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HomeMy WebLinkAbout2019.02.05_OPWA AgendaPUBLIC NOTICE OF THE MEETING OF THE OWASSO PUBLIC WORKS AUTHORITY Council Chambers, Old Central Building 109 North Birch, Owasso, OK 74055 Regular Meeting Tuesday, February 5, 2019 - 6:30 pm 1. Call to Order Chair Chris Kelley 2. Roll Call RFCEIVEp FFB 0 12019 City C /erk,s Office S 3. Consideration and appropriate action relating to a request for approval of the Consent Agenda. (All matters listed under "Consent" are considered by the Trustees to be routine and will be enacted by one motion. Any Trustee may, however, remove an item from the Consent Agenda by request. A motion to adopt the Consent Agenda is non - debatable.) A. Approve minutes of the January 15, 2019 Regular Meeting B. Approve claims 4. Consideration and appropriate action relating to items removed from the Consent Agenda 5. Consideration and appropriate action relating to amendments to the Development and Financing Agreement and Covenant Agreement with BROGRAN, LLC for Tax Increment Financing, Owasso Redbud District, Increment District No. 1, Development Project Assistance, for the project known as Mowery Lofts and Retail Chelsea Levo Feary Staff recommends Trustee approval of Amendment No. 1 to the Brogran, LLC Redbud District Development and Finance Agreement and Amendment No. 1 to the Covenant Agreement for the Mowery Lofts and Retail project. 6. Report from OPWA Manager 7. Report from OPWA Attorney 8. Official Notices to Authority (documents for acknowledgment or information only, no discussion or action will be taken) Payroll Payment Reports — Pay Period Ending Date 01 /19/2019 9. New Business (New Business is any item of business which could not have been foreseen at the time of posting of the agenda) 10. Adjournment Notice of Public Meeting filed in the office of the City Clerk on December 14, 2018, and the Agenda posted at City Hall, 200 S Main St, at 6:00 pm on Friday, February 1, 2019. %II _61, 4G1viVV� JuG Juliann M. Stev ns, City Clerk The City of Owasso encourages citizen participation. ToVequest an accommodation due to a disability, contact the City Clerk at least 48 hours prior to the scheduled meeting by phone 918 - 376 -1502 or by email to istevens@citvofowosso.com OWASSO PUBLIC WORKS AUTHORITY MINUTES OF REGULAR MEETING Tuesday, January 15, 2019 The Owasso Public Works Authority (OPWA) met in regular session on Tuesday, January 15, 2019, in the Council Chambers at Old Central, 109 North Birch, Owasso, Oklahoma per the Notice of Public Meeting filed December 14, 2018, and the Agenda filed in the office of the City Clerk and posted at City Hall, 200 South Main Street, at 6:00 pm on Friday, January 11, 2019. 1. Call to Order Chair Chris Kelley called the meeting to order at 7:16pm. 2. Roll Call Present Absent Chair- Chris Kelley none Vice- Chair - Bill Bush Trustee - Doug Bonebrake Trustee - Lyndell Dunn Trustee - Kelly Lewis A quorum was declared present. Staff: Authority Manager - Warren Lehr Authority Attorney - Julie Lombardi 3. Consideration and appropriate action relating to a request for approval of the Consent Agenda. (All matters listed under "Consent' are considered by the Authority to be routine and will be enacted by one motion. Any Trustee may, however, remove an item from the Consent Agenda by request. A motion to adopt the Consent Agenda is non - debatable.) A. Approve minutes • December 18, 2018, Regular Meeting • January 8, 2019, Regular Meeting B. Approve claims Mr. Bush moved, seconded by Mr. Dunn to approve the Consent Agenda with claims for January 15, 2019, totaling $545,986.82. YEA: Bonebrake, Bush, Dunn, Lewis, Kelley NAY: None Motion carried: 5 -0 4. Consideration and appropriate action relating to items removed from the Consent Agenda None 5. Report from OPWA Manager None 6. Report from OPWA Attorney None 7. Official Notices to Council (documents for acknowledgment or information only, no discussion or action will be taken) The Chair acknowledged receipt of the following: • Payroll Payment Reports - Pay Period Ending Date 12/22/18, and 1/5/19 • Monthly Budget Status Report- December 2018 Owasso Public Works Authority January 15, 2019 Page 2 8. New Business (New Business is any item of business which could not have been foreseen at the time of posting of the agenda) None 9. Adjournment Mr. Bush moved, seconded by Mr. Dunn to adjourn the meeting. YEA: Bonebrake, Bush, Dunn, Lewis, Kelley NAY: None Motion carried: 5 -0 and the meeting adjourned at 7:18 pm. Chris Kelley, Chair Juliann M. Stevens, Authority Clerk Claims List - 2/5/2019 Fund Vendor Name Payable Description Payment Amount 61 OPWA CP &Y INC DESIGN SERVICES $60,372.77 2017 WWTP UPGRADE -Total $60,372.77 KELLOGG ENGINEERING, INC ENGINEERING AGREEMENT- C $36,745.00 COFFEE CREEK LIFT STATION - Total $36,745.00 AMERICAN MUNICIPAL SERVICES CORP. COLLECTION SERVICES $151.28 OPWA -Total $151.28 AEP /PSO ELECTRIC USE $1,677.33 AT &T CONSOLIDATED PHONE $156.86 AT &T LONG DISTANCE PHONE $5.86 CITY OF OWASSO ADMIN OVERHEAD $25,000.00 CLEAN UNIFORM COMPANY UNIFORM SERVICE $82.23 JPMORGAN CHASE BANK FOSTERS - REPAIR $737.17 JPMORGAN CHASE BANK OFFICE DEPOT- SUPPLIES $160.10 JPMORGAN CHASE BANK PAPA JOHN'S #2608 -MAT $212.00 JPMORGAN CHASE BANK RED BUD SVC -AIR FILTE $39.43 JPMORGAN CHASE BANK SAMS- SUPPLIES $240.54 JPMORGAN CHASE BANK USCELLULAR -CELL PHONE $498.99 JPMORGAN CHASE BANK WALMART- SUPPLIES $45.49 STANDLEY SYSTEMS, LLC COPIER MAINTENANCE $319.71 AGREEM UNITED STATES CELLULAR PW CELL PHONES $36.71 CORPORATION OPWAADMINISTRATION -Total $29,212.42 BANCFIRST 800469017109B $55,960.40 BANCFIRST 800470015/09C $23,361.34 BANCFIRST 8004710131SANTA FE $14,375.74 BANCFIRST 800472011 /RANCH CRK $25,377.32 OKLAHOMA WATER RESOURCES BOARD ORF -01- 0002- CW12001A $26,067.25 OKLAHOMA WATER RESOURCES BOARD ORF -02- 0017- CW /2002A $22,613.50 OPWA DEBT SERVICE -Total $167,755.55 AEP /PSO ELECTRIC USE $177.10 AT &T CONSOLIDATED PHONE $12.86 CLEAN UNIFORM COMPANY UNIFORM SERVICE $13.83 JPMORGAN CHASE BANK ATWOODS -BOOTS $119.99 JPMORGAN CHASE BANK ATWOODS- COFFEE MAKER $99.99 JPMORGAN CHASE BANK ATWOODS- UNIFORM $149.98 JPMORGAN CHASE BANK LOWES- REPAIR $65.79 JPMORGAN CHASE BANK RED WING -BOOTS $175.00 JPMORGAN CHASE BANK WASTE MGMT -REC TIP FE $1,855.00 TERMINIX ANNUAL PEST CONTROL $61.00 RECYCLE CENTER -Total $2,730.54 1 Claims List - 2/5/2019 Fund Vendor Name Payable Description Payment Amount 61 OPWA AT &T CONSOLIDATED PHONE $12.86 CLEAN UNIFORM COMPANY UNIFORM SERVICE $76.74 JPMORGAN CHASE BANK ACADEMY- UNIFORM $74.99 JPMORGAN CHASE BANK AIR SYS -AIR COMPRESSO $2,218.00 JPMORGAN CHASE BANK AMERIFLEX -HOSE $309.40 JPMORGAN CHASE BANK AMERIFLEX -HOSE REELS $650.00 JPMORGAN CHASE BANK ATWOODS- UNIFORM $99.99 JPMORGAN CHASE BANK AWTI 3RD EYE - CABLES $21126 JPMORGAN CHASE BANK BUMP28UMP- DEGREASER $12.99 JPMORGAN CHASE BANK BUMP2BUMP- GLOVES $18.99 JPMORGAN CHASE BANK BUMP2BUMP -HOSE $5.10 JPMORGAN CHASE BANK BUMP2BUMP -PARTS CLEAN $51.46 JPMORGAN CHASE BANK BUMP28UMP- SUPPLIES $172.29 JPMORGAN CHASE BANK BUMP2BUMP -TAPE $4.08 JPMORGAN CHASE BANK BUMP28UMP- WRENCH $8.49 JPMORGAN CHASE BANK FASTENAL -EQUIP $13.47 JPMORGAN CHASE BANK GRAINGER -PPE $32.54 JPMORGAN CHASE BANK LOWES -AIR LINES $207.76 JPMORGAN CHASE BANK LOWES - MATERIALS $83.66 JPMORGAN CHASE BANK LOWES- REFUND ($17.01) JPMORGAN CHASE BANK OREILLY -HOSE $6.80 JPMORGAN CHASE BANK SAMS- SUPPLIES $17.48 JPMORGAN CHASE BANK SEMI TRUCK -WASH $290.00 JPMORGAN CHASE BANK WALMART -PPE $10.35 JPMORGAN CHASE BANK WASTE MGMT -REF TIP FE $7,527.68 SPOK, INC. PAGER USE $71.28 UNITED STATES CELLULAR PW CELL PHONES $38.50 CORPORATION REFUSE COLLECTIONS -Total $12,209.17 FELKINS ENTERPRISES, LLC DOOR HANGERS $760.00 JPMORGAN CHASE BANK DELL - MONITOR $209.99 SUMNERONE INC COPIER FEE $751.37 TECHNICAL PROGRAMMING SERVICES BILLING SERVICES $1,549.92 INC TODD C. KIMBALL METER READER $328.50 TYRONE EUGENE DINKINS METER READER $1,280.25 UTILITY BILLING -Total $4,880.03 AEP IPSO ELECTRIC USE $6,233.02 CLEAN UNIFORM COMPANY UNIFORM SERVICE $76.20 JAMES A. OZBUN REPAIR $1,137.35 JPMORGAN CHASE BANK AMAZON -DRILL PRESS $277.05 JPMORGAN CHASE BANK AMAZON- RELAYS $58.84 2 Claims List - 2/5/2019 Fund Vendor Name Payable Description Payment Amount 61 OPWA JPMORGAN CHASE BANK AMAZON -SAW $290.00 JPMORGAN CHASE BANK AMAZON - UTILITY VISE $99.99 JPMORGAN CHASE BANK CORE &MAIN - MATERIALS $504.64 JPMORGAN CHASE BANK CORE &MAIN - SUPPLIES $542.44 JPMORGAN CHASE BANK CORE &MAIN -TOOLS $164.00 JPMORGAN CHASE BANK GRAINGER -PPE $32.54 JPMORGAN CHASE BANK HOME DEPOT - BATTERIES $62.88 JPMORGAN CHASE BANK IBT -SEAL $33.17 JPMORGAN CHASE BANK INTERSTATE -TOOLS $27.99 JPMORGAN CHASE BANK LOWES -BOLTS $7.59 JPMORGAN CHASE BANK LOWES- SUPPLIES $19.98 JPMORGAN CHASE BANK OREILLY- BATTERY $279.91 JPMORGAN CHASE BANK OREILLY- MATERIALS $25.98 JPMORGAN CHASE BANK OREILLY- SUPPLIES $4.22 JPMORGAN CHASE BANK RED WING -BOOTS $143.99 JPMORGAN CHASE BANK UPS - POSTAGE $213.45 JPMORGAN CHASE BANK WALMART -PPE $10.33 SPOK, INC. PAGER USE $45.05 WASHINGTON CO RURAL WATER WATER $21.79 DISTRICT WASTEWATER COLLECTIONS -Total $10,312.40 AEP IPSO ELECTRIC USE $32,198.10 AT &T CONSOLIDATED PHONE $77.18 AT &T LONG DISTANCE PHONE $1.82 BRIAN CROCKETT TUITION REIMBURSEMENT- F $555.00 CLEAN UNIFORM COMPANY UNIFORM SERVICE $209.78 JPMORGAN CHASE BANK BEST BUY - EQUIPMENT $199.99 JPMORGAN CHASE BANK CINTAS- SERVICE $96.66 JPMORGAN CHASE BANK COMM POWER SOL- REPAIR $57.50 