HomeMy Public PortalAboutTIF Contract Proposal 7.19.16TRUMAN TIF CONTRACT
JULY 19, 2016
AS PROPOSED BY CITY STAFF AND
CONSULTANTS
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 City Staff and Consultants on July 19, 20161
Table of Contents
1. Rules of Interpretation 1
2. Definitions 2
3. Redevelopment Area 7
4. Redevelopment Project Area 7
5. Project Improvements 8
6. Redevelopment Schedule 8
7. Design Criteria and Review Procedures for Project Improvements 9
8. Control of Project 10
9. Certificate of Completion and Compliance 10
10. Financing Plan 12
11. Funding Sources and Uses of Funds 12
12. Conditions Precedent to Developer's Duties 12
13. Conditions Precedent to City's Duties 13
14. De -annexation .. 14
15. Payments in Lieu of Taxes 13
16. Economic Activity Taxes 15
17. Special Allocation Fund 15
18. Disbursements from Special Allocation Fund 16
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 21
23. Full Assessment of Redevelopment Area 21
24. Sale or Disposition of Project Property 21
25. Progress Reports 22
26. Compliance with Laws 23
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 31
33. Modification 32
34. Effective Date 32
35. Recording 32
36. Applicable Law 32
37. Covenant Running With the Land 32
38. Relocation Costs 32
39. City's Administrative Costs and Expenses 32
40. Validity and Severability 33
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
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. "City Staff," any employee or authorized representative of
the City.
J. "Commission" or "TIF Commission," the Tax Increment
Financing Commission of the City.
K. "County," Cole County, Missouri.
L. "County Assessor," the assessor of Cole County, Missouri.
M. "County Collector," the collector of Cole County, Missouri.
N. "Developer," PGE Hospitality, Inc., its successors and
assigns, subject, however, to the provisions of Section 24 hereof.
O. "Economic Activity Account," the separate segregated
account within the Special Allocation Fund into which Economic Activity
Taxes shall be deposited.
P. "Economic Activity Taxes" or "EATs," the total additional
revenue from taxes which are generated by economic activities within the
Redevelopment Area over the amount of such taxes generated by
economic activities within the Redevelopment Area in the calendar year
prior to the adoption of the ordinance designating such as a
redevelopment area, while tax increment financing remains in effect, but
excluding personal property taxes, taxes imposed on sales or charges for
sleeping rooms paid by transient guests of hotels and motels, licenses,
fees or special assessments.
Q. "Financing Costs," all costs reasonably incurred by the
Developer, the City, or other issuer in furtherance of the issuance of
Private Loans or Obligations (which shall only be issued if approved by
the City Council), including but not limited to interest, loan fees and points
not exceeding one percent (1%) of the principal amount of the loan, loan
origination fees not to exceed two percent (2%) of the principal amount of
the loan and interest payable to banks or similar financing institutions that
are in the business of loaning money, plus reasonable expenses, fees and
expenses of the Developer's attorneys or City's attorneys (including City
Attorney, Special TIF Counsel and Bond Counsel), the Developer's or
City's administrative fees and expenses (including planning and/or
financial consultants), underwriters' discounts and fees, the costs of
printing any Obligations and any official statements relating thereto, the
costs of credit enhancement, if any, capitalized interest, debt service
reserves and the fees of any rating agency rating any Obligations. Any
costs related to the financing of non -Reimbursable Project Costs shall not
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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 shall not include "Financing Costs/Interest Expense
During Construction," as identified in Exhibits D and G.
R. "Funding Agreement," the agreement between the City and
the Developer regarding the Developer's payment of costs and expenses
incurred by the City as a result of the Redevelopment Project.
S. "Hotel Tax," the City's separate sales tax charged on
sleeping rooms for transient guests, currently 7% but subject to change.
T. "Hotel Tax Revenue," all revenues derived from the City's
Hotel Tax.
U. "Land Use Approvals," those approvals required pursuant to
City's zoning and subdivision regulations for the construction of the
Redevelopment Project.
