HomeMy WebLinkAbout1224 Authorizing Execution of Purchase and Sale Agreement of Certain Land with GSBR AssociatesBILL NO. 2013-047 ORDINANCE NO. 1224
AN ORDINANCE AUTHORIZING AND APPROVING THE EXECUTION OF A PURCHASE
AND SALE AGREEMENT OF CERTAIN LAND BY AND BETWEEN THE CITY OF
RIVERSIDE, MISSOURI AND GSBR ASSOCIATES LLC
WHEREAS, on or about February 12, 2013, GSBR Associates LLC, a Missouri limited
liability company in good standing ("GSBR"), presented a Letter of Intent to Purchase certain
property from the City of Riverside, Missouri ("City"), ("Letter of Intent"), attached hereto as
"Attachment 1" and incorporated herein; and
WHEREAS, the City of Riverside, Missouri ("City") owns that certain property consisting
of approximately 14 acres, more particularly described in Exhibit A to Attachment 1 ("Sale Property"); and
WHEREAS, representatives of the City and GSBR have negotiated an Agreement of
Purchase and Sale between the City and GSBR, attached hereto as Attachment 2 and incorporated herein; and
WHEREAS, the sale of the Sale Property 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, the City finds that it is necessary and in the best interests of the City in
order to further the objectives of the TIF Plan, and the objectives of industrial and economic
development for the City, to authorize and approve the sale of the Sale Property by the City to
GSBR as provided for in the Agreement pursuant to a Special Warranty Deed.
NOW THEREFORE BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF RIVERSIDE, MISSOURI, AS FOLLOWS
SECTION 1 — BEST INTEREST OF THE CITY. The Recitals set forth above in this
Ordinance are incorporated into and made a part of this Agreement as if fully set forth in this
Section 1. The Board of Aldermen hereby find and determine that entering into said Agreement,
attached hereto as Attachment 2 and incorporated herein, with GSBR will further the objectives
of the TIF Plan and the objectives of industrial and economic development of the City, fulfill a
public purpose and will further the growth of the City, facilitate the development of the Riverside
Horizons Area, improve the environment of the City, increase the assessed valuation of the real
estate situated within the City, increase the sales tax revenues realized by the City, foster
increased economic activity within the City, increase employment opportunities within the City,
enable the City to direct the development of the Area, further the health, safety, and welfare of
its residents and taxpayers, and that the City sell the Sale Property to GSBR according to the
terms and conditions set forth in the Agreement at a purchase price Five Hundred Forty -Eight
Thousand Eight Hundred Fifty -Six Dollars ($548,856.00) therefore will be in the best interests of the City.
SECTION 2 - APPROVAL OF PURCHASE AND SALE AGREEMENT, PAYMENT OF
FUNDS. The Agreement for the sale of the Sale Property by the City to GSBR in substantially
the form as presented with this Ordinance, upon the terms and conditions and price contained
therein, is hereby approved and authorized.
SECTION 3 - AUTHORITY GRANTED. The City is hereby authorized to enter into, the
Mayor to execute and deliver such Agreement, and the City to make payment to GSBR in the
WA 4320116.1
amount of Five Hundred Forty -Eight Thousand Eight Hundred Fifty -Six Dollars ($548,856.00),
pursuant to the terms and conditions contained in the Agreement. The Mayor, the City
Administrator, the City Attorney, the Special Counsel to the City, the Finance Officer and other
appropriate City officials are hereby authorized to take any and all actions as may be deemed
necessary or convenient to carry out and comply with this Ordinance consistent with the
Ordinances of the City and the laws of the State of Missouri.
SECTION 4 - FAILURE TO COMPLY. That failure to comply with all of the provisions
contained in this ordinance shall constitute violations of both this ordinance and the City's
Unified Development Ordinance.
SECTION 5 - REPEAL OF ORDINANCES IN CONFLICT. All ordinances or parts of
ordinances in conflict with this ordinance are hereby repealed.
SECTION 6 - SEVERABILITY CLAUSE. The provisions of this ordinance are severable
and if any provision hereof is declared invalid, unconstitutional, or unenforceable, such
determination shall not affect the validity of the remainder of this ordinance.
SECTION 7 - EFFECTIVE DATE. This ordinance shall be in full force and effect from
and after the date of its passage and approval.
BE IT REMEMBERED that the above was read two times by heading only, passed and
approved by a majority of the Board of Aldermen and APPROVED by the Mayor of the City of
Riverside Missouri this 18th day of June, 2013.
/s/ Kathleen L. Rose
Mayor Kathleen L. Rose
ATTEST: /s/ Robin Littrell
City Clerk
Approved as to form:
/s/ Joe bednar
Spencer Fane Britt & Browne LLP,
by Joe Bednar
Special Counsel to the City Attorney
2 WA 4320116.1
ATTACHMENT 1
LETTER OF INTENT
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3 WA 4320116.1
GSBR ASSOCIATES, LLC
700 W. 47th Street, Suite 1000
Kansas City, MO 64112
816.360.4146 / IBlond@polsinelli.com
February 12, 2013
Mr. Mike Duffy
Director of Planning & Community Development
City of Riverside
2950 NW Vivion Road
Riverside, MO 64150
SUBJECT: Letter of Intent to Purchase Real Property in Riverside, Missouri
Remaining "Rinker/Hydro Conduit" Site East of Horizons Parkway
Dear Mike:
The purpose of this letter is to indicate the basis upon which GSBR Associates, LLC or Assigns (the
"Purchaser") is prepared to acquire the above referenced property consisting of the following:
Approximately fourteen (14) acres of land for development of warehouse & distribution
building(s); to be determined upon completion of an Alta survey for the property, and as shown on Exhibit A attached.
This letter is a Letter of Intent only. It is not legally binding on either party, not withstanding anything
to the contrary elsewhere in this letter. It is, however, an indication of a good faith attempt between
the parties to be further detailed in a future contractual agreement. This Letter of Intent is based upon
information supplied to the Purchaser by the City of Riverside.
• Purchase Price: $548,856.00
• Property: The Property consists of one (1) site, as set forth on Exhibit A attached hereto and
incorporated herein by reference. In no event shall useable square feet include (i) the gross
acreage within any existing public street right-of-way or any proposed public street right-of-
way, (ii) the gross acreage within any 100-year flood plain, and (iii) the gross acreage of any exclusive easements.
• Purchase & Sale Agreement: The parties shall use their best efforts to enter into a mutually
satisfactory agreement, within twenty-one (21) days of one full execution of this Letter of Intent
by all parties, which shall supersede the terms of this Letter of Intent.
• Deposit: The earnest money deposit under the Purchase and Sale Agreement shall be $5,000 to
be held by a mutually acceptable escrow agent. Said deposit will be refundable at any time
during the Due Diligence Period or thereafter will serve as liquidated damages in the event of a default by Purchaser.
