FREE STATE TRANSPORTATION DEVELOPMENT
DISTRICT
DEVELOPMENT AGREEMENT
THIS AGREEMENT is entered into by and between the CITY OF LAWRENCE, KANSAS, a municipal corporation duly organized and existing under the laws of
the State of Kansas as a city of the first class (the “City”), and FREE STATE GROUP, LLC, a limited liability company organized and existing under the laws of the
State of Kansas and FREE STATE HOLDINGS, INC., a corporation organized and
existing under the laws of the State of Kansas (collectively, the “Developer,”
and together with the City, the “Parties”), and is dated as of October 14, 2008.
RECITALS
WHEREAS, the Developer submitted to the City (i) a petition
to establish the Free State Transportation District on August 5, 2008 and (ii)
an amended petition on or about September 22, 2008; and
WHEREAS, on October 21, 2008, the City created the Free
State Transportation Development District (the “TDD District”) pursuant to K.S.A. 12-17,140 et seq.
(the “Act”) and Ordinance No. 8339 of the City; and
WHEREAS, the TDD District consists of approximately 25.8 acres
generally located in Lawrence, Douglas County, Kansas on 6th Street
between Wakarusa Drive and Folks Road, and is legally described on Exhibit A
attached hereto; and
WHEREAS, on September 15, 2008 the Developer submitted to
the City a petition to create an improvement district pursuant to K.S.A.
12-6a01 et seq. (the “Improvement District”) to fund the design and
construction of certain public improvements (the “Improvement District Project”);
and
WHEREAS, the City and the Developer desire to enter into
this Agreement to address certain issues related to development within the TDD
District, implementation of the TDD Project and certain issues related to the
Improvement District Project.
NOW, THEREFORE, in consideration of the foregoing, and of
the mutual covenants and agreements herein contained and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties do hereby agree as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.1.
Rules of Construction. For
all purposes of this Agreement, except as otherwise expressly provided or
unless the context otherwise requires, the following rules of construction
apply in construing the provisions of this Agreement.
A.
The terms defined in this Article include the plural as well as the
singular.
B.
All accounting terms not otherwise defined herein shall have the
meanings assigned to them, and all computations herein provided for shall be
made, in accordance with generally accepted accounting principles.
C.
All references herein to “generally accepted accounting principles”
refer to such principles in effect on the date of the determination,
certification, computation or other action to be taken hereunder using or involving
such terms.
D.
All references in this instrument to designated “Articles,”
“Section” and other subdivisions are to be the designated Articles, Sections
and other subdivisions of this instrument as originally executed.
E.
The words “herein,” “hereof” and “hereunder” and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
F.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
G.
The representations, covenants and recitations set forth in the
foregoing recitals are material to this Agreement and are hereby incorporated
into and made a part of this Agreement as though they were fully set forth in
this Section. The resolutions and ordinances of the City introduced or adopted
by the City Commission which designate the TDD District and the provisions of
the Act, as amended, are hereby incorporated herein by reference and made a
part of this Agreement, subject in every case to the specific terms hereof.
Section 1.2.
Definitions of Words and Terms.
Capitalized words used in this Agreement shall have the meanings set forth in
the Recitals to this Agreement or they shall have the following meanings:
“Affiliate” means any entity in which the
Developer, individually or as trustee, directly or indirectly, and individually
or in the aggregate owns at least 50% interest.
“Agreement” means this Free State
Transportation Development District Development Agreement, as amended from time
to time.
“Applicable Law and Requirements” means
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 Governmental Authorities.
“Certificate of TDD Costs” means a
certificate relating to TDD Costs in substantially the form attached hereto as Exhibit
B.
“City” means the City of Lawrence,
Kansas.
“City Event of Default” means any event
or occurrence defined in Section 7.1B of this Agreement.
“City Representative” means the Mayor or
City Manager of the City, and such other person or persons at the time
designated to act on behalf of the City in matters relating to this Agreement.
“County” means Douglas County, Kansas.
“Developer” means, jointly and severally,
Free State Group, LLC, a limited liability company organized and existing under
the laws of the State of Kansas and Free State Holdings, Inc., a corporation
organized and existing under the laws of the State of Kansas, and their successors
and assigns approved pursuant to this Agreement.
“Developer Event of Default” means any
event or occurrence defined in Section 7.1A of this Agreement.
“Developer Representative” means John Cobb or such other person or persons at the time designated to act on behalf of the
Developer in matters relating to this Agreement as evidenced by a written
certificate furnished to the City containing the specimen signature of such
person or persons and signed on behalf of the Developer.
“Event of Default” means any event or
occurrence as defined in Article VII of this Agreement.
“Excusable Delays” means any delay beyond
the reasonable control of the Party affected, caused by damage or destruction
by fire or other casualty, strike, shortage of materials, unavailability of
labor, adverse weather conditions such as, by way of illustration and not
limitation, severe rain storms or below freezing temperatures of abnormal
degree or abnormal duration, freezing temperatures that prevent the prudent
installation of concrete or similar materials, tornadoes, delays in the
issuance of any governmental permits or approvals which are not the fault of
the Developer, adverse market conditions, and the Developer’s inability to
secure acceptable financing, tenants or purchasers for its development despite
the Developer’s commercially reasonable efforts, and any other events or
conditions, which shall include but not be limited to any litigation
interfering with or delaying the construction of all or any portion of the TDD Project
in accordance with this Agreement, which in fact prevents the Party so affected
from discharging its respective obligations hereunder.
“Financing Costs” means those costs,
which are approved by the City, incurred, or to be incurred, in connection with
the City’s issuance of any Obligations or by the Developer in connection with
any Private Loans to pay all or any portion of the TDD Costs incurred, or
estimated to be incurred, including interest and loan fees. If the Developer
should pay for any TDD Costs with cash or its equivalent, Financing Costs shall
also include interest to the Developer on such cash expenditures at a rate per
annum equal to the Developer’s actual cost of funds used to pay the TDD Costs
as demonstrated to the City.
“Governmental Approvals” means all plat
approvals, re-zoning or other zoning changes, site plan approvals, conditional
use permits, variances, building permits, architectural review or other
subdivision, zoning or similar approvals required for the implementation of the
TDD Project and consistent with this Agreement.
“Governmental Authorities” means any and
all jurisdictions, entities, courts, boards, agencies, commissions, offices,
divisions, subdivisions, departments, bodies or authorities of any type of any
governmental unit (federal, state or local) whether now or hereafter in
existence.
“Improvement District” means that certain
improvement district expected to be created by the City pursuant to the
petition submitted to the City on September 15, 2008 and pursuant to K.S.A.
12-6a01 et seq.
“Improvement District Project” means the
design and construction of certain public improvements to be constructed
pursuant to the petition submitted by the Developer to the City on September
15, 2008, and a resolution to be adopted by the City creating the Improvement
District.
“Obligations” means TDD Bonds issued by
the City in accordance with the TDD Act or other obligations issued by the
City.
“Pay As You Go” means the reimbursement
of TDD Costs from the City to the Developer as monies become available in the
TDD Sales Tax Fund.
“Permitted Subsequent Approvals” means
the building permits and other governmental approvals customarily obtained
prior to construction which have not been obtained on the date that this
Agreement is executed, which the City or other governmental entity has not yet
determined to grant.