V. "Legal Requirements," any applicable constitution, treaty,
statute, rule, regulation, ordinance, order, directive, code, interpretation,
judgment, decree, injunction, writ, determination, award, permit, license,
authorization, directive, requirement or decision of or agreement with or by
any and all jurisdictions, entities, courts, boards, agencies, commissions,
offices, divisions, subdivisions, departments, bodies or authorities of any
nature whatsoever of any governmental unit (federal, state, county,
district, municipality, city or otherwise), whether now or hereafter in
existence and specifically including but not limited to all ordinances, rules
and regulations of the City of Jefferson, Missouri, such as zoning
ordinances, subdivision ordinances, building codes, property maintenance
codes, and City's adopted Public Works engineering standards and
requirements; provided, however, unless otherwise provided herein,
Developer shall have the right to contest, in any manner provided by law
and at its sole expense, the applicability or validity of any Legal
Requirement.
W. "Obligations," any bonds approved by the City Council and
issued to pay for Redevelopment Project Costs.
X. "Ordinance," an ordinance enacted by the City Council.
Y. "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
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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
the designation is terminated pursuant to subsection 2 of Section 99.850
of the TIF Act.
Z. "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.
AA. "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.
BB. "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.
CC. "Project Improvements," shall have the meaning assigned in
Section 5.
DD. "Redevelopment Plan," means the Truman Hotel Tax
Increment Financing Redevelopment Plan approved by the City Council
by Ordinance No. on August 15, 2016, and any amendments
thereto.
EE. "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.
FF. "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.
GG. "Redevelopment Project Costs," include the sum total of all
reasonable or necessary costs incurred or estimated to be incurred, any
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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, specifically:
(1) Costs of studies, surveys, plans and specifications;
(2) Professional service costs, including, but not limited to,
architectural, engineering, legal, marketing, financial, planning or special
services. Except the reasonable costs incurred by the City or Commission
established in the TIF Act for the administration of the Redevelopment
Plan, such costs shall be allowed only as an initial expense which, to be
recoverable, shall be included in the costs of the Redevelopment Plan and
the Redevelopment Project;
(3) Property assembly costs, including but not limited to,
acquisition of land and other property, real or personal, or rights or
interests therein, demolition of buildings, and the clearing and grading of
land;
(4) Costs of construction, rehabilitation and/or repair or
remodeling of existing buildings and fixtures or any other public or private
improvements;
(5) Cost of construction of public works or improvements;
(6) Financing Costs;
(7) All or a portion of a taxing district's capital cost resulting from
the Redevelopment Project necessarily incurred or to be incurred in
furtherance of the objectives of the Redevelopment Plan, to the extent the
City, by written agreement, accepts and approves such costs;
(8) Relocation costs to the extent that the City determines that
relocation costs shall be paid or are required to be paid by federal or state
law; and
(9) Payments in Lieu of Taxes.
HH. "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 Hotel Tax 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 Hotel Taxes,
Developer as a result of: preparing, reviewing and adopting the
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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
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.
II. "Site Plan," the site plan or plans generally depicting the
Project Improvements attached hereto as Exhibit E.
JJ. "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. Revenue generated from the Hotel Tax
may be deposited within the Special Allocation Fund.
KK. "TIF Act," the Real Property Tax Increment Allocation
Redevelopment Act, Section 99.800, et seq., RSMo, as amended.
LL. "Tax Increment Financing," tax increment allocation
financing as provided pursuant to the TIF Act.
MM. "Taxing Districts," any political subdivision of this state
having the power to levy taxes on sales or property in the Redevelopment
Area.
NN. "TIF Revenue," Payments in Lieu of Taxes and Economic
Activity Taxes and all interest earned on funds deposited in the Special
Allocation Fund.
00. "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
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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
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;
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.
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
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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 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
approved by City as provided herein shall immediately operate and be
deemed to be an amendment to the approved Redevelopment Schedule
and the provisions of this Contract. In order to implement the
Redevelopment Schedule, City will endeavor to facilitate the timely
passage of the individual Redevelopment Project Ordinances referred to
in Section 4.B hereof. 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 as a result of solely the Developer's failure to timely
complete its obligations under this Contract and provided that the City has
fulfilled all of the terms of this Contract and provided that the delay has not
been caused by 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
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to the approval of a Site Plan, provided that the construction plans for
such Project Improvements are in conformance with City 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
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, nor for any other action in
connection with its or their duties hereunder.
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, 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
in the presence of a representative of the Developer.
B.
