HomeMy WebLinkAbout2030 Authorizing City to Amend and Restate a Certain Development Agreement BILL NO. 2024-065 ORDINANCE NO. 2030
AN ORDINANCE AUTHORIZING THE CITY TO AMEND AND RESTATE A CERTAIN
DEVELOPMENT AGREEMENT
WHEREAS, the City of Riverside, Missouri, a fourth-class city organized and existing
under the laws of the State of Missouri (hereinafter referred to as "City"), and Live Nation
Entertainment, Inc., a Delaware corporation (hereinafter referred to as "Developer") (collectively
the `Parties") entered into that certain Development Agreement dated as of March 7, 2024,
authorized pursuant to Ordinance No. 1983, duly passed and approved by the Board of Aldermen
and approved and signed by the Mayor on the 7th day of March, 2024, (the "Development
Agreement"); and
WHEREAS, the Parties wish to amend the Development Agreement as provided for in the
Amended and Restated Development Agreement ("Amended Development Agreement"),
attached hereto as Exhibit A and incorporated herein, in order to finalize and confirm certain
obligations related thereto as provided for in the Development Agreement; and
WHEREAS,the Board of Aldermen find that the Amended Development Agreement fulfills
a public purpose and will further the growth of the City, facilitate the development of Riverside,
improve the environment of the City, increase the assessed valuation of the real estate situated
within the City, increase the sales tax revenues realized by the City, foster increased economic
activity within the City, increase employment opportunities within the City, enable the City to direct
the development of the Property, and otherwise be in the best interests of the City by furthering
the health, safety, and welfare of its residents and taxpayers; and, approves and authorizes the
Amended and Restated Development Agreement in substantially the same form as Exhibit A.
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE
CITY OF RIVERSIDE, MISSOURI, AS FOLLOWS:
SECTION 1. BEST INTEREST OF THE CITY AND APPROVAL OF AMENDMENT TO
THE LEASE AUTHORIZED PURSUANT TO ORDINANCE NO. 1884. The Board of Aldermen
find it is in the best interest of the City, in order to further the growth of the City, improve the
environment of the City, foster increased economic activity within the City, increase employment
opportunities within the City, further the objectives of the TIF Plan, further build out the public
infrastructure and otherwise is in the best interests of the City by furthering the health, safety, and
welfare of its residents and taxpayers, to authorize the Amended and Restated Development
Agreement ("Amended Development Agreement"), in substantially the same form as Exhibit A,
attached hereto and incorporation herein, and said Amended Development Agreement is hereby
approved.
SECTION 2. AUTHORITY GRANTED. The Mayor is hereby authorized and directed to
execute the Amended Development Agreement in substantially the same form as that attached
hereto and incorporated herein as Exhibit A, between the City and the Developer, and the Mayor,
City Administrator, Special Counsel to the City-Spencer Fane LLP, and other appropriate officials
and employees of the City are hereby authorized and directed to take such further action related
thereto as is otherwise necessary or desirable to carry out and comply with the intent of this
Ordinance.
SECTION 3. EFFECTIVE DATE. This Ordinance shall be in full force and effect from
and after its passage and approval.
PASSED AND APPROVED: the 3rd of October 2024.
F
at een L. Rose, Mayor
ATTEST:
Robin Kincaid,"City Clerk
Approved as to form:
Spen ne LLP,
Sp c' unsel to the City
by Joe Bednar
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EXHIBIT A
THE AMENDED AND RESTATED DEVELOPMENT AGREEMENT
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AMENDED AND RESTATED DEVELOPMENT AGREEMENT
This AMENDED AND RESTATED DEVELOPMENT AGREEMENT ("Agreement"),
dated this 3rd day of October, 2024 ("Effective Date"),is entered into by and between the City of
Riverside,Missouri,a fourth-class city("City")organized and existing under the laws of the State
of Missouri ("State"), and Live Nation Entertainment, Inc., a Delaware corporation
("Developer").The City and Developer are referred to in this Agreement individually as a"Party"
and collectively as the"Parties."
RECITALS
WHEREAS,City is the owner of certain real property consisting of an approximately one
hundred thirty five (135) acre collection of parcels generally located at the northwest intersection
of Horizons Parkway and I-635 in the City (the "Development Site") and more particularly
described on Exhibit A,attached hereto and made a part hereof(the portion of the Development
Site upon which the Amphitheater and Ancillary Structures,Parking Areas and Utilities,as defined
herein,are actually constructed are referred to herein as the"Project Site"); and
WHEREAS, City and Developer entered into that certain Development Agreement dated
as of March 7, 2024 (the "Original Development Agreement") to provide for the development
and financing of the Project(as defined herein)on the Project Site;
WHEREAS, City and Developer now desire to hereby amend and restate the Original
Development Agreement in its entirety;
WHEREAS,The City and Developer intend for Developer to cause the development of the
Development Site to include:
(1) a first-class live entertainment venue amphitheater of not less than a capacity of
15,000 people(the"Amphitheater"),generally depicted on Exhibit B attached hereto and
made a part hereof, and as more particularly described in the Plans and Exhibit C, the
Tenant Improvements Budget,attached hereto and incorporated herein,with respect to the
specific scope of improvements comprising the same;
(2) such additional ancillary structures and/or associated food and beverage areas as
Developer deems necessary to serve the Amphitheater and its customers (the "Ancillary
Structures"), as generally depicted on Exhibit B attached hereto and made a part hereof,
and as more particularly described in the Plans and said Exhibit C, the Tenant
Improvements Budget attached hereto and incorporated herein,with respect to the specific
scope of improvements comprising the same;
(3) approximately 6,366 paved and striped parking spaces, or other amount deemed
sufficient pursuant to the Plans, to serve Developer's intended use of the Project Site
(collectively, the "Parking Areas") as generally depicted on Exhibit B attached hereto
and made a part hereof, and as more particularly described in Exhibit D, the Public
Infrastructure Budget,attached hereto and incorporated herein,with respect to the specific
scope of improvements comprising the same;
(4) the installation of such public gas, water, electric, storm water and sanitary sewer
facilities (collectively, "Utilities") as necessary to serve the Development Site in capacities
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sufficient for the Developer's intended uses thereof including for the operation of the
Amphitheater and Ancillary Structures,as generally depicted on Exhibit B attached hereto and
made a part hereof, and as more particularly described in the Plans and said Exhibit D, the
Public Infrastructure Budget, attached hereto and incorporated herein, with respect to the
specific scope of improvements comprising the same;
(5) the earthwork and site improvements including grading and excavation necessary to
prepare the Project Site for construction of the Project, as more particularly described in the
Plans and said Exhibit D(collectively,the"Site Improvements");
(6) such vehicular roadways providing public access within and to and from the
Development Site from and to the existing public street network (collectively the
"Roadways"),as generally depicted on Exhibit B attached hereto and made a part hereof,and
more particularly described in the Plans and Exhibit D, the Public Infrastructure Budget,
attached hereto and incorporated herein, with respect to the specific scope of improvements
comprising the same. Collectively, the Parking Areas, Utilities, Site Improvements and
Roadways are referred to herein as the "Public Infrastructure". Collectively, the
Amphitheater, Ancillary Structures, Parking Areas, Utilities, Site Improvements and
Roadways, as the same are (or will be) more fully defined with the Plans and Final Design
(defined herein), and are referred to herein as the"Project"; and
WHEREAS,Developer and its contractor have developed a Tenant Improvements Budget,
attached hereto and made a part hereof as Exhibit C (as more fully defined herein, the "Tenant
Improvements Budget"); the City and Developer have developed a Public Infrastructure Budget
attached hereto and made a part hereof as Exhibit D (as more fully defined herein, the "Public
Infrastructure Budget",and together with the Tenant Improvement Project Budget,the"Project
Budget"); and the City and Developer have further developed a "Project Sources and Uses of
Funds" spreadsheet, attached hereto and made a part hereof as Exhibit E, which Project Budget
and Project Sources and Uses identify (i) the various line item categories and estimated total
amount of costs and expenses (including, without limitation, all hard and soft construction costs)
currently anticipated to be necessary to design,construct and complete the Project(the actual total
amount of all such costs and expenses referred to herein as"Project Costs"), and(ii) the sources
of revenue the Parties hereby agree will be used to pay for the Project Costs,respectively; and
WHEREAS, in addition to the Public Infrastructure,the City and Developer intend for the
City to design, construct and pay for all improvements and work associated with the
relocation/installation of new traffic signals, wiring of relocated/new traffic signals and signal
timing coordination, and a new rectangular rapid flashing beacon for pedestrian crossing and
Amphitheater Way(collectively,the"Signalization Improvements"); and
WHEREAS, the City and Developer have entered into that certain Second Amended and
Restated Ground Lease Agreement dated of even date herewith (the "Lease" or "Lease
Agreement"), which sets forth the terms and conditions between the Parties relating to the City
leasing the Development Site to Developer; and
WHEREAS,the Parties desire to plan,design,develop,construct and complete the Project
on the Development Site,subject to the applicable terms and conditions of the Lease,and upon the
terms and conditions set forth herein; and
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WHEREAS,the Parties agree that the Project is not financially feasible without the public-
private partnership set forth in this Agreement, and therefore wish to enter into this Agreement to
provide the necessary financing for the Project.
NOW THEREFORE, for and in consideration of the foregoing recitals, the mutual
agreements contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree this Agreement amends,
restates and replaces the Original Development Agreement in its entirety, and further agree as
follows:
I.
PURPOSE OF AGREEMENT; PROJECT AND DEVELOPMENT SITE DEFINED
1.1 Purpose of Binding Agreement.This Agreement sets forth certain material terms
of the mutual agreement between the Parties with respect to the(a)planning,design,development,
construction and completion of the Project and(b)public assistance necessary to make the Project
financially feasible for the Developer. Developer agrees to design, develop, fixture and construct
the Project's Tenant Improvements, inclusive of the fixturing and equipping of the Amphitheater
and Ancillary Structures in accordance with and subject to the terms and conditions herein and in
the Lease. The City, through or in coordination with Developer, shall be responsible for the
construction of the Public Infrastructure, all as more particularly described in this Agreement.
Subject only to the City's express representations and covenants in this Agreement and the Lease,
Developer agrees to accept the Premises (as defined in the Lease) in its "As is, Where is"
condition. Developer, exclusive of the City Funds and the State Funds and subject to Developer's
rights to CID Revenues and TDD Revenues, and in consideration of the granting of the 10-year
100% real property tax abatement for the Project and Chapter 100 sales tax exemption for
purchases of materials used in the construction thereof, as described in this Agreement and as
otherwise expressly set forth herein or in the Lease, shall be solely responsible for(a) the cost of
design, development,permitting, construction, and fixturing and equipping the Project, including
any cost overruns, such that no part of such cost of the Project will ever become an obligation of
the City,and(b) any construction defects in the Project.
1.2 Premises.City is leasing to Developer the Development Site described in the Lease
as the "Premises" subject and pursuant to the terms and conditions contained therein. This
Agreement is supplementary to the Lease and does not separately grant any leasehold interest.
Developer's use of the Project Site hereunder is also subject to the terms, conditions, and
limitations of this Agreement, including, but not limited to, certain City access requirements and
certain temporary requirements as may be necessary during the construction process by the laws,
rules and regulations of the City.
