DRIVE, SAID POINT BEING THE
SOUTHWESTERN CORNER OF PROPERTY CONVEYED TO BRECKENRIDGE HOTELS
CORPORATION, BY DEED RECORDED IN BOOK 182 PAGE 323, THENCE
N 544220"E, ALONG SAID SOU TNEASIERLY LINE, 221.20 FEET TO THE POINT OF
BEGINNING.
FROM THE POINT OF BEGINNING, THENCE N 5442'20"E, CONTINUING ALONG
THE SOUTHEASTERLY LINE OF OLD MISSOURI STATE ROUTE "C" NOW KNOWN AS
SOUTHRIDGE DRIVE 498.77 FEET TO 77-IE NOR THEASTERLY CORNER OF THE
TRACT DESCRIBED BY A DEED RECORDED IN BOOK 633 PAGE 962, ALSO BEING
THE NOR,THWESTERL Y CORNER OF A TRACT DESCRIBED BY A DEED RECORDED IN
BOOK 657 PAGE 870; THENCE ALONG THE LINES OF SAID TRACT, N 54'42'20"E
10.00 FEET, THENCE S 3449'10"E 211.78 FEET TO THE NORTHWESTERLY
RIGHT-OF-WAY OF U.S. HIGHWAY 54; THENCE S 35190'OO"W, ALONG SAID LINE,
AND THE SOUTHEASTERLY LINE OF THE TRACT DESCRIBED BY A DEED RECORDED
IN BOOK 657 PAGE 870, A DISTANCE OF 10.65 FEET TO THE SOUTHEASTERLY
CORNER OF SAID TRACT ALSO BONG THE NORTHEASTERLY CORNER OF THE
TRACT DESCRIBED BY A DEED RECORDED IN 800K 633 PAGE 962; THENCE
S 35'00'00"W CONTINUING ALONG THE NORTHWESTERLY RIGHT-OF-WAY OF U.S.
HIGHWAY 54 AND THE SOUTHEASTERLY LINE OF THE TRACT DESCRIBED BY A
DEED RECORDED IN BOOK 633 PAGE 962, A DISTANCE OF 569.76 FEET; 7-HENCE,
LEAVING SAID LINE, N 55'00"00"W 169.50 FEET; THENCE N 35'00'00"E
174.50 FEET; N 55-00'00"W 200.82 FEET TO THE BEGINNING AND CONTAINING
3.64 ACRES.
(ALL OF THE BOOKS IN THIS DESCRIPTION ARE IN THE COLE COUNTY RECORDER
OF DEEDS OFFICE)
EXHIBIT C
REDEVELOPMENT SCHEDULE
* Dates are proposed and approximate
RPA 1 : Expected to commence in fall of 2016; expected to be
completed within 18 months of Start date.
RPA 2: Expected to commence in winter of 2019; expected to be
completed within 18 months of start date.
EXHIBIT D
REDEVELOPMENT PROJECT COST BUDGET
Debt and Equity Financing Detail Table
Total Project
RAMAN
Bedere pinent
Protect Costs Project Costs t:
Equity Contribution
Land Value(E,t ) 54?50.000
Subtotal 54.2 50.000
Hard.Construction Costs
Demolition $750.000 5750.000
Landscaping S200.000 S200.000
Public Space FF.CE 55.0 0.000
C'onmion Area Improvements 53.600.000 53.600.000
New'Structure 527.1 5 3.000
Subtotal - 536.8?3.000 54.550.000
Soft Construction Costs
Architectural. Engineering. SI.040 000 51.040.000
Stuvry
Insurance.Permits and 5800.000 5800.000
Inspections
Financing Costs interest
Expense Dram Construction 52.550.000 51550.000
?►dmmistran e.'(herhead $750.000 5750.000
Legal 55,0.000 5550.000
Developer Fee S4_300.000 53.152.995
Subtotal 59.990.000 58.842.995
E
C ontingency
Eard Cost Contingency(10°x) 53.687+00 53.68730x0
So ft Cost Conrngencv(20.? 51.998.000' 51.998.000'
Subtotal 55.635.300 55.685.300
S56,798,300 $19,078
"It u estimated that less than I 65 I 6$6 of the total project casts will be reimbursed from TIF
Revenues because the net present value of the projected TIF Revenues is only
S3,590.468 See Source of Funds
EXHIBIT E
SITE PLAN
. _
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:fc1g111_1.4.1 141-1-101: ►211.111(.!_1) - - ------- (AL: �9ikat til 1.!4tl.lr'
.-_:aT=yrs- __=_,--- .. -
THE ABO iE SITE PLAN IS PRELIAIINARYAND Sl TBJECT TO CH4NGE
EXHIBIT F
FORM OF TRANSFEREE AGREEMENT
TRANSFEREE AGREEMENT
(Name of Transferee)
This TRANSFEREE AGREEMENT ("Transferee Agreement") is entered into this
day of , 20 , by and between the CITY OF JEFFERSON,
MISSOURI (the "City") and , a corporation ("Transferee").
