RESOLUTION NO. 070331
Consenting to
the determination by the Tax Increment Financing Commission of Kansas City,
Missouri that utilities relocate their facilities at their own expense where
necessary for the construction of road improvements in the KCI Corridor
Redevelopment Area.
WHEREAS, on March 11, 1999, upon recommendation of the Tax Increment
Finance Commission (TIF Commission), the City Council found the KCI Corridor
Redevelopment Area ("Redevelopment Area") to be an Economic
Development Area as defined in Section 99.805(5), RSMo, designated the area as
a Redevelopment Area, and approved the KCI Corridor Tax Increment Financing
Redevelopment Plan by Ordinance No. 990256 (the "Plan"); and
WHEREAS, the Plan was subsequently amended on February 3, 2005 by Ordinance No. 050107 to provide for certain public improvements, including
certain roadways within and adjacent to the Redevelopment Area, and
specifically, the improvements identified on Exhibit "A-2", attached
hereto (the "Road Improvements"); and
WHEREAS, on January 11, 2006, the TIF Commission, pursuant to Resolution
No. 01-6-06, designated MD Management, Inc. (the "Developer") as the
developer for the Road Improvements; and
WHEREAS, on March 30, 2006, the Developer entered into an Agreement with
the TIF Commission (the "Agreement") in which the Developer agreed to
construct the Road Improvements, pursuant to the Plan, as amended, subject to
the reimbursement of the Developers costs related thereto that are identified
on Exhibit "A-2" and as set forth on Exhibit "A-1",
attached hereto, and on Exhibit 7 to the Plan, as amended (the
"Redevelopment Costs"), in accordance with the terms and conditions
of the Agreement; and
WHEREAS, pursuant to the Agreement, the Developer shall implement or
cause to be implemented the Road Improvements in conformance with the plans to
be prepared by TransSystems Corporation and its subcontractors and approved by
the Citys Public Works Department (hereinafter "Public Works"); and
WHEREAS, all projected costs associated with the Road Improvements,
including, but not limited to, engineering, right-of-way acquisition,
construction, project management and Developers legal fees required in
connection with the Road Improvements are described on Exhibit 7 to the Plan,
as amended, and set forth on Exhibit A-2 attached hereto; and
WHEREAS, the Road Improvements shall be built in accordance with the Plan
and Public Works Primary Arterial Design Standards and shall specifically
include, but not be limited to, the installation of streetlights, traffic
signals, sidewalks, bike trails, water mains, storm sewers, and utilities
relocations; and upon completion, the improved roadway, including a
right-of-way consistent with that shown on the plans and specifications
approved by Public Works, shall be dedicated to the City of Kansas City,
Missouri (the "City") as appropriate; and
WHEREAS, in order to implement the Road Improvements in accordance with
the Plan, it will be necessary that certain utilities facilities be relocated
from the right-of-way; and
WHEREAS, the utilities have advised Developer that they would not
relocate their facilities until the Developer has advanced the funds the
utilities deem necessary to effectuate the relocations; and
WHEREAS, the Plan does not contemplate reimbursing Developer for the
utilities relocations because under the common law and case law of Missouri, a
utility must relocate its facilities in public streets at its own expense when
the relocation has been necessitated by a municipalitys exercise of a
governmental rather than a proprietary function or purpose; and
WHEREAS, the Missouri Supreme Court in Union Electric Company v. Land
Clearance for Redevelopment Authority of the City of St. Louis, 555 S.W. 2d
29 (Mo. en banc 1977), has held that the relocation of utility facilities
required by a redevelopment project were acts of the City and the Authority in
the exercise of a governmental rather than a proprietary function; and
WHEREAS, on February 14, 2007, the TIF Commission, by Resolution No. 2-26-07, a copy of which is attached hereto as Exhibit "B", found that the
relocation of utilities in the Redevelopment Area is necessary to implement the
Plan, which has been legislatively declared to be in furtherance of a public
purpose, thus, the utilities are required by Missouri law to relocate their
facilities at their own expense; and
WHEREAS, in such resolution, the TIF Commission authorized its Executive
Director to notify the utilities, whose facilities in the Redevelopment Area
need to be relocated to accommodate the Road Improvements, to so relocate such
facilities at each utilitys own expense and also to take all necessary action
to obtain compliance by each of the utilities; and
WHEREAS, the Executive Director is concerned that the utilities may
refuse or not comply with his direction to so relocate such facilities in a
timely manner at each utilitys own expense, without a similar resolution by
the City Council concurring with and consenting to the findings of the TIF
Commission in its Resolution No. 02-26-07, and directing the utilities, whose facilities in the Redevelopment Area that need to be relocated to
accommodate the Road Improvements, to so relocate such facilities in a timely
manner at each utilitys own expense; NOW, THEREFORE,
BE IT RESOLVED BY THE COUNCIL OF KANSAS CITY:
Section 1. That the Council hereby states its concurrence and consent to
the findings of the TIF Commission in its Resolution 02-26-07.
Section 2. That the Council finds that the relocation of utilities in the
Redevelopment Area is necessary to implement the Plan, which has been
legislatively declared to be in furtherance of a public purpose, thus, the
utilities are required by Missouri law to relocate said facilities at their own
expense.
Section 3. That the Council does hereby notify and direct each of the
utilities, whose facilities in the Redevelopment Area that need to be relocated
to accommodate the Road Improvements, to so relocate such facilities in a
timely manner at each utilitys own expense.
Section 4. That this Resolution takes effect immediately upon its
adoption.
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