Community Improvement District Development Agreement --- HPSA, LLC COMMUNITY IMPROVEMENT DISTRICT
DEVELOPMENT AGREEMENT
This Community Improvement District Development Agreement ("Agreement") is made
and entered into this 18t day of March, 2021 (the "Effective Date") by and between the Cityof
Salina, Kansas, a municipal corporation ("City"), and HPSA LLC, a Kansas limited liability
company(the"Developer" and, together with the City, the"Parties").
RECITALS:
A. The Developer is the owner of certain real property located in the City of Salina,
Kansas commonly known as 1949 N. 9th Street, Salina, Kansas, and legally described and
depicted on the attached and incorporated Exhibit A (the"Property").
B. The Developer proposes to develop the Property by designing, constructing, and
furnishing two hotels on the Property, including a 56-room hotel bearing a franchise flag of
Comfort Inn and Suites and a 60-room hotel bearing a franchise flag of Best Western
Plus/Executive Residency (or an equivalent franchise flag as may be authorized in accordance
with the terms of this Agreement), along with an indoor swimming pool and spa, meeting and
breakfast rooms, and a fitness and business center, all as more particularly described and
identified on the attached and incorporated Exhibit B (the "Project").
C. The City has the authority to create a community improvement district ("CID")
pursuant to K.S.A. 12-6a26 et seq., as amended from time to time (the "Act"), for the purpose of
financing certain economic development related projects. Under the Act, the owners of the land
within the boundaries of a proposed CID may petition the City to request the creation of a CID
and the imposition of a community improvement district sales tax within the CID ("CID Sales
Tax")to pay for or reimburse the costs of a portion of the development project.
D. On August 14, 2017, the Developer submitted a petition (the "CID Petition") to
the City requesting the formation of a CID (the "District") for purposes of financing certain costs
related to the Project. A copy of the CID Petition is attached and incorporated as Exhibit C.
E. On February 12, 2018, the City approved the creation of the District through the
adoption of Ordinance No. 17-10911 (the "CID Ordinance") pursuant to the Act. As
contemplated in the CID Petition, the CID Ordinance calls for the imposition of a CID Sales Tax
of 2.0% within the District to be used to reimburse the Developer for certain costs and expenses
of the Project eligible for reimbursement under the Act.
F. The parties wish to enter into this Agreement to establish their respective rights,
duties, and obligations as they relate to the Project, and to establish the terms and conditions
relating to the City's reimbursement of the Developer for certain CID Improvement Costs from
the CID Sales Tax generated within the District.
NOW, THEREFORE, in consideration of the foregoing recitals and in consideration of
the mutual covenants and agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, the parties agree as
follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Definitions of Words and Terms. Capitalized words used in this
Agreement which are not otherwise defined herein shall have the meanings set forth below:
"Act"means K.S.A. 12-6a26 et seq., as amended and supplemented from time to time.
"Applicable Laws and Requirements" means any applicable constitution, treaty,
statute, rule, regulation, ordinance, order, directive, code, interpretation, judgment, decree,
injunction, writ, determination, award, permit, license, authorization, directive, requirement or
decision of or agreement with or by Governmental Authorities.
"Best Western Project" means all components of the Project consisting of and relating
to the 60-room hotel bearing a franchise flag of Best Western Plus/Executive Residency (or an
equivalent franchise flag as may be authorized pursuant to the terms of this Agreement), and
related improvements and amenities.
"Certificate of Expenditures" means a request by the Developer for the City's approval
and reimbursement of CID Improvement Costs from the CID Sales Tax Fund, in substantially
the form attached and incorporated as Exhibit E.
"Certificate of Full Completion" means a certificate evidencing full completion of the
Project, or relevant portion thereof, in substantially the form attached and incorporated as Exhibit
D.
"CID Cap" means the lesser of(i) $1,000,000, if the City has executed a Certificate of
Full Completion for the Comfort Inn and Suites Project, plus an additional $1,000,000, if the
City has executed a Certificate of Full Completion for the Best Western Project, or (ii) an
amount equal to 25% of the total Project Costs incurred at the time of full completion of the
relevant portion of the Project, as evidenced by the Developer's Certificate of Expenditures, but
shall not include the City's administrative service fee imposed pursuant to Section 3.06.
"CID Collection Period" means the period that commences on the date that the CID
Sales Tax is imposed and concludes on the date which is the earlier of the following: (i) the date
that Developer has been reimbursed for all CID Improvement Costs by Pay-As-You-Go CID
Financing, (ii) the date which is twenty-two (22) years from the date that the CID Sales Tax is
first imposed, or(iii)the date on which this Agreement is terminated.
"CID Improvement Costs" means the costs and expenses of the Project to be
reimbursed with Pay-As-You-Go CID Financing pursuant to this Agreement, in an amount equal
to the CID Cap, but only to the extent such costs and expenses are (i) "costs" as defined in the
Act, and (ii) approved by the City pursuant to Section 3.02 of this Agreement. CID
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Improvement Costs shall not include costs for repair or maintenance, or any other costs or
expenses incurred after the City's approval of the submitted Certificate of Full Completion.
"CID Ordinance" means Ordinance No. 17-10911, adopted by the Governing Body on
February 12, 2018.
"CID Petition" means that certain petition submitted by the Developer on or about
August 14, 2017, a copy of which is attached as Exhibit C, which includes the estimated Project
budget.
"CID Policy"means the policy of the City governing the use of CID financing within the
City, as originally approved by the Governing Body on January 25, 2010, and as amended from
time to time.
"CID Sales Tax" means the 2.00% sales tax levied within the District pursuant to the
Act.
"CID Sales Tax Fund" means the separate fund established by the City for deposit of
the CID Sales Tax received from the state and collected within the District, and that is used to
reimburse the Developer for the CID Improvement Costs.
"Comfort Inn and Suites Project" means all components of the Project consisting of
and relating to the 56-room hotel bearing a franchise flag of Comfort Inn and Suites, and related
improvements and amenities.
"Construction Plans" means plans, drawings, specifications and related documents, and
construction schedules for the construction of the Project, together with all supplements,
amendments or corrections, submitted by the Developer and approved by the City in accordance
with this Agreement.
"District" means a community improvement district formed in accordance with the Act,
and legally described and depicted on Exhibit A.
"Excusable Delays" means any delay beyond the reasonable control of the party
affected, caused by damage or destruction by fire or other casualty, strike, shortage of materials,
unavailability of labor, adverse weather conditions such as, by way of illustration and not
limitation, severe rain storms or below freezing temperatures of abnormal degree or abnormal
duration, tornadoes, and any other events or conditions, which shall include but not be limited to
any litigation interfering with or delaying the construction of all or any portion of the Project in
accordance with this Agreement,which in fact prevents the party so affected from discharging its
respective obligations hereunder.
"Governmental Approvals" means all plat approvals, re-zoning or other zoning
changes, site plan approvals, conditional use permits, variances, building permits, architectural
review or other subdivision, zoning or similar approvals required for the implementation of the
Project and consistent with the Site Plan and this Agreement.
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"Hotels"means a 56-room hotel bearing a franchise flag of Comfort Inn and Suites and a
60-room hotel bearing a franchise flag of Best Western Plus/Executive Residency (or an
equivalent franchise flag as may be authorized in accordance with the terms of this Agreement),
located within the District and constructed and operated in accordance with this Agreement.
"Governmental Authorities" means any and all jurisdictions, entities, courts, boards,
agencies, commissions, offices, divisions, subdivisions, departments, bodies or authorities of any
type of any governmental unit(federal, state or local)whether now or hereafter in existence.
"Pay-As-You-Go CID Financing" means a method of financing pursuant to K.S.A. 12-
6a34, in which the CID Improvement Costs are financed without notes or bonds, and the costs
are reimbursed as CID Sales Tax is deposited in the CID Sales Tax Fund.
"Permitted Subsequent Approvals" means the building permits and other
Governmental Approvals customarily obtained prior to construction but which have not been
obtained on the date that this Agreement is executed, and which the City or other governmental
entity has not yet determined to grant.
"Plans" means Site Plans, Construction Plans and all other Governmental Approvals
necessary to construct the Project in accordance with the Salina Code, applicable laws of
Governmental Authorities, and this Agreement.
"Project" means the improvements to the Property, as generally described in the Petition
and the recitals to this Agreement, and more fully described in Exhibit B, including the Comfort
Inn and Suites Project and the Best Western Project, to be designed, developed, constructed, and
completed by the Developer pursuant to this Agreement.
"Project Costs" means the costs and expenses of designing, developing, constructing,
and completing the Project, including the CID Improvement Costs.
"Property"means the real property within the boundaries of the District and upon which
the Project will be constructed and completed, which is legally described and depicted on Exhibit
A.
"Site Plan"means the final site plan for the Property to be submitted by the Developer to
the City and approved by the City pursuant to the Salina Code, which may be approved as a
whole or approved in phases or stages.
"Term" means that certain period from the Effective Date through that date on which
this Agreement expires as set forth in Section 4.01.
Section 1.02. Rules of Construction. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires, the following rules of
construction apply in construing the provisions of this Agreement.
A. The terms defined in this Article include the plural as well as the singular.
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B. All accounting terms not otherwise defined herein shall have the meanings
assigned to them, and all computations herein provided for shall be made, in accordance with
generally accepted accounting principles.
C. All references herein to "generally accepted accounting principles" refer to such
principles in effect on the date of the determination, certification, computation or other action to
be taken hereunder using or involving such terms.
D. All references in this instrument to designated "Articles," "Sections" and other
subdivisions are to be the designated Articles, Sections and other subdivisions of this instrument
as originally executed.
E. The Article and Section headings herein are for convenience only and shall not
affect the construction of this Agreement.
F. The representations, covenants and recitations set forth in the foregoing recitals
are material to this Agreement and are incorporated into and made a part of this Agreement as
though they were fully set forth in this Section. The provisions of the Plans, and such resolutions
and ordinances of the City introduced or adopted by the City which designate the District, and
the provisions of the Act, as amended, are incorporated herein by reference and made a part of
this Agreement, subject in every case to the specific terms of this Agreement.
ARTICLE II
THE PROJECT
Section 2.01. Construction of Project. Subject to the terms and conditions of this
Agreement and the final Plans approved by the City, the Developer agrees to construct and
complete, or cause to be constructed and completed,the Project.
Section 2.02. Governmental Approvals. Before commencement of construction or
development of any buildings, structures or other work or improvements, the Developer shall, at
its own expense, secure or cause to be secured any and all Governmental Approvals which may
be required by the City and any other Governmental Authorities having jurisdiction as to such
construction, development or work. The City shall cooperate with and provide all usual
assistance to the Developer in securing these permits and approvals, and shall diligently process,
review and consider all such permits and approvals as may be required by law; except that the
City shall not be required to issue any such permits or approvals for any portion of the Project
not in conformance with this Agreement. Nothing in this Agreement shall constitute a waiver of
the City's right to consider and approve or deny Governmental Approvals pursuant to the City's
regulatory authority as provided by the Salina Code and Applicable Laws and Regulations.
