HomeMy WebLinkAboutR-2012-110 Transfer of Horizons Industrial II RESOLUTION R-2012-110
A RESOLUTION AUTHORIZING THE SALE AND TRANSFER OF CERTAIN PROPERTY BY
THE CITY TO RIVERSIDE HORIZONS, LLC; AND AUTHORIZING OTHER DOCUMENTS AND
ACTIONS RELATED THERETO (HORIZONS INDUSTRIAL II)
WHEREAS, the City and Briarcliff Realty, LLC entered into that certain Master
Development Agreement (the "MDA") on May 10, 2011 which provides for the terms and
conditions upon which Briarcliff Realty may purchase a portion of the Mortgaged Property from
the City; and
WHEREAS, Briarcliff Realty assigned its rights and obligations under the MDA to Briarcliff
Horizons, LLC, an affiliated entity of Briarcliff Realty pursuant to Section 12.5(b) of the MDA; and
WHEREAS, on or about July 18, 2012 Briarcliff Horizons, LLC provided the City with a
Closing Notice pursuant to Section 7.5(a) of the MDA stating its notice of intent to purchase
certain property in the Briarcliff Horizons Site, the legal description of which is described on
Exhibit A(the "Sale Property"), in order to construct a project on portion of the Mortgaged
Property, a copy of which is attached hereto as Exhibit B(the "Closing Notice"); and
WHEREAS, the project is anticipated to contribute towards increased activity and
revenues under the L-385 Levee Redevelopment Plan, as amended (the "TIF Plan"), and other
economic development within the City; and
WHEREAS, on or about February 13, 2012 Briarcliff Horizons, LLC filed articles of
amendment with the Missouri Secretary of State changing its name to Riverside Horizons, LLC;
and
WHEREAS, the Board of Aldermen find it is in the best interest of the City to further
authorize the sale and transfer of the Sale Property by the City to Riverside Horizons, LLC
pursuant to a property purchase contract the form of which is attached as Exhibit C("Property
Purchase Contract ") by Special Warranty Deed, the form of which is attached as Exhibit D; and
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE CITY
OF RIVERSIDE, MISSOURI, AS FOLLOWS:
THAT it is in the best interest of the City, in order to further the objectives of the TIF Plan,
the objectives of industrial and economic development of the City, and the terms and conditions of
the MDA that the City sell the Sale Property to Riverside Horizons, LLC;
FURTHER THAT the sale of the Sale Property from the City to Riverside Horizons, LLC at
the price of $.50 per square foot is hereby approved. There are 422,261 square feet within the
Sale Property making the purchase price of the Sale Property $211,130.50 (the "Sale Price");
FURTHER THAT representatives of the City are hereby authorized and directed to
execute the Property Purchase Contract attached hereto as Exhibit C;
FURTHER THAT representatives of the City are hereby authorized and directed to
execute the Special Warranty Deed attached hereto as Exhibit D in favor of Riverside Horizons,
LLC;
FURTHER THAT the City shall, and the officers, agents, and employees of the City are
hereby authorized and directed to, take such further action and execute and deliver such
documents and instruments as may be necessary or desirable to carry out and comply with the
intent of this resolution;
FURTHER THAT this resolution shall be in full force and effect from and after its passage
and approval.
PASSED AND APPROVED: the � day of � 2012.
����o��°��
Kathleen L. Rose, Mayor
, •
ATf T': - ,
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Robin Littrell, C' q Clerk
�
Appro to Form:
n homp n, City Attorney
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
All of Lot 1 of RIVERSIDE HORIZONS EAST FIRST PLAT, a subdivision in Riverside, Platte County, Missouri,
subject to all easements and restrictions of record.