RECITALS
A. The property to be purchased by Transferee as legally described in
Exhibit A or (B) or (C) attached hereto (the "Property") is part of the Tax Increment
Financing Redevelopment Plan (the "Redevelopment Plan") approved by the City
pursuant to Ordinance No. adopted by the City Council on , 2016 (the
"Redevelopment Plan Ordinance").
B. The Property is subject to that certain Tax Increment Financing Contract
between the City and PGE Hospitality, Inc.., a Missouri Corporation ("Developer"),
dated , 20 , and recorded in the Office of the Recorder of Deeds of Cole County,
Missouri on , 20 as Document No. (the "TIF Contract").
C. , a corporation, is the successor in interest to
Developer with respect to the Property. [Revise as applicable for Property or delete]
D. Section 24 of the TIF Contract requires as a condition precedent to the
transfer of property within the boundaries of the Redevelopment Area (as defined in the
TIF Contract) that the proposed transferee enter into and deliver to the City this
Transferee Agreement, obligating the Transferee to comply with the requirements of the
Redevelopment Plan and the TIF Contract relating to the Property to insure compliance
with requirements for transfer have been met.
E. The City has found that Transferee has satisfied all applicable
qualifications of the TIF Contract, wherein Transferee has demonstrated to the City's
reasonable satisfaction that the Transferee has sufficient financial, management,
property ownership and operation capabilities and that it is committed to the long-term
viability of the Redevelopment Plan as a whole, the Project set forth in the
Redevelopment Plan and the land uses on the Property.
F. The parties desire to enter into this Transferee Agreement in order to
satisfy the condition precedent set forth in Section 24 of the TIF Contract.
NOW, THEREFORE, for and in consideration of the promises and the covenants
entered herein, City and Transferee agree as follows:
1. Transferee has entered into a purchase contract with Developer, pursuant
to which Transferee will acquire the Property.
2. Transferee acknowledges that it has been provided with and/or has
reviewed true and accurate copies of the Redevelopment Plan, the Redevelopment
Plan Ordinance, the TIF Contract and all other documents associated with the
Redevelopment Plan that may be necessary for Transferee to make an informed
decision regarding purchase of the Property with respect to the matters set forth in
those documents and this Transferee Agreement.
3. Transferee acknowledges and agrees that its acquisition of the Property
and the transfer of the Property to Transferee is subject in all respects to the TIF
Contract, the requirements of the Redevelopment Plan, the Redevelopment Plan
Ordinance, and the rights of the City pursuant to the TIF Contract, the TIF Act (as
defined in the TIF Contract), and the Redevelopment Plan Ordinance.
4. Transferee acknowledges and agrees that the Property is or will be
included in a Tax Increment Financing Redevelopment Area ("Redevelopment Area")
created by the City pursuant to the Redevelopment Plan and that certain taxes
generated by Transferee's economic activities, including sales taxes, will be applied
toward Reimbursable Project Costs (as defined in the TIF Contract) when the
Redevelopment Area is activated by the City. Transferee shall forward to the City
copies of Transferee's State of Missouri sales tax returns for the Property located in the
Redevelopment Area when and as they are filed with the Missouri Department of
Revenue, and, upon request, shall provide such other reports and returns regarding
other local taxes generated by Transferee's economic activities in the Redevelopment
Area and/or as the City shall require, all in the format prescribed by the City. Transferee
will set forth the obligation contained in this subparagraph in any further lease or sale
contract affecting the Property.