Section 2.03. Project Schedule. No later than February 1, 2018, the Developer shall
commence or cause to be commenced construction of the Comfort Inn and Suites Project in a
good and workmanlike manner in accordance with the terms of this Agreement. The Developer
shall cause the Comfort Inn and Suites Project to be completed with due diligence with the
intention to complete the Comfort Inn and Suites Project, subject to Excusable Delays, by
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December 31, 2018. No later than October 1, 2018, the Developer shall commence or cause to
be commenced construction of the Best Western Project in a good and workmanlike manner in
accordance with the terms of this Agreement. The Developer shall cause the Best Western
Project to be completed with due diligence with the intention to complete the Best Western
Project, subject to Excusable Delays, by December 31, 2019.
Section 2.04. Continuation and Completion. Subject to Excusable Delays, once the
Developer has commenced construction of the Project, or a particular phase of the Project as
approved by the City,the Developer shall not permit cessation of work on the Project or such phase
of the Project for a period in excess of 45 consecutive days or 90 days in the aggregate without the
prior written consent of the City.
Section 2.05. Project Budget. The Project shall be constructed substantially in
accordance with the project budget attached to the CID Petition.
Section 2.06. Rights of Access. Representatives of the City shall have the right of
access to the Property, without charges or fees, at normal construction hours during the period of
construction, for the purpose of ensuring compliance with this Agreement, including, but not
limited to, the inspection of the work being performed in constructing, improving, equipping,
and installing the Project, so long as they comply with all safety rules. Except in case of
emergency, prior to any such access, such representatives of the City will check in with the on-
site manager. Such representatives of the City shall carry proper identification, shall insure their
own safety, assuming the risk of injury, and shall not interfere with the construction activity.
The right of access granted by this Section shall be in addition to the City's rights to access the
Property in the exercise of its proper authority to regulate and provide for the public health,
safety, and welfare.
Section 2.07. Periodic Meetings. From the Effective Date until full completion of the
Project, Developer agrees to meet with the City and/or its agents or consultants at such intervals
as the City and any such designee shall reasonably request, to review and discuss the design,
development and construction of the Project.
Section 2.08. Certificates of Full Completion. The parties acknowledge and agree that,
because the Project consists of two distinct Hotels to be constructed in accordance with different
schedules, the Developer shall be entitled to submit separate Certificates of Full Completion for
the Comfort Inn and Suites Project and the Best Western Project in accordance with this section.
Promptly after full completion of the Comfort Inn and Suites Project or full completion of the
Best Western Project in accordance with the provisions of this Agreement, the Developer shall
submit a Certificate of Full Completion to the City with respect to such portion of the Project.
"Full completion" with respect to either the Comfort Inn and Suites Project or the Best Western
Project shall mean that the Developer shall have been granted a Certificate of Occupancy by the
City Building Official for all portions of the relevant hotel, and shall have completed all work as
required by this Agreement and the Plans with respect to all phases of the Comfort Inn and
Suites Project or the Best Western Project (whichever is applicable). The Certificate of Full
Completion shall be in substantially the form attached as Exhibit D. The City shall, within
twenty (20) days following delivery of the Certificate of Full Completion, carry out such
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inspections as it deems necessary to verify to its reasonable satisfaction the accuracy of the
certifications contained in the Certificate of Full Completion. The City's execution of the
Certificate of Full Completion shall constitute evidence of the satisfaction of the Developer's
agreements and covenants to construct the relevant portion of the overall Project.
ARTICLE III
PROJECT FINANCING
Section 3.01. Project Costs. The Developer shall be solely responsible for and shall
pay all Project Costs necessary to complete the Project; provided, however, the City agrees to
reimburse the Developer for the CID Improvement Costs from and to the extent of the CID Sales
Tax, up to the CID Cap, subject to the terms of this Agreement.
Section 3.02. Certification of CID Improvement Costs.
A. Certificate of Expenditures. After the date of the City's approval of a submitted
Certificate of Full Completion, the Developer shall submit to the City a Certificate of
Expenditures for that portion of the Project described in the Certificate of Full Completion, in the
form attached as Exhibit E, for purposes of (i) certifying the amount of eligible CID
Improvement Costs for which reimbursement is sought, and (ii) verifying that such costs were
actually incurred by the Developer for purposes of completing the relevant portion of the Project.
The City reserves the right to require that the Certification of Expenditures be accompanied by
such bills, contracts, invoices, lien waivers, and other documentation as the City shall reasonably
require for purposes of reviewing and approving the Certificate of Expenditures, and also
reserves the right to have its agents or employees inspect all work and records for which the
Certificate of Expenditures is submitted.
B. Review and Approval. The City Manager shall have thirty (30) calendar days
after receipt of the Certificate of Expenditures and all supporting documentation to review and
respond by written notice to the Developer. If the submitted Certificate of Expenditures and
supporting documentation demonstrates that: (1)the request relates to eligible "costs,"as defined
in the Act, not in excess of the CID Cap; (2) the work for which payment was made and
reimbursement is sought has been completed in accordance with this Agreement; (3) the
Developer is not in default under this Agreement; and (4) there is no fraud on the part of the
Developer, then the City Manager shall approve the Certificate of Expenditures and all CID
Improvement Costs contained therein shall be eligible for reimbursement from the CID Sales
Tax Fund,pursuant to this Article. If the City Manager determines that the submitted Certificate
of Expenditures and supporting documentation should not be approved, the City Manager shall
notify the Developer of such determination in writing, setting forth in detail the basis for such
denial. The Developer may appeal such denial to the Governing Body by filing a written request
to be heard with the City Clerk within fourteen (14) business days of the receipt of the written
denial. The Governing Body shall conduct a hearing within thirty (30) days of receipt of such
request and render a decision immediately upon the conclusion of such hearing.
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Section 3.03. CID Sales Tax.
A. Imposition of Sales Tax in District. The City agrees that the CID Improvement
Costs shall be reimbursed to the Developer, pursuant to the terms and conditions of this
Agreement, with revenues received from the imposition of a CID Sales Tax of two percent (2%)
on the sale of tangible personal property at retail or rendering or furnishing services which are
taxable pursuant to the Kansas Retailers' Sales Tax Act (K.S.A. 79-3601, et seq., as amended)
within the District.
B. Commencement of CID Collection Period. The City will deliver a certified copy
of the CID Ordinance to the Kansas Department of Revenue ("KDOR") upon the earlier of: (a)
ten (10) business days after the City receives a request from the Developer to deliver the CID
Ordinance to KDOR, or (b) within ten (10) business days after the City's approval of the final
Certificate of Expenditures pursuant to this Article. Collection of the CID Sales Tax will
commence as soon as allowed under KDOR policies following KDOR's receipt of the CID
Ordinance and will continue throughout the CID Term.
C. CID Sales Tax Fund. During the existence of the District, all CID Sales Taxes
generated within the District shall be deposited into the CID Sales Tax Fund, which shall be
established and administered by the City in compliance with Applicable Laws and Requirements
and this Agreement.
Section 3.04. Pay-As-You-Go CID Financing. The proceeds from the CID Sales Tax
shall be disbursed by the City to the Developer on a quarterly basis, and within thirty (30) days
of the City's receipt of the CID Sales Tax funds from the state treasurer, to reimburse Developer
for CID Improvement Costs, if and to the extent that: (i) the City has approved a Certificate of
Full Completion and Certificate of Expenditures pursuant to Sections 2.08 and 3.02 of this
Agreement; (ii) the term of the CID Collection Period has not yet expired; (iii) there are CID
Sales Tax funds in the CID Sales Tax Fund; (iv) the Developer is not in default under this
Agreement and/or this Agreement has not been terminated; and(v)the Developer has not already
been reimbursed for CID Improvement Costs in an amount equal to the CID Cap.
Section 3.05. No CID Bonds. The Developer understands and agrees that all
reimbursements to the Developer hereunder shall be made only from Pay-As-You-Go CID
Financing, and nothing in this Agreement shall in any way obligate the City to issue CID bonds
or other obligations to reimburse the Developer for the CID Improvement Costs or any other
costs of the Project.
Section 3.06. Payment and Priority of City's Administrative Fee. The City shall be
entitled to withdraw and receive from the CID Sales Tax Fund a CID administrative service fee
equal to 2.00% of all CID Sales Tax revenue deposited into the CID Sales Tax Fund. The CID
administrative service fee shall be used to cover the administration and other City costs during
the Term. The CID administrative service fee may be paid monthly from the CID Sales Tax
revenues deposited in the CID Sales Tax Fund, and shall have first priority to available funds in
the CID Sales Tax Fund. The CID administrative service fee shall be deemed a CID
Improvement Cost. The CID administrative service fee is for the administration of the CID
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District only and the Developer may incur additional administrative fees from the City regarding
the Project that will be paid separately.
Section 3.07. Neighborhood Revitalization Area. The Parties acknowledge that the
Property is located within an existing Neighborhood Revitalization Area established by the City
pursuant to the Neighborhood Revitalization Act, K.S.A. 12-17,114 et seq. The Developer has
requested and intends to make formal application for, and the City agrees to consider in the
normal course and pursuant to applicable law, property tax rebates under the Neighborhood
Revitalization Act on a portion of the increased ad valorem real estate taxes with respect to the
Property as a result of the Project.
ARTICLE IV
USE AND OPERATION OF THE PROJECT
Section 4.01. Term. Unless earlier terminated as provided herein, this Agreement and
the District will remain in effect until the date which is the earlier of (i) the date that the
Developer has been reimbursed for all CID Improvement Costs by Pay-As-You-Go CID
Financing pursuant to the terms of this Agreement, or (ii) regardless of whether the Developer
has been fully reimbursed for all CID Improvement Costs, that date which is twenty-two (22)
years from the date that the CID Sales Tax is first imposed. Notwithstanding the foregoing, the
City hereby agrees that Developer may terminate this Agreement, with or without cause, by
thirty(30) days prior written notice to the City. Upon any such termination by the Developer, the
parties hereby agree that (i) the City may terminate the CID and/or the CID Sales Tax, and
Developer shall have no further rights to any proceeds or reimbursements therefrom, and (ii)
neither party shall have any further obligations under this Agreement, except to the extent set
forth in Section 6.01.