AGREEMENT OF PURCHASE AND SALE
BETWEEN
THE CITY OF RIVERSIDE, MISSOURI ("SELLER")
AND
RIVERSIDE HORIZONS, LLC ("PURCHASER")
THIS AGREEMENT OF PURCHASE AND SALE (this "Agreement") is made as of the
Effective Date hereinafter defined by and between the CITY OF RIVERSIDE, MISSOURI, a Missouri
municipal corporation ("Seller"), and RIVERSIDE HORIZONS, LLC, a Missouri limited liability
company, and/or its assigns ("Purchaser"). All capitalized terms used in this Amendment and not defined
herein shall have the meanings set forth in the MDA unless the context clearly requires otherwise. In
consideration of the agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser hereby agree as follows:
RECITALS:
WHEREAS, Briarcliff Realty, LLC and Purchaser entered into a Master Development Agreement
for the development ofthe Briarcliff Horizons Site dated May ] 0, 201 1("MDA");
WHEREAS, Briarcliff Realty assigned its rights and obligations under the MDA to Briarcliff
Horizons, LLC, an affiliated entity of Briarcliff Realty pursuant to Section 12.5(b) of the MDA; and
WHEREAS, on or about February 13, 2012 Briazcliff Horizons, LLC filed articles of amendment
with the Missouri Secretary of State changing its name to Riverside Horizons, LLC; and
WHEREAS, Seller currently owns the real property described in Exhibit A hereto (the "Land"),
which is a part of the Briarcliff Horizons Site, and wishes to sell the Land to Purchaser on the terms
herein set forth, and Purchaser wishes to purchase the Land on the terms herein set forth;
NOW, THEREFORE, in consideration of the premises, TEN AND NO/100 DOLLARS ($10.00)
and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
and the mutual undertakings of the parties hereinafter set forth, it is hereby agreed by the parties as
fol lows:
ARTICLE I
SALE AND PURCHASE
1.01 Sale and Purchase. Subject to, and in accordance with, the terms and conditions of the
MDA, Purchaser may purchase all or any portion of the Briarcliff Horizons Site in whole or in part in one
or more transactions in Purchaser's sole discretion. The Purchase Price (the "Purchase Price ") for the
Land shall be Two Hundred Eleven Thousand One Hundred Thirty Dollazs and Fifty Cents
($2ll,130.50), which is based upon the MDA's purchase price of Fifty Cents ($0.50) per squaze foot and
the property's square footage of 422,261 square feet as set forth in the fina] plat prepared by Olsson
Associates recorded March 9, 2012 with the Platte County, Missouri Recorder of Deeds as Instrument
No. 2012003467 in Book 21 at Page 10 attached hereto as Exhibit B(the "Plat"). The actual Land to be
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purchased is described and/or depicted on [he Plat, and its ]egal description is set forth on E�ibit A
attached hereto.
1.02 Escrow Agent. An executed copy of this Agreement shall be delivered to Fidelity
National Title Insurance Company ATTN: Lolly Avant, 1330 Post Oak Blvd., Suite 2330,
Houston, TX 77056 Phone: 713-621-9960 FAX: 713-623-4406, EmaiL• LAvantCa�fnEcom (the
"Escrow Agent"), as agent for Fidelity National Title Insurance Company. No Earnest Money shall be
required of Purchaser (the "Title /nsurer").
ARTICLE II
TITLE AND SURVEY DOCUMENTS
2.01 Title Commitment. Seller shall, within fifreen (15) days after receipt of a Closing
Notice, at Seller's sole cost and expense, cause to be prepared and furnished to Purchaser for the Land to
be purchased in the subject Closing Notice an updated title commitment for the Title Policy (the "Title
CommitmenP') issued by the Escrow Agent showing the AuthoriTy as the record title owner of the Land,
by the terms of which the Escrow Agent, as agent for the TiUe Insurer, agrees to issue to or for Purchaser
a standard ALTA form of owner's policy of title insurance (the "Title Policy") at the Closing with respect
to the Land in the amount of the Purchase Price, insuring Purchaser's fee simple title to the Land
identified in the Closing Notice to be good and indefeasible subject to the terms of such Title Policy and
the exceptions specified therein, together with readily legible copies of all documents and plats, if any,
which are referred to in the Title Commitment. Seller and Purchaser shall pay the expenses of obtaining
the Title Policy as hereinafter provided. The Title Policy shall exclude all standard pre-printed exceptions.
2.02 Survey. Purchaser may, at Purchaser's sole cust and expense, cause to be prepared and
furnished to Purchaser, Purchaser's legal counsel and the Escrow Agent, an updated ALTA survey (the
'.Survey") of the Land prepared by a surveyor of Purchaser's choosing (the "Surveyor") as of a date which
is subsequent to the Effective Date.
2.03 Review of Title and Survey. Purchaser shall have a period of time (the "Title Review
Period") commencing on the Effective Date of each Closing Notice and ending on ten (10) days prior to
Cbsing in which to notify Seller in writing of any objections Purchaser has to any matters shown on the
Title Commitment. All objections raised by Purchaser in the manner herein provided are hereafrer called
"Objections." Seller shall have the option, but not the obligation, to remedy or remove all Objections (or
agree irrevocably in writing to remedy or remove all such Objections at or prior to Closing) during the
period of time (the "Cure Period") ending on the tenth (lOth) business day afrer Seller's receipt of
Purchaser's notice of such Objections. Except to the extent that Seller cures, or agrees in writing to cure,
such Objections during the Cure Period, Seller shall be deemed to have elected not to cure such matters.
In the event Seller is, or is deemed to be, unable or unwilling to remedy or cause the removal of any
Objections (or agree irrevocably to do so at or prior to Closing) within the Cure Period, then either (i) this
Agreement may be terminated in its entirety by or on behalf of Purchaser by giving Seller written notice
to such effect during the period of time (the "Termination Period') ending on the tenth (lOth) business
day following the end of the Cure Period, whereupon all parties hereto or mentioned herein shall be
released and relieved of further obligations, liabilities or claims hereunder; or (ii) any such Objections
may be waived by or on behalf of Purchaser, with Purchaser to be deemed to have waived such
Objections if notice of termination is not given within the Termination Period. Any title encumbrances or
exceptions which are set forth in the Title Commitment and to which Purchaser does not object on or
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prior to ffie last day of the Title Review Period (or which are thereafter waived or deemed to be waived by
Purchaser) shall be deemed to be permitted exceptions (the "Permitted Exceptions") to the status of
Seller's tide to the Land.
