HomeMy WebLinkAboutRes.2930.10-19-2015BILL NO. 15-199
RESOLUTIONcf�
RESOLUTION AUTHORIZING THE CITY TO ENTER INTO CERTAIN
AGREEMENTS IN CONNECTION WITH THE CONSTRUCTION OF A
PROPOSED CONFERENCE CENTER.
WHEREAS, Drury Southwest, Inc. (the "Company") has announced that it is considering the
construction of an approximately eight -story, 168 -room hotel and adjoining restaurant with an
approximately 20,000 square foot conference center (collectively, the "Project") in the City: and
WHEREAS, the City and the Company expect the Project. when operational, to provide
significant economic benefits to the City over time. by paying real estate and personal property taxes to
the City and other taxing districts and by generating retail sales tax revenues for the City and other
districts: and
WHEREAS, to develop the Project, the Company will incur significant costs. including costs for
items that are for a public purpose and will benefit the City, including the conference center: and
WHEREAS, the City and the Company desire to enter into the Development Agreement and the
Conference Center Funding Agreement described below. whereby the Compan' will agree to develop the
Project and the City will agree to reimburse the Company for a portion of the cost of the conference
center;
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF CAPE
GIRARDEAU, MISSOURI, AS FOLLOWS:
Section L Authorization of Documents. The City is hereby authorized to enter into the
Development Agreement between the City and the Company. in substantially the form attached hereto as
Exhibit A. and the Conference Center Funding Agreement among the City, the Company and the owners
of the hotels listed therein. in substantially the form attached hereto as Exhibit B, in substantially the
forms presented to and approved by the City Council and attached to this Resolution. with such changes
therein as shall be approved by the officials of the City executing the documents, such officials'
signatures thereon being conclusive evidence of their approval thereof.
Section 2. Execution of Documents. The City Manager is hereby authorized to execute the
Development Agreement, the Conference Center Funding Agreement and such other documents.
certificates and instruments as may be necessary or desirable to carry out and comply with the intent of
this Resolution. for and on behalf of and as the act and deed of the City. The City Clerk is hereby
authorized to attest to and affix the seal of the City to such documents. certificates and instruments as may
be necessary or desirable to carry out and comply with the intent of this Resolution.
Section 3. Further Authorih'. The City shall, and the officials, agents and employees of
the City are hereby authorized to, take such further action, and execute such other documents, certificates
and instruments as may be necessary or desirable to carry out and comply with the intent of this
Resolution and to carry out, comply with and perform the duties of the City with respect to the
Development Agreement and the Conference Center Funding Agreement.
Section J. Effective Date. This Resolution shall be in full force and effect from and after its
passage by the City Council.
DEVELOPMENT AGREEMENT
Dated as of November 1, 2015
BETWEEN THE
CITY OF CAPE GIRARDEAU, MISSOURI
AND
DRURY SOUTHWEST, INC.
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT, dated as of November 1. 2015, as from time to time
amended and supplemented in accordance with the provisions hereof (this "Agreement"), between the
CITY OF CAPE GIRARDEAU, MISSOURI, a home rule city organized and existing under the laws of
the State of Missouri (the "City"), and DRURY SOUTHWEST, INC., a Missouri corporation (the
"Company`).
RECITALS:
I. The Citv has determined that it is essential to the economic and social welfare of the Citv
that it promote the economic vitality of the community by assuring opportunities for development and
sound stable commercial growth.
2. The Company, by and through its affiliate, owns that certain approximately 53 acres of
property located at 104 South Vantage Drive (Parcel #20305-00-07-004.00-0000) in the City (the
"Project Site," as more fully described on Exhibit A-1 and Exhibit A-2 attached hereto and made a part
hereof), and proposes to construct an approximately eight story,168-room hotel and adjoining restaurant
with a conference center in excess of 20,000 square feet (the `Project Improvements") (the Project Site,
and construction of the Project Improvements are the "Project'), all of which will enhance the tax base of
the City to the benefit of the City and other governmental entities.
I Pursuant to the foregoing_ the City desires to enter into this Agreement with the Company
in consideration of the Company's desire to cause the purchase of the Conference Center as more fully
described herein upon the terms and subject to the conditions hereinafter set forth.
4. The Company anticipates that the Project, when operational, will provide significant
economic benefits to the City, over time, by paying real estate and personal property taxes to the City and
other taxing subdivisions wherein the Project Site is located and by generating retail sales tax revenues for
the City and other entities collecting retail sales taxes.
5. In order to develop the Project Site, the Company will incur significant costs, including
costs for items that are for a public purpose and will benefit the City, including the development of the
Conference Center, all of which will inure to the benefit of the City and its citizens.
6. The City and the Company desire to enter into this Agreement whereby the Company
will agree to develop the Project Site and construct and equip the Project Improvements, and the City will
agree to reimburse the Company for a portion of the cost of the Conference Center, as described herein.
7. The City is authorized to enter into this Agreement with the Company pursuant to the
provisions of Section 70.210 et seq. of the Revised Statutes of Missouri, as amended.
NOW, THEREFORE, in consideration of the premises and the mutual representations,
covenants and agreements herein contained, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby represent, covenant and agree as follows:
ARTICLE I
DEFINITIONS
Section I.I. Definitions of Words and Terms. In addition to the words and terms defined in
the Recitals, the following words and terms as used herein shall have the following meanings:
"Agreement" means this Development Ageement dated as of November —. 2015. between the
City and the Company, as from time to time amended and supplemented in accordance with the
provisions hereof.
"Calculation Period" means initially, the period from the Commencement Date to the end of the
calendar quarter during which the Commencement Date occurs; and thereafter, each calendar quarter.
"Certificate of Reimbursable Costs" means a document substantially in the form of Exhibit E,
attached to and incorporated by reference in this Agreement, provided by Company to the City in
accordance with this Ageement and evidencing verified costs actually incurred by Company in
connection with the construction of the Conference Center pursuant to this Ageement.
"Collector" means the Finance Director of the City or his or her designee or, at the direction of
the City. the Collector of Revenue of Cape Girardeau County, Missouri.
"Commencement Date" means the first day of the month following the first month in which the
City receives Sales Tai Revenues from the Missouri Department of Revenue after the delivery by the
Company of the Certificate of Substantial Completion pursuant to Section 2.5 hereof.
"Completion Date" shall have the meaning as set forth in Section 2.4 hereof.
"Concept Property Plan" means the plan sheet attached as Exhibit B and incorporated by
reference in this Ageement, depicting the conceptual plan for the Project in accordance with this
Ageement, as the same may be amended from time to time by the Company in furtherance of the general
objectives of this Ageement and as site conditions or other issues of feasibility may dictate.
"Conference Center" means a conference center in excess of 20.000 square feet constructed by
Company as part of the Project Improvements.
"Conference Center Funding Agreement" means the Conference Center Funding Ageement
dated as of November 2015, among the City, the Company. and various hotel owners within the Cit -v.
"Construction Plans' means plans, drawings, specifications. construction schedules and related
documents for the construction of the Project, as amended from time to time by Company before the
Completion Date, the same being on file at the principal office of the Company. and which shall be
available for reasonable inspection during normal business hours and upon not less than one business
day's prior notice by the City and its duly appointed representative.
"Event of Default" means any Event of Default as provided in Section 6.3 hereof.
"Governmental Approvals" means all plat approvals. re -zoning or other zoning changes, site
plan approvals, conditional use permits. variances, building permits. or other subdivision, zoning, or
similar approvals required for construction of the Project.
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"Land Use Approvals" means any zoning, planning or other governmental approvals necessary
for the physical development of the Project.
"Party" or "Parties` means each party to this Agreement and its respective successors and
assigns.
"Project" means. collectively, the Project Site and the Project Improvements, and all additions.
modifications, improvements, replacements and substitutions made to the Project as they may at any time
exist.
"Project Improvements" means the buildings, structures, improvements and fixtures located on
the Project Site, including the related Conference Center, as set forth in the Recitals.
"Project Site" means the real estate described in Exhibit A-1 attached hereto and made a part
hereof.
"Sales Tax" means, collectively, the revenues derived from the City's levies of (a) the one
percent (1.00%) general sales tax imposed by the City on the effective date of this Agreement pursuant to
Section 94.500 of the Revised Statutes of Missouri, as amended, and (b) two one-quarter percent (0.25%)
capital improvement sales taxes imposed by the City on the effective date of this Agreement pursuant to
Section 94.577 of the Revised Statutes of Missouri, as amended. "Sales Tax' shall not include any other
sales taxes imposed by the City, whether imposed on the effective date of this Agreement or hereafter
imposed including the City's general fund, fire protection tax and parks and storm water tax; provided,
however, "Sales Tax" shall include all of the listed taxes as they may be extended, modified, reauthorized,
replaced, substituted and/or revised from time -to -time.
"Sales Tax Revenues" means the Sales Tax attributable to the hotel_, restaurant and Conference
Center constructed on the Project Site.
"State" means the State of Missouri.
"Total Reimbursement Amount" means the actual costs of the Conference Center. as evidenced
by one or more Certificate(s) of Reimbursable Costs showing the amounts paid, a description of the costs
for which payments have been incurred. and copies of invoices or other records evidencing such costs,
including but not limited to all amounts advanced by the Company; provided, however, that the Total
Reimbursement Amount payable hereunder shall not exceed $6,250.000 less the amount received by the
Company under the Conference Center Funding Agreement.
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"R d [a rf9iT1
IMPLEMENTATION OF THE PROJECT
Section 2.1. Company to Pay Certain Costs. Company agrees to pay or cause to be paid all
costs as necessary to purchase. construct and improve the Project Improvements and to obtain all required
Governmental Approvals and complete or cause to be completed the Project in accordance with the
Concept Property Plan and with the schedules set forth in this Agreement, all subject to Company's right
to terminate this Agreement as set forth in Section 6.1 of this Agreement.
Section 2.2 Acquisition of the Project Site. Company hereby represents and warrants to the
City that as of the date of this Agreement. Company or its affiliate owns or is legally entitled to exercise
control over (whether by virtue of purchase option contracts or ownership in fee by affiliate entities of
Company or otherwise) all of the Project Site and such other real property necessary for Company to
construct or cause to be constructed the Project Improvements and to implement or cause to be
implemented the Project as depicted on the Concept Property Plan and in accordance with the schedules
set forth in this Agreement, with the exception of that portion of Vantage Drive which the City shall seek
to be transferred and conveyed from the Missouri Department of Transportation to the Company or its
affiliate, as determined by Company. in accordance with Section 8.1(a), hereof. The Company shall
comply with all applicable state and federal laws in connection with the construction of the Project. The
Company shall obtain all title commitments, inspections, tests, surveys and reports, hire and retain all
experts, professionals, including attorneys or engineers, and staff, and shall advance all acquisition costs
as necessary to control the Project Site and such other real property as is necessary for Company to
construct or cause to be constructed the Project.
Section 2.3 Governmental Approvals; Commencement of Construction. All Construction
Plans for the Project shall be prepared by a professional engineer or architect licensed to practice in the State
and shall be in sufficient completeness and detail to show that all aspects of constriction will be in
conformance with the Concept Property Plan and this Agreement and with all applicable City codes,
ordinances and regulations and in accordance with applicable law and with the provisions of this
Agreement. Company shall diligently pursue or cause to be pursued all applicable Governmental Approvals
in accordance with the City's or the applicable governmental authority's normal procedures therefor. The
City agrees to expeditiously process and timely review plans and submittals as submitted to and received by
the City in accordance with the applicable City ordinances and practices and this Agreement and with the
laws of the State; provided that nothing in this Agreement shall require the City to grant any Governmental
Approval or other approval, other than as may be required of the City exercising the City's police power
under applicable law. Within sixty (60) days after Company's obtaining of a building permit for the
Project Improvements. Company shall provide to the City a Notice of Commencement of Construction in
the form of Exhibit C, which shall serve as notice to the City that Company is commencing the
construction of the Project Improvements in accordance with the terms of this Agreement.
Section 2.4 Construction Schedule.
(a) Company shall use commercially reasonable efforts to complete construction of the
Project Improvements and each of Company's obligations under this Agreement on or before December
31. 2018 (the "Completion Date').
(b) Upon satisfaction of the provisions of paragraph (a) of this Section, neither the Company
nor any successor in interest shall be considered in breach or default of its obligations to complete the
Project Improvements under this Agreement, and times for performance of obligations hereunder shall be
extended, in the event of any delay caused by force majeure, including, without limitation. damage or
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destruction by fire or casualty; strike; lockout; civil disorder: acts of terrorism; significant escalation of
hostilities involving U.S. armed forces: an inordinate delay in the issuance of any permits and/or legal
authorization by a governmental entity that is necessary for the Company to proceed with construction of
the Project Improvements or any portion thereof (but only if the Company files all necessary
documentation relating thereto in a timely manner): shortage or delay in shipment of material or fuel; acts
of God; unusually adverse weather or wet soil conditions: or other causes beyond the reasonable control
of the Party required to perform. The Company agrees that. to the best of its knowledge, no event of
force majeure exists at the time of execution of this Agreement.
(c) No event under (b) shall be deemed to exist (1) as to any matter that could have been
avoided by the exercise of due care in accordance with industry standards, (2) as to any matter
unreasonably sustained by the Company, and (3)(i) unless the Company uses good faith efforts to provide
the City with a written notice within 20 days after the date on which the Company first becomes aware of
the claimed event and specifying the event of force majeure, or (ii) the Company demonstrates to the
City's reasonable satisfaction that the Company has diligently pursued its obligations under this
Agreement, but for reasons beyond the Company's reasonable control, has been unable to complete such
obligations within the time specified in this Agreement. Times for performance shall be extended only
for the amount of delay resulting from the event of force majeure.
(d) Notwithstanding anything to the contrary herein. no time for performance may be
extended by more than two years.
