HomeMy WebLinkAbout1081 Amend MDA with Briarcliff BILL NO. 2011-029 ORDINANCE NO. �� �
AN ORDINANCE APPROVING A FIRST AMENDMENT TO MASTER DEVELOPMENT
AGREEMENT RELATING TO THE L-385 LEVEE REDEVELOPMENT PLAN
WHEREAS, the City and Briarcliff Realty, LLC entered into a Master Development
Agreement on May 10, 2011, to provide for the development of an approximately 260 acre
tract of land known as the Briarcliff Horizons Site and the parties desire to expand the
services provided by Briarcliff under the Master Development Agreement to provide for
services related to additional land owned by the City; and
WHEREAS, the Board of Aldermen find it is in the best interest of the City to amend
the Master Development Agreement to provide for additional services related to the
marketing, planning, development and/or sale of such additional land owned by the City
upon the terms and conditions set forth in Exhibit "A" attached hereto with the objective of
maximizing the value of such additional land for the City and its residents, and positioning
such land for sale and/or development;
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF
THE CITY OF RIVERSIDE, MISSOURI AS FOLLOWS:
SECTION 1— APPROVAL OF FIRST AMENDMENT TO MASTER
DEVELOPMENT AGREEMENT. The First Amendment to Master Development
Agreement ("First AmendmenY') in substantially the same form as attached hereto as
Exhibit "A" is hereby authorized and approved, and the Mayor is hereby authorized to enter
into, execute and deliver such document with such changes therein as shall be approved
by such officials of the City executing such document, such officials' signatures thereon
being conclusive evidence of approval of such changes and the City's approval thereof.
SECTION 2— FURTHER ACTS. The Mayor, the City Administrator, the Finance
Officer and other appropriate officers, agents and employees of the City are hereby
authorized to take such further actions and execute such other documents 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 First
Amendment.
SECTION 3— SEVERABILITY. The portions of this Ordinance shall be severable.
In the event that any portion of this Ordinance is found by a court of competent jurisdiction
to be invalid, the remaining portions of this Ordinance are valid, unless the court finds the
valid portions of this Ordinance are so essential and inseparably connected with and
dependent upon the void portion that it cannot be presumed that Board of Aldermen would
have enacted the valid portions within the invalid ones, or unless the court finds that the
valid portions standing alone are incomplete and are incapable of being executed in
accordance with the legislative intent.
SECTION 4— EFFECTIVE DATE. This Ordinance shall be in full force and effect
upon and after its passage and approval.
BILL NO, 2011-029 ORDINANCE NO. /b�/
BE IT REMEMBERED that the above was read two times by heading only, passed and
approved by a majority of �he oard of Ald en and approved by the Mayor of the City of
Riverside, Missouri, this � day of � , 2�� �•
�� ���rt�� �
Kathleen L. Rose, Mayor
ATTEST: ,
-�� ��.��
Robin Littrell; City �I�rk
� � � ' APPROVED AS TO FORM:
� �
a c om son, City Attorney
_..- - .... _ .....=:.�,x.,�;;,�
8/9/2011
FIRST AMENDMENT TO MASTER DEVELOPMENT AGREEMENT
between the
CITY OF RIVERSIDE, MISSOURI
aud
BRIARCLIFF REALTY, LLC
Dated as of
August (�, 2011
in connection with the
L-385 I,EVEE REDEVELOPMENT PLAN, AS AMENDED
and the development of the
BRIARCLIFF HORIZONS PROJECT
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FIIiST AMENDMENT TO MASTER DEVELOPMENT AGREEMENT
THIS FIIiST AMENDMENT TO MASTER DEVELOPMENT AGREEMENT
("First AmendmenY') is made and entered into as of August �;`2011 ("Effective Date"), by and
between the CITY OF RIV�RSIDE, MISSOURI, a city and political subdivision duly
organized and existing under the Constitution and laws of the State of Missouri ("City"), and
BRIARCLIFF REAL7'Y, LLC a limited IiabiliTy company duly organized and existing under
the laws of the State of Missouri (`BriarclifY'). This First Amendment amends that certain
Master Developmen[ Agreement executed between the parties on May ]0, 2011 ("Original
Master Development AgreemenY').