ARTICLE III
CONDITIONS PRECEDENT TO CLOSING
3A1 Purchaser's Conditions Precedent. Purchaser's obligation to consummate the
transaction contemplated herein is conditioned upon satisfaction of Seller's performance or compliance
with all of Seller's covenants, agreements and obligations under this Agreement.
3.02 Seller's Conditions Precedent. Seller's obligation to consummate the transaction
contemplated herein is conditioned upon satisfaction of each of the following conditions at or prior to the
Closing, any one or more of which conditions precedent may be waived by Seller in Seller's sole
discretio�:
(a) Representations and Warranties. None of the representations and warranties of
Purchaser set forth in Section 3.03 of this Agreement shall be untrue or inaccurate;
(b) Purchaser's Obligations. Purchaser shall have performed or complied with all
of Purchaser's covenants, agreements and obligations under this Agreement; and
(c) No Bankruptcy Proceeding. There shall not have been instituted by or against
Purchaser any bankruptcy proceeding.
(d) Compliance with Conditions of Master Development Agreement. Purchaser
shall have performed or satisfied all of the conditions precedent set out in Section 7.5 of the MDA.
3.03 Purchaser's Representations and Warranties.
(a) Purchaser's Authority. This Agreement has been duly authorized by requisite
action and is enforceable against Purchaser in accordance with its terms; neither the execution and
delivery of this Agreement nor the consummation of the sale provided for herein will constitute a
violation or breach by Purchaser of any provision of any agreement or other instrument to which
Purchaser is a party or to which Purchaser may be subject although not a party, or will result in or
constitute a violation or breach of any judgment, order, writ, junction or decree issued against or binding
upon Purchaser;
(b) No Pending Proceedings. Purchaser has no actual knowledge that there is any
action, suit, proceeding or claim affecting Purchaser or relating to the authority of Purchaser to purchase
the Land; and
(c) Office of Foreign Assets Control (OFAC) Issues.
(1) Purchaser represents and warrants that (A) Purchaser and each person or
entity owning an interest in Purchaser (i) is not cunently identified on the List, and (ii) is not a person or
entity with whom a citizen of the United States is prohibited to engage in transactions by any trade
embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of
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the President of the United States, (B) none of the funds or other assets of Purchaser constitute property
of, or are beneficially owned, directly or indirectly, by any Purchaser Embargoed Person (as hereinafter
defined), (C) no Purchaser Embargoed Person has any interest of any nature whatsoever in Purchaser
(whether directly or indirectly), (D) Purchaser has implemented procedures, and will consistently apply
those procedures, to ensure the foregoing representations and warranties remain true and correct at all
times. The term "Purchaser Embargoed Person" means any person, entity or government subject to trade
restrictions under U.S. law, including but not limited to, the International Emergency Economic Powers
Act, 50 U.S.C. §1701 et seq., the Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any
Executive Orders or regulations promulgated thereunder, with the result that the investment by Purchaser
is prohibited by law or Purchaser is in violation of law.
(2) Purchaser also shall require, and shall take reasonable measures to ensure
compliance with the requirement, that no person who owns any other direct interest in Purchaser is or
shall be listed on any of the Lists or is or shall be a Purchaser Embargoed Person. This Section shall not
apply to any person to the extent that such person's interest in the Purchaser is through a U.S. Publicly-
Traded Entity.
ARTICLE IV
CLOSING
4.01 Closing Date and Time. Provided that all of the conditions of this Agreement and the
MDA shall have theretofore been satisfied, the closing (the "Closing") of the purchase and sale of the
Land shall be conducted at such time and location as shall be mutually agreeable to Seller and Purchaser.
Purchaser may, at its option, extend the Closing Date for up to one (1) additional ten (]0) day period,
upon written notice to Seller, prior to the then scheduled Closing Date. The date on which the Closing
actually occurs is referred to herein as the "Closing Date."
4.02 Seller's Closing Matters. At the Closing, Seller shall do the following:
(a) Special Warranty Deed. Execute, acknowledge and deliver to Purchaser a
special warranty deed (the "Deed') conveying to Purchaser good and indefeasible title in fee simple to the
Land, subject only to the Permitted Exceptions;
(b) Non-foreign Person Affidavit. Execute and deliver an affidavit in fortn and
substance reasonably satisfactory to Purchaser confirming that Seller is not a foreign person or entity
within the meaning of Section 1445 of the Intemal Revenue Code of 1986, as amended;
(c) Evidence of Authority. Deliver to Purchaser such evidence of Seller's authority
to consummate the sale of the Land as is contemplated in this Agreement or as Purchaser or the Escrow
Agent may reasonably request;
(d) Possession of the Land. Deliver possession of the Land to Purchaser;
(e) Owner's Title Policy. Deliver or cause the Title Insurer to commit to delivering
the Title Policy;
(� Tax Certificates. Deliver tax certificates or other written evidence showing that
there are no delinquent ta�ces, assessments or PILOTS affecting the Land as of the Closing Date;
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(g) Certificate of Representations. Seller shall deliver an updated certificate of the
representations and warranties set out in the Master Development Agreement as ofthe Closing Date;
(h) Assignment of Contracts and Assignment of Leases. Deliver to Purchaser an
absolute assignment of all Contracts concerning the Land entered into by Seller, if any; and
(i) Other pocuments. Execute, acknowledge where required and/or deliver any and
all other items contemplated by the terms of this Agreement or reasonably required by Purchaser or its
legal counsel or by the Escrow Agent.
