HomeMy Public PortalAboutORD14300 BILL NO. 2007-129
SPONSORED BY COUNCILMAN CRANE
ORDINANCE NO. 12+ 30
AN ORDINANCE OF THE CITY OF JEFFERSON, MISSOURI, AUTHORIZING THE
MAYOR AND CITY CLERK TO EXECUTE AN PRE-DEVELOPMENT AGREEMENT WITH
JFCHC, LLC.
NOW, THEREFORE, BE IT ENACTED BY THE COUNCIL OF THE CITY OF
JEFFERSON, MISSOURI AS FOLLOWS:
Section 1. The Mayor and City Clerk are hereby authorized to execute an pre-
development agreement with JFCHC, LLC for the proposed conference center.
Section 2. The agreement shall be substantially the same in form and content as
the agreement attached hereto as Exhibit A.
Section 3. This Ordinance shall be in full force and effect from and after the date
of its pass a and approval.
Passed: 7 Approv
Presiding Officer IMayor
ATT ST: AP ED S TO FORM:
City C! , k Y City Couns elor
•
PRE-DEVELOPMENT SERVICES AGREEMENT
HOTEL AND CONFERENCE CENTER
JEFFERSON CITY, MISSOURI
This Pre-Development Services Agreement ("Agreement") dated as of January 18, 2008
(`Effective Date"), is entered into by and between Jefferson City, Missouri ("City"), and JFCHC,
LLC, a Missouri limited liability company ("JFCHC"), in connection with the proposed
development of a conference center and hotel, parking garage, ground floor retail and possible
office building(the "Project")on West McCarty Street, Jefferson City, Missouri.
WHEREAS City is contemplating the potential construction of a garage, conference
center and hotel and other related development on a site controlled by the City on West McCarty
Street to serve the needs of the general public;
WHEREAS, the City is now considering ownership and financing structures,
development costs and operating revenue and costs for the Project and has selected JFCHC (i) to
study the funding and ownership options for the Project and to provide the City with a business
plan detailing the size, building program, conceptual design, estimated development costs,
operating pro forma, and funding, operating and ownership alternatives for the Project; and (ii)
such other services necessary and incidental to the foregoing as the City may reasonably request
and approve subject to an understanding and agreement between the City and JFCHC of possible
additional fees for such services, and
WHEREAS, the City contemplates the possible engagement of JFCHC as the developer
of the Project or any portion thereof or in another appropriate role in the event that the City elects
to proceed with the Project or any portion thereof.
In consideration of the mutual promises and covenants herein contained, the parties
hereto agree as follows:
Section 1. Pre-Development Scope of Services and Schedule.
(a) City will provide to JFCHC any currently existing studies and other documents
pertaining to the Project. The materials may include a summary of zoning and land use issues
related to the Project as they currently exist, provided, however, that the alternatives to be
proposed by JFCHC need not take into account existing zoning.
(b) JFCHC contemplates engaging the services of a hotel operator("Hotel Operator")
and parking consultant ("Parking Consultant") and/or convention and hotel consulting firm
(b) JFCHC contemplates engaging the services of a hotel operator("Hotel Operator")
• and parking consultant ("Parking Consultant") and/or convention and hotel consulting firm
("CH Firm"), mutually acceptable to the City and JFCHC, to provide consulting services with
respect to the hotel, conference center, and the garage and/or surface parking for the Project.
Notwithstanding the use of the Parking Consultant, JFCHC acknowledges that the City may
elect to handle the management and operation of the parking itself or may elect to hire an
outside firm of its sole choice.
(c) JFCHC will, if it recognizes the need for third-party retail consultation, engage
the services of a qualified retail consultant ("Retail Consultant"), mutually acceptable to the
City and JFCHC, to analyze the market for retail and service uses on a portion of the ground
floor of the Project and to furnish projected rents obtainable therefrom.
(d) JFCHC will engage the services of DLR Group ("Architect") to prepare a
preliminary site plan and other preliminary program and design analysis ("Preliminary Project
Design") for the Project.
(e) Based on the Preliminary Project Design, JFCHC will engage a construction
company ("Contractor"), mutually acceptable to the City and JFCHC, to prepare a preliminary
estimate of the total Project construction costs ("Preliminary Project Pricing").