Section 4.02. Restrictions on Use. During the Term of this Agreement, the Developer
agrees to use the Property for purposes of operating the Hotels, and the overall Project, as
contemplated by this Agreement and the Plans. Nothing in this Section 4.02 shall be construed
to prevent Developer from locating other ancillary businesses within the hotel buildings, such as
restaurants or shops, so long as such businesses are reasonably related to the operation of the
Hotels and are located, developed and operated pursuant to applicable ordinances related to the
use of land or other zoning requirements. If the Developer fails to use the Property as required
hereunder, the City may, in its sole and absolute discretion, (i) exercise any remedy set forth in
Section 7.03, or (ii) amend this Agreement to permit the changed use, but only after the
Developer has filed a new CID Petition which has been approved in accordance with the City's
CID Policy.
Section 4.03. Operation of Project. The Property, and the Developer's business and
operations on the Property, shall comply with all applicable building and zoning, health,
environmental and safety codes and laws and all other Applicable Laws and Requirements. The
Developer shall, at its own expense, secure or cause to be secured any and all Governmental
Approvals which may be required by the City and any other Governmental Authority having
jurisdiction for the construction or operation of the Project.
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Section 4.04. Hotel Flags. The Hotels shall initially be operated under the franchise
flags of "Comfort Inn and Suites" and "Best Western Plus/Executive Residency."
Notwithstanding the foregoing, if the Developer is unable to secure the right to operate under the
franchise flag of "Best Western Plus/Executive Residency" after exercising commercially
reasonable efforts to obtain such right, the Developer may notify the City Manager, who shall
have the right to approve, in his or her sole discretion, a substitute franchise flag that is deemed
by the City Manager to be reasonably comparable to, and consistent with, the "Best Western
Plus/Executive Residency" franchise flag. Except as otherwise provided in this Section 4.04,the
franchise flags shall not be changed during the initial ten (10) years from the date that the CID
Sales Tax is first imposed. After the date that is ten (10) years from the date that the CID Sales
Tax is first imposed, the City Manager shall have the right to approve any changes to the
franchise flags that are deemed by the City Manager to be reasonably comparable to, and
consistent with, the initial franchise flags.
Section 4.05. Maintenance. During the Term, Developer shall cause the Project, the
Property, and all other property used or useful in the conduct of the Developer's business and
operations within the District to be maintained, preserved, and kept in good repair and working
order and in a safe condition, at all times in compliance with Applicable Laws and
Requirements. Developer will make all repairs, renewals, replacements, and improvements
necessary to comply with this section.
Section 4.06. Additions and Alterations. After full completion of the Project, the
Developer may make additions, alterations, and changes to the Project so long as such additions,
alterations, and changes are made in compliance with all Applicable Laws and Requirements,
this Agreement, and the Plans, and as long as the same do not materially adversely affect the
value of the Project or the Developer's ability to perform its obligations under this Agreement.
Section 4.07. Taxes,Assessments,Encumbrances and Liens.
A. Taxes and Assessments. The Developer shall pay when due all real estate taxes
and assessments on the Property. Nothing herein shall be deemed to prohibit the Developer from
contesting the validity or amounts of any tax or assessment, encumbrance or lien,nor to limit the
remedies available to the Developer in respect thereto; provided, however, that the City may
suspend all reimbursements of CID Improvement Costs through Pay-As-You-Go CID Financing
during any time that such real estate taxes and assessments remain unpaid. The Developer shall
promptly notify the City in writing of a protest of real estate taxes or assessments.
B. Encumbrances and Liens. The Developer agrees that no mechanics' or other liens
shall be established or remain against the Project or Property, or the funds in connection with any
of the Project, for labor or materials furnished in connection with any acquisition, construction,
additions, modifications, improvements, repairs, renewals or replacements so made; except that
Developer shall not be in default hereunder if Developer grants a mortgage or mortgages on the
Property or any portion thereof for purposes of financing any improvements to the Property. The
Developer shall not be in default if mechanics' or other liens are filed or established and the
Developer contests in good faith said liens and in such event may permit the items so contested
to remain undischarged and unsatisfied during the period of such contest and any appeal
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therefrom; provided, however, that the City may suspend all reimbursements of CID
Improvement Costs through Pay-As-You-Go CID Financing during any time that such
mechanics' or other liens remain unpaid. The Developer hereby agrees and covenants to
indemnify and hold harmless the City in the event any liens are filed against the Project or
Property as a result of acts of the Developer, its agents or independent contractors.
Section 4.08. Access. During the Term, the Developer acknowledges and agrees that the
City, and its duly authorized representatives and agents, shall have the right to enter the portions
of the Property or Project at reasonable times and upon reasonable notice, to substantiate
compliance with this Agreement or, to the extent the Developer has failed to cure any breach
within applicable notice and cure periods, to cure any defaults under this Agreement. In
exercising its rights hereunder, the City shall use reasonable efforts to avoid unreasonable
interference with the operation of the Project. Nothing contained in this Section shall restrict or
impede the right of the City to enter the Property or Project pursuant to any Applicable Laws and
Requirements.
ARTICLE V
TRANSFER AND ASSIGNMENT
Section 5.01. Assignments by Developer. The rights, duties and obligations hereunder
of the Developer may not be assigned, in whole or in part, to another person or entity, without
the prior approval of the City's Governing Body, which approval shall not be unreasonably
withheld, following verification by the City Attorney that the assignment complies with the
terms of this Agreement. Any proposed assignee shall have qualifications and financial
responsibility, as reasonably determined by the City, necessary and adequate to fulfill the
obligations of the Developer with respect to the portion of the Project and/or this Agreement
being transferred. As a condition to considering any proposed assignment, the City shall be
entitled to request, receive, and review any information or financial statements of the proposed
assignee for purposes of determining the proposed assignee's qualifications and financial
responsibility. The City shall maintain the confidentiality, to the extent permitted by law, of the
financial statements or other information provided by any assignee for consideration. The
Developer shall be responsible for and pay the City's costs and expenses and legal and other
third-party professional fees and expenses incurred in connection with reviewing and considering
any proposed assignment, or the preparation of any necessary legal or financial documents. Any
proposed assignee shall, by instrument in writing, for itself and its successors and assigns, and
expressly for the benefit of the City, assume all of the future obligations of the Developer under
this Agreement and agree to be subject to all the conditions and restrictions to which the
Developer is subject (or, in the event the transfer is of or relates to a portion of the Project, such
obligations, conditions and restrictions to the extent that they relate to such portion). The
Developer shall not be relieved from any obligations set forth herein unless and until the City
specifically agrees to release the Developer. The Developer agrees, at Developer's cost, to
promptly record all assignments in the office of the Register of Deeds of Saline County, Kansas,
in a timely manner following the execution of such agreements.
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Section 5.02. Successors and Assigns. The Parties' obligations pursuant to this
Agreement, unless earlier satisfied, shall inure to and be binding upon the heirs, executors,
administrators, successors and assigns of the respective parties as if they were in every case
specifically named and shall be construed as a covenant running with the land, enforceable
against the purchasers or other transferees as if such purchaser or transferee were originally a
party and bound by this Agreement (except as otherwise provided in an agreement approved by
the City). Notwithstanding the foregoing, no tenant of any part of the Project shall be bound by
any obligation of the Developer solely by virtue of being a tenant; provided, however, that no
transferee or owner of property within the Project except the Developer shall be entitled to any
rights whatsoever or claim upon the reimbursements from the CID Sales Tax Fund as set forth
herein, except as specifically authorized in writing by the Developer and the City.
Section 5.03. Excluded Encumbrances and Transfers. The foregoing restrictions on
assignment, transfer and conveyance shall not apply to (i) any security interest granted to secure
indebtedness to any construction or permanent lender, or (ii) the sale, rental and leasing of
portions of the Property for the uses permitted under the terms of this Agreement.
ARTICLE VI
GENERAL COVENANTS
Section 6.01. Indemnification of City.
A. Indemnity. The Developer agrees to indemnify and hold the City, its employees,
agents and independent contractors and consultants (collectively, the "City Indemnified Parties")
harmless from and against any and all suits, claims, costs of defense, damages, injuries,
liabilities,judgments, costs and/or expenses, including court costs and attorneys' fees, resulting
from, arising out of, or in any way connected with:
1. The acquisition of the Project by the Developer;
2. The management, design, construction, development and completion of
the Project by the Developer;
3. The use or occupation of the Project by the Developer or anyone acting
by, through or under the Developer;
4. Damage or injury, actual or claimed, of whatsoever kind or character to
persons or property occurring or allegedly occurring in, on or about the Project or the
District;
5. Any breach, default or failure to perform by the Developer under this
Agreement;
6. Any act by an employee of the City at or on the Project which is within or
under the control of the Developer or pursued for the benefit of or on behalf of the
Developer; or
12
7. The Developer's actions and undertakings in implementation of the
Project or this Agreement.
This section shall not apply to willful misconduct or negligence of the City or its officers,
employees or agents. This section includes, but is not limited to, any repair, cleanup,
remediation, detoxification, or preparation and implementation of any removal, remediation,
response, closure or other plan (regardless of whether undertaken due to governmental action)
concerning any hazardous substance or hazardous wastes including petroleum and its fractions as
defined in (i)the Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA"; 42 U.S.C. Section 9601, et seq.), (ii)the Resource Conservation and Recovery Act
("RCRA"; 42 U.S.C. Section 6901 et seq.) and (iii)Article 34, Chapter 65, K.S.A. and all
amendments thereto, at any place where the Developer owns or has control of real property
pursuant to any of Developer's activities under this Agreement. The foregoing indemnity is
intended to operate as an agreement pursuant to Section 107(e) of CERCLA to assure, protect,
hold harmless and indemnify the City from liability.
B. Notice. In the event any suit, action, investigation, claim or proceeding
(collectively, an "Action") is begun or made as a result of which the Developer may become
obligated to one or more of the City Indemnified Parties hereunder, any one of the City
Indemnified Parties shall give prompt notice to the Developer of the occurrence of such event.
C. Survival of Obligations. The right to indemnification set forth in this Agreement
shall survive the termination of this Agreement.
Section 6.02. Non-liability of Officials, Employees and Agents of the City. No
recourse shall be had for the reimbursement of the CID Improvement Costs or for any claim
based thereon or upon any representation, obligation, covenant or agreement contained in this
Agreement against any past, present or future official, officer, employee or agent of the City,
under any rule of law or equity, statute or constitution or by the enforcement of any assessment
or penalty or otherwise, and all such liability of any such officials, officers, employees or agents
as such is hereby expressly waived and released as a condition of and consideration for the
execution of this Agreement. Nothing in this Section 6.02 shall be construed as waiving liability
of the City for acts of its officials, officers, employees or agents, nor shall the waiver provided
hereunder extend to any official, officer, employee or agent of the City whom the City contends
was not acting on behalf of, or in the scope of his/her employment with, the City when the act or
omission giving rise to liability occurred.