Section 2.5 Certificate of Substantial Completion. Promptly after substantial completion
of the Project in accordance with the provisions of this Agreement, Company shall famish to the City a
Certificate of Substantial Completion substantially in the form of Exhibit D and the Certificate of
Reimbursable Costs for the Conference Center substantially in the form of Exhibit E, each attached
hereto and incorporated herein, so certifying. The City shall, following the delivery of a Certificate of
Substantial Completion. carr, out such inspections as the City deems necessary in accordance with
customary inspection practices of the City to verify to the City's satisfaction the accuracy of the
certifications contained in the Certificate of Substantial Completion. If the City conducts any inspections
of the Project Improvements during the course of construction. the City shall notify Company if the City
observes any improperly performed work that would prevent the City from approving a Certificate of
Substantial Completion for the Project Improvements provided that failure of the City to so notify
Company shall not relieve Company of Company's obligation to construct and complete all the Project
Improvements in accordance with applicable State and local law and provisions of this Agreement. If the
City finds the Certificate of Substantial Completion unacceptable, the City shall, within thirty (30) days
after receipt of such Certificate of Substantial Completion, provide to Company a written statement
stating in adequate detail in what respects Company has failed to complete the Project Improvements in
reasonable accordance with this Agreement, or in what respects Company is otherwise in default
hereunder. and what measures or acts Company must take or perform. in the reasonable opinion of the
City. to obtain such acceptance. Company shall have a reasonable period of time to complete or correct
such items or to take such action described in the City's written statement. and Company shall thereafter
resubmit to the City a Certificate of Substantial Completion as described above. Upon acceptance of the
Certificate of Substantial Completion by the City, Company may record that Certificate of Substantial
Completion in the office of the Cape Girardeau County Recorder of Deeds. and the same shall constitute
evidence of the satisfaction of Company's agreements and covenants to satisfactorily complete the Project
Improvements under this Agreement.
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ARTICLE 111
INSTALLMENT PAYMENTS BY THE CITY
Section 3.1 Payment to the Company of Sales Tax Revenues.
(a) Subject to the provisions of Section 3.2. the City agrees, beginning on the
Commencement Date and on the first day of each calendar quarter thereafter until the Total
Reimbursement Amount is paid to the Company, to pay the Company an amount equal to 100% of the
Sales Tax Revenues that the City received during the preceding Calculation Period.
(b) At the time of filing by the Company of the reporting form(s), a form(s), with the
Missouri Department of Revenue with respect to room, meeting room, restaurant and catering sales
activity of the Project, the Company shall cause a copy of such form(s) to be filed with the Finance
Director of the City or any other City official as designated by the City. The City and any employee
thereof shall otherwise keep confidential all information contained in any such form submitted pursuant to
this Agreement and shall not use such information for any purpose other than in connection with this
Agreement, including use in preparing the City budget. The Company agrees to cooperate and to take all
additional reasonable actions necessary to ensure accurate calculation of the Sales Tax, including
supplying or causing to be supplied to the City appropriate authorizations of the Missouri Department of
Revenue to provide such information.
Section 3.2. Annual Appropriation.
(a) The City is obligated only to make the payments set forth in Section 3.1 as may lawfully
be made from funds budgeted and appropriated for that purpose during the City's then -current fiscal year.
If no funds are appropriated or otherwise legally available to make the required payments during the next
occurring fiscal year of the City (an "Event of Nonappropriation"), no Sales Tax Revenues shall be paid
to the Company for that fiscal year, however this Agreement will not terminate as to any future fiscal year
during the term of this Agreement. After each occurrence of an Event of Nonappropriation, the City must
(i) immediately notify each nationally recognized rating agency which then maintains a rating on any of
the City's outstanding bonds and (ii) give notice to the Municipal Securities Rulemaking Board, through
the Electronic Municipal Market Access system.
(b) The obligation of the City to make the payments hereunder constitute a current expense
of the City, is from year to year, and does not constitute a mandatory payment obligation of the City in
any fiscal year beyond the then current fiscal year of the City. The City's obligations hereunder shall not
in any way be construed to be a debt of the City in contravention of any applicable constitutional or
statutory limitation or requirement concerning the creation of indebtedness by the City, nor shall anything
contained herein constitute a pledge of the general credit, tax revenues, funds or moneys of the City.
(c) The City reasonably believes that legally available funds in an amount sufficient to make
all payments during each term of this Agreement can be obtained. Notwithstanding the foregoing, the
decision whether or not to budget or appropriate funds or to extend this Agreement for any subsequent
fiscal year is solely within the discretion of the then current governing body of the City.
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ARTICLE IV
COVENANTS, REPRESENTATIONS AND AGREEMENTS
OF THE COMPANY AND THE CITY
Section 4.1. Inspection. The City may conduct such periodic inspections of the Project as
may be generally provided in the City's code. In addition. the Company agrees that the City and its duly
authorized agents may at reasonable times (during business hours but without disruption to the business),
subject to at least five (5) business days' advance written notice and in observance of the Company's
usual business proprietary, safety, confidentiality and security requirements, enter upon the Project Site to
examine and inspect the Project and the records of the Company that demonstrate compliance with this
Agreement.
Section 4.2. Representations.
(a) The Company represents that as of the date of this Agreement:
(1) The Company is a corporation duly organized, validly existing and in good
standing under the laws of the State.
(2) The Company has the right, power and authority to enter into, execute, deliver
and perform its duties and obligations under this Agreement.
(3) The execution, delivery and performance by the Company of this Agreement has
been duly authorized by all necessary action. and does not violate its articles of organization or
the operating agreement, as the same may be amended and supplemented, or to the best of its
knowledge, any applicable provision of law. nor does it constitute a breach of or default under or
require any consent under any agreement, instrument or document to which the Company is now
a party or by which the Company is now or may become bound.
(4) There are no actions or proceedings by or before any court, governmental
commission, board, bureau or any other administrative agency pending, or to the best of the
Company's knowledge, threatened or affecting the Company that would impair its ability to enter
into or perform its obligations under this Agreement.
(5) The Company. or its affiliate, has obtained (or prior to the applicable time
required will obtain) and will maintain all government permits, certificates and consents
(including without limitation appropriate environmental approvals) necessary to conduct its
business and to purchase and operate the Project.
(b) The City represents that as of the date of this Agreement:
(1) The City is a home rule city duly organized and validly existing under the laws of
the State.
(2) The execution. delivery and performance by the City of this Agreement have
been duly authorized by all necessary City actions.
(3) The City has the right, power and authority to enter into. execute. deliver and
perform its duties and obligations under this Agreement.
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(4) There are no actions or proceedings by or before any court, governmental
commission, board, bureau or any other administrative agency pending, or to the best of the
current City Council's knowledge, threatened or affecting the City that would impair its ability to
enter into or perform its obligations under this Agreement.
Section 4.3. Survival of Covenants. All warranties, representations, covenants and
agreements of the Company contained herein shall survive termination of this Agreement for any reason.
Section 4.4. Indemnification of City. The Company shall indemnify and save and hold
harmless the City and its governing body members, officers, agents and employees from and against all
claims, demands, costs, liabilities, damages or expenses, including attomeys' fees, by or on behalf of an},
person, firm or corporation the execution of this Agreement and from the conduct or management of. or
from any work or thing done in or on the Project Improvements, and against and from all claims,
demands, costs, liabilities, damages or expenses, including attomeys' fees, arising from (a) any condition
of the Project or (b) this Agreement, the Conference Center Funding Agreement or any related document;
provided, however, the indemnification contained in this Section 4.4 shall not extend to the City to the
extent that such claims, demands, costs, liabilities, damages or expenses, including attorneys' fees, are (i)
the result of work being performed at the Project by employees of the City, or (ii) the result of gross
negligence or willful misconduct by the City. Upon written notice from the City of any such claims or
demand, the Company shall defend the City in any such action or proceeding; provided, that the City shall
cooperate with the Company and provide reasonable assistance in such defense. All costs related to the
defense of the City shall be paid by the Company. This Section 4.4 shall survive any termination of this
Agreement.
Section 4.5. Public Liability Strictly Limited. The Company agrees that remedies for any
claim arising out of this Agreement or any document relating thereto shall be limited to equitable relief
including the availability of specific performance and in no event shall the City or any official, officer,
agent, attorney, employee or representative thereof have any liability in damages or any other monetary
liability to the Company or any lessee, successor, assign, heir or personal representative of the Company
or any affiliate thereof in respect of any suit, claim or cause of action arising out of this Agreement or any
document relating thereto. No official, officer, agent, attorney, employee or representative of the Citv
shall be personally liable to the Company or any lessee. successor, assign, heir or personal representative
of the Company or any affiliate thereof in the event of anv default or breach by any party under this
Agreement, or for any amount which may become due to any party or on any obligations under the terms
of this Agreement other than for intentionally wrongful conduct of such party.
Section 4.6. No Waiver of Sovereign Immunity. Nothing in this Agreement shall be
construed or deemed to constitute a waiver of the City's sovereign immunity.
Section 4.7. Costs to be paid by Company. The Company shall pay all costs and fees
reasonably necessary of the City, including but not limited to the legal fees of special counsel to the City
and any consultants retained by the City. in connection with the preparation and administration of this
Agreement, carrying out the duties of the City under this Ageement, and effectuating (i) an assignment or
transfer of this Agreement and (ii) any action requested by the Company which requires legislative
proceedings by the City Council.
Section 4.8. Annual Donation of Conference Center Rental Cost. Not more often than
once each calendar year during the term of this Agreement. the Company shall, upon request of the City
and subject to availability, donate to the City the rental cost for the City to use the entire Conference
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Center for a single day event (the "Company Donation"). The Company Donation includes only the cost
to rent the Conference Center for a single day and specifically excludes all other costs, including without
limitation. costs for food, beverage and employees serving at the event held therein, and any required
insurance coverage.
FAN AI[tl11BIL9
SALE AND ASSIGNMENT
Section 5.1. Non -Assignability. Except as otherwise provided in this Article V. the benefits
granted by the City to the Company pursuant to this Agreement shall belong solely to the Company, and
such benefits shall not be transferred, assigned, pledged or in any other manner hypothecated.
Section 5.2 Assignment. (a) Prior to the delivery of the Certificate of Completion of
Construction, the Company must obtain the City`s prior written consent before any assignment, transfer
or disposition of the Company's interest in Project Improvements or this Agreement, unless such
disposition is to an entity controlled by or under common control with or controlling the Company.
(b) With respect to any assignment, transfer or disposition after the delivery of the Certificate
of Completion of Construction, the Company shall comply with the following conditions:
(i) The Company shall notify the City of the assignment in writing;
(ii) Such assignment shall be in writing, duly executed and acknowledged by the
assignor:
(iii) Such assignment shall include the entire then unexpired term of this Agreement;
and
(iv) A duplicate original of such assignment shall be delivered to the City within 10
days after the execution thereof together with an assumption agreement, duly executed and
acknowledged by the assignee, by which the assignee shall assume all of the terms, conditions,
and covenants of this Agreement on the part of Company and to be performed and observed.
(c) Any assignee of all the rights of the Company shall agree to be bound by the terms of this
Agreement. Upon such assignment of all the rights of the Company and agreement by the assignee to be
bound by the terms of this Agreement, the Company shall be released from and have no further
obligations under this Agreement.
ARTICLE VI
DEFAULT AND REMEDIES
Section 6.1 Company's Right of Termination. At any time prior to the delivery of a
Certificate of Substantial Completion for the Project Improvements, Company may, by giving written
notice to the City, abandon or discontinue the construction of the Project Improvements and terminate this
Agreement and Company's obligations hereunder. Upon such termination, (i) the City shall have no
obligation to reimburse Company for any amounts advanced under this Agreement, or for work
performed hereunder, or for costs otherwise incurred or paid by Company, and (ii) neither Company nor
the City shall have any further obligation regarding the Project Improvements or this Agreement.
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Section 6.2 City's Right of Termination. Subject to Company's right to cure as provided in
Sections 6.3 and 6_4 below, the City may terminate this Agreement in the event that Company fails to
satisfactorily complete the Project Improvements in accordance with the time schedules and requirements
established in this Agreement. Upon such termination which shall be effective upon Company's receipt
of written notice from the City, the City shall have no further obligation to reimburse Company for any
amounts advanced under this Agreement or costs otherwise incurred or paid by Company or any other
person or entity in connection with the construction of any Project Improvements for which the City has
not already accepted a Certificate of Substantial Completion.
Section 6.3. Non -Monetary Defaults; Rights to Cure. Except as otherwise provided in this
Agreement and subject to permissible delays under this Agreement, failure or delay by either Party to
timely perform any term or provision of this Agreement shall constitute a default under this Agreement.
The Parry who so fails or delays must, upon receipt of written notice of the existence of such default,
immediately commence to cure, correct or remedy such default and thereafter proceed with diligence to
cure such default. The Party claiming such default shall give written notice of the alleged default to the
Party alleged to be in default specifying the default. Except as otherwise expressly provided in this
Agreement and except as required to protect against immediate, irreparable harm, the Party asserting a
default may not institute proceedings against the other Party until thirty (30) days after having given such
notice, for any nonmonetary default. If such default is cured within such thirty (30) day period, the
default shall not be deemed to constitute a breach of this Agreement. In the event that the defaulting or
breaching Party diligently and in good faith commences to cure or remedy such default or breach but is
unable to cure or remedy such default or breach within thirty (30) days after receipt of notice, the
defaulting or breaching Parry shall, prior to the end of such thirty (30) days, provide notice to the other
Parry that the breaching Party has in good faith commenced to cure or remedy such default or breach,
whereupon the defaulting or breaching Parry shall have an additional thirty (30) days to cure or remedy
such default or breach. In case such cure or remedy is not undertaken or not diligently pursued, or the
default or breach shall not be cured or remedied prior to the end of the additional thirty (30) day period,
the aggrieved Party may avail itself of all remedies available at law or in equity against the defaulting or
breaching Party. Except as otherwise expressly provided in this Agreement, any failure or delay by either
Party in asserting any of its rights or remedies as to any default or alleged default or breach shall not
operate as a waiver of any such default or breach of any rights or remedies it may have as a result of such
default or breach. If any one or more of the following events, or those events described in Section 6.4
herein. occurs and is continuing it is hereby defined as and declared to be and to constitute an "Event of
Default" hereunder:
(a) the Company fails to perform any of its material obligations hereunder for a period of 30
days (or such longer period as the City and the Company may agree in writing) following written notice
to the Company from the City of such failure, or if such failure is not subject to cure within such 30 days
after such notice, the Company fails to initiate action to cure the default within such 30 days after such
notice is given and fails to pursue such action diligently;
(b) any representation of the Company contained herein proves to be materially false or
erroneous and is not corrected or brought into compliance within 30 days (or such longer period as the
City and the Company may agree in writing) after the City has given written notice to the Company
specifying the false or erroneous representation and requiring it to be remedied; provided, that if such
matter is not subject to cure within such 30 days after such notice, the Company fails to initiate action to
cure the default within such 30 days after such notice is given and fails to pursue such action diligently: or
-10-
4591424.6
(d) the Company fails to invest at least $25.000.000 in the Project Site and the Project
Improvements, including any and all personal property placed into service at the Project Site, by the
Completion Date.
