HomeMy WebLinkAbout2010-091 Agreement and Leaseback (Beverly) RESOLUTION NO. R-2010-091
A RESOLUTION AUTHORIZING, RATIFYING, AND CONFIRMING EXECUTION OF AN
ASSIGNMENT OF REAL ESTATE SALE AGREEMENT AND LEASEBACK AGREEMENT
WHEREAS, the Board of Aldermen find it is in the best interest of the City to enter into an
Assignment of Real Estate Sale Agreement and Leaseback Agreement for the purchase of
property located at 2519 Northwest Platte Road, Riverside, Missouri according to the terms and
conditions set forth in Exhibit "A" attached hereto;
NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE
CITY OF RIVERSIDE, MI$SOURI, AS FOLLOWS:
THAT the Mayor is hereby authorized to execute and deliver the Assignment of Real
Estate Sale Agreement and Leaseback Agreement to purchase the property located at 2519
Northwest Piatte Road, Riverside, Missouri in substantially the same form as attached hereto
as Exhibit "A" and the City Clerk is authorized to attest thereto and all actions related thereto
taken prior to the adoption of this resolution are hereby ratified and confirmed;
FURTHER THAT the City Administrator, Mayor, Finance Director and/or other city
officials are hereby authorized to execute any and all other documents necessary or
incidental to carry out the terms and conditions of such Agreement and to effectuate the
purchase of real property contemplated therein.
PASSED AND ADOPTED by the Board of Aldermen and APPROVED by the Mayor
of the City of Riverside, Missouri, the r '�� day of �e���,hcrL. , 2010.
r w -• Kathleen L. Rose, Mayor
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; _ AT� T: '
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Robin Littrell, City Clerk
Approveci-�� to Form:
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c T omp on, City Attomey
1
ASSiGNMFNT OF REAL ESTATE SALE AGI2EEMENT
AND LEASEBACK AGREEMENT
ih
THIS ASSIGNMENT agreement made and entered into this ZN day of
Q-V2r�►/JP� , 2010, by and between, BRIARCLIFF DEVELOPMENT
COMPANY, a Missouri Corporation (Briarclif� and CITY OF RIVERSIDE,
MISSOURI, a Missouri Municipal Corporation as follows:
WHEREAS, Briarcliff has entered into a Missouri Real Estate Sale Contract and
Leaseback Agreement dated Iv(�/�,yv�p,r,i Z1,� ��Q with Beverly Lumber Company
to purchase property therein described; and
WHEREAS, City desires to have such contract assigned to it so that title to such
property shall be closed in the City's name and City shall thereafter be the lessor of such
property to Beverly Lumber Company according to the terms set forth in such lease; and
WHEREAS, for good and valuable consideration, Briarcliff is willing to assign
all its rights and obligations under such contract to CiTy; and
WHEREAS, pursuant to paragraph 13 of such agreement Briarcliff has the right
to assign such agreement without the consent of Beverly Lumber Company;
NOW THEREFORE, in consideration of the foregoing the parties hereby agree
as follows:
l. Briarcliff hereby sells, assigns, transfers and conveys to City all of
BriarclifPs right, title and interest in and to the Missouri Real Estate Sale Contract and
Leaseback Agreement attached hereto as Exhibit A.
2. City hereby (a) accepts such assignment; and (b) assumes from Driarcliff
and agrees to pay and perform, from and after the date hereof, as a direct obligation all of
Briarcliffls obligations and liabilities under said contract attached as Exhibit A.
3. This Assignment shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
4. The Assignment may be executed in any number of counterparts, each of
which may be deemed an original but all of which together shal] constitute one and the
same instrument.
5. The Assignment shall be governed and construed in accordance with the
laws of the State of Missouri.
