INTERGOVERNMENTAL COOPERATION AGREEMENT. between the CITY OF CREVE COEUR, MISSOURI, and the

Transcription

1 INTERGOVERNMENTAL COOPERATION AGREEMENT between the CITY OF CREVE COEUR, MISSOURI, and the EXECUTIVE OFFICE PARK WATERSHED COMMUNITY IMPROVEMENT DISTRICT Dated as of

2 TABLE OF CONTENTS ARTICLE I DEFINITIONS Section 1.1 Definitions of Words and Terms... 1 Section 1.2 Rules of Interpretation... 3 Section 1.3 Recitals... 3 ARTICLE II REPRESENTATIONS Section 2.1 Representations by the City... 3 Section 2.2 Representations by the District... 3 ARTICLE III CONSTRUCTION, MAINTENANCE AND USE OF THE PROJECT Section 3.1 Construction of the Project... 3 Section 3.2 Construction Plans... 4 Section 3.3 Construction Manager... 4 Section 3.4 Construction Contracts; Bonds and Insurance for Project... 4 Section 3.5 Inspection... 4 Section 3.6 Completion of Project... 4 Section 3.7 Easement for and Maintenance of Project... 4 ARTICLE IV COLLECTION OF CID PROPERTY TAX Section 4.1 Collection of Revenues... 5 Section 4.2 Enforcement of CID Property Tax... 5 Section 4.3 Access to Records... 5 Section 4.4 Use of CID Revenues... 5 Section 4.5 Repeal of the District s Funding Mechanisms; Abolition of the District... 5 Section 4.6 No Other Funding Mechanisms... 5 ARTICLE V PROJECT FINANCING Section 5.1 Pledge of CID Revenues... 6 Section 5.2 Covenant to Request Annual Appropriation... 6 Section 5.3 District s Obligations Limited to CID Revenues... 6 Section 5.4 No Issuance of Other Obligations... 6 ARTICLE VI COVENANTS REGARDING OPERATION OF THE DISTRICT Section 6.1 Records of the District... 6 Section 6.2 Open Meetings and Records of the District... 6 Section 6.3 Additional Covenants of the District... 6 ARTICLE VII DEFAULTS AND REMEDIES Section 7.1 Term of Agreement... 7 Section 7.2 Remedies on Default... 7 Section 7.3 Rights and Remedies Cumulative... 7 Section 7.4 Waiver of Breach... 7 Section 7.5 Successors and Assigns; Assignment of District Rights... 7 Section 7.6 Notices... 7 Section 7.7 Immunity of Officers and Employees of the City and the District... 8 Section 7.8 Amendments... 8 Section 7.9 Mutual Assistance... 8 i

3 Section 7.10 Mutual Release... 8 Section 7.11 Severability... 9 Section 7.12 Governing Law... 9 Section 7.13 Execution in Counterparts... 9 Exhibit A Boundary Map of the District ii

4 INTERGOVERNMENTAL COOPERATION AGREEMENT THIS INTERGOVERNMENTAL COOPERATION AGREEMENT (the Agreement ) is made and entered as of this day of,, between the CITY OF CREVE COEUR, MISSOURI, a home rule charter city and political subdivision of the State of Missouri (the City ), and the EXECUTIVE OFFICE PARK WATERSHED COMMUNITY IMPROVEMENT DISTRICT, a political subdivision of the State of Missouri (the District ). RECITALS: 1. On, the owners of record of certain real property located within the City filed a Petition for the creation of a Community Improvement District (the Petition ) with the City pursuant to Sections et seq RSMo (the CID Act ). 2. On, the City Council enacted Ordinance No. (the Ordinance ) which established the District as a political subdivision pursuant to and in accordance with CID Act within the area described on Exhibit A attached hereto for the purpose of funding construction and maintenance of stormwater drainage and retention facilities as described in the Petition and Ordinance (the Project ), through the imposition of a CID real property tax (the CID Property Tax ). 3. On, pursuant to the CID Act, the District adopted Resolution No. imposing the TDD Property Tax at a rate of per $100 assessed valuation, which TDD Property Tax became effective on, following its approval by the qualified voters of the District at an election held in accordance with the CID Act. 4. Pursuant to authority provided by the TDD Act and Sections et seq RSMo, the District and the City decided to enter into a cooperative agreement regarding the funding, planning, design, construction, improvement, maintenance, and operation of the Project. 5. On, the Board of Directors of the District adopted Resolution No. authorizing the District to enter into this Agreement. 6. On, the City Council adopted Ordinance No. authorizing the City to enter into this Agreement. NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises and covenants contained herein, the parties hereto agree as follows: ARTICLE I DEFINITIONS Section 1.1 Definitions of Words and Terms. The words and terms as used herein shall have the following meanings. All capitalized terms used herein that are not otherwise defined herein have the meaning given to them in the Development Agreement. Agreement means this Intergovernmental Cooperation Agreement, as from time to time amended in accordance with the terms hereof. Board of Directors means the Board of Directors of the District. 1