Section 6.4. Monetary Defaults. Notwithstanding anything contained in this Agreement to
the contrary, in the event of a default by either Party of an obligation to pay any amounts required to be
paid under this Agreement or as required by law, the nor -defaulting Party shall only be required to
provide a ten day cure period to the defaulting Part), following notice to the defaulting Party of such
monetary, default.
Section 6.5. Interest on Late Payments. Any amounts due hereunder which are not paid
when due shall bear interest at the interest rate of 10% per annum from the date such payment was first
due.
Section 6.6. Other Rights and Remedies of Parties; Delay in Performance Waiver.
(a) Any delay by a Party in instituting or prosecuting any actions or proceedings or otherwise
asserting their rights under this Agreement shall not operate to act as a waiver of such rights or to deprive
them of or limit such rights in any way (it being the intent of this provision that the parties should not be
constrained so as to avoid the risk of being deprived of or limited in the exercise of the remedies provided
in this Ageement because of concepts of waiver. laches or otherwise); nor shall any waiver in fact made
by a Party with respect to any specific Event of Default by a Party under this Agreement be considered or
treated as a waiver of the rights of a Party under this Section or with respect to the particular Event of
Default, except to the extent specifically waived in writing by the other parties.
(b) The rights and remedies of the parties to this Agreement (or their successors in interest)
whether provided by law or by this Agreement, shall be cumulative. and the exercise by any Party of any
one or more of such remedies shall not preclude the exercise by it, at the time or different times, of any
other such remedies for the same Event of Default by another Party. No waiver made by any Party with
respect to the performance, nor the manner of time thereof. or any obligation of another Party or any
condition to its own obligation under the Agreement shall be considered a waiver of any rights of the
Party making the waiver with respect to the particular obligation of another Party or condition to its own
obligation beyond those expressly waived in writing and to the extent thereof, or a waiver in any respect
to regard to any other rights of the Party making the waiver or any other obligations of another Party.
ARTICLE VII
TERM OF AGREEMENT
Section 7.1. Term of Agreement. This Agreement shall become effective upon execution by
the parties hereto and shall terminate upon the earlier of 20 years from the first December 31 following
the Commencement Date. or the payment by the City to the Company of an amount equal to the Total
Reimbursement Amount.
ARTICLE VII
MISCELLANEOUS PROVISIONS
4591424b
Section 8. 1. Mutual Assistance. The City and the Company agree to take such reasonable
actions as may be necessary or appropriate to carry out the terms, provisions and intent of this Agreement
and to aid and assist each other in carrying out said terms, provisions and intent: provided, however, the
City shall not be required to incur any costs, expenses, obligations or liabilities in providing such
reasonable actions, except to the extent specifically set forth in this Agreement. Specifically, the parties
agree as follows:
(a) The City shall work with the Company to seek a transfer of a portion of Vantage Drive
from the Missouri Department of Transportation to the Company, or its affiliate as determined by
Company, as needed in order to accommodate sufficient surface parking area for the Project.
(b) The City and the Company shall collaborate and work cooperatively to market the use of
the Conference Center and attract visitors and meetings to the City.
(c) The City shall develop, purchase. install and maintain directional signage at intersections
in the vicinity of the Project informing the public of the location of the Conference Center.
(d) The City will work with the Company and the Planning and Zoning Commission in order
to approve a zoning variance for the height of the hotel in the Project.
Section 8.2. Notices. All notices, certificates or other communications required or desired to
be given hereunder shall be in writing and shall be deemed duly given when (i) mailed by registered or
certified mail, postage prepaid, or (ii) sent by overnight delivery or other delivery service which requires
written acknowledgment of receipt by the addressee. addressed as follows:
(a) To the City:
City of Cape Girardeau
401 Independence Street
Cape Girardeau, Missouri 63701
ATTN: Scott Mever
with a copy to:
City of Cape Girardeau
401 Independence Street
Cape Girardeau, Missouri 63701
ATTN: Eric Cunningham
(c) To the Company:
Drury Southwest. Inc.
101 South FarrarDrive.
Cape Girardeau, MO 63701
ATTN: Dennis Vollinl:
_12_
4591424.6
with a copy to:
Bryan Cave LLP
211 N. Broadway, Suite 3600
St. Louis. Missouri 63102
ATTN: Linda M. Martinez
All notices given by certified or registered mail as aforesaid shall be deemed fully given as of the
date they are so mailed. The City and the Company may from time to time designate, by notice given
hereunder to the others of such parties, such other address to which subsequent notices, certificates or
other communications shall be sent.
Section 8.3. Severability; Effect of Invalidity. If for any reason any provision of this
Agreement shall be determined to be invalid or unenforceable, such invalid or unenforceable term will be
deemed severed from this Agreement and the validity and enforceability of the other provisions hereof
shall not be affected thereby.
Section 8.4. Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State.
Section 8.5. Execution in Counterparts; Amendment or Modification. This Agreement
may be executed simultaneously in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute but one and the same instrument. The parties to this Agreement may
amend or modify this Agreement only by written instrument duly executed by the parties hereto.
Section 8.6 Third Party Rights; Assignment No person or entity who or which is not a
party to this Agreement will have any right of action under this Agreement. The Company may, without
violating the Agreement or the requirement for the consent of the City, assign or transfer to another
domestic corporate entity controlled by the Company, all or substantially all of its Project and the rights
and obligations under this Agreement, provided the resulting or transferee corporate entity (i) is a
corporate entity duly incorporated or organized and existing under the laws of one of the states of the
United States, (ii) is duly qualified to do business in the State, (iii) expressly assumes in writing all the
obligations of the Company contained in this Agreement, and (iv) provides notice of the assignment or
transfer to the City.
Section 8.7 Benefits. Prior to completion of the Project, the benefits of this Agreement to the
Company are personal and may not be assigned without the express written approval of the City. Such
approval may not be unreasonably withheld, but any unapproved assignment is void. Notwithstanding
the foregoing, the burdens of this Agreement are personal obligations of the Company and its heirs,
successors and assigns. After completion of the Project, this Agreement may be assigned by the
Company to an entity succeeding to all or substantially all of the business of the Company or an entity
controlled by the Company or under common control with the Company.
Section 8.8. Entire Agreement. This Agreement, together with the Conference Center
Funding Agreement. and any other documents entered into of even date herewith in connection with the
Project, constitute the entire agreement of the parties with respect to the subject matter hereof and
supersede all prior agreements, representations, negotiations and understandings, both written and oral,
between the City and the Company with respect to the subject matter hereof. This Agreement shall not be
modified except by written agreement signed on behalf of the City and the Company by their duly
authorized representatives.
_13_
4591424.6
Section 8.9. Electronic Storage. The parties agree that the transaction described herein may
be conducted and related documents may be sent. received or stored by electronic means. Copies,
telecopies, facsimiles, electronic files and other reproductions of original executed documents shall be
deemed to be authentic and valid counterparts of such original documents for all purposes, including the
filing of any claim, action or suit in the appropriate court of law.
Remainder of page intentionally left blank.
-14-
4591424.6
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in
their respective corporate names by their duly authorized officers, all as of the date first above written.
By:
City C 6
[Development Agreement]
_15_
4591424.6
CITY OF CAPE GIRAU, MISSOURI
M1
Scott Meyer, City
DRURV SOUTHWEST, INC.,
a Missouri corporation
By: 14Z 1,AA
Dennis J. Vollin resident
[Development Agreement]
-16-
4591424.6
EXHIBIT A -I
PROJECT SITE
The land situated in Cape Girardeau County, State of Missouri, and described as follows:
A part of United States Private Survey No. 3090, Township 30 North, Range 13 East of the Fifth
Principal Meridian, City and County of Cape Girardeau, State of Missouri, being more particularly
described as follows: Commencing at the northeast corner of U.S.P.S. 3090; thence South 06° 02' 34"
West, 1930.30 feet along the east line of U.S.P.S. 3090; thence leaving said east line, North 83° 57' 26"
West, 864.52 feet to a point on the West right of way of Farrar Drive; thence North 060 01' 47" East,
14.87 feet along said right of way to a point being at the intersection of the west right of way of Farrar
Drive and the south right of way of Percy Drive, said point being also the northeast comer of a tract of
land recorded in the land records of the County Recorder's Office in Book No. 415 at Page No. 629;
thence along the north line of said tract and the south right of way line of Percy Drive, North 84° 00'40"
West, 429.50 feet to the true point of beginning; thence continuing along said right of way line, North 84°
00'40" West, 266.46 feet; thence North 88° 54' 36" West, 303.95 feet along said right of way to a point
on the easterly right of way of Interstate Route 55, point being 235.00 feet easterly of and normal to the
centerline of Interstate 55, sta. 1193+24.91; thence leaving said south right of way and along the easterly
right of way of Interstate 55, South 19° 56' 06" East, 175.09 feet to a point being 235.00 feet easterly of
and normal to the centerline of Interstate 55, sta. 1195+00; thence continuing along said right of way,
South 33° 29' 40" East, 46726 feet to a point being 34455 feet easterly of and normal to the centerline of
Interstate 55, sta. 1199+54.24: thence leaving said right of way, North 56° 44' 33" East, 465.92 feet:
thence North 33° 22' 16" West. 260.15 feet; thence North OS° 45' 17" East, 48.15 feet to the point of
beginning.
4591424.6
DRURY SOUTHWEST, INC.,
a Missouri corporation
02
Name:
Title:
[Development Agreement]
-16-
4591424.6
EXHIBIT A -I
PROJECT SITE
The land situated in Cape Girardeau County, State of Missouri, and described as follows:
4591424,6
EXHIBIT A-2
MAP OF PROJECT SITE
4591424.6
EXHIBIT B
CONCEPT PROPERTY PLAN
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DRURY SOUTHWEST, INC:: PROPOSED DRURY HOTEL & CONFERENCE CENTER CAPE GIRARDEAU, MO
EXHIBIT C
Form of Notice of Commencement of Construction
NOTICE OF COMMENCENIENT OF CONSTRUCTION
The undersigned, being a duly authorized officer of Drury Southwest. Inc.. a Missouri
corporation ("DSW"), delivers this notice to the City in connection with the Development Agreement
dated as of November 2015 (the "Agreement"). Capitalized terms not otherwise defined herein shall
have the meanings set forth in the Agreement.
The undersigned hereby certifies as to the following:
DSW owns or is legally entitled to exercise control over (by virtue of ownership in fee by affiliates of
DSW or otherwise) the Project Site necessary to construct the Project, as described in Exhibit B of the
Agreement.
DSW shall construct or has entered into an agreement with a contractor or contractors to construct the
Project.
DSW has obtained all necessary building permits to begin construction of the Project.
This Notice of Commencement of Construction is being issued by DSW to the City in accordance with
the Agreement to evidence DSW's satisfaction of all obligations and covenants with respect to
commencement of construction of the Project.
DRURY SOUTHWEST, INC.
WE
Date:
4591724.6
EXHIBIT D
Form of Certificate of Substantial Completion
CERTIFICATE OF SUBSTANTIAL COMPLETION
The undersigned, Drury Southwest. Inc., a Missouri corporation (DSW"), pursuant to that
certain Development Agreement dated as of November _. 2015, by and between the City of Cape
Girardeau. Missouri and DSW (the "Agreement'), hereby certifies to the City as follows: Capitalised
terms used and not defined in this Certificate shall have the meanings ascribed to them in the Agreement.
1. That as of the construction of the Project has been substantially
completed in accordance with the Agreement.
2. The construction of the Project has been performed in a workmanlike manner and in accordance
with the Concept Property Plan, subject to changes that are permissible under the Agreement.
I This Certificate of Substantial Completion is accompanied by the architect's or owner
representative's certificate of substantial completion on AIA Form G-704, a copy of which is attached
hereto as Exhibit A and incorporated by reference, certifying that the Project has been substantially
completed in accordance with the Agreement.
4. This Certificate of Substantial Completion is being issued by DSW to the City in accordance with
the Agreement to evidence DSW's satisfaction of DSW's obligations and covenants with respect to the
Project under the Agreement.
5. Upon such acceptance by the City, DSW may record this Certificate in the office of the Cape
Girardeau County Recorder of Deeds. This Certificate is given without prejudice to any rights against
third parties which exist as of the date hereof or which may subsequently come into being.
IN WITNESS WHEREOF, the undersigned has hereunto set his/her and this _ day of
.20 .
