HomeMy Public PortalAboutORD15697 BILL NO. 2017-38
SPONSORED BY: Councilman.Fitzwater
ORDINANCE NO. 15697
AN ORDINANCE APPROVING A TAX INCREMENT FINANCING CONTRACT BETWEEN
THE CITY OF JEFFERSON, MISSOURI AND F & F DEVELOPMENT, LLC FOR THE
IMPLEMENTATION OF THE ST. MARY'S HOSPITAL TAX INCREMENT FINANCING PLAN
AND AUTHORIZING THE MAYOR TO EXECUTE THE AGREEMENT.
WHEREAS, by Ordinance No. 15696, adopted by the City Council of the City of Jefferson,
Missouri (the "City") on August 21, 2017, the City approved the St. Mary's
Hospital Tax Increment Financing Plan (the "TIF Plan"), declared the
Redevelopment Area as a blighted area, and designated F' & F Development,
LLC (the "Developer") as the developer to implement the TIF Plan; and
WHEREAS, Section 5 of Ordinance No. 15696 provides that the designation of the Developer
as the developer of the Redevelopment Project and any reimbursement to the
Developer of TIF revenues for reimbursable project costs is conditioned upon the
execution of an agreement between the City and the Developer approved by the
City Council by ordinance, upon terms and .conditions as agreed upon by the
parties to carry out the,goals and objectives of the TIF Plan; and
WHEREAS, the City and the Developer have agreed upon terms and conditions necessary to
carry out the goals and objectives of the TIF Plan and desire to enter in to a Tax
Increment Financing Contract ("TIF Contract") between the City and the
Developer, attached hereto as Exhibit A.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
JEFFERSON, MISSOURI, AS FOLLOWS:
Section 1: That the TIF Contract between the City and the Developer, a copy of which is
attached hereto as Exhibit A, is hereby approved and adopted.
Section 2: That the Mayor is authorized to execute the TIF Contract on behalf of the City.
Section 3: This Ordinance shall be in full force and effect from and after its passage and
approval by,the Mayor and/I the-City Council.
Passed: 4� Z Approved: A j
Presiding_Officer = Mayor Carrie Tergin
APPROVED AS TO F RM:
City
City Clerk i nselor
EXHIBIT A
ST.MARY'S HOSPITAL TAX INCREMENT FINANCING CONTRACT
(SEE ATTACHED)
TAX INCREMENT FINANCING
CONTRACT
BETWEEN
THE CITY OF JEFFERSON, MISSOURI
and
F&F DEVELOPMENT, LLC
forthe
ST. MARY'S HOSPITAL
TAX INCREMENT FINANCING PLAN
59469376.2
Table of Contents
1. _Rules of Interpretation................................................................................................ 1
2. Definitions .................................................................................................................. 2
3. Redevelopment Area.................................................................................................. 8
4. Redevelopment Project Area ..................................................................................... 8
5. Project Improvements ................................................................................................ 8
6. Redevelopment Schedule........................................................................................M. 8
7. RESERVED ......................................................M..m..........m......m............m..... .............. 10
8. Design Criteria and Review Procedures for Project Improvements.......................... 10
9. Control of Project...................................................................................................... 10
10. Certificate of Completion and Compliance ......................................................m....... 11
11. RESERVED ........................................................................................................... 12
12. Fundinq Sources and Uses of Funds..................................................................... 12
14. Conditions Precedent to Developer's Duties.......................................................... 13
15. Conditions Precedent to City's Duties .................................................................... 14
16. Payments in Lieu of Taxes.;................................................................................... 14
17. Economic Activity Taxes ........................................................................................ 15
18. Special Allocation Fund.......................................................................................... 17
19. Disbursements from Special Allocation Fund......................................................... 17
20. Reimbursable Project Cost Certification................................................................. 18
21. RESERVED ........................................................................................................... 21
22. Payment of Project Costs - "As Collected" Basis ......................................mm........... 21
23. RESERVED ........................................................................................................... 21
24. Full Assessment of Redevelopment Area .............................................0................ 21
25. Public Participation...............................................................................0................. 21
26. Calculation of Public Participation.............................................0...........................0. 24
27. Tenant Approvals and Prohibitions......................................................................... 24
28. Sale or Disposition of Project Property...............o..............o.......................m-m.......... 25
29. Progress Reports ...............................................................................................0... 26
30. Compliance with Laws............................................................................................ 27
31. Assignment of Developer's Obligations.................................................................. 27
32. Assignment of Payments.,................................................... ....0............................. 28
33. Collateral Assignment of Contract.......................................................................... 28
34. Transfer of Interests in Developer- City Approval........m....................... ............ 28
35. Representations and Warranties............................................................................ 29
36. Indemnification...............................................................................0....................... 31
37. Breach-Compliance............................o...m....................om.............m....o......... ............ 33
38. Excusable Delays..........m.0.................m....................o-m......m.............m........... ...........m 34
39. Notice..................................................................................................................... 35
40. Modification............................................................................................................ 35
41. Effective Date......................................................................................................... 36
42. Recording............................................................................................................... 36
43. Applicable Law.....................0---m........m......o.......m...m......................m....0....0.............. 36
44. Covenant Running With the Land.............................................................0............. 36
45. Relocation Costs................-m.m.................)....m-................................m................... 36
46. Administrative Costs and Expenses........... ....... .......... ........... 36
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47. Validity and Severability......................................................................................... 37
48. Time and Performance are of the Essence............................................................ 37
49. Relationship of Parties ........................................................................................... 37
50. City's Legislative Powers........................................................................................ 37
51. Good Faith; Consent or Approval........................................................................... 37
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I
Exhibits
A Legal Description of Redevelopment Area
B Legal Description of Redevelopment Project Area
C Redevelopment Schedule
D Redevelopment Project Cost Budget
E Site Plan
F Description of Project Improvements
G Form of Certificate of Completion
H Form of Reimbursement Request
59469376.2
TAX INCREMENT FINANCING CONTRACT
THIS TAX INCREMENT FINANCING CONTRACT (the "Contract") is made and
entered into as of the day ofd x- , 2017 (the "Effective Date"), by
and between THE CITY OF JEFFERSON, MISSOURI (the "City"), and F&F
DEVELOPMENT, LLC, a Missouri limited liability company ("Developer"), the
developer selected by the City to implement the plan of redevelopment more fully
described herein.
Recitals.
A. On May 18, 2017, the Tax Increment Financing Commission of Jefferson
City, Missouri (the "Commission") on March.28, 2017, held a public hearing regarding
the St. Mary's Hospital 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"). The hearing was continued to June 14, 2017.
B. On June 14, 2017, the Commission resumed the previous public hearing
and, by-a vote of 10-0, recommended that the City of Jefferson City Council (the "City
Council") make the required statutory findings and approve the Redevelopment Plan.
C. The Redevelopment Plan provides for two (2) alternative redevelopment
projects (the "Redevelopment Projects") which consist of the "Project Improvements"
described in Section 5 herein.
D. By Ordinance No. 15697, adopted by the City Council on
August 21, 2017, 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 the City to enter into a contract with Developer for the implementation of
the Redevelopment Project described in the Redevelopment Plan.
NOW, THEREFORE, for and in consideration of the premises, and the mutual
covenants herein contained, the City and Developer agree as follows:
1. Rules of Interpretation. Unless the context clearly indicates to the contrary
or unless otherwise provided herein, the following rules of interpretation shall apply to
this Contract:
A. The terms defined in this Contract which refer to a particular
agreement, instrument or document also refer to and include all renewals,
extensions, modifications, amendments and restatements of such
agreement, instrument or document; provided, that nothing contained in
this sentence shall be construed to authorize any such renewal, extension,
modification, amendment or restatement other than in accordance with
Section 40 of this Contract.,
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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
specified. Whenever an item or items are listed after the word "including",
such listing is not intended to be a listing that excludes items not listed.
C. Words of the masculine gender shall be deemed and
construed to include correlative words of the feminine and neuter genders.
Unless the context shall otherwise indicate, words importing the singular
number shall include the plural and vice versa, and words importing
person shall include individuals, corporations, partnerships, joint ventures,
associations, joint stock companies, trusts, unincorporated organizations
and governments and any agency or political subdivision thereof.
D. The table of contents, captions and headings in this Contract
are for convenience only and in no way define, limit or describe the scope
or intent of any provisions or sections of this Contract.
2. Definitions. All capitalized words or terms used in this Contract and
defined in the Redevelopment Plan shall have the meaning ascribed to them in the
Redevelopment Plan. In addition thereto and in addition to words and terms defined
elsewhere in this Contract, the following words and terms shall have the meanings
ascribed to them in this Section 2 unless the context in which such words and terms
are used clearly requires otherwise.
A. "Affiliate," any person, entity or group of persons or entities
which controls a party, which a party controls or which is under common
control with a party. As used herein, the term "control" shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of management and policies, whether through the ownership of
voting securities, by contract or otherwise. -
B. "Blighted Area," an area which, by reason of the
predominance of defective or inadequate street layout, unsanitary or
unsafe conditions, deterioration of site improvements, improper
subdivision or obsolete platting, or the existence of conditions which
endanger life or property by fire and other causes, or any combination of
such factors, retards the provision of housing accommodations or
constitutes an economic or social liability or a menace to the public health,
safety, morals, or welfare in its present condition and use.
C. "CID," means the Community Improvement District
contemplated by the Redevelopment Plan.
D. "CID Act," the Community Improvement District Act, Sections
67.1401 to 67.1471, RSMo., as amended.
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E. "CID Revenue," all funds derived from the CID Sales Tax
revenue and any interest earned thereon.
F. "CID Sales Tax," a sales tax imposed by the CID on all retail
sales,within the boundaries of the CID in accordance with the CID Act in
an aount up to one percent (1%).
G. "qfty," the City of Jefferson, Missouri.
H. "City Administrator," the city administrator of the City of
Jefferson, Missouri, or his designee.
I. "City Code," the codified ordinances of the City of Jefferson,
Missouri.
J. "City Council," the governing body of the City of Jefferson,
Missouri.
K. "City Engineer," the city engineer of the City of Jefferson,
Missouri.
L. "City Supplemental TIF Revenue," additional Economic
Activity Taxes appropriated by the City and deposited in the Special
Allocation Fund, not to include sales tax imposed pursuant to Section
.644.032, RSMo., for funding of local parks.
M. "City Treasurer," the director of finance and information
technology for Jefferson City, Missouri.
N. "Commercial Project," the development option which does
not include Lincoln University, as described in the Redevelopment Plan.
O. "Commission" or "TIF Commission," the Tax Increment
Financing Commission of the City of Jefferson, Missouri;
P. "County," Cole County, Missouri.
Q. "County Assessor,"the assessor of Cole County, Missouri..
R. "County Collector," the collector of Cole County, Missouri.
S. "Debt Service," the amount of money required for the
payment of interest and principal on the Obligations and/or Private Loans
as they come due, for,the payment of mandatory or optional redemption
payments and for payments to reserve funds required by the terms of the
Obligations to retire or secure the Obligations and/or Private Loans.
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T. "Developer," F&F Development, LLC, its successors and
assigns, subject, however, to the provisions of Section 29 hereof.
U. "Economic Activity Account," ' the separate segregated
account within the Special Allocation Fund into which- Economic Activity
Taxes shall be deposited.
V. "Economic Activity Taxes" or "EATs," fifty percent (50%) of
the total additional revenue from taxes which are imposed by City or other
Taxing Districts, which are generated by economic activities within the
Redevelopment Area, while Tax Increment Financing remains in effect,
excluding licenses, fees, personal property taxes, taxes imposed on sales
or charges for sleeping rooms paid by transient guests of hotels and
motels, utility taxes, taxes levied pursuant to Section 70.500, RSMo.,
taxes levied for the purpose of public transportation pursuant to Section
94.660, RSMo., or special assessments, other than payments in lieu of
taxes, until the designation is terminated pursuant to Subsection 2 of
Section 99.850 of the TIF Act.
W. "Financing Costs," all costs reasonably incurred by the
Developer, the CID, the City, or other issuer in furtherance of the issuance
of Private Loans or Obligations, including but not limited to interest, loan
fees and points not exceeding one percent (1%) of the principal amount of
the loan, loan origination fees not to exceed two percent (2%) of the
principal amount of the loan and interest payable to banks or similar
financing institutions that are in the business of loaning money, plus
reasonable expenses, fees and expenses of the Developer's or City's
attorneys (including City Counselor, special TIF counsel and Bond
Counsel), the Developer's or City's administrative fees and expenses
(including planning and/or financial consultants), underwriters' discounts
and fees, the costs of printing any Obligations and any official statements
relating' thereto, the costs of credit enhancement, if any, capitalized
interest, debt service reserves and the fees of any rating agency rating
any Obligations. Any costs related to the financing of non-Reimbursable
Project Costs shall not be a Financing Cost or a Reimbursable Project
Cost. Unless expressly agreed to by Ordinance, Financing Costs shall not
include any interest accruing on Developer's equity investment attributable
to acquisition in the Redevelopment Projects.
X. "Land Use Approvals," those approvals required pursuant to
City's zoning and subdivision regulations for the construction of the
Redevelopment Project.
Y. "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
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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 the City Code, all
ordinances, rules and regulations of the City, 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.
Z. "Lincoln Project," the development option which includes
Lincoln University, as described in the Redevelopment Plan.
AA. "Ordinance," an ordinance enacted by the City Council.
BB. "Payment in Lieu of Taxes," those estimated revenues from
real property in the Redevelopment Area, which revenues are to be used
to pay Reimbursable Project Costs, which Taxing Districts would have
received had the City not adopted Tax Increment Financing, and which
would result from levies made after the time of the adoption of Tax
Increment Financing during the time the current equalized-value of real
property in the Redevelopment Project Area exceeds the Total Initial
Equalized Value of real property in such area until the designation is
terminated pursuant to subsection 2 of Section 99.850 of the TIF Act,
which shall not be later than twenty three (23) years after the
Redevelopment Project and Redevelopment Project Area are approved by
an Ordinance of the City Council. Payments in Lieu of Taxes which are
due and owing shall constitute a lien against the real estate in the
Redevelopment Project Area from which they are derived, the lien of
which may be foreclosed in the same manner as a special assessment
lien as provided in Section 88.861, RSMo.