CITY OF RNERSIDE, MIS50UR1
s � �
ayor
ATTEST:
c/�'C�
o it..e�'� �
Clerk
BRIARC F DEVELOPMENT COMPANY
By:
ice
ATTEST:
— 7/ L� `�-` �'��
Secretary
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FROM : NCGINNESS-SHqW LqW OFFICES PHOh� N0. : 816 431 5086 Nov. 24 2010 63:00PM P2
MISSO 1t�AL ES'�ATC SAY,E CaNTRA,CT I
A]tiD �.EASEBACK.AGRE�MEN7'
TkaSs Agreement {herein rcferred to as the "AgreezuenY'), made and entered into this
� day of November, 2010, by azid batwcen Beverly Lumbar Company, a Missouzi
Corporation (the "Seller") and Sriarclif� Developmezrt Company, a Missouri C:orporation, or its
assigns, (tlle "Buyer").
WITNESSF-TH:
1. Seller hereby agrees to seil and convey by Corporation Warranty Deed and the �uyer
agrees to buy upon the tertns and conditiox�s hercin set out the real esGate described in �chibit
"A" attached hereto �.nd made a part hereof, together witb all improvements thereon (referred to �
herein collectively as the "Property"), subject, however, to e�.yements, covenants, restricflons and
reservations of rccord, if any, and to zoning laws applicable to the Froperty and to a pzorated
portion of the 2010 real estate taxcs and assessments an the Pro�erty as more specifically "
provided hereizzafter.
2. Sea�er and Suyer agree the purehase prIce for �11 thc Property shall be Six Hundred
�'wenty Five Thousand Dollars ($625,000.00), whick� Buyer a�;rees to pay as follows: An earnest
money de�osit in the amount of Ten Thousand Doflaxs ($10,000.00) at the signing o£ this _
Agreement which sha►11 be daposited with the Title Company named hereinafter to be held and
disbursed in accordanc� with the terz�;�s of this Agreemcnt and the balance nf the purchase price
to be pa�d in full in the fozxn of goad funds at the closing of this sale and puxchase t�ansaotion.
3. Tlie closing datc ak�a11 be November 30, 2010. Seller shnll retain pnssession of the
Property at closix�g pursuant to the Leaseback provisions of this A�ement as set forth
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FROM : NCGINNE55-SHRlJ LRW OFFICES PHONE N0. : 816 431 5086 Nov. 24 2016 03:02PM P3
hereinafter. Thc closing shsll tr�ke plscc �t the affice of the Title Comp�ny at 1144 Platte Fa11s
Road, Platte City, Missouri.
4. Sc11er shall pay all taxes, general and special, and all assessments, which are liens on
the F'ropezty And can be paid at the date of this Agreement, except that all general state, coLinty, �
school ar�d levee taxes fox the 2010 calendar year shAll be pro-rated between Seller and Buy�r as
of the date of closing.
5. Sellex Sha11 fuzaiish to Buyer, at Seller's cost, an Owncr's Title Insurance Policy in the
amoun�t of the pwchase pricc� issutd by Platte County '1'itle & Abstract Compaz�y, Agent for
Stewart Title Company (herein re:ferred to as the "Title Company"), insurin.g a merchantable fee
simple title in Buyer as of the daste of the recording of the Scller's Corporation Warranty Deed,
Seller has proviousiy delivdred to Buyer a cotnznitment to issue said Title Folicy. Buyer has had
the opportunity to reviev✓ tho title comtx�itment and has no objectians thereta.
At or bafore closing, S�ller ahall execute aind deliver to the Title Company a lien and
possession affidavit in customary form required by the T'itle Company, such affidavit to be �
sufficient to cause the delntion of a�ry exceptions to said Title Folicy relating to rights or claims
of parties in possession not shuwn by the public record and e�ny lien, or right ta a lien, for
serviees, labor or material heretofore or hereafter furnishecl, imposed by law and not shown by
the public records. •
6. At closing Seller sha]1 deliver to �uyer at the of�ice of the Title Company a
Corpoication Werranty Deed, properly executed and conveying the �roparty free and eleaz' of all
lioas and encumbrances vvhatsoevcr, except as herein provided and Buyer shall tlaen and there
pay the balance of the purck�ase prioe to Seller in the form of good funds.