1.3 Temporary Construction Staging,Loading,and Access Areas. Developer shall
conduct construction staging and loading activities on, and shall access, the Development Site
during the construction period in accordance with applicable City Code provisions and other
applicable governmental laws, rules and regulations, and the City hereby grants Developer a
temporary construction license and right of ingress and egress over, under, upon, across and
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through the Development Site for Developer and affiliates,and their respective successors,assigns,
agents, employees, contractors, material men, suppliers, and other representatives to enter the
Development Site for purposes of all construction activities as reasonably necessary or desirable
to plan, locate, design, construct, install, use, repair, remove, replace and/or reconstruct all such
improvements, facilities, and other work and activities as necessary or reasonable for completion
of the Project(collectively,the"License"),which License shall expire upon the earlier of the date
of issuance of a final certificate of occupancy for the Amphitheater and three (3) years from the
Effective Date hereof. Developer does not have rights hereunder to use areas outside of the
Development Site except (a) as provided in the Lease or other separate agreement between the
Parties,and(b)for temporary access rights as provided herein. Developer and City anticipate that
from time-to-time Developer may require temporary access and use of areas located outside the
Development Site and which may not be specifically addressed in the Lease or(if applicable)such
other separate agreement between the Parties. City will provide temporary access to such areas
conditioned upon the following: (i) the access or use of the areas must be for work described or
anticipated under this Agreement and/or the Lease, such as the utilities plan or roadway
construction, or other work authorized by the City or other governmental agency having
jurisdiction over the same; (ii) Developer must obtain written approval from the City Project
Coordinator prior to accessing areas outside the Development Site,which approval may be subject
to reasonable conditions regarding time, location, duration, and protection of property; (iii)
Developer will repair any damage caused to areas outside the Development Site and restore such
areas to substantially the condition existing immediately prior to Developer's use or to such other
condition as requested in writing by Developer and approved in writing by the City in its
commercially reasonable judgment;and(iv)Section 12("General Indemnities")will apply to all
such use by Developer.
1.4 Mitigation of Construction Impacts.Developer shall conduct or shall cause to be
conducted all construction activities related to the Project's Tenant Improvements to be performed
in accordance with applicable requirements of the Code of Ordinances of the City of Riverside as
adopted and in effect at the time of the approval of the Plans ("City Code"), any Construction
Impact Mitigation Plan to be developed and mutually agreed to by the Parties in writing (the
"Construction Impact Mitigation Plan"). The Construction Impact Mitigation Plan is intended
to reduce or eliminate certain anticipated impacts(to the extent feasible) arising from the Project,
including impediments to transportation,noise and impacts on neighboring properties. In the event
that the City notifies Developer of a failure to comply with the Construction Impact Mitigation
Plan, City and Developer shall promptly meet and confer to discuss such failure and how to bring
the Project back into compliance. Moreover, in the event that the City notifies Developer, its
contractors or subcontractors, that the nature of such alleged non-compliance has a material
adverse effect on the City or the neighboring properties or poses an immediate danger to persons
or property in and around the Project Site, then upon written notice, an email shall satisfy this
requirement for a written notice from City (and without limitation of other remedies under this
Agreement) Developer shall immediately cease any such alleged non-complying construction
activities for a period not to exceed twenty-four(24)hours until such issue can be investigated and
a mutually agreed upon cure implemented by Developer and/or its contractors.
II.
TERM OF AGREEMENT
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2.1 Term. This Agreement is binding and effective from and after the Effective Date
and, will continue for a term, unless earlier terminated pursuant to the terms hereof, that expires
on the later of the following (the "Term"): (a) expiration of the Chapter 100 Lease and
consummation of Developer's repurchase option thereunder,(b)the date on which the full amount
of the State Funds and the City Funds have been expended to pay(or reimburse Developer for)the
costs of the Public Infrastructure, (c) the date on which the aggregate amount of CID Revenues
and TDD Revenues actually received by Developer equals or exceeds Tenant's Share of CID &
TDD Revenues(as defined in the Lease);and(d)the date on which the entirety of the Development
Site has been removed from both the CID and TDD District and the CID Sales Tax and TDD Sales
Tax have been terminated as to the Development Site and the improvements thereon (including,
without limitation,the Amphitheater and Ancillary Structures).
III.
PROJECT SCHEDULE AND COORDINATION
3.1 Design and Construction Schedule.Attached hereto as Exhibit F is the estimated
design and construction schedule for the Project (the "Design and Construction Schedule").
Developer shall provide to the City Engineer, not less frequently than monthly through Final
Completion pursuant to Section 9.5 of this Agreement Developer's most current updates to the
Design and Construction Schedule. Developer acknowledges that the City, when acting in its
regulatory capacity,is not limited in its regulatory authority by this Agreement and will not under
any circumstance be responsible for any costs associated with Project delays caused by
Developer's, its Contractor's or subcontractors' failure to comply with City laws, rules or
regulations applicable to the Project, inclusive of timely application and diligent pursuit of all
applicable permits for the Project.
3.2 Force Majeure. "Force Majeure" will mean, whenever any time period or
deadline is set forth in this Agreement,that such period or deadline will be extended by the number
of days that completion of an obligation is actually delayed due to acts of nature or of the public
enemy; governmental action or inaction not reasonably anticipated, including by the City in its
capacity as a regulatory authority; acts of terrorism; fires; floods; tidal waves; epidemics;
quarantine restrictions; freight embargoes; earthquakes;unusually severe weather; strikes or other
substantial interruption of work because of labor disputes; inability to obtain materials or
acceptable substitute materials on a timely basis, not reasonably anticipated; failure or delay in
delivery of utilities serving the Development Site not caused by, or outside the reasonable control
of,the Party claiming an extension; previously unknown environmental conditions discovered on
or affecting the Development Site or any portion thereof, in each case including any delay caused
or resulting from the investigation or remediation of such conditions; existing unknown or newly
discovered geotechnical conditions,including any delay caused or resulting from the investigation
or remediation of such conditions; litigation that enjoins construction or other work on the
Development Site or any portion thereof, causes a lender to refuse to fund, disburse or accelerate
payment on a loan, or prevents or suspends construction work except to the extent caused by the
Party claiming an extension; and any action or proceeding before any judicial, adjudicative, or
legislative decision-making body, including any administrative appeal, that prevents the action
that is being delayed, brought by a third party that challenges any required permit, approval or
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other approval,action or consent required to implement the Project,provided the foregoing events
will only be considered Force Majeure to the extent the same (a) do not arise from the acts or
negligent omissions of the Party claiming Force Majeure delay, and (b) are not within the
reasonable control of such Party. A Party claiming Force Majeure shall provide prompt notice to
the other Party of any such claim of Force Majeure.
IV.
PROJECT FINANCING
4.1 Estimated Cost& Financing Sources.Total Project Costs necessary to complete
the Project are estimated to be approximately$120,000,000, and shall be paid from the following
sources:
(a) $95,000,000 of Developer's private Equity Contribution and/or Debt
Financing (collectively, the "Developer's Private Funds"), at least $5,000,000 of which
shall be reimbursable with CID Revenues and TDD Revenues as more particularly
described(and subject to increase as provided)below;
(b) $20,000,000 in direct grant assistance appropriated by the State of Missouri
("State") in House Bill No. 7 of the 2023 Session of the Missouri General Assembly(the
"State Funds"); the full amount of such State Funds shall be used solely to pay for the
Project Costs of the Public Infrastructure; and
(c) $5,000,000 in direct assistance from the City (the "City Funds"),
reimbursable to the City with its share of CID Revenues and TDD Revenues as defined
herein and more particularly described below.
If the Project Costs to complete the Public Infrastructure exceed Thirty Million and 00/100
Dollars ($30,000,000.00) (or such lesser amount actually paid, or reimbursed to Developer, as
appliable,with State Funds and City Funds)Developer shall pay for such excess Project Costs and
the same shall be fully reimbursed to Developer with CID Revenues and TDD Revenues as defined
herein and more particularly described in Section 4.3(c) and Section 4.7 below, after Developer
and the City have each been reimbursed for their respective Five Million and 00/100 Dollar
($5,000,000.00) referenced in subsections 4.1(a) and 4.1(c) above. For avoidance of doubt, the
terms "Roadways", "Utilities", "Public Infrastructure", and "Project", as used herein, all
specifically exclude (i) the Signalization Improvements and the costs thereof, which shall be the
responsibility of the City in addition to and separate from its contribution of the City Funds to the
costs of the Public Infrastructure.
4.2 Equity Contribution and Debt Financing. Developer intends to fund the Project
Costs, less the State Funds and City Funds, through a combination of equity contributed by
Developer and/or its investors (collectively, the "Equity Contribution"), and indebtedness from
one or more institutional lenders (collectively, the "Debt Financing"). If and to the extent that
cost overruns result in an increase in the Project Costs for the Project scope described herein,then
Developer will in good faith seek to arrange for the Equity Contribution and/or Debt Financing to
be increased to cover the full amount of the Project Costs (less the State Funds and City Funds)
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and/or other available public or private funding source(s) in an aggregate amount equal to the
Project Costs in excess of$120,000,000, or to find reasonable Project Cost savings that, alone or
in combination with any such additional funding arranged, balances total Project Costs and
Sources of Funds to pay the same. Any security instrument securing the Debt Financing will only
encumber Developer's leasehold interest in the Development Site,Developer's ownership interest
in the Amphitheater and Ancillary Structures,or both,and will not encumber the City's fee interest
in the land comprising the Development Site. Prior to execution of the Lease Agreement and this
Agreement, Developer shall provide to the City's fmancial consultant (which is currently
anticipated to be Columbia Capital), an updated budget for Project Costs, including a balanced
Sources and Uses showing each source of debt and equity. If and to the extent that the City requests
that it be able to review any loan documents related to the Debt Financing, the City's review shall
be conducted in an expeditious manner and shall be limited to providing the City a reasonable
opportunity for confidential review to confirm that (i) the terms and conditions of such loan
documents are not in conflict with Developer's obligations to the City as set forth in this Agreement
and the Lease Agreement,(ii)any security instrument creating a lien to secure the Debt Financing
encumbers only Developer's leasehold interest in the Development Site, ownership interest in the
Amphitheater and Ancillary Structures,and/or other collateral,but not the City's fee interest in the
land constituting the Development Site, (iii)that the Parties have considered and agreed upon any
City and/or lender notice provisions to be incorporated into the loan documents(including,without
limitation, any agreed-upon notice provisions from lenders in favor of the City), and (iv) the
amount and cost(including capitalized interest) of the Debt Financing is consistent with the then-
current Project Budget(defined herein).
4.3 Public Entity Funding. The source of funding for the Project Costs of the Public
Infrastructure, as illustrated in Exhibit E,shall be as follows:
(a) The Parties shall first utilize the Twenty Million and 00/100 Dollars
($20,000,000) in direct grant assistance appropriated by the State for the Project as more
particularly described in Section 7.143 of truly agreed and finally passed CCS SCS HCS
HB 7 as signed and approved by the Governor of the State of Missouri, pursuant to the
terms and conditions of this Agreement and any applicable conditions of disbursement as
established by the Missouri Department of Economic Development ("DED") and the
Missouri Development Finance Board ("MDFB") in the Grant Agreement (as defined
herein); and
(b) For the first Ten Million and 00/100 Dollars ($10,000,000) of the Public
Infrastructure costs in excess of the State Funds, the City and Developer shall split such
costs equally on a 50/50 dollar for dollar basis, and such respective contributions shall be
reimbursed to the City and Developer on a 50/50 dollar for dollar basis with the first Ten
Million and 00/100 Dollars ($10,000,000) of CID Revenues and TDD Revenues as
described in Section 4.7(d)below.
(c) For any and all costs of the Public Infrastructure in excess of the amount of
Project Costs actually paid (or reimbursed to Developer, as applicable) with State Funds,
City Funds, and the initial $5,000,000 of Developer's Private Funds described in Section
4.1(a) and 4.3(b) above (such excess, the "Additional Infrastructure Costs"), the
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Additional Infrastructure Costs shall be the responsibility of the Developer,and, following
the initial Ten Million($10,000,000) of reimbursement described in Section 4.3(b)above,
the CID Revenues and TDD Revenues shall be reserved and exclusively available to
Developer for reimbursement of such Additional Infrastructure Costs,as more particularly
described in Section 4.7 below.