• (f) JFCHC will work with the Hotel Operator, the Parking Consultant, the CH Firm,
and/or the Retail Consultant to create a profit and loss statement for the Project ("Preliminary
Project Operating Pro Forma").
(g) Based on the Preliminary Project Pricing and Preliminary Project Operating Pro
Forma, JFCHC with input from an investment banker or mortgage banker ("Banker"), mutually
acceptable to the City and JFCHC, will prepare financial models for potential ownership
structures for the Project.
(h) Simultaneously with the above tasks, JFCHC will diligently investigate financing
and ownership options for the Project.
(i) JFCHC will use its good faith best efforts to deliver its final report on the Project
("Final Report") to the City within one hundred eighty (180) days of the Effective Date. It is
understood that JFCHC cannot be held responsible for the timely delivery of documents from,
or the scheduling of meetings with, the City, state or other public entities. In the event that the
City fails to deliver to JFCHC any data, information, studies, or other details in its possession or
control relative to the Project within the first thirty days following the Effective Date, the time
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for delivery of the Final Report shall be extended for a period equal to the number of days such
• delivery is delayed beyond said initial 30-day period. Notwithstanding anything to the contrary
herein, in the event that the Final Report has not been delivered to the City within two hundred
ten (210) days of the Effective Date, the City shall have the right to terminate this Agreement
and JFCHC shall provide to the City all information it has developed to date in support of the
Final Report.
(j) JFCHC shall report on the status of its efforts relating to the Project on a monthly
basis or more often if required. The meetings shall be held by conference call or in person.
(k) All plans, reports, studies, etc. prepared, received or commissioned by JFCHC in
connection with the Project shall be deemed the property of the City once full payment for the
services are received by JFCHC, provided that ownership of the design plans and construction
drawings will be subject to the industry standard conditions and restrictions on liability with
regard to any unrelated use of such architectural plan s and drawings.
Section 2. Development of the Project.
(a) If the City determines to proceed with the development and construction of the
Project, JFCHC and the City, in accordance with the laws of the State of Missouri, shall
• negotiate and execute a form of "Development Management Agreement" with respect to the
Project (the "DMA"), pursuant to which JFCHC shall continue to be the exclusive developer for
the Project.
(b) In the event the DMA is not executed within one hundred twenty (120) days
following the date of delivery of the Final Report, this Agreement shall terminate and be of no
further force and effect. Provided, however, notwithstanding the previous sentence, (i) if the
reason that the DMA is not executed within such 120-day period is that the City has decided, as
provided in Section 4(c)(ii), that the Project is not legally or economically feasible, then, in the
event the City were to elect to proceed with the Project within twenty-four (24) months
following the aforesaid 120-day period, the City shall negotiate and execute a DMA in
accordance with Section 2(a) hereof. The City agrees that JFCHC is relying on this covenant of
the City in entering into this Agreement.
(c) Prior to the execution of the DMA, the relationship between JFCHC and the City
shall be governed solely by the terms of this Agreement.
(d) The development "turn-key" services anticipated to be provided under the terms
of the DMA shall be fully transparent to the City throughout the development process and may
• Pre-Development Services Agreement—Page 3
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include, but are not to be limited to, oversight of any site acquisition required, directing the
• application of all permits and approvals, overseeing the drafting of all agreements, overseeing
the design, value-engineering, bidding and construction, contracting with Project professionals
and contractors, coordinating pre-opening services of the Project, and directing the financing and
ownership structure of the Project.
Section 3. Compensation.
The City agrees to compensate JFCHC as follows:
(a) The City will pay JFCHC a fee of Two Hundred Thousand Dollars ($200,000) for
the Pre-Development Services for the Project outlined in Section 1 above.
(b) An initial payment of One Hundred Thousand Dollars ($100,000) will be due
upon signing of this Agreement. A second payment of Fifty Thousand Dollars ($50,000) will be
due upon delivery and acceptance of the Preliminary Project Pricing and Preliminary Project
Operating Pro Forma. A final payment of Fifty Thousand Dollars ($50,000) will be due upon
completion of the Final Report.