RECITALS
A. The CiTy and Briarcliff previously entered into the Original Master Development
Agreement on May 10, 2011, to provide for the development of an approximately 260 acre tract
of land known as the Briarcliff Horizons Site and the parties desire to expand the services
provided by Briarcliff under the Original Master Development Agreement to provide for services
related to all land currently owned by the City or that may be acquired by the City in the future,
excluding the Briazcliff Horizons Site as defined in Exhibit A of the Original Master
Development Agreement (the "Additional Property").
B. Briarcliff is experienced in business and industrial recruitment in the Kansas City
metropolitan area as well as land assemblage, and the City has requested that Briarcliff assume
certain responsibilities in connection with the Additional Property.
C. The CiTy wishes to continue the implementa[ion of the 2006 Master Plan and the 2010
Master Plan Update with respect to the development of the Additional Property. Such work
involves the recruitment of new business, evaluating incentive packages, coordinating with the
Missouri Department o1' Economic Development, communicating with property owners and
assembling properties.
D. The City and Briarcliff desire to enter into this First Amendment with respect to
additional services related to the marketing, planning, development and/or sale of the Additional
Property, upon the terms and conditions hereinafter set forth with the objective of maximizing the
value of the Additional Property for the City and its residents, and positioning the Additional
Property for sale and/or development.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and conditions contained
herein and for other good and valuable consideration the receipt and sufficiency of which is
hereby acknowledged, the parties agree that the Original Master Development Agreement is
hereby amended as follows:
1. New Article XIII is hereby added to the Agreement as follows:
ARTICLE XIII
PROJECT SERVICES FOR ADDITIONAL PROPERTY
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13.1 Scooe of Article. The duties and obligarions of the parties under this Article are
exclusive of the obligations contained Articles I through XII of ffie Original Master
Development Agreement, provided however the terms and definitions contained in the
Original Master Development Agreement shall have the same meaning in this Article. This
Article shall apply exclusively to the Additional Property. Compensafion for the additional
services provided herein shall not be provided far the property located within the Briarcliff
Horizons Site. A termination of the duties and obligations of the parties under this Article
shall not be construed to be a default of the terms under the Original Master Development
Agreement. The termination provisions contained in this Article shall be the exclusive
remedy far the parties to terminate this Article XIII. All of the recitals set out in the First
Amendment are incorporated as if set forth in this Article XIII.
13.2 Eneasement. City hereby engages Briarcliff to perform the scope of services
described in Schedule 1 and Briazcliff hereby accepts such engagement.
13.3 Term. 7'he term of this Article XIII of this Agreement shall commence upon the
execution of this First Amendment and shall continue until terminated as provided herein.
Termination of the services provided by Briarcliff under Article XIII shall not terminate
Ar[icles I through XII of the Original Master Development Agreement. ARicle I through XII
shall remain in full force and effect until such time that they may be terminated pursuant to
Article X of the Original Master Development Agreement.
13.4 Comnensation. The City agrees to provide compensation to Briarcliff for its
services provided under this Article XIII as described in Schedule 1 which is attached hereto
and incorporated herein by �eference.
13.5 Insurance. CiTy shall procure such insurance coverage on the Additional
Property in such amounts and with such coverages deemed proper by City.
13.6. Indemuification. Briarcliff shall indemnify and save City harmless from and
against all liability, claims, including third-party claims, losses, costs, damages and expenses
(including reasonable attorney's fees) suffered by City as a consequence of
(a) any bodily injury and/or property damage occurcing on or about the Additional
Property during the term of this ARicle XIII and caused by the negligence or willful
misconduct of Briarcliff, or their employees, agents, representatives, licensees or invitees,
(b) Briarcliff s breach of any of the terms, covenants and conditions of this Additional
Agreement, or
(c) the violation of or non-conformance with any federal, state or local statute, ordinance,
administrative rule, regulation or other requirement, including without limitation the
Americans with Disabilities Act of 1990 and all amendments thereto, by Briazcliff or its
employees, agents, representatives, licensees or invitees.