4.4 Chapter 100 Financing. The Parties intend, upon approval of the Board of
Aldermen of the Bond Documents(defined herein),to enter into and perform certain transactions
and agreements authorized by and pursuant to the provisions of Article VI, Section 27(b) of the
Missouri Constitution, as amended and Sections 100.010 to 100.200 of the Revised Statutes of
Missouri, as amended (collectively, the "Act"), including the issuance by the City of taxable
industrial development revenue bonds in an aggregate principal amount not to exceed the total
estimated Project Cost or such other amount agreed to by the Parties in such agreements (the
"Bonds") to be utilized to fmance the Amphitheater and Ancillary Structures, and purchases of
materials used in the construction of the Project, as provided for in this Agreement, for purposes
of authorizing exemptions for the Project from: (a) sales and use tax on the materials purchased in
connection with the construction of the Project, and (b) 100% of ad valorem real property taxes
for the Amphitheater and Ancillary Structures for a period of ten(10) years beginning January 1
following the Substantial Completion (defined herein) of the Amphitheater (collectively, the
"Chapter 100 Incentives").Upon approval of the Board of Aldermen,and Developer's execution,
of the Bond lease agreement related to the Chapter 100 Incentives,the City shall promptly secure
and furnish to Developer the sales and use tax exemption certificates for use by Developer and its
contractors and subcontractors to purchase materials for the Project exempt from sales and use tax.
The City agrees to cooperate with Developer and use its diligent and good faith, commercially
reasonable efforts to pursue and secure any approvals or consents from DED as necessary to carry
out the Chapter 100 Incentives as described above.
4.5 Obligations Pursuant to Chapter 100 Transactions.The Parties obligations with
respect to the Chapter 100 Incentives following the issuance of the Bonds will be delineated within
the Bond transaction documents necessary to provide and carry out the Chapter 100 Incentives
(collectively, the "Bond Documents"), which shall be consistent with the Act and the terms and
provisions customarily included in Chapter 100 bond documents entered into in the State for
purposes of providing real property abatement and sales tax exemption.
4.6 Disbursement of State and City Funds.
(a) Grant Agreement. Upon the Parties' execution of this Agreement and the
Lease, the City (to the extent it has not already done so as of the Effective Date) shall
promptly execute that certain Funding Agreement between(or to be entered into between)
the City and MDFB related to the State Funds and in the form approved by MDFB at its
August 20, 2024, meeting (the "Grant Agreement"). The City shall provide the fully-
executed Grant Agreement to Developer (and all subsequent proposed modifications
thereof) to Developer promptly upon the City's execution or receipt of the same from
MDFB. Prior to responding to any such proposed modifications received from MDFB,the
City shall first confer with Developer and submit any and all comments and revisions that
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the City intends to propose to the modifications to Developer for its review and prior
written approval.
(b) Disbursement. All requests to draw or receive reimbursement from State
Funds and/or City Funds will be made in a"Certificate of Project Costs"in substantially
the form attached hereto as Exhibit G along with reasonable supporting documentation
(such as copies of bills, invoices, pay applications, contracts, receipts, check stubs, wire
confirmations, lien waivers or such other documentation to confirm that the Project Costs
relating to the draw or reimbursement request constitute Project Costs which are payable
and/or reimbursable under this Agreement from the source(s)of funds requested to pay or
reimburse the same). The City shall have ten (10) business days following receipt of any
Certificate of Project Costs to review the same to confirm that the costs included therein
constitute Project Costs payable and/or reimbursable from the requested source of funds in
accordance with this Agreement, in which case the City shall approve the Certificate of
Project Costs and disburse the State Funds and/or City Funds requested thereby to
Developer, in the amount requested in the Certificate of Project Costs, within thirty (30)
days following Developer's submission of the Certificate of Project Costs. If the City
reasonably disapproves all or a portion of a Certificate of Project Costs on the basis of not
complying with the criteria in this subsection,the City shall notify the Developer in writing
of the specific reason for such disapproval within five(5)days following its initial receipt
of the Certificate of Project Costs, and the Parties shall use their best efforts, time being of
the essence, to work together to try to resolve any specific disapproved Project Cost
impediment to approval. For any Certificate of Project Costs that has been only partially
disapproved, the City shall proceed with disbursement in the amount of the approved
Project Costs listed on such Certificate of Project Costs shall proceed to payment as
described above.
4.7 Special Districts.
(a) Community Improvement District(CID)Financing.Reference is hereby
made to that certain Horizons Community Improvement District ("Horizons CID")
established pursuant to the City's adoption of Ordinance No. 1725 on June 15,2020,which
encompasses the Development Site and certain other surrounding properties (such
Horizons CID, as may be expanded or otherwise amended subject to compliance with the
CID Act and the terms and conditions of this Agreement and Lease, is also referred to
herein as the"CID"), and to the accompanying one percent(1.0%) CID sales and use tax
imposed in the CID(the "Horizons CID Sales Tax")pursuant to Resolution No. 2020-05
adopted by the City on June 16, 2020, and thereafter submitted to and approved by a
majority of the qualified voters of such Horizons CID as of August 4, 2020 and as may be
amended from time to time in accordance with the CID Act(defined below)and subject to
and consistent with the terms and conditions of this Agreement and in the Lease (such
Horizons CID Sales Tax levied in all or any portion of the CID, is also referred to herein
as the "CID Sales Tax"), all in accordance with the Missouri Community Improvement
District Act, Section 67.1401 to 67.1571 of the Revised Statutes of Missouri, as amended
(the "CID Act"). It is the intent of the Parties that all revenues generated from the CID
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Sales Tax imposed within all or any portion of the CID (collectively, "CID Revenues"),
less those administrative costs actually deducted by the Department of Revenue or the CID
in accordance with the CID Act (not-to-exceed $2,500 annually, or such other amount as
the City, Developer, and the CID may mutually agree) (if any), shall be collected,
deposited,used, and disbursed exclusively for the purposes, and in strict adherence to the
reimbursement priorities, set forth in this Agreement. The parties acknowledge that the
City and CID are separate political subdivisions,and that the CID is governed by the Board
(as defined in the CID Act)(the"CID Board")and has all of the powers and duties granted
to and/or exercisable by a community improvement district pursuant to the CID Act and
Petition(as defined therein),including,but not limited to the following: to make and enter
into contracts and other instruments, with public and private entities, necessary or
convenient to exercise such powers and carry out such duties.The City shall propose to the
CID, and diligently and in good faith pursue the negotiation, approval and full execution
of, a separate written agreement between the City and the CID for the purpose of
implementing and carrying out the intent of the aforesaid,in form and substance acceptable
to Developer (the "CID Reimbursement Agreement"). It is the further intent of the
Parties that the CID Reimbursement Agreement will provide that all such CID Revenues
(other than those revenues needed to pay for the authorized administrative costs of the
Department of Revenue, or the CID not-to-exceed $2,500 annually or such other amount
as the City, Developer, and the CID may mutually agree) shall be: (i) initially transferred
to the City,(ii)held in a separate fund(or sub-account) of the City,not commingled with
other funds of the CID or the City,and(iii)solely used and disbursed strictly in accordance
with this Agreement(including,but not limited to, Sections 4.3 and 4.7(d)hereof).
Upon the Parties' execution of this Agreement and the Lease, the City shall
promptly prepare a draft of the proposed CID Reimbursement Agreement for Developer's
review and written approval before providing such draft to the CID. The CID
Reimbursement Agreement shall incorporate all material terms of this Agreement relating
to the CID, CID Sales Tax, and CID Revenues and otherwise provide appropriate
assurances for Developer with respect to its rights and priority to reimbursement with CID •
Revenues. Following the Developer and City agreeing upon an appropriate draft CID
Reimbursement Agreement, the City shall provide such draft of the CID Reimbursement
Agreement to the CID for review, and all subsequent comments, responses, and other
proposed revisions to the same shall be provided to Developer at or near the same time
received by the City. The Parties hereby agree that the City shall not execute or otherwise
authorize the CID Reimbursement Agreement (or any other agreement with the CID
relating in any manner to the use, disbursement or priority of CID Revenues), nor any
amendment or other modification of the foregoing, unless and until Developer has first
reviewed and approved the same.
Accordingly,the City shall take,and shall diligently and in good faith advocate for
the Board of Directors of the CID and other interested stakeholders to take,all such actions
and legal steps as necessary to carry out the intent of this Agreement with respect to the
CID Reimbursement Agreement, CID, CID Sales Tax and CID Revenues. Developer
understands the City and the CID are separate political subdivisions with separate
governing bodies charged with acting in the public interest and the interest of their
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respective constituents and that, pursuant to the CID Act, the City's governing body does
not control the CID and all official acts of the CID must be by written resolution approved
by the CID Board as provided in Section 67.1451.8 of the CID Act. The City agrees that it
shall not take(nor fail to take)any action within its authority that would be contrary to this
Agreement or the intent hereof as it relates to Developer's rights and priority to
reimbursement with CID Revenues.
(b) Transportation Development District(TDD) Financing. In addition,the
Parties will work cooperatively to form a Transportation Development District (TDD)
coterminous with the boundaries of the CID described above(the"TDD"), and to impose
an accompanying one percent 1.0% TDD sales and use tax on all taxable sales occurring
on or within, or otherwise sourced to, the TDD(the"TDD Sales Tax"), all in accordance
with the Missouri Transportation Development District Act, Section 238.200 to 238.275 of
the Revised Statutes of Missouri,as amended(the"TDD Act").It is the intent of the Parties
that all revenues generated from the TDD Sales Tax imposed within all or any portion of
the TDD (collectively, "TDD Revenues"), less those administrative costs actually
deducted by the Department of Revenue or the TDD in accordance with the TDD Act(not-
to-exceed$2,500 annually,or such other amount as the City,Developer,and the TDD may
mutually agree) (if any), shall be collected, deposited,used, and disbursed exclusively for
the purposes, and in strict adherence to the reimbursement priorities, set forth in this
Agreement. Upon the creation of the TDD pursuant to the TDD Act, the parties
acknowledge that the TDD will be a separate political subdivision from the City and
governed by the Board(as defined in the TDD Act) of the TDD (the "TDD Board") that
will possess and exercise the TDD's powers in accordance with the TDD Act.Accordingly,
the City shall propose to the TDD, and diligently and in good faith pursue the negotiation,
approval and full execution of,a separate written agreement between the City and the TDD
for the purpose of implementing and carrying out the intent of the aforesaid, in form and
substance acceptable to Developer (the "TDD Reimbursement Agreement"). It is the
further intent of the Parties that the TDD Reimbursement Agreement will provide that all
such TDD Revenues (other than those revenues needed to pay for the authorized
administrative costs of the Department of Revenue, or the TDD not-to-exceed $2,500
annually or such other amount as the City, Developer, and the TDD may mutually agree)
shall be: (i) initially transferred to the City, (ii)held in a separate fund(or sub-account)of
the City,not commingled with other funds of the TDD or the City,and(iii)solely used and
disbursed strictly in accordance with this Agreement (including, without limitation,
Sections 4.3 and 4.7(d)hereof).
Upon the Parties' execution of this Agreement and the Lease, the City shall
promptly prepare a draft of the proposed TDD Reimbursement Agreement,and prepare(or
cause to be prepared)drafts of the petition to form the TDD and documentation necessary
to propose imposition of the TDD Sales Tax, for Developer's review and written approval
before providing such drafts to the TDD or its counsel. The TDD Reimbursement
Agreement shall incorporate all material terms of this Agreement relating to the TDD,TDD
Sales Tax,and TDD Revenues and otherwise provide appropriate assurances for Developer
with respect to its rights and priority to reimbursement with TDD Revenues. Following the
Developer and the City agreeing upon an appropriate draft of the TDD Reimbursement
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Agreement,the City shall provide such draft of the TDD Reimbursement Agreement to the
TDD for review,and all subsequent comments,responses,and other proposed revisions to
the same shall be provided to Developer at or near the same time received by the City. The
Parties hereby agree that the City shall not execute or otherwise authorize the TDD
Reimbursement Agreement(or any other agreement with the TDD relating in any manner
to the use, disbursement or priority of TDD Revenues), nor any amendment or other
modification of the foregoing,unless and until Developer has first reviewed and approved
the same.