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FROM : NCGINNESS�SHAW LRW OFFICES PHONE ND. : 816 431 5966 Nov. 24 2010 03:03PM P4
7. It before closing any of the improvements on the Property are deatroyed or
SubsCantially dflmaged by fzre, iightnizx� or any caus�, $uyer shall have the nption of proceeding �
. with the purchase of the �'roperty in accordance with the terms of tbis Agreement or cancelling
this A�reezrxent by giaing writ�en nokice to 5eltcr p�ior to closin�. if cancelled, dae earnast
znoney deposit shaU be retuxned to Buyer.
S. The parties agree that th� Buyer is purchASing the Property in its existing "as is"
eondition. Seller makes n.o represent�bions or warraz�ties as to the cpnd{rion of the Property,
includi� the improve�nents located thercan. Seller does not have any inspection or testin�
documents ralating to the Properiy, includin� without limita�ion, soil tests, environmental tests or
audits, fouudation or machanical inspections or any other type inspections or tests.
9. The pazties acknowledge that tkAere are no real estate brokers or agents representiug
either parcy in this transaction and that there are no broker's fees or real estate commxssions due
and owing by eitlicr pArty tu this Agreement.
10. If Seller has kept its purt of this Agreement and Buyer fails to comply wi.th the -
Agreement vn its part as herein provided, then tbis Agreement may or may not be operative
thcreafter, at the optian t�f the Seller, and, itt the event Se1Ler declazes the A�;reement inoperative,
tha eamest money depasit sh.all be paid to Seller as liquidated dama�es.
If Suyer has kept its part of tlai.s Agreement, and the Seller fails to comply with tb,e
Agreernent on its part as harein provided, lhen this Agreement may or may not be operative
thereafter, at ti�e nption of the Bu�er, and, in the event Buyer shall declare the Agreement
inoperativn, the oacnest money deposit shall be refunded und paid to Buyer.
1l. LEASE$E�CK TBItMS D PROVISIONS. The Seller shall be entitl�d to
leaseback all of tk�e 1'n�perty, including all iinprovements locatcd thereon, from the Buqer from
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FROM : NCGINNE5S-SHHW LAW OFFICES PHONE N0. : 816 431 5086 No�. 24 2016 93:65PM PS :
the date of closing and delzver� of Seller's Gorporation Warranty Deed to Buyer for a period not
to excecnd three (3) years after die date of closiz►g. The following provisians shall appJy during
the leaseback period: i
,
A. Seuer shFtll pay Buyer the sum of One Thousand Two Hundred Dollars
($1,200.00) �er month (prorated for any partial month basec� on A thirty {30) day period) as rent
for the use, possession and occupancy or the Praperty. The xent shall be paxd an the first day of
each montk� folEowing the date of ctosing and on the first day of each month thereafter during tlte
Seller's use, possessian and <,ccupancy of the Property. The rent due for the month of December
2010 shall be paid by Seller, by separate check, at closing.
B, Se�ler shall use Ehe Property solcly £or tha purpose of operatin� its current
lumber and supply business. Seller agrees to comply with the requirements of a11 Applicable
health and ssfety codes and with �1.1 applicable zules, regulati�ns and laws of any governmental
authoxity with respect to the use and occupancy of tbe Froperty.
C. During the LeasebACk period, Seller shall be responsible for all maintcnance,
repairs and iznprovements to tlie Property, buildings and improvements loc:ated thereon, and all
the electrical, plumbing, heating, air canditioning and other mechanical systetns iocated on t1�ae
f.'xoparty and within the buildings located thereon.
D, I7uring tbe Le3sebaek period, Seller may obtmin casualty loss insurance an the
buildings and im.provements located upon the Pxoperty at Seller's cost and sha1L nnQintain
commet'eial liability insurance eoverage in the minimum amount of one mi�lion dallars
($1,000,000.00) per occurrenee and two znillion dollars ($2,060,000.00) a�gregate, and shall
causa tke IIuyer ta lx named as�n additional insured on the commercial liability insuranca
poIicy.
