CITY COMMISSION MEETING Winfield, Kansas AGENDA. MINUTES OF PRECEDING MEETING...Tuesday, February 21, 2012

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1 Mayor Taggart L. Wall Commissioner G. Thomas McNeish Commissioner Gregory N. Thompson CITY COMMISSION MEETING Winfield, Kansas DATE: Monday, March 05, 2012 TIME: 5:30 p.m. PLACE: City Commission Community Council Room First Floor City Building AGENDA CALL TO ORDER...Mayor Taggart L. Wall ROLL CALL...City Clerk, Brenda Peters MINUTES OF PRECEDING MEETING...Tuesday, February 21, 2012 PUBLIC HEARING -Consider issuance of Taxable Industrial Revenue Bonds (InSite Project) BUSINESS FROM THE FLOOR -Citizens to be heard OLD BUSINESS NEW BUSINESS Ordinances & Resolutions Bill No A Resolution of the Governing Body of the City of Winfield, Kansas determining the advisability of issuing Taxable Industrial Revenue Bonds of said City for the purpose of financing the acquisition, construction and equipping of a commercial warehouse facility to be located in said City. (Insite Project) Bill No An Ordinance Authorizing the City of Winfield, Kansas, to enter into a lease purchase transaction to finance the construction and equipping of wastewater treatment plant improvements; and to approve the execution of certain documents in connection therewith.(kdhe loan refinancing) Bill No A Resolution Providing for the adoption of Tax-Exempt Financing Compliance procedures relating to Obligations issued and to be issued by the City of Winfield, Kansas.(KDHE loan refinancing) Bill No A Resolution Authorizing the adjustment of eligible properties for the Neighborhood Revitalization Plan. (West 9th Ave.) Bill No A Resolution Authorizing and directing the Mayor and Clerk of the City of Winfield, Kansas, to enter into an agreement with, I.B. Dozing, for the demolition and removal of a structure, the South half of a shared garage on a tract of land legally described as: The South 70 feet of Lot 10 and the North 24 feet of Lot 11, in Block 40, Musgrove s Addition to the City Winfield, in Cowley County, Kansas, also known as 328 N. Massachusetts Street, in Winfield, Kansas. OTHER BUSINESS ADJOURNMENT -Next Work Session at 3:00 p.m. Thursday, March 15, Next regular meeting 5:30 p.m. Monday, March 19, 2012.

2 CITY COMMISSION MEETING MINUTES Winfield, Kansas February 21, 2012 The Board of City Commissioners met in regular session, Tuesday, February 21, 2012 at 5:30 p.m. in the City Commission-Community Council Meeting Room, City Hall; Mayor Taggart L. Wall presiding. Commissioners G. Thomas McNeish and Gregory N. Thompson were also present. Also in attendance were Warren Porter, City Manager and Brenda Peters, City Clerk. Other staff members present were Gary Mangus, Assistant to the City Manager and Patrick Steward, Director of Community Development. Commissioner McNeish moved that the minutes of the February 6, 2012 meeting be approved. Commissioner Thompson seconded the motion. With all Commissioners voting aye, motion carried. BUSINESS FROM THE FLOOR NEW BUSINESS Bill No A Resolution Authorizing and directing the Mayor and Clerk of the City of Winfield, Kansas to execute a lease agreement for a Bob Cat E50-M Mini Excavator through First Bank of Sterling, Kansas. This authorizes the lease of a Mini Excavator through the First Bank of Sterling for one year for an amount of $6,070. Upon motion by Commissioner Thompson, seconded by Commissioner McNeish all Commissioners voting aye, Bill No was adopted and numbered Resolution No Bill No A Resolution Fixing the time and place and providing for notice of a public hearing before the Governing Body of the City of Winfield, Kansas, regarding the condemnation of a certain structure, a garage in the City of Winfield, Cowley County, Kansas. Community Development Director Steward reports that this condemnation proceeding is for the accessory structure (garage) located at 800 E. 6 th Ave. It was discovered that the time for the public hearing listed on the resolution is 7:00 p.m. on April 16 th, The meeting time will be 5:30 p.m. Commissioner McNeish made a motion to adopt Bill No with the amendment of changing the public hearing time for Monday April 16 th to 5:30 p.m. Motion was seconded by Commissioner Thompson. With all Commissioners voting aye, Bill No was adopted and numbered Resolution No Bill No A Resolution Fixing the time and place and providing for notice of a public hearing before the Governing Body of the City of Winfield, Kansas, regarding the condemnation of a certain structure, a house in the City of Winfield, Cowley County, Kansas. Community Development Director Steward reports that this condemnation proceeding is for the house structure located at 1438 E. 3 rd Ave. It was discovered that the time for the public hearing listed on the resolution is 7:00 p.m. on April 16 th, The meeting time will be 5:30 p.m. Commissioner Thompson made a motion to adopt Bill No with the amendment of changing the public hearing time for Monday April 16 th to 5:30 p.m. Motion was seconded by Commissioner McNeish. With all Commissioners voting aye, Bill No was adopted and numbered Resolution No

