HomeMy WebLinkAboutMO #2688MUNICIPAL ORDER NO. 2688
A MUNICIPAL ORDER AUTHORIZING AND APPROVING A PADUCAH "CITY
BLOCK" PROGRAM AMENDED DEVELOPMENT AGREEMENT BETWEEN THE
CITY OF PADUCAH AND WEYLAND VENTURES DEVELOPMENT FOR
PROGRAM DEVELOPMENT FOR A FUTURE HOTEL, PARKING, OPEN SPACE,
AND MIXED-USE RESIDENTIAL BUILDING LOCATED AT THE CITY BLOCK
BOUNDED BY SECOND STREET, BROADWAY, NORTH WATER STREET AND
JEFFERSON STREET AND AUTHORIZING THE MAYOR TO EXECUTE ALL
DOCUMENTS RELATED TO SAME
WHEREAS, on April 24, 2019, the City entered into a Pre -Development Agreement with
Weyland Ventures to undertake site due diligence and program development for a boutique hotel,
parking, open space and mixed-use residential buildings; and
WHEREAS, all elements of the pre -development agreement were completed including:
Market Analysis, Financial Analysis, Design, Site Information, Phase I environmental Review,
Geotechnical Analysis, Parking Assessment, and gaining stakeholder input; and
WHEREAS, the City Commission then approved the original development agreement on
July 28, 2020; and
WHEREAS, since the execution of the original development agreement, economic and
labor conditions caused delays to the advancement of the project, and Weyland Ventures continued to
proceed with the project and meet milestones within the parameters of the executed development
agreement; and
WHEREAS, it is now being proposed that the original development agreement be
amended to establish an updated document as the project enters the next phase; and
WHEREAS, the Amendment also allows for the city to not be responsible for paying
upfront costs associated with environmental remediation, and instead will be applied as a credit towards
the purchase of the two (2) tracts of land; and
WHEREAS, the City of Paducah authorized the transfer of land by Ordinance No. 2020-
08-8650 and now wishes to execute the Deed of Access and Deed of Conveyance.
NOW, THEREFORE, BE IT ORDERED BY THE BOARD OF COMMISSIONERS OF
THE CITY OF PADUCAH, KENTUCKY, AS FOLLOWS:
SECTION 1. That the City hereby authorizes and approves an Amended Development
Agreement between the City of Paducah and Weyland Ventures Development in substantially the same
form attached hereto and made part hereof (Exhibit A) and authorizes the Mayor to execute the
Agreement.
SECTION 2. That the City hereby authorizes and approves a Deed of Access in
substantially the same form attached hereto and made part hereof (Exhibit B) and authorizes the Mayor
to execute the Deed, pursuant to Ordinance No. 2020-08-8650.
SECTION 3. That the City hereby authorizes and approves a Deed of Conveyance in
substantially the same form attached hereto and made part hereof (Exhibit C) and authorizes the Mayor
to execute the Deed, pursuant to Ordinance No.
adoption.
SECTION 4. This order shall be in full
effect Erw and after the date of its
IPA
George Bray, Mayor
ATTEST:
Lindsay Parish, ffty Clerk
Adopted by the Board of Commissioners, December 15, 2022
Recorded by Lindsay Parish, City Clerk, December 15, 2022
\MO\amended agree- Weyland Ventures City Block Program Development 2022
272714
EXHIBIT "q"
AMENDED AND RESTATED DEVELOPMENT AGREEMENT
THIS AMENDED AND RESTATED DEVELOPMENT AGREEMENT is made and
executed on this 15th day of December, 2022, by and between the CITY OF PADUCAH, a
Kentucky city of the second class, hereinafter referred to as the "City", and WEYLAND
VENTURES DEVELOPMENT, LLC, a Kentucky limited liability company, together with its
designees or assignees as permitted herein, hereinafter referred to as the "Developer."
WITNESSETH:
WHEREAS, on August 12, 2020, the City and Developer entered into a Development
Agreement for the development of a 2.88 -acre tract located at 133 Broadway Street in Paducah; and
WHEREAS, the construction under the Development Agreement was to be carried out in
two phases, they being the Phase I Facilities, which are comprised of a Boutique Hotel Facility, a
Parking Facility, and two Parks, and the Phase H Facilities, which are comprised of Mixed Use
Facilities, all of which were to be processed and constructed in accordance with the Critical
Completion Dates in the Development Agreement; and
WHEREAS, on November 8, 2021, the Developer issued to the City a formal request to
extend the closing on the Phase I Facilities for a period of 180 days, which request was ultimately
accepted and approved by the City; and
WHEREAS, the parties have agreed to amend various provisions in the Development
Agreement to accommodate the extension that the Developer had requested, and to clarify various
provisions that are affected by that extension, all of which amendments have been incorporated in
this Amended and Restated Development Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, and the mutual
covenants, obligations, undertakings and liabilities that are to be assumed and performed by the
parties hereunder, the parties do hereby covenant and agree as follows:
ARTICLE I DEFINED TERMS
1.1 Defined Terms. Each of the following terms as used in this Agreement shall have
the meaning that is ascribed to that term under this Section 1.1.
"Amended Agreement" shall mean this Amended and Restated Agreement, and all
amendments that are made thereto.
"Appendix" shall mean the Appendix "A" that was attached to the Development Agreement,
a copy of which is provided in Appendix "A" to this Amended Agreement.
"Bona Fide Remediation Costs" shall mean additional costs that were actually incurred by
the Developer in the removal, transportation and disposal of hazardous material that is
mandated by federal and/or state law; provided, however, Bona Fide Remediation Costs shall
not include any cost that is attributable to work that is to be performed under the Developer's
construction plans, or work that is performed to satisfy construction standards and practices,
or the directives that are issued by Developer's engineers or architects which are not
otherwise required by federal or state law. By way of illustration, Bona Fide Remediation
Costs would not include the costs of removing structures, appurtenances, materials and
substrata that are to be removed under Developer's construction plans.
"Boutique Hotel Facility" shall mean a hotel facility operated in the manner commonly
associated with the generally accepted standards and characteristics of a boutique hotel, the
configuration of which shall generally comport with the depiction provided in Appendix "A"
to this Amended Agreement, and all improvements made in relation thereto.
"Design Documents" shall mean and include the plans and specifications of the Public
Facilities that are to be developed and constructed under the Development Agreement and
this Amended Agreement, all of which shall be prepared by duly licensed architects and
engineers.
"Development Agreement" shall mean the Development Agreement that was executed by the
parties on August 12, 2020, and all appendices attached thereto.
"Development Site" shall mean and include the 2.88 -acre tract of property located at 133
Broadway Street, all of which is generally depicted in Appendix "A" of this Amended
Agreement.
"Downtown Design Standards" shall mean and include the standards, requirements and
criteria that are promulgated under the City's "Design Standards for Historic Downtown".
"First Effective Date" shall mean August 12, 2020.
"Greenspace Park" shall mean a public open space that is comprised of soft landscape
consisting of vegetation, lawn, public art, and other softscape features, and the Reconstructed
Facilities that are designated by the City, the configuration of which shall comport with the
depiction provided in Appendix "A" to this Amended Agreement.
"Mixed -Use Facilities" shall mean and include the mixed-use buildings that are generally
depicted in Appendix "A" to this Amended Agreement, and all improvements made in
relation thereto.
"Parks" shall mean and include the Greenspace Park and the Urban Park, and all
improvements made in relation thereto.
"Parking Facility" shall mean and include the parking facility that is generally depicted in
Appendix "A" to this Amended Agreement, and all improvements made in relation thereto.
"Phase I Facilities" shall mean and include the Boutique Hotel Facility, the Parking Facility,
the Greenspace Park and the Urban Park, and all improvements made in relation thereto.
"Phase II Facilities" shall mean and include the Mixed -Use Facilities, and all improvements
made in relation thereto.
"Planning Director" shall mean Nic Hutchison, or other authorized officer designated by the
City.
"Public Facilities" shall mean and include in aggregate each and all of the Public Facilities
that are to be constructed by the Developer, including the Parking Facility, the Greenspace
Park and the Urban Park (including the Reconstructed Facilities within such Parks), all of
which are generally depicted in Appendix "A" to this Amended Agreement.
"Reconstructed Facilities" shall mean and include (i) a gazebo and horse carriage facilities
that are similar to those currently existing on the Development Site, (ii) the reclamation of the
historic cobblestone sidewalk preserved in place on the southeast corner of the site, and (iii)
the reclamation and relocation of the engraved memorial bricks that are located along Second
Street, all of which shall be reconstructed within the Parks as determined by the City.