“Private Loans” means loans or indebtedness incurred by the
Developer or any other private entity or individual to pay TDD Costs incurred
or estimated to be incurred, to carry out the TDD Project, to establish
reserves, to finance interest costs associated with such Private Loans, or to
refund or refinance any such outstanding Private Loans.
“Reimbursable Project Costs” means TDD
Costs and Financing Costs, subject to the Reimbursable Project Costs Cap
contained in Section 3.11 hereof.
“TDD Act” means the transportation
development district act contained In K.S.A. 12-17,140 et seq.
“TDD Bonds” means special obligation
bonds or special obligation notes issued by the City in accordance with the TDD
Act.
“TDD District” means the Free State Transportation
Development District, created by the City on October 21, 2008 by the adoption
of Ordinance No. 8339, pursuant to the TDD Act.
“TDD Project” means the TDD District
improvements described in Exhibit C attached hereto.
“TDD Costs” means those costs of the
“project” as defined in the TDD Act to be paid from the TDD Sales Tax, and
which do not constitute costs actually paid from proceeds of financing for the
Improvement District Project.
“TDD Sales Tax” means the 1%
transportation development district sales tax to be imposed within the TDD
District pursuant to the TDD Act
“TDD Sales Tax Fund” means the Free State
TDD Sales Tax Fund, created pursuant to the TDD Act and Section 5.1A
hereof.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1.
Representations of City. The City makes the following
representations and warranties which to the best of the City’s actual
knowledge, are true and correct on the date hereof:
A.
Due Authority. The City has full constitutional and lawful
right, power and authority, under current applicable law, to execute and
deliver and perform the terms and obligations of this Agreement, and this
Agreement has been duly and validly authorized and approved by all necessary
City proceedings, findings and actions. Accordingly, this Agreement constitutes
the legal valid and binding obligation of the City, enforceable in accordance
with its terms.
B.
No Defaults or Violation of Law. The execution and delivery of
this Agreement, 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 the City is now a party, and do not and will not
constitute a default under any of the foregoing.
C.
No Litigation. To the best of the City’s knowledge, there is
no litigation, proceeding or investigation pending or, to the knowledge of the City,
threatened against the City with respect to the TDD Project or this Agreement. In
addition, no litigation, proceeding or investigation is pending or, to the
knowledge of the City, threatened against the City seeking to restrain, enjoin
or in any way limit the approval or issuance and delivery of this Agreement 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 Agreement.
D.
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 and delivery by the City of this Agreement.
E.
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
Agreement.
Section 2.2.
Representations of the Developer.
The Developer makes the following representations and warranties, which to the
best of the Developer’s actual knowledge, are true and correct on the date hereof:
A.
Due Authority. The Developer has all necessary power and
authority to execute and deliver and perform the terms and obligations of this
Agreement 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 Agreement
constitutes the legal valid and binding obligation of the Developer,
enforceable in accordance with its terms.
B.
No Defaults or Violation of Law. The execution and delivery of
this Agreement, 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 the
Developer is now a party, and do not and will not constitute a default under
any of the foregoing.
C.
No litigation. No litigation, proceeding or investigation is
pending or, to the knowledge of the Developer, threatened against the TDD Project,
the Developer or any officer, director, member or shareholder of the Developer.
In addition, no litigation, proceeding or investigation is pending or, to the
knowledge of the Developer, threatened against the Developer seeking to
restrain, enjoin or in any way limit the approval or issuance and delivery of
this Agreement 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 Agreement.
D.
No Material Change. (1) The Developer has not incurred any
material liabilities or entered into any material transactions other than in
the ordinary course of business except for the transactions contemplated by
this Agreement and (2) there has been no material adverse change in the
business, financial position, prospects or results of operations of the
Developer, which could affect the Developer’s ability to perform its
obligations pursuant to this Agreement from that shown in the financial
information provided by the Developer to the City prior to the execution of
this Agreement.
E.
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 Agreement.
F.
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
Agreement, 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.
G.
Approvals. Except for Permitted Subsequent Approvals, the
Developer has received and is in good standing with respect to all
certificates, licenses, inspections, franchises, consents, immunities, permits,
authorizations and approvals, governmental or otherwise, necessary to conduct
and to continue to conduct its business as heretofore conducted by it and to
own or lease and operate its properties as now owned or leased by it. Except
for Permitted Subsequent Approvals, the Developer has obtained all
certificates, licenses, inspections, franchises, consents, immunities, permits,
authorizations and approvals, governmental or otherwise, necessary to acquire,
constrict equip, operate and maintain the TDD Project. 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.
H.
Construction Permits. Except for Permitted Subsequent
Approvals, all governmental permits and licenses required by applicable law to
construct, occupy and operate the TDD Project have been issued and are in full
force and effect or, if the present stage of development does not allow such
issuance, the Developer reasonably believes, after due inquiry of the
appropriate governmental officials, that such permits and licenses will be
issued in a timely manner in order to permit the TDD Project to be constructed.
I.
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 Agreement.
J.
Other Disclosures. The information furnished to the City by
the Developer in connection with the matters covered in this Agreement 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.
Section 2.3.
Developer’s Acquisition of the TDD
District. At the time that this Agreement is executed, Developer
represents that it owns legal title to all real property within the TDD
District.
Section 2.4.
Conditions to the Effective Date
of this Agreement. Contemporaneously with the execution of this
Agreement, and as a precondition to the effectiveness of this Agreement, the
Developer shall submit the following documents to the City:
A.
A copy of the Developer’s Articles of Organization, certified by the
Secretary of State of the State of Kansas; and
B.
A certified copy of the Operating Agreement of the Developer; and
C.
A legal opinion from counsel to the Developer in form and substance
acceptable to the City covering, (i) the due organization of the Developer and
the power and authority of the Developer to execute this Agreement, and (ii)
the enforceability of this Agreement against the Developer.
ARTICLE III
REIMBURSEMENT OF REIMBURSABLE PROJECT COSTS
Section 3.1.
City’s Obligation to Reimbursement
Developer.
A.
Obligation to Reimburse. Subject to the terms of this Agreement
and the conditions in this Section, the City agrees, solely and exclusively
from the TDD Sales Tax, to reimburse Developer for Reimbursable Project Costs
consisting of TDD Costs in a total amount not to exceed $5,000,000 plus any
actual Financing Costs (the “Reimbursable Costs Cap”),.
B.
Source of Reimbursement. The City shall: (i) reimburse the
Developer or its designee from the TDD Sales Tax Fund established pursuant to
the Act and this Agreement for all actual Reimbursable Project Costs, subject to
the Reimbursable Costs Cap, on a Pay As You Go basis; or (ii) make moneys in
the TDD Sales Tax Fund available for the purpose of repaying Obligations, subject
to the Reimbursable Costs Cap. The City shall not be required to provide any
enhancement to any Obligations. The parties acknowledge and agree that the
estimated reimbursable TDD Costs do not purport to cap any particular line item
of costs set forth on Exhibit C, and that amounts reimbursable to
Developer shall include any and all actual costs incurred for any cost category,
provided that in no event will the aggregate principal amount to be reimbursed
to the Developer related to TDD Costs exceed the Reimbursable Costs Cap. In
administering the TDD Sales Tax Fund, the City shall create such accounts and
sub-accounts as shall be required by the Act or documents authorizing the
issuance of the Obligations.