3 Bill No A Resolution Fixing the time and place and providing for notice of a public hearing before the Governing Body of the City of Winfield, Kansas, regarding the condemnation of a certain structure, a garage in the City of Winfield, Cowley County, Kansas. Community Development Director Steward reports that this condemnation proceeding is for the accessory structure (garage) located at 217 E. 6 th Ave. It was discovered that the time for the public hearing listed on the resolution is 7:00 p.m. on April 16 th, The meeting time will be 5:30 p.m. Commissioner McNeish made a motion to adopt Bill No with the amendment of changing the public hearing time for Monday April 16 th to 5:30 p.m. Motion was seconded by Commissioner Thompson. With all Commissioners voting aye, Bill No was adopted and numbered Resolution No Bill No A Resolution Fixing the time and place and providing for notice of a public hearing before the Governing Body of the City of Winfield, Kansas, regarding the condemnation of a certain structure, a garage in the City of Winfield, Cowley County, Kansas. Community Development Director Steward reports that this condemnation proceeding is for the accessory structure (garage) located at 1301 E. 7 th Ave. It was discovered that the time for the public hearing listed on the resolution is 7:00 p.m. on April 16 th, The meeting time will be 5:30 p.m. Commissioner Thompson made a motion to adopt Bill No with the amendment of changing the public hearing time for Monday April 16 th to 5:30 p.m. Motion was seconded by Commissioner McNeish. With all Commissioners voting aye, Bill No was adopted and numbered Resolution No Bill No A Resolution Authorizing and directing the City Manager of the City of Winfield, Kansas to execute documents necessary for the purchase of real estate between Robert W. Gottlob and Connie S. Gottlob Cowley County, Kansas, and the City of Winfield, Kansas regarding a parcel of land containing approximately 60 acres located east of Winfield on Hwy 160, Winfield, Kansas. City Manager Porter explains that Insite, LLC has a contract with Robert and Connie Gottlob for approximately forty acres for the proposed new 500,000 square foot warehouse to be built on behalf of Rubbermaid east of town on the South side of Highway 160. As part of this process, additional ground became available for further extension of the Utt Industrial Park. This resolution agreement is for purchase of approximately 60 acres by the City from the Gottlobs for this purpose. There is a contract proposal for purchase of real estate that is not yet final, pending final survey and other instruments as well as zoning and subdivision. The negotiated price per acre is $11,500. Upon motion by Commissioner McNeish, seconded by Commissioner Thompson all Commissioners voting aye, Bill No was adopted and numbered Resolution No Bill No A Resolution Authorizing the Mayor and Clerk of the City of Winfield, Kansas to enter into a Lease Purchase Agreement with Union State Bank, Winfield, Kansas for the acquisition by Lease with Option to Purchase a Pierce Dash Series Rear Mount Aerial Platform Vehicle. This action will re-finance a capital lease the City currently has with Osh Kosh Company for a fire truck. The current lease has approximately five years left. Of the five bids received for the re-finance, low bid was received from Union State Bank at 1.98 percent with a $250 administrative fee. Net savings to the City will be approximately $19,807. Upon motion by Commissioner Thompson, seconded by Commissioner McNeish all Commissioners voting aye, Bill No was adopted and numbered Resolution No

4 OTHER BUSINESS Mayor Wall announced that Work Session scheduled for Thursday March1, 2012 will begin at 3:00 p.m. Mayor Wall also announced that the Citizen s Advisory Task Force has scheduled a meeting with the Board of Cowley County Commissioners, Winfield City Commissioners and Arkansas City Commissioners for Tuesday, February 28, 2012 at 7:00 p.m. in the 1 st Floor Assembly Room at the Cowley County Courthouse. ADJOURNMENT Upon motion by Commissioner McNeish, seconded by Commissioner Thompson, all Commissioners voting aye, the meeting adjourned at 7:23 p.m. Signed and sealed this 2nd day of March Signed and approved this 5th day of March Brenda Peters, City Clerk Taggart L. Wall, Mayor

5 GILMORE & BELL, P.C. February 17, 2012 Bill No RESOLUTION NO A RESOLUTION OF THE GOVERNING BODY OF THE CITY OF WINFIELD, KANSAS DETERMINING THE ADVISABILITY OF ISSUING TAXABLE INDUSTRIAL REVENUE BONDS OF SAID CITY FOR THE PURPOSE OF FINANCING THE ACQUISITION, CONSTRUCTION AND EQUIPPING OF A COMMERCIAL WAREHOUSE FACILITY TO BE LOCATED IN SAID CITY WHEREAS, the City of Winfield, Kansas (the "City") desires to promote, stimulate and develop the general economic welfare and prosperity of the City, and thereby to further promote, stimulate and develop the general economic welfare and prosperity of the State of Kansas; and WHEREAS, pursuant to the provisions of the Kansas Economic Development Revenue Bond Act, as amended and codified in K.S.A et seq. (the "Act"), the City is authorized to issue revenue bonds for such purposes, and it is hereby found and determined to be advisable and in the interest and for the welfare of the City and its inhabitants that taxable industrial revenue bonds of the City in the principal amount of not to exceed $13,250,000 be authorized and issued, in one or more series, to provide funds to pay the costs of acquiring, constructing, installing and equipping a commercial warehouse facility (the "Project") to be located in the City of Winfield, Kansas, and to be leased by the City to Winfield, KS (4625 E. 9 th ), LLC, an Illinois limited liability company, or assigns (the "Tenant"). NOW, THEREFORE, BE IT RESOLVED BY THE GOVERNING BODY OF THE CITY OF WINFIELD, KANSAS: Section 1. Public Purpose. The governing body of the City hereby finds and determines that acquiring, constructing, installing and equipping the Project will promote, stimulate and develop the general economic welfare and prosperity of the City, and thereby further promote, stimulate and develop the general economic welfare and prosperity of the State of Kansas. Section 2. Authorization to Acquire Project; Intent to Issue Bonds. The City is hereby authorized to acquire, construct, install and equip the Project and to issue its taxable industrial revenue bonds, in one or more series, in an aggregate principal amount not to exceed $13,250,000 (the "Bonds") to pay the costs thereof, subject to satisfaction of the conditions of issuance set forth herein. Section 3. Conditions to Issuance of Bonds. The issuance of the Bonds is subject to: (i) the passage, signature and publication of an ordinance authorizing the issuance of the Bonds; (ii) the successful negotiation of a Bond Agreement, Guaranty Agreement, Lease or other legal documents necessary to accomplish the issuance of the Bonds, the terms of which shall be in compliance with the Act and mutually satisfactory to the City and the Tenant; (iii) the successful negotiation and sale of the Bonds to a purchaser or purchasers yet to be determined (the "Purchaser"), which sale shall be the responsibility of the Tenant and not the City; (iv) the receipt of the approving legal opinion of Gilmore & Bell, P.C. ("Bond Counsel") in form acceptable to the City, the Tenant and the Purchaser; (v) the obtaining of all necessary governmental approvals to the issuance of the Bonds; and (vi) the commitment to and payment of all expenses of the City, any underwriting fees and expenses and all legal fees and expenses of Bond Counsel and the City Attorney relating to the issuance of the Bonds by the Purchaser or the Tenant. SOS\ \RESOL OF INTENT