"Second Effective Date" shall mean June 1, 2023, which is the effective date for the Phase II
Facilities as referenced in Section 4.2(c) of this Amended Agreement.
"Subdivision Plat" shall mean the Subdivision Plat of the City of Paducah Downtown
Development that depicts the Development Site, and the tracts upon which the Phase I
Facilities and Phase II Facilities will be constructed, which include Tract 1 (the Boutique
Hotel Facility), Tract 2 (the Public Facilities), and Tract 3 (the Mixed Use Facilities), a copy
of which is recorded in Plat Section "M", Page 1697, McCracken County Clerk's Office.
"Urban Park" shall mean a public open space that contains hard landscape consisting of
decorative pavers, seating, public art and other features that are typically found in public
promenades, and the Reconstructed Facilities that are designated by the City, the
configuration of which shall comport with the depiction provided in Appendix "A" to this
Amended Agreement.
ARTICLE II
DEVELOPMENT AND CONSTRUCTION OF PHASE I FACILITIES
2
2.1 General Scope of Development. The Developer shall develop and construct upon
Tract 1 of the Development Site a Boutique Hotel Facility that comports with the facility that is
depicted in Appendix "A" to this Amended Agreement. Simultaneous therewith, the Developer shall
develop and construct upon Tract 2 of the Development Site the Public Facilities which comport with
the facilities that are also depicted in Appendix "A". To facilitate the development and construction
of the Boutique Hotel Facility, the City shall convey to the Developer, or its affiliated assignee, all of
its rights, title and interest in and to Tract 1 in accordance with the payment terms provided in
Section 2.6 of this Amended Agreement, subject only to permitted encumbrances as shall be
accepted by Developer, in its sole discretion. The City shall also convey to the Developer at no cost
access rights to Tract 2 and Tract 3 to facilitate the development and construction of the Public
Facilities, all of which shall be dedicated to and used by the public at large. All conveyances to be
made by the City under this Section 2.1 shall be subject to the Developer's full and faithful
compliance with the preliminary requirements and commitments that are defined under this Article II
in all material respects.
2.2 Preliminary Requirements and Commitments. The Developer shall fully perform
and timely satisfy all of the preliminary requirements and commitments that are contained in the
following sub -parts:
(a) Minimum Design and Building Requirements. The Developer shall ensure that the
Phase I Facilities shall be developed and constructed in accordance with the
following requirements:
(1) The Boutique Hotel Facility shall be constructed along Jefferson Street, as
generally depicted on the site plan provided in Appendix "A". Any substantial
changes to the location and the building massing shall be reviewed and
approved by the Planning Director.
(2) The Boutique Hotel Facility shall contain approximately 60,000 square feet,
composed of 40-100 rooms, event space, commercial and retail space, and
typical ancillary hotel support space. Any substantial change to this program
shall be reviewed and approved by the Planning Director.
(3) The building's exterior design shall be consistent with all existing City design
and construction standards, including the City's Downtown Design Standards.
The building's design shall be reviewed by City staff prior to any formal
submissions required under the City's codes and ordinances.
(4) The Development Site shall include an area of public parking on Tract 2, the
city- owned parcel, as generally indicated on the site plan provided in
Appendix A to this Amended Agreement. The parking area design and
availability shall be reviewed and approved by the Planning Director prior to
the completion of final plans and documents, and may be further refined
based upon the design of the Parks.
(5) The Greenspace Park shall contain approximately 11,000 square feet, as
depicted on the Site Plan provided in Appendix A to this Amended
Agreement, and shall include the Reconstructed Facilities that are designated
for inclusion within that Park as determined by the Planning Director. The
design of such space shall be reviewed and approved by Planning Director
prior to its finalization.
(6) The Urban Park shall contain approximately 11,000 square feet, and shall
include a permanent hardscape promenade along Second Street between
Jefferson and Broadway as depicted on the Site Plan provided in Appendix A,
and the Reconstructed Facilities that are designated for inclusion within the
project's Public Facilities as determined by the Planning Director. The design
of such space shall be reviewed and approved by the Planning Director prior
to its finalization.
(b) Minimum Financial Commitment. The Developer shall commit and expend
approximately $12 million in the development, construction and completion of the
Boutique Hotel Facility. This shall include the costs and expenses of constructing the
Phase I Facilities, professional fees that are incurred in relation to that development
and construction, insurance costs, financing fees and costs, and governmental fees
and charges that are incurred prior to and during the construction process.
(c) Critical Completion/Closing Dates. The Developer shall comply with the
requirements that are defined under this section on or before the completion dates that
are ascribed thereto, all of which shall be deemed critical deadlines within the term
"time is of the essence".
(1) Within 90 days following the First Effective Date, the City Planning
Department shall conduct, in collaboration with the Developer, a public
meeting whereby the public is accorded an opportunity to offer
recommendations and comments with respect to the development of the
Parks, and the location of the Reconstructed Facilities. On advice of those
recommendations and comments, and in consultation with the Developer, the
Planning Director shall make a determination as to where within the Parks the
Reconstructed Facilities will be located. The parties acknowledge their
compliance with this requirement, and the completion of the matters that are
referenced in this subsection. For the avoidance of doubt, City represents and
warrants that there are no further public meetings or notices that are required
in connection with the Facilities.
(2) Within 180 days following the First Effective Date, the Developer shall
submit to the Planning Director for its review a revised set of design plans for
the initial Phase of the project, to include the Boutique Hotel and the Public
Facilities, including the location and design of the Reconstructed Facilities.
The parties acknowledge their compliance with this requirement, and the
completion of the matters that are referenced in this subsection.
(3) Each party hereby warrants and certifies the full accomplishment of the
precedent conditions that they assumed under the Development Agreement,
they being the following:
i. The Developer has submitted evidence of financing commitments for
the private components of the Boutique Hotel Facility.
ii. The Developer has obtained all necessary city permits, licenses, and
approvals required under the codes and ordinances of the City to
enable construction to begin.
iii. The Developer has submitted a final set of the Design Documents for
the Public Facilities duly approved by the City, and the executed
construction agreements under which the Phase I Facilities will be
constructed.
iv. The City has submitted evidence that the Development Site is located
within a state approved Tax Increment Financing District.
V. The City has provided to the Development Site all utilities required to
support the development to the Development Site.
vi. The City has submitted evidence of financing commitments for the
Public Facilities of the project.
(d) Closing on Transfer of Property. Within 30 (thirty) days following the execution of
this Amended Agreement, the City shall tender to the Developer a duly executed
Deed of Conveyance which conveys to the Developer, or its assignee, fee title to
Tract 1, and a Deed of Access providing access rights to Tracts 2 and 3, all of which
tracts are depicted and described in the Subdivision Plat. The City shall have the right
to retain a right of entry in the Deeds which enables the City to rescind the
conveyances made under the Deeds should Developer fail to initiate construction as
provided in sub -paragraph (e) under this Section 2.2 within the cure period provided
in the Deeds. In consideration of that conveyance, the Developer shall pay to the City
the deferred purchase price as provided in Section 2.6 of this Amended Agreement.
The date of transfer and conveyance of fee title to Tract 1 shall be the date the Deed
of Conveyance is recorded in the McCracken County Clerk's Office.
(e) Initiation of Construction. Within ninety (90) days following the transfer of Tract 1,
the Developer shall initiate construction of the Phase I Facilities. The term "initiate
construction" shall mean and include (i) Developer's issuance of a written Notice to
Proceed letter that instructs its contractors to proceed with the construction work of
the Phase I Facilities, (ii) the contractors' active engagement in performing that
construction work, and (iii) Developer's issuance to the City of a Certificate of
Commencement of Construction, duly verified by its Chief Executive Officer, that
certifies Developer's initiation of the construction work, and its intent to prosecute
that work until completion.
(f) Completion of Construction. The Developer shall utilize its best efforts to complete
the construction work on the Phase I Facilities within a period of eighteen (18)
months following the commencement date of the work, excepting delays that are
caused by extraordinary conditions outside of Developer's control.
2.3 Public Use of the Public Facilities. Developer understands and agrees that the
Public Facilities shall be developed and constructed by the Developer for the benefit of the public, all
of which shall be perpetually dedicated for public use. Each of the parties shall have the following
rights and privileges to those Public Facilities, and to use the Public Facilities for the purposes stated
hereunder, to be more fully described in an Access and Easement Agreement:
(a) The City shall have the right to utilize the Public Facilities for public events and other
temporary purposes that are beneficial to its citizens during reasonable hours. In
relation thereto, the City shall have the right to accord to third party promoters full
access to the Public Facilities for the purpose of conducting the events and other
purposes that are permitted hereunder; provided that Developer's operations and
activities are not unreasonably interrupted, inhibited or delayed; and
(b) The Developer shall have the right to accord to its employees, guests and patrons the
right to park their vehicles within the Parking Facility to facilitate their employment,
visits or stay at the Boutique Hotel Facility. However, such use may not be allowed
when there is a special permit issued by the City for the temporary use of the Parking
Facility for non- parking purposes with advance notice to the Developer. The City
shall cooperate in good faith with Developer to provide for minimal interruption to
the operations of the Boutique Hotel Facility during such times, and to assist in the
procurement of other parking options for employees, guests and patrons during such
times.
