HomeMy WebLinkAboutOrd.4381.10-15-2012 BILL NO. 12-143 ORDINANCE NO. q031
AN ORDINANCE AUTHORIZING THE CITY MANAGER TO
EXECUTE AN INTERGOVERNMENTAL COOPERATION
AGREEMENT WITH CAPE GIRARDEAU COUNTY, DRURY
DEVELOPMENT CORPORATION, AND DRURY LAND
DEVELOPMENT, INC . , FOR THE PURPOSE OF PUBLIC
IMPROVEMENTS AND OTHER RELATED MATTERS
BE IT ORDAINED 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 an
Intergovernmental Cooperation Agreement with Cape Girardeau
County, Drury Development Corporation, and Drury Land
Development, Inc . , for the purpose of the development of Public
Improvements and other related matters . A copy of said
Intergovernmental Cooperation Agreement is attached to this
Ordinance and made a part hereof .
ARTICLE 2 . That the Agreement approved hereby is subject
to the provisions of the Inter Governmental Cooperation Act
(Section 70 . 210, et seq. ) and the City Clerk is hereby
authorized to file a copy herewith with the Office of the
Secretary of State and Recorder of Deeds, Cape Girardeau County.
ARTICLE 3 . This ordinance shall be in full force and
effect ten days after its passage and approval .
PASSED AND APPROVED THIS DAY OF pCf'" 2012 .
Ha ry E. ediger, Mayor
ATTEST:
s
J
Gayle Conrad, City Clerk
� S
Ale_
Mrd. 8381
DRURY DEVELOPMENT CO.
/21 Emerson Road.Ju}Cc'�t�:t.,`.,1.Louis.NTt.i c,3!41•
October 23. 2013
eCUillllliE Ila111(Q).cltyofcapeglrardeaU.OrL, ctracy(LCapeCOLlnty.LIS
Eric Cunningham Clint Tracv
City Attorney Presiding Commissioner
City of Cape Girardeau Cape Girardeau County
40 t Independence One Barton Square
Cape Girardeau, MO 63701 Jackson. MO 63755
Re: Development Agreement dated June 21, 2004; as amended, by and between the City of
Cape Girardeau, (Missouri, the County of Cape Girardeau, Missouri, Drury Development
Corporation, and Drury Land Development, Inc.
Gentlemen:
Tile purpose of this letter is to confirm the substance of niv telephone conversation with Eric
CunninUham on October 22, 2013 and Mark Kohl's conversation with Clint Tracv on October
23, 2013, reQarding the anticipated sale of the Academy Property (as such term is defined in the
Development Agreement). As discussed, Drury Development Corporation intends to close on
the sale to AR Capital or its assignee within the next t0 days.
Pursuant to Section 4(d) of the Development Agreement, the Developer has the riQht to sell all or
any portion of the Academy Property to any person or entity either before or after completion of
the Phase 2 Public Improvements, subject to the requirement to complete the Phase 2 Public
Improvements and the Phase 2 Development as described in the Amendment to Development
Agreement dated October 15, 2012 (the "Amendment'') with respect to such property. Section
4(d) also requires, however, that the transferee of the Academy Property agree in writing to
assume the obligations of the Amendment with respect to the Academy Property.
The parties to the Development Agreement concur that the purpose of the foregoing provisions
of Section 4(d) was to ensure that the Phase 2 Public Improvements, most of which were to be
constructed or installed on the Academy Property, could be completed, which Would require the
agreement of the owner of such Property. The parties no%v agree that all of the Phase 2 Public
Improvements to be constructed or installed on the Academy Property have been completed and
access onto the Academy Property is no longer necessary. All remaining Phase 2 Public
improvements, including the relocation and disposition of excess dirt and rock previously
removed from the Academy Property as part of the Public Improvements (the `Dirt Removal'),
shall be performed off-site. Accordingly. the parties agree to amend Section 4(d) of the
Development Agreement to delete the 3` 4`I' and 5"' sentences which require the assumption of
obliaations by the transferee and the notification of the Cite and the County_ of any proposed
sale.
Drury Land Development, Inc. and Drury Development Corporation (the"Developer") retain the
obligation to complete the Phase 2 Public Improvements and the Phase 2 Development as
described in the Amendment. Upon completion of the Phase 2 Public Improvements, including
the Dirt Removal, the Developer will submit a Certificate of Substantial completion and a
Certificate of Reimbursable Costs as required by the Amendment. The current projection for the
Reimbursable Costs is approximately 51;900;000, including the cost of Dirt Removal.
Please acknowledge that the foregoing is agreeable by signing below. Please contact me or \!lark
Kohl immediately if you have any concerns.
Very truly yours,
DRURY DEVELOPMENT CORPORATION
and
DRURY LAND DEVELOPMENT, INC.
By:
a S. Leary
Associate General Counsel
AGREED AND ACKNOWLEDGED:
CITY OF AP GIRARDEAU CAPE GI A D- COUNTY
B By:
_ /
Scott A.'5fevJr. r1tv \4ai ger Clint Tr y, P iding Coi oris 'oner
City of Cape Gir dean; \ issouri Cape Girar eau County, i issou
Date: �C.�a 4( ZaL3 Date: a� ��
Cc: Timothy Drury
Mark Kohl
Toni Milford
Tony Right
AMENDMENT TO DEVELOPMENT AGREEMENT
THIS AMENDMENT TO DEVELOPMENT AGREEMENT (this "Agreement"), is
made and entered into as of this I q* day of C-rj�ho , 2012, by and between_the CT'ry OF
CAPE GIRARDEAU, MISSOURI, a home rule city organized and exiO+--- _ if the
State of Missouri and located in Cape Girardeau C„ ,•--`- ” OF
CAPE GIR.ARDEAU, MISSOURI (the �y� ;NT
CORPORATION, a Missouri corporation ("D. �I fi)�d i� vT,
INC., a Missouri corporation ("DLD"), DDC ai (���} �.3 as
"Developer" or"Drury").
\
WITNES N )
WHEREAS, on June 21, 2004, the Ci a
Development Agreement, as amended by a Cham t
dated November 10, 2005 (the "November 2005 (
DLD dated August 10, 2006 and accepted by the
"August 2006 Letter Agreement")(as amended, the
agreed to develop a portion of certain real property
approximately sixty (60) acres of land in the Cape
described on Exhibit A attached to the Development . 10perty"), and the City
and the County agreed to reimburse DLD for a rvrtlon of the cost of certain Public
Improvements constructed by DLD within the Property which will inure to the benefit of the
City and the County and the citizens thereof, and
WHEREAS, prior to the execution of the Development Agreement, Kohl's Department
Store, Inc. proposed to build an approximate 80,000 to 100,000 square foot Kohl's Store (the
"Kohl's Store") on land within the Property, which store was constructed in 2005; and
WHEREAS, in conjunction with the construction of the Kohl's Store, DLD constructed
certain roads, utilities, systems and other public infrastructure as more particularly described in
the Development Agreement, which comprise the "Original Public Improvements"; and
WHEREAS, the Original Public Improvements have been completed by the Developer,
accepted by the City and the County, approved for payment, and reimbursement of the
Reimbursable Costs incurred in connection with the Original Public Improvements has
commenced; and
WHEREAS, Academy Ltd. ("Academy") proposes to build and operate an approximately
70,000 to 75,000 square foot retail store (the "Academy Store") to be located on certain land
owned by DDC within the Property, being more particularly described on Exhibit A attached
hereto and incorporated herein by reference (the "Academy Property"); and
WHEREAS, in conjunction with the construction of the Academy Store, Developer
desires to construct certain utilities systems, drive aisles, parking areas and other public
infrastructure and improvements on the Property, as more particularly set forth in Exhibit B
attached hereto (the "Phase 2 Public Improvements", which together with the Original Public
Improvements comprise the "Public Improvements"), in order to facilitate retail development of
legal\Amendment\Agreement\Development—Cape Girardeau—Academy(2)\61\09.26.12
the Property, all of which will enhance the tax base of the City and the County to the benefit of
the City, the County and other governmental entities; and
WHEREAS, the City and the County have determined that it is essential to the economic
and social welfare of the City and the County to promote the economic vitality of the community
by assuring opportunities for development and sound and stable commercial growth; and
WHEREAS, the Phase 2 Public Improvements will provide significant economic benefits
to the City, the County, and other taxing subdivisions wherein the Property is located through the
creation of real estate tax and sales tax revenue; and
WHEREAS, the City and the County are authorized pursuant to Section 70.220 of the
Revised Statutes of Missouri, as amended, to contract for the planning, development and
construction of any public improvement or facility and the City and the County are further
authorized pursuant to Section 349.012 of the Revised Statutes of Missouri, as amended, to
expend City and County funds to promote commercial and industrial development; and
WHEREAS, in connection with the construction of the Phase 2 Public Improvements,
Developer has incurred and will incur additional significant costs and the City and the County
have agreed, subject to the terms of the Development Agreement, as amended hereby, to
reimburse Developer for a portion of the cost of the Phase 2 Public Improvements, which will
inure to the benefit of the City and the County and the citizens thereof; and
WHEREAS, the City, the County, and Developer desire to amend the Development
Agreement to expand the description of the Public Improvements originally set out in the
Development Agreement to include the Phase 2 Public Improvements and to otherwise amend
the Development Agreement on the terms and conditions contained herein; and
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereby agree as follows:
1. Definitions. For purposes of this Amendment, in addition to definitions appearing
in the Development Agreement and elsewhere in this Amendment, words used in this
Amendment shall have the following meanings:
"Academy Store" means an Academy Sports + Outdoors Store of approximately 70,000
to 75,000 net leasable square feet or other Academy Store of comparable size and quality
reasonably acceptable to the City and the County and located on the Property in accordance with
the Development Agreement
"Annual Administrative Cost" means in each year an amount equal to two percent (2%)
of the Sales Taxes received as of a Payment Date and assessed as of such Payment Date to be
paid to the City and County based on the amount of their respective Sales Taxes.
"Approving Ordinances" means City Ordinance No. L�? adopted and approved on
a& cam, 2012 approving this Amendment.
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"Construction Plans" means plans, drawings, specifications, and related documents for
the construction of the Phase 2 Public Improvements, together with all supplements, amendments
or corrections thereto, submitted by or on behalf of Developer and approved by the City or other
applicable governmental authority in accordance with applicable law and the Development
Agreement.
"Finance Director" means the duly appointed and serving Director of Finance of the
City.
"Phase 2 Available Revenues" means 100% of the revenues actually received by the City
from City Sales Taxes (as defined herein) generated from any business operations located on the
Academy Property and 100% of the revenues actually received by the County from County Sales
Taxes (as defined herein) generated from operations located on the Academy Property, in excess
of the Sales Tax Base. "City Sales Taxes" means the equivalent of the amount of collections of
levies of the 0.25% capital improvements water sales taxes, the 0.25% capital improvements
sewer sales taxes and fifty percent (50%) of the 0.50% transportation sales taxes (so long as such
levies remain in force and effect, and from any extensions of those sales taxes), and "County
Sales Taxes" means the equivalent of the amount of collections of levies of fifty percent (50%)
of the County's existing 0.5% sales tax ("County Sales Taxes"), all generated by economic
activities occurring on the Academy Property, in excess of the Sales Tax Base. City Sales Taxes
and County Sales Taxes are collectively referred to as "Sales Taxes". If any of the Sales Taxes
lapse (for any reason ) during the Term, then "Phase 2 Available Revenues" shall mean the
equivalent of the amount of collections of levies from any similar purpose sales taxes currently
existing or later imposed by the City or County which is legally permitted to be used to pay the
Phase 2 Reimbursable Costs.
"Phase 2 Concept Property Plan" means the plan sheet attached as Exhibit C and
incorporated by reference in the Development Agreement, depicting the conceptual plan for the
Phase 2 Public Improvements and the Phase 2 Development in accordance with this Amendment.
"Phase 2 Development" means the construction on the Property of the Academy Store or
similar regional retail facilities reasonably acceptable to the City and the County, and related
Phase 2 Public Improvements.
"Phase 2 Payment Date" means the forty-fifth (45`h) day following the conclusion of
each calendar quarter (i.e., February 15, May 15, August 15, and November 15) commencing on
the last day of the calendar quarter after the date on which DLD has received the Total Amount
of Reimbursable Costs due to DLD for the Original Public Improvements pursuant to the
Development Agreement, but in no event earlier than the date of commencement of retail
operations from the Phase 2 Development on the Property.
"Phase 2 Public Improvements" means those certain utility systems, drive aisles, parking
areas, infrastructure and improvements on the Property and other public improvements set forth
and described in the Phase 2 Concept Property Plan and more specifically set forth in Exhibit B,
attached to and incorporated by reference in this Amendment.
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t �
"Phase 2 Reimbursable Costs" means those costs and expenses set forth and described in
Exhibit B, for which Developer is eligible for reimbursement in accordance with this
Amendment.
"Phase 2 Scheduled Payment" means all Phase 2 Available Revenues (less the applicable
Annual Administrative Cost) received by the City and County during the first 2 months of the
calendar quarter preceding the applicable Payment Date and during the last month of the
immediately preceding calendar quarter (i.e., March—May, June—August, September—November,
and December—February).
"Sales Tax Base" means revenues to be received by the City from collections of levies of
the 0.25% capital improvements water sales taxes, the 0.25% capital improvements sewer sales
taxes, and fifty percent (50%) of the 0.50% transportation sales taxes, and revenues to be
received by the County from collections of levies of fifty percent (50%) of the County's existing
0.5% general sales tax, all on $2,500,000 in annual sales generated by economic activities; such
Sales Tax Base to be adjusted annually following the first Payment Date based on the then
applicable Consumer Price Index. for All Urban Consumers, U.S. City Average — All Items,
published by the Bureau of Labor Statistics of the U.S. Department of Labor for the preceding one
year period, not to exceed four percent (4%)per annum.
"Sales Tax Funds" means separate segregated funds with the treasury of the City and of
the County, into which the Sales Tax Revenues are from time to time deposited in accordance
with this Amendment.
"Third Party Action" means any action, proceeding or demand initiated by a party other
than a party to the Development Agreement and directed to the City or the County or naming the
City or the County as a party, but only those actions proceedings or demands which arise out of
the Development Agreement (as amended by this Amendment) and result from the negligence or
intentional misconduct of Developer.
"Total Phase 2 Reimbursable Amount" means an amount equal to the verified
Reimbursable Costs actually incurred by Developer in accordance with this Amendment up to a
maximum aggregate amount of Three Million Dollars and 00/100 cents ($3,000,000.00).
The word "Term" as used in the Development Agreement is hereby amended to mean the
time period commencing with the full execution of the Development Agreement and ending
upon the earlier of: (i) the date on which Developer has received the Total Phase 2 Reimbursable
Amount or (ii) termination of the Development Agreement under Sections 6.1 or 6_2 of the
Development Agreement; or(iii) fifteen(15) years following the Phase 2 Commencement Date.
2. Completion of Original Public Improvements. The parties hereby agree and
acknowledge that, as of the date of this Amendment, Developer has timely performed its
obligations under the Development Agreement, including but not limited to the following:
a. delivered to the City and the County a Notice of Commencement of Construction;
b. completed construction of the Original Public Improvements in accordance with
applicable federal, state or local ordinances, laws, regulations and codes;
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C. furnished to the City a Certificate of Substantial Completion dated April 12, 2006
which was accepted by the City on July 6, 2006;
d. furnished to the City a Certificate of Reimbursable Costs dated April 12, 2006
which was approved for payment by the City on July 6, 2006;
e. furnished to the City a Certificate of Substantial Completion dated June 21, 2007
(relating to Kell Farm Drive) which was accepted by the City on October 16, 2007; and
f. furnished to the City a Certificate of Reimbursable Costs dated June 21, 2007
(related to Kell Farm Drive) which was approved for payment by the City on October 16, 2007.
3. Representations and Warranties.
a. Representations and Warranties of Developer. Each of DDC and DLD represent
and warrant to the City and the County as follows:
(i) Organization. Each of DDC and DLD is a corporation duly organized,
validly existing and in good standing under the laws of the State of Missouri.
(ii) Power and Authority. Each of DDC and DLD has full power and
authority to execute and deliver this Amendment and to perform all of its agreements,
obligations and undertakings under this Amendment.
(iii) Authorization and Enforceability. The execution, delivery and
performance of this Amendment have been duly and validly authorized by all necessary
actions by Developer. This Amendment is a legal, valid and binding agreement,
obligation and undertaking of Developer, enforceable against Developer in accordance
with its terms, except as enforcement hereof maybe limited by applicable bankruptcy,
reorganization, insolvency or similar laws affecting creditor's rights as may from time to
time be in effect.
(iv) Further Consents and Approvals. No consent or approval by any other
entity, whether or not affiliated with Developer, is required in connection with the
execution and delivery by Developer of this Amendment or the performance by
Developer of Developer's obligations under this Amendment.
b. Representations and Warranties of the City. The City hereby represents and
warrants to DDC and DLD as follows:
(i) Organization and Standing. The City is home rule city duly organized
under the laws of the State of Missouri.
(ii) Power and Authority. The City has full power and authority to execute
and deliver this Amendment and to perform all of its agreements, obligations and
undertakings under this Amendment.
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f.
(iii) Authorization and Enforceability. The execution, delivery and
performance of this Amendment have been duly and validly authorized by all necessary
action on the part of the City. This Amendment is a legal, valid and binding obligation of
the City, enforceable against the City in accordance with its terms, except as enforcement
hereof may be limited by applicable bankruptcy, reorganization, insolvency or similar
laws affecting creditor's rights as may from time to time be in effect.
(iv) Governmental Consents and Approvals. No consent or approval by any
other governmental authority is required in connection with the execution and delivery by
the City of this Amendment or the performance by the City of the City's obligations
hereunder.
C. Representations and Warranties of the County. The County hereby represents and
warrants to DDC and DLD as follows:
(i) Organization and Standing. The County is a first-class county duly
organized under the laws of the State of Missouri.
(ii) Power and Authority. The County has full power and authority to execute
and deliver this Amendment and to perform all of its agreements, obligations and
undertakings under this Amendment.
(iii) Authorization and Enforceability. The execution, delivery and
performance of this Amendment have been duly and validly authorized by all necessary
action on the part of the County. This Amendment is a legal, valid and binding
obligation of the County, enforceable against the County in accordance with its terms,
except as enforcement hereof may be limited by applicable bankruptcy, reorganization,
insolvency or similar laws affecting creditor's rights as may from time to time be in
effect.
(iv) Governmental Consents and Approvals. No consent or approval by any
other governmental authority is required in connection with the execution and delivery by
the County of this Amendment or the performance by the County of the County's
obligations hereunder.
4. Construction of Phase 2 Development and Public Improvements.
a. Article III of Development Agreement. Sections 3.1 through and including
Section 3.16 of the Development Agreement shall not apply to the Phase 2 Development or
Phase 2 Public Improvements.
b. Developer to Pay Certain Costs. Developer agrees to pay all costs as necessary to
cause to be completed the Phase 2 Public Improvements in accordance with the Phase 2 Concept
Property Plan, all subject to Developer's right to terminate this Amendment as set forth in
Section 7 of this Amendment.
C. Ownership of Property. Developer hereby represents and warrants to the City and
the County that as of the date of this Amendment, Developer owns or is legally entitled to
exercise control over (whether by virtue of purchase option contracts or ownership in fee by
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affiliate entities of Developer or otherwise) all of the Academy Property and such other real
property necessary for Developer to construct or cause to be constructed the Phase 2 Public
Improvements as depicted on the Phase 2 Concept Property Plan. Developer shall obtain all title
commitments, inspections, tests, surveys and reports, if any, hire and retain all experts,
professionals, including attorneys or engineers, and staff, if any, and shall advance all acquisition
costs as necessary, if any, to control the Academy Property and such other real property as is
necessary for Developer to construct or cause to be constructed the Phase 2 Public
Improvements.
d. Developer's Right to Transfer the Property. Developer may divide interests or
estates in the Academy Property and reserves the right to sell, assign, transfer, lease, mortgage
and convey any part of or interest in the Academy Property, to any person, corporation,
partnership, public authority, joint venture or other entity, including, without limitation, any
affiliate of the Developer either before or after completion of the Phase 2 Public Improvements
or the Phase 2 Development as provided herein. All such transfers prior to completion of the
Phase 2 Public Improvements and the Phase 2 Development, however, shall be subject to the
requirements of this Amendment to complete the Phase 2 Public Improvements and the Phase 2
Development with respect to such real property. Any transferee or successor in interest in the
Academy Property or any portion thereof shall agree in writing to assume the obligations of this
Amendment with respect to the portion of real property or interest so transferred. Developer
agrees to notify the City and the County in writing of any proposed sale, transfer or other disposition
of fee title to any parcel of real property located within the Academy Property or any portion thereof
not less than ten (10) days prior to the date of closing of said sale, transfer or other disposition. Said
notice shall specify the name and address of the person so acquiring any or all of the fee title to such
parcel or portion thereof and shall identify such parcel or portion to be sold, transferred or otherwise
disposed, whether by voluntary transfer or otherwise.
e. Governmental Approvals; Commencement of Construction. Developer shall
submit or cause to be submitted Construction Plans and shall apply or cause to be applied for
building permits and other applicable Governmental Approvals as required to construct the Phase
2 Public Improvements. All Construction Plans for the Phase 2 Public Improvements shall be
prepared by a professional engineer or architect licensed to practice in the State of Missouri and
shall be in sufficient completeness and detail to show that all aspects of construction will be in
conformance with the Phase 2 Concept Property Plan and this Amendment and with all applicable
City codes, ordinances and regulations and in accordance with applicable law and with the
provisions of this Amendment. Developer shall diligently pursue or cause to be pursued all
applicable Governmental Approvals for each element of the Phase 2 Public Improvements and the
Phase 2 Development 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 Amendment and with the laws of the State of Missouri;provided
that nothing in this Amendment 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. In the event the City shall reject such Construction Plans or any portion thereof,
such rejection shall specify any and all deficiencies in the Construction Plans relating to lack of
general conformance with this Amendment or with applicable City codes, ordinances and
regulations. In the event of the City's disapproval of any such Construction Plans or portions
thereof, such disapproval shall be in writing and shall specify the basis for the disapproval.
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Within thirty (30) days after the date Developer receives written notice of the City's disapproval
of plans referred to in the latest such notice, Developer shall submit or cause to be submitted new
or corrected Construction Plans. The provisions of this Section 4(e) relating to approval,
rejection and resubmittal of such Construction Plans shall continue to apply to resubmittal of
corrected Construction Plans until such Construction Plans have been approved by the City. In
the event the Construction Plans are not approved by City within sixty (60) days following
Developer's initial submission of the Construction Plans, Developer may, in Developer's sole
discretion, elect to terminate this Amendment. Developer shall ensure that all construction by or
on behalf of Developer or its agents, affiliates or independent contractors in connection with the
Phase 2 Public Improvements shall be performed in a good and workmanlike manner and in
conformity with the Construction Plans therefor as finally approved by the City. Within sixty
(60) days after Developer's commencement of construction of the Phase 2 Public Improvements,
Developer shall provide to the City a Notice of Commencement of Construction in the form of
Exhibit D attached hereto and incorporated herein by reference, which shall serve as notice to the
City that Developer is commencing the construction of the Phase 2 Public Improvements in
accordance with the terms of this Amendment.
f. Construction Schedule. Developer shall complete construction of the Phase 2
Public Improvements and each of Developer's obligations under this Amendment with respect to
the construction and completion of the Phase 2 Public Improvements, and shall use diligent
efforts to cause the Phase 2 Development to be completed within twenty-four (24) months
following the later of the execution of this Amendment and the recording of the Approving
Ordinance. Developer shall complete the Phase 2 Public Improvements prior to the issuance of a
final occupancy permit by the City for the Phase 2 Development. Developer understands and
acknowledges that the issuance by the City of an occupancy permit for any Phase 2 Development
on the Property may be additionally conditioned upon the satisfactory substantial completion of
the Phase 2 Public Improvements in accordance with Construction Plans as finally approved by
the City in accordance with this Amendment.
g. Construction Contracts. In constructing or causing the construction of the Phase 2
Public Improvements Developer may enter into or cause to be entered into one or more construction
contracts to complete and install the Phase 2 Public Improvements. Prior to the commencement of
construction, Developer shall obtain, or shall ensure that any contractor engaged to perform the
Phase 2 Public Improvements obtains worker's compensation, comprehensive public liability
and builder's risk insurance coverage in amounts set forth in Section 4(h) of this Amendment and
shall use commercially reasonable efforts to ensure that all such insurance coverages are maintained
by any such contractor for the duration of the construction of the Phase 2 Public Improvements.
Prior to commencement of construction or simultaneously with the execution and delivery of this
Amendment by Developer, whichever is later, Developer shall deliver to the City and the County
evidence of all insurance to be maintained by such contractor as required by Section 4(h). To the
full extent that competitive bidding and award requirements (including, without limitation, those
requirements imposed by the City or the County pursuant to City or County ordinances or practices)
and prevailing wage or other wage and hour statutes or requirements, or requirements to obtain
payment bonds including, without limitation, a performance and payment bond in conformance
with Section 107.170 of the Revised Statutes of Missouri, as amended, apply to any portion of the
Phase 2 Public Improvements, Developer covenants and agrees to take all such actions as are
necessary to comply with such laws, regulations or requirements and to indemnify, defend and hold
harmless the City, the County and their respective officials, officers, employees and agents from any
8
r
actions, causes, proceedings, awards, costs, liabilities, damages or expenses, including attorneys'
fees, arising out of Developer's failure to comply with such requirements. The foregoing
indemnification and defense obligations of Developer set forth in this paragraph shall survive
termination of the Development Agreement for any reason. Conformance with the foregoing
provisions shall be a condition precedent for any payments of reimbursements to Developer
under this Amendment.
h. Insurance. Developer shall cause there to be insurance as hereinafter set forth at
all times during the process of constructing the Phase 2 Public Improvements and from time to
time at the request of the City or the County, shall furnish the City and the County with proof of
coverage on:
(i) Builder's risk insurance, written on the so called `Builder's Risk—Completed Value
Basis," in an amount equal to one hundred percent (100%) of the insurable value of
the Phase 2 Public Improvements, and with coverage available in non-reporting
form on the so-called "all risk" form of policy. To accomplish the above required
limits, an umbrella liability policy may be used;
(ii) Comprehensive general liability insurance (including operations, contingent
liability, operations of subcontractors, competed operations and contractual
liability insurance) together with an owner's contractor's policy, with limits
against bodily injury and property damage of not less than Two Million Dollars
($2,000,000) for each occurrence and Three Million Dollars ($3,000,000) in the
aggregate. To accomplish the above required limits, an umbrella excess liability
policy may be used;
(iii) Workers' compensation insurance, with statutorily required coverage; and
(iv) Flood insurance if the Academy Property or any portion thereof is determined to be
in located in a flood hazard area.
