COLLEGE BOULEVARD & US 69 HIGHWAY DEVELOPMENT PROJECT

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1 City Manager's Office City Hall 8500 Santa Fe Drive Overland Park, Kansas November 14, 2013 Mayor Carl Gerlach Council President David White Members of the City Council COLLEGE BOULEVARD & US 69 HIGHWAY DEVELOPMENT PROJECT Mayor and Members of the City Council: During the past month the staff members in the City Manager s Office and Planning and Development Services Department (the Planning Department ) have been working with representatives of Block Real Estate Service, LLC (the Developer ) and the Developer s legal counsel, Polsinelli, to develop a plan for a public - private partnership between the City and the Developer to accomplish the infill development of a tract of property located on the southwest corner of College Boulevard and US 69 Highway, commonly referred to as the Galleria Site (the Development Site ), depicted in Exhibit A. The Development Site was originally zoned in 1978 for office, apartments and commercial development. As contemplated by the Developer, the new project involves development of apartments, senior living, mixed use commercial/residential and office (the Proposed Project ). The Developer is currently working with the Planning Department on a rezoning and a preliminary development plan. Exhibit B depicts the initial plan presented by the Developer. While this plan is currently under review and is therefore subject to change, it does provide a general depiction of the Proposed Project. The plan is scheduled for consideration by the Planning Commission on November 25, 2013 at a special meeting called for the purpose of considering the Proposed Project. As contemplated, the Proposed Project would represent $350 Million in total investment. The Developer has requested that the Governing Body consider creation of Transportation Development Districts ( TDDs ) to fund certain transportation related expenditures for the Proposed Project as well as a financial partnership which involves the creation of a special benefit district ( Benefit District ) to finance the design and construction of Switzer Road. The purpose of the Committee of the Whole discussion on November 18, 2013 is to provide information about the Proposed Project and the requested assistance and to seek Governing Body direction and/or authorization for staff to proceed with working out details related to the proposed public - private partnership for this development. Following is a more detailed outline of key elements of the financial partnership.

2 November 14, 2013 Page 2 PROPOSED TRANSPORTATION DEVELOPMENT DISTRICTS Attached and as described below are two draft TDD petitions and supporting information related to each of the proposed TDDs. The first TDD petition ( TDD No. 1 Petition ) requests creation of a TDD to finance transportation related improvements for construction of 113 th Street and Indian Creek Parkway (the TDD Road Improvements ). The second TDD petition ( TDD No. 2 Petition ) requests creation of a TDD to finance a portion of the cost of constructing a parking structure (the TDD Parking Structure ) to serve the mixed use residential development. While the form of each petition has been discussed with Polsinelli on behalf of the Developer, as of November 14, 2013 neither has been formally submitted by the current property owner(s), B.F. Saul Real Estate Investment Trust and Dearborn, L.L.C., as is required for the Governing Body to consider the Petitions. However, we expect the petitions to be filed prior to the November 18, 2013 Committee of the Whole and City Council Meetings. Proposed TDD No. 1 TDD Road Improvements Attached in Exhibit C page 2 of 15 is a draft of the TDD No. 1 Petition. A detailed description of the TDD Road Improvements can be found on Exhibit C - page 6 of 15, entitled General Nature of Proposed TDD Project. The total project cost of the TDD Road Improvements has been estimated by the Developer to be approximately $3,140,000; a detailed copy of this estimate is attached on Exhibit C - page 14 of 15. Although this estimate is subject to a more detailed review to assure compliance with eligible expenses as outlined in the statute, at this point it is sufficient to establish the maximum project cost for the TDD Road Improvements. The TDD No. 1 Petition also requests the issuance of TDD special assessment bonds (the Bonds ) to finance the cost of the TDD Road Improvements. Pursuant to K.S.A ,140 et seq. (the TDD Act ), no public hearing is required for a TDD financed only with special assessments upon receipt of a Petition signed by the owners of all the land area within the proposed TDD. It can be created by ordinance after a governing body makes findings as to the nature, advisability and maximum cost of the project, the boundaries of the district and the amount and method of assessment. The Developer has indicated their intention to work with the City to privately place the Bonds. Repayment of the Bonds would be made over a twenty year period from special assessments levied against property within TDD No. 1. A preliminary estimate of the special assessments, as calculated by the Developer and Polsinelli, is on Exhibit C page 15 of 15. In accordance with the TDD Act, the Bonds cannot be secured by the full faith and credit of the City. The purchaser of the Bonds would bear the sole risk of the financing.