2.4 Payment of Eligible Costs. Subject to the limitation that is provided under this
Section 2.4, the City shall pay the actual costs that the Developer incurs in the development and
construction of the Public Facilities in accordance with the payment terms provided in Section 2.5 of
this Amended Agreement. The costs payable under this Section 2.4 shall include the actual costs and
expenses of constructing the Public Facilities, and the actual costs that are incidental thereto,
including professional fees, insurance costs, financing, performance bonds and other construction -
related fees, loan fees and carrying costs, and governmental fees and charges that are incurred prior
to and during the construction process ("Eligible Costs"). The City Planning Department has
provided the Developer with a not -to- exceed budget for the construction of the Public Facilities
having a total budget amount of $3,444,336.00. It is understood and agreed that the City's liability
under this Section 2.4 shall not at any time exceed the total amount stated in the City's budget, that
being $3,444,336.00, of which $ $101,575.84 has been paid. For the avoidance of doubt, the City's
liability under Section 5.5 is in addition to the amounts contemplated by this Section 2.4.
2.5 Payment Procedure. To obtain a payment under Section 2.4, the Developer shall
submit to the City a written application ("Application"), duly certified by its Chief Executive Officer,
that provides (i) a description of the work that was performed, (ii) an itemization of the costs that
were incurred in relation to that work, and (iii) a copy of the invoices, bills, purchase orders and other
documentation that evidences those costs. Each Application, and the payment issued thereon, shall be
subject to and governed by the following provisions:
(a) The City shall review and evaluate the information contained in the Application, and
determine whether the itemized costs constitute Eligible Costs under Section 2.4. In
making that determination, the City shall have the right and authority to (i) verify the
costs and information that are provided in the Application, (ii) inspect the
construction work that is described in the Application, (iii) consult with the contractor
who performed the work, and (iv) take any other action that the City deems beneficial
to its evaluation. The City shall pay to Developer all approved eligible costs within
ten (10 business days following the submission of the Application.
(b) The City shall have the right to reject any disputed cost, and suspend payment on that
cost until the cost has been resolved. In the event a cost is rejected, the City shall
issue a written directive which sets forth (i) the cost that has been rejected, (ii) the
grounds for that rejection, and (iii) the measures to be taken by Developer to resolve
the rejection. All unresolved disputed costs shall be processed and resolved in
accordance with Section 6.3 of this Amended Agreement.
(c) The City shall pay to the Developer all approved Eligible Costs within ten (10)
business days following the submission of the Application. Upon receipt of the
payment proceeds, the Developer shall pay and satisfy the costs that are itemized in
the Application. The Developer shall, upon the City's request, provide documentation
that evidences the payment of those costs.
2.6 Payment of Deferred Purchase Price. The parties stipulate and agree that the
estimated fair market value of Tract 1 is $141,000, which shall be the designated purchase price of
that property. The Developer shall pay to the City the designated purchase price, less any Bona Fide
Remediation Costs that are owed to the Developer under Section 5.4, in five (5) consecutive equal
installments, with the first installment to be due and payable on the sixth anniversary date following
the issuance of a Certificate of Occupancy on the Phase I Facilities, with the remaining four (4)
annual payments to be paid on or before the anniversary date in each successive year.
ARTICLE III
CONSTRUCTION REQUIREMENTS OF THE PUBLIC FACILITIES
3.1 Prosecution of Construction Work. The Developer shall diligently prosecute the
construction work on the Public Facilities in substantial accordance with the approved Design
Documents, and shall utilize its best faith efforts to complete the construction work within the time
periods designated in this Amended Agreement. The Developer shall keep the City informed on the
status and progress of construction work, and the occurrence of any event that causes a delay in the
construction process. The Developer shall perform the construction work in a good and workmanlike
manner, all of which shall fully comply with all existing building codes and other governmental laws.
3.2 Protective Measures. The Developer shall ensure that the construction work is
carried out in a reasonable and orderly manner, with due regard for the interests and safety of the
general public. Unless otherwise approved by the City, the Developer shall ensure that all
construction work in Phase I and Phase II is performed between the hours of 7:00 a.m. and 7:00 p.m.,
and that no construction work be performed on any Sunday or federal government holiday. The
Developer shall cause a solid construction fence to be constructed temporarily along the perimeters
of the construction work that contains public art and window cuts which promote the aesthetic
appearance of the fenced structure. On a temporary basis, the Developer shall also maintain and
preserve a portion of the existing parking facilities as designated by the City, and accord to the public
the right to utilize that area for parking purposes for the duration of the construction process.
3.3 Construction Costs. The Developer shall assume and timely pay all of the costs of
the construction work, including but not limited to labor and material costs, permit and inspection
fees, equipment rentals, and costs attributable to the services provided by its architects, engineers,
general contractors and subcontractors; provided, however, the Developer may withhold an agreed
upon retainage on the construction work, subject to the limitations that are defined in Kentucky's Fair
Construction Act. Upon completion of the construction work on a Public Facilities, the Developer
shall obtain final lien waivers from the architects, engineers, contractors, subcontractors and material
providers who provided the work and materials on the Facility that effectively release their lien
interests against the Public Facilities and the Development Site.
3.4 Accounting on Development and Construction Costs of the Public Facilities. The
Developer shall maintain an accurate accounting of all of the actual costs that Developer incurs in the
development and construction of the Public Facilities, and retain all invoices, purchase orders,
charges and other written documentation that evidence those costs. Upon the City's request, the
Developer shall provide to the City all of the accountings that Developer has maintained under this
Section 3.4, together with the supporting documents that are applicable thereto.
3.5 Design Documents - Remedy of Deficiencies. The Developer shall ensure that all
Design Documents used in the construction work were prepared by competent and duly licensed
architectural and engineering professionals in accordance with generally accepted professional
standards and construction practices, and that the Design Documents are free of any material errors
and deficiencies. The Developer shall assume full responsibility for any defects or deficiencies that
are contained in the Design Documents, and for any structural or other inadequacies and deficiencies
that result from those defects and deficiencies. Upon discovery of any defect of deficiency related to
the Design Documents, the Developer shall diligently and timely perform all remedial work that is
required to resolve the defects and deficiencies. It is understood and agreed that the City's acceptance
and approval of the Design Documents shall not render the City liable for any defect or deficiency in
the Design Documents, all of which liability shall be allocated to and assumed by the Developer. The
Developer shall indemnify the City and hold it harmless from any and all claims, losses and liabilities
that relate to or arise from any defect or deficiency in the Design Documents, regardless of the City's
acceptance and approval.
3.6 Material Change Orders. The Developer shall not issue any material change order
to the Design Documents without the Planning Director's prior written approval. In the event the
Developer is desirous of implementing a material change order, the Developer shall provide the
Planning Director with a written statement that describes the proposed changes to be made, and the
additional costs or savings that will result from the proposed changes. The Planning Director shall
have the right to reject a material change order if (i) the proposed material change order constitutes a
substantial deviation to the Design Documents as determined by the City; (ii) the City does not have
sufficient funds to cover the additional construction costs attributable to the proposed material
change order or (iii) the Developer has failed to fully comply with and/or satisfy any of the
construction standards and requirements that are contained under this Article III.
3.7 Insurance Requirements During Construction. Prior to the construction of the
Public Facilities, the Developer shall obtain and preserve during the construction process a builders
risk insurance policy on the Public Facilities for the full cost of replacement at the time of loss. The
insurance shall be written in such form as to cover all risks of physical loss, and shall specifically
insure against the perils and casualties that are typically covered under a builders risk insurance
policy. In addition, the Developer shall ensure that all contractors and subcontractors performing the
construction work shall procure and maintain adequate workers compensation insurance, employers'
liability insurance, business automobile liability insurance and commercial general liability
insurance, all of which shall comport with generally accepted industry standards. The Developer
shall be solely responsible for supervising the work and material provided by the contractors and
subcontractors, and shall ensure that the contractors and subcontractors perform the construction
work in a reasonable and safe manner. Upon request by the Planning Director, the Developer shall
provide the City with a performance and payment bond with respect to the construction work that is
performed, and the payment of the cost and expenses that relate thereto.