City and Briarcliff acknowledge and agree that CiTy owns the Additional Property and
provides all salazies and benefits for employees of City, and that City carries policies of
insurance with respec[ to the Additional Properiy and the employees. City hereby agrees to
assume full responsibility with respect to the Additional Property and City's employees for
any losses or injuries incurred relative to the operations of City. To the extent permitted by
law, City hereby releases Briarcliff for liability arising from such City operations including
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workers compensation claims of said employees and indemnifies Briazcliffwith respect to
any such claims. 'Co the extent permitted by law, City agrees to indemnify and save Briazcliff
harmless from and against all liability claims, including third party claims, losses, costs,
damages and expenses (including reasonable attorney's fees) suffered by Briarcliff as a
consequence of
(a) any bodily injury and/or property damage occurring on or about the Additional
Property during the term of this Agreement and caused by the negligence or willful
misconduct of City or their employees, agent, representatives, licenses or invitees, offier
than Briaroliff; or
(b) City's breach of any of the terms, covenants and condition of this agreement, or
(c) the violation of or non-conformance with any federal, state or Iocal statue, ordinance,
administrative rule, regulation or other requirement, including without limitation the
Americans with Disabilities Act of 1990 and all amendment thereto, by City or their
employees, agents, representatives, licensees or invitees, other than Briazcliff.
13.7 Termination. Notwithstanding anything contained herein to the contrary, the
agreement to provide services contained in this Article XIII shall be continued on a month to
month basis as of the date set forth in Section 2.1 of Schedule 1 hereoE Either par[y may
terminate this Article XIII for any reason or no reason at all upon at least thirty (30) days
prior written notice to the other party, in which event Briarcliff shall be paid through the date
of termination. Tern�ination of the services provided by Briarcliff under Article XIII shall not
terminate Articles I through XII of the Original Master Development Agreement. Article I
through XII shall remain in full force and effect until such time that they may be terminated
pursuant to Article X of the Original Master Development Agreement.
Nohvithstanding the foregoing, the City may immediately terminate this Article XIII and
Briarcliffs rights hereunder "for cause" without providing thirty (30) days notice or IiabiliTy
to Briarcliff upon the. occurrence of any of the following events:
(a) Briarcliff fails to keep, observe or perform any covenant, restriction, term or
provision of this Article XIII;
(b) Briazcliff applies for or consents to the appointment of a receiver, trustee or
liquidator or for all or a substantial paR of Briarcliffs assets;
(c) Briazcliff files a voluntary petition in bankruptcy;
(d) Briarcliff admits in writing to the City its inability to pay its debts as they become
due;
(e) Briarcliff makes a general assignment of its assets for the benefit of its creditors;
(� Briarcliif files a petition or an answer seeking reorganization or arrangement with
creditors or tu take advantage of any insolvency Iaw;
(g) An order, judgment or decree is entered by any court of competent jurisdiction on
the application of a creditor adjudicating Briucliff as bankrupt or insolvent or
approving a petition seeking reorganization of Briarcliff or appointing a receiver,
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trustee or liquidator for Briarcliff for all or a substantial part of Briarcliffs assets, and
such order, _judgment or decree continues in effect for more than sixty (60) days;
(h) Any assignment or attempted assignment of this First Amendment by Briarcliff
other than those permitted assignments described in Section 13.10; or
(i) Briarcliff commits a misdemeanor involving moral turpitude or any felony.
In the event that City terminates this Agreement "for cause," City shall have no
liability to 13riarcliff. No failure by City to assert its rights to terminate "for cause"
shall constitute a waiver of CiTy's rights or remedies with respect to such event or any
subsequent occurrence of any of the foregoing.
13.8 Assienment. Briazcliff shall not transfer, assign or convey this Article XIII or
any interest in this Article XIII or its rights or duties hereunder to any individual, person or
entity without the prior written consent of the City, which consent may be withheld in the
City's sole discretion, provided, however, that Briarcliff may either change the legal name of
Briarcliff or assign its rights or duties hereunder in this Article XIII to a limited liability
company which is majoriry owned by Briarcliff or a revocable trust in which he is grantor
and trustee, without the consent of the City. Briazcliff shall not enter into any subcontractor or
other agreement whereby the obligation to perform any of the services to be provided
hereunder is assumed by any other individual, person or entity without the prior written
consent of the CiTy. Any such attempted assignment or subcontract without City's prior
written consent shall be null and void.
13.9 No Partnershio or Joint Venture. Nothing in this ARicle XIII shall constitute,
or be construed to be orto create a partnership,joint venture or lease between the City and
Briazcliff with respect to the Additional Property.
13.10 Indeoendent Contractor. The parties intend that Briazcliffs legal status with
respect to City shall be that of independent contractor. The paRies expressly disclaim any
intent to create an agency relationship between the City and the Briazcliff. Accordingly,
Briazcliff shall be an independent contractor with respect to its rights, duties and obligations
under this Article XIII.
13.11 Sovereien Immuniri. Nothing in this Article XIII shall constitute or be
construed as a waiver of the City's sovereign or governmental immunity and/or official
immunity of its officers or employees from liability or suit pursuant to state law.