JPMORGAN CHASE BANK CORE &MAIN- SUPPLIES $123.14 JPMORGAN CHASE BANK EVOQUA -PARTS $1,677.34 JPMORGAN CHASE BANK FORT BEND - POLYMER $2,970.00 JPMORGAN CHASE BANK GRAINGER - NOZZLES $177.28 JPMORGAN CHASE BANK GRAINGER -PPE $32.54 JPMORGAN CHASE BANK GRAINGER- REAGENT $216.57 JPMORGAN CHASE BANK HACH- REAGENT $1,149.28 JPMORGAN CHASE BANK HACH- SAMPLER $6,086.85 JPMORGAN CHASE BANK HACH- SUPPLIES $183.87 JPMORGAN CHASE BANK HACH -WIMS SUPPORT $1,050.00 JPMORGAN CHASE BANK HOME DEPOT - SUPPLIES $33.63 JPMORGAN CHASE BANK HUTHER &ASSOC- REFUND ($100.00) JPMORGAN CHASE BANK HUTHER &ASSOC- TESTING $1,115.00 K Claims List - 2/5/2019 Fund Vendor Name Payable Description Payment Amount 61 OPWA JPMORGAN CHASE BANK LOWES -PARTS $203.22 JPMORGAN CHASE BANK LOWES - SUPPLIES $164.19 JPMORGAN CHASE BANK NCL OF WISC- REAGENT $33.37 JPMORGAN CHASE BANK NCL OF WISC- SUPPLIES $62.87 JPMORGAN CHASE BANK NEWARK- EQUIPMENT $135.19 JPMORGAN CHASE BANK OFFICE DEPOT - SUPPLIES $44.54 JPMORGAN CHASE BANK WALMART -PPE $10.33 JPMORGAN CHASE BANK WALMART -WATER $28.20 JPMORGAN CHASE BANK WASTE MGMT- SLUDGE REM $15,831.23 SCHUERMANN ENTERPRISES, INC SCADA UPDATE $4,831.20 SPOK, INC. PAGER USE $17.82 WASTEWATER TREATMENT -Total WATER -Total $69,473.69 AEP IPSO ELECTRIC USE $439.39 CITY OF TULSA DEPT OF FINANCE LAB SERVICES $500.00 CLEAN UNIFORM COMPANY UNIFORM SERVICE $222.16 JET TRUCKING, LLC DIRT $45.00 JPMORGAN CHASE BANK ACCURATE ENV - TESTING $930.00 JPMORGAN CHASE BANK ATWOODS -BOOTS $139.99 JPMORGAN CHASE BANK BROWN FARMS -SOD $180.00 JPMORGAN CHASE BANK CORE &MAIN- SUPPLIES $1,006.76 JPMORGAN CHASE BANK GRAINGER -PPE $32.54 JPMORGAN CHASE BANK GREENHILL- GRAVEL $816.92 JPMORGAN CHASE BANK HARD HAT SAFETY -JACKE $35.00 JPMORGAN CHASE BANK HARD HAT SAFETY -UNIFO $511.00 JPMORGAN CHASE BANK LOWES- GRAVEL $20.08 JPMORGAN CHASE BANK LOWES- SUPPLIES $39.92 JPMORGAN CHASE BANK WALMART -PPE $10.33 SPOK, INC. PAGER USE $96.79 H WATER -Total $5,025.88 OPWA -Total $398,868.73 67 OPWA SALES TAX BANCFIRST 80065001212016 NOTE BANCFIRST 800730038/2018 NOTE OPWA STF DEBT SERVICE -Total $132,503.08 $93,700.00 $226,203.08 OPWA SALES TAX -Total $226,203.08 69 OPWA SALES TAX SUB ACCOUN MORROW PLACE INVESTMENT GROUP DEVELOPMENT AGREEMENT LLC OPWASTSUB - DEBTSERV -Total $4,845.06 $4,845.06 OPWA SALES TAX SUB ACCOUN - Total $4,845.06 OPWA Grand Total $629,916.87 H �V REAL Pwpia • REAL Chsndar •REAL Community TO: The Honorable Chair and Trustees Owasso Public Works Authority FROM: Chelsea Levo Feary, CEcD Economic Development Director SUBJECT: Brogran, LLC Redbud District Development and Financing Agreement Amended DATE: February 1, 2019 BACKGROUND: On September 19, 2017, the Owasso Public Works Authority (OPWA) approved an application from Brogran, LLC for an Owasso Redbud District and Increment District No. 1, Development and Financing Agreement for the Mowery Lofts and Retail project located at West 15, Avenue and South Main Street. The Construction Schedule in Section 5.05 of the Agreement states the project shall be completed by December 31, 2018. The project is nearing completion; however, the property owner was unable to meet the Agreement deadline. Brogran, LLC has submitted a request for an extension of the Agreement until May 30, 2019, and submitted a timeline of completion for the remaining construction items. The extension of the Agreement deadline will also require extending the Minimum Ad Valorem Payment Covenant in Section 4.03 from January 1, 2019 to January 1, 2020 since the assessed value of the land will not be affected until following the construction of the project. RECOMMENDATION: Staff recommends Trustee approval of Amendment No. 1 to the Brogran, LLC Redbud District Development and Finance Agreement and Amendment No. 1 to the Covenant Agreement for the Mowery Lofts and Retail project. ATTACHMENTS: Amendment No. 1 to the Development and Financing Agreement Amendment No. 1 to the Covenant Agreement Construction Schedule Update and Request for Extension from Brogran, LLC AMENDMENT NO. 1 AMENDMENT NO. 1 TO THE DEVELOPMENT AND FINANCING AGREEMENT ( "Agreement "), made and entered into on the 17th day of September, 2017, by and between the Owasso Public Works Authority, an Oklahoma public trust ( "Authority "), and Brogran, LLC ( "Developer "). SECTION 4.03 Minimum Ad Valorem Payment Covenant A covenant subjecting the Project Site to a minimum annual ad valorem payment obligation in the amount of $53,712.00, shall be imposed and shall be filed in the land records of the County Clerk of Tulsa County. Such payment obligation shall begin on January 1, 2020. The minimum ad valorem payment covenant shall continue in effect for the duration of the Increment District. Should the amount billed to the Developer by the Tulsa County Assessor be less than $53,712.00, the additional amount shall be billed to the Developer by the Authority. The Developer shall provide payment to the Authority within 30 days of receipt of the bill from the Authority. SECTION 5.05 Construction Schedule. Not later than May 30, 2019, the Developer shall have completed the construction of the Project. If it appears the Project cannot be completed by such date, the Developer shall promptly report to the Authority that the Project will not be completed within the time provided for herein and shall provide an updated schedule regarding the time required for the completion of the Project. All revisions to the original construction schedule shall be subject to approval by the Authority, which approval shall not be unreasonably withheld. SECTION 8.01 Authority's Obligations Limited. Nothing in this Agreement is intended to require or obligate nor shall anything herein be interpreted to require or obligate the Authority to provide, apply or make any payment or advance from any revenue or funds coming into its hands other than the funds derived from Increment District No.I and in the manner provided in this Agreement. IN WITNESS WHEREOF, the parties have executed this Amendment, the 5'h day of February 2019. OWASSO PUBLIC WORKS AUTHORITY (SEAL) ATTEST: Chris Kelley, Chair Juliann M. Stevens, Authority Secretary BROGRAN, LLC By: Steve and /or Renee' Mowery sd The City Wit out Limits. TO: The Owasso Public Works Authority City of Owasso 1�. Oey SFP T REST S /JQ49� FF FROM: Tax Increment Finance District No. 1 Application Review Committee Warren Lehr, City Manager Sherry Bishop, Assistant City Manager /City Clerk Chris Garrett, Assistant City Manager Julie Lombardi, City Attorney Julie Stevens, Deputy City Clerk Linda Jones, Director of Finance Chelsea Feary, Director of Economic Development Bronce Stephenson, Director of Community Development SUBJECT: Owasso Redbud District and Increment District No. 1 Development and Financing Agreement DATE: September 15, 2017 BACKGROUND: In December 2016, the City Council (OPWA) created the Tax Increment Financing (TIF) District in the downtown Owasso Redbud District area. On April 4, 2017, the Council adopted a Policy Guide for the processing of TIF Assistance in Development Financing applications. The Policy Guide includes the process for application and approval of Development Project Assistance. A developer seeking assistance submits an application to the Application Review Committee. The Committee reviews the application for compatibility with the Project Plan and the Downtown Overlay District Plan, evaluates the qualifications of the applicant, and recommends appropriate performance parameters and requirements. Upon recommendation by the Committee, the development agreement is presented to the OPWA for consideration and approval. An application has been received from BROGRAN, LCC for development assistance on the project known as the Mowery Lofts & Retail at 1st & Main Street. The application and supporting materials was sent to the Center for Economic Development Law (CEDL), the firm that has represented the City of Owasso and guided the creation of the Tax Increment District. CEDL returned the attached contract for consideration. The project appears to meet the criteria set forth in the adopted TIF Project Plan and also to meet the requirements set forth in the adopted Owasso Redbud District and Increment District No. 1 Policy Guide. As established by the Project Plan and Policy Guide, the applicant would be eligible to receive reimbursement of 12 %, of Hard Construction Costs. The application anticipates construction costs of $4,000,000.00, which would result in a 12% reimbursement of $480,000.00 to BROGRAN, LLC. The contract further outlines obligations of the City and the developer as required in approved TIF documents. RECOMMENDATION: On September 12, 2017, the Review Committee met and voted unanimously to recommend approval to the OPWA, finding that the project is eligible to receive TIF assistance. ATTACHMENT: Development and Financing Agreement with BROGRAN, LLC DEVELOPMENT AND FINANCING AGREEMENT BY AND BETWEEN THE OWASSO PUBLIC WORKS AUTHORITY AND BROGRAN, LLC THIS DE +LOPMENT AND FINANCING AGREEMENT ( "Agreement') is made on or as of this day of, 2017, by and between the Owasso Public Works Authority, an Oklahoma puf�li trust (" Authority"), and Brogran, LLC ( "Developer "). WITNESSETH: WHEREAS, the Authority was created by a Trust Indenture, dated as of the I Oh day of January, 1973, as a public trust for the use and benefit of the City of Owasso, Oklahoma ( "City "), pursuant to the provisions of 60 O.S. §176, et seq., as