5 Business Day means any day other than a Saturday, Sunday or any other day in which banking institutions are required or authorized by law to close. CID Act means the Missouri Community Improvement District Act, Sections et seq of the Revised Statutes of Missouri, as amended. CID Administrative Costs means expenses of the District for administration incurred in connection with this Agreement, which expenses include without limitation the following: (a) reimbursement of the Board of Directors of the District for actual expenditures in the performance of duties on the behalf of the District pursuant to the CID Act; (b) expenses incurred in the exercise of the contractual powers of the District pursuant to the CID Act; (c) reimbursement for the costs of establishing the District pursuant to the CID Act; (d) the cost of insurance obtained by the District pursuant to the CID Act; (e) the cost of any audit by the state auditor; (f) expenses incurred by the District in the exercise of other powers granted under the CID Act; and (g) expenses incurred by the District in connection with abolition of the District in accordance with the CID Act. CID Property Tax means the real property tax levied in accordance with the CID Act and this Agreement at a rate not to exceed 40 cents per $100 of assessed valuation. CID Revenues means the proceeds of the CID Property Tax and any grants or donations received by the District. TDD Revenues shall not include any amount paid under protest until the protest is withdrawn or resolved against the taxpayer or any sum received by the District that is the subject of a suit or other claim communicated to the District, which suit or claim challenges the collection of such sum, until such suit or other claim is withdrawn or resolved against the taxpayer. City means the City of Creve Coeur, Missouri, a home rule charter city, and a political subdivision of the State of Missouri. Construction Manager means the City. Construction Plans means, as applicable, the plans, drawings, specifications and related documents, and construction schedules for the construction of all or a portion of the Project, together with all supplements, amendments or corrections. District means the Executive Office Park Watershed Community Improvement District, a political subdivision of the State of Missouri, the boundaries of which are set forth in Exhibit A, attached hereto and incorporated herein by reference. Easement means the easement for the Project as described in Section 3.7 of this Agreement. Note means the Note issued by the District to the City pursuant to this Agreement. Ordinance means the Ordinance creating the District enacted by the Creve Coeur City Council on. Petition means the Petition calling for the creation of the District submitted by property owners within the District to the City on. Project means the project described in the Petition and the Ordinance. 2

