EXHIBIT B-1
PRE-ANNEXATION AND DEVELOPMENT AGREEMENT
THIS PRE-ANNEXATION AND DEVELOPMENT AGREEMENT (this "Agreement") is made as
of this 9th day of November, 2001 (the "Effective Date") by and between the CITY
OF BOWLING GREEN, a city of the fourth class and political subdivision of the
State of Missouri for governmental, political and public purposes located in
Pike County, Missouri (the "City"), and UNION ELECTRIC COMPANY d/b/a AMERENUE, a
Missouri corporation having a principal office at 0000 Xxxxxxxx Xxxxxx, Xx.
Xxxxx, Xxxxxxxx 00000, Missouri ("AmerenUE").
WHEREAS, the City is a political subdivision organized and existing under
the Constitution and laws of the State of Missouri; and
WHEREAS, Section 349.012 of the Revised Statutes of Missouri, as amended
authorizes the governing body of any municipality to promote commercial and
industrial development and, in order to achieve such promotion, to engage in any
activities which it deems necessary and Sections 70.210 through 70.320 of the
Revised Statutes of Missouri, as amended authorize municipalities to contract
with any private person, firm, association, or corporation for the planning,
development, construction, acquisition, or operation of any public improvement
or joint service, the subject and purposes of which are within the scope of the
powers of such municipality; and
WHEREAS, the City is further authorized under Article VI, Section 27(b) of
the Constitution of the State and Sections 100.010 through 100.200 of the
Revised Statutes of Missouri, as amended (the "IDB Act") to issue and sell
revenue bonds for the purpose of paying all or part of the cost of purchasing,
constructing or improving any project to be leased to a private person or
corporation for industrial development purposes; and
WHEREAS, AmerenUE is currently investigating the viability of and intends
to build or cause to be built, in one or more phases, additional electric power
generating facilities on certain real property located in Pike County, Missouri
(the "Property") including the building, fixtures, machinery and equipment
related thereto but excluding materials and supplies, fuel inventory and
vehicles (collectively, the "Project"); and
WHEREAS, AmerenUE desires that the City annex the Property, cooperate with
AmerenUE to provide water and sewer services for the benefit of the Project, and
issue revenue bonds to finance the Project and, while such bonds are
outstanding, to own the Project and lease the Project to AmerenUE or an
Affiliate, or another permitted entity which would in turn lease the Project to
AmerenUE; and
WHEREAS, the construction and the completion of the Project would not be
anticipated without the City assistance and financing contemplated in this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, in addition to the terms defined in the
foregoing recitals and elsewhere in this Agreement, the following terms shall
have the meanings set forth below:
"ACTS" shall mean collectively Article VI, section 27(b) of the Missouri
constitution and sections 70.210 through 70.220, 100.010 through 100.200, and
349.012 of the Revised Statutes of Missouri, as from time to time amended.
"AFFILIATE" shall mean any person or entity directly or indirectly
controlling, controlled by or under common control with Ameren Corporation, the
parent company of AmerenUE.
"APPROVED PURCHASER" shall mean such purchaser or purchasers as may be
acceptable to AmerenUE and reasonably acceptable to the City that acquires the
Bonds and provides for the Lender Financing.
"BONDS" shall mean any revenue bonds or other obligations issued by or
behalf of the City in furtherance of the Project and in accordance with this
Agreement and with the IDB Act.
"BOND DOCUMENTS" shall mean the form of the Bonds, the indenture of trust,
the Lease and other transactional documents necessary or convenient to allow the
City to issue and secure the Bonds for the financing of the Project as
contemplated in this Agreement.
"CITY ADMINISTRATOR" shall mean the duly appointed City Administrator of
the City of Bowling Green, Missouri.
"CLOSING" shall mean the exercise by AmerenUE or any Affiliate of a certain
option to purchase the Property currently held by or for the benefit of
AmerenUE.
"FINANCING DOCUMENT" means any loan agreement, credit agreement, security
agreement, mortgage, participation agreement, lease agreement, sublease, hedging
agreement or other document executed by or on behalf of a Financing Party.
"FINANCING PARTY" means any person or entity providing debt, lease or
equity financing (including equity contributions or commitments) or hedging
arrangements, or any renewal, extension or refinancing of any such financing or
hedging arrangements, or any guarantee, insurance, letters of credit or credit
support for or in connection with such financing or hedging arrangements, in
connection with the development, construction, ownership, lease, operation or
maintenance of the Project or interests or rights in the Lease, or any part
thereof, including any trustee or agent acting on any such person's behalf.
"GRANT" or "GRANTS" shall mean payments made by AmerenUE to the City
pursuant to Sections 5.04(b) and 5.04(c) of this Agreement.
"LEASE" means the lease purchase agreement between the City and AmerenUE
related to the financing of the Project.
"LEASEHOLD MORTGAGE" shall mean any leasehold mortgage, leasehold deed of
trust, assignment of rents and leases, security agreement or other agreement
relating to the Project permitted pursuant to the provisions of SECTION 5.02
hereof.
