Exhibit 10.1
REDEVELOPMENT
AGREEMENT
FOR THE
FORSYTH/HANLEY REDEVELOPMENT
AREA
BETWEEN THE
CITY OF CLAYTON,
MISSOURI
AND
CENTENE PLAZA REDEVELOPMENT
CORPORATION
Dated: December 30,
2005
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
Recitals
|
|
1
|
|
|
|
|
ARTICLE 1
|
|
|
|
|
|
|
INCORPORATED ITEMS; DEFINITIONS;
EXHIBITS
|
|
|
|
|
|
|
|
1.01
|
|
Items
Incorporated into this Agreement; Coordination with Redevelopment
Plan
|
|
2
|
|
1.02
|
|
Definitions
|
|
2
|
|
1.03
|
|
Exhibits
|
|
3
|
|
ARTICLE 2
|
|
|
|
|
|
|
REDEVELOPMENT
PROJECT
|
|
|
|
|
|
|
|
2.01
|
|
Redevelopment
Project
|
|
4
|
|
2.02
|
|
Acquisition
|
|
4
|
|
2.03
|
|
Acquisition by
Condemnation
|
|
5
|
|
2.04
|
|
Business
Assistance
|
|
6
|
|
2.05
|
|
Notice of
Acquisition
|
|
7
|
|
2.06
|
|
Deadline for
Acquisition of Property and Construction of Redevelopment
Project
|
|
7
|
|
2.07
|
|
Site
Plan
|
|
8
|
|
2.08
|
|
Certificate of
Substantial Completion
|
|
8
|
|
2.09
|
|
Financial
Ability
|
|
8
|
|
2.10
|
|
Removal of
Blight
|
|
8
|
|
2.11
|
|
Insurance
|
|
8
|
|
2.12
|
|
Redevelopment
Project Maintenance
|
|
9
|
|
2.13
|
|
Changes
|
|
9
|
|
2.14
|
|
City Access to
Redevelopment Project
|
|
9
|
|
2.15
|
|
Construction/Use Provisions
|
|
9
|
|
2.16
|
|
Development
Expertise
|
|
10
|
|
|
|
|
ARTICLE 3
|
|
|
|
|
|
|
FORCE MAJEURE
|
|
|
|
|
|
|
|
3.01
|
|
Force
Majeure
|
|
10
|
|
3.02
|
|
Extensions
|
|
10
|
|
|
|
ARTICLE 4
|
|
|
|
TAX ABATEMENT AND PAYMENTS IN
LIEU OF TAXES
|
|
|
|
|
|
4.01
|
|
Tax
Abatement
|
|
10
|
|
4.02
|
|
Payments in
Lieu of Taxes
|
|
11
|
|
4.03
|
|
Earnings
Limitation on Redevelopment Project
|
|
13
|
|
4.04
|
|
Financial and
Annual Reports
|
|
13
|
|
4.05
|
|
Accounting
Practices
|
|
14
|
(i)
|
|
|
|
|
|
|
ARTICLE 5
|
|
|
|
|
|
|
TRANSFER OF THE REDEVELOPMENT
AREA
|
|
|
|
|
|
|
|
5.01
|
|
Corporation’s Right to Transfer the
Redevelopment Area
|
|
14
|
|
|
|
|
ARTICLE 6
|
|
|
|
|
|
|
DEFAULT AND
REMEDIES
|
|
|
|
|
|
|
|
6.01
|
|
Default and
Remedies
|
|
14
|
|
|
|
|
ARTICLE 7
|
|
|
|
|
|
|
GENERAL PROVISIONS
|
|
|
|
|
|
|
|
7.01
|
|
Modifications;
Successors and Assigns
|
|
15
|
|
7.02
|
|
Payment of
City’s Costs
|
|
15
|
|
7.03
|
|
Creation of
Community Improvement District
|
|
16
|
|
7.04
|
|
Term of
Agreement
|
|
16
|
|
7.05
|
|
Representatives
Not Personally Liable
|
|
17
|
|
7.06
|
|
Indemnification
and Hold Harmless
|
|
17
|
|
7.07
|
|
Contest of
Assessed Valuation
|
|
17
|
|
7.08
|
|
Notice
|
|
18
|
|
7.09
|
|
Severability
|
|
18
|
|
7.10
|
|
Headings
|
|
19
|
|
7.11
|
|
Recording of
Agreement
|
|
19
|
|
7.12
|
|
Governing Law;
Other Applicable Provisions
|
|
19
|
|
7.13
|
|
Corporation’s Right of
Termination
|
|
19
|
|
7.14
|
|
Counterpart
|
|
19
|
Exhibit A - Site Plan
Exhibit B - Legal Description of the
Redevelopment Area
Exhibit C - Redevelopment
Plan
Exhibit D - Form of Certificate of
Substantial Completion
Exhibit E - Transferee
Agreement
Exhibit F - Special Development
Conditions
(ii)
REDEVELOPMENT
AGREEMENT
THIS REDEVELOPMENT
AGREEMENT is made and
entered into effective as of the 30th day of December, 2005, by and
between the CITY OF CLAYTON, MISSOURI (the
“City”), a Missouri municipal corporation, and
CENTENE PLAZA REDEVELOPMENT CORPORATION (the
“Corporation”), a Missouri urban redevelopment
corporation, for the implementation of the Forsyth/Hanley
Redevelopment Plan described herein. Capitalized terms not
otherwise defined herein are defined in Article 1 of this
Agreement.