Accordingly,the City shall take,and shall diligently and in good faith advocate for
the Board of Directors of the TDD and other interested stakeholders to take,all such actions
and legal steps as necessary to carry out the intent of this Agreement with respect to the
TDD Reimbursement Agreement, TDD, TDD Sales Tax and TDD Revenues. Developer
understands the City and the TDD are separate political subdivisions with separate
governing bodies charged with acting in the public interest and that, pursuant to the TDD
Act, the City's governing body does not control the TDD and all official acts of the TDD
must be by written resolution approved by the TDD Board.The City agrees that it shall not
take (nor fail to take) any action within its authority that would be contrary to this
Agreement or the intent hereof as it relates to Developer's rights and priority to
reimbursement with TDD Revenues.
(c) Board Seats. Developer(or its designee) shall have at least two (2) of the
five seats (or at least 2/5 of the total number of seats, if more than five) on the Board of
Directors of each of the CID and the TDD at all times while all or any portion of the
Development Site is included in the CID or TDD or subject to the CID Sales Tax or TDD
Sales Tax.
(d) Priority of Reimbursement. Consistent with Sections 4.1 and 4.3 of this
Agreement, the Parties acknowledge and agree that it is the intent of the Parties that all
CID Revenues and all TDD Revenues (less any administrative charges collected by the
State Department of Revenue,or the CID and TDD(not to exceed$5,000 annually without
Developer's prior written approval)) (the "Available Revenues") shall be used and
disbursed exclusively as follows:
i. The first Ten Million and 00/100 Dollars($10,000,000)generated shall be used
to reimburse the City and Developer, on a 50/50 dollar-for-dollar basis, in the
amount of the City Funds (not to exceed $5,000,000), and $5,000,000 of
Developer's Project Costs, actually expended on Project Costs of the Public
Infrastructure for the Project;
ii. Next, one hundred percent (100%) of all the Available Revenues shall be
reserved and made exclusively available to Developer to reimburse Additional
Infrastructure Costs; and
iii. At such time as the City Funds, and all of Developer's Project Costs,
attributable to the Project Costs of the Public Infrastructure(including,without
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limitation, all Additional Infrastructure Costs) have been fully reimbursed, as
evidenced by written notice from Developer to the City, any further collection,
use and disbursement of CID Revenues and TDD Revenues thereafter shall be
subject to the City and Developer(and, if applicable, any other single revenue
contributor whose taxable sales generate an amount equal to eighty percent
(80%) or more of the CID Revenues and TDD Revenues generated from the
Project and Developer's commercial activities upon the Development Site)
agreeing upon the form of and executing an amendment to this Agreement (or
other written agreement to which the City and Developer are both parties)
detailing the specific uses and allocation of such further CID Revenues and
TDD Revenues, which amendment (or other agreement, as applicable) shall
require and provide for a proportionate split of the CID Revenues and TDD
Revenues, including at a minimum: (a) that all CID Revenues and TDD
Revenues generated from the Project and Developer's commercial activities on
the Development Site shall be reserved and made available exclusively for
Developer to pay or reimburse such ongoing costs as eligible for such payment
or reimbursement under the CID Act and/or the TDD Act(as applicable); and
(b)if applicable,that all CID Revenues and TDD Revenues generated from the
property within the district owned by such other single contributor, and its
commercial activities thereon,shall be reserved and made available exclusively
for such other single contributor to pay or reimburse such ongoing costs as
eligible for such payment or reimbursement under the CID Act and/or TDD Act
(as applicable).
(e) Further Action. The City, consistent with this Agreement and the Lease
(and in all events in compliance with the CID Act and the TDD Act, as applicable), shall
adopt and/or amend(or cause to be adopted and/or amended)such ordinances,resolutions,
agreements, and other formation and governing documents related to the CID and CID
Sales Tax, and the TDD and TDD Sales Tax, as necessary to achieve and carry out the
intent of this Section 4.7, including,but not limited to,the authorization and execution by
the CID and TDD of such promissory notes,development agreements,or other instruments
as Developer reasonably deems necessary to provide it with a sufficient means of
enforcement for the same.
(f) CID & TDD Eligible Expenses. The Parties acknowledge and agree CID
Revenues and TDD Revenues may only be used to pay or reimburse Project Costs (and/or
ongoing maintenance and other costs) eligible for such payment or reimbursement in
accordance with the CID Act and TDD Act, respectively, and shall be held and disbursed
strictly in accordance with the terms and conditions of this Agreement. If requested by
Developer,the City agrees to work cooperatively with and provide assistance to Developer
in seeking to maximize Developer's Project Costs eligible for reimbursement with CID
Revenues and TDD Revenues, including, by way of example and without limitation,
advancing and supporting such actions and transactions as necessary for the City to
lawfully acquire a leasehold or fee ownership interest in certain improvements(or portions
thereof)to the extent specified in any request made by Developer under this subsection and
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upon the terms and conditions mutually agreed to by the Parties pursuant to a separate
agreement.
(g) No Other Impositions. Other than the Levee Assessment imposed by the
Riverside Quindaro Bend Levee District existing as of the Effective Date, and the CID
Sales Tax and TDD Sales Tax upon the terms and conditions described in this Agreement,
the City acknowledges and agrees that it shall not seek to impose,nor approve or take any
other steps in furtherance of the imposition of, any CID, TDD, special benefit district, or
other assessments, special taxes or other impositions of any kind against all or any portion
of the Development Site, Amphitheater and/or Ancillary Structures.
V.
UTILITY TERMINATION,RELOCATION,AND CONNECTION
Developer shall or shall cause all work that is needed to separate, terminate, relocate and
construct Utilities(as defined in the Lease) in and to the Project Site required for the operation of
Project, including (as applicable) electrical and low voltage wiring, mechanical, plumbing and
drainage piping,in a manner that does not interrupt utility service to neighboring properties outside
the Development Site, except for such temporary interruption as may be specifically approved in
writing by the City,not to be unreasonably withheld, conditioned or delayed.
VI.
ROLE OF CITY PROJECT COORDINATOR AND DEVELOPER REPRESENTATIVE
6.1 Designation of City Project Coordinator. The Mayor, representing the City as
owner of the Project Site,may designate from time to time, by notice in writing to Developer, an
individual who shall serve as the City Project Coordinator(the "City Project Coordinator") for
the purposes of communicating with the Developer Representative to keep the City apprised
regarding matters related to the design,development and construction of the Project,but expressly
excluding matters in which the City is acting in its regulatory capacity. The initial City Project
Coordinator will be Sam Winter.Developer will so inform its principal Project architect("Project
Architect"), and contractor(s) (individually and collectively, as applicable, the"Contractor") of
the City Project Coordinator and inform its Developer Representative (defined below) to
transparently coordinate with the City Project Coordinator as provided in this Agreement to keep
such individual informed as to the Project status.
6.2 Designation of Developer Representative.Developer may designate from time to
time in writing an individual who will serve as the Developer Representative for the purposes of
communicating with the City Project Coordinator regarding matters related to the design,
development and construction of the Project (the "Developer Representative"). The initial
Developer Representative will be Sam Winter. The City Project Coordinator will advise the City
staff to reasonably coordinate with the Developer Representative to keep such individual informed
as to any facts or circumstances that may be reasonably anticipated to affect the Project.
6.3 Role of City Project Coordinator and Developer Representative. The City
Project Coordinator is authorized to receive notices as specified in this Agreement and to make
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decisions on behalf of the City consistent with the responsibilities as expressly designated under
this Agreement. Otherwise, only the Mayor, with granting authority from the City's Board of
Aldermen, will be authorized to make binding decisions on behalf of the City with respect to the
Project and this Agreement,provided that nothing in this Agreement will limit the City when acting
in its governmental and regulatory capacity. Only the Developer Representative is authorized to
give binding instructions or to make binding decisions on behalf of Developer hereunder with
respect to the design,development, and construction of the Project. Developer will use good faith,
commercially reasonable efforts to involve and keep the City Project Coordinator informed on a
timely basis of significant aspects of the design,development and construction of the Project.
6.4 Meetings and Briefing Materials. To enable the City Project Coordinator to
remain informed about the status of the Project, participate in discussions regarding same, and
present the City's nonbinding recommendations with respect to matters being discussed, the
Developer Representative will schedule regular meetings, not less frequently than bi-weekly or
such other interval as may be agreed by the City Project Coordinator and Developer Representative
from time to time, (which may be held by phone or video conference), with the Project Architect
and Contractor to discuss major issues related to the design,development and construction of the
Project. The City Project Coordinator,if and when so requested by the City, shall cause the City's
designated financial,legal and construction consultants,to be notified of the time and place of and
invited to all such meetings.
6.5 Material Construction-Related Documents and Notices. The Developer
Representative will also timely provide the City Project Coordinator with copies of material
construction-related documents and notices,including monthly Design and Construction Schedule
updates and modifications,monthly Project Budget updates,a monthly report regarding the Project
percentage of completion based on the latest information Developer has from the Project Architect
as of the date of such report,permit applications, and requests for information("RFIs") made to
governmental agencies other than the City related to Project construction, material change order
proposals and notices of default or non-compliance to or from any party to such material
construction-related documents. Upon City's reasonable request (but no more frequently than
monthly),Developer will provide the City Project Coordinator with access to confidentially review
such documents, books, records, or similar materials in Developer's possession or control that
reasonably relate to the design, development or construction of the Project; provided, however,
that the City and Developer will meet and confer in good faith prior to any disclosure thereof to
protect the confidentiality of proprietary information that may otherwise become subject to public
records act disclosure.Receipt by the City Project Coordinator of any of the foregoing information
will not create or be the basis for any waiver or estoppel by or against the City of any express right
of the City under this Agreement or the Lease,unless and until the City issues a pertinent written
consent or waiver.
6.6 Project Site Access. Subject to the from time to time generally-applicable safety
rules promulgated by Developer or the Contractor, the City Project Coordinator will at all
reasonable times and upon reasonable prior notice (which notice may be given by e-mail or
telephone call,receipt confirmed by reply e-mail or telephone call) have reasonable access to the
Project Site,including the opportunity to observe and inspect any and all work being performed at
the Project Site and any and all Project activity. In exercising any right of access provided herein,
15
the City,City Project Coordinator,and any other agents,employees or other representatives of the
City shall, prior to any such access, check-in with the on-site manager and, at all times while
present at the Project or Development Site, carry proper identification.
6.7 No Liability to City. No recommendations, approvals, or other actions under this
Agreement by the Mayor,City Administrator,City Project Coordinator,or any other representative
of the City will in any manner cause the City to waive its sovereign immunity and bear any
responsibility or liability for the design, development or construction of the Project or for any
defects related thereto or any inadequacy or error therein or any failure to comply with applicable
law, ordinance, rule, or regulation. Approval of any Project design, development or construction
documents by the City pursuant to this Agreement will not constitute an opinion or representation
as to their adequacy for any purpose other than the City's own purposes.
VII.
SELECTION OF DESIGNERS,CONTRACTORS,AND SUBCONTRACTORS
7.1 Initial Designations.Developer will have the final decision-making authority with
respect to the selection of architects, engineers, and contractors and the terms and conditions of
any contracts for the design,development and construction of the Project(collectively and as may
be amended, supplemented, or replaced from time to time, the "Project Contracts"); provided,
however, that such selections with respect to the Project Contracts for the Public Infrastructure
shall be made on behalf of and in coordination with the City and subject to Section 7.2 below.
