FIRST AMENDMENT TO PROMONTORY
REDEVELOPMENT AGREEMENT
THIS FIRST AMENDMENT TO PROMONTORY REDEVELOPMENT AGREEMENT
(the "First Amendment") is made and entered into as of this ____ day of ____________, 2016 (the
"Effective Date"), by and between the City of Overland Park, Kansas (the "City") and Arbor
Development, LLC, a Kansas limited liability company ("Developer"), pursuant to Resolution No.
____, adopted by the Governing Body of the City on ______________, 2016.
A.
Reference is hereby made to that certain Promontory Redevelopment Agreement
dated as of July 20, 2015 between the City and Developer (the "Redevelopment Agreement").
Capitalized terms used but not defined in this First Amendment shall have the respective meanings
set forth in the Redevelopment Agreement.
B.
Developer is the owner of certain real property which is located in the City and is
generally located on the Northeast corner of 91st Street and Metcalf Avenue, which, is legally
described on Exhibit A-1 attached to the Redevelopment Agreement and generally depicted on
Exhibit A-2 attached thereto (the "Project Site"). Developer is in the process of redeveloping the
Project Site, including without limitation, demolishing certain of the Existing Buildings and
providing new, upgraded retail facilities and new mixed-use retail with first-class, luxury multifamily residential facilities, together with Parking Improvements and certain other improvements,
and all as more particularly set forth in Section 2.01 of the Redevelopment Agreement (the
"Project"). The Project is to be commenced, constructed and completed in multiple Phases, which
Phases are identified with specificity in Section 2.01 of the Redevelopment Agreement.
C.
Among other things, Section 2.05 of the Redevelopment Agreement requires
Developer to construct the various Phases of the Project based upon the schedule set out and
contained within Exhibit I attached thereto - the Performance Milestones. In Section 2.05, the
parties further agree that in the event that Developer shall fail to meet the Performance Milestones
set forth in Exhibit I, then the City may require Developer to appear before the City to show cause
why Developer failed to comply with the Performance Milestones and the City also has certain
remedies for failure to comply with the Performance Milestones, as more fully set forth therein.
D.
On December 16, 2016, Developer did appear before the City's Finance
Administration and Economic Development Committee ("FAED") to request certain modifications
to the Performance Milestones as set forth in Exhibit I to the Redevelopment Agreement, and
specifically, Developer requested this amendment to provide (i) a twelve (12) month extension for
the Commencement Date and Completion Date for Phase 1A, and (ii) a twelve (12) month
extension for the Commencement Date and Completion Date for Phase 3.
E.
The parties now hereby agree to amend, revise and replace Exhibit I with new
Performance Milestones for commencement and completion of the Improvements for Phase 1A
and Phase 3, respectively.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereby agree that the Redevelopment Agreement is hereby modified and amended as
follows:
1.
Amended Performance Milestones: The parties hereby agree that the Performance
Milestones attached to the Redevelopment Agreement as Exhibit I shall be deleted and replaced
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with the revised Performance Milestones attached to this First Amendment as Exhibit I (Amended
– 2016). All references in the Redevelopment Agreement to the "Performance Milestones" or
"Exhibit I" shall hereafter refer to Exhibit I (Amended – 2016). Additionally, and in connection
with the modifications to the Performance Milestones in Exhibit I, the parties hereby agree as
follows:
(a)
The references to a completion deadline of "December 31, 2021" (for
purposes of a TIF Cap reduction) in Section 2.05 and Section 3.04(b) shall be deleted and
replaced with "December 31, 2022".
(b)
The reference to a Project Area 3 Plan Deadline of "July 15, 2019" in
Section 3.08 shall be deleted and replaced with "July 15, 2020".
2.
Additional Milestone for Commencement of Construction for Phase 1A:
parties hereby agree that the following shall be added to the end of Section 7.02:
The
"In connection with and in addition to the Performance Milestone for
Commencement of Construction for Phase 1A as set forth in Exhibit I, the parties
hereby agree that Developer shall obtain a land disturbance permit and commence
demolition work in Project Area 1 on or before August 1, 2016."
3.
Amendment to EDRB Provision. The parties hereby agree that the first sentence
of Section 5.06 (Economic Development Revenue Bonds), shall be deleted in its entirety and
replaced with the following:
"Subject to all Applicable Laws and Requirements, and subject further to
compliance by Developer with all City requirements for the issuance of economic
development revenue bonds (“EDRBs”), the parties hereby agree that Developer
may use EDRB financing to obtain an exemption on sales taxes levied by Kansas
governmental entities for labor, construction materials, equipment and furnishing
for the Project."
4.
Amendments to Project Budget. The parties hereby agree that the Project Budget
attached to the Redevelopment Agreement as Exhibit H shall be deleted and replaced with the
revised Project Budget attached to this First Amendment as Exhibit H (Amended – 2016). All
references in the Redevelopment Agreement to the "Project Budget" or "Exhibit H" shall hereafter
refer to Exhibit H (Amended – 2016).
5.
Amendments to Equity IRR Formula. The parties hereby agree that the Equity IRR
Formula attached to the Redevelopment Agreement as Exhibit K shall be deleted and replaced
with the revised Equity IRR Formula attached to this First Amendment as Exhibit K (Amended –
2016). All references in the Redevelopment Agreement to the "Equity IRR Formula" or "Exhibit
K" shall hereafter refer to Exhibit K (Amended – 2016).