RECITALS
|
|
1.
|
Chapter 353 of
the Revised Statutes of Missouri, known as The Urban Redevelopment
Corporations Law (the “URC Law”), authorizes the City
to approve, by ordinance, redevelopment plans that allow for the
redevelopment of blighted areas within the City and the granting of
tax abatements and exemptions to encourage such
redevelopment.
|
|
|
2.
|
The Board of
Aldermen of the City, in recognition that the Redevelopment Area
has not experienced meaningful new private sector investment in
recent years and that the Redevelopment Area is blighted within the
meaning of that term in the URC Law, solicited proposals on
April 22, 2005, to facilitate redevelopment of such area. On
May 27, 2005, Centene Corporation (the
“Developer”) submitted a proposal (the
“Proposal”) in response thereto.
|
|
|
3.
|
The Proposal
calls for three phases of redevelopment: Phase I consists of the
Developer’s acquisition and renovation of the City-owned
parking garage and construction of a pedestrian bridge connecting
the garage to the Developer’s current office building; Phase
II consists of construction of a new 16-story office building to
house the Developer’s headquarters and to provide additional
office space for expansion and lease; and Phase III consists of a
new office building for future expansion and lease, retail space
and a parking structure. The Proposal requested that the City
provide for partial tax abatement in order to make the proposed
development economically feasible. Subsequent to the submission of
the Proposal, the Developer agreed not to seek tax abatement on
Phase I in return for other redevelopment consideration;
consequently, the Redevelopment Area will consist of only those
portions of property relating to Phase II and Phase III, as
described in the Proposal.
|
|
|
4.
|
The Board of
Aldermen has: (a) enacted into law Resolution No. 05-31
conveying in fee the City-owned parking garage at 7733 Carondelet
Avenue, (b) enacted into law Ordinance No. 5911, finding
the Redevelopment Area to be blighted within the meaning of
Section 353.020(2) of the URC Law, approving the Redevelopment
Plan, and authorizing and directing the City Manager to enter into
this Redevelopment Agreement, and (c) determined that the
clearance and redevelopment provided for in the Redevelopment Plan
are necessary for the public convenience and necessity and that the
approval of the Redevelopment Plan and the activities related
thereto are necessary for the preservation of the public health,
safety and welfare.
|
|
|
5.
|
The Corporation
intends to (a) construct or cause to be constructed the
Redevelopment Project within the Redevelopment Area in one or more
phases, (b) acquire property within the Redevelopment Area for
the purpose of receiving tax abatement under the URC Law in one or
more phases, and (c) transfer such property to the Developer
for the purpose of operating a commercial office and retail
development in one or more phases.
|
|
|
6.
|
The Corporation
is in good standing in the State of Missouri and has represented
that it has the necessary expertise, skill and ability to carry out
the commitments contained in this Agreement.
|
NOW, THEREFORE
, for and in consideration of the
foregoing Recitals (which are incorporated into this Agreement as
an integral part hereof) and the promises, covenants and agreements
contained herein, the City and the Corporation do hereby agree as
follows:
ARTICLE 1
INCORPORATED ITEMS; DEFINITIONS;
EXHIBITS
1.01 Items Incorporated into this
Agreement; Coordination with Redevelopment Plan.
The provisions of: (a) the URC
Law, (b) the Redevelopment Plan and (c) the Proposal are
hereby incorporated herein by this reference thereto and made in
whole a part of this Agreement. To the extent that any of the
provisions of this Agreement conflict with any of the provisions of
the Redevelopment Plan, the provisions of this Agreement shall
control and govern.
1.02 Definitions.
In addition to the terms defined
elsewhere in this Agreement, the following capitalized words and
terms shall have the following meanings:
“Affiliate” means any entity that is controlled by the
Developer or a wholly-owned subsidiary of the Developer.
“Agreement” means this Redevelopment Agreement.
“Authorizing
Ordinance” means
Ordinance No. 5911 adopted by the City on December 13,
2005, finding the Redevelopment Area to be blighted within the
meaning of the URC Law, approving the Redevelopment Plan and
authorizing this Agreement.
“Building
Permit” means any
and all demolition, grading and/or building permits required by the
City’s Code of Ordinances to construct all or any portion of
the Redevelopment Project.
“Business Assistance
Policy” means the
relocation policy of the City for the Redevelopment Area adopted on
December 13, 2005, pursuant to Ordinance
No. 5910.
“Certificate of Substantial
Completion” means
the Certificate of Substantial Completion attached hereto as
Exhibit D , to be delivered by the Corporation upon
the completion of the Redevelopment Project and each phase thereof,
and upon approval thereof accepted by the City in accordance with
Section 2.08 of this Agreement.
“Developer” means Centene Corporation, a Delaware
corporation, and its permitted successors and assigns.
-2-
“Effective
Date” means the
effective date of this Agreement, which shall be the date written
above on page 1.
“Phase I”
means Phase I of the
Developer’s undertakings, as described in the Proposal (but
which is not part of the Redevelopment Project and which is not
included in the Redevelopment Area).
“Phase II”
means Phase II of the Redevelopment
Project, as described in the Redevelopment Plan.
“Phase
III” means Phase
III of the Redevelopment Project, as described in the Redevelopment
Plan.
“Phase III (Forsyth Retail
Properties)” means
the portion of Phase III of the Redevelopment Project which
consists of the redevelopment of the “Forsyth Retail
Properties,” as described in the Redevelopment
Plan.
“Phase III (Tower
B)” means the
portion of Phase III of the Redevelopment Project which consists of
the redevelopment of the “Plaza B Property,” as
described in the Redevelopment Plan.
“Proposal”
means the proposal submitted by the
Developer on May 27, 2005, relating to the development of the
Redevelopment Area.
“Redevelopment
Area” means all of
the real property located within and comprising the Redevelopment
Area as shown on the Site Plan and as more particularly described
on Exhibit B attached hereto, upon which the
Redevelopment Project will be constructed pursuant to this
Agreement.
“Redevelopment
Plan” means the
Development Plan for Hanley/Forsyth Redevelopment Area, approved by
the City pursuant to the Authorizing Ordinance, a copy of which
Redevelopment Plan is attached hereto as
Exhibit C .
