HomeMy WebLinkAboutOrd.4548.02-17-2014BILL NO. 14-21 ORDINANCE NO.
AN ORDINANCE AUTHORIZING THE CITY MANAGER TO
EXECUTE AN AMENDMENT TO SETTLEMENT AGREEMENT
AND RELEASE OF ALL CLAIMS BETWEEN THE CITY OF
CAPE GIRARDEAU, AND DIANE DRURY EDWARDS AND
MIDAMERICA HOTELS CORPORATION
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAU,
MISSOURI. AS FOLLOWS:
ARTICLE 1. The City Manager is hereby authorized and
directed to execute, on behalf of the City of Cape Girardeau,
Missouri, an Amendment to Settlement Agreement and Release of All
Claims between the City of Cape Girardeau, and Diane Drury
Edwards and Midamerica Hotels Corporation. The City Clerk is
hereby authorized and directed to attest to said document and to
affix the seal of the City thereto. A copy of said Amendment to
Settlement Agreement and Release of All Claims is attached
hereto and incorporated herein by reference.
ARTICLE 2. To the extent that any provision in any other
ordinance or agreement is contrary to the terms of this
Amendment to Settlement Agreement and Release of All Claims,
those contrary provisions are hereby modified and amended in
order to effectuate the terms of this Amendment to Settlement
Agreement and Release of All Claims.
Article 3. This Ordinance shall be in full force and effect
ten days after its passage and approval.
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PASSED AND APPROVED THIS day of ((� 2014.
&/�Cz4e��
ATTEST:
Gayle/4. Conrad, -City Clerk
Harry`E. Radiger, Mayor
AMENDMENT TO SETTLEMENT AGREEMENT
AND RELEASE OF ALL CLAIMS
'Phis Amendment to the Settlement Agreement and Release of All Claims is made this
C�Ot — day of 2014, among MIDAMERICA HOTELS
CORPORATION, a Missouri Corporation and DIANE DRURY EDWARDS (collectively
referred to as "Midamerica"), and the CITY OP CAPE GIRARDEAU. MISSOURI, a City and
Political Subdivision of the State of Missouri (the "City").
RECITALS
A. On December 18, 2003, Midamerica hotels Corporation, James L. Drury and the City
entered into a Settlement Agreement and Release of All Claims (the "Settlement
Agreement"), for the proposes therein stated; and
B. On March 17, 2008, James L. Drury died intestate; and
C. Daniel M. Drury, John A. Drury, Diane Drury Edwards and Kenneth .l. Drury are the
sole surviving children and heirs ofJames L. Drury; and
D. Por purposes of this Agreement, the interests of Daniel M. Drury, John A. Drury and
Kenneth J. Drury have been assigned to Diane Drury l'dwards; and
E. The parties hereby agree to amend the Settlement Agreement as herein provided, in
accordance with Section 18 of the Settlement Agreement.
AGREEMENT
NOW, THEREFORE in consideration of the premises and promises contained herein and
other good and valuable consideration, the adequacy and sufficiency of which are hereby
ac1mowledged, the parties agree as follows:
To the extent that any provision in the Settlement Agreement requires the
hotel/motel/restaurant license tax set forth in Section 15-397, et seq. of the Code of
Ordinances of the City of Cape Girardeau to terminate upon the Payment of the
Bonds, those provisions are hereby rescinded and repealed. Accordingly,, said
hotel/motel/restaurant license tax shall be allowed to continue in full force and effect
until December 31, 2030, which is the termination date approved by the voters of the
City of Cape Girardeau on November 3, 1998.
2. 'File hotel/motel license tax will continue to be collected in order to fund the
operations of the Convention and Visitors Bureau. All "excess funds' (defined as
funds collected annually that exceed the annual approved budget used for day-to-day
Operations of the Convention and Visitors Bureau (the "CVB") and excluding an
annual replenishing appropriation to the "Marketing Investment Fund" up to $50,000
collected will be used by the City to refurbish and/or expand the Cape Splash Water
Park or other existing or future City -owned sports related facilities. The Marketing
Investment Fund is to be solely used by the CVB to attract events, tournaments and
meetings to Cape Girardeau. The CVB shall provide an annual report to the City
Council on the uses of this find. Each year the CVB may request replenishment of
the Marketing Investment Fund for the investments made during the prior year.