amended and supplemented, and other applicable statutes of the State of Oklahoma; and WHEREAS, the City, acting through its City Council, has adopted a resolution accepting the beneficial interest of the Authority on behalf of the City; and WHEREAS, the purposes of the Authority are, in part, to promote development within and without the territorial limits of the City and to help provide facilities and activities which will benefit and strengthen the economy of the City and the State of Oklahoma; and WHEREAS, in order to accomplish its designated purposes, the Authority is empowered to provide funds for the costs of acquiring, constructing, installing, equipping, repairing, remodeling, improving, extending, enlarging, maintaining, operating, administering, and disposing of or otherwise dealing with any properties and facilities; and WHEREAS, the City has approved the Owasso Redbud District Project Plan ( "Project Plan") by Ordinance 1093, dated December 20, 2016, creating Increment District No. 1, the City of Owasso an ad valorem and sales tax increment district ("Increment District'), pursuant to the Oklahoma Local Development Act, 62 O.S. §850, et seq.; and WHEREAS, the Project Plan envisions the development of the area surrounding Main Street, known as the Redbud District, into a unique place to live, work, shop, and play; and WHEREAS, the Project Plan authorizes the Authority to cant' out implementation actions in accordance with development agreements and financing approvals; and WHEREAS, the Developer, consistent with the Project Plan, proposes a mixed -use development, including substantial ground floor commercial retail, 12 residential units, and accompanying parking spaces ( "Project'); and WHEREAS, the Developer owns real property, described and depicted on Exhibit 1, attached hereto ("Project Site "), which lies within the Project Area as defined in the Project Plan, and proposes to construct and develop the Project on the Project Site; and WHEREAS, the development objectives of the City and the Authority for the enhancement of the Redbud District will be advanced by the Project; and WHEREAS, the parties wish to set forth the manner in which the Project is to be undertaken and implemented; and WHEREAS, the parties deem it appropriate to approve and execute this Agreement, which provides for the implementation of the Project consistent with the Project Plan, and the Authority determines that approval is in the best interests of the City, and the health, safety, and welfare of the City and its residents. IN CONSIDERATION of the mutual covenants and agreements contained herein, the Authority and the Developer hereby agree as follows: ARTICLE I SUBJECT OF AGREEMENT SECTION 1.01 Scope of Agreement A. The Developer hereby agrees, subject to the terms and conditions hereinafter provided, to cause the design, construction, and completion, in the time period hereinafter described, of the Project on the Project Site substantially in accordance with plans to be approved consistent with this Agreement; and B. The Authority hereby agrees, subject to the terms and conditions hereinafter provided, to provide to the Developer $480,000.00 or as much thereof as is actually received by the Authority of the ad valorem and sales tax increment revenues apportioned under the Project Plan, for the development of the Project in the manner provided in this Agreement, to be utilized exclusively for the payment of Project Costs as hereinafter described. SECTION 1.01 ScoRe of Development. The Project represents private investment of at least $4,000,000.00. The Project is a mixed -use development in the heart of the Redbud District. The Project will serve as an attraction for visitors to the area and new residents and stimulate additional private development in the area, providing a public benefit to the City. SECTION 1.02 Relationship of the Parties. The implementation of this Agreement is a complex process which will require the mutual agreement of the parties and their timely actions on matters appropriate or necessary to implementation. The parties further agree to consider and enter into such amendments as are reasonably necessary and appropriate to clarify, refine, or reinforce the commitments made herein or to adjust or modify them in light of changes in market conditions. The parties hereto shall use their best efforts in good faith to perform and to assist others in performing their respective obligations in accordance with this Agreement. This Agreement specifically does not create any partnership or joint venture between the parties hereto, or render any party liable for any of the debts or obligations of any other party. `a ARTICLE II AUTHORITY OBLIGATIONS SECTION 2.01 Project Plan. The Authority shall support the Project in accordance with the Project Plan and this Agreement. SECTION 2.02 Certificate of Completion. Within 30 days after the Developer has completed the construction of the Project, the Authority shall furnish to the Developer a Certificate of Completion, certifying that the Developer has met its construction and development obligations contained in this Agreement. SECTION 2.03 Public Assistance. As authorized by the Project Plan and subject to the terms, conditions, and limitations contained herein, the Authority shall provide assistance in development financing to the Developer in the amount of $480,000.00. Such assistance is to support construction of the Project. ARTICLE III DEVELOPER OBLIGATIONS SECTION 3.01 Design Documents. The Developer shall provide to the City the Development Plans and Specifications for the Project no later than the time for submission of such plans for building permits. The Community Development Department shall review the plans to confirm that the project meets the City's development objectives as reflected in this Agreement and complies with the Project description. SECTION 3.02 Development Obligations. Developer shall cause the Project to be constructed on the Project Site, at no expense to the City or the Authority. The Project must be constructed in accordance with the Development Plans and Specifications approved by the City. The Developer shall secure or cause the appropriate parties to secure all governmental approvals in connection with (a) the construction, completion, and occupancy of the Project; and (b) the development and operation of the Project, including, without limitation, zoning, building code, and environmental laws. The Project shall include the following: A. Building A, consisting of approximately 14,000 square feet, with commercial retail space on the first floor and 8 residential units on the second floor; B. Building B, consisting of approximately 12,000 square feet, with commercial retail space on the first floor and 4 residential units on the second floor; C. Dedicating parking for the residential units; and D. Public parking to serve the commercial retail space along West 181 Street and Main Street. SECTION 3.03 Design Documents. Consistent with Section 5.02 of this Agreement, the Developer shall provide to the City Development Plans and Specifications for the Project. Such Development Plans and Specifications shall be simultaneously submitted to the Community Development Department for review and comment. ASSISTANCE IN DEVELOPMENT FINANCING SECTION 4.01 Generally. The Project Plan authorizes Project Costs, including assistance in development financing. Such assistance is to support the Project, including the construction of a public improvements benefitting the Project. SECTION 4.02 Payment Obligations. Beginning on the first day of the second quarter of year following completion of the Project, as indicated by issuance of the Certificate of Completion, the Authority shall provide the Developer assistance in development financing in the form of direct annual payments to the Developer of 90% of collected and apportioned ad valorem and sales tax increment revenues generated by the Project, net of administrative costs and expenses authorized by the Project Plan. Such payment obligation shall be payable solely from apportioned tax increment revenues collected from the Increment District. Such payment obligation is conditioned upon the Developer's payment of taxes on the Project Site and upon an increase in taxable value of the Project Site. Such payment obligation shall not exceed $480,000.00. The payments of assistance in development financing shall continue until the occurrence of the first of the following events: (A) $480,000.00 is paid, (B) December 31, 2034, or (C) the Increment District ends and all apportioned increment has been expended. SECTION 4.03 Minimum Ad Valorem Payment Covenant. A covenant subjecting the Project Site to a minimum annual ad valorem payment obligation in the amount of $53,712.00, shall be imposed and shall be filed in the land records of the County Clerk of Tulsa County. Such payment obligation shall begin on January 1, 2019. The minimum ad valorem payment covenant shall continue in effect for the duration of the Increment District. Should the amount billed to the Developer by the Tulsa County Assessor be less than $53,712.00, the additional amount shall be billed to the Developer by the Authority. The Developer shall provide payment to the Authority within 30 days of receipt of the bill from the Authority. SECTION 4.04 Additional Conditions and Terms of Assistance in Development Financine. Notwithstanding anything