6.
as follows:
Miscellaneous. In connection with this First Amendment, the parties hereby agree
(a)
The parties hereby understand and agree that the Recitals set forth above
are hereby incorporated as though more fully set forth herein.
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(b)
Except as specifically modified by this First Amendment, the
Redevelopment Agreement shall be and remain in full force and effect in accordance with
the terms thereof.
(c)
It is the intent of the parties that the provisions of the Redevelopment
Agreement, as amended by this First Amendment, shall be enforced to the fullest extent
permitted by applicable law. To the extent that the terms set forth in Redevelopment
Agreement, as amended by this First Amendment, or any word, phrase, clause or sentence
is found to be illegal or unenforceable for any reason, such word, phrase, clause or
sentence shall be modified deleted or interpreted in such a manner so as to afford the party
for whose benefit it was intended the fullest benefit commensurate with making the
Redevelopment Agreement as modified, enforceable and the balance of the Redevelopment
Agreement shall not be affected thereby, the balance being construed as severable and
independent.
(d)
The parties hereto declare and represent that no promises, inducements or
agreements not herein expressed have been made, that this First Amendment contains the
entire agreement between the parties hereto, and that the terms hereof are contractual and
not mere recitals.
(e)
This First Amendment shall be binding upon and inure to the benefit of the
parties hereto, and their successors and assigns.
(f)
All remedies at law or in equity shall be made available for the
enforcement of this First Amendment.
(g)
This First Amendment may be executed in counterparts.
(h)
This First Amendment shall be construed in accordance with the laws of
the State of Kansas.
[Remainder of page intentionally left blank. Signature pages immediately follow.]
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IN WITNESS WHEREOF, the City and the Developer have duly executed this First
Amendment to Promontory Redevelopment Agreement pursuant to all requisite authorizations as
of the date first above written.
CITY OF OVERLAND PARK, KANSAS
ATTEST:
Carl Gerlach, Mayor
Marian Cook, City Clerk
APPROVED AS TO FORM:
Tammy M. Owens
Deputy City Attorney
APPROVED AS TO FORM:
Todd A. LaSala,
Stinson Leonard Street LLP
STATE OF KANSAS
COUNTY OF JOHNSON
)
) ss.
)
On this _____ day of _______________, 2016, before me, personally appeared Carl
Gerlach, personally known, who being by me duly sworn did say that he is the Mayor of the City of
Overland Park, Kansas, a Kansas corporation, that said corporation has no corporate seal, that said
instrument was signed on behalf of said corporation by authority of its Council, and acknowledged
said instrument to be the free act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal at my
office in Johnson County, Kansas the day and year last above written.
Notary Public
Printed Name:
My commission expires:
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ARBOR DEVELOPMENT, LLC, a Missouri limited liability company
By: ________________________________
Printed Name:
Date:
STATE OF __________________ )
) ss.
)
COUNTY OF
day of ________________, 2016, before me personally appeared
On this
_____________________, to me personally known, who being by me duly sworn did say
that he is the ______________ of ARBOR DEVELOPMENT, LLC, a Missouri limited
liability company, and that said instrument was signed and delivered on behalf of said
limited liability company and acknowledged to me that he executed the same as the free
act and deed of said limited liability company.
In Testimony Whereof, I have hereunto set my hand and affixed my official seal
the day and year first above written.
Notary Public
Printed Name:
My Commission Expires:
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EXHIBIT H (Amended – 2016)
PROJECT BUDGET
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continued
EXHIBIT H (Amended – 2016)
PROJECT BUDGET
continued
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EXHIBIT H (Amended – 2016)
PROJECT BUDGET
continued
EXHIBIT H (Amended – 2016)
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PROJECT BUDGET
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EXHIBIT I (Amended – 2016)
PERFORMANCE MILESTONES
Phase
TIF Project Area
Commencement Date
Completion Date
1A
Project Area 1
January 1, 2017*
December 31, 2018
1B
Project Area 2
January 1, 2016
December 31, 2016
Alaskan Fur
Not within TIF District
March 1, 2016
December 31, 2016
2
Not within TIF District
January 1, 2022
June 30, 2023
3
Project Area 3
January 1, 2021
December 31, 2022
Project Area 3**
January 1, 2020
December 31, 2020
“Alternative
Phase 3”
* In addition to the above Performance Milestone for Commencement of Construction for Phase
1A, in Section 7.02 hereof, the parties have agreed that Developer shall obtain a land disturbance
permit and commence demolition work in Project Area on or before August 1, 2016.
** Notwithstanding the inclusion of Alternative Phase 3 in Project Area 3, the parties hereby
understand and agree that the TIF Cap shall be automatically reduced by $1,800,000 if Developer
shall commence construction of the Alternative Phase 3 Improvements as set forth in Section 2.05
hereof.
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EXHIBIT K (Amended – 2016)
EQUITY IRR FORMULA
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continued
EXHIBIT K (Amended – 2016)
EQUITY IRR FORMULA
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continued
EXHIBIT K (Amended – 2016)
EQUITY IRR FORMULA
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continued
EXHIBIT K (Amended – 2016)
EQUITY IRR FORMULA
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continued
EXHIBIT K (Amended – 2016)
EQUITY IRR FORMULA
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