CC. "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.
DD. "Private Loans," private loans obtained by the Developer, or
its successors, assigns or transferees, from third party private lending
institutions or equity provided by the Developer to fund Reimbursable
Project Costs. Financing Costs, as defined in Section 2.T., relating to
Private Loans, including interest thereon shall be a Reimbursable Project
Cost over and above the total amount shown in the Redevelopment
Project Cost Budget.
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EE. "Project Improvements," shall have the meaning assigned in
Section 5.
FF. "Redevelopment Plan," means the St. Mary's Hospital Tax
Increment Financing Redevelopment Plan approved by the City Council
by Ordinance No. 15696 on August 21, 2017, and any amendments
thereto.
GG. "Redevelopment Projects," the two (2) alternative
development options for the former St. Mary's Hospital complex, as set
forth in the TIF Plan and this Contract. When used in the singular, it shall
be understood to mean the single option ultimately chosen for
development.
HH. "Redevelopment Project Cost Budget," the budget setting
forth the total anticipated Redevelopment Project Costs, as such
Redevelopment Project Costs are applicable to each of the Lincoln Project
and the Commercial Project, 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.
Il. "Redevelopment Project Costs," include the sum total of all
reasonable or necessary costs incurred or estimated to be incurred, any
such costs incidental to the Redevelopment Plan and the Redevelopment
Project, whether for the Lincoln Project or the Commercial Project. Such
costs include, but are not limited to the costs set forth in Exhibit D,
specifically:
(1) Costs of studies, surveys, plans and specifications;
(2) Professional service costs, including, but not limited to,
architectural, engineering, legal, marketing, financial, planning or special
services. Except the reasonable costs incurred by the City or Commission
established in the TIF Act for the administration of the Redevelopment
Plan, such costs shall be allowed only as an initial expense which, to be
recoverable, shall be included in the costs of the Redevelopment Plan and
the Redevelopment Project;
(3) Property assembly costs, including but not limited to,
acquisition of land and other property, real or personal, or rights or
interests therein, demolition of buildings, and the clearing and grading of
'land;
(4) Costs of construction, rehabilitation and/or repair or
remodeling of existing buildings and fixtures or any other public or private
'improvements;
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(5) Cost of construction of public works or improvements,
including applicable administrative costs and fees;
(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;
(9) Payments in Lieu of Taxes; and
(10) All costs related to the implementation and maintenance of
the CID.
JJ. "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 CID Revenue or, at the sole discretion of
the City Council, the proceeds of Obligations as are set forth in the
Redevelopment Project Cost Budget and elsewhere in this Contract, plus
Financing Costs.
KK. "Site Plan," the site plan or plans generally depicting the
Project Improvements attached hereto as Exhibit E (for each of the
Lincoln Project and Commercial Project) and any subsequent plan or plan
submitted by the Developer or third parties pertaining to completion of the
Project Improvements. \
LL. "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.
MM. "TIF Act," the Real Property Tax, Increment Allocation
Redevelopment Act, Section 99.800, et seq., RSMo., as amended.
NN. "Tax Increment Financing," tax increment allocation
financing as provided pursuant to the TIF Act.
00. "Taxing Districts," any political subdivision of this state
having the power to levy taxes on sales or property in the Redevelopment
Area.
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PP. "TIF Obligations," bonds, loans, debentures, notes, special
certificates, or other evidences of indebtedness issued by the City,
Commission, or other issuer approved by the City pursuant to the TIF Act
to carry out the Redevelopment Project or to refinance outstanding
Obligations.
QQ. "TIF Revenue," Payments in Lieu of Taxes and Economic
Activity Taxes and all interest earned on funds deposited in the Special
Allocation Fund.
RR. "Total Initial Equalized Assessed Value," that amount
certified by the County Assessor which equals the most recently
ascertained equalized land assessed value of each taxable lot, block, tract
or parcel or real property within the Redevelopment Project Area
immediately after the Ordinance approving each such Redevelopment
Project has been approved by the City Council.
3. Redevelopment Area. The Redevelopment Area consists of the area
legally described on Exhibit A attached hereto.
4. Redevelopment Project Area.
A. The Redevelopment Area consists of one (1)
Redevelopment Project Area legally described on Exhibit B, in
accordance with the provisions of the Redevelopment Plan. The
Redevelopment Project Area may only be changed, modified or amended
in accordance with the TIF Act.
B. Designation of Redevelopment Protect Area. Tax Increment
Financing with respect to the Redevelopment Project shall become
effective only upon the-approval thereof by an Ordinance of the Council
(the "Redevelopment Project Ordinance").
5. Project Improvements. The Project Improvements consist of the
redevelopment of the former St. Mary's Hospital complex as described in Exhibit F.
City hereby acknowledges that the Project Improvements and/or Site Plan may change
depending on particular tenants or users that are identified for the, Redevelopment
Project Area prior to the commencement of construction thereof.
6. Redevelopment Schedule.
A. Subject to Developer's determination of whether to pursue
the Lincoln Plan or Commercial Plan, as well as market and other
conditions that affect Developer's ability to proceed with development
activities for the Redevelopment Projects, it is the intention of the parties
that the selected Redevelopment Project be substantially commenced and
completed on or before the estimated dates, as may be reasonably
amended from time to time, set forth on Exhibit C attached hereto and
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incorporated herein by reference (the "Redevelopment Schedule").
Developer will use commercially reasonable efforts to construct all
remaining Project Improvements, and will use commercially reasonable
efforts to complete all other development-related activities including, but
not necessarily limited to design, land preparation, environmental
evaluation and remediation, construction, management, maintenance and
procurement of private financing in sufficient time to comply with the
Redevelopment Schedule. Changes in the development program
contemplated by the Redevelopment Plan that require a Redevelopment -
Plan amendment under the TIF Act (as determined by City) shall be
processed in accordance with the TIF Act, and changes in the
development program contemplated by the Redevelopment Plan that do
not require a statutorily mandated Redevelopment Plan amendment shall
be made by agreement of the parties hereto. The parties hereto
recognize and agree that market and other conditions may affect the
Redevelopment Schedule. Therefore, the Redevelopment Schedule is
subject,to change and/or modification, with the written approval of City,
which shall not be unreasonably conditioned, delayed or withheld.
B. Any -amendment to the Redevelopment Plan that is
approved by City as provided herein shall immediately operate and be
deemed to be an amendment to the approved Redevelopment Schedule
and the provisions of this Contract. In order to implement the
Redevelopment Schedule, City will "endeavor to facilitate the timely
passage of the Redevelopment Pfoject Ordinance referred to in
Section 4.6. hereof. Developer shall render such reasonable aid and
assistance as requested by City to insure favorable consideration of any
such Redevelopment Project Ordinance by the City Council. City shall
endeavor to expedite the approval of the Redevelopment Plan and the
Land Use Approvals; provided, however, that nothing ,herein shall
constitute or be deemed to be a waiver by City or the City Council of its
legislative authority. If as a result of solely the Developer's failure to timely
complete its obligations under this Contract and provided that the City has
fulfilled all of the terms of this Contract and provided that the delay has not
been caused by an event not otherwise in control of the Developer, City
may provide written notice to Developer stating that the City intends to
require Developer to appear before the City Council to show cause why
this Contract and, the Redevelopment Plan shall not be terminated in
accordance with Section 37 hereof. Developer may, within one hundred
eighty (180) days following its receipt of such notice, cure such failure to
timely complete Developer's obligations under the Contract or provide the
City with written notice of the reasons why the Developer is unable to
timely cure such failure. Following such one hundred eighty (180) day
period, the City may, in its sole reasonable discretion, require Developer
to appear before the City Council to show cause why this Contract and the
Redevelopment Plan shall not be terminated in accordance with Section
37 hereof.
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7., Notification of selected Redevelopment Project. Within one (1) year of the
Effective Date Developer shall notify City as to which project, either the Lincoln Project
or the Commercial Project, Developer has selected to pursue as the Redevelopment
Project. City may grant an extension to the notification at City's discretion.
8. Desiqn 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, which shall be
subject to amendment and modification to meet applicable anchor and
junior anchor approvals and design criteria and Developer requirements,
in Developer's sole reasonable discretion, but subject to any Legal
Requirements, including specifically design requirements that have been
adopted in the City Code. In order to 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) No Project Improvements shall be commenced or made
unless and until all the construction plans have been'approved by City
Planning and Protective Services and Public Works staff. It is expressly
acknowledged that Developer may commence construction of the Project
Improvements prior to the approval of a Site Plan, provided that all Land
Use Approvals have been obtained by Developer.
(2) City shall have the absolute right, in its sole judgment and
discretion at any time to the extent allowed by State law or the City's
ordinances, to approve a variance from conformance to, or a waiver of
compliance with, the Site Plan and the Land Use Approvals relating to
exterior improvements, or to eliminate any one or more of such
requirements in connection with the approval or disapproval of the above
construction plans or changes thereto, subject to all applicable City
ordinance provisions.
(3) Subsequent to commencement of the Project Improvements
and until said Project Improvements have been completed, Developer
shall-be subject to inspection by representatives of City as described in
Section 9.A. hereof and as required by Legal Requirements.
(4) Unless otherwise provided by law, neither City, nor any
officer, director, commissioner, member, employee or agent of the same,
shall be liable to Developer with respect to construction plans or
modifications submitted for approval, nor for any other action in
connection with its or their duties hereunder.
9. Control of Project. -
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A. Construction. Except as otherwise provided in this Contract,
Developer shall have complete and exclusive control over construction of
the Project Improvements, subject, however, to all Legal Requirements.
As to all parts of the Redevelopment Project, Developer hereby grants to.
City, its agents and employees the right to enter at reasonable times for
the purpose of inspecting the Redevelopment Project. Notwithstanding
any provision of this Contract to the contrary, the City shall not impose any
prevailing wage (or similar) requirement on the Developer for purposes of
any work performed on the Redevelopment Project unless required by
state or federal law.
B. Maintenance and Repair. Developer, at its sole cost and
expense, at all times shall use commercially reasonable efforts to (1)
maintain and operate the Developer Controlled Improvements like other
similarly situated developments, (2) timely make all necessary repairs to
and replacements and restorations of all parts of the Developer Controlled
Improvements, and (3) keep the Developer Controlled Improvements in
good condition, repair and appearance. Developer shall further maintain
casualty insurance on the Developer Controlled Improvements in an
amount equal to the full replacement value thereof and provide City with
evidence of such insurance upon demand.
Unless Developer has agreed to fulfill such obligations, Developer
shall use commercially reasonable efforts to contractually obligate any
tenant, purchaser, transferee, developer, manager, contractor or
subcontractor ("User") to comply with the provisions of this Section 9.13.
for its respective portion of the Private Improvements. Developer shall
enforce the provisions of this Section 9.13. in a commercially reasonable
manner.
10. Certificate of Completion and Compliance.
A. Upon the completion of any phase of construction of the
Redevelopment Project, Developer may submit a report certifying that the
Project Improvements contained therein have been completed in
accordance with the Redevelopment Plan and that it is in material
compliance with all other provisions of this Contract. At the Completion of
each phase of construction of the Redevelopment Project, Developer shall
submit a report certifying that the Project Improvements contained therein
have been completed in accordance with the Redevelopment Plan and
that it is in material compliance with all other provisions of this Contract.
Such report shall be in the form and substance of the Certification
attached hereto as Exhibit G.
B. Following certification by the Developer under Section
10.A., City may conduct an investigation, and if City determines that the
Redevelopment Project or any phase thereof has been completed in
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material accordance with the Redevelopment Plan and other applicable
Legal Requirements, and that as of the date of the request, Developer is
not in default under a material provision of this Contract, then City shall,
issue a Certificate of Completion and Compliance. If City determines that
the Redevelopment Project or any portion thereof which is the subject of
an investigation or review under this Section 10.13. 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 City shall not issue a Certificate of Completion and Compliance and
shall specify in writing the reason` or reasons for withholding its
certification within ten (10) business days of such finding. At Developer's
request, the City shall, within forty-five (45) days of Developer's request,
hold a special hearing at which Developer may present additional
evidence of compliance or seek further clarification of the City's finding of
non-compliance. The City shall conduct any further investigation in order
to issue its Certificate of Completion within ten (10) business days of
Developer's request.
(1) The issuance of a Certificate of Completion and Compliance
by City shall be a conclusive determination of the satisfaction of the
covenants in this Contract with respect to the obligations of Developer to
complete the Project Improvements within the dates for the beginning and
completion thereof, but shall not prevent City from future action in the
event of any subsequent default by Developer in the performance of any
of its other obligations under this Contract.
(2) Each such certificate issued by City shall contain a
description of the real property affected thereby and shall be in such form
as will enable it to be accepted for recording in the Office of the Recorder
of Deeds for Cole County, Missouri.
11. RESERVED.
12. Funding Sources and Uses of Funds.
A. Private Funds. Developer shall construct the Project
Improvements with private funds. The private funds will be derived from a
combination of Developer's equity or equity investment provided by third
parties, and debt incurred by Developer or third parties (hereinafter the
"Private Funds").
B. TIF Obligations. In the event that TIF Obligations are to be
considered by the City Council for approval, the Parties shall first amend
this Contract to include specific provisions related to such obligations.
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C. Community Improvement District. The Developer shall
cause sufficient property owners within a CID area to petition the City to
establish such CID as contemplated by the Redevelopment Plan. The
CID petition may provide for the imposition of the CID Sales Tax.
(1) CID Sales Tax. City and Developer shall use commercially
reasonable efforts to ensure that, in accordance with the CID Act, the CID
will take all steps necessary to impose the CID Sales Tax on all retail
sales in the CID are, with such CID Sales Tax to commence at a time
generally consistent with the commencement of retail sales within the CID.
(2) Capture of CID Sales Tax Revenue as EATs. Following the
.activation by Ordinance of the Redevelopment Project and
Redevelopment Project Area, the CID Sales Tax will be an Economic
Activity Tax. As such, subject to the calculation of Economic Activity
Taxes as defined in the TIF Act, approximately fifty percent (50%) of the
revenues generated by the CID Sales Tax occurring within the
Redevelopment Project Area will be directed to the Special Allocation
Fund. All Redevelopment Project Costs which are included within the
definition of "projects" in the CID Act will also be declared as
Reimbursable Project Costs as shown on Exhibit D.
(3) CID Cooperative Agreement. The parties will enter into a
contract with the CID that shall specify the rights, duties and obligations of
the City, Developer and CID with respect to the operation and
management of the CID and the use of the CID Revenue (the "CID
Cooperative Agreement").