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• Due Diligence: Seller shall deliver the Due Diligence Documents set forth on Exhibit B to
Purchaser within five (5) days of the date of the Purchase and Sale Agreement. Purchaser shall
have seventy-five (75) days from the date of the Purchase and Sale Agreement to inspect and to
make tests, studies, examinations and investigations of the Property ("Due Diligence Period"),
other than the soils test and rock investigation studies. Purchaser shall have reasonable access
to the Property upon reasonable notice to the Seller in order to conduct its Due Diligence. In
such event that any of the tests, studies, examinations, or investigations of the property are
unacceptable to Purchaser in its sole discretion, Purchaser will have the right to terminate the
Purchase & Sale Agreement within three (3) days following the end of the 30 day Due Diligence Period.
• Zoning, Plat and Plan Approval: Purchaser shall have one hundred and fifty (150) days from the
date of the Purchase and Sale Agreement to obtain the following items and approvals:
Any necessary rezoning, preliminary plan, final plan, preliminary plat, final plat, City or State
incentives, and any other necessary City approvals for the development of a distribution
building on the property as approved by the City of Riverside.
In the event that the Purchaser does not receive all of the approvals for the above items
acceptable to Purchaser in its sole discretion, then the Purchaser will have the right to
terminate the Purchase and Sale Agreement within three (3) days following the end of the 150
Zoning, Plat and Plan Approval period.
• Closing Date: Closing will occur no later than seven (7) days following the expiration of the Due Diligence Period.
• Environmental Matters: As a condition of closing, the property must be free of asbestos, PCBs
and other hazardous materials nor will there be any spills or discharges of contaminated or
hazardous waste on site. The Purchaser will require a Phase I Environmental Study at its
expense. If warranted, a Phase II Study would need to be completed, as well.
• Other Closing Conditions: The Purchaser's obligation to close is conditioned upon the following:
A. Receipt of all estoppel letters from all tenants in a form and content satisfactory to Purchaser, if any.
B. Acceptable condition of the improvements on the property, if any.
C. Acceptable state of title.
D. Receipt of evidence that the property complies with all applicable laws and regulations.
E. Receipt and valid assignment to the Purchaser of all certificates of occupancy, building
permits, and other required permits for the continued operation of the buildings, if any.
F. Receipt of evidence that the property is not located in a flood plain.
• Closing Costs: Seller shall be responsible for:
A. All survey expenses;
B. Customary Seller's recording fees;
C. All costs incurred to repay any liens; and
D. All other customary Seller's expenses due or incurred in connection with the
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transaction.
Purchaser shall be responsible for:
A. Costs associated with its Phase I environmental studies, except as hereinbefore provided.
Seller and Purchaser each shall be responsible for the fees and expenses of their respective
legal counsel incurred in connection with the transaction.
• Title Insurance: Purchaser shall arrange for title insurance with an insurer of its choice. Seller
will pay the cost thereof, including charges for any waivers of printed exceptions or shortages of
area, and affirmative covenants over exceptions otherwise not acceptable to the Purchaser,
except that the Seller's obligation shall be limited by (i) the applicable filed rate, (ii) the
insurer's normal and usual charge for such insurance and coverage if there is not filed rate, and
(iii) the cost of examination, which may be performed by the Seller's attorneys if acceptable to the insurer.
• Survey Expense: Within twenty (20) days after the Date of Agreement, at Seller's sole cost and
expense, Seller shall obtain a survey of the Land and Improvements (the "Survey"), dated on or
after the Date of Agreement and prepared by a land surveyor licensed by the state in which the
Land is located. The Survey shall be certified to Seller, Purchaser, Purchaser's lender (if any),
and Title Company as having been prepared substantially in accordance with the current
minimum standard detail requirements for an Urban Land Title Survey jointly adopted by the
American Land Title Association and the American Congress of Surveying and Mapping. Seller
shall deliver or cause to be delivered a copy of the Survey to Buyer.
• Brokerage: Seller agrees to hold Purchaser harmless against all claims of brokers or agents
employed by Seller for any commissions related to this transaction. Purchaser shall be
responsible for any fees due its Brokerage agent, if any.
• New Leases, Covenants, Easements or Restrictions: Seller will not enter into any covenant,
easement, restriction, lease or contract affecting the Property without obtaining Purchaser's
written approval during the term of the Purchase and Sale Agreement.
• Representation of Seller: Your acceptance of the terms of this letter shall be deemed a
warranty and representation by you that you have the power and authority to execute this
letter of intent and the P&S, and to convey the Property to Purchaser.
While this Letter is intended to resolve, at the outset, many issues affecting the Agreement, there are
other issues which remain to be negotiated. Accordingly, it is not the intent of this letter to create, and
this letter shall not create, any binding obligations on the part of the Seller or the Purchaser. The
parties shall be bound only if and when a formal contract of purchase is mutually executed and
delivered by them, and such contract will entirely supersede anything set forth in this letter. Neither
Seller nor Purchaser shall be under any duty or obligation to continue to negotiate the proposed
Agreement and either of them may terminate negotiations at any time without liability to the other.
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Within one (1) business day after completion of the due diligence period, the Purchaser shall notify the
Seller whether Purchaser wishes to terminate the Agreement.
To assist in this due diligence, the Seller shall grant the Purchaser reasonable access to the Property,
including its tenants, if any, and to the records relating thereto upon reasonable notice to the Seller.
If you agree with the basic terms and conditions described in this letter, please execute your acceptance
below. This letter will terminate and be of no further force or effect if not accepted by you and
returned to the undersigned on or prior to 5:00 PM, March 8, 2013.
Sincerely,
GSBR Associates, LLC
/s/ Irwin E. Blond
By: Irwin E. Blond, Manager
ACKNOWLEDGED & ACCEPTED THIS 18th DAY OF June, 2013 at Riverside, MO.
BY: /s/ Kathleen L. Rose
Date: 6-18-13 Time: 7.30 p.m.
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EXHIBIT 'A'
SITE PLAN
[aerial image of Riverside Industrial Park property]
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EXHIBIT B
DUE DILIGENCE DOCUMENTS
TO BE DELIVERED BY SELLER
1. Seller's most current title policy, including exceptions thereto.
2. All licenses, permits and approvals, including certificates of occupancy.
3. Evidence of compliance with all applicable laws, including zoning regulations.
4. Certified boundary survey and title survey completed by a registered surveyor, including a legal
description and copies of any title exceptions noted thereon.