to the contrary contained herein, under no circumstances shall the Developer be entitled to any payments of assistance in development financing if the Project has not been completed or if the Developer is in default under this Agreement. All payments are subject to availability of increment. SECTION 4.05 Limitations on Assistance in Development Financing Obligations. Notwithstanding anything to the contrary contained herein, in no event shall the total amount of assistance in development financing provided to the Developer under this Agreement exceed $480,000.00. SECTION 4.06 Sales Tax Increment and Reuortine. The sales tax increment is 2% of the gross proceeds or gross receipts derived from commercial retail transactions from new businesses in the Increment District that are taxable under the sales tax code of Oklahoma (including any and all amendments thereto and revisions thereof). The Developer shall provide to the Authority a quarterly status report of retail sales activities within the Project. Such reports shall be made as long as the Increment District remains in effect. Such records shall be made available for review or audit at the offices of the Developer upon written request by the Authority at a reasonable time after such request. The Developer shall use reasonable efforts to cause all leases in the Project to include provisions which waive, for the benefit of the Developer, the Authority, and the City, any and all rights of confidentiality which the lessee may have with respect to sales taxes generated from its business in the Project, and agree that the City and the Authority shall have the right to inspect such books and records of the lessee to determine or confirm the total amount of sales taxes generated from the lessee's business in the Project. The Authority and the City shall use reasonable efforts to maintain the confidentiality of any sales tax information, subject to any laws that may require disclosure thereof. SECTION 4.07 Adjustment or Repayment of Assistance. In the event the Oklahoma Tax Commission determines, for any reason, that any sales taxes were erroneously paid to the City from the sales in the Project and City is required to repay any portion of such taxes to the Oklahoma Tax Commission, the amount of such repayment shall be deducted from the calculation of the increment and therefore from the payment of assistance in development financing due for the year, and the payment to the Developer shall be adjusted accordingly. In the event that such a determination is made at a time when no further payments are due to the Developer under this Agreement, the Developer agrees to reimburse the Authority the amount of such repayment to the Oklahoma Tax Commission. The foregoing shall in no way waive or otherwise affect the right of Developer or any other business in the project to contest or protest any such determination by the Oklahoma Tax Commission. SECTION 4.08 Transfers. Should the Developer desire to transfer any interests in this Agreement or the Project Site to another development entity which is necessary for financing or development purposes, and the Authority states its general willingness to consider and approve appropriate transfers required for financing purposes pursuant to a request and documentation by the Developer. ARTICLE V CONSTRUCTION OF PROJECT SECTION 5.01 Scope of Proiect. The Project Site shall be developed within the general requirements established by the zoning and building codes applicable to the Project Site by the Code of the City ('`Code ") and related laws governing municipal planning and zoning, including but not limited to the Downtown Overlay District Plan. The Developer shall be responsible for the construction, renovation, improvement, equipping, repair and installation of all public and private improvements associated with the Project as described in, and in conformance with approved schematic drawings, design documents, constructions documents, and related plans and documents ( "Development Plans and Specifications'). SECTION 5.02 Development Plans and Specifications. Upon the execution of this Agreement, the Developer shall prepare and submit Development Plans and Specifications for the Project to the City for its review pursuant to the Code. Thereafter, if the Developer desires to make any substantial or significant changes in the Development Plans and Specifications, the Developer shall submit the proposed changes to the City for its approval. The Developer and its approved assignees shall communicate and consult as frequently with the City and the Community Development Department as is necessary to ensure that any modifications to the Development Plans and Specifications can receive prompt and speedy consideration by the City. SECTION 5.03 Construction of Proiect. The Developer agrees that all construction, renovation, improvement, equipping, repair and installation work on the Project shall be done substantially in accordance with the Development Plans and Specifications as approved by the City, or as amended with the approval of the City. SECTION 5.04 City and Other Governmental Permits. The Developer shall, at its own expense, secure or cause to be secured any and all permits and approvals which may be required by the City and any other governmental agency having jurisdiction as to such construction, development or work in connection with any buildings, structures or other improvements at the Project Site. The Authority 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. SECTION 5.05 Construction Schedule. Not later than December 31, 2018, the Developer shall have completed the construction of the Project. If it appears the Project cannot be completed by such date, the Developer shall promptly report to the Authority that the Project will not be completed within the time provided for herein and shall provide an updated schedule regarding the time required for the completion of the Project. All revisions to the original construction schedule shall be subject to approval by the Authority, which approval shall not be unreasonably withheld. SECTION 5.06 Rights of Access. For the purpose of ensuring compliance with this Agreement, representatives of the Authority shall have the right of access to the Project Site, without charges or fees, at normal construction hours during the period of construction for the purposes of this Agreement, including, but not limited to, the inspection of the work being performed in constructing, renovating, improving, equipping, repairing and installing the Project, so long as they comply with applicable safety rules and do not unreasonably interfere with the activities of the Developer. Except in the case of an emergency, prior to any such access, such representatives of the Authority will check in with the on -site manager. All such representatives of the Authority shall carry proper identification, shall ensure their own safety, assuming the risk of injury, and shall not interfere with the construction activity. The Authority agrees to cooperate with the Developer in facilitating access by the Developer to the Project Site for construction purposes, provided that the Authority shall incur no financial obligations therefor. SECTION 5.07 Indemnification. The Developer shall defend, indemnify, assume all responsibility for, and hold the Authority and the City and their respective elected and appointed officers and employees and agents, harmless from, all costs (including attorney's fees and costs); claims, demands, liabilities or judgments (except whose which have arisen from the willful misconduct or negligence of the Authority or the City, their officers, employees and agents) for injury or damage to property and injuries to persons, including death, which may be caused directly or indirectly by any of the Developer's activities under this Agreement, whether such activities or performance thereof be by the Developer or anyone directly or indirectly contracted with or employed by the Developer and whether such damage shall accrue or be discovered before or after termination of this Agreement. This indemnity 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 the Comprehensive Environmental Response, Compensation and Liability Act; codified at Title 42, Sections 9601, et seq. of the United States Code (hereinafter, "CERCLA "), and all amendments thereto, at any place where 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 Authority from liability. SECTION 5.08 Liability Insurance. A. In addition to the indemnification of the Authority and the City required in Section 5.07 hereof, the Developer shall take out and maintain during the period set forth in subsection (D) of this Section, a comprehensive general liability policy in the amount of at least $1,000,000.00 for any person, $1,000,000.00 for any occurrence, and $1,000,000.00 property damage naming the Authority as an additional insured and loss payee, but only with respect to the liability policy. B. The Developer shall furnish a certificate of insurance signed by an authorized agent of the insurance carrier setting forth the general provisions of the insurance coverage. This certificate of insurance shall name the Authority as an additional insured under the policy. The certificate of insurance shall contain a statement of obligation on the part of the carrier to notify the Authority by certified mail of any modification, cancellation or termination