HomeMy WebLinkAboutR-2012-021 Purchase and Development Agreement with Premium Waters, Inc RESOLUTION NO. R-2012-021
A RESOLUTION AUTHORIZING, RATIFYING, AND CONFIRMING EXECUTION OF A
PURCHASE AND DEVELOPMENT AGREEMENT IN CONNECTION WITH THE
TRANSFER AND DEVELOPMENT OF PROPERTY LOCATED NEAR 4301 MATTOX
ROAD
WHEREAS, the Board of Aldermen find it is in the best interest of the City to enter into a
Purchase and Development Agreement associated with the sale, development and construction
of public improvements related to property located at or near 4301 Mattox 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, MISSOURI, AS FOLLOWS:
THAT the Mayor is hereby authorized to execute and deliver the Purchase and
Development Agreement to sell the property located at or near 4301 Mattox 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
o�cials 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 rights
and obligations of the City contemplated therein.
PASSED AND ADOPTED by the Board of Aldermen and APPROVED by the Mayor
of the City of Riverside, Missouri, the 13� day of February, 2012.
U�
, Kathleen L. Rose, Mayor
� ATfEST. � � � �
������
Robin Littrell, ity Clerk
� � , Appro ,to Form:
a om n, City Attorney
1
PURCHASE AND DEVELOPMENT AGREEMENT
THIS AGREEMENT has been made as of 1� day of 2012, by and
between Premium Waters, Inc., a corporation organized and existing un of the State of
Minnesota ("Company"), and the City of Riverside, Missouri, a municipal corporation, ("City").
WITNESSETH:
WHEREAS, the Company desires to construct and occupy an approximately 165,000 square
foot manufacturing facility consisting of approximately 158,500 square feet of manufacturing space
and approximately 6,500 square feet of office space together with related improvements (collectively,
the "ProjecY') on Lot 1, Argo Innovation Park (the "Property") located at 4301 NW Mattox Road
within the City; and
WHEREAS, the Company anticipates that the Project when operational will provide significant
economic benefits to the City by employing approximately 75 people at an average annual salary of
$43,000 and by generating significant real estate tax revenues for the taxing jurisdictions wherein the
Property is located; and
WHEREAS, the Property has been vacant for many years and is difficult and slow to develop
due to, among other factors, historic flooding and the need to import fill in order to construct any
structures on the Property; and
WHEREAS, in order to develop the Property and construct the Project, the Company, in
coordination and partnership with the City, will incur significant costs including costs for items that will
become public improvements belonging to the City or inuring to the benefit of the City and its citizens
and for items that are for a public purpose and that benefit the City and its citizens; and
WHEREAS, the City and Company desire to enter into this Agreement whereby the Company,
among other things, agrees to purchase the Property and construct the Project, and the City, among
other things, will agree to sell the Property and construct certain public improvements providing
improved roadway access and a sanitary sewer main to the Property; and
WHEREAS, the City and Company further desire to provide for the development of the
Property by Company in general conformance with the Site Development Plan attached hereto as
Exhibit "A"; and
WHEREAS, the City is authorized to enter into this Agreement with the Company pursuant to
the provisions of Section 70.210 et sea. RSMo;
NOW, THEREFORE, to improve, maintain and revitalize commercial and business activity in
the City by assuring opportunities for development and attracting sound and stable business grovuth,
to promote the public interest and enhance the tax base of the City, to induce the Company to
undertake the Project, and in consideration the mutual covenants and agreements herein set forth,
the City and the Company do hereby covenant and agree as follows:
1. Purchase of the Property. Company agrees to purchase from City, on the terms and subject
to the conditions set forth in this Agreement, a 14.44+/- acre parcel of real estate located generally at
the SE corner of Mattox Road and the Burlington Northern Railroad in the City of Riverside, Missouri,
legally described as:
Lot 1, Argo Innovation Park, a subdivision in the City of Riverside, Platte County, Missouri,
Page 2 af 9
together with such easements, hereditaments, and appurtenances associated with such real estate
(collectively, the "Property").