Unless Developer has agreed to fulfill such obligations, Developer
shall use its best efforts to contractually obligate any tenant, purchaser,
transferee, developer, manager, contractor or subcontractor ("User") to
comply with the provisions of this Section 8.B for its respective portion of
the Project Improvements. Developer shall enforce the provisions of this
Section 8.B in a commercially reasonable manner. Developer hereby
agrees that every lease, sales contract or other contract regarding the
Redevelopment Project Area entered into following the effective date of
this Contract shall indicate the responsibility of the Developer or User to
fulfill Section 8.B. Developer shall use commercially reasonable efforts to
enforce such contract rights.
9. Certificate of Completion and Compliance.
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A. Upon the completion of construction of a Redevelopment
Project, Developer shall submit a report certifying that the Project
Improvements contained therein have been completed in accordance with
the Redevelopment Plan and that it is in material compliance with all other
provisions of this Contract. 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. City may instruct City Staff to conduct an investigation, and if
City 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 Developer's duties pursuant to this Contract have been
performed, then it shall issue a Certificate of Completion and Compliance.
If City determines that the Redevelopment Project or any portion thereof
which is the subject of an investigation or review under this Section 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 it shall not issue a Certificate of Completion and
Compliance and shall specify in writing the reason or reasons for
withholding its certification, which may include applicable remedies. Upon
request of Developer, City shall hold a hearing before the City Council at
which Developer may present new and/or additional evidence for the City
to consider.
(1) The issuance of a Certificate of Completion and Compliance
by City shall be a conclusive determination of the satisfaction of the
covenants in this Contract with respect to the obligations of Developer to
complete the Project Improvements within the dates for the beginning and
completion thereof, but shall not prevent City from future action in the
event of any subsequent default by Developer in the performance of any
of its other obligations under this Contract.
(2) Each such certificate issued by City shall contain a
description of the real property affected thereby and shall be in such form
as will enable it to be accepted for recording in the Office of the Recorder
of Deeds for Cole County, Missouri.
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.
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A. Developer will deliver to City its certificate stating that to the
best of its knowledge and belief; (1) such sources of funds and financing
commitments will enable Developer to timely implement the
Redevelopment Project by constructing the Project Improvements
contained therein; (2) the information and statements contained therein,
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 therein do not fail to state any material facts
necessary in order to make the statements or representations made
therein, in light of the circumstances under which 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.
11. 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.
C. Hotel Tax. Because of the direct impact of the completed
Redevelopment Projects on the City's efforts to promote tourism, the City
has agreed to consider with adoption of its annual budget appropriation for
deposit into the Special Allocation Fund 50% of the revenues generated
by the City's hotel tax within the Redevelopment Project Area. The Hotel
Tax Revenues shall be deposited into the Special Allocation fund for the
purpose of reimbursing primarily "Hard Construction Costs" as indicated
by the "Reimbursable Project Costs" column of the "Total Project" table
found in Appendix C of the TIF Plan. The City Council deems the use of
hotel tax revenues for the Reimbursable Project Costs specifically for the
promotion of tourism within the City.
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 Certificate pursuant to
Section 10:
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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. City approval of the voluntary annexation of the Developer
owned Comfort Suites located at 4804 Country Club Drive, Jefferson City,
Missouri, 65109, and Hampton Inn located at 4800 Country Club Drive,
Jefferson City, Missouri, 65109, into the City's jurisdictional boundaries.
City and Developer agree to use good faith efforts and cooperate with and assist
each other in accomplishing all of the foregoing conditions precedent.
13. 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 Certificate 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. 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 acquisition of applicable right-of-way at no cost to City
(i.e., any cost will be a Reimbursable Project Cost).
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. De -annexation. Once the Developer owned Comfort Suites located at
4804 Country Club Drive, Jefferson City, Missouri, 65109, and Hampton Inn located at
4800 Country Club Drive, Jefferson City, Missouri, 65109, have been annexed into the
City's jurisdictional boundaries, at no time shall Developer initiate a de -annexation of the
properties to remove them from the City's jurisdictional boundaries.
15. 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
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make said Payments in Lieu of Taxes shall be a covenant running with the
land for the duration of the Redevelopment Plan (and any renewal periods
thereof) and shall create a lien in favor of City on each such tax parcel as
constituted from time to time and shall be enforceable against Developer
and its successors and assigns in ownership of property in the
Redevelopment Project Area.