5. Transferee acknowledges that the Property is or may be subject to
assessment for annual Payments in Lieu of Taxes (as defined in the Redevelopment
Plan, and hereinafter referred to as "PILOTs") when tax increment financing is adopted
for the Redevelopment Project Area by the City. PILOTS are due on November 30 of
each year and are considered delinquent if not paid by December 31 of each year. The
obligation to make said PILOTS shall be a covenant running with the land and shall
create a lien in favor of the City on the Property and shall be enforceable against
Transferee and its successors and assigns in ownership of the Property.
6.. Transferee acknowledges that in the event of the sale, lease, sublease,
assignment, or other voluntary or involuntary disposition of any or all of the Property,
PILOTS with respect to the Property 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 the heirs, executors, administrators, successors and assigns of the
respective parties 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,
tenant, transferee or other possessor thereof were originally a party to and bound by the
TIF Contract. Transferee assumes the duty to notify any purchaser, tenant, transferee
or other possessor of the property its rights, duties and obligations under the TIF
Contract.
7. Transferee acknowledges that Transferee's acquisition of the Property,
and any subsequent conveyance, requires prior review of the sale documents for
compliance with Section 29 of the TIF Contract before completion of sale so long as the
TIF Contract is in full force and effect. Pursuant to the TIF Contract, the City may
require, without limitation, that a subsequent transferee demonstrate to the City's
reasonable satisfaction that it has satisfied all applicable requirements that are imposed
upon a transferee in the TIF Contract, including Section 24 of the TIF Contract.
Transferee acknowledges that the City must be notified in writing of the proposed sale
of the Property prior to the proposed effective date of the sale, which notification shall
include a copy of the instrument affecting such sale along with a statement and
sufficient documentation to demonstrate that the applicable qualifications have been
satisfied as set forth in the TIF Contract with respect to the new transferee. Transferee
acknowledges that its purchase and any subsequent sale of the Property will be subject
to any and all rights of the City or Developer, as are set forth in the TIF Contract, the
Redevelopment Plan, the Redevelopment Plan Ordinance, the TIF Act, and any
cooperative agreement between the City and Developer, with respect to such purchaser
or transferee of the Property.,
8. Transferee acknowledges and agrees that the undertakings of Developer
as set forth in the Redevelopment Plan and the TIF Contract shall inure to and be
binding upon the successors and assigns of Developer, as to the Property, including
Transferee, as if they were in every case specifically named and shall be construed as a
covenant running with the land and shall be enforceable against purchasers or other
transferees as if such purchaser or transferee were originally a party to and bound by
the Transferee Agreement.
9. City acknowledges that upon the full execution of this Transferee
Agreement, the condition precedent set forth in Section24 of the TIF Contract with
respect to the sale of the Property to Transferee shall be deemed satisfied.
10. With the exception of those continuing obligations imposed upon
Developer with respect to the Redevelopment Area as a whole, Transferee and the City
acknowledge that, upon the full execution of this Transferee Agreement, Developer is
hereby released from all its obligations under the TIF Contract relating to the Property.
11, This Transferee Agreement shall be governed by the laws of the State of
Missouri.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal
the day and year last above written.
Print Name:
Notary Public in and for said County and State
My Commission Expires:
DEVELOPER:
PGE HOSPITALITY, INC.,
a Missouri corporation
By:
Print Name:
Title:
STATE OF }
}
COUNTY OF } ss.
On this day of , 2016, before me personally appeared
, to me known to be the person described in and
who executed the foregoing instrument, who being by me duly sworn, did say he
is an officer of PGE Hospitality, Inc., a Missouri corporation, 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 Name:
Notary Public in and for said County and State
My Commission Expires:
TRANSFEREE:
a corporation/LLC/LLC/Partnership/LLP, LP
BY:
Print Name:
Title:
STATE OF )
COUNTY OF ) ss.