3 November 14, 2013 Page 3 Proposed TDD No. 2 TDD Parking Structure Attached in Exhibit D page 2 of 15 is a draft of the TDD No. 2 Petition. The total project cost of the TDD Parking Structure is $7,160,000; a detailed copy of this estimate is attached in Exhibit D page 14 of 15. The TDD No. 2 Petition requests pay-as-you-go financing to assist with payment of costs related to the TDD Parking Structure. The TDD No. 2 Petition requests the imposition of a 1-cent TDD sales tax for a period of 22 years. The Developer has submitted projections estimating a 22-year sales tax collection of $3.8 Million, with a net present value calculation of $2.2 Million. These projections are included in Exhibit D page 15 of 15. For a TDD financed in whole or in part by a TDD sales tax, the TDD Act requires a governing body to give notice of and conduct a public hearing on the advisability of creating the district, its intention to levy such transportation development district sales tax and financing of the project. A TDD may be created by ordinance only after the public hearing has been conducted. The Developer has requested that the public hearing on proposed TDD No. 2 be scheduled for Monday, December 16, 2013 City Council meeting. Attached in Exhibit E is a proposed Resolution 4033 (the Resolution ) providing the notice of a public hearing for this proposed TDD No. 2. Adoption of the Resolution does not approve the proposed TDD No. 2. PROPOSED BENEFIT DISTRICT The Proposed Project also includes relocation of Switzer Road ( Switzer ) which currently runs parallel to US 69 Highway. Switzer would be realigned (subject to the rezoning process currently underway) and improved in accordance with acceptable City design parameters. In addition Indian Creek Parkway (as contemplated in the TDD Road Improvements) would connect to Switzer at the southern edge of the Development Site, and the improvement of both would provide additional connectivity to the road network in that area of the City. In order to finance this improvement, the Developer and the City staff have discussed a financial partnership whereby the City would finance the improvement of Switzer through the creation of a Benefit District. The Benefit District would be formed in accordance with K.S.A. 12-6a01 et seq., as amended. Formation of the Benefit District would also be done pursuant to the City s requirements and, as proposed, the City would pay up to 95% of the cost of the project. The City s portion of the cost would be financed with special assessment bonds and would be general debt obligations of the City. City staff is currently working with the Developer to review cost estimates for the improvement of Switzer. Only costs attributable to the construction Switzer are anticipated to be included in the Benefit District financing. In general, the City s cost to improve a onemile thoroughfare is approximately $6 Million, subject to specific characteristics of a project.

4 November 14, 2013 Page 4 STAFF RECOMMENDATION The Developer has requested a compressed timeline for consideration of the requested TDDs and Benefit District financing and that Governing Body consideration of the planning as well as public-private partnership matters be scheduled for the last City Council meeting of the year, December 16, This requested timeframe will require a concerted effort on the part of the City and its legal counsel to negotiate with the Developer a development agreement that can be presented to the City Council for action on December 16, Based on the current schedule for consideration, action on the rezoning would also be presented to the City Council for consideration on that same date. The staff seeks direction as to the Governing Body s interest in proceeding with the Proposed Project and the requested public-private partnership mechanisms to assist with its financing. If the Governing Body wishes to pursue this matter further, the following actions are recommended: 1) Direct the staff to work with the Developer to negotiate a development agreement related to the proposed public - private partnership for creation of TDDs and a Benefit District as outlined above; and 2) Recommend that the City Council approve Resolution No approving a funding agreement to require payment of City expenses incurred in connection with the consideration and/or creation of the TDDs and the Benefit District. Exhibit F includes a copy of Resolution No (Exhibit F page 2 of 12) and the funding agreement (Exhibit F - page 4 of 12); and 3) Recommend to the City Council approval of Resolution No scheduling a public hearing on the proposed TDD No. 2 for Monday, December 16, Respectfully submitted, KRISTY STALLINGS DEPUTY CITY MANAGER