"LENDER FINANCING" shall mean the proceeds or the funds from the issuance
of the Bonds to the Approved Purchaser(s) of the Bonds used to pay for costs of
the Project or pursuant to any Financing Document with a Financing Party.
"MAYOR" shall mean the duly elected and serving Mayor of the City of
Bowling Green, Missouri.
"PRELIMINARY FUNDS" shall mean the sum of Fifteen Thousand Dollars
($15,000.00) to be provided by AmerenUE and used by the City as set forth in
ARTICLE II of this Agreement.
"PROJECT" shall mean electric generating facilities constructed and
installed on the Property pursuant to this Agreement including, without
limitation, the building, fixtures, machinery and equipment related thereto but
excluding materials and supplies, fuel, inventory and vehicles.
"PROPERTY" shall mean certain real property situated in Pike County,
Missouri and more particularly described in Exhibit A to this Agreement.
ARTICLE II
PRELIMINARY FUNDING
SECTION 2.01. ADVANCE FUNDS. City hereby acknowledges receipt from AmerenUE
of the Preliminary Funds to be used by the City to pay costs incurred by the
City in connection with the preparation and review of this Agreement, with the
undertaking of the annexation as described in Article III of this Agreement and
with the financing and development of the Project, but not including costs of
issuance of the Bonds which shall be paid from Bond proceeds. The City shall
deposit the Preliminary Funds in an interest bearing account and shall allocate
and use the Preliminary Funds as a source of payment of actual costs incurred by
the City for all legal, consulting, and administrative costs of the City
incurred pursuant to this ARTICLE II.
SECTION 2.02. DISBURSEMENTS. The City shall disburse the Preliminary Funds
to pay costs for the work set forth in SECTION 2.01 of this Agreement on a
monthly basis for any month in which such costs are actually incurred by the
City. Disbursements shall be made only upon receipt of: (i) invoices for work
reasonably and actually performed by attorneys and consultants selected by the
City in the City's sole discretion; (ii) receipts for any and all necessary
direct out of pocket expenditures incurred by the attorneys and consultants in
connection with such work; and (iii) such other supporting documentation as may
be requested by the City (collectively, a "Disbursement Request"); provided that
any invoice or portion thereof or supporting documentation of the selected
attorneys as part of a Disbursement Request shall at all times be and remain
subject to attorney-client and attorney work product privilege and nothing in
this Agreement shall be construed to be a waiver of attorney-client and attorney
work product privilege by the City. The City Administrator shall examine each
Disbursement Request and all disbursements made by the City shall be over the
signature of the Mayor. The City shall use reasonable care in ascertaining that
all amounts charged to the City pursuant to each Disbursement Request are fair
and reasonable amounts for the work represented on each Disbursement Request.
Within ten (10) days after the City receives a Disbursement Request, the City
shall forward a summary of such Disbursement Request to AmerenUE. In the event
that AmerenUE has questions regarding any such Disbursement Request, AmerenUE
shall direct such questions to the City Administrator; provided, however, that
the City shall not be required to obtain AmerenUE's approval for payment of any
Disbursement Request.
SECTION 2.03. REMAINING BALANCES. In the event AmerenUE elects not to
proceed with the Project pursuant to this Agreement, AmerenUE shall provide
notice of such election to the City and the City shall pay AmerenUE within
forty-five (45) days of the receipt of such notice the then-existing balance of
the Preliminary Funds remaining after the City's payment of any invoices for
work performed by any attorney or contractor through the date of receipt of such
notice. Any Preliminary Fund balances remaining after all payments by the City
for all work specified in SECTION 2.01 of this Agreement shall be promptly
returned to AmerenUE.
ARTICLE III
ANNEXATION
SECTION 3.01. ANNEXATION PETITION. Within thirty (30) days of Closing, but
in no event later than sixty (60) days from the Effective Date, AmerenUE or an
Affiliate, as applicable shall submit or shall cause to be submitted to the City
a verified petition in accordance with Chapter 71 of the Revised Statutes of
Missouri, as amended requesting voluntary annexation of the Property.
SECTION 3.02. ANNEXATION OF THE PROPERTY. As soon as practicable after
receipt of the Petition, the City shall take any and all reasonable steps and
use its best efforts, in accordance with applicable law, to annex the Property.
The City further agrees to use the City's best efforts to annex the portion of
County Highway 43 north of the existing limits or boundaries of the City and
such other property necessary to provide public access to the Project on streets
or roads governed by the City. At all times during the pendency of such
annexation proceedings, AmerenUE shall cooperate with the City to effect the
annexation of the Property within the territorial jurisdiction of the City and
shall forbear any actions, public statements, or public communications
inconsistent with the objectives of this ARTICLE III.