DRURY SOUTHWEST, INC
U2
Its:
Accepted this _ day of 20_
CITY OF CAPE GIRARDEAU, MISSOURI
By:_
Name:
4591424.6
EXHIBIT E
Form of Certificate of Reimbursable Costs
Certificate of Reimbursable Costs
TO:
City of Cape Girardeau
401 Independence Street
Cape Girardeau. Missouri 63701
Ann: City Manager
Re:
Terms not otherwise defined herein shall have the meaning ascribed to such terms in the
Development Agreement dated as of November _, 2015 (the "Agreement`), among the Parties. In
connection with said Agreement. the undersigned hereby states and certifies that:
1. Each item listed on Schedule 1 hereto is a cost and was incurred in connection with the
construction of the Conference Center ("Reimbursable Costs').
2. The foregoing Reimbursable Costs have been paid by Drury Southwest. Inc.. or its
affiliates, and are reimbursable under the Agreement.
3. Each item listed on Schedule 1 has not been included in any other certificate previously
filed with the City.
4. There has not been filed with or served upon Drury Southwest. Inc. 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 request, except to the extent any such lien is being contested
in good faith.
5. All work for which payment or reimbursement is requested has been performed in a good
and workmanlike manner and in accordance with the Agreement.
6. If any cost item be reimbursed under this Certificate is deemed not to constitute a
Reimbursable Cost within the meaning as defined in the Agreement, Drury Southwest. Inc. shall have the
right to substitute other eligible Reimbursable Costs for payment hereunder.
Dated this day of
DRURY SOUTHWEST, INC.
By:
Approved this day of . 20
CITY OF CAPE GIRARDEAU, MISSOURI
Bv:
Name:
Title-
45914246
itle:
45914246
[Space Above this Line for Recording Data
IIIVIIIIIBIIIIIIIIIIIIINIYI
DOCUMENT #
2015-13391
ANDREW DAVID BLATTNER
RECORDER OF DEEDS
CAPE GIRARDEAU COUNTY, MO
RECORDED ON
12/16/2015 12:27:13 PM
REC FEE: 105.00
PAGES: 28
Title of Document: CONFERENCE CENTER FUNDING AGREEMENT
Date of Document: November 1, 2015
Grantors' Names: City of Cape Girardeau, Missouri
DI Hotels Sun, LLC, a Missouri limited liability company
DDC Hotels, Inc., a Missouri corporation
MidAmerica Hotels Corporation, a Missouri corporation
Drury Southwest, Inc., a Missouri corporation
Grantors Addresses: see next page
Legal Description contained on pages 17-20 hereof.
Unon Recordine Return to:
Linda M. Martinez
Bryan Cave LLP
211 N. Broadway, Suite 3600
St. Louis, Missouri 63102
DI Hotels Sun, LLC
101 South Farrar Drive
Cape Girardeau, MO 63701
Attn: Dennis Voilink
DDC Hotels, Inc.
721 Emerson Road
Suite 200
St. Louis, MO 63I41
Attn: Larry Hasselfeld
MidAmerica Hotels Corporation
105 South Mt. Auburn Rd
Cape Girardeau, MO 63703
Attn: Diane Drury Edwards
-2-
CENTER FUNDING AGREEMENT
THIS CONFERENCE CENTER FUNDING AGREEMENT, dated as of ovember1
N , 2015,
as from time to time amended and supplemented in accordance with the provisions hereof (this
"Agreement"), between and among the CITY OF CAPE GIRARDEAU, MISSOURI, a home rule city
organized and existing under the laws of the State of Missouri (the "City"), DI Hotels Sun, LLC, a Missouri
limited liability company ("Hotel Owner #1"), DDC Hotels, Inc., a Missouri corporation ("Hotel Owner
#2"), MidAmerica Hotels Corporation, a Missouri corporation ("Hotel Owner 0", and together with Hotel
Owner #1 and Hotel Owner #2, collectively and with any other hotel owners added to this Agreement per
Section 3.1(b) hereof, the "Hotel Owners'l and DRURY SOUTHWEST, INC., a Missouri corporation
(the "Company").
RECITALS:
1. The Company, by and through its affiliate, owns that certain approximately 5.3 acres of
property located at 104 South Vantage Drive (Parcel #20.305-00-07-004.00-0000) in the City (the "Project
Site," as more fully described on Exhibit A hereto), and proposes to construct an approximately eight story,
168 -room hotel and adjoining restaurant with a conference center in excess of 20,000 square feet (the
=Project Improvements") (the Project Site, and construction of the Project Improvements are the
"Project"), all of which will enhance the tax base of the City to the benefit of the City and its citizens.
2. The City desires to enter into this Agreement with the Company in consideration of the
Company's desire to cause the purchase of the Conference Center as more fully described herein and the
Hotel Owners desire to fund a portion of the costs of the Conference Center upon the terms and subject to
the conditions hereinafter set forth.
3. In order to develop the Project Site and construct and equip the Conference Center, the
Company will incur significant costs, including costs for items that are for a public purpose and will benefit
the Hotel Owners, including the development of the Conference Center, all of which will also inure to the
benefit of the City and its citizens.
4. The Hotel Owners are the owners of certain real property located in the City which is more
particularly described on Exhibits B-1 to B-3 (the "Hotel Owners' Property").
5. The Hotel Owners desire to impose an assessment on the revenues generated from the use
of hotel rooms in order to support the cost of construction of the Conference Center and desire to bind all
current and future owners of the Hotel Owners' Property and subject such Hotel Owners' Property to the
terns hereof in order to facilitate the construction of the Conference Center.
6. The parties hereto desire to enter into this Agreement whereby the Company will agree to
develop the Project Site and construct and equip the Conference Center and the Hotel Owners (including
successor owners of the Hotel Owners' Property) will agree to fund a portion of the cost of the Conference
Center through the assessment of a one percent (1.00%) assessment on the revenues generated from room
sales for a period of at least 20 years or until the Total Reimbursement Amount (as hereinafter defined) of
the Conference Center has been paid in full.
7. The City is authorized to enter into this Agreement with the Company pursuant to the
provisions of Section 70.210 et seq. of the Revised Statutes of Missouri, as amended.
-3-
NOW, THEREFORE, in consideration of the premises and the mutual representations, covenants
and agreements herein contained, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby represent, covenant and agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1.Definitions of Words and Terms. In addition to the words and terms defined in the
Recitals, the following words and terms as used herein shall have the following meanings:
"Assessments" means, collectively, the revenues derived from the imposition by the Hotel Owners
on their respective Hotel Owners' Properties of a one percent (1.00%) assessment on and after the
Commencement Date for the term of this Agreement on the revenues generated from room sales at the
Hotel Owners' Property Agreement.
"Calculation Period" means initially, the period from the Commencement Date to the end of the
calendar quarter during which the Commencement Date occurs; and thereafter, each calendar quarter.
"Certificate of Reimbursable Costs" means a document substantially in the form of Exhibit E to
the Development Agreement, provided by Company to the City and the Hotel Owners in accordance with
this Agreement and evidencing verified costs actually incurred by Company in connection with the
construction of the Conference Center pursuant to the Development Agreement.
"Certificate of Substantial Completion" means a document substantially in the form of Exhibit
D to the Development Agreement provided by the Company to the City.
"Commencement Date" means the first day of the first month following the City's acceptance of
the Certificate of Substantial Completion pursuant to pursuant to Section 2.5 of the Development
Agreement.
"Completion Date" shall have the meaning as set forth in the Development Agreement.
"Conference Center" shall have the meaning as set forth in the Development Agreement.
"Development Agreement" means the Development Agreement dated as of November 1, 2015,
between the City and the Company, as amended.
"Event of Default" means any Event of Default as provided in Section 6.1 hereof.
"Land Use Approvals" means any zoning, planning or other governmental approvals necessary
for the physical development of the Conference Center.
"Project Costs" means all costs of acquiring and constructing the Conference Center.
"Project Site" means the real estate described in Exhibit A attached hereto and made a part hereof.
"State" means the State of Missouri.
-4-
"Total Reimbursement Amount" means the actual costs of the Conference Center, as evidenced
by one or more Certificate(s) of Reimbursable Costs in the form set forth in Exhibit E to the Development
Agreement showing the amounts paid, a description of the costs for which payments have been incurred,
and copies of invoices or other records evidencing such costs, including but not limited to all amounts
advanced by the Company; provided, however, that the Total Reimbursement Amount shall not exceed
$6,250,000.00 less any amount received by the Company pursuant to the terms of the Development
Agreement.
ARTICLE H
CONSTRUCTION OF CONFERENCE CENTER
Section 2.1. Construction of Conference Center. The Company will purchase, construct and
improve the Conference Center on the Project Site pursuant to the terms of the Development Agreement.
ARTICLE III
ASSESSMENTS BY HOTEL OWNERS;
FUNDING OF CONFERENCE CENTER
Section 3.1 Imposition of the Assessments by the Hotel Owners on the Hotel Owners'
Property.
(a) Following substantial completion of the Conference Center, as evidenced by the City's
acceptance of the Certificate of Substantial Completion, the Company will send each of the Hotel Owners
a copy of the Certificate of Substantial Completion, which shall serve as notice to the Hotel Owners to
begin imposing the Assessment on the Commencement Date. Each of the Hotel Owners for itself and any
successor owner of the Hotel Owners' Properties hereby agrees that commencing on the Commencement
Date each shall impose the Assessment on the operation of its Hotel Owners' Property operations for the
term of this Agreement. Such Hotel Owners shall pay such Assessment to the City within twenty (20) days
after each Calculation Period together with documentation evidencing the calculation of the amount of such
Assessment in the form set forth in Exhibit C-1. Within ten (10) days following each Calculation Period,
the City shall prepare and deliver to each of the Hotel Owners reports substantially in the form of Exhibits
C-2 and C-3 to ensure compliance with this Section 3.1(a).
(b) Additional owners of hotels may become parties to this Agreement upon execution and
recording of an amendment to this Agreement in the form set forth in Exhibit D. No consent shall be
required from the City, the Company or the other Hotel Owners for such additional owners of hotels to be
parties to this Agreement. Upon execution and recording of the amendment and provision of notice of the
same to the parties to this Agreement, such additional owner shall be deemed a Hotel Owner for all purposes
of this Agreement.
Section 3.2 Collection and Payment to the Company of Assessments.
(a) On or prior to the last day of the month following each Calculation Period following the
receipt by the City: (1) of the Certificate of Completion, and (2) the Certificate of Reimbursable Costs
evidencing expenditures for the Conference Center equal to or exceeding 56,250,000, the City will pay to
the Company the Assessments the City has received from the Hotel Owners (less any fee due under Section
-5-
3.4) during the preceding Calculation Period until the Company receives 100% of the Total Reimbursement
Amount.
(b) Notwithstanding any provision hereof to the contrary, the City's sole responsibility
hereunder is to pay to the Company any Assessments received by the City, less the City's collection fee
pursuant to Section 3.4(a) hereof. The City has no obligation to enforce the Assessments against any Hotel
Owner.
Section 3.3 Confidential Treatment of Reporting Information. At the time of filing by the
Hotel Owners of the reporting form(s), a form(s) of which is attached hereto as Exhibit C-1 with respect
to room sales activity of the Hotel Owner Properties, the City shall cause a copy of such form(s) to be filed
with the Finance Director of the City or any other City official as designated by the City. The City and any
employee thereof shall otherwise keep confidential all information contained in any such form submitted
pursuant to this Agreement and shall not use such information for any purpose other than in connection
with this Agreement, including use in preparing the City budget. The Hotel Owners, the Company and the
City agree to cooperate and to take all additional reasonable actions necessary to ensure accurate calculation
of the Assessments paid by the Hotel Owners. To assist the City, the Hotel Owners shall supply or cause
to be supplied to the City appropriate authorizations of the Missouri Department of Revenue to provide
such information.
Section 3.4. City's Cost of Administering Assessments; Successor to Article HI Collection
and Remittance Duties.
(a) The City shall be entitled to payment of fees for its ordinary collection and remittance
services rendered hereunder in an amount equal to one-half of one percent (0.5%) of the Assessments;
(b) If the City (or any successor collection agent) resigns from its duties under this Article III,
such resignation shall be effective upon the earlier of (1) 90 days after such resignation or (2) the
appointment of a successor collection agent by the Company, with notice to the Hotel Owners. Upon the
appointment of the successor collection agent by the Company, such appointed successor shall have all
rights and obligations of the City as set forth in this Article III.
ARTICLE IV
COVENANTS, REPRESENTATIONS AND AGREEMENTS
OF THE COMPAINY, THE CITY AND
THE HOTEL OWNERS
Section 4.1. Representations.
(a) The Company represents that as of the date of this Agreement:
(1) The Company is a corporation duly organized, validly existing and in good
standing under the laws of the State.
(2) The Company has the right, power and authority to enter into, execute, deliver and
perform its duties and obligations under this Agreement.
9l
(3) The execution, delivery and performance by the Company of this Agreement has
been duly authorized by all necessary action, and does not violate its articles of organization or the
operating agreement, as the same may be amended and supplemented, or to the best of its
knowledge, any applicable provision of law, nor does it constitute a breach of or default under or
require any consent under any agreement, instrument or document to which the Company is now a
party or by which the Company is now or may become bound.
(4) There are no actions or proceedings by or before any court, governmental
commission, board, bureau or any other administrative agency pending, or to the best of the
Company's knowledge, threatened or affecting the Company that would impair its ability to enter
into or perform its obligations under this Agreement.
(5) The Company has obtained (or prior to the applicable time required will obtain)
and will maintain all government permits, certificates and consents (including without limitation
appropriate environmental approvals) necessary to conduct its business and to purchase and operate
the Conference Center.
(b) The City represents that as of the date of this Agreement:
(1) The City is a home rule city duly organized and validly existing under the laws of
the State.
(2) The execution, delivery and performance by the City of this Agreement have been
duly authorized by all necessary City actions.
(3) The City has the right, power and authority to enter into, execute, deliver and
perform its duties and obligations under this Agreement.
(4) There are no actions or proceedings by or before any court, governmental
commission, board, bureau or any other administrative agency pending, or to the best of the current
City Council's knowledge, threatened or affecting the City that would impair its ability to enter
into or perform its obligations under this Agreement.