6 Section 1.2 Rules of Interpretation. Words of the masculine gender shall be deemed and construed to include correlative words of the feminine and neuter genders and vice versa. Unless the context indicates otherwise, words importing the singular number shall include the plural and vice versa, and words importing persons shall include firms, associations and corporations, including public bodies, as well as natural persons. All references herein to designated Articles, Sections and other subdivisions are, unless otherwise specified, to the designated Articles, Sections and subdivisions of this instrument as originally executed. Section 1.3 a part hereof. Recitals. All of the above and foregoing Recitals are incorporated into and made ARTICLE II REPRESENTATIONS Section 2.1 Representations by the City. The City hereby represents and warrants that it has full constitutional and lawful right, power and authority, under current applicable law, to execute and deliver and perform the terms and obligations hereof, and all of the foregoing have been or will be duly and validly authorized and approved by all necessary City proceedings, findings and actions. Accordingly, this Agreement constitutes the legal, valid and binding obligation of the City, enforceable in accordance with its terms. To the best of the City s knowledge and belief, no official or employee of the City has any significant or conflicting interest, financial or otherwise, in the Project or in the transactions contemplated hereby. Section 2.2 Representations by the District. The District hereby represents and warrants that it has full constitutional and lawful right, power and authority, under current applicable law, to execute and deliver and perform the terms and obligations hereof, and all of the foregoing have been or will be duly and validly authorized and approved by all necessary District proceedings, findings and actions. Accordingly, this Agreement constitutes the legal, valid and binding obligation of the District, enforceable in accordance with its terms. To the best of the District s knowledge and belief, no official or employee of the District has any significant or conflicting interest, financial or otherwise, in the Project or in the transactions contemplated hereby. ARTICLE III CONSTRUCTION, MAINTENANCE AND USE OF THE PROJECT Section 3.1 Construction of the Project. The City agrees to plan, design and construct the Project, subject to approval by the District which shall not be unreasonably withheld. The City further agrees to make payments in lieu of taxes in the amount of 46% of the costs of such planning, design and construction and to loan the District the necessary funds to cover the remaining 54% of the costs of such planning, design and construction, subject to approval and execution of a line of credit promissory note by the District (the Note ), to be repaid over 20 years with an annual interest rate of three percent (3%) by means of the CID Property Tax, substantially in the form attached hereto as Exhibit. The Note shall be issued upon execution of this Agreement with an initial balance due equal to 54% of all CID Administrative Costs previously paid by the City and of all costs previously incurred by the City in the planning, design and construction of the Project. Notwithstanding the foregoing, the City will pay 100% of the portion of such Project costs, if any, that exceed $2,313,500.00, as well as 100% of any and all costs incurred solely for the aesthetics of the City s municipal golf course. Further, unless otherwise agreed by the District and approved by its qualified voters, any balance remaining due on the Note at the end of such 20-year period after full application of the proceeds of the CID Property Tax levied over such period shall be deemed released. 3

7 Section 3.2 Construction Plans. The City will develop the Construction Plans for the Project and obtain all required approvals. Section 3.3 Construction Manager. The City will serve as the Construction Manager at no cost to the District, including without limitation conducting competitive bidding of all construction contracts as required by law, requiring payment and performance bonds of all successful bidders, ensuring that all successful bidders meet the obligations, if any, of a prime contractor pertaining to the payment of prevailing wages and ensuring that successful bidders that are nonresident employers meet the applicable bonding and registration requirements of state law. Section 3.4 Construction Contracts; Bonds and Insurance for Project. The City shall award and enter into all contracts for construction of the Project, and in connection therewith shall assure compliance with state law with respect to performance and labor and material payment bonds, each in an amount of 100% of the contract price from an approved surety company holding a permit from the State of Missouri to act as surety (and acceptable according to the latest list of companies holding certificates of authority from the Secretary of the Treasury of the United States) or other appropriate surety or sureties. Prior to the commencement of construction of any portion of the Project, the City shall require that any contractor obtains workers compensation as required by State law, comprehensive general liability insurance together with an owner s contractor s policy with limits against bodily injury and property damage of not less than $1,000,000 with the City and District named as additional primary insured (without waiving any sovereign or official immunity) and builder s risk insurance coverage in an amount equal to one hundred percent (100%) of the insurable value of the Project at the date of completion. The City shall deliver evidence of such insurance to the District and shall require that such insurance be maintained by any such contractor for the duration of the construction of the Project. Section 3.5 Inspection. The City shall conduct inspections of all work on the Project to ensure compliance with the Construction Plans and all applicable state and local laws, ordinances and regulations. Section 3.6 Completion of Project. Upon completion of the Project, the City shall provide to the District a notice of the completion. Section 3.7 Easement for and Maintenance of Project. Upon completion of the Project, the City shall execute an easement to the District and the properties located therein for use of the Project substantially in the form attached hereto as Exhibit (the Easement ). The City shall thereafter reasonably and responsibly repair and maintain the Project, with 54% of any such repair and maintenance costs being added to the balance due on the Note during its 20-year term, and reserves all rights as to such costs subsequently incurred as provided in the Easement. In the event that property owned by the City within the District becomes subject to real property taxes, or the City acquires property and thereby it ceases to be subject to real property taxes, the foregoing percentages (i.e. 46/54) shall be accordingly adjusted as provided in the Note and the Easement. 4