(c) This fee will include all out-of-pocket expenses for JFCHC and compensation
• paid by JFCHC for any consulting services of the Hotel Operator, Parking Consultant, CH Firm,
Retail Consultant, Contractor, Banker and Architect, or similarly qualified consultant, to be
selected. If JFCHC determines that additional consultants are required for currently unforeseen
circumstances relating to the Project (for example, environmental engineers, hydrologists, etc.)
and if the City approves in writing the engagement of the additional consultants, the costs for
those additional consultants will be added to the fee outlined in Section 3(a) above and will be
paid by JFCHC under the payment terms of the additional consultants pursuant to agreements
that have been approved by the City.
(d) If the City determines to proceed on the development and construction of any of
the Project components, it is anticipated that the fees outlined in Section 3(a) above shall be
reimbursed to the City out of the proceeds from the funding of the Project.
(e) It is anticipated that the "turn-key" development services under the DMA outlined
in Section 2(d) above shall be performed by JFCHC for a Development Management Fee of five
percent (5%) of the Project's total development budget calculated to include all planning,
permits, design, supervision, construction, construction management, furniture, fixtures and
equipment, and pre-opening expenses of the Project.
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Section 4. Additional Provisions.
(a) The City is relying on the experience, skill, judgment and qualifications of
JFCHC. JFCHC may not assign their rights nor delegate obligations under this Agreement, other
than those noted in this Agreement, without the prior written consent of the City. Any attempted
assignment or delegation by JFCHC shall be void. JFCHC represents that its component entities
are Garfield Traub Development LLC and BBC, LLC and that the principals and responsible
individuals thereof for whom experience and background information has been provided to the
City will maintain their roles in operating JFCHC.
(b) A fundamental basis underlying the City decision to select JFCHC to collaborate
with the City on the Project is the past experience of the constituent entities of JFCHC in
developing financing structures for public entities. By executing this Agreement, JFCHC agrees
to and acknowledges its fiduciary obligation to the City to diligently and fully investigate
financing and ownership options for the Project, it being the intent and goal of the City to
identify the structure that results inter alia, in the most favorable outcome to the City in the
City's discretion.
(c) This Agreement shall be terminable by either party at any time for good cause.
As used in the Agreement, "good cause" means (i) the gross negligence or willful misconduct
• under, or the material breach (after a ten (10) day cure period) of, this Agreement by the non-
terminating party or(ii) the good faith decision of either party following the delivery of the Final
Report that the Project is not legally or economically feasible. .
(d) All day-to-day contacts with JFCHC shall be made through Steve Moffett or, in
his absence, Raymond Garfield. All contacts with the City shall be made through Steve
Rasmussen, City Administrator or the designated acting City Administrator in his absence.
(e) All notices and other communications hereunder shall be in writing, shall become
effective when delivered to the addressee, and may be transmitted by certified mail (return
receipt requested), telegram, telex, overnight courier service, or other commercially reasonable
and customary means, addressed to the party at the address listed beneath that party's signature
below, or at such other address as the party shall have furnished to the other party in writing.
(0 This Agreement shall be construed and enforced in accordance with and governed
by the laws of the State of Missouri applicable to contracts made and to be performed entirely
within such state.
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(g) Any acceptance, signature, execution or validation of this Agreement or any
• communication or notice required hereunder shall be mutually signed and delivered by hard copy
or by fax. No purported offer, acceptance or contract, amendment, or binding agreement in
connection with this transaction shall be made by automated agent, electronic agent, electronic
mail, electronic signature, telephonic voice mail, sound recording, or other electronic means of
any kind. This Section cannot be waived except by mutually signed, written consent of both
parties.
(h) JFCHC shall act as an independent contractor in the performance of its
responsibilities and this Agreement shall not be deemed to create an employer-employee or joint
venture relationship, either express or implied, between JFCHC and the City.
(i) This Agreement sets forth the entire understanding of the parties with respect to
the subject matter hereof, and all prior agreements, whether written or oral, are deemed to be
merged herein.
This Agreement is entered into as of the Effective Date.
JFCHC,LLC,
a Missouri-li ited liabilit m
• Address:
13455 Noel Road, Suite 2150 By:
Dallas, TX 75240 Name: Raym d ar ield
Facsimile: 972-991-5150 Title: Principal
Telephone: 972-716-3838
JEFFERSON CITY, MISSOURI
Address:
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Facsimile: 573-L 'q-l"C)D ( Name: ,1� e ko
Telephone: 5 73--10,34-1-dif Title: f11
ED rA ORM:
AP
ity ttorney
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