(c) Each of the Hotel Owners represents that as of the date of this Agreement:
(1) It is duly organized, validly existing and in good standing under the laws of the
State.
(2) It has the right, power and authority to enter into, execute, deliver and perform its
duties and obligations under this Agreement.
(3) The execution, delivery and performance by such Hotel Owner of this Agreement
has been duly authorized by all necessary action, and does not violate its articles of organization or
the operating agreement, as the same may be amended and supplemented, or to the best of its
knowledge, any applicable provision of law, nor does it constitute a breach of or default under or
require any consent under any agreement, instrument or document to which the Hotel Owner is
now a party or by which the Hotel Owner or it Hotel Owner Property is now or may become bound.
(4) There are no actions or proceedings by or before any court, governmental
commission, board, bureau or any other administrative agency pending, or to the best of the Hotel
-7-
Owner's knowledge, threatened or affecting the Hotel Owner that would impair its ability to enter
into or perform its obligations under this Agreement.
Section 4.2. Survival of Covenants. All warranties, representations, covenants and agreements
contained herein shall survive termination of this Agreement for any reason.
ARTICLE V
OBLIGATIONS RUNNING WITH THE LAIND;
BINDING ON SUCCESSORS
Section 5.1 Benefits Run in Favor of the Company. The benefits granted by the City and
the Hotel Owners to the Company pursuant to this Agreement shall belong solely to the Company, and such
benefits shall not be transferred, assigned, pledged or in any other manner hypothecated except that the
rights of the Company may be transferred to successor owners of the Conference Center.
Section 5.2. Obligations Run with the Land; Binding on Successors. The Hotel Owners as
the owners of the Hotel Owners' Property hereby declare, agree and covenant that the Hotel Owners'
Property shall be held, sold and conveyed subject to the all of the terms, covenants and conditions which
are imposed on such real estate under this Agreement to run with such real property or any part thereof;
such terms, covenants and conditions shall be binding on all successors in interest of the Hotel Owners'
Property.
ARTICLE VI
DEFAULT AND REMEDIES
Section 6.1. Events of Default. If any one or more of the following events occurs and is
continuing, it is hereby defined as and declared to be and to constitute an Event of Default hereunder:
(a) any party fails to perform any of its material obligations hereunder for a period of 30 days
(or such longer period as the other parties may agree in writing) following written notice to such defaulting
party from any other party of such failure, or if such failure is not subject to cure within such 30 days after
such notice, the defaulting party fails to initiate action to cure the default within such 30 days after such
notice is given and fails to pursue such action diligently;
(b) a representation of any party contained herein proves to be materially false or erroneous
and is not corrected or brought into compliance within 30 days (or such longer period as the other parties
may agree in writing) after such party has given written notice to such defaulting party specifying the false
or erroneous representation and requiring it to be remedied; provided, that if such matter is not subject to
cure within such 30 days after such notice, the defaulting party fails to initiate action to cure the default
within such 30 days after such notice is given and fails to pursue such action diligently; or
(c) the Company fails to invest at least S6,250,000 in the Conference Center by the Completion
Date.
Section 6.2. Remedies on Default. Upon the occurrence of any Event of Default hereunder (after
expiration of all applicable notice and grace periods):
-8-
(a) The Company and/or the non -defaulting Hotel Owners shall have the right to pursue any
and all remedies available at law or in equity including, without limitation, a preliminary or permanent
injunction, specific performance or other equitable relief for the failure of any Hotel Owner to pay the
Assessments due under this Agreement; except as otherwise specifically provided in this Section 6.2(a), the
Hotel Owners agree that the failure of one or more Hotel Owners to pay the Assessments due under this
Agreement shall not give rise to any rights or remedies to the non -defaulting Hotel Owners.
(b) The Hotel Owners shall have the right to terminate this Agreement and their obligations to
pay Assessments hereunder should the Company discontinue the operation of the Conference Center during
the term hereof, provided, however, if the failure of the Company to operate the Conference Center is due
to a casualty and the Company notifies the Hotel Owners of its intent to rebuild the Conference Center,
then the Hotel Owners shall continue to assess, collect and remit the Assessments to the City which shall
hold the same and deliver the Assessment amounts collected during the rebuilding period to the Company
upon the completion of the repairs to the Conference Center.
(c) Notwithstanding any provision hereof to the contrary, the City shall have no financial
liability hereunder so long as the City transfers to the Company any Assessments received by the City, less
the City's collection fee pursuant to Section 3.4(a) hereof.
Section 6.3. Interest on Late Payments. Any Assessments due hereunder which are not paid
when due shall bear interest at the interest tate of 10% per annum from the date such payment was fust due.
Interest on the Assessments shall be collected by the City and paid to the Company, provided the payment
of such interest shall not constitute the payment of, or be applied to, the amount of the Total Reimbursement
Amount but rather a payment due and owing to the Company for the delay in the payment of the
Assessments.
ARTICLE VII
TERAI OF AGREEMENT
Section 7.1. Term of Agreement. This Agreement shall become effective upon execution by
the parties hereto and shall terminate 20 years from the first December 31 following the Commencement
Date, however, this Agreement, or certain provisions thereof, will terminate sooner as follows:
(a) the provisions of Article IV hereof for the payment to the Company of Assessments shall
terminate upon the earlier of 20 years from the first December 31 following the Commencement Date or
the payment by the City to the Company of an amount equal to the Total Reimbursement Amount; or
(b) upon the occurrence of a casualty to the Conference Center should the Company decide in
its sole discretion not to rebuild the same in accordance with Section 6.2(b) hereof.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1. Mutual Assistance. The parties agree to take such reasonable actions as may be
necessary or appropriate to cavy out the terms, provisions and intent of this Agreement and to aid and assist
1"14E
each other in carrying out said terms, provisions and intent; provided, however, the City shall not be
required to incur any costs, expenses, obligations or liabilities in providing such reasonable actions, except
to the extent specifically set forth in this Agreement. Specifically, the parties agree as follows:
(a) The parties shall collaborate and work cooperatively to market the use of the Conference
Center and attract visitors and meetings to the City.
(b) The City shall develop, purchase, install and maintain directional signage at intersections
in the vicinity of the Project informing the public of the location of the Conference Center.
Section 8.2. Notices. All notices, certificates or other communications required or desired to
be given hereunder shall be in writing and shall be deemed duly given when (i) mailed by registered or
certified mail, postage prepaid, or (ii) sent by overnight delivery or other delivery service which requires
written acknowledgment of receipt by the addressee, addressed as follows:
(a) To the City:
City of Cape Girardeau
401 Independence Street
Cape Girardeau, Missouri 63701
ATTN: Scott Meyer
with a copy to:
City of Cape Girardeau
401 Independence Street
Cape Girardeau, Missouri 63701
ATTN: Eric Cunningham
(b) To the Hotel Owners:
To the Addresses as set forth on the second page of this Agreement
(c) To the Company:
Drury Southwest, Inc.
101 South Farrar Drive,
Cape Girardeau, MO 63701
ATTN: Dermis Vollink
with a copy to:
Bryan Cave LLP
211 N. Broadway, Suite 3600
St. Louis, Missouri 63102
ATTN: Linda M. Martinez
All notices given by certified or registered mail as aforesaid shall be deemed fully given as of the
date they are so mailed. The City, the Company and the Hotel Owners may from time to time designate,
10-
by notice given hereunder to the others of such parties, such other address to which subsequent notices,
certificates or other communications shall be sent.
Section 8.3. Severability; Effect of Invalidity. If for any reason any provision of this Agreement
shall be determined to be invalid or unenforceable, such invalid or unenforceable term will be deemed
severed from this Agreement and the validity and enforceability of the other provisions hereof shall not be
affected thereby.
Section 8.4. Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State.
Section 8.5. Execution in Counterparts; Amendment or Modification. This Agreement may
be executed simultaneously in several counterparts, each of which shall be deemed to be an original and all
of which shall constitute but one and the same instrument. The parties to this Agreement may amend or
modify this Agreement only by written instrument duly executed by the paries hereto.
Section 8.6. Third Party Rights; No Assignment. No person or entity who or which is not a
party to this Agreement will have any right of action under this Agreement. Except for the transfers of the
obligations to successor owner(s) of the Conference Center in accordance with Section 5.1 and successor
owner(s) of the Hotel Owners' Property in accordance with Section 5.2, and successor collection agents in
accordance with Section 3.4(b), there shall be no assignment of the rights and obligations under this
Agreement.
Section 8.7. Entire Agreement. This Agreement constitutes the entire agreement of the parties
with respect to the subject matter hereof and supersede all prior agreements, representations, negotiations
and understandings, both written and oral, between and among the parties with respect to the subject matter
hereof. This Agreement shall not be modified except by written agreement signed on behalf of all of the
parties by their duly authorized representatives.
Section 8.8. Recordation. This Agreement or a memorandum hereof, will be recorded with the
Recorder of Deeds for Cape Girardeau County, Missouri.
Section 8.9. Electronic Storage. The parties agree that the transaction described herein may be
conducted and related documents may be sent, received or stored by electronic means. Copies, telecopies,
facsimiles, electronic files and other reproductions of original executed documents shall be deemed to be
authentic and valid counterparts of such original documents for all purposes, including the filing of any
claim, action or suit in the appropriate court of law.
Remainder of page intentionally left blank.
-11-
re execution hereof as of the date first written above.
AAr% OiLcAGI"
Gayle m4 City Clerk
STATE OF MISSOURI
CITY OF CAPE
MISSOURI -,-
Title:
Title: City
CITY ACKNOWLEDGMENT
) SS.
COUNTY OF CAPEIRARDEAU )
On this k day of 2015, before me, the undersigned, a Notary Public in and for
said State, personally appeared Scott Meyer and Gayle Conrad, who acknowledged themselves to be,
respectively, the City Manager and City Clerk of CITY OF CAPE GIRARDEAU, MISSOURI, a home
rule city organized and existing tinder the laws of the State of Missouri, and that they, as such City Manager
and City Clerk are authorized by the City Council of such City, to execute the foregoing instrument for the
purposes therein contained by signing the name of the City by themselves as City Manager and City Clerk.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and
year last above written.
Name:
Notary Public in and for said State
i�ppY
-12-
.Notary - please a,( oc seal in area
Designated above
AMANDA L MCIMNEY
;yS?•;:
Mycarmussion _cpirea
-
March 3, 2018
'�•!f�i'•,,.,, -
Girardeau CaunV
`'f,,F
CarnCape
missim114598193
.Notary - please a,( oc seal in area
Designated above
WITNESS the due execution hereof as of the date first written above.
DRURY SOUTHWEST, INC.
By:
Dermis J. Vol President
STATE OF MISSOURI )
) SS.
COUNTY OF CAPE GIRARDEAU )
On this � day of i� 2015, before me, the undersigned, a Notary Public in and for
said State, personally appeared Dennis J. Vollink, who acknowledged himself to be the President of Drury
Southwest, Inc., a Missouri corporation, duly organized and existing under the laws of the State Missouri,
and that he as such officer being authorized by said company so to do executed the foregoing instrument
for the purposes therein contained by signing the name of the association by herself as an officer.
IN WITNESS WHEREOF, 1 have hereunto set my hand and affixed my official seal the day and
year last above written.
Karen Seabaugh
Notary Public in and for said State
M
BAUGHotary SealISSOURIGirardeau Cour12945592 2Dta
Notary —please affix seal in area
Designated above
-13-
WITNESS the due execution hereof as of the date first written above.
HOTEL OWNER #1
DI Hotels Sun, LLC
By: DSW Inns, LLC, its manager
m
' Dennis J. Vllini
STATE OF MISSOURI )
) SS.
COUNTY OF CAPE GIRARDEAU )
On this /V day of �ayl�G12015, before me, the undersigned, a Notary Public in and for
said State, personally appeared Dennis J. Vollink, who acknowledged himself to be the President of DSW
Inns, LLC, a Missouri limited liability company, manager of DI Hotels Sun, LLC, duly organized and
existing under the laws of the State Missouri, and that he as such officer being authorized by said company
so to do executed the foregoing instrument for the purposes therein contained by signing the name of the
association by herself as an officer.
IN WITNESS WHEREOF, 1 have hereunto set my hand and affixed my official seal the day and
year last above written.
Karen Seabaugh
Notary Public in and for said State
KAREN SEASAUGH
Notary Public - Notary Seel
STATE OF MISSOURI
Commission for Cape Girardeau County
My Commission Expires Mar. 10. 2016
Commission 012846022
Notary —please q[fx seal in area
Designated above
14-
WITNESS the due execution hereof as of the date first written above.
HOTEL OWNER #2
DDC Hotels, Inc.
By:i
Name: La asset d
Title: Senor Vice President
STATE OF MISSOURI )
SS.
COUNTY OF ST. LOUIS )
On this day of 2015, before me, the undersigned, a Notary Public in and for
said State, personally appeared Larry W. Hasselfeld, who acknowledged himself to be the Senior Vice
President of DDC Hotels, Inc., a Missouri corporation, duly organized and existing under the laws of the
State Missouri, and that he as such officer being authorized by said company so to do executed the
foregoing instrument for the purposes therein contained by signing the name of the association by himself
as an officer.
IN WITNESS WHEREOF, 1 have hereunto set my hand and affixed my official seal the day
and year last above written. ' .1
gzla8eu t
dix
Printed Name: Alae^ E. W.*r,
Notary Public in and for said State
AUSON E. WINKA
Nary Seal
otary PutdATE Of MISSOURI
ryry
St Louis CouMMyay
My �liission Commission 1Pat May
25, 2018
Aloiary —please affix seal in area
Designated above
-15-
WITNESS the due execution hereof as of the date first written above.
HOTEL OWNER H3
MidAmerica Hotels Corporation
W41 MAX ---
Name:
►, _
STATE OF MISSOURI )
) SS.