4.03 Purchaser's Closing Matters. At the Closing, Purchaser shall do the following:
(a) Purchase Price. Deliver the Purchase Price to the Escrow Agent by U. S.
Federal Reserve System wire transfer or other immediately available good funds;
(b) Evidence of Authority. Deliver such evidence of authority to close the purchase
of the Land pursuant to this Agreement as Seller or the Escrow Agent reasonably requests; and
(c) Other Items. Execute, acknowledge where required and/or deliver any and all
other items contemplated by the terms of this Agreement or reasonably required by Seller or its legal
counsel or by the Escrow Agent.
4.04 Closing Costs. Seller shall pay the premium for the Owner's Title Policy (including
deletion ofthe standard exceptions set forth in Section 3A1), all recording charges for the Deed, all costs
of the Title Policy, and any special chazges or assessments affecting the Land required to be paid prior to
Closing to deliver unencumbered title to the Land to Purchaser. Purchaser shall pay all costs and expenses
relating to Purchaser's financing, including any recording fees for Purchaser's security documents and the
cost of any mortgagee or loan policy required by Purchaser's lender, and the cost of any endorsements or
special coverages required by Purchaser to the Title Policy. Each party shall be responsible for the
payment of its own attorneys' fees incurred in connection with this Agreement and all other expenses
which such party incurs. The parties shall split any escrow fee and expenses charged by the Escrow
Agent.
4.05 Prorations. Prorations shall be made as follows as of ] 2:01 a.m. on the Closing Date:
(a) Rents and Income. Collected rents and other income from the Land, if any,
which are attributable to the period of time in which the Closing occurs shall be prorated between the
parties as of the Closing, and Purchaser shall receive credit against the Purchase Price for the portion of
such rents and other income which is attributable to the period after Closing. Delinquent rents shall not be
prorated; provided, however, that, if Purchaser collects any delinquent rents or expense reimbursements
after Closing, Purohaser agrees to pay to Seller any delinquent rents or expense reimbursements
attributable to the period prior to the Closing Date after all rents or expense reimbursements attributable
to the period from and after the Closing Date shall have been paid in full.
(b) Current Ad Valorem Taxes. Real and personal property ad valorem taxes,
assessments and PILOTS pertaining to the Land for the year in which the Closing occurs shall be prorated
as of the Closing (collectively, "Tazes"), based upon actual days invobed. Seller shall be responsible for
alI Taxes pertaining to the Land for any period prior to the Closing. Purchaser shall receive credit on the
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amount of the cash payments to be made by Purchaser pursuant hereto for the prorated amount of such
Taxes for the year of Closing which is chargeable to Seller. In connection with the proration of Taxes, if
actual figures for the yeaz of the Closing are not available at the Closing, an estimated, tentative proration
of Ta�ces shall be made using most recent assessment and tax rate information available; provided,
however, that, when the actual taxes for the year of the Closing are available, a corrected proration of
taxes shall be made. If such Taxes for the year of the Closing increase over ffiose for the preceding year,
Seller shall pay to Purchaser a pro rata portion of such increase, computed to the Closing Date, and
conversely, if such taxes for the year of the Closing decrease from those of the preceding year, Purchaser
shall pay to Seller a pro rata portion of such decrease, computed to the Closing, with any such payment to
be made within ten (10) days after notification by either party that such adjustment is necessary. If all or
part of the Land is located in a tan pazcel for the year of Closing which includes property that is not
within the Land, then the Taxes attributable to such tax parcel for the land value only and excluding the
value of any improvements there for the year of Closing shall be allocated between the Land (or
applicable portion thereo� and the other portions of such tax parcel on the basis of the percentages which
the gross surface areas of the Land (or applicable portion thereo� and such other portions of such tax
parcel represent of the total gross surface area of such tax pazcel. If all or part of the Land is located in a
tax parcel for the year of Closing which includes properry that is not within the Land, and all Taxes
attributable to such tax parcel shall not have been paid in full at or prior to the Closing Date, each of
Seller and Purchaser shall be obligated to deposit in escrow with the Escrow Agent at Cbsing an amount
equal to the Taxes estimated to be due with respect to their respective portions of such tax parcel for the
entire year of Closing, which amounts will be held by Escrow Agent pursuant to an escrow agreement in
form reasonably acceptable to Seller and Purchaser. This provision shall survive the Closing.