B. Failure to pay Payments in Lieu of Taxes as to any property
in a Redevelopment Project Area shall constitute a default by the owner,
assignee, and/or tenant of such property (but not the Developer in the
event Developer is not the owner of such property) 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
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.
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.
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16. 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
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
shall certify the nature and amount of Economic Activity Taxes payable by
each Taxing District from which Economic Activity Taxes are due, or as
otherwise required by the procedures and requirements of the Taxing
District from time to time established. Upon written request from
Developer or Taxing District, City shall provide its certification of Economic
Activity Taxes due to the governing body of each such Taxing District.
17. Special Allocation Fund.
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A. The City Fiscal Officer shall establish and maintain the
Special Allocation Fund which shall contain the following three (3)
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) Hotel Taxes shall be deposited into the Hotel Tax Fund.
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 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. However, pursuant
to Sections 99.820.1(12) and 99.835.1 RSMo, revenues from the
Payments in Lieu of Taxes attributable to property located within the
Redevelopment Area in an amount equal to 50% of the Hotel Tax
Revenues generated within the Redevelopment Project Areas (the
"Surplus Payments in Lieu of Taxes") shall be declared as surplus by
the City.
C. Any declared Surplus Payments in Lieu of Taxes shall be
distributed in the same manner and proportion as the most recent
distribution to the affected districts of real property taxes from real property
within the Redevelopment Area.
18. 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.A hereof, 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
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 in Section
39.
19. Reimbursable Project Cost Certification.
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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 Hotel Tax 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, 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
reimbursed from TIF and Hotel Tax sources of 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 TIF 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
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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 and Hotel Tax 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 TIF 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. Upon the
Developer's presentation to City of a Reimbursement Request, City shall
review, verify and confirm the information included in the Reimbursement
Request.
(1) Approval. If City determines that: (i) the Reimbursement
Request accurately reflects Reimbursable Project Costs paid in
accordance with this Contract and the Redevelopment Plan and (ii) the
Reimbursable Project Costs for which certification is requested
(considered in combination with all prior amounts certified for the same
cost category or item, as applicable) are in accordance with the
Redevelopment Project Cost Budget, it shall approve and certify the
Reimbursement Request.
(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 may describe any actions necessary for approval. Any
such disapproval may be appealed by Developer to the City Council,
which shall upon Developer's request hold a hearing at which Developer
may present new and/or additional evidence.
(3) Requests in Excess of Approved Budget. No
Reimbursement Request will be approved if it causes the total
Reimbursable Project Costs, excluding Financing Costs, to exceed the
total amount set out in the Redevelopment Project Cost Budget for
Reimbursable Project Costs without the formal approval by City Council of
an amended and restated Exhibit D reflecting such an increase.
(4) Procedural Matters. Each Reimbursement Request for
Developer Reimbursable Project Costs shall be approved administratively,
and no action of the City Council shall be required to approve such
Reimbursement Request. All Reimbursement Requests and Draw
Certificates for City Reimbursable Project Costs may be approved by the
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City Administrator or his designee administratively, and Developer shall
not be required to approve or consent to any such Reimbursement
Request for City Reimbursable Project Costs prior to the disbursement of
funds to City. 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 shall respond within a reasonable time period not
to exceed sixty (60) days to all requests by Developer 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 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 incurred 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
in separate amendment to the TIF Contract.
(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
out in the Redevelopment Project Cost Budget for Reimbursable Project
Costs.
(5) Certification of Interest Expenses. For purposes of
calculating interest expenses for reimbursement pursuant to this Section,
Developer shall certify its interest expense pursuant to this Section as a
separate line item expense. For the month in which interest expense is
initially incurred with respect to any advance of funds, the interest expense
shall accrue from the 15th day of the month incurred for costs certified
from the 1st through the 14th day of a month and from the last day of the
month incurred for costs certified after the 15th day of a given month.
20. Reimbursement Adjustments Based on Actual Costs and Revenue.
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A. Adjustments Based on Certified Costs: If total certified
project costs result in a savings of more than thirteen (13) percent, then
the aggregate principal amount of Reimbursable Project Costs shall be
decreased by the incremental amount over thirteen (13) percent (e.g., if
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 costs are 13% less than expected, then no
adjustment would be made). In order to determine the total 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.
21. 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.
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22. 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.
23. 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.