8 ARTICLE IV COLLECTION OF CID PROPERTY TAX Section 4.1 Collection of Revenues. The parties acknowledge that the District is authorized to impose the CID Property Tax at a rate not to exceed 40 cents per $100 of assessed valuation. The parties acknowledge that the St. Louis County Collector of Revenue shall perform all functions incident to the administration, collection, enforcement and operation of the CID Property Tax or provide for the performance of such functions. The City and the District shall work together to assure the Collector has all necessary information to collect the CID Property Tax. Section 4.2 Enforcement of the CID Property Tax. The City and the District shall report all delinquent tax bills to the St. Louis County Collector for collection in accordance with the Land Tax Collection Law, Sections to of the Revised Statutes of Missouri, as amended. Section 4.3 Access to Records. The District shall keep accurate records of the amount of CID Revenues on deposit in its account(s) and such records shall be open to the inspection of officers of the City and the general public. In the event that any records pertaining to the CID Property Tax are governed by Section of the Revised Statutes of Missouri, as amended, the District s Treasurer shall provide such records to the City s Director of Finance upon receipt of a written request that conforms to Section (e) of the Revised Statutes of Missouri, as amended, and only to the extent necessary to assist in collection of the CID Property Tax. Section 4.4 Use of CID Revenues. Beginning on the first business day of the first calendar quarter following the issuance of the Note and continuing on the first business day of each calendar quarter thereafter until the expiration of 20 years from the formation of the District, subject to annual appropriations, the District shall apply all CID Revenues to payments to the City on the Note. The District may keep nominal amounts on deposit to maintain its account(s) and shall keep any excess CID revenues on deposit for future use as provided in this Agreement. Section 4.5 Repeal of the District s Funding Mechanisms; Abolition of the District. The District shall not repeal or reduce the CID Property Tax until the passage of 20 years from the date of formation of the District, unless approved by the City which approval shall not be unreasonably withheld. Upon the expiration or authorized repeal of the CID Property Tax, the District shall: (a) promptly apply all or a portion of any moneys remaining on deposit in its account(s) to any remaining balance due on the Note; and (b) refund any moneys remaining to the property owners in the District pro rata based upon the assessed valuation of their properties (excluding any property owners who are delinquent in their tax payments). Section 4.6 No Other Funding Mechanisms. The District shall impose no other tax, assessment, toll or charge whatsoever without the written consent of the City and approval of the qualified voters within the District in accordance with the CID Act. However, the District may accept grants and/or donations to be used together with other CID Revenues as provided herein. 5

