Resolution No. _____

Presented to the Board Dec 5, 2005

1.   

The Mayor is hereby auth'd & directed to execute, on behalf of the City, the Agreemt & the City Clerk is hereby auth'd & directed to attest to the Agreemt & affix the seal of the City thereto.  The Agreemt shall be in substantially the form attached hereto as Exhibit A, which doc is hereby approved by the Bd, with such changes therein as shall be approved by the ofcrs of the City executing same. 

2.

The Mayor, City Clerk & other aprop City ofc'ls are hereby auth'd & directed to take any & all action & to execute any & all docs necessary to effectuate the intent of this Resolution.

3.

This Resolution shall be in full force & effect from & after the date of its passage & approval by the Mayor. 

PASSED THIS 5th DAY OF DECEMBER, 2005.

________________________________________________

Chairman

APPROVED THIS 5th DAY OF DECEMBER, 2005.

Jeffery Whitteaker, Mayor

___________________________

Marguerite Wilburn, City Clerk

           THIS PRELIM FUNDING AGREEMT (the "Agreemt") is made & entered into as of the ___ day of __________, 2005,

by & between CITY VP, MO (the "City") & ENOSNAS FAMILY HOLDING CO, LLC ("Devr").  The following recitals are made a part of this Agreemt.

A.

The City is contemplating the adoption of a redev plan (the "Redev Plan") for a certain limited area of the City

generally known as the New Town Redev Area (the "Redev Area") which would provide for the redev of an approx 241-acre site located at (({sic})) within the City.

B.

The City distributed a Request for Redev Proposals (the "RFP") for the redev of the Redev Area.

C. 

In response to the RFP, Devr submitted a proposal dated 10/26/05 (the "Proposal") which calls for the redev of the

D.

After due consideration, the BOA of City VP desires to designate Devr as the preferred devr for the Redev Area.

E.

Subject to the terms of this Agreemt, the City desires to have Devr attempt to market the Redev Area to prospective

F.

Devr desires to support the City's efforts as outlined above by advancing to the City certain funds to allow the City to

pay certain prelim start-up costs, including, without limitation, adoption of the Plan, negotiation of a redev agreemt (the "Redev Agreemt") between the City & Devr & consideration of the Proposal & the Redev Project, which costs may be reimbursed to Devr in accordance with this Agreemt & the Act.

NOW  THEREFORE, in consideration of the foregoing & other good & valuable consideration, the receipt of sufficiency of

which are hereby acknowledged, the parties hereby agree as follows:

1.

Adavnce of Funds

1.1     Initial Prelim Funds.  Upon execution of this Agreemt, Devr shall advance to the City the sum of $10K

(the "Initial Prelim Funds").  The City shall use the Initial Prelim Funds to pay or reimburse the City for paymt of actual ope's

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incurred by the City & for the paymt of actual costs incurred by the City in connection with the preparation of the Redev Plan.

1.2     Add'l Prelim Funds.  Upon submission of the Notice to Proceed (as hereafter defined), Devr shall advance  

to the City the sum of $35K (the "Add'l Prelim Funds").  The City shall use the Add'l Prelim Funds to pay or reimburse the City for paymt of actual ope's incurred by the City & for the paymt of actual costs incurred by the City for legal, planning & financial svcs assoc'd with preparation of the Redev Plan & the negotiation of a Redev Agreemt as provided herein, & for expenses incurred by the City (such as mailing, publication & similar costs) in connection with the foregoing & compliance with the Act.

1.3     Use & Allocation of Funds.  The Initial Prelim Funds & the Add'l Prelim Funds shall be collectively referred to

herein as the "Prelim Funds".  The Prelim Funds shall be expended for work performed by the planners, consultants & attys selected by the City at their respective regular hrly rates & fees (the "Fees") & the City shall pay for such work only in accordance with Sec 2 below.

2.

Disbursemt.  Subject to the remaining provisions of this Agreemt, the City shall disburse Prelim Funds on a monthly

basis for any month in which Fees & expenses are actually incurred or to reimburse the City for Fees & expenses previously paid by the City in connection with the Redev Project as permitted under Sec 1 only upon receipt of (i) invoices for work reasonably & actually performed by the selected planners, consultants & attys;  (ii) invoices &/or receipts for ope's incurred by such parties in connection with such planning, financial & legal work;  & (iii) such other supporting doc'n as may be requested by the City or Devr (collectively, a "Disbursemt Request").  A Disbursemt Request by the City for reimbursemt shall include an itemization of the Fees & expenses to be paid by the City & copies of invoices for the work performed.  The Mayor shall examine each disbursemt request & all disbursemts made by the City shall be auth'd in writing by the Mayor.  The Mayor shall use reasonable care in ascertaining that all amts charged to the City pursuant to each Disbursemt Request are fair & reasonable amts for the work rep'd on each Disbursemt Request & are consistent with the terms of this Agreemt.

3.