C. Issuance of
Obligations.
1. The
Parties anticipate that Obligations may be issued by the City to provide a
source of payment and/or reimbursement for Reimbursable Project Costs. As
such, all obligations of the Developer hereunder are contingent upon the
issuance of such Obligations in such amount as is acceptable to Developer in
Developer’s sole discretion, provided that if Obligations are not issued and
the Developer, in its sole discretion, elects to proceed with developing the
TDD Project, the Developer shall be bound by the terms of this Agreement.
2. The
City shall issue Obligations as soon as practicable upon the Developer’s
request for the issuance of such Obligations and after the following condition
precedent have been met:
a. Not less than
50,000 square feet of retail space has been constructed, has received a final
certificate of occupancy and has opened for business;
b. The
underwriter of the Obligations shall be approved by the City, such approval
shall not be unreasonably withheld, or the Obligations shall be privately
placed with a travelling investment letter that shall be in a form satisfactory
to the City, such approval not to be unreasonably withheld; and
c. If the
Obligations are not privately placed with a travelling investment letter, then
a feasibility report shall have been delivered to the City that includes: (i)
the projected revenues to be generated from the TDD Sales Tax during the term
of the Obligations, and (ii) shows a projected debt service coverage ratio
acceptable to the City and the underwriter of the Obligations, from a
feasibility consultant being reasonably acceptable to the City.
3. The documents
providing for the issuance of Obligations shall provide that any disbursement
of funds for the payment or reimbursement of Reimbursable Project Costs receive
the written approval of the City in accordance with Section 3.2 of this
Agreement.
4.
In connection with the issuance of Obligations as described herein, it
is anticipated that the City will enter into an agreement to pledge moneys in
the TDD Sales Tax Fund available upon such terms and conditions as are
acceptable to the City and the Developer, which terms and conditions shall be
consistent with this Agreement.
5. Any Obligations issued by the City shall be special
obligations of the City payable solely from and secured as to the payment of
principal and interest by a pledge of the revenues from the TDD Sales Tax. The
taxing power of the City nor any other revenues of the City (other than the TDD
Sales Tax) will not pledged to the payment of the Obligations. The Obligations
shall not constitute a general obligation of the City, nor shall they
constitute an indebtedness of the City within the meaning of any
constitutional, statutory or charter provision, limitation or restriction. Government with respect thereto, and the rights of
the Registered Bondowners thereof.
Section 3.2.
Developer Reimbursement Process.
A.
All requests for reimbursement of Reimbursable Project Costs,
whether directly from the TDD Sales Tax Fund or from a project fund established
in connection with the issuance of Obligations, shall be made in a Certificate
of TDD Costs in substantial compliance with the form attached hereto as Exhibit
B, which Certificate of TDD Costs need only be signed by the Developer
Representative. The Developer shall provide itemized invoices, receipts or
other information reasonably requested by the City to confirm that such costs
were incurred and qualify as Reimbursable Project Costs.
B.
The City reserves the right to have its engineer or other agents or
employees inspect all work in respect of which a Certificate of TDD Costs is
submitted, to examine the Developer’s and others’ records relating to all
expenses related to the invoices to be paid, and to obtain from such parties such
other information as is reasonably necessary for the City to evaluate
compliance with the terms hereof.
C.
The City shall have thirty (30) calendar days after receipt of a Certificate
of TDD Costs to review and respond by written notice to the Developer. If the
submitted Certificate of TDD Costs and supporting documentation demonstrate
that (1) the request relates to Reimbursable Project Costs; (2) the expense was
incurred; (3) the Developer is not in material default under this Agreement;
(4) there is no fraud on the part of the Developer and (5) if the City has
issued Obligations, then no payment default shall exist nor any unreimbursed
draw on any reserve fund, then the City shall approve the Certificate of TDD
Costs and make, or cause to be made, reimbursement from the TDD Sales Tax Fund
in accordance with Section 3.1 hereof, within thirty (30) calendar days
of the City’s approval or deemed approval of the Certificate of TDD Costs. If
the City reasonably disapproves of the Certificate of TDD Costs, the City shall
notify the Developer in writing of the reason for such disapproval within such thirty
(30) day period. Approval of the Certificate of TDD Costs will not be
unreasonably withheld. If the City fails to provide notice of the disapproval
of a Certificate of TDD Costs within thirty (30) days after the City’s receipt
of the same, such Certificate of TDD Costs shall be deemed approved.
D.
If the Developer submits a Certificate of TDD Costs for an amount in
excess of the current balance in the TDD Sales Tax Fund, any unpaid Reimbursable
Project Costs described in such Certificate of TDD Costs shall remain approved
by the City and shall be paid within thirty (30) calendar days of the date
additional funds are deposited in the TDD Sales Tax Fund, to the extent of such
funds, until the Developer is fully reimbursed for the Reimbursable Project
Costs described in such Certificate of TDD Costs.
E.
Nothing in this Agreement shall prohibit the Developer from
submitting Certificates of TDD Costs covering the Developer’s interest expenses
on any TDD Costs not previously reimbursed.
Section 3.3.
Limitation on City’s Payment
Obligations. Notwithstanding any other term of provision of this
Agreement; the City’s obligation to reimburse the Developer for Reimbursable Project
Costs on a Pay As You Go basis shall be limited to TDD Sales Taxes collected
during the term of this Agreement.
Section 3.4. Right to Inspect and Audit.
The Developer agrees that, up to one year after completion of the TDD Project
and the Improvement District Project, the City, with reasonable advance notice
and during normal business hours, shall have the right and authority to review,
audit, and copy, from time to time, all the Developer’s books and records
relating to the Reimbursable Project Costs (including, but not limited to, all
general contractor’s sworn statements, general contracts, subcontracts,
material purchase orders, waivers of lien, paid receipts and invoices).
ARTICLE IV
TDD DISTRICT
Section 4.1.
Sales Tax Information.
A.
The Developer agrees to provide the City Manager written notice of
all current tenants of the TDD District on November 1 of each year and at such
other times upon the written request of the City Manager.
B.
The Developer agrees to cause all assignees, purchasers, tenants, subtenants
or any other entity acquiring property or occupancy rights in the TDD District
to be obligated by written contract (lease agreement or other enforceable
document) to provide to the City Manager simultaneously with submission to the
Kansas Department of Revenue the monthly sales tax returns for their facilities
in the TDD District. This obligation shall be a covenant running with the land
and shall be enforceable against all businesses operating in the TDD District
and shall only terminate upon the passage by the City of an ordinance
terminating the TDD District. The Developer hereby agrees that each such lease
agreement shall provide that the City is an intended third-party beneficiary of
such provisions and has a separate and independent right to enforce such
provisions directly against such tenant or purchaser.
C.
To the extent it may legally do so, information obtained pursuant to
this Section shall be kept confidential by the City in accordance with K.S.A.
79-3657. In furtherance of maintaining the confidentiality of the information
provided in this Section, the City shall take all reasonable steps necessary to
ensure that such information is kept confidential.
D.
The Developer agrees to use its best efforts to obtain waivers consenting
to the release by the City of aggregate TDD Sales Tax revenues generated within
the TDD District from all assignees, purchasers, tenants subtenants or any
other entity with property or occupancy rights in the TDD District.