5 EXHIBIT A Development Site Exhibit A page 1 of 1

6 EXHIBIT B Developer Submitted Plan NOTE: The attached plan is under review and currently in the Planning process and is therefore subject to change. It is presented for information only to provide a general depiction of the Proposed Project. Exhibit B page 1 of 1

7 EXHIBIT C TDD NO. 1 PETITION TDD Road Improvements and Supporting Information Exhibit C page 1 of 15

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19 EXHIBIT C TDD NO. 1 PETITION TDD Road Improvements and Supporting Information TDD Road Improvements Cost Estimate Exhibit C page 13 of 15

20 College / Switzer Development Rough Order of Magnitude of Total Cost 5 Nov 13 Item Unit Quantity Unit Cost Total Notes TDD Street Network Infrastructure Related Costs 113th Roadway LF 1,150 $ 400 $ 460,000 Indian Creek Roadway LF 750 $ 400 $ 300,000 Roadway cost includes standard ingtergrated storm system, lighting, striping, and signage 113th / Niemen Improvements LS 1 $ 15,000 $ 15,000 Striping / Signage 113th & Adjacent Corridor Execvation CY 3,580 $ 5.00 $ 17, th & Adjacent Corridor Fill CY 7,200 $ 2.00 $ 14,400 Indian Creek Execvation CY 750 $ 5.00 $ 3,750 Earthwork is without a compaction factor. Surface line is based at subgrade datum and does not include pavement thicknesses Indian Creek Fill CY 1,150 $ 2.00 $ 2,300 Fill Import Estimate CY 4,886 $ $ 73,290 Assume 80% compaction factor for onsite quantity 113th / Niemen Culvert Extension LF 200 $ $ 40,000 Estimated at a 42 to 48 inch RCP Include FES and Junction Box 113th Streamway Corridor Reconstruction LF 975 $ 300 $ 292,500 Erosion Control, Grade Control Structures, Gabion Baskets, and native grass plantings Roadway Corridor Landscaping LF 1,900 $ 25 $ 47,500 Sod within ROW & Trees Neiman Roadway Sidewalk SY 740 $ 35 $ 25,900 5 ft wide public sidewalk 113th & Indian Creek Roadway Sidewalk SY 1,450 $ 35 $ 50,750 5 ft wide public sidewalk Sanitary Sanitary Main Installation LF 230 $ 75 $ 17,250 Rock quanity unknown but likely to be incountered Sanitary MH's EA 2 $ 6,000 $ 12,000 Average Vertical Height = 12 ft Water Main 6" Along 113th & FH assemblies Water Main Extension LF 1,200 $ 55 $ 66,000 Hydrant Assemblies EA 2 $ 3,500 $ 7,000 Power Relocation LF 1,200 $ 75 $ 90,000 UG relocation along new 113th ROW corridor Utility Sleeve Locations EA 1 $ 2,000 $ 2,000 Include locations of sleeves for other data and misc utilities Office Wall Systems FF 5,300 $ 45 $ 238,500 Wall system along College and Hwy 69 Corner Contingency $ 178,000 Mitigation Costs $ 300,000 Design Costs Estimate $ 142,000 Construction Inspection $ 69,000 Roadway & JCWW Sewer Construction Testing $ 21,000 Roadway & JCWW Sewer Construction Survey Staking $ 27,000 Roadway & JCWW Sewer & Utilities Permits / Bond Estimate $ 36,000 Construction Management Fee $ 88,800 City Inspection and Permitting Fees $ 88,800 City Legal Fees $ 75,000 Bond Issuance / Capital Carry Cost $ 816,313 Other Infrastructure Cost Total $ 3,620,000 Exhibit C - page 14 of 15