3.8 Environmental Compliance. Other than as disclosed in the environmental studies or
as already present at the Development Site, the Developer shall not cause or permit any hazardous
material to be located upon or under any part of the Development Site that is non- compliant with
any federal, state, or local environmental law. For the purpose of this agreement, "hazardous
material" shall mean any and all materials or substances that are deemed hazardous, toxic or
dangerous under any federal, state or local statute. The Developer shall indemnify and hold the City
harmless from and against any and all losses, liabilities, damages, injuries, costs, expenses (including
without limitation reasonable attorney and consultant fees), claims for damage to the environment,
claims for fines or civil penalties, costs of any settlement or judgment, and claims of any and every
kind whatsoever, that relate to or arise from the presence of any Hazardous Material on the
Development Site due to the acts or omissions of the Developer, or the contractors and
subcontractors that performed the construction work.
3.9 Indemnitv. The Developer shall indemnify and defend the City (and their respective
representatives, officers, employees, agents, insurers, and all successors and assigns), and hold them
harmless from and against any and all claims, demands and causes of action that relate to or arise
from the development and construction of the Public Facilities, and from any and all damages, losses,
judgments, obligations, liabilities, costs and expenses (including investigative, consultant and repair
costs, and all legal costs and attorney fees) that result therefrom. This indemnity shall specifically
apply to all acts and omissions of the contractors and the subcontractors who perform the
construction work, irrespective of any negligence on the part of the City; provided, however, that the
Developer shall not be obligated to provide any indemnity for a claim that is solely attributable to the
negligence and/or willful misconduct of the City or its agents. This indemnity shall remain in full
force and effect until all indemnified claims, demands and causes of actions are finally adjudicated,
or are otherwise barred by applicable law. The City shall be named as an additional insured parry on
all certificates of insurance held by the Developer and/or its contractors and subcontractors. The City
shall hold copies of all insurance documents for work on the Public Facilities.
ARTICLE IV
DEVELOPMENT AND CONSTRUCTION OF PHASE II FACILITIES
4.1 General Scope of Development. The Developer shall develop and construct upon
Tract 3 of the Development Site the Mixed -Use Facilities that comport with the facilities that are
generally depicted in Appendix "A" to this Amended Agreement. To facilitate the development and
construction of those facilities, the City shall convey to the Developer all of its rights, title and
interest in and to Tract 3, subject only to permitted encumbrances as approved by the Developer, in
its sole discretion, provided that the Developer has fully complied with all of the preliminary
requirements and commitments that are defined under this Article IV.
4.2 Preliminary Requirements and Commitments. The Developer shall fully perform
and timely satisfy all of the preliminary requirements and commitments that are provided as follows:
(a) Minimum Design and Building Requirements. The Developer shall ensure that the
Phase II Facilities shall be developed and constructed in accordance with the
following requirements:
(1) The Mixed-use Facilities shall be constructed along Broadway Street,
generally as depicted on the site plan provided in Appendix "A". Any
substantial changes to the location and the building massing shall be reviewed
and approved by the Planning Director.
(2) The Mixed -Use Facilities shall contain approximately 54,000 square feet,
composed of residential, commercial and retail space, with the ground floor
primarily used for commercial uses. Any substantial changes to the
development program shall be reviewed and approved by the Planning
Director.
(3) The buildings' exterior design shall be consistent with all existing City design
and construction standards, including the City's Downtown Design Standards.
The buildings' design shall be reviewed by the Planning Director prior to any
formal submissions required under the City's codes and ordinances.
(b) Minimum Financial Commitment. The Developer shall commit and expend
approximately $9 million in the development, construction and completion of the
Mixed -Use Facilities. This shall include the costs and expenses of constructing the
Mixed -Use Facilities, professional fees that are incurred in relation to that
development and construction, insurance costs and other construction -related fees,
loan fees and costs, and governmental fees and charges that are incurred prior to and
during the construction process.
(c) Critical Completion/Closing Dates. The Developer shall comply with the
requirements that are defined under this section on or before the completion dates that
are ascribed thereto, all of which shall be deemed critical deadlines within the term
"time is of the essence".
(1) Within 180 days following the Second Effective Date, the Developer shall
submit to the Planning Director for his review and approval a set of design
plans for the Phase II Facilities.
(2) Within 365 days following the Second Effective Date, each of the parties
shall accomplish the precedent conditions that are allocated to the parties
hereunder:
i. The Developer shall have submitted evidence of financing
commitments to fund the construction of the Phase II Facilities.
ii. The Developer shall have submitted all necessary city permits,
licenses, and approvals required under the codes and ordinances of
the City to enable construction to begin.
iii. The Developer shall have submitted a final set of Design Plans for the
Phase II Facilities duly approved by the City, and the executed
construction agreements under which the Phase II Facilities will be
constructed.
iv. The City shall have submitted evidence that the property is within a
state approved Tax Increment Financing District.
(d) Closing on Transfer of Property. Within thirty (30) days following the
accomplishment of the condition precedents contained in Section 4.2(c)(2), the City
shall tender to the Developer a duly executed Deed of Conveyance which conveys to
the Developer Tract 3 as depicted and described in the Subdivision Plat. The City
shall have the right to retain a right of entry in the Deed which enables the City to
rescind the conveyance made under the Deed should the Developer fail to initiate
construction as provided in sub -paragraph (e) under this Section 4.2. In consideration
of that conveyance, the Developer shall pay to the City the deferred purchase price as
defined in Section 4.3 of this Amended Agreement.
(e) Initiation of Construction. Within ninety (90) days of the transfer of Tract 3, the
Developer shall initiate construction of the Phase H Facilities. The term "initiate
construction" shall mean and include (i) Developer's issuance of a written Notice to
Proceed letter that instructs the contractor to proceed with the construction of the
Phase II Facilities, (ii) the contractor's active engagement in performing that
construction work, and (iii) the Developer's issuance to the City of a Certificate of
Commencement of Construction, duly verified by its Chief Executive Officer, that
certifies the Developer's initiation of construction work, and its intent to prosecute
that work until completion.
(fl The Developer shall thereafter utilize its best efforts to complete the construction
work on the Phase II Facilities within a period of eighteen (18) months following the
commencement date of the work, excepting delays that are caused by extraordinary
conditions outside of Developer's control.
4.3 Payment of Deferred Purchase Price. The parties stipulate and agree that the
estimated fair market value of Tract 3 is $155,000.00, which shall be the designated purchase price of
that property. The Developer shall pay to the City the designated purchase price, less any unpaid
Bona Fide Remediation Costs that are owed under Section 5.4 of this Amended Agreement, in five
(5) consecutive equal installments, with the first installment to be due and payable on the sixth
anniversary following the Certificate of Occupancy of the Phase II Facilities, with the remaining
payments to be made on the anniversary date of each successive year.
ARTICLE V
DEVELOPER'S ACCEPTANCE OF DEVELOPMENT SITE
5.1 Condition of Development Site. The City has provided the Developer with copies of
all environmental studies that were performed on the Development Site, and the findings that were
made therefrom. Having reviewed the findings that were made in those studies, the Developer has
agreed to accept the Development Site in its present condition, with all existing defects and
deficiencies, including defects and deficiencies relating to environmental matters. The conveyance of
Tracts 1 and 3 to the Developer, as provided under this Agreement, shall contain a warranty of good
title, and a general disclaimer of all warranties regarding the condition, suitability and legal
compliance of the properties being conveyed.
5.2 Subdivision Plat. The parties stipulate and agree that the Subdivision Plat accurately
depicts the Development Site, and the tracts that are described in the Plat, specifically including that
tracts that are to be conveyed to Developer under Articles II and IV of this Amended Agreement. "
5.3 Remediation of Development Site. The Developer shall assume sole liability for
remedying the environmental defects and deficiencies that are noted in the environmental studies,
and paying the costs relating thereto, subject to the terms that are provided in Sections 5.4 and 5.5
below. The Developer shall perform all remediation work that may be required by any applicable
federal, state and local environmental law in accordance with the procedures and standards that are
contained under those laws. Upon request, the Developer shall provide the City with copies of any
and all documentation that relate to the remedial work, and any governmental approvals and permits
that were issued thereon.
5.4 Payment of Remediation Costs on Tracts 1 and 3. Should the Developer incur
Bona Fide Remediation Costs on remediation work provided to Tracts 1 and 3, the Developer shall
have the right to offset those costs against the purchase amounts that are to be paid by Developer
under Sections 2.6 and 4.3 of this Amended Agreement. Developer's remedy under this Section 5.4
shall be governed by and subject to the following provisions:
(a) Developer shall provide the City with a detailed written accounting of the Bona Fide
Remediation Costs, and the documentation that evidences those costs. The City shall
have the right to audit and verify the accounting and documentation, and to reject any
disputed cost. All unresolved disputed costs shall be administered and resolved in
accordance with Section 6.3 of this Amended Agreement.