of the coverage at least 30 days in advance of the effective date of any such modification, cancellation or termination. Coverage provided hereunder by the Developer shall be primary insurance and not contributing with any insurance maintained by the Authority, and the policy shall contain such an endorsement. The required certificate shall be filed with the Authority at the time of execution of this Agreement. C. The Developer shall also furnish or cause to be furnished to the Authority evidence satisfactory to the Authority that any contractor with whom it has contracted for the performance of work on the Project Site or otherwise pursuant to this Agreement carries workers compensation insurance as required by law at the time of execution of the Agreement. D. The insurance obligations set forth in this Section shall remain in effect until performance of the development obligations contained in this Agreement. SECTION 5.09 Performance Bond. The Developer shall post with the City such performance bonds or other sureties as may be required by the Code. SECTION 5.10 Local. State and Federal Laws. The Developer shall carry out the provisions of this Agreement in conformity with all applicable local, state and federal laws and regulations. SECTION 5.11 Antidiscrimination During Construction. The Developer, for itself, its successors and assigns, and any contractor with whom Developer has contracted for the performance of work on the Project Site, agrees that in the construction of the Project, the Developer shall not discriminate against any employee or applicant for employment because of race, color, creed, religion, age, sex, marital status, handicap, national origin or ancestry. SECTION 5.12 Taxes Assessments. Encumbrances and Liens. The Developer shall pay when due all real estate taxes and assessments on the Project Site. Prior to the performance of the obligations of this Agreement, the Developer shall not place or allow to be placed on the Project Site or any part thereof any uncontested mechanic's lien, any mortgage, trust deed, encumbrance or lien other than as expressly allowed by this Agreement. Nothing herein contained shall be deemed to prohibit the Developer from contesting the validity or amounts of any tax assessment, encumbrance or lien, nor to limit the remedies available to the Developer in respect thereto. SECTION 5.13 Prohibition Against Transfer of the Project Site or Structures Therein and Assignment of Agreement. The Developer shall not, except as permitted by this Agreement, without prior written approval of the Authority which shall not be unreasonably withheld, make any total or partial sale, transfer, conveyance, assignment or lease of the Project Site. The foregoing restrictions on assignment, transfer, and conveyance shall not apply to: A. Any mortgage lien or security interest granted by the Developer to secure indebtedness to any construction or permanent lender with respect to the Project; and B. The rental and leasing of portions of the Project Site by the Developer for any uses contemplated for the Project. SECTION 5.14 Restrictions on Sale of Control By the Developer. The qualifications of the Developer are of particular importance to the Authority. It is because of the qualifications and identity of the Developer, and the management thereof, that the Authority has entered into this Agreement with the Developer. Therefore, the Developer agrees that it will not sell a controlling interest in its own membership interests until performance of the development obligations in this Agreement to any individual or entity which is not currently a member of the Developer. Without limiting the generality of the foregoing, except as otherwise expressly agreed by the Authority in writing, the Developer shall not terminate its existence, liquidate or dissolve, or sell all or substantially all of its assets until performance of the development obligations in this Agreement. 0 SECTION 5.15 Covenants for Non - Discrimination. The Developer covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, familial status, marital status, age handicap, national origin or ancestry in the sale, lease, sublease, transfer, use occupancy, tenure or enjoyment of the Project Site, nor shall the Developer itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees of the Project Site. The covenant established in this Section shall, without regard to technical classification and designation, be binding for the benefit and in favor of the Authority, its successors and assigns and any successor in interest to the Project Site or any part thereof. The covenants contained in this Section shall remain for so long as any amounts due under this Agreement or a tax increment district established for this Project remains unpaid or outstanding. SECTION 5.16 Maintenance Covenants. The Developer, and all successors and assigns in interest to the Developer, shall be obligated to maintain the Project and all improvements and landscaping situated on the Project Site in a clean and neat condition and in a continuous state of good repair in accordance with the Code. ARTICLE VI REPRESENTATATIONS AND WARRANTIES SECTION 6.01 Developer Representations and Warranties. The Developer represents and warrants the following: A. The Developer represents that it is a limited liability company duly organized and existing under the laws of the State of Oklahoma. The Developer is authorized to conduct business in the State of Oklahoma, and is not in violation of any provisions of its articles of organization, operating agreement, or any other agreement governing the Developer, or any law of the State of Oklahoma affecting Developer's ability to perform under this Agreement. B. The Developer's ability to accomplish the Project with financing assistance from the Authority has induced the Developer to proceed with the Project, and the Developer hereby covenants to complete the same and continue to maintain and operate the Project, until the Certificate of Completion is provided to the Developer from the Authority. C. The Developer represents that it has the full power and authority to execute this Agreement and this Agreement shall constitute a legal, valid and binding obligation of the Developer in accordance with its terms, and the consent of no other party is required for the execution_ and delivery of this Agreement by such Developer or the consummation of the transactions contemplated hereby, subject to laws relating to bankruptcy, moratorium, insolvency, or other laws affecting creditor's rights generally and subject to general principles of equity. E D. The Developer represents that the execution and delivery of this Agreement, the consummation of the transactions contemplated herein, and the fulfillment of or compliance with the terms and conditions of this Agreement are not prevented or limited by or in conflict with, and will not result in a breach of, other provisions of its articles of organization, operating agreement or any other agreement governing the Developer or with any evidence of indebtedness, mortgages, agreements, or instruments of whatever nature to which the Developer is a party or by which it may be bound, and will not constitute a default under any of the foregoing. E. To the knowledge of the undersigned representative of the Developer, there is not currently pending any action, suit, proceeding or investigation, nor, is any such action threatened which, if adversely determined, would materially adversely affect the Developer or the Development, or impair the ability of the Developer to carry on its business substantially as now conducted or result in any substantial liability not adequately covered by insurance. F. The Developer warrants that it has not paid or given and will not pay or give any officer, employee or agent of the City or the Authority any money or other consideration for obtaining this Agreement. The Developer further represents that, to its best knowledge and belief, no officer, employee or agent of the City or the Authority who exercises or has exercised any functions or responsibilities with respect to the Project during his or her tenure, or who is in a position to participate in a decision making process with regard to the Project, has or will have any interest, direct or indirect, in any contract or subcontract, or the proceeds thereof, for work to be performed in connection with the Project, or in any activity, or benefit therefrom, during or after the term of this Agreement. G. All utility services necessary for the development and construction of the Project are available to the Project Site, including water, storm and sanitary sewer facilities, electric and gas utilities, and telephone services. H. Financial statements of the Developer heretofore delivered to the Authority and the City are true and correct in all material respects, and fully and accurately present the financial condition of the Developer on the respective dates thereof. There has been no material adverse change in the financial condition of the Developer since the date of the latest statement fiunished. I. The Project Site is free of all contamination requiring remediation including, but not limited to, (a) any "hazardous waste," "underground storage tanks," "petroleum," "regulated substance," or "used oil' as defined by the Resource Conservation and Recovery Act of 1976, as amended, or by any regulations promulgated thereunder; (b) any "hazardous substance" as defined by CERCLA, or by any regulations promulgated thereunder; (c) any substance the presence of which on, in, or under the Project Site is prohibited by any federal, state, or local law, rule, regulation, or ordinance similar to those set forth above; and (d) any other substance which by federal, state, or local law, rule, regulation, or ordinance requires special handling in its collection, storage, treatment, or disposal. 