2. Purchase Price. The Purchase Price is One Million One Hundred Eighty-eight Thousand
Eight Hundred Twenty-two dollars ($1,188,822.00) ("Purchase Price"), which Company agrees to
pay as follows:
a. $25,000.00 at the signing of this Agreement as "Earnest Money" to be deposited within 5
business days after the Effective Date, in the insured trust or escrow account of Assured
Quality Title Insurance Company ("Escrow AgenY') pursuant to an escrow agreement
reasonably acceptable to the parties, as part of the consideration of the sale;
b. The balance to be paid in guaranteed funds, wire transfer or cashier's check at closing,
adjusted to the Closing Date for pro-rations, closing costs and other expenses agreed to in
writing by the parties.
3. Closing and Possession Date�s). Subject to all the provisions of this Agreement and any
subsequent written agreements entered into between the parties, the closing of this Agreement shall
take place at the offices of Assured Quality Title Insurance Company or such other place agreed
upon by the parties on the date that is the earlier of: (i) 30 days after the Effective Date, or (ii) upon
not less than 5 days' prior written notice of Company's election to close (the "Closing Date").
Possession shall be delivered on the Closing Date.
4. Title; Survey.
a. City agrees to convey good and marketable title to the Property to Company by a Special
Warranty Deed, subject only to the exceptions and encumbrances that are permitted by this
Agreement ("Permitted Encumbrances"). City shall, at its sole cost and expense, deliver to
Company within five (5) days after the Effective Date (defined below), a commitment ('Title
CommitmenY') to issue an owner's title insurance policy insuring Company in the amount of
the Purchase Price to be issued through Assured Quality Title Insurance Company (the "Title
Company"), which shall be in a form approved by the American Land Title Association
("ALTA") and acceptable to the Company. The Title Commitment must show good and
marketable title to the Property to be in City's name, subject only to beneficial easements and
restrictions of record that will not materially interfere with or with Company's intended use of
the Property.
b. Company may obtain, at Company's expense, a staked survey of the Property which locates
the boundaries of the Property, all improvements on the Property, any easements, or rights of
way affecting or benefiting the Property and any encroachments across the boundaries of the
Property that is in form and substance acceptable to Company and Company's lender, if any,
including, without limitation, the form of certification ("Survey").
c. Company shall notify City within fifteen (15) days after Company's receipt of the Title
Commitment, the survey and legible copies of all documents listed in the Title Commitment, if
there are any exceptions not permitted by this Agreement or if the Survey shows any deviation
from apparent boundaries or represented acreage, flood hazard area, encroachment, or
condition that poses a problem for Company's lender, if any, or that, in Company's reasonable
judgment, could intertere with Company's intended use of the Property (individually and
collectively, a"DefecY'). City shall remove each Defect at City's expense within twenty (20)
days after Company's written notice of the Defect to City. In addition, City shall satisfy the
requirements attributable to City set forth in the Title Commitment on or before the Closing
Date. If City fails or refuses to remove any Defect, then Company may cure any Defect that is
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capable of being cured or satisfied by the payment of a sum certain, deducting such sum(s)
from the remaining Purchase Price otherwise payable to City hereunder or upon written notice
to the City, the Company may terminate this Agreement at any time prior to the Closing Date
and receive back the Earnest Money.