COUNTY OF CAPE GIRARDEAU )
On this '21DL day of C o 2015, before me, the undersigned, a Notary Public in and for
said State, personally appeared who acknowledged him/herself to be the
ylPlf�lC�dltbf of MidAmerica Hotels Corporation.. a Missouri corporation, duly organized and
existing under the laws of the State Missouri, and that he/she as such officer being authorized by said
company so to do executed the foregoing instrument for the purposes therein contained by signing the
name of the association by herself as an officer.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day
and year last above written.
Votaty
NamPublic in and for said State
.......O'
Nolcay — please cox seal in urea
Dcsignaced above
-16-
EXHIBIT A
LEGAL DESCRIPTION OF PROJECT SITE
A part of United States Private Survey No. 3090, Township 30 North, Range 13 East of the Fifth Principal
Meridian, City and County of Cape Girardeau, State of Missouri, being more particularly described as
follows: Commencing at the northeast comer of U.S.P.S. 3090; thence South 061 02' 34" West, 1930.30
feet along the east line of U.S.P.S. 3090; thence leaving said east line, North 83° 57'26" West, 864.52 feet
to a point on the West right of way of Farrar Drive; thence North 06° 01'47" East, 14.87 feet along said
right of way to a point being at the intersection of the west right of way of Farrar Drive and the south right
of way of Percy Drive, said point being also the northeast comer of a tract of land recorded in the land
records of the County Recorder's Office in Book No. 415 at Page No. 629; thence along the north line of
said tract and the south right of way line of Percy Drive, North 84° 00'40" West, 429.50 feet to the true
point of beginning; thence continuing along said right of way line, North 84° 00' 40" West, 266.46 feet;
thence North 88° 54'36" West, 303.95 feet along said right of way to a point on the easterly right of way
of Interstate Route 55, point being 235.00 feet easterly of and normal to the centerline of Interstate 55, sta.
1193+24.91; thence leaving said south right of way and along the easterly right of way of Interstate 55,
South 19° 56'06" East, 175.09 feet to a point being 235.00 feet easterly of and normal to the centerline of
Interstate 55, sta. 1195+00; thence continuing along said right of way, South 33° 29'40" East, 467.26 feet
to a point being 344.55 feet easterly of and normal to the centerline of Interstate 55, sta. 1199+54.24; thence
leaving said right of way, North 56144'33" East, 465.92 feet; thence North 33° 22' 16" West, 260.15 feet;
thence North 05° 45' 17" East, 48.15 feet to the point of beginning.
17
EXHIBIT B-1
LEGAL DESCRIPTION OF HOTEL OWNER #1 SITES
Drury Lodge Site:
A part of United States Private Survey No. 3090, Township 30 North, Range 13 East of the Fifth
Principal Meridian, City and County of Cape Girardeau, State of Missouri, being more particularly
described as follows: Commencing at the northeast comer of U.S.P.S. 3090; thence South 06° 02'34"
West, 1930.30 feet along the east line of U.S.P.S. 3090; thence leaving said east line, North 83° 57'26"
West, 864.52 feet to a point on the West right of way of Farrar Drive; thence North 06° 01'47" East,
14.87 feet along said right of way to a point being at the intersection of the west right of way of Farrar
Drive and the south right of way of Percy Drive, said point being also the northeast comer of a tract of
land recorded in the land records of the County Recorder's Office in Book No. 415 at Page No. 629;
thence along the north line of said tract and the south right of way line of Percy Drive, North 84° 00'40"
West, 429.50 feet to the true point of beginning; thence continuing along said right of way line, North 84°
00'40" West, 266.46 feet; thence North 881 54'36" West, 303.95 feet along said right of way to a point
on the easterly right of way of Interstate Route 55, point being 235.00 feet easterly of and normal to the
centerline of Interstate 55, sta. 1193+24.91; thence leaving said south right of way and along the easterly
right of way of Interstate 55, South 190 56'06" East, 175.09 feet to a point being 235.00 feet easterly of
and normal to the centerline of Interstate 55, sta. 1195+00; thence continuing along said right of way,
South 33° 29'40" East, 467.26 feet to a point being 344.55 feet easterly of and normal to the centerline of
Interstate 55, sta. 1199+54.24; thence leaving said right of way, North 56° 44'33" East, 465.92 feet;
thence North 33° 22' 16" West, 260.15 feet; thence North 05° 45' 17" East, 48.15 feet to the point of
beginning..
Pear Tree Inn -East Site:
A part of United States Private Survey No. 3090, Township 30 North, Range 13 East of the Fifth
Principal Meridian, City and County of Cape Girardeau, State of Missouri, being more particularly
described as follows: Commencing at the northeast comer of U.S.P.S. 3090; thence South 061 02'34"
West, 1930.30 feet along the east line of U.S.P.S. 3090; thence leaving said east line, North 83° 57'26"
West, 864.52 feet to a point on the West right of way of Farrar Drive; thence North 06° 01'47" East,
14.87 feet along said right of way to a point being at the intersection of the west right of way of Farrar
Drive and the south right of way of Percy Drive, said point being also the northeast comer of a tract of
land recorded in the land records of the County Recorder's Office in Book No. 415 at Page No. 629;
thence along the north line of said tract and the south right of way line of Percy Drive, North 840 00'40"
West, 429.50 feet to the true point of beginning; thence continuing along said right of way line, North 84°
00' 40" West, 266.46 feet; thence North 88° 54'36" West, 303.95 feet along said right of way to a point
on the easterly right of way of Interstate Route 55, point being 235.00 feet easterly of and normal to the
centerline of Interstate 55, sta. 1193+24.91; thence leaving said south right of way and along the easterly
right of way of Interstate 55, South 19° 56'06" East, 175.09 feet to a point being 235.00 feet easterly of
and normal to the centerline of interstate 55, sta. 1195+00; thence continuing along said right of way,
South 330 29'40" East, 467.26 feet to a point being 344.55 feet easterly of and normal to the centerline of
Interstate 55, sta. 1199+54.24; thence leaving said right of way, North 560 44' 33" East, 465.92 feet;
thence North 33° 22' 16" West, 260.15 feet; thence North 05° 45' 17" East, 48.15 feet to the point of
beginning.
18
EXHIBITS B-2
LEGAL DESCRIPTION OF HOTEL OWNER #2 SITE
Drury Suites -Cape Site:
All of Lot 2A of Cape West Seventh Subdivision, a subdivision in the City of Cape Girardeau as shown by
plat recorded in Plat Book 18 at Page 65, land records of Cape Girardeau County, Missouri.
19
EXHIBITS B-3
LEGAL DESCRIPTION OF HOTEL OWNER #3 SITES
Auburn Place Hotel Site:
All of Lot Two (2) of Park West Hospitality Center No. 2, a Subdivision recorded in Plat Book 17 at page
28, land records of Cape Girardeau County, Missouri
Holiday Inn Express & Suites Site:
All of that part of United States Private Survey 3090 in Township 30 North, Range 13 East of the Fifth
Principal Meridian, in the City and County of Cape Girardeau, State of Missouri, being more particularly
described as follows:
Commence at the Northwest comer of Outlot 85 of United States Private Survey No. 2199; thence North
84 degrees 16'56" West, 35.00 feet, to a 1/2" iron rod on the Northeast comer of Doctor's Park
Subdivision, said point being also the Southeast comer of Lot 1 of Park West Hospitality Center Number
1, as recorded in Plat Book 16 at Page 88 of the land records of Cape Girardeau County; thence along the
Western line of existing Mt. Auburn Road, North 4 degrees 38' 15" East, 520.99 feet; thence North 85
degrees 21' 18" West, 317.44 feet, to the Place of Beginning; thence North 4 degrees 38'42" East, 176.25
feet; thence North 17 degrees 22139" West, 67.05 feet; thence North 85 degrees 21' 18" West, 282.03
feet; thence South 82 degrees 09'07" West, 57.13 feet; thence North 87 degrees 11'26" West, 21.41 feet
to a point on the easterly line of an ingress/egress easement set out on the record plat of Park West
Hospitality Center Number 1 (said plat being recorded in Plat Book 16 at Page 88, in the land records of
Cape Girardeau County, Missouri); thence with the East line of said easement, South 4 degrees 33'46"
West, 225.36 feet; thence South 85 degrees 21' 18" East, 384.02 feet to the Place of Beginning and
containing 2.07 acres, more or less.
Hampton Inn & Suites Site:
All of Lot One (1) of Park West Hospitality Center No. 1, a Subdivision recorded in the City and County
of Cape Girardeau as shown in Plat Book 16 at Page 88
20
EXHIBIT C-1
FORM FOR REPORTING ASSESSMENTS AMOUNTS DUE
Hotel Owner # Date: Calculation Period Ending:
1. Total Room Sales during Calculation Period:
2. Assessment Due (I% of Line 1):
3. Interest on Late Payments $
(10°/a of Line 2 if not paid to City within 20 days
after the end of each Calculation Period)
4. Total Due
Hotel Owner's property information during Calculation Period:
Hotel Owner #
Month
Occupancy (%) ADR
21
RevPAR
EXHIBITIC-2
FORM FOR REPORTING PAID ASSESSMENTS
Assessments received
—Monthly only
22
RESPONSE REPORT
2017
2070
Name
City, State
ZIP
Phone
Rooms
Open Date
-
Holiday Inn Express & Suites
Cape Girardeau, MO
63703.4961
573.334.4491
102
Drury Hotel and Conference Center
Cape Girardeau, MO
63701-4957
573.334.7175
Pear Tree Inn -Cape Girardeau
Cape Girardeau, MO
63701.4960
S73-3343000
78
Hampton Inn -Cape Girardeau
Cape Girardeau, MO
637014418
473.651-3000
85
Auburn Place Hotel & Suites
Cape Girardeau, MO
63701-2127
573.339-0809
133
Drury Sultes-Cape Girardeau
Cape Girardeau, MO
63701
573.339.9500
88
Assessments received
—Monthly only
22
EXHIBIT C-3
FORM FOR HOTEL OWNERS' AGGREGATE DATA
CAPE GIRARDEAU — VOLUNTARY ASSESSMENT
PARTICIPATING HOTEL OWNERS' AGGREGATED COMP SET
Month Occupancy % ADR RevPAR
23
EXHIBIT D
FOIUM OF AMENDMENT TO ADD HOTEL OWNER(S)
[Space Above this Line for Recording Data]
Title of Document: [FIRST] AMENDiv1ENT TO CONFERENCE
CENTER FUNDING AGREEMENT
Date of Document:
Grantor:
Grantor's Address:
Legal Descriptions contained on pages _-_ hereof.
20_
This document modifies that certain Conference Center Funding Agreement dated November 2015
and recorded in the Real Property records of Cape Girardeau County, Missouri at Book . Page
Unon Recording Return to:
Linda M. Martinez
Bryan Cave LLP
211 N. Broadway, Suite 3600
St. Louis, Missouri 63102
WIRSTI AMENDMENT TO CONFERENCE CENTER FUNDING AGREEMENT
THIS [FIRST] AMENDMENT TO CONFERENCE CENTER FUNDING AGREEMENT (this
"Amendment') is made and entered into as of this _ day of 20� by
a ("Additional Owner").
WHEREAS, pursuant to that certain Conference Center Funding Agreement dated November U;
2015 and recorded in the real property records of Cape Girardeau County, Missouri at Book , Page
(the "Agreement'), by and among the City of Cape Girardeau, Missouri, a home rule city (the
"City"), the various Hotel Owners party thereto (the "Hotel Owners"), and Drury Southwest, Inc., a
Missouri corporation (the "Company'') the City, the Hotel Owners, and the Company agreed to jointly fund
the development and construction of the Conference Center on the Project Site, the legal description of
which is attached hereto as Exhibit A and incorporated herein by reference, upon the terms and conditions
more particularly described in the Agreement:
24
WHEREAS, the Agreement allows for additional parties to be added as Hotel Owners without the
consent of the City, the Company or the existing Hotel Owners; and
WHEREAS, words and phrases having a defined meaning in the Agreement shall have the same
respective meanings when used herein unless otherwise stated herein.
NOW THEREFORE, in consideration of the premises and the mutual agreements of the parties set
forth in the Agreement and herein, the Agreement is amended as follows:
1. Additional Owner. Additional Owner is hereby added as a Hotel Owner party to the Agreement
and shall assume all rights, obligations and liabilities as a Hotel Owner under the terms and
conditions of the Agreement.
2. Exhibit B-2. Exhibit B-2 of the Agreement is hereby amended to include the legal description
attached hereto as Exhibit B and to attribute the same to the Additional Owner.
3. Effectiveness. In accordance with the terms and conditions of the Agreement, this Amendment
shall be effective upon (i) recordation of the same in the real property records of Cape Girardeau
County, Missouri, and (ii) notice of this Amendment being delivered to the City, the Company and
the Hotel Owners in accordance with Section 8.2 of the Agreement.
4. No Other Modifications. Except as expressly modified hereby, all of the terms and conditions of
remain the Agreement shall unaltered and in full force and effect.
[Signature page follows]
25
IN WITNESS WHEREOF, the Additional Owner has executed this Amendment as of the day and year
first above written.
"ADDITIONAL OWNER"
Name:
STATE OF )
SS.
COUNTY OF 1
On this day of 2015, before me, the undersigned, a Notary Public in and for
said State, personally appeared who acknowledged him/herself to be the
of [Name of Additional Owner, a duly organized and existing
under the laws of the State Missouri, and that he/she as such officer being authorized by said company so
to do executed the foregoing instrument for the purposes therein contained by signing the name of the
association by herself as an officer.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and
year last above written.