“Redevelopment
Project” means the
project to be constructed by the Corporation in the Redevelopment
Area, which collectively encompasses “Phase II” and
“Phase III” as described in the Proposal, the
Redevelopment Plan and the Site Plan.
“Site
Plan” means the
preliminary site plan depicting the Redevelopment Project attached
hereto as Exhibit A , as the same may be changed
or amended in accordance with this Agreement.
“URC Law”
means The Urban Redevelopment
Corporations Law, Chapter 353 of the Revised Statutes of Missouri,
as amended.
1.03 Exhibits.
The following exhibits are attached
to and incorporated into this Agreement:
|
|
|
|
|
Exhibit A
|
|
Site
Plan
|
|
|
|
|
Exhibit B
|
|
Legal
Description of the Redevelopment Area
|
|
|
|
|
Exhibit
C
|
|
Redevelopment
Plan
|
|
|
|
|
Exhibit
D
|
|
Form of
Certificate of Substantial Completion
|
|
|
|
|
Exhibit
E
|
|
Form of
Transferee Agreement
|
|
|
|
|
Exhibit
F
|
|
Special
Development Conditions
|
-3-
ARTICLE 2
REDEVELOPMENT
PROJECT
2.01 Redevelopment
Project. The Corporation
shall, in order to eliminate the conditions that have caused the
Redevelopment Area to become “blighted” within the
meaning of the URC Law, but subject to the terms and conditions of
this Agreement, (a) acquire all property within the
Redevelopment Area in one or more phases and (b) develop and
construct the Redevelopment Project in one or more phases in
accordance with the Site Plan, the Redevelopment Plan and all
applicable federal, state and local laws, rules, regulations and
ordinances.
2.02 Acquisition by
Negotiation.
(a) Reasonable Efforts to Acquire
by Negotiation. The Corporation represents and warrants that,
with respect to any property it seeks to acquire within the
Redevelopment Area, the Corporation will make reasonable efforts to
acquire the same by negotiated purchase within the time specified
in Section 2.06 . With respect to property in the
Redevelopment Area that is acquired by negotiated sale before the
commencement of a jurisdictional hearing as contemplated in
Section 2.03 of this Agreement, the Corporation agrees
to pay all of the seller’s costs and expenses (to the extent
deemed reasonable by the City Manager) associated with the sale of
such property, but not to exceed 5% of the purchase price of the
property being acquired.
(b) Requirements for Purchase
Agreement. Without limiting the generality of the foregoing
subdivision (a), within 60 days after the execution of this
Agreement, the Corporation shall offer to owners of parcels an
Purchase Agreement (the “Purchase Agreement” )
which shall include the following terms:
(1) A purchase price equal to at
least 105% of the appraised value of the parcel (which shall be
exclusive of any relocation benefits to which the owner is entitled
under state law), as evidenced by an appraisal with respect to such
parcel performed subsequent to August 1, 2005, by an
independent third-party appraiser licensed in the State of Missouri
who is reasonably acceptable to the City. The City pre-approves the
use of Mueller & Neff Real Estate Appraisers &
Consultants, Inc. as the Corporation’s appraiser. The
appraisal shall be obtained at the Corporation’s sole cost
and expense. Prior to the delivery of the Purchase Agreement to an
owner, the Corporation shall provide a copy to the City Attorney
who shall have one week either to approve the form and substance of
the appraisal (i.e., in a customary form and of a professional
caliber in accordance with other appraisals prepared by certified
appraisers) or to provide objections thereto to the
Corporation.
(2) Unless waived by the owner, the
Corporation must provide at least thirty (30) days’
notice for closing on the property. If the Corporation terminates
its obligation to acquire the property once such notice is given
(unless in the City’s reasonable opinion there is due cause
for such termination), all redevelopment rights granted hereunder,
including the rights of eminent domain and tax abatement, shall
expire and terminate.
(3) Unless waived by the owner, the
owner (and any tenant of the owner) will have 150 days from closing
on the parcel to vacate the property.
-4-
(c) Other Information to be
Provided. At the time the Purchase Agreement is submitted to a
Property owner, the Corporation shall:
(1) Advise the owner in writing of
the relocation benefits to which the owner would be entitled under
this Agreement, and (if applicable) advise the owner in writing
that the proposed purchase price includes an express waiver of such
relocation benefits;
(2) Advise the owner in writing of
the time period for acceptance of the Purchase Agreement (the
“Acceptance Deadline” ), which shall not be less
than 45 days; and
(3) Provide a copy of the Purchase
Agreement to the City.
(d) Mediation
Process.
(1) Before the initiation of
condemnation proceedings with respect to any parcel of the
property, an owner is entitled to participate in a mediation
process by which an independent third party can facilitate the
resolution of any differences between the owner and the
Corporation. To initiate the mediation process, the owner must
notify the City and the Corporation, on or before the Acceptance
Deadline, that the owner does not intend to accept the offer made
by the Corporation under the Purchase Agreement, and that the owner
desires to participate in mediation.
(2) Within 7 days after the owner
has given notice to the Corporation and to the City of its desire
to participate in mediation, the Corporation and the owner (or
their attorneys) shall select a mediator. The mediator shall be
selected from a list of five mediators provided by United States
Arbitration & Mediation Midwest Inc. If the parties cannot
agree on a mediator on the list, then each party shall eliminate
two mediators and the remaining person shall be the designated
mediator. The mediation shall be scheduled within 30 days of the
mediator’s selection.
(3) Within one week after the
mediator’s selection, the owner must submit to the
Corporation a counteroffer to the offer made by the Corporation
under the Purchase Agreement. Failure to provide a counteroffer
shall be deemed a waiver of the owner’s right to mediation.
The mediation shall not exceed one 8-hour session. The Corporation
shall pay for the mediator’s costs and expenses for up to 8
hours of mediation.
(4) To ensure each party is
negotiating in good faith, immediately following the conclusion of
any mediation, the mediator shall submit a report to the City
Attorney that shall include the last offer made by each
party.