ARTICLE V
REIMBURSEMENT OF PROJECT COSTS;
Section 5.1.
TDD Sales Tax Fund.
A.
Creation of Fund; Deposit of TDD Sales Tax. The City shall
establish and maintain a separate fund and account known as the Free State TDD
Sales Tax Fund (the “TDD Sales Tax Fund”). All TDD Sales Tax collected by the
City shall be deposited in the TDD Sales Tax Fund.
B.
Disbursements from Fund. All disbursements from the TDD
Sales Tax Fund shall be made only to pay Reimbursable Project Costs. The City
shall have sole control of the disbursements from the TDD Sales Tax Fund.
Any surplus amounts of TDD
Sales Tax after all Reimbursable Project Costs have been reimbursed shall be
used as determined by the City for any purpose authorized by the TDD Act.
Section 5.2.
City Administrative Service Fee.
As a result of the public improvements being financed with the TDD Sales Tax,
the City agrees not to charge any administrative service fees in connection
with the administration of the TDD Sales Tax Fund or any other aspect of this
Agreement.
ARTICLE VI
GENERAL COVENANTS
Section 6.1.
Operation of Project.
The Project shall comply with all applicable building and zoning, health,
environmental and safety resolutions and laws and all other applicable laws,
rules and regulations. The Developer shall, at its own expense, secure or
cause to be secured any and all permits which may be required by the City and
any other governmental agency having jurisdiction for the construction and
operation of the Project, including but not limited to, obtaining all necessary
rental licenses and paying any necessary fees to obtain required permits and
licenses.
Section 6.2. Taxes, Assessments, Encumbrances and
Liens. For
that portion of the Project owned by the Developer or any Affiliate, the
Developer shall pay or cause to be paid when due all real estate taxes and
assessments within the Project. Nothing herein shall be deemed to prohibit
the Developer from contesting the validity or amounts of any tax, assessment,
encumbrance or lien, nor to limit the remedies available to the Developer in
respect thereto. The Developer and any other owners of real property in the TDD
District shall promptly notify the City in writing of a protest of real estate
taxes or valuation of the Developer’s or such other owners’ property within the
TDD District.
Section 6.3. Covenant for Non‑Discrimination. The Developer covenants by and for itself and
any successors in interest that there shall be no discrimination against or
segregation of any person or group of persons on account of race, color, creed,
religion, sex, familial status, marital status, age, handicap, national origin,
sexual orientation or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the TDD District, nor shall the Developer
itself or any person claiming under or through it establish or permit any such
practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees of the TDD District. The covenant established in
this Section shall, without regard to technical classification and designation,
be binding for the benefit and in favor of the City, its successors and assigns
and any successor in interest to the TDD District or any part thereof. The
covenants contained in this Section shall remain for so long as this Agreement
is in effect.
Section 6.4. Indemnification
of City.
A.
The Developer agrees to indemnify and hold the City, its employees,
agents and independent contractors and consultants (collectively, the “City
Indemnified Parties”) harmless, but only to the extent of actual insurance
coverage being available as a result of the insurance maintained by the
Developer pursuant to Section 6.5 hereof, from and against any and all
suits, claims, costs of defense, damages, injuries, liabilities, judgments,
costs and/or expenses, including court costs and attorneys fees, resulting
from, arising out of or in any way connected with:
1.
the Developer’s actions and undertaking in implementation of the TDD
Project or this Agreement; and
2.
the negligence or willful misconduct of the Developer, its
employees, agents or independent contractors and consultants in connection with
the management, design, development, redevelopment and construction of the TDD
Project; and
3.
any delay or expense resulting from any litigation filed against the
Developer by any member or shareholder of the Developer, any prospective
investor, prospective partner or joint venture partner, lender, co-proposer,
architect, contractor, consultant or other vendor.
This section shall not
apply to willful misconduct or negligence of the City or its officers,
employees or agents. This section includes, but is not limited to, any repair,
cleanup, remediation, detoxification, or preparation and implementation of any
removal, remediation, response, closure or other plan (regardless of whether
undertaken due to governmental action) concerning any hazardous substance or
hazardous wastes including petroleum and its fractions as defined in (i) the
Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”;
42 U.S.C. Section 9601, Ct seq.), (ii) the Resource Conservation and Recovery
Act (“RCRA”; 42 U.S.C. Section 6901 et seq.) and (iii) Article 34, Chapter 65,
K.S.A. and all amendments thereto, at any place where the Developer owns or has
control of real property pursuant to any of the Developer’s activities under
this Agreement. The foregoing indemnity is intended to operate as an agreement
pursuant to Section 107 (e) of CERCLA to assure, protect hold harmless and
indemnify City from liability.
B.
In the event any suit, action, investigation, claim or proceeding
(collectively, an “Action”) is begun or made as a result of which the Developer
may become obligated to one or more of the City Indemnified Parties hereunder,
any one of the City Indemnified Parties shall give prompt notice to the
Developer of the occurrence of such event.
C.
The right to indemnification set forth in this Agreement shall
survive the termination of this Agreement.
Section
6.5. Insurance.
A. During
the construction of the TDD Project, the Developer shall maintain or cause to
be maintained builder’s risk insurance on the TDD Project written on a
replacement cost basis, commercial general liability insurance insuring against
claims for bodily injury, personal injury and property damage in a combined
single limit of not less than $1,000,000 per occurrence with a $2,000,000
aggregate, and worker’s compensation insurance pursuant to statutory
requirements.
B. All
such policies, or a certificate or certificates of the insurers that such
insurance is in full force and effect, shall be provided to the City and, prior
to expiration of any such policy, the Developer shall furnish the City with
satisfactory evidence that such policy has been renewed or replaced or is no
longer required by this Agreement; provided, however, the insurance so required
may be provided by blanket policies now or hereafter maintained by the
Developer if the Developer provides the City with a certificate from an
insurance consultant to the effect that such coverage is substantially the same
as that provided by individual policies. All policies evidencing such insurance
required to be obtained under the terms of this Agreement shall provide for 30
days’ prior written notice to the Developer and the City of any cancellation
(other than for nonpayment of premium), reduction in amount or material change
in coverage.
C. In the
event the Developer shall fail to maintain or cause to be maintained the
insurance coverage required by this Agreement, the Developer shall promptly
notify the City of such event and the City may (but shall be under no
obligation to) contract for the required policies of insurance and pay the
premium for the same; and the Developer agrees to reimburse the City to the
extent of the amounts so advanced, with interest thereon at the statutory rate.
Section
6.6. Obligation to Restore. The City and the Developer will
negotiate any covenants to restore that portion of the Project at time any
Obligations are issued to finance all or any portion of the TDD Project.
Section 6.7. Non-liability of
Officials, Employees and Agents of the City. No recourse shall be had
for the reimbursement of the Reimbursable Project Costs or for any claim based
thereon or upon any representation, obligation, covenant or agreement contained
in this Agreement against any past, present or future official, officer,
employee or agent of the City, under any rule of law or equity, statute or
constitution or by the enforcement of any assessment or penalty or otherwise,
and all such liability of any such officials, officers, employees or agents as
such is hereby expressly waived and released as a condition of and
consideration for the execution of this Agreement.