10 J. Neither this Agreement nor any statement or document referred to herein or delivered by the Developer pursuant to this Agreement contains any untrue statement or omits to state a material fact necessary to make the statements made herein or therein not misleading. SECTION 6.02 Authority Representations and Warranties. The Authority represents and warrants the following: A. The Authority is a duly organized and validly existing public trust under the laws of the State of Oklahoma and as such, is a duly constituted authority of the City and an agency of the State of Oklahoma. B. The Authority is fully empowered to enter into this Agreement and to perform the transactions contemplated thereby and generally to carry out its obligations hereunder and thereunder. The Authority has duly authorized its Chairman, or in his absence, its Vice - Chairman, to execute and deliver this Agreement and all other documentation required to consummate the transaction contemplated herein on behalf of the Authority. C. The performance by the Authority under this Agreement will not violate any provision or constitute a default under any indenture, agreement, or instrument to which the Authority is currently bound or by which it is affected. D. To the knowledge of the undersigned officer of the Authority, there is no action, suit, proceeding or inquiry at law or in equity pending or threatened, affecting the Authority wherein any unfavorable decision, ruling or finding would materially adversely affect the Authority's ability to perform under this Agreement or under any other instrument pertinent to the transaction contemplated herein to which the Authority is a party. ARTICLE VII EVENTS OF DEFAULT AND REMEDIES SECTION 7.01 Events of Default. The following shall constitute Events of Default hereunder and under each of the instruments executed pursuant to this Agreement: A. Default by the Developer in the performance or observance of any covenant contained in this Agreement, any instrument executed pursuant to this Agreement, or under the terns of any other instrument delivered to the Authority in connection with this Agreement, including, without limitation, the falsity or breach of any representation, warranty or covenant; B. Material variance from the approved Development Plans and Specifications without prior written consent of the City with regard to any of the materials, machinery, or equipment acquired in connection with the Project or the appurtenances thereto, or any other material variance from the Development Plans and Specifications; C. Any representation, statement, certificate, schedule or report made or furnished to the Authority by the Developer with respect to the matters and transactions covered by this I1 Agreement which proves to be false or erroneous in any material respect at the time of its making or any warranty of a continuing nature which ceases to be complied with in any material respect and the Developer fails to take or cause to be taken corrective measures satisfactory to the Authority within 30 days after written notice by the Authority; or D. The initiation of bankruptcy or receivership proceedings by or against the Developer and the pendency of such proceedings for 60 days. SECTION 7.02 Remedies. The Authority will provide the Developer with notice and 30 days opportunity to cure any Event of Default described in Section 7.01. Upon the Developer's failure to commence and diligently pursue the cure within such 30 -day period, the Authority may, at its option, declare the Authority shall be entitled to proceed simultaneously or selectively and successively to enforce its rights under this Agreement and any of the instruments executed pursuant to the terns hereof, of any one or all of them. SECTION 7.03 Termination. A. In the event that the City unreasonably fails to approve the Development Plans and Specifications, and, if any such default or failure shall not be cured within 30 days after the date of written demand by the Developer, then this Agreement, or the relevant portion thereof, may, at the option of the Developer, be terminated by written notice thereof to the Authority, and, neither the Authority, nor the Developer shall have any further rights against or liability to the others under this Agreement with respect to the terminated portion thereof. B. In the event that the Developer fails to submit the Development Plans and Specifications to the City, or the Developer fails to obtain evidence of financing capacity satisfactory to the Authority, and, if any default or failure shall not be cured within 30 days after the date of written demand by the Authority, then this Agreement, or the relevant portion thereof, may, at the option of the Authority, be terminated by written notice thereof to the Developer, and, neither the Authority nor the Developer shall have any futher rights against or liability to the others under this Agreement with respect to the terminated portion thereof. SECTION 7.04 Completion by the Authority. If an Event of Default occurs prior to the completion of construction of the Project, the Authority shall have the right, but shall not be bound, to complete the Project according to the approved Development Plans and Specifications. In the event the Authority elects to so complete the Project, the execution of this Agreement shall be deemed to be an appointment by the Developer of the Authority as its true and lawful attorney -in -fact with the frill power of substitution to complete, or cause to be completed, the Project in the Developer's name and shall empower the Authority as follows: A. To use any funds of the Developer in the manner called for by the Development Plans and Specifications; B. To make minor changes and corrections in the Development Plans and Specifications as shall be deemed necessary or desirable by the Authority; provided, however, that such changes do not increase project costs more than 5% determined on a cumulative basis; 12 C. To employ such contractors, subcontractors, agents, and inspectors as shall be required; D. To pay, settle or compromise all existing bills and claims which are or may be liens against the property constituting a portion of the Project Site or any part thereof or may be necessary or desirable for completion of the work or obtaining clear title; E. To execute all applications and certificates in the Developer's name, which may be required by any contract relating to the Project; and F. To do any and every act with respect to the Project which the Developer may do on its own behalf. It is understood and agreed that this power of attorney shall be deemed to be a power coupled with an interest which cannot be revoked. The Authority, as the Developer's attorney-in-fact, shall also have the power to prosecute and defend all actions or proceedings in connection with the Project and to take such action and require such performance as the Authority deems necessary. The cost of said completion, including an amount equal to 10% of such cost for the Authority's services in connection with such completion, shall be paid to the Authority by the Developer. SECTION 7.05 Enforced Delay: Extension of Times of Performance. A. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended, where the party seeking the extension has acted diligently and delays or defaults are due to events beyond the reasonable control of the party such as but not limited to: default of other party; war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; invasion, lack of transportation; litigation; unusually severe weather; or any other causes beyond the control or without the fault of the party claiming an extension of time to perform. B. Times of performance under this Agreement may also be extended in writing by the mutual agreement of the Authority and the Developer. SECTION 7.06 Non - liability of Officials, Employees, and Agents of the Authority. No official, employee or agent of the Authority shall be personally liable to the Developer, or any successor in interest, pursuant to the provisions of this Agreement, for any default or breach by the Authority. 