The policies of insurance required pursuant to clauses (i) and (ii) above shall be in a
commercially reasonable form and shall be placed with financially sound and reputable insurers
licensed to transact business in the State of Missouri. The policy of insurance delivered pursuant
to clauses (i), (ii) and (iv)(if applicable) shall name each of the City and the County as an additional
insured.
i. Inspections. Developer shall allow authorized representatives of the City and the
County access to the Academy Property from time to time upon reasonable advance notice prior to
the completion of the Phase 2 Development and the Phase 2 Public Improvements for reasonable
inspection thereof.
j. Phase 2 Concept Property Plan. The Phase 2 Concept Property Plan set forth in
Exhibit C to this Amendment is hereby approved by the City and the County. During the
progress of the Phase 2 Development and the construction of the Phase 2 Public Improvements,
Developer may make changes to the Phase 2 Concept Property Plan or any aspect thereof, as site
conditions or other issues affecting constructability may dictate to assure expeditious
undertaking of the Phase 2 Public Improvements and the Phase 2 Development or as may be
9
required to meet the reasonable requests of prospective tenants or owners; provided, however,
that any such change shall comply with all applicable laws of the City and the County, and State
of Missouri, and provided further that Developer may not make any change to the Construction
Plans without the consent of the City as may be required by applicable law, which consent shall
not be unreasonably withheld or delayed.
k. Certificate of Substantial Completion. Promptly after substantial completion of
all of the Phase 2 Public Improvements in accordance with the provisions of this Amendment,
Developer shall furnish to the City a Certificate of Substantial Completion so certifying, in the
form attached hereto as Exhibit E and incorporated herein by reference. The City shall,
following delivery of the Certificate of Substantial Completion, carry 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 Phase 2 Public Improvements during the
course of construction, the City shall notify Developer if the City observes any improperly
performed work that would prevent the City from approving the Certificate of Substantial
Completion;provided that failure of the City to so notify Developer shall not relieve Developer
of Developer's obligation to construct and complete all of the Phase 2 Public Improvements in
accordance with applicable State and local law and the provisions of this Amendment. If the
City finds the Certificate of Substantial Completion unacceptable, the City shall, within thirty
(30) days after receipt of the Certificate of Substantial Completion, provide to Developer a
written statement stating in adequate detail in what respects Developer has failed to complete the
Phase 2 Public Improvements in accordance with this Amendment, or in what respects
Developer is otherwise in default hereunder. Drury shall have a reasonable period of time to
complete or correct such items or to take such action described in the City's written statements;
and Developer 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,
Developer may record the 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 Developer's agreements and covenants to satisfactorily complete the Phase 2 Public
Improvements under this Amendment. The City's failure to object in writing to the Certificate of
Substantial Completion as described above within thirty (30) days after delivery thereof to the
City shall be deemed acceptance by the City. Developer shall maintain or cause to be
maintained the Phase 2 Public Improvements, during construction and after substantial
completion in a first class condition and workmanlike manner.
1. Warranty. Developer shall obtain from its contractor(s) warranties that each of
the Phase 2 Public Improvements (other than on-site grading), will be free from defects for a
period of not less than two (2) years from the date completed by Developer.
5. Reimbursement.
a. Article IV of the Development Agreement. Article IV of the Development
Agreement shall not apply to the Phase 2 Development or the Phase 2 Public Improvements.
b. Developer's Funding of Phase 2 Public Improvements. Developer shall advance
all amounts necessary to complete the Phase 2 Public Improvements in accordance with this
Amendment.
10
I
C. Reimbursement. Upon acceptance by the City of the Certificate of Substantial
Completion for the Phase 2 Public Improvements, the City and the County shall reimburse
Developer for the Phase 2 Reimbursable Costs actually incurred by Developer in connection
with construction of the Phase 2 Public Improvements, up to the Total Phase 2 Reimbursable
Amount, with the Scheduled Payments beginning on the first Payment Date and ending on the
Payment Date prior to the end of the Term of the Development Agreement (as amended by this
Amendment).
d. Reimbursements Limited to Verified Reimbursable Costs. Nothing in this
Amendment shall obligate the City or the County to reimburse Developer for any portion of the
Phase 2 Reimbursable Costs that are not actually incurred in accordance with this Amendment
and that do not qualify as a Phase 2 Reimbursable Cost under this Amendment. Further, nothing
in this Amendment shall obligate the City or the County to reimburse Developer for any portion
of the Phase 2 Reimbursable Costs unless Developer shall first provide to the City and the
County a Certificate of Reimbursable Costs in the form attached hereto as Exhibit F
accompanied by, in each case: (i) copies of invoices for the amounts for which reimbursement is
sought; and (ii) sufficient detail or explanation to enable the City and the County to determine
the type of improvement or expenditure for which such reimbursement is sought. The City and
the County shall review each such Certificate of Reimbursable Costs and accompanying
materials within thirty (30) days after such submittal;provided that the City and the County each
reserves the right to request an itemized accounting or other information, if any, reasonably
necessary to enable the City and the County to determine that any such cost was incurred in
connection with the Phase 2 Public Improvements and is among the approved Phase 2
Reimbursable Costs identified on Exhibit B attached hereto. If the City or the County
disapproves any cost item on the Certificate of Reimbursable Costs, the reason for disapproval
shall be set forth in writing, and Developer shall submit such additional information as may be
required.
e. Developer's Right to Substitute. The Parties acknowledge that each of the costs
listed in Exhibit B to this Amendment constitute Phase 2 Reimbursable Costs under this
Amendment. No payment shall be made for any item of Phase 2 Reimbursable Costs in an
amount greater than that corresponding amount listed and attributed to such item on Exhibit B;
provided, however, in the event that any cost included in a Certificate of Reimbursable Costs is
determined not to be a Phase 2 Reimbursable Cost eligible for reimbursement and payment
pursuant to this Amendment, Developer shall have the right to substitute other Phase 2
Reimbursable Costs such that the aggregate of all Phase 2 Reimbursable Costs for the Phase 2
Public Improvements may equal but shall not exceed the Total Phase 2 Reimbursable Amount.
In no event shall the total amounts reimbursed to Developer hereunder for the Phase 2 Public
Improvements exceed the Total Phase 2 Reimbursable Amount.
f. City's and County's Obligations Limited to Phase 2 Available Revenues.
Notwithstanding any other term or provision of this Amendment, the amount of Phase 2
Reimbursable Costs reimbursed to Developer under this Amendment shall be payable only from
Phase 2 Available Revenues and from no other source whatsoever.
11
I
6. Collection and Pavment of Reimbursable Costs.
a. Article V of the Development Agreement. Article V of the Development
Agreement shall not be applicable to any payments made or amounts due by the City and/or
County to Developer in connection with the Phase 2 Development.
b. Establishment of the Sales Tax Fund, Accounting. On or before the last day of
the calendar quarter after the date on which DLD has received the Total Amount of
Reimbursable Costs due to DLD in connection with the Original Public Improvements (the
"Phase 2 Commencement Date"), the City shall to cause the Finance Director to create the Sales
Tax Fund. Thereafter, for the Term of the Development Agreement (as amended by this
Amendment), in each year the City and the County shall deposit Phase 2 Available Revenues
(less any amounts retained by the Missouri Department of Revenue for administration costs or
amounts held as under dispute) as received into the Sales Tax Funds, to be used and applied first
to pay applicable Annual Administrative Costs on any Payment Date; and second to
reimbursement payments to Developer in accordance with Section 6(c) of this Amendment.
Prior to each Payment Date during Phase 2 of the Development Agreement (as amended by this
Amendment), until the Total Phase 2 Reimbursable Amount has been reached and paid to
Developer, the City and the County shall prepare and deliver to Developer a written report of the
amount of Phase 2 Available Revenues deposited into and expended from the Sales Tax Funds
for the quarterly period immediately preceding and the total amount of Phase 2 Available
Revenues deposited to date.
C. Disbursement of Available Revenues. On each Payment Date during Phase 2 of
the Term, the City and the County, each subject to annual appropriation as described in Section
6(d) below), shall remit to Developer the Phase 2 Available Revenues deposited in the Sales Tax
Funds less amounts representing the applicable Annual Administrative Costs in a total amount
up to the Total Phase 2 Reimbursable Amount payable under this Amendment (the "Phase 2
Scheduled Payments"). The Phase 2 Scheduled Payments shall be payable on each Phase 2
Payment Date during the Term, or if such day is not a business day, the first business day
thereafter. In no event shall Developer be entitled to any amount for the cost of the Phase 2
Public Improvements in excess of the Total Phase 2 Reimbursable Amount and, in the event the
Total Phase 2 Reimbursable Amount has been disbursed to Developer during any year of the
Term, the Development Agreement shall terminate and no Party shall have any further obligation
to any other Party hereunder (other than indemnification obligations expressly surviving such
termination).
d. Annual Appropriation. The obligations of the City and the County to make the
payments hereunder constitute a current expense of the City and the County, are from year to
year, in each such year shall be subject to annual appropriation in accordance with the City's and
the County's customary practices for such decisions, and shall not constitute a mandatory
payment obligation of the City or the County in any fiscal year beyond the then current fiscal
year of the City or the County. The City's and the County's obligations hereunder shall not in
any way be construed to be a debt of the City or the County in contravention of any applicable
constitutional or statutory limitation or requirement concerning the creation of indebtedness by
the City or the County nor shall anything contained herein constitute a pledge of the general
credit, tax revenues, funds or moneys of the City or the County. Subject to the terms of the
12
i
Development Agreement (as amended by this Amendment), the City and the County reasonably
believe that legally available funds in an amount sufficient to make all payments during the Term
of the Development Agreement (as amended by this Amendment) can be obtained.
Notwithstanding the foregoing, the decision whether or not to budget or appropriate funds for
any subsequent fiscal year is solely within the discretion of the then current governing bodies of
the City and the County.
7. Termination Rights.
a. Article VI of the Development Agreement. Sections 6.1 and 6.2.1 of the
Development Agreement are hereby deleted and of no further force or effect.
b. Developer's Right of Termination. At any time prior to the delivery of the
Certificate of Substantial Completion for the Phase 2 Public Improvements, Developer may, by
giving written notice to the City and the County, abandon or discontinue the construction and
terminate the portions of the Development Agreement which relate solely to the Phase 2
Development if Developer determines, in Developer's sole discretion, that the construction of the
Phase 2 Public Improvements is no longer economically feasible. Upon such termination, (i) the
City and the County shall have no obligation to reimburse Developer for any amounts advanced
under this Amendment, or for work performed hereunder, or for costs otherwise incurred or paid
by Developer, and (ii) neither Developer nor the City nor the County shall have any further
obligation regarding the Phase 2 Public Improvements or this Amendment.
C. City's and County's Right of Termination. The City and the County may
terminate the portions of the Development Agreement that relate solely to the Phase 2
Development in the event that (i) Developer fails to complete the Phase 2 Public Improvements
in accordance with the requirements established in the Development Agreement (as amended by
this Amendment) or (ii) in the event the Academy Store fails to open for business on the
Property within twenty four (24) months following the full execution of this Amendment and the
recording of the Approving Ordinance. Upon such termination, which shall be effective upon
the giving of written notice by the City or the County, the City or the County, as the case may be,
shall have no further obligation to reimburse Developer for any amounts advanced under this
Amendment or costs otherwise incurred or paid by Developer or any other person or entity in
connection with the construction of the Phase 2 Public Improvements.
8. Miscellaneous.
a. Notices. All notices, demands, requests, consents, approvals or other
communications or instruments required or otherwise given under this Amendment shall be in
writing, executed by the Party or an officer, agent or attorney of the Party, addressed to the
appropriate party at its address set forth below, or at such other address as such party shall have
last designated by notice to the other, and shall be deemed to have been effective as of the date of
actual delivery, if delivered personally, or one business day after deposited with a recognized
overnight carrier (such as Federal Express) for overnight delivery, or as of the third (3rd) day
from and including the date of posting, if mailed by registered or certified mail, return receipt
requested, with postage prepaid, provided, however, that if any such notice or other
communication shall also be sent by telecopy or fax machine, such notice shall be deemed given
at the time and on the date of machine transmittal if the sending party receives a written send
13
verification on its machines and forwards a copy thereof by overnight delivery sent the day the
telecopy transmission is sent.
To Developer: Drury Development Corporation
721 Emerson Road, Suite 200
St. Louis, Missouri 63141
Attn: Jacqueline D. Pollvogt, General Counsel
Tel: (314) 423-6698
Fax: (3 14) 423-0310
and
Drury Land Development, Inc.
721 Emerson Road, Suite 200
St. Louis, Missouri 63141
Attn: Jacqueline D. Pollvogt, General Counsel
Tel: (314) 423-6698
Fax: (3 14) 423-03 10
To the City: City of Cape Girardeau
401 Independence Street
Cape Girardeau, Missouri
Attn: City Manager
Tel: (573) 339-6320
Fax: (573) 339-6302
To the County: Cape Girardeau County
One Barton Square
Jackson, Missouri 63755
Attn: County Commission
Tel: (573) 243-1052
Fax: (573) 243-6893
b. Force Majeure. No party to the Development Agreement (as amended by this
Amendment) shall be considered in breach or default of their respective obligations under the
Development Agreement (as amended by this Amendment), and the times for performance of
obligations hereunder shall be extended in the event of any delay caused by events of force
majeure including, without limitation, acts of God, fire or other casualty, strike, lockout or other
labor dispute, weather conditions, shortages or unavailability of material, labor or utilities, war,
terrorism, vandalism, failure of any third party to perform obligations, governmental, civilian or
military authority.
C. Third Party Actions. Developer shall indemnify, defend and hold the City, the
County and their respective officials, agents, employees and representatives acting in any
capacity harmless from any Third Party Action. City, County and Developer each agree that so
long as no conflicts of interest exist between or among them, at Developer's option, the same
14
attorney or attorneys may simultaneously represent the City, the County and the Developer in
any such proceeding. The indemnification obligations of Developer hereunder shall survive
termination of the Development Agreement for any reason. In no event shall either Party or any
official, agent, employee or representative of either of them have any liability to the other for
damages or otherwise in the event that all or any part of the Development Agreement (as
amended by this Amendment), shall be declared invalid or unconstitutional in whole or in part by
a final (as to which all rights of appeal have been exhausted or expired)judgment of a court of
competent jurisdiction, or if, as a result of initiation of a Third Party Action, Developer is
prevented from enjoying the rights and privileges of Developer hereunder.
d. Remedies; No Related Claims. Remedies available under this Amendment shall
be limited to equitable remedies including specific performance except as otherwise provided
herein. The Parties hereto agree that the City and the County shall have no liability in damages
or any other monetary liability (other than for amounts due to Developer from Available
Revenues or Phase 2 Available Revenues payable from time to time in accordance with the
Development Agreement (as amended by this Amendment)) to Developer or its successors,
assigns, heirs and personal representatives in respect of any suit, claim, or cause of action arising
out of the Development Agreement (as amended by this Amendment).
e. Multiple Counterparts. This Amendment may be executed in counterparts, each
of which shall be deemed to be an original and all of which shall together constitute one and the
same instrument.
f. Ratification. Except as amended and modified hereby, the Development
Agreement shall be and shall remain unchanged and in full force and effect in accordance with
its terms, and, as the Development Agreement is amended and modified hereby, the
Development Agreement is hereby ratified, adopted and confirmed. All provisions of the
Development Agreement shall be deemed to be amended consistent with the terms of this First
Amendment. All capitalized words used as defined terms in this First Amendment and not
otherwise defined herein shall have the meanings set forth in the Development Agreement.
g. Survival. The provisions of this Amendment shall survive the expiration of the
Term of the Development Agreement.
h. Computation of Time. Unless otherwise expressly provided herein, wherever the
Development Agreement (as amended by this Amendment) calls for the performance of any act
by reference to a day or number of days, to a month or number of months or to a year or number
of years, each such computation shall be made based upon calendar days, calendar months and
calendar years, as applicable.
15
IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed by
their duly authorized officers as of the date set forth above.
CITY OF CAPE RDEAU, MISSOURI
gyp,-
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(SEAL)%V/
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City Cle
CAPE GIRARDEAU COUNTY, MISSOURI
- By:
Presiding Commi er
„(SEAL)
Attest: '
County Clerk
DRURY DEVELOPMENT CORPORATION
r
By:
Timothy M. Drury, President
DRURY LAND DEVELOPMENT, INC.
By:
Timothy M. Drury, President
16
i
EXHIBIT A
Legal Description of the Academy Property
A PART OF LOT NO. 2 OF COMMISSIONERS PLAT OF SUBDIVISION 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 PARTICUARLY DESCRIBED AS FOLLOWS:
Commencing at the southeast corner of lot no. 2 of Commissioners Plat of Subdivision of
U.S.P.S. No. 3090; Thence N 05° 11' 48" E, 1,360.76 feet along the east line of said Lot 2 to the
southeast corner of a tract of land as recorded in the land records of the County Recorder's in
book no. 1187 at page no. 958 and the True Point of Beginning,
Thence leaving said right of way line and along the south line of said tract,
N 86 ° 19' 40" W, 98.65 feet; Thence leaving said south line, S 05°38' 46" W, 41.89 feet;
Thence N 84°21' 14" W, 541.05 feet;
Thence S 37 °44' 06" W, 51.34 feet;
Thence N 84 °21' 14" W, 194.53 feet;
Thence N 05°38' 46" E, 440.35 feet to a point on the south line of a tract of land as recorded in
the land records of the County Recorder's office in book no. 586 at page no. 95; Thence along
said south line, S 86 ° 19' 40" E, 858.97 feet to the southeast corner of said tract, said point being
on the westerly right of way line of Shirley Drive; Thence along said right of way line, S 05° 11'
48" W, 381.16 feet to the True Point of Beginning, containing 8.24 acres more or less.
(358,843.24 sq. ft.)
legal\Amendment\Agreement\Development—Cape Girardeau—Academy(2)\1s1\09.26.12
T
EXHIBIT B
Phase 2 Public Improvements/Reimbursable Costs
ACADEMY SPORTS+OUTDOORS SITEWORK
Sitework-Prevailing Wage
*General Conditions-supervision, coordination permits, tap fees $ 115,837.00
temporary facilities &utilities,field testing, layout etc.
*Layout, staking,field testing&inspections $ 28,203.00
*Earthwork-qrading&compaction,erosion control,backfill $ 69,651.00
*Rock staging area,access around building&from ShirleyDrive&tempora fence $ 55,694.00
*Concrete paving, curb&gutters, stop signs, HC signs $ 208,822.00
*Asphalt paving, rock base,parking blocks&striping $ 450,989.00
*Storm sewers&water retention $ 152,686.00
*Utilities-phone,water,sanitary,fire main,temporary water to staging area $ 176,725.00
*
Landscaping&irrigation $ 56,823.00
*Electric-Site lighting,temporary electric to staging area, pylon sin $ 129,260.00
*Civil Engineering/Surveyingfresting $ 88,000.00
*
Developer Legal Fees $ 30,000.00
*Performance Bond $ 25,000.00
*Project Contingency $ 75,000.00
*Additional Bids Outstanding $ 75,000.00
TOTAL SITEWORK $ 1,662,690.00
*Rock allowance-rock&unsuitable soils removed/replaced on T&M basis $ 50,000.00
TOTAL with Rock Allowance $ 1,712,690.00
legal\Amendment\Agreement\Development—Cape Girardeau—Academy(2)\Isl\09.26.12
EXHIBIT C
Phase 2 Concept Property Plan
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EXHIBIT D
Form of Notice of Commencement of Construction
The undersigned, being a duly authorized officer of Drury Development Corporation, a
Missouri corporation and Drury Land Development, Inc. (collectively"Developer"), delivers this
notice to the City and the County in connection with the Development Agreement dated as of
June 21, 2004, as amended (the "Agreement"). Capitalized terms not otherwise defined herein
shall have the meanings set forth in the Development Agreement.
The undersigned hereby certifies as to the following:
Developer owns a fee simple interest in all the Property necessary for the Phase 2 Public
Improvements, as described in Exhibit to the First Amendment to the Development
Agreement dated as
Developer has entered into an agreement with a Contractor or Contractors to construct the Phase
2 Public Improvements.
Developer or its Contractor has obtained all necessary building permits to begin construction of
the Phase 2 Public Improvements.
This Notice of Commencement of Construction is being issued by Developer to the City in
accordance with the Development Agreement to evidence Developer's satisfaction of all
obligations and covenants with respect to commencement of construction of the Phase 2 Public
Improvements.
DRURY DEVELOPMENT CORPORATION
By:
Timothy M. Drury, President
DRURY LAND DEVELOPMENT, INC.
By:
Timothy M. Drury, President
legal\Amendment\Agreement\Development—Cape Girardeau—Academy(2)\1s1\09.26.12
d -
EXHIBIT E
Form of Certificate of Substantial Completion
CERTIFICATE OF SUBSTANTIAL COMPLETION
The undersigned, Drury Development Corporation, a Missouri corporation, pursuant to that
certain Development Agreement dated as of June 21, 2004, as amended, by and between the City of Cape
Girardeau, Missouri, the County of Cape Girardeau, Missouri, and Drury Development Corporation, and
Drury Land Development, Inc. (collectively, "Developer") (the"Agreement"), hereby certifies to the City
and the County as follows: Capitalized terms used and not defined in this Certificate shall have the
meanings ascribed to them in the Development Agreement.
1. That as of , 2013, the construction of the Phase 2 Public
Improvements has been substantially completed in accordance with the Development Agreement.
2. The construction of the Phase 2 Public Improvements has been performed in a
workmanlike manner and in accordance with the Phase 2 Concept Property Plan, subject to changes that
are permissible under the Development Agreement and changes that have been approved, if required,
under the Development Agreement.
3. This Certificate of Substantial Completion is accompanied by the architect's or owner
representative's certificate of substantial completion, a copy of which is attached hereto as Appendix A
and incorporated by reference, certifying that the Phase 2 Public Improvements have been substantially
completed in accordance with the Development Agreement.
4. This Certificate of Substantial Completion is being issued by Developer to the City in
accordance with the Development Agreement to evidence Developer's satisfaction of all material
obligations and covenants with respect to the Phase 2 Public Improvements under the Development
Agreement.
Upon such acceptance by the City, Developer 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 hand this day of
, 20
DRURY DEVELOPMENT CORPORATION DRURY LAND DEVELOPMENT, INC.
By: By:
Timothy M. Drury, President Timothy M. Drury, President
ACCEPTED:
CITY OF CAPE GRZARDEAU,MISSOURI
By:
Name:
Title:
legal\Amendment\Agreement\Development—Cape Girardeau—Academy(2)\1s1\09.26.12
ACKNOWLEDGMENT
STATE OF MISSOURI )
COUNTY OF CAPE GIRARDEAU )
On this day of , 20_, before me, the undersigned, a Notary Public in
and for said State, appeared , to me personally known, who, being by me
duly sworn, did say that s/he is the City Manager of the CITY OF CAPE GIRARDEAU,
MISSOURI, a political subdivision of the State of Missouri, and that the seal affixed to the
foregoing instrument is the seal of said City, and that said instrument was signed and sealed in
behalf of said City by authority of its governing body, and said officials acknowledged said
instrument to be executed for the purposes therein stated as the free act and deed of said City.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the
day and year last above written.
Notary Public— State of Missouri
Commissioned in County
(SEAL)
My commission expires:
2
' 1 i
ACKNOWLEDGMENT
STATE OF MISSOURI )
COUNTY OF ST. LOUIS )
On this day of , 20_, before me, the undersigned, a Notary Public in
and for said State, appeared , to me personally known, who, being by me
duly sworn, did say that s/he is the of DRURY DEVELOPMENT
CORPORATION, a Missouri corporation, and that said instrument was signed and sealed in
behalf of said corporation by authority of its Board of Directors, and said officer acknowledged
said instrument to be executed for the purposes therein stated as the free act and deed of said
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the
day and year last above written.
Notary Public— State of Missouri
Commissioned in County
(SEAL)
My commission expires:
3
ACKNOWLEDGMENT
STATE OF MISSOURI )
COUNTY OF ST. LOUIS )
On this day of , 20_, before me, the undersigned, a Notary Public in
and for said State, appeared , to me personally known, who, being by me
duly sworn, did say that s/he is the of DRURY LAND
DEVELOPMENT, INC., a Missouri corporation, and that said instrument was signed and sealed
in behalf of said corporation by authority of its Board of Directors, and said officer
acknowledged said instrument to be executed for the purposes therein stated as the free act and
deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the
day and year last above written.
Notary Public— State of Missouri
Commissioned in County
(SEAL)
My commission expires:
legal\Amendment\Agreement\Development—Cape Girardeau—Academy(2)\1s1\09.26.12
Appendix A
PROJECT: CONTRACT:
Cape West Business Park, Development Agreement with the City and County
including Academy Outdoor+ Sports of Cape Girardeau, Missouri dated June 21, 2004,
as amended (the "Agreement")
TO OWNER:
Drury Development Corporation
721 Emerson Road, Suite 200
St. Louis, Missouri 63141
PROJECT OR PORTION OF THE PROJECT DESIGNATED FOR OCCUPANCY OR
USE SHALL INCLUDE:
Construction of the Phase 2 Public Improvements, as such term is described in the Agreement.
The Work performed under the Agreement has been reviewed and found, to the undersigned's
best knowledge, information and belief, to be substantially complete. Substantial Completion is
the state in the progress of the Work when the Work or designated portion is sufficiently
complete in accordance with the Agreement so that the Owner can occupy or utilize the Work for
its intended use. The date of Substantial Completion of the Project or portion designated above
is the date of issuance established by this Certificate, which is also the date of commencement of
applicable warranties required by the Agreement, except as stated below:
GENERAL CONTRACTOR By: DATE OF ISSUANCE
Cost estimate of Work that is incomplete:
The Owner accepts the Work as substantially complete.
DRURY DEVELOPMENT CORPORATION
OWNER By: Date
legal\Amendment\Agreement\Development—Cape Girardeau—Academy(2)\1s1\09.26.12
EXHIBIT F
Form of Certificate of Reimbursable Costs
Certificate of Reimbursable Costs
TO:
City of Cape Girardeau
401 Independence Street
Cape Girardeau, Missouri 63701
Attn: City Manager
Re: Phase 2 Reimbursable Costs under Development Agreement dated June 21, 2004
Terms not otherwise defined herein shall have the meaning ascribed to such terms in the
Development Agreement dated as of June 21, 2004, as amended (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 Phase 2 Reimbursable Cost and was
incurred in connection with the construction of the Phase 2 Public Improvements.
2. These Phase 2 Reimbursable Costs have been paid by Drury Development
Corporation and are reimbursable under the Development Agreement.
3. Each item listed on Schedule 1 has not previously been paid or reimbursed from
money derived from Phase 2 Available Revenues, and no part thereof has been included in any
other certificate previously filed with the City.
4. There has not been filed with or served upon Drury Development Corporation 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 Development Agreement.
6. If any cost item to be reimbursed under this Certificate is deemed not to constitute
a Phase 2 Reimbursable Cost within the meaning as defined in the Development Agreement,
Drury Development Corporation shall have the right to substitute other Phase 2 Reimbursable
Costs for payment as provided in the Development Agreement.
2
Dated this day of , 20
DRURY DEVELOPMENT CORPORATION
By:
Name:
Title:
Approved for Payment this day of 20_, pursuant to the Development
Agreement.
CITY OF CAPE GIRARDEAU, MISSOURI
By:
Name:
Title:
3
w -�
�T�. ���
AMENDMENT TO DEVELOPMENT AGREEMENT �� ��_;a
THIS AMENDMENT TO DEVELOPMENT AGREEMENT (this "
made and entered into as of this �day of (jr�,�� , 2012, by and betwe
CAPE GIRARDEAU, MISSOURI, a home rule city organized and existing und� .=r �.________ __ __ _
State of Missouri and located in Cape Girardeau County (the "City") and the COUNTY OF
CAPE GIRARDEAU, MISSOURI (the "County") and DRURY DEVELOPMENT
CORPORATION, a Missouri corporation ("DDC"), and DRURY LAND DEVELOPMENT,
INC., a Missouri corporation ("DLD"), DDC and DLD being collectively referred to herein as
"Developer"or"Drury").