(c) Other Taxes and Assessments. All Taxes to the Closing Date (including
i�stallments due afrer the Closing Date with respect to special assessments which are payable in
installments) and all Taxes for periods prior to the tax year in which the Closing occurs shall be paid in
full by Seller on or before the Closing Date. Seller shall be responsible for and indemnify Purchaser
against any Taxes attribu[able to the period prior to the Closing Date, including, but not limited to, any
Taxes deferred to subsequent years due to an exemption or special use valuation.
(d) Post-Closing Adjustments. Seller shall, on or before the Closing, furnish to
Purchaser and the Escrow Agent all information reasonably available to Seller that is necessary to
compute the foregoing proration of Taxes. To the extent possible, the amount of any adjustment described
in this section shall be estimated and paid at the Closing based upon the best information available to
Purchaser and Selier at the time, and shall be adjusted as soon thereafter as may be reasonably practicable
when final billings are available or when such amounts may be determined with reasonable certainty. The
foregoing obligations shall survive the Closing, any other provision hereof to the contrary
notwithstanding.
ARTICLE V
REMEDIES
5.01. Purchaser's Remedies.
(a) Remedies for Failure to Close. In the event that Seller fails or refuses to convey
the Land at Closing and Purchaser has satisfied all of Purchaser's obligations pursuant to this Agreement
and the MDA, deposited the Purchase Price with the Escrow Agent, and is prepared to proceed with
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Closing, Purchaser may exercise one of the following exclusive remedies: (a) terminate this Agreement
by giving Seller written notice of such election prior to or at the Cbsing, and thereupon this Agreement
shall terminate, and all parties hereto or mentioned herein shall be relieved and released of all further
obligations, claims and liabilities hereunder; (b) to waive, prior to or at the Closing, the applicable
objection or condition and proceed to the Closing of the transaction contemplated hereby in accordance
with the remaining terms hereof; or (c) seek specific performance of Seller's obligation to convey the
Land under this Agreement. Concurrently with the execution of this Agreement, Seller and Purchaser, at
Purchaser's request, shall exewte a memorandum of ffiis Agreement that Purchaser will be entitled to
record in the appropriate real property records of Platte County, Missouri, in order to give constructive
notice of the existence of this Agreement.
5.02 Seller's Remedies. If Purchaser wrongfully fails or refuses to perform Purchaser's
obligations pursuant to this Agreement, Seller not being in material default hereunder, Seller shall be
entitled, as Seller's sole and exclusive remedy, to terminate this Agreement by written notice to Purchaser
and the Escrow Agent
ARTICLE VI
MISCELLANEOUS
6.01 Escrow Instructions. Intentionally Omitted.
6.02 Integration. This Agreement constitutes the entire and final expression of the agreement
of the parties hereto and supersedes all prior agreements and understandings of the parties, either oral or
written. There are no other agreements, oral or written, between the parties regarding the Land.
6.03 Modification. This Agreement can be amended only by written agreement signed by the
parties hereto and by reference made a part hereof.
6.04 Binding Effect. This Agreement shall be binding upon and inure to the benefit of Seller
and Purchaser, and their respective heirs, personal representatives, successors and assigns.
6.05 Notices. Any notice, communication, request, demand, reply or advice (severally and
collectively referred to as "Notice") in this Agreement required or permitted to be given, made or
accepted must be in writing. Notice may, unless otherwise specifically provided herein, be given or
served (a) by depositing the same in a receptacle regularly maintained and serviced by the United States
Postal Service, postage pre-paid, registered or certified, and addressed to the party to be notified, with
return receipt requested, or (6) by deiivering the same to such party, or an agent of such party, by
commercial courier. Notice sent by registered or certified mail in the manner hereinabove described shall
be effective on the earlier of the third (3rd) business day after such deposit or the actual receipt thereof.
Notice given by commercial courier shall be effective on the date delivered to the other party. For the
purposes of Notice, the addresses of the parties shall, until changed as provided below, be as follows:
Seller: The City of Riverside, Missouri
Attention: Mayor
City Hall
2950 NW Vivion Road
Riverside, MO 64150
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Purchaser: Riverside Horizons, LLC
Attention: Nathaniel Hagedorn
6300 N. Revere, Suite 225
Kansas City, MO 64151
'I'he parties hereto shall have the right from time to time to change their respective addresses, and each
shall have the right to specify as its address any other address within the United States of America, by not
less than ten (10) days' prior written notice to the other party.
6.06 Brokerage Commissions. Each party represents and warrants that no real estate
brokerage commission fee is payabie to any person or entity in connection with the transaction
contemplated hereby, and each party shall indemnify, defend and hold the other party harmless from and
against the payment of any commission or fee to any person or entity claiming, or alleging to claim, by,
through or under the indemnifying pariy.
6.07 Time. Time is of the essence in all things pertaining to the performance of this
Agreement.