6 Section 3. Property Tax Exemption. The City hereby determines that pursuant to the provisions of K.S.A a Second the Project, to the extent purchased or constructed with the proceeds of the Bonds, should be exempt from payment of ad valorem property taxes for ten (10) years commencing with the year following the year in which the Bonds are issued, provided proper application is made therefor. Section 4. Notices. The City Clerk is hereby authorized and directed to publish an appropriate notice of intent to issue the Bonds and to enter into a Lease with the Tenant pursuant to the provisions of the Act and to provide all notices as required by the Act. Section 5. Reliance by Tenant; Limited Liability of City. It is contemplated that in order to expedite acquisition of the Project and realization of the benefits to be derived thereby, the Tenant may incur temporary indebtedness or expend its own funds to pay costs of the Project prior to the issuance of the Bonds. Proceeds of Bonds may be used to reimburse the Tenant for such expenditures made not more than 60 days prior to the date this Resolution is adopted, and as provided by of the U.S. Treasury Regulations. The Bonds herein authorized and all interest thereon shall, in any event, be paid solely from the revenues to be received by the City from the Project and not from any other fund or source. The City shall not be obligated on such Bonds in any way, except as herein set out. In the event that the Bonds are not issued, the City shall have no liability to the Tenant. Section 6. Further Action. The City Clerk is hereby authorized to deliver an executed copy of this Resolution to the Tenant. The Mayor, City Clerk and other officials and employees of the City, including the City Attorney and Bond Counsel, are hereby further authorized and directed to take such other actions as may be appropriate or desirable to accomplish the purposes of this Resolution, including providing all notices required by the Act, preparation of the required cost benefit study, and the execution on behalf of the City of the information statement regarding the proposed issuance of the Bonds to be filed with the State Court of Tax Appeals pursuant to the Act. SOS\ \RESOL OF INTENT 2

7 ADOPTED by the governing body of the City of Winfield, Kansas this 5 th day of March, [SEAL] Mayor Attest: City Clerk SOS\ \RESOL OF INTENT 3

8 (Published in the Winfield Daily Courier, February 22, 2012) NOTICE OF PUBLIC HEARING AND OF ISSUANCE OF TAXABLE INDUSTRIAL REVENUE BONDS Public notice is hereby given that the City Commission of the City of Winfield, Kansas (the "City"), will conduct a public hearing on March 5, 2012 at 5:30 p.m., or as soon thereafter as may be heard at City Hall, 200 E. 9th in Winfield, Kansas, in regard to the issuance by the City of its Taxable Industrial Revenue Bonds (InSite Project), in an aggregate principal amount of not to exceed $13,250,000 (the "Bonds"). The Bonds are proposed to be issued by the City under authority of K.S.A et seq., as amended, to provide funds for constructing a 500,000-square-foot commercial warehouse facility to be located at 4625 E. 9 th Avenue and acquiring and installing machinery and equipment in the building. The City further intends to lease such facility to Winfield, KS (4625 E. 9 th ), LLC, an Illinois limited liability company, or assigns. The governing body of the City will not adopt an ordinance authorizing the issuance of such revenue bonds until said public hearing has been concluded. Notice is further given, in accordance with K.S.A e, that the City intends to issue the Bonds and lease the facility to the Tenant as set out above. A copy of this Notice, together with a copy of the inducement resolution of the City to be considered for adoption on March 5, 2012, indicating the intent of the governing body of the City to issue such Bonds, as required by K.S.A. Supp d are on file in the office of the City Clerk, or will be as soon as completed, and available for public inspection during normal business hours. All persons having an interest in this matter will be given an opportunity to be heard at the time and place above specified. Dated: February 22, 2012 CITY OF WINFIELD, KANSAS Brenda Peters, City Clerk SOS\ \RESOL OF INTENT

9 , 2012 Board of Education Cowley County Community College Unified School District No S. 2 nd, P.O. Box Wheat Road Arkansas City, Kansas Winfield, Kansas Board of County Commissioners c/o County Clerk Cowley County Courthouse th 311 E. 9 Winfield, Kanss Re: $13,250,000 City of Winfield, Kansas Industrial Revenue Bonds, Series 2012 (InSite Real Estate, L.L.C.) We have enclosed for your information a Notice of the Public Hearing and Issuance of Industrial Revenue Bonds proposed by the City of Winfield, Kansas, pursuant to K.S.A c and K.S.A. Supp d, as amended. Very truly yours, CITY OF WINFIELD, KANSAS Brenda Peters, City Clerk Enclosure SOS\ \RESOL OF INTENT