WITNESSETH
WHEREAS, on June 21, 2004, the City, the County, and DLD entered into a
Development Agreement, as amended by a Change Order to Amend Development Agreement
dated November 10, 2005 (the "November 2005 Change Order") and a letter agreement from
DLD dated August 10, 2006 and accepted by the City and County on August 17, 2006 (the
"August 2006 Letter Agreement")(as amended, the "Development Agreement"), whereby DLD
agreed to develop a portion of certain real property within the City and County consisting of
approximately sixty (60) acres of land in the Cape West Business Park, as more particularly
described on Exhibit A attached to the Development Agreement (the "Property"), and the City
and the County agreed to reimburse DLD for a portion of the cost of certain Public
Improvements constructed by DLD within the Property which will inure to the benefit of the
City and the County and the citizens thereof; and
WHEREAS, prior to the execution of the Development Agreement, Kohl's Department
Store, Inc. proposed to build an approximate 80,000 to 100,000 square foot Kohl's Store (the
"Kohl's Store") on land within the Property, which store was constructed in 2005; and
WHEREAS, in conjunction with the construction of the Kohl's Store, DLD constructed
certain roads, utilities, systems and other public infrastructure as more particularly described in
the Development Agreement, which comprise the"Original Public Improvements"; and
WHEREAS, the Original Public Improvements have been completed by the Developer,
accepted by the City and the County, approved for payment, and reimbursement of the
Reimbursable Costs incurred in connection with the Original Public Improvements has
commenced; and
WHEREAS, Academy Ltd. ("Academy")proposes to build and operate an approximately
70,000 to 75,000 square foot retail store (the "Academy Store") to be located on certain land
owned by DDC within the Property, being more particularly described on Exhibit A attached
hereto and incorporated herein by reference (the "Academy Property"); and
WHEREAS, in conjunction with the construction of the Academy Store, Developer
desires to construct certain utilities systems, drive aisles, parking areas and other public
infrastructure and improvements on the Property, as more particularly set forth in Exhibit B
attached hereto (the "Phase 2 Public Improvements", which together with the Original Public
Improvements comprise the "Public Improvements"), in order to facilitate retail development of
legal\Amendment�.4greement\Development—Cape Girardeau—Academy(2)\isl\09.26.12
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the Property, all of which will enhance the tax base of the City and the County to the benefit of
the City, the County and other governmental entities; and
WHEREAS, the City and the County have determined that it is essential to the economic
and social welfare of the City and the County to promote the economic vitality of the community
by assuring opportunities for development and sound and stable commercial growth; and
WHEREAS, the Phase 2 Public Improvements will provide significant economic benefits
to the City, the County, and other taxing subdivisions wherein the Property is located through the
creation of real estate tax and sales tax revenue; and
WHEREAS, the City and the County are authorized pursuant to Section 70.220 of the
Revised Statutes of Missouri, as amended, to contract for the planning, development and
construction of any public improvement or facility and the City and the County are further
authorized pursuant to Section 349.012 of the Revised Statutes of Missouri, as amended, to
expend City and County funds to promote commercial and industrial development; and
WHEREAS, in connection with the construction of the Phase 2 Public Improvements,
Developer has incurred and will incur additional significant costs and the City and the County
have agreed, subject to the terms of the Development Agreement, as amended hereby, to
reimburse Developer for a portion of the cost of the Phase 2 Public Improvements, which will
inure to the benefit of the City and the County and the citizens thereof; and
WHEREAS, the City, the County, and Developer desire to amend the Development
Agreement to expand the description of the Public Improvements originally set out in the
Development Agreement to include the Phase 2 Public Improvements and to otherwise amend
the Development Agreement on the terms and conditions contained herein; and
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereby agree as follows:
1. Definitions. For purposes of this Amendment, in addition to definitions appearing
in the Development Agreement and elsewhere in this Amendment, words used in this
Amendment shall have the following meanings:
"Academy Store" means an Academy Sports + Outdoors Store of approximately 70,000
to 75,000 net leasable square feet or other Academy Store of comparable size and quality
reasonably acceptable to the City and the County and located on the Property in accordance with
the Development Agreement
"Annual Administrative CosP' means in each year an amount equal to two percent (2%)
of the Sales Taxes received as of a Payrnent Date and assessed as of such Payment Date to be
paid to the City and County based on the amount of their respective Sales Taxes.
"Approving Ordinances" means City Ordinance No. '���1 adopted and approved on
(��n,�,� 15 , 2012 approving this Amendment.
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"Construction Plans" means plans, drawings, specifications, and related documents for
the construction of the Phase 2 Public Improvements, together with all supplements, amendments
or corrections thereto, submitted by or on behalf of Developer and approved by the City or other
applicable governmental authority in accordance with applicable law and the Development
Agreement.
"Finance Director" means the duly appointed and serving Director of Finance of the
City.
"Phase 2 Available Revenues" means 100% of the revenues actually received by the City
from City Sales Taxes (as defined herein) generated from any business operations located on the
Academy Property and 100% of the revenues actually received by the County from County Sales
Taxes (as defined herein) generated from operations located on the Academy Property, in excess
of the Sales Tax Base. "City Sales Taxes" means the equivalent of the amount of collections of
levies of the 0.25% capital improvements water sales taxes, the 0.25% capital improvements
sewer sales taxes and fifty percent (50%) of the 0.50% transportation sales taxes (so long as such
levies remain in force and effect, and from any extensions of those sales taxes), and "County
Sales Taxes" means the equivalent of the amount of collections of levies of fifty percent (50%)
of the County's existing 0.5% sales tax ("County Sales Taxes"), all generated by economic
activities occurring on the Academy Property, in excess of the Sales Tax Base. City Sales Taxes
and County Sales Taxes are collectively referred to as "Sales Taxes". If any of the Sales Taxes
lapse (for any reason ) during the Term, then "Phase 2 Available Revenues" shall mean the
equivalent of the amount of collections of levies from any similar purpose sales taxes currently
existing or later imposed by the City or County which is legally permitted to be used to pay the
Phase 2 Reimbursable Costs.
"Phase 2 Concept Property Plan" means the plan sheet attached as Exhibit C and
incorporated by reference in the Development Agreement, depicting the conceptual plan for the
Phase 2 Public Improvements and the Phase 2 Development in accordance with this Amendment.
"Phase 2 Development" means the construction on the Property of the Academy Store or
similar regional retail facilities reasonably acceptable to the City and the County, and related
Phase 2 Public Improvements.
"Phase 2 Payment Date" means the forty-fifth (45`h) day following the conclusion of
each calendar quarter (i.e., February 15, May 15, August 15, and November 15) commencing on
the last day of the calendar quarter after the date on which DLD has received the Total Amount
of Reimbursable Costs due to DLD for the Original Public Improvements pursuant to the
Development Agreement, but in no event earlier than the date of commencement of retail
operations from the Phase 2 Development on the Property.
"Phase 2 Public Improvements" means those certain utility systems, drive aisles, parking
areas, infrastructure and improvements on the Property and other public improvements set forth
and described in the Phase 2 Concept Property Plan and more specifically set forth in Exhibit B,
attached to and incorporated by reference in this Amendment.
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"Phase 2 Reimbursable Costs" means those costs and expenses set forth and described in
Exhibit B, for which Developer is eligible for reimbursement in accordance with this
Amendment.
"Phase 2 Scheduled PaymenP'means all Phase 2 Available Revenues (less the applicable
Annual Administrative Cost) received by the City and County during the first 2 months of the
calendar quarter preceding the applicable Payment Date and during the last month of the
immediately preceding calendar quarter (i.e., March—May, June—August, September—November,
and December—February).
"Sales Tax Base"means revenues to be received by the City from collections of levies of
the 0.25% capital improvements water sales taxes, the 0.25% capital improvements sewer sales
taxes, and fifty percent (50%) of the 0.50% transportation sales taxes, and revenues to be
received by the County from collections of levies of fifty percent (50%) of the County's existing
0.5% general sales tax, all on $2,500,000 in annual sales generated by economic activities; such
Sales Tax Base to be adjusted annually following the first Payment Date based on the then
applicable Consumer Price Index for All Urban Consumers, U.S. City Average — All Items,
published by the Bureau of Labor Statistics of the U.S. Department of Labor for the preceding one
year period,not to exceed four percent(4%)per annum.
"Sales Tax Funds" means separate segregated funds with the treasury of the City and of
the County, into which the Sales TaY Revenues are from time to time deposited in accordance
with this Amendment.
"Third Party Action" means any action, proceeding or demand initiated by a party other
than a party to the Development Agreement and directed to the City or the County or naming the
City or the County as a party, but only those actions proceedings or demands which arise out of
the Development Agreement (as amended by this Amendment) and result from the negligence or
intentional misconduct of Developer.
"Total Phase 2 Reimbursable Amount" means an amount equal to the verified
Reimbursable Costs actually incurred by Developer in accordance with this Amendment up to a
maximum aggregate amount of Three Million Dollars and 00/100 cents ($3,000,000.00).
The word "Term" as used in the Development Agreement is hereby amended to mean the
time period commencing with the full execution of the Development Agreement and ending
upon the earlier of: (i) the date on which Developer has received the Total Phase 2 Reimbursable
Amount or (ii) termination of the Development Agreement under Sections 6.1 or 6_2 of the
Development Agreement; or(iii) fifteen(15) years following the Phase 2 Commencement Date.
2. Completion of Original Public Improvements. The parties hereby agree and
acknowledge that, as of the date of this Amendment, Developer has timely performed its
obligations under the Development Agreement, including but not limited to the following:
a. delivered to the City and the County a Notice of Commencement of Construction;
b. completed construction of the Original Public Improvements in accordance with
applicable federal, state or local ordinances, laws, regulations and codes;
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c. furnished to the City a Certificate of Substantial Completion dated April 12, 2006
which was accepted by the City on July 6, 2006;
d. furnished to the City a Certificate of Reimbursable Costs dated April 12, 2006
which was approved for payment by the City on July 6, 2006;
e. furnished to the City a Certificate of Substantial Completion dated June 21, 2007
(relating to Kell Farm Drive) which was accepted by the City on October 16, 2007; and
f. furnished to the City a Certificate of Reimbursable Costs dated June 21, 2007
(related to Kell Farm Drive)which was approved for payment by the City on October 16, 2007.
3. Representations and Warranties.
a. Representations and Warranties of Developer. Each of DDC and DLD represent
and warrant to the City and the County as follows:
(i) Organization. Each of DDC and DLD is a corporation duly organized,
validly existing and in good standing under the laws of the State of Missouri.
(ii) Power and Authority. Each of DDC and DLD has full power and
authority to execute and deliver this Amendment and to perform all of its agreements,
obligations and undertakings under this Amendment.
(iii) Authorization and Enforceability. The execution, delivery and
performance of this Amendment have been duly and validly authorized by all necessary
actions by Developer. This Amendment is a legal, valid and binding agreement,
obligation and undertaking of Developer, enforceable against Developer in accordance
with its terms, except as enforcement hereof maybe limited by applicable bankruptcy,
reorganization, insolvency or similar laws affecting creditor's rights as may from time to
time be in effect.
(iv) Further Consents and Approvals. No consent or approval by any other
entity, whether or not affiliated with Developer, is required in connection with the
execution and delivery by Developer of this Amendment or the performance by
Developer of Developer's obligations under this Amendment.
b. Representations and Warranties of the Citv. The City hereby represents and
warrants to DDC and DLD as follows:
(i) Organization and Standing. The City is home rule city duly organized
under the laws of the State of Missouri.
(ii) Power and Authority. The City has full power and authority to execute
and deliver this Amendment and to perform all of its agreements, obligations and
undertakings under this Amendment.
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(iii) Authorization and Enforceabiliry. The execution, delivery and
performance of this Amendment have been duly and validly authorized by all necessary
action on the part of the City. This Amendment is a legal, valid and binding obligation of
the City, enforceable against the City in accordance with its terms, except as enforcement
hereof may be limited by applicable bankruptcy, reorganization, insolvency or similar
laws affecting creditor's rights as may from time to time be in effect.
(iv) Governmental Consents and Approvals. No consent or approval by any
other governmental authority is required in connection with the execution and delivery by
the City of this Amendment or the performance by the City of the City's obligations
hereunder.
c. Representations and Warranties of the Countv. The County hereby represents and
warrants to DDC and DLD as follows:
(i) Organization and Standing. The County is a first-class county duly
organized under the laws of the State of Missouri.
(ii) Power and Authority. The County has full power and authority to execute
and deliver this Amendment and to perform all of its agreements, obligations and
undertakings under this Amendment.
(iii) Authorization and Enforceability. The execution, delivery and
performance of this Amendment have been duly and validly authorized by all necessary
action on the part of the County. This Amendment is a legal, valid and binding
obligation of the County, enforceable against the County in accordance with its terms,
except as enforcement hereof may be limited by applicable bankruptcy, reorganization,
insolvency or similar laws affecting creditor's rights as may from time to time be in
effect.
(iv) Governmental Consents and Approvals. No consent or approval by any
other governmental authority is required in connection with the execution and delivery by
the County of this Amendment or the performance by the County of the County's
obligations hereunder.
4. Construction of Phase 2 Development and Public Improvements.
a. Article III of Development Agreement. Sections 3.1 through and including
Section 3.16 of the Development Agreement shall not apply to the Phase 2 Development or
Phase 2 Public Improvements.
b. Developer to Pay Certain Costs. Developer agrees to pay all costs as necessary to
cause to be completed the Phase 2 Public Improvements in accordance with the Phase 2 Concept
Property Plan, all subject to Developer's right to terminate this Amendment as set forth in
Section 7 of this Amendment.
c. Ownership of PropertX. Developer hereby represents and warrants to the City and
the County that as of the date of this Amendment, Developer owns or is legally entitled to
exercise control over (whether by virtue of purchase option contracts or ownership in fee by
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affiliate entities of Developer or otherwise) all of the Academy Property and such other real
property necessary for Developer to construct or cause to be constructed the Phase 2 Public
Improvements as depicted on the Phase 2 Concept Property Plan. Developer shall obtain all title
commitments, inspections, tests, surveys and reports, if any, hire and retain all experts,
professionals, including attorneys or engineers, and staff, if any, and shall advance all acquisition
costs as necessary, if any, to control the Academy Property and such other real property as is
necessary for Developer to construct or cause to be constructed the Phase 2 Public
Improvements.
d. Developer's Right to Transfer the PropertX. Developer may divide interests or
estates in the Academy Property and reserves the right to sell, assign, transfer, lease, mortgage
and convey any part of or interest in the Academy Property, to any person, corporation,
partnership, public authority, joint venture or other entity, including, without limitation, any
affiliate of the Developer either before or after completion of the Phase 2 Public Improvements
or the Phase 2 Development as provided herein. All such transfers prior to completion of the
Phase 2 Public Improvements and the Phase 2 Development, however, shall be subject to the
requirements of this Amendment to complete the Phase 2 Public Improvements and the Phase 2
Development with respect to such real property. Any transferee or successor in interest in the
Academy Property or any portion thereof shall agree in writing to assume the obligations of this
Amendment with respect to the portion of real property or interest so transferred. Developer
agrees to notify the City and the County in writing of any proposed sale,transfer or other disposition
of fee title to any parcel of real property located within the Academy Property or any portion thereof
not less than ten(10) days prior to the date of closing of said sale,transfer or other disposition. Said
notice shall specify the name and address of the person so acquiring any or all of the fee title to such
parcel or portion thereof and shall identify such parcel or portion to be sold, transferred or otherwise
disposed,whether by voluntary transfer or otherwise.
e. Governmental Approvals; Commencement of Construction. Developer shall
submit or cause to be submitted Construction Plans and shall apply or cause to be applied for
building permits and other applicable Governmental Approvals as required to construct the Phase
2 Public Improvements. All Construction Plans for the Phase 2 Public Improvements shall be
prepared by a professional engineer or architect licensed to practice in the State of Missouri and
shall be in sufficient completeness and detail to show that all aspects of construction will be in
conformance with the Phase 2 Concept Property Plan and this Amendment and with all applicable
City codes, ordinances and regulations and in accordance with applicable law and with the
provisions of this Amendment. Developer sha11 diligently pursue or cause to be pursued all
applicable Governmental Approvals for each element of the Phase 2 Public Improvements and the
Phase 2 Development 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 Amendment and with the laws of the State of Missouri;provided
that nothing in this Amendment 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. In the event the City shall reject such Construction Plans or any portion thereof,
such rejection shall specify any and all deficiencies in the Construction Plans relating to lack of
general conformance with this Amendment or with applicable City codes, ordinances and
regulations. In the event of the City's disapproval of any such Construction Plans or portions
thereof, such disapproval shall be in writing and shall specify the basis for the disapproval.
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Within thirty(30) days after the date Developer receives written notice of the City's disapproval
of plans referred to in the latest such notice, Developer shall submit or cause to be submitted new
or corrected Construction Plans. The provisions of this Section 4(e) relating to approval,
rejection and resubmittal of such Construction Plans shall continue to apply to resubmittal of
corrected Construction Plans until such Construction Plans have been approved by the City. In
the event the Construction Plans are not approved by City within sixty (60) days following
Developer's initial submission of the Construction Plans, Developer may, in Developer's sole
discretion, elect to terminate this Amendment. Developer shall ensure that all construction by or
on behalf of Developer or its agents, affiliates or independent contractors in connection with the
Phase 2 Public Improvements shall be performed in a good and workmanlike manner and in
conformity with the Construction Plans therefor as finally approved by the City. Within sixty
(60) days after Developer's commencement of construction of the Phase 2 Public Improvements,
Developer shall provide to the City a Notice of Commencement of Construction in the form of
Exhibit D attached hereto and incorporated herein by reference, which shall serve as notice to the
City that Developer is commencing the construction of the Phase 2 Public Improvements in
accordance with the terms of this Amendment.
f. Construction Schedule. Developer shall complete construction of the Phase 2
Public Improvements and each of Developer's obligations under this Amendment with respect to
the construction and completion of the Phase 2 Public Improvements, and shall use diligent
efforts to cause the Phase 2 Development to be completed within twenty-four (24) months
following the later of the execution of this Amendment and the recording of the Approving
Ordinance. Developer shall complete the Phase 2 Public Improvements prior to the issuance of a
final occupancy permit by the City for the Phase 2 Development. Developer understands and
acknowledges that the issuance by the City of an occupancy permit far any Phase 2 Development
on the Property may be additionally conditioned upon the satisfactory substantial completion of
the Phase 2 Public Improvements in accordance with Construction Plans as finally approved by
the City in accordance with this Amendment.
g. Construction Contracts. In constructing or causing the construction of the Phase 2
Public Improvements Developer may enter into or cause to be entered into one or more construction
contracts to complete and install the Phase 2 Public Improvements. Prior to the commencement of
construction, Developer shall obtain, or shall ensure that any contractor engaged to perform the
Phase 2 Public Improvements obtains worker's compensation, comprehensive public liability
and builder's risk insurance coverage in amounts set forth in Section 4(h) of this Amendment and
shall use commercially reasonable efforts to ensure that all such insurance coverages are maintained
by any such contractor for the duration of the construction of the Phase 2 Public Improvements.
Prior to commencement of construction or simultaneously with the execution and delivery of this
Amendment by Developer, whichever is later, Developer shall deliver to the City and the County
evidence of all insurance to be maintained by such contractor as required by Section 4(h). To the
full extent that competitive bidding and award requirements (including, without limitation, those
requirements imposed by the City or the County pursuant to City or County ordinances or practices)
and prevailing wage or other wage and hour statutes or requirements, or requirements to obtain
payment bonds including, without limitation, a performance and payment bond in conformance
with Section 107.170 of the Revised Statutes of Missouri, as amended, apply to any portion of the
Phase 2 Public Improvements, Developer covenants and agrees to take all such acrions as are
necessary to comply with such laws, regulations or requirements and to indemnify, defend and hold
harmless the City, the County and their respecrive officials, officers, employees and agents from any
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actions, causes, proceedings, awards, costs, liabilities, damages or expenses, including attorneys'
fees, arising out of Developer's failure to comply with such requirements. The foregoing
indemnification and defense obligations of Developer set forth in this paragraph shall survive
termination of the Development Agreement for any reason. Conformance with the foregoing
provisions shall be a condition precedent for any payrnents of reimbursements to Developer
under this Amendment.
h. Insurance. Developer shall cause there to be insurance as hereinafter set forth at
all times during the process of constructing the Phase 2 Public Improvements and from time to
time at the request of the City or the County, shall furnish the City and the County with proof of
coverage on:
(i) Builder's risk insurance, written on the so called "Builder's Risk—Completed Value
Basis," in an amount equal to one hundred percent (100%) of the insurable value of
the Phase 2 Public Improvements, and with coverage available in non-reporting
form on the so-called "all risk" form of policy. To accomplish the above required
limits, an umbrella liability policy may be used;
(ii) Comprehensive general liability insurance (including operations, contingent
liability, operations of subcontractors, competed operations and contractual
liability insurance) together with an owner's contractor's policy, with limits
against bodily injury and property damage of not less than Two Million Dollars
($2,000,000) for each occurrence and Three Million Dollars ($3,000,000) in the
aggregate. To accomplish the above required limits, an umbrella excess liability
policy may be used;
(iii) Workers' compensation insurance, with statutorily required coverage; and
(iv) Flood insurance if the Academy Property or any portion thereof is determined to be
in located in a flood hazard area.
The policies of insurance required pursuant to clauses (i) and (ii) above shall be in a
commercially reasonable form and shall be placed with financially sound and reputable insurers
licensed to transact business in the State of Missouri. The policy of insurance delivered pursuant
to clauses (i), (ii) and (iv)(if applicable) shall name each of the City and the County as an additional
insured.
i. Inspections. Developer shall allow authorized representatives of the City and the
County access to the Academy Property from time to time upon reasonable advance notice prior to
the completion of the Phase 2 Development and the Phase 2 Public Improvements for reasonable
inspection thereof.
j. Phase 2 Concept Propertv Plan. The Phase 2 Concept Property Plan set forth in
Exhibit C to this Amendment is hereby approved by the City and the County. During the
progress of the Phase 2 Development and the construction of the Phase 2 Public Improvements,
Developer may make changes to the Phase 2 Concept Property Plan or any aspect thereof, as site
conditions or other issues affecting constructability may dictate to assure expeditious
undertaking of the Phase 2 Public Improvements and the Phase 2 Development or as may be
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required to meet the reasonable requests of prospective tenants or owners; provided, however,
that any such change shall comply with all applicable laws of the City and the County, and State
of Missouri, and provided further that Developer may not make any change to the Construction
Plans without the consent of the City as may be required by applicable law, which consent shall
not be unreasonably withheld or delayed.
k. Certificate of Substantial Completion. Promptly after substantial completion of
all of the Phase 2 Public Improvements in accordance with the provisions of this Amendment,
Developer shall furnish to the City a Certificate of Substantial Completion so certifying, in the
form attached hereto as Exhibit E and incorporated herein by reference. The City shall,
following delivery of the Certificate of Substantial Completion, carry 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 Phase 2 Public Improvements during the
course of construction, the City shall notify Developer if the City observes any improperly
performed work that would prevent the City from approving the Certificate of Substantial
Completion;provided that failure of the City to so notify Developer shall not relieve Developer
of Developer's obligation to construct and complete all of the Phase 2 Public Improvements in
accordance with applicable State and local law and the provisions of this Amendment. If the
City finds the Certificate of Substantial Completion unacceptable, the City shall, within thirty
(30) days after receipt of the Certificate of Substantial Completion, provide to Developer a
written statement stating in adequate detail in what respects Developer has failed to complete the
Phase 2 Public Improvements in accordance with this Amendment, or in what respects
Developer is otherwise in default hereunder. Drury shall have a reasonable period of time to
complete or correct such items or to take such action described in the City's written statements;
and Developer 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,
Developer may record the 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 Developer's agreements and covenants to satisfactorily complete the Phase 2 Public
Improvements under this Amendment. The City's failure to object in writing to the Certificate of
Substantial Completion as described above within thirty (30) days after delivery thereof to the
City shall be deemed acceptance by the City. Developer shall maintain or cause to be
maintained the Phase 2 Public Improvements, during construction and after substantial
completion in a first class condition and workmanlike manner.
l. Warrantv. Developer shall obtain from its contractor(s) warranties that each of
the Phase 2 Public Improvements (other than on-site grading), will be free from defects for a
period of not less than two (2) years from the date completed by Developer.
5. Reimbursement.
a. Article IV of the Development Agreement. Article IV of the Development
Agreement shall not apply to the Phase 2 Development or the Phase 2 Public Improvements.
b. Developer's Funding of Phase 2 Public Improvements. Developer shall advance
all amounts necessary to complete the Phase 2 Public Improvements in accordance with this
Amendment.
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c. Reimbursement. Upon acceptance by the City of the Certificate of Substantial
Completion for the Phase 2 Public Improvements, the City and the County shall reimburse
Developer far the Phase 2 Reimbursable Costs actually incurred by Developer in connection
with construction of the Phase 2 Public Improvements, up to the Total Phase 2 Reimbursable
Amount, with the Scheduled Payments beginning on the first Payment Date and ending on the
Payment Date prior to the end of the Term of the Development Agreement (as amended by this
Amendment).
d. Reimbursements Limited to Verified Reimbursable Costs. Nothing in this
Amendment shall obligate the City or the County to reimburse Developer for any portion of the
Phase 2 Reimbursable Costs that are not actually incurred in accordance with this Amendment
and that do not qualify as a Phase 2 Reimbursable Cost under this Amendment. Further, nothing
in this Amendment shall obligate the City or the County to reimburse Developer for any portion
of the Phase 2 Reimbursable Costs unless Developer shall first provide to the City and the
County a Certificate of Reimbursable Costs in the form attached hereto as Exhibit F
accompanied by, in each case: (i) copies of invoices for the amounts for which reimbursement is
sought; and (ii) sufficient detail or explanation to enable the City and the County to determine
the type of improvement or expenditure for which such reimbursement is sought. The City and
the County shall review each such Certificate of Reimbursable Costs and accompanying
materials within thirty (30) days after such submittal;provided that the City and the County each
reserves the right to request an itemized accounting or other information, if any, reasonably
necessary to enable the City and the County to determine that any such cost was incurred in
connection with the Phase 2 Public Improvements and is among the approved Phase 2
Reimbursable Costs identified on Exhibit B attached hereto. If the City or th� County
disapproves any cost item on the Certificate of Reimbursable Costs, the reason for disapproval
shall be set forth in writing, and Developer shall submit such additional information as may be
required.
e. Developer's Right to Substitute. The Parties acknowledge that each of the costs
listed in Exhibit B to this Amendment constitute Phase 2 Reimbursable Costs under this
Amendment. No payment shall be made for any item of Phase 2 Reimbursable Costs in an
amount greater than that corresponding amount listed and attributed to such item on Exhibit B;
provided, however, in the event that any cost included in a Certificate of Reimbursable Costs is
determined not to be a Phase 2 Reimbursable Cost eligible for reimbursement and payment
pursuant to this Amendment, Developer shall have the right to substitute other Phase 2
Reimbursable Costs such that the aggregate of all Phase 2 Reimbursable Costs for the Phase 2
Public Improvements may equal but shall not exceed the Total Phase 2 Reimbursable Amount.
In no event shall the total amounts reimbursed to Developer hereunder for the Phase 2 Public
Improvements exceed the Total Phase 2 Reimbursable Amount.
f. City's and Countv's Obli�ations Limited to Phase 2 Available Revenues.
Notwithstanding any other term or provision of this Amendment, the amount of Phase 2
Reimbursable Costs reimbursed to Developer under this Amendment shall be payable only from
Phase 2 Available Revenues and from no other source whatsoever.
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6. Collection and Payrnent of Reimbursable Costs.
a. Article V of the Development A�reement. Article V of the Development
Agreement shall not be applicable to any payments made or amounts due by the City and/or
County to Developer in connection with the Phase 2 Development.
b. Establishment of the Sales Tax Fund; Accountin�. On or before the last day of
the calendar quarter after the date on which DLD has received the Total Amount of
Reimbursable Costs due to DLD in connection with the Original Public Improvements (the
"Phase 2 Commencement Date"), the City shall to cause the Finance Director to create the Sales
Tax Fund. Thereafter, for the Term of the Development Agreement (as amended by this
Amendment), in each year the City and the County shall deposit Phase 2 Available Revenues
(less any amounts retained by the Missouri Department of Revenue for administration costs or
amounts held as under dispute) as received into the Sales Tax Funds, to be used and applied first
to pay applicable Annual Administrative Costs on any Payment Date; and second to
reimbursement payrnents to Developer in accordance with Section 6(c) of this Amendment.