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FROM : NCGINNESS—SHfaW �AW pFFICE5 PHONE t�. : 816 431 SBB6 Nov. 24 2010 03:06Ph1 P6
in the event of the partial or minor destruction of or damage to any of the
buildings located on the Progerty by fire or any other casuatty, Seller may or may aot restore or (
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repaix said building or structure an,d continue the Leasebaek ol We Property o� cancel the
Leaseback of the Prnperty, in whieh case any une4med rent shall be apportioned and returned to
Sellez.
In the event af the substantial destruction of any build'uig or shucture
located on tho �roperty by fire or othez casua�ty so as to substentially destcoy the buildin� or
skucture to the extent that such darnage or destructian zenders the Property untenantable, then
the Leasebaok of the Property may lx cancelled by either party by giving the otkzer pariy a
written cancellation notiee and any uneamed rent shall be apportioned aad cetumed to Seller.
B. Durring the Leaseback period, Buye� shsll be zesponsible for and.pay aA rezi
estaie taxes and assessments IevIed upon the Yroperty and Setler shaIl be responsible for and
shall pay aU personal property t�xes and other taxes relattng to the operat+on of its business upon ,
the Property.
F. 5eller agrees to l�ave a11 utilities placed in Seller.'s uame during the T.easeback
period amd continue service until the expiratioax or termination of tt�e I.easebac� pariod. Seller
shall be a•esponsible fur all utility costs billed to ihe Prop�rty during the Leaseback period.
G. Sellnr sltall noi alter or improve the Prapexty, except for rapairs as rec]uired
under this ,Agrcement,ln aay manner without fu•st �bta.ining the wriuen approval of Buyer, a�ong
wikh approval of tEte manner in which said albErations 8nd improvemcnts are to be installed and
located on or within said Property.
H. Seller slia.11 keep the Prope�ty frce of al1 mcchanics liens during the C.easeback
period. ln t�e event �f the fiaing of a noCice of any such lien, Seller will promptly not;fy Buyer
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thereof and shall promptly pay the same or otherwise lake st�ps immediately to have the lien
temoved. '
I. Failure on the part of Seller to pay any installment of rent due hereunder or '
any failure of 5eller to pmmptly and fs►ithfully keep and perfotrri each and every cavezaant,
condition, agreement and obligation of this Leaseback on the part of 8eller to be kept and
performed for more than t{urty (34) days aftec Buyer's written notice of such non-payment of
reztt or default shail have been b�iven to Selier, shall, at the a�tion of the $uyer, cause the
forfeiture and termination of this Leaseback of che Property. In t�� event of such forfeiture aad
termination of the Leaseback of the Property, Buyer sl�ll be entiticd to and raay take possession
of the Properiy no earlxcr ehan thirty (3U) days aSter providing written notice to Se11er of the �
forfeitttYe and texmin,ation of the Leaseback of th� Property,
J. Seller sha�l have the right to terminate the Leaseback of the Pmperty following
the date of Closing by providing Buyer with written notiee of termination at least six (6) raonths
prior to the specitied d�te of termination. Buyer shafl have the riglat to terminate the Seller's
Leaseback of the Property aftar six (6) months following the date af closing by provzding Seller
with a written norice of tarminmtinn at least six (6) months prior to the specified date of
termination. If Buyer exercises its right of te�•mination d�uing the six (6) month period which
begins six (6) montl�s after the date o4' closing and ends twelve (l2) months ai'ter the date of
closxng, the �tryer sk�al! pay S�ller a termtnation fee in tlie muount of FiPty Thousand l�ollars
($SO,Q00.00) which shttll be paid to Seller at the ticne the Seller vacates the Property.
Upon the expiration or the termination of ihe Cz�seback Period, Seller
agrees to remove all of its personal � frorn the Property no IAter than the expiration or .
termination date.