10 AFFIDAVIT OF MAILING AND PUBLICATION I, the undersigned, of lawful age, upon oath or affirmation, hereby declare under the penalties of perjury: 1. I am the duly appointed and acting City Clerk of the City of Winfield, Kansas, and I was the duly appointed and acting City Clerk at all times referred to in this affidavit. 2. On, 2012, I mailed a letter and attached Notice of Public Hearing addressed as follows: Board of Education Cowley County Community College Unified School District No S. 2 nd, P.O. Box Wheat Road Arkansas City, Kansas Winfield, Kansas Board of County Commissioners c/o County Clerk Cowley County Courthouse th 311 E. 9 Winfield, Kansas The foregoing items were mailed by first-class mail with adequate postage. Each envelope was endorsed with the return address of my office. Copies of the letter and notice mailed are attached to this affidavit. 3. Neither package was returned undelivered. 4. The Notice of Public Hearing mailed as stated above was published once in the Winfield Daily Courier, the official city newspaper, on February 22, 2012, which date was at least seven days prior to the date the public hearing was held. A true copy of the affidavit of publication of the Notice of Hearing is attached to this affidavit. STATE OF KANSAS ) Brenda Peters ) SS: COUNTY OF COWLEY ) Subscribed and sworn or affirmed before me this day of, [SEAL] My Appointment Expires: Notary Public Typed or Printed Name of Notary Public SOS\ \RESOL OF INTENT

11 February 27, 2012 Cowley County Community College 123 S. 2 nd, P.O. Box 1147 Arkansas City, Kansas Re: $13,250,000 City of Winfield, Kansas Industrial Revenue Bonds, Series 2012 (InSite Real Estate, L.L.C.) We have enclosed for your information a Notice of the Public Hearing and Issuance of Industrial Revenue Bonds proposed by the City of Winfield, Kansas, pursuant to K.S.A c and K.S.A. Supp d, as amended. Very truly yours, CITY OF WINFIELD, KANSAS Brenda Peters, City Clerk Enclosure

12 (Published in the Winfield Daily Courier on March 12, 2012) BILL NO ORDINANCE NO AN ORDINANCE AUTHORIZING THE CITY OF WINFIELD, KANSAS, TO ENTER INTO A LEASE PURCHASE TRANSACTION TO FINANCE THE CONSTRUCTION AND EQUIPPING OF WASTEWATER TREATMENT PLANT IMPROVEMENTS; AND TO APPROVE THE EXECUTION OF CERTAIN DOCUMENTS IN CONNECTION THEREWITH. WHEREAS, under the constitution and statutes of the State of Kansas, particularly Article 12, 5 of the Kansas Constitution and K.S.A et seq., the City of Winfield, Kansas (the City ) is empowered to enter into certain leases, lease purchase agreements and installment purchase agreements for the lease and/or acquisition of property; and WHEREAS, K.S.A b provides in pertinent part that nothing in the provisions of K.S.A et seq. shall prohibit a municipality from entering into a lease agreement, with or without an option to buy, or an installment-purchase agreement, if any of such agreements specifically state that the municipality is obligated only to pay periodic payments or monthly installments under the agreement as may lawfully be made from: (a) funds budgeted and appropriated for that purpose during such municipality's current budget year, or (b) funds made available from any lawfully operated revenue producing source; and WHEREAS, the governing body of the City (the Governing Body ) has heretofore found and determined it necessary and advisable, and in the public interest, to make improvements to the City s wastewater treatment system (the System ) by the construction of wastewater treatment plant improvements, pump station improvements and related appurtenances (the Improvements ); and WHEREAS, the Governing Body passed Ordinance No on March 26, 1996, authorizing the execution of Loan Agreement No. C , effective as of March 6, 1996 (the Loan ), with the Kansas Department of Health and Environment ( KDHE ) to provide initial financing for the Improvements in the original principal amount of $2,699,886.19; and WHEREAS, the Governing Body passed Ordinance No on November 18, 1996, authorizing the execution of Amendment No. 1 to the Loan, effective as of November 4, 1996, to expand the scope of the Improvements and increase the principal amount to $6,699,972.29; and WHEREAS, the Governing Body passed Ordinance No on November 16, 1998, authorizing the execution of Amendment No. 2 to the Loan, effective as of October 1, 1998, to expand the scope of the Improvements and increase the principal amount to $7,525,091; and WHEREAS, the Governing Body adopted Resolution No on August 21, 2000, authorizing the execution of Amendment No. 3 to the Loan, effective as of July 17, 2000, to modify certain provisions of the Loan; and JLN\ \ORDINANCE ( )

13 WHEREAS, the Governing Body passed Ordinance No on October 6, 2008, authorizing the execution of Amendment No. 4 to the Loan, effective as of July 17, 2000, to further expand the scope of the Improvements and increase the principal amount to $7,970,091; and WHEREAS, the Loan has a final scheduled payment date of September 1, 2018 and will have an outstanding balance after a scheduled payment on March 1, 2012, of approximately $3,274,470.34; and WHEREAS, the City has an immediate need to refinance the Improvements and to retire the Loan to further its governmental and public purposes as established by law, but does not have sufficient funds available to take such actions; and WHEREAS, the governing body of the City has heretofore adopted Resolution No on January 17, declaring the intent of the City to enter into a financing arrangement involving a lease purchase agreement in order to finance the costs of the Project; and WHEREAS, in order to facilitate the foregoing and to pay the cost thereof, it is necessary and desirable for the City to take the following actions: 1. Enter into a Base Lease (the Base Lease ) with the City, as lessor, and Union State Bank, Winfield, Kansas, as representative of Union State Bank, Community National Bank, CornerBank, N.A. and Citizens Bank of Kansas, N.A. (collectively, the Bank ), as lessee, pursuant to which the City will lease certain real estate upon which the Improvements are located (the Real Property, and collectively with the Improvements, the Project ) to the Bank on the terms and conditions set forth therein, a form of which has been submitted to the governing body for review; and 2. Enter into an annually renewable lease purchase agreement (the Lease ) with the City as lessee and the Bank as lessor, pursuant to which the City will lease the Project on a year-to-year basis from the Bank with an option to purchase the Bank s interest in the Project, a form of which has been submitted to the governing body for review (the Base Lease and the Lease are referred to together herein as the City Documents ). NOW THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF WINFIELD, KANSAS, AS FOLLOWS: Section 1. Authorization and Approval of the City Documents. (a) The City Documents are hereby approved in substantially the form submitted to and reviewed by the governing body on the date hereof, with such changes therein as shall be approved by the Mayor, the Mayor's execution of the City Documents to be conclusive evidence of such approval. (b) The obligation of the City to pay Basic Rent Payments (as defined in the Lease) under the Lease is subject to annual appropriation and shall constitute a current expense of the City and shall not in any way be construed to be an indebtedness or liability of the City in contravention of any applicable constitutional or statutory limitation or requirement concerning the creation of indebtedness or liability by the City, nor shall anything contained in the Lease constitute a pledge of the general tax revenues, funds or moneys of the City, and all provisions of the Lease shall be construed so as to give effect to such intent. JLN\ \ORDINANCE ( ) 2