Prior to each Payment Date during Phase 2 of the Development Agreement (as amended by this
Amendment), until the Total Phase 2 Reimbursable Amount has been reached and paid to
Developer, the City and the County shall prepare and deliver to Developer a written report of the
amount of Phase 2 Available Revenues deposited into and expended from the Sales Tax Funds
for the quarterly period immediately preceding and the total amount of Phase 2 Available
Revenues deposited to date.
c. Disbursement of Available Revenues. On each Payment Date during Phase 2 of
the Term, the City and the County, each subject to annual appropriation as described in Section
6(d) below), shall remit to Developer the Phase 2 Available Revenues deposited in the Sales Tax
Funds less amounts representing the applicable Annual Administrative Costs in a total amount
up to the Total Phase 2 Reimbursable Amount payable under this Amendment (the "Phase 2
Scheduled Payments"). The Phase 2 Scheduled Payments shall be payable on each Phase 2
Payment Date during the Term, or if such day is not a business day, the first business day
thereafter. In no event shall Developer be entitled to any amount for the cost of the Phase 2
Public Improvements in excess of the Total Phase 2 Reimbursable Amount and, in the event the
Total Phase 2 Reimbursable Amount has been disbursed to Developer during any year of the
Term, the Development Agreement shall terminate and no Party shall have any further obligation
to any other Party hereunder (other than indemnification obligations expressly surviving such
termination).
d. Annual Appropriation. The obligations of the City and the County to make the
payments hereunder constitute a current expense of the City and the County, are from year to
year, in each such year shall be subject to annual appropriation in accordance with the City's and
the County's customary practices for such decisions, and shall not constitute a mandatory
payment obligation of the City or the County in any fiscal year beyond the then current fiscal
year of the City or the County. The City's and the County's obligations hereunder shall not in
any way be construed to be a debt of the City or the County in contravention of any applicable
constitutional or statutory limitation or requirement concerning the creation of indebtedness by
the City or the County nor shall anything contained herein constitute a pledge of the general
credit, tax revenues, funds or moneys of the City or the County. Subject to the terms of the
12
Development Agreement (as amended by this Amendment), the City and the County reasonably
believe that legally available funds in an amount sufficient to make all payments during the Term
of the Development Agreement (as amended by this Amendment) can be obtained.
Notwithstanding the foregoing, the decision whether or not to budget or appropriate funds for
any subsequent fiscal year is solely within the discretion of the then current governing bodies of
the City and the County.
7. Termination Ri ts.
a. Article VI of the Development Agreement. Sections 6.1 and 6.2.1 of the
Development Agreement are hereby deleted and of no further force or effect.
b. Developer's Right of Termination. At any time prior to the delivery of the
Certificate of Substantial Completion for the Phase 2 Public Improvements, Developer may, by
giving written notice to the City and the County, abandon or discontinue the construction and
terminate the portions of the Development Agreement which relate solely to the Phase 2
Development if Developer determines, in Developer's sole discretion, that the construction of the
Phase 2 Public Improvements is no longer economically feasible. Upon such termination, (i) the
City and the County shall have no obligation to reimburse Developer for any amounts advanced
under this Amendment, or for work performed hereunder, or for costs otherwise incurred or paid
by Developer, and (ii) neither Developer nor the City nor the County shall have any further
obligation regarding the Phase 2 Public Improvements or this Amendment.
c. City's and County's Ri�ht of Termination. The City and the County may
terminate the portions of the Development Agreement that relate solely to the Phase 2
Development in the event that (i) Developer fails to complete the Phase 2 Public Improvements
in accordance with the requirements established in the Development Agreement (as amended by
this Amendment) or (ii) in the event the Academy Store fails to open for business on the
Property within twenty four(24) months following the full execution of this Amendment and the
recording of the Approving Ordinance. Upon such termination, which shall be effective upon
the giving of written notice by the City or the County, the City or the County, as the case may be,
shall have no further obligation to reimburse Developer for any amounts advanced under this
Amendment or costs otherwise incurred or paid by Developer or any other person or entity in
connection with the construction of the Phase 2 Public Improvements.
8. Miscellaneous.
� a. Notices. All notices, demands, requests, consents, approvals or other
communications or instruments required or otherwise given under this Amendment shall be in
writing, executed by the Party or an officer, agent or attorney of the Party, addressed to the
appropriate party at its address set forth below, or at such other address as such party shall have
last designated by notice to the other, and shall be deemed to have been effective as of the date of
actual delivery, if delivered personally, or one business day after deposited with a recognized
overnight carrier (such as Federal Express) for overnight delivery, or as of the third (3rd) day
from and including the date of posting, if mailed by registered or certified mail, return receipt
requested, with postage prepaid, provided, however, that if any such notice or other
communication shall also be sent by telecopy or fax machine, such notice shall be deemed given
at the time and on the date of machine transmittal if the sending party receives a written send
13
, �
verification on its machines and forwards a copy thereof by overnight delivery sent the day the
telecopy transmission is sent.
To Developer: Drury Development Corporation
721 Emerson Road, Suite 200
St. Louis, Missouri 63141
Attn: Jacqueline D. Pollvogt, General Counsel
Tel: (314) 423-6698
Fax: (314)423-0310
and
Drury Land Development, Inc.
721 Emerson Road, Suite 200
St. Louis, Missouri 63141
Attn: Jacqueline D. Pollvogt, General Counsel
Tel: (314) 423-6698
Fax: (314) 423-0310
To the City: City of Cape Girardeau
401 Independence Street
Cape Girardeau, Missouri
Attn: City Manager
Tel: (573) 339-6320
Fax: (573) 339-6302
To the County: Cape Girardeau County
One Barton Square
Jackson, Missouri 63755
Attn: County Commission
Tel: (573) 243-1052
Fax: (573) 243-6893
b. Force Majeure. No party to the Development Agreement (as amended by this
Amendment) shall be considered in breach or default of their respective obligations under the
Development Agreement (as amended by this Amendment), and the times for performance of
obligations hereunder shall be extended in the event of any delay caused by events of force
majeure including, without limitation, acts of God, fire or other casualty, strike, lockout or other
labor dispute, weather conditions, shortages or unavailability of material, labor or utilities, war,
terrorism, vandalism, failure of any third party to perform obligations, governmental, civilian or
military authority.
c. Third Partv Actions. Developer shall indemnify, defend and hold the City, the
County and their respective officials, agents, employees and representatives acting in any
capacity harmless from any Third Party Action. City, County and Developer each agree that so
long as no conflicts of interest exist between or among them, at Developer's option, the same
14
� f
attorney or attorneys may simultaneously represent the City, the County and the Developer in
any such proceeding. The indemnification obligations of Developer hereunder shall survive
termination of the Development Agreement for any reason. In no event shall either Party or any
official, agent, employee or representative of either of them have any liability to the other for
damages or otherwise in the event that all or any part of the Development Agreement (as
amended by this Amendment), shall be declared invalid or unconstitutional in whole or in part by
a final (as to which all rights of appeal have been exhausted or expired)judgment of a court of
competent jurisdiction, or if, as a result of initiation of a Third Party Action, Developer is
prevented from enjoying the rights and privileges of Developer hereunder.
d. Remedies; No Related Claims. Remedies available under this Amendment shall
be limited to equitable remedies including specific performance except as otherwise provided
herein. The Parties hereto agree that the City and the County shall have no liability in damages
or any other monetary liability (other than for amounts due to Developer from Available
Revenues or Phase 2 Available Revenues payable from time to time in accordance with the
Development Agreement (as amended by this Amendment)) to Developer or its successors,
assigns, heirs and personal representatives in respect of any suit, claim, or cause of action arising
out of the Development Agreement (as amended by this Amendment).
e. Multiple Counterparts. This Amendment may be executed in counterparts, each
of which shall be deemed to be an original and all of which shall together constitute one and the
same instrument.
f. Ratification. Except as amended and modified hereby, the Development
Agreement shall be and shall remain unchanged and in full force and effect in accordance with
its terms, and, as the Development Agreement is amended and modified hereby, the
Development Agreement is hereby ratified, adopted and confirmed. All provisions of the
Development Agreement shall be deemed to be amended consistent with the terms of this First
Amendment. All capitalized words used as defined terms in this First Amendment and not
otherwise defined herein shall have the meanings set forth in the Development Agreement.
g. Survival. The provisions of this Amendment shall survive the expiration of the
Term of the Development Agreement.
h. Computation of Time. Unless otherwise expressly provided herein, wherever the
Development Agreement (as amended by this Amendment) calls for the performance of any act
by reference to a day or number of days, to a month or number of months or to a year or number
of years, each such computation shall be made based upon calendar days, calendar months and
calendar years, as applicable.
15
, +
IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed by
their duly authorized officers as of the date set forth above.
�`" -,.���, ,�\
CITY OF CAPE RDEAU, MISSOURI
r�'c��
��' ,v C.� By.
I ��� �.
�'U � ;jy� . :.� i y Manager
�.
���SE�,�� �.,
,� ,.�,f
� �j -y ..
�r,,-_„.. ��, a,��-,�`'d
• ,�1 (g"��r
* �
City Clerk
CAPE GIRARDEAU COUNTY,MISSOURI
- �
_ - -- : By:
Presiding Commi sio r
(SEAL� -
Attest: -
`���,,�.P�„I��►��-
County Clerk
DRURY DEVELOPMENT CORPORATION
/��� �
By:
Timothy M. Drury, President
DRURY LAND DEVELOPMENT, INC.
By:
�
Timothy M. Drury, President
16
i �
EXHIBIT A
Legal Description of the Academy Property
A PART OF LOT NO. 2 OF COMMISSIONERS PLAT OF SUBDIVISION 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 PARTICUARLY DESCRIBED AS FOLLOWS:
Commencing at the southeast corner of lot no. 2 of Commissioners Plat of Subdivision of
U.S.P.S. No. 3090; Thence N OS° 11'48" E, 1,360.76 feet along the east line of said Lot 2 to the
southeast corner of a tract of land as recorded in the land records of the County Recorder's in
book no. 1187 at page no. 958 and the True Point of Beginning,
Thence leaving said right of way line and along the south line of said tract,
N 86 ° 19'40" W, 98.65 feet; Thence leaving said south line, S OS°38' 46" W, 41.89 feet;
Thence N 84°21' 14" W, 541.05 feet;
Thence S 37 °44' 06" W, 51.34 feet;
Thence N 84 °21' 14" W, 194.53 feet;
Thence N OS°38'46" E, 440.35 feet to a point on the south line of a tract of land as recorded in
the land records of the County Recorder's office in book no. 586 at page no. 95; Thence along
said south line, S 86 ° 19' 40" E, 858.97 feet to the southeast corner of said tract, said point being
on the westerly right of way line of Shirley Drive; Thence along said right of way line, S OS° 11'
48" W, 381.16 feet to the True Point of Beginning, containing 8.24 acres more or less.
(358,843.24 sq. ft.)
legal\Amendment�.4greement\Development—Cape Girardeau—Academy(2)\isl\09.26.12
� Y
EXHIBIT B
Phase 2 Public Improvements/Reimbursable Costs
ACADEMY SPORTS+OUTDOORS SITEWORK
Sitework-Prevailin Wa e
`General Conditions-su ervision coordination rmits ta fees $ 115,837.00
tempora facilities&utilities,field testin , la ut, etc.
"La out, stakin ,field testin &ins ections $ 28,203.00
'Earthwork- radin &com ction,erosion control,backfill $ 69,651.00
'Rock sta in area,access around buildin &from Shirle Drive&tem ora fenoe $ 55,694.00
*Concrete avin curb& utters sto si ns HC si ns $ 208 822.00
*Asphalt pavin , rock base,parki blocks&stripin $ 450,989.00
"Storm sewers&water retention $ 152,686.00
"Utilities-phone,water,sanitar ,fire main,temporar water to st i area $ 176,725.00
*Landsca in &irri ation $ 56,823.00
"Electric-Site li hti tem orar eledric to sta in area lon si n $ 129 260.00
'Civil En ineeri /Surve i /Testin $ 88 000.00
'Develo er Le al Fees $ 30,000.00
*Performance Bond $ 25,000.00
*Pr 'ect Contin enc $ 75,000.00
*Additional Bids Outstandin $ 75,000.00
TOTAL SITEWORK $ 1,662,690.00
`Rock allowance-rock&unsuitable soils removed/replaced on T&M basis $ 50,000.00
TOTAL with Rock Allowance $ 1,712,690.00
Iegal�Amendment�Agreement\Development—Cape Girardeau—Academy(2)\lsl\09.26.12
w r
EXHIBIT C
Phase 2 Concept Property Plan
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EXHIBIT D
Form of Notice of Commencement of Construction
The undersigned, being a duly authorized officer of Drury Development Corporation, a
Missouri corporation and Drury Land Development, Inc. (collectively"Developer"), delivers this
notice to the City and the County in connection with the Development Agreement dated as of
June 21, 2004, as amended (the "Agreement"). Capitalized terms not otherwise defined herein
shall have the meanings set forth in the Development Agreement.
The undersigned hereby certifies as to the following:
Developer owns a fee simple interest in all the Property necessary for the Phase 2 Public
Improvements, as described in Exhibit to the First Amendment to the Development
Agreement dated as
Developer has entered into an agreement with a Contractor ar Contractors to construct the Phase
2 Public Improvements.
Developer or its Contractor has obtained all necessary building permits to begin construction of
the Phase 2 Public Improvements.
This Notice of Commencement of Construction is being issued by Developer to the City in
accordance with the Development Agreement to evidence Developer's satisfaction of all
obligations and covenants with respect to commencement of construction of the Phase 2 Public
Improvements.
DRURY DEVELOPMENT CORPORATION
By:
Timothy M. Drury, President
DRURY LAND DEVELOPMENT, INC.
By:
Timothy M. Drury, President
legal�Amendment�Agreement�Development—Cape Girardeau—Academy(2)\Isl\09.26.12
� „ r
EXHIBIT E
Form of Certificate of Substantial Completion
CERTIFICATE OF SUBSTANTIAL COMPLETION
The undersigned, Drury Development Corporation, a Missouri corporation, pursuant to that
certain Development Agreement dated as of June 21, 2004, as amended,by and between the City of Cape
Girardeau, Missouri, the County of Cape Girardeau, Missouri, and Drury Development Corporation, and
Drury Land Development, Inc. (collectively, "Developer") (the"Agreement"), hereby certifies to the City
and the County as follows: Capitalized terms used ancl not defined in this Certificate shall have the
meanings ascribed to them in the Development Agreement.
1. That as of , 2013, the construction of the Phase 2 Public
Improvements has been substantially completed in accordance with the Development Agreement.
2. The construction of the Phase 2 Public Improvements has been performed in a
workmanlike manner and in accordance with the Phase 2 Concept Property Plan, subject to changes that
are permissible under the Development Agreement and changes that have been approved, if required,
under the Development Agreement.
3. This Certificate of Substantial Completion is accompanied by the architect's or owner
representative's certificate of substantial completion, a copy of which is attached hereto as Appendix A
and incorporated by reference, certifying that the Phase 2 Public Improvements have been substantially
completed in accordance with the Development Agreement.
4. This Certificate of Substantial Completion is being issued by Developer to the City in
accordance with the Development Agreement to evidence Developer's satisfaction of all material
obligations and covenants with respect to the Phase 2 Public Improvements under the Development
Agreement.
Upon such acceptance by the City, Developer 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 hand this day of
,20
DRURY DEVELOPMENT CORPORATION DRURY LAND DEVELOPMENT,INC.
By: By:
Timothy M. Drury,President Timothy M. Drury, President
ACCEPTED:
CITY OF CAPE GIRARDEAU,MISSOURI
By:
Name:
Title:
legal\Amendment�Agreement\Development—Cape Girardeau—Academy(2)\lsl\09.26.12
, „ ,
ACKNOWLEDGMENT
STATE OF MISSOURI )
)
COUNTY OF CAPE GIRARDEAU )
On this day of , 20_, before me, the undersigned, a Notary Public in
and for said State, appeared , to me personally known, who, being by me
duly sworn, did say that s/he is the City Manager of the CITY OF CAPE GIRARDEAU,
MISSOURI, a political subdivision of the State of Missouri, and that the seal affixed to the
foregoing instrument is the seal of said City, and that said instrument was signed and sealed in
behalf of said City by authority of its governing body, and said officials acknowledged said
instrument to be executed for the purposes therein stated as the free act and deed of said City.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the
day and year last above written.
Notary Public— State of Missouri
Commissioned in County
(SEAL)
My commission expires:
2
1 l� �'
ACKNOWLEDGMENT
STATE OF MISSOURI )
)
COUNTY OF ST. LOUIS )
On this day of , 20_, before me, the undersigned, a Notary Public in
and for said State, appeared , to me personally known, who, being by me
duly sworn, did say that s/he is the of DRURY DEVELOPMENT
CORPORATION, a Missouri corporation, and that said instrument was signed and sealed in
behalf of said corporation by authority of its Board of Directors, and said officer acknowledged
said instrument to be executed for the purposes therein stated as the free act and deed of said
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the
day and year last above written.
Notary Public—State of Missouri
Commissioned in County
(SEAL)
My commission expires:
3
� �� r
ACKNOWLEDGMENT
STATE OF MISSOURI )
)
COUNTY OF ST. LOUIS )
On this day of , 20_, before me, the undersigned, a Notary Public in
and for said State, appeared , to me personally known, who, being by me
duly sworn, did say that s/he is the of DRURY LAND
DEVELOPMENT, INC., a Missouri corporation, and that said instrument was signed and sealed
in behalf of said corporation by authority of its Board of Directors, and said officer
acknowledged said instrument to be executed for the purposes therein stated as the free act and
deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the
day and year last above written.
Notary Public—State of Missouri
Commissioned in County
(SEAL)
My commission expires:
legal\AmendmentWgreement\Development—Cape Girardeau—Academy(2)Usl\09.26.12
y z� s
Appendix A
PROJECT: CONTRACT:
Cape West Business Park, Development Agreement with the City and County
including Academy Outdoor+ Sports of Cape Girardeau, Missouri dated June 21, 2004,
as amended (the"AgreemenY')
TO OWNER:
Drury Development Corporation
721 Emerson Road, Suite 200
St. Louis, Missouri 63141
PROJECT OR PORTION OF THE PROJECT DESIGNATED FOR OCCUPANCY OR
USE SHALL INCLUDE:
Construction of the Phase 2 Public Improvements, as such term is described in the Agreement.
The Work performed under the Agreement has been reviewed and found, to the undersigned's
best knowledge, information and belief, to be substantially complete. Substantial Completion is
the state in the progress of the Work when the Work or designated portion is sufficiently
complete in accordance with the Agreement so that the Owner can occupy or utilize the Work for
its intended use. The date of Substantial Completion of the Project or portion designated above
is the date of issuance established by this Certificate, which is also the date of commencement of
applicable warranties required by the Agreement, except as stated below:
GENERAL CONTRACTOR By: DATE OF ISSUANCE
Cost estimate of Work that is incomplete: _
The Owner accepts the Work as substantially complete.
DRURY DEVELOPMENT CORPORATION
OWNER By: Date
legal\Amendment�Agreement\Development—Cape Girardeau—Academy(2)\Isl\0926.12
f c�_� f
EXHIBIT F
Form of Certificate of Reimbursable Costs
Certificate of Reimbursable Costs
TO:
City of Cape Girardeau
401 Independence Street
Cape Girardeau, Missouri 63701
Attn: City Manager
Re: Phase 2 Reimbursable Costs under Development Agreement dated June 21, 2004
Terms not otherwise defined herein shall have the meaning ascribed to such terms in the
Development Agreement dated as of June 21, 2004, as amended (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 Phase 2 Reimbursable Cost and was
incurred in connection with the construction of the Phase 2 Public Improvements.
2. These Phase 2 Reimbursable Costs have been paid by Drury Development
Corporation and are reimbursable under the Development Agreement.
3. Each item listed on Schedule 1 has not previously been paid or reimbursed from
money derived from Phase 2 Available Revenues, and no part thereof has been included in any
other certificate previously filed with the City.
4. There has not been filed with or served upon Drury Development Corporation 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 Development Agreement.
6. If any cost item to be reimbursed under this Certificate is deemed not to constitute
a Phase 2 Reimbursable Cost within the meaning as defined in the Development Agreement,
Drury Development Corporation shall have the right to substitute other Phase 2 Reimbursable
Costs for payrnent as provided in the Development Agreement.
2
j y• �`
Dated this day of , 20
DRURY DEVELOPMENT CORPORATION
By:
Name:
Title:
Approved for Payment this day of , 20_, pursuant to the Development
Agreement.
CITY OF CAPE GIRARDEAU, MISSOURI
By:
Name:
Title:
3
RfCEiVED ���AY� 1 6 �Ol;-
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DRURY DEVELOPMENT CORPORATION
M�IV ��. ��l S ��'I I�.nicrsun I«uui.Siiite_'iln.til. L„uis.A1�)b'i1�1 i •!'hi,nr�31�1-�I°:i-nh�i�•l�.�x�:il�l-�i'':t-11'iilt
BY FEUF.RAL I?XPRESS
�cott Mcyer
Citv Hall
-�01 [ndependence
Cape Girardeau, MO G37Q3
C:ity Attorne��
Re: Dcvclopmcnt Ay�reemcnt dated .1une 2(, 2004, as amended, by and between the
City and County of�Cape Girardeau, Missouri, I)rury� Ucvelopmcnt Corporation and
Drury Land Dcvelopment. Inc. (th� "DeveloPirten� A�rrc�ement")
Ucar Mr. ��levcr:
On behalfof I)rury Land De��elopment, Inc. and Drury Dc��elopment Corporation (cullectively,
"D►•tr�.v") and piu•suant to the Dcvelopmcnt n�reemcnt, [ hcreby submit thc tollowing
a���u�„��,ts:
• Ccrtificatc ol'Substantial Completion
• Ccrtiticate of Rcimbursable Costs
7'he Phase 2 Rcimbursable Costs undcr the f)evelopment A�recm�nt totalcd $2,024,359.90.
VVe request that the City do the follo�ving:
1) [;�ecute the cnclosccl Certificate of Reimbursable Costs approving same tor
payment and return a copy to me;
�) .�ccept the Certifuate of Substanti��l Completion and return the e�ccuted and
notarircd original to mc ior reco�•ding as provided in Scction 3.11 01� tl}e Devclopmcnt
tlgreemci�t.
Plcase leel (rcc to contact mc �vith any questions rr�ardin� the torcgoin�.
Verv trulv vours.
2�
Lisa S. l,carv
nssociate Gcneral Counsel
cc: 'Tony Ri�ht
�ric Cunningham, Cit}� Attorney (�vitll enclosures)
t i
CERTIFICATE OF SUBSTANTIAL COMPLETIUN
'17�e uixiersignexl. Drury Develop��nt Corporation. n Missouri cor�gtion ond Drury I.,�nd
Uevelopn�ent, Inc., a Missouri corpoi�ation (collc�:tively, "Developer"), pursuunt to thut certain
Developn�cnt Asreement dated �s of June 21, 2004, as amaided, by and h�hvecn thc Gity of Cnpe
Gir�rdeau, Missex�ri, thc County of Cape Girnrdeau, Missouri.and Dnuy Development Corpoi�►tion.and ;
Uniry Ln�xi pevelopmenl, Inc. (the"A��eemcnt"), hereby cerlify to tlx:City�ad the County xs follo�vs:
C�q�liallzed lernti+raed cn�d no�c%/fnec/in il�.v C'cn•tifiClNC'S{t(III IKNB NN.'ttreasin�r c�ecribed lu I/��ii iii 1/�e '
U�ve%ien!A�,n•eeiuenL '
I. 'I'hat t�s of Seplember 3Q,201 d,the cwtstn�ctio��of thc Phase 2 Public Improv�ments has
lx:en substantially co��ipleted in nccardaix;e�vilh the Dr.velopment Asrecment.
2. Tbe cc�i�structicHi of the Pl�nse 2 Public Improvwncnts has beon perFormed in a '
�vorkmanlike m��iner�nd in accordan�;e�vith Ihe Phusc 2 Caicept Property Plan,subjeet to changes that '
s�re permissible under the Devclopnx�u Agreement and chan�es thet have been npprovai, if required, �
under the 17evelopment Abrcement.
3. 'lliis CertificAtc of Substantit�l Compietion is Accanpanied by the architect's or aw�ur
reprosentutive's ce�tit"icAte of substantial coinpletion, n capy ot'wha:h is attached hereto as Appewdix A
and inca�orated by reference, certifyinb thet Ihc Phase 2 Public Improvements have been sirbstantially '
completed in nocc�rdanu:with tiu�Dovelo�nent Agreement.
4. This Certificate of Substatitial Canpletion is being issued by Developer to the City in
acr.ordance wilh the l�volopmant Agreement to evidence Developer's satiafaction of nll material
obligations and covenAnts with respecl to thc F'hase 2 Public (mprovements under the Dovelopment
Agroemont.
Upon u�ch acceptance by the City,Developer may record N�is Certificnte in die office of the Cape
Girarde�u County Recorclor of Deeds. This C�rtifteate is giv� without prc3j�uiice to any ri�hts a�inst
Ihird parties whi�i exist rs of the date hereof or which may subaequently come aib being.
IN WITNESS WHEREOF, tho undersigned has heramto set his hand this G� day oF May,
2U15.
DRURY DE L NT CORPOItATION DRURY LAND DF 'N[ENT,iNC,
�y: � gy; �
Timothy M. Drury, Pr�sident Tinwthy M. Drury,Prosidc�it
ACCEYT�D: �
�
CITY OF C GIRARDEAU,MISSOURI
.;
By
Naroe:
Title: �
kgdlccrlilk�.knmp�aio«+cNy nl'c.p�,c&oranw-Ac,aea�r rrokdvstls�l-�s
.
i
s
ACKNOWLEDCMENT
STATE OF MISSOURI )
)
COUNTY OF ST. LOUIS )
On this �t�'" day oF MAy. 2015, before me, the unde��ignc;d, u NotAry Public in and for
said State, appeurccl Timothy M. Drury, to me person�lly knowi�, who, being by me duly swa��,
did say that he; is the President of DRURY DCVELOPMENT CORPO1tA'1'ION, a Missouri
coiporation, a�xl thut sAid instrumenl was signecl aixi sc:ulecl in behalf of sflid coi•pw•ation by
authorily of its f3o�►i�l oF Uittictors,And said otficer ackuowledged said instrument to be executed
for tlie pur�oses therein statcd as the free t�t nnd deed of said corporation.
lN WITNESS WHEREOF, I have hcreunta set my hand a�xl Affixed my notArial sea) tl�e
day ancl year lnst above written.
.. �. ��
otary Public—State of Missouri
Commissioned in St. Louis County
{SEAL)
My commission expires: �e�S-�,f L . �'�y'��:��ry
3TATE OF M�3�R1
Mp�E�41 28,Z018
` ' i
ACKNOWLRDGMENT
STATE OF MISSOURI ) �
)
COUNTY OF ST. LOUIS )
�
On this (,v day of May, 2015, b�Fore me, the undersibned, A Nota�y Public in and Cor
said State,appeared '1'imothy M, Dniry,tu me persc�i�taliy known, who, lx;ing by me duly swarn,
did say that he is the Pmsident of DRURY LAND DEVCLOPMENT, INC., a Missouri
corporaticm, and thflt said instrument was signcci and seflled in behAlF�F said ca•poi�ation by
uuthority�f its 13on�•d of Directors,and sflid o�icer ttcknowledged said instrument to be exeeuted
for the pwposes lhere:in statcd as ll�e 1'ree act and deed of s�id corporation.
IN WITNESS WHEItEOF,I huvc hereunto set my hflnci and affixecl my nott�rial seal the
day and year last above written.