Section 6.8. Construction
of the TDD Project and Improvement District Project. The Developer shall
have the sole responsibility to contract for the design and construction of the
TDD Project and the Improvement District Project. The Developer acknowledges
and agrees that some of the project costs for the TDD Project and the Improvement
District Project are the same and understands that such costs may only be paid
for from either the TDD District or the Improvement District. In the event
that the City issues notes or bonds to finance the Improvement District Project
or any other improvement district created by the City pursuant to K.S.A.
12-6a01 et seq. that includes any of the real estate in the TDD District
on a tax-exempt basis, Developer understands that any Obligations issued by the
City to finance all or a portion of the TDD Project may, if required by
applicable law, be issued on a taxable basis.
Section 6.9. Reimbursement
of Improvement District Project Costs. If the City adopts a resolution
creating the Improvement District and the Developer contracts and pays for costs
of the Improvement District Project, the City shall reimburse the Developer for
costs of the Improvement District Project, but only once such costs are
incurred and paid by the Developer and the Improvement District Project is
complete and only to the extent the City issues general obligation bonds or
temporary notes for the Improvement District Project and the proceeds of such
bonds and/or notes are available to the City.
ARTICLE VII
ASSIGNMENT; TRANSFER
Section
7.1. Transfer of Obligations.
A. Prior
to the date upon which the TDD Project improvements are substantially completed
by the Developer, the rights, duties and obligations hereunder of the Developer
may not be assigned, in whole or in part, to another entity, without prior
written notice to the City Commission and a copy of an assumption agreement
satisfactory to the City pursuant to which the proposed assignee shall, by
instrument in writing, for itself and its successors and assigns, and expressly
for the benefit of the City, assume all of the obligations of the Developer
under this Agreement and agree to be subject to all the conditions and
restrictions to which the Developer is subject (or, in the event the transfer
is of or relates to a portion of the TDD District, such obligations, conditions
and restrictions to the extent that they relate to such portion), such approval by the City shall not be unreasonably
withheld. Prior the date upon which
the TDD Project improvements are substantially completed by the Developer, he
Developer shall not be relieved from any obligations set forth herein unless
and until the City specifically agrees to release the Developer,
such approval by the City shall not be unreasonably withheld. After the date upon which the TDD Project is
substantially complete, the Developer shall have no restrictions on assignment
of this Agreement in whole or part and Developer shall hereby be released for
any duties and obligations assumed in writing by the any subsequent assignee to
Developer. The Developer agrees to record all assignments in the office of the
Register of Deeds of Douglas County, Kansas, in a timely manner following the execution
of such agreements.
B. The
Parties’ obligations pursuant to this Agreement, unless earlier satisfied,
shall inure to and be binding upon the heirs, executors, administrators,
successors and assigns of the respective parties as if they were in every case
specifically named and shall be construed as a covenant running with the land,
enforceable against the purchasers or other transferees as if such purchaser or
transferee were originally a party and bound by this Agreement.
Notwithstanding the foregoing, no tenant of any part of the TDD District shall
be bound by any obligation of the Developer solely by virtue of being a tenant;
provided, however, that no transferee or owner of property within the TDD
District except the Developer shall be entitled to any rights whatsoever or
claim upon the TDD revenues as set forth herein, except as specifically
authorized in writing by the Developer.
C. The foregoing restrictions on assignment,
transfer and conveyance shall not apply to any security interest granted to
secure indebtedness to any construction or permanent lender.
D. Notwithstanding
anything contained herein to the contrary, the Developer is hereby authorized,
without approval by the City but with prior written notice to the City, to
assign this Agreement to any Affiliate.
ARTICLE VII
DEFAULTS AND REMEDIES
Section 7.1.
Event of Default
A. Developer
Event of Default. Subject to Section 7.4
a “Developer Event of Default” shall mean a default in the performance of any
obligation or breach of any covenant or agreement of the Developer in this
Agreement (other than a covenant or agreement; a default in the performance or
breach of which is specifically dealt with elsewhere in this Section), and
continuance of such default or breach for a period of thirty (30) days after
City has delivered to Developer a written notice specifying such default or
breach and requiring it to be remedied; provided, that if such default or
breach cannot be fully remedied within such thirty (30) day period, but can
reasonably be expected to be fully remedied and the Developer is diligently
attempting to remedy such default or breach, such default or breach shall not
constitute an event of default if the Developer shall immediately upon receipt
of such notice diligently attempt to remedy such default or breach and shall
thereafter prosecute and complete the same with due diligence and dispatch.
B. City
Event of Default. Subject to Section 7.4
a “City Event of Default” shall mean a default in the performance of any
obligation or breach of any other covenant or agreement of the City in this
Agreement (other than a covenant or agreement; a default in the performance or
breach of which is specifically dealt with elsewhere in this Section), and
continuance of such default or breach for a period of thirty (30) days after
there has been given to the City by the Developer a written notice specifying such
default or breach and requiring it to be remedied; provided, that if such
default or breach cannot be fully remedied within such thirty (30) day period,
but can reasonably be expected to be fully remedied and the City is diligently attempting
to remedy such default or breach, such default or breach shall not constitute
an event of default if the City shall immediately upon receipt of such notice
diligently attempt to remedy such default or breach and shall thereafter
prosecute and complete the same with due diligence and dispatch.
Section 7.2.
Remedies Upon a Developer Event of
Default.
A.
Upon the occurrence and continuance of a Developer Event of Default;
the City shall have the following rights and remedies, in addition to any other
rights and remedies provided under this Agreement or by law:
1.
The City shall have the right to terminate this Agreement or
terminate the Developer’s rights under this Agreement
2.
The City may pursue any available remedy at law or in equity by
suit; action, mandamus or other proceeding to enforce and compel the
performance of the duties and obligations of the Developer as set forth in this
Agreement; to enforce or preserve any other rights or interests of the City
under this Agreement or otherwise existing at law or in equity and to recover
any damages incurred by the City resulting from such Developer Event of Default
B.
Upon termination of this Agreement for any reason, the City shall
have the continuing obligation to reimburse the Developer for any Reimbursable
Project Costs incurred or paid by the Developer prior to such termination.
C.
If the City has instituted any proceeding to enforce any right or
remedy under this Agreement by suit or otherwise, and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the City, then and in every case the City and the Developer shall, subject to
any determination in such proceeding, be restored to their former positions and
rights hereunder, and thereafter all rights and remedies of the City shall
continue as though no such proceeding had been instituted.
D.
The exercise by the City of any one remedy shall not preclude the
exercise by it; at the same or different times, of any other remedies for the
same default or breach. No waiver made by the City shall apply to obligations
beyond those expressly waived.
E.
Any delay by the City in instituting or prosecuting any such actions
or proceedings or otherwise asserting its rights under this Section shall not
operate as a waiver of such rights or limit it in any way. No waiver in fact
made by the City of any specific default by the Developer 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.
Section 7.3.
Remedies Upon a City Event of
Default.
A.
Upon the occurrence and continuance of a City Event of Default the
Developer shall have the following rights and remedies, in addition to any
other rights and remedies provided under this Agreement or by law:
1.
The Developer shall have the right to terminate the Developer’s
obligations under this Agreement;
2.