13 ARTICLE VIII MISCELLANEOUS SECTION 8.01 Authority's Obligations Limited. Nothing in this Agreement is intended to require or obligate nor shall anything herein be interpreted to require or obligate the Authority to provide, apply or make any payment or advance from any revenue or funds coming into its hands other than the funds derived from Increment District No. 8 and in the manner provided in this Agreement. SECTION 8.02 Notices. Any notices or other communications required or permitted hereunder shall be sufficiently given if delivered personally or sent by registered or certified mail, postage prepaid, return receipt requested and addressed as set forth below or to such other address as the party concerned may substitute by written notice to the other. All notices shall be deemed received within three days (excluding Saturdays, Sundays and holidays recognized by national banking associations) after being mailed: To the Authority: Owasso Public Works Authority 200 S. Main Street Owasso, Oklahoma 74055 Attn: Warren Lehr, Manager To the Developer: Brogran, LLC 505 East 19a' Street Owasso, Oklahoma 74055 Attn: Steve and Renee' Mowery SECTION 8.03 Amendment. This Agreement may not be amended or modified in any way, except by an instrument in writing executed by both parties hereto and approved in writing by the Developer and the Authority. SECTION 8.04 Non - Waiver, Cumulative Remedies. No failure on the part of the Authority to exercise and no delay in exercising any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise by the Authority of any right hereunder preclude any other or further right thereof. The remedies herein provided are cumulative and not alternative. SECTION 8.05 Assignment. This Agreement shall not be assignable by the Developer without the prior written consent of the Authority. The rights and benefits under this Agreement may be assigned by the Authority. SECTION 8.06 Applicable Law. This Agreement and the documents issued and executed hereunder shall be deemed to be a contract made under the laws of the State of Oklahoma and shall not be construed to constitute the Authority as a joint venturer with the Developer or to constitute a partnership among the parties. 14 SECTION 8.07 Descriptive Headings. The descriptive headings of the articles and sections of this Agreement are for convenience only and shall not be used in the construction of the terms hereof. SECTION 8.08 Integrated Agreement. This Agreement constitutes the entire agreement between the parties hereto, and there are no agreements, understandings, warranties, or representations between the parties regarding the financing of the Project other than those set forth herein. SECTION 8.09 Time of Essence. Time is of the essence in the performance of this Agreement. SECTION 8.10 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, legal representatives, and assigns. SECTION 8.11 Right to Defend. The Authority shall have the right, but not the obligation, with benefit of counsel selected by the Authority, all at the Developer's expense, to commence, appear in or defend any action or proceeding purporting to affect the rights or duties of the parties hereunder, and in connection therewith, if the Developer fails to so commence, appear in or defend any such action or proceeding, except in a suit between the Developer and the Authority, in which case the prevailing party shall be entitled to such fees and expenses as a part of any judgment obtained. SECTION 8.12 Trustees' Disclaimer. This instru vent is executed by the Trustees or officers or both of the Authority in their official capacities as such Trustees or officers. By the execution hereof all parties agree that, for the payment of any claim or the performance of any obligations hereunder, resort shall be had solely to the specific assets of the Authority described herein and no Trustee or officer of the Authority shall be held personally liable therefore. In this regard, specific reference is made to Section 179 of the Public Trust Act and to the Trust Indenture dated as of the 10th day of January, 1973, pursuant to which the Authority was created, a copy of which is of record in the office of the Authority. SECTION 8.13 Counterparts. This Agreement may be executed in several counterparts, and all such executed counterparts shall constitute the same Agreement. It shall be necessary to account for only one such counterpart in proving this Agreement. SECTION 8.13 C_ onstruction of this Agreement. The parties acknowledge that the parties and their counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any exhibits or amendments hereto. IN WITNESS WHEREOF, the Developer and the Authority have caused this Agreement to be duly executed this _ day of , 2017. 15 EXIIIBIT 1 Location, Legal Description, and Map of the Project Site Address: 102 South Main Street Legal Description: Lots 1, 2, 3 & part of 4, Block 22, Original Town of Owasso I.. AMEN 3. ftmil ii — L'oe 3 N pr,;E;� rneoicap!-. vnarmacy 6 °GiSubs�78 Deli anf. u t yy G W Znd Ave E 761 St N ACKNOWELDGEMENTS STATE OF OKLAHOMA ) )SS: COUNTY OF TULSA ) The foregoing instrument was acknowledged before me this 1q day 0� 7 by Chris Kelley, Vice -Chair of the Owasso Public Works Authority, a public trust, on behalf of the Trust. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the date and year first above written. ` /liann M. Stevens otary Public #000013339 Ex ices: August 12, 2020 (Notary Seal) STATE OF OKLAHOMA ) )SS: COUNTY OF TULSA ) Roq€ws The foregoing instrument was acknowledged before me this 4�1 day of Mee— , 2017, by �A /,l � Manager of Brogran LLC, on behalf of Brogran, LLC. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal the date and year first above written. (Notary Seal) Notary Public -ff o oa o o Epp I:X.e - IZ 17 (SEAL) ATTEST: Im OWASSO PUBL WO 5 AUF�O'RTTY`' . By: UhPKKelley, Vice -Chair bl:. OF i, Auth7tty Sgcretary Q(� OKLANO���'e BROGRAN, LLC By:a Manager 16 AMENDMENT NO. 1 AMENDMENT NO. 1 TO THE COVENANT AGREEMENT ( "Covenant Agreement "), made and entered into on the 4th day of October, 2017, by and between the Owasso Public Works Authority, an Oklahoma public trust ( "OPWA "), and Brogran, LLC, an Oklahoma limited liability company ( "Owner "). 2. Minimum Annual Payment. Commencing January 1, 2020, the Property shall be subject to a minimum annual ad valorem payment (whether classified, in whole or in part, as a tax payment or an in lieu of payment) obligation in the amount of not less than $53,712.00 for the first year in which the minimum ad valorem tax payment is payable as set forth herein (the "minimum Annual Payment "), which shall continue in effect for each year thereafter through the duration of the Increment District (the "minimum Annual Payment Period "). IN WITNESS WHEREOF, the parties have executed this Amendment, the 5th day of February 2019. OWASSO PUBLIC WORKS AUTHORITY (SEAL) ATTEST: M Juliann M. Stevens, Authority Secretary M Chris Kelley, Chair BROGRAN, LLC Steve and /or Renee' Mowery Tulsa County Clerk - Michael Willis �'• :. Doc 9 2018051679 Page(s): 6 06/08/2018 12:01:05 PM Receipt tt 18 -31765 ' •:::• Fee: $ 23.00 �k4xeMP Owasso Public Works Authority 200 S. Main Street Owasso, Oklahoma 74055 Ann: Warren Lehr, Manager Covenant Agreement This Covenant Agreement ("Covenant Agreement ") is made effective as of Qa?) �J � 2017, by and between the Owasso Public Works Authority, an Oklahoma public trust ("OPWA";, and Brogran, LLC, an Oklahoma limited liability company ( "Owner "), with reference to the following: A. OPWA and the Owner have entered into a Development and Financing Agreement, dated September 19, 2017 ( "Agreement"), which details the understanding of the parties related to the development of the Owner's property, more particularly described as: Lots 1, 2, 3 & part of 4, Block 22, Original Town of Owasso ( "Property "). B. The Owner is developing the Property as a mixed -use project, including substantial ground floor commercial retail, 12 residential units, and accompanying parking spaces ( "Project "). C. The City Council of the City of Owasso ( "City ") has approved and adopted the Owasso Redbud District Project Plan ( "Project Plan"), creating and establishing Increment District No. 1, the City of Owasso ( "Increment District"). D. Pursuant to the Agreement, OPWA has agreed to provide certain financial assistance to support the redevelopment of the Property, and Owner has agreed to make a payment of ad valorem taxes in an annual minimum amount for the duration of the Increment District. E. Accordingly, Owner has agreed that a recordable instrument would include a covenant running with the land providing that the Owner and any successors in interest of the Property will pay or cause to be paid a minimum annual amount of ad valorem taxes on the Property and taxable personal property during the Minimum Annual Payment Period (as defined below). The parties hereby agree and covenant as follows: I. Imposition of Covenants. This Covenant Agreement is made concurrently with and as consideration for the execution and delivery of the Agreement. This Covenant Agreement imposes the covenants herein on the Property. Pursuant to Section 4.03 of the Agreement, the Owner hereby binds itself and its successors and assigns to the covenants herein, which shall continue in effect for the duration of the Increment District. 2. Minimum Annual Payment. Commencing on January 1, 2019, the Property shall be subject to a minimum annual ad valorem payment (whether classified, in whole or in part, as a tax payment or an in lieu of payment) obligation in the amount of not less than $53,712.00 for the first year in which the minimum ad valorem tax payment is payable as set forth herein (the "Minimum Annual Payment"), which shall continue in effect for each year thereafter through the duration of the Increment District (the "Minimum Annual Payment Period "). 