�.Jl�Y� �,
otary Public—Statc of Missouri
Commissioned in St. Louis County
(SEAL) �
AIISON E.V{A�N�A �
My commission expires: 5�S-/L s�i �M�'�ttt� �
�r��a.��D��z�.2ote
k�na.titilirnlu�an�nk�Ac��orcp�c)M�rdeau-AcaJ�uy p�uj�q1b11s-d.�s �
i
ACKNOWLEDGMENT
STATE OF NIISSOIIRI ) '
)
COUNTY OF CAPE GIRARDEAU )
On this_,�_day of /�av�� r-_,20�5 before me,the undersigned,a Notary Public in
and for said State, a�peared ,� , to me personally known, who, being by me '
duly sworn, did say t�at sJhe is the City Manager of the CTTY OF CAPE GIlZARDEAU,
MISSOURI, a political sabaivision of the State of Missouri, and that the seal affiaed to the
foregoing iustr��;t is the seal of said City, and that said instrument was signed and sealed. in
behalf of said City by autharity of its governing body, and said officials acknowledged said
inslxument to be eaec�rted fvr the purposes therein stated as the free act atxl deed of said City.
IN T�VTI'NESS WHIItEOF, I have here�mto set my hand and affi�ced my notarial seal the
day and year last above writteu.
,�. > �, .,�
Not blic—State of Missouri
Comnussioned ' C�a,' ',County
(SEAI,)
My commission expires:_ '�P�Y pU,o:. GAYLE�rrwRnp
:��I�T�=_ MY�sion Expires
* December 4,
;`�'• SEAL �rs= 2016
=��'•••••'�,oJ� Cape Girardeau CourMy
'',�!`�S,� Commission N12485582
An�cndix A
PROJECT: CONTRACT:
Cape West fiusiness Park, Development Agreement with the City and County
inctuding Academy Outdoor+ Sports of Cape Girnrdeau, Missouri dated June 21, 2004,
as amended (the"Agreement")
TO OWNER:
Drury Development Corporation
721 Emerson RoAd, Suite 200
St. Louis, Missouri 63141
PROJEL'":' �R P4RTI4N 4F THF PRO.iCCT DESIGNATCD FOR
OCCUPANCY OR USE SHALL INCLUDE:
Construction of the Phase 2 Public Improvements, as such term is described in the
Agreement.
The Work performed under the A�reement has been reviewed and found, to the
undersigned's best knowledge, information and belief, to be substantially complete.
Substantial Completion is the state in the progress of the Work when the Work or
designated portion is sufficiently complete in accordance with the Agreement so that the
Owner can occupy or utilize the Work for its intended use. The date of Substantial
Completion of the Project or portion designated above is the date of issuance established
by this Certilicate, which is also the date of commencement of applicable warranties
required by the A�reement,except as stated below:
Columbia Construction Corp. .� 3 f��`
GENERAL CONTRAGTOR B . John J , President DA E F ISSUANCE
Cost estimate of Work that is incomplete: 0%
The Owner accepts the Work as substantially comptete.
DRURY DEVELOPMENT CORAORATION By: ��j 5^"S"�s
OWNER Timothy M. Drury, Date
President
4'ertificalc of Reimbursabie Costs
TU:
City of Cape Girarcl�►u
401 Independence Street
Cape Girardeau, Missouri G3701
Attn: City Manager
Re: Phase 2 Reimbucsable Costs under Development A�;reement dat�•d Jw�e
?I,2004,as amended
Tern�s not otherwise deCned I�r�;in shall havc tlie meaninb ascribed to such terms
in the Deve:lopment A6��eemcnt dated as of_June 21, 2004, as amended (the
"Abreement"), among the PArties. in eo�wec:tion with st►id Agreement, the undersignc�d
l�ereby states and oertifies that:
l. Each item listed on Sehalute 1 hercto is a Nhase 2 Reimbursable Cost aixi
w�s incurred in connection with tlie construction of the Phase 2 Public Improvements.
2. These Phase 2 Ruimbursable Costs hAve been psid by Divey Dcvelopmcnt
Corporatioa and are reimbursable under the Dcvelopment Agreement.
3. Each itern listed un Schedule 1 has not previously been paid or
reimbursed from money derived from Pl�ase 2 Avaitable Revenues, and iw pnrt thereof
Ims be�n inctuded in any other certificate previously filed with the City.
4. "fhere has not been filed with or served upon Drury Dcvelopment
Corporation any notice of any lien,right of lien ar atlachment upon or ctaim affecting the
right of any person, firm or oorporntion to receive payment of the amounts stated in this
request,except to the extent aay si�ch lien is bein6 contested in good faith.
5. AU work for which payment or reimbursement is requc;sted ht�s been
perfonned in A�ood and workmnnlike manner And in accordanee with the Development
Agreement.
6. [f tiny c�st item to be reimbursed under this Certificate is deemed not to
c�nstitute a Phase 2 Reimbursable Cost within th� meaning as detined in the
Development Agreement, Drury Development Corporation shall have the right to
sub�itute other P}mse 2 Reimbursable Casts for payment as provided in the Dcvelopment
Agreement.
Dated this �v� day of May,2015.
DRURY DEVELOPM�NT CORYORATYON
`'�-`._
sy: %��
Timothy M. Drurr,Presidcnt
M�1o���na�leo�ri�Mc+ry c�f c�pc anna�-n�.�.ae�r nK�,k�cnw►s•+-�s
, � • - - —
Approved for P��yment lhis �r-d day oti ��E�,-►��, 2015, pursuant to the ;
llevelopmenl Agrcement. '
CITY OF CAP �
,,a��RARDEAU,MISSOUItI '
,.-
By�,/� '�
Name:
Title: � „� _ _
Schedule 1-Phase 2 Reimbursable Cost
Temporary Utilities $ 355.25
Mlllwork $ 1,260.00
CiWi Engineering $ 17,323.64
Earthwork $ 507,030.50
Site Electric $ 12g�26p,pp
Site Water $ 86,725.00
Slte Storm Sewer $ 152,686.00
Parking&Paving $ �7,001,pp
Curbs&Gutters $ 3,717.00
Landscaping $ 61,101.00
Signage $ 55,778.54
Construdion Drawings $ 1,04p,pp
Surveys $ 4,159.50
Site Prep $ 124,375.50
Developer Legal Fees $ g,�p,pp
Generai Conditions $ 145,585.03
Contractor Overhead &Profit $ 58,961.94
Phase 2 Total Costs S 2,0?A,3S9.90
Conrad, Gayle
From: Conrad, Gayle
Sent: Monday, October 05, 2015 9:25 AM
To: Hood, Molly; Cunningham, Eric
Subject: Academy Sports - Drury Development Agreement
Molly and Eric:
By interoffice mail I am sending to you a letter received from Drury Development Corporation for administrative close-
out of the above project. This was received on May 22, 2015. About a month Tom Milford inquired as to when the City
was going to review their request and take it to Council. I am not sure why it has sat this long without action, and it has
now ended up back in Bruce's office for Action.
Previous Development Agreements with Drury, including Menard's and Kohls, have been managed and closed out by the
Development Services Office. Therefore, I am assuming that DS will work with Finance and Legal on this one to close
out. Included with the packet I am sending you is the original Development Agreement, the Amended Development
Agreement (for Academy), and a copy of the Council report from the Menard's Close-Out in 2012.
Could you please have staff verify the information submitted for Academy and followup with close-out of this project. If
there is something I am missing and that I should be taking care of, please let me know. This is not something the
Clerk's office has taken care of before. If this is something we are to be doing, then we will need assistance/training on
how to take care of this.
Thanks.
Gayle
Gayle L. Conrad, CMC, MRCC
Director of Citizen Services/City Clerk
P. 0. Box 617
Cape Girardeau, MO 63702-0617
573-339-6320 phone
573-339-6302 fax
�conrad@citvofcape.or�
�
RE���VEO r�a� 2 � �p�-
. ,
���
� ���C�
. DRURY DEVELOPMENT CORPORATION
May 22, 201$ 721 Emerson Road,Suite 200,St Louis,I�10 63141 •Phone: 314-423-6698•Fax:314-423-0310
BY FEDERAL EXPRESS
Scott Meyer
City Hall
401lndependence
Cape Girardeau, MO 63703
City Attorney
Re: Development Agreement dated June 21, 2004, as amended, by and between the
City and County of Cape Girardeau, Missouri, Drury Development Corporation and
Drury Land Development, Inc. (the "Development Agreement')
Dear Mr. Meyer:
On behalf of Drury Land Development, Inc. and Drury Development Corparation (collectively,
"Drury') and pursuant to the Development Agreement, I hereby submit the following
documents:
• Certificate of Substantial Completion
• Certificate of Reimbursable Costs
The Phase 2 Reimbursable Costs under the Development Agreement totaled $2,024,359.90.
We request that the City do the following:
1) Execute the enclosed Certificate of Reimbursable Costs approving same for
payment and return a copy to me;
2) Accept the Certificate of Substantial Completion and return the executed and
notarized original to me for recording as provided in Section 3.11 of tne Development
Agreement.
Please feel free to contact me with any questions regarding the foregoing.
Very truly yours,
2�
Lisa S. Leary
Associate General Counsel
cc: Tony Right
Eric Cunningham, City Attorney (with enclosures)
, ,
CERTIFICATE OF SUBSTANTIAL COMPLETION
� The undersigned, Drury Development Corporation, a Missouri corparation and Drury Land
Development, Inc., a Missouri corporation (collectively, "Developer"), pursuant to that certain
Development Agreement dated as of June 21, 2004, as amended, by and between the City of Cape
Girardeau, Missouri, the County of Cape Girardeau, Missouri, and Drury Development Corporation, and
Drury Land Development, Inc. (the "Agreement"), hereby certify to the City and the County as follows:
Capitalized terms used and not defrned in this Certificate shall have the meanings ascribed to them in the
Development Agreement.
1. That as of September 30, 2014, the construction of the Phase 2 Public Improvements has
been substantially completed in accordance with the Development Agreement.
2. The construction of the Phase 2 Public Improvements has been performed in a
workmanlike manner and in accordance with the Phase 2 Concept Property Plan, subject to changes that
are permissible under the Development Agreement and changes that have been approved, if required,
under the Development Agreement.
3. This Certificate of Substantial Completion is accompanied by the architect's or owner
representative's certificate of substantial completion, a copy of which is attached hereto as Appendix A
and incorporated by reference, certifying that the Phase 2 Public Improvements have been substantially
completed in accordance with the Development Agreement.
4. This Certificate of Substantial Completion is being issued by Developer to the City in
accordance with the Development Agreement to evidence Developer's satisfaction of all material
obligations and covenants with respect to the Phase 2 Public Improvements under the Development
Agreement.
Upon such acceptance by the City,Developer 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 hand this �� day of May,
2015.
DRURY DEVELOP NT CORPORATION DRURY LAND DE MENT,INC.
By: � By: �
Timothy M. Drury, President Timothy M. Drury,President
ACCEPTED:
CITY OF CAP EA ,MISSOURI
.,'
By: �
Name: 5� �
Title:
legal\certificate\completion\city of cape Girazdeau—Academy projectUsl\5-4-15
ACKNOWLEDGMENT
STATE OF MISSOURI )
)
COUNTY OF ST. LOUIS )
On this �,¢�' day of May, 2015, before me, the undersigned, a Notary Public in and for
said State, appeared Timothy M. Drury, to me personally known, who, being by me duly sworn,
did say that he is the President of DRURY DEVELOPMENT CORPORATION, a Missouri
corporation, and that said instrument was signed and sealed in behalf of said corporation by
authority of its Board of Directors, and said officer acknowledged said instrument to be executed
for the purposes therein stated as the free act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the
day and year last above written.
� �. ��
otary Public—State of Missouri
Commissioned in St. Louis County
(SEAL)
�A
My commission expires: l ALISON E.WINKA
5 0��- �D Notary Public-Notary Seai
STATE OF MlSSOURI
St louis County
My Commissian Expires: May 25,2016
Commission#12412754
ACKNOWLEDGMENT
STATE OF MISSOURI )
)
COUNTY OF ST. LOUIS )
�
On this (� day of May, 2015, before me, the undersigned, a Notary Public in and for
said State, appeared Timothy M. Drury, to me personally known, who, being by me duly sworn,
did say that he is the President of DRURY LAND DEVELOPMENT, INC., a Missouri
corporation, and that said instrument was signed and sealed in behalf of said corporation by
authority of its Board of Directors, and said officer acknowledged said instrument to be executed
for the purposes therein stated as the free act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the
day and year last above written.
�� � , �..��
otary Public—State of Missouri
Commissioned in St. Louis County
(SEAL)
ALISON E.WINKA
Notary Pubtic-Notary Seal
My commission expires: 5 a,S- f(o STATE OF M{SSOURI
St.�ouis County
My Commission Expi�es: May 25,2016
Commission#12412T54
legal\certificate\completion\city of cape Girardeau—Academy project\lsl\5-4-15
ACKNOWLEDGMENT
STATE OF MISSOURI )
)
COUNTY OF�PE GIRARDEAU )
On this��day of , 2015, before me, the undersigned, a Notary Public in
and for said State, appeared , to me personally known, who, being by me
duly sworn, did say that s/he is e Cit Manager of the CITY OF CAPE GIRARDEAU,
MISSOURI, a political subdivision of the State of Missouri, and that the seal affixed to the
foregoing instrument is the seal of said City, and that said instrument was signed and sealed in
behalf of said City by authority of its governing body, and said officials acknowledged said
instrument to be executed for the purposes therein stated as the free act and deed of said City.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the
day and year last above written.
�
.�`,�pgY P�B�, AMANDA L.MCKINNEY Notary Public— tate of issouri
:?°���;.,G�>': MycommissionExpires Commissioned in Co y
�• ; � = March 3,2018
5�Ai.,� �pe Girardeau Couniy
(. ,�� �'�' ` Commission#14588193
My commission expires: � '
Auuendix A
PROJECT: CONTRACT:
Cape West Business Park, Development Agreement with the City and County
including Academy Outdoor+ Sports of Cape Girardeau, Missouri dated June 21, 2004,
as amended (the"Agreement")
TO OWNER:
Drury Development Corporation
721 Emerson Road, Suite 200
St. Louis, Missouri 63141
���.��'�' �R PQi2TL��JN C1F THF. PROJECT DESIGNATED FOR
OCCUPANCY OR USE SHALL INCLUDE:
Construction of the Phase 2 Public Improvements, as such term is described in the
Agreement.
The Work performed under the Agreement has been reviewed and found, to the
undersigned's best knowledge, information and belief, to be substantially complete.
Substantial Completion is the state in the progress of the Work when the Work or
designated portion is sufficiently complete in accordance with the Agreement so that the
Owner can occupy or utilize the Work for its intended use. The date of Substantial
Completion of the Project or portion designated above is the date of issuance established
by this Certificate, which is also the date of commencement of applicable warranties
required by the Agreement, except as stated below:
Columbia Construction Corp. � �3 /S
GENERAL CONTRACTOR B . John Jan , President DA E F ISSUANCE
Cost estimate of Work that is incomplete: 0%
The Owner accepts the Work as substantially complete.
DRURY DEVELOPMENT CORPORATION B : �c2� 5 "� "�s
Y
OWNER Timothy M. Drury, Date
President
Certificate of Reimbursable Costs
,_ TO:
City of Cape Girardeau
401 Independence Street
Cape Girardeau, Missouri 63701
Attn: City Manager
Re: Phase 2 Reimbursable Costs under Development Agreement dated June
21, 2004, as amended
Terms not otherwise defined herein shall have the meaning ascribed to such terms
in the Development Agreement dated as of_June 21, 2004, as amended (the
"AgreemenY'), 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 Phase 2 Reimbursable Cost and
was incurred in connection with the construction of the Phase 2 Public Improvements.
2. These Phase 2 Reimbursable Costs have been paid by Drury Development
Corporation and are reimbursable under the Development Agreement.
3. Each item listed on Schedule 1 has not previously been paid or
reimbursed from money derived from Phase 2 Available Revenues, and no part thereof
has been included in any other certificate previously filed with the City.
4. There has not been filed with or served upon Drury Development
Corporation 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 Development
Agreement.
6. If any cost item to be reimbursed under this Certificate is deemed not to
constitute a Phase 2 Reimbursable Cost within the meaning as defined in the
Development Agreement, Drury Development Corporation shall have the right to
substitute other Phase 2 Reimbursable Costs for payment as provided in the Development
Agreement.
Dated this G� day of May, 2015.
DRURY DEVELOPMENT CORPORATION
By: %��
Timothy M. Drury, President
legal\certificate\completion\city of cape Girazdeau—Academy projectUsl\5-4-15
Approved for Payment this day of , 2015, pursuant to the
Development Agreement.
CITY OF CAPE EAU,MISSOURI
By:
Name:
Title: ��...
Schedule 1 - Phase 2 Reimbursable Cost
Temporary Utilities $ 355.25
Millwork $ 1,260.00
Civil Engineering $ 17,323.64
Earthwork $ 507,030.50
Site Electric $ 129,260.00
Site Water $ 86,725.00
Site Storm Sewer $ 152,686.00
Parking & Paving $ 667,001.00
Curbs & Gutters $ 3,717.00
Landscaping $ 61,101.00
Signage $ 55,778.54
Construction Drawings $ 1,040.00
Surveys $ 4,159.50
Site Prep $ 124,375.50
Developer Legal Fees $ 8,000.00
General Conditions $ 145,585.03
Contractor Overhead & Profit $ 58,961.94
Phase 2 Total Costs $ 2,024,359.90
�
Z
.
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_ � .. . _ . . . � �� � . , _�E�:.�. _ . . .. . _ �
Qctober 23, 2013 -
zc�i�lninthaii�'�r,rit���te���c:�7i�•�ircie��u.o�•� ctracti'ti<c�r��ecc�t�i�tt.it�
Eric Cui�nii�gnain � Cliiit T�•acv
City Attorney Presidin��Comnlissioner
Cit�=oi�Cape Girardea« Cape Gir�rdeau Coi�nty
�01 Ii�dependence One Barton Square
Cape Girardeau, MO 637�1 Jacksoi�, l��U 637�5
Re: De��elopmeut �greenlent dated June ?l, 200�, as at��ended, by and t�et�i°een the City of
Capc; Girardeat�, �1�lissouri, #he County af Cape Girardeau, Misso�iri, Drury D�veiapment
Corporation, and Drurv Land D-evelapinent, Ine. �
Gentl�men:
Tl�� pu�rpose of tl�is letter is to con�irm ihe substance of n��� teleghane e-on���ersarion 4vith Eric
Ctulnin,�har�1 on n�tober 22, 2013 �nd �v�arl: Kohl's eon��ersation ���it�� Clir�t Tracv o��. October
?3, 2Q13, re�ardiz��t}�e anticipated sale of the Acacleiz7i� Prc�perty {as such terrn is defirted in th�
D�velopmenC A�reenie�t}. As discussed, Drury D�,��elopment Co�-poration intends to close on
the sate to r`�I�Capital or its assignee ���ithin the neat 10 dai>s.
Pursu�nt to Section �(d) of tIse Develap�ment Agreement,the Develap�r has the r�ight ta seil all or
any partian of the t�cademy- Praperty to 1ny° pzrson or cntit� eitiler before or after campletion of
the Phase 2 Public fi��proi�emeFlts, subject to the re��rirement to cor�iplete the Pha�e 2 Public
Impro��ements a.nd th� Phase 2 Dev�lapme�it as d�scribed in the Amendment to De�elopinent
A,reen�e�Zt dated October 1�, 201? (The "E1me�idment") �vith respect to such ��roperty. Section
�{d} atsa requires, ha4�eti�er, that th� tr�nsfere� �f the Academy Property a�r�e in ��ritin� to
assume th� obli�ations of die��mendment ew-ith respect to the rleadem}�Property.
The ��arti�s to tlli Deyelopment ��re�meut concl�r thai t��� pu�pose of th� foregoing proti�isions
of Sectic�n �}{�i) ���as to ensure tllat tl�� Phase 2 Public I�nproveFnents, most of�ishich �tr�re tc� be
constr�zeted or it�stalIed on the Acaciemy Prape�-t}�, couid be coinpleted, ���hicl� ���o�tld req�iiz-e thz
a�reenlent af t�ic. o��n�r of such P�•operty. Tt1� parties noti� agree that ali of the I'hase 2 Pubtic
I�ziprc�v�,ri��nts to be cc�nstructeci or installed o�� the flcad��n�• Praperty I�a�te �e�.n cotnp(eteci and
access onto th� �cademy Prop�r-t}� is �lo lor�ger neeessar}f. All remainin� P13as� 2 Public
Im���ro�rements, ii�cluding tlze relocation and c�isposition af excess dirt and rack pre��iausl�°
removed from tl�e Academ�� Propert�r as �art c�f the Pubiie Iinproveli�ients (the "Dirt Removal''),
shall be perfor�n�d off-site. .-�ec��rdin�l�, the parties agre� tc� amend Section �(d) of tlle
Development .�greement ta delete tlie 3`�. 4u' aiiti �`�' senteiicr;s �vhich rc;quire tl�e assur�zption o��
obligations by th� transfer�e and the tic�tifieation of tlle City� and the Count}- of any pz�opc�sed
sale.
t �
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e
t _ � ..
Drury Land Developm�nt, Ine. and Drur�� Dez•elapment Corporatio�i(tl�e"De�feloper"j retain the
o�li�„ation to can�plete the Phase 2 Public Improve�ue�its and the Phase ? Developtnent as
described ir� the Amendment. Upon camptetion of the Phas� 2 Public Improvemeiits, including
tlle Dirt Removal, the De�=etoper «-i11 subiTiit a Certificate of Substai�tial conipletion and a
Cei-fificat� of Rei��lbursable Costs as required by the Amendment. 7h� current projectic�n far the
Reimbursabl� eosts is approximatel�j �1,900,000, including the cost of Dirt Ren�ovai.
Please acisnowled�e tllat the foregoing is agreeable by si�a�ing belo���. Please eontact nie or i�lark
K.aEzI immediately if you ha��e 3ny eoncerns.
Very truly y°ours,
DRUR�DEVELOP��IENT COR.PORATION
an�i
DRURY L�ND DEVELOPIv1ENT, NC.
,' �
B}'. ��- �, ,,1 `� � ,,�i
i ' a S. Lear��
AsSociate G�n�ral Coiins�l
t�GREED �ND r�CKNOt�TdLEDGED:
CIT�t OF C GIR�RDEAL� GA�'E � ,A�1 COUNT`Y
B : By:
Scott r'1. I�1e��er, � y: I�nag�r Clii�t`I`rac�r, Presidin� Coi� is�ianer
City of C�pe Cri ��u, Missc��tri Cape Girardeau Cotznt � I�� ssouri
T�ate: �/C�"c�Y. �.�� Dat�,: �v I Z�{/l3
Cc: Tinlath��Drur�,
�%Iark Kohl
Ton1 Milf�rd
Ton;F Right
t � �
CERTIRICATE OF SUIiSTANTIAL COMPL�TION
"�'he unclersig�iecl. Drury Development Corpor�tion, n Missouri corporation anct Drury I.,�cid
L�velopment, b�c., a Missouri cor�wiatioo (collcctively, "Developer"). pi�rsuant to thut ceNain
Developmcnt Agreement dated �s oF June 21, 200�1, as an��ded, by and hetween the City of Cape
GirArdea�u, Miss��ri, the Ca�nly of Cx�e Girordeau, Missouri.fuid Drw•y Development Corpoi�tion.n��d
Uniry l,n�x1 Developmenl, Inc. (the"A�treemcnt"), I�ereby u;rtiFy to tlx;City end the County as follo�vs:
C�y�ilaH�et!leraa+trsed enxl nol ck•f)»rc/ir��%r C'c•rlificcNe�s/xd/hcn�e I/k•s�ea�ilitKs�ecrfbed lo/l�ein i�i I/�e
Lk�Nelo/Nuertl A�,a•eenreul.
I. 'I'hat Hs oF Septcmber 3U,2014,the cwtstructi�n of thc Phase 2 Public Improvements has
�:en substantially complctcd in accorclaix;e wilh the Dcvelopment Agreemenl.
2. T'hc caistructica� of the Phnse 2 Public hnprovcments It� been performed in a
�vorkmanlike manner and in accorda�x;e�vith Ihe Phase 2 Co�x:ept Property p�at�,subject to ohanges that
are permissible under the Developnx�au Agreemen! �ix) clu���ges thnt have been nnproved, if required, �
under the I)evelopment Abreement. '
3. 1'his Certificate of Substanti�l Compl��tion is necanpanied by the architect's or owner
repra�antative's certificttte of substantiul canpletion, n copy ol'which is attaclied hereto as Appeadix A
and inearporated by reference, certifying tlu�t Ihe Phase 2 Public Improvements luve bxn substantially
completed in xacccwdanu:with thcs Davtsslo�nenl Agreement.
�t. This Certificatc of Substantial Canpletion is being issued by Devebper to the City in
acwrdance with the l�vofopmant Agroement to evidencc Devoloper's satisfactiai of all materiAl
obligations and covenants with re�ect to thc Phase 2 Public (mproveme��ts under the Develomnent
Agt�eetnent.
Upon uwh acceptance by the City,Doveloper may recard N�is Ce�tificnte in the ot�ice of the Cape
Girardet�u County Recorcbr of Dceds. This Certificate is giva� witba�t pr�judice to any ri�hts n�inst
third parties rvhic�i exist�s of the date hereof or which msy s��bsequently come into being.
M WITNESS WHEREOF, tl� undersig�Ted has I�er�mW set his I�und d�is G� dxy of May,
2015.
DRURY DE L NT CORPOItATIOiV DRURY LAND DI: 'MENT,iNC,
�y: � By: �
Timothy M. Drury, Pr�ident Tinwthy M. Drury,Presidcnt
ACCEI'T�D:
>-''r�
CITY OF E�RA U,MISSOURI
By:
Name:
Title: r �
�ccr�i�icalekoaip�ciioMlcily�N�c�pu cirmdciw—AcMle�y an�abllsllsrl-�s
v '
ACKNOWLEDGMCNT
STAT�OF MISSOUKI )
)
COUNTY OF ST. LOUIS )
On this �,,t�''' day oF MAy. 2015, before me, the undei�igtx�d, fi Nota�y Public in and f�r
said State, �►ppeared Timothy M. Dr���y, lo me persontilly known, who, being by mc duly sworn,
did sAy that he is the President of DRURY DCVEI,ONM�NT CORPORA7'ION, n Missouri
corporation, a��d thAt said insh�imenl wt►s signed aixi sealed in behalf of s�id corparation by '
authority ol'its 13o�trd of Dircctors,And suid officer acknowled�;ed said instrumcnt to be executed
for the purposes thecein statcd as the free act nnd deed of said corporation.
lN WITNESS WHEREOF, l have hereunto set my hand and affixecl my �x�tarial seal the
day and yeAr lnst above written.
� �• ��
otary Public—State of Missouri
Commissioned in St. Louis County
(SEAL)
. �—�-,.