5. City's Representations and Warranties. City represents and warrants to Company, which
representations and warranties shall be true to the Closing Date, as follows:
a. There are no pending or, to the best of City's knowledge, threatened condemnation
proceedings against the whole or any part of the Property;
b. There are no claims, litigation, proceedings, inquiries, investigations, or disputes pending or,
to the best of City's knowledge, threatened against or relating to the Property;
c. City has at all times operated the Property in compliance with all applicable laws, ordinances,
orders, codes, rules, regulations, building and use restrictions, and other legal requirements,
including, without limitation, City's timely application for, possession of, and compliance with
all applicable environmental permits (collectively, "Applicable Law"), and, to the best of City's
knowledge, the Property is free and clear of all violations of Applicable Law;
d. City, through the person(s) executing this Agreement, has full power and authority to enter
into this Agreement, and to assume and pertorm all of City's obligations under this Agreement;
e. To the best of City's knowledge, there has been no production, generation, use, storage,
transport, treatment, spill, release, infiltration, or disposal at the Property or, any adjoining
property of any hazardous substance or solid or hazardous waste (as those terms are defined
in applicable federal and state environmental protection laws and regulations, including,
without limitation, petroleum and its derivatives, polychlorinated biphenyls, radon gas, urea
formaldehyde foam insulation and asbestos (collectively, "Hazardous Substances"), except
as may be disclosed by any environmental assessment report obtained by Company;
f. To the best of City's knowledge, no Hazardous Substance is present on, in, or under the
Property in a quantity or concentration that would give rise to a claim of liability against any
person under Applicable Law, except as disclosed by any environmental assessment report
obtained by Company;
g. There are not now, and to the best of City's knowledge, never have been, any aboveground or
underground storage tanks at the Property;
h. There is no pending or, to the best of City's knowledge, proposed special assessment
affecting or which may affect the whole or any part of the Property other than special
assessments of The Riverside Quindaro Bend Levee District;
i. City has and will deliver to Company good and marketable title to the Property, subject only to
the Permitted Encumbrances;
j. City represents that City is not a foreign person as described in the Foreign Investment in
Real Property Tax Act and agrees to deliver a certificate to that effect which shall contain
City's tax identification number; and
k. All necessary actions to approve, execute, deliver, and perform this Agreement has been
taken by City, and this Agreement is the valid and binding obligation of City, enforceable
against City in accordance with its terms.
Page 4 of 9
To the extent allowed by law, and without waiving or forteiting any right to claim sovereign immunity,
City shall hold Company harmless and indemnify Company from and against any loss, including,
without limitation, reasonable attorneys' fees, incurred by reason of City's breach of any of the
foregoing representations and warranties.
6. Company's Representations and Warranties. Company represents and warrants to City,
as follows:
a. The Company is a corporation duly organized in the State of Minnesota and authorized to
transact business in the State of Missouri;
b. The Company has the power and authority to enter into this Agreement and to carry out its
obligations hereunder and has duly authorized the execution, delivery and performance of this
Agreement by proper action of its board of directors;
c. The Company would not be willing and able to construct the Project or any Public
Improvements but for the execution of this Agreement and receipt of the tax abatement and/or
other financial assistance contemplated to be provided to Company by the City and the State
of Missouri and, except as othervvise herein provided, performance hereunder is expressly
contingent upon approval and receipt of such assistance.
7. Contingencies to Purchase of the Property. The obligation of Company to Purchase the
Property shall be contingent upon:
a. All representations and warranties of City set forth in this Agreement will in all material
respects be true as of the Closing Date;
b. City having timely performed and complied in all material respects with all covenants,
obligations, and agreements to be pertormed or complied with by City on or prior to the
Closing Date;
c. Company's satisfaction, in its sole discretion, subject to the Permitted Encumbrances, with the
environmental condition of the Property, the condition of title to the Property and the results of
all tests, inspections and examinations on the Property;
d. Receipt of assistance as set forth in Section 6(c), above.
Except as otherwise set forth herein, Company shall promptly commence and proceed diligently and
in a reasonable manner to attempt to satisfy each of the contingencies set forth above, at Company's
expense and City agrees to cooperate in such endeavor. If Company is unable to satisiy one or more
of the contingencies, and is not willing to waive the contingency(ies), then Company may terminate
this Agreement, provided such termination is communicated, in writing to City, on or before the
Closing Date, in which case the Earnest Money shall be promptly returned to Company.