9 ARTICLE V PROJECT FINANCING Section 5.1 Pledge of CID Revenues. The District hereby pledges and grants a security interest to the City in all CID Revenues, subject to annual appropriation, to repayment of the Note in accordance with this Agreement. Section 5.2 Covenant to Request Annual Appropriation. The officer of the District at any time charged with the responsibility of formulating budget proposals shall include in the budget proposal submitted to the District for each fiscal year that a balance is due or projected to be due on the Note a request for an appropriation of CID Revenues for application to the payment of the Note in accordance with this Agreement. If, within 30 days after the end of the District s fiscal year, the District s Board of Directors fails to adopt a budget, the parties agree that the District shall be deemed to have adopted a budget that provides for application of the CID Revenues in such fiscal year in accordance with the budget for the prior fiscal year. Section 5.3 District s Obligations Limited to CID Revenues. The Note shall be the exclusive responsibility of the District payable solely out of CID Revenues and shall not constitute a debt or liability of the District, the City, the State of Missouri, or any other agency or political subdivision thereof, and shall not constitute indebtedness within the meaning of any constitutional or statutory debt limitation or restriction. Neither the District nor the City shall be obligated to pledge any funds other than those specifically pledged herein to repayment of the Note. Section 5.4 No Issuance of Other Obligations. Except for the Note, the District shall not issue any obligations without the prior written consent of the City. ARTICLE VI COVENANTS REGARDING OPERATION OF THE DISTRICT Section 6.1 Records of the District. The District will keep proper books of records and accounts in which full, true and correct entries will be made of all dealings or transactions of or in relating to its business affairs in accordance with generally accepted accounting principles consistently applied, and will furnish to the City such information as it may reasonably request concerning the District, including such statistical and other operating information requested on a periodic basis, in order to enable the City to determine whether the covenants, terms and provisions hereof have been complied with. In addition, the District shall furnish a copy of its annual financial statements to the City (audited, if available) within 180 days following the end of each fiscal year of the District. Section 6.2 Open Meetings and Records of the District. The District will comply with Chapter 610 of the Revised Statutes of Missouri, as amended, as it pertains to political subdivisions such as the District, by adopting an open meeting and records policy. The District will provide notice of the time, date and place of each meeting and tentative agenda of such meeting as provided in its open meeting and records policy to the City s advisor to the District s Board of Directors. The City agrees that it will, upon receipt of a notice and agenda from the District, post the notice and agenda for each meeting of the District in compliance with the requirements of Chapter 610 of the Revised Statutes of Missouri, as amended. Section 6.3 Additional Covenants of the District. The City has and shall continue to pay the CID Administrative Costs, 54% (subject to adjustment as provided herein) of which payments shall be added to the balance due on the Note together with the cost incurred by the City to review annual budgets and reports of the District, which are required to be submitted to the City. The District shall limit its 6

10 annual CID Administrative Costs to the sum of $15,000.00, unless otherwise approved by the City which approval shall not be unreasonably withheld. The District shall maintain its existence for a period of 20 years. The District shall comply with financial reporting requirement. In the event that the District is required to obtain an independent audit, the District shall engage the City s auditor to provide such independent audit of the District. Any costs to the City or the District in connection with such independent audit of the District shall constitute CID Administrative Costs. ARTICLE VII DEFAULTS AND REMEDIES Section 7.1 Term of Agreement. The parties acknowledge and agree that the term of this Agreement shall expire 20 years after the formation of the District, subject to satisfaction of remaining obligations in accordance herewith, at which time the District shall be abolished. Neither party shall terminate this Agreement prior to the expiration of its term. Section 7.2 Remedies on Default. Unless performance is waived by the party for whose benefit a condition or obligation is intended, if any party to this Agreement fails to satisfy its obligations under this Agreement, the non-defaulting party may, then or at any time thereafter, and while such default continues, take any one or more of the following actions: (a) by mandamus or other suit, action or proceedings at law or in equity, enforce its rights against the defaulting party and their officers, agents and employees, and require and compel duties and obligations required by the provisions hereof; or (b) any other action at law or in equity to enforce this Agreement. Section 7.3 Rights and Remedies Cumulative. The rights and remedies reserved by the City and the District hereunder and those provided by law shall be construed as cumulative and continuing rights. No one of them shall be exhausted by the exercise thereof on one or more occasions. The City and the District shall each be entitled to specific performance and injunctive or other equitable relief for any breach or threatened breach of any of the provisions hereof, notwithstanding availability of an adequate remedy at law, and each party hereby waives the right to raise such defense in any proceeding in equity. Section 7.4 Waiver of Breach. No waiver of any breach of any covenant or agreement herein contained shall operate as a waiver of any subsequent breach of the same covenant or agreement or as a waiver of any breach of any other covenant or agreement, and in case of a breach by the District of any covenant, agreement or undertaking by the District, the City may nevertheless accept from the District any payment or payments hereunder without in any way waiving the City s right to exercise any of its rights and remedies as provided herein with respect to any such default or defaults of the District which were in existence at the time when such payment or payments were accepted by the City. Section 7.5 Successors and Assigns; Assignment of District Rights. This Agreement shall be binding and shall inure to the benefit of the parties named herein and their respective successors and assigns. Neither the City nor the District shall assign any of its rights or obligations under this Agreement without the consent of the other party, except as otherwise provided herein. Section 7.6 Notices. Any notice, demand, or other communication required by this Agreement to be given to either party hereto to the other shall be in writing and shall be sufficiently given or delivered if dispatched by (a) United States first class mail, postage prepaid; (b) hand delivery; or (c) a nationally recognized overnight delivery service to the following addresses: 7