Developer or its Contractor shall obligate all counterparties to the Project Contracts to comply
with any applicable requirements of such counterparties under this Agreement.
7.2 Contract Requirements. All Project Contracts are or will be consistent with
industry standards, and shall comply with applicable laws, rules and regulations. All Project
Contracts will include provisions for insurance consistent with the requirements of the Lease.
Developer may collaterally assign the Project Contracts to any lender(s) providing all or any
portion of the Debt Financing. All Project Contracts for the Public Infrastructure("Public Works
Contracts") shall comply with applicable laws,rules and regulations, including but not limited to
City Ordinances. The Parties acknowledge and agree that, only Public Infrastructure
Improvements shall be subject to any prevailing wage or similar wage requirements,or any public
or competitive bidding requirements.Notwithstanding anything in this Agreement to the contrary,
the Parties acknowledge and agree that Tenant,on behalf of the City and in coordination therewith,
has designed, bid, and contracted directly for the construction of the Public Infrastructure in
compliance with applicable State law(including, without limitation,requirements of MDFB).
VIII.
DESIGN PHASE
8.1 Plan Approval Process. In addition to the City's regulatory review and approval
of the preliminary and final development plan for the Project pursuant to Ordinance No. 1966
approved and passed by the City's Board of Aldermen on December 19,2023,as the same maybe
modified, amended or supplemented from time to time in accordance with the applicable City
Code provisions (collectively, the "Plans"), the design documents, inclusive of plans and
16
specifications for all components of the Project, that are required to be submitted for City review
pursuant to such applicable City Code provisions (the "Project Plans") will be subject to the
review and approval of the City in its regulatory capacity pursuant to the City's normal planning
and zoning process in accordance with such applicable City Code provisions. As a result, the
Parties agree that it will be mutually beneficial to coordinate the submission and approval of the
Project Plans for the Project between Developer and the City's staff. The Parties will follow the
process in this section to coordinate the review and approvals of the Project Plans through
completion of the Final Design (as defined below). Developer, in regular consultation with the
City Project Coordinator, will direct and cause the Project Architect to prepare and develop all
Project Plans in accordance with and consistent in all material respects with the Plans(such Plans
and Project Plans collectively referred to herein as,the"Final Design").
8.2 Design Standards.The Parties agree that the Final Design of the Project,will meet
the following design standards(the"Design Standards"):
(a) comply with the design standards set forth in the City's Building Codes and
applicable to the Project;
(b) comply with all applicable laws, including,but not limited to,the requirements
of the Americans with Disabilities Act("ADA");
(c) review and approval by the City's staff,Planning and Zoning Commission and
the Board of Aldermen, as applicable, in accordance with the City's normal planning and
zoning process pursuant to applicable City Code requirements;
(d) provide pedestrian access around the circumference of the Amphitheater
and Ancillary Structures as depicted on the Plans, and, to the maximum extent reasonably
feasible and possible without disruption or interference to Developer's business operations,
Developer will use commercially reasonable efforts for the pedestrian walkways,
landscaping and hardscaping, and other amenities in the Project Site to remain reasonably
available for public use and enjoyment, festivals, and other uses consistent with the City's
purpose and Master Plan, subject in each case to the terms and conditions of the Lease;and
(e) provide vehicular access to the Parking Areas and the adjoining public street
network as depicted in the Plans.
The City has approved the Final Design Plans as of the Effective Date and
acknowledges and agrees that the Final Design Plans for which City Permits or Notices To
Proceed were issued meets the Design Standards as evidenced by such approval.
8.3 Initial Signage Plan.The initial sign plan for the Project will be developed by the
Developer and subject to terms of the Lease and review and approval by the City(the"Initial Sign
Plan"), in its legislatively reasonable judgment in accordance with the City's normal signage
review and approval procedures pursuant to applicable City Code requirements. Subject to the
terms of the Lease and except as otherwise permitted under the applicable signage regulations
17
contained in the City Code,no change from the Initial Sign Plan may be made without the approval
of the City.
VIV.
CONSTRUCTION PHASE
9.1 Conditions to Commencement of Construction. Unless expressly authorized by
the Lease or other separate agreement between the Parties, Developer may not commence any
demolition or construction activities on any portion of the Project Site until satisfaction or waiver,
in writing,by the City of all of the following conditions precedent:
(a) Construction fencing of the Project Site has been installed in accordance
with the requirements of this Agreement and the City Code;
(c) If required under the Debt Financing, Developer has provided a copy of a
payment and performance bond from the Contractor or a similar guaranty;
(d) All Project Contracts have been collaterally assigned if required by the Debt
Financing;
(d) Any pre-demolition utility relocations and terminations required prior to
such commencement and pursuant to the Plans shall have been completed in accordance
with this Agreement;
(e) Developer has obtained all permits required for demolition and for the initial
phase and/or such other phases of construction of the Project Developer seeks to
commence;
(f) Any then known Hazardous Materials remediation required pursuant to this
Agreement prior to construction has been completed in accordance with the applicable
remedial work plan; and
(g) Developer and its Contractor have executed the Project Contracts governing
the phase(s) of construction which Developer seeks to commence, with a guaranteed
maximum price that matches the amount therefor in the then current Project Budget,and a
fully-executed copy of such contract has been provided to the City and,with respect to any
Project Contract(s) for the Public Infrastructure, MDFB.
The City acknowledges and agrees that the foregoing conditions have been satisfied(or waived,if
applicable), and that construction activities on the Project Site have commenced prior to the
Effective date of this Second Amended and Restated Lease and in accordance with the terms and
conditions hereof.
9.2 General Construction Obligations.Developer shall at its expense undertake and
be responsible for the management of all aspects of the construction of the Amphitheater and
Ancillary Structures portion of the Project in accordance with this Agreement,the approved Final
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Design, the Project Plans, and all applicable laws. Developer will obtain or cause to be obtained
and maintain in effect, as necessary, all building permits, licenses and other governmental
approvals that may be required in connection with construction of the Project. Developer will use
its good faith and commercially reasonable efforts to resolve issues that may arise during
construction and the City shall work cooperatively with Developer in connection therewith.
9.3 Responsibility for Construction Budget and Reporting.In the event Developer's
Private Funds are insufficient to pay Developer's actual Project Costs(exclusive of the State Funds
and City Funds),for the design,development,construction,fixturing and equipping of the Project,
Developer is responsible for any such additional Project Costs required for Developer to complete
its Project in accordance with the Final Design, including those due to unforeseen conditions.
Developer will provide updates to the Project Budget in reasonable line-item detail, including use
and remaining balance of contingencies, to the City Project Coordinator on a monthly basis. The
City and Developer have the right to confirm the adequacy of Project funding with respect to any
material change to the Project Budget. Developer will notify the City within ten (10) days of
discovering any event or condition likely to lead to increases in the Project Budget in excess of
$500,000. Developer will inform the City Project Coordinator of the circumstances leading up to
and resulting from the potential budget increases and keep the City Project Coordinator apprised
of its work and of its plans for addressing such conditions or such increase(s).Neither such notice
nor any communications to or from the City relating to any such Project Budget increase(s) will,
except as may be provided in a written amendment to this Agreement, in any way modify or limit
City's available remedies for Developer's default in the event that such increase(s) result in an
Event of Default(defined herein)by Developer under this Agreement.
9.4 Substantial Completion and Creation of Punchlist. "Substantial Completion"
means and will occur when the Project Architect has issued a "Certificate of Substantial
Completion"in the form of AIA G-704 or its equivalent; the Parties have approved the punchlist
of items to be completed as a condition of issuing a final and unconditional certificate of
occupancy; and a temporary or conditional certificate of occupancy (which may be subject to
standard and customary commercially-reasonable conditions for such temporary or conditional
occupancy) has been issued for the Project. When Developer believes that all requirements for
Substantial Completion of the Project have occurred (save for only the issuance by the Project
Architect of a Certificate of Substantial Completion,approval of the punchlist,and issuance of the
temporary or conditional certificate of occupancy), Developer will notify the City and the Project
Architect. The Developer Representative,the City Project Coordinator,the Project Architect, and
such other designee(s)as the City and Developer may select will participate in a joint walk-through
of the Project. The Project Architect will be directed to complete within ten (10) business days
after such notification a thorough inspection of the Project to determine whether a Certificate of
Substantial Completion can be issued and to prepare the punchlist for approval by the Parties.
9.5 Final Completion. "Final Completion" means and will occur when the Project
Architect has delivered to the City Project Coordinator a certificate stating that all work pursuant
to the Final Design,including,but not limited to,all punchlist work,has been finally completed in
accordance with such Final Design; and a final and unconditional certificate of occupancy should
be issued for all of the Project. When Developer believes that all punchlist work has been
completed, Developer will notify the City and the Project Architect. The Developer
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Representative, the City Project Coordinator, the Project Architect, and such other designee(s) as
the City and Developer may select will participate in a joint walk-through of the Project, and if
applicable, altered or damaged adjacent areas. If any City property or property of third persons
shall have been altered or damaged by Developer or its consultants,contractors,subcontractors,or
agents during construction of the Project (exclusive of Project alterations in accordance with the
Final Design), Final Completion will not occur until such property has been repaired or restored,
or the issue otherwise resolved between the Parties, and(if applicable)third party owner(s)of the
property so altered or damaged. The terms of this Section will survive expiration or termination of
this Agreement for a period of one (1) year. The issuance of a final certificate of occupancy for
the Project shall constitute evidence of the satisfaction of Developer's agreements and any
obligations herein to construct the Project.
9.6 Delivery of Record Drawings. Developer will keep a complete set of the Final
Design and Project Plans at the Project Site throughout the duration of construction of the Project.
Within sixty(60)days after Final Completion of the Project,Developer will provide the City with
a complete set of drawings and electronic drawing files reflecting the final"as-built"condition of
the Project. The terms of this Section shall survive expiration or termination of this Agreement.
9.7 Mechanic's Liens. (a) Nothing in this Agreement shall be construed in any way
as constituting the permission, consent or request of City, express or implied, through act or
omission to act,by inference or otherwise,to any contractor,subcontractor,laborer or materialman
for the performance of any labor services or the furnishing of any materials for any alteration to
the Project Site(other than public Roadways and Utilities or other public improvements for which
the City or utility companies are responsible),or as giving Developer any right,power or authority
to contract for or permit the rendering of any such labor or services or the furnishing of any
materials that could give rise to the making of any mechanic's lien or other claim against the
Project Site in respect thereto or the City as the owner of the Project Site.
(b) In addition to any similar provisions set forth in the Lease, Developer agrees to keep
the Project Site (other than public Roadways and Utilities and other public improvements for
which the City or utility companies are responsible) free from any liens of mechanics,
materialmen, laborers, surveyors, engineers, architects, artisans, contractors, subcontractors,
suppliers, or liens arising out of the work performed, materials furnished or obligations incurred
by, through or under Developer or any other lien of any kind whatsoever(a"Lien") that shall be
created against or imposed upon the Project Site, exclusive of any Lien or other matters existing
as of the Effective Date or arising from an act or omission of the City through no fault of Tenant
and any loan agreement or mortgage, leasehold mortgage, deed of trust or other financing
documents (together with any modifications to or replacements thereof) securing the Debt
Financing, and shall protect, defend, indemnify and hold City harmless from and against any
claims,liabilities,judgments or costs(including,without limitation,reasonable attorneys' fees and
costs) arising out of same or in connection with any such Lien(other than those matters expressly
excluded above). In the event any such Liens shall be asserted or filed by any persons, firms, or
corporations performing labor or services or furnishing material or supplies in connection with the
Project, Developer will pay off in full, bond over, or cause the same to be discharged of record
within sixty (60) days of notification thereof. Developer reserves the right to contest the validity
or amount of any such Lien in good faith provided that, within sixty (60) days after the filing of
such Lien,Developer discharges said Lien of record or records a bond which is consistent with the
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requirements of State law and City Code. In the event Developer shall fail to so remove any such
Lien, City may take such action as City may reasonably determine to remove such Lien without
being responsible for investigating the validity thereof and all costs and expenses actually incurred
by City including, without limitation, amounts paid in good faith settlement of such Lien and
attorneys' fees and costs,together with interest thereon,will be paid by Developer as provided for
herein and by the Lease Agreement.