(b) All approved Bona Fide Remediation Costs shall be applied to and credited against
the purchase amount that Developer is obligated to pay on the transfer of Tract I
under Section 2.6, and then to the purchase amount that Developer is obligated to pay
on the transfer of Tract 3 under Section 4.3 of this Amended Agreement. The balance
of the unpaid purchase amount(s) shall be paid to the City in accordance with the
payment terms in Sections 2.6 and 4.3 of this Amended Agreement.
(c) In the event the approved Bona Fide Remediation Costs exceed the sum total of the
purchase amounts under Sections 2.6 and 4.3, the parties shall work collaboratively to
identify additional sources of funds to be used for remediation. In the event the
parties are unable to obtain the additional funds, each party shall assume and pay an
equal share of the excess costs.
5.5 Payment of Remediation Costs on Tract 2. Should the Developer incur Bona Fide
Remediation Costs on remediation work provided to Tract 2, the City shall reimburse Developer on
those costs as the costs are incurred. To obtain payment on those costs, the Developer shall comply
with the payment procedure that is provided in Section 2.5 of this Amended Agreement, the terms of
which shall govern the payment of the remediation costs hereunder.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 Disclosure of Information Under TIF. The Developer shall disclose to the City any
information and documentation that is pertinent to the City's reporting requirements under
Kentucky's TIF laws, and the City's ordinances. The City shall hold the disclosed information and
documentation on a confidential basis, excepting information that is generally known to the public;
provided, however, that the City shall have the right to disclose the information and documentation to
the Kentucky Economic Development Finance Authority as required under Kentucky's TIF laws.
6.2 Right of Specific Performance. Each party shall have the right to enforce the terms
and provisions of this Agreement, and to obtain the benefits that were accorded to them under this
Agreement. In the event a party should fail to faithfully perform any of the covenants, obligations or
undertakings that are imposed under this Agreement, or contest any of the understandings that are
made under this Agreement, the other party shall have all rights and remedies as provided by law,
specifically including the right to obtain specific performance and injunctive relief, the right to
terminate this Agreement, and the right to recover any losses, damages, costs and expenses that are
incurred by the party as a result of the defaulting party's breach, including their reasonable attorney
fees; excepting however, any consequential or incidental damages that a party may incur, all of
which are expressly excluded from recovery. Should the Developer fail to initiate construction of the
Phase I Facilities or the Phase II Facilities after receiving fee title to the tract upon which the
Facilities are to be constructed within the timelines provided in the applicable deed for such tract and
subject to all notice and cure periods, including to Developer's lender, the City shall have the right, at
its option, to rescind the conveyance of the applicable tract, and recover fee title to the tract, or
alternatively, to make immediate demand on the payment of the final deferred purchase price that is
applicable to that tract, and to collect and recover that amount from the Developer, plus interest at the
legal rate of 8% from and after the date of the City's demand. Should the Developer complete the
construction on the Phase I Facilities as provided in this Amended Agreement, the City's rights and
remedies with respect to those Facilities shall terminate, all of which Facilities shall be excluded
from the terms under this Section 6.2.
6.3 Resolution of Disputes. This Agreement shall be construed and enforced in
accordance with the laws of the state of Kentucky. In the event of any dispute regarding the
interpretation or enforcement of this Agreement, the parties shall attempt to resolve the dispute by
negotiation. If the dispute cannot be resolved by negotiation, the parties shall submit the dispute for
administered mediation, which shall take place in Paducah, Kentucky. All unresolved disputes shall
be submitted to McCracken Circuit Court, which court shall have exclusive jurisdiction over the
dispute. Each parry irrevocably attoms to the jurisdiction of that court, and waives all rights to protest
that jurisdiction. Each party also waives their right to a jury trial. In any action seeking enforcement
of this Agreement, the prevailing party shall be entitled to recover the costs and expenses that they
10
incurred in such action, including their reasonable attorneys' fees.
6.4 Waivers. The waiver by a party of any default or breach of this Agreement shall not
constitute a waiver of any other or subsequent default or breach. Each party shall have the right to
enforce the provisions of this Agreement in strict accordance with the terms hereof, notwithstanding
any prior conduct or custom. The failure of a party to enforce its rights under this Agreement shall
not be construed as having created a custom that is contrary to specific provisions of this Agreement,
or as having in any way or manner modified or waived such provisions. All rights and remedies of
the parties shall be cumulative, and the exercise of one right or remedy shall not be deemed a waiver
or release of any other right or remedy.
6.5 Notices. All notices shall be in writing and sent (unless otherwise provided herein) by
first class mail, postage prepaid, or personally delivered. Any marked notice shall be deemed to be
sent on the day deposited in the mail. Any notice shall be sent to the following addresses:
DEVELOPER:
Attn: Barry Alberts, Managing Director
City Visions Associates/Weyland Ventures
815 W. Market Street #110 Louisville KY 40202
Business phone: 502.561.7885
Email: balberts(a,cityvisionassociates.com
CITY:
Attn: Planning Director, City of Paducah
300 S. 5th Street
Paducah KY 42002
Business phone: 270.444.8690
Email: nhutchison@paducah.gov
_ 6.6 Entire Agreement. This Agreement embodies the entire agreement between the
parties with respect to the development of the Development Site. There are no representations, terms,
conditions, covenants or agreements between the parties relating thereto that are not contained
herein. This Agreement shall completely and fully supersede all other prior agreements, both written
and oral, between the parties with respect to the matters addressed herein, including the preliminary
agreement that was executed by the parties in April of 2019 and the Development Agreement. This
Agreement shall be deemed drafted by both parties, and no ambiguity in the construction of this
Agreement shall be resolved against either party by reason of the draftsmanship of this Agreement.
The covenants, terms, and conditions and obligations set forth and contained in this Agreement shall
be binding upon and inure to the benefit of Developer and the City, and their respective heirs,
successors, and assigns.
6.7 Assignment. The Developer shall not have the right to assign this Agreement, or any
of its rights and obligations hereunder, without the City's prior written approval; provided, however,
Developer shall have the right to assign to an affiliated company some or all of its rights and
obligations under this Amended Agreement upon written notice to the City. Any assignment made
under this Section 6.7 shall not relieve Developer from the obligations and liability that it assumed
under this Amended Agreement, all of which shall remain in full force and effect. In addition,
Developer shall have the right and the City agrees to provide reasonable consent to any collateral
assignment of this Agreement to any first lender as additional security for an first mortgage lender.
6.8 Captions. The article and paragraph headings and captions contained in this
Agreement are included for convenience only, and shall not be considered a part hereof or effect in
any manner the renovation or interpretation of this Agreement.
6.9 Severability. In the event any provision of this Agreement shall be deemed null and
void or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or
render unenforceable any of the remaining provisions hereof.
6.10 Counterparts. This Agreement may be independently executed in any number of
counterparts, each of which, when executed and delivered, shall constitute an agreement that shall be
binding upon all parties notwithstanding that the signatures of all parties and/or their designated
representatives do not appear on the same page. Facsimile signatures shall have the same effect as
original signatures.
11
6.11 Estoppel Certificates. Each Party (a "Producing Parry") shall, from time to time,
within ten business days after written request by another Party (a "Requesting Party"), execute and
deliver to the Requesting Party and/or such third party designated by the Requesting Party, a written
statement certifying (a) that (except as may be otherwise specified by the Producing Parry) (i) this
Agreement is in full force and effect and unmodified, (ii) the Producing Party is not in default in the
performance or observance of its obligations under this Agreement, and (iii) to the Producing Party's
actual knowledge, the Requesting Party is not in default in the performance or observance of the
Requesting Parry's obligations under this Agreement, and (b) as to such other factual matters as the
Requesting Party may reasonably request about this Agreement, the status of any matter relevant to
this Agreement, or the performance or observance of the provisions of this Agreement; provided,
however, the obligations imposed under this Section 6.11 is subject to each party's full compliance
with their obligations and undertakings under this Amended Agreement with respect to the applicable
tract for which an estoppel certificate is being requested.
12
WITNESS, our signatures made on the subscribing dates written below.
CITY OF PADUCAH
U -N
George Bray, Mayor
STATE OF KENTUCKY
COUNTY OF MCCRACKEN )
DEVELOPER
C
Title:
The foregoing instrument was sworn and acknowledged before me this day of
December, 2022, by George Bray, as the mayor of the City of Paducah, Kentucky, for and in behalf
of the City, who is the Grantor hereunder.