13. RESERVED.
14. Conditions Precedent to Developer's Duties. Developer's obligations
hereunder are expressly conditioned upon the occurrence of each of the following
events:
A. The imposition of the CID Sales Tax at a date generally
consistent with the commencement of retail sales within the CID;
B. Activation of Tax Increment. Financing and City passage of
the ordinance approving the Redevelopment Project, pursuant to the TIF
Act.
C. Subject to the terms of Section 8.A(2), City approval of all
zoning, subdivision and permit applications required for implementation of
the Redevelopment Plan; and
D. Developer obtaining the financing substantially necessary to
implement this Redevelopment Plan.
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City and Developer agree to use good faith efforts and cooperate with and assist
each other in accomplishing all of the foregoing conditions precedent on or before the
date set forth above.
15. Conditions Precedent to.City's Duties. City's obligations hereunder are
expressly conditioned upon the occurrence of each of,the following events:
A. The imposition of the CID Sales Tax by the CID at a date
generally consistent with the commencement of retail sales within the CID;
B. Activation of Tax Increment Financing and City passage of
the ordinance approving the Redevelopment Project, pursuant to the TIF
Act.
C. Developer obtaining the financing substantially necessary to
implement this Redevelopment Plan; and
D. Subject to the terms of Section 8.A(2), City approval of all
zoning, subdivision and permit applications required for implementation of
the Redevelopment Plan.
City and Developer agree to use good faith efforts and cooperate with and
assist each other and the CID in accomplishing all of the foregoing conditions
precedent.
16. Payments in Lieu of Taxes.
A. Pursuant to the provisions of the Redevelopment Plan and
the TIF Act, including, but not limited to, Section 99.845 thereof, when Tax
Increment Financing is established by Ordinance for a Redevelopment
Project Area, the real property located therein is subject to assessment for
annual Payments in Lieu of Taxes.- Payments in Lieu of Taxes shall be
due November 30 of each year in which said amount is required to be paid
and will be considered delinquent if not paid by December 31 of each such
year or as otherwise determined by applicable law. The obligation to
make said Payments in Lieu of Taxes shall be a covenant running with the
land for the duration of the Redevelopment Plan (and any renewal periods
thereof) and shall create a lien in favor of City on each such tax parcel as
constituted from time to time and shall be enforceable against Developer
and its successors and assigns in ownership of property in the
Redevelopment Project Area.
B. Failure to pay Payments in Lieu of Taxes as to any property
in a Redevelopment Project Area shall constitute a default by the owner,
assignee, and/or tenant of such property (but not the Developer in,the
event Developer is not the owner of such property) of the provisions of
Section 37 hereof, and shall entitle City, the County Collector or any other
government official or body charged with the collection of any such sums
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(any one or more of such persons hereinafter individually or collectively
referred to as the "Collection Authority") to proceed against such
property and/or the tenant or the owner thereof (but not Developer in the
event Developer is not the owner of such property) as in other delinquent
property tax cases or otherwise as permitted at law or in equity, and, if
applicable, such failure shall entitle the Collection Authority to seek all
other legal and equitable remedies it may have to ensure the timely
payment of all such sums or of the principal of and interest on any
outstanding TIF Obligations secured by such payments; provided,
however, that the failure of any property in a Redevelopment Project Area
to yield sufficient payments in lieu of taxes because the increase in the
current equalized assessed value of such property is or was not as great
as expected, shall not by itself constitute a breach or default. Promptly
upon the designation and approval of a Redevelopment Project
Ordinance, City shall use all reasonable and diligent efforts to promptly
notify the County Assessor, County Collector, the City Director of Finance,
the City Treasurer and all other appropriate officials and persons and seek
to assess the property within the Redevelopment Project Area as
described in the TIF Act and fully collect the Payments in Lieu of Taxes
and implement reimbursement of Reimbursable Project Costs as provided
in this Contract and in the Redevelopment Plan.
C. Notwithstanding anything to the contrary herein, the lien on
property within a Redevelopment Project Area shall be deemed (1)
released as to any public street or other public way included within any
plat proposed by Developer, effective upon the passage of an Ordinance
by City approving the same, and (2) subordinated to the lot lines, utility
easements and other similar matters established by any such plat (but not
to any private access or parking rights granted or created by any such
plat), effective upon the passage of Ordinance by City as aforesaid, and to
any easement or like interests granted to City or any public utility for public
facilities or utilities or connection(s) thereto.
17. Economic Activity Taxes. In addition to the Payments in Lieu of Taxes
described herein, and pursuant to Section 99.845.3 of the TIF Act, Economic Activity
Taxes shall be allocated to, and paid by the collecting officer, who shall be the City, as
hereinafter provided, to the City Treasurer or other designated financial officer of City,
who shall deposit such funds in' the Economic Activity Account within the Special
Allocation Fund. Following the approval of the Redevelopment Project, for as long as
the Redevelopment Project Area is subject to Tax Increment Financing, Economic
Activity Taxes shall be determined in accordance with the following procedures (subject,
however, to the provisions of Section 99.835 of the TIF Act):
A. Documentation of Economic Activity Taxes. So long as
Developer owns the subject property within the Redevelopment Project
Area, Developer shall use commercially reasonable efforts to include the
provisions as specified in Section 17.B. in all lease documents with
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59469376.2
r
tenants located at such subject property within the Redevelopment Project
Area requiring said sales tax information to be provided to City. Developer
shall use commercially reasonable efforts to include a similar provision in
all sales contracts with purchasers of property located in the
Redevelopment Project Area requiring said sales tax information to be
provided to City. So long as Developer owns the subject property within
the Redevelopment Project Area, Developer shall use commercially
reasonable efforts to enforce said provisions with respect to such subject
property, and Developer shall use commercially reasonable efforts to
provide that each such lease or sales contract provide that City is an
intended third party beneficiary of such provisions and has a separate and
independent right to enforce such provisions directly against any such
tenant or purchaser. City shall comply with all applicable state laws
limiting disclosure of sales tax information related to individual business
provided to the City as documentation of Economic Activity Taxes. The
City shall provide copies of all such sales tax information provided by
tenants, 'users, occupants and owners within the Redevelopment Project
Area to Developer upon request by Developer, but in no event later than
thirty (30) days after such request.
B. Developer, or any third party, may lease real property within
the Redevelopment Area. With regard to leases entered into following the
Effective Date of this Contract, Developer shall use commercially
reasonable efforts to insert in any such lease, and shall use commercially
reasonable efforts to cause any third party to insert language reasonably
similar to the following and shall use commercially reasonable efforts to
have such Developer-lease signed by the lessee indicating
acknowledgment and agreement to the following provision:
Economic Activity Taxes and Community Improvement District
Taxes
Tenant acknowledges that the Leased Premises are a part of a Tax
Increment Financing district ("TIF District") created by the City and that
certain taxes generated by Tenant's economic activities), including sales
taxes, will be applied toward the costs of certain improvements for the
Development. In addition, Tenant acknowledges that the Leased
Premises (including Tenant's Premises) are or may become within the
area of a Community Improvement District ("CID") which will have the
power to impose a sales tax on any retail sales generated within Tenant's
Premises. Tenant shall forward to the City copies of Tenant's State of
Missouri sales tax returns for its property located in the TIF District when
and as they are filed with the Missouri Department of Revenue, and, upon
good cause shown, shall provide such other reports and returns regarding
other local taxes generated by Tenant's economic activities in the TIF
District and/or the City which will permit the City to administer the TIF as
well as the CID.
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59469376.2
Tenant shall provide to Landlord upon Landlord's request a
certification to the City that this Lease includes the provisions of preceding
paragraph. Tenant shall further provide the Tenant's Missouri Tax ID
number to Landlord for purposes of disclosing same to City.
C. Failure of Developer to require that such restrictions be
placed in any such lease shall in no way modify, lessen or diminish the
obligations and restrictions set forth herein relating to the Redevelopment
Area. The City shall comply with all 'applicable state laws limiting
disclosure of sales tax information related to individual businesses
provided to the City as documentation of Economic Activity Taxes.
D. Certification by City. City, following reasonable research and
investigation, using independent consultants, accountants and counsel
shall certify the nature and amount of Economic Activity Taxes payable by
each Taxing District from which Economic Activity Taxes are due, or as
otherwise required by the procedures and requirements of the Taxing
District .from time to time established. Upon written request from
Developer or Taxing District, City shall provide its certification of Economic
Activity Taxes due to the governing body of each such Taxing District.
18. City Supplemental TIF Revenue. The City Council shall consider an
annual appropriation of additional EATs attributable to the Redevelopment Project Area
(commonly known as a "City Super-TIF"). For the Lincoln Project, said appropriation
shall be for 0.75% of the 1% of the City EATs that are uncaptured by TIF; this amount
excludes the half (0.25%) of the City's dedicated parks sales tax that is not captured by
TIF. For the Commercial Project, said appropriation shall be for 50% of the uncaptured
City EATs (or 0.50%), which 0.50% would be comprised entirely of the City's
uncaptured general sales tax (excluding the uncaptured portions of the City's parks
sales tax and capital improvements sales tax). Such City Supplement TIF Revenue
shall be deposited not less than annually for the term of this Contract into the Special
Allocation Fund and used for all purposes applicable thereto.
19. Special Allocation Fund. The City Treasurer shall establish and maintain
the Special Allocation Fund which shall contain two (2) separate segregated accounts.
Payments in Lieu of Taxes shall be deposited into the Payment in Lieu of Taxes
Account within the Special Allocation Fund. Economic Activity Taxes, including the
EATs portion of the CID Sales Tax and City Supplemental TIF Revenue, shall be
deposited into the Economic Activity Account within the Special Allocation Fund.
Payments in Lieu of Taxes and Economic Activity Taxes so deposited and any interest
earned on such deposits will be used for the payment of Reimbursable Project Costs,
including the retirement of TIF Obligations and for the distribution to the Taxing Districts,
in the manner set forth in the Redevelopment Plan and this Contract.
20. Disbursements from Special Allocation Fund. Disbursements from the
Special Allocation Fund will be made in the following manner and order of priority:
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59469376.2
A. Payment of the City Administrative Fee, as detailed in
Section 47. hereof;
B. Reimbursement of Reimbursable Project Costs.
21. Reimbursable Project Cost Certification.
A. Request for Certification. Developer shall have the right to
submit requests for certification for the line items and within the budget
amounts identified on Exhibit D as reimbursable expenses, and including
Financing Costs incurred by Developer relating to Private Loans obtained
to fund Reimbursable Project Costs.' Developer shall submit its request
for certification of Reimbursable Project Costs incurred within one hundred
twenty (120) days after incurring any such costs. For all Reimbursable
Project Costs incurred by Developer prior to the execution of this Contract,
such Reimbursable Project Costs shall be submitted for certification within
one hundred (120) days from the date of execution of this Contract.
B. Content and Form of Reimbursement Request. The
Developer shall submit requests for reimbursement from TIF revenues
deposited into the special allocation fund in form and substance of the
attached Exhibit H (the "Reimbursement Request").
C. Reimbursement of Reimbursable Project Costs. Land
acquisition shall not be a reimbursable project cost. Excluding Financing
Costs, Reimbursable Project Costs shall not exceed $7,300,000 for the
Lincoln Project or $6,700,000 for the Commercial Project. Reimbursable
Project Costs shall also not exceed the reimbursement rate stated in the
Redevelopment Plan; this equates to a maximum reimbursement of 16.5%
of total project 'costs for the Lincoln Project and a maximum
reimbursement of 21.7% of total project costs for the,Commercial Project
(the "Reimbursement Cost Cap"). Subject to statutory requirements for
the use of TIF Revenue, Developer may shift costs among the line item
costs in each column of sources of funds categories; however, Developer
may not (a) transfer to line items that are not approved as reimbursable
project costs, (b) add to the Developer's Fee, or (c) add to the
Contingency line item. Notwithstanding the foregoing, City acknowledges
that the CID is intended to have a term exceeding the term of this Contract
and that reimbursement to the Developer directly by the CID Revenue
shall not be subject to the Reimbursement Cost Cap, nor shall the CID be
deemed to terminate until the term stated therefor in the petition to form
the CID.
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.
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(1) Approval. If City determines that: (i) the Reimbursement
Request accurately reflects Reimbursable Project Costs paid in
accordance with this Contract and the Redevelopment Plan and (ii) the
Reimbursable Project Costs for which certification is requested
(considered in combination with all prior amounts certified for the same
cost category or item, as applicable) are in accordance with the
Redevelopment Project Cost ,Budget, it shall approve and certify the
Reimbursement Request within twenty (20) days of receipt of such
Reimbursement Request from Developer.
(2) Disapproval and Review of Decision. If City, pursuant to its
review of such Reimbursement Request and supporting documentation,
determines that any portion of the request for reimbursement should not
be approved, it shall within twenty (20) days of receipt of such
Reimbursement Request state the reasons for such disapproval to
Developer along with evidence supporting such disapproval. Any such
disapproval may be appealed by Developer to the City Administrator, or
his or her designee, whom shall upon Developer's request hold a hearing
at which Developer may present new and/or additional evidence. If City
disapproves a portion of a request, the approved portion of such request
shall be paid without delay as provided herein. If the City fails to respond
to a Reimbursement Request within sixty (60) days of receipt of such
Reimbursement Request, it shall be deemed to have approved .the
Reimbursement Request.
(3) Requests in Excess of Approved Budget. No
Reimbursement Request, will be approved if it causes the total
Reimbursable Project Costs, excluding Financing Costs, to exceed the
total amount set out in the Redevelopment Project Cost Budget for
Reimbursable Project Costs without the formal approval by City Council of
an amended and restated Exhibit D reflecting such.an increase.
(4) Procedural Matters. Each Reimbursement Request for
Developer Reimbursable Project Costs shall be approved administratively,
and no action -of the City Council shall be required to approve such
Reimbursement Request.
E'. Payment of Interest Expenses
(1) Third Party Borrowing Without a Developer Guaranty. In the
event Developer incurs Financing Costs, including interest, on amounts
Developer was loaned to finance-and pay for Reimbursable Project Costs
from a third party in an arms-length transaction for which the Developer
has not provided a personal guaranty as a component of the security for
the loan, the City shall reimburse Developer as a Reimbursable Project
Cost the actual Financing Costs incurred and certified pursuant to this
Section.