9.8 Compliance with Law. Developer shall comply, and require its Contractor to
comply, with all laws, ordinances, rules, regulations, and orders applicable to construction of the
Project of any public body having jurisdiction over the same, including as they relate to the safety
of persons or property, or over protection from damage, injury, or loss. Nothing provided in this
Agreement shall be construed as imposing any independent duty upon the City with regard to, or
as constituting any express or implied assumption of control or responsibility over safety of other
persons or their property at or on the Project Site, or over any other safety conditions relating to
employees or agents of Developer or its contractor or any of such contractor's subcontractors, or
the public invited to the Project Site by Developer.
X.
PARKING AREAS OPERATION.
10.1 Parking Areas. Parking Areas shall be included in the Project Plans and Final
Design,and shall be designed,constructed,maintained and operated,in accordance with the terms
and conditions of this Agreement and of the Lease.
10.2 Parking Coordination. The Lease Agreement includes any provisions regarding
parking coordination and integration, and the Construction Impact Mitigation Plan will include
mutually agreed upon provisions for temporary construction parking licenses or other parking
arrangements as may be required during the construction of the Project.
XI.
HAZARDOUS MATERIALS
11.1 Environmental Compliance. As used herein, the terms"Hazardous Materials"
and"Hazardous Substances"means and includes any, each and all substances or materials now
or hereafter regulated pursuant to any Environmental Laws (defined herein), including, but not
limited to,any such substance or material now or hereafter under any Environmental Laws defined
or as deemed to be a"regulated substance,"pesticide,"hazardous substance"or"hazardous waste"
or included in any similar or like classification or categorization thereunder. Except to the extent
disclosed in the Phase I Environmental Site Assessment for the Development Site delivered to
Developer prior to the Effective Date hereof,the City hereby represents and warrants to Developer
that as of the Effective Date of this Agreement, the City has no knowledge, nor has reasonable
cause to believe, that a release of Hazardous Materials has occurred at the Development Site or
that Hazardous Materials are otherwise present at the Development Site, except in quantities in
compliance with Environmental Laws. The City further represents and warrants, to the best of its
actual knowledge, without independent inquiry, that the Development Site is in compliance with
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any and all applicable requirements of the Resource Conservation Recovery Act, as amended by
the Hazardous and Solid Waste Amendments of 1984, and the Comprehensive Environmental
Response, Compensation and Liability Act, Hazardous Materials Transportation Act, Toxic
Substances Control Act, Federal Insecticide, Fungicide and Rodenticide Act and all other
applicable federal, state and local laws, statutes, regulations, rules, requirements and ordinances,
as any of the foregoing have been or may be from time to time amended, supplemented or
supplanted,and with all orders,decrees or judgments of governmental authorities or courts having
jurisdictions, relating to the preservation of the environment or the regulation, use, generation,
storage, control, removal or clean-up of Hazardous Materials (collectively, "Environmental
Laws"). To the extent any Hazardous Materials are present in, at, on or about the Development
Site through no fault of Developer or a third-party affiliated with Developer's operations,the City
shall be responsible for removing or otherwise remediating such Hazardous Materials to the extent
required by, and in full compliance with, all Environmental Laws at no cost to Developer. The
City shall defend all actions against the Developer and pay,protect, indemnify and save harmless
Developer, its directors, officers, employees and agents, from and against any and all Claims (as
defined herein, and including, but not limited to, consultants' fees, and response and cleanup
costs),of any nature relating to any action brought against Developer or such other party or parties
arising out of or in any way relating to any environmental condition, or violation, or claimed
violation, of Environmental Laws, existing or arising prior to Developer's commencement of
construction(or other invasive)activities on the Development Site("Pre-Term Condition").
11.2 Remedial Work. Without limitation of the applicable terms of the Lease
Agreement, the Parties will comply with the terms and conditions of the Lease Agreement
applicable to Hazardous Materials and Environmental Laws. If Developer or any of its agents or
contractors discovers any existing Hazardous Materials at any time during the course of inspection,
pre-construction, demolition, excavation, or actual construction or renovation of the Project,
Developer will notify the City Project Coordinator. Designated representatives of Developer and
City will meet and confer concerning the nature and extent of the potential contamination and the
appropriate remedial work, which may include but not be limited to further characterization,
assessment, testing, responsibility for notification of appropriate regulatory authorities, and any
remediation approach. The representatives of both City and Developer will work together in good
faith to expeditiously come to agreement regarding the remedial work in order to avoid
unnecessary construction delay while still complying with all applicable Environmental Laws.The
Parties may proceed with remedial work only when an agreement has been reached and
memorialized in writing and approved by both Parties as evidenced by their respective duly-
authorized signatures thereon("Remedial Work Plan"). As part of the Remedial Work Plan, the
Parties will use the services of an environmental consultant reasonably acceptable to both Parties.
The objective of the Remedial Work Plan shall be to achieve a cleanup that meets the standards
for unrestricted use under applicable Environmental Laws. The Remedial Work Plan will specify
which Party will notify all appropriate governmental authorities of the nature and extent of the
hazard presented, as required by and in compliance with Environmental Laws. The Parties shall
complete all work specified in the Remedial Work Plan and will conduct all construction in
compliance with the Remedial Work Plan except as otherwise provided for herein. At all times
during the Remedial Work, each Party shall be given prompt access to the environmental
professional(s) specified in the Remedial Work Plan, any contractors performing the Remedial
Work, and to the data,records,and reports generated by the environmental professional(s) for the
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Remedial Work.The Remedial Work Plan may be amended by the written agreement of Developer
and City,and each reference to the Remedial Work Plan includes any such amendments.
11.3 Environmental Indemnification. In addition to all other indemnifications
provided in this Agreement, the Lease Agreement and the Debt Financing, and notwithstanding
the expiration or earlier termination of this Agreement and to the fullest extent provided by law,
Developer shall defend,indemnify,and hold City free and harmless from any and all claims,causes
of action,regulatory demands, liabilities, fines,penalties, losses, and expenses, including without
limitation cleanup or other remedial costs (and including the fees of consultants, contractors and
attorneys, costs and all other reasonable litigation expenses when incurred and whether incurred
in defense of actual litigation or in reasonable anticipation of litigation),arising from the existence
of any Hazardous Substance placed by Developer or its contractor or any subcontractor thereof on
the Project Site, or from Developer's violation of its obligations under this Section, or from the
migration or release of any such Hazardous Substance into the surrounding environment that
results from Developer's construction,whether made,commenced or incurred(a)during the Term
of this Agreement, or(b) after the expiration or termination of this Agreement if arising out of an
event occurring during the Term of this Agreement; provided, that City will provide Developer
with prior written notice within ten (10) days of any event giving rise to Developer's
indemnification obligation hereunder; and further, provided, Developer shall not have any
obligation to defend, indemnify or hold the City free or harmless from or against any Claims,
arising from the gross negligence or willful acts or omissions of the City or any City Indemnified
Party(defined below),a breach of any representation or warranty from the City herein,or any Pre-
Term Condition.
XII.
INDEMNITIES AND REIMBURSEMENTS
12.1 General Indemnities. Without limitation of the applicable terms of the Lease,
during the Term of this Agreement, to the fullest extent permitted by law, Developer shall
indemnify,defend(using counsel reasonably acceptable to City),and hold City,its officers,agents,
employees, and elected officials (collectively, "City Indemnified Parties") harmless from and
against all claims,suits,losses,damages,fines,penalties,liabilities,and expenses(including City's
actual and reasonable personnel and overhead costs and attorneys' fees and other costs incurred in
connection with claims, regardless of whether such claims involve litigation) (collectively,
"Claims")of any kind whatsoever arising out of the design, development and construction of the
Project;provided,however,the foregoing obligation to indemnify,defend and hold harmless shall
not extend to Claims arising as a result of the City's breach of its representations, warranties, or
covenants set forth in this Agreement or the Lease,the gross negligence or willful acts or omissions
of the City or any City Indemnified Party,or any Pre-Term Condition.
12.2 Mechanic's Lien Indemnity.Developer shall indemnify,defend,and hold the City
harmless from and against any breach by Developer of its obligations in Section 9.7("Mechanic's
Liens").
12.3 Survival. The terms of this Article XII shall survive expiration or termination of
this Agreement.
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XIII.
DEFAULTS
13.1 Events of Default.The following events shall constitute an"Event of Default"of
the Agreement:
(a) With respect to any non-monetary obligations of either Party under this
Agreement, a Party shall have failed to perform or comply in any material respect with
such obligation and such failure shall have continued for thirty (30) days after written
notice thereof from the non-defaulting Party,or if the curing of such non-monetary default
is reasonably feasible by the defaulting Party, but not within such 30-day period, the
defaulting Party shall not have commenced the curing of such failure within such thirty
(30) day period, or having so commenced, shall thereafter have failed or neglected to
prosecute or complete the curing of such default with diligence and dispatch within ninety
(90)days after the original notice thereof; or
(b)Either a Party shall have made a general assignment for the benefit of creditors,
or shall have admitted in writing its inability to pay its debts as they become due or shall
have filed a petition in bankruptcy, or shall have been adjudicated bankrupt or insolvent,
or shall have filed a petition seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or future statute,
law or regulation, or shall have filed an answer admitting, or shall have failed reasonably
to contest, the material allegations of a petition filed against it in any such proceeding, or
shall have sought or consented to or acquiesced in the appointment of any trustee,receiver
or liquidator for such Party; or
(c) Either (i) within ninety (90) days after the commencement of any proceeding
against a Party or any trustee, receiver or liquidator of such Party seeking any
reorganization,arrangement,composition,readjustment,liquidation,dissolution or similar
relief under any present or future statute,law,rule or regulation, such proceeding shall not
have been dismissed, or (ii) if, within ninety (90) days after the appointment without the
consent or acquiescence of either a Party or any trustee,receiver or liquidator of such party
or of any material part of its properties, such appointment shall not have been vacated; or
(d) With respect to any monetary obligation of a Party due and owing to the other
Party under the Agreement,such Party shall have failed to pay such amount within ten(10)
business days after written notice thereof from the other Party along with reasonable
supporting documentation evidencing such monetary obligation and the amount thereof.
(e)A"Tenant Default"or"Landlord Default"(as defined in the Lease)by Tenant
or Landlord,respectively,under the Lease will constitute an Event of Default by such Party
under this Agreement for so long as such Event of Default exists under the Lease or such
other document.
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13.2 Remedies.Upon the occurrence and during the continuance of an Event of Default
by a Party,the other Party will be entitled to exercise any or all of the following remedies, as well
as any other remedies available at law or in equity, except as expressly limited hereunder:
(a) Damages. Damages resulting from such Event of Default; provided, however,
that neither Developer nor the City shall be responsible for payment to the other Party of
consequential, remote (including lost future tax revenues) special, or punitive damages in
any way arising from this Agreement or any claim of breach or failure under this
Agreement.
(b) Specific Performance and other Equitable Remedies. Specific performance
of this Agreement,as well as other injunctive relief, available to such non-defaulting Party
at law or in equity.