ARTICLE IV
THE PROJECT
SECTION 4.01. INITIATION OF THE PROJECT. Prior to issuance of Bonds,
AmerenUE will develop certain plans and specifications pursuant to which the
Project will be constructed. Such plans and specifications shall be prepared by
a professional engineer or architect licensed to practice in the State of
Missouri and shall be in conformity with all applicable state and local laws,
ordinances, and regulations. AmerenUE hereby agrees to permit the City to
inspect such plans and specifications upon the City's reasonable request. The
parties hereto acknowledge and agree that prior to the issuance of any Bonds by
the City, AmerenUE may notify the City in writing of its election not to finance
the Project with the proceeds of the Bonds pursuant to the Act, at which time
this Agreement shall terminate. Upon issuance of the Bonds, AmerenUE shall
construct or cause to be constructed the Project in accordance with the plans
and specifications prepared pursuant to this SECTION 4.01. In constructing or
causing the construction of the Project may enter into one or more construction
contracts; provided that prior to the commencement of any construction AmerenUE
shall obtain or shall ensure that any such contractor obtains workers'
compensation, comprehensive public liability and builder's risk insurance
coverage in amounts customary in the industry for similar type projects and
shall ensure that the insurance required is maintained by any such contractor
for the duration of the construction of the Project. To the extent that
competitive bidding and award requirements and prevailing wage or other wage and
hour statutes or requirements apply to the Project or any portion thereof,
AmerenUE covenants and agrees to take all such actions as are necessary to
comply with such laws, regulations or requirements. Upon completion of the
Project AmerenUE shall convey unencumbered fee simple title to the completed
Project to the City and the City shall lease the Project to AmerenUE for a term
coterminous with the term of the Bonds, all in accordance with terms and
conditions set forth in the Bond Documents.
SECTION 4.02. PROJECT BUDGET. AmerenUE estimates that the Project, more
particularly described on EXHIBIT B hereto, will cost approximately
$100,000,000. Such costs shall be funded from any combination of equity, Lender
Financing and other financing, with the combination of such funding determined
in the sole and absolute discretion of AmerenUE.
SECTION 4.03. CITY APPROVALS. The City intends that this Agreement shall
constitute the City's plan for industrial development and for the Project in
accordance with requirements of sections 100.040 and 100.050 of the Revised
Statutes of Missouri, as amended and that the duly authorized execution of this
Agreement by the City shall evidence the approval by the governing body of the
City of such plans; provided that the approval of the Project granted by the
City pursuant to this Agreement shall not affect or constitute any approval
required by any other City department or pursuant to any City ordinance, code,
regulation or any other governmental approval required by law, nor does any
approval by the City pursuant to this Agreement constitute approval of the
quality, structural soundness or safety of any portion of the Property or any
portion of the Project. The City will not unreasonably withhold any consent or
approval required by any City ordinance, code, regulation or any other
governmental approval required by law related to the Project; provided that
nothing herein shall be construed to obligate the City, acting as a party
hereto, to grant municipal permits or other approvals the City would not be
obligated to grant, acting as a political subdivision, absent this Agreement.
The City agrees that the City will not adopt or approve any ordinance, code, or
regulation not in force and effect on the Effective Date which would materially
adversely affect the Project and which would exclude or exempt other similarly
situated properties or facilities within the City.
SECTION 4.04. PERMIT FEES. In connection with the Project, AmerenUE shall
be obligated to pay only those Project, permit, engineering, tap on, inspection
and similar fees that are assessed on a uniform basis by the City and are of
general applicability to other property or facilities within the territorial
jurisdiction of the City.
ARTICLE V
ISSUANCE OF BONDS, GRANTS AND OTHER OBLIGATIONS
SECTION 5.01. ISSUANCE OF BONDS. The City intends to issue, upon the
written request of AmerenUE, an aggregate principal amount not to exceed
$125,000,000 of Bonds pursuant to the Acts to finance the costs of the Project,
with the actual amount of such Bonds, and the number and series of such Bonds,
to be specified in writing by AmerenUE. The maximum term of the Bonds issued
pursuant to this section shall be for the construction period of the Project
plus 20 years after the date on which the Project becomes "commercial" (as
defined in Section 5.04(a) hereof). The issuance of the Bonds by the City shall
be contingent upon the completion and perfection of the annexation of the
Property within the limits or boundaries of the City and upon the receipt by
AmerenUE of any approvals reasonably deemed necessary by AmerenUE including, but
not limited to, approvals from the Missouri Public Service Commission and the
Illinois Commerce Commission. The City shall cooperate with and provide
reasonable assistance to AmerenUE in obtaining any required regulatory
approvals. The City and AmerenUE shall mutually select Bond Counsel, the trustee
and, if desirable, the designated underwriter (and such financial advisors and
consultants as the underwriter, with the approval of the City and AmerenUE,
deems necessary for the issuance of the Bonds). The Bonds shall bear interest at
such rates, shall be subject to redemption and shall have such terms as the City
and AmerenUE shall mutually determine.
SECTION 5.02. FINANCING.