5. Protective or restrictive covenants and owners association documents (if applicable).
6. All Right of Entry/Access documents, either recorded or unrecorded.
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ATTACHMENT 2
AGREEMENT
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4 WA 4320116.1
AGREEMENT OF PURCHASE AND SALE BETWEEN THE CITY OF RIVERSIDE, MISSOURI (SELLER)
AND GSBR ASSOCIATES, LLC (PURCHASER)
THIS AGREEMENT OF PURCHASE AND SALE (this "Contract") is made as of the
Effective Date hereinafter defined by and between THE CITY OF RIVERSIDE, MISSOURI
("Seller"), and GSBR ASSOCIATES, LLC, a Missouri limited liability company, and/or its
assigns ("Purchaser"). 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:
WHEREAS, Seller currently owns the real property described in Exhibit A hereto (the
"Land") 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 follows:
ARTICLE I.
SALE AND PURCHASE
1.1 Purchase Price. Seller agrees to sell to Purchaser, and Purchaser agrees to
purchase from Seller, the Land. The Purchase Price (the "Purchase Price") for the Land shall be
Five Hundred Forty -Eight Thousand Eight Hundred Fifty -Six Dollars ($548,856.00) which is
based on the Land containing 14 acres (609,840 square feet). This is a price of .900 per square
foot. The Purchase Price will be increased or decreased based upon the exact number of useable
square feet contained within the Land, as certified by the Survey (hereinafter defined). In no
event shall useable square feet include (i) the gross acreage within any existing public street
right-of-way or any proposed public street right-of-way, (ii) the gross acreage within any 100-
year flood plain, (iii) the gross acreage of any exclusive easement. The final Purchase Price will
be determined by multiplying the useable square footage as certified by the Survey by .90¢ per
square foot. Buyer agrees to pay the Purchase Price as follows:
(a) Five Thousand Dollars ($5,000.00) at the signing of this Contract as
Earnest Money, such to be deposited upon execution of this Contract, in the insured trust or
escrow account of Assured Quality Title Company, Attention: Don Rodgers, 1001 Walnut Street,
Kansas City, Missouri 64106, phone number (816) 221-2880, fax number (816) 221-2884 ("Title
Company") as part of the consideration of the sale;
(b) Twenty -Five Thousand Dollars ($25,000.00) at the completion of the
Feasibility Period as Additional Earnest Money, such to be deposited upon completion of
Feasibility Period, in the insured trust or escrow account of the Title Company as part of the consideration of the sale;
Error! Unknown document property name.
(c) Twenty -Four Thousand Three Hundred Eighty Five Dollars ($24,385.00)
at the completion of the Due Diligence Period as Additional Earnest Money, such to be deposited
upon completion of Due Diligence Period, in the insured trust or escrow account of the Title
Company as part of the consideration of the sale;
(d) The balance to be paid in guaranteed funds or cashier's check at Closing
(as defined in this Contract), adjusted at Closing for pro -rations, closing costs and other agreed expenses.
ARTICLE II.
TITLE AND SURVEY DOCUMENTS
2.1 Title Commitment. Seller shall, within fifteen (15) days after the Effective Date,
at Seller's sole cost and expense, cause to be prepared and furnished to Purchaser an updated title
commitment for the Title Policy (the "Title Commitment") issued by Assured Quality Title
Company (the "Title Insurer") showing Seller as the record title owner of the Land, by the terms
of which the Escrow Agent, as agent for the Title 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 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.
2.2 Survey. Purchaser may, at Purchaser's sole cost and expense, cause to be
prepared and furnished to Purchaser, Purchaser's legal counsel and the Escrow Agent, an ALTA
boundary 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. If Closing occurs, Purchaser
shall receive a credit for the cost of the cost of the Survey up to a minimum amount of $5,000.00,
which shall be credited to Purchaser as set forth in Section 4.4.
2.3 Environmental Reports. During the Feasibility Period, Purchaser may, at
Purchaser's sole cost and expense, cause to be prepared and furnished to Purchaser, Purchaser's
legal counsel and the Escrow Agent, Phase I or Phase II environmental reports as deemed
necessary ("Environmental Reports").
2.4 Review of Title and Survey. Purchaser shall have the Feasibility Period, as
defined below, in which to notify Seller in writing of any objections Purchaser has to any matters
shown on the Title Commitment, the Survey and the Environmental Reports. All objections
raised by Purchaser in the manner herein provided are hereafter 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 earlier of (a) the tenth (10th) business day after Seller's
receipt of Purchaser's notice of such Objections, and (b) the business day immediately preceding
the Closing Date. 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
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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 earlier of (A) the tenth (loth) business day following the
end of the Cure Period, and (B) the Closing Date, 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,
Survey or Environmental Reports and to which Purchaser does not object on or prior to the last
day of the Feasibility 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 title to the Land.
2.5 Feasibility Period. Purchaser shall have a period of seventy-five (75) days after
the Effective Date (the "Feasibility Period") during which to conduct such investigations and
studies of the Property as Purchaser may deem appropriate or necessary, including without
limitation feasibility studies, soil tests, soil borings, core drillings, environmental investigations,
asbestos investigations, pest inspections, mechanical inspections and other such tests or
investigations. If at any time during the Feasibility Period Purchaser determines that the
Property is not suitable to Purchaser, in Purchaser's sole and absolute discretion, then Purchaser
may terminate this Contract and receive a refund of the Earnest Money by providing written
notice to Seller at any time during the Feasibility Period. Seller shall have no obligation to cure
any physical defect found by Purchaser during the Feasibility Period. At any time during the
Feasibility Period, Purchaser may accept the property by providing written notice of same to
Seller. (the "Notice of Acceptance").
2.6 Access. Seller grants a license to Purchaser, its employees, agents and contractors
for access to the Property for the purposes of conducting the investigations and tests described
above, from the date hereof until the end of the Feasibility Period. Purchaser, its employees,
agents and contractors shall use reasonable efforts to not disturb or disrupt the Property
unnecessarily during the period of such investigations or tests. Purchaser shall defend,
indemnify and hold Seller, its officers, directors, affiliates, employees and agents harmless from
any loss, cost, harm, liability, damage or expense which may be incurred or suffered by Seller (or
any the parties indemnified hereby) arising out of or in connection with any activities of Buyer,
its employees, agents and contractors, on or in connection with the Property. Purchaser shall
restore the Property to its previous condition after the completion of any such investigations or
tests, and shall indemnify and hold Seller, its officers, directors, affiliates, employees and agents
harmless from any damage to the Property as a result of such tests or investigations, including
any contamination thereof by hazardous substances, hazardous materials, petroleum or any
substances regulated under any federal, state or local laws, ordinances, rules, regulations or
requirements relating to environmental matters.