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59469376.2
(2) Third Party Borrowing Subject to a Developer Guaranty. In
the event Developer incurs Financing Costs, including interest, on
amounts Developer was loaned to finance and pay- for Reimbursable
Project Costs from a third party in an arms-length transaction for which the
Developer has provided `a personal guaranty as a component of the
security for the loan, the-- City shall reimburse Developer as a
Reimbursable Project Cost with the actual Financing Costs incurred and
certified pursuant to this Section, plus one percent (I%).
(3) Interest on Developer Equity — Developer Publicly Funded
Project Improvements. In the event Developer finances a portion of the
public project improvements with equity, Developer shall receive as a
Reimbursable Project Cost, in addition to the return of its equity, interest
on said equity as and from the date the equity was advanced at the same
rate charged to Developer by a third party in an arms-length transaction
for which the Developer has not provided a personal guaranty as a
component of the security for the loan as described above in Section 2 A
(1), plus one percent (1%)..
(4) Interest Paid Not Included in Total Reimbursable Proiect
Costs. Any interest paid or reimbursed to Developer pursuant to this
Section shall not be included as an expense against the total amount set
out in the Redevelopment Project Cost Budget for Reimbursable Project
Costs.
(5) Certification of Interest Expenses. For purposes of
calculating interest expenses for reimbursement pursuant to this Section,
Developer shall certify its interest expense pursuant to this Section as a
separate ,line item expense. For the month in which interest expense is
initially incurred with respect to any advance of funds, the interest expense
shall accrue from the 15th day of the month incurred'for costs certified
from the 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.
(6) Compound Interest Prohibited. Compound interest shall not
be permitted as a Reimbursable Project Cost.
F. Cost Overruns. The Project Improvements shall be
constructed in substantial accordance with the Redevelopment Project
Cost Budget attached hereto as Exhibit- D. Except as otherwise stated
herein, in no event shall the aggregate total of the Reimbursable Project
Costs that is to be paid for in whole or in part from the Special Allocation
Fund exceed the aggregate of the total Reimbursable Project Costs set
out on Exhibit D; and if, and to the extent that, the Reimbursable Project
Costs exceed said Redevelopment Project Cost Budget in the aggregate,
20_
59469376.2
then Developer, subject to its right to seek to amend the Redevelopment
Plan or this Contract, shall pay and be responsible for such Reimbursable
Project Costs that exceed said Redevelopment Project Cost Budget in the
aggregate. '
22. RESERVED.
23. Payment of Project Costs - "As Collected" Basis. If the Reimbursable
Project Costs are to be reimbursed from the Special Allocation, Fund on an "as
collected" basis rather than paid with proceeds from the sale of Obligations, Developer
shall present to the City a Reimbursement Request for the City's certification pursuant
to the procedure set forth in Section 20. The City shall disburse to Developer sufficient
proceeds from the Special Allocation Fund and in accordance with the priorities
specified in Section 19, to the extent such funds are available in the Special Allocation
Fund, to pay those amounts identified on the certified Reimbursement Request within
ten (10) days following City's certification of such Reimbursement Request. City shall
have the right to require lien releases (full or partial) and such other releases and
documents as City may reasonably require prior to authorizing any such disbursement.
24. RESERVED.
25. Full Assessment of Redevelopment Area. After all Reimbursable Project
Costs have been reimbursed and distribution of any excess moneys pursuant to Section
99.845 and 99.850 of the TIF Act has been made (but not later than twenty-three (23)
years from the adoption of an Ordinance approving and designating the Redevelopment
Project), the City shall adopt an Ordinance dissolving the Special Allocation Fund and
terminating the designation of the Redevelopment Area as a redevelopment area under
the TIF Act (the "Termination Ordinance"). From that date forward, all property in the
Redevelopment Project Area shall be subject to assessments and payment of all ad
valorem taxes, including, but not limited to, City, State, and County taxes, based on the
full true value of the real property and the standard assessment ratio then in use for
similar property by the County Assessor. After the adoption of the Termination
Ordinance, the Redevelopment Area shall be owned and operated by Developer free
from the conditions, restrictions and provisions of the TIF Act, of any rules or regulations
adopted pursuant thereto, of the Ordinance, of the Redevelopment Plan, and of this
Contract, except as otherwise set forth herein or therein.
26. Public Participation. The purpose of affording public assistance to the
Redevelopment Project is to accomplish the stated public purposes and not to subsidize
an otherwise economically viable development project. While it has been determined
by both the TIF Commission and the City Council that the Redevelopment Project would
not be undertaken but for the public assistance being provided, the parties recognize
that the ongoing profitability of the Redevelopment Project to Developer is based upon
projections that may or may not be fulfilled. Therefore, in order to ensure that the public
assistance being provided does not subsidize an unreasonable level of earnings for
Developer, the parties agree that a reasonable level of earnings for the combined
Redevelopment Project is an annual cash on costs rate of return (the "Annual Rate of
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59469376.2
Return") upon the Private Funds invested in the Redevelopment Project from time to
time by Developer ("Private Investment") of twenty percent (20%). The amount of
Private Investment shall be reduced by the net proceeds of any sale of property in the
Redevelopment Area by Developer.
A. Cash Flow. If, as of the last day of each calendar year after
'the Effective Date and prior to the termination of the Redevelopment Area
as a development area, the Net Cash Flow (as hereinafter defined)
exceeds the cash flow necessary to generate a cumulative Annual Rate of
Return of twenty percent (20%) on the Private Investment, the Developer
shall pay the Public Share (as hereinafter defined) to the City to be
deposited into the Special Allocation Fund for the purposes of paying
Reimbursable Project Costs.
B. Developer Financial Information.
(1) Developer shall submit annually a complete written financial
statement to a third party consultant selected by the City (the
"Consultant") in a format reasonably`acceptable to Consultant showing in
reasonable detail the calculation of actual earnings from the
Redevelopment Project and Net Cash Flow. Such statement shall be on a
form or forms as mutually agreed between the Developer and the
Consultant and shall include the income inuring to Developer, its
successors and assigns, and attributable to all Project Improvements.
The financial statement shall include only those expenses which are
reasonable and necessary to the operation of the Project Improvements
and are directly attributable thereto. The financial statement shall not
include any indirect general administrative expenses or charge backs.
The City shall require the Consultant to enter into a non-disclosure
agreement with the Developer to protect the Developer's proprietary
interests in its financial records. The Consultant, after reviewing the
Developer's annual statement as described below, shall report to the City
indicating whether the reported return is above or below the 20% annual
return threshold established in this Section.
(2) Developer shall also submit to the Consultant annually a
statement setting forth in detail reasonably acceptable to Consultant the
amount of Private Investment (by Developer and any third parties) and the
month in which each item constituting a component of the Private
Investment was expended (it being agreed that Developer shall be entitled
to a return upon each such amount constituting a component of the
Private Investment from the date the Private Investment was made). Such
statement shall also include the total amount of all net proceeds of any
sale of property in the Redevelopment Area by Developer (reflecting the
gross proceeds of any sale and the reductions in such gross proceeds to
determine the net sale proceeds), together with a calculation of
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59469376.2
Developer's Annual Rate of Return on Private Investment in accordance
with the provisions of this Section.
(3) Developer shall provide such statements within one hundred
twenty (120) days after the end of each calendar year following the
execution of this Contract. Upon request from the Consultant, Developer
shall provide such additional information or documentation as the
Consultant shall reasonably require to verify or confirm the information set
forth in such statements or to otherwise determine Developer's obligations
hereunder and compliance with the requirements hereof.
C. Audit Right. Upon ten (10) days prior written notice, the
Consultant, with the authorization of the City, may cause an audit of
Developer's statements and calculations referred to herein by the
Consultant; except as provided below regarding under-reported earnings,
the costs of any such audit shall be paid by the City and shall not be
reimbursable to the City from TIF funds. If, as a result of any such audit,
the Consultant believes that Developer owes City more money than has
been remitted by Developer as heretofore described, then the Consultant
shall inform Developer of its position in writing along with providing
reasonable details and the material basis for the Consultant's position.
Developer and the Consultant shall meet and discuss their conflicting,
positions,(the "Audit Meeting"). If after the Audit Meeting, the Consultant
and, Developer are not in agreement, then Developer may request the
conflict be reviewed by the City Council. If the audit indicates that
Developer has under-reported its earnings by three percent (3%) or
greater, Developer shall immediately remit the shortfall, if any, allocable to
the Public Share to City, as well as all costs of Consultant's audit,
subsequent to the Audit Meeting and review by the City Council (if
requested by Developer); if the audit indicates that Developer has
overstated the amount of Private Investment in the Redevelopment
Project, then Developer shall immediately remit the costs of Consultant's
audit, and shall submit its revised statement.
D. For purposes of this Section 25,' the following terms shall
have the meaning set forth below:
(1) Lincoln Project Public Share: Fifteen percent (15.00%)
(2) Commercial Project Public Share: Fifteen percent (15.00%)
(3) Net Cash Flow: The net operating income from the
Redevelopment Project, determined in accordance with accounting
principles consistently applied and mutually agreed to between the
Developer and the Consultant (except as otherwise specified herein), for
each calendar year during which the provisions of this Section are
applicable , plus if not already included, all net proceeds from sales of all
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59469376.2 `
or any part of the Project or any real property in the Redevelopment Area
(after deduction of reasonable costs and expenses of such sale). In
determining the net operating, income from the Redevelopment Project
there shall be no -reduction ' for debt service (principal or interest),
depreciation, amortization or any other non-cash charges, with the
exception of standard reserves (e.g., a reserve for replacement).
(4) Private Investment: The total cost incurred by the Developer
in the acquisition, construction, development and operation of the Project
Improvements which are paid by Developer with Private Funds, as
determined in accordance with accounting principles consistently applied
and mutually agreed to, reduced by all net proceeds (after deduction of
reasonable costs and expenses of such sale) from sales of all or any part
of the Redevelopment Project or any real property in the Redevelopment
Area; subject, however, to the provisions of this Section 25.
27. Calculation of Public Participation. From and after the consummation of
any sale or conveyance (not including leases) to, any unaffiliated third party of any
portion of the Redevelopment Project, City's participation pursuant to Section 25 hereof
and as outlined in this Section shall end as to that part so sold or conveyed after the
date of such sale or conveyance and, if not already included, the proceeds thereof shall
be taken into account in determining Net Cash Flow pursuant to the terms hereof.
28. Tenant Approvals, Prohibitions, and Conditions.
A. The Developer shall have complete and exclusive control
over the leasing or sales of property that it owns within the
Redevelopment Area including, without limitation, the fixing of rentals and
the selection or rejection of users; provided, however, if a retail
establishment relocates within one (1,) year from one facility to another
facility within the County and the City Council finds that the relocation is a
direct beneficiary of Tax Increment Financing, then for purposes of this
definition the EATS generated by the retail establishment shall equal the
total additional revenues from EATS which are imposed by the City,
County or other Taxing Districts over the amount of EATS generated by
the retail establishment in the calendar year prior to its relocation to the
Redevelopment Area.
B. In addition to the statutory relocation provision above, the
Developer shall not cause the relocation of a tenant into the
Redevelopment Area, which is then open and operating in the City and
then ceases to operate the existing facility within six (6) months of the
opening of the new facility within the Redevelopment Area, without the
approval of the City.
(1) In the event that Developer violates the requirements of this
subsection and fails to receive the prior approval of the City as set forth
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59469376.2
,above, for each such violation the Developer shall pay to the City an
amount equal to one and one-half (1.5) times the amount of all City retail
sales taxes generated by such store at its prior location during the
preceding calendar year ("Relocation Penalty Payment"). Any
Relocation Penalty Payment shall be due and payable within fifteen (15)
business days after receipt of written notice from the City for such
payment. Failure to make any Relocation Penalty Payment when due
shall be an event of default of this Contract and Developer shall be subject
to the remedies set forth herein. All Relocation Penalty Payments shall be
expended by the City in a manner consistent with this Contract and,
provided the City obtains an Opinion of Bond Counsel to the effect that the
receipt of such payments will not adversely affect the tax-exempt status of
any outstanding TIF Obligations, in accordance with funds expended from
the Special Allocation Fund.
(2) The Relocation Penalty shall not apply to instances where a,
tenant temporarily ceases to operate its existing facility in the City (but
outside of the Redevelopment Area) and relocates to property in the
Redevelopment Area pursuant to a lease not to exceed six (6) months in
length, and following the expiration of such lease, the tenant relocates to a
facility within the City, but outside of the Redevelopment Area.
C. Developer hereby agrees that it will provide the City with the
name and Missouri state tax identification number of each, tenant or
operator within the Redevelopment Area, and the dates such tenants or
operators begin operations within the Redevelopment Area or cease
operations within the Redevelopment Area, to the extent Developer is able
to obtain such information after reasonable inquiry.
29. Sale or Disposition of Project Property. Subject to the conditions of
Section 28 and Section 32 hereof, Developer may freely sell or transfer any of its
property within the Redevelopment Area without the approval of the City.
A. Transfer of Property by Developer. If the Developer desires
to sell or transfer any part or parcel of the Redevelopment Area (excluding
pad sites) to any transferee, other than a Lender, and maintain Tax
Increment Financing within the Redevelopment Area, the Developer shall,
as a condition precedent to such transfer, obtain the written approval from
the City, not to be unreasonably withheld, conditioned or delayed, unless
Developer's obligations with respect to such part or parcel have been
earlier satisfied under Section 10 hereof. As a condition to such approval,
the City may obligate the transferee to comply with the requirements of the
Redevelopment Plan and the obligations in this Contract relating to the
property.
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59469376.2
B. Continuation of Payments in Lieu of Taxes. In the event of
the sale or other voluntary or involuntary disposition of any or all of the
real property of Developer or any third party in the Redevelopment Area,
Payments in Lieu of Taxes with respect to the real property so sold or
otherwise disposed of shall continue and shall constitute a lien against the
property from which they are derived, and such obligations shall inure to
and be binding upon Developer and its successors and assigns in
ownership of said property as if they were in every case specifically
named and shall be construed as a covenant running with the land and
enforceable as if such purchaser, transferee or other possessor thereof
were originally a party to and bound by this Contract.
C. Obligation to Ameliorate Existing Conditions. Developer's
obligations pursuant to Section 5 hereof, unless earlier satisfied and
certified pursuant to Section 10 hereof, shall inure to and be binding upon
the heirs, executors, administrators, successors and assigns of the
respective parties as if they were in every case specifically named.