My commission oxpires: �02 5-�Je, ��yyE•�
3TIITE OF M�1
AA�Co�x��o�E�S.���28.ZOtB
Carnt�bon f!241
ACKNOW�.FDGMENT
STATE O�MiSSOURt ) I
) ;
COUN7'Y OF ST. LOUIS ) ,
On this � '
�0 day of May, 2015, b�Fore me, the undersibned, A Notaiy Public in and for
said StAte,appeared '1'imothy M. Dnrry,ta me perswi�ally known, who, tx;in� by me duly sworn,
did say that he is the President oF DRURY LAND DEVCLOPMENT, 1NC., a Missouri
co�poratic�n, and that said instrument was sigr�ed und se�led in behAlf oF said corpoi�ation by
authority�f its lionrd of Dii�ectois,anci seid officer ticknowledged said instrument to be exeeuced
for the puiposes thc:rcin stated as tl�e I'ree act and deed of s�id corpor�tion. ,
IN WITNF.SS WHE1tEOF, [ havc hereunto set my haix� and al�ixed my not�rial seal the
day and year last abovc wrilien. '
►.bAN� �.
otary Public—State of Missouri '
Canmissioned in St.Louis County
(SEAL) o,o, '
AUSON E.VVMNCA ,
My cammission expires: 5-�,5-/L. ��°i�asN��
s�.�ouh
������
kg�lkertiiica«.lcaaplaiu�ld��orc�pe akardeau-Ac+wk�ny nruleellk�s-�-�s �
i
ACKNOWLEDGMENT
STATE OF MISSOURI )
) '
COUNTY OF CAPE GIRA,RDEAU )
On this �J� day of Ey��p 20�before me,tha undersigned,a Notary Public in
and for said State, appeared ,• Fr to me personally known, who, being by me '
duly sworn, did say that sJhe is the Ciiy Manager of the CTTY OF CAPE GIRARDEAU, '
MISSOLTRI, a politicai snbciivision of the State of Missouri, and that the seal affixed to the
foregoing instr�ment is the sea� of said City, and that said insttvment was signed and sealed in
behalf of said City by autharifiy of its governing body, and said offtcials aclrnowledged said
instrument to be eae�uted for the purposes therein stated as tbe free act and deed of said City.
IN WTI'NESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the
day and year last above written. ,�
, �
�1 ��i�
Not ublic—State of Missouri
C ' sioned i��yoi County
�S�'I'� `��Y P�' GAYLE L CONRAD
�?��NOTAR^��;= MY Conxnission Expires
My cammission expires' - _ DecembAr 4,2016
�9�OFN�,, Commission#12485 258
�,��,
A��cndix A
PROJECT: CONTRACT:
Cape West Business Park, Develapment Abreement with the City and County
including Academy Outdoor+Sports of Cape Girardeau,Missouri dated June 21, 2004,
as amended (the"Agreement")
TO OWNER:
Drury Development Corporation
721 Emerson Road, Suite 200
St. Louis, Missouri 63141
PROJEC':' �R P4RT[4N OF THF. PROJCCT DESIGNATED FOR
OCCUPANCY OR USE SHALL INCLUDE:
Construction oP the Phase 2 Public Improvements, as such term is described in the
Agreement.
The Work performed under the Agreement has been reviewed and found, to the
undersigned's best knowledge, infonnation and beliet; to be substantially complete.
Substantiat Completion is the state in the progress of the Work when the Work or
desigr►ated portion is sufficiently complete in accordance with the Agreement so that the
Owner can occupy or utilize the Work for its intended use. The date of Substantial
Completion of the Project or portion designated above is the d�te of issuance established
by this Certiticate, which is also the date of commencement of applicable warranties
required by the Asreement,except as stated below:
Columbia Construction Corp. ,� t��
GENERAL CONTRACTOR Ii . John Jan , President DA E F ISSUANCE
Cost estimate of Work that is incomptete: 0%
The Owner accepts the Work as substantially complete.
DRURY D6VELOPMENT CORAORATION By: �l' Sr"s"�s
OWNER Timothy M. Drury, Date
President
4'ertiticalc of Reimbursable Costs
TU:
City of Cape Girardeau
401 Independence Street
Cape Girardeau, Missow�i 63701
Attn: City Ma���er
Re: Phase 2 Reimburs�ble Costs under Development Agreement dated June
21,2004,�s amended
Tern�s not othet•wise deCned herc;in sl�all havc the meaninb ascribed to such terms
in the Development Abreemcnt dated as of_June 2l, 2004, as nmencled (the
"Agreema�t'�, among the PArties. In conn«:tion with said A�reement, the wukrsi�rxxi
hercby statcs and ccKifies tht�t:
1. Cacli item listed on Scheciuk 1 hercto is a Nhase 2 Reimbursable Cost and
w�s incurred in connection with the construction uf the Phase 2 Public Improvements.
2. These Phase 2 RBimbursAble Costs have been paid by Drury Development
Corporation and are reimbursable under the Devclopment Agreement.
3. Each it�m listed on Seheclule 1 has not previously been paid or
raimbursed from money deriveci from Phase 2 Available Revenues, �nd no part thereof
has been inctuded in any other certificate�xeviously filed with the City.
4. 't'here has not been filed with or served upon Drury Development
Corporation any notice of uny liea,right of lien ar atl�chmrx�t upon or claim afFecting the
right of any person, firm or oaporation w rcceive payrrient of the amounts stated in this
request,except to the extent any s«ch lien is being contested in good faith.
5. All work for which payment or reimbursement is requested has been
perfonned in a good and workmanlike manner and in accorda�iee with the Development
Agt�eement.
6. If any cost item to be reimbursed under this Certificate is deemed m�t to
constitute a Phase 2 Reimbursable Cost within the meaning As detined in thc
Development Agreement, Drury Development Corporation shAll have the right to
substitute other Phase 2 Reimbursabla Costs for payment as provided in the bevebpment
A�reement.
Dated this G�` day of May,2015.
DRURY DEVLLOPMGNT CORPORATION
By: /���
Timothy M. Drury,Pr+esident
k�rNoall�letiawkih'M'caP�s(jkard�w—Ac�daMY I�.M+cIWl�3-�-13
>• • -- —
�1
Approvec! for Pf�yment this cJ/'o� day of 1'�A,� , 2U15, puis��ant to the ',�
L�velopmenl Agre,cment.
CITY OF CAPE,�DEAU,MISSOUItI �
By: ,
Name: � ;
Title:_ �� 1'1'l�,v.r.����./ _ '
Schedule 1-Phase 2 Reimbursable Cost
Temporary Utilities $ 355.25
Mlllwork $ 1,260.00
Civil Engineering $ 17,323.64
Earthwork $ 507,03Q.50
Site Electric $ 129,260.00
Site Water $ g6�725,pp
Site Storm Sewer $ 152,686.00
Parking& Pavi� $ �7,�1,pp
Curbs&Gutters $ 3,717.�
landscaping $ 61,101.00
Signage $ 55,778.54
Construction Drawings $ 1,pqp,pp
��YS $ 4,159.50
Site Prep $ 124,375.50
Developer Legal Fees $ g,ppp,pp
General Condftions $ 145,585.03
Contractor Overhead&Profit $ 58,961.94
Phase 2 Total Costs $ 2,p2q,35g,�
�� 1 C l��ir G� �' i tl.')i: . C�`�t..
�
_ _ _ _ _ "-J(C' Il',����-
Kelly Green P.E., Assistant City
Staff: Manager- Development Services ="`���-���f'� Itli.['C)12'1' ��_���
Agenda: 9/4/2012 ("��E�L �r�����-��=��u C ity t:'c�uncil
__ _ _ _ _
SUBJECT
Acceptance of improvements and administrative close-out of Phase 1 of Development Agreement between City
of Cape Girardeau and Drury Southwest dated May 20, 2011.
EXECUTIVE SUMMARY
In accordance with the Development Agreement between the City of Cape Girardeau and Drury Southwest,
Inc. approved on May 20, 2011, the developer submitted the itemized accounting documentation for the final
actual costs of Phase 1 to the Development Services Department on July 9, 2012. Phase 1 of the Development
Agreement included improvements made to the west side of Siemers Drive and the south side of Bloomfield.
Improvements included items such as clearing and grading, modifications to an existing detention pond, and
removing and relocating a water line. Upon review of the submittal by City staff, it has been determined that
total costs of$344,449.65 are eligible for reimbursement. A revised Schedule 1 Reimbursement Costs reflecting
this amount is attached for Council approval. The original estimated cost for Phase 1 that was indicated in the
Development Agreement was $551,153.
STAFF RECOMMENDATION
__ __ ._ _ _ _ _ _ _
Staff recommends that the City Council approve, by motion, the Revised Schedule 1, and accept, by motion, the
public improvements and authorize the administrative close-out of this project which will enable the City
Manager to execute the CERTIFICATE OF REIMBURSABLE PROJECT COSTS (copy attached).
ATTACHMENTS:
(�j�rT�i��. U�SC(E�IIO�l
d Exhibit B Develooement Agreement.qdf Exh�bit 8
[3 Schedule 1 Develoqment Actreement.pdf Schedule 1
t - �
■ �
_ ..._. ......._ ......... __.. ....... .. .._..... ......... __._.. ........ .._._.._.....
. ..__.. .._..... ._...... ..........
Staff: John Richbourg, Finance Director ,<i�t�i:'tiD.h. RC�;1'()I2"I' ��_.�9,�
Agenda: 10/15/2012 t�'ap� (rzrarc��c��� (.'it� C'au��ii;il
SUBJECT
Ordinance authorizing the City Manager to Execute an Intergovernmental Cooperation Agreement with Cape
County, Drury Development Corporation, and Drury Land Development for the Purpose of Public
Improvements and Other Related Matters
EXECUTIVE SUMMARY
The attached ordinance authorizes the City Manager to execute an Intergovernmental Cooperation Agreement
with Cape Girardeau County, Drury Development Corporation, and Drury Land Development. The agreement
is an amendment to a development agreement originally entered into by all parties in 2004 and revised in 2005
to reimburse the developer for public improvements made when the Kohl's store was constructed.
This amendment would require the City and County to reimburse the developer up to $3 million for public
improvements related to locating an Academy Sports store in Cape Girardeau. The developer will be
reimbursed from available sales tax revenues produced by the Academy Sports location. The term of the
agreement is 15 years beginning after obligations of the original development agreement have be satisfied. The
City's available revenue is defined an amount equivalent to the sales tax revenue that would be generated at the
Academy Sports location on sales over $2.5 million (base to be adjusted annually for inflation) from the City's
1/2% capital sales tax and 50% of the City's transportation sales tax.
BACKGROUND/DISCUSSION
_._ . _ __ _ __ _ _ _ _.
In 2004 the City entered into a development agreement to reimburse the developer for public improvements
related to the construction of a Kohl's store in Cape Girardeau. This agreement was revised in 2005. Per the
revised ageement the developer made $3,127,347 in public improvements that are currently being reimbursed
under the development agreement. That agreement requires all available revenue (as defined in the
agreement) from Kohl's and any businesses subsequently built on the 60 acre tract on which Kohl's is located be
used to reimburse the developer for improvements made under the original this agreement. Academy Sports will
be located on this tract. As a result available revenues (as defined in the amendment) from Academy Sport will
not be availble to reimburse the developer for public improvements included in this amendment until all
reimburesements for the public improvements included in the original agreement have been paid.
FINANCIAL IMPACT
This agreement redirects up to $2.25 million of sales tax revenue that could be used for projects in the City's
capital improvement budget to public improvements related to the Academy Sports location.
This store should bring additional customers into the Cape retail area. It should have a positive impact on the
other sales tax revenues of the City. The amount of this impact is unknown.
If the public improvements do not have enough projects that can be reimbursed by the transportation sales tax,
the city will need to make its reimbursements from another sale tax source.
STAFF RECOMMENDATION
• �
. ,
Staff submits this ordinance for you consideration.
ATTACHMENTS:���
Name Uesc.riptian
[3 Ord-Interaovemmental-Kohls Develooment-Academv 2012.doc Ac<�demy Sports-Drury Ord(r�ance
6 Develoament - Caoe Girardeau - Academv(2) (3).doc Acaiarny Sporis Develo�ment Agreem�nt Amerdment
�°�,
� ����/
o� ,
"Construction Plans" means plans, drawings, specifications, and related documents for
� the construction of the Phase 2 Public Improvements,together with all supplements, amendments
� or corrections thereto, submitted by or on behalf of Developer and approved by the City or other
applicable governmental authority in accordance with applicable law and the Development
Agreement
"Finance Director" means the duly appointed and serving Director of Finance of the
City.
"Phase 2 Available Revenues"means 100% of the revenues actualiy received by the City
from City Sales T�es (as defined herein) generated from any business operations located on the
Academy Property and 100%of the revenues actually received by the County from County Sales
Taxes (as defined herein) generated from operations located on the Academy Property, in excess
of the Sales T� Base. "City Sales Taxes" means the equivalent of the amount of collections of
levies of the 0.25% capital improvements water sales taxes, the 0.25% capital improvements
sewer sales taxes and fifty percent(50%) of the 0.50%transportation sales taxes (so long as such
levies remain in force and effect, and from any extensions of those sales taxes), and "County
Sa1es T�es" means the equivalent of the amount of collections of levies of fifty percent (50%)
of the County's existing 0.5% sales tax ("County Sa1es T�es"), all generated by economic
activities occurring on the Academy Property, in excess of the Sales T�Base. City Sales Taxes
and County Sales T�es are collectively referred to as "Sales T�es". If any of the Sales T�es
lapse (for any reason ) duri.ng the Term, then "Phase 2 Available Revenues" shall mean the
equivalent of the amount of collections of levies from any similaz purpose sales t�es currently
existing or later i.mposed by the City or County which is legally permitted to be used to pay the
'�- Phase 2 Rei.mbursable Costs.
"Phase 2 Concept Property Plan" means the plan sheet attached as Exhibit C and
incorporated by reference in the Development Agreement, depicting the conceptual plan for the
Phase 2 Public Improvements and the Phase 2 Development in accordance with this Amendmen�.
"Phase 2 DevelopmenP' means the construction on the Properly of the Academy Store or
similar regional retail facilities reasonably acceptable to the City and the County, and related
Phase 2 Public Improvements.
"Phase 2 Payment Date" means the forty-fifth (45�) day following the conclusion of
each calendar quarter (i.e., February 15, May 15,August 15, and November 15) commencing on
the last day of the calendar quarter after the date on which DLD has received the Tota1 Amount
of Reimbursable Costs due to DLD for the Original Public Improvements pursuant to the
Development Agreement, but in no event earlier than the date of commencement of retail
opera.tions from the Phase 2 Development on the Property.
"Phase 2 Public Improvements" means those certain utility systems, drive aisles, parldng
areas, infrastructure and improvements on the Properry and other public i.mprovements set forth
and described in the Phase 2 Concept Property Plan and more specifically set forth in Exhibit B,
attached to and incorporated by reference in this Amendment
3
required to meet the reasonable requests of prospective tenants or owners; proyide�
that any such change shall comply with all applicable laws of the City and the County;�
of Missouri, and provided further that Developer may not make any change to the Consb
Plans without the consent of the City as may be required by applicable law, which consent,
not be unreasonably withheld or delayed.
k. Certifica.te of Substantial Com letion. Promptly after substanh� �mpletion of `
a11 of the Phase 2 Public Improvements in accordance wi� �e provisions of this Amenc3ment,
Developer shall fumish to the City a Certificate of Substantial Completion so certifying, in the
form attached hereto as Exhibit E and incorporated herein by reference. The City shall,
following delivery of the Certificate of Substantial Completion, carry out such i.nspections as the
City deems necessary in accardance with customary inspection practices of the City to verify to
the City's satisfaction the accuracy of the certifica.tions contained in the Certificate of Substantial
Completion. If the City conducts any inspections of the Phase 2 Public Improvements during the
course of constr�ction, the City shall notify Developer if the City observes any improperly
performed work that would prevent the City from approving the Certi.ficate of Substantial
Completion;provided that failure of the City to so notify Developer shall not relieve Developer
of Developer's obligation to construct and complete all of the Phase 2 Public Improvements in
accordance with applicable State and local law and the provisions of this A mendment. If the
City finds the Certificate of Substantial Completion unacceptable, the City shall, vvithi.n thirty
(30) days after receipt of the Ceriificate of Substantial Completion, provide to Developer a
written statement stating in adequate detail in�,�,}�t respects Developer has failed to complete the
Phase 2 Public Improvements in a.ccordance with t}us Amendment, or in what respects
Developer is otherwise in default hereunder. Drury shall have a reasonable period of ti.me to
complete or correct such items or to ta.ke such action described in the City's written sta.tements;
and Developer 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,
Developer may record the Certificate of Substantial Completion in the o�ce of the Cape
Girardeau County Recorder of Deeds, and the same shall constitute evidence of the satisfaction �p�,��tl
of Developer's agreements and covenants to satisfactorily complete the Phase 2 Public'1�l� d�°
Improvements under this Amendment The City's failure to object in writing to the Certificate of,� ��
Substantial Completion as described above within
City shall be deemed acceptance by the City. Developer�syhall m�� ry �ereof to the��
ma.intained the Phase 2 Pubhc Improvements, during constr��hon and after s bstanh'a.1
completion in a first class condition and worlQn a.n l i k e m a n n e r.
1• Warran�. Developer shall obtai.n from its contractor(s) warranties that each of
the Phase 2 Public Improvements (other than on-site grading), will be free from defects for a
period of not less than two (2)years from the date completed by Developer.
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a� 5. Reimbursement�
_____— __—____.--_----____---
�. Article IV of the Develo�ment A�reement l Article IV of the Development
Agreement sha11 not apply to the Phase 2 Development or the Phase 2 Public Improvements.
b. Develoner's Fundi.n� of Phase 2 Public Improvements. Developer shall advance
all amounts necessary to complete the Phase 2 Public Improvements in accordance with this
Amendmen�
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CERTIFICATE OF OCCUPANCY
1. Legal Description:
Lot Number PT LOT 2 Block Number
Subdivision COMMISSIONERS PLAT
Street Address 270 SHIRLEY DRIVE
Exact Description SINGLE STORY METAL &CONCRETE PANEL BUILDING
ACADEMY SPORTS + OUTDOORS
2. Present Use TYPF (�F C(�NSTRI l(`TT(�N TTR 11SF C;R(�l IP M
3. Owner DURY DEVELOPMENT CORPORATION
4. Architect LAWRENCE S. LEVINSON AIA
5. Contractor ROBERT WIGGINS -TD FARRELL
6. Building Permit Number BP2012-181 (11-30-2010)
7. Square Footage �1,�Rn Building Code �nn9 TRc c�nF
This is to certify that the above described building(s) and/or proposed use of
property has been inspected and found to comply with all building and health laws
and ordinances (or non-conforming uses). The above occupancy or use thereof is
hereby authorized, subject to the following limitations:
NONE
NOTICE; This use must not be changed to any other use without a new certificate of
occupancy from the Inspection Services O�ce, nor en/arged, a/tered nor
reconstructed un/ess in conformance with the Zoning Onalinances
CODE INSPECTOR � ���
DATE: J�ne 19. 2013 �
`' I 1
�u f �-( �u /l
� y
DEVELOPMENT AGREEMENT -�k����� ��✓��
THIS DEVELOPMENT AGREEMENT (this "Agreement"), is made and entered into as
of this �p�day of 2011, by and between the CITY OF CAPE GIR.ARDEAU,
MISSOURI, a home rule c' organized and existing under the laws of the Sta.te of Missouri and
loca.ted in Cape Girardeau Counry (the "City") and DRURY SOLTTHWEST, INC., a Missouri
corporation having a principal office at l0I South Fairaz Drive, Cape Girardeau, Missouri 63701
("Developer"). Capitalized terms used and not defcned in �his Agreement shall have the
meanings respectively ascribed to them in Article I of this Agreement.
WITNESSETH
WHEREAS, the City has determined that it is essential to the economic and social
welfare of the City to promote the economic vitality of the community by assuring opporlunities
for development and sound and stable commercial growth; and
WHEREAS, Developer desires to construct the Public Improvements on and adjacent to
the Property to facilitate retail development of the Property all of which will enhance the tax base
of the City to the benefit of the City and other governmental entities; and
WHEREAS, in connection with the construction of the Public Improvements, Developer
will incur significant costs and the City has agreed, subject to the terms of this Agreement, to
reimburse Developer for a portion of the cost of the Public Improvements which will inure to the
benefit of the City and the citizens of the City, and
WHEREAS, the City is authorized pursuant to Section 70.220 of the Revised Statutes of
Missouri, as amended to contract for the planning, develop�nent and construetion of any public
improvement or facility and the City is further authorized pursuant to Section 349.012 of the
Revised Statutes of Missouri, as amended to expend City funds to promote commercial and
industrial development;
NOW, TF-IEREFORE, foF and in consideration of the mutual covenants and agreernents
contained herein, and for othe� good and valuable consideration, the receipt and sufficiency of
which are hereby ackno�rled.ged, ttie parties hereby agree as follows:
ART�CLE I
DEFINITIONS; CONSTRUCTION
Section l.l Definitions. For putposes of this Agreement, in addition to definitions
appearing elsewhere in this Agreement, words and terms used in this Agreement shall have the
following meanings:
"Administrative Cost" means in each quarter an amount equal to two percent (2%) of tl�e
Sales Tax Revenues from the Development and Developrnent's Baseline Property over the
Development's Sales Tax Base which is retained by the Missouri Department of Revenue for
administration costs as of a Payment Date.
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"Available Revenues" means the Sales Tax Revenues generated by the Development and
the Development's Baseline Property for each caiendar quarter over the Development's Sales Tax
Base and deposited in the Sales Tax Fund in accordance with this Agreement less the
Administrative Cost but as may be amended pursuant to Section 4.5 below.
"Bustness Day" means a �ay other than a Saturday, Sunday or holiday on which
Ivlissouri banks are scheduled in the normai couise of operations to be open to the public for
conduct of banking operations.
"Certifzcate of Reimbursable Costs" means a document substantially in the form of
Exhibit B, attached to and incorporated by reference in this Agreement, provided by Developer
to the City in accordance with this Agreement and evidencing verified Reimbursable Costs
actually incurred by Developer in connection with the construction of the Public Improvements
pursuant to this Agreement.
"Certificate of Substantial Completion" means a document substantially in the form of
Exhibit E, attached to and inco�orated by reference in this Agreement, issued by Developer to
the City and, upon acceptance by the City in accordance with this Agreement, evidencing
Developer's sati�faction of its abligations and covenants to construct the appliea.ble phase of�he
Public Improvements referenced therein in accordance with this Agreement.
"Concept Property 1'lan" means the plan sheet attached as Exhibit C and incorporated by
reference in this Agreement, depicting the conceptual plan for the Public Improvements and the
Development in accordance with this Agreement.
"Construction Plans" means plans, drawings, specifications, construction schedules and
relat�d documents for the construction of any phase of the Public Improvements, together with
all supplements, amendments or corrections thereto, submitted by or on behalf of Developer and
approved by the City or other applicable governmental authority in accordance with applicable
law and this Agreement.
"Development" means the location on the Property of a Menards home improvement
retail facility of not less than 150,000 net leasable square feet or similar regional retail facilities
reasonably acceptable to the City.
"Development's Baseline Property"means the real property described below and
containing, as of the date hereof; the following retailers: Elias Family Center(Ace Hardware)
located at1719 North Kingshighway Street Cape Girardeau MO 63741, Lowes located at 3440
Lowes Drive, Cape Girardeau, MO 63701, Orscheln Farm and Home located at 338 Christine
Street Cape Girardeau, MO 63703, Southeast Missouri Build�rs located at 411 Jefferson Avenue,
Cape Girardeau, MO 63703, Suedekum Hardware located at 620 Good Hope Street, Cape
Girardeau, MO 63703 and Tractors Supply Comgany located at 501 S. Kingshighway Street,
Cape Girardeau, MO 63703 or their relocated sites in the City.
"Development's Sales Tax Base" means an amount equal to a quarterly average over the
five (5) year period immediately preceding the opening for business to the Public o�the Retail
Facility("Opening Date") of actual Sales Tax Revenues received by the City from taxable retail
sales on the Development's Baseline Property. If any of the businesses operating on the
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Development's Baseline Property as of the Opening Date cease operations within the City or
cease operating as a home improvement retailer (either a "Cessation Event"), then the
"Development's Sales Tax Base" shall be reduced by the percentage reduction (if any) in the
Sales Tax Revenues received by the City from the Development's Baseline Property and
Development for the full year prior to the Cessation Event compared to the full year after the
Cessation Event ("Effected Yeaz"). The reduction to the Development's Sales Tax Base shall be
effective as of the date of the Cessation Event and the resuiting increase, if any, in Available
Revenues for the Effected Year sha11 be deposited into the Sales Tax Fund.
"Finance Director" means the duly appointed and serving Director of Finance of the
City.
"Governmenta!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 Public Improvements.
"Material Change" means (i) any change that would result in the Retail Facility either
not to be constructed at a.11 or being reduced in size below 150,000 net leasable square feet,or(ii)
any change that would be reasonably likely to materially affect the capacity or functionality of
the Public Improvements.
"Notice of Commencement of Construction" means a document substantially in the form
of Exhibit D, attached to and incorporated by reference in this Agreement, delivered by
Developer to the City in accordance with this Agreement and evidencing commencement of
construction of the Phase I Public Improvements.
"Parry" or "Parties" means each party to this Agreement and their respective successors
and assigns.
"Payment Date" means the tenth day o� the fourth month after each quarter (i.e.,
February 10, May 10, August 10 and November 10) commencing on the tent�day that is at least
95 days after the end of the first c�uarter in which retail operations from the Development on the
Property are commenced.
"Phase I Public Improvements" means those utility and other public improvements
identified as such and set forth in Exhibit F, attached to and incorporated by reference in this
Agreement.
"Phase II Pubtic Irrcprovements" means those utitity and other public improvements
identified as such and set forth in Exhibit F.
"Property" means the real property legaliy described on Exhibit A, attached to and
incorporated by reference in this AgFeement.
"Publtc Improvements" means those utility and other public improvements set forth and
described in the Concept Property Plan and more specifica.11y set forth in Exhibit F, attached to
and incorporated by reference in this Agreement.
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"Quarter" means the three month periods ending January 31, Apri130, July 31 or October
31.
"Reimbursable Costs" means those costs and expenses set forth and described in Exhibit
F for which Developer is eligible for reimbursement in accordance with this Agreement to the
extent that costs are actually incurred by the Developer and certified by the City.
"Retail Faciliry" mea.ns a Menards home improvement reta.il facility of not less than
150,000 net leasable square feet or similar regional retail facilities reasonably acceptable to the
City located on the Property in accordance with this Agreement.
"Sales Tax Fund" means a separate segregated fund with the treasury of the City, into
which the Available Revenues are from time to �ime deposited in accordance with this
Agreement.
"Sales Tax Revenues" means the revenues derived from the City's current levies of$0.25
ca.pital improvements water sales taxes, $0.25 ca.pital improvements sewer sales taxes and $0.50
transportation sales taxes (so long as such levies remain in force and effect or from extensions or
substitutions t�hereof or similar Ievies imposed by the City pursuant to law). If any of the
foregoing sales taxes lapse (for any reason) during the Term, then "Sales Ta.x Revenues" shall
include revenues from any similar sales taxes currently existing or later imposed by the City
which the City is legally permitted to use to pay the Reimbursable Costs but specifically
excluding the City's general fund, fire protection tax and parks and storm water tax provided the
total sales tax subject to is Agreement shall not exceed 1.0°/a in the aggregate.
"Term"means the time period commencing with the full execution of this Agreement and
ending upon the earlier of (i) the date on which Developer has received the Total Reimbursable
Amount; (ii) termination of this Agreement under Sections 6.1 or 6_2 of this Agreement; or (iii)
fifteen (15) years from th� first day of the first full quarter of retail operations from the
Development on the Property unless extended pursuant to Section 4.5 below.
"Third Party Action" means any action, proceeding or demand initiated by a party other
than a p�rty to this Agreement and directect to the City or naming the City as a party, but only for
those actions proceedings or detnands which arise out of Developer's failure to comply with this
Agreement.
"Total Reimbursable Araount" means an amount equal to the verified Reimbursable
Costs actually incurred by Developer in accordance with this Agreement up to a maximum
aggregate amount of Three Million Dollars and 00/100 cents ($3,000,000.00).