=. Using the proceeds of the restaurant license tax, the City shall, commission a
Feasibility Study, subject to the following conditions:
(a) "Che economic viability of a number of potential projects, including the
potential advantages of operating the Convention and Visitors Bureau at any
of the potential projects below:
(1) Indoor sports complex;
(2) Convention center;
(3) A hybrid facility containing both an indoor sports complex and a
convention center;
(4) An Aquatic Center review, including:
A.) the current bubble facility at Central Pool, and whether
upgrades could maximize public and visitor usage;
B.) the possibility of constructing a permanent roof; and
C.) the possibility of a new facility; and
(5) An agricultural exposition center at Arena Park.
(b) The economic viability of any project shall include an assessment of the
projected rate of return ("ROR"), defined as projected average annual
additional visitor revenues generated as a percent of net capital investment
(i.e., actual dollars invested by the City), less projected average annual
subsidy for maintenance and operating costs.
(c) This Feasibility Study shall be completed on or before the end of November,
2014.
(d) The entity or entities commissioned by the City to conduct this Feasibility_
Study shall be approved in writing by the City and Midamerica.
4. Within 30 days after execution of this Amendment, the parties agree to establish a
Joint Conurrince to review the scope and budget of the Feasibility Study, as well as
any and all proposed projects identified and evaluated by the Feasibility Study.
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(a) The Joint Committee shall have six voting members, consisting of three (3)
persons appointed by the City Council and three (3) persons selected by
Midamerica. The Joint Committee shall have two non-voting members,
including one (1) City Council member, and one (t) City Staff representative.
(b) The Joint Committee and the City Council shall give priority to projects
having the highest rate of return on investment and the greatest positive net
additional effect on tourism.
(c) The Joint Committee shall make a recommendation to the City Council as to
which project(s), if any, should be approved by the City Council. If multiple
projects are selected, (lie Joint Committee shall also make a recommendation
to the City Council regarding the order of priority based on the factors set
forth in paragraph (b) above.
(d) if a majority of the Joint Committee and a majority of the City Council arc not
able to come to an agreement as to the priority of the projects, the Restaurant
Tax shall terminate. The City Council may seek voter approval for another
Restaurant Tax that may include a list of projects to be completed with
proceeds from the tax. Any new Restaurant Tax shall not be subject to the
terms of this Agreement.
5. After sufficient proceeds from the restaurant license tax have been received for the
payment of the Feasibility Study, the nest twelve (12) months of receipts from that
tax will be used for enhancements to the Cape Splash Water Park and/or expenses
related to the City Parks and Recreation Department.
6. The Cape Girardeau Area Chamber of Commerce has requested that a ballot
proposition be presented to the Cape Girardeau City voters for the approval of a Local
Option Use Tax as authorized by Missouri law. If the Use Tax is not approved by the
City voters in 2014, the City may use up to Five Million Dollars ($55000,000.00) of
the proceeds collected from the restaurant license tax for expenses related to the City
Parks and Recreation Department (the "City Parks Fund"). Within three (3) mouths
after the decision by the City Council as to which, if any, projects to complete, the
City Manager and a representative of Midamerica shall detennine an appropriate
schedule identifying what portion of the restaurant tax receipts shall be placed into
the City Parks Fund. If a Use Tax is passed after 2014, no proceeds from the
restaurant license tax being shall be placed into the City Parks Fund after passage of
the tax.
7. If, during the tens of this agreement, a Major League Baseball team fomtally
expresses interest in establishing an affiliate baseball team in Cape Girardeau, a Joint
Committee shall be established, a Feasibility Study shall be conducted assessing the
economic viability of a Minor League baseball stadium conducted, and a
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recommendation made to the City Council. all in accordance with Paragraphs 3 and 4
above.
8. When any and all Council approved projects are completed and the agreed -to
proceeds are placed into the City Parks Fund (as set forth ill paragraph 6 above), a
representative of the City will meet with a representative of Midamerica to discuss
the need for an additional Feasibility Study. If the two representatives determine That
an additional Feasibility Study is appropriate, a Joint Committee shall be established.
a Feasibility Study conducted, and projects recommended to the City Council in
accordance with Paragraphs 3 and 4 above. if the two representatives determine that
no additional Feasibility Study and no additional projects are needed, the City
Council shall terminate the Restaurant Tai.