Printed Name:
Notary Public in and for said State
,Votary — please affix seal in area
Designated above
911
EXHIBIT A
PROJECT SITE
The land situated in Cape Girardeau County, State of Missouri, and described as follows:
[location of the Conference Center[
27
EXHIBIT B
LEGAL DESCRIPTIONS OF THE ADDITIONAL OWNER SITE
[insert legal description
BILL NO. 16-199 RESOLUTION NO. W�d
A RESOLUTION AUTHORIZING THE CITY MANAGER TO
EXECUTE A FIRST AMENDMENT TO THE CONFERENCE
CENTER FUNDING AGREEMENT DATED NOVEMBER 1,
2015, IN THE CITY OF CAPE GIRARDEAU,
MISSOURI
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF CAPE
GIRARDEAU, MISSOURI, AS FOLLOWS:
ARTICLE 1. The City Manager, for and on behalf of the City
of Cape Girardeau, Missouri, is hereby authorized to execute a
First Amendment to the Conference Center Funding Agreement dated
November 1, 2015, with DI Hotels Sun LLC; DDC Hotels, Inc.;
MidAmerica Hotels Corporation; Drury Southwest, Inc., regarding
the construction of a Conference Center in the City of Cape
Girardeau, Missouri. The First Amendment shall be in
substantially the form attached hereto as Exhibit A, which
document is hereby approved by the City Council, and
incorporated herein by reference, with such changes therein as
shall be approved by the officers of the City executing the
same.
PASSED AND ADOPTED THIS 7th DAY OF NOVEMBER, 2016.
y E./ Rediger, Mayor
ASSIGNMENT OF CONFERENCE CENTER FUNDING AGREEMENT WITH CONSENT
For valuable consideration, receipt and sufficiency of which are hereby acknowledged, DRURY
SOUTHWEST, INC., a Missouri corporation ("Guarantor"), as additional security for its obligations as
Guarantor under that certain Construction Loan Agreement dated as of November 1, 2016 (as amended
from time to time, the "Loan_ Agreement"), between the DI HOTELS SUN LLC, a Missouri limited
liability company ("Borrower") and CENTRAL BANK OF ST. LOUIS ("Bank"), and as security for
performance of Borrower's obligations thereunder including obligations arising out of the Note (as
defined in the Loan Agreement), the Guaranty (as defined in the Loan Agreement) and the other Loan
Documents (as defined in the Loan Agreement), hereby assigns to Bank all of Guarantor's right, title and
interests, but not its obligations, in, under, and to the Conference Center Funding Agreement dated
November 1, 2015 as Document No. 2015-13391 in the Office of the Recorder of Deeds of Cape
Girardeau County, Missouri (as amended and supplemented, the "Conference Center Fundin
Agreement") by and among the Guarantor, THE CITY OF CAPE GIRARDEAU, MISSOURI (the
"City"), Borrower, DDC HOTELS, INC., a Missouri corporation (,`DDC Hotels"), MIDAMERICA
HOTELS CORPORATION, a Missouri corporation ("MidAmerica") in connection with the project
located in the City of Cape Girardeau, Missouri, as more fully described on Exhibit A attached hereto
("Property"), upon the terms and conditions set forth herein.
I Borrower and Guarantor each represent, warrant, covenant and agree that: (i) the copy of
the Conferenced Center Funding Agreement attached hereto as Exhibit B is a true and complete copy
thereof and has been properly authorized and executed; and (ii) Borrower, Guarantor, nor to the
knowledge of Guarantor, any other party to the Conference Center Funding Agreement are not in default
under the Conference Center Funding Agreement, nor are there any conditions which, with notice or lapse
of time or both, will become a default by the Guarantor, Borrower, City, MidAmerica or DDC Hotels
under the Conference Center Funding Agreement.
2. Neither this Assignment nor any action by Bank shall constitute an assumption by Bank
of any obligations under the Conference Center Funding Agreement, and Borrower and Guarantor each
shall continue to be liable for all obligations thereunder Borrower and Guarantor each hereby agree to
perform all of its respective obligations under the Conference Center Funding Agreement. Borrower and
Guarantor each agree to indemnify and hold Bank harmless for, from and against any loss, cost, claim,
liability, or expense, including, but not limited to, reasonable attorneys' fees and costs resulting from any
failure of Borrower or Guarantor to so perform.
3 After an Event of Default under the Loan Documents, Bank shall have the right at any
time (but shall have no obligation) to take in its name or in the name of Borrower or Guarantor such
action as Bank may at any time determine to be necessary or advisable to cure any default under the
Conference Center Funding Agreement or to protect the rights of Borrower, Guarantor or Bank
thereunder. Bank shall not incur any liability if any action so taken by it or in its behalf shall prove to be
inadequate or invalid, and Borrower and Guarantor each agree to indemnify and hold Bank harmless for,
from and against anv loss, cost, claim, liability, or expense, including, but not limited to, reasonable
attorneys' fees and costs incurred in connection with any such action.
4 Borrower and Guarantor each hereby irrevocably constitutes and appoints Bank as
Borrower's and Guarantor's attorney-in-fact, in Borrower's, Guarantor's or in Bank's name, with full
rights and power to appear and act in Borrower's or Guarantor's name and to enforce all rights of
Borrower or Guarantor under the Conference Center Funding Agreement, but such power of attorney
shall be effective only after an Event of Default (as defined in the Loan Agreement) by Borrower or any
Guarantor under any of the Loan Documents.
6455803
5. Prior to an Event of Default under any of the Loan Documents, Borrower and Guarantor
shall each have the right to exercise their respective rights under the Conference Center Funding
Agreement, provided that neither Borrower nor Guarantor shall cancel, assign or amend the Conference
Center Funding Agreement or do or suffer to be done, directly or indirectly, any act which would impair
the security constituted by this Assignment or any of the Loan Documents without the prior written
consent of Bank, which consent shall not be unreasonably withheld with respect to an amendment thereof.
6. This Assignment shall be binding upon Borrower and Guarantor and their respective
successors, legal representatives, and assigns, and shall inure to the benefit of Bank, its successors and
assigns, including any purchaser upon foreclosure of the Deed of Trust securing the loan and advances
contemplated by the Loan Documents, any receiver in possession of the property described therein, and
any entity formed by or on behalf of Bank which assumes Bank's rights and/or obligations of such party
or parties under any of the Loan Documents.
7 If any party to this Assignment brings an action to interpret or enforce its rights under this
Assignment, the prevailing party in such action will be entitled to recover its reasonable attorneys' fees
and costs. This Assignment is governed by the laws of the State of Missouri without regard to the
conflicts of law rules of the State of Missouri; provided that if the Bank has rights or remedies under
federal law, then such rights and/or remedies under federal law shall also be available to the Bank.
[Remainder of page intentionally left blank]
6455803 2
SIGNATURE PAGE FOR
ASSIGNMENT OF CONFERENCE CENTER FUNDING AGREEMENT WITH CONSENT
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has executed
and delivered this Assignment of Conference Center Funding Agreement with Consent as of the day and
year first above written.
GUARANTOR:
DRURY SOUTHWEST, INC.,
a Missouri corporation
By:
Printed Name: Cdrolyn F. Bohnert
Title: Sr Vice President
6155803
SIGNATURE PAGE FOR
ASSIGNMENT OF CONFERENCE CENTER FUNDING AGREEMENT WITH CONSENT
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has executed
and delivered this Assignment of Conference Center Funding Agreement with Consent as of the day and
year first above written.
BORROWER:
DI HOTELS SUN LLC,
a Missouri limited liability company
By: DSW Management, LLC, its Manager
By:
,-
Print Name: CarolynF Bohnert
Title: Sr Vice President
6455803 4
SIGNATURE PAGE FOR
ASSIGNMENT OF CONFERENCE CENTER FUNDING AGREEMENT WITH CONSENT
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has executed
and delivered this Assignment of Conference Center Funding Agreement with Consent as of the day and
year first above written.
BANK:
CENTRAL BANK OM. LOUIS
By- _
Printed
Title: S
6455803 5
59-
Olson
for Vice President
SIGNATURE PAGE FOR
a ASSIGNMENT OF CONFERENCE CENTER FUNDING AGREEMENT WITH CONSENT
K
A
IN WITNESS WHEREOF, for purposes of consenting to the assignment of the Conference
Center Funding Agreement to the Bank, notwithstanding anything in the Conference Center Funding
Agreement to the contrary, the undersigned, intending to be legally bound hereby, has executed and
delivered this Assignment of Conference Center Funding Agreement with Consent as of the day and year
first above written.
6455803
CITY:
CITY OF CAPE RDEAU, MISSOURI
By:
Printed Name:
Title:
SIGNATURE PAGE FOR
ASSIGNMENT OF CONFERENCE CENTER FUNDING AGREEMENT WITH CONSENT
IN WITNESS WHEREOF, for purposes of consenting to the Assignment of Conference Center
Funding Agreement dated , 2016 to the Bank, notwithstanding anything in the
Conference Center Funding Agreement to the contrary, the undersigned, intending to be legally bound
hereby, has executed and delivered this Assignment of Conference Center Funding Agreement with
Consent as of the day and year first above written.
DDC HOTELS:
DDC HOTELS, INC., a Missouri corporation
MR I
6455803 7
SIGNATURE PAGE FOR
ASSIGNMENT OF CONFERENCE CENTER FUNDING AGREEMENT WITH CONSENT
IN WITNESS WHEREOF, for purposes of consenting to the assignment of the Conference Center
Funding Agreement to the Bank, notwithstanding anything in the Conference Center Funding Agreement
to the contrary, the undersigned, intending to be legally bound hereby, has executed and delivered this
Assignment of Conference Center Funding Agreement with Consent as of the day and year first above
written.
MfDAMERICA:
MIDAMERICA HOTELS CORPORATION, a Missouri
Cco oration
Printed e:
Title: 'J�hC yg:,k r
6455036
DocId:8365702
Tx:4215084
DOCUMENT #
2023-06169
ANDREW DAVID BLATTNER
RECORDER OF DEEDS
CAPE GIRARDEAU COUNTY, MO
RECORDED ON
07/27/2023 12:03:52 PM
REC FEE: 36.00
[Space Above this Line for Recording Data
PAGES: 5
Title of Document: SECOND AMENDMENT TO CONFERENCE
CENTER FUNDING AGREEMENT
Date of Document: July (A , 2023
Grantor: Drury Cape Girardeau, LLC
Grantor's Address: 101 S. Farrar Drive
Cape Girardeau, MO 63701
Grantee: Drury Cape Girardeau, LLC
Grantee's Address: 101 S. Farrar Dr.
Cape Girardeau, MO 63701
Legal Descriptions contained on pages 4 and 5 hereof.
This document modifies that certain Conference Center Funding Agreement dated November
1, 2015 and recorded in the Real Property records of Cape Girardeau County, Missouri as
Document No. 2015-13391, as amended by that certain First Amendment to Conference Center
Funding Agreement dated November 23, 2016 and recorded in the Real Property records of
Cape Girardeau County, Missouri as Document No. 2016-13272.
Unon Recordinia Return to:
Bruce Pfeifer
Drury Southwest, Inc.
101 S. Farrar Drive
Cape Girardeau, MO 63701
SECOND AMENDMENT TO CONFERENCE CENTER FUNDING AGREEMENT
THIS SECOND AMENDMENT TO CONFERENCE CENTER FUNDING
AGREEMENT (this "Amendment") is made and entered into as of this 6 "'day of July 2023, by
DRURY CAPE GIRARDEAU, LLC, a Missouri limited liability company ("Additional Owner").
WHEREAS, pursuant to that certain Conference Center Funding Agreement dated
November 1, 2015 and recorded in the real property records of Cape Girardeau County, Missouri
as Document No. 2015-13391, as amended by that certain First Amendment to Conference Center
Funding Agreement dated November 23, 2016 and recorded in the real property records of Cape
Girardeau County, Missouri as Document No. 2016-13272 (the "Agreement"), by and among the
City of Cape Girardeau, Missouri, a home rule city (the "City"), the various Hotel Owners party
thereto (the "Hotel Owners"), and Drury Southwest, Inc., a Missouri corporation (the "Company")
the City, the Hotel Owners, and the Company agreed to jointly fund the development and
construction of the Conference Center on the Project Site, the legal description of which is attached
hereto as Exhibit A and incorporated herein by reference, upon the terms and conditions more
particularly described in the Agreement;
WHEREAS, the Agreement allows for additional parties to be added as Hotel Owners
without the consent of the City, the Company or the existing Hotel Owners; and
WHEREAS, words and phrases having a defined meaning in the Agreement shall have the
same respective meanings when used herein unless otherwise stated herein.
NOW THEREFORE, in consideration of the premises and the mutual agreements of the
parties set forth in the Agreement and herein, the Agreement is amended as follows:
1. Additional Owner. Additional Owner is hereby added as a Hotel Owner party to the
Agreement and shall assume all rights, obligations and liabilities as a Hotel Owner under
the terms and conditions of the Agreement.
2. Exhibit B-2. Exhibit B-2 of the Agreement is hereby amended to include the legal
description attached hereto as Exhibit B and to attribute the same to the Additional Owner.
Effectiveness. In accordance with the terms and conditions of the Agreement, this
Amendment shall be effective upon (i) recordation of the same in the real property records
of Cape Girardeau County, Missouri, and (ii) notice of this Amendment being delivered to
the City, the Company and the Hotel Owners in accordance with Section 8.2 of the
Agreement.
4. No Other Modifications. Except as expressly modified hereby, all of the terms and
conditions of the Agreement shall remain unaltered and in full force and effect.
[Signature page follows]
IN WITNESS WHEREOF, the Additional Owner has executed this Amendment as of the day
and year first above written.
"ADDITIONAL OWNER"
DRURY CAPE GIRARDEAU, LLC
By: DSW Management, LLC, its manager
By: �( . s-f�
Carolyn F. Bofmert, Sr. Vice President
STATE OF MISSOURI )
) SS.
COUNTY OF CAPE GIRARDEAU )
On this lam{ day of July 2023, before me, the undersigned, a Notary Public in and for said
State, personally appeared Carolyn F. Bohnert, who acknowledged herself to be the Sr. Vice
President of DSW Management, LLC, sole manager of Drury Cape Girardeau, LLC, a Missouri
limited liability company, duly organized and existing under the laws of the State Missouri, and
that she as such officer being authorized by said company so to do executed the foregoing
instrument for the purposes therein contained by signing the name of the association by herself as
an officer.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year last above written.