Sec�ion 1.2 Construction. This Agreement, except where the context by clear
implication shall otherwise require, shall be construed and applied as follows:
(a) Definitions include bath singular and plural;
(b} Pronouns include both singular and plural and cover all genders;
(c) Headings of sections are solely for convenience or reference and do not constitute
a part hereof and shall not affect the meaning, construction or effeet hereof; and
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(d) All exhibits attached to this Agreement shall be and aze incorporated by reference.
Section 1.3 Computa.tion of Time. Unless otherwise expressly provide herein,
wherever this Agreement calls for the performance of any act by reference to a day or number of
days, to a month or number of months or to a yeaz or number of years, ea.ch such computation
shall be made based upon calendar days, calendar months and calendar years, as applicabl�.
ARTICLE II
REPRESENTATIONS AND WARRA.NTIES
Section 2.1 Representa.tions and Warranties of Developer. Developer represents and
warrants to the City as follows:
(a) Organization. Developer is a corporation duly organized, validly existing and in
good standing under the laws of the State of Missouri.
(b) Power and Authority. Developer has or will obtain full power and authority to
execute and deliver this Agreement and to perform all of Developer's agreements,
obligations and undertakings under this Agreement.
(c) Authorization and Enforceability. The execution; delivery and performance of
this Agreement have been duly and validly authorized by all necessary actions by
Developer. This Agreement is a legal, valid and binding agreement, obligation
and undertaking of Developer, enforceable against Developer in accordance with
its terms, except as enforcement hereof maXbe limited by applic�ble bankruptcy,
reorganization, insolvency or similar laws affecting creditor's rights as may from
time to time be in effect.
(d) Further Consents and Approvals. No consent or approval by any other entity,
whether or not affiliated with Developer, is required in connection with the
e�ecution and delivery by Developer af this Agreement or the performance by
Developer of Developer's obligations under this Agreement.
Section 2.2 Representations and Warranties of the Citv. The City hereby represents
and warrants to Developer as follows:
(a) Organization and Standing. The City is home rule city duly organized under the
laws of the State of Missouri.
(b) Power and Authoriry. The City has full power and aut�torit}� ta execute and
deliver this Agreement and to perform all of its agreements, obligations and undertakings under
this Agreement.
(c) Authorization and Enfopceabili�y. The execution, delivery and performance af
this Agreement have been duly and validly authorized by all necessary action on the part of the
City. This Agreement is a legal, valid and binding obligation of the City, enforceable against the
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City in accordance with its terms, except as enforcement hereof may be limited by applicable
baukruptcy, reorganization, insolvency or similar laws affecting creditor's rights as may from
time to time be in effect.
(d) Governmental Consents and Approvals. No consent or approval by any other
. governmental authority is required in connection with the execution and delivery by the City of
this Agreement or the performance hy the City of the City's obligations hereunder.
ARTICLE III
CONSTRUCTION OF DEVELOP1k1ENT, PUBLIG IMPROVEMENTS
Section 3.1 Develoner to Pay Certain Costs. Developer agrees to pay or cause to be
paid a11 costs as necessary to acquire the Property and to obtain all required Governmental
Approvals and complete or cause to be completed the Public Improvements in accordance with
the Concept Property Plan and with the schedules set forth in this Agreement, all subject to
Developer's right to terminate this Agreement as set forth in Section 6.1 of this Agreement_
Section 3.2 Acquisition of Propertv. Developer hereby represents and v�arrants to the
City that as of the date of this Agreement, Developer 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 Developer or otherwise) all of the Property and such other real property
necessary for Developer to construct or cause to be constructed the Public Improvements and to
implement or cause to be implemented the Development as depicted on the Concept Property
Plan and in accordance wi�h the schedutes set forth in this Agreement_ Developer 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 Property and such other real property as is necessary for Developer to
construct or cause to be construct�d the Public Improvements.
Section 3.3 Governmental Approvals- Commencement of �onstruction. All
Construction Plans shall be prepared by a professional engineer or architect licensed to practice in
the State of Missouri and shall be in sufficient completeness and detail to show that all aspects of
construction 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. Developer 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 applica.ble City
ordinances and practices and this Agreement and with the laws of the State of Missouri; provided
that nothing in this Agreement shall require the City to grant any Govemmental Approval or other
approval, other than as may be required of the City exercising the City's police power under
applica.ble law. In the event the City shall reject such Construction Plans or any portion thereof,
such rejection shall specify any and al1 deficiencies in the such Construction Plans relating to
lack of general conformance with this Agreement or with applicable City codes, ordinanees and
regulations; provided that the City's failure to specify deficiencies in such Construction Ptans
relating to the City codes, ordinances and regulations shall not relieve Developer of Develvper's
obligations to install or cause to be installed the Public Improvements in accordance therewith.
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In the event of the City's disapproval of any such Construction Plans or portions thereof, such
disapproval shall be in writing and shall specify the basis for the disapproval. Within thirty(30)
days after the date Developer receives written notice of the City's disapproval of plans referred
to in the latest such notice, Developer sha11 submit or ca.use to be subxnitted new or corrected
Construction Plans. The provisions of this Section 3.3 relating to approval, rejection and
resubmittal of such Construction Plans shall con�inue to apply to resubmittal of conected
Construction Plans until such Construction Plans have been approved by the City. Developer
sha11 require that all construction by or on behalf of Developer or its agents, affiliates or
independent contractors in connection with the Public Improvements be perfonned in a good and
workmanlike manner and in conformiry with the Construction Plans therefor as finally approved
by the City. Within sixty (60) days after Developer's obtaining of a building permit for the
Phase I Public Improvements, Developer shall provide to the City a Notice of Commencement of
Construction in the form of Exhibit D, which shall serve as notice to the City that Developer is
commencing the construction of the Phase I Public Improvements in accordance with the terms
of this Agreement.
Section 3.4 Construction Schedule. Developer shall use commercially reasonable
efforts to complete construction of the Public Improvements and each of Developer's obligations
under this Agreement with respect to the construction and completion of the Public
Improvements on or before December 31, 2013.
Section 3.5 Construction Contracts. In constructing or causing the construction of the
Public Improvements Developer may enter into or cause to be entered into one or more construction
contracts to complete and install the Public Improvements. Prior to the commencement of
construction, Developer shall obtain, or shall ensure that any contractor engaged to perform the
Public Improvements obtains Worker's compensation, comprehensive public liability and
builder's risk insurance coverage in amounts set forth in Section 3.6 of this Agreement and shall
use commercially reasonable efforts to ensure that all such insurance coverages are maintained by
any such contractor for the dura.tion of the construction of the Public Improvements. Prior to
commencement of construction or simultarteously with the execution and delivery of this
Agreement by Developer, whichever is later, Developer shall deliver to the City evidence of all
insurance to be maintained by such contractor as required by this Section 3.S.To the full exte�t
that competitive bidding and award requirements (including, without limitation, those requirements
imposed by the City pursuant to City ordinances or practices) and prevailing wage or other wage
and hour statutes or requirements or requirements to obtain payment bonds including, without
limitation, a performance and payment bond in conformance with Section 107.170 of the Revised
Statutes of Missouri, as amended, apply to any portion of the Public Improvements, Developer
covenants and agrees to take all such actions as are necessary to comply with such laws,regulations
or requirements and to indemnify, defend and hold harmless the City and its officials, officers,
employees and agents from any actions, causes, proceedings, awards, costs, liabilities, damages or
expenses, including attorneys' fees, arising out of Developer's faiture to fully satisfy the foregoing
requirements. The foregoing indemnification and defense obligations of Developer set forth in this
Section 3.5 shall survive termination of this Agreement for any reason for a period of one(1)year.
Section 3.6 Insurance. Developer shall ca�se there to be insurance as hereinafter set
forth at all times during the process of constructing the Public Improvements and from time to
time at the request of the City, shall furnish tlie City with proof of payrnent of premiums on:
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(a) Builder's risk insurance, written on the so called"Builder's Risk—Completed Value
Basis," in an amount equal to one hundred percent(100%) of the insurable value of
the Public Improvements, and with coverage available in non-reporting form on the
so-called "all risk" form of policy. The interest of the City shall be protected in
accordance with a clause in form and content satisfactory to the City(to accomplish
the above required limits,an umbrella liability policy may be used);
(b) Comprehensive general liability insurance (including operations, contingent
liability, operations of subcontractors, competed operations and contractual
liability insurance) together with an owner's contractor's policy, with limits
against bodily injury and property damage of not less than Two Million Dollars
($2,000,000) for each occurrence and Three Million Dollars $3,000,000 in the
aggregate (to accomplish the above required limits, an umbrella excess liability
policy may be used); and
(c) Workers' compensation insurance, with statu�orily required coverage.
The policies of insuranc� required pursuant to clauses (a) and (b) above shall be in form
and content satisfactory to the City and shall be placed with financially sound and reputable
insurers licensed to transact business in the State of Missouri. The policy of insurance delivered
pursuant to claus� (b) above shall contain an agreement of the insurer to give not less than thirty
(30) days advance written notice to the City in the event of cancellation of such policy or change
affecting the coverage thereunder. All policies of insurance required pursuant to this Section 3.6
shall name the City as an additional insured and as an additional loss payee_
Section 3.7 Inspections. Developer shall allow authorized representatives of the City
access to the Property, from time to time upon reasonable advance notice prior to the completion of
the Public Improvements for reasonable inspection thereof, which access shall be at its sole risk and
responsibility.
Section 3.8 Concept Property Plan. The Concept Property Plan set forth in Exhibit C
to this Agreement is hereby approved by the City. During the progress of the Development and
the construction of the Public Improvements, Developer may make changes to the Concept
Property Plan or any aspect thereof as may be in furtheratice of the general objectives of this
Agreement and as site conditions or other issues of feasibility may dictate or as may be required
to meet the reasonable requests of prospective tenants or owners; provided, however, that any
such change shall comply with all applicable laws of the City, and State of Missouri, and
provided further that Developer may not make any Material Change to the Concept Property
Plan, whether individually with respect to any phase or in the aggregate, without the advance
written consent of the City, which consent shall not be unreasonably withheld or delayed. The
City shall agprove or reject in writing the proposed Material Change to the Concept Property
Plan within thirty (30) days after submittal by Developer to the City; atherwise, the Material
Change shall be deemed approved.
Section 3.9 Certifica.te of Substantial Completion_ The Parties hereby acknowledge
that the Phase I Public Improvements shall be completed prior to the Phase II Public
Improvements. Promptiy after substantial completion of any phase of the Public Improvements
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in accordance with the provisions of this Agreement, Developer shall fumish to the City a
Certificate of Substantial Completion for such phase so certifying. The City shall, following
delivery of a Certificate of Substantial Completion for any phase of the Public Improvements,
carry 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
conta.ined in such Certificate of Substantial Completion. If the City conducts any inspections of
the Public Improvements during the course of construction, the City sha1l notify Developer if the
City observes any improperly performed work that would prevent the City from approving a
Certificate of Substantial Completion for that phase of the Public Improvements provided that
failure of the City to so notify Developer shall not relieve Developer of Developer's obiigation to
construct and complete all of the Public Improvements in accordance with applicable State and
local law and the provisions of this Agreement. If the City finds a Certificate of Substantial
Completion unacceptable, the City shall, within thirty (30) days after receipt of such Certificate
of Substantial Completion, provide to Developer a written statement stating in adequate detail in
what respects Developer has failed to complete the Public Improvements, in reasonable
accordance with this Agreement, or in what respects Deve�oper is otherwise in default hereunder,
and what measures or acts Developer must take or perform, in the reasonable opinion of the City,
to obtain such acceptance. Developer shall have a reasonable period of time to complete or
correct such items or to take such action described in the City's written sta.tement, and Developer
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, Developer 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 Developer's agreements
and covenants to satisfactorily complete that phase of the Public Improvements under this
Agreement. Upon such completion, Developer shall offer that phase of the Public Improvements
for dedication to the City. It is the present intention of the City to accept such dedication if
Developer complies with the terms of this Agreement_
Section 3.10 Warrantv. Developer shall obtain from its contractor(s) and assign to the
City warranties that each of the Public Improvements (other than on-site grading), will be free
from defects for a period of not less than one (1) year frorrt the date that the City accepts the
dedication of the such Public Improvement.
Section 3.11 Release and Indemnification.
(a) Notwithstanding ar�ything herein to the contrary, the City, its governing body,
officials, agents, employees and independent contractors, respectively, shall not be liable to
Developer for damages of any kind or nature whatsoever or otherwise in the event that all or any
part of the Section 70.210, et seq., or Section 94.500 of the Revised Statutes of Missouri, as
amended, or any ordinance or order of the City adopted in connection with or in connection with
this Agreement, shall be declazed invalid or unconstitutional in whole or in part by the final (as
to which all rights of appea.l have expired or have been exhausted) judgment of any court of
competent jurisdiction, and by reason thereof the City is prevented from performing any of the
covenants and agreements herein or Developer is prevented from enjoying the rights and
privileges hereof; provided that nothing in this paragraph shall limit actions by Developer
seeking specific performance of relevant provisions of this Agreement.
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(b) Developer releases from and covenants and agrees that the Ciry, its governing
body, officials, agents, employees and independent contractors, respectively, shall not be liable
for, and agrees to indemnify and hold harmless the Ciry, its governing body, officials, agents,
employees and independent contractors, respectively, thereof against, any loss or damage to
property or any injury to or death of any person occurring at or about or resulting from any
defect in the construction of the Public Improvements, except as such may be caused 6y the
intentional conduct, gross negligence, or other acts or omissions of the City, its governing body,
officials, agents, employees or independent contractors.
(c) The City, its governing body, officials, agents, employees and independent
contractors shall not be liable for any damage or injury to the persons or property of Developer
or its officers, agents, independent contractors or employees or any other person who may be
about the Property, the Public Improvements or the Development due to any act of negligence of
any person, except as such may be ca.used by the intentional misconduct, gross negligence, or
acts or omissions of the City, its governing body, officials, agents, employees, or independent
contractors, respectively.
(d) No member of the governing body, officials, agents, employees or independent
contractors of the City shall be personally liab�e to Developer in the event of a default or breach
by any Party under this Agreement.
(e) Developer agrees to indemnify, defend and hold harmless the City, its governing,
officials, agents, employees and independent contractors, respectively, from and against any and
all suits, claims and cost of attomeys' fees, resulting from, arising out of, ar in any way
connected with (i) this Developer's failure to comply with its obligations in this Agreement; (ii)
the construction of the Pubtic Improvements; and (iii) the negligence or willful misconduct of
Developer, its officials, agents, employees or independent contractors in connection with the
management, development, redevelopment and construction of the Public Improvements, except
as such may be caused by the intentional conduct, gross negligence or breach of this Agreement
by the City, its governing body, afficials, agents, employees or independent contractors.
(� Developer further agrees to indemnify, defend, and hold hannless the City, its
governing body, officials, agents, employees and independent contractors from and against any
and all claims, demands, costs, liabilities, damages or expenses, including attorneys' and
consultants' fees, investigation and laboratory fees, court costs and litigation expenses, arising
from: (i) any release or threat of a release, actual or alleged, of any hazardous substances, upon
or about the Property in connection with the construction of the Public Irnprovements or
respecting any products or materials previously, now or therea.fter located upon, delivered to or
in transit to or from the Property in connection with the construction of the Public Improvements,
regardless of whether such release or threat of release or alleged release or t�reat of release has
occurred prior to the date hereof or hereafter occurs provided said release or t�reat of release is
not caused as a result of any act, omission, negligence or misconduct of the City; (ii) (A) any
violation now existing (actual or alleged) of, or any other liability under or in connection with,
any environmental la�vs relating to the construction of the Public Improvernents, or (B) any now
existing or hereafter arising violation, actual or alleged, or any other liability, under or in
connection with, any environmental laws relating, to any products or materials previously, now
or hereafter located upon, detivered to or in transit to or from the Property in connection with the
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construction of the Public Improvements, regardless of whether such violation or alleged
violation or other liability is asserted or has occurred or arisen prior to the date hereof or
hereafter is asserted or occurs or arises and regardless of whether such violation or alleged
violation or other liability occurs or arises, as the result of any act, omission, negligence or
misconduct of the City or any third party or otherwise; (iii) any assertion by any third party of
any claims or demands for any loss or injury arising out of, relating to or in connection with any
hazardous substances on or about or allegediy on or about the Property in connection with the
construction of the Public Improvements; or (iv) any breach, falsity or failure of any of the
representations, warranties, covenants and agreements of the like. For purposes of this
pazagraph, "hazardous materials" includes, without limit, any flammable explosives, radioactive
materials, hazardous materials, hazardous wastes, hazaxdous or toxic substances, or related
materials defined in the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended (42 U.S.C. §§ 9641 et seq.), the Hazardous Materials Transporta.tion
Act, as amended (49 U.S.C. §§ 1801 et seq.), the Resource Conservation and Recovery Act, as
amended (42 U.S.C. §§ 9601 et seq.), and in the regulations adopted and promulgated pursuant
thereto, or any other federal, state or local environmental law, ordinance, order, rule or
regulation.
Notwithstanding anything herein to the contrary, Developer's obligations under this Article III
shall terminate one(1) year after the Public Improvements have been dedicated to the Ciry_
ARTICLE IV
REIMBURSEMENT
Section 4.1 Developer's Funding of Public Improvements. Developer shail advance
all amounts necessary to complete the Public Improvements in accordance with this Agreement.
Section 4.2 Reimbursement. Upon acceptance by the City of a Certificate of
Substantial Completion for the Phase I Public Improvements, the City shall reimburse Developer
for verified Reimbursable Costs actually incurred by Developer in conneetion with construction
of the Phase I Public Improvements, up to the Total Reimbursable Amount, with such
reimbursement payments beginning on the first Payment Date after the City's acceptance of the
Certificate of Substantial Completion for the Phase I Public Improvements and ending on the
Payment Date prior to the end of the Term of this Agreement. Upon acceptance by the City of a
Certificate of Substantial Completion for the Phase II Public Improvements, the City shall
reimburse Developer for verified Reimbursable Costs actually incurred by Developer in
connection with construction of the Phase II Public Improvements, up to the Total Reimbursable
Amount, with such reimbursement payments beginning on the first Payment Date after the City's
acceptance of the Certificate of Substantial Completion for the Phase II Public Improvements
and ending on the Payment Date prior to the end of the Term of this Agreement.
Section 4.3 Reimbursements Limited to Venfied Reimbursable Costs. Nothing in this
Agreement shall obligate the City to reimburse Developer for any portion of the Reimbursable
Costs that are not actually incurr�d in accordance with this Agreement and that do not qualify as
a Reirtlbursable Cost under this Agreement. Further, nothing in this Agreement shall obligate the
City to rei�nburse Developer for any portion of the Reimbursable Costs unless Developer shall
first grovide to the City a Certificate of Reimhursable Costs aceompanied by the applicable
li
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Certificate of Substantial Completion in each case: (i) copies of invoices prepared by the
applicable vendor, contractor or supplier for which reimbursement is sought, as applicable; (ii)
lien waivers and (iii) reasonable detail to enable the City to readily determine the improvement
or expenditure for which such reimbursement is sought. The City shall review each such
Certifica.te of Reimbursable Costs and Certificate o� Substantial Completion within forty-five
(45) days after such submittal is received;provided that the City reserves the right to reject and
require resubmittal of any request which does not satisfy the foregoing conditions, which
determination of sufficiency shall be in the City's reasonable discretion. The City's failure to
object to a Certificate of Reimbursable Costs within forty-five (45) days after receipt by the City
shall constitute the City's acceptance of the same. If the City disapproves any Certificate of
Reimbursable Costs, the reason for disapproval sY�all be set forth in writing, and Developer shall
revise and resubmit such Certifica.te of Reimbursable Costs with such additional information as
may be reasonably required.
Section 4.4 Developer's Right to Substitute. The Parties acknowledge that each of the
costs listed in Exhibit F to this Agreement constitute eligible Reimbursable Costs under this
Agreement. In the event that any such cost is determined not to be a Reimbursable Cost eligible
for reiml�ursement and payment under applicable law, Developer shall have the right to
substitute other Reimbursable Costs up to the Total Reimbursable Amount. In no event shall the
tota.l amounts reimbursed to Developer hereunder exceed the Total Reimbursable Amount_
Section 4.5 New Development The Parties hereby agree that if any economic activity
occurs on the Property other than the Development (ea.ch a "New Development"), then this Agreement
shall be amended for each New Development to provide that the Sales Tax Revenues generated by such
New Development shall be(a) utilized to reimburse Developer for its Reimbursable Costs over a term of
�fteen (15) years the date of its opening to the public for business ("New Development Opening Date")
(but not to exceed twenty (20) years from the commencement of retail operations from the
Development) and (b) included as "Available Revenues". If the City determines that any New
Development competes with a material number of businesses located within the City as of the New
Development Opening Date, then the City may establish a baseline property and a sales tax base for
purposes of calculating the Available Revenues from such New Development(commencing on the New
Development Open Date) ugon substantially the same terms as apply herein to the Development_
Section 4.6 Citv's Obli�ations Limited to Available Revenues. Notwithstanding an�
other term or provision of this Agreetnent, the amount of Reimbursable Costs reimbursed to
Developer under this Agreement shall be payable only from Available Revenues and from no
other source whatsoever.
AR'I'ICLE V
COLLECTION AND PAYMENT OF REIIVIBURSABLE COSTS
Section 5.1 Establishment of the Sales Tax Fund; Accountin�. Upon the full
execution of this Agreement, the City shall to cause the Finance Director to create the Sales Tax
Fund. For the Term of this Agreement, in each quarter the City shall deposit Availabie Revenues
from that quarter within ninety (90) �ays after the end of that quarter (less any amounts held as
under dispute) as received into the Sales Tax Fund to be used and applied to reimbursement
payments to Developer in accordance with Article IV of this Agreement. Prior to each Payment
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Date during the Term of this Agreement, until the Total Reimbursable Amount has been rea.ehed
and paid to Developer, the Ciry shall prepare and deliver to Developer a written report of the
amount of Available Revenues deposited into and expended from the Sales Tax Fund for the
quarterly period immediately preceding and the total amount of Available Revenues deposited to
date certified by an appropriate City official to be a complete and accurate statement thereof.
Section 5.2 Disbursement of Availabie Revenues. On each Payment Date during the
Term, the City shall remit all Available Revenues deposited in the Sales Tax Fund subject to
annual appropriation to Developer in a total amount up to the Total Reimbursable Amount
payable under this Agreement. In no event shall Developer be entitled to any amount in excess
of the Total Reimbursable Amount and, in the event the Tota.l Reimbursable Amount has been
rea.ched during any year of the Term, this Agreement shall terminate and no Party shall have any
further obligation to any other Party hereunder(other than indemnification obligations expressly
surviving such termination).
Section 5.3 Annual Appropriation. The obligations of the City to make the payments
hereunder constitute a cunent expense of the City, are from year to year, in each such year shall
be subject to annual appropriation in accordance with the City's customary practices for such
decisions, and shall not constitute a mandatory payrnent 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 applica.ble constitutional or
statutory limitation or requirement concerning the creation of indebtedness by the City nor shall
anything contained herein constitu�e a pledge of the general credit, tax revenues, funds or
moneys of the City. Subject to the terms of this Agreement, the City reasonably believes that
legaily available funds in an amount sufficient to make all payments during the Term of this
Agreement can be obtained. Notwithstanding the foregoing, the decision whether or not to
budget or appropriate funds for any subsequent fiscal year is solely wit�in the discretion of the
then cturent goveming body of the City.
Section 5.4 Sales Tax Infonnation. All Available Revenue and the Development's
Sales Tax Base calculations shall use information provided to the City in quarterly reports from
the State of Missouri Department of Revet�ue.
ARTICLE VI
GENER�rL PROVISIQNS
Section 6.1 Developer's Right of Termination.
(a) At any time prior to the delivery of a Certificate of Substantial Completion for the
Phase I Public Improvements, Developer may, by giving written notice to the City, abandon or
discontinue the construction of the Public Improvements and terminate this Agreement and
Developer's obligations hereunder. Upon sueh termination, (i) the City shall have no obIigation
to reimburse Developer for any amounts advanced under this Agreement, or for work performed
hereunder, or for costs otherwise incurred or paid by Developer, and (ii) neither Developer nor
th� City shall have any further obligation regarding the Development, Public Improvernents or
this Agreement.
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(b) At any time prior to the delivery of a Certificate of Substantial Completion for the
Phase II Public Improvements, Developer may, by giving written notice to the City, abandon or
discontinue the construction of the Phase II Public Improvements and tenninate this Agreement
and Developer's obligations as it applies to the Phase II Public Improvements. Upon such
termination, (i) the City shall have no obligation to reimburse Developer for any amounts
advanced under this Agreement€or the Phase II Public Improvements, or for�ork performed for
the Phase II �ublic Improvements, or for costs otherwise incurred or paid by Developer for the
Phase II Public Improve�nents, and (ii) neither Developer nor the City shall have any further
obligation regazding the Phase II Public Improvements. Notwithstanding the foregoing, if
Developer exercises its rights under this Section 6.1(b), this Agreement shall continue in fu�l
force and effect as it relates to the Phase I Public Improvements, including Developers rights to
reimbursement under this Agreement therefore.
Section 6.2 Cit '�ght of Termination. Subject to Developer's right to cure as
provided in Sections 6.3 and 6_4 below, the City may tenninate this Agreement in the event that
Developer fails to satisfactorily complete the Public Improvements in accordance with the time
schedules and requirements established in this Agreement. Upon such termination which shall
be effective upon Developer's receipt of written notice from the City, the City shall have no.
further obligation to reiFnburse Developer for any amounts advanced under this Agreement or
costs otherwise incuired or paid by Developer or any other person or entity in connection with
the construction of any Public 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 sha11 constitute a default under
this Agreement. The Party 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 nonrt�onetary
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 Party shall, prior to the end of such thirty(30) days, provide notice to the
other Party that the breaching Party has in good faith commenced to cure or remedy such default
or breach, whereupon the defaulting ar breaching Party 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.
14 �
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Section 6.4 Monetarv 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 non-defaulting Party
shall only be required to provide a ten (10) day cure period to the defaulring Party following
notice to the defaulting party of such monetary default.
Section 6.5 Entire Contract and Amendments. This Agreement (together with the
e�chibits attached hereto) constitutes the entire agzeement between the Parties relating to the
subject matter hereof, supersedes all prior and contemporaneous negotiations, understandings
and agreements, written or oral, between the Parties, and may not be modified or arnended
except by a written instrument executed by all of the Parties.
Section 6.6 Third Parties. Nothing in this Agreement, whethez expressed or implied,
is intended to confer any rights or remedies under or by reason of this Agreement on any other
person other than the Parties and their respective successors and assigns, nor is anything in this
Agreement intended to relieve or discharge the obligation or liability of any third persons to any
of the Parties, nor shall any provision give any third parties any rights of subrogation or action
over or against any of the Parties. This Agreement is not intended to and does not create any
third party beneficiary rights whatsoever.
Section 6.7 Caunterparts. Any number of counterparts of this Agreement may be
executed and delivered and each shall be considered an original and together they shall constitute
one agreement.
Section 6_8 Waiver. Any Party to this Agreement may elect to waive any right or
remedy it may enjoy hereunder, provided that no such waiver shall be deemed to exist unless
such waiver is in writing. No such waiver shall obligate the waiver of any other right or remedy
hereunder, or shall be deemed to constitute a waiver of other rights and remedies provided
pursuant to this Agreement. The failure to enforce any particular provision of this Agreement on
any particular occasion shall not be deemed a waiver by either party of any of its rights
hereunder, nor shall it be deemed to be a waiver of subsequent or continuing br�aches of such
provision.
Section 6.9 Cooperation and Further Assurances. The Parties each covenant and agree
that they will do; execute, and deliver such agreements, instruments and documents supplemental
hereto and such further acts, instruments, pledges and transfers as may be reasonably required for
the confirming unto the Parties and other appropriate persons all rights, property and revenues
covenanted, agreed, conveyed, assigned, transferred and pledged under or in respect of this
Agreement.