2.7 Zoning. Purchaser will have one hundred fifty (150) days after the Effective Date
of this Contract to perform due diligence (the "Due Diligence Period") for the purpose of
obtaining all final and non -appealable zoning, land use, building plan and development
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incentives (i.e., tax increment financing, tax abatement, tax credits) approvals, consents,
authorizations and permits required to be obtained from or issued or granted by any
governmental, quasi -governmental or administrative bodies, including without limitation from
Seller in its capacity as a municipal body, in order for Purchaser to be able to lawfully and
financially feasibly develop, construct, own, use and operate the Land for Purchaser's intended
use (all of the foregoing hereinafter referred to as the "Governmental Approvals"). Nothing
contained in this Contract shall obligate the Seller, in its capacity as a municipal body, to grant,
approve or issue any Governmental Approval other than pursuant to generally applicable laws,
rules or regulations without regard to the existence of this Contract, and nothing in this Contract
shall be construed as a waiver of the police power of the Seller in its capacity as a municipal
body. If Purchaser has not obtained the Governmental Approvals prior to the expiration of the
Due Diligence Period, then Purchaser may terminate the Contract and receive a refund of the
Earnest Money by providing written notice to Seller on or before the expiration of the Due
Diligence Period. In the absence of such termination notice, the Governmental Approvals shall
be deemed to be satisfactory to Purchaser.
ARTICLE III.
CONDITIONS PRECEDENT TO CLOSING
3.1 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, and
none of Seller's representations and warranties set forth in Section 3.4 shall be untrue or inaccurate.
3.2 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 discretion:
(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.
3.3 Purchaser's Covenants, 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;
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(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 currently identified on the list of
specially designated nationals and blocked persons subject to financial sanctions that is
maintained by the U.S. Treasury Department, Office of Foreign Assets Control and any other
similar list maintained by the Office of Foreign Assets Control (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 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.
(d) Development Covenant.
(1) Subject to the consummation of the purchase and sale transaction
contemplated by this Agreement and subject to delays caused by Force Majeure, Purchaser
hereby covenants and agrees (the "Construction Covenant") to complete (except for interior
tenant improvement work) construction on the Land of an industrial or office building having not
less than one hundred thousand (100,000) square feet of gross floor area, in adherence to the
standards and regulations approved and adopted by Ordinance No. 1087 attached hereto as
Exhibit B (the "Building"), on or before the December 31 next following the second (2nd)
anniversary of the Closing Date (the "Building Construction Deadline"). In the event that the
Purchaser fails to satisfy the Construction Covenant on or before the Building Construction
Deadline, then (i) on the first January 31 following the Building Construction Deadline,
Purchaser shall pay to the City of Riverside, Missouri (the "City"), as a payment in lieu of taxes
concerning the Land and any improvements thereon, the sum of Seventy -Seven Thousand
Dollars ($77,000.00) (a "DC PILOT Payment"), and (ii) in the event that the Purchaser has still
failed to satisfy the Construction Covenant on or before the December 31 next following the
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Building Construction Deadline (the "Second Building Construction Deadline"), then on the first
January 31 following the Second Building Construction Deadline, Purchaser shall pay to the City
a second DC PILOT Payment. In all events, Purchaser shall not be obligated to make more than
two DC PILOT Payments. By way of example, and as an illustration only, in the event the
Closing Date is October 15, 2013, then (i) the Building Construction Deadline would be
December 31, 2015, and thus in the event that the Purchaser fails to satisfy the Construction
Covenant on or before December 31, 2015, the first DC PILOT Payment would be payable to the
City on January 31, 2016; and (ii) the Second Building Construction Deadline would be
December 31, 2016, and thus in the event that the Purchaser had still failed to satisfy the
Construction Covenant on or before December 31, 2016, the second DC PILOT Payment would
be payable to the City on January 31, 2017.
(2) The provisions of the foregoing subsection (1) are subject to the
following: a DC PILOT Payment otherwise payable to the City shall be reduced on a dollar for
dollar basis by the amount equal to the sum of (x) any ad valorem real estate tax payable with
respect to the Land and any improvements thereon during the calendar year in which such DC
PILOT Payment is due, plus (y) any payment in lieu of tax pursuant to the Real Property Tax
Increment Allocation Redevelopment Act, Sections 99.800, et seq., RSMo, payable with respect
to the Land and any improvements thereon during the calendar year in which such DC PILOT Payment is due.
3.4 Sellefs Covenants, Representations and Warranties.
(a) Consents. Seller has obtained all consents and permissions related to the
transactions contemplated by this Contract and all agreements, instruments and documents herein
provided to be executed or caused to be executed by Seller ("Other Agreements") which are
required under any covenant, agreement, encumbrance, law or regulation to which Seller, any
assets of Seller or the Land (or any part thereof) are subject.
(b) Liens. Seller will keep the Land free and clear of all liens, claims and
demands, including mechanic's liens, in connection with work performed on the Land or any
part thereof and materials provided in connection with such work, where such work was
performed or contracted for or such materials were provided or contracted for on or before the
Closing Date, and in the event of the filing of any such lien, Seller shall promptly and with due
diligence (and in all events prior to the earlier of 30 days after the notice of filing of the same or
10 days prior to the commencement of any foreclosure or other enforcement proceeding with
respect thereto) secure the release of the same by bonding or otherwise cause the Title Insurer to
insure over the same under the Title Policy.
(c) Management. To and including the Closing Date the Land will be
managed in accordance with prudent management standards.
(d) Status of Seller. This Contract and the Other Agreements are duly
authorized, executed and delivered by and binding upon Seller; that Seller has the capacity and
authority to enter into this Contract and the Other Agreements to be executed by Seller and to
consummate the transactions herein and therein contemplated, and nothing prohibits or restricts
the right or ability of Seller to close the transactions contemplated herein and in the Other
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Agreements and to carry out the terms hereof and thereof; and that neither this Contract nor any
of the Other Agreements, nor anything provided in or contemplated by this Contract or any of
the Other Agreements, does now or shall hereafter breach, invalidate, cancel, make inoperative
or interfere with, or result in the acceleration of maturity of, any mortgage, contract, agreement,
lease, easement, right or interest affecting or relating to Seller, any assets of Seller or the Land.
(e) Litigation; Condemnation. There are no actions, suits or proceedings
pending, or to the best knowledge of Seller, threatened, before or by any judicial body or any
governmental authority, against or affecting Seller or the Land; and that to the best knowledge of
Seller, there is no existing, proposed or contemplated eminent domain or similar proceeding
which would affect the Land in any way whatsoever.
(f) Lot Split, Tax Parcel and Levee Allocation. Prior to the expiration of the
Feasibility Period, Seller shall complete a lot split as its expense so that the Land is properly
subdivided, is a separate tax parcel, and there is a revised Levee Allocation Agreement in effect
which relates to the Land and which allocates to the Land a proportionate Levee special
assessment based on the acreage of the Land.