Copies of Disbursemt Requests.  Within 10 biz days after the City rcvs a complete Disbursemt Request, the

Mayor shall fwd a copy of such Disbursemt Request to Devr.  If Devr has ques's or objections re any Disbursemt Request, Devr shall direct such ques's or objections in writing to the Mayor not later than10 biz days following the receipt of same.  If Devr does not timely provide written ques's or objections to such Disbursemt Request, then provided such Disbursemt Request is otherwise in accordance with the terms of this Agreemt, & the City has otherwise examined & approved same as set forth in this Agreemt, the Mayor, acting on behalf of the City, may auth paymt thereof from the Prelim Funds.  In such event, the Mayor shall not be liable to the Devr for any paymts auth'd by him if they are auth'd in good faith.  If Devr provides timely written ques's or objections re a Disbursemt Request, then the City & Devr shall in good faith attempt to resolve any ques's so raised as soon as reasonably possible, & to the extent necessary, communicate or negotiate with the aprop 3rd party submitting the paymt request, as needed, in order to do so.  If the parties nonetheless are unable to reach agreemt upon the disputed Disbursemt Request within 10 biz days after the City's receipt of the written ques's or objections, then the Mayor may proceed to pay such Disbursemt Request, & shall not be liable to Devr for any paymts auth'd by him provided they are auth'd in good faith. 

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Repaymt of Prelim Funds Expended.  If & when the City & Devr (or any other third-parties) execute the Redev

Agreemt & obligations are issued by the City for the Redev Project, then the Prelim Funds shall be repaid to Devr from the 1st proceeds of any such obligations.  Except as otherwise provided in this Agreemt, the City has no obligation to refund the Prelim Funds to Devr.

5.1     Marketing of the Redev Project.  Commencing on the date hereof & continuing for a period of 12 months  

5.2     Notice to Proceed.  At any time prior to the expiration of the Marketing Period, Devr may provide to the City

a wirtten notice (the "Notice to Proceed') confirming that Devr is prepared to proceed with dev of the Redev Project.

5.3     Adoption of Redev Plan:  Negotiation of Redev Agreemt.  Upon receipt of the Notice to Proceed, the City

agrees, to the extent within its control, to take all reasonable actions precedent to the consideration by the BOA of the adoption of the Redev Plan & a Redev Agreemt & undertake such other actions requested by Devr to facilitate dev of the Redev Area in a manner consistent with the Proposal;  provided, however, that nothing herein shall obligate the City to adopt the Redev Plan or approve the Redev Agreemt.  During the Marketing Period, the City & Devr shall regularly meet & diligently proceed toward an expeditious execution of a mutually acceptable Redev Agreemt pursuant to the Redev Plan.

5.4     Redev Area.  During the Marketing Period, the City shall not sell, lease or otherwise convey any int in any

City-owned real prop within the Redev Area to any party other than Devr.

5.5     Referral of Inquiries.  During the Marketing Period, the City shall promptly refer all inquiries re the sale, leasing,

6.

Termination.

6.1     Devr's Right of Termination.  Devr may terminate this Agreemt at any time in its sole discretion upon written

notice to the City.

6.2     City's Right of Termination.  At any time after the expiration of the Marketing Period, the City may terminate

this Agreemt upon written notice to the Devr.

6.3     Expiration of Term.  Unless previously terminated in accordance with this Sec, this Agreemt shall terminate

automatically without any action by either party on the date 2 yrs after the date hereof unless previously extended by mutual consent of the parties.

6.4     Reimbursemt Obligation After Termination.  Upon any termination of this Agreemt, (i) the City shall immed

cease incurring costs & expenses under this Agreemt, & (ii) the City shall pay to Devr, within 30 days after said termination, all Prelim Funds remaining after the City's proper paymt of any Disbursemt Requests submitted pursuant to this

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Agreemt for work performed thru the date of termination.  Devr shall have no obligation to reimburse City for any Disbursemt Requests for work or costs performed or incurred by any planner, consultant, atty or the City after the date of termination.

7. 

Excess Prelim Funds.  If the City does not expend all of the Prelim Funds as provided herein, the City shall

promptly return the remainder of the Prelim Funds to Devr.

10.1     Severability.  If any provision of this Agreemt is unenforceable, the remainder of this Agreemt shall be

enforced as if such provision were not contained herein.

any such rights.

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Devr may without the City's consent assign this Agreemt to any party 51% or more of which is controlled by one or more of the principals of Devr.

10.5

Survival.  Notwithstanding the expiration or termination or breach of this Agreemt by either party, the City's

reps shall not be liable to Devr for damages or otherwise if this Agreemt is declared invalid or unconstitutional in whole or in part by the final (as to which all rights of apeal have expired or have been exhausted) judgmt of any court of competent jurisdiction, & by reason thereof either the city is prevented from performing any of the covenants & agreemts herein or Devr is prevented from enjoying the rights & privileges contemplated hereunder.

[Signatures appear on next page.]

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SIGNATURE PAGE FOR

PRELIM FUNDING AGREEMT

IN WITNESS WHEREOF, the parties hereto have caused this Prelim Funding Agreemt to be duly executed as of the date

1st above written.

By:  ______________________________________

       Mayor

By:  ______________________________________

       Manager