(5) The Corporation agrees to
cooperate in all reasonable respects to facilitate the mediation
process; provided, if for any reason the parties are unable to hold
or complete the mediation within 45 days after the owner has given
notice to the Corporation and to the City of its desire to
participate in mediation, or if the mediation effort fails to
result in an executed Purchase Agreement, the Corporation can
proceed with condemnation as provided in this Agreement.
2.03 Acquisition by
Condemnation.
(a) Covenant to Comply with
Statutory Requirements. As a condition to its authorization
hereunder to institute any eminent domain proceedings against an
owner of all or part of the Redevelopment Area, the Corporation
hereby covenants and agrees that it shall first satisfy all
jurisdictional prerequisites necessary for the initiation of such
eminent domain proceedings, including the requirement to negotiate
in good faith.
-5-
(b) Conditions Precedent. At
least fifteen (15) days prior to the initiation of eminent
domain proceedings with respect to any property within the
Redevelopment Area that the Corporation fails to acquire by
negotiated purchase in accordance with Section 2.02 ,
the Corporation shall deliver, at the Corporation’s sole cost
and expense, the following documentation to the City
Attorney:
(1) The appraisal prepared in
connection with the Purchase Agreement provided pursuant to
Section 2.02(b)(1) .
(2) Evidence that the purchase price
offered to the owner of the property was not less than the greater
of (A) 105% of the appraised value of the parcel to be
acquired (as determined by the appraiser referenced in
Section 2.02(b)(1) ), or (b) 100% of the County
Assessor’s valuation of the parcel to be acquired.
(3) If the parcel to be acquired
includes businesses that are tenants, information regarding the
terms of each tenant’s lease and the benefits that each
tenant would receive under the Corporation’s most recent
proposal to acquire the property.
(4) Evidence of the
Corporation’s efforts to acquire such parcel(s) (including
but not limited to evidence of communications or attempts at
communications with the owners of such parcel(s), copies of
proposed purchase contracts, offers and counter-offers, if any,
tendered to the owners); provided, the City shall retain all such
documents submitted to the City in connection with the acquisition
of any parcel through eminent domain, as closed records to the
extent permitted by law, including but not limited to the
provisions of Chapter 610 of the Revised Statutes of Missouri, as
amended.
(c) Information to be Provided to
City. During the condemnation proceedings, the Corporation
agrees to consult with the City regarding the prosecution of the
litigation. Advice and consultation with the City shall continue
throughout such proceedings. The City shall, upon initiation of the
condemnation proceedings, designate in writing to the Corporation
an individual who is authorized to represent the City in
consultations with the Corporation and its counsel. Upon the
request of the City’s designee, the Corporation shall provide
copies of all pleadings and other documents filed or prepared in
conjunction with the prosecution of the condemnation proceedings
for the designee’s inspection. The Corporation shall pay all
costs incurred by the City in connection with any condemnation
action in which the City is named as a third-party
defendant.
2.04 Business
Assistance. The
Corporation shall relocate those occupants or businesses displaced
from any portion of the Redevelopment Area acquired by the
Corporation in accordance with and to the extent required by the
Business Assistance Policy, except insofar as otherwise agreed in
writing by such displaced occupant or business and approved in
writing by the Corporation; it being understood and agreed that any
displaced occupant or business may waive his/her/their rights to
statutory and other relocation benefits under the Business
Assistance Policy or otherwise. The Corporation understands that
the Business Assistance Policy prohibits the Corporation from
displacing businesses from the Redevelopment Area until the
Corporation determines in its good faith discretion that such
property is required for construction of the Redevelopment Project.
The parties hereby acknowledge that the schedule set forth in
Section 2.06(b) hereof for the Corporation’s
acquisition of the property in the Redevelopment Area is intended
in part to demonstrate the Corporation’s good faith intention
to pursue the Redevelopment Project, and the Corporation shall use
commercially reasonable efforts to allow tenants and owners
currently operating businesses in the Redevelopment Area to
continue operations until the Corporation determines in its good
faith discretion that vacation of such property is required for
construction of the Redevelopment Project.
-6-
2.05 Notice of
Acquisition.
(a) Within thirty (30) days
after acquiring any and each parcel of property within the
Redevelopment Area, the Corporation shall provide to the City
(1) written notice (the “Notice of Acquisition”)
to the City confirming that it has acquired title to such property
and (2) a copy of the recorded instrument conveying ownership
of such property to the Corporation. The Notice of Acquisition
shall specify the phase of the Redevelopment Project to which such
property relates.
(b) The City will not issue a
Building Permit for the construction of permanent buildings and
structures to the Corporation or an authorized transferee of the
Corporation for any structure in the Redevelopment Area associated
with the applicable phase until the Corporation submits a Notice of
Acquisition to the City concerning the Corporation’s
acquisition of all property within the applicable phase.
2.06 Deadline for Acquisition of
Property and Construction of Redevelopment Project.
(a) As of the date hereof, the
parties agree that the Developer owns all of the property
(excluding rights-of-way and other publicly-owned property) in the
Redevelopment Area except those located at 7716, 7720, 7730,
7732 and 7736 Forsyth Blvd. The Corporation will cause notice to be
provided to the City within 10 days after either the Corporation or
the Developer enters into an agreement to purchase or obtains a
judgment giving such party right to title to each of said
parcels.
(b) Subject to Section 3.01
hereof, if the Corporation fails to acquire all property (excluding
rights-of-way and other publicly-owned property) in the
Redevelopment Area within eleven (11) months after the
Effective Date, all redevelopment rights granted hereunder,
including the rights of eminent domain and tax abatement, shall
expire and terminate. In addition, upon request of the Corporation
the Board of Aldermen will give reasonable consideration to
eliminating the requirement to acquire all property within the
Redevelopment Area, if the goals of the Agreement (including but
not limited to eliminating the blighting conditions within the
Redevelopment Area) can be accomplished without acquiring one or
more specific structures. The date on which the Corporation has
acquired all property (except as otherwise required by the
preceding sentence) in the Redevelopment Area is hereinafter
referred to as the “Final Acquisition Date.” In
addition, within 30 days after any commissioners’ award, the
Corporation shall either: (1) notify the City that it is
terminating this Agreement; or (2) settle the proceeding; or
(3) pay the amount of any commissioners’ award issued in
conjunction with any such condemnation proceeding to the Clerk of
the Circuit Court.