24. Sale or Disposition of Project Property.
A. Purchasing Entity. 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 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
21
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, 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 less than sixty (60) days prior
to the proposed effective date of the sale or other transfer in a manner as
described in Section 32 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 to Developer's sale
or other transfer of any or all of the real property in the Redevelopment
Area or any interest therein, Developer must obtain the consent to such
sale or transfer by the City Council, such consent not to be unreasonably
withheld.
25. 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
22
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.
26. 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.
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.
27. Assignment of Developer's Obligations.
A. Without limiting the rights of Developer or any third party
under Section 24, Developer agrees that this Agreement 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,
23
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 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 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 or pledge.
Such assignment or pledge shall remain subject to the terms, provisions
and conditions of this Agreement.
28. 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
24
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.
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
25
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
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.
29. 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
all claims, demands, liabilities and costs, including reasonable attorneys'
fees, costs and expenses, arising from damage or injury, actual or
claimed, of whatsoever kind or character (including consequential and
punitive damages), to persons or property occurring or allegedly occurring
as a result of any acts or omissions of Developer, its constituent members
or partners, their employees, agents, independent contractors, licensees,
invitees or others acting by, through or under such indemnifying parties, in
connection with its or their activities conducted pursuant to this Contract
and/or in connection with the ownership, use or occupancy and
development or redevelopment of the Redevelopment Area or a portion
thereof and the Project Improvements.
B. In the event any suit, action, investigation, claim or
proceeding (collectively, an "Action") is begun or made as a result of
27
which Developer may become obligated to one or more of the Indemnified
Parties hereunder, the Indemnified Party shall give prompt notice to
Developer of the occurrence of such event, but the failure to notify
Developer will not relieve Developer of any liability that it may have to an
Indemnified Party. After receipt of such notice, Developer may elect to
defend, contest or otherwise protect the Indemnified Party against any
such Action, at the cost and expense of Developer, utilizing counsel of
Developer's choice. The Indemnified Party shall have the right, but not the
obligation, to participate, at the Indemnified Party's own cost and expense,
in the defense thereof by counsel of the Indemnified Party's choice. In the
event that Developer shall fail timely to defend, contest or otherwise
protect an Indemnified Party against such Action, the Indemnified Party
shall have the right to do so, and (if such defense is undertaken by the
Indemnified Party after notice to Developer asserting Developer's failure to
timely defend, contest or otherwise protect against such Action), the
Indemnified Party may submit any bills for fees and costs received from its
counsel to Developer for payment and, within thirty (30) business days
after such submission, Developer shall transfer to the Indemnified Party
sufficient funds to pay such bills. Developer acknowledges that such bills
may be redacted to delete any information which would constitute
attorney-client communication or attorney work product.
C. An Indemnified Party shall submit to Developer any
settlement proposal that the Indemnified Party shall receive. Developer
shall be liable for the payment of any amounts paid in settlement of any
Action to the extent that Developer consents to such settlement. Neither
Developer nor the Indemnified Party will unreasonably withhold its consent
to a proposed settlement.
D. Developer expressly confirms and agrees that it has
provided this indemnification and assumes the obligations under this
Contract imposed upon Developer in order to induce City to enter into this
Contract. To the fullest extent permitted by law, an Indemnified Party shall
have the right to maintain an action in any court of competent jurisdiction
to enforce and/or to recover damages for breach of the rights to
indemnification created by, or provided pursuant to, this Contract. If such
court action is successful, the Indemnified Party shall be reimbursed by
Developer for all fees and expenses (including attorneys' fees) actually
and reasonably incurred in connection with such action (including, without
limitation, the investigation, defense, settlement or appeal of such action).
E. The right to indemnification set forth in this Contract shall
survive the termination of this Contract and the Redevelopment Area as a
development area.
30. Breach -Compliance.
28
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 Toss 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
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.
29
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,
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.
31. 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
30
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.
32. Notice. Any notice required by this Contract shall be deemed to be given if
it is mailed by United States registered mail, postage prepaid, and addressed as
hereinafter specified.
Any notice to City shall be addressed to:
City Administrator
City Hall
320 E. McCarty
Jefferson City, MO 65101
With a copy to:
Joe Lauber
Lauber Municipal Law, LLC
529 SE 2nd Street, Suite D
Lee's Summit, MO 64063
Any notice to Developer shall be addressed to:
PGE Hospitality, Inc.