21 EXHIBIT C TDD NO. 1 PETITION TDD Road Improvements and Supporting Information Developer s Preliminary Estimate of TDD Special Assessments PUBLIC OR PRIVATE IMPROVEMENTS - TDD ASSESSMENTS Principal $3,014,953 Rate 5.00% Term 20 Yearly Pmt (241,928) Pmt/psf* (0.08) *Comprised of yearly payment divided by 74 acres Principle Interest Payment Balance 1 91, , , ,923, , , , ,828, , , , ,727, , , , ,621, , , , ,511, , , , ,394, , , , ,272, , , , ,144, , , , ,009, , , , ,868, , , , ,719, , , , ,563, , , , ,399, , , , ,227, , , , ,047, , , , , , , , , , , , , , , , , , , , Exhibit C page 15 of 15

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23 EXHIBIT D TDD NO. 2 PETITION TDD Parking Structure and Supporting Information Exhibit D page 1 of 15

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35 EXHIBIT D TDD NO. 2 PETITION TDD Parking Structure and Supporting Information TDD Parking Structure Cost Estimate Exhibit D page 13 of 15

36 College / Switzer Development Rough Order of Magnitude of Total Cost 12 Nov 13 Item Unit Quantity Unit Cost Total Notes TDD Parking Garage Related Costs Garage Structure Stalls 358 $ 16,500 $ 5,900,000 Costs include structure, access control, life safety, and traffic control Design and Engineering Fees $ 350,000 Inspection and Permitting Fees $ 295,000 Construction Management Fee $ 110,000 Contingency $ 236,000 Construction Period Interest $ 270,000 Assumes 17 month construction period at 6% rate Other Infrastructure Cost Total $ 7,160,000 Exhibit D - page 14 of 15

37 EXHIBIT D TDD NO. 2 PETITION TDD Parking Structure and Supporting Information Developer s TDD Sales Tax Estimate SALES ASSUMPTIONS TDD REVENUE AT 1 CENT Large Retail Year 1 Cent Square footage Sales PSF Sales per year 1 132,500 17,000 $250 $4,250, ,813 Pad sites 3 139,208 Total pads Sales per pad Sales per year 4 142,688 3 $3,000,000 $9,000, , ,912 TOTAL SALES: $13,250, ,659 Annual Growth 2.5% 8 157, , , , , , , , , , , , , , ,545 TOTAL 3,824,328 NPV 5% $2,180,850 Exhibit D page 15 of 15

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39 EXHIBIT E RESOLUTION NO PROVIDING FOR NOTICE OF A PUBLIC HEARING CONCERNING THE CREATION OF A TRANSPORTATION DEVELOPMENT DISTRICT AND DECLARING THE INTENT OF THE CITY TO LEVY A TRANSPORTATION DEVELOPMENT DISTRICT SALES TAX. Exhibit E - page 1 of 8

40 RESOLUTION NO A RESOLUTION OF THE CITY OF OVERLAND PARK, KANSAS, PROVIDING FOR NOTICE OF A PUBLIC HEARING CONCERNING THE CREATION OF A TRANSPORTATION DEVELOPMENT DISTRICT WITHIN THE CITY AND DECLARING THE INTENT OF THE CITY TO LEVY A TRANSPORTATION DEVELOPMENT DISTRICT SALES TAX PURSUANT TO K.S.A SUPP ,140 ET SEQ. WHEREAS, pursuant to K.S.A Supp ,140 et seq. (the Act ), the City of Overland Park, Kansas (the City ), is authorized to acquire interests in property and to construct any project or undertaking relating thereto, including improving, constructing, reconstructing, maintaining, restoring, replacing, renewing, repairing, installing, furnishing, equipping or extending any bridge, street, road, highway access road, interchange, intersection, signing, signalization, parking lot, bus stop, station, garage, terminal, hangar, shelter, rest area, dock, wharf, lake or river port, airport, railroad, light rail or other mass transit facility or any other transportation related project or infrastructure, including, but not limited to, utility relocation, sanitary and storm sewers and lift stations, drainage conduits, channels and levees, streetlight fixtures, connection and facilities, underground gas, water, heating and electrical services and connections located within or without the public-right-of-way, sidewalks and pedestrian underpasses or overpasses, and water main and extensions (collectively, transportation projects ); and WHEREAS, upon proper petition, the Act further authorizes the City, in order to pay the costs of such transportation projects, to impose a transportation development district sales tax on the selling of tangible personal property at retail or rendering or furnishing services within a transportation development district in any increment of.10% or.25% not to exceed 1% and to reimburse the costs of the transportation development district projects pursuant to pay-as-you-go financing; and WHEREAS, a Petition has been filed with the City Clerk of the City on, 2013 (the Petition ), proposing the creation of a transportation development district at generally the southwest corner of College Boulevard and US Highway 69 in the City (the TDD ), the making of transportation projects relating thereto and the imposition of a transportation development district sales tax in order to pay the costs of such transportation projects; and WHEREAS, the Petition was signed by the owners of record, whether resident or not, of all of the land area within the proposed TDD; and WHEREAS, the Act provides that prior to creating any transportation development district in which the transportation projects are financed in whole or in part by a transportation development district sales tax, the City shall, by resolution, direct and order a public hearing on the advisability of creating such transportation development district, construction of such transportation projects therein and the intent of the City to levy a transportation development district sales tax within such district and shall give notice of said public hearing in accordance with the Act. Exhibit E - page 2 of 8