6.08 Survival of Obligations. To the extent necessary to carry out the terms and provisions
hereof, the terms, conditions, warranties, representations, obligations and rights set forth herein shall not
be deemed terminated at the time of the Closing, nor shall they merge into the various documents
executed and delivered at the time of the Closing. All representations and warranties by Seller in this
Agreement (i) will expire one (1) year after the Closing Date as to matters for which Purchaser has not
provided written notice to Seller within such period of time; and (ii) will expire as to all matters specified
in any such written notice to the extent that such matters are not resolved or made the subject of litigation
instituted prior to the expiration of three (3) years after the Closing Date.
6.09 APPLICABLE LAW; VENUE; WAIVER OF NRY TRIAL. THE LAWS OF THE
STATE OF MISSOURI SHALL GOVERN THE CONSTRUCTION, ENFORCEMENT,
INTERPRETATION AND VALIDITY OF THIS AGREEMENT. THE OBLIGATIONS OF THE
PARTIES ARE PERFORMABLE, AND VENUE FOR ANY LEGAL ACTION ARISING OUT OF
THIS AGREEMENT SHALL LIE, IN PLATTE COUNTY, MISSOURI. SELLER AND PURCHASER
EACH HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
6.10 Headings. 7'he headings that have been used throughout this Agreement have been
inserted for convenience of reference only and do not constimte matters to be construed in interpreting
this Agreement.
6.11 Terminology. Words of any gender used in this Agreement shall be held and construed
to include any other gender and words in the singular number shall be held to include the plural, and vice
versa, unless the context requires otherwise. The words "herein," "hereof," "hereunder" and other similaz
compounds of the word "here" when used in this Agreement shall refer to the entire Agreement and not to
any particular provision or section. The words "include" and "including" shall be deemed to be followed
by the phrase "without limitation" unless otherwise qualified.
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6.12 Construction of Agreement. This Agreement shall not be construed more strictly
against one party than against the other merely by viRue of the fact that it may have been prepared by
legal counsel for one of the parties, it being recognized that both Seller and Purchaser have contributed
substantially and materially to the preparation of this Agreement.
6.13 Severability. If any one or more of the provisions of this Agreement, or the applicability
of any such provision to a specific situation, shall be held invalid or unenforceable, such provision shall
be modified to the minimum extent necessary to make it or its application valid and enforceable, and the
validity and enforceability of all other provisions of this Agreement and all other applications of any such
provision shall not be affected thereby.
6.14 Counterpart Execution. This Agreement may be executed in several counterparts, each
of which shall be fully executed as an original and all of which together shall constitute one and the same
instrument.
6.15 Further Acts. In addition to the acts recited in this Agreement to be performed by Seller
and Purchaser, Seller and Purchaser agree to perform or cause to be performed at the Closing or after the
Closing any and all such further acts as may be reasonably necessary to consummate ffie transactions
contemplated hereby.
6.16 Litigation. In the event of litigation between the parties with respect to the Land, this
Agreement, the performance of the obligations hereunder or the effect of a termination under this
Agreement, the losing party shall pay all reasonable attorneys' fees and expenses and court costs incurred
by the prevailing party in connection with such litigation.
617 Benefit. This Agreement is for the benefit only of the parties hereto or their respective
heirs, personal representatives, successors and assigns, and no other person or entity shall be entitled to
rely hereon, receive any benefit herefrom or enforce against any party hereto any provision hereof.
6.18 Assignment. Purchaser may assign this Agreement and all rights hereunder to an
affiliated entity provided that (i) Purchaser shall remain jointly and severally liable with the assignee for
the obligations contained in this Agreement; (ii) Purchaser, and any assignee by accepting assignment of
this Agreement, expressly agrees to defend and indemnify Seller from any litigation arising out of the
assignment; (iii) written notice of the assignment, including the name of the assignee, is provided to
Seller at three (3) business days prior to Closing.
6.19 Form of Instruments. Except as otherwise provided herein, all instruments to be
furnished hereunder shall be prepared in such form as is reasonably acceptable to the party receiving such
instrument.
6.20 Tenders of Performance. All tenders of performance shall be made at the Closing and at
or before the time specified for the Closing.
6.21 Legal Holidays and Business Days. If any date herein set forth for the performance of
any obligations by Seller or Purchaser or for the delivery of any instrument or notice as herein provided
should be on a Saturday, Sunday or legal holiday, the compliance with such obligations or delivery shall
be deemed acceptable on the next business day following such Saturday, Sunday or legal holiday. As used
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WA 3622756.1
herein, the term "legal holiday" means any federal holiday for which financial institutions or post offices
in Riverside, Missouri are generally closed for observance thereo£ As used herein, the term "business
day" shall mean a day which is not a Saturday, Sunday or Iegal holiday.
6.22 Nonwaiver. Except as otherwise specifically provided for hereunder, no party shall be
deemed to have waived any of its rights hereunder unless such waiver is in writing and signed by the
party waiving such right. Except as otherwise specifically provided for hereunder, no delay or omission
by any party in exercising any right shall operate as a waiver of such right or of any other right. A waiver
on any one occasion shall not be construed as a bar to, or waiver of, any right or remedy on any future
occasion. Except as otherwise provided in Sections 7.01 and 7.02 hereof, all rights and remedies, whether
evidenced hereby or by any other agreement, instrument or paper, will be cumulative and may be
exercised separately or concurrently.