ARTICLE VII
DEFAULTS AND REMEDIES
Section 7.01. Developer Event of Default. Subject to Section 7.05, the occurrence and
continuance of any of the following events shall constitute a "Developer Event of Default"
hereunder:
13
A. A default in the performance of any obligation or breach of any covenant or
agreement of the Developer in this Agreement (other than a covenant or agreement, a default in
the performance or breach of which is specifically dealt with elsewhere in this Section), and
continuance of such default or breach for a period of thirty(30) days after the City has delivered
to the Developer a written notice specifying such default or breach and requiring it to be
remedied; provided, that if such default or breach cannot be fully remedied within such 30-day
period, but can reasonably be expected to be fully remedied and the Developer is diligently
attempting to remedy such default or breach, such default or breach shall not constitute an event
of default if the Developer shall promptly upon receipt of such notice diligently attempt to
remedy such default or breach and shall thereafter prosecute and complete the same with due
diligence and dispatch; or
B. The Developer shall file a voluntary petition under any bankruptcy law or an
involuntary petition under any bankruptcy law is filed against the Developer in a court having
jurisdiction and said petition is not dismissed within sixty (60) days, or the Developer makes an
assignment for the benefit of its creditors; or a custodian, trustee or receiver is appointed or
retained to take charge of and manage any substantial part of the assets of the Developer and
such appointment is not dismissed within ninety(90) days; or any execution or attachment shall
issue against the Developer whereupon the District or any part thereof, or any interest therein of
the Developer under this Agreement, shall be taken and the same is not released prior to judicial
sale thereunder.
Section 7.02. City Event of Default. Subject to Section 7.05, a"City Event of Default"
shall mean a default in the performance of any obligation or breach of any other covenant or
agreement of the City in this Agreement, and continuance of such default or breach for a period
of thirty (30) days after the Developer has delivered to the City a written notice specifying such
default or breach and requiring it to be remedied; provided, that if such default or breach cannot
be fully remedied within such 30-day period, but can reasonably be expected to be fully
remedied and the City is diligently attempting to remedy such default or breach, such default or
breach shall not constitute an event of default if the City shall immediately upon receipt of such
notice diligently attempt to remedy such default or breach and shall thereafter prosecute and
complete the same with due diligence and dispatch.
Section 7.03. Remedies upon a Developer Event of Default.
A. Upon the occurrence and continuance of a Developer Event of Default, the City
shall have the following rights and remedies, in addition to any other rights and remedies
provided under this Agreement or by law:
1. The City shall have the right to terminate this Agreement or terminate the
Developer's rights under this Agreement.
2. The City may pursue any available remedy at law or in equity by suit,
action, mandamus or other proceeding to enforce and compel the performance of the
duties and obligations of the Developer as set forth in this Agreement, to enforce or
preserve any other rights or interests of the City under this Agreement or otherwise
14
existing at law or in equity and to recover any damages incurred by the City resulting
from such Developer Event of Default.
B. Upon termination of this Agreement for any reason, the City shall have no
obligation to reimburse the Developer for any CID Improvement Costs, or any other amounts or
costs incurred or paid by the Developer relating to the Project, and the City may elect to
terminate the District and/or CID Sales Tax.
C. If the City has instituted any proceeding to enforce any right or remedy under this
Agreement by suit or otherwise, and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the City, then and in every case the City and the
Developer shall, subject to any determination in such proceeding, be restored to their former
positions and rights hereunder, and thereafter all rights and remedies of the City shall continue as
though no such proceeding had been instituted.
D. The exercise by the City of any one remedy shall not preclude the exercise by it,
at the same or different times, of any other remedies for the same default or breach. No waiver
made by the City shall apply to obligations beyond those expressly waived.
E. Any delay by the City in instituting or prosecuting any such actions or
proceedings or otherwise asserting its rights under this Section shall not operate as a waiver of
such rights or limit it in any way. No waiver in fact made by the City of any specific default by
the Developer shall be considered or treated as a waiver of the rights with respect to any other
defaults, or with respect to the particular default except to the extent specifically waived.
Section 7.04. Remedies upon a City Event of Default.
A. Upon the occurrence and continuance of a City Event of Default the Developer
shall have the following rights and remedies, in addition to any other rights and remedies
provided under this Agreement or by law:
1. The Developer shall have the right to terminate the Developer's
obligations under this Agreement; or
2. The Developer may pursue any available remedy at law or in equity by
suit, action, mandamus or other proceeding to enforce and compel the performance of the
duties and obligations of the City as set forth in this Agreement, to enforce or preserve
any other rights or interests of the Developer under this Agreement or otherwise existing
at law or in equity and to recover damages incurred by the Developer resulting from such
City Event of Default. Provided, however, that the City's liability for monetary amounts
shall be limited to the actual amount, if any, in question, and under no circumstances
shall the City be liable for any remote, indirect, consequential, or punitive damages. The
City's liability hereunder shall also be limited by Applicable Laws and Requirements.
B. If the Developer has instituted any proceeding to enforce any right or remedy
under this Agreement by suit or otherwise, and such proceeding has been discontinued or
15
abandoned for any reason, or has been determined adversely to the Developer, then and in every
case the Developer and the City shall, subject to any determination in such proceeding, be
restored to their former positions and rights hereunder, and thereafter all rights and remedies of
the Developer shall continue as though no such proceeding had been instituted.
C. The exercise by the Developer of any one remedy shall not preclude the exercise
by it, at the same or different times, of any other remedies for the same default or breach. No
waiver made by the Developer shall apply to obligations beyond those expressly waived.
D. Any delay by the Developer in instituting or prosecuting any such actions or
proceedings or otherwise asserting its rights under this paragraph shall not operate as a waiver of
such rights or limit it in any way. No waiver in fact made by the Developer of any specific
default by the City shall be considered or treated as a waiver of the rights with respect to any
other defaults, or with respect to the particular default except to the extent specifically waived.
Section 7.05. Excusable Delays. Neither the City nor the Developer shall be deemed to
be in default of this Agreement because of an Excusable Delay.
Section 7.06. Legal Actions. Any legal actions related to or arising out of this
Agreement must be instituted in the District Court of Saline County, Kansas.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
Section 8.01. Representations of City. The City makes the following representations
and warranties, which are true and correct on the Effective Date, to the best of the City's
knowledge:
A. Due Authority. The City has full constitutional and lawful right, power and
authority, under current applicable law, to execute and deliver and perform the terms and
obligations of this Agreement, and this Agreement has been duly and validly authorized and
approved by all necessary City proceedings, findings and actions. Accordingly, this Agreement
constitutes the legal valid and binding obligation of the City, enforceable in accordance with its
terms.
B. No Defaults or Violation of Law. The execution and delivery of this Agreement,
the consummation of the transactions contemplated hereby, and the fulfillment of the terms and
conditions of this Agreement do not and will not conflict with or result in a breach of any of the
terms or conditions of any agreement or instrument to which it is now a party, and do not and
will not constitute a default under any of the foregoing.
C. No Litigation. There is no litigation, proceeding or investigation pending or, to
the knowledge of the City, threatened against the City with respect to the Plans or this
Agreement. In addition, no litigation,proceeding or investigation is pending or,to the knowledge
of the City, threatened against the City seeking to restrain, enjoin or in any way limit the
approval or issuance and delivery of this Agreement or which would in any manner challenge or
16
adversely affect the existence or powers of the City to enter into and carry out the transactions
described in or contemplated by the execution, delivery, validity or performance by the City of
the terms and provisions of this Agreement.
D. Governmental or Corporate Consents. No consent or approval is required to be
obtained from, and no action need be taken by, or document filed with, any governmental body
or corporate entity in connection with the execution and delivery by the City of this Agreement.
E. No Default. No default or event of default has occurred and is continuing, and no
event has occurred and is continuing which with the lapse of time or the giving of notice, or both,
would constitute a default or an event of default in any material respect on the part of the City
under this Agreement.
Section 8.02. Representations of the Developer. The Developer makes the following
representations and warranties, which are true and correct on the Effective Date, to the best of
the Developer's knowledge:
A. Due Authority. The Developer has all necessary power and authority to execute
and deliver and perform the terms and obligations of this Agreement and to execute and deliver
the documents required of the Developer herein, and such execution and delivery has been duly
and validly authorized and approved by all necessary proceedings. Accordingly, this Agreement
constitutes the legal valid and binding obligation of the Developer, enforceable in accordance
with its terms.
B. No Defaults or Violation of Law. The execution and delivery of this Agreement,
the consummation of the transactions contemplated hereby, and the fulfillment of the terms and
conditions of this Agreement do not and will not conflict with or result in a breach of any of the
terms or conditions of any corporate or organizational restriction or of any agreement or
instrument to which it is now a party, and do not and will not constitute a default under any of
the foregoing.
C. No Litigation. No litigation, proceeding or investigation is pending or, to the
knowledge of the Developer, threatened against the Project, the Developer or any officer,
director, member or shareholder of the Developer. In addition, no litigation, proceeding or
investigation is pending or, to the knowledge of the Developer, threatened against the Developer
seeking to restrain, enjoin or in any way limit the approval or issuance and delivery of this
Agreement or which would in any manner challenge or adversely affect the existence or powers
of the Developer to enter into and carry out the transactions described in or contemplated by the
execution, delivery, validity or performance by the Developer of the terms and provisions of this
Agreement.
D. No Material Change. (1) The Developer has not incurred any material liabilities
or entered into any material transactions other than in the ordinary course of business except for
the transactions contemplated by this Agreement and (2) there has been no material adverse
change in the business, financial position, prospects or results of operations of the Developer,
which could affect the Developer's ability to perform its obligations pursuant to this Agreement
17
from that shown in the financial information provided by the Developer to the City prior to the
execution of this Agreement.
E. Governmental or Corporate Consents. No consent or approval is required to be
obtained from, and no action need be taken by, or document filed with, any governmental body
or corporate entity in connection with the execution, delivery and performance by the Developer
of this Agreement, other than Permitted Subsequent Approvals.
F. No Default. No default or event of default has occurred and is continuing, and no
event has occurred and is continuing which with the lapse of time or the giving of notice, or both,
would constitute a default or an event of default in any material respect on the part of the
Developer under this Agreement, or any other material agreement or material instrument to
which the Developer is a party or by which the Developer is or may be bound.
G. Approvals. Except for Permitted Subsequent Approvals, the Developer has
received and is in good standing with respect to all certificates, licenses, inspections, franchises,
consents, immunities, permits, authorizations and approvals, governmental or otherwise,
necessary to conduct and to continue to conduct its business as heretofore conducted by it and to
own or lease and operate its properties as now owned or leased by it. Except for Permitted
Subsequent Approvals, the Developer has obtained all certificates, licenses, inspections,
franchises, consents, immunities, permits, authorizations and approvals, governmental or
otherwise, necessary to acquire, construct, equip, operate and maintain the Project. The
Developer reasonably believes that all such certificates, licenses, consents, permits,
authorizations or approvals which have not yet been obtained will be obtained in due course.