D. Incorporation. The restrictions set forth above in this
Section 28 hereof,, shall be incorporated into any deed or other instrument
of conveyance in the sale or transfer set forth pursuant to Section 28.A,
within the Redevelopment Area and shall provide that said obligations or
restrictions shall constitute a benefit held by both Developer and City and
that City is an intended third party beneficiary of said obligations and
restrictions. Failure of Developer to require that such restrictions be
placed in any such deed or other instrument shall in no way modify, lessen
or diminish the obligations and restrictions, set forth herein relating to the
Redevelopment Area.
30. Progress Reports.
A. Annually, Developer shall report to the City Council the
progress of its implementation of the Redevelopment Project. 'Such
reports shall include such information as is required under the reporting
requirements of the TIF Act, such additional information as City may
reasonably require, and such additional information as Developer wishes
to present, including, without limitation:
(1) Project Improvements completed;
(2) status of Project Improvements in progress but not yet
completed;
(3) actual Redevelopment Project Costs in the Redevelopment
Area compared to Redevelopment Plan estimates;
(4) actual start and completion dates of Project Improvements in
the Redevelopment Area compared to Redevelopment Plan estimates;
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59469376.2
1
(5) estimated start date of Project Improvements not yet
commenced at date of report;
(6) a summary of businesses or similar entities or organizations
that have moved into or out of the Redevelopment Area in the preceding
year along with the dates of move-in and move-out for each business; and
(7) a listing of Missouri tax identification numbers obtained in
accordance with Section 17.B.
B. Developer shall from time to time furnish such other reports
on specific matters not addressed by the foregoing as City may
reasonably require.
31. Compliance with Laws. Subject to Developer's rights to contest the same
in any manner permitted by law, Developer, its officers, directors and principals, at its
sole cost and expense, shall comply in every respect with all Legal Requirements,
ordinances, rules and 'regulations of all federal, state, county and municipal
governments, agencies, bureaus or instrumentalities thereof now in force or which may
be enacted hereafter which pertain to construction of the Project Improvements, the
ownership, occupancy, use and operation of the Redevelopment Project and the
Redevelopment Area.
32. Assignment of Developer's Obligations. The Developer represents that its
undertakings pursuant to this Contract are for the purpose of redevelopment. Without
limiting the rights of Developer or any third party under Section 31 hereof, Developer
agrees that this Contract and the rights, duties and obligations hereunder may not and
shall not be assigned by Developer without the prior written consent of the City, which
may be reasonably withheld, delayed or conditioned. Notwithstanding the foregoing:
A. Developer may at any time without the City's consent convey
the Redevelopment Area, assign its rights, and delegate its duties and
obligations under this Contract to any entity controlled by the Developer or
the principals of the Developer, .provided that the management of the
entity is provided by the principals, or by an entity which they together or
individually control.
B. For so long as any of the principals of the Developer or their
entities continues to be the managing member or managing partner of
Developer or any successor entity to Developer, no sale, transfer,
assignment, pledge or hypothecation of an interest in Developer, to an
investor, or other person will be construed as resulting in a change of
control or construed as constituting an assignment of .this Contract that
requires the City's consent.
C. No consent will be required under this section for any pledge
or assignment of this Contract or pledge or assignment of an interest in
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59469376.2
Developer or any interest in any member of Developer as collateral
security for Developer's financing.
D. No consent will be required under this section for any sale or
lease of a parcel for the construction of improvements thereon or the
operation of such property by the purchaser or lessee of the parcel or its
affiliate or borrower (such as the sale, lease, or transfer of a retail building
area for the construction and operation thereon).
Upon approval of such transfer by City as set forth herein, Developer shall be released
from such obligations accruing after the date of such assignment.
33. Assignment of Payments. Notwithstanding the provisions of Section 31,
the Developer may assign or pledge its right to receive reimbursement for Reimbursable
Project Costs incurred by providing City,with notice of any such assignment or pledge.
In the event that Developer desires to assign its rights to,reimbursement pursuant to this
Contract to any third party, the Developer shall first obtain the written approval of the
City. Any assignment or pledge shall remain subject to the terms, provisions and
conditions of this Contract.
34. Collateral Assignment of Contract. Notwithstanding the provisions of
Section 31, the Developer may assign or pledge its right to receive reimbursement for
Reimbursable Project Costs incurred by providing City with notice of any such
assignment or pledge. Such assignment or pledge shall remain subject to the terms,
provisions and conditions of this Contract.
35._ Transfer of Interests in Developer — City Approval. Developer shall, prior
to the sale, conveyance, merger or other transfer of greater than fifty percent (50%) of
the voting interest in Developer membership interests to any person or entity other than
an Affiliate, if Developer is a limited liability company and any transfers by operation of
.law, deliver to City a request for approval of such transfer, and no such transfer shall be
permitted except with the prior approval of City; provided, however, that the members,
partners or shareholders of Developer as of the Effective Date, shall have the right to
transfer, in one-or more transactions, the ownership interest in Developer, without City's
consent, to any entity or entities to which Developer is permitted, without City's consent,
to transfer property and assign its obligations in the Redevelopment Area pursuant to
Section 31 hereof. Upon submission by Developer of any request for transfer to City,
City shall have the right to request such documentation and information as City shall
determine to be reasonably necessary or desirable to determine whether such transfer
is acceptable to City,, In addition, City may require Developer, as a condition precedent
to the transfer of any interests in Developer, to require the transferee to enter into an
agreement with City in form and substance acceptable to the City and such transferee.
Notwithstanding the foregoing, Developer or Developer's members, or any one of them,
may, without notice to or approval of City, transfer interests in Developer to any Affiliate
of such member,if such transfer does not result in a material change in the controlling
interests of Developer.
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59469376.2
36. Representations and Warranties.
A. Representations of the City. The City makes the following
representations and warranties, which are true and correct on the date hereof:
(1) Due Authority. The City has full constitutional and lawful
right, power and authority, under current applicable law, to execute,
deliver and perform the terms and obligations of this Contract, and all of
the foregoing have been or will be duly and validly authorized and
approved by all necessary City proceedings, findings and actions.
Accordingly, this Contract constitutes the legal valid and binding obligation
of the City, enforceable in accordance with its terms.
(2) No Defaults or Violation of Law. The execution and delivery
of this Contract, the consummation of the transactions contemplated
hereby, and the fulfillment of the terms and conditions hereof do not and
will not conflict with or result in a breach of any of the terms or conditions
of any agreement or instrument to which it is now a party, and do not and
will not constitute a default under any of the foregoing.
(3) Litigation. To the best of the City's knowledge, there is no
litigation or proceeding pending against the City with respect to the
Redevelopment Plan or this Contract. In addition, to the best of the City's
knowledge, there is no other litigation or proceeding that is pending
against the City seeking to restrain, enjoin or in any way limit the approval
or issuance and delivery of this Contract or which would in any manner
challenge or adversely affect the existence or powers of the City,to enter
into and carry out the transactions described in or contemplated by the
execution, delivery, validity or performance by the City of the terms and
provisions of this Contract.
(4) Governmental or Corporate Consents. Except for approval
of this Contract by Ordinance of the City Council, no consent or approval
is required to be obtained from, and no action need be taken by, or
document filed with, any governmental body or corporate entity in
connection with the execution and delivery by the City,of this Contract. -
(5) No Default. No default or event of default has occurred and
is continuing, and, no event has occurred and is continuing which with the
lapse of time or the giving of notice, or both, would constitute a default or
an event of default in any material respect on the part of the City under
this Contract.
(6) Construction Permits. The City reasonably believes that all
City-issued permits and licenses necessary to construct the Project
Improvements can be obtained.
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59469376.2
r
(7) Compliance with Laws. The City is in compliance with all
valid laws, ordinances, orders, decrees, decisions, rules, regulations and
requirements of, every duly constituted governmental authority,
commission and court applicable to any of its affairs, business, operations
as contemplated by this Contract.
(8) Other Disclosures. The information furnished to the
Developer by the City in connection with the matters covered in this
Contract are true and correct and do not contain any untrue statement of
any material fact and do not omit to state any material fact required to be
stated therein or necessary to make any statement made therein, in the
light of the circumstances under which it was made, not misleading.
B. Representations of the Developer. 'The Developer makes the
following representations and warranties, which are true and correct on the date
hereof:
(1) Due Authority. The Developer has all necessary power and
authority to execute, deliver and perform the terms and obligations of this
Contract and to execute and deliver the documents required of the
Developer herein, and such execution and delivery has been duly and
validly authorized and approved by all necessary proceedings.
Accordingly, this Contract constitutes the legal valid and binding obligation
of the Developer, enforceable in accordance with its terms.
(2) No Defaults or Violation of Law. The execution and delivery
of this Contract, the consummation of the transactions contemplated
hereby, and the fulfillment of the terms and conditions hereof do not and
will not conflict with or result in a breach of any of the terms or conditions
of any corporate or organizational restriction or of any agreement or
instrument to which it is now a party, and do not and will not constitute a
default under any of the foregoing.
(3) Litigation. To the best of the Developer's actual knowledge,
there is no litigation, proceeding or investigation pending or threatened
against the Developer seeking to restrain, enjoin or in any way limit the
approval or issuance and delivery of this Contract or which would in any
manner challenge or adversely affect the existence or powers of the
Developer to enter into and carry out the transactions described in or
contemplated by the execution, delivery, validity or performance by the
Developer, of the terms and provisions of this Contract.
(4) No Material Change. 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.
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59469376.2
(5) Governmental or Corporate Consents. No consent or
approval is required to�be obtained from, and no action need be taken by,
or document filed with, any governmental body or corporate entity in
connection with the execution, delivery and performance by the Developer
of this Contract other than the subsequent approvals addressed in this
Contract.
(6) No Default. No default or event of default has occurred and
is continuing, and no event has occurred and is continuing which with the
lapse of time or the giving of notice, or both, would constitute a default or
an event of default in any material respect on the part of the Developer
under this Contract, or any other material agreement or material
instrument to which the Developer is a party or by which the Developer is
or may be bound.
(7) Approvals. - Except for subsequent approvals addressed in
this Contract, the Developer has obtained all certificates, licenses,
inspections, franchises, consents, immunities, permits, authorizations and
approvals, governmental or otherwise, necessary to acquire, construct,
equip, operate and maintain the Project Improvements. The Developer
reasonably believes that all such certificates, licenses, consents, permits,
authorizations or approvals which have not yet been obtained will be
obtained in due course.
(8) Construction Permits. Except for subsequent approvals
addressed in this Contract, all,governmental permits and licenses required
by applicable law to construct, occupy ' and operate the Project
Improvements have been issued and are in full force and effect or, if the
present stage of development does not allow such issuance, the
Developer reasonably believes that such permits and licenses will be
issued in a timely manner in order to permit the Project Improvements to
be constructed.
(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.
37. Indemnification.
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59469376.2
A. Developer shall indemnify, protect, defend (with counsel
acceptable to the City) and hold City and its officers, directors, members,
commissioners, employees and agents (collectively, the "Indemnified
Parties" or, individually, an "Indemnified Party") harmless from and
against any and all claims, demands, liabilities and costs, including
reasonable attorneys' fees, costs and expenses, arising from damage or
injury, actual or claimed, of whatsoever kind or character (including
consequential and punitive damages), to persons or property occurring or
allegedly occurring as a result of any acts or omissions of Developer, its
constituent members or partners, their employees, agents, independent
contractors, licensees, invitees or others acting by, through or under such
indemnifying parties, in connection with its or their activities conducted
pursuant to this Contract and/or in connection with the ownership, use or
occupancy and development or redevelopment of the Redevelopment
Area or a portion thereof and the Project Improvements.
B. In the event any suit, action, investigation, claim or
proceeding (collectively, an "Action") is begun or made as a result of
which Developer may become obligated to one or more of the Indemnified
Parties hereunder, the Indemnified Party shall give prompt notice to
Developer of the occurrence of such event, but the failure to notify
Developer will not relieve Developer of any liability that it may have to an
Indemnified Party. After receipt of such notice, Developer may elect to
defend, contest or otherwise protect the Indemnified Party against any
such Action, at the cost and expense of Developer, utilizing counsel of
Developer's choice. The Indemnified'Party shall have the right, but not the
obligation, to participate, at the Indemnified Party's own cost and expense,
in the defense thereof by counsel of the Indemnified Party's choice. In the
event that Developer shall fail timely to defend, contest or otherwise
protect an Indemnified Party against such Action, the Indemnified Party
shall have the right to do so, and (if such defense is undertaken by the
Indemnified Party after notice to Developer asserting Developer's failure to
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.
J
32
59469376.2
D. - Developer expressly confirms and agrees that it has
provided this indemnification and assumes the obligations under this
Contract imposed upon Developer in order to induce City to enter into this
Contract. To the fullest extent permitted by law, an Indemnified Party shall
have the right to maintain an action in any court of competent jurisdiction
to enforce and/or to recover damages for breach of- the rights to
indemnification created by, or provided pursuant to, this Contract. If such
court action is successful, the Indemnified Party shall be reimbursed by
Developer for all fees and expenses (including attorneys' fees) actually
and reasonably incurred in connection with such action (including, without
limitation, the investigation, defense, settlement or appeal of such action).
E. The right to indemnification,set forth in this Contract:
(1) shall not apply to circumstances of breach, the remedies of
which are provided for in Section 38; and
(2) shall survive the termination of this Contract and the
Redevelopment Area as a development area.
38. Breach-Compliance.
A. If the City defaults on its certification or payment obligation
pursuant to Sections 10, 19 and 20 of this Contract (and Developer is not
in default under this Contract) and within thirty (30) days of such default by
the City, City shall not have cured such default, then Developer shall be
entitled to file suit or seek an extraordinary writ to compel the City to cure
such default.
B. Subject to the foregoing Section 37.A., if Developer or City
does .not comply with provisions of this Contract and if, within ninety (90)
days after notice of such default by the non-defaulting party to the
defaulting party, the defaulting party shall not have cured such default or
commenced such cure and be diligently pursuing the same if such cure
would reasonably take longer than said ninety (90) day period (but in any
event if the defaulting party shall not have cured such default within one
hundred eighty (180) days), then:
(1) in the case of default by the City, the Developer shall have
the right.to institute such proceedings as may be necessary in its opinion
to cure the default including, but not limited to, proceedings to compel
specific performance by the City,
(2) in the case of default by Developer, City shall have the right
to terminate this Contract and the right to withhold payment or issuance of
a Certificate of Completion and Compliance. In no event shall the City be
entitled to seek specific performance against the Developer. Neither party
33
59469376.?
shall be entitled to any punitive, special or consequential damages, but the
City shall be entitled to reasonable attorneys' fees.
