HomeMy WebLinkAboutRes.3130.11-20-2017 BILL NO. 17-184 RESOLUTION NO. SJJC
A RESOLUTION APPROVING A CITY CONSENT
TO PLEDGE AND SECURITY AGREEMENT AMONG
THE CITY OF CAPE GIRARDEAU, CENTRAL
BANK OF KANSAS CITY, AND OLD TOWN TIF
MEMBER, LLC
WHEREAS, the City Council has approved the
"Redevelopment Plan for the Downtown Tax Increment
Financing District, Cape Girardeau, Missouri, 2015" and the
"RPA 1 Redevelopment Project" described therein; and
WHEREAS, the City entered into a Redevelopment
Agreement dated as of May 17, 2016 (the "Redevelopment
Agreement") with Old Town Cape Historic Landmark
Preservation Group, LLC (the "Developer") with respect to
the completion of a portion of the RPA 1 Redevelopment
Project consisting of the renovation of the H&H Building
and the Marquette Center for hotel and restaurant use and
the renovation of the Marquette Tower for office and
retail/restaurant uses (collectively, the "Developer
Project") ; and
WHEREAS, as part of the security for a loan for the
Developer Project, the Developer and Old Town TIF Member,
LLC (the "TIF Recipient") have assigned certain rights to
Central Bank of Kansas City (the "Lender") , including the
right to receive reimbursement of tax increment financing
revenues and the right to complete the Developer Project if
there is a default under the Redevelopment Agreement; and
WHEREAS, in connection therewith, the Lender has
requested the City to execute a City Consent to Pledge and
Security Agreement which, among other things, provides the
Lender additional time to cure defaults by the Developer
under the Redevelopment Agreement;
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE
CITY OF CAPE GIRARDEAU, MISSOURI, AS FOLLOWS:
Section 1 . The City Council hereby finds and
determines that it is necessary and desirable to enter into
the City Consent to Pledge and Security Agreement in
substantially the form of Exhibit A attached hereto (the
"City Consent") . The City Manager is hereby authorized and
1
directed to execute the City Consent on behalf of the City.
The City Clerk is hereby authorized and directed to attest
to the City Consent and to affix the seal of the City
thereto. The City Consent shall be in substantially the
form attached to this Resolution, which City Consent is
hereby approved by the City Council with such changes
therein as shall be approved by the officers . of the City
executing the same .
Section 2 . The officers, agents and employees of
the City are hereby authorized and directed to execute all
documents and take such steps as they deem necessary and
advisable in order to carry out and perform the purpose of
this Resolution and the City Consent .
Section 3. The sections of this Resolution shall
be severable . If any section of this Resolution is found
by a court of competent jurisdiction to be invalid, the
remaining sections shall remain valid, unless the court
finds that : (a) the valid sections are so essential to and
inseparably connected with and dependent upon the void
section that it cannot be presumed that the City Council
has or would have enacted the valid sections without the
void ones; and (b) the valid sections, standing alone, are
incomplete and are incapable of being executed in
accordance with the legislative intent .
Section 4 . This Resolution shall take effect and
be in full force after its passage by the City Council .
PASSED AND APPROVED THIS 40(u DAY OF JZiab/r, 2017 .
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Harry E. •e.rgr/ Payor '•.,
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CITY CONSENT TO PLEDGE AND SECURITY AGREEMENT
THIS CITY CONSENT TO PLEDGE AND SECURITY AGREEMENT (this
"Consent") is made and entered into as of , 2017, by and among the CITY OF
CAPE GIRARDEAU, MISSOURI, a home -rule city organized and existing under the laws of
the State of Missouri (the "City"), CENTRAL BANK OF KANSAS CITY ("Lender"), and
OLD TOWN TIF MEMBER, LLC, a Missouri limited liability company ("TIF Member"), as
assignee of OLD TO" CAPE HISTORIC LANDMARK PRESERVATION GROUP,
LLC, a limited liability company organized and existing under the laws of the State of Missouri
(the "Developer"), with reference to the following facts:
A. The City and Developer entered into that certain Redevelopment Agreement dated
as of May 17, 2016, as subsequently amended by that First Amendment to Redevelopment
Agreement dated December , 2017 (the "Redevelopment Agreement") (capitalized terms used
and not defined herein shall have the meaning given to them in the Redevelopment Agreement).
B. In accordance with Section 5(b)(ii) of the Redevelopment Agreement, Developer
has assigned its rights to receive the "Available TIF Revenues" and the "Reimbursable
Redevelopment Project Costs" under Section 5 of the Redevelopment Agreement to TIF
Member.
C. TIF Member has executed, among other documents, that certain Pledge and
Security Agreement of even date herewith, for the benefit of Lender (the "Security Agreement"),
whereby TIF Member has pledged and granted a security interest in and to the Available TIF
Revenues and Reimbursable Redevelopment Project Costs under the Redevelopment Agreement
to Lender, to secure certain obligations as described therein.
D. The Redevelopment Agreement and all other documents and agreements between
City and Developer relating thereto are collectively referred to herein as the "Development
Documents".