14 (c) The Mayor is hereby authorized and directed to execute and deliver the City Documents on behalf of and as the act and deed of the City. The City Clerk is hereby authorized to affix the City's seal to the City Documents and attest said seal. Section 2. Further Authority. The City shall, and the officials and agents of the City are hereby authorized and directed to, take such actions, expend such funds and execute such other documents, certificates and instruments as may be necessary or desirable to carry out and comply with the intent of this Ordinance and to carry out, comply with and perform the duties of the City with respect to the City Documents, the other documents authorized or approved hereby, and the Project. Section 3. Effective Date. This Ordinance shall take effect and be in full force from and after its passage by the governing body of the City and publication in the official City newspaper. [BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK] JLN\ \ORDINANCE ( ) 3

15 PASSED by the governing body of the City on March 5, 2012, and signed by the Mayor. (SEAL) Mayor ATTEST: Clerk [BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK] JLN\ \ORDINANCE (Signature Page to Ordinance)

16 CERTIFICATE I hereby certify that the foregoing is a true and correct copy of the original ordinance; that said Ordinance was passed on March 5, 2012; that the record of the final vote on its passage is found on page of journal ; and that it was published in the Winfield Daily Courier on March 12, DATED: March 12, Clerk [BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK] JLN\ \ORDINANCE (Signature Page to Ordinance Certificate)

17 Gilmore & Bell, P.C. 02/21/2012 BASE LEASE between UNION STATE BANK, WINFIELD, KANSAS (as Representative of Union State Bank, Community National Bank, CornerBank, N.A. and Citizens Bank of Kansas, N.A.) AS LESSEE and THE CITY OF WINFIELD, KANSAS AS LESOSR Dated as of March 20, 2012 JLN\ \BASE LEASE ( )

18 INDEX Section 1. Representations by City Section 2. Rental by the Bank... 2 Section 3. Term of Base Lease... 2 Section 4. Assignments and Subleases... 2 Section 5. Termination... 3 Section 6. Taxes and Assessments... 3 Section 7. Leaseback to City... 3 Section 8. Severability... 3 Section 9. Amendments, Changes and Modifications... 3 Section 10. Applicable Law... 3 Section 11. Execution... 3 Section 12. Successors... 4 Section 13. Complete Agreement... 4 [BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK] JLN\ \BASE LEASE ( )

19 Gilmore & Bell, P.C. 02/21/2012 BASE LEASE THIS BASE LEASE (the Base Lease ) dated as of March 20, 2012, between the CITY OF WINFIE L D, K ANSAS (the City ), a municipal corporation duly organized and existing under the constitution and laws of the state of Kansas, and UNION ST AT E BANK, Winfield, Kansas, as representative of Union State Bank, Community National Bank, CornerBank, N.A. and Citizens Bank of Kansas, N.A., banking associations or corporations organized under the laws of the United States of America or one of the states thereof, together with its successors and assigns (collectively the Bank ); WITNESSETH: WHEREAS, the governing body of the City (the Governing Body ) has heretofore found and determined it necessary and advisable, and in the public interest, to make improvements to the City s wastewater treatment system (the System ) by the construction of wastewater treatment plant improvements, pump station improvements and related appurtenances, as further described in Schedule 1 (the Improvements ); and WHEREAS, the Governing Body passed Ordinance No on March 26, 1996, authorizing the execution of Loan Agreement No. C , effective as of March 6, 1996 (the Loan ), with the Kansas Department of Health and Environment ( KDHE ), as amended, to provide initial financing for the Improvements; WHEREAS, the Loan has a final scheduled payment date of September 1, 2018 and will have an outstanding balance after a scheduled payment on March 1, 2012, of approximately $3,274,470.34; and WHEREAS, the City has an immediate need to refinance the Improvements and to retire the Loan to further its governmental and public purposes as established by law, but does not have sufficient funds available to take such actions; and WHEREAS, the City is the owner of the real estate described in Schedule 1 (the Real Property ) on which the Improvements are located, and certain other personal property described in Schedule 1 (the Personal Property, and collectively with the Real Property, Property ); and WHEREAS, the Property and the Improvements constitute the Project ; and WHEREAS, the Bank proposes to lease the Property from the City and to provide up to $3,500,000* to refinance the construction of the Improvements and to retire the Loan, and has offered to lease the Project to the City pursuant to a Lease Purchase Agreement dated as of the date hereof (the Lease ) between the Bank and the City; and NOW, THEREFORE, in consideration of the covenants and agreements by the Bank herein set forth, the City hereby leases the Property to the Bank, to have and to hold, with all appurtenances, for a term commencing on March 20, 2012, and ending on September 1, 2022 (the Termination Date ). FURTHER, the City and the Bank hereby covenant and agree as follows: JLN\ \BASE LEASE ( )