On this day of , 2016, before me personally appeared
, to me known to be the person described in and
who executed the foregoing instrument, who being by me duly sworn, did say he
is an officer of PGE Hospitality, Inc., a Missouri corporation, 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 Name:
Notary Public in and for said County and State
My Commission Expires:
EXHIBIT G
INDIVIDUAL PROJECT IMPROVEMENTS AND COSTS
Debt and Equity Financing Detail Table
PROJECT I
i';tlimuted Redociopmsnt Iteimburlubir Projer�t
Project Cc1st% (o}1t%
I:quits Contribution
I +:.,I 1.1;o::t tl 511004,,
tillbtuttli
S1,500001
11,1rd f~unttruciion Cys#+
km++1i.on Sn+t.MPi wl'.,i.4
I ..a; a _ iow' \ vaau
\t.it.0 =+1. St xO°111444
I .('mt Nay, -:z;rlto. fit 1t;n+uw, - �! rttoltof
Nev. `,Ctuitcar•
ublltt,d SI.l,6fs,itlNt S2.075,00(11
Nth ('n+tb
i11i,i111t;!i. I t1 tI,1t.•tatt +II i.4•;/tYai
It ,or anu PutItttt:tttt.l Wo.rotctoo ti:.,+31r!
I math:itrrtO-iS.Intc4e+t Ftroenx ,k,ltar
4'.'tta174tiI1L+11 i t'ti41i , II ii97C tkt4
.-'���r13i4�11ratltl'1111'e[Ili•:iv !.ti+mill P •;;441.111.
I ep.ti w' ,11,.1 �t:;14ftN
1 ksciultrc I.r
5ublulul r:t'" I1i111 `.1.104,647
C IPoi 1mZ Twi
11.tfa1(II-II „61:1:x'.c..t,v v I'I"n, I `-l.I *,I
I',.{n-11 .411110CriO. I,IVu' 1 1",h,. ,1'";11 a1
Sub1111,d S2,21,5,M0 S2.115,90
esrenared that approximately 1696 of the total PRASE I costs wile'be reimbursed from TIE
Revenues because the net present value of she projected TIE Revenues is only
$3,557,353 over a 23►err pend.
Debt and Equity Financing Detail Table
PROJEc i 2
Estimdtcd Rttkteloprntnt ReimbunaAlrk Perini
irtrdy C o,tz "oat,.
Frtuit (uniuihutiiru
I.ra l 4'tlrk I i
Sub Mal
11,i rEl l nervi ruction C'uvlt
1 „:oh-wing 91 °trC:MJ .4k2>J III
}'ta ll. til a< H&l 5.1.225Dill*
rrolltr30 Art^r.t IatgrirrvicettcaS, 9irwirtrr syl if*I I III
". trourr Ylr,.,rr.:, .11.r
Subla,tsi S22,211.4000° S2,J^5,11100
sort()instruction('rtmh
1.tcl1144.'011'1'41.lupo::mt}. ,,I..I, Sy/:-•n YFs:ll+r}.
!i ta°-g-crtr z. .Stine4.
Ircurtame Permits llisil Inp*t:ow �14111•IN!,rt y xII+N
! c lite l:,_
ontittIA:0 ntPeriod i1.i7 .IMti:I tl IIH
AJnttnl;trmitcihcrticad C4j1))1.0.I y►;,I,Ir11
1cm.t1
IA•tckrrirrllce
;5ubtolu) V015,000 05,651,470
:Com&ittryx-.
t.ell i.. .I t 'n oorc.to r l l *2 22,, 4•'. _._'."II
tiI1',40ti ,n:ku nalar .o 1I2rirrrr, til ".,; rtn
Subtotal k3,469,90)0 S3,1ty9,8410
'S.34 7f12',ilt9O:PW 4 °"
'Iris estimared that approxirrareiv 1395 of the ratal PHASE 1 costs will be re bred from TIF
Revenues because the rter present value of the projected TIF Revenues is onty
55,311,615 aver a 23)eerr pend.