(a) The parties hereto acknowledge that in connection with the issuance of
the Bonds as set forth in SECTION 5.01, Lender Financing may be required, upon
such terms as AmerenUE determines in its sole and absolute discretion, to
complete the Project and satisfy its obligations under this Agreement. The City
shall cooperate and provide reasonable assistance in connection with the
marketing of any Bonds to the Approved Purchaser(s) of the Bonds and obtaining
any Lender Financing, including but not limited to making representations and
warranties and providing information and assisting AmerenUE in preparing an
offering statement with respect thereto. The City acknowledges and agrees that
AmerenUE may finance and refinance its rights and interests in the Project, the
Lease and the leasehold estate created thereby and, in connection therewith,
AmerenUE may execute Financing Documents or a Leasehold Mortgage with one or
more Financing Parties, or may sublease or assign the Lease, the leasehold
estate, any sublease and rights in connection therewith, and/or grant liens or
security interests therein, to any Financing Party (or to the designee, nominee,
assignee or transferee of such Financing Party).
(b) AmerenUE and the City intend to enter into a Lease whereby the Project
is leased to AmerenUE, an Affiliate, a Financing Party or other permitted
entity, and the payments made under the Lease shall be equal to and timed to
coincide with the due dates of, and pledged to pay, all applicable principal and
interest as the same shall become due and payable with respect to the Bonds.
(c) AmerenUE shall furnish the Bond Documents which shall be subject to
City review and approval and which shall contain such terms and conditions as
are acceptable to AmerenUE and the City. The Bonds shall be secured solely by
the Project and the Lease, and the City shall have no liability to make payments
with respect to the Bonds except from payments made under the Lease and other
Bond documents and related transaction documents (other than the Grants
described herein). Other than the security interest in the Project and the
Property granted pursuant to the issuance of Bonds or as approved by AmerenUE,
the City may not and shall not otherwise encumber, pledge or grant any other
security interest in or with respect to the Project.
SECTION 5.03. [RESERVED]
SECTION 5.04. GRANTS AND OTHER PAYMENTS.
(a) In the event the Bonds are issued, AmerenUE and the City expect that
the Project will be conveyed to and owned by the City (and AmerenUE hereby
agrees to timely take such actions and execute such documents as may be required
to convey title to the Project to the City consistent with this Section) and
leased to AmerenUE, an Affiliate, a Financing Party or other permitted entity
and, accordingly, will be exempt from property taxes (whether real, personal or
otherwise) levied by any applicable taxing authority, including, without
limitation, the City, Pike County, Missouri, and the Bowling Green R-1 School
District, for as long as the City owns the Project. AmerenUE hereby agrees to
make, or cause to be made, the annual Grant with respect to the Project on
December 31 of each year for as long as the City owns the Project, commencing on
December 31 in the calendar year in which the City takes title to any portion of
the Project. If the Project consists of more than one phase, the provisions of
this Section shall apply on a phase by phase basis, and not on a total Project
basis. Failure to make a scheduled Grant payment shall be an event of default
under the Lease described herein.
(b) AmerenUE shall pay, or cause to be paid, to the City an annual Grant in
the amount of $200,000 for the Project.
(c) In the event that one or more additional Project phase(s) is/are
pursued which are to be owned by the City and financed with additional bonds
issued pursuant to the Acts, AmerenUE agrees to pay, or cause to be paid, annual
Grants in addition to that required to be paid pursuant to subsection (b) above
to be determined upon agreement between the City and AmerenUE.
(d) Notwithstanding the foregoing, at any time that property taxes, or any
alternative taxes meant to replace or supplement property taxes are imposed on
the City's interest in the Project while the City owns the Project, AmerenUE may
reduce, or cause to be reduced, the amount of any annual Grant payments pursuant
to subsections (b) and (c) above by the amount of annual property or alternative
taxes imposed on the City's interest in the Project and payable to the City or
any other political subdivision; provided that no such reductions shall be made
or effective during the pendency of any actions taken by the City in cooperation
with AmerenUE pursuant to SECTION 5.06 of this Agreement
(e) Any payments made, or caused to be made, by AmerenUE pursuant to this
Section shall be allocated among such other political subdivisions or taxing
jurisdictions as determined by the City. Prior to the issuance of the Bonds, the
City shall use the City's best efforts to obtain the cooperation and acceptance
of the property tax exemptions contemplated in this Agreement of all affected
taxing jurisdictions.
(f) Any amounts due hereunder which are not paid when due shall bear
interest at the interest rate of 10% per annum from the date such payment was
first due.
SECTION 5.05. OPTION TO PURCHASE THE PROJECT. Unless otherwise specified in
writing by AmerenUE or an Affiliate at the time the Bonds are issued, when all
principal and interest due on the Bonds shall have been paid in full, AmerenUE
or its permitted successors and assigns shall have the option to purchase the
Project for $1,000. In addition, if the terms of the Bonds permit the Bonds to
be assumed by AmerenUE or its permitted successors and assigns, AmerenUE and its
permitted successors and assigns shall also have the option to purchase the
Project for $1,000 upon such an assumption of the Bonds.