(c) Subject to
Section 3.01 hereof, if the Corporation fails to
commence construction of Phase II within twenty-seven
(27) months after the Effective Date, all redevelopment rights
granted hereunder, including the rights of eminent domain and tax
abatement, shall expire and terminate. For purposes of this
paragraph, “commence construction” means the demolition
of all (or substantially all) of the improvements within Phase II
as of the Effective Date and the pouring of foundations for at
least 75% of the new structures within Phase II, as shown on the
Site Plan.
(d) Subject to
Section 3.01 hereof, if the Corporation fails to
commence construction of Phase III (Forsyth Retail Properties)
within thirty-six (36) months after the Final Acquisition
Date, all redevelopment rights granted hereunder, including the
rights of eminent domain and tax abatement, shall expire and
terminate. For purposes of this paragraph, “commence
construction” means the demolition of all (or substantially
all) of the improvements within Phase III (Forsyth Retail
Properties) as of the Effective Date and the pouring of foundations
for 100% of the new structures within Phase III (Forsyth Retail
Properties), as shown on the Site Plan.
-7-
(e) The parties acknowledge that by
operation of Section 4.02(b) of this Agreement, if the
Corporation fails to commence construction of Phase III (Tower B)
within thirty-six (36) months after the Final Acquisition
Date, the total period during which the Corporation is entitled to
tax abatement hereunder shall be shortened in accordance with such
Section 4.02(b) .
2.07 Site Plan.
The Corporation may make changes to
the Site Plan as site conditions or other issues of feasibility may
dictate or as may be required to meet the reasonable requests of
prospective tenants or as may be necessary or desirable in the sole
determination of the Corporation to enhance the economic viability
of the Redevelopment Project; provided that (a) the
Corporation may not make any material changes to the Site Plan (
i.e., changes which either reduce the square footage or
intended uses of the Redevelopment Project by more than 10%
exclusive of reductions required to comply with the City’s
Code of Ordinances), whether individually or in the aggregate,
without the advance written consent of the Board of Aldermen and
(b) the Corporation shall obtain the City’s consent to
any changes to the extent required by the City’s Code of
Ordinances. The Corporation shall promptly furnish the City with a
current Site Plan in the event of any changes thereto.
2.08 Certificate of Substantial
Completion. After
substantial completion of construction of any phase of the
Redevelopment Project in accordance with the Redevelopment Plan,
the Corporation shall deliver to the City a Certificate of
Substantial Completion for the applicable phase of the
Redevelopment Project in substantially the form attached hereto as
Exhibit D . The City shall sign the Certificate of
Substantial Completion upon the City’s verification that the
representations in such certificate are accurate (which shall not
be unreasonably withheld, conditioned or delayed). The City may
issue any and all appropriate certificates of occupancy in
accordance with the City’s ordinances, even if the City has
not yet accepted the Certificate of Substantial Completion. If the
Corporation fails to deliver a Certificate of Substantial
Completion to the City with respect to any phase of the
Redevelopment Project in a timely fashion and the City has issued
occupancy certificates with respect to at least seventy-five
percent (75%) of the usable space in such phase of the
Redevelopment Project, the City may at its sole option deem the
delivery of such occupancy certificates to constitute delivery of
the Certificate of Substantial Completion for such
phase.
2.09 Financial
Ability. The Corporation
shall submit to the City, prior to the commencement of construction
of any phase or all of the Redevelopment Project, as applicable,
(a) reasonable proof of the Corporation’s financial
ability to complete the Redevelopment Project, and
(b) reasonably acceptable performance and payment bonds and
maintenance bonds, as required by the City’s Code of
Ordinances, issued in connection with the public improvements to be
constructed by or at the direction of the Corporation for the
Redevelopment Project. The City and the Corporation shall be named
as obligees on the bonds. The City will not issue a Building Permit
for any structure in the Redevelopment Area until the Corporation
submits to the City the items specified in this Section.
2.10 Removal of
Blight. The Corporation
shall clear blight or rehabilitate to eliminate the physical blight
existing in the Redevelopment Area, or to make adequate provisions
satisfactory to the City for the clearance of such blight. This
obligation shall be a covenant running with the land and shall not
be affected by any sale or disposition of the Redevelopment Area.
Any purchaser of property in the Redevelopment Area from the
Corporation or any of the Corporation’s successors in title,
who wishes to receive the development rights and tax abatement
granted by this Agreement, shall acquire title subject to this
obligation insofar as it pertains to the land so
acquired.
2.11 Insurance.
Not less than ten (10) days
prior to commencement of construction of each and any portion of
the Redevelopment Project, the Corporation and/or its general
contractor shall provide the City with a certificate of insurance
evidencing a commercial general liability insurance policy
with
-8-
coverages of not less than $2,234,121 for claims
arising out of a single accident or occurrence and $335,118 for any
one person in a single accident or occurrence, which reflects the
current absolute statutory waivers of sovereign immunity in
Sections 537.600 and 537.610 of the Revised Statutes of Missouri,
as amended. Further, the policy shall be adjusted upward annually,
to remain at all times not less than the inflation-adjusted
sovereign immunity limits as published in the Missouri Register on
an annual basis by the Department of Insurance pursuant to
Section 537.610 of the Revised Statutes of Missouri, as
amended. The policy shall provide that it may not be cancelled,
terminated, allowed to lapse or be substantially modified without
at least thirty (30) days prior written notice to the City.