20 SECTION 1. follows: Representations by the City. The City represents, covenants and agrees as (a) The lease of the Property to the Bank and the lease of the Project by the Bank to the City, as provided in the Lease, are necessary, desirable and in the public interest, and the City hereby declares its current need for the Project. (b) The City, pursuant to K.S.A b, K.S.A et seq., and an ordinance passed by the Governing Body, has full power and authority to enter into the transactions contemplated by this Base Lease and the Lease and to carry out its obligations hereunder and thereunder, and by proper action has authorized the execution and delivery of this Base Lease and the Lease. (c) Neither the execution and delivery of this Base Lease or the Lease, nor the fulfillment of or compliance with the terms and conditions hereof or thereof, nor the consummation of the transactions contemplated hereby, conflicts with or results in a breach of the terms, conditions or provisions of any restriction or any agreement or instrument to which the City is now a party or by which the City is bound. (d) The City has marketable record fee simple title to the Property. (e) The Real Property is not subject to any dedication, easement, right-of-way, reservation, covenant, condition, restriction, lien or encumbrance which would prohibit or materially interfere with the construction of the Improvements on the Real Property, as contemplated by the Lease. (f) All taxes, assessments or impositions of any kind with respect to the Property, except current taxes, have been paid in full. (g) The Real Property is properly zoned for the purpose of the constructing a wastewater treatment plant facility. (h) The City has not made, done, executed or suffered, and warrants that it will not make, do, execute or suffer, any act or thing whereby the City's interests in any property now or hereafter included in the Project shall be or may be impaired, changed or encumbered in any manner, except as permitted by this Base Lease and the Lease. SECTION 2. Rental by the Bank. The Bank represents, covenants and agrees as follows: (a) To enter into the Lease simultaneously with the delivery of this Base Lease. (b) To provide funds exclusively from the proceeds of the execution and delivery of the Lease in an aggregate amount not to exceed $3,500,000* to pay the costs of financing and/or refinancing the Improvements constructed on the Real Property. (c) To surrender and deliver the Property to the City upon the expiration of this Base Lease. SECTION 3. Term of Base Lease. The term of this Base Lease shall commence on March 20, 2012 (or as soon thereafter as the Lease is executed and delivered) and end on the Termination Date, unless the leased premises are voluntarily surrendered by the Bank on the conditions hereinafter provided. SECTION 4. Assignments and Subleases. JLN\ \LPA ( ) 2

21 (a) The Bank may assign its rights under this Base Lease without the consent of the City: (i) in connection with any assignment of its rights under the Lease, (ii) if the Lease is terminated for any reason or (iii) if an Event of Default as defined in the Lease has occurred. (b) The City may assign its rights under this Base Lease and sublet the Project on the conditions set forth in the Lease. SECTION 5. Termination. This Base Lease shall terminate upon the completion of the term set forth in Section 3; provided however, in the event the City makes all payments of Rent as provided in the Lease and exercises its option to purchase the Bank s interest in the Project pursuant to the Lease, then this Base Lease shall be considered assigned to the City and terminated through merger of the leasehold interest with the fee interest. This Base Lease is subject to change or termination by Act of the Kansas legislature. If an Event of Default under the Lease occurs or if the City terminates the Lease as permitted therein, the Bank shall have the right to possession of the Property for the remainder of the term of this Base Lease and shall have the right to sublease the Project or sell its interest in the Project and this Base Lease upon whatever terms and conditions it deems prudent; provided, however, that in the event of such sublease or sale, the Bank shall cause the City to be provided with adequate public liability insurance covering the premises for the remainder of the term and continuing evidence thereof. SECTION 6. Taxes and Assessments. The City covenants and agrees to pay any and all assessments of any kind or character and all taxes levied or assessed upon the Real Property. SECTION 7. Leaseback to City. Contemporaneously herewith, the Bank and the City will execute the Lease whereby the Bank subleases back to the City and the City subleases from the Bank the Property, and the Bank leases to the City and the City leases from the Bank the Project in accordance therewith. Title to the Property shall remain in the City at all times. The leasing of the Project to the City under the lease shall be deemed the City's entire consideration for this Base Lease. SECTION 8. Severability. If any one or more of the terms, provisions, covenants or conditions of this Base Lease shall to any extent be declared invalid, unenforceable, void or voidable for any reason whatsoever by a court of competent jurisdiction, the finding or order or decree of which becomes final, none of the remaining terms, provisions, covenants and conditions of this Base Lease shall be affected thereby, and each provision of this Base Lease shall be valid and enforceable to the fullest extent permitted by law. SECTION 9. Amendments, Changes and Modifications. This Base Lease may not be effectively amended, changed, modified, altered or supplemented except with the written consent of both the Bank and the City. Any waiver of any provision of this Base Lease or any right or remedy hereunder must be affirmatively and expressly made in writing and shall not be implied from inaction, course of dealing or otherwise. SECTION 10. Applicable Law. This Base Lease shall be governed by and construed in accordance with the laws of the State of Kansas. SECTION 11. Execution. Separate counterparts of this Base Lease may be executed by the Bank and the City with the same force and effect as though the same counterpart had been executed by both the Bank and the City. JLN\ \LPA ( ) 3

22 SECTION 12. Successors. This Base Lease shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. SECTION 13. Complete Agreement. This written agreement, together with the Lease, constitute a final expression of the agreements between the parties hereto and such agreements may not be contradicted by evidence of any prior or contemporaneous oral agreement. No unwritten oral agreement between the parties exists. [BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK] JLN\ \LPA ( ) 4

23 IN WITNESS WHEREOF, the Bank and the City have caused this Base Lease to be executed by their respective authorized officials and officers, all as of the day and year first above written. CITY OF WINFIELD, KANSAS (SEAL) ATTEST: By: Name: Taggart L. Wall Title: Mayor By: Name: Brenda Peters Title: City Clerk ACKNOWLEDGMENT STATE OF KANSAS ) ) SS. COUNTY OF COWLEY ) This instrument was acknowledged before me this day of March, 2012 by Taggart L. Wall, Mayor of the City of Winfield, Kansas, a municipal corporation organized under the laws of the State of Kansas. (SEAL) Notary Public My Appointment Expires: JLN\ \BASE LEASE (Signature Page to Base Lease City)