41 NOW, THEREFORE, BE IT RESOLVED BY THE GOVERNING BODY OF THE CITY OF OVERLAND PARK, KANSAS, AS FOLLOWS: 1. Time and Place of the Hearing. Notice is hereby given that a public hearing to consider the advisability of the creation by the City of the TDD and the levying by the City of a transportation development district sales tax within the TDD in the amount of 1% shall be held at the Overland Park City Hall, 8500 Santa Fe Drive, Overland Park, Kansas, on Monday, December 16, 2013, beginning at 7:30 p.m., or as soon thereafter as it may be heard. 2. General Nature of the Transportation Project. The general nature of the proposed transportation project within the proposed TDD is attached hereto and incorporated herein as Exhibit A. 3. Maximum Cost of the Transportation Project. The maximum cost of the transportation projects within the proposed TDD is $7,160, Proposed Method of Financing; Proposed Amount of Transportation District Sales Tax; Proposed Amount and Method of Assessment. The transportation projects within the proposed TDD will be financed on a pay-as-you-go basis from revenues received from the imposition of a transportation development district sales tax in the amount of 1% on the selling of tangible personal property at retail or rendering or furnishing of taxable services pursuant to the provisions of the Kansas retailer s sales tax act within the proposed TDD. No special assessments will be used to fund the transportation projects within the TDD. 5. Map and Boundary Description. A legal description of the proposed TDD is set forth in Exhibit B attached hereto and incorporated herein by reference. A map generally outlining the boundaries of the proposed TDD is attached hereto as Exhibit C and incorporated herein by reference. 6. The City Clerk shall give notice of the public hearing in accordance with the provisions of the Act. ADOPTED by the Governing Body this 16 th day of December, APPROVED and SIGNED by the Mayor this 16 th day of December, CITY OF OVERLAND PARK, KANSAS By: Carl R. Gerlach Mayor Exhibit E - page 3 of 8

42 (SEAL) ATTEST: By: Marian Cook City Clerk APPROVED AS TO FORM: By: Tammy S. Owens Deputy City Attorney APPROVED AS TO FORM: By: Janet S. Garms, Kutak Rock LLP Bond Counsel Exhibit E - page 4 of 8

43 EXHIBIT A Exhibit E - page 5 of 8

44 EXHIBIT B Exhibit E - page 6 of 8

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46 EXHIBIT C MAP Exhibit E - page 8 of 8

47 EXHIBIT F RESOLUTION NO APPROVING THE EXECUTION OF A FUNDING AGREEMENT WITH BK PROPERTIES, LLC, RELATING TO A PROPOSED TRANSPORTATION DEVELOPMENT DISTRICT AND A PROPOSED IMPROVEMENT DISTRICT. Exhibit F - page 1 of 12