The City shall be listed as an additional insured on such
certificate. Such policy shall include a severability of interests
clause and the insurance shall be primary with respect to any
applicable insurance maintained by the City. The requirements of
this Section shall terminate for each Phase upon the City’s
acceptance of a Certificate of Substantial Completion for said
Phase of the Redevelopment Project.
2.12 Redevelopment Project
Maintenance. Upon
substantial completion of the Redevelopment Project and so long as
this Agreement is in effect, the Corporation or its successor(s) in
interest, as owner or owners of the affected portion(s) of the
Redevelopment Area, shall maintain or cause to be maintained the
buildings and improvements within the Redevelopment Area which it
owns in a good state of repair and in conformity with applicable
state and local laws, ordinances, and regulations.
2.13 Changes.
The Corporation shall promptly
notify the City in writing of any changes in the location of the
Corporation’s principal place of business and of any other
material adverse change in fact or circumstance directly affecting
the Redevelopment Project.
2.14 City Access to Redevelopment
Project. The City may
conduct such periodic inspections of the Redevelopment Area and the
Redevelopment Project as may be generally provided in the
City’s Code of Ordinances. In addition, the Corporation shall
allow any authorized representatives of the City access to the
Redevelopment Area and the Redevelopment Project from time to time
upon reasonable advance notice prior to the completion of the
Redevelopment Project for reasonable inspection thereof. The
Corporation shall also allow the City and its employees, agents and
representatives to inspect, upon request, all architectural,
engineering, demolition, construction and other contracts and
documents pertaining to the construction of the Redevelopment
Project as the City determines is reasonable and necessary to
verify the Corporation’s compliance with the terms of this
Agreement.
2.15 Construction/Use
Provisions.
(a) The Corporation agrees to
construct the Redevelopment Project in accordance with the
City’s Code of Ordinances and with the site
development/construction specifications that are described on
Exhibit F hereto. In addition, the Corporation agrees
that the office towers within the Redevelopment Project will be
constructed and maintained in a manner such that they will be
classified as “Class A” or “first-class”
office space by commercial real estate brokers. The Corporation
further acknowledges the City’s desire that the Redevelopment
Project be constructed in accordance with standards established by
the U.S. Green Building Council (USGBC) in order to obtain LEED
certification, and the Corporation will, or will cause the
Developer to, use commercially reasonable efforts to incorporate
USGBC standards into the design, construction and maintenance of
the Redevelopment Project.
(b) The Corporation covenants that
the uses in the Redevelopment Area shall at all times be in
accordance with the zoning and subdivision approvals granted by the
City, and all conditions thereof, for the Redevelopment
Area.
(c) The City agrees to cooperate
with the Corporation and to process and timely consider all
applications for governmental approvals as received, all in
accordance with the applicable City ordinances and laws of the
State of Missouri, for the vacation of one or more alleys in the
Redevelopment Area and the granting of other City easements as
necessary to implement the Site Plan.
-9-
2.16 Development
Expertise. The
Corporation shall, before May 15, 2006, provide evidence to
the City that the Corporation has entered into a joint venture or
co-developer arrangement with an entity with sufficient expertise
to carry out the retail portion of the Redevelopment
Project.
ARTICLE 3
FORCE MAJEURE
3.01 Force
Majeure.
(a) Upon satisfaction of the
provisions of paragraph (b) of this Section, the time periods
provided for herein shall be extended by the number of days of
delay caused by actions or events beyond the control of the
Corporation, including acts of God, labor disputes, strikes,
lockouts, civil disorder, war, lack of issuance of any permits
and/or legal authorization by any governmental entity necessary for
Corporation to proceed with the construction of the Redevelopment
Project, shortage or delay in the shipment of material or fuel,
governmental action, fire, unusually adverse weather conditions,
wet soil conditions, unavoidable casualties, litigation that
challenges the Corporation’s right to acquire property by
eminent domain or that contests the designation of the
Redevelopment Area as blighted, or by any other cause which the
City Manager determines may justify the delay; provided that any
such occurrences or events shall not be deemed to exist as to any
matter initiated or unreasonably sustained by Corporation, and
further provided that Corporation notifies the City in writing
within thirty (30) days of the commencement of any of the
foregoing events.
(b) No event under (a) shall be
deemed to exist (1) as to any matter that could have been
avoided by the exercise of due care on the part of the Corporation,
(2) as to any matter initiated or unreasonably sustained by
the Corporation, and (3) unless the Corporation provides the
City with a written notice within 30 days of the commencement of
such claimed event specifying the event of force majeure
.
3.02 Extensions.
In addition to any extension
permitted pursuant to Section 3.01 of this Agreement,
the City may, upon request of the Corporation and approval by the
Board of Aldermen in its sole discretion, extend times within which
development activities are to commence or be completed.
ARTICLE 4
TAX ABATEMENT AND PAYMENTS IN
LIEU OF TAXES
4.01 Tax Abatement
. The tax abatement provided in
this Section, and the corresponding payments in lieu of taxes as
required by Section 4.02 , shall apply to each phase of
the Redevelopment Project, and references in this Section and in
Section 4.02 to the Redevelopment Area shall apply to
that portion of the Redevelopment Area associated with the
appropriate phase of the Redevelopment Project; provided, in no
event shall the tax abatement extend longer than 15 years after the
Effective Date.
(a) First Ten (10) Years
. Subject to the provisions of this Agreement, the real property
within the Redevelopment Area shall not be subject to assessment or
payment of general ad valorem taxes imposed by the City, the State
of Missouri, or any political subdivision thereof, for a period of
ten (10) years after the date upon which the Corporation
acquires title to such property (but only for so long as said
parcel is used in accordance with the Redevelopment
Plan),
-10-
except to such extent and in such
amount as may be imposed upon such real property during such period
measured solely by the amount of the assessed valuation of land,
exclusive of improvements, during the calendar year preceding the
calendar year during which the Corporation acquired title to such
real property.