24 UNION STATE BANK WINFIELD, KANSAS as Representative of Union State Bank, Community National Bank, CornerBank, N.A. and Citizens Bank of Kansas, N.A. By: Name: Title: ACKNOWLEDGMENT STATE OF KANSAS ) ) SS. COUNTY OF COWLEY ) This instrument was acknowledged before me this day of March, 2012 by, of Union State Bank, a banking association or corporation organized under the laws of the United States of America or one of the states thereof. (SEAL) Notary Public My Appointment Expires: JLN\ \BASE LEASE (Signature Page to Base Lease Bank)

25 Gilmore & Bell, P.C. 03/02/2012 LEASE PURCHASE AGREEMENT between UNION STATE BANK, WINFIELD, KANSAS (as Representative of Union State Bank, Community National Bank, CornerBank, N.A. and Citizens Bank of Kansas, N.A.) AS LESSOR and THE CITY OF WINFIELD, KANSAS AS LESSEE Dated as of March 20, 2012 JLN\ \LPA ( )

26 TABLE OF CONTENTS LEASE PURCHASE AGREEMENT Page Parties... 1 Recitals... 1 ARTICLE I DEFINITIONS Section Definitions... 1 Section Rules of Construction... 6 Section Execution of Counterparts... 6 Section Severability... 6 Section Governing Law and Enforcement... 6 Section Complete Agreement... 7 Section Accounting Terms... 7 ARTICLE II REPRESENTATIONS Section Representations of the Lessee... 7 ARTICLE III GRANTING PROVISIONS; LEASE TERM Section Lease of Project... 9 Section Lease Term... 9 Section Enjoyment of Project... 9 Section Access to Premises; Inspection Section Termination for Nonappropriation Section Nonsubstitution ARTICLE IV RENT Section Basic Rent Section Supplemental Rent Section Rent Payments to Constitute a Current Expense and Limited Obligation of the Lessee Section Advances Section Prepayment of Rent Payments Section Triple Net Lease; Rent Payments to be Unconditional Section Compensation of the Lessor Section Increased Basic Rent JLN\ \LPA ( ) i

27 ARTICLE V REFINANCING OF THE PROJECT AND RETIREMENT OF THE LOAN; COMPLETION OF THE IMPROVEMENTS Section Creation of Funds and Accounts Section Deposit, Application and Investment of Moneys Section Completion of the Improvements Section Lease Reserve Account Section Warranties Section DISCLAIMER OF WARRANTIES ARTICLE VI IMPOSITIONS Section Impositions Section Contest of Impositions ARTICLE VII INSURANCE; INDEMNITY Section Insurance Required Section Evidence of Title Section Release and Indemnification Section Liability ARTICLE VIII MAINTENANCE, REPAIRS AND MODIFICATIONS Section Maintenance, Repairs and Modifications Section Removal, Disposition and Substitution of Machinery or Equipment Section Liens ARTICLE IX DAMAGE, DESTRUCTION AND CONDEMNATION; USE OF NET PROCEEDS Section Damage, Destruction and Condemnation; Use of Net Proceeds Section Insufficiency of Net Proceeds Section Cooperation of the Lessor ARTICLE X PURCHASE OPTION Section Purchase Option Section Determination of Fair Purchase Price JLN\ \LPA ( ) ii

28 ARTICLE XI ASSIGNMENT AND SUBLEASING Section Assignment and Subleasing Section Assignment by the Lessor ARTICLE XII EVENTS OF DEFAULT Section Remedies Section No Remedy Exclusive Section No Additional Waiver Implied by One Waiver ARTICLE XIII TAX COVENANTS Section Tax Covenants ARTICLE XIV MISCELLANEOUS Section Notices Section Title to Personal Property Section Security Interest; Filings Section Financial Statements Section Amendments, Changes and Modifications Section No Pecuniary Liability Section Binding Effect Schedule 1 Description of Real Property, Personal Property, and Improvements... S-1 Exhibit A Schedule of Basic Rent Payments... A-1 [BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK] JLN\ \LPA ( ) iii

29 LEASE PURCHASE AGREEMENT THIS LEASE PURCHASE AGREEMENT (the Lease ), dated as of March 20, 2012, is entered into between UNION ST AT E BANK, Winfield, Kansas, as representative of Union State Bank, Community National Bank, CornerBank, N.A. and Citizens Bank of Kansas, N.A., banking associations or corporations organized under the laws of the United States of America or one of the states thereof, together with its successors and assigns (collectively the Lessor ), and the CITY OF WINFIELD, KANSAS, a municipal corporation duly created, organized and existing under the laws of the State of Kansas (the Lessee ). WITNESSETH: WHEREAS, the Lessee and the Lessor have entered into a Base Lease dated as of March 20, 2012 (the Base Lease ), pursuant to which the Lessee has leased to the Lessor certain real property, including the existing improvements located thereon (the Real Property ) and certain other personal property (the Personal Property, and collectively with the Real Property, Property ), all as described on Schedule 1; and WHEREAS, the governing body of the Lessee (the Governing Body ) has heretofore found and determined it necessary and advisable, and in the public interest, to make improvements to the Lessee s wastewater treatment system (the System ) by the construction of wastewater treatment plant improvements, pump station improvements and related appurtenances (the Improvements, and collectively with the Property, the Project ) as further described on Schedule 1; and WHEREAS, the Governing Body passed Ordinance No on March 26, 1996, authorizing the execution of Loan Agreement No. C , effective as of March 6, 1996 (the Loan ), with the Kansas Department of Health and Environment ( KDHE ), as amended, to provide initial financing for the Improvements; and WHEREAS, the Loan has a final scheduled payment date of September 1, 2018 and will have an outstanding balance after a scheduled payment on March 1, 2012, of approximately $3,274,470.34; and WHEREAS, the Lessor desires to provide funds in an aggregate amount not to exceed $3,500,000* to pay costs of refinancing the Improvements and retiring the Loan; and WHEREAS, the Lessor desires to lease the Project to the Lessee, all subject to the terms and conditions and for the purposes set forth in this Lease; and WHEREAS, the Lessee is authorized under the constitution and laws of the State of Kansas, particularly Article 12, 5 of the Kansas Constitution and K.S.A et seq., to enter into this Lease for the purposes set forth herein; and NOW, THEREFORE, for and in consideration of the premises hereinafter contained, the Lessor and the Lessee do hereby agree as follows. ARTICLE I DEFINITIONS Section Definitions. Unless the context otherwise specifically requires or indicates to the contrary, the following terms as used in the Base Lease and this Lease shall have the following meanings: JLN\ \LPA ( )