C. Any delay by either party in instituting or prosecuting any
such actions or proceedings or otherwise asserting its rights under this
paragraph shall not operate as a waiver of such rights or limit them in any
way. No waiver in fact made by either party of any specific default by the
other party shall be considered or treated as a waiver of the rights with
respect to any other defaults, or with respect, to the particular default
except to the extent specifically waived.
D. In no event shall City be obligated to certify any
Reimbursable Project Costs, approve any Reimbursement Request or
reimburse Developer for any Reimbursable Project Costs incurred or paid
by Developer at any time while any default by Developer has occurred and
remained uncured beyond Developer's cure period as provided in Section
37.A. herein, and City has provided notice of such default as required
under Section 39. Notwithstanding the above, if the City validly
terminates this Contract, the City shall be required to, in due course
according to the standards set forth herein, certify any Reimbursable
Project Costs, approve any Reimbursement Request and reimburse
c Developer for any Reimbursable Project Costs incurred or paid by
Developer prior to any such notice of default. If City shall at any time elect
to rely upon the provisions of this Section 37 as the basis for an action by
City, City shall, at the time of such election, notify Developer in writing of
such decision and the specific facts or events relied upon by City as the
basis for such action by City.
E. Notwithstanding anything to the contrary herein, Developer
agrees that in the event of any default by City under this Contract, it will
not bring any action or suit to recover damages against City or any officer,
director, commissioner, member, employee, or agent of any of them.
Actions brought in equity or which otherwise do not seek to recover
damages are not precluded by this Section, nor are actions brought
against any officer, director, commissioner, member, employee, or agent
of any of them for any acts or omissions committed outside the course and
scope of such individual's position with the City.
39. 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
34
59469376.2
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.
40. 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 Hall
Attn: Steve Crowell
320 E. McCarty St.
Jefferson City, MO 65101
With a copy to:
Lauber Municipal Law, LLC
Attn: Jeremy Cover
250 NE Tudor Road
Lee's Summit, MO 64086
Any notice to Developer shall be addressed to:
F&F Development, LLC
Attn: Rob Kingsbury
221 Bolivar Street, Suite 400
Jefferson City, MO 65101
With a copy to:
Polsinelli PC
Attn: Evan Fitts or Korb Maxwell
900 W. 48th Place, Suite 900
Kansas City, MO 64112
Each party shall have the right to specify that notice be addressed to any other address
by giving to the other party ten (10) days' written notice thereof.
41. 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
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59469376.2
mutual agreement between City and Developer. Any modification to this Contract as
approved shall be attached hereto and incorporated herein by reference.
42. Effective Date. This Contract shall become effective on the Effective Date
and shall remain in full force and effect until the completion of all Project Improvements,
as described herein, and so long as any Obligations or Redevelopment Project Costs
remain outstanding and unpaid, subject, however, to the provisions of Section 38
hereof.
r43. 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.
44. Applicable Law. This Contract shall be governed by and construed in
accordance with the laws of the State of Missouri.
45. Covenant Running With the Land. The provisions of this Contract shall
remain in effect for the duration of the Redevelopment Plan and any renewal period or
periods of the Redevelopment Plan at the end of which time they shall cease. They
shall be covenants running with the land and shall be binding, to the fullest extent
permitted by law and equity, for the benefit and in favor of, and be enforceable by, City,
its successors and assigns, against Developer, its successors and assigns; provided,
(a) subject to sales, transfers and assignments under Section 28 and Section 31
herein, this Contract shall not be a covenant against or binding upon any future owner
or tenant of property within the Redevelopment Area and (b) subject to the provisions of
Section 34' hereof, any such covenants shall be binding on Developer, and its
successors and assigns, only during their period of ownership.
46. 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.
47. City's Administrative Costs and Expenses.
A. 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 Contract, and
any other agreements related thereto, the- City shall be entitled to
reimbursement of actual costs and expenses under the existing Funding
Agreement between the parties, but only until funds are available in the
Special Allocation Fund.
B. Beginning in the City fiscal year immediately following the
fiscal year in which funds become available in the Special Allocation Fund,
the City shall be entitled to a fixed administrative fee in the amount, of ten
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59469376.2
thousand dollars ($10,000) per City fiscal year, which shall increase three
(3) percent annually, subject to an annual cap of fifteen thousand dollars
($15,000) (the "City Administrative Fee").
C. The City Administrative Fee shall be reimbursed from the
Special Allocation Fund in accordance with Section 19, 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.
48. 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.
49. Time and Performance are of the Essence. Except as otherwise provided
in this Contract, time and exact performance are of the essence of this Contract.,
50. 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. `
51. 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.
52. Good Faith: Consent or Approval. In performance of this Contract or in
considering any requested extension of time, the City shall have no obligation to
consider a requested extension of time that would extend a time period established in
this Contract for the performance of an obligation of the Developer by more than five (5)
years from the Effective Date. Except as otherwise provided in this Contract,whenever
consent or approval of either party is required, such consent or approval will not be
unreasonably withheld, conditioned -or delayed; if from the City, such consent or
approval may be granted administratively by the City Administrator or appropriate City
official unless otherwise stated. The City agrees to reasonably cooperate with the
Developer with respect to (i) applications for building permits from the City and the
37
59469376.2
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 retail space in Redevelopment Area. The Developer agrees and
acknowledges that in each instance in this Contract or elsewhere where the City is
required or has the right to review or give its approval or consent, no such review,
approval or consent will imply or be deemed to constitute an opinion by the City, nor
impose upon the City, any responsibility for the design or construction of building
elements, including but not limited to the structural integrity or life/safety requirements or
adequacy of budgets or financing or compliance with any applicable federal or state law,
or local ordinance or regulation, including the Environmental Laws— All reviews,
approval and consents by the City under the terms of this Contract.are for the sole and
exclusive benefit of the Developer and no other person or party will have the right to rely
thereon.
[Remainder of Page Intentionally Left Blank]
38
59469376.2
IN WITNESS WHEREOF, the parties hereto have executed this Contract the day
and year first above written.
CITY:
CITY OF JEFFERSON, MISSOURI,
a Missouri municipal corporation
By. ouyyw
Carrie Tergin, Mayor
ATTES
By: APPIWVEDAS TO FORM:
Ofiyllis Powell, tity Clerk
ity Co is or
STATE OF 15 ) 1 )
ss.
COUNTY OF CCAt- )
On this '�Jlay of AQSi 2017, before me personally appeared
Hon. Carrie Tergin, to me know , 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.
lY P MEGAN EUDRIDGE
ortim
=��P4..U
my Cissio"Expires
=* : ? 'GV,•= Ocfober25,2018 Print Name:
. SEAL.- Cole County
o CO"""5510"M ...... Notary Public in and for said County and State
My Commission Expires:
�(A l�
39
59469376.2
DEVELOPER:
F&F Development, LLC,
a Missouri limited liability company
By: ....,.T-------
Print Names �• �••
Title: At,nax,:ea 5•...fo��
STATE
�� _ „Q�LR j ss.
COUNTY OF �
On thi I l day of 2017, before me personally appeared
to me known to be the person described in and who
executed the foreg4a instrume t ho being by me duly sworn, did say he is a member
of F&F Development, LLC, a Missouri limited liability company, and acknowledged said
instrument to be his free act and deed and the free act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial
seal the day and year last above written.
77;�� t(i r
'!�ea 9
P nt Name: yX
Not nd for said County and State
My Commission Expires: Notary JEAPubN MACa a of Missouri
Ly My Commission Expires November 27,2019
Cole County
Commission#11500009
40
594693762
EXHIBIT A
LEGAL DESCRIPTION OF REDEVELOPMENT AREA
T .11
A TRACT OF LAND LOCATED IN THE NORTHWEST QUARTER OF SECTION 7,T44N RI IW
AND N TFIE NORTHEAST QUARTER OF SECTION 12,T44N R12W,INTHE CITY OF JEFFERSON,COIF
COUNTY,MISSOURI,BRING At.),OF INLOT NUMBER3,656THROUGH 60,768 THROUGH 770,PARI'
OF INLOT NM,IBER 771,PART OF THE SOUT14HAST QUARTER OF THE NORTHEAST QUARTER OF
SECTION 12,T44N R 12W, PART OF THE VACATED RIGHT-OF-WAY OF ELM STREET,HARRISON
STREET,MILLER STREET,AND PART OF VACATED ALLEYS,AND THE TRACT DESCRIBED BY A
QUIT CLAIM DEED RECORDED IN BOOK 289,PACE 695,
THIS TRACT IS ALSO DESCRIBED AS THE FIRST, FIM- 1, SWIll, NINTH AND TENTH
PARAGRAPHS DESCRIBED BY COLS COUNTY ABSTRACT & TITLE CO. INFORMATIONAL
COMMITMENT FILE NO, 76459, DATED DECEMBER 5, 200, THE VACATED R1GI3T-OF-WAY OF
HARRISON STREET,AND THE TRACT DESCRIBED BY A QUrr CLAIM DEED RECORDED IN BOOK 289
PAGE 695,
BEGINNING AT THE NORTHEASTERLY CORNER OF INLOT NUMBER 669,TIIENCE ALONG
THE SOUTHERLY RIGHT-OF-WAY L14NB OF 'U.S. HIGHWAY 50 AND 63, N84°37'40"B 52.39 FEET,
THENCE S41017'00"Fi 63.14 FEET;THENCE S4057'30'W 41.51 .FEBT,TNENCE S2943'OVIV 37.62 FELrt'
TO THE WESTERLY RIGHT OF-WAY LIME OF MISSOURI BOULEVARD (BUSINESS ROUTE 50);
THI:NC1; At-ONG SAID LINE, 37500440"W 5776 MET; THENCE ALONG A CURVE:TO THE LEFT,
HAVING A RADIUS OF 539.91 FEET,A DISTANCE OF 325.26 FEET,THE CHORD BIKING S57°49'IW,W
320.36 FELT;THENCE S4003314T W 244.46 FEET;THENCE ALONG A CURVE TO THE RIGHT,HAVING A
RADIUS OF 459.06 FEET,A DISTANCE OF 152.32 FEET,THE CHORD BEING S50°04'00"W 151.62 FEET
TO THE EA5TFiRLY LINE OF THE TRACT DESCRIBED BY A DEED RECORDED IN BOOK 300 PAGE 545,
ALSO BEING THE WESTERLY LINE OF VACATED HARRISON STREET;THENCE N42°1011%ALONG
SAID LINE,4.33 FEET;THENCE ALONG THE NORTHERLY LINE OF THE TRACT DESCRIBED BY A
DEED RECORDED IN BOOP 300 PAGE 545,986°46'10'W 6280 FEET TO THE EASTERLY RIGHT-OF.
WAY LINE OF BOLIVAR STREET; THENCE ALONG SAID LINE N61'24'20"W 30.00 FELT;THENCE
ALONG A CURVE TO THE RIGHT,HAVING A RADIUS OF 686.7.0 FEET,A DISTANCE OF 147.87 FEET,
TH6 CHORD BEING N8015'20"W 137.58 FEET,THENCE N 2.04-50-W 203.64 FEET,111ENCE ALONG A
CURVE.TO THE RIGHT, HAVING A RADIUS.OF 351.97 FEET, A DISTANCE OF 18151 FEET',THE
CHORD TIEING Nlr41'30"C- 179.51 FEET; THENCE N42"10'50'E 441.00 FEET TO THE
N ORTRWES TE RLY CORNER OF INLOT NUMiBER 656;TIIENCE 947°50'20'E,ALONG THE NORTHERLY
LINE OF INLOT NUMBERS 636,657.658,AND 659,A.DISTANCE OF 417.50 FEST TO THE BEGINNING
AND CONTAINING 7.47ACRES.
TRACT'2
A TRACT OF LAND LOCATED IN THE NORTHWEST(QUARTER OF SECTION 7,T44N Rt I W,IN
THE CITY OF JEFFERSON.COLI;COUNTY,MISSOURI,BEING PART OF INLOT NUMBERS 772,773,775,
776,AND 777,THE VACATED ALLEY B13TWIEEN SAID INLOTS,ANIS PARCEL 2 OF A QUIT CLAIM
DEED RECORDED IN BOOK 336 PAGE:608.
THIS TRACT IS ALSO DESCRIBED AS THE SECOND, THIRD AND FOURTH PARAGRAPHS
DESCRIBED IHY COLE COUNTY ABSTRACT&-TITLE CO.INFORMATIONAL COMMITMENT FILE NO.
76459,DATED DECEMBER 5,2012,AND PARCEL 2 OF A QUIT CLAIM DEED RECORDED IN BOOK 336
PAGE MS.
STARTING AT THE MOST NORTHERLY CORNER OF SAID INLOT 776.THENCE S47-36'30"E,
ALONG THE NORTHEASTERLY LINES OF SAID INLOTS 776 AND 777,A DISTANCE OF 123.58 FEET TO
A POINT ON THE LEFT OR NORTHERLY LINE OF RAMP 4 AS PER PLANS OF JOB NO.5-U-54-2588 OF
THE MISSOURI STATE HIGHWAY DEPARTMENT,THE POINT OF BEGINNING.