422 Monroe Street
Jefferson City, MO 65101
With a copy to:
31
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.
33. 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.
34. 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.
35. 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.
36. Applicable Law. This Contract shall be governed by and construed in
accordance with the laws of the State of Missouri.
37. 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
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).
38. Relocation Costs. To the extent necessary, individuals or entities that
may be required to relocate in implementation of the TIF Plan will be processed
pursuant to the relocation policy included in the Redevelopment Plan.
39. City's Administrative Costs and Expenses.
32
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 this 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").
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
at the City's discretion 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.
40. 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.
41. Time and Performance are of the Essence. Time and exact performance
are of the essence of this Contract.
42. 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.
43. 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.
44. 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
33
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.]
34
IN WITNESS WHEREOF, the parties hereto have executed this Contract the day
and year first above written.
ATTEST:
By:
Phyllis Powell, City Clerk
STATE OF
COUNTY OF
CITY:
CITY OF JEFFERSON, MISSOURI,
a municipal corporation
By:
Carrie Tergin, Mayor
)
)
)
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.
My Commission Expires:
Print Name:
Notary Public in and for said County and State
35
STATE OF
COUNTY OF
DEVELOPER:
PGE HOSPITALITY, INC.,
a Missouri corporation
By:
Dr. Ravi K. Puri, President and CEO
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.
My Commission Expires:
Print Name:
Notary Public in and for said County and State
36
EXHIBIT A
LEGAL DESCRIPTION OF REDEVELOPMENT AREA
Overall Redevelopment Area
A TRACT OF LAND IN THE SOUTHEAST QUARTER OF SECTION 13, TOWNSHIP 44
NORTH, RANGE 12 WEST, COLE COUNTY, MISSOURI, DESCRIBED AS:
BEGINNING AT APOINT IN THE SOUTI-+EASTERI_Y UNE OF OLD MISSOURI STATE
ROUTE "C" NOW KNOWN AS SOUTHRIDGE DRIVE, SAID POINT BEING THE SOUTHWESTERN
CORNER OF PROPERTY CONVEYED TO BRECKENRIDGE HOTELS CORPORATION, BY DEED
RECORDED IN 800K 182, PAGE 323; THENCE ALONG SAID SOUTHEASTERLY UNE NORTH 54
DEGREES 48 MINUTES EAS', 719.92 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 LINE OF OLD ROUTE "C" CONNECTION NOW KNOWN AS
ZUMWALT ROAD; THENCE ALONG SAID SOUTHWESTERLY LINE, SOUTH 35 DEGREES 15
MINUTES EAST, 214.25 FEET; TO A POINT IN THE NORTHWESTERLY RIGHT-OF-WAY UNE OF
U.5. HIGHWAY NO. 54; THENCE ALONG SAID NORTHWESTERLY LINE OF U.S. HIGHWAY NO.
54, SOUTH 35 DEGREES 0D MINUTES WEST, 1019.45 FEET TO THE NORTHEASTERLY CORNER
OF A TRACT OF LAND DESCi3BED 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 SECONDS WEST ALONG THE NORTHERLY UNE OF SAID TRACT AND
THE NORTHWESTERLY EXTENSION THEREOF, 283.00 FEET TO A POINT ON THE WESTERN
BOUNDARY OE 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 UNE OF THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF 925 37
{CCT, A DtSTANCE or 70.0 FEET TO A POINT OF TANGENCY, THENCE NORTH 54 DEGREES 48
MINUTES EAST ALONG SAIC SOUTHEASTERLY LINE 162.25 FEET TO THE POINT OF BEGINNING.