30 Acquisition Fund means the Acquisition Fund established in Section 5.01 of this Lease. Available Revenues means, for any Fiscal Year, any balances of the Lessee from previous Fiscal Years encumbered to pay Rent, amounts budgeted or appropriated by the Lessee for such Fiscal Year plus any unencumbered balances of the Lessee from previous Fiscal Years that are legally available to pay Rent during such Fiscal Year, plus any moneys and investments, including earnings thereon, held by the Lessor pursuant to the Escrow Agreement. Base Lease means the Base Lease dated as of March 20, 2012, between the Lessee, as lessor, and the Lessor, as lessee, as amended or supplemented from time to time. Basic Rent means the Basic Rent Payments comprised of a Principal Portion and an Interest Portion as set forth on Exhibit A attached hereto. Basic Rent Payment means a payment of Basic Rent. Basic Rent Payment Date means each March 1 and September 1 during the Lease Term, commencing on September 1, CERCLA means the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C et seq. Code means the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder. Costs of Improvements means all reasonable or necessary expenses related or incidental to the acquisition, construction and installation of the Improvements, including the expenses of studies, surveys, title policies, architectural and engineering services, legal and other special services and all other necessary and incidental expenses. Costs of Improvements shall include Costs of Issuance. Costs of Issuance means all items of expense directly or indirectly payable by or reimbursable to the Lessee and related to the authorization, execution, sale and delivery of the Lease, including advertising and printing costs, costs of preparation and reproduction of documents, filing and recording fees, initial fees and charges of the Lessor, legal fees of parties to the transaction and all other initial fees and disbursements contemplated by this Lease and the Escrow Agreement. Costs of Issuance Account means the Costs of Issuance Account established in Section 5.01 of this Lease. Derivative means any investment instrument whose market price is derived from the fluctuating value of an underlying asset, index, currency, futures contract, including futures, options and collateralized mortgage obligations. Environmental Assessment means an environmental assessment with respect to the Project conducted by an independent consultant satisfactory to the Lessee which reflects the results of such inspections, records reviews, soil tests, groundwater tests and other tests requested, which assessment and results shall be satisfactory in scope, form and substance to the Lessor and the Lessee. JLN\ \LPA ( ) 2

31 Environmental Law means CERCLA, SARA, and any other federal, state or local environmental statute, regulation or ordinance presently in effect or coming into effect during the term of this Lease. Event of Default means any one or more of the following events: (a) Failure by the Lessee to make any Rent Payment when due and the continuance of such failure for five days after the specified due date; (b) Failure by the Lessee to observe and perform any covenant, condition or agreement under any Project Documents on its part to be observed or performed, other than as referred to in subparagraph (a) of this section, for a period of 30 days after written notice specifying such failure and requesting that it be remedied is given to the Lessee by the Lessor; provided, however, if the failure stated in the notice cannot be corrected within the applicable period, the Lessor shall consent to an extension of such time if the Lessee certifies that corrective action has been instituted by the Lessee within the applicable period and will be diligently pursued until the failure is corrected; (c) Any statement, representation or warranty made by the Lessee in or pursuant to any Project Documents or any instrument or certificate related thereto or to the Project shall be incorrect, untrue or misleading in any material respect; (d) Any provision of the Project Documents shall at any time for any reason cease to be valid and binding on the Lessee, or shall be declared to be null and void, or the validity or enforceability thereof shall be contested by the Lessee or any governmental agency or authority if the loss of such provision would materially adversely affect the rights or security of the Lessor; or (e) The filing by the Lessee of a voluntary petition in bankruptcy, or failure by the Lessee to promptly lift any execution, garnishment or attachment of such consequence as would impair the ability of the Lessee to carry on its essential functions, or adjudication of the Lessee as a bankrupt, or assignment by the Lessee for the benefit of creditors, or the entry by the Lessee into any agreement of composition with creditors, or the approval by a court of competent jurisdiction of a petition applicable to the Lessee in any proceedings instituted under the provisions of any applicable federal bankruptcy law. Event of Nonappropriation means an Event of Nonappropriation as described in Section Fiscal Year means the fiscal year of the Lessee from financial and budgetary purposes, currently the twelve-month period beginning January 1 and ending on December 31 of each year. Hazardous Substances shall mean hazardous substances as defined in CERCLA. Impositions means all taxes and assessments, general and special, if any, which may be lawfully taxed, charged, levied, assessed or imposed upon or against or be payable for or in respect of the Project, including any taxes and assessments not now customarily levied against real or personal property, and further including all water and sewer charges, assessments and other general governmental charges and impositions whatsoever, foreseen or unforeseen, which if not paid when due would impair the security of the Lessor or encumber the Project. Improvements means the improvements described in Schedule 1 to this Lease. JLN\ \LPA ( ) 3