59469376.2
FROM THE POINT OF BEGINNING,THENCE ALONG THE NORTHERLY OR mim'ERLY LINE
OF SAID RAMP 4,S47°43'3W-W 78.89 FEET TO A POINT 63.00 FEET LEFT OF STATION WO;THENCE
859945'30"W 51.57 FEET TO A POINT 70.00 F813T lXfT OF STATION$+33,30;THENCE S59042'20"W
74AS FELT TO A POINT 71.33 FEET LEFT OF STATION 4+58.19, ALSO BEING ON THE
SOUTHEWESTERLY LINE OF SAID INLOT 776;THENCE N4713410"W,ALONG THE SOUTIIWESTERLY
MIES OF SAID INLOTS 776 AND 775,A DISTANCE OF 139.27 FEET TO A POINT 40.26 FEET LEFT OF
STATION 1.1,43.63 OF DUNKLIN STREET AS PER PLANS OF JOR NO.5-U-54-2588 OF THE MISSOURI
STATE HIGHWAY DEPARTMENT;THENCE LEAVING THE'SOU'1'IIWESTERLY LINE.OF INLOT 775,
N9*1VDVW 4629 FEET TO A POINT ON THE EASTERLY RIGHT-OF-WAY LINE OF MISSOURI
BOULEVARD, AT A POINT 76.00 FEET LEFT OF STATION 15+40; THENCE AI NTO SAID LINE
14380 15'00"R 50,32 FELT TO A POINT$4.00 FEET LEFT OF STATION 15400;THENCE ALONG A CURVE
TO THE LEFT,HAVING A RADIUS OF 553.06 FEET,A DISTANCE OF 205AI FEET,THE CHORD BEING
14510121WE 204.23 FEET TO A POINT 54.00 FEET LEFT OF STATION P.C. 13+14.92; THENCE
N4003340"E 34.92 FEET TO A POINT 54.00 FEET LEFT OF STATION 12+80;THENCE 1165634'50"E 49.66
FEET TO A POINT 75.01)FEET LEFT OF STATION 12+35; THENCE.ALONG THE NORTHERLY OR
WESTERLY LINE OF RAMP 4 AS PER PLANS OF JOB NO,5-U-54-2588 OF THE MISSOURI STATE
HIGHWAY DEPARTMENT.S65°55'10"Ei 50.30 FEET TO A POINT 20.00 FEET LEFT OF STATION 9+50;
THENCE S13828'S0"E 46.29 FEET TO A POINT 25.00 FEET LEFT OF STATION 9+00;THENCE S4050'5011W
89.43 FRET TO A POINT 40.00 FIST LEFT OF STATION 8 00;THENCE SI9040100"W 84.88 FEET TO A
POINT 45.00 FEET LEFT OF STATION 7+OD;THENCE S47°43'30"W 3.77 FEST TO THE BEGINNING AND
CONTAINING 1.46 ACRES.
3-(18 BOUNDED BY THE WESTERLY BANK OF WEARS CREEK,,WI1iCH is SUBJECT TO
CHANGE DUE TO NATURAL CAUSES,AND MAY OR MAY NOT REPRESENT THE ACTUAL LOCATION
arm LIMIT OF TITLE.)
A TRACT OF LAND LOCATED IN THE NORTHWEST QUARTER OF SECTION 7,T44N RI W,IN
THE CITY OF JEFFERSON,COLE COUNTY,MISSOURI,BEING PART OF INLOT NUMBERS 668 AND 669
AND BEING THE TRACTS DESCRIBED BY A WARRANTY DEED RECORDED IN BOOK 352 PAGE 777
AND A QUIT CLAIM DEED RECORDED IN BOOK 395 PAGE 238.
PART OF T131S TRACT IS ALSO DESCRIBED AS THE E1011TH PARAGRAPH DESCRIBED BY
COLE COUNTY ABSTRACT Ry TITLE CO.INFORMATIONAL COMMITMENT FILE NO.7645%DATED
DECEMBER 5,2012.
BEGINNING AT THE INTERSECTION OF THE EASTERLY RIGHT-OF-WAY LINE OF MISSOURI
BOULEVARD(BUSINESS U.S.HIGHWAY 50)AND THE NORTHERLY LINE OF INLOT 668,AT A POINT
BEING 547°48'50"E 42.63 FEET FROM THE NORTHWESTERLY CORNER OF SAID INLOT; THENCE
S4-P48'50"F,ALONG THE NORTHERLY LINE OF INLOTS 668 AND 669,A DISTANCE OF 163.37 FEET TO
THE MOST EASTERLY CORNER OF THE TRACT DESCRIBED BY A DEED RECORDED IN BOOK 352
PAGE 777,ALSO BEING THE NORTHWESTERLY CORNER OF THE TRACT DESCRIBED BY A DEED
RECORDED IN BOOK 395 PAGE 238;THE.Ia CONTINUING ALONG THF NORT'HFRIX LIFE OF INI.OT
669, S47°48"50"E 25.13 FEET TO THE WESTERLY BANK OF WEARS CREEK; THENCE ALONG THE
WESTERLY BANK OF WEARS CREEK;S79041150"1V 28.53 FEET;THENCE S69954'OD"W 25.00 FEET;
THENCE SW44'31)"W 20.00 FEET;THENCE S50-03.10"W 20.00 FEET;THENCE S41959'00"W 40.00 FEET,,
THENCE 5360014150"W 40.00 FEET;THENCE S22°39'30"W 40.00 FEET TO THE NORTHERLY LINE OF
ELM STREET;THENCE N47°38'00"1V ALONG SAID LINO; 11%83 FIMT TO THE HAS`FMI Y RIGHT-OF-
WAY LINE OF THE MISSOURI BOULEVARD CONNECTION TO U.S. HIGHWAY 54;THENCE ALONG
SAID LINE N21°58'24"W 24.37 FEET;THENCE N16001'00"W 62.44 FEET TO THE EASTERLY RI0IIT-OF
WAY LINE OF MISSOURI BOULEVARD(BUSINESS ROUTE 50),THENCE ALONG SAID LINE,ON A
CURVE TO THE RIGHT,HAVING A RADIUS OF 454,91 FEET;A DISTANCE OF 160.03 FEET TO THE
BEGINNING,TILE CHORD BEING 1452"28°30"13159.22 FEET AND CONTAINING 0.79 ACRE.
IRACX 4-(IS BOUNDED BY THE NORTHWESTERLY BANK OF WEARS CREEK,WHICH IS SUBJECT
TO CHANGE DUE TO NATURAL CAUSES, AND MAY OR MAY NOT REPRESENT THE ACTUAI,
LOCATION OF THE LIMIT OF TITLE)
59469376.2
EXHIBIT B
LEGAL DESCRIPTION OF REDEVELOPMENT PROJECT AREA
A TRACT OF LAND LOCATED IN TlIE NORTHWEST QUARTER OF SECTION 7,T44N RI I W
AND IN THE NORTHEAST QUARTER OF SECTION 12,T44N R12W,IN THE CITY OF JEFFERSON,COLE
COUNTY,MISSOURI,BVING,A1.1,OF INLOT NUMBERS 656 THROUGH 663,768 THROUGH 770,PART
OF INLOT NUMBER 771,PART OF THE SOLVIIIHAST'QUARTER OF]III.NORTHEAST QUARTER OF
SECTION 12,T44N R 12W,PART Oft THE VACATFD RIGH�T OF-WAY OF ELM STREET,HARRISON
D R -D
STUBT. MILLM STRE11r,AND PAA�T Of VACATED ALtEYS,A14D THE TRACT' ESC ME BY A
QUIT CLAIM OPED RECORDED IN BOOK 289,PACE 695.
TIIIS TRACT IS ALSO DESCRIBED AS THE FIRST, Ff M- 1, SIXTH, NINTR AND TENTH
PARAGRAPHS DESCRIBED BY COLVi COUNTY ABSTRACT & TITLE CO. INFORMATIONAL
COMMITMENT FILE NO, 76459, DATED DECEW BER 5, 2012, THE,VACATED RIGHT-OFAVAY OF
HARRISON gfRFET,AND THE TRACT DRISCRINED BY A QUIT CLAIM DEED RECORDED IN BOOK 289
PAGE 695,
BEGINNING AT TtIE NORTI MASTERLY CORNER OF INLOT NUMBER.669,THENCE ALONG
THE; SOUTHERLY RMHT-OFAVAY LINE OF U,& HIGHWAY 50 AND 63,N84r37*4w'E 52.39 FEET;
THIINCE$41'17'00"P.63,14 FEIN;THENCE S40s7'341''W 41-51 #FFT;THFNCF-S2r.1.4'0VW 37.62 FEET
TO THE WESTERLY RIGHT-OF-WAY LINE OF MISSOURI BOULEVARD (BUSINESS ROUTE SOY,
`THENCE ALONG SAID LINE, $75004'40"W 5736 FELT; THENCE ALONG A CUKVII .10 THE LE I;
HAVING A RADIUS OF 539.91 FEET,A DISTANCE OF 325.26 FEET,THE CHORD BEING S57"49-10"4V
32036 FEET,THENCE S40-33'4W'W 244.46 FEET;THENCE ALONG A CUP-VETO THE RIGHT,HAVING A
RADIUS OF 459.06 FEET,A DISTANCE OF 152.32 FEET,THE CHORD-BEING S5000d'{ITW 151.62 FELT
TO THF EASTERLY LINE OF THE TRACT DMCRI13HII BY A DEED RfCORDFD IN BOOK 304 PAGE 545,
ALSO 811INGTHE WSTERLY LINE OF VACATED HARRISONSTREEr.THENCE N42010'SW'P,ALONG
SAID LINE,4.33 FEET,THENCE ALONG THE NORTHFRLY LINE,OF THE TRACT DESCRIBED BY A
DEED RECORDED IN BOOK 300 PAGE 545,996046'tirW 62.80 FEET TO THE EASTERLY RiGtrr-op-
WAY LINE OF BOLIVAR STREET; THENCE ALONG SAID LINE N61„24'20,w 34m FEET.THENCE
ALONG A CURVE TO THE RIOUT,RAVING A RADIUS OF 686,20'F T,A DISTANCE OF 147.87 FEET,
THE CHOW BRING N8°15'20”%V 147.59.FEET,THRNCE N 2-04'S0"W 203.64 FEET;THENCE ALONG;A
CURVP TO TJIF RIGHT, HAVING A RADIUS OF 351.97 FEET, A DISTANCE OF 18l I
_5 rRin-
CHORD BRING NW4110"E 179,51 FEET, THENCE N42-10-5VE 441,00 FEET To THE
NORTHWESTERLY CORNER OF INLOTNUMBER 656;THENCE-.S47-50W'E,ALONG THE NORTHERLY
LINE Or INLOT NUMBERS 6S6,657,659,AND 6S9,A DISTANCE OF 417.50 FEET TO TILE BEGINNING
AND CONTAINING 7.47 ACW&
3RACr2
A TRACT Or LAND LOCATED IN THE NORTHWEST QUARTER OF SECTION 7,T44N Rtl%V,IN
THE CITY OFJFITFRSON.COLE COUNTY,MISSOTIRI,BEING PART OF INWTNUMMFRS 772,773,775,
776,AND 777,THR VACATRD ALLEY BETWEEN SAID INLOT'S,AND PARCEL 2 OF A QUIT CLAIM
DEE'D RECORDED IN BOOK 336 PAGE 608.
THIS TRACT 15 ALSO DESCRIBED AS THR SPCOND. nIRD AND FOURTH PARAGRAPHS
DESCRIBED BY COLE COUNTY ABSTRACT&TME CO.INFOR.M01ONAL COMME'l-MRNTFILE NO.
76459,DATED DECEMBER 5,2012,AND PARCEL 2 OF A QUIT CLAIM DEED RECORDED IN BOOK 336
PAGE 608,
STARTING AT THE MO&I'NORTHERI.Y CORNER,OF SAID INLOT 776,TMCS S47°36'34"Bo
ALONG T14E NORTHEASTERLY LINES OF SAID INLOTS 776 AND 777,A DISTANCE Or 123-58 FEET TO
A POINT ON THE LEFT OR NORTIIERLY LINE OF RAMP 4 AS PER PLANS OF JOB NO.3-U-54-2588 OF
THE MjSSOURI STATE HIGHWAY DHPARTMEN'I,THI*POINT 017 BROINNING.
1.
59469376.2
FROM TRE POINT OF BEGINNING,THENCE ALONG THE NORTHERLY OR WP.S-TERLY LINE
OF SAID RAMP 4,S47-43'30"'W78.89 FEET TO A POINT 63.00 FEET LEFT OF STATION 600;THENCE
859945'30'W 53.57 FEET TO A POINT 70.00 PCE'LEFT OF STATION 5+33.30;THENCE S59142'2W*W
74AS FEET TO A POINT 71.33 FEET LEFT OF STATION 4+58.19, ALSO BEING ON THE
SOUTHEUMSTERLY LINE OF SAID INLOT 776;TFIENCEN'471341WV,ALONG THE SOUTHWESTERLY
LINES Or SAID INLOTS 776 AND 775,A DISTANCE Or 139.27 FEET TO A POINT 40,26 FEET LEFT'OF
STATION 1.143,65 or DuNKLiN STREET As PER PLANS OF 1033 No,1-11-54-2588 OF T141i MISSOURI
STATE HIGHWAY DEPARTMENT,THENCE LEAVING THE SOUTHWESTERLY LINE OF INLOT 775,
N9*15'0r%ll 4629 FEE.r TO A POINT ON THE EASTERLY RIOUT-OF-WAY LINE OF MISSOURI
BOULEVARD, AT A POINT 76.00 FEET LEFT OF STATION 15+40, TIIFNCE ALONG SAID LINE
N3895'00S 50.32 FEET TO A POINT 54.00 FEET LEFT OF STATION 15+00;THENCE ALONG A CURVE
TO THE LEFT,RAVING A RADIUS OF 553.06 FEEL A DISTANCE OF 205.41 FEET,THE CHORD BEING
N510ITIVIE 204.23 FEET TO A POINT 54.00 FEET LEFT OF STATION P.C. 33+14.92; THENCE
140'33'44'R 34,92 FEET TO A POINT 54.00 FEET LEFT'OF STATION 32+80;THENCE N6334'50"E 49.66
FEET TO A POINT 75.00 FEET LEFT OF STATION 12+35,THENCE ALONG THE NORTIMRIN OR
WESTERLY LINE OF RAMP 4 AS PER PLANS OF JOB NO,5-U-54-2588 OF THE MISSOURI STATE
HIGHWAY DEPARTMM 565055110 E.5030 FEIrV TO A POW 20.00 FEE r LEFT OF STATION 9+54;
THENCE St5428'0'E 46,29 FEET TO A POINT 2100 FEET LEFT Or STATION 9+0;THENCE 54150 50"W
89.43 FEET TO A POINT 40j00 FEET LEFT OF STATION SQ0;THENCE SI 9-40"00-W 84.89 FEET TO A
POINT 4$,00 FEET LEFT Or STATION 7100;THENCE S47-43-30-W 3.77 FEET TO THE BEGINNING AND
CONTAINING I A6 ACRES.