Subject to any and all 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 SECTION 13
T44N R12W, IN 7HE CITY 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 UNE OF OLD MISSOURI
STATE ROUTE "C", NOW KNOWN AS SOUTHRIDGE DRIVE, SAID POINT BEING THE
SOUTHWESTERN CORNER OF PROPERTY CONVEYED TO BRECKENR/DGE HOTELS
CORPORATION, BY DEED RECORDED IN BOOK 182 PAGE 323, THENCE
N 54 42'20"E, ALONG SAID SOUTHEASTERLY LINE, 221.20 FEET THENCE
LEAVING SAID LINE, S 55'10'00"E 200.82 FEET; THENCE S 3500'00"W
174.50 FEET; THENCE S 5500'00"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 55O6"40"W, ALONG THE NORTHERL Y LINE OF SAID TRACT, AND THE
NORTHWESTERLY EXTENSION THEREOF, 283.39 FEET TO A POINT ON 77E
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 528'30"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 OW MISSOURI STATE ROUTE "C", NOW KNOWN AS
SOU7HRIDGE 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 DESCRIPTION ARE IN THE COLE COUNTY
RECORDER OF DEEDS OFFICE)
Redevelopment Project Area 2
A TRACT OF LAND LOCATED IN THE SOU THEAST QUAR TER OF SECTION 13
T44N R12W, IN THE CITY OF JE EPSON, 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 870,
FURTHER DESCRIBED AS FOLLOWS:
STAR77NG AT A POINT IN THE SOUTHEASTERLY LINE OF OLD MISSOURI
STATE 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
N 54 42'20"E, ALONG SAID SOUTHEASTERLY LINE, 221.20 FEET TO THE POINT OF
BEGINNING
FROM THE POINT OF BEGINNING, THENCE N 54'42'20"E, CONTINUING ALONG
THE SOUTHEASTERLY UNE OF OW MISSOURI STATE ROUTE "C", NOW KNOWN AS
SOUTHRIDGE DRIVE, 498.77 FEET TO 7HE NORTHEASTERLY CORNER OF THE
TRACT DESCRIBED BY A DEED RECORDED IN BOOK 633 PAGE 962, ALSO BEING
THE NORTHWESTERLY CORNER OF A 7R ACT 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 34'49'10"E 211.78 FEET TO 77 -IE NORTHWESTERL Y
RIGHT-OF-WAY OF U.S. HIGHWAY 54; THENCE S 35170'00"W, ALONG SAID LINE,
AND THE SOUTT-IEASTERL Y 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 BEING THE NORTHEASTERLY CORNER OF 77 -IE
TRACT DESCRIBED BY A DEED RECORDED IN BOOK 633 PAGE 962; THENCE
S 35100'00"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; THENCE,
LEAVING SAID LINE, N 55'00"00"W 169.50 FEET, THENCE N 3500'00"E
174.50 FEET; N 5500'00"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 eighteen (18) months of commencement.
RPA 2: Expected to commence in winter of 2019; expected to be
completed within eighteen (18) months of commencement.
EXHIBIT D
REDEVELOPMENT PROJECT COST BUDGET
Debt and Equity Financing Detail Table
Total Project
r ,Eslirlila
1 I.` ITC ibunon
,7771
Relibae`.
I and Value (Est)
54.250.000
Subtotal
x,250,000
Hard Construction Costs
Demolition
$ 750.000
S750.1
Landscaping
$200.000
$200. t t
Public Space FF&E
$5,070.000
Common Area Improvement
53.600.000
53.600.000
New Structure
$27_253.000-„■
-„■.
Subtotal
536,873.000
54.550,000
f.ft Construction Costs
Architectural. Engineering.
Survev
51.040,000
$1.040.000
Insurance. Permits and
111 R' lions
$800.000
5800. ' 4
Financing Costs•Tnterest
Expense During Construction
52.550.000
$2.550.000
MministrativerOverhead
$750.000
$75 0.00C
Legal
$550.000
5550. t a
_"..
De: eloper Fee
54.300.000
S3.152.995
Subtotal
59,990,000
S8.842.995
onagencF
Hard Cost CmrrsinQency (10'Q)
$3.687.300
$3.687.300
_„-
Soft Cost Contingency (20'0
51.998.000
$1.998.000
Subtotal
55,685 300
55.685.300
AI. $56,754,300 S19,078,295
'Itis estimated that less than 16% of the total project costo will be reimbursed from TIF
Revenues because the net present value of the projected TIF Revenues is only
SS,S90,46S See Souare of Funds
EXHIBIT E
SITE PLAN
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 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 Puri Group of Enterprises, Inc., a Missouri limited liability
company ("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.
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 29 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 agrees that the land use of the Property shall be limited to the
following use: [add any land use restrictions or delete this paragraph].
5. 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.
6. 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.
7. 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.
8. Transferee acknowledges that Transferee's acquisition of the Property,
and any subsequent conveyance, requires the prior written approval of the City 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 29 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, whether or not specifically enumerated herein.
9. 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.