(c) Correction of Work, Self-Help. At the City's option, the City and its
contractors may enter upon the Project Site and cause corrective work or other correction
or mitigation of the Event of Default by Developer to be performed in accordance with the
standards set forth herein at Developer's expense.Developer shall cooperate in all respects
with any such corrective or mitigation work, and the City shall not bear any liability to
Developer, except for gross negligence or willful misconduct, on account of any such
corrective or mitigation work performed hereunder by the City.
(d) Termination. The remedy of termination of this Agreement for default under
this Agreement shall be subject to and exclusively governed by the applicable provisions
of the Lease Agreement, and this Agreement shall terminate automatically upon any
termination of the Lease Agreement prior to expiration of the Term of this Agreement.
(e)Survival.Remedies under this Agreement,other than termination, shall survive
for any Event of Default under this Agreement that shall have occurred prior to termination,
including but not limited to damages, enforcement of any security interests, and the
remedies set forth herein. All indemnities herein shall survive termination of this
Agreement with respect to any pertinent act or omission that shall have occurred prior to
termination.
(f) Default Interest. Upon the occurrence of any monetary Event of Default the
non-defaulting Party shall also have the right to interest at the Default Rate(defined below)
(subject to applicable usury laws then in effect in the State of Missouri)between the date
such payment is due and the date such payment is actually received by the non-defaulting
Party. As used herein, the term "Default Rate" shall mean an interest rate equal to the
prime rate in effect on the date that the applicable underlying payment was made or
required to be made (as reported in The Wall Street Journal or, if the Wall Street Journal
stops reporting the prime rate, then such other similar periodical agreed to by City and
Developer in their reasonable discretion)plus four percent(4%).
XIV.
INSURANCE
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Without limitation of applicable terms of the Lease Agreement and Debt Financing
Documents,this Agreement incorporates by reference the insurance provisions set forth in Section
8.0(ii)of the Lease Agreement during the Term of this Agreement until completion of the Tenant
Improvements.
XV.
OTHER PROVISIONS
15.1 Governing Law. This Agreement shall be governed by the laws of the State of
Missouri. Venue for any action under this Agreement including any bankruptcy proceeding, will
be in Platte County, Missouri. Should any part, term, portion, or provision of this Agreement, or
the application thereof to any person or circumstances be held to be illegal or in conflict with any
governmental restrictions, or otherwise be rendered unenforceable or ineffectual, the validity of
the remaining parts, terms, portions or provisions, or the application thereof to other persons or
circumstances, shall be deemed severable and the same shall remain enforceable and valid to the
fullest extent permitted by law.
15.2 City as Regulatory Authority. Nothing in this Agreement will be interpreted to
limit, bind or change the City's codes and regulatory authority. All City legislative approvals
required or otherwise contemplated herein and not already obtained as of the Effective Date hereof
remain subject to approval by the City's Board of Aldermen in its sole discretion, subject to
compliance with applicable laws, rules and regulations applicable to the exercise of such
discretion. Nothing in this Agreement will be interpreted to limit, bind or change the City Code
and regulatory authority as a fourth-class city organizing and existing under the laws of the State.
15.3 Dispute Resolution. The Parties hereto shall make their best efforts to resolve
disputes as expeditiously as possible through negotiations at the lowest possible decision-making
level,and in the event such negotiations are unsuccessful,to participate in good faith in a mediation
process,and attempt to resolve all claims and disputes between them in a dispute resolution effort.
In the event an issue cannot be resolved by negotiations between subordinate staff of Developer
and City, the matter shall be referred to the City Administrator and Developer Representative. If
those officials are unable to resolve the dispute within a period of seven(7) days after the matter
has been formally referred to them for resolution, they shall meet during the immediately
succeeding seven(7)days to select a mediator to assist in the resolution of such dispute;provided,
that in the event they cannot agree upon a mediator within such seven(7) day period, either Party
may apply to the American Arbitration Association for the appointment of a mediator according
to the process that is established by such entity for such action. Developer and City shall share
equally the cost charged for the mediation of any dispute. Notwithstanding the existence of any
dispute between the Parties hereto, the Parties shall continue to carry out, without unreasonable
delay,all of their respective responsibilities under this Agreement to the extent not affected by the
dispute;provided that this shall not be construed as limiting any right or remedy expressly set forth
in Section. Neither Party to this Agreement shall commence any litigation against the other with
respect to any claim or dispute under this Agreement without first participating, in good faith, in
mediation as contemplated in this Section or as provided in the Lease.
26
15.4 Assignment. Developer may not transfer its interest in this Agreement, except as
additional security for the Bonds and except for any other permitted transfer of the interest of
Developer under the Lease or Debt Financing, without the approval by the City in its discretion.
For avoidance of doubt,the foregoing restriction on transfers shall not apply to,and City approval
shall not be required for,assignments of the rights,duties and obligations of Developer hereunder,
in whole or in part: (i)to an entity which controls Developer,which Developer controls,or which
is under common control with Developer or one or more of its principals; or (ii) to collateral
assignments to lenders to secure debt financing related to the Project.
15.5 Amendments and Waivers. This Agreement may not be modified or amended
except by a written instrument signed by both Parties hereto. No action other than a written
document signed by the Mayor (or her/his appointed designee) as authorized by the Board of
Aldermen in the case of the City, or by a duly authorized representative of Developer in the case
of Developer, specifically so stating shall constitute a waiver by the respective Party of any
particular breach or default by the other Party,nor shall such a document waive any failure by such
other Party to fully comply with any other term or condition of this Agreement,irrespective of any
knowledge any Party providing such document, or officer, agent, representative or employee
thereof, may have of such breach, default, or noncompliance. A Party's failure to insist upon full
performance of any provision of this Agreement shall not be deemed to constitute consent to or
acceptance of such incomplete performance in the future.
15.6 Notices. Any notice required or permitted to be delivered under this Agreement
shall be in writing and shall be considered given on the earlier of(a) actual receipt, (b) when
delivered,if delivered by hand during regular business hours,(c)three(3)days after being sent by
United States Postal Service,registered or certified mail,postage prepaid,return receipt requested
and first class mail, postage prepaid, or (d) the next business day if sent by a reputable national
overnight express mail service that provides tracing and proof of receipt or refusal of items mailed.
Notices shall be sent to the representatives and addresses listed below,or such other representative
and address as a Party may from time to time designate.
To the City: City of Riverside,Missouri
Attn: City Administrator
2950 N.W. Vivion Road
Riverside,MO 64150
With a copy to: Spencer Fane, LLP
Attn: Joe Bednar
304 East High Street
Jefferson City,MO 65101
To Developer: Live Nation Entertainment, Inc.
c/o Live Nation
Attn: President
9348 Civic Center Drive
Beverly Hills, CA 90210
27
With copies to: Live Nation Entertainment,Inc.
do Live Nation
Attn: General Counsel
9348 Civil Center Drive
Beverly Hills, CA 90210
and to: Polsinelli PC
Attn: Korb Maxwell, Esq.
900 W. 48th Place, Suite 900
Kansas City, MO 64112
15.7 Non-Discrimination. Without limiting Developer's general obligation for
compliance with all applicable laws and regulations, for the Term of this Agreement,to the extent
applicable and binding against Developer and the Project, Developer shall comply with all equal
employment opportunity and nondiscrimination laws of the United States and the State of
Missouri,as they may be amended from time to time,and rules,regulations,orders and directives
of the associated administrative agencies and their officers.
15.8 Compliance with Laws, Permits, and Licenses. Developer, at no cost to City,
shall comply with all applicable laws, including, without limitation, the ADA with respect to the
Project, and any rules and regulations of any governmental entity as now or hereafter enacted or
promulgated. Whenever Developer is informed of any violation of any such law, ordinance,rule,
regulation, license, permit or authorization committed by it or any of its officers, employees,
contractors, agents, or invitees, or any of its contractor's subcontractors, Developer shall
immediately desist from and/or prevent or correct such violation. Without limiting the generality
of the foregoing, Developer, at no cost to City, shall secure and maintain in full force and effect
during the Term of this Agreement,all required licenses,permits,and similar legal authorizations
required in connection with the Project and shall comply with all requirements thereof, and shall
submit to the City reasonably acceptable evidence of Developer's satisfaction of all such
requirements whenever requested in writing by such official.
15.9 No Third-Party Beneficiaries. No third party shall be or deemed to be a third-
party beneficiary of this Agreement, such agreement being only between Developer and the City.
15.10 Counterparts.This Agreement may be executed in one or more counterparts,each
of which will be deemed an original,but all of which,when taken together,will constitute one and
the same instrument. Counterpart signature copies of this Agreement may be delivered by
facsimile or email/.pdf and shall be deemed effective upon delivery, provided that originally
executed copies shall be delivered by such party via overnight courier the following business day
if requested by the other Party.
15.11 Time is of the Essence.Time is of the essence of this Agreement and all covenants
and deadlines hereunder, including as set forth on any exhibit attached hereto.
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15.12 No Agency or Partnership. Nothing contained in this Agreement shall be
construed to create any agency relationship,partnership,joint venture or other similar arrangement
between Developer and City. Neither Party nor its agents have authority to or shall create any
obligation or responsibility on behalf of the other Party or bind the other Party in any manner.
15.13 Partial Invalidity. If any provision of this Agreement or its application to any
person or circumstance shall be determined to be invalid or unenforceable, the remainder of this
Agreement shall not be affected thereby.
15.14 Titles. The titles of the Sections and subsections of this Agreement are for
convenience only, and do not defme or limit the contents.
[SIGNATURES FOLLOW ON NEXT PAGE]
29
This Agreement is executed by the Parties as of the Effective Date.
City
City of ' erside,Missouri
By: .Z
Kathleen L. Rose, Mayor
[City Signature Page to Amended and Restated Development Agreement]
Developer
Live Nation Ente ai a t,Inc.
By:
Print Name: Michael Rowles
Title: General Counsel and Secretary
[Developer Signature Page to Amended and Restated Development Agreement]
EXHIBIT A: DEVELOPMENT SITE (LEGAL DESCRIPTION)
EXHIBIT B: PROJECT SITE PLAN
EXHIBIT C: TENANT IMPROVEMENTS BUDGET
EXHIBIT D: PUBLIC INFRASTRUCTURE BUDGET
EXHIBIT E: PROJECT SOURCES AND USES OF FUNDS
EXHIBIT F: TARGET DESIGN AND CONSTRUCTION SCHEDULE
EXHIBIT G: FORM CERTIFICATE OF PROJECT COSTS
EXHIBIT A
Description of Development Site&Project Site
All of Lots 2 and 3 and part of Tract A, REPLAT OF DOORLINK, 1ST PLAT, a subdivision in the City
of Riverside and all that part of the Northwest Quarter,the Northeast Quarter,the Southeast Quarter, and
the Southwest Quarter of Fractional Section 7,Township 50 North, Range 33 West of the Fifth Principal
Meridian,City of Riverside,County of Platte, State of Missouri,more particularly described by Randy G.
Zerr,Missouri PLS-2018016442,on March 15,2024 as follows:
Beginning at the Northwest corner of said Lot 3,thence South 89°24'06"East,along the North line of said
Lot 3, 1387.26 feet to the Northeast corner thereof; thence South 00°20'28" West, along the East line of
said Lot 3,29.85 feet to a point of intersection with the westerly extension of the North line of said Lot 2;
thence South 89°39'33" East, along said North line and the extension thereof, 1299.11 feet to a point of
intersection with the West line of said Tract A; thence North 00°20'16" East, along said West line, 80.00
feet to the Southwest corner of 40 WEST AT HORIZONS,a subdivision plat in said City of Riverside,as
recorded in the Platte County Recorder of Deeds' Office in Book 22, on Page 372 (Instrument No.