The Developer may pursue any available remedy at law or in equity by
suit; action, mandamus or other proceeding to enforce and compel the
performance of the duties and obligations of the City as set forth in this
Agreement; to enforce or preserve any other rights or interests of the
Developer under this Agreement or otherwise existing at law or in equity and to
recover any damages incurred by the Developer resulting from such City Event of
Default.
B.
If the Developer has instituted any proceeding to enforce any right
or remedy under this Agreement by suit or otherwise, and such proceeding has
been discontinued or abandoned for any reason, or has been determined adversely
to the Developer, then and in every case the Developer and the City shall
subject to any determination in such proceeding, be restored to their former
positions and rights hereunder, and thereafter all rights and remedies of the
Developer shall continue as though no such proceeding had been instituted.
C.
The exercise by the Developer of any one remedy shall not preclude
the exercise by it, at the same or different times, of any other remedies for
the same default or breach. No waver made by the Developer shall apply to
obligations be those expressly waived.
D.
Any delay by the Developer 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 such rights in any way.
No waiver in fact made by the Developer of any specific default by the
Developer 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.
Section 7.4.
Excusable Delays. Neither
the City nor the Developer shall be deemed to be in default of this Agreement
because of an Excusable Delay.
Section 7.5.
Legal Actions. Any legal
actions related to or arising out of this Agreement must be instituted in the
District Court of Douglas County, Kansas or, if federal jurisdiction exists, in
the United States District Court for the District of Kansas.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.1.
Mutual Assistance. The City
and the Developer agree to take such actions, including the execution and
deliver of such documents, instruments, petitions and certifications as may be
necessary or appropriate to carry out the terms, provisions and intent of this
Agreement, including any continuing disclosure agreements entered into in
connection with any Obligations, and to aid and assist each other in carrying
out said terms provisions and intent.
Section 8.2.
Effect of Violation of the Terms
and Provisions of this Agreement; No Partnership. The City is deemed
the beneficiary of the terms and provisions of this Agreement, for and in its
own rights and for the purposes of protecting the interests of the community
and other parties, public or private, in whose favor and for whose benefit this
Agreement and the covenants running with the land have been provided. The City
shall have the right, if the Agreement or covenants are breached, to exercise
all rights and remedies, and to maintain any actions or suits at law or in
equity or other proper proceedings to enforce the curing of such breaches to
which it or any other beneficiaries of this Agreement and covenants may be
entitled. Nothing contained herein shall be construed as creating a
partnership between the Developer and the City.
Section 8.3.
Time of Essence. Time is of
the essence of this Agreement. The Parties will make every reasonable effort
to expedite the subject matters hereof and acknowledge that the successful
performance of this Agreement requires their continued cooperation.
Section 8.4.
Amendments. This Agreement
may be amended only by the mutual consent of the Parties, by the adoption of a
resolution of the City approving said amendment, as provided by law, and by the
execution of said amendment by the Parties or their successors in interest
Section 8.5.
Agreement Controls. The
Parties agree that the TDD Project will be implemented as agreed in this
Agreement. This Agreement specifies the rights, duties and obligations of the
City and Developer with respect to constructing the TDD Project; the payment of
Reimbursable Project Costs and all other methods of implementing the TDD
Project. The Parties further agree that this Agreement contains provisions that
are in greater detail than as set forth in the petition creating the TDD
District and expand upon the estimated and anticipated sources and uses of
funds to implement the TDD Project. Except as otherwise expressly provided
herein, this Agreement supersedes all prior agreements, negotiations and
discussions relative to the subject matter hereof and is a full integration of
the agreement of the Parties.
Section 8.6.
Conflicts of Interest.
A.
No member of the City’s governing body or of any branch of the
City’s government that has any power of review or approval of any of the
Developer’s undertakings shall participate in any decisions relating thereto
which affect such person’s personal interest or the interests of any
corporation or partnership in which such person is directly or indirectly
interested. Any person having such interest shall immediately, upon knowledge
of such possible conflict disclose, in writing, to the City the nature of such
interest and seek a determination with respect to such interest by the City
and, in the meantime, shall not participate in any actions or discussions
relating to the activities herein proscribed.
B.
The Developer warrants that it has not paid or given and will not
pay or give any officer, employee or agent of the City any money or other
consideration for obtaining this Agreement. The Developer further represents
that, to its best knowledge and belief, no officer, employee or agent of the
City who exercises or has exercised any functions or responsibilities with
respect to the TDD Project during his or her tenure, or who is in a position to
participate in a decision making process or gain insider information with
regard to the TDD Project, has or will have any interest, direct or indirect,
in any contract or subcontract, or the proceeds thereof for work to be
performed in connection with the TDD Project, or in any activity, or benefit therefrom,
which is part of the TDD Project at any time during or after such person’s
tenure
Section 8.7.
Term. Unless earlier
terminated as provided herein, this Agreement shall remain in full force and
effect for a period commencing the date hereof and ending the earlier of (i) the
date that the TDD Project has been substantially completed and all Reimbursable
Project Costs have been paid to the Developer or (ii) twenty-two (22) years
after initial issuance of any Obligations to fund Project Costs.
Section 8.8.
Validity and Severability. It
is the intention of the parties that the provisions of this Agreement shall be
enforced to the fullest extent permissible under the laws and public policies
of the State of Kansas, 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 Agreement. Accordingly, if any
provision of this Agreement shall be deemed invalid or unenforceable in whole
or in part, this Agreement 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 Agreement in
order to render the same valid and enforceable.
Section 8.9.
Required Disclosures. The
Developer shall immediately notify the City of the occurrence of any material
event which would cause any of the information furnished to the City by the
Developer in connection with the matters covered in this Agreement to contain
any untrue statement of any material fact or to 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.
Section 8.10.
Tax Implications. The
Developer acknowledges and represents that (i) neither the City nor any of its
officials, employees, consultants, attorneys or other agents has provided to
the Developer any advice regarding the federal or state income tax implications
or consequences of this Agreement and the transactions contemplated hereby, and
(ii) the Developer is relying solely upon its own tax advisors in this regard.
Section 8.11.
Authorized Parties. Whenever under the provisions of this
Agreement and other related documents, instruments or any supplemental agreement,
a request, demand, approval, notice or consent of the City or the Developer is
required, or the City or the Developer is required to agree or to take some
action at the request of the other Party, such approval or such consent or such
request shall be given for the City, unless otherwise provided herein, by the
City Manager and for the Developer by any officer of the Developer so
authorized; and any person shall be authorized to act on any such agreement,
request, demand, approval, notice or consent or other action and neither Party
shall have any complaint against the other as a result of any such action
taken. The City Manager may seek the advice, consent or approval of the City
Commission before providing any supplemental agreement, request, demand,
approval, notice or consent for the City pursuant to this Section.
Section 8.12.
Notice. All notices and requests required pursuant to this
Agreement shall be sent as follows:
To the
City:
City Manager
City of Lawrence, Kansas
6 East 6 Street
Lawrence, Kansas 66044
With a
copy to:
Gary A. Anderson
Gilmore & Bell
P.C.
2405 Grand Blvd.,
Suite 1100
Kansas City, Missouri 64108
To the
Developer:
Free State Group, LLC
Free State Holdings,
Inc.