48 RESOLUTION NO A RESOLUTION OF THE CITY OF OVERLAND PARK, KANSAS, APPROVING THE EXECUTION OF A FUNDING AGREEMENT WITH BK PROPERTIES, LLC, RELATING TO A PROPOSED TRANSPORTATION DEVELOPMENT DISTRICT AND A PROPOSED IMPROVEMENT DISTRICT. WHEREAS, the City of Overland Park, Kansas (the City ) is a municipal corporation and political subdivision duly organized and existing under the laws of the State of Kansas, and is authorized by K.S.A ,140 et seq., as amended (the TDD Act ), to provide financing for certain qualified projects upon compliance with the procedures set forth in the TDD Act; and WHEREAS, the City is further authorized by K.S.A. 12-6a01 et seq., as amended (the ID Act ) to provide financing for certain qualified improvements with the procedures set forth in the ID Act; and WHEREAS, the TDD Act and the ID Act are hereinafter collectively referred to as the Acts ; and WHEREAS, BK Properties, LLC, a Kansas limited liability company (the Applicant ), has requested that the City review and analyze Applicant s request (the Request ) to consider the establishment of a transportation development district and an improvement district in the general vicinity of southwest corner of College Boulevard and U.S. Highway 69; and WHEREAS, in order to consider the Request, the City must retain administrative and professional staff, outside counsel and consultants, and incur expenses; and WHEREAS, the City requires that the Applicant agree to pay and reimburse the City for payment of the above-described costs, as a condition to the City s consideration of the Request; and WHEREAS, the parties desire to enter into a Funding Agreement to document their understanding regarding payment of said costs. NOW, THEREFORE, BE IT RESOLVED BY THE GOVERNING BODY OF THE CITY OF OVERLAND PARK, KANSAS, AS FOLLOWS: 1. The City is hereby authorized to enter into a Funding Agreement between the Applicant and the City, in substantially the form presented to and reviewed by the Governing Body of the City (copies of which document shall be filed in the records of the City), with such changes therein as shall be approved by the officials of the City executing such documents, such officials signatures thereon being conclusive evidence of their approval thereof. Under the terms of this Funding Agreement the City will review and analyze Request, subject to the limitations set forth therein, and the Applicant will pay the City for its fees and expenses as described therein. -1- Exhibit F - page 2 of 12

49 2. The Mayor, City Clerk and other appropriate officers of the City are hereby authorized and directed to execute, attest, acknowledge and deliver, for and on behalf of and as the act and deed of the City, the Funding Agreement and such other documents, certificates and instruments as may be necessary or desirable to carry out and comply with the intent of this Resolution. 3. The City shall, and the officials and agents of the City, Kutak Rock LLP, Bond Counsel, and Stinson Morrison Hecker LLP, Special Council, are hereby authorized and directed to take such action, expend such funds and execute such other documents, certificates and instruments as may be necessary or desirable to carry out and comply with the intent of this Resolution and to carry out, comply with and perform the duties of the City with respect to the Funding Agreement. ADOPTED by the City Council this 18th day of November, APPROVED AND SIGNED by the Mayor the 18th day of November, CITY OF OVERLAND PARK, KANSAS (SEAL) By: Carl Gerlach Mayor ATTEST: By: Marian Cook City Clerk APPROVED AS TO FORM: By: Tammy M. Owens Deputy City Attorney -2- Exhibit F - page 3 of 12