10. City acknowledges that upon the full execution of this Transferee
Agreement, the condition precedent set forth in Section 29 of the TIF Contract with
respect to the sale of the Property to Transferee shall be deemed satisfied.
11. 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.
12. This Transferee Agreement shall be governed by the laws of the State of
Missouri.
EXHIBIT G
INDIVIDUAL PROJECT IMPROVEMENTS AND COSTS
Debt and Equity Financina Detail Table
PROJECT 1
'...- ' .. 1: m t inuttrd Redo do p no: nt Rtintburotbk
Project (it% tostit ,
F quity Contribution
Subtotal
st,5no,nan
i lard ( otts i rud ion ORA
1)esnolition
r.ki
i Andy:aping
.474ipp.1
s),1,11?
1'1114;r Spoor 1:F4:1
SI.K43Pitii
. 1.1.ition Area illil,!t ", 0:1104111S
t1,7041,0111)
';',1 7CA:11:410
n, '-;:t Lk:lure
i 40,4.164 Kw,
Subtotal
SI -1,605,000
S2.)75,00
Non 4 ttjihqt Cols,
Atchilmtind. I ,[iprxii mg, sw,, r%
Ei4.400;1:02..1/4S1.00
S.4id (14,1,
*43,1,1Iff
Insurance. IN:runts tad lip, r ,-ii: ,
16030(0
!Or:0 Ho
I Minx:Hy l'u,klilloc1 rwv..71,e )fli.
l',..L.
ConslruWou ,Nrimi
S97z..000
i,975,1x1.)
'. loanistrativrA >,. (Thrall
,0,11T1)00
I (1.131
c,!ii I !of}
iZ5ti,Ditis
I In c!. 1\1 i ,..Y
11,i,111101
ilt;..9,6-17
Subtotal
S3,775,000
S3,104,647
4- fittoingenc.,
11.1111 (.0,1( ontinpeno, ( ii i" 0
i1461,',.'on
Nott t 11,1 ( kinttn4vrtrA
Sublulal
S2,215,500
S2,215,5.00
k...
is esrimared ;bar approximately 16% of the total PHASE I cos will be reimbursed from TIF
Revenues because the net present value of rhe projected TIF Revenues is only
$3,557,853 over a 23 year period.
Debt and Equity Financinci Detail Table
PROJEcT 2
- -
Fritsit; Contribution
Estimated Redes civilities, Reimbursable Projer4
Project Costs Costs
I ...1 Vaitieli t )
S2 73d911,,
Subtotal
S2.750,000
!hard Construction Costs
I Vinotown
y.„-zt ioi
iti,,lio
1..usihcapaty
,I.'._S too
ii2_,IAti
l'oblt, Siucc i i &I
cl.":;.(Pit,
t. otwoott \;c,t iluo.,‘emtol.-
#.1‘.,u4lio
SI 9rt,tiNtl
\ ,,
Subtotal
522,268,0110
C2,475,11410
Soft Con strurtiott Costs
Alkitit0.1117,11. ragilatVlitig, Ntw.c,.
Sv•Pl.vot,
$.8`0' 11.11
itIMII.t. l'erlilit:, alta 111,4,1:C1.10117,
'16,111t HAIi."..",iXI
11111
I tuar.ow Ci),I,Itlietesi l\ 1I*, i-hiimp.
1,...\ wnNti uction Pcrzod
v 1 hvrhead
s4-,1..111+1
s47,,,,I.tir
I ,2,,l,t1
Sj,111111;e1
i,i1.1111;
1 ).,:‘ ViOrtl 1 kV
S' K.11!101
S2 :11 r't
Subtotal
Sti,215,0041
S5,65S,479
Coo tin e,ene:s
i Lott ( .1,1 c. okungeoc,, ( 1+1" ..)
v.`..,‘ 'f, XI•1
4,2 ' ',,, sill'
Sol ! ( ....1 i ,,E;1111i.:C124.‘ 1210n1
$1 :.,t 1 (Ii)
Subtotal
S3,469,S00
S3,469,Sik0
, • ,,
$04,7924390,04 _ ._ S11103 ,0 '
"ft is estimated that approximately 15% of the total PHASE 1 costs will be reimbursed from TIF
Revenues because the net present value of rhe projected TIF Revenues is only
$5,311,615 ester a 23 year period.