110 McDonald Drive,
Suite 192
Lawrence, Kansas 66044
With a
copy to:
James W. Grice
Spencer Fane Britt & Browne LLP
100 Walnut Street, Suite 1400
Kansas City, Missouri 64106
or at such other
addresses as the Parties may indicate in writing to the other either by
personal delivery, courier, or by registered mail, return receipt requested,
with proof of delivery thereof. Mailed notices shall be deemed effective on the
third day after mailing; all other notices shall be effective when delivered.
Section 8.13.
Kansas Law. This Agreement shall be governed by and contained
in accordance with the laws of the State of Kansas.
Section 8.14.
Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same agreement.
Section 8.15.
Recordation of Agreement. The Parties agree to execute and
deliver an original of this Agreement and any amendments or supplements hereto,
in proper form for recording and/or indexing in the appropriate land or
governmental records, including, but not limited to, recording in the real
estate records of Douglas County, Kansas. This Agreement shall be recorded by
the Developer, and proof of recording shall be provided to the City.
Section 8.16.
Consent or Approval. Except as otherwise provided in this
Agreement, whenever the consent, approval or acceptance of either Party is
required hereunder, such consent, approval or acceptance shall not be
unreasonably withheld or unduly delayed.
The Parties hereto have caused this Agreement to be
executed by their duly authorized representatives the day and year first above
written.
CITY OF LAWRENCE, KANSAS
By:
City
Manager
Attest:
By:
City Clerk
Approved as to form:
Director of Legal Services
FREE STATE GROUP, LLC
By:
Name:
Title:
FREE STATE HOLDINGS, INC.
By:
Name:
Title:
ACKNOWLEDGMENT
STATE
OF KANSAS )
)
SS.
COUNTY OF DOUGLAS )
On ________, 2008, before me, the undersigned, a Notary
Public in and for said state, personally appeared Michael Dever and Frank Reeb,
proved to me on the basis of satisfactory evidence to be the persons whose
names are subscribed to the within instrument as Mayor and City Clerk,
respectively, of the CITY OF LAWRENCE, KANSAS, the city of the
third class therein named, and acknowledged to me that they executed the same
in their authorized capacities, and that by their signatures on the instrument
the entity upon behalf of which the persons acted, executed the instrument.
WITNESS my hand and official seal.
Notary
Public
My commission expires: .
ACKNOWLEDGMENT
STATE
OF KANSAS )
)
SS.
COUNTY OF DOUGLAS )
On __________, 2008, before me, the undersigned, a Notary
Public in and for said State, personally appeared ______________, proved to me on
the basis of satisfactory evidence to be the person whose name is subscribed to
the within instrument as the _________ of FREE STATE GROUP, LLC and
acknowledged to me that he executed the same in his authorized capacity, and
that by such person’s signature on the instrument the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary
Public
My commission expires: .
ACKNOWLEDGMENT
STATE
OF KANSAS )
)
SS.
COUNTY OF DOUGLAS )
On __________, 2008, before me, the undersigned, a Notary
Public in and for said State, personally appeared ______________, proved to me
on the basis of satisfactory evidence to be the person whose name is subscribed
to the within instrument as the _________ of FREE STATE HOLDINGS,
INC. and acknowledged to me that he executed the same in his authorized
capacity, and that by such person’s signature on the instrument the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary
Public
My commission expires: .
EXHIBIT A
Legal
Description
BAUER FARMS - TRACT 1
A TRACT OF LAND IN THE SOUTHEAST QUARTER OF SECTION 28, TOWNSHIP 12 SOUTH, RANGE 19 EAST OF THE SIXTH
PRINCIPAL MERIDIAN, IN THE CITY OF LAWRENCE, DOUGLAS COUNTY, KANSAS, DESCRIBED
AS FOLLOWS:
BEGINNING AT A POINT WHICH IS
SOUTH 88°11'38" WEST, 1040.80 FEET ALONG THE SOUTH LINE, AND NORTH 01°48'22" WEST, 75.00 FEET FROM THE SOUTHEAST CORNER OF SAID QUARTER SECTION, SAID
POINT BEING ON THE NORTH RIGHT OF WAY LINE OF WEST SIXTH STREET; THENCE SOUTH
88°11'38" WEST, ALONG SAID NORTH RIGHT OF WAY LINE, 1494.15 FEET; THENCE
NORTH 56°15'24" WEST, ALONG SAID NORTH LINE, 68.50 FEET TO THE EAST RIGHT
OF WAY LINE OF WAKARUSA DRIVE; THENCE NORTH 01°44'19" WEST, ALONG SAID
EAST RIGHT OF WAY LINE, 295.38 FEET; THENCE NORTH 26°45'46" WEST, ALONG
SAID EAST LINE, 28.93 FEET; THENCE NORTH 01°52'17" WEST, ALONG SAID EAST LINE, 21.68 FEET; THENCE NORTH 88°11'38" EAST, 68.82 FEET; THENCE ON A 135.00 FOOT RADIUS CURVE TO THE RIGHT WITH A 130.49 FOOT CHORD BEARING SOUTH 62°54'23" EAST, AN ARC
DISTANCE OF 136.19 FEET; THENCE ON A 135.00 FOOT RADIUS CURVE TO THE LEFT WITH
A 130.49 FOOT CHORD BEARING SOUTH 62°54'23" EAST, AN ARC DISTANCE OF
136.19 FEET; THENCE NORTH 88°11'38" EAST, 1264.47 FEET; THENCE SOUTH
01°48'22" EAST, 257.00 FEET TO THE POINT OF BEGINNING. CONTAINS 9.622
ACRES, MORE OR LESS.
BAUER FARMS - TRACT 2
A TRACT OF LAND IN THE SOUTHEAST QUARTER OF SECTION 28, TOWNSHIP 12 SOUTH, RANGE 19 EAST OF THE SIXTH
PRINCIPAL MERIDIAN, IN THE CITY OF LAWRENCE, DOUGLAS COUNTY, KANSAS, DESCRIBED
AS FOLLOWS:
BEGINNING AT A POINT WHICH IS
SOUTH 88°11'38" WEST, 1152.80 FEET ALONG THE SOUTH LINE, AND NORTH 01°48'22" WEST, 332.00 FEET FROM THE SOUTHEAST CORNER OF SAID QUARTER SECTION;
THENCE SOUTH 88°11'38" WEST, 1152.47 FEET; THENCE ON A 135.00 FOOT RADIUS CURVE TO THE RIGHT WITH A 130.49 FOOT CHORD BEARING NORTH 62°54'23" WEST, AN ARC
DISTANCE OF 136.19 FEET; THENCE ON A 135.00 FOOT RADIUS CURVE TO THE LEFT WITH
A 130.49 FOOT CHORD BEARING NORTH 62°54'23" WEST, AN ARC DISTANCE OF
136.19 FEET; THENCE SOUTH 88°11'38" WEST, 68.82 FEET TO THE EAST RIGHT OF
WAY LINE OF WAKARUSA DRIVE; THENCE NORTH 01°52'17" WEST, ALONG SAID EAST
RIGHT OF WAY LINE, 7.85 FEET; THENCE NORTH 04°15'53" WEST, ALONG SAID EAST
LINE, 247.85 FEET; THENCE NORTH 01°55'21" WEST, ALONG SAID EAST LINE, 121.41 FEET TO THE SOUTH RIGHT OF WAY LINE OF OVERLAND DRIVE; THENCE NORTH 88°11'38"
EAST, ALONG SAID SOUTH RIGHT OF WAY LINE, 1460.65 FEET; THENCE SOUTH
01°48'22" EAST, 503.00 FEET TO THE POINT OF BEGINNING. CONTAINS 16.271
ACRES, MORE OR LESS.