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FROM : NCGINt�SS-SHRW LRW OFFICES PF�NE N0. : 616 431 5086 Nov. 24 2910 93:09PM P8 .
K. Buyer reserves the right during the,I,easeback period ia ereter 1he Prap�rty ai
all reasonable times with reasonable advance notace to Seller for the purpose o£ inspecting and �
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examining #he sfune, and io malce such repairs, alterations, iznproveznents or additions as Buyer '
may deeFn necessary or requited to make to the Property.
Buyer covenants and a�rees to and w'sth Seller that, the rent being paid in
the manner and a1 tha time herein prescribed in the covenants and obligations of Sc11er bein� all
kept, fulfilted and perforjz�ed, Seller shall lawful�y and peaceably havE, hdld, possess, use and
occupy and eqjoy ttie �'roperty durin� the I.easaback Period, without hindrance or disturbance
fmm Bnye�r,
12. Saller hereby cowenants and represcnts tl,at it is the only p�rty in possession of the
Property and that n� other tenants or sub-tenaz�ts wi11 be �llawed to ocoupy and us� the Property
prior to closin� or durin� the Leaseback pexiod. The Se11er further covenants and agrees that it
shall not assi�n i[s ri�ts or interests under this Agrecment prior to closing or dtuing the
Lzaseback p�riod without the prior written consent of Buyer.
13. Sellex henby covenants and agrees not to disclose the ideu.tity of thc Buyer or the
terms of this Agreement prior or subsequent to closing, provided, ho�wever, that SeUer shall be
entitled ta d'zsclose the identity of tl�e Buyec and tlze 1;crms of this Agreement to the Title
Campany, its attorney, ac:countant and insuranc� company or companies, to the extent required
as part of tho sale, tax reporting and i.�surance coverage on the Property. �xcept as athenvise
provided hereinabove, Seller agr�es to maintain the cot�fidentinlity of tlae identity of the Suyer
an.d the terms of this Agreement_
14. �uyex sball have thc ri6ht to ass;gu its ri�ts and int�rests undcx this A�reement to
another party or parties prior to the closing of t11e pwrchasc of the Pxoperty or durin� the
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FRa^1 : NCG[NNES5-SHRW LAW OFFICES PHONE N0. : 816 431 5086 Nn�. 24 2010 03:11PM P9
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Leaseback period without tha approval or co��sent o€ the Seller, provided thet any such
assignment or sale shall expressly state that such assignnaent or sale shall be subject to the rights ;
and interests of the Seiler under this Agreement and, speaifioatly, dwing the T.easeback period. I
3eIler shall be ontitled to execute an,d record a Memoraindum of Lease with respect to the
Leaseback provisions of this Agreement.
15. All notices which are to be made by either p�ty to thE other shall be made by
depositing such notice in the re�stered rrxail af the lUnited StAtes of America, and such notice
shall he deeAned to have bcen served on the date of such depositing i.n the registered rnail unless I
othenvise provided herein. All notices to Seller shall be mado to Beverly Lumber Company,
attenlion Michael J. Clark, 1642 Saba1 Palm Dr., Boca Raton, FL 33432 or at sueh other �ddress
a5 Seller may from time T,� time designate in writiag to $uyer, and all aotxees to Buyer shall be
made to BriarCliff Developmcnt �ompany, attention Chri� WiIIiEUns, 4151 N. Mulberry Drive,
Suite 205, I�ansas City, Missouci 64165 or at such other address as Buyer may from time to eime
designate in writing to Seller.
16. The provisiom, covenants and conditions of tlus Agreement shall bind and inure to
the henefit of the legal representatives, succcssors and assitgns of each of the paxties hereto,
except that no assignment or sublettang by Seller without the written consEnt of the Buyer shall
vest any right in the assignee or sublessec o� Se11er. -
17. Tizne is of t}ze esscnce in the performance af all obligations o£ Seller and Buyer
hez'euader foz which a time oi' perforaianae is speeified.
l8. This Agreement sb�l ba construed and interpreted unde� and in accordance w�ith the
laws of the State of Missouzi.