ARTICLE IV.
CLOSING
4.1 Closing Date and Time. Provided that all of the conditions of this Agreement
shall have been satisfied, the closing (the "Closing") of the purchase and sale of the Land shall
be conducted within seven (7) days after the completion of the Due Diligence Period at such time
and location as shall be mutually agreeable to Seller and Purchaser; provided, however, that the
Closing shall occur on or before October 15, 2013. The date on which the Closing actually
occurs is referred to herein as the "Closing Date."
4.2 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 to the Permitted Exceptions;
(b) Non -foreign Person Affidavit. Execute and deliver an affidavit in form
and substance reasonably satisfactory to Purchaser confirming that Seller is not a foreign person
or entity within the meaning of Section 1445 of the Internal 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; the Title Policy;
(e) Owner's Title Policy. Deliver or cause the Title Insurer to commit to delivering the Title Policy;
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(0 Tax Certificates. Deliver tax certificates or other written evidence
showing that there are no delinquent taxes, assessments or PILOTS affecting the Land as of the Closing Date;
(g) Other Documents. 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, including without limitation, estoppel
certificates executed and acknowledged by parties to existing easement agreements, and a
closing certificate of Seller dated as of the Closing Date confirming (without exception or
qualification) that (1) Seller is in full compliance with all of its obligations under this Contract,
and (2) all of its representations and warranties of Seller contained in this Contract are true and
correct as of the Closing Date as if made on and as of the Closing Date..
4.3 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) Executed Development Covenant;
(d) 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.
4.4 Closing Costs. Seller shall pay the premium for the Owner's Title Policy
(including deletion of the standard exceptions set forth in Section 3.01), all recording charges for
the Deed, all costs of the Title Policy, all costs of the Survey up to $5,000.00, and any special
charges 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, except subdivision,
legal description, survey and tax lot endorsements shall be borne by Seller. 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.
4.5 Prorations. Prorations shall be made as follows as of 12:01 a.m. on the Closing Date:
(a) 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, "Taxes"), based upon actual days involved.
Seller shall be responsible for all Taxes pertaining to the Land for any period prior to the
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Closing. Seller shall not undertake, participate in, or support as landowner or municipality, the
formation of any TDD, CID or other special district encompassing the Land, alone or with other
property, without the consent of the owner of the Land. Purchaser shall receive credit on the
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 year of the Closing are not available at the Closing, an
estimated, tentative proration of Taxes 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 those 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 tax parcel 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 thereof) 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 thereof) and such
other portions of such tax parcel represent of the total gross surface area of such tax parcel. If all
or part of the Land is located in a tax parcel for the year of Closing which includes property 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 Closing 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. Notwithstanding
the foregoing, the parties anticipate that no ad valorem taxes will be payable for the calendar
year in which Closing occurs due to Seller's status as a municipality and Seller's ownership of
the Land on January 1 of the year in which Closing occurs.
(b) Other Taxes and Assessments. All Taxes to the Closing Date (including
installments due after 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 attributable 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.
(c) 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 Seller 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.
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ARTICLE V.
REMEDIES
5.1 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, deposited the Purchase Price with the Escrow Agent, and is prepared to proceed
with 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 Closing, 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, and the Earnest
Money and any Additional Earnest Money shall be paid over to Purchaser; (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 execute a memorandum of this 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.
5.2 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 retain the Earnest Money and any Additional
Earnest Money as liquidated damages. Seller waives any right to damages.
ARTICLE VI.
MISCELLANEOUS
6.1 Escrow Instructions. Intentionally omitted.
6.2 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.
6.3 Modification. This Agreement can be amended only by written agreement
signed by the parties hereto and by reference made a part hereof.
6.4 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.
6.5 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
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party to be notified, with return receipt requested, or (b) by delivering 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: The City Administrator
City Hall
2950 NW Vivion Road
Riverside, MO 64150
Purchaser: GSBR Associates, LLC
Attention: Irwin Blond
700 W. 47th Street, Suite 1000
Kansas City, Missouri 64112
The 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.
6.6 Brokerage Commissions. Each party represents and warrants that no real estate
brokerage commission fee is payable to any person or entity in connection with the transaction
contemplated hereby, except to Block Real Estate Services, LLC, which will be paid by
Purchaser pursuant to separate agreement, 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 party.
6.7 Time. Time is of the essence in all things pertaining to the performance of this Agreement.
6.8 Survival of Obligations. To the extent necessary to carry out the terms and
provisions hereof, the terms, conditions, warranties, covenants, 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, but shall survive Closing.
6.9 APPLICABLE LAW; VENUE; WAIVER OF JURY 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.
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6.10 Headings. The headings that have been used throughout this Agreement have
been inserted for convenience of reference only and do not constitute 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 similar 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.
6.12 Construction of Agreement. This Agreement shall not be construed more
strictly against one party than against the other merely by virtue 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 the 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.
6.17 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. The Parties acknowledge that it is the intent of Purchaser to transfer
the Project to an entity or entities created for Colony Realty Partners and/or Block Development
Company, or affiliates of either. The Purchaser may assign this Agreement and all rights
hereunder to such entity or entities without restriction, provided that (i) any assignee by
accepting assignment of this Agreement, expressly agrees to defend and indemnify Seller from
any litigation arising out of the assignment; and (ii) written notice of the assignment, including
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the name(s) of the assignee, is provided to Seller at least five (5) business days prior to Closing.
Except as specifically described above, the rights and obligations of this Agreement may not be
assigned by Purchaser without the prior written consent of the Seller, which consent shall not be
unreasonably withheld or conditioned. Any purported assignment of this Agreement in the
absence of the required consent shall be void.
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 herein, the term "legal holiday" means any federal
holiday for which financial institutions or post offices in Riverside, Missouri are generally closed
for observance thereof. As used herein, the term "business day" shall mean a day which is not a
Saturday, Sunday or legal 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 5.01
and.5.02 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.
6.24 Right to Exchange Real Property. Either party, through the use of a qualified
intermediary, may transfer or acquire the Land through a tax free exchange, deferred exchange or
reverse exchange of real property pursuant to Section 1031 of the Internal Revenue Code;
provided, however (i) in no event shall any such exchange, or the exchanging party's inability to
complete any such exchange, impair or otherwise affect the Closing Date, (ii) the non -
exchanging party shall have no obligation or liability to the exchanging party or any other person
or entity in any respect for any matters in connection with any such exchange other than payment
of the Purchase Price in exchange for the conveyance to Purchaser of fee simple title to the Land
by deed subject only to those matters permitted under this Contract, and (iii) the exchanging
party shall indemnify and hold the non -exchanging party harmless from and against any claims,
actions, liability and expense in connection with each such exchange.