H. Construction Permits. Except for Permitted Subsequent Approvals, all
governmental permits and licenses required by applicable law to construct, occupy and operate
the Project have been issued and are in full force and effect or, if the present stage of
development does not allow such issuance, the Developer reasonably believes, after due inquiry
of the appropriate governmental officials, that such permits and licenses will be issued in a
timely manner in order to permit the Project to be constructed.
I. Compliance with Laws. The Developer is in compliance with all valid laws,
ordinances, orders, decrees, decisions, rules, regulations and requirements of every duly
constituted governmental authority, commission and court applicable to any of its affairs,
business, and operations as contemplated by this Agreement.
J. Other Disclosures. The information furnished to the City by the Developer in
connection with the matters covered in this Agreement is true and correct and does not contain
any untrue statement of any material fact and does not omit to state any material fact required to
be stated therein or necessary to make any statement made therein, in the light of the
circumstances under which it was made,not misleading.
K. Project. The Developer represents and warrants that the Property is sufficient to
construct the Project as contemplated in the Plans and this Agreement.
18
ARTICLE IX
GENERAL PROVISIONS
Section 9.01. Mutual Assistance. The City and the Developer agree to take such
actions, including the execution and delivery of such documents, instruments, petitions and
certifications as may be necessary or appropriate to carry out the terms, provisions and intent of
this Agreement and to aid and assist each other in carrying out said terms,provisions and intent.
Section 9.02. Effect of Violation of the Terms and Provisions of this Agreement; No
Partnership. The City is deemed the beneficiary of the terms and provisions of this Agreement, for
and in its own rights and for the purposes of protecting the interests of the community and other
parties, public or private, in whose favor and for whose benefit this Agreement and the covenants
running with the land have been provided. The Agreement shall run in favor of the City, without
regard to whether the City has been, remains or is an owner of any land or interest therein in the
Project or the District. The City shall have the right, if the Agreement or covenants are breached,to
exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other
proper proceedings to enforce the curing of such breaches to which it or any other beneficiaries of
this Agreement and covenants may be entitled. Nothing contained herein shall be construed as
creating a partnership between the Developer and the City.
Section 9.03. Time of Essence. Time is of the essence of this Agreement. The Parties
will make every reasonable effort to expedite the subject matters of this Agreement and
acknowledge that the successful performance of this Agreement requires their continued
cooperation.
Section 9.04. Amendments. This Agreement may be amended only by the mutual
consent of the Parties, by the adoption of a resolution of the City approving said amendment, as
provided by law, and by the execution of said amendment by the Parties or their successors in
interest.
Section 9.05. Agreement Controls. The Parties agree that the Project will be
implemented as agreed in this Agreement. Except as otherwise expressly provided herein, this
Agreement supersedes all prior agreements, negotiations and discussions relative to the subject
matter of this Agreement and is a full integration of the agreement of the Parties.
Section 9.06. Validity and Severability. It is the intention of the parties that the
provisions of this Agreement shall be enforced to the fullest extent permissible under the laws of the
State of Kansas, and that the unenforceability (or modification to conform with such laws) of any
provision of this Agreement shall not render unenforceable, or impair, the remainder of this
Agreement. Accordingly, if any provision of this Agreement shall be deemed invalid or
unenforceable in whole or in part, this Agreement shall be deemed amended to delete or modify, in
whole or in part, if necessary, the invalid or unenforceable provision or provisions, or portions
thereof, and to alter the balance of this Agreement in order to render the same valid and enforceable.
19
Section 9.07. Required Disclosures. The Developer shall immediately notify the City
of the occurrence of any material event which would cause any of the information furnished to
the City by the Developer in connection with the matters covered in this Agreement to contain
any untrue statement of any material fact or to omit to state any material fact required to be
stated therein or necessary to make any statement made therein, in the light of the circumstances
under which it was made, not misleading.
Section 9.08. Equal Opportunity.
A. In conformity with the Kansas act against discrimination and Chapter 13 of the
Salina Code, the Developer and its subcontractors, if any, agree that:
1. The Developer shall observe the provisions of the Kansas act against
discrimination and Chapter 13 of the Salina Code and in doing so shall not discriminate
against any person in the performance of work under this Agreement because of race,
sex,religion, age, color, national origin, ancestry or disability;
2. The Developer shall include in all solicitations, or advertisements for
employees, the phrase "equal opportunity employer," or a similar phrase to be approved
by the City's human relations director;
3. If the Developer fails to comply with the manner in which the Developer
reports to the Kansas human rights commission in accordance with the provisions of
K.S.A. 44-1031 and amendments thereto, the Developer shall be deemed to have
breached this Agreement and it may be canceled, terminated or suspended, in whole or in
part,by the City;
4. If the Developer is found guilty of a violation of Chapter 13 of the Salina
Code or the Kansas act against discrimination under a decision or order of the Salina
human relations commission or the Kansas human rights commission which has become
final, the Developer shall be deemed to have breached this Agreement and it may be
canceled, terminated or suspended, in whole or in part,by the City;
5. The Developer shall not discriminate against any employee or applicant
for employment in the performance of this Agreement because of race, sex, religion, age,
color,national origin, ancestry or disability; and
6. The Developer shall include similar provisions in any subcontract under
this Agreement.
Section 9.09. Tax Implications. The Developer acknowledges and represents that (a)
neither the City nor any of its officials, employees, consultants, attorneys or other agents has
provided to the Developer any advice regarding the federal or state income tax implications or
consequences of this Agreement and the transactions contemplated hereby, and (b) the
Developer is relying solely upon its own tax advisors in this regard.
20
Section 9.010.Authorized Parties. Whenever under the provisions of this Agreement
and other related documents, instruments or any supplemental agreement, a request, demand,
approval, notice or consent of the City or the Developer is required, or the City or the Developer
is required to agree or to take some action at the request of the other Party, such approval or such
consent or such request shall be given for the City, unless otherwise provided herein, by the City
Manager and for the Developer by any officer of the Developer so authorized; and any person
shall be authorized to act on any such agreement, request, demand, approval, notice or consent or
other action and neither Party shall have any complaint against the other as a result of any such
action taken. The City Manager may seek the advice, consent or approval of the Governing
Body before providing any supplemental agreement, request, demand, approval, notice or
consent for the City pursuant to this Section.
Section 9.011.Notices. All notices required or permitted to be given pursuant to this
Agreement shall be in writing and delivered personally or sent by registered or certified mail,
return receipt requested, or by generally recognized,prepaid, commercial courier or overnight air
courier service. Notice shall be considered given when received on the date appearing on the return
receipt, but if the receipt is not returned within five (5) days, then three (3) days after mailed, if
sent by registered or certified mail or commercial courier service; or the next business day, if
sent by overnight air courier service. Notices shall be addressed as appears below for each party,
provided that if any party gives notice of a change of name or address, notices to the giver of that
notice shall thereafter be given as demanded in that notice.
CITY: City Clerk
Attn: Michael D. Schrage, City Manager
P.O. Box 736
Salina, KS 67402-0736
DEVELOPER: HPSA LLC
Attn: Hasu Bhakta, Managing Member
8600 W. Kellogg
Wichita, KS 67209
Section 9.012. Kansas Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Kansas.
Section 9.013.Counterparts. This Agreement may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and the same
agreement.
Section 9.014.Agreement Runs With the Land: Recording. The parties understand
and agree that this Agreement runs with the land. Additionally, the Parties agree to execute and
deliver an original of this Agreement and any amendments or supplements hereto, in proper form
for recording and/or indexing in the appropriate land or governmental records, including, but not
limited to, recording in the real estate records of Saline County, Kansas. This Agreement, or a
memorandum of this Agreement, shall be promptly recorded by the Developer at Developer's
cost after execution, and proof of recording shall be provided to the City.
21
{Signature page follows}
22
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by their
duly authorized officers on the day and year first above written.
CITY OF SALINA,KANSAS
BY: M h/I4/?iilt,f rit',( J
Melissa Rose Hodges, itio or
ATTEST:
By: ' / I...,
Chery ,I+ ermis, Deputy City Clerk
HPSA LLC
By: _EqeQ/
Name: /.1 s tt 7 )fiQ-/._7
Title: o id A.) e'Q_
STATE OF KANSAS, COUNTY OF SALINE, SS: .
This instrument was acknowledged before me on MOO(CO ZZ, 2021, by
Melissa Rose Hodges, Mayor of the City of Salina, Kansas, and Cheryl Mermis,Deputy City
Clerk for the City of Salina, Kansas.
AllAfilAj 4r/t/1/14 -
ALLISON HAMM Notary Public
1 NotaryPublic-State of Kansas
My Appt.Expires td-2,5-7.1.4
STATE OF KANSAS, COUNTY OF Sak i Yl P. , SS:
This instrument was acknowledged before me on MCAS(CArl 1 A , 2021, by
VkGlSlA (;hQv-k-O\ , as oWnesc of HPSA LLC, a
Kansas limited liability company.
-
CA
ALLISON HAMM N tary Public � ��j•--..
Notary Public-State of Kansas
My Appt.Expires 10-23^2-Li
23
EXHIBIT A
LEGAL DESCRIPTION AND DEPICTION OF THE PROPERTY AND DISTRICT
Lots One (1), Two (2) and Three (3), Tract Two (2), Interstate District Southwest of I-70, an
addition to the City of Salina, Saline County, Kansas, less that part taken by I-20 Highway.
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EXHIBIT C
DEVELOPER'S CID PETITION
[See attached]
PETITION FOR THE CREATION OF THE
HPSA 1-70 NINTH STREET COMMUNITY IMPROVEMENT DISTRICT
To the City Commission ("the Commission")of the City of Salina,Kansas ("the City"):
The undersigned petitioner(s) ("Petitioner"), (I) being the owners/developers of record owning
more than fifty-five percent (55%) by assessed value of the land area within the boundaries of
the hereinafter described proposed community improvement district ("the District"), and (2)
comprising more than fifty-five (55%) by land area of all owners of real property within the
boundaries of the District, do hereby petition and request that the City create such District to fund all
or part of the costs of services and improvements described herein and provided and made within the
District under the authority of the Community Improvement District Act, K.S.A. 12-6a26 et seq.
("the Act").
1. Boundaries, Legal Description and Map of the District
The legal description of the District is attached hereto as Exhibit A. A map of the
boundaries of the District with accompanying tax parcel I.D. information is attached hereto as Exhibit
B, confirming that the District is contiguous. The District is located entirely within the boundaries of
the City. The entirety of the District is owned by Petitioner.
2. Name of District
The proposed name of the District is the HPSA I-70 North Ninth Street Community
Improvement District.