13.12 No Third Partv Riehts. It is expressly understood that there are no third party
beneficiazies to this Article XIII, except as may be expe�ssly set forth herein.
13.13 Severabilitv. In the event any term or provision of this Article XIII is held to be
unenforceable by a coud of competent jurisdiction, the remainder shall continue in full force
and effect, to the extent the remainder can be given effect without the invalid provision.
13.14 Exclusivitv. Briazcliff agrees that during the term of this Article XIII and for
one year thereafter, Briarcliff will not perform services that are the same or substantially
similar to the scope of services for any city located within fifty (50) miles of the City
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1315 ConfidenHalitv. This Ar[icle XIII creates a confidential relationship between
Ciry and Briarcliff. Each party will keep the confidential information of the other
confidential and will only use such the confidential information to perform their respective
obligations under this Article XIII. Each party must protect the confidential information of
the other from both unauthorized use and unauthorized disclosure by exercising the same
degree of care that is used with respect to information of its own of a similar nature, except
that the receiving party must at least use reasonable care. Upon cessation of work, or upon
written request, each party will retum or destroy all the confidential information of the other.
13.16 Develooed Pronertv. Briazcliff hereby assigns and agrees to assign and disclose to
City all intellectual property generated, conceived or developed under this Article XIII. Any
works of authorship in any fortn of expression aze works for hire and belong exclusively to City.
If, by operation of law, the ownership of works for hire do not automatically ves[ in City,
Briazcliff will take necessary steps to assign ownership to City. Briarcliff will provide
reasonable assistance to City to secure intellectual property protection, including, without
limitation assistance in the preparation and filing of any copyright registrations, and the
execution of all applications, assignments or other instruments for perfection or protection of
title. Briarcliffwill pay Briarcliffpersonnel any compensation due in connection with the
assignment of any intellectual property or invention developed under this Article XIII. Briarcliff
warrants to City that Briarcliff personnel are and will continue to be throughout the term of this
Article XIII subject to agreements that will secure City's rights under this Section.
2. This First Amendment and the Original Master Development Agreement constitute the entire
agreement of the parties and supersede all prior or contemporaneous agreements, proposals,
inquiries, commitments, discussions and correspondence, whether written or oraL This First
Amendment and the Original Master Development Agreement may not be amended or modified
except in writing signed by a duly authorized representative of each party. Other than as set forth
above, the Original Master Development Agreement remains unchanged and in full force and
effect. In the event of a conflict between the terms of the Original Master Development
Agreement and this First Amendment, this First Amendment will control.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to
Master Development Agreement as of the date first above written.
"CITY" CITY OF RIVERSIDE, MISSOURI
By: !_LL�.(X�� � .e l
Kathleen L. Rose, Mayor
(SEAL)
, Att � ���
Robin Litt�ell, City Clerk
{32159/65681;359571.J (
8/I S/2011
STATE OF MISSOUR[ )
) SS.
COUNTY OF PLATTE )
On this �
��o day of c � , 2011, before me appeared Kathleen L.
Rose, to me personally known, who, bemg by me duly sworn, did say that she is the Mayor of the
CITY OF RIVERSIDE, MISSOURI, a political subdivision of the State of Missouri, and that the
seal affixed to the foregoing instrument is the seal of said City, and said instrument was signed
and sealed in behalf of said City by authority of its Boazd of Aldermen, and said individual
acknowledged said instrument to be the free act and deed of said City.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal
in the County and State aforesaid, the day and year first above written.
� 05 • cs���-�.�
My Commission Expires: S3 . �0 / S
�ob',ti L. Lt� � � otary Public
i
`BRIARCLIFF" BffiARCLIFF REALTY, LLC, a Missouri
limited Iiability compan�':
ROlIM l. UTTIIELL B�;� �/L�/�l�—�
lb1�rY FuOXe•NotlrY StN r
St�M ol MHwurl. Ray CouMy A, � �� �_
Conxnbdon � 11390691 Name: /�'K n.�, L a
M ComnNabn E Mu 8, Y015 Title: /��,��(i�,.�
STATE OF MISSOURI )
) SS.
COUNTY OF �g� )
On this a5� day of ¢� �n � , 2011, before me appeared
�,�„� to me personally known, who, eing by me duly sworn, did say that he is the
P.,�,: L. y� 01' Briazcliff Realty, LLC, a Missouri limited IiabiliTy company„ and that
he is authorized to sign the instrument on behalf of said company by authority of its members,
and acknowledged to me that he executed the within instrument as said company's free act and
deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal
in the � and State aforesaid, the day and year first above written.