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IN WITNESS WHEREOF, this Agreement has been duly executed in multiple
counterparts (each of which is to be deemed an original for all purposes) by the parties hereto on
the respective date appearing below each parry's signature to be effective on the Effective Date
herein specified.
SELLER:
THE CITY OF RIVERSIDE, MISSOURI
By: /s/ Kathleen L. Rose
Name: KATHLEEN L. ROSE
Title: MAYOR
Date:June 20, 2013.
PURCHASER:
GSBR ASSOCIATES, LLC
By: /s/ Irwin E. Blond
Name: Irwin E. Blond
Title: Manager
Date: June 26, 2013.
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 26 day of June, 2013.
ASSURED QUALITY TITLE COMPANY
By: /s/ Don Rodgers
Name: Don Rodgers
Title: Commercial Escrow Officer
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Error! Unknown document property name.
EXHIBIT A
LEGAL DESCRIPTION
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY:
Part of Lots 4 and 5 of the Commissioners Plat of George Roberts Estate, lying between the North right of Way
line of the Chicago Burlington and Quincy Railway Co. and the South right of Way of Missouri State Highway
No. 45, located in Section 6, Township 50, Range 33, also part of the West Half of Section 5, Township 50,
Range 33, lying between the North right of way line to the two Burlington and Quincy Railway Co. and the
South right of Way of Missouri State Highway No. 45, all in Plate County, Missouri, being desoribed as
follows:
Beginning at the point of intersection of the Northeasterly right of way line of said Railroad with the Section
line between Sections 5 and 6, at a point which is North 00 degrees 33 minutes 30 seconds East 2294.22 feet
from the South corner of said Sections 6, being also the Southeast comer of said Lot 5; thence North 65
degrees 20 minutes West along the Northeasterly right of way line of said Railroad,1161.17 feet to a point on
the West line of said Lot 4; thence North 00 degree 40 seconds East and along the West line of said Lot 4,
778.82 feet, more or less, to right of way line of said State Highway No. 45, thence
Southeasterly along said Southwesterly right of way line, being a curve to the right, having a radius of 925.37
feet, an arc distance of 16.3 feet, more or lees, to apolnt 30.00 feet tom the centerline Station 3164+40.98 as
shown on Highway Plans; thence Southeasterly along said Southwesterly right of way line 522.22 feet to a point
30.00 feet from centerline at Station 321.63.2; thence continuing Southeasterly along said Southwesterly right of
way line on a curve to the left having a radius of 1462.70 feet, an arc distance of 266.35 feet to a point 30.0 feet
from Centerline Station 324+24.03; thence continuing Southeasterly along said Southwesterly right of way line
1327.83 feet to a point 30.0 feet centerline Station 337+51.86; thence continuing Southeasterly along the
Southwesterly right of way line of said Highway, being a curve to the right having a radius of 2834.90 feet, an
ard distance of 202.10 feet to a point 30.0 feet from the centerline Station 339+51.86; thence continuing
Soutwesterly along the Southwesterly right of way line of said Highway, 190,0 feet, more or less, to its
intersection with the East line of the West Half of said Section 5; thence South 00 degrees 33 minutes 10
seconds West 1034.44 feet more or less, to a point on the Northeasterly right of way line of said Chicago
Burlington and Quincy Railway Co.; thence North 65 degrees 20 minutes West and along said Northwesterly
right of way line,1436.10 feet to the point of beginning.
EXCEPT, the following described tract:
Beginning at a point on the Section line between said Section 5 and 6, which is North 00 degees 33 minutes 30
seconds East, 2880.26 feet from the Southwest corner of said Section 5; thence South 85 degrees 25 minutes
East 599.76 feet; thence North 15 degrees 16 minutes 17 seconds East 119.34 feet, more or less, to a point in the
Southwesterly right of way line of said State Highway No. 45, thense Northwesterly along the Southwesterly
right of way line of said Highway 656.41 feet; more or less, to a point in the West line of said Section 5; thence
South 00 degrees 33 minutes 30 seconds West and along the West line of said Section 5, 249.96 feet, more or
less, to the point of beginning.
ALSO EXCEPT
That part of the above described tract lying West of the West right of way line of Van DePopulair, being
the same tract conveyed to M.M.B. Company, by Special Warranty Deed filed October 28,1970, as Document .
No.29445, in Book 350 at page 342.
EXHIBIT B
DEVELOPMENT REGULATIONS
See attached Ordinance No. 1087 attached hereto.
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BILL NO. 2011-035 ORDINANCE NO. 1087
AN ORDINANCE AUTHORIZING AND ADOPTING AN AMENDMENT TO THE
PLANNED DEVELOPMENT DISTRICT ADOPTED BY ORDINANCE 2007.108, SUCH
AMENDMENT TO APPLY TO THE BRIARCLIFF HORIZONS SITE AND SHALL BE
KNOWN AS THE BRIARCLIFF HORIZONS PLANNED DEVELOPMENT DISTRICT.
WHEREAS, the property described In Exhibit A attached hereto was rezoned as a part
of a larger tract of property in October of 2007 from "GP-1 - General Planned Industrial District"
to "PO - Planned Development District" and planned development standards governing
development of the property were adopted at that time, all as set forth in Ordinance 2007-108; and
WHEREAS, the City has entered Into a Master Development Agreement with Briarcliff
Realty, LLC ("Briarcliff Realty") to develop the property described in Exhibit A (the "Briarcliff Horizons Site"); and
WHEREAS, in connection with such development, Briarcliff Realty desires to modify
the planned development standards governing development of the Briarcliff Horizons Site and
has submitted an application was submitted to rezone the Briarcliff Horizons Site by modifying
the details contained in the planned development standards approved by the Board of Aldermen
contained in Ordinance 2007-108; and
WHEREAS, at Its meeting on September 22, 2011 the Planning Commission of the City
of Riverside, Missouri conducted a public hearing wherein it reviewed and considered the
request to amend the approved regulations for the Briarcliff Horizons Planned Development
District ("Briarcliff Horizons POD) and such public hearing was continued to October 27, 2011
for further evaluation and consideration; and
WHEREAS, the Planning Commission recommended approval of the rezoning
application on October 27, 2011 to the Board of Aldermen; and
WHEREAS, the Board of Aldermen of the City of Riverside, Missouri at Its regular
meeting of October 4, 2011 opened the public hearing for Briarcliff Horizons PD and
immediately continued it to October 18, 2011, at which time the Board of Aldermen re -opened
the public hearing and continued it to Its regular meeting on November 1, 2011 at which time the
recommendation of the Planning Commission was presented, the public hearing was held and the
Board of Aldermen had an opportunity to consider the matter; and
WHEREAS, the Board of Aldermen find adoption and approval of the Briarcliff
Horizons PD to be in the City's best interest and will promote the public health, safety and welfare;
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF
THE CITY OF RIVERSIDE, MISSOURI, AS FOLLOWS:
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BILL NO. 2011-035 ORDINANCE NO. 1087
Section 1. Approval Of Zoning Amendment. The Board of Aldermen approve the
planned development amendment set forth In Exhibit 8 attached hereto for the Briarcliff
Horizons Site, legally described in Exhibit A attached hereto. Such planned development
amendment shall be known as the Briarcliff Horizons Planned Development District (Briarcliff
Horizons PD). All development occurring on the Briarcliff Horizons Site shall adhere to the
standards described in Exhibit B along with all other provisions set forth in the City Code and
Unified Development Ordinance of the City of Riverside. Approval of the Briarcliff Horizons
PO does not relieve the applicant from following all other applicable codes and laws of the City
of Riverside or other governmental agency, nor does it relieve the applicant from submitting
necessary site plans or applying for all necessary building permits, electrical permits, sign
permits, or occupation licenses required by City Code. The standards set forth in the Briarcliff
Horizons PO shall have precedence where such conditions are more restrictive than those set forth In City Code.