3. Signatures May Not Be Withdrawn
Notice has been provided to all signers of this petition that their signatures may not be
withdrawn after the earlier of: (i) seven (7) days after the filing of this Petition with the City; or (ii)
the date upon which the City Commission commences consideration of this Petition.
4. Nature of the Proposed Project and Description
The general nature of the proposed project is to demolish existing structures, provide
improvements and infrastructure to the property located within the District to be completed by the
owner/developer, HPSA LLC. ("the Petitioner"). Proposed improvements include installation of
landscaping, lighting, infrastructure and utilities; construction of sidewalks and ADA accessible
buildings intended for commercial use, specifically including development of two limited service
hotels initially bearing flag of Comfort Inn and Suites and Best Western (orequivalent) containing ;(
parking lots and methods of ingress and egress; all consistent with the development of commercial
property within the authorized zoning for the property within the District. The total hotel area is
estimated to be 70,000 square feet in two buildings. Architectural renderings of the
improvements to be constructed in the District are attached as Exhibit C.
5. Estimated Cost of the Proposed Project
Petitioner estimates the costs of the improvements to the District will total approximately Ten
Million Dollars ($10,000,000.00)("the Total Project Cost"). That portion of the project to be
funded through the creation of the proposed CID shall total the lesser of Two Million Dollars
($2,000,000.00) or an amount equal to twenty five percent (25%) of the estimated Total Project
Cost.
That portion of the project to be funded by the CID is based on the additional cost of
development and operation due to removal of the existing structures, additional infrastructure
requirements, and additional engineering and development costs in a floodway due to floodplain
restrictions.
6. Estimated Market and Assessed Value of Improvements
Estimated market and assessed value of the real property and improvements after
completion is $10,000,000; after construction has been completed and occupancy and cash
flow have been achieved. These estimates are based upon revenue and expense projection done
by the owner/developer,
7. Estimated Timeline for Construction
Construction will commence as soon as possible upon approval of the proposed District.
Time is of the essence for Petitioner. Estimated completion is expected to be no more than
Eighteen(18)months after approval of the proposed District.
8. Proposed Method of Financing the Project Sales Tax; Financial Impact
The proposed District project will be financed on a pay-as-you-go basis payable by
private financing secured by the Petitioner and reimbursed from revenues received from the
imposition of a two percent (2%) community improvement district sales tax on the selling of
tangible personal property through retail means or rendering or furnishing of taxable services
pursuant to the provisions of the Kansas Retailer's Sales Tax Act within the proposed District.
Given Petitioner's contribution of property and securing of private financing to fund the
remainder of the cost. Petitioner's financial participation exceeds 20% of the Total Project Cost.
Petitioner is the sole current landowner to be financially impacted by the approval of the District.
But for the proposed CID funding,
9. Service Costs Proposed for CID Funding
Petitioner does not seek provision of service costs for services as defined in Article IV,
Subparagraph B,of the City's Community Improvement District Policy.
10. Agreement to Pay Out-of-Pocket Costs
Petitioner hereby agrees to pay all out of pockets costs incurred by the City related to the
City's review of this Petition, including but not limited to the City's cost of legal counsel and
financial advisors necessary to evaluate the Petition. Pursuant to the City's CID Policy,
Petitioner has submitted a nonrefundable fee of Two Thousand Five Hundred Dollars
($2,500.00) in conjunction with this Petition. In addition, Petitioner shall agree to enter into a
Funding Agreement with the City to provide for the further deposit of the sum of Five Thousand
Dollars ($5,000.00) in a separate, segregated "Advanced Funds Account" of the City to be
utilized for the City's payment or reimbursement of City costs and expenses and legal and other
third-party professional fees and expenses incurred by the City in connection with evaluating
Petitioner's CID application.
11. Request for Establishment
By execution and submission of this Petition, the Petitioner respectfully requests that the
Commission establish the HPSA 1-70 Ninth Street Community Improvement District as set forth in
this Petition.
•
IN WITNESS WHEREOF, the undersigned Petitioner has executed the above and
foregoing Petition to create a Community Improvement District as follows:
Name of Owner: HPSA, LLC.
Owner's Telephone: 316-204-4135
Owner's Mailing Address: Hasu Bhakta
8600 W Kellogg •
Wichita, KS 67209 •
Name of Signer: Hasu Bhakta
Signer's Legal Authority: Authorized Representative and Managing Member
Signer's Telephone: 316-204-7856
Signer's Mailing Address: SAME AS ABOVE
Type of Entity: Domestic for-profit corporation
Map and Parcel No.: See Attached
By executing this Petition, the undersigned represents and warrants that he is legally authorized
to execute this Petition on behalf of the property owner identified above. The undersigned
acknowledges that it has been given notice that its signature below may not be withdrawn later
than seven(7)days after the filing of this Petition with the City Clerk.
HPSA,LLC
By: ,- �
4-1
Hasu Bhakta,Authorized Representative
STA FE OF KANSAS
CITY OF UU(CI \
BE IT REMEMBERED,that on this_ x of (i„a...e Ut .2017, before
me, the undersigned, a Notary Public in and for the City and Stale aforesaid, came Hasu
Bhakta, authorized representative of HPSA, LLC, who executed this 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 set my hand and affixed my official seal the day
and year last above written.
�AMO
.111.1.1114%LORI S.McCOY
Notary Public-State of Kansas
MY Appt.Expires 7 -jx j� / `�
Exhibit A
HPSA, LLC North Ninth Street CID Legal Description
Lons One (1),Two (2) and Three (3),Tract Two (2), Interstate District Southwest of 1-70, an addition to
the City of Salina, Saline County, Kansas, less that part taken by 1-20 Highway.
August 29,2017
To: Jason Gage,City Manager
Michael D.Schrage, Deputy City Manager
City of Salina, Kansas Bieberly Architects, PA
300 West Ash, Room 202
P.O. Box 736 227 North Santa Fe,Suite 302
Salina, KS 67402-0736 Post Office Box 1731
Salina,Kansas 6 7402-1 73 1
Phone:785-309-5700 Telephone:(785)823-9221
Fax:785-309-5711 Fax:(7 85)823-9234
Email:hen@bieberlyarchitects.net
Re: 1-70 and 9th Street Hotels da�'c@bicbcrlyarchitects.nct
CID District
Dear Mr.Gage and Mr.Schrage:
We have evaluated the costs for the hotel project and have summarized those costs for your review
with the Finance Review Committee.
Additional costs for the project are incurred due to the following conditions:
1. The existing buildings could not be upgraded to meet the minimum standards of any upscale
hotel brand. In fact,they have been a blight for the City of Salina. As a focal point to one of the
main gateways to the City of Salina,the only practical solution was to demolish the existing
structures and build new modern buildings on the site. The existing buildings are concrete
construction, not wood construction,and demolition costs are greater than expected.
ADDITONAL COST: $200,000
2. The project is located in an existing floodway. Additional engineering costs were incurred in
order to secure a No Rise Certificate. A No Rise Certificate is required to build new structures in
an existing floodway area.ADDITIONAL COST:$25,000.00.
3. Because of the floodway we needed to minimize the impact of constructing on the site resulting
in the construction of two smaller buildings versus one larger building. The site requires at least
a 120+rooms to generate a profit. No hotel brand would approve a 120-room hotel on this site.
A larger building on the site such as a five story 80 room hotel building in lieu of two,four story
buildings would require a different and more expensive type of construction. Building codes for
a five-story building require the first floor at least to be constructed of steel and masonry with a
two-hour fire separation between the first and second floors. Our costs to build two five story
hotels to minimize the impact on the site would be an additional 2 million. By building two four
story hotels as prescribed in the No Rise Certificate our costs are less but still more than they
would be for a site not located in a floodway. ADDITIONAL COST FOR TWO FOUR STORY
HOTELS:$1,000,000.
4. Two separate hotel brands require two separate franchise fees and specific prototype
specifications to follow for each brand. ADDITIONAL COST: $700,000.
5. The existing water line supplying fire protection and domestic water to the site is undersized
and insufficient to provide the required water flow for fire protection and needed to be
replaced. ADDITIONAL COST: $75,000
Details on next page:
Total one time increase in cost is estimated at$1,320,000.
Out of the one time cost IRB we will save about$300,000 after the cost of the IRB's which will
bring the onetime cost at 1,020,000.
Counting 20 Year amortization for the$1,020,000 at 6.5%we will be at$7605/month for a total
of$1,825,200.
Counting recurring cost estimated at$115,000/Yr.for 20 Years for a total of$2,300,000.
Total Additional cost over 20 Years will be$4,125,200
We are only asking max CID of$2,000,000(Realistically it will collect only 1,200,000 but leaving
room for high inflation which will increase the payment cost).
If you have any questions please feel free to contact me or the owner, Hasu Bhakta 316-204-
4135 or Raju Seth 316-393-4252.
2
Respectfull
Q12.--
David D. Bieberly, •IA
Bieberly Architects
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Exhibit D — Total hotel project costs attributable to unique site / project expenses
Cost Compariosn of Development in flood Zone vs Green Zone
Note:- NRP do not need to be counted as they apply to green zone in the neighborhood
Item 1 Flood Zone
Demolition 200000
Item 2
No Rise Certiciate 25000
Item 3 (This are at low end)
Engineering 80000 Additional Building
Franchise Fees 50000 (Two franchise fees instead of 1)
Swimming Pool/Spa 100000 (Two different buildings)
Reservation System 25000 Two different reservation system
Internet/Technology 15000
Breakfast Equipments and Cabinetry 50000 Both building will need this
Front Desk/Millwork/Lobby 125000 Both building will need this
Separate Electrical Main,Water Heaters, Pool
Electrical/Plumbing/Hvac 150000 Units, etc
Roofing 45000 Roof Size will be smaller
Brand Standard Items 40000
Laundry roof and facility instead of just one
Laundry and Common Equipments 25000 extar machine
Steel and Construction Material 100000 Steel to support pool and structure
Alarm and Sprinkler Systems 35000
Front Doors 25000 Automatic Doors
Canopy 35000 Two canopys
Phone System 15000 Two different Phone System
Additional Interest Cost for process 60000 It took a year to get the no rise and drawings
975000
Item 3
Existing line is an insufficient size for todays
Water Line 75000 code requirements.
City prefers an 8" dia. line versus a 6"water
line for site.