-(IS BOUNDED BY THE WESTERLY DANK OF WEARS CREEK, WHICH IS SUBJECT TO
CHANGE DUE TO NATURAL CAUSES,AND MAY OR MAY NOT REPRESENT THE ACTUAL LOCATION
OF I'HE LIMIT OF TITLE)
A TRACT OF LAND LOCATED IN THE NORTHWEST QUARTER OF SECTION 7,1-44N RI I W,IN
THE CITY OF JEFFIIRSON;COLR COUNTY.MISSOURI,BEING PART Or INLOT NUMBERS 668 AND 669
AND BF%G THE?TRACTS DESCRIBED BY A WARRANTY DEED RECORDED IN BOOK 352 PAGE 777
AND A QUIT CLAIM DEED RECORDED IN BOOK 395 PAGE 235.
PART OF THIS TRACT IS ALSO DESCRIBED AS THE EIGHTH PARAGRAPH DESCRIBED BY
COLE COUNTY ABSTRACT&TrI'L2 CO,INFORMATIONAL commrrmwT FILE No.7609,DATED
DECEMBER 5,2012.
BEGINNING AT THE INTERSECTION OF THE EASTERLY RIGHT-OF-AlAY LINE OF MISSOURI
BOULEVARD(BUSINESS US,HIGHWAY 50)AND THE NORTI-ifiRLY TINE Or,INLOT 668,AT A POINT
BEING 1847°4r50"la 42.61 FEET FROM 114B NORTHWESTERLY CORNER Or SAID INLOT, THENCE
547°4$'5W%,ALONG T14B NORTHERLY LINE OF INLOTS 668 AND 669.A DISTANCE OF 163.37 FEET TO
THE MOST EASTERLY CORNER OF THE TRACT DESCRIBED BY A DEED RECORDED IN BOOK 352
PAGE 777,ALSO BEING THE NORTHWESTERLY CORNER OFTHE TRACT DESCRIBED BY A DEED
RECORDED IN BOOK 39S PAGE 238;THENCE corrINUiNG ALONGTHF XORTHFRLY LINE OF INLar
669, 5474,48150"E 25.13 FEET TO THE WESTERLY BANK OF WEARS CREEK;THENCE ALONG THE
WESTERLY BANK OF WEARS CREEK;S7904115&'W 28,53 FEET;THENCE S69054'OVW 25.00 FEET;
THENCE S64P44'3WW 20.00 FEET,THENCE 8513°03'10"W 20.00 FEET,THENCE S41-59'*VW 40.00 FEET;
THENCE 836-44'50"W 40.00 FEET;THENCE S22-39'30q61r 40.00 FLET TO THE NORTHERLY LINE OF
ELM STREET;THENCE N47-38%"W ALONG SAID LIN U; 119.93 fIgHTTO THE PASTERLY RICHT-OF-
WAY LM OF THE MISSOURI BOULEVARD CONNECTION TO U.S, HIGHWAY 54;THENCE ALONG
SAID LINE M1-53;'20'W 24.37 FEET,THENCE N16-03'00"W 62.44 FEET TO THE EASTERLY RllaHT-OF-
WAY LINE OF MISSOURI BOULEVARD(BUSINESS ROUTE 50).THENCE ALONG SAID LINK ON A
CURVE TO THE RIGHT,HAVING A RADIUS OF 459.91 FEET;A DISTANCE OF 14043 FEET To THE
BEGINNING,THE CHORD BEING N52928'3V'E 159,22 FEET AND CONTAINING 0.7.9 ACRE.
TRACT 4-(IS BOUNDED BY THE NOR*nI6VESTE3RLY BANK OF WEARS CREEK,WHICH IS SUBJECT
TO CHANGE DUE TO NATURAL CAUSES, AND MAY OR MAY NOT REPIRESSNT THE ACTUAl,
LOCATION OF THE LlMrf OF TITLE)
59469376.2
EXHIBIT C
REDEVELOPMENT SCHEDULE
Acquisition December 2015
Renovation* Commencing 2017, site clearance and demolition,
and site work
Marketing, leasing/sale, and development of pad
sites will be ongoing commencing in the Summer of
2017
Pursuit of Lincoln Project commenced in December
2015 and a determination as to state financing is
anticipated to be made in the 2018 legislative
session. If state financing is secured, construction
will commence on the Lincoln Project in the
Summer of 2018. Redevelopment of the St. Mary's
Hospital Building and the Medical Office Building
is anticipated to occur at that time.
If state financing is not secured for the Lincoln
Project,the Developer may commence the
Commercial Project at any time.
Anticipated completion date is late 2019.
* Dates are proposed and approximate
59469376.2
EXHIBIT D
REDEVELOPMENT PROJECT COSTS (Lincoln Project)
Cost Category Total Reimbursable Proiect Costs
Land Acquisition
Land Acquisition&Carry $1,250,000 $192,910
$1,250,000 $192,910
Demolition Costs
Asbestos Removal $1,400,000 $216,059
Garage Demolition $150,000 $23,149
Demolition of Walk Bridge $32,000 $4,938
Demolition of East Building $122,248 $18,866
Demolition Between Buildings $195,918 $30,236
Medical Office Building Partial Demolition $55,500 $8,565
Historic Building Partial Demolition $63,000 $9,723
Partial Demolition of Central Building $135,985 $20,986
$2,154,651 $332,523
Site Preparation/Infrastructure
Site Utilities $742,000 $114,511
Garage Repairs $1,000,000 $154,328
Excavation $888,600 $137,136
Asphalt/Pavement $565,302 $87,242
Landscaping $325,100 $50,172
Curb/Gutter $190,180 $29,350
Sidewalks $85,090 $13,132
Retaining Walls $540,000 $83,337
$4,336,272 $669,208
Buildinq Construction Costs
Lincoln University-Site $13,535,000 $2,088,829
Medical Office Building Remodel $2,775,000 $428,260
Historic Building Remodel $7,500,000 $1,157,460
Building 4A $1,760,000 $271,617
Building 4B $990,000 $152,785
Building 5 $1,320,000 $203,713
Building 7 $550,000 $84,880
$28,430,000 $4,387,545
Soft Costs
59469376.2
Architecture&Engineering $995,050 $153,564
Legal/Accounting $450,000 $69,448
Closing Costs/Financing Fees $284,300 $43,875
Interest Reserve $284,300 $43,875
Construction Management Fee $284,300 $43,875
Developer Fee $1,705,800 $263,253
Overhead&Reimbursables $284,300 $43,875
Testing,Surveys and Studies $100,000 $15,433
Permits&Fees $125,000 $19,291
Real Estate Taxes $120,000 $18,519
Construction Period Insurance $100,000 $15,433,
$4,733,050 $730,442 i
Contingency
Hard Cost Contingency $3,492,092 $538,928
Soft Cost Contingency $236,653 $36,522
$3,728,745 $575,450
TOTAL: $44,632,718 $6,888,078
f
59469376.2
EXHIBIT D (Continued)
REDEVELOPMENT PROJECT COSTS (Commercial Project)
Cost Category Total Reimbursable Project Costs
Land Acaujsition
Land Acquisition&Carry $1,250,000 $243,786
$1,250,000 $243,786
Demolition Costs
Asbestos Removal $1,400,000 $273,040
Garage Demolition $150,000 $29,254
Demolition of Walk Bridge $32,000 $6,241
Demolition of East Building $122,248 $23,842
Demolition Between Buildings $195,918 $38,210
Medical Office Building Partial Demolition $55,500 $10,824
Historic Building Partial Demolition $63,000 $12,287
Total Demolition of Central Building $650,000 $126,769
I
$2,668,666 $520,466
Site Preparation/Infrastructure
Site Utilities $742,000 $144,711
Garage Repairs $1,000,0,00 $195,029
Excavation $888,600 $173,302
Asphalt/Pavement $565,302 $110,250
Landscaping $325,100 $63,404
Curb/Gutter $190,180 $37,091
Sidewalks $85,090 $16,595
Retaining Walls $540,000 $105,315
$4,336,272 $845,697
Building Construction Costs
Medical Office Building Remodel $2,775,000 $541,205
Historic Building Remodel $7,500,000 $1,462,715
Building 2 $1,320,000 $257,438
Building 3 $704,000 $137,300
Building 4A $1,760,000 $343,250
Building 4B $990,000 $193,078
Building 5 $1,320,000 $257,438
Building 7 $550,000 $107,266
$16,919,000 $3,299,690
59469376.2
Soft Costs
Architecture&Engineering $592,165 $115,489
Legal/Accounting $450,000 $87,763
Closing Costs/Financing Fees $169,190 $32,997
Interest Reserve $169,190 $32,997
Construction Management Fee $169,190 $32,997
Developer Fee $1,015,140 $197,981
Overhead&Reimbursables $169,190 $32,997
Testing, Surveys and Studies $100,000 $19,503
Permits&Fees $125,000 $24,379
Real Estate Taxes $120,000 $23,403
Construction Period Insurance $100,000 $19,503
$3,179,065 $620,009
Contingency
Hard Cost Contingency $2,392,394 $466,585
Soft Cost Contingency $158,953 $31.,000
$2,551,347 $497,586
TOTAL: $30,904,350 $6,027,235
59469376.2
EXHIBIT E
SITE PLAN (Lincoln Prosect)
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EXHIBIT E (Continued)
SITE PLAN (Commercial Proiect)
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594693762
EXHIBIT F
DESCRIPTION OF PROJECT IMPROVEMENTS
I. Lincoln Project
A. Partial demolition, environmental remediation, and excavation of
Redevelopment Area;
B. Renovation and restoration of historic St. Mary's Hospital for use as an
office building;
C. Renovation and restoration of medical office building;
D. Partial demolition and renovation of St. Mary's Hospital expansions for use
as Lincoln University satellite campus;
E. Construction of 4 commercial pad sites, consisting of approximately
21,000 square feet of commercial space; and
F. Construction of associated infrastructure,.site work, and site amenities
II. Commercial Project
A. Partial demolition, environmental remediation, and excavation of
Redevelopment Area;
B. Renovation and restoration of historic St. Mary's Hospital for use as an
office building;
C. Renovation and restoration of medical office building;
D. Complete demolition of St. Mary's Hospital expansions;
E. Construction of 6 commercial pad sites, consisting of approximately
30,200 square feet of commercial space; and
F. Construction of associated infrastructure, site work, and site amenities
59469376.2
EXHIBIT G
FORM OF COMPLETION CERTIFICATION
The undersigned, F&F Development, LLC (the "Developer"), pursuant to that certain
Tax Increment Financing Contract dated as of _, 2017, between the City of
Jefferson, Missouri (the "City") and the Developer (the "Contract"), hereby certifies to the City
as follows:
1. That as of 20 , the construction, renovation, repairing,
equipping and constructing of the Redevelopment Project (as such term .is defined in the
Contract) has been substantially completed in accordance with the Contract.
2. The Redevelopment Project has been completed in a workmanlike manner and
in accordance with the Redevelopment Plan and that Developer is in material compliance with
the provisions of the Contract(as those terms are defined in the Contract).
3. Lien waivers for applicable portions of the Redevelopment Project.
4. This Certificate of Completion and Compliance is accompanied by (a) a
certificate of substantial completion (or the substantial equivalent thereof), a copy of which is
attached hereto as Appendix A and by this reference incorporated herein), certifying that the
Redevelopment Project has been substantially completed in accordance with the Contract; and
(b) a copy of the certificate(s) of occupancy issued by the City, to the extent applicable.
5. Attached hereto as Appendix B are the total Redevelopment Project Costs
incurred by Developer to date and total Redevelopment Project Costs that have been
reimbursed from TIF Revenue (as those terms are defined in the Contract).
6. This Certificate of Completion and Compliance is being issued by the Developer
to the City in accordance with the Contract to evidence the Developer's satisfaction of all
obligations and covenants with respect to the Redevelopment Project.
This Certificate is given without prejudice to any rights against third parties which exist
as of the date hereof or which may subsequently come into being.
Terms not otherwise defined herein shall have the meaning ascribed to such terms in
the Contract.
59469376.2
IN WITNESS WHEREOF, the undersigned has hereunto set his/her hand this day
of , 20
I
DEVELOPER:
F&F Development, LLC
By:
Name:
Title:
ACCEPTED:
CITY OF JEFFERSON, MISSOURI
By:
Name:
Title:
59469376.2
APPENDIX A TO CERTIFICATE OF COMPLETION AND COMPLIANCE
CERTIFICATE OF SUBSTANTIAL COMPLETION AND CERTIFICATE OF OCCUPANCY
59469376.2
APPENDIX B TO CERTIFICATE OF COMPLETION AND COMPLIANCE
REDEVELOPMENT PROJECT COSTS
59469376.2
EXHIBIT H
FORM OF REIMBURSEMENT REQUEST
Request No. Date:
Pursuant to the Tax Increment Financing Contract (the "Contract") between the City of
Jefferson, Missouri and F&F Development, LLC (the "Developer"), the Developer requests a TIF
reimbursement and hereby states and certifies as follows:
1. The date and number of this request are as set forth above.
2. All terms in this request shall have and are used with the meanings
specified in the Contract.
3. The names of the persons, firms or corporations to whom the payments
have been made and reimbursement is hereby requested, the amounts to be reimbursed
and the general classification and description of the costs for which each obligation
requested to,be reimbursed hereby was incurred are as set forth on Attachment I
hereto. The total Reimbursable Project Costs by line item category for this
Reimbursement Request, the total Reimbursement Project Costs by line item category
from all prior Reimbursement Requests, and the estimate percentage of work by line
item category completed as of the current Reimbursement Request are set forth by line
item category on Attachment II.
4. These costs have been incurred and are Reimbursable Project Costs
under the Contract. -
5. Each item listed above has not been previously reimbursed from and no
part thereof has been included in any Reimbursement Request or other disbursement
request previously filed with the City or other political subdivision.
F&F Development, LLC
By:
Title:
Approved this day of , 20_
CITY OF JEFFERSON, MISSOURI
By:
City Representative
59469376.2
ATTACHMENT
TO CERTIFICATION OF EXPENDITURES
REQUEST NO. DATED
SCHEDULE OF PAYMENTS REQUESTED
Person, firm
or corporation
to whom payment Amount to Line Item Category
was made be reimbursed From Redevelopment Cost Budget
59469376.2
ATTACHMENT II
TO CERTIFICATION OF EXPENDITURES
REQUEST NO. DATED
REIMBURSEMENT REQUEST REPORT
Reimbursable Reimbursable
Costs—Current Costs—Total Estimate
Total Project Request to Date of%Work
Development Cost Budget Costs (by category) (by category) Completed
Land Acquisition & Carry
Demolition Costs
Site Preparation/infrastructure
Building Construction Costs
Soft Costs
Contingency
Total
594693762