50 FUNDING AGREEMENT THIS FUNDING AGREEMENT (the Agreement ) is entered into this, 2013, by and between BK Properties, LLC (the Applicant ), and the City of Overland Park, Kansas (the City ). RECITALS A. The City is a municipal corporation and political subdivision duly organized and existing under the laws of the State of Kansas and authorized by K.S.A ,140 et seq., as amended (the TDD Act ), to provide financing for certain qualified projects upon compliance with the procedures set forth in the TDD Act. B. The City is further authorized by K.S.A. 12-6a01 et seq., as amended (the ID Act ) to provide financing for certain Qualified Improvements with the procedures set forth in the ID Act. C. The TDD Act and the ID Act are hereinafter collectively referred to as the Acts. D. The Applicant is a Kansas limited liability company and is the owner or prospective owner of certain real property generally located on the southwest corner of College Boulevard and U.S. Highway 69, as more particularly set forth on Exhibit A attached hereto (the Site ). E. The Applicant has requested that the City review and analyze Applicants request to consider the establishment of a transportation development district ( TDD ) and an improvement district ( ID ) at or adjacent to the Site (the Request ). In order to do so, the City must retain administrative and professional staff, outside counsel and consultants, and incur expenses, and the City requires that the Applicant pay and reimburse the City for the payment of such reasonably incurred costs. F. In order for the City to fully consider and evaluate the Request, the City requires that the Applicant deposit funds with the City to be used by the City to pay for actual out-of-pocket expenses necessary to perform a full evaluation of the Request and engage consultants as needed for such evaluation and to provide services described in Section 2 of this Agreement. If the Request is approved, the City will continue to incur similar costs and expenses to represent the City s interests in documenting and implementing the various aspects of the Request, and other related tasks, documents and issues. G. By execution of this Agreement, the Applicant is asking the City to retain outside counsel and consultants in order to evaluate, consider and, if approved, to implement the Request. The Applicant agrees, represents and warrants that any information provided to the City in its evaluation of the Request shall be accurate and complete to the best knowledge of the manager or member of the Applicant providing such information. Exhibit F - page 4 of 12

51 NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements hereinafter expressed, the parties mutually agree as follows: 1. Recitals The recitals set forth above are hereby incorporated as though more fully set forth herein. 2. Services to be Performed by the City. The City shall retain administrative and professional staff, outside counsel and consultants, and incur expenses which are reasonably necessary to: (a) Consider the Request, including without limitation, the establishment of the TDD, the imposition of a TDD sales tax and/or TDD assessments, the establishment of the ID, and the special assessments related thereto, including giving all notices, making all publications, preparing and/or reviewing any studies and analyses necessary or appropriate in connection with the consideration of the Request, holding any hearings required by the Acts and prepare the required resolutions and ordinances necessary for the Governing Body of the City to consider the establishment of the TDD, imposition of the TDD sales tax, TDD special assessments; the establishment of the ID and the special assessments related thereto; and (b) Prepare and negotiate a draft development agreement; and (c) If approved by the Governing Body (in its sole discretion), to implement the various aspects of the Request. The Applicant acknowledges that, in this case, at its request the City has retained outside counsel and incurred expenses prior to the execution of this Funding Agreement. Applicant agrees to pay the City for all the fees and expenses incurred. 3. Payment. The Applicant shall pay the City for its fees and expenses; the time of its administrative and professional staff, as the City may from time to time deem appropriate; all charges for the City s outside counsel and consultants; and all other expenses incurred by the City in providing the services set forth in Section 2 (the Charges ), subject to the following conditions: (a) In order to ensure the prompt and timely payment of the Charges, the Applicant shall establish a fund (the Fund ) by paying the initial amount of Thirty thousand and 00/100 dollars ($30,000.00) to the City contemporaneous with the execution of this Agreement. Thereafter, the City shall pay all Charges from moneys on deposit in the Fund and shall provide an itemized statement thereof to the Applicant on a monthly basis. If, in the judgment of the City, there are insufficient amounts on deposit in the Fund to pay for the projected Charges expected to be incurred, the Applicant shall make a subsequent deposit or deposits into the Fund in an amount equal to the initial deposit or such other amount which 2 Exhibit F - page 5 of 12