(b) Next Five (5) Years
. Until the earlier of (1) the completion of five
(5) additional years after the first ten (10) years in
Section 4.01(a); or (2) twelve (12) complete
calendar years after delivery or deemed delivery of the Certificate
of Substantial Completion, ad valorem taxes upon the real property
within the Redevelopment Area shall be measured by the assessed
valuation thereof as determined by the St. Louis County Assessor
upon the basis of not to exceed fifty percent (50%) of the
true value of such real property, including improvements thereon,
nor shall such valuations be increased above fifty percent
(50%) of the true value of said real property from year to
year during such period so long as the Redevelopment Area is used
in accordance with this Agreement and the Redevelopment
Plan.
(c) Abatement Contingent upon
Compliance with Redevelopment Plan . The tax relief provided in
this Section shall be contingent upon the Corporation’s
compliance with the Redevelopment Plan and this Agreement,
and shall apply to general ad valorem taxes only and shall not be
deemed or construed to exempt the Corporation or its successors in
interest, in whole or in part, from special assessments, fees,
charges or other taxes that may be imposed by the City or another
governmental unit.
(d) Expiration . Upon the
expiration of such periods, the real property comprising the
Redevelopment Area shall be subject to assessment and payment of
all ad valorem taxes, based upon the full true value of such real
property.
4.02 Payments in Lieu of
Taxes.
(a) Agreement to Make PILOTs
. Notwithstanding any provisions of Section 4.01 above
and Section 353.110 of the URC Law to the contrary, the
Corporation agrees that, in addition to the ad valorem taxes
computed pursuant to Section 4.01 hereinabove, it will
pay to the St. Louis County Collector of Revenue
(“Collector”), on or before December 31 of each
year during which real property taxes are abated in accordance with
Section 4.01 above, payments in lieu of taxes
(“PILOTs”) according to the following:
(1) PILOTs during First Ten
(10) Years . During the first ten (10) years of each
phase or all of the Redevelopment Project, as applicable, the
Corporation will make the following PILOTS:
(A) Calendar years before and
including Substantial Completion:
(i) The portion of the PILOTs
calculated for the land in the Redevelopment Area shall equal one
hundred percent (100%) of the total assessed valuation of such
land, excluding the value of such land prior to the initiation of
the Redevelopment Project, until the City accepts the Certificate
of Substantial Completion; and
(ii) The portion of the PILOTs
calculated for the improvements on property in the Redevelopment
Area shall equal one hundred percent (100%) of the total
assessed valuation of the improvements, until the City accepts the
Certificate of Substantial Completion.
-11-
(B) Calendar years after
Substantial Completion:
(i) The portion of the PILOTs
calculated for the land in the Redevelopment Area shall equal fifty
percent (50%) of the total assessed valuation of such land,
excluding the value of such land prior to the initiation of the
Redevelopment Project, for each year after the City accepts the
Certificate of Substantial Completion; and
(ii) The portion of the PILOTs
calculated for the improvements on property in the Redevelopment
Area shall equal fifty percent (50%) of the total assessed
valuation of the improvements, for each year after the City accepts
the Certificate of Substantial Completion.
(2) PILOTs during Next Five
(5) Years . Until the earlier of (A) the completion
of five (5) additional years after the first ten
(10) years in Section 4.02(a)(1) or (B) twelve
(12) complete calendar years after delivery of the Certificate
of Substantial Completion for the Redevelopment Project, the
Corporation shall make PILOTs which, when added to payments made
pursuant to Section 4.01 , shall equal fifty percent
(50%) of the general ad valorem taxes that would have been due
and payable for both land and improvements in the absence of the
tax abatement provided in Section 4.01 .
(b) Adjustment of PILOTS for
Failure to Maintain Jobs . Centene Corporation will maintain
the following number of Jobs within the Redevelopment Area during
the term of this Agreement:
|
|
|
|
|
Calendar Year
|
|
Number of Jobs
|
|
2006
|
|
336
|
|
2007
|
|
436
|
|
2008
|
|
567
|
|
2009
|
|
738
|
|
2010 and Thereafter
|
|
959
|
If Centene Corporation fails to
maintain the minimum number of Jobs within the Redevelopment Area
as herein provided, measured by determining the highest actual
number of Jobs during the 90-day period ending on each Test Date,
either Centene Corporation or the Corporation shall make a PILOT
payment (in addition to any payments required under
Section 4.02(a) ) to the Collector on or before
December 31 of each such calendar year in which Centene
Corporation fails to maintain the required number of Jobs, in an
amount equal to:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A.V.
100
|
|
X
|
|
T.T.L.
|
|
X .50 X
|
|
R.J.-A.J.
R.J.
|
|
=
|
|
Additional PILOT Payment
|
|
|
|
|
|
|
|
A.V.
|
|
=
|
|
assessed
valuation of the Corporation’s property in the Redevelopment
Area for Test Date year
|
|
|
|
|
|
T.T.L.
|
|
=
|
|
total of all
ad valorem tax levies of all taxing jurisdictions in which
the Redevelopment Area is located
|
|
|
|
|
|
A.J.
|
|
=
|
|
highest number
of Jobs during the 90-day period ending on the Test Date
|
|
|
|
|
|
R.J.
|
|
=
|
|
required number
of Jobs for Test Date year
|
-12-
The Corporation shall perform the calculation
set forth in this Section on each Test Date, and shall promptly
provide a copy of such calculation to the City, accompanied by a
written certification of the Corporation that none of the Jobs
included in such calculation is occupied by a person that has been
hired for the primary purpose of satisfying or inflating the
calculation of Jobs required by this Agreement. The Corporation
shall also provide to the City, promptly upon request, any
information reasonably required by the City to verify such
calculation. Any resulting increase in Additional PILOT Payments as
a result of such calculation shall be paid for the calendar year in
which such Test Date occurs. In no event shall the PILOT payments
as a result of such calculation exceed the amount of taxes that the
Corporation would have been required to pay during the applicable
year in the absence of the adoption of the Development
Plan.