8. Property Closing.
a. On the Closing Date, City shall pay all recording and filing costs in connection with curing its
title to the Property and the title insurance premium for Company's owner's policy of title
insurance including, fees for any title insurance endorsement(s) required under this
Agreement. Company shall pay the recording fee for the Special Warranty Deed. City and
Company shall each pay one-half of any closing fee charged by the title company conducting
the closing. The parties shall execute and/or deliver the following at closing:
Page 5 of 9
b. The City shall execute and/or deliver the following:
(i) The Special Warranty Deed, in recordable form;
(ii) If requested by Company, a quit claim deed that legally describes the Property as
provided in any survey prepared by Company pursuant to Section 4 of this Agreement;
(iii) A closing statement setting forth any closing costs and adjustments;
(iv) An ordinance or other evidence of authorization of the Purchase acceptable to the title
company;
(v) A certificate of non-foreign status;
(vi) An ALTA owner's title insurance policy in the amount of the Purchase Price which shall
insure Company's title as set forth herein;
(vii) Actual physical possession of the Property; and
(viii) Any other documents reasonably necessary or legally required to evidence the sale.
c. The Company shall execute and/or deliver the following:
(i) A closing statement setting forth closing costs and adjustments;
(ii) The Purchase Price for the Property; and
(iii) Any other documents reasonably necessary or legally required to evidence the purchase.
9. Taxes and Assessments. All real estate and personal property taxes and special
assessments with respect to the Properly, whether or not payable in installments or deferrable
without penalty or interest to a later date, that first become due and payable or in the case of special
assessments, a lien upon the Property, on or before the Closing Date, shall be prorated on a calendar
year basis. Company shall be responsible for payment of all taxes, payments in lieu of taxes and all
other assessments of any type or nature, with respect to the Property following the Closing Date.
10. Real Estate Brokers. City acknowledges that real estate broker Erik Murray of Point
Commercial was involved in the transaction. City will be solely responsible for the real estate
commission, if any, due to Erik Murray of Point Commercial. City and Company each agree and
represent to the other that no other broker is involved in the purchase or sale of the Property who is
entitled to a commission for services associated with the transaction. If any other broker makes a
claim for remuneration in connection with the Purchase, City and Company each shall indemnify and
hold harmless the other from any amount that the other may be required to pay to a broker that the
other did not retain, including, without limitation, reasonable attorneys' fees expended to defend
against such claim to the extent allowed by law.
11. Construction of Public Improvements by City. The City will cause to be constructed, at its
own expense, and at no expense to the Company and will use its best efforts to coordinate
construction and completion of the public improvements with Company to ensure completion thereof
will coincide with the completion of the Project, the following public improvements:
a. A widening and improvement of Mattox Road along the street frontage of the Property from
approximately the southern boundary of the Burlington Northern Railroad right of way to NW
41 Street; and
Page 6 of 9
b. A new sanitary sewer main extending from NW 41 Street to the SW corner of the property.
City shall be responsible for securing any rights-of-way or easement rights necessary to construct the
Public Improvements. During construction, the City shall permit the Company to access the Property
from Lot 2 Argo Innovation Park (city owned tract to the east of the Property), pursuant to the terms of
the License and Indemnity Agreement between the parties dated December 14, 2011. The
obligations of the Company to develop the Property and construct the Project is contingent on City
completing such public improvements. The obligation of City to construct the Public Improvements is
contingent upon the receipt of CDBG funds.
12. Delivery of Property — Site Development Costs. The City shall deliver the Property to
Company "as is" on the Closing Date. The Company shall be responsible for all site development
costs, including but not limited to fill and grading activities necessary to construct the Project. The
City shall allow access to fill material and Company shall conduct such fill and grading activities
pursuant to the terms of to the terms of the License and Indemnity Agreement between the parties
dated December 14, 2011. In addition, the City shall reimburse Company the sum of Three Hundred
Fifty Thousand Dollars ($350,000) for extraordinary site development costs which are found by City to
be a public purpose and necessary for development of the Property. The reimbursement of such
extraordinary site development costs shall be credited to Company at Closing.