Section 2. Application To Remainder Of Property. The provisions of the Planned
Development District development standards approved and adopted by Ordinance 2007-108 for
the remainder of the development area affected by the PO approved by such ordinance shall
remain In effect for the remainder of such property.
Section 3. Failure To Comply. That failure to comply with any of the conditions or
provisions contained in this ordinance shall constitute a violation of both this ordinance and the
City's Unified Development Ordinance In addition to other penalties which may be contained In the City Code.
Section 4. Severability Clause. The provisions of this ordinance are severable and if
any provision hereof is declared invalid, unconstitutional or unenforceable, such determination
shall not affect the validity of the remainder of this ordinance.
Section 5. Effective Date. This ordinance shall be in full force and effect from and
after the date of Its passage and approval.
BE IT REMEMBERED that the above was read two times by heading only, passed and
approved by a majority of the Board of Aldermen and approved by the Mayor of the City of
Riverside, Missouri, this day of . 2011.
Kathleen L. Rose, Mayor
ATTEST:
Robin Littrell, City Clerk
Approved as to Form:
Nancy Thompson, City Attorney
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Horizons "PD" Regulations
A. Building Lines. There shall be no minimum front and rear setback requirements
for the Planned Development. Building separation shall be a minimum of twenty (20) feet and
separation of buildings will be required to meet minimum separation standards governed by the
adopted building code of the City. Building setbacks shall be set by final development plan and
where applicable final plat.
B. Building Materials and Construction. All buildings and other structures within
Horizons Business Park shall be constructed of attractive exterior sides of high quality materials
including masonry, concrete, glass, and metal (when used in an incidental role). Specific
materials which will be excluded include exposed (i) galvanized metal facades, (ii)
nondecorative cinder or concrete block, and (iii) double T concrete panels. Exterior mechanical
or electrical equipment, including, but not limited to, HVAC equipment shall be so placed or
screened that the predominant design lines of the building or structure continue without visual
distraction or interruption. If the function of the building or structure dictates placement of such
equipment in such a manner or location that the building exterior walls themselves are unable to
screen the equipment from view of adjacent existing or proposed streets or highways, they must
be separately screened using materials compatible with the approved building materials with use
of a an appropriately designed parapet wall and the height of such screening shall be equal to the
height of the equipment to be screened; or with acceptable landscaping. Accessory buildings,
enclosures, appurtenant structures to, or extrusions from, any building or structure shall be of
similar or compatible materials, design and construction.
C. Building Material Colors. Color of materials used on the construction of all
buildings, enclosures, and appurtenant structures shall be consistent throughout the entire
development and will present a predominantly warm earth tone appearance. Exact color palette
and materials will be approved by final development plan.
D. Parking. Employee, customer, owner or tenant parking shall be the responsibility
of the property owners and they shall provide all necessary parking facilities entirely on their
property. Parking on private or public streets or highways within the subject property is
expressly prohibited. All parking areas and drives and access shall be paved with an impervious
surface equal to asphalt or concrete and maintained by the owner in a well -kept condition. Each
parking space provided shall be designated by lines painted on the paved surfaces and shall be
adequate in area, generally spaces will be sized nine feet wide by eighteen feet long (9' x
18')when a curb abuts and nine feet wide by twenty feet long (9' by 20') when not abutting a curb.
For the office portion of the Planned Development, it shall be the general standard that no
parking spaces, parking aisles or roadways, except the access way, shall be permitted
within the front ten (10) feet of the front setback. If parking spaces are provided in front
of the building a landscape buffer shall be provided as described in the landscaping
section of this regulation.
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Adequate off-street parking shall be provided by each Owner and tenant for its
customers, employees and visitors; and the parking ratios will be provided in the preliminary
development plan and will be reviewed and approved by the City.
E. Off -Street Loading. Provision for handling all truck service must be totally
within the building site. Buildings adjacent to the right-of-way of Horizons Parkway and 1-635
shall not have loading docks visible for these right-of-ways. Docks and loading areas facing
non -industrial uses within the development shall be screened in accordance with the landscape
provisions described in the PD regulations. All loading shall be paved with an impervious
surface equal to asphalt or concrete. All side and rear loading service areas shall be properly
screened from view from all existing or proposed streets, roads, or highways by walls, earth berms, and/or plant material.
F. Outside Storage and Equipment. Outside storage areas are not permitted within
the Planned Development unless approved via a Special Use Permit. This regulation does not
apply to the customary trailer parking activities associated with tenants inside the Planned Development.
For the office portion of the Planned Development, facilities for storage of waste and
rubbish shall be maintained within a screened area in closed metal containers of type approved.
Each Owner and tenant shall keep its premises, buildings and improvements and
appurtenances in a safe, sightly, clean, neat and wholesome condition, and shall comply in all
respects with all governmental, health and police requirements. Each Owner and tenant shall
remove, at its own expense, any rubbish or trash of any character which may accumulate on its
property and shall keep unlandscaped and landscaped areas neat and well -maintained. Rubbish
and trash shall not be disposed of on the premises by burning in open fires or incinerators. All
rubbish and trash containers shall be properly screened by an appropriate enclosure.
G. Permanent Park Signage. No sign shall be erected, placed or otherwise installed
upon a Building Site or affixed to a Building, structure, or other improvement erected on a
Building Site until the plans for such sign shall have been approved by the City. Flashing or
moving signs shall be prohibited. Product or service replicas or models shall be prohibited,
unless allowed per the Unified Development Ordinance or the location, size, design and color of
all signs must be in keeping with the character of the Park.