SECTION 5.06. OBLIGATION OF CITY WITH RESPECT TO TAX FORBEARANCE. The City
agrees to take all actions within the City's control to obtain and/or maintain
in effect the exemption from property taxes related to the Project referred to
in this Article, including any filings required with any governmental
authorities; provided, however, the City shall not be liable for any failure of
the State of Missouri, any agency thereof or any other governmental taxing
authority to recognize the exemption contemplated herein. The City covenants
that the City will not voluntarily take any action that may cause or induce the
levy or assessment of property taxes on the Project. In the event such a levy or
assessment should occur, the City shall, at AmerenUE's request and expense,
fully cooperate with AmerenUE in all reasonable ways to prevent and/or remove
any such levy or assessment. The City and AmerenUE covenant and agree that the
property tax exemption contemplated in this Agreement and the issuance of the
Bonds shall only apply to the City's fee title interest in the Project. Any
property taxes levied against the interest of AmerenUE in the Project by any
taxing authority shall be and remain solely the responsibility of the AmerenUE.
In the event such a levy or assessment should occur, the City shall, at the
request and expense of AmerenUE, fully cooperate with AmerenUE in all reasonable
ways to prevent and/or challenge such levy or assessment.
SECTION 5.07. CITY UTILITIES. The City agrees to obtain, by condemnation if
necessary, any and all easements or rights of way necessary to install City
water and sewer services for the Project as determined to be reasonably
necessary by AmerenUE. AmerenUE will be responsible for payment of the initial
costs related to the construction and installation of the City water and sewer
services for the Project in accordance with City specifications and requirements
(which shall be 16" minimum water service and 8" minimum sewer service) and for
all costs of acquisition of such easements or rights of way as may be required
therefor together with costs of any condemnation proceedings which may be
undertaken by the City pursuant to this Section including, without limitation,
cost of condemnation counsel selected by the City, appraisers, consultants and
expert witnesses and costs of any final award(s). Upon completion of
installation and testing of the water and sewer services, AmerenUE shall
promptly take all actions necessary to dedicate the services to the City free
and clear of any and all liens (whether mechanic's or otherwise), claims, debts,
liabilities, or other encumbrances, together with all rights or interests
AmerenUE may have in any such easements and rights of way obtained in connection
thereof. The City agrees to charge AmerenUE for the term of this Agreement water
and sewer rates for such services used by AmerenUE on the Project up to a
maximum usage of 24,000,000 gallons of water per year in amounts equal to the
City's operation and maintenance costs (currently $2.59 per 1,000 gallons used)
for provision of such services (but not costs related to any debt service
obligations of the City) as certified by the City.
The agreements in this SECTION 5.07 shall survive termination of this
Agreement for any reason and are not contingent upon the issuance of the Bonds.
ARTICLE VI
COVENANTS, REPRESENTATIONS AND WARRANTIES OF AMERENUE
SECTION 6.01. GENERAL. AmerenUE represents, warrants and covenants that as
of the date of this Agreement and during the term of this Agreement, or such
shorter period as may be expressly provided for below:
(a) AmerenUE is a Missouri corporation duly organized, validly existing and
qualified to do business in Missouri;
(b) AmerenUE has the right, power and authority to enter into, execute,
deliver and perform this Agreement;
(c) the execution, delivery and performance by AmerenUE of this Agreement
has been duly authorized by all necessary corporate action, and does not violate
the articles of organization or bylaws of AmerenUE, as the same may be amended
and supplemented, or any applicable provision of law, nor does it constitute a
breach of or default under or require any consent under any agreement,
instrument or document to which AmerenUE is now a party or by which AmerenUE is
now or may become bound;
(d) except for those regulatory approvals which must be obtained before the
issuance of the Bonds as referred to in SECTION 5.01 herein, there are no
actions or proceedings by or before any court, governmental commission, board,
bureau or any other administrative agency pending, threatened or affecting
AmerenUE which would impair its ability to perform under this Agreement; and
(e) AmerenUE has obtained (or will, prior to the commencement of
construction obtain) and shall maintain all other government permits,
certificates and consents (including without limitation appropriate
environmental approvals) necessary to conduct its business and to construct,
complete and operate the Project.
SECTION 6.02. COMPLIANCE WITH LAWS. To the best of AmerenUE's knowledge,
the Property and the Project are and shall be in compliance with all applicable
federal, state and local laws, statutes, ordinances, rules, regulations,
executive orders and codes pertaining to or affecting the Project and the
Property, including environmental laws. AmerenUE agrees that the City and its
duly authorized agents shall have the right at reasonable times during business
hours, subject to at least 48 hours advance notice and to AmerenUE's usual
business proprietary, safety and security requirements, to enter upon the
Project and the Property to examine and inspect the Project and the records of
AmerenUE which demonstrate compliance with this Agreement.
SECTION 6.03. SURVIVAL OF COVENANTS. All warranties, representations,
covenants and agreements of AmerenUE contained in this ARTICLE VI (including,
without limitation, AmerenUE's covenant to indemnify and hold harmless the City
set forth in SECTION 6.04 hereof) and elsewhere in this Agreement shall survive
termination of this Agreement for any reason.