My commission expires
Notary Public, State at Large
STATE OF KENTUCKY
COUNTY OF JEFFERSON )
The foregoing instrument was sworn and acknowledged before me this
December, 2022, by , as the
Weyland Ventures Development, LLC, for and in behalf of the Company, who is the Grantee
hereunder.
day of
of
My commission expires
13
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6.1 Disclosure of Information Under TIF. The Developer shall h lean y disclose to the
City any information and documentation that is pertinent to the City's reporting requirements unde
Kentucky's TIF_laws, and the City's ordinances. This information shall include the information tha
is described in Appendix `B" to this Amended Agreement, all of which shall be disclosed in
accordance with the disclosure requirements contained thereunder. The City shall hold the disclosed
information and documentation on a confidential basis, excepting information that is generally
known to the public; provided, however, that the City shall have the right to disclose the information
and documentation to the Kentucky Economic Development Finance Authority as required under
Kentucky's TIF laws.
APPENDIX "B"
(Disclosures under TIF)
Capital Expenditure Reports:
The Developer shall submit to the City semiannual reports that provide a detailed accounting on the
Capital Expenditures that the Developer incurred during the reporting period described hereunder, and the
documentation that evidences those expenditures. Each Capital Investment Report shall include the
information that is categorized in the form that is attached to this Appendix `B". The term "Capital
Expenditure" as referenced hereunder shall include:
Obligations incurred for labor and to contractors, subcontractors, builders and materialmen in connection
with the construction, development or improvements;
• The cost of acquiring and or rights in land on-site and any cost incident thereto,
including recording fees;
• The cost of contract bonds and of insurance of all kinds that may be required or
necessary during construction, development or improvements, which is not paid by the
contractor or contractor or otherwise provided;
• All costs of architectural and engineering services, including test borings, surveys,
estimates, plans, specifications, preliminary investigations,
• The cost of supervision of the construction, and the performance of all the duties
required by or consequent upon construction, development or improvements on-site;
• All costs that are required to be paid under the terms of any contract(s) for
construction, development or improvements on-site;
• All other costs of a nature comparable to those described in the preceding paragraphs
subparts that are incurred and are relative to the construction, development, or
improvements on-site.
Capital Expenditure Reports for the reporting period of January 151 through June 30' shall be submitted
on or before July 15' of that same year. Capital Expenditure Reports for the reporting period of July 15`
through December 315/ shall be submitted on or before January 15`t' of the following year. The
submission of these reports shall remain in effect until the completion of the development project, or the
termination of the City's TIF program, the earlier to apply.
Increment Accountine
The Developer shall submit to the City the Questionnaires and TIF Tax Forms that are referenced
hereunder, in completed form, on or before April 15`s of each calendar year:
Business Questionnaire for each subcontractor operating within the TIF Footprint during the previous
calendar year
Business Questionnaire for each business subject to participating taxes operating within the TIF Footprint
during the previous calendar year
TIF Tax Form from each subcontractor for the reporting of the following tax totals from operations only
within the Footprint:
• City of Paducah and McCracken County payroll taxes related only to on-site activity
and remitted for the previous calendar year.
• State of Kentucky individual income tax withholdings related only to on-site wages
and remitted for the previous calendar year.
TIF Tax Form completed by each business subject to the participating taxes within the Footprint to report
the following tax totals from operations only within the Footprint:
• City of Paducah and McCracken County payroll taxes related only to activity within
the Footprint and remitted for the previous calendar year.
Copies of these Questionnaires and Tax Forms are attached to this Appendix `B".
272900
EXHIBIT "B"
DEED OF ACCESS
THIS DEED OF ACCESS made and entered into this _ day of December, 2022, by and
between CITY OF PADUCAH, KENTUCKY, a municipal corporation of the Home Rule Class
existing under the laws of the Commonwealth of Kentucky, and a body politic and corporate, whose
address is Post Office Box 2267, Paducah, Kentucky 42002-2267, hereafter referred to as the
"Grantor", and JEFFERSON AND WATER, LLC, a Kentucky limited liability company, whose
address is 815 W. Market Street, No. 110, Louisville, Kentucky 40202, and any future successor and
assign of Tract 1 (as described below), hereinafter referred to as the "Grantee."
WITNESSETH:
WHEREAS, Grantor holds fee title to a 2.88 -acre tract of property located at 133 Broadway
Street, which tract is bounded by Water Street, Broadway Street, North Second Street and Jefferson
Street, all of which is located within Grantor's TIF District (hereafter the "Development Site"); and
WHEREAS, Grantor and Weyland Ventures Development, LLC (hereafter "Weyland")
entered into a Development Agreement dated August 12, 2020, that obligates Weyland to construct
various improvements on the Development Site, they being the Phase I Facilities, which are
comprised of a boutique hotel, an off-street parking facility, an urban park, and a greenspace park,
and the Phase II Facilities, which are comprised of mixed use facilities, all of which are generally
depicted in Appendix "A" to the Development Agreement; and
WHEREAS, to facilitate the development to be made on the Development Site, the Grantor
subdivided the Development Site into three separate tracts, which include Tract 1 (which is the situs
of the boutique hotel), Tract 2 (which is the situs of the parking facility and parks), and Tract 3
(which is the situs of the mixed use facilities), all of which are depicted in the "City of Paducah
Downtown Development Plat" that was filed with the McCracken County Clerk's Office on May 4,
2022, and recorded in Plat Section M, page 1697 (hereafter the "Development Plat"); and
WHEREAS, Grantor and Weyland entered into an Amended and Restated Development
Agreement dated December 15, 2022, to extend the critical performance dates that were recited in the
Development Agreement, and to clarify several contract provisions that were affected by that
extension (hereafter collectively the "Development Agreement"); and
WHEREAS, Weyland has assigned to Grantee all of its rights and obligations on the
development and construction of the Boutique Hotel Facility, which assignment is evidenced under a
Partial Assignment of Development Agreement dated as of December 15, 2022; and
WHEREAS, Grantee has informed Grantor of its intent to proceed with the construction of
the Phase I Facilities, and has requested that Grantor grant unto Grantee access rights in and to Tracts
2 and 3 as depicted in the Development Plat; and
WHEREAS, to induce Grantor in making that grant, Grantee has warranted to Grantor that
Grantee shall initiate construction of the Phase I Facilities within ninety (90) days following the date
of this conveyance, and shall utilize its best interests to complete the construction of the Facilities
within eighteen (18) months following commencement of construction.
WHEREAS, Grantee will take title to Tract 1 which is following described real property,
lying and being in McCracken County, Kentucky, and more particularly described as follows:
Being Tract 1 that is depicted in the Subdivision Plat of The City of Paducah Downtown
Development, a copy of which is recorded in Plat Section M, Page 1697, McCracken County
Clerk's Office.
Being a portion of the real property that was conveyed to Grantor under two deeds, all of
which were recorded with the McCracken County Clerk's Office, they being (i) a deed issued
from the Greater Paducah Chamber of Commerce, Inc., on July 23, 1970, a copy of which is
recorded in Deed Book 520, Page 237, and (ii) a deed issued from the County of McCracken
on July 9, 1991, a copy of which is recorded in Deed Book 756, Page 115.
NOW, THEREFORE, in consideration of the mutual covenants, obligations, undertakings
and liabilities that are to be assumed and performed by the parties under the Development Agreement
and this Deed, Grantor grants unto the Tract 1 and Grantee, its successors and assigns forever,
nonexclusive access rights in and to the following described real property, lying and being in
McCracken County, Kentucky, and more particularly described as follows:
Being Tracts 2 and 3 that are depicted in the Subdivision Plat of The City of Paducah
Downtown Development, a copy of which is recorded in Plat Section M, Page 1697,
McCracken County Clerk's Office.
Being a portion of the real property that was conveyed to Grantor under four deeds,
all of which were recorded with the McCracken County Clerk's Office, they being (i)
a deed issued from the Greater Paducah Chamber of Commerce, Inc., on July 23,
1970, a copy of which is recorded in Deed Book 520, Page 237, (ii) a deed issued
from the County of McCracken on July 9, 1991, a copy of which is recorded in Deed
Book 756, Page 115, (iii) a deed issued from Smith Development, Inc., on May 15,
1991, a copy of which is recorded in Deed Book 753, Page 578, and (iv) a Quitclaim
Deed that was issued to the City of Paducah on March 29, 2022, a copy of which is
recorded in Deed 1454, Page 623.