NOW, THEREFORE, in consideration of the foregoing recitals, the agreements,
promises, and covenants herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Consent hereby agree as
follows:
1. Consent to Security Avreement. The City hereby acknowledges and consents to
the pledges and security interests granted by TIF Member as assignee of the Developer to Lender
pursuant to the Security Agreement, including but not limited to the pledge of and security
interest in the Available TIF Revenues and Reimbursable Redevelopment Project Costs under
the Redevelopment Agreement pursuant to the terms and conditions of the Security Agreement.
2. Attornment. The City acknowledges that it will make full and complete
attornment with respect to the Available TIF Revenues and Reimbursable Redevelopment
Project Costs (without the necessity of any other or further attornment or instrument) to Lender
or an affiliate of Lender organized to hold the Available TIF Revenues and Reimbursable
Redevelopment Project Costs, or any receiver which Lender requests be appointed to hold the
Available TIF Revenues and Reimbursable Redevelopment Project Costs.
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3. Lender's Right to Cure Developer Default. Developer hereby requests that the
City add Lender to the "Notices" section of the Redevelopment Agreement for all official notices
and demands under the Redevelopment Agreement at the address(es) of Lender set forth in
Section 8.b. hereof. If any breach or default on the part of the Developer occurs under the
Development Documents and the Developer fails to cure the same within any applicable cure or
grace period (any such uncured breach or default being referred to herein as a "Developer
Default"), Lender shall have the right, but not the obligation, to cure or cause the cure of such
Developer Default during the thirty (30) day period (or such longer period as may be needed to
cure the Developer Default so long as Lender's cure was commenced within said thirty (30) day
period) commencing the day after the Developer's cure period for such Developer Default ends.
4. Representations.
(a) The City represents to and for the benefit of Lender that:
(i) There are no side letters or other agreements (written or oral)
which affect any terms of the Development Documents or the relationship
between City and Developer;
(ii) The Development Documents are in full force and effect on the
date hereof and represent the valid, binding, and enforceable obligations of City;
(iii) The City is not in default under the Development Documents and
has not breached any of the terms of the Development Documents;
(iv) The City has received no notice of sale, transfer, assignment,
hypothecation, or pledge of the Available TIF Revenues and Reimbursable
Redevelopment Project Costs or the Development Documents except as otherwise
set forth herein; and
(v) The City agrees that this Consent is irrevocable and will remain in
full force and effect regardless of any sale or transfer of the fee Property.
(b) In the event that Lender becomes the holder of the rights to receive
Available TIF Revenues up to the amount of the Reimbursable Redevelopment Project Costs,
Lender hereby represents to and for the benefit of the City that:
(i) Lender understands that rights to receive Available TIF Revenues
up to the amount of the Reimbursable Redevelopment Project Costs do not
constitute an indebtedness of the City or a loan or credit thereof within the
meaning of any constitutional or statutory debt limitation or restriction; and
(ii) Lender hereby covenants and agrees that it will not sell, offer for
sale, pledge, transfer, convey, hypothecate, mortgage, or dispose of the rights to
receive Available TIF Revenues up to the amount of Reimbursable
Redevelopment Project Costs or any interest therein in violation of applicable
federal or state law or in violation of restrictions on sale, assignment, negotiation,
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or transfer of the rights to receive Available TIF Revenues up to the amount of
Reimbursable Redevelopment Project Costs or the Redevelopment Agreement.
(c) Notwithstanding the foregoing, the parties hereto agree that Lender shall
not be (i) liable for any act or omission of Developer under the Development Documents; or (ii)
subject to any offsets or defenses which the City might have against Developer; or (iii) bound by
any amendment or modification of the Development Documents made without Lender's prior
written consent.
5. Direction of Payment. TIF Member, as assignee of the Developer hereby directs
the City, and the City hereby acknowledges and agrees for the benefit of Lender, that all payments of
Available TIF Revenues up to the amount of Reimbursable Redevelopment Project Costs shall be
payable to Developer's Pledged Account (as defined in the Security Agreement) with Lender.
Payments shall be sent to Lender at its office at 2301 Independence Avenue, Kansas City, MO
64124 or otherwise as the Lender or any other successor holder(s) of the right to receive Available
TIF Revenues up to the amount of Reimbursable Redevelopment Project Costs, or any of them, may
direct from time to time.
6. Termination. This Consent shall terminate upon the earliest of (i) the mutual
written consent of the Lender, the Developer, the TIF Member and the City; or (ii) the payment
of all of all remaining Reimbursable Redevelopment Project Costs after the date of this Consent;
or (iii) the termination of the Redevelopment Agreement.
7. Miscellaneous.
(a) Waiver. No waiver of any breach or default hereunder shall constitute or
be construed as a waiver by Lender of any subsequent breach or default or of any breach or
default of any other provisions of this Consent. Any waiver by Lender must be in writing and
will not be construed as a continuing waiver. No waiver will be implied from any delay or
failure to take action.