SECTION 6.04. INDEMNIFICATION OF CITY. AmerenUE shall indemnify, defend and
save the City harmless from and against all claims, demands, costs, liabilities,
damages or expenses, including attorneys' fees, by or on behalf of any person,
firm or corporation arising from the conduct or management of, or from any work
or thing done in, on or about, the Project or the Property during the term of
the Lease, and against and from all claims, demands, costs, liabilities, damages
or expenses, including attorneys' fees, arising during the term of the Lease
from (a) any condition of the Project, or the Property (b) any breach or default
on the part of AmerenUE in the performance of any of its obligations under this
Agreement or the Lease, or any action requested of the City by AmerenUE pursuant
to the Lease or this Agreement, (c) any contract entered into in connection with
the purchase, construction, extension or improvement of the Project, (d) any act
of negligence of AmerenUE or of any of its agents, contractors, servants,
employees or licensees, (e) any act of negligence of any assignee or sublessee
of AmerenUE, or of any agents, contractors, servants, employees or licensees of
any assignee or sublessee of AmerenUE.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF CITY
SECTION 7.01. GENERAL. The City represents:
(a) that the City has the authority as a unit of government to execute and
deliver this Agreement and to perform the City's obligations hereunder;
(b) that the City has the right, power and authority to enter into,
execute, deliver and perform this Agreement;
(c) the execution, delivery and performance by the City of this Agreement
has been (or will be) duly authorized by all necessary action, and does not
violate any applicable provision of law, nor does it constitute a breach of or
default under or require any consent under any agreement, instrument or document
to which the City is now a party or by which the City is now or may become
bound;
(d) there are no actions or proceedings by or before any court,
governmental commission, board, bureau or any other administrative agency
pending, threatened or to the City's actual knowledge affecting the City which
would impair the City's ability to perform under this Agreement.
SECTION 7.02. SURVIVAL OF COVENANTS. All warranties, representations and
covenants of the City contained in this ARTICLE VII or elsewhere in this
Agreement shall be true, accurate and complete at the time of the City's
execution, of this Agreement, and shall survive the execution, delivery and
acceptance hereof by the parties hereto.
ARTICLE VIII
NOTICES
Unless otherwise specified, any notice, demand or request required
hereunder shall be given in writing at the addresses set forth below, by any of
the following means: (a) personal service; (b) telecopy or facsimile; (c)
overnight courier; or (d) registered or certified mail, return receipt
requested.
If to the City: City of Bowling Green, Missouri
00 Xxxx Xxxxxx Xxxxxx - Xxxx Xxxx
Xxxxxxx Xxxxx, Xxxxxxxx 00000
Attn: City Administrator
With a copy to: Xxxxxx X. Xxxxxxxxxx, Esq.
Xxxxxxx, Mag & Fizzell, P.C.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
If to AmerenUE: AmerenUE
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Manager, Generation Engineering
With a copy to: AmerenUE
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: General Counsel
Such addresses may be changed by notice to the other parties given in the
same manner provided above. Any notice, demand, or request sent pursuant to
either clause (a) or (b) hereof shall be deemed received upon such personal
service or upon dispatch.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. MUTUAL ASSISTANCE. The City and AmerenUE agree to take such
actions as may be necessary or appropriate to carry out the terms, provisions
and intent of this Agreement and to aid and assist each other in carrying out
said terms, provisions and intent. In addition, if legislation is proposed by or
in any governmental body having jurisdiction over the Project which would have
the effect of limiting the ability of the City to issue the Bonds to finance the
Project, the City agrees to use its best efforts to issue the Bonds prior to the
effective date of any such legislation.
SECTION 9.02. AMENDMENT. This Agreement may not be amended without the
prior written consent of the parties hereto.
SECTION 9.03. ENTIRE AGREEMENT. This Agreement (including the Exhibits
attached hereto, which are hereby incorporated herein by reference) constitutes
the entire Agreement between the parties hereto and supersedes all prior
agreements, negotiations and discussions between the parties relative to the
subject matter hereof.
SECTION 9.04. LIMITATION OF LIABILITY. No member, official or employee of
the City shall be personally liable to AmerenUE, any Affiliates, any Financing
Party or any Lender or any successor in interest to such parties in the event of
any default or breach by the City or for any amount which may become due to
AmerenUE from the City or any successor in interest or on any obligation under
the terms of this Agreement.
SECTION 9.05. WAIVER. Waiver by the City or AmerenUE with respect to any
breach or default under this Agreement shall not be considered or treated as a
waiver of the rights of the respective party with respect to any other breach or
default or with respect to any particular breach or default, except to the
extent specifically waived by the City or AmerenUE in writing.
SECTION 9.06. REMEDIES CUMULATIVE. The remedies of a party hereunder are
cumulative, and the exercise of any one or more of the remedies provided for
herein shall not be construed as a waiver of any other remedies of such party
unless specifically so provided herein.
SECTION 9.07. OPPORTUNITY TO CURE PRESERVED. In the event of any default in
or breach of any term or conditions of this Agreement by either party, or any
successor, the aggrieved party, prior to instituting any action at law or in
equity, shall give written notice to the breaching or defaulting party (or
successor) specifying, in the opinion of the aggrieved party the nature of the
breach, and the defaulting or breaching party (or successor) shall, upon receipt
of such written notice from the other party, proceed immediately to cure or
remedy such default or breach, and, shall, in any event, within thirty (30) days
after receipt of notice, commence to cure or remedy such default. In case such
cure or remedy is not taken or not diligently pursued, or the default or breach
shall not be cured or remedied within a reasonable time, the aggrieved party may
then institute such proceedings as may be necessary or desirable in its opinion
to cure and remedy such default or breach, including, but not limited to
proceedings to compel specific performance by the defaulting or breaching party.