2022007889); thence, along the South line of said 40 WEST AT HORIZONS subdivision plat, the
following three(3)courses;thence South 89°39'33"East,867.62 feet;thence South 59°14'16"West, 182.07
feet to a point of curvature;thence southwesterly,along a non-tangent curve to the left having an arc length
of 484.02 feet,a radius of 544.00 feet,and a chord which bears South 33°47'13"West,468.21 feet;thence
South 08°17'52"West,239.27 feet;thence southwesterly,along a non-tangent curve to the right having an
arc length of 853.65 feet,a radius of 1356.00 feet,and a chord which bears South 26°19'58"West,839.62
feet;thence South 45°37'57" East, 81.00 feet;thence southwesterly,along a non-tangent curve to the right
having an arc length of 129.41 feet, a radius of 1437.00 feet, and a chord which bears South 46°56'51"
West, 129.36 feet; thence South 00°20'16" West, 86.90 feet to the Northerly right-of-way of Interstate
Highway I-635 as now established in March 2024; thence the following five (5) courses to follow said
Interstate Highway right-of-way;thence South 59°45'01"West,341.72 feet;thence South 49°45'53"West,
331.08 feet; thence South 43°11'53" West, 295.37 feet; thence South 66°15'51" East, 41.16 feet; thence
South 32°10'28"West, 186.77 feet to the East line of the Riverside-Quindaro Bend Levee District;thence
the following twenty-seven (27) coursed to follow said Levee District East line; thence North 66°45'03"
West, 513.39 feet; thence North 66°43'35" West, 594.19 feet; thence North 66°19'03" West, 339.24 feet;
thence North 58°43'00" West, 129.73 feet; thence North 52°20'27" West, 106.59 feet; thence North
46°39'03"West,97.58 feet;thence North 40°59'26"West, 96.05 feet;thence North 34°25'09" East, 74.70
feet; thence North 53°58'19" East, 96.12 feet; thence North 36°12'34" West, 50.00 feet; thence South
53°58'18"West,95.98 feet;thence South 73°37'17"West,74.34 feet;thence North 33°38'59"West,58.61
feet; thence North 26°16'50" West, 135.90 feet; thence North 17°31'50" West, 181.09 feet; thence North
08°46'51"West,135.90 feet;thence North 03°46'48"West,45.33 feet;thence North 00°38'28"East,376.57
feet; thence North 00°38'51" East, 252.39 feet; thence North 72°35'06" East, 79.77 feet; thence South
89°36'44" East, 92.98 feet; thence North 00°30'45" East, 15.98 feet; thence North 00°22'16" West, 4.52
feet; thence North 00°43'15" East, 29.82 feet; thence North 89°28'07" West, 93.17 feet; thence North
70°55'42"West,79.92 feet;thence North 00°39'00"East,279.78 feet to the Point of Beginning,containing
5,905,938 square feet,or 135.582 acres,more or less.
EXHIBIT B
Project Site Plan
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EXHIBIT C
Tenant Improvements Budget
General Line Item Category Project Cost Estimate
Constuction Costs
Pre-Construction Services $ 543,229
Phase 3 Vertical(Amphitheater) 5 58,887,064
Subtotal-Construction Costs $ 59,430,293
Soft Costs
Branding $ 150,000
Architecture& Engineering $ 1,897,900
Pre-Construction $ 123,504
Site&Civil $ 241,549
Project Management $ 61,377
Kitchen Equipment Design $ 79,600
Arch&Production Lighting Design $ 164,020
Acoustic Design $ 14,800
Signage/Wayfinding Design $ 122,754
Environmental Impact Assessment $ 30,105
Zoning/Permit Fees $ 225,254
Testing/Quality Control $ 92,066
Reimbursable Expenses $ 36,826
Subtotal-Soft Costs $ 3,239,756
FF&E 5 10,880,718
Contingency 5 4,296,159
Total Estimated Costs of the Tenant Improvements: $ 77,846,925
EXHIBIT D
Public Infrastructure Budget
General Line Item Category Project Cost Estimates
Constuction Costs
Pre-Construction Services $ 341,839
Construction Cost-Phase 1 Surcharging $ 2,826,089
Construction Cost-Phase 2 Infrastructure $ 27,000,000
Asphalt Car Parking $ 3,980,000
Prevailing Wage Requirement $ 3,250,000
Subtotal-Construction Costs $ 37,397,928
Soft Costs
Architecture& Engineering $ 1,194,299
Pre-Construction $ 77,718
Site&Civil $ 152,001
Project Management $ 38,623
Signage/Wayfinding Design $ 77,246
Environmental Impact Assessment $ 18,945
Zoning/Permit Fees $ 141,746
Testing/Quality Control $ 57,934
Reimbursable Expenses $ 23,174
Subtotal-Soft Costs $ 1,781,685
FF&E $ -
Contingency $ 2,703,461
Total Estimtaed Costs of the Public Infrastructure: $ 41,883,075
EXHIBIT E
Project Sources and Uses of Funds
PROJECT USES' PROJECT SOURCES'
General Line Item Category Estimated Cost Sources of Funds Dollar Amount
Public Infrastructure Budget State Funds' $ 20,000,000
Constuction Costs $ 37,397,928 City Funds' $ 5,000,000
Soft Costs $ 1,781,685 Developer's Private Funds' $ 94,730,000
Contingency $ 2,703,461
Subtotal-Pubic Infrastructure $ 41,883,075
Tenant Improvements Budget
Constuction Costs $ 59,430,293
Soft Costs $ 3,239,756
FF&E $ 10,880,718
Contingency $ 4,296,159
Total Estimated Project Costs of the Tenant Improvements: $ 77,846,925
TOTAL USES: $114,730,000 TOTAL SOURCES: $119,730,000
'Subject to the restrictions in footnotes 2&3 below,the descriptions of line item categories,dollar amounts and allocation of sources to uses above are estimates only,and
subject to change in Developer's discretion,including(without limitation)as actual pricing is obtained,as Project Costs are actually incurred,and State Funds and City Funds are
actually disbursed and/or reimbursed for such purposes.
'The State Funds shall be used exclusively to pay(or reimburse Developer,as the case may be)for the Project Costs incurred(or to be incurred)to construct the Public
Infrastructure(as defined in this Agreement),including,but not limited to parking,roadways,lighting,utilities and sidewalks,and to remediate and improve soil conditions to
support the Amphitheater.
'The City Funds shall be used exclusively to pay(or reimburse Developer,as the case may be)for those Project Costs which:
(a)to the extent proposed to be reimbursed with CID revenues generated from CID Sales Tax,fall within the powers of a Missouri community improvement district pursuant
to the Community Improvement District Act,RSMo 67.1401 to 67.1571,inclusive,or are otherwise payable or reimbursable thereunder(collectively,"CID Costs");and
(b)to the extent proposed to be reimbursed with revenues generated from TDD Sales Tax,constitute costs of a'Project'as described in the Missouri Transportation
Development District Act,RSMo Sections 238.200 to 238.275,inclusive,or are otherwise payable or reimbursable thereunder(collectively,"TOD Costs").
`The portion of Developer's Private Funds to be reimbursed with CID Sales Tax or TDD Sales Tax shall be used exclusively for Project costs,ongoing maintenance and
improvements or other costs that constitute CID Costs or TOD Costs,respectively.
Signature Page to Certification of Expenditures No.
(Riverside Amphitheater Project)
EXHIBIT F
Target Design and Construction Schedule
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EXHIBIT G
[FORM OF]
CERTIFICATE OF PROJECT COSTS
(Riverside Amphitheater Project)
Request No. Date: ,202_
Governing Body of the City of Riverside,Missouri
Pursuant to that certain Amended and Restated Development Agreement between the City
of Riverside, Missouri ("City") and Live Nation Entertainment, Inc. ("Developer"), dated
_,2024(the"Agreement"),Developer requests payment or reimbursement of Project
Costs (as defined in the Agreement) and hereby states as follows:
1. The date and number of this request are as set forth above.
2. All terms used and not otherwise defined in this request shall have the
meanings as provided in the Agreement.
3. The following information, as applicable to this request, is as set forth on
Attachment I hereto:
(a) The names of the person(s), firm(s), corporation(s) and/or other entity or
entities to whom payment has been made for which reimbursement is
requested, or is due and proposed to be paid,hereby;
(b) The amount so paid or to be paid hereby;
(c) A general description of the cost(s) so paid or to be paid hereby; and
(d) The source(s) of funds (e.g., State Funds and/or City Funds) from which
such reimbursement or payment is requested.
4. The costs identified on Attachment I (a) have been incurred and paid, or
are presently payable and proposed to be paid hereby, and (b) have not previously been
paid or reimbursed with State Funds or City Funds.
LIVE NATION ENTERTAINMENT,INC.,
a Delaware limited liability company
By:
Name:
Title:
Approved this day of ,20
CITY OF RIVERSIDE,MISSOURI
By:
Name:
Title: City Representative
ATTACHMENT I
Request No.
SCHEDULE OF PAYMENTS/REIMBURSEMENTS REQUESTED
Payee Name Amount($) General Description Source(s)of Funds
„o r
ru
POLSINELLB
900 W.48th Place,Suite 900, Kansas City.MO,64112 816 753 1000
M.Kevin Lee
December 4,2024 (816)360-4323
klee@polsinelli.com
VIA CERTIFIED MAIL,RETURN RECEIPT REQUESTED,
AND E-MAIL
City of Riverside,Missouri Spencer Fane,LLP RECENE0
Attn: Brian Koral,City Administrator Attn: Joe Bednar
2950 N.W. Vivion Road 304 East High Street DEC ”6 Z024
Riverside,MO 64150 Jefferson City,MO 65101
bkoralAriversidemo.gov jbednar@a,spencerfane.com
Re: Notice of Potential Hazardous Material and Request to Prepare Remedial
Work Plan
Dear Mr. Koral:
In connection with the Amended and Restated Development Agreement dated October 3,2024,by
and between the City of Riverside, Missouri (the "City") and Live Nation Entertainment, Inc. (the
"Developer") (the "Amended Development Agreement")', we are writing on behalf of the Developer to
notify the City Project Coordinator of the recent discovery of a potentially Hazardous Material (likely
petroleum) at the Project Site. We understand that the potential Hazardous Material was discovered by
Arco Construction Company ("Arco") in connection with site grading activities, and appears to be
associated with an existing potential former oil and/or gas well at the Project Site. Please see the attached
photographs of the potential Hazardous Material for reference.
The Developer would like to meet and confer with the City to engage an environmental consultant
and/or other contractors and consultants to further assess the source and scope of the potential Hazardous
Material and prepare a Remedial Work Plan,as described in the Amended Development Agreement. The
Developer will direct Arco to no longer work in this area of the Project Site until a Remedial Work Plan is
agreed to between the Developer and the City, though the Developer would like to avoid delay with the
Project and requests that the parties come to agreement quickly on a Remedial Work Plan.
Please provide some times that work for a call between the City and the Developer to discuss this
situation and next steps.
Sincerely,
end. M.Kevin Lee
'All capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in the Amended
Development Agreement.
il
'POLSINELLI
December 4, 2024
Page 2
EXHIBIT A
Photographs
[ATTACHED]
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Photo 1: View of stormwater culvert in north-central portion of the site adjacent to location of observed
release; view looking east.
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Photo 2: View of petroleum-stained soil in area of release in the north-central portion of the site; view
looking north.
Site Photographs
MIMI 167-acre Undeveloped Property
Southwest of 39th Street and Horizons Parkway Intersection
Riverside, Missouri
December 2024
Page 1 of 2
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Photo 3: View of pooling petroleum product in area of release in the north-central portion of the site.
Site Photographs
167-acre Undeveloped Property
Southwest of 39th Street and Horizons Parkway Intersection
Riverside, Missouri
December 2024
Page 2 of 2