13. Construction of Project by Company. Subject to the contingencies set forth in this
Agreement, Company hereby agrees to develop the Property and construct the Project in
substantially the same form as set forth in the Site Development Plan, attached hereto as Exhi6it
"A" and made a part hereof by reference, within 365 days following the Closing Date. The Project
shall be deemed to be in compliance with the terms of this Agreement so long as all improvements
combined do not vary from the square footage stated in the Plan by more than 10% and are in
substantial compliance with the Site Development Plan. Approval of any Project plans hereunder is
solely for purposes of this Agreement and shall not constitute approval for any other City purpose.
14. Other Approvals Required. Notwithstanding anything contained herein to the contrary, the
obligations of Company contained herein to construct the Project and the obligations of City to
construct the Public Improvements are contingent upon the following actions, none of which shall be
unreasonably withheld if required to be approved by the other party:
a. Approval of the Site Development Plan by the City;
b. Submission of an application and required drawings for issuance of a building permit by the
Company and approval and issuance of such permit by the City;
c. Submission of an application for Chapter 100 Financing by Company and approval of Chapter
100 financing and 10 year 25% personal property tax abatement, or the substantial equivalent
thereof by the City;
d. Award of a Community Development Block Grant (CDBG) by the State of Missouri in an
amount not less than $1,000,000 for the construction of public improvements by the City.
Company commits to compliance with CDBG application and reporting requirements
reasonably required by the State of Missouri regarding of matters within the control of
Company to ensure eligibility and receipt of CDBG funding by City;
e. Approval by the Missouri Department of Economic Development (DED) to utilize the Missouri
Quality Jobs Program, which would provide an estimated $1,018,077 in benefits to Company
to be used to create new jobs to support the Project, upon submission of an application and
completion of a Notice of Intent by Company;
Page 7 of 9
f. Approval by the Missouri Development Finance Board to utilize the BUILD Program, which
would provide an estimated $1,994,876 in tax credits to Company to be used to finance public
or private infrastructure to support the Project, upon submission of an application by
Company;
g. Approval of a Sales Tax Exemption for machinery, equipment and building materials
incorporated into the Project; and
h. A waiver of all City permit and impact fees associated with development approvals, including
City fees associated with building and construction activities.
Both Company and City affirm neither party would be able to construct the Project or the Public
Improvements necessary to construct the Project without the financial assistance provided by the
State of Missouri and the City of Riverside and the Project construction is dependent on receipt of
such assistance.
15. Default and Remedies.
City or Company shall be in default under this Agreement if either fails to comply with any material
covenant, agreement or obligation within any time limits required by this Agreement and such failure
continues for more than thirty (30) days after the defaulting party's receipt of written notice thereof
from the non-defaulting party. If, as a result of a default under this Agreement, either City or
Company employs an attorney to enforce its rights, the defaulting party shall, unless prohibited by
law, reimburse the non-defaulting party for all reasonable attorneys' fees, court costs and other legal
expenses incurred by the non-defaulting party in connection with the default. In the event the City
defaults under this Agreement after the Closing Date, the Company may also seek and be entitled to
specific pertormance of the City's obligations under this Agreement to construct the Public
Improvements or transfer title to the Property, provided that Company is not in default under any of
the remaining terms of this Agreement. In the event the Company fails to construct the Project after
the Closing Date, even though all contingencies have been satisfied, the City may also seek and be
entitled to recover damages from Company for any and all costs or expenses incurred by City
(including, without limitation, the City's costs for public improvements), provided that City is not in
default under any of the remaining terms of this Agreement.