SECTION 9.08. DISCLAIMER. Nothing contained in this Agreement nor any act
of the City shall be deemed or construed by any of the parties, or by any third
person, to create or imply any relationship of third-party beneficiary,
principal or agent, limited or general partnership or joint venture, or to
create or imply any association or relationship involving the City.
SECTION 9.09. HEADINGS. The paragraph and section headings contained herein
are for convenience only and are not intended to limit, vary, define or expand
the content thereof.
SECTION 9.10. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same agreement.
SECTION 9.11. SEVERABILITY. If any provision in this Agreement, or any
paragraph, sentence, clause, phrase, word or the application thereof, in any
circumstance, is held invalid by a court of competent jurisdiction, this
Agreement shall be construed as if such invalid part were never included herein
and the remainder of this Agreement shall be and remain valid and enforceable to
the fullest extent permitted by law.
SECTION 9.12. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Missouri, without
regard to its conflicts of law principles.
SECTION 9.13. ASSIGNMENT. Except in connection with the transfer of this
Agreement to an Affiliate, a Financing Party or a Lender or other permitted
successors or assigns, which is expressly authorized by the City, AmerenUE may
not sell, assign or otherwise transfer its interest in this Agreement in whole
or in part without the written consent of the City, which consent shall not be
unreasonably withheld. Any successor in interest to AmerenUE under this
Agreement shall certify in writing to the City its agreement to abide by all
remaining executory terms of this Agreement (and the representations, warranties
and covenants related thereto) through the term of this Agreement, or such other
period as may be expressly provided for herein. Upon such successor's
certification, AmerenUE shall be released from the performance of such executory
terms (and the representations, warranties and covenants related thereto other
than the City's right to indemnification under Section 6.04, hereof).
SECTION 9.14. BINDING EFFECT. This Agreement shall be binding upon
AmerenUE, the City and their respective permitted successors and permitted
assigns (as provided herein).
SECTION 9.15. FORCE MAJEURE. Neither the City nor AmerenUE nor any
permitted successor in interest to either of them shall be considered in breach
of or in default of its obligations under this Agreement in the event of any
delay caused by damage or destruction by fire or other casualty, strike,
shortage of material, unusually adverse weather conditions such as, by way of
illustration and not limitation, severe rain storms or below freezing
temperatures of abnormal degree or for an abnormal duration, tornadoes or
cyclones, and other events or conditions beyond the reasonable control of the
party affected which in fact interferes with the ability of such party to
discharge its obligations hereunder. Any delay described under this section
shall result in a day-for-day extension of any obligations, deadlines or dates
set forth in this Agreement that are directly affected by such delay. The
individual or entity relying on this section with respect to any such delay
shall, upon the occurrence of the event causing such delay, immediately give
written notice to the other parties to this Agreement.
SECTION 9.16. APPROVAL. Wherever this Agreement provides for the approval
or consent of the City, or any matter is to be to the City's satisfaction,
unless specifically stated to the contrary, such approval, consent or
satisfaction shall be made, given or determined by the City in writing and in
the reasonable discretion thereof. The City Administrator or other persons
designated by the City shall act for the City in making all approvals, consents
and determinations of satisfaction or otherwise administering this Agreement for
the City.
SECTION 9.17. TERM OF AGREEMENT. This Agreement shall continue in force for
so long as (a) any Bonds shall remain outstanding; or (b) any phase of the
Project is titled in the name of the City. This Agreement shall terminate on the
earlier of (x) retirement of all Bonds issued with respect to all phases of the
Project; or (y) three years from the Effective Date, provided that no Bonds have
been issued; or (z) the date of termination by AmerenUE pursuant to SECTION
4.01.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on or as of the day and year first above written.
UNION ELECTRIC COMPANY
By: [Signature]
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Name: Xxxx Xxxx
Title: General Mgr.-Gen Engr. & Tech Svc's
CITY OF BOWLING GREEN, MISSOURI
By: [Signature]
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Name: Xxxx X. Xxxxxxx
Title: Mayor
STATE OF MISSOURI )
) SS
CITY OF ST. LOUIS )
On this 15th day of November, 2001, before me appeared Xxxx Xxxx, to me
personally known, who, being duly sworn, did say that he is General Manager of
Union Electric Company d/b/a AmerenUE, and that said instrument was signed and
sealed in behalf of said corporation by authority of its Board of Directors and
said Xxxx Xxxx acknowledged said instrument to be the free act and deed of said
corporation.
My Commission expires 10-27-2004.