(b) Notices. Any notices required or permitted to be given with this Consent
shall be in writing and shall be deemed to have been given if and when received if personally
delivered, or on the second business day after being deposited in United States registered or
certified mail, postage prepaid, and addressed to a party at its address set forth below or to such
other address the party to receive such notice may have designated to all other parties by notice
in accordance herewith:
The City: City of Cape Girardeau
401 Independence Street
Cape Girardeau, Missouri 63702
Attn: City Manager
With a copy to: City of Cape Girardeau
401 Independence Street
Cape Girardeau, Missouri 63702
Attn: City Attorney
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And: Gilmore & Bell, P.C.
One Metropolitan Square
211 N. Broadway, Suite 2350
St. Louis, Missouri 63102
Attn: Mark D. Grimm, Esq.
The Developer: Old Town Cape Landmark Preservation Group, LLC
1610 N. Kingshighway, Suite 301
Cape Girardeau, Missouri 63701
Attn: Jeff Maurer, Manager
With a copy to: Spencer Fane LLP
2144 E. Republic Road Ste. B300
Springfield, Missouri 65804
Attn: S. Shawn Whitney, Esq.
If to Lender: Central Bank of Kansas City
2301 Independence Avenue
Kansas City, MO 64124
Attention: William M. Dana, Jr.
Facsimile: (816) 483-2586
with a copy to:
Lathrop Gage LLP
7701 Forsyth Blvd., Suite 500
Clayton, MO 63105
Attention: Jared M. Minkoff
Facsimile: (314) 613-2801
Except as otherwise specifically required herein, no notice of the exercise of any right or option
granted to Lender herein is required to be given.
(c) Counterparts. This Consent may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which shall constitute one and
the same agreement. Faxed, scanned or photocopied signatures shall be deemed equivalent to
original signatures.
(d) Governing Law and Venue. This Consent and the terms, provisions, and
conditions hereof shall be governed by and construed and enforced in accordance with the
internal laws of the State of Missouri and jurisdiction and venue for any legal action between the
City and any other party shall be in the Circuit Court in Jackson County, Missouri.
(e) Successors and Assigns. This Consent, and the terms, covenants, and
conditions hereof shall be binding upon and inure to the benefit of the parties and each of their
successors and assigns.
(f) General. This Consent may not be modified or amended except by written
agreement of each of the parties hereto. The headings contained herein have been inserted for
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convenience of reference only and shall in no way restrict or otherwise modify any of the terms
and provisions hereof. If any term, covenant, or condition of this Consent, or the application
thereof to any person or circumstance, shall to any extent be invalid or unenforceable, the
remainder of this Consent, or the application of such term, covenant, or condition to persons or
circumstances other than those as to which it is invalid or unenforceable, shall not be affected
thereby and each term, covenant, and condition of this Consent shall be valid and enforceable to
the fullest extent permitted by law. This Consent represents the entire agreement between the
parties with respect to the subject matter hereof and all prior negotiations and communications
between the parties concerning the same are superseded hereby.
[Balance of this page left blank. Signature(s) to follow.]
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COUNTERPART SIGNATURE PAGE TO
CITY CONSENT TO PLEDGE AND SECURITY AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Consent to be duly
executed as of the year and date first set forth above.
"CITY"
CITY OF CAPE GIRARDEAU, MISSOURI
160
(SEAL)
Attest:
Deputy City Clod
282946630
COUNTERPART SIGNATURE PAGE TO
CITY CONSENT TO PLEDGE AND SECURITY AGREEMENT
"DEVELOPER"
OLD TOWN CAPE HISTORIC LANDMARK
PRESERVATION GROUP, LLC,
a Missouri limited liability company
By: Heritage Developers, LLC, a Missouri limited
liability company, its manager
Do
Jeffrey J. Maurer, Manager
Scott M. Rhodes, Manager
"TIF MEMBER"
OLD TOWN TIF MEMBER, LLC, a Missouri
limited liability company
By: Heritage Developers, LLC, a Missouri limited
liability company, its manager
Jeffrey J. Maurer, Manager
Scott M. Rhodes, Manager
282946630
COUNTERPART SIGNATURE PAGE TO
CITY CONSENT TO PLEDGE AND SECURITY AGREEMENT
"LENDER"
CENTRAL BANK OF KANSAS CITY,
a Missouri banking corporation
By.
Name: William M. Dana, Jr.
Title: President
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ACKNOWLEDGMENT TO IRREVOCABLE DIRECTION OF PAYMENT
Pursuant to the foregoing Irrevocable Direction of Payment, contained in Section 5 of this
Consent, the undersigned hereby consents to the foregoing and agrees to make payment of
amounts due to Old Town TIF Member, LLC, as assignee of Old Town Cape Landmark
Preservation Group, LLC of the Available TIF Revenues and Reimbursable Redevelopment
Project Costs under the Redevelopment Agreement by wire transfer to Central Bank of Kansas
City.
(SEAL)
ATTEST:
yi� fe74d-.4-k -
Name: Bruce T or
Title: Deputy City Clerk
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CITY OF CAPE
BL;.:.;
NScott A. M
Title: City Man er
AU, MISSOURI