52 in the judgment of the City is required to provide sufficient funds to pay the projected Charges. (b) If the amount in the Fund is insufficient to pay the outstanding Charges payable hereunder, the Applicant shall pay such Charges within twenty (20) days of receipt of a statement from the City of the amount required to pay such Charges. All statements shall be reasonably itemized and shall be payable within twenty (20) days of receipt thereof. If not so paid, the City shall be relieved of its obligations hereunder until paid, and the unpaid balance shall be subject to a penalty of two percent (2%) per month until paid, but in no event shall such penalty exceed eighteen percent (18%). (c) The City s special counsel, Stinson Morrison Hecker LLP, shall be paid on an hourly basis for legal services rendered in support of the services performed by the City hereunder. The City s Bond Counsel, Kutak Rock LLP, shall be paid on an hourly basis for legal services rendered in support of the services performed by the City hereunder, other than for legal services rendered in connection with the issuance of any bonds that may be issued to finance the TDD or ID projects. 4. Termination. (a) The City may terminate this Agreement upon ten (10) days written notice in the event the Applicant fails to make any payments when due. (b) This Agreement shall automatically terminate if the Governing Body of the City elects at any time not to further consider the Request. (c) The Applicant may terminate this Agreement in the event it determines not to proceed further with the Request upon written notice to the City thereof and payment of any Fund Shortfall (as defined below). (d) If this Agreement is terminated, the City shall apply the balance of the Fund, if any, to outstanding Charges pursuant to this Agreement and any monies due and owing to the City pursuant to any other agreement and shall pay the remaining balance, if any, to the Applicant within thirty (30) days of such termination. In the event the balance of the Fund, if any, is insufficient to pay the outstanding Charges payable hereunder (a Fund Shortfall ), then the Applicant shall pay such Charges within thirty (30) days of receipt of a statement from the City of the balance required to pay such Charges. 5. No Obligation to Proceed. The Applicant acknowledges that the City is not obligated by the execution of this Agreement to approve the Request and the approval of the Request, the imposition of any associated assessment or sales tax is subject to the sole discretion of the Governing Body of the City and the requirements of the Acts, including the filing of a valid petition. 3 Exhibit F - page 6 of 12

53 6. Notice. Any notice, approval, request or consent required by or asked to be given under this Agreement shall be deemed to be given if it is in writing and mailed by United States mail, postage prepaid, or delivered by hand, and addressed as follows: To the City: Kristy Stallings Deputy City Manager City of Overland Park, Kansas City Hall 8500 Santa Fe Drive Overland Park, Kansas And Tammy M. Owens Deputy City Attorney City of Overland Park, Kansas Law Department 8500 Santa Fe Drive Overland Park, Kansas With a copy to: Todd LaSala Stinson Morrison Hecker LLP 1201 Walnut, Suite 2900 Kansas City, MO And Janet Garms Kutak Rock LLP 1010 Grand Boulevard Suite 500 Kansas City, Missouri To the Applicant: BK Properties, LLC 700 West 47 th Street, Suite 200 Kansas City, MO Exhibit F - page 7 of 12

54 With a copy to: Chase Simmons Polsinelli 900 W. 48 th Place, Suite 900 Kansas City, MO Each party may specify that notice be addressed to any other person or address by giving to the other party ten (10) days prior written notice thereof. 7. Governing Law. This Agreement shall be construed in accordance with the laws of the state of Kansas. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives the day and year first above written. BK PROPERTIES, LLC By: Name: Title: STATE OF KANSAS ) ) ss. COUNTY OF JOHNSON ) BE IT REMEMBERED, that on this day of, 2013, before me, the undersigned, a Notary Public in and for the County and State aforesaid, came of BK Properties, LLC, a Kansas limited liability company duly organized and existing under and by virtue of the laws of Kansas; who is personally known to me to be and who is personally known to me to be the same person who executed as such the within instrument on behalf of said limited liability company, and such person duly acknowledged the execution of the same to be the act and deed of said limited liability company. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal the day and year last above written. MY APPOINTMENT EXPIRES: Notary Public Printed Name: 5 Exhibit F - page 8 of 12

55 CITY OF OVERLAND PARK, KANSAS (SEAL) By: Carl Gerlach Mayor ATTEST: By: Marian Cook City Clerk APPROVED AS TO FORM: By: Tammy M. Owens Deputy City Attorney 6 Exhibit F - page 9 of 12

56 EXHIBIT A The Site 7 Exhibit F - page 10 of 12

57 8 Exhibit F - page 11 of 12

58 EXHIBIT B Map Generally Depicting the District 9 Exhibit F - page 12 of 12