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[Xxxxxx X. Xxxxxxxx
----------------------------------------
Notary Public
STATE OF MISSOURI )
) SS
COUNTY OF PIKE )
I, the undersigned, a notary public in and for said County, in the State
aforesaid, DO HEREBY CERTIFY that Xxxx Xxxxxxx, personally known to me to be the
Mayor of the CITY OF BOWLING GREEN, MISSOURI and personally known to me to be
the same person whose name is subscribed to the foregoing instrument, appeared
before me this day in person and acknowledged that he signed, sealed, and
delivered said instrument, pursuant to the authority given to him by the Board
of Aldermen of the City of Bowling Green, Missouri as his free and voluntary act
and as the free and voluntary act of the City of Bowling Green, Missouri, for
the uses and purposes therein set forth.
GIVEN under my hand and official seal this 9th day of November, 2001.
[Xxxxxxx X. Xxxxxx]
--------------------------------------------
Notary Public
[SEAL]
My Commission Expires: Jan 28, 2004
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EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
The description of the Property includes the legally described real property on
page A-2 hereof, with a perpetual easement to be retained by AmerenUE for
property to be determined by AmerenUE prior to the issuance of the Bonds for the
construction of electric transmission lines and a Substation Switchyard a
portion of which will be owned by AmerenUE related to the Project, together with
a perpetual easement to be retained by AmerenUE across all of the Property
described on Page A-2 hereof for purposes of operating maintaining or improving
the transmission lines and Substation Switchyard. The portion of the Substation
Switchyard to be owned by AmerenUE consists of incoming 161kV lines and
terminations, 161kV line positions H3, H4 and H8, 161kV bus-1 and bus-2,
switchyard control house, and related structures, and future expansions off
bus-1 or bus-2. The ownership division will be at 4-hole pads where position H3
GSU bus-side conductor connects to the GSU rigid bus. AmerenUE will own the GSU
rigid bus support structure inside the perpetual easement retained for the
Substation Switchyard. AmerenUE will own all transmission lines and related
facilities.
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
Part of the North Half of the Northwest Quarter, all of the Southeast Quarter of
the Northwest Quarter and all of the Southwest Quarter of the Northeast Quarter
of Section 22, Township 53 North, Range 3 West, Pike County, Missouri, more
particularly described as follows:
BEGINNING at a stone at the southeast corner of the Northwest Quarter of the
Northwest Quarter of said Section 22; thence NO(Degree)56'56"E, along the
Section Line, 100.00 feet; thence S89(Degree)34'40"E, 2676.61 feet to the
Quarter Section Line; thence SO(Degree)53'49"W, along the Quarter Section Line,
100.00 to a stone marking the northwest corner of the Southwest Quarter of the
Northeast Quarter of said Section 22; thence S89(Degree)01'35"E, along the
Quarter Quarter Section Line, 1334. 59 feet to the northeast corner of the
Southwest Quarter of the Northeast of said Section 22; then SO(Degree)56'57"W,
along the Quarter Quarter Section Line, 1320.80 feet to the southeast corner of
the Southwest Quarter of the Northeast Quarter of said Section 22; thence
N89(Degree)17'20"W, along the Quarter Section Line, 1333.40 feet to the
southwest corner of the Southwest Quarter of the Northeast Quarter of said
Section 22; then N89(Degree)42'32"W, along the Quarter Section Line, 1332.99
feet to the southwest corner of the Southeast Quarter of the Northwest Quarter
of said Section 22; thence NO(Degree)33'57"E , along the Quarter Quarter Section
Line, 1329.99 feet to the northwest corner of the Southeast Quarter of the
Northwest Quarter of said Section 22; thence N89(Degree)34'40"W, along the
Quarter Quarter Section Line, 1346.68 feet to the point of beginning.
Containing 87.28 Acres.
EXHIBIT B
PROJECT DESCRIPTION
The Project to be owned by the City consists of electric power generation
facilities described on page B-2 hereof, with the exception of a portion of a
Substation Switchyard and all electric transmission line facilities to be owned
by AmerenUE on a perpetual easement to be retained by AmerenUE. The portion of
the Substation Switchyard to be owned by AmerenUE consists of incoming 161kV
lines and terminations, 161kV line positions H3, H4, and H8, 161kV bus-1 and
bus-2, switchyard control house, and related structures, and future expansions
off bus-1 or bus-2. The ownership division will be at 4-hole pads where position
H3 GSU bus-side conductor connects to the GSU rigid bus. AmerenUE will own the
GSU rigid bus support structure inside the perpetual easement retained for the
Substation Switchyard.
EXHIBIT B
PROJECT DESCRIPTION
The Xxxx Creek Energy Center will consist of 4 each Xxxxx & Whitney FT-8 Twin
Pack Gas Turbine Generating Units rated at a nominal 50 MW each capacity. The
facility will be primarily fired by natural gas with fuel oil as a back-up fuel.
In addition to the FT-8 Generating Units, there will be a service building
including a control room, water pumps and electrical equipment. Also on site
will be a demineralized water storage tank, 2 Generating Step-Up (GSU)
Transformers, 161 kV Substation, 3.5 Mile gas lateral including valving, fuel
oil storage tank, fuel unloading station and pumps, Continuous Emissions
Monitoring (CEMS) equipment and other miscellaneous equipment.