EXHIBIT
B
FORM OF CERTIFICATE OF TDD COSTS
CERTIFICATE
OF REDEVELOPMENT PROJECT COSTS
TO: City of Lawrence, Kansas
Attention:
City Manager
RE:
Free State TDD
Terms
not otherwise defined herein shall have the meaning ascribed to such terms in
the Free State TDD Development Agreement dated as of ________________________,
2008 (“Agreement”) between the City and Developer.
In
connection with the Agreement, the undersigned hereby states and certifies
that:
1. Each
item listed in Schedule 1 hereto is a Reimbursable Project Cost and was
incurred in connection with the construction of the TDD Project.
2. These
Reimbursable Project Costs have been paid by the Developer and are reimbursable
under the Agreement.
3. Each
item listed in Schedule 1 has not previously been paid or reimbursed from money
derived from the TDD Sales Tax Fund or any money derived from any project fund
established by the issuance of Obligations, and no part thereof has been
included in any other certificate previously filed with the City.
4. Each
item listed in Schedule 1 has not and will not be funded by the Improvement
District or any other improvement district created by the City pursuant to
K.S.A. 12-6a01 et seq. that includes all or any portion of the real
estate included in the TDD District.
5. There
has not been filed with or served upon the Developer any notice of any lien,
right of lien or attachment upon or claim affecting the right of any person,
firm or corporation to receive payment of the amounts stated in this requested,
except to the extent any such lien is being contested in good faith.
6. All
necessary permits and approvals required for the work for which this
certificate relates were issued and were in full force and effect at the time
such work was being performed.
7. All
work for which payment or reimbursement is requested has been performed in a
good and workmanlike manner and in accordance with the Agreement.
8.
The Developer is not in default or breach of any term or condition of
the Agreement, and no event has occurred and no condition exists which
constitutes a Developer Event of Default under the Agreement.
9.
All of the Developer’s representations set forth in the Agreement
remain true and correct as of the date hereof.
Dated
this ____ day of __________________, 20__.
FREE STATE GROUP, LLC
FREE STATE HOLDINGS,
INC.
By: Developer
Representative
By:
Name:
Title:
Approved
for payment this _____ day of __________________, 20__.
CITY OF LAWRENCE, KANSAS
By: ______________________________
Title: ______________________________
EXHIBIT
C
TDD
PROJECT
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Planned Commercial
Development
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Demolition Existing
Waterline
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8" Asphalt Pavement
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6" Asphalt
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5" Asphalt
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24" Curb and Gutter
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9" Flyash Treated
Subgrade
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Pavement Markings
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5'x4" Concrete
Sidewalk
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Storm Sewer (large)
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Storm Sewer (Small)
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8" Waterline
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Fire Hydrant Assembly
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Sanitary Manholes
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Street Trees
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Street Lamps
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Bridge
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Rough Earthwork
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Seed, Mulch and Fertilize
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Construction Staking
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Engineering Fees (7%
Subtotal)
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Inspection Fees (3%)
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SWP3 Erosion Control (0.5%)
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Contingency (15% Subtotal)
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Estimated PCD Total
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Offsite Improvements - 6th Street and Champion Lane Westbound Right Turn Lane
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Demolition Existing
Curb/Gutter
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Demolotion Existing
Concrete Intersection
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Demolotion ExistingSidewalk
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12" Asphalt Pavement
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12" Concrete
Intersection
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24" Curb and Gutter
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9" Flyash Treated
Subgrade
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Pavement Markings
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5'x4" Concrete
Sidewalk
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Relocate Existing Curb
Inlet
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Seed, Mulch, and Fertilize
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Traffic Control
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ADA Ramps
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Construction Staking
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Offsite Emprovements - 6th Street and Champion Lane Traffic Signal
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Traffic Signal
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Offsite Improvements - 6th Street and West Entrance Westbound Right Turn Lane
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Demolition Existing
Curb/Gutter
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Demolotion ExistingSidewalk
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12" Asphalt Pavement
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12" Concrete
Intersection
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24" Curb and Gutter
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9" Flyash Treated
Subgrade
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|
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Pavement Markings
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5'x4" Concrete
Sidewalk
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Relocate Existing Curb
Inlet
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Seed, Mulch, and Fertilize
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Traffic Control
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Construction Staking
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Street Lamp
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Offsite Improvements - Wakarusa Drive and Bauer Farm Drive Northbound Right Turn Lane
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Demolition Existing Curb/Gutter
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Demolotion ExistingSidewalk
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10" Asphalt Pavement
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10" Concrete
Intersection
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24" Curb and Gutter
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9" Flyash Treated
Subgrade
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5'x4" Concrete
Sidewalk
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Pavement Markings
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Seed, Mulch, and Fertilize
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Traffic Control
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Construction Staking
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Offsite Improvements - Wakarusa Drive Ramps/Lights/Trees (Entire Frontage)
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ADA Ramps
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Street Trees
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Offsite Improvements - Wakarusa Drive and Overland Drive Northbound Right Turn Lane
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Demolition Existing
Curb/Gutter
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Demolotion ExistingSidewalk
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10" Asphalt Pavement
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24" Curb and Gutter
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|
|
|
9" Flyash Treated
Subgrade
|
|
|
|
5'x4" Concrete
Sidewalk
|
|
|
|
Pavement Markings
|
|
|
|
Relocate Existing Curb
Inlet
|
|
|
|
Seed, Mulch, and Fertilize
|
|
|
|
Traffic Control
|
|
|
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ADA Ramps
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Construction Staking
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Offsite Improvements - Overland Drive at Existing Champion Lane
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Demolotion Existing Champion Lane
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24" Curb and Gutter
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5'x4" Concrete
Sidewalk
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Offsite Improvements - Wakarusa Drive & Overland Drive Traffi Signal
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Traffic Signal
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Offsite Improvements -
Remove Exist, Champion Lane Curb Cut
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Demolition Existing
Concrete Intersection
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24" Curb and Gutter
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5'x4" Concrete
Sidewalk
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Offsite Improvements - Overland from Wakarusa Drive to PRD - Ramps/Lights/Trees
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ADA Ramp
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Street Lamp
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Street Trees
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Offsite Improvements - Overland from Wakarusa Drive to PRD - Ramps/Lights/Trees
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ADA Ramp
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Street Lamp
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Street Trees
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Offsite Improvements -
Folks from Overland to Office Entrance - Ramps/Lights/Trees
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ADA Ramp
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Street Lamp
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Street Trees
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Offsite Improvements -
Sanitary Sewer
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Demolition Improvements -
Sanitary Sewer
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Upsize Sanitary Sewer
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Manhole
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Construction Staking
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Engineering, Inspection
& Contingency
|
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Estimated Engineering Fees
(7% Subtotal)
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Inspection Fees (3%)
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SWP3 Erosion Control (0.5%)
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|
|
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Contingency (15% Subtotal)
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