3. Obligation to Pay Minimum Annual Payment. Subject to Section 8 of this Covenant Agreement, during the Minimum Annual Payment Period, the Owner of the Property (and any successors in interest) will pay not less than the Minimum Annual Payment of ad valorem taxes (or will make a payment in lieu of taxes in the Minimum Annual Payment amount). During the Minimum Annual Payment Period, if the county assessment ratios, levy rates, or taxable assessed values that are in effect for any subsequent fiscal year prior to the termination of the Increment District result in an ad valorem tax liability that is less than the Minimum Annual Payment amount, the Owner of the Property (and any successors in interest) shall, in addition to paying ad valorem taxes on the property based on the county assessment ratios, levy rates, and taxable assessed values then in effect, make a payment in lieu of ad valorem taxes in the amount of the difference between (i) the ad valorem tax calculation then in effect, and (ii) the Minimum Annual Payment amount. 4. Payments in Lieu of Ad Valorem Taxes. During the Minimum Annual Payment Period, if all or a portion of the Property is exempt from ad valorem taxes (whether resulting from ownership of such real or personal property by a public or private tax- exempt entity or a lease or sublease of such property to a public or private tax- exempt entity), the Owner of the Property (and any successors in interest) shall make (or cause to be made) payments in lieu of ad valorem taxes with respect to the real property and /or personal property to which such exemption applies, commencing in any year in which such ad valorem tax exemption is in effect and terminating upon the first to occur of termination of such ad valorem tax exemption or termination of the Increment District. 5. Lien Securing Minimum Annual Payment Obligations. The Minimum Annual Payment obligations of the Property pursuant to the covenants in this Covenant Agreement are secured by a lien (or liens) on the Property in favor of Tulsa County, Oklahoma ( "County ") for the benefit of the apportionment fund of the Increment District arising annually at the same time, in the same manner, having the same priority, and subject to the same enforcement and remedies as liens to secure the annual payments of other ad valorem taxes, which lien or liens may also be evidenced by written notice executed by or on behalf of the County, OPWA, or the duly authorized designee of OPWA and filed in the records of the County Clerk of Tulsa County, and which lien or liens may also be enforced by the County, OPWA, or on its behalf by its authorized designee by foreclosure in the same manner as foreclosure of a mortgage. VA 6. Covenants Running with the Land. The covenants in this Covenant Agreement shall run with the land described herein as the Property. The County, OPWA, and the City shall each be deemed a beneficiary of the covenants in this Covenant Agreement, and such covenants shall run in favor of the County, OPWA, and the City for the entire period during which such covenants shall be in force and effect. As such beneficiaries, in the event of any breach of such covenants, the County (or OPWA and the City, if the County does not elect to exercise its rights and remedies) shall have the right to exercise all the rights and remedies, and to maintain any actions at law or suits in equity or other proper proceedings to enforce the curing of such breach, to which beneficiaries of such covenant may be entitled; provided, however, that in all such events, OPWA, and/or the City, as applicable, shall be required to provide notice of any such breach to all lienholders of record at such notice address as is provided in such record document prior to the exercise of any of its rights and remedies hereunder; further provided, however, that the failure to provide such notice shall not prevent the exercise of any of its rights and remedies hereunder. 7. Timing of Minimum Annual Payment. The Minimum Annual Payment shall be made by December 31 of each year to the Tulsa County Treasurer. 8. No Personal Liability Right to Dispute Any Tax Increases. In no event shall the covenants in this Covenant Agreement constitute a personal liability of the Owner (or its respective successors and assigns), nor will the Owner of the Property (or any successors in interest of any portion of the Property) be prevented from disputing any proposed increased ad valorem taxes that may be in excess of the Minimum Annual Payment amount. In the event of a default in payment of the Minimum Annual Payment obligation, the beneficiaries of the Minimum Annual Payment pursuant to this Covenant Agreement shall look exclusively to the Property for satisfaction thereof and shall not seek or obtain a personal judgment against the Owner or its respective successors or assigns. 9. Termination of Ad Valorem Tax Covenants. The covenants in this Covenant Agreement shall terminate upon the termination or dissolution of the Increment District, and, upon such termination or dissolution of the Increment District, shall be extinguished and of no further force and effect. The parties have executed and delivered this Covenant Agreement as of the day and year first above written. 3 OWASSO PUBLIC WORKS AUTHORITY, an Oklahoma vublioi ust /n In Chairman ACKNOWLEDGEMENT STATE OF OKLAHOMA, ) ) ss. COUNTY OF TULSA. ) Oc -4uber �"� Before me, a Notary Public in and for said State, on this L], tiday of September, 2017, personally appeared Lyndell Dunn, to me known to be the identical person who subscribed the name of the Owasso Public Works Authority to the foregoing instrument as its Chairman and acknowledged to me that he executed the same as his free and voluntary act and deed, and as the free and voluntary act and deed of such public body corporate, for the uses and purposes therein set forth. WITNESS my hand and official seal the day and year last above written. My Commission expires: •3 a1 (Seal) .4 £ NOTARY PUHUC .�9)• .FRS CO;?: ��``�. R� OK; BROGRAN, LLC, an Oklahoma limited liability company i BY: [NAMEY Manager ACKNOWLEDGEMENT STATE OF OKLAHOMA, ) ) ss. COUNTY OF TULSA. ) U (4bI - Before me, a Notary Public in and for said State, on this 461 day of- September, 2017, personally appeared L,'JzOw t to me known to be the identical person who subscribed the name of Brogran, LLC, to the foregoing instrument as the manager of Brogran, LLC, and acknowledged to me that he executed the same as his free and voluntary act and deed, and as the free and voluntary act and deed of such limited liability company, for the uses and purposes therein set forth. WITNESS my hand and official seal the day and year last above written. w-N � L A a �5 boa 02002\ My Commission expires: 12. - to - 8 (Seal) December 26, 2018 Owasso Public Works Authority City of Owasso 200 South Main Street Brograw, LLC P.O. Box 53, Owasso, OK 74055 REBUILDING DWA550 ONE BRICK AT A TIME Owasso, OK 74055 Re: Redbud District Development and Financing Agreement by and between The Owasso Public Works Authority and Brogran, L.L.C. To Whom It May Concern- This letter shall serve as a construction schedule update to the Development and Financing Agreement between the Owasso Public Works Authority and Brogran, L.L.C. approved by the Owasso City Council on September 19, 2017, (hereinafter referred to as "the Agreement "). Pursuant to Section 5.05 of the Agreement, the completion date for the construction project was to be on or before December 31, 2018. Although the project is nearing completion, there still remain some outstanding items, and Brogran, L.L.C. requests an extension of the Agreement until May 30, 2019. The following items remain outstanding as of the date of this letter, and a timeline for completion for those remaining construction items are as follows: Concrete;is weather pe by should be complete by I 5. Landscaping is schedule 6. Railing for the project manufactured and insta 7. The Mam,Street:Loftsla nd the remainder is on the corner, along Main 5 19, weather permitting. is scheduled and should be will be scheduled•once the contractor for the City is confirmed but 1, 2019, weather permitting, a installed in January, 2019, weather permitting. )e installed once: all concrete is complete. The railing will be February 28, 2019 ;:weather permitting. )% complete. We are waiting for gasometers to be installed. Final run. These lofts will be move in ready by February 15, 2019. B. The 151 Ave Lofts are 80% complete and will be move in ready in March, 2019. 9. The Art In Bloom interior buildout will be complete by March 1, 2019. 10. The exteriors of both buildings will be 100% complete by February 15, 2019. Renee' Mowery (918) 636 -1283 Steve Mowery (918) 639 -1869 www.downtownowasso.com moweryfamily @cox,net Brogran, LLC P.O. Box 53, Owasso, OK 74055 REBUILDING OWASSO ONE BRICK AT A TIME The interior commercial spaces will be built out as tenants are assigned and completion dates should not be included in the May 30' deadline. Brogran L.L.C. hereby requests an extension until May 30, 2019, to complete these outstanding items. All otherterms and conditions of the Agreement shall remain the same and in full force and effect. Sincerely BROGRAN, L.L.C., an Oklahoma limited liability company i F. Renee' owery, Manager Renee' Mowery (918) 636 -1283 Steve Mowery (918) 639 -1869 www.downtownowasso.com moweryfamily @cox.net OWASSO PUBLIC WORKS AUTHORITY PAYROLL PAYMENT REPORT PAY PERIOD ENDING DATE 01/19119 Department Payroll Expenses Total Expenses 400 OPWA Administration 14,490.31 21,864.50 405 Utility Billing 6,175.21 11,587.75 420 Water 12,667.86 21,869.51 450 Wastewater 13,142.53 23,031.88 455 Wastewater Collection 11,227.68 19,024.71 480 Refuse 12,689.96 22,359.43 485 Recycle Center 2,543.65 4,559.06 FUND TOTAL 72,937.20 124,296.84