16. Miscellaneous.
a. This Agreement shall bind and benefit City, Company and their respective successors,
assigns, heirs, executors, and personal representatives. Company may assign its rights
under this Agreement to any parent company, subsidiary or a�liate which is controlled by or
under common control with the Company, but Company shall not be released from its
obligations under this Agreement.
b. All notices under this Agreement shall be in writing and shall be delivered to City and
Company at their respective addresses set forth above, or at another address designated by
like notice to one another. Personal delivery, facsimile transmission, or mailing of a notice by
certified mail, postage prepaid, or delivery by recognized overnight service shall be sufficient
notice. Notice shall be effective upon receipt, if personally delivered or faxed, upon mailing, if
mailed, or upon deposit with the overnight delivery service.
c. The "Effective Date" of this Agreement shall be the date first set forth above. Time is of the
essence of this Agreement, except that Company may waive this provision for the purpose of
meeting conditions and contingencies under this Agreement. If any date for delivery of a
Page 8 of 9
document, or for giving of a notice, falls on a Saturday, Sunday or bank holiday, then it shall
be automatically deferred to the neut day that is not a Saturday, Sunday or bank holiday.
d. This Agreement may not be amended, altered or modified except by means of a writing
signed by the person against whom enforcement of any waiver, change, modification, or
discharge is sought.
e. The representations, warranties and agreements set forth in this Agreement shall survive the
Property Closing.
f. Nothing contained in this Agreement constitutes a waiver of the City's sovereign immunity
under any applicable state law.
g. Personal jurisdiction and venue for any civil action commenced by either party to this
Agreement shall be deemed to be proper only if such action is commenced in the Circuit Court
of Platte County, Missouri. The Company expressly waives its rights to bring such action in or
to remove such action to any other court whether state or federal.
h. This Agreement shall be construed in accordance with and governed by the laws of the State
of Missouri.
i. This Agreement may be signed in one or more counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same document. Faxed
signatures, or scanned and electronically transmitted signatures, on this Agreement or any
notice delivered pursuant to this Agreement, shall be deemed to have the same legal effect as
original signatures on this Agreement.
j. This Agreement, the exhibits to this Agreement and the Bond Documents contain all of the
representations and statements by City and Company to one another and express the entire
understanding between City and Company with respect to the Agreement. All prior and
contemporaneous communications concerning the Agreement are merged in and replaced by
this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in their
respective corporate names by their duly authorized officials and officers.
COMPANY: PREMIUM WATERS, INC.
2100 Summer St., NE, Suite 200
Minneapolis, M 13
By: rd arda
Titl� nior ice President
CITY: THE CITY OF RIVERSIDE, MISSOURI
2950 NW Vivion Road
Rive ide, Missouri 64150
B Kathleen L. Ros , Mayor
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CITY OF
��RIVERSI�
Upstream from ordinary.
2950 NW Vivion Road
Riverside, Missouri 64150
MEMO DATE: February 9, 2012
AGENDA DATE: February 13, 2012
TO: Mayor and Board of Aldermen
FROM: Nancy Thompson, City Attorney
RE: Premium Waters Purchase and Development Agreement
BACKGROUND: The terms of the sale of real estate to Premium Waters have previously been
approved by the Board of Aldermen during the negotiations to locate and
consolidate the corporate headquarters of the company in Riverside. The
attached agreement formalizes those terms in writing in preparation for closing
on the property. As you may recall, the company executed a License and
Indemnity Agreement with the City to do "at risk" grading and fill activities to
prepare the site for development.
Provided all required state incentive approvals are in place, the company intends
to close on the parcel within the next thirty days and complete its financing with
Wells Fargo through the bond transaction. The formal purchase of the property
has been delayed up to this point as the Company did its due diligence to ensure
that no irrevocable action was taken that would jeopardize any of the state
incentives.
If you have any questions or concerns, do not hesitate to contact me prior to
the meeting.
RECOMMENDATION: Staff recommends approval.