Grantee's access rights in and to Tracts 2 and 3 shall be subject to and governed by the
following terms and conditions:
(a) Grantee shall have temporary access rights to Tracts 2 and 3 for the purpose of
constructing the Parking Facility, the Urban Park and the Greenspace Park that are
described in the Development Agreement, and performing any remedial warranty
work following the completion of the construction, if and as required by the
Development Agreement. The access rights granted hereunder shall be subject to the
following terms:
(i) Grantor shall have the right to retain and operate the parking facility that is
currently located upon Tract 3, and to use that facility for public parking and
other municipal purposes. In exercising its access rights over and upon that
Tract, Grantee shall utilize its best efforts to accommodate the public's use of
the parking facility, when feasible.
(ii) Grantee shall initiate and prosecute the construction work on the Public
Facilities in an expeditious manner, and shall utilize its best efforts to
complete the construction work within a period of seven (7) months following
commencement of the work, excepting delays that are caused by
extraordinary conditions outside of the Developer's control. Upon completion
of the construction work, the City shall have the unconditional right to take
control and possession over the Public Facilities, and utilize the Parking
Facility for public parking and other municipal purposes.
(b) Grantee shall have perpetual access rights to the Parking Facility for the purpose of
providing parking to its employees, patrons, agents and guests, at no additional fee to
Grantee or to such employees, patrons, agents and guests. Grantee understands and
agrees that its access rights to the Parking Facility shall be subject to Grantor's
superior right to regulate and control the activities within the Parking Facility to
ensure the safe and efficient use and operation of the Parking Facility, and the
regulations, restrictions and limitations that Grantor adopts in relation thereto, none
of which shall unreasonably interfere with the operation of the Boutique Hotel
Facility (the "Parking Regulations"). Other than for general public use and temporary
events as provided herein, Grantor shall not grant to any third party any access rights
to the Parking Facility that would substantially impair the access rights granted to
Grantee hereunder.
(c) The Grantee shall construct the Public Facilities in accordance with the Design
Documents that were approved by the Grantor pursuant to the Development
Agreement. Grantee shall consult with Grantor with respect to the implementation of
the Design Documents, and any changes that are made to those Documents, all of
which shall be subject to the change order provisions in the Development Agreement.
(d) Grantee shall indemnify, defend and hold the Grantor (and its officers, employees and
agents) harmless from and against any claims, demands, causes of action, suits,
judgments and other liabilities that arise out of, or are attributable to, or result from
Grantee's use of the access rights granted hereunder, and the activities that Grantee
performs on the Public Facilities; provided, however, that Grantee shall have no
indemnity obligation on any liability that arose from or is solely attributable to or
caused by a negligent act or omission committed by Grantor, or any of its employees
and agents.
(e) The Grantee's use and enjoyment of the access rights to the Public Facilities shall be
exercised in a reasonable manner with due regard to the general public's use of that
Facility. The Grantee understands and agrees that the Public Facilities shall be
developed, constructed and maintained for the benefit of the public, and perpetually
dedicated for public use. Each of the parties shall have the following rights and
privileges to those Facilities, and to use the Facilities for the purposes stated
hereunder:
(i) The Grantor shall have the right to utilize the Parking Facility for public
events and other temporary purposes that are beneficial to its citizens,
provided that such use does not unreasonably interfere with the operation of
the boutique hotel. In relation thereto, the City shall have the right to accord
to third party promotors full access to the Parking Facility for the purpose of
conducting the events and other purposes that are permitted hereunder.
(ii) The Grantee shall have the right to accord to its employees, guests, agents and
patrons the right to park their vehicles within the Parking Facility to facilitate
their employment or stay at the Boutique Hotel Facility, provided that they
comply with the Parking Regulations (as defined above).
(iii) Following the completion of construction of the Public Facilities, the Grantor
shall, at its sole cost and expense, maintain the Public Facilities in good repair
and operating order, and assume the day-to-day maintenance of those
Facilities, including cleaning, snow removal, and any all repairs and
replacements.
(f) The grant of access conveyed hereunder is conditioned upon and subject to Grantee's
compliance with the conditions subsequent that is contained in the Deed that Grantor
issued to Grantee on this date. In the event Grantor exercises its right of reentry under
the Deed then the access rights granted to Grantee shall terminate. The grant of the
perpetual access rights to the Parking Facility is made for the benefit of a hotel
enterprise and shall remain in effect for so long as a hotel is located on Tract 1. Should
Grantee or its assigns abandon or close the hotel enterprise on Tract 1 and so long as
Grantee's first mortgage holder affirmatively and in writing waives its right to include
such grant of access in any foreclosure action (including a deed in lieu of foreclosure)
for the use and benefit any successor owner or operator of Tract 1 as a hotel, the
perpetual access rights granted hereunder shall be deemed abandoned and terminated.
(g) This Deed of Access shall be construed and enforced in accordance with the laws of
the state of Kentucky. In the event of any dispute regarding the interpretation or
enforcement of this Deed, the parties shall attempt to resolve the dispute by negotiation.
If the dispute cannot be resolved by negotiation, the parties shall submit the dispute for
administered mediation which shall take place in Paducah, Kentucky. All unresolved
disputes shall be submitted to McCracken Circuit Court, which court shall have
exclusive jurisdiction over the dispute. Each party irrevocably attoms to the
jurisdiction of that court and waives all rights to protest that jurisdiction. Each party
also waives their right to a jury trial. In any action seeking enforcement of this
Agreement, the prevailing parry shall be entitled to recover from the other party the
costs and expenses that it incurred in such action, including its reasonable attorneys'
fees. This Deed of Access and the terms and conditions hereof is an appurtenant
easement that runs with the land and shall burden and benefit the successors and assigns
of the Grantor and Grantee including those of any future subdivision of Tracts 1, 2 and
3.
(h) Any notice to any party hereto by another party shall be sufficiently given if in writing
and delivered personally, by courier or private service delivery, or on the third business
day after deposit in the mail for registered or certified mail, postage prepaid, return
receipt requested, at the address provided in the first paragraph hereof. Notice to any
lender securing a lien on a Tract shall be sufficient if it is to the address of the lender
set forth in its mortgage or other lien document.
(i) The rule of strict construction does not apply to the easements contained herein. This
Deed of Easement shall be given a reasonable construction in order that the intention
of the parties to confer a commercially useable right of enjoyment to the owners of
4
Tracts 1, 2 and 3, with respect to the easements granted herein shall be effectuated and
to confer a commercially useable right of use to Grantee.
(j) This instrument contains the entire declaration relating to the rights herein granted and
the obligations herein assumed. Any oral representations or modifications concerning
this instrument shall be of no force or effect except in a subsequent modification in
writing, signed by the party to be charged.
5
IN WITNESS THEREOF, the parties have duly executed this Deed on the dates referenced
below.
CITY OF PADUCAH
George Bray, Mayor
JEFFERSON WATER, LLC
0
Title:
STATE OF KENTUCKY
COUNTY OF MCCRACKEN )
The foregoing instrument was sworn and acknowledged before me this day of
December, 2022, by George Bray, as the mayor of the City of Paducah, Kentucky, for and in behalf
of the City, who is the Grantor hereunder.
My commission expires
Notary Public, State at Large
STATE OF KENTUCKY
COUNTY OF JEFFERSON )
The foregoing instrument was sworn and acknowledged before me this
December, 2022, by , as the
Jefferson and Water, LLC, for and in behalf of the Company, who is the Grantee hereunder.
day of
of
My commission expires
Notary Public, State at Large
This instrument prepared by:
Thomas J. Keuler
Keuler, Kelly, Hutchins,
Blankenship & Sigler, LLP
100 South 4' Street, Suite 400
Paducah, KY 42001
Send current year tax bill to:
Weyland Ventures Development, LLC
815 W. Market Street, No. 110
Louisville, Kentucky 40202
EXHIBIT "C"
264523
DEED
THIS DEED made and entered into this day of December, 2022, by and between CITY
OF PADUCAH, KENTUCKY, a municipal corporation of the Home Rule Class existing under the
laws of the Commonwealth of Kentucky, and a body politic and corporate, whose address is Post
Office Box 2267, Paducah, Kentucky 42002-2267, hereafter referred to as the "Grantor", and
JEFFERSON AND WATER, LLC, a Kentucky limited liability company, whose address is 815 W.
Market Street, No. 110, Louisville, Kentucky 40202, hereinafter referred to as the "Grantee."