9. Midamerica hereby agrees that the City may make all changes necessary to Ordinance
Numbers 2403, 2438, 2465, 3111, 3268, 3269, Section 15-397 et seq., and any other
Ordinance or contract, in order to implement the terms of this Amendment to the
Settlement Agreement.
10. When all conditions necessary for the tennination of the Restaurant Tax have been
complied with, as provided herein, the City Council agrees to act promptly to
terminate that tax.
I. Except to the extent that they are otherwise herein modified or repealed, all other
provisions of the Settlement Agreement shall remain in full force and elfccl.
Notwithstanding any Payment of the Bonds referenced in Paragraphs 6 and 7 of the
Settlement Agreement, the remaining requirements of those paragraphs regarding
tending, operation and management of the CVB shall also reritain in full force and
effect.
12. All of the signers of this Amendment to the Settlement Agreement hereby represent
and warrant that they have full authority to execute this document on behalf, of the
Parties to the original Settlement Agreement, or their successors in interest, and to
bind those parties as fully and completely as in the original Settlement Agreement.
13. The parties agree drat this Agreement may be executed in counterparts.
14. If any portion of this Agreement is found to be unenforceable and/or invalid. the
offending provision shall be severed and the remainder of the Agreement shall remain
in full force and effect.
IN WITNESS WHEREOF the undersigned have executed this document on the day
affixed next to his or her signature.
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ANITNDMENT TO SETTLEMENT AGREEMENT
AND RELEASE Or ALL CLAIMS
Date:
ATTEST:
Conrad, City Clerk
CITY OF CAP,. 3i ARDEAU, MISSOURI
STATE OF MISSOURI )
) SS.
COUNTY OF CAPE GIRARDEAU )
0
On thiso day of Y 2014, before me appeared Scott A. Meyer.
to me personally known_ who, being by m duly sworn, did say that he is the City Manager of
the City of Cape Girardeau, Missouri, a Municipal Corporation of the State of Missouri, and that
the seal affixed to the foregoing instrument is the seal of said City and that the said instrument
was signed and sealed in behalf of said City by authority of its City Council and acknowledged
said instrument to be the free act and deed of said City.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal,
at my office in Cape Girardeau, Missouri, the day and year first above written.
_S_ho'n iakauc�a.ster, Notary Public
My commission expires:
February 23, 2016
AMENDIVI NT TO SETTLEMENT AGREEMENT
AND RELEASE OF ALL CLAIMS
S"fA"fE Oh MISSOUI:l )
) SS.
COUNTY OP CAPE GIRARDEAU j
MIDAMERICA HOTELS CORPORATION
BY
Daniel M. Drury, PV ident
On this—N day of rCBPUR2V 2014, before nuc appeared W nicl
M. Drury, to me personally known, who, being by me duly sworn, did say that he is the President
of Midamerica Hotels Corporation. and that the seal affixed to the foregoing instrument IS the
seal of said corporation and that the said instrument was signed and sealed in behalf of said
corporation by authority of its Board of Directors and acknowledged said instrunment to be the
li-ce act and deed of said corporation.
IN "TESTIMONY WHEREOF, I have hereunto set my hand and aflised my offieiul seal,
at illy office in Cape Girardeau, Missouri. the day and year fust above written.
Notary Public
My commission expires: 9128I201�
6
LORETTA A. BELL
Notary Public -Notary Seal
STATE OF MISSOURI
Commissioned for Cape Girardeau County
My Commission Expires: 0312812014
Commission #10955839
AMENDMENT TO SETTLEMENT AGREEMENT
AND RELEASE OF ALL CLAIMS
Date:��J ���Ri� Cly C- C�
DIANE DRURY EDWARDS
STATE OF MISSOURI )
) SS.
COUNTY OF CAPE GIRARDEAU )
On this 14 day of EEBRQ A P,� , 2014, before me appeared Diane Drury
Edwards, !mown to me to be the person who executed the within Agreement and acknowledges
the same to be her free act and Gleed.
IN TESTIMONY WHEREOF, 1 have hereunto set my hand and affixed illy official seal.
at my office in Cape Girardeau, Missouri, the day and year firs above written.
A&a.
Notary Public
My commission expires: NU1261,1
LORETTA A. BELL
Notary Public -Notary Seal
STATE OF MISSOURI
Commissioned for Cape Girardeau County
My Commission Expires: 0312812014
Commission #10955839 ��