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FROM : NCGINNESS-SF�1W LAW OFFICES PHONE N0. : 816 431 5986 Nov. 24 2010 03:12PM P10 !
l9. 'Each parly hereto agrees to obtain the approval of its respective Board of Directors to
enter into this Agreement for the sale and leaseback o£ the T'roperty prior to the closing of this ii
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transaction. �
ZN WITNESS WHEIt�4F, the parties have executed Wis Agreement in duplicate
originnls the day and year first above written.
Bevecly I.umbar Gompany
. B � r � '� �
Patx�ck J. wd, President
"SeDer
,
Bt�t eve me Compmty
gy: �/�-^�� J 'p�� 'F " ✓ �""
ame o£officer & title)
"Suyer"
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FROM : NCGIMJESS-SHRW LRW OFFICE5 PHONE N0. : 816 431 50% Nov. 24 2616 03�13PM P11
EXH�gtT A
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YreCt I:
All of Lot 24, AEIVNER PLAZA N�• 1 , a eubdrvls'san in Riverslde Platte County, Mi�s 9, �`�
condemned for Right-of-Way and EXC�PT that P���n ��reof heretofore cOnvey �'
TPaCt I!:
All that part of l.Ots 7� 8, 71,12, er�d 13, R vacated sVeat, dascnbed as foBaws: Be9iM1n9 a�c�e N°rU'west comer oi
Missouri; Md att that part of the p oposed
said 4ot 7: thenCe a+ an az�muth O[ 52 de�rees 8U m��U1s$ SO se�� �ong the Northwe9terlY �ine ot ea�d Lat 7 and
a Southwesterly prolongation of satd Nor9nkesterly Hne, 250.01eat; �Gne of�lnt rstate Rou[e 635; tlrence p�n �nutes
07 eeconcls� 3tl3.BM1 teat t0 & polnl in the NodMyesteAy Rl�t-of-W�W
azimuth of �ts degiees 47 minutas 68 secot�ds etonG � NorthweslerlY RIpM-of-WsY �, 250,0 feet 10 ks
fntefs9ctiorr with the No�Q�s���Y r� o! lot 0, R�NN@R PLAZA �i5; �d po�t being �.OB feat an an e�imuih of 136
degrees i 1 minuies 27 seconds as measured afong said Northeasterly �ina from tbe NorTheast Comer of said Lot 9�
�gn4e on an azimuth � 196 de9rees 11 minutes 21 69conds alon9 s�d Northedste�ly Gne, ee.0 teet to the Nwtheast
�mer of l.ot 8, pENNHR PLAZA �5, th�n� Southv�re�terh' atong the SoutheasiorlY line o1 aaid Lat 8,150A ieet to t�e
Southeast comer of sakl Lot 8; thence NorThwastedy on an �vlmutfi of 136 de9rees 11 minuces 21 secands and ��9
the Southeast te o said�8�,1 to tite Northw� �e► of said Lnt S; tli on an anm�uth o114 de9�ees
slorthwestarly
30 minutes 30 gec�d� ��9 the Northeasterly line at tat 7, RENNER P4AZA �5� 1�•Q �� t° the Potnt ot Begmrunp.
TraCt 111:
�{ 22, AENNER PLAZA ND. i, a SubdiVision o1 land In Riversida� Platte Co�niy� Missou�i.
T� ry � e 25 feet ot said I.ot 24 measured at right angles to
M of Lo� 23 and that part of Lot?A desadbed as the t�orthwast AY
the NorU�wrestedY or sideNne ot aakf Lot 24, all In HENNER PLAZA NO• 1, e Bubdivision in I�iverside, Platt9 County,
Mtssouri.
Traot V:
Lot 8, RENN�R PLAZA #5, a aubdtvisian in Riveratde, Platta County� Missau�i,