WITNESSETH:
WHEREAS, Grantor holds fee title to a 2.88 -acre tract of property located at 133 Broadway
Street, which tract is bounded by Water Street, Broadway Street, North Second Street and Jefferson
Street, all of which is located within Grantor's TIF District (hereafter the "Development Site"); and
WHEREAS, Grantor and Weyland Ventures Development, LLC (hereafter "Weyland")
entered into a Development Agreement dated August 12, 2020, that obligates Weyland to construct
various improvements on the Development Site, they being the Phase I Facilities, which are
comprised of a boutique hotel, an off-street parking facility, an urban park, and a greenspace park,
and the Phase II Facilities, which are comprised of mixed use facilities, all of which are generally
depicted in Appendix "A" to the Development Agreement; and
WHEREAS, to facilitate the development to be made on the Development Site, the Grantor
subdivided the Development Site into three separate tracts, they being Tract 1 (which is the situs of
the boutique hotel), Tract 2 (which is the situs of the parking facility and parks), and Tract 3 (which
is the situs of the mixed use facilities), all of which are depicted in the "City of Paducah Downtown
Development Plat" that was filed with the McCracken County Clerk's Office on May 4, 2022, and
recorded in Plat Section M, page 1697 (hereafter the "Development Plat"); and
WHEREAS, Grantor and Weyland entered into an Amended and Restated Development
Agreement dated December 15, 2022, to extend the critical performance dates that were recited in the
Development Agreement, and to clarify several contract provisions that were affected by that
extension (hereafter collectively the "Development Agreement"); and
WHEREAS, Weyland has assigned to Grantee all of its rights and obligations on the
development and construction of the Boutique Hotel Facility, which assignment is evidenced under a
Partial Assignment of Development Agreement dated December 15, 2022; and
WHEREAS, Grantee has informed Grantor of its intent to proceed with the construction of
the Phase I Facilities, and has requested that Grantor convey unto Grantee the tract of property upon
which the boutique hotel will be constructed, that being Tract 1 as depicted in the Development Plat;
and
WHEREAS, to induce Grantor to make that conveyance, Grantee has warranted to Grantor
that Grantee shall initiate construction of the Phase I Facilities within ninety (90) days following the
date of this conveyance, and shall utilize its best efforts to complete the construction of the Phase I
Facilities within eighteen (18) months following commencement of construction.
NOW, THEREFORE, in consideration of the $141,000.00 deferred purchase price that
Grantee has agreed to pay Grantor, and the mutual covenants, obligations, undertakings and liabilities
that are to be assumed and performed by the parties under the Development Agreement and this Deed,
Grantor does hereby grant, bargain, sell, alien and convey unto the Grantee, its successors and assigns
forever, the following described real property, lying and being in McCracken County, Kentucky, and
more particularly described as follows:
Being Tract 1 that is depicted in the Subdivision Plat of The City of Paducah
Downtown Development, a copy of which is recorded in Plat Section M, Page 1697,
of the McCracken County Clerk's Office.
Being a part of the real property that was conveyed to Grantor under two deeds, both
of which were recorded with the McCracken County Clerk's Office, they being (i) a
deed issued from the Greater Paducah Chamber of Commerce, Inc., on July 23, 1970,
a copy of which is recorded in Deed Book 520, Page 237, and (ii) a deed issued from
the County of McCracken on July 9, 1991, a copy of which is recorded in Deed Book
756, Page 115.
TO HAVE AND TO HOLD said property, together with all improvements thereon and all
rights and appurtenances hereunto pertaining, unto Grantee, its successors and assigns forever, by
general warranty. Grantee understands and agrees that Grantor expressly disclaims all other
warranties with respect to the real property conveyed hereunder, including warranties on condition,
suitability and legal compliance. Grantee agrees to accept said real property "AS IS," with all
existing defects and deficiencies, both known and unknown.
THERE IS EXCEPTED from this conveyance a right of reentry that Grantor has retained in
the above-described property. Grantee understands and agrees that the conveyance made hereunder is
conditioned upon and subject to Grantee's full and timely compliance with the mandatory condition
subsequent that is contained in subparagraph (a) in this this Deed. Should Grantee fail to comply with
that condition, Grantor shall have the rights and remedies that are provided hereunder. Where
applicable Grantee's first mortgage lender is an intended third -party beneficiary of the covenants,
conditions and promises set forth below.
(a) The Grantee shall initiate construction on the Phase I Facilities within a period of
ninety (90) days following the date of this Deed ("Compliance Period"). The term
"initiate construction" shall mean and include (i) Grantee has issued a written Notice
to Proceed letter that instructs its contractors to proceed with the construction of the
Phase I Facilities, (ii) the contractors are actively engaged in performing the
construction work on those Facilities, and (iii) the Grantee has issued to Grantor a
Certificate of Commencement of Construction, duly verified by its Chief Executive
Officer, that certifies Grantee's compliance with the condition subsequent defined in
this subsection (a), and its commitment to complete the construction work on the
Phase I Facilities within eighteen (18) months following the commencement of
construction.
(b) In the event Grantee fails to achieve substantial compliance on the condition
subsequent on or before the expiration of the Compliance Period ("Failed Condition"),
Grantor shall issue to Grantee a written demand for the full performance of the Failed
Condition, a copy of which shall be sent to Developer's mortgage lender ("Lender").
Grantee and its Lender shall thereafter be accorded a cure period of forty-five (45) days
from receipt of such notice within which to achieve material compliance of the
condition subsequent. Should those parties fail to achieve material compliance within
the cure period, Grantor shall have the absolute right to rescind the conveyance made
under this Deed, and to re-enter and re -take full and exclusive title and possession to
the above-described real property. Should Grantor elect to exercise such right after the
expiration of the applicable cure period, Grantor shall send to Grantee and its Lender
a written notice that informs them of Grantor's exercise of its right of reentry, and its
recission of the conveyance that was made hereunder. Grantee and its Lender shall,
within ten (10) days following receipt of the notice, surrender the above-described real
property to Grantor, and relinquish all claims to that property.
(c) hi the event Grantee is unable to timely perform or cure the Failed Condition due to a
force majeure event, or an event that is not attributable to or caused by Grantee,
Grantee shall be accorded an extension of time within which to achieve compliance.
The extension of time shall terminate on the tenth (10a`) day following the expiration
of the event, or June 30, 2023, the earlier to apply.
(d) Upon Grantee's full compliance with the mandatory condition subsequent recited in
sub -paragraph (a) above, Grantor shall promptly issue to Grantee a Certificate of
Compliance, in recordable form, that certifies Grantee's full performance of the
condition subsequent, and releases and forever waives the reentry right that was
retained by Grantor in the Deed. Such recordable Certificate of Compliance shall be
in a form reasonably satisfactory to Lender, Grantee and Lender's title insurance
company. A copy of the recorded Certificate of Compliance shall be sent to the
Lender.
(e) This Deed shall be construed and enforced in accordance with the laws of the state of
Kentucky. In the event of any dispute regarding the interpretation or enforcement of
the Deed, the parties shall attempt to resolve the dispute by negotiation. If the dispute
cannot be resolved by negotiation, the parties shall submit the dispute for
administered mediation which shall take place in Paducah, Kentucky. All unresolved
disputes shall be submitted to McCracken Circuit Court, which court shall have
exclusive jurisdiction over the dispute. Each party irrevocably attoms to the
jurisdiction of that court and waives all rights to protest that jurisdiction. Each party
also waives their right to a jury trial. In any action seeking the enforcement of this
Deed, the prevailing party shall be entitled to recover from the other party the costs
and expenses that it incurred in such action, including its reasonable attorneys' fees.
For purposes of KRS 382.135, Grantor and Grantees hereby swear and affirm, under penalty
of perjury, that the consideration recited herein is the actual consideration to be paid for the property
conveyed hereunder. Grantor and Grantee hereby swear and affirm, under penalty of perjury, that
said property has the estimated cash value of $141,000.00.
IN WITNESS THEREOF, the parties have duly executed this Deed on the dates referenced
below.
CITY OF PADUCAH
M
George Bray, Mayor
JEFFERSON WATER, LLC
Un
Title:
STATE OF KENTUCKY
COUNTY OF MCCRACKEN)
The foregoing instrument was sworn and acknowledged before me this day of
December, 2022, by George Bray, as the mayor of the City of Paducah, Kentucky, for and in behalf
of the City, who is the Grantor hereunder.
My commission expires
Notary Public, State at Large
STATE OF KENTUCKY
COUNTY OF JEFFERSON )
The foregoing instrument was sworn and acknowledged before me this day of
December, 2022, by , as the of
Jefferson and Water, LLC, for and in behalf of the Company, who is the Grantee hereunder.
My commission expires
Notary Public, State at Large
This instrument prepared by:
Thomas J. Keuler
Keuler, Kelly, Hutchins,
Blankenship & Sigler, LLP
100 South 4t` Street, Suite 400
Paducah, KY 42001
Send current year tax bill to:
Weyland Ventures Development, LLC
815 W. Market Street, No. 110
Louisville, Kentucky 40202