6.23 Effective Date; Acceptance. The effective date (the "Effective Date") of this Agreement
shall be the date that the Escrow Agent receives and receipts one or more counterparts of this Agreement
that have been signed by both Seller and Purchaser. The execution hereof by Purchaser shall constitute an
offer by Purchaser to Seller to purchase the Land on the terms and conditions herein stated, which must
be accepted by Seller on or before 5:00 p.m., the City of Riverside, Missouri time, on the tenth (lOth)
business day (the "Acceptance Date") following the date set forth below Purchaser's signature heretq by
the execution hereof by Seller and the delivery of at least two fully-executed counterparts of same to the
Escrow Agent on or before the Acceptance Date with instructions to deliver at least one fully executed
copy thereof to Purchaser. [f Purchaser's offer is not accepted in such manner by the Acceptance Date, the
same shall be thereafter null and void.
IN WITNESS WHEREOF, this Agreement has been duly executed in multiple counterparts (each
of which is to be deemed an original for alI purposes) by the parties hereto on the respective date
appearing below each party's signature to be effective on the Effective Date herein specified.
SELLER
THE CITY OF RIVERSIDE, MISSOURI
a Missouri municipal corporation
By: � -Y�GI���/l .tr��CJ
Mayor
Date: �Ll�„ • � if.U�.�
4
PURCHASER
RIVERSIDE HORIZONS, LLC,
a Missouri limited liability company
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10
WA 3622756.1
�
By:
Nathaniel Ha rn, Manager
Date: � l � / � y
(P:/DOCS/1893/004/00559992;1 �
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WA 3622756.1
ESCROW AGENT RECEIPTS
The undersigned Escrow Agent acknowledges receipt of this Agreement of Sale and Purchase
and agrees to be bound by the terms of this Agreement this __ day of , 2012.
FIDELITY NATIONAL TITLE INSURANCE
COMPANY
B
Name:
Title:
{P:/DOCS/1 893 /004/0 0 5 5 9992',I T
IZ
WA 3622756.1
EXHIBIT A
LEGAL DESCRIPTION
(P:/DOCSA893/004/00559992;1 J
13
WA 3622756.1
EXHIBIT B
PLAT
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WA 3622756.I
EXHIBIT D
FORM OF SPECIAL WARRANTY DEED
CITY TO RIVERSIDE HORIZONS. LLC
THIS INDENTURE is made as of , 2012 by the CITY OF
RIVERSIDE, MISSOURI, a fourth class city organized and existing under the laws of the State
of Missouri, as grantor ("Grantor'), with a mailing address of 2950 NW Vivion Road, Riverside,
Missouri 64150 to RIVERSIDE HORIZONS, LLC, a limited liability company organized and
existing under the laws of the state of Missouri, as grantee ("Grantee"), with mailing address of
6300 North Revere, Suite 225, Kansas City, Missouri 64151.
WITNESSETH: THAT GRANTOR, in consideration of the sum of TEN AND NO/100
DOLLARS ($10.00) and other valuable consideration to it in hand paid by Grantee (the receipt
of which is hereby acknowledged) does by these presents, SELL and CONVEY unto Grantee,
its successors and assigns, the lots, tracts or parcels of land, lying, being and situate in the
County of Platte and State of Missouri as described as follows:
All of Lot 1 of RIVERSIDE HORIZONS EAST FIRST PLAT, a subdivision in Riverside, Platte
County, Missouri, subject to all easements and restrictions of record.
EXCEPT AND FURTHER SUBJECT TO:
a. The subject property is conveyed subject to that certain Declaration of covenants,
restrictions, easements, charges, assessments and liens for Horizons Business Park/Planned
Development District, dated and recorded in the Office of the Recorder of
Deeds of Platte County, under pocument No. , as may be heretofore and hereafter
amended in accordance therewith, all of the provisions of which are specifically incorporated
herein by reference thereto (herein the "Declaration"), and all of which GRANTEE accepts as
covenants running with the land and binding at law as well as equity upon GRANTEE and its
successors in title to the subject property, and the obligations of which GRANTEE, for itself and
its successor in title, agrees to observe and perform.
b. This Deed is made and delivered upon the condition subsequent, which shall be
binding upon and enforceable against GRANTEE and its successors in title, that if the
commencement of vertical construction conforming to submitted design criteria and approved
plans and specifications shall not have been commenced within sixty (60) days from the date
hereof, , then all right, title and interest herein conveyed in and to the subject property shall, at
the election of GRANTOR, automatically revert to and become the property of GRANTOR,
which shall have the immediate right to enter upon and take full possession of the subject
property, and shall be obligated to forthwith refund to GRANTEE or its then successor(s) in title
all monies paid on the purchase price of the subject property by GRANTEE to GRANTOR.