Printed N e:
Notary Public in and for said State
Karen Seabau9b Seal
Notary Public -Notary
STATE OF MISSOURI
Nf iommisssiion Enpufor �es: March 10 20Girardeau 24ty
ID. i-12545593
Notary —please affix seal in area
Designated above
EXHIBIT A
PROJECT SITE
The land situated in Cape Girardeau County, State of Missouri, and described as follows:
A part of United States Private Survey No. 3090, Township 30 North, Range 13 East of the Fifth
Principal Meridian, City and County of Cape Girardeau, State of Missouri, being more
particularly described as follows: Commencing at the northeast corner of U.S.P.S. 3090; thence
South 06° 02'34" West, 1930.30 feet along the east line of U.S.P.S. 3090; thence leaving said
east line, North 83° 57'26" West, 864.52 feet to a point on the West right of way of Farrar Drive;
thence North 06° 01' 47" East, 14.87 feet along said right of way to a point being at the
intersection of the west right of way of Farrar Drive and the south right of way of Percy Drive,
said point being also the northeast corner of a tract of land recorded in the land records of the
County Recorder's Office in Book No. 415 at Page No. 629; thence along the north line of said
tract and the south right of way line of Percy Drive, North 84° 00' 40" West, 429.50 feet to the
true point of beginning; thence continuing along said right of way line, North 84° 00'40" West,
266.46 feet; thence North 88° 54'36" West, 303.95 feet along said right of way to a point on the
easterly right of way of Interstate Route 55, point being 235.00 feet easterly of and normal to the
centerline of Interstate 55, sta. 1193+24.91; thence leaving said south right of way and along the
easterly right of way of Interstate 55, South 19° 56' 06" East, 175.09 feet to a point being 235.00
feet easterly of and normal to the centerline of Interstate 55, sta. 1195+00; thence continuing
along said right of way, South 330 29'40" East, 467.26 feet to a point being 344.55 feet easterly
of and normal to the centerline of Interstate 55, sta. 1199+54.24; thence leaving said right of
way, North 56° 44'33" East, 465.92 feet; thence North 33° 22' 16" West, 260.15 feet; thence
North 05° 45' 17" East, 48.15 feet to the point of beginning.
EXHIBITS B
LEGAL DESCRIPTION OF THE ADDITIONAL HOTEL SITE
Pear Tree Inn -Cape West:
All of Lot Numbered 2C of Cape West Seventh Subdivision to the City of Cape Girardeau,
Missouri as shown by Plat recorded in Plat Book 18 at Page 65, land records of Cape Girardeau
County, Missouri.
Doc .8399307
DOCUMENT #
2025-067@7
ANDREW DAVID BLATTNER
RECORDER OF DEEDS
CAPE GIRARDEAU COUNTY, MO
RECORDED ON
08/21/2025 03:44:04 PM
REC FEE: 45.00
PAGES: 8
[Space Above this Line for Recording Data]
Title of Document: THIRD AMENDMENT TO CONFERENCE
CENTER FUNDING AGREEMENT
Date of Document: August, 2025
Grantor: Midamerica Hotels Corporation
Grantor's Address: 4072 State Highway K
Cape Girardeau, MO 63701
Grantee: Midamerica Hotels Corporation
Grantee's Address: 4072 State Highway K
Cape Girardeau, MO 63701
Sce
Legal Descriptions contained on ^ and -1 h
This document modifies that certain Conference Center Funding Agreement dated November
1, 2015 and recorded in the Real Property records of Cape Girardeau County, Missouri as
Document No. 2015-13391, as amended by that certain First Amendment to Conference Center
Funding Agreement dated November 23, 2016 and recorded in the Real Property records of
Cape Girardeau County, Missouri as Document No. 2016-13272, and that certain Third
Amendment to Conference Center Funding Agreement dated July 19, 2023 and recorded in
the Real Property records of Cape Girardeau County, Missouri as Document No. 2023-06169.
Unon Recordine Return to:
Bruce Pfeifer
Drury Southwest, Inc.
101 S. Farrar Drive
Cape Girardeau, MO 63701
THIRD AMENDMENT TO CONFERENCE CENTER FUNDING AGREEMENT
THIS THIRD AMENDMENT TO CONFERENCE CENTER FUNDING AGREEMENT
(this "Third Amendment") is made and entered into as of this Z1 day of �l 2025, by
and among the City of Cape Girardeau, a home rule city organized and existing der the laws of
the State of Missouri (the "City"), DI Hotels Sun LLC, a Missouri limited liability company
("Hotel Owner #1"), Drury Cape Girardeau, LLC, a Missouri limited liability company ("Hotel
Owner #2"), MidAmerica Hotels Corporation, a Missouri corporation ("Hotel Owner #3"), and
Drury Southwest, Inc., a Missouri corporation ("Company").
WHEREAS, pursuant to that certain Conference Center Funding Agreement dated
November 1, 2015 and recorded in the real property records of Cape Girardeau County, Missouri
as Document No. 2015-13391 (the "Original Agreement"), as amended by that certain First
Amendment to Conference Center Funding Agreement dated November 23, 2016 and recorded in
the real property records of Cape Girardeau County, Missouri as Document No. 2016-13272, and
as further amended by the Second Amendment to Conference Center Funding Agreement dated
July 19, 2023 and recorded in the Real Property records of Cape Girardeau County, Missouri as
Document No. 2023-06169 (collectively the "Agreement"), by and among the City, Hotel Owner
#1, Hotel Owner #2, Hotel Owner #3 (the "Hotel Owners"), and the Company, the parties thereto
agreed to jointly fund the development and construction of the Conference Center on the Project
Site, the legal description of which is attached hereto as Exhibit A and incorporated herein by
reference, upon the terms and conditions more particularly described in the Agreement;
WHEREAS, the hotel located on the Auburn Place Hotel Site (as described on Exhibit 13-
3 of the Original Agreement and referred to herein as the "Auburn Site") has been demolished
and Hotel Owner 43 desires to redevelop the Auburn Site; and
WHEREAS, the Parties hereto agree to remove the Auburn Site from this Agreement as
provided herein.
NOW THEREFORE, in consideration of the premises and the mutual agreements of the
parties set forth in the Agreement and herein, the Agreement is amended as follows:
1. The Agreement is hereby amended to remove the Auburn Site from the Hotel Owners'
Property and, as of the Effective Date, the Auburn Site shall no longer be subject to the
Agreement.
2. The description of the Auburn Place Hotel Site provided on Exhibit B-3 of the Original
Agreement is hereby deleted in its entirety.
3. Miscellaneous. Words and phrases having a defined meaning in the Agreement shall have
the same respective meanings when used herein unless otherwise stated herein. Except as
expressly modified hereby, all of the terms and conditions of the Agreement shall remain
unaltered and in full force and effect.
[Signature pages followl
WITNESS the due execution
(Seal)
ATTEST:
date first written above.
Z&J,
Gayle nrad, City Clerk
STATE OF MISSOURI
CITY OF CAPE GIRARDEAU,
MISSOURI
By:: L /
Nam�n Pal S44
Title: City Manager
CITY ACKNOWLEDGMENT
) SS.
COUNTY OF CAPE GIRARDEAU )
On this \day of 2025, before me, the undersigned, a Notary Public in and for
said State, personally appeared who acknowledged themselves to
be, respectively, the City Manager an City Clerk of CITY O� F CAPE GIRARDEAU, MISSOURI, a home
rule city organized and existing under the laws of the State of Missouri, and that they, as such City Manager
and City Clerk are authorized by the City Council of such City, to execute the foregoing instrument for the
purposes therein contained by signing the name of the City by themselves as City Manager and City Clerk.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and
year last above written. A
CI
Notary Public in and for said
Amanda L. McKinney
Notary Public -Notary Seal
STATE OF MISSOURI
Commissioned for Cape Girardeau
My Commission Rite : 3!3/2026
ID #i 14583193
Notary — please affix seal in area
Designated above
WITNESS the due execution hereof as of the date first written above.
DRURY SOUTHWEST, INC.
By: 0 -A /40lc:�
Carolyn F. Bdhnert, Sr. Vice President
STATE OF NUSSOURI )
) SS.
COUNTY OF CAPE GIRARDEAU )
On this /C/ _7X-4day of Wu s 2025, before me, the undersigned, a Notary Public in and for
said State, personally appeared Caro F. Bohnert, who acknowledged herself to be the Sr. Vice President
of Drury Southwest, Inc., a Missouri corporation, duly organized and existing under the laws of the State
Missouri, and that she as such officer being authorized by said company so to do executed the foregoing
instrument for the purposes therein contained by signing the name of the association by herself as an officer.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and
year last above written.
z2G�
Karen Seabaugh
Notary Public in and for said State
eabaugh-Notary Sea!MISSOURI6MA
ape Girardeau County545592�ch 10, 2028
Notary —please affix seal in area
Designated above
WITNESS the due execution hereof as of the date first written above.
HOTEL OWNER #1
DI Hotels Sun, LLC
By: DSW Inns, LLC, its manager
By: as� 4_ 44t7_ -Q
Carolyn F. Bohnert, Sr. Vice President
STATE OF MISSOURI )
) SS.
COUNTY OF CAPE GIRARDEAU )
On this IF f� day of AA td 2025, before me, the undersigned, a Notary Public in and for
said State, personally appeared Carolyn F. Bohnert, who acknowledged herself to be the Sr. Vice President
of DSW Management, LLC, a Missouri limited liability company, manager of DI Hotels Sun LLC, duly
organized and existing under the laws of the State Missouri, and that she as such officer being authorized
by said company so to do executed the foregoing instrument for the purposes therein contained by signing
the name of the association by herself as an officer.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and
year last above written.
Daren Seabaug'1i
Notary Public in and for said State
Karen Seabaugh
Notary public -Notary Seal
STATE OF MISSOURI
Commissioned for Cape Girardeau]2028
My Commission Expires: March 1
ID. 912545592
Notary —please affix seal in area
Designated above
WITNESS the due execution hereof as of the date first written above.
HOTEL OWNER #2
Drury Cape Girardeau, LLC
By: DSW Management, LLC, its manager
By: Q '-Aa �
Carolyn F. Bofmert, Sr. Vice President
STATE OF MISSOURI )
) SS.
COUNTY OF CAPE GII2ARDEAU )
On this day of Amk51 2025, before me, the undersigned, a Notary Public in and for
said State, personally appeared Carol n F. Bohnert, who acknowledged herself to be the Sr. Vice President
of Drury Cape Girardeau, LLC, a Missouri limited liability company, duly organized and existing under
the laws of the State Missouri, and that she as such officer being authorized by said company so to do
executed the foregoing instrument for the purposes therein contained by signing the name of the association
by herself as an officer.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and
year last above written.
2�
Printed e: K Seahavk
Notary Public in and for said State
Karen Seabaugh
Notary Public -Notary Seat
STATE OF MISSOURI
Commissioned for Cape Girardeau County
My Commission Expires: March 10, 2028
ID.#12545592
Notary —please affix seal in area
Designated above
WITNESS the due execution hereof as of the date first written above.
HOTEL OWNER #3
MidAmerica Hotels Corporation
Davie . Drury, President
STATE OF MISSOURI )
) SS.
COUNTY OF CAPE GIRARDEAU )
On this 14' day of August 2025, before me, the undersigned, a Notary Public in and for said State,
personally appeared Daniel M. Drury, who acknowledged him/herself to be the President of MidAmerica
Hotels Corporation, a Missouri corporation, duly organized and existing under the laws of the State
Missouri, and that he/she as such officer being authorized by said company so to do executed the foregoing
instrument for the purposes therein contained by signing the name of the association by him/herself as an
officer.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and
year last above written.
mance &.tAtu
Mel ie R. Cantrell
Notary Public in and for said State
MELANIE R CANTRELL
NOTARY PUBLIC - NOTARY SEAL
STATE OF MISSOURI
MY COMMISSION EXPIRES JUNE 9, 2028
CAPE GIRARDEAU COUNTY
COMMISSION #12573011
Notary —please aux seal in area
Designated above
EXHIBIT A
LEGAL DESCRIPTION OF PROJECT SITE
A part of United States Private Survey No. 3090, Township 30 North, Range 13 East of the Fifth
Principal Meridian, City and County of Cape Girardeau, State of Missouri, being more particularly
described as follows: Commencing at the northeast corner ofU.S.P.S. 3090; thence South 06° 02' 34"
West, 1930.30 feet along the east line of U.S.P.S. 3090; thence leaving said east line, North 83° 5726"
West, 864.52 feet to a point on the West right of way of Farrar Drive; thence North 06° 01'47" East,
14.87 feet along said right of way to a point being at the intersection of the west right of way of Farrar
Drive and the south right of way of Percy Drive, said point being also the northeast corner of a tract of
land recorded in the land records of the County Recorder's Office in Book No. 415 at Page No. 629;
thence along the north line of said tract and the south right of way line of Percy Drive, North 84° 00'40"
West, 429.50 feet to the true point of beginning; thence continuing along said right of way line, North 84°
00' 40" West, 266.46 feet; thence North 88° 54'36" West, 303.95 feet along said right of way to a point
on the easterly right of way of Interstate Route 55, point being 235.00 feet easterly of and normal to the
centerline of Interstate 55, sta. 1193+24.91; thence leaving said south right of way and along the easterly
right of way of Interstate 55, South 19° 56' 06" East, 175.09 feet to a point being 235.00 feet easterly of
and normal to the centerline of Interstate 55, sta. 1195+00; thence continuing along said right of way,
South 33° 29'40" East, 467.26 feet to a point being 344.55 feet easterly of and normal to the centerline of
Interstate 55, sta. 1199+54.24; thence leaving said right of way, North 560 44' 33" East, 465.92 feet;
thence North 33° 22' 16" West, 260.15 feet; thence North 05° 45' 17" East, 48.15 feet to the point of
beginning.