Total One Time Cost 1275000
Item 4
Recurring Cost
Front Desk for two instead of One 125000 Yearly Additional Cost
Breakfast Attendant 15000 Yearly Additional Cost
Common area maintenance and Support 15000 Yearly Additional Cost
Insurance Cost 20000 Yearly Additional Cost
Common Area FF&E Reserve 25000
Extra Utilities/Phone 30000
Total Recurring Cost Yearly 230000
50%increase of revenue 115000
Additional Cost 115000/Yr
® Community Improvement District Policy
I. PURPOSE
A Community Improvement District ("CID") is a statutory vehicle through which a neighborhood
or business area can form a district within the City of Salina to finance private projects that
enhance the quality of life or the economic wellbeing of the district through the use of an
incremental increase in sales taxes and/or bonding, with or without special assessments. CID
projects can accelerate new development and redevelopment throughout the community,
building public infrastructure and preventing the decline of mature commercial properties. This
market-based approach to renovation pays aesthetic and economic dividends through
refreshing ailing properties and increasing the property and retail tax bases. CIDs facilitate
projects that benefit the community without increasing at-large taxation.
II. LEGAL AUTHORITY
This Community Improvement District Policy establishes the process that the City will employ in
evaluating CID applications in accordance with K.S.A. §§12-6a26 —6a36. The City Commission
has the sole discretion to approve petitions establishing a CID and retains the authority to
finance projects by other methods.
This policy is intended to provide guidelines for City Commission review. The City Commission
reserves the right to waive provisions of this Policy if a compelling reason or emergency exists
and such waiver is declared to be in the public interest. However, the City Commission shall not
®
waive any statutory requirement of State law.
III. DEFINITIONS
A. Area of Change shall mean that area designated in the attached map.
B. Cost shall mean all expenses necessarily incurred for
i. The preparation of preliminary reports, plans, and specifications;
ii. The preparation and publication of notices of hearings, resolutions, ordinances, and
other proceedings relating to the creation or administration of the district or the
issuance of bonds;
iii. Fees and expenses of consultants;
iv. Interest accrued on borrowed money during the period of construction;
v. The amount of a reserve fund for the bonds;
vi. The cost of land, materials, labor, and other lawful expenses incurred in planning and
doing any project; and
vii. A charge not to exceed 2% of the total cost of the project or, when bonds are issued,
the principal amount of the bonds to reimburse the municipality for the services
rendered in the administration and supervision of such project by its general officers.
The charge shall not exceed actual expenses incurred by the municipality in support
of the project.
C. Finance Team shall mean a staff team consisting of the City Manager's office, the City
Finance Department, a third-party financial advisor (as needed), bond counsel (as
needed), and/or legal counsel.
1
IV. PROJECT ELIGIBILITY
Projects located in the designated "Area of Change" (see attached map) are the top priorities for
CID establishment, though other areas within the community are also eligible. A CID may be
compatible with other development tools, such as Neighborhood Revitalization Areas ("NRA")
and Special Redevelopment Areas ("SRA"), and can be used in conjunction with these incentive
programs.
CID projects may include the construction or improvement of buildings and infrastructure or for
the provision of services. The types of projects eligible under K.S.A. §12a6-28(m) are listed
below The City Commission may exercise its discretion in determining whether a specific
project merits receiving public funding through the creation of a CID.
A. Construction and Improvement of Buildings and Infrastructure
i. Public and private buildings, structures, and facilities;
ii. Sidewalks, streets, bridges, and pedestrian amenities;
iii. Parking lots and garages;
iv. Utilities, water systems, sewer systems, and drainage systems,
v. Security equipment or facilities;
vi. Light fixtures, traffic signs, benches, trash receptacles, and awnings;
vii Parks, lawns, trees, and landscaping;
viii. Paintings, sculptures, fountains, and other cultural amenities;
ix. Communication and information booths, bus stops, rest rooms, and kiosks;
x. Mass transit facilities; and
xi. Waterways
•
B. Provision of Services
i. Personnel for security, parking lots or garages, buses, or child care;
ii. Cleaning and maintenance of public or private property;
iii. Provision of music or news;
iv. Promotion of tourism, recreation, cultural activities, and special events;
v. Promotion of business activity and economic development;
vi. Employee support and training programs; and
vii. Economic impact, planning, marketing, or other studies.
V. PROJECT FINANCING
CID financing is available in the minimum amounts of $500,000 for an Area of Change and
$1,000,000 for an area outside of an Area of Change. Off-site public infrastructure
enhancements beyond those typically required for development purposes may account for up to
10% of total costs, provided that they are adjacent to or nearby the project site and contribute to
the success of the project. Where applicable, it is the intent of this policy that project costs be
allocated between sales tax generators and non-generators as equitably as possible, though the
CID boundaries need not include all property that will benefit from the project.
A. Sources of District Funding. Available sources of district funding in order of preference
are as follows:
i. Sales Taxes Without Bond Financing. The City may levy a sales tax within a CID
on the selling of tangible personal property at retail or the furnishing of services
taxable under the Kansas Retailers' Sales Tax Act. The CID sales tax may not 40
exceed 2% and must be in an increment of 0.10% or 0.25% The sales tax must
2
• expire not later than 22 years from the date the state director of taxation begins
collecting the tax.
ii. Sales Taxes With Bond Funding. If bonds are issued as part of a sales tax funded
CID, the tax must expire no later than the date that the bonds or refunding bonds
used to finance the CID project mature, not to exceed 22 years from the date the
state director of taxation begins collecting the tax.
iii. Bonds. Bonds shall have a term of 10 — 15 years and Bonds may be issued in the
amount of$1,000,000 or more.
a. Special Obligation Bonds The City may issue special obligation bonds to fund
a CID project. The City may levy a special assessment and/or a sales tax within
the CID to repay special obligation bonds. The decision to issue special
obligation bonds shall be based on market risk. Special obligations bonds
issuances shall be independent for each CID project authorized.
b. General Obligation Bonds. The City may issue general obligation bonds to fund
a CID project that is financed at least in part by a CID sales tax. In addition, the
City may also levy a special assessment within the CID to ensure repayment of
the general obligation bonds. This funding is limited to projects that have a
significant community impact, with a strong preference for infrastructure and
projects in the downtown area. General obligation bonds may be merged with the
financing of an at-large project. If so, the issuance term will assume that of the
at-large project financing instrument.
1. Petition Against Issuing Bonds. A petition signed by 5% of qualified City
voters and presented to the city clerk within 60 days of the public hearing for
the creation of a Sales Tax CID shall prevent the issuance of general
• obligation bonds. The bonds can subsequently be issued only if approved by
a majority of voters at an election.
iv. Special Assessments. If bonds are issued, the City must levy a special assessment
to repay them. The City may levy an assessment upon the CID property owners in
advance of the commencement of the project or in installments, in accordance with
K.S.A. § 12-6a01 et seq., with three exceptions:
a. No assessment may be levied against the City.
b. If the special assessment is used to pay special obligation bond financing, the
special assessment may be reduced to the extent that sales tax proceeds or
appropriated funds cover the debt service on any bonds issued.
c. Property benefited by the project, whether within or outside of the district, need
not be included in the district or subject to the district's assessment or sales tax.
v. City General Fund. The City may appropriate funds to support the CID project.
B. Qualified Expenses. Service and administrative costs, such as those listed under IV(B),
"Provision of Services," generally shall account for no more than a suggested 15% of
CID project costs. To qualify for reimbursement, the applicant must demonstrate how the
service and administrative costs will enhance business activity and/or preserve the
project's capital investment.
VI. APPLICATION PROCEDURE
This application procedure is established under the authority of the City Manager. The applicant
must submit five copies of a complete application, which consists of an application, a petition, a
4111 fiscal impact statement, and applicable application and administration fees The applicant is
strongly encouraged to participate in a pre-application conference with the Finance Team to
3
preview the application before submitting it, in order to ensure adequate time to address any
deficiencies or regulatory issues.
Any inaccuracy may render the application void and may be cause for the repeal of any
development assistance previously provided by the City in reliance upon the inaccurate
information.
A. Application. The application shall include:
i. A legal description of the proposed boundaries of the CID;
ii. A map of the district area with accompanying tax parcel I.D. information,
iii. A detailed description of the project and architectural and/or engineering renderings
that identify the improvements to be constructed in the CID;
iv. A detailed breakdown of the estimated project costs;
v. The estimated market and assessed value of the improvements;
vi. The estimated construction timeline, including the cost of any proposed project
phases; and
vii. A statement that "but for" the CID funding, the applicant would not undertake the
proposed project.
viii.A detailed listing of all service costs proposed for CID funding, with detailed
justification for addressing how these costs will enhance business activity and/or
preserve the project's capital investment.
B. CID Petition. A valid CID petition of the Special Assessment CID or Sales Tax CID form
is required. The petition shall contain a notice that signers consent to the assessments
proposed in the petition and signers' names may not be withdrawn from the petition after
the earlier of seven days after the filing of the petition or the date upon which the City 411
Commission commences consideration of the petition.
i. Special Assessment CID. A valid Special Assessment CID petition requires the
signatures of all of the property owners within the proposed CID. A Special
Assessment CID limits the financing method to a special assessment of the CID
property owners.
ii. Sales Tax or Combination Special Assessment/Sales Tax CID. A valid Sales Tax
or Combination CID petition requires the signatures of both the property owners of
more than 55% of the land area within the proposed CID and the property owners of
more than 55% of the assessed land value within the proposed CID. A Sales Tax
CID may use a sales tax or a combination of a sales tax and a special assessment
as the financing method.
C. Financing and Fiscal Impact. The applicant must detail the proposed method and
amount of financing, including any public financial participation requested. The applicant
must financially participate in the project in an amount that is at least 25 percent of the
total project cost.
D. Required Fees.
i. Initial Application Fee. A non-refundable amount of $2,500 shall accompany the
application. If the CID application is successful, the application fee will constitute a
project cost and be eligible for reimbursement from CID proceeds.
ii. Out-of-Pocket Professional Services Fees. In the course of evaluating a CID
application, the City may incur out-of-pocket expenses for outside legal counsel,
bond counsel, and third-party professional services. In order to reimburse the City for
4
such costs, the applicant shall enter into a funding agreement to pay the direct costs
that the City incurs in reviewing the application as follows:
a. Separate Account. The applicant shall deposit a minimum of $20,000 for
bonded projects or $5,000 for pay-as-you-go projects to be held by the City in a
separate, segregated account of the City to be known as the "Advanced Funds
Account." The City may invest the advanced funds in the same manner as other
funds of the City are invested, and interest earnings shall remain in the Advanced
Funds Account. If the CID application is successful, amounts paid into the
Advanced Funds Account may constitute a project cost subject to the provisions
of Section IV of this policy and be eligible for reimbursement from CID proceeds
Administrative costs that exceed the statutory cap of 5% of total project costs will
not be reimbursed.
b. Use of Funds. The City may use the Advanced Funds for payment or
reimbursement of City costs and expenses and legal and other third-party
professional fees and expenses incurred by the City in connection with providing
the necessary third party legal, financial, and planning assistance, including
consultants, engaged by the City.
c. Accounting for Funds. The City shall submit to the applicant an itemized
statement of actual payments made from the Advanced Funds Account for such
City Expenses on a regular periodic basis, but no more often than monthly and
no less often than quarterly.
d. Replenishing Funds. The applicant shall advance to the City the amounts set
forth on such statements within thirty (30) days of receipt thereof, which shall be
deposited in the Advanced Funds Account so that the balance of the Advanced
. Funds Account remains at $10,000. If such funds are not received, the unpaid
balance shall be subject to a penalty of one and one half percent (1.5%) per
month until paid, but in no event shall such penalty exceed eighteen percent
(18%) per annum, and the City shall be relieved of any obligations to the
applicant until paid.
e. Return of Advanced Funds. Any funds not used, and the interest on those
funds, shall be returned to the applicant at the end of the project.
iv. Ongoing Administration Fee
Through the course of the project repayment period, the City may incur in-house
financial administration costs. In order to reimburse the City of such costs, an
ongoing administration fee may be imposed. The fee for such costs may account for
a maximum of 2% of CID project costs and is included in the 15% project
reimbursement limit for service and administrative costs.