Upon request of GRANTEE for good cause shown, an extension of GRANTEE'S covenant to
commence vertical construction may be granted by GRANTOR, such consent shall not be
unreasonably withheld or delayed. The failure of GRANTOR to insist upon strict performance of
such condition subsequent, in whole or in part, shall not affect a waiver or relinquishment of the
same. When vertical construction of such building and facilities has commenced in accordance
with the terms herein provided, then (i) all reversionary rights of GRANTOR shall terminate and
be extinguished, and (ii) GRANTEE shall thereupon hold title to the subject property free and
clear of this condition, GRANTOR shall at the request and expense of GRANTEE, execute and
record against title to the subject property a writing validly evidencing the termination of
GRANTOR'S reversionary right as hereinabove set forth .
TO HAVE AND TO HOLD the premises aforesaid, with all and singular the rights
privileges, appurtenances and immunities thereto belonging or in anywise appertaining unto
Grantee and unto its successors and assigns forever, Grantor hereby covenanting that said
premises are free and clear from any encumbrance (except as referenced above) done or
suffered by it; and that it will warrant and defend the title to said premises unto Grantee and
unto its successors and assigns forever, against the lawful claims and demands of all persons
claiming under Grantor.
IN WITNESS WHEREOF, Grantor has caused these presents to be signed as of the day
and year first above written.
GRANTOR
CITY OF RIVERSIDE, MISSOURI
By:
Kathleen L. Rose, Mayor
ATTEST:
By:
City Clerk
ACKNOWLEDGEMENT
STATE OF MISSOURI )
) SS
COUNTY OF PLATTE )
ON THIS _day of , 2012, before me, the undersigned, a Notary
Public in and for said County and state, personally appeared Kathleen L. Rose to me personally
known, who being by me duly sworn, did say that she is the Mayor of the City of Riverside,
Missouri, a municipal corporation duly organized and existing under the laws of the state of
Missouri, and that the seal a�xed to the foregoing instrument is the seal of said municipality,
and that said instrument was signed and sealed in behalf of said municipality by free act and
deed of said municipality.
WITNESS my hand and official seal in the County and State aforesaid, the day and year
first above written.
Notary Public Signature
(Seal)
Printed or Typed Name
My Commission Expires:
RIVERSIDE HORIZONS, LLC
6300 N. RevexE Dwve, Surre 225
KANSAS CITY, MISSOUR164151
July 18, 2012
VIA FACSIMILE (816) 746-8349. ViA FACSrntILE (816) 746-8349.
HAND DELIV ERY AND US MAIL HAND DELNERY AND US MAIL
City of Riverside City of Riverside
Ciry Hall City Hall
2950 NW Vivian Road 2950 NW Vivian Road
Riverside, Missouri 64I50 Riverside, Missouri 64150
Attn: Ciry Administrator Attn: City Attotney
Re: NoNce of Intent to Purchase Certain Property in the Briarcliff Horizons Site,
Specifically, Lot 1, Riverside Horizons East First Plat
Ladies and Gentlemen:
The City of Riverside, Missouri (the "City°) and Briarcliff Realty, LLC (now known as BR NorthPoint,
LLC) entered into that certain Master Development Agreement (the "MDA") on May 10, 2011.
Thereafter, with the City's consent, BR NorthPoint, LLC assigned its rights and obligations under the
MDA to Briarcliff Horizons, LLC, which changed its name with the Missouri Secretary of State on
February 24, 2012 to Riverside Horizons, LLC (the "Developer"), an affiliated entity of BR NorthPoint,
LLC.
The MDA provides the Developer with certain vested rights to purchase, from time to time, all or a
portion of the property within the area of land delineated by the MDA known as the `Briarcliff Horizons
Site." The Developer now desires to purchase, pursuant to the terms and conditions contained in the
MDA, all of Lot 1 in Riverside Horiwns East First Plat as depicted and described on the enclosed Final
Plat prepared by Olsson Associates recorded March 9, 2012 with the Platte County, Missouri Recorder of
Deeds as Instrument No. 2012003467 in Book 21 at Page 10 (the "Property"). The Purchase Price for the
Property shall be $211,130.00, which is based upon the MDA's purchase price of $0.50 per square foot
and the Property's measured square footage of 422,261 square feet as set forth in the Final Plat.
Therefore, pursuant to Section 7.5(a) of the MDA, the Developer hereby provides the City with the
required thir[y (30) day prior written notice of the Developer's inteM to purchase the property described
and depicted on E�ibit A hereto on September 6, 2012. The developing party will be Horizons
Industrial II, LLC, a Delaware limited liability company and joint venture behveen BR NorthPoint, LLC
and The Northwestern Mutual Life Insurance Company.
Should you have any questions regarding this notice, please contact the undersigned at your earliest
opportunity. Thank you.
RIVERSIDE HORIZONS, LLC
�--_----
8y: ./'
Nathaniel Hagedo nager
Enclosure: Final Plat, Riverside Horizons East First Plat
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