11 To the City: City of Creve Coeur, Missouri Creve Coeur Government Center 300 North New Ballas Road Creve Coeur, Missouri Attention: Mark Perkins, City Administrator with a copy to: Curtis, Heinz, Garrett & O Keefe, P.C. 130 South Bemiston Avenue, Suite 200 St. Louis, Missouri Attention: Carl Lumley To the District: with a copy to: The City and the District may from time to time designate, by notice given hereunder to the other parties, another address to which subsequent notices or other communications shall be sent. Section 7.7 Immunity of Officers and Employees of the City and the District. No recourse shall be had for the payment of the Note or for any claim based thereon or upon any representation, obligation, covenant or agreement contained herein against any past, present or future governing body member, officer, member, employee, director or agent of the City or the District, or, respectively, of any successor public or private corporation thereto, as such, either directly or through the City or the District, or respectively, any successor public or private corporation thereto, under any rule of law or equity, statute or constitution or by the enforcement of any assessment or penalty or otherwise, and all such liability of any such officers, members, employees, directors or agents as such is hereby expressly waived and released as a condition of and consideration for the execution hereof. Section 7.8 Amendments. This Agreement may be amended by the District and the City upon approval by the District Board of Directors and the City Council. Section 7.9 Mutual Assistance. The parties agree to take such actions, including the execution and delivery of such documents, instruments, petitions and certifications supplemental hereto, and the obtaining of grants of access to and easements over public property as may be necessary or appropriate to carry out the terms, provisions and intent hereof and which do not impair the rights of the affected party as such rights exist under this Agreement, and to aid and assist each other in carrying out said terms, provisions and intent; provided that nothing herein shall be construed to obligate the City, acting as a party hereto, to grant municipal permits or other approvals it would not otherwise be obligated to grant absent this Agreement. Section 7.10 Mutual Release. Neither the City nor the District shall be liable to the other for damages or otherwise in the event that this Agreement is declared invalid or unconstitutional in whole or in part by the final judgment of any court of competent jurisdiction, and by reason thereof either the City or the District is prevented from performing any of the covenants and agreements herein. All covenants, stipulations, promises, agreements and obligations of the City and the District shall be deemed to be the 8

12 covenants, stipulations, promises, agreements and obligations of the City and the District and not of any of their governing body members, officers, agents, servants or employees in their individual capacities. Section 7.11 Severability. If any provision hereof is held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. Section 7.12 Governing Law. This Agreement shall be taken and deemed to have been fully executed, made by the parties in, and governed by the laws of the State of Missouri for all purposes and intents. Section 7.13 Execution in Counterparts. This Agreement may be executed simultaneously in several counterparts, each of which shall be deemed to be an original and all of which shall constitute but one and the same instrument. (The remainder of this page is intentionally left blank.) 9

13 IN WITNESS WHEREOF, the City has caused this Agreement to be executed in its name and has caused its seal to be affixed thereto, and attested as to the date first above written. CITY OF CREVE COEUR, MISSOURI By: Mark Perkins, City Administrator [SEAL] ATTEST: City Clerk 10

14 IN WITNESS WHEREOF, the District has caused this Agreement to be executed in its name and has caused its seal to be affixed thereto, and attested as to the date first above written. EXECUTIVE OFFICE PARK WATERSHED COMMUNITY IMPROVEMENT DISTRICT By: Chair of the Board of Directors Attest: (SEAL) Secretary of the Board of Directors 11

15 EXHIBIT A BOUNDARY MAP OF THE DISTRICT (Attached hereto)