For purposes of this Section,
(a) “Job” means a full-time equivalent job
position with Centene Corporation of not less than 35 hours per
week within the Redevelopment Area, which shall include normal
full-time employee benefits offered by Centene Corporation, and
(b) “Test Date” means October 1 of each year,
beginning on October 1, 2006.
(c) Payment, Distribution and
Enforcement . The obligation to make the foregoing PILOTs shall
constitute a lien against the Redevelopment Area, enforceable by
the City in the same manner as general real estate taxes. The Board
of Aldermen shall furnish the Collector with a copy of this
Agreement. The Collector shall allocate the revenues received from
such PILOTs (whether received under this Section or any other
provision of this Agreement) among applicable taxing authorities in
accordance with Section 353.110.4 of the URC Law.
4.03 Earnings Limitation on
Redevelopment Project. The net earnings of the Corporation (and/or any
successor owner) from the Redevelopment Project shall be limited in
accordance with the applicable provisions of the URC
Law.
4.04 Financial and Annual
Reports.
(a) During the period of tax relief
provided in this Agreement for each phase or all of the
Redevelopment Project, as applicable, the Corporation shall provide
annually to the City’s Finance Director, within one hundred
twenty (120) days after the end of the Corporation’s
fiscal year, three (3) copies of its detailed financial report
for the preceding year for the Redevelopment Project, examined by a
certified public accountant and containing a certification
concerning such examination. Said financial reports shall
disclose:
(1) the Corporation’s earnings
derived from the Redevelopment Project;
(2) the disposition of any net
earnings in excess of those permitted by Section 4.03
above;
(3) the interest rate on income
debentures, bonds, notes or other evidences of debt of
Corporation;
(4) the Corporation’s cost of
the Redevelopment Project; and
(5) the Corporation’s income
and expenses derived from or attributable to the Redevelopment
Project.
-13-
(b) If, in the Finance
Director’s judgment, the financial reports fail to provide
the information required by this Section in accordance with
generally accepted accounting principles or if a material dispute
arises regarding the information provided in a financial report,
and if requested by the City in writing, the Corporation shall, at
its own expense and in an amount agreed by the Corporation and the
City, have an audit made of its books by an auditing firm to be
named by the City and approved by the Corporation, and the findings
of such audit shall be made available to the Finance
Director.
4.05 Accounting
Practices. The
Corporation shall establish and maintain depreciation,
obsolescence, and other reserves, and surplus and other accounts,
including a reserve for the payment of taxes and PILOTs, according
to recognized standard accounting practices.
ARTICLE 5
TRANSFER OF THE REDEVELOPMENT
AREA
5.01 Corporation’s Right to
Transfer the Redevelopment Area.
(a) Sale to Developer . The
Corporation may voluntarily sell, lease, assign, transfer, convey
and/or otherwise dispose (hereinafter collectively referred to as a
“Sale”) the Redevelopment Area or any portion thereof
to the Developer or an Affiliate without the City’s prior
written consent, but the Corporation shall provide written notice
to the City within ten (10) days following such Sale to any
such entity. Upon a Sale, all of the Corporation’s rights and
obligations hereunder with respect to the subject property,
including those concerning tax abatement and eminent domain, shall
transfer to such entity.
(b) Sale to Third Party . If
the proposed Sale is to a party other than the Developer or an
Affiliate, then the Corporation shall first obtain the City’s
written consent (which consent shall not be unreasonably withheld
or delayed). The City may require that any proposed transferee,
other than the Developer or an Affiliate, demonstrate to the
City’s reasonable satisfaction that the transferee is
sufficiently experienced and financially capable in that it has
reasonable financial worth and experience in light of the
responsibilities undertaken. In the event of such a Sale, all
rights and obligations of the Corporation hereunder with respect to
the subject property, including those concerning tax abatement and
eminent domain, shall transfer to the transferee.
(c) Transferee Agreement . In
the event of each transfer of property in the Redevelopment Area
pursuant to Section 5.01(b) , the Corporation or its
authorized successors and assigns shall require the proposed
transferee to execute a transferee agreement with the City in
substantial compliance with the form attached as Exhibit
E . No Sale shall occur without the prior execution of a
transferee agreement with the City. The parties agree that the
intention of each transferee agreement is to protect the
Corporation and the City by ensuring that all transferees of
property within the Redevelopment Area receive actual notice of the
rights, duties and obligations contained in this Agreement prior to
taking ownership, and nothing contained in a transferee agreement
that is an accordance with Exhibit E shall be deemed
to impose any rights, duties or obligations that are not imposed
pursuant to this Agreement.
ARTICLE 6
DEFAULT AND
REMEDIES
6.01 Default and
Remedies.
(a) Event of Default . The
occurrence and continuance of any of the following shall constitute
a “Corporation Event of Default”:
(1) Centene Corporation fails to
maintain its headquarters within the Redevelopment Area (for
purposes of this section the term “headquarters” means
the location at which Centene Corporation maintains its centralized
administrative, management, finance and support functions);
or
-14-
(2) the Corporation fails to make
the punctual payment of the PILOTs on the due date; or
(3) the Corporation fails to timely
perform, in all material respects, any obligation or covenant of
the Corporation under this Agreement, and such failure is not cured
to the City’s reasonable satisfaction within thirty
(30) days after the City gives written notice thereof to the
Corporation, or if it cannot reasonably be cured within thirty
(30) days, the Corporation is not diligently proceeding to
cure same.
(b) Remedies. The City shall
have the following remedies upon the occurrence of a Corporation
Event of Default:
(1) if the default is under (a)(1)
or (a)(3) above, the City’s sole remedy shall be to terminate
this Agreement; and
(2) if the default is under
(a