Section 6.10 Severabilitv. If any section, subsection, term or provision of this
Agreement or the application thereof to any party or circumstance shall, to any extent, be invalid
ar unenforceable, the remainder of such section, subsection, term or provision of this Agreement
or the application of same to parties or circumstances other than those to which it is hetd invalid
or unenforceabfe, shal� not be affected thereby.
Section 6.11 Notices. All notices, demands, requests, consents, approvals or other
communications or instruments required or otherwise given under this Agreement shall be in
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writing, executed by the Party or an officer, agent or attorney of the Party, addressed to the
appropriate party at its address set forth below, or at such other address as such party shall have
last designated by notice to the other, and shall be deemed to have been efFective as of the date of
actual delivery, if delivered personally, or one business day after deposited with a recognized
overnight carrier (such as Federal Express) for ovemight delivery, or as of the third (3rd) day
from and including the date of posting, if mailed by registered or certified mail, return receipt
requested, with posta.ge prepaid, provided, however, that if any such notice or other
communica.tion shall also be sent by telecopy or fax machine, such notice shall be deemed given
at the time and on the date of machine transmittal if the sending party receives a written send
verification on its machines and forwards a copy thereof by overnight delivery sent the day the
telecopy transmission is sent.
To Developer: Drury Southwest, Inc_
101 S. Fairar Drive
Cape Girardeau, Missouri 63701
Attention: Larry Westrich
Tel: (573) 335-3134
Fax: (573) 335-5125
With copy to: Herbert J. Wedemeier
101 S. Farrar Drive
Cape Girardeau, Missouri 63701
Tel: (573)335-3134
Fax: (573) 335-5125
To the City: City of Cape Girazdeau
401 Ind�pendence Street
Cape Girardeau, Missouri, 63703
Attn: City Manager
Tel: (573) 334-1212
Fax: (573) 335-7946
Section 6.12 Successors in Interest. This Agreement shall be binding upon and inure ta
the benefit of the Parties hereto and their respective authorized successors and assigns.
Section 6.I3 No Joint Venture, �k�ency, or Partnership Created. Nothing in this
Agreement nor any actions of the Parties to this Agreement shall be construed by the Parties or
any third person to create the relationship of a partnership, agency, or joint venture between or
among such pa.rties.
Section 6.14 Applicable Law; Choice of Forum_ This Agreement and its performance
sha11 be governed by a.nd construed under the laws of the State of Missouri applicable to
eontracts made and to be performed wholly within such state, without regard to choice or conflict
of laws provisions. Th� parties hereto agree that any action at law, suit in equity, or other
judicial proceeding arising out of this Agreement shall be instituted only in the Circuit Court of
Cape Girardeau County, Missouri or in federal court of the Eastem District of Missouri and
waive any objections based upon venue or forum non conveniens or otherwise."
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Section 6.15 No Personal Liability of Officials of Citv. No covenant or agreement
contained in this Agreement shall be deemed to be the covenant or agreement of any official,
officer, agent, employee or attorney of the City, in his or her individual capacity, and neither the
members of the City Council nor any official of the City sha11 be liable personally under this
Agreement or be subject to any personal liability or accountability by reason of the execution,
delivery and perfonnance of this Agreement.
Section 6.16 Repealer. To the extent that any ordinance, resolution, rule, order or
provision of the City's Code of Ordinances is in conflict with the provisions of this Agreement,
the provisions of this Agreement shall be controlling.
Secrion 6.17 Assig u,r nent. Prior to completion of the Public Improvements, the benefits
of this Agreement to Developer are personal and may not be assigned without the express written
approval of the City. After completion of the Public Improvements, this Agreement may be
assigned by Developer with the written approval of the City, which approval will not be
unreasonably withheld or delayed.
Section 6.18 Immunity. Nothing contained in this Agreement constitutes a wa.iver of
the City's sovereign immunity under any applicable state law.
Section 6.19 Force Majeure. No party to this Agreement shall be considered in breach
or default of their respective obligations under this Agreement, and the times for performance of
obligations hereunder shall be extended in the event of any delay caused by events of force
majeure including, without limitation, acts of God, fire or other casualty, strike, lockout or other
labor dispute, weather conditions, shortages or unavailability of material, labor or utilities, waz,
terrorism, vandalism, failure of any third party to perform obligations, govemmental, civilian or
military authority.
Section 6.20 Third Party Actions. Developer shall indemnify, defend and hold the City
and its officials, agents, employees and representatives acting in any capacity harmless from any
Third Party Action. Developer shall have the right, bu� not the obligation to assume the costs of
defense of any Third Party Action with counsel reasonably acceptable to the City and the City
and Developer each agree that so long as no conflicts of interest exist between or among them,
the same attorney or attomeys may simultaneously rep�esent the City and Developer in any such
proceeding; provided that Developer shall have the further right to eleet to abandon any such
defense which Developer has assumed hereunder and, if Developer so elects, neither the City nor
any officer, director, employee or agent thereof shall have any obligation to defend or to assume
the costs of defense of any sueh action; and provided further that in any such instance, Developer
shall indemnify, defend and hold the City and the officials, agents, employees and
representatives of each of them, all harmless from all such Third Party Actions. The
indemnification obligations of Developer hereunder shall survive termination af this Agreement
for any reason for a period of one(1) year after the Public Improvements have been dedicated to
the City. In no event shall the City or any official, agent, employee or representative of either of
fhem have any liability to Developer for daznages or otherwise in the event that all or any part of
this Agreement, shall be declared invalid or unconstitutional in whole or in part by a final (as to
which all rights of appeal have been exhausted or expired) judgment of a court of competent
jurisdiction, or as a result of initiation of a Third Party Action, Devetoper prevented from
enjoying the rights and privileges of Developer hereunder.
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Section 6.21 Remedies; No Related Claims. Remedies available under this Agreement
shall be limited to equitable remedies including specific performance. The Parties hereto agree
that the City sha11 have no liability in damages or any other monetary liability (other than for
amounts due to Developer from Available Revenues actually and lawfully deposited from �ime
to time in the Sa1es Tax Fund in accordance with this Agreement) to Developer or its successors,
assigns, heirs and personal representatives in respect of any suit, claim, or ca.use of action arising
out of this Agreement.
[�emainder of page intentionally left blank]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their duly authorized officers as of the date set forth above.
CITY OF CAPE G EAU, MISSOURI
.<�.�•�ts�I�►� BY:
;>'4 a ��''�� �`� anager
�=��L' � q 1
,
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, � � ,, . �` �
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�.:. �.���. �:;=�- .,,//lI o
4S .' .. _`V. .
'`�;:.�:�;,;F:�'✓�;7 ��
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City Clerk�� �
DRURY SOUTHWEST, INC.
B y:(_�a:.�:.�'Y-�-�r�
Carolyn F. Bohnert, Senior Vice President
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EXHIBIT A
Legal Description of Property
ALL OF LOT 1 OF KELLER SECOND SUBDIVISION, BEING THAT PART OF UNITED
STATES PRNA"I'E SURVEY NO. 175 AND THAT PART OF ARMSTRONG DRIVE AND
KELL FARM DRIVE ALL IN TOWNSHIP 30 NORTH, RANGE 13 EAST, IN THE CITY
AND COUNTY OF CAPE GIRARDEAU, MISSOURI MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
Commence at the Southwest corner of Cape West Third Subdivisior�as recorded in the land
records of said County in Plat Book 16, Page 82, said point being on the centerline of Bloomfield
Road; thence with said centerline, South 56°18'32" West, 86.80 feet; thence leaving said
centerline, South 33°41'28" East, 30.00 feet to a point on the Southeast rigl�tt of way line of
Bloomfield Road,the point of beginning; thence with said right of way line, Narth 56°18'32"
East, 558.85 feet; thence North 60°10'23" East, 350.57 feet; thence South 55°52'48" East, 108.46
feet, to a point on the west right of way line,of Siemers Drive; thence with sa�d right of way line,
South 33°OS'S1" East, 25.20 feet; thence along the arc of a curve to the right having a radius of
1392.39 feet, a distance of 532.82 feet; thence lea.ving said right of way line, South 77°03'S4"
West, 28_04 feet; thence South 56°17'S2" West, 222.90 feet; thence South 33°42'07" East, 79.27
feet; thence South 30°58'21" West, 253.64 feet; thence North 89°14'S0" West, 276.21 feet;
thence North 89°13'26" West, 0.80 feet; thence along the arc of a curve to the right having a
radius of 360.00 feet, a distance of 64.25 feet; thence North 78°59'S4" West, 293.14 feet; thence
North 33°46'39"west, 432.54 feet, to a point on the Southeast right of way line of said
Bloomfield Road; thence along the arc of a non-tangent curve to the northeast, being concave to
the southeast, having a radius of 770.00 feet, a distance of 122.57 feet(the chord of said arc
bears North 51°44'S5" East, 122.44 feet), to the point of beginning and containing 16.36 acres,
more or less, being subject to any easements of record.
ALL OF LOT 2 OF KELLER SECOND SUBDIVISION, BEING THAT PART OF UNITED
STATES PRIVATE SURVEY NO. 175 AND THAT PART OF ARMSTRONG DRIVE AND
KELL FARM DRIVE ALL IN TOWNSHIP 30 NORTE-I, RANGE 13 EAST, IN THE CITY
AND COUNTY OF CAPE GIR.ARDEAU, MISSOURI MORE PARTICULARLY
DESCRIBED �S FOLLOWS:
Commence at the Southwest corner of Cape West Third Subdivision as recorded in the land
records of said County in Plat Book 16, Page 82, said point being on the centerline of Bloomfield
Road; thence with said centerline, South 56°18'32" West, 86.80 feet; thence leaving said
centerline, South 33°41'28" East, 30.00 feet to a point on the Southeast right of way line of
Bloomfield Road; thence with said right of way line, North 56°18'32" East, 558.85 feet; thence
North 60°10'23" East, 350.57 feet; thence South 55°52'48" East, 108.46 feet, to a point on the
west right of way line, of Siemers Drive; thence with said right of way line, South 33°OS'S1"
East, 25.20 feet; thence along the arc of a curve to the right having a radius of 1392.39 feet, a
distance of 532.82 feet, the point of beginning; thence continue along said arc 113.10 feet; thence
South 06°31'07" East, 256.83 feet; thence South 38°33'OZ" West, 46.22 feet; thence South
� .
83°33'02"West, 96.76 feet; thence along the arc of a curve to the right having a radius of 301.30
feet, a distance of 37.87 feet; thence North 89°14'S0" West, 183.13 feet; thence North 30°58'21"
East, 253.64 feet; thence North 33°42'07" West, 79.27 feet; thence North 56°17'S2" East, 222.90
feet; thence North 77°03'S4" East, 28.04 feet, to the point of beginning and containing 88,795
squaze feet, or 2.04 acres more or less., being subject to any ea.sements of record.
ALL OF LOT 3 OF KELLER SECOND SUBDNISION, BEING THAT PART OF UNITED
STATES PRIVATE SURVEY NO. 175 AND THAT PART OF ARMSTRONG DRNE AND
KELL FARM DRIVE ALL IN TOWNSHIP 30 NORTH, RANGE 13 EAST, IN TI-iE CITY
AND COUNTY OF CAPE GIRARDEAU, MISSOURI MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
Commence at the Southwest comer of Cape West Third Subdivision as recorded in the land
records of said County in Plat Book 16, Page 82, said point being on the centerline of Bloomfield
Road; thence with said centerline, South 56°18'32" West, 86.80 feet; thence leaving said
centerline, South 33°41'28" East, 30.00 feet to a point on the Southeast right of way line of
Bloomfield Road; thence with said right of way line, along the arc of a non-tangent cur ve
concave to the Southeast, having a radius of 770.00 feet, a distance of 122.57 feet (the chord of
said arc bears South 51°44'S5" West, 122.44 feet), to the point of beginning; thence leaving said
right of way line, South 33°46'39" East, 432.54 feet; thence North 78°59'S4" West, 225.51 feet;
thence along the arc of a curve to the right having a radius of 460.00 feet, a distance of 166.69
feet; thence North 58°14'12" West, 12.98 feet; thence North 13°30'47" West, 47.98 feet, to a
point on said south right of way line of Bloomfield Road; thence with said right of way line,
North 31°11'S0" East, 42.73 fee�; thence along the arc of a curve to the right having a radius of
770.00 feet, a distance of 214.91 feet, to the point of beginning and conta.ining 67,702 square
feet, or 1.55 acres, more or less, being subject to any easements of record.
THAT PART OF UNITED STATES PRIVATE SURVEY NO. 175, TOWNSHIP 30 NORTH,
RANGE 13 EAST OF THE FIFTH PRINCIPAL MERIDIAN, CITY AND COUNTY OF CAPE
GIRARDEAU, STATE OF MISSOURI, MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
Begin at the Northeast corner of Lot no. 2 of Keller Subdivision, a subdivision on file in the land
records of said county in plat book 20 on page 10, said point being on the south right of way line
of Armstrong Drive; thence with said south right of way line, South 89°44'09" East, 200.00 feet;
thence along an arc of a curve to the left, having a radius of 375.30 feet, a distance of 47.17 feet;
thence North 83°03'44" East, 97.27 feet; thence along the arc of a curve to the right, having a
radius of 30.00 feet, a distance of 46.19 feet, to a point on the west right of way line of Siemers
Drive; thence with said right of way line, in a southeasterly direction along the arc of a non-
tangent curve being concave to the Northeast, having a radius of 1000.43 feet, a distance of
375.26 feet (the chord of said arc bears South 19°27'43" East, 373.07 feet), to a point on the
North right of way line of Missouri State Route 74; thence with said right of way line, South
47°45'S5" West, 30.17 feet; thence South 51°30'S8" West, 75.00 feet; thence South 38°29'02"
East, 54.44 feet, to a point on the South line of said USPS no. 175; thence leaving sa.id right of
way line, with said US survey line, North 84°00'00" West, 458.49 feet, to the Southeast corner of
said Keller Subdivision; thence with the east line of said ICeller Subdivision; North 00°15'S1"
2
i . .
East, 425.06 feet, to the point of beginning and containing 4.465 acres, more or less, being
subject to any easements of record.
LOCATED IN A PART OF UNITED STATES PRIVATE SURVEYS 174 AND 175,
TOWNSHIP 30 NORTH, RANGE 13 EAST OF THE FIFTH PRINCIPAL MERIDIAN, CITY
AND COUNTY OF CAPE GIRARDEAU, STATE OF MISSOURI BEING MORE
PARTICUARLY DESCRIBED AS FOLLOWS:
Beginning at the intersection of the west right of way line of Interstate Route 55 and th� north
right of way line of Missouri State Route 74, said point being 128.00 feet westerly of and nonmal
to the centerline of Interstate Route 55 sta.tion 1267+50.52 and said point being 180.00 feet
northerly of and normal to the centerline of Missouri State Route 74 station 23+20.46; Thence
along the north right of way of Missouri Sta.te Route 74 the following courses and distances:
S 51° 57' S1" W, 54.30 feet to a point being 180.00 feet northerly of and normal to th� centerline
of Missouri State Route 74 station 22+66.16; Thence S 51° 58' 08" W, 566.16 feet to a point
being 180.00 feet northerly of and normal to the centerline of Missouri State�Route 74 station
17+00.00; Thence N 38° 01' S2" W, 119.75 feet to a point being 299_75 feet northerly of and
normal to the centerline of Missouri State Route 74 station 17+00.00; Thence S 48° 13' 06" W,
113.35 feet to a point being 292.34 feet northerly of and nonnal to the centerline of Missouri
State Route 74 station 15+g6.89 said point being on the easterly right of way of Siemers Drive
and said point being the beginning of a non-tangent curve conca.ve to the northeast having a
central angle of 22° 12' 25" and a radius of 920.43 feet from which point a radial line bears
N 61° 18' 29" E; Thence along said curve and right of way in a northwesterly direction, 356_75
feet; Thence continuing along said right of way the following courses and distances:
N 06° 29' 06" W, 361.25 feet to the beginning of a curve concave to southwest having a central
aflgle of 26° 34' 44" and a radius of 1472.39 feet; Thence along said curve in a northwesterly
direction, 683.03 feet; Thence N 27°O1' 16" E, 50.53 feet to a point on the southerly right of way
of Bloomfield Road said point being 150.00 feet southerly of and normal to th,e centerline of
Bloomfield Road station 50+34.20; Thence leaving the easterly right of way of Siemers Drive
and along the southerly right of way of Bloomfield Road the following courses and distances:
N 13° 19' S2" E, 108.33 feet to a point being 75.00 feet southerly of and normal to the centerline
of Bloomfield Road station 49+55.00; Thence N 58°31'46" E, 202.34 feet to a point being 75.60
feet southerly of and normal to the centerline of Bloomfield Road station 47+51.10; Thence S
89° 35' 40" E, 124.98 feet to a point being 141.28 feet southerly of and normal to the centerline
of Bloomfield Road station 46+44.77; Thence S 74° 20' 20" E, 50.98 feet to a point on the west
right of way line of Interstate Route 55, said point being 274.26 feet westerly of and nonnal to
the centerline of Interstate Route 55 station 1253+92.85, said point also being�he beginning of a
non-tangent curve concave to the southwest having a central angle of 56° 21'09" and a radius of
328.00 feet from which point a radial line bears S 12°21' O1" W; Thence leaving the southerly
right of way of Bloomfield Road and along said curve and west right of way of Interstate Route
55 in a southeasterty direction, 322.60 feet to a point being 128.00 feet westerly of and normal to
the centerline of Interstate Route 55 station 1256+65.90; Thence continuing along said right of
way, S 21° 17' S0" E, 1084.62 feet to the Point of Beginning, containing 21.37 acres, more or
less
3
i' , r
EXHIBI'T B
Form of Certificate of Reimbursable Costs
Certificate of Reimbursable Costs
TO:
City of Cape Girardeau
401 Independence Street
Cape Girardeau, Missouri 63701
Attn: City Manager
Re:
Terms not otherwise defined herein shall have the m�aning ascribed to such terms in the
Development Agreement dated as of , 2011 (the "Agreement"), among the
Parties_ In connection with said Agreement, the undersigned hereby states and certifies that:
1. Each item listed on Schedule I hereto is a Reimbursable Cost and was incurred in
connection with the construction of the Public Improvements.
2. The foregoing Reimbursable Costs have been paid by Drurv Southwest, Inc. and
are reimbursable under the Agreement.
3. Each item listed on Schedule 1 has not previously been paid or reimbursed from
money derived from Available Revenues, and no part thereof has 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 req�ested 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 eonstitute 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.
4
� ,
Dated this day of ,
DRURY SOUTHWEST, INC.
By:
Name:
Title:
Approved for Payment this day of , 20_.
CITY OF CAPE GIRARDEAU, MISSOURI
By:
Name:
Title:
5
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. - ,
EXFiIBIT D
Form of Notice of Commencement of Construction
The undersigned, being a duly authorized officer of Drury Soufhwest, Inc., a Missouri
corporation ("DSW'), delivers this notice to the City in connection with the Development
Agrceznent dated as of , 2011 (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 (whether by virtue of purchase option
contracts or ownership in fee by affiliates of Developer or otherwise) the Property necessary to
, construct the Phase I Public Improvements, as described in Exhibit F to the Agreement.
DSW shall construct or has entered into an agreement with a contractor or contractors to
eonstruct the Phase I Public Improvements.
DSW has obtained all necessary a building permits to begin canstruction of the Phase I Public
Improvements.
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 Phase I Public Improvements.
DRURY SOUTHWEST, INC.
By:
Name:
Title:
» �
EXHIBTT E
Form of Certificate of Substantial Completion
CERTIFICATE OF SUBSTANTIAL COIVIP�,ETION FOR PHASE
The undersigned, Drury Southwest, Inc., a Missouri corporation ("DSW"), pursuant to
that certain Development Agreement dated as of , 2011, by and
between the City of Cape Girardea.u, Missouri, and DSW (the "Agreement"), hereby certifies to
the City as follows: Capitalized 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 Phase _ Public
Improvements has been substantially completed in accordance with the Agreement.
2. The construcrion of the Phase Public Improvements as described on Schedule
1 hereto have been performed in a workmanlike manner and in accordance with the Concepf
Property Plan, subject to changes that are permissible under the Agreement and changes that
have been approved under the Agreement_
3. This Certificate of Substantial Completion is accompanied by the architect's or
owner representative's certifica.te of substantial completion on AIA Form G-704, a copy of
which is attached hereto as Appendix A and incorporated by reference, certifying that the Phase
_ Public Improvements described on Schedule 1 hereto have 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 obligattons and
covenants wi�h respect to the Phase _ Public Improvements described on Schedule 1 hereto
under the Agreement.
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 giver� withou� 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 hand this day
of , ZO
DRURY SOUTHWEST, INC.
BY:
Name:
Title:
ACCEPTED:
.c �
��1n:b�� �
Devebpme�t Agreement
Reimbutsable Cost
Cost Estimates
Date:Apri! 27, 2011
Public Inf�astructure Cost Estimate
A) Phase I
West Side of Siemers Drive(South of Bioomfield)
Plans, Pertnits 8 Engineering 30,000
Legal Fees 25,000
General Conditions 25,000
Pe�formance Bond 15,000
Job Superintendent(on site) 20,000
Traffic Controf 8�Cleani�g 10,000
E�osion Contro� 10,000
Site Clearing/Staging Area '18,228
Construction Entra�ce 1 Q,000
Temporary Haul Road 10,000
Removal of Existi�g Improvements 3,0o0
A�ea Grading 8� Fili 36,500cy $5.25 per 191,625 —
Removal of Excess Topsoi!from Site 13,500cy $4.20 56,700
Storm Pipe Installation 5001f $70.00 35,000
Expansion of Existing Retention Pond 15,000
Adjustments of Retention Pond Out Flow 10,000
Pipes and Head Walis
Seeding a�d Turf Reinforcement Matting 15,000
—ReRouting Existing Uncle�groud Electric 20,000
-Electric Line Removal I Abando�ment 2,500
Instailation of New 8" Water Main 1,5001f $17_QO 25,500
Removal of Existing 8"Water Main 9001f $4.00 3,600
Sub-Total 551,153
� • �
ri
B)Phase!I
East Side of Siemers Drive(South of Bloomfield Road)
Plans, Permits 8� Engineering 80,000
Legal Fees 25,000
General Conditions 40,000
Perfonnance Bo�d 15,000
A.C.E. Ditch Mitigation 160,000
Job Superintendent(on site) 40,000
Traffic Control&Cieaning 10,000
Erosion Control 10,000
Site Clearing/Staging Area � 17,500
Construction Entrance 10,000
Temporary Haul Road 10,000
Removal and Qisposaf of Existing Improvements 45,000
Ditch Excavation 75,OOOcy 0.9U 67,500
Retaining Wall Excavation 10,OOOcy 0.90 9,000
Segmented Block Wall 17,500sf $24.00 420,000
8ackfill Retaining Wa11 Included Above 0
Fill 8�Compaction of Abandon Ditch 40,OOOcy 1.40cy 56,000
28'Concrete Ditch Bottorr� & Sides 10,24asy $30.00 307,200
Additional Fill Di�t Rec}uired 20500cy $5.25 107,625
Construction of Retnetio� Pond 15,000
Headwall 8 Piping 15,000
Concrete Radius to Curve 1 Tur� Ditch Flow 375sy $30.00 11,250
Tu�f Reinforcement Mat 25,000
Seeding and Turf Reinforcement Matting 7,500
Sanitary Sewer Relocation 95,000
Remvval o€Existing Sanitaryr Sewer S,OOQ
Gas line Relocation 10,000
Over-Head Electric Line RelocatiQn 30,000
Water Line Extension 1,5001f $17.Q0 25,50Q
Replacement of Access Road 65,000
Billboard Relocation 25,000
Demo 8� Relocation off Existing Buildings 125,000
Replacement of Paving @ SE comer 50,OoQ
Gua�d Rail l�stalfation 25,000
Sub-Total 1,959,075
J I V
Sub-Totai West Side 551,153
Sub-Tatal East Side 1,959,075
`fiotal 2,51 Q,228
Contractor Ovefiead 251,023
Corrtracto�Mar1c-Up 276,125
Tota! 3,037,376
Drury Southwest is not aware of any under lying rock but if rodc is encountered
it wili be removed at cost plus over-head and mark-up
City inspectbn and Testing Not Included
Maximum Reimbusable Cost not to Exceed $3,000,000
� � � � ��.�-l. {a. � �
Development Agreement
Reimbursable Cost
Cost Estimates
Date: April 27, 2011
Pubiic Infrastructure Cost Estimate
A) Phase I
West Side of Siemers Drive (South of Bloomfield)
Plans, Permits & Engineering 30,000
Legal Fees 25,000
General Conditions 25,000
Performance Bond 15,000
Job Superintendent(on site) 20.000
aO.R•la t�S,o 0
Traffic Control & Cleaning 10,000
Erosion Control 10,000
Site Clearing /Staging Area 18,228
Construction Entrance 10,000
Temporary Haul Road 10,000
Removal of Existing Imp�ovements 3,000
- Area Grading & Fill 36,500cy $5.25 per 191,625
Removal of Excess Topsoil from Site 13,500cy $4.20 56,700
�—Storm Pipe Installation 5001f $70.00 35,000
*- Expansion of Existing Retention Pond 15,000
�C - Adjustments of Retention Pond Out Flow 10,000
Pipes and Head Walls
Seeding and Turf Reinforcement Matting 15,000
ReRouting Existing Undergroud Electric 20,000
Electric Line Remova! / Abandonment 2,5Q0
�Installation of New 8" Water Main 1,5001f $17.00 25,500
Removal of Existing 8" Water Main 9001f $4.00 3,600
Sub-Total 551,153
_. - , N
B) Phase II
East Side of Siemers Drive (South of Bloomfield Road)
Plans, Permits & Engineering 80,000
Legal Fees 25,000
General Conditions 40,000
Performance Bond 15,000
A.C.E. Ditch Mitigation 160,000
Job Superintendent(on site) 40,000
Traffic Control & Cleaning 10,000
Erosion Control 10,000
Site Clearing / Staging Area 17,500
Construction Entrance 10,000
Temporary Haul Road 10,000
Removal and Disposal of Existing Improvements 45,000
Ditch Excavation 75,OOOcy 0.90 67,500
Retaining Wall Excavation 10,OOOcy 0.90 9,000
Segmented Block Wall 17,500sf $24.00 420,000
Backfill Retaining Wall Included Above 0
Fill & Compaction of Abandon Ditch 40,OOOcy 1.40cy 56,000
28' Concrete Ditch Bottom & Sides 10,240sy $30.00 307,200
Additional Fill Dirt Required 20500cy $5.25 107,625
Constnaction of Retnetion Pond 15,000
Headwall & Piping 15,000
Concrete Radius to Curve / Turn Ditch Flow 375sy $30.00 11,250
TurF Reinforcement Mat 25,000
Seeding and Turf Reinforcement Matting 7,500
Sanitary Sewer Relocation 95,000
Removal of Existing Sanitary Sewer 5,000
Gas Line Relocation 10,000
Over-H�ad Electric Line Relocation 30,000
Water Line Extension 1,5001f $17.00 25,500
Replacement of Access Road 65,000
Billboard Relocation 25,000
Demo & Relocation off Existing Buildings 125,000
Replacement of Paving a� SE corner 50,000
Guard Rail Installation 25,000
Sub-Total 1,959,075
�,
__ ,
Sub-Total West Side 551 ,153
Sub-Total East Side 1,959,075
Total 2,510,228
Contractor Overhead 251 ,023
Contrac�or Mark-Up 276,125
Total 3,037,376
Drury Southwest is not aware of any under lying rock but if�ock is encountered
it witl be removed at cost plus over-head and mark-up
City Inspectian and Testing Not Included
Maximum Reimbusable Cost not to Exceed $3,000,000
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