'_�..� � � 0
!� — N tary Public
`tCo�', ✓� � . L i � �E �
My Commission Expires: �rn_ � g/ �� R �� � ����
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NoUry PubNe•MoMrY 8�N
Stab ot AM�wurl, Ryt Cowqr
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My ConxMstbn Expim Mu 1. 2015
8/15/2011
Schedule 1
SCOPE OF WORK AND COMPENSATION
1. Scope of Services.
1.2 Marketing. Briarcliff shall use its best efforts to position the Additional Property
for sale and/or development as provided hereia All expenses of Briazcliff associated
with marketing the Additional Property shall be paid by Briarcliff unless approved by
the City in advance in writing.
13 Coordination of Development Opportuuities. Briazcliff shall use best efforts to
assist the City in negotiating with various users and assisting in the coordination of
new development opportunities with the City and other agencies as needed.
Briarcliff shall coordinate with City staff to present each new development
opportunity to the Mayor and Board of Aldermen in a cleaz and concise way for the
CiTy's consideration. Materials prepazed by Briarcliff shall include, but are not
limited to the following:
• Background research on companies desiring to locate within the City;
• Economic return on investment analysis for locating, expanding and
relocating businesses; and
• An economic impact analysis of the proposed project based on the City's
budget, financial structure and property value data.
In no event shall the City have any obligation to accept any opportunity presented to
the City by Briarcliff, nor shall the City incur any liability to Briarcliff for rejecting
any opportunity.
1.4 Third Party Land Assemblage and Analysis. Briazcliff shall use its best efforts
to analyze, recommend and facilitate land assemblage as necessary to help coordinate
new project development opportunities. Further, Briazcliff shall work with the City
to investigate and review existing landowner plans for development and
redevelopment of non-CiTy owned property. Briarcliff shall assist the City in
evaluating any new project proposed by a landowner.
1.5 Records and Compliance. With respect to any and expenses for which there is a
reimbursement from the City, Briazcliff shall keep and maintain true and accurate
records (and all supporting invoices, vouchers and the like) relating to this First
Amendment and all receipts and disbursements collected and made in respect thereto, all
of which shall be and remain the property of the City and subject to its inspection at all
times for a period of at least three (3) yeazs after the termination of this Agreement.
].6 Reports. Briarcliff shall deliver to City, within twenty (20) days afrer the end of
each calendar month, in a form acceptable to City, an operational summary of
services provided for the Additional Property. At least quarterly, Briarcliff shall meet
with the Mayor and Board of Aldermen to review the performance of its services
provided for the Additional Property.
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1.7 City Documents. Briarcliff shall have access to all existing reports and
documents in the possession of the City relating to master planning and real proper[y
matters for the Additional Property.
2. Comoensation. The City shall provide compensation to Briazcliff for its consulting
services provided under this Article XIII related to the Additional Property as follows:
2.1 Monthly Fee. The City shall pay to Briazcliff a monthly fee of $16,666 beginning
on ��. �,�0 / 1 and payment shall be made by the last day of each month while
this Article XIII is in effect.
2.2 Bonus Structure. For purposes of this Section 2.2 "Efforts of BriarclifP' shall
mean that Briarcliff has performed significant services related to the recruitment of or
decision by a business to locate in the City.
a. Briarcliff shall receive a prorated annual bonus of $10,000 for every
$50,000,000 in cumulative assessed commercial value constructed on the Additional
Property that is attributable to the Efforts of Briarcliff.
b. Briazcliff shall receive a bonus of $20 per employee for each new job relocated
to the Additional Property. The job bonus shall be based on the number of full time
equivalent employees employed by the business at the site one year after issuance of
a certificate of occupancy permitting occupancy of the facility by employees,
provided the new job created was a direct result of the Efforts of Briarcliff.
23 Expenses. Briarcliff shall pay for all normal business expenses out of the
monthly fee agreed upon in Section 2.1 of this Schedule. In the event the City
requests that: Briarcliff undertake additional responsibilities (for example: the cost of
master plam�ing, engineering or similar tasks) or tasks that require travel or other
expenses outside of the Kansas City metropolitan area, those expenses shall be
reimbursed on a project by project basis and approved in writing by the City, in
advance.
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