VII.EVALUATION PROCESS
A. Finance Team Review. The Finance Team will evaluate an application against the
objectives and criteria of this Policy by consulting with the applicant, gathering any
additional information deemed necessary, and obtaining input from applicable City
departments on the proposed physical plan, infrastructure needs and service costs. After
reviewing the application, City staff will note outstanding regulatory, zoning, platting,
permit, site plan, and land use requirements that the project must meet and make a
recommendation to the City Commission. All regulatory, zoning, platting, permit, site
plan, and land use conflicts must be resolved prior to City Commission action. If the
410
Finance Team believes the application and proposed petition meets the criteria set forth
in this Policy and should be recommended for approval, the Finance Team will work with
the petitioner to prepare a Finance Plan and a development agreement to present to the
5
City Commission when it considers the petition to establish the CID The development
agreement will outline the expected timeline and activities of the project, as well as a
reimbursement procedure for eligible costs.
i. Criteria for Review. In evaluating the proposed CID, the Finance Team shall
consider:
a. Compliance with the Comprehensive Plan and all land use regulations;
b. Status of the CID as an "Area of Change" or declining commercial property;
c. Degree of aesthetic, structural, functional and economic need of the CID;
d. Ability of the project to improve aesthetic and economic outcomes, and to resist
future decline of the District;
e. Overall neighborhood or area impact
f. Proportion of private financing contributed as a percentage of the total project,
g. Fairness of the proposed funding plan allocation between sales tax generators
and non-sales tax generators;
h. Financial risk of default and financial risk to the City, including exposure of the
general property tax levy and the City's credit rating;
i Feasibility of future CID revenues to cover the ongoing viability of the project,
particularly when financing includes bonds;
j. Site layout and architectural design;
k. The degree to which the project enhances all aspects of building space (i.e ,
interior, exterior, mechanical/electrical systems, etc.) necessary to increase
functionality and tenant demand;
I. The use of landscaping and other sustainable features, with an emphasis on
xeriscaping;
m. The impact on City infrastructure systems and optional off-site infrastructure 4111
improvements;
n. The extent to which the project will help the CID attract new customers from
outside Salina;
o. The extent to which the project will help the CID retain customers in Salina who
are currently leaving the community; and
p. The impact on customers, particularly captive customers.
B. City Commission Review. Upon receiving the recommendation of the Finance Team
and the Finance Plan, the City Commission shall follow the statutorily-prescribed
process for the establishment of a district unless otherwise specified and statutorily
allowed.
i. Notice and Hearing Procedure. Applicants must make their best efforts to provide
notice to the landowners and tenants of landowners within the proposed CID, and
will be required to provide a statement describing their efforts and the resulting
response from landowners and tenants.
a. Special Assessment CID Petition. After receiving a Special Assessment CID
petition, the City Commission must adopt a resolution giving public notice of a
hearing on the creation and financing of the proposed CID. The City must publish
the resolution at least once per week for two consecutive weeks and mail the
resolution to all landowners within the proposed CID at least ten days before the
hearing. The second publication must be at least seven days before the hearing.
After the public hearing, the City Commission may make findings as to the
nature, advisability, and estimated cost of the project, the boundaries of the
district, and the amount and method of assessment. After making these findings, 40
6
the City Commission may vote to create the CID, authorize the project, and levy
assessments upon the CID's property owners.
b. Sales Tax CID Petition. After receiving a Sales Tax CID petition, the City
Commission must adopt a resolution giving public notice of a hearing on the
creation and financing of the proposed CID. The City must publish the resolution
at least once per week for two consecutive weeks and mail the resolution to all
landowners within the proposed CID at least ten days before the hearing. The
applicant must make its best efforts to mail the resolution of public hearing to the
tenants of landowners within the proposed CID. The second publication must be
at least seven days before the hearing. After the public hearing, the City
Commission may make findings as to the nature, advisability, and estimated cost
of the project, the boundaries of the district, and the amount and method of
assessment. After making these findings, the City Commission may vote to
create the CID, authorize the project, and establish the sales tax and special
assessment, if applicable.
VIII. ACTIONS UPON APPROVAL
If the City Commission establishes the CID by approving the project, funding method and
related development agreement, the City shall create a separate fund for the CID. The proceeds
from the sale of bonds, CID sales taxes, and any other moneys appropriated by the City shall be
credited to such fund and the fund shall be used solely to pay the costs of the projects Any
money remaining in the fund after all project costs have been paid may be spent by the
municipality in the same manner as local sales tax receipts.
•
•
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CUSTOMER COPY Miscellaneous Receipt
City Of City of Salina Receipt
PO Box 736 Number 13130
Salina, KS 67402-0736
(785)309-5735 Fax: (785)309-5738 Receipt Date.
Salina 08/14/17
Received from:
DELUX INN
TIME:14:07
CLERK:StraitA
Charge Code Org - Object - Proj Comment Description Amount
CID APP-1949 N 9TH $2,500.00
10006 4905 Other Miscellaneous $2,500.00
000 1000 Cash $2,500.00
PAID BY: DELUX INN
PAYMENT METH: CHECK
5159
AMT TENDERED: $2,500.00
AMT APPLIED: $2,500.00
CHANGE: $0.00
EXHIBIT D
FORM OF CERTIFICATE OF FULL COMPLETION
Pursuant to Section 2.08 of the Agreement, the City shall, within twenty (20) days following
delivery of this Certificate, carry out such inspections as it deems necessary to verify to its
reasonable satisfaction the accuracy of the certifications contained in this Certificate.
CERTIFICATE OF FULL COMPLETION
The undersigned, HPSA LLC, a Kansas limited liability company (the "Developer"),
pursuant to that certain Community Improvement District Development Agreement dated as of
February 12, 2018, between the City of Salina, Kansas (the "City") and the Developer (the
"Agreement"),hereby certifies to the City as follows:
1. That as of O 9 // , 20 /9 , the construction of the [Best Western
Project or Comfort Inn and Suites Project] has been completed in accordance with the
Agreement.
2. The work related to the [Best Western Project or Comfort Inn and Suites
Project]has been completed in a workmanlike manner and in accordance with the Plans.
3. Lien waivers for applicable portions of the Project have been obtained, or, to the
extent that a good faith dispute exists with respect to the payment of any construction cost with
respect to the Project, Developer has provided the City with a bond or other security reasonably
acceptable to the City.
4. This Certificate of Full Completion is being issued by the Developer to the City in
accordance with the Agreement to evidence the Developer's satisfaction of all obligations and
covenants with respect to the construction and full completion of the [Best Western Project or
Comfort Inn and Suites Project].
5. The City's acceptance of this Certificate shall evidence the satisfaction of the
Developer's obligations and covenants to construct and complete the [Best Western Project or
Comfort Inn and Suites Project].
6. Terms not otherwise defined herein shall have the meaning ascribed to such terms
in the Agreement.
[SIGNATURE PAGE FOLLOWS]
I
4
IN WITNESS WHEREOF, the undersigned has hereunto set his/her hand this \S day
of pA(X,fon , 20 Zl .
HPSA LLC
By: // !//4/
Name: ,Stsk ,6j A /9
Title: Q G.",V ....i.___
STATE OF KANSAS, COUNTY OF 5cx.k. Cle, , SS:
This instrument was acknowledged before me on V\O (C A 1`8 , 20t,1 ,by
1-tASU club 4kot , as oWnef! of HPSA LLC, a
Kansas limited liability company.
all Notary PublicALLISON-StateHAMM of Kanotary Public
My Appt.Expires ,o.a s..zsas
ACCEPTED:
CITY OF SALINA,KANSAS
By:
Michael D. Schrage, City Manager
28
EXHIBIT E
FORM OF CERTIFICATE OF EXPENDITURES
Pursuant to Section 3.02 of the Agreement, the City shall, within thirty (30) days following
delivery of this Certificate, review the information contained herein, together with all supporting
documentation, to determine whether the costs and expenses are eligible for reimbursement from
the CID Sales Tax Fund.
The undersigned, HPSA LLC, a Kansas limited liability company (the "Developer"),
pursuant to that certain Community Improvement District Development Agreement dated as of
February 12, 2018, between the City of Salina, Kansas (the "City") and the Developer (the
"Agreement"),hereby certifies to the City as follows:
1. The Developer has incurred and paid"costs," as defined in the Act, in the amount
of ($_ 'p 0y7 yr ), in connection with the
construction of the[Best Western Project or Comfort Inn and Suites Project].
2. These costs and expenses are less than or equal to the CID Cap set forth in the
Agreement.
3. The Developer is not in default or breach of any term or condition of the
Agreement, and no event has occurred and no condition exists which constitutes a Developer
Event of Default under the Agreement.
4. All of the Developer's representations set forth in the Agreement remain true and
correct as of the date of this Certificate.
5. The Developer will submit to the City upon request, such bills, contracts,
invoices, lien waivers, and other documentation as the City shall reasonably require for purposes
of reviewing and approving this Certificate of Expenditures and verifying that the costs and
expenses have been paid and qualify as CID Improvement Costs.
6. Terms not otherwise defined herein shall have the meaning ascribed to such terms
in the Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned has hereunto set his/her hand this I S day
of rnarCn , 2021 .
HPSA LLC
By: 4e
Name: S,� /; �rrc►.f
Title: a L✓w/C Q_
STATE OF KANSAS, COUNTY OF 5al;ne. , SS:
This instrument was acknowledged before me on (\(\aTcV\ kfa , 201. l , by
\-kaSu ()ha,4-ka , as UIJ‘ne of HPSA LLC, a
Kansas limited liability company.
ALLISON HAMM
otary Public
Notary Public-State of Kansas
My Appt.Expires 10— _2
ACCEPTED:
CITY OF SALINA,KANSAS
By:
Michael D. Schrage, City Manager
30