1. Park Monument Signs. Park Monument Signs shall be utilized to identity the
development as whole and not individual businesses and shall only be permitted to the Master
Developer of the Planned Development. Three Park Monument Signs shall be permitted, each
with a maximum sign face of two -hundred fifty (250) sq. ft. Park Monument Signs are allowable in the public right-of-way.
2. Park Entry Signs. Park Entry Signs shall be utilized to identify main entrances of
the development and not individual businesses and shall be permitted to the Master Developer of
the Planned Development. Three Park Entry Signs shall be permitted, each with a maximum
sign face of thirty-six (36) sq. ft. Park Entry signs are allowable in the public right-of-way.
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3. Park Directional Signs. Park Directional Signs shall be utilized to identify
buildings address, name of business, and in appropriate cases logos of the company occupying.
Each building shall be permitted to have a Park Directional Sign, each with a maximum sign face of twenty (20) sq. ft.
4. Building Facade Signs. Building Facade Signs shall be attached to the building to
identify individual businesses and shall be approved as a component of the Final Development Plan.
Industrial Buildings - Each individual tenant may have a maximum of two (2) walls signs
per building, with a maximum of one (1) sign per side of building. The maximum sign face per
sign shall be one -hundred twenty (120) square feet, except for a building with a single tenant, the
maximum sign face per sign shall be one -hundred fifty (150) square feet. For signs with one line
of copy, the maximum letter height shall be sixty (60) inches per letter. For signs with two lines
of copy, the maximum letter height shall be forty-eight (48) inches per letter.
Office Buildings- Each building may have a maximum of two (2) building facade signs. The
total maximum sign face per building shall be eighty (80) square feet, with no sign being larger
than fifty (50) square feet. For signs with one line of copy, the maximum letter height shall be
sixty (60) inches per letter. For signs with two lines of copy, the maximum letter height shall be
forty-eight (48) inches per letter.
5. For Sale or Lease Signs. A temporary wood, metal, or plastic sign may be erected
on a developed building site to offer the property for sale or lease. One (1) such sign, having a
maximum area of thirty (30) square feet for buildings less than 50,000 square feet, thirty-five
(35) square feet for buildings more than 50,000 square feet but less than 150,000 square feet, and
sixty (60) square feet for buildings more than 150,000 square feet.
6. Temporary Signs. Paper signs, stickers, transfers, signs printed or affixed to, or
visible through the windows, doors or exterior walls of a building or other signs of a temporary
character or purpose, regardless of the composition of the sign or the materials used therefore,
are expressly prohibited.
7. Construction Signs. A temporary wood, metal, or plastic sign will be allowed
during the construction of a building project. Such signs may be either single or double faced
with each face having a maximum area of fifty square feet for building sites, less than three (3)
acres and eighty square feet for building sites of three (3) acres or more. All signs permitted
under this provision will be removed immediately upon issuance of an occupancy permit for any
building constructed on the site.
H. Landscaping. All open areas on any building site not occupied by buildings,
storage, parking, access roads and loading shall be suitably graded with a slope not to exceed 3:1
to allow for mowing, and drainage and shall be maintained in lawn, trees, and/or shrubs,
including lawn irrigation in all such areas. It is the intent of these regulations to provide a park-
like setting for the buildings, as well as to screen objectionable areas.
Office Park: Building sites shall be landscaped in accordance with the general
landscaping plan for the Park. All lots are required to provide a minimum landscape
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buffer of ten feet (10') along public right-of-way, utilizing deciduous shade and
ornamental trees, evergreen trees and shrubs.
Building Site (Pervious Area): Building site shall include a minimum of one (1)
two and one-half (2-1/2) inch caliper deciduous or evergreen tree (8' in height)
for each two thousand five hundred (2,500) square feet of pervious I green space
area, to be planted in side yard, front yard or rear of building at common area.
Substitutions are allowed for Pervious area calculation only based upon the
following:
1 Shade Tree (2-1/2" cal.) or Evergreen Tree (8' ht) = 20 shrubs 3' in
height or 2 ornamental trees 6' in height
Building Frontage at Street: 1 Shade Tree (2-1/2" cal.) or Evergreen Tree (8' ht)
for every 40 feet of street frontage to be planted along the street right-of-way.
Common Area side or Building Rear: 1 Shade Tree (2-1/2" cal.) or Evergreen
Tree (8' ht) for every 40 feet of frontage on common area such as, lakes and canals.
Parking Lots: Landscaped islands should be added at the ends of all parking rows
and should be bermed and planted with either sod or landscaping.
• 1 Shade Tree (2-1/2" cal.) or Evergreen Tree (8' ht) for every 200
square foot of parking lot islands.
• Fifty percent (50%) of the parking lot should be screened from
view with shrubs 3' in height.
Building Foundation: Forty percent 40% of the building foundation should be
landscape with ground covers, shrubs and ornamental trees.
Industrial Park: Building sites shall be landscaped in accordance with the general
landscaping for the Park:
Building Frontage at Street: 1 Shade Tree (21/2" cal.) or Evergreen Tree (8' ht)
for every 40 feet of street frontage to be planted along the street right -of way.
Common Area side or Building Rear: 1 Shade Tree (2-1/2"cal.) or Evergreen
Tree (8' ht) for every 50 feet of frontage on common area such as, lakes and
canals.
Parking Lots: Landscaped islands should be added at the ends of all parking
rows and should be bermed and planted with either sod or landscaping.
• 1 Shade Tree (2-1/2" cal.) or Evergreen Tree (8' ht) for every 200
square foot of parking lot islands.
• Parking lot screening is encouraged where green space exists.
Screening should be shrubs 3' in height not exceed 20% of the total
frontage.
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Building Foundation: Building foundations should be landscaped at building
entries and sides with groundcovers, shrubs and omamental trees.
The landscape development, having been installed, shall be maintained by Owner in a neat and
adequate manner, which shall include the mowing of lawns, trimming of hedges, other such
maintenance and watering including the installation of lawn irrigation on all sites. The
landscaping shall be implemented and completed within six (6) months after certificate of
occupancy of the building has been issued.
I. Exterior Lighting. Lighting of buildings and public areas, such as parking, plazas,
landscaping, fountains, sculptures, and walkways is required. All site lighting will be
accomplished by using concealed source fixtures with a minimum average illumination in
accordance with the requirements of the City of Riverside, Missouri. All exterior lighting will be
metal halide or white in color and constant in nature, specifically excluding traveling, flashing or
intermittent illumination of any kind and must be so arranged or shielded as to avoid glare or
reflection onto any adjacent existing or proposed streets, highways, ponds or building sites. Pole
mounted fixtures will have a maximum pole height of thirty-two (32) feet, including the base.
J. Underground Utilities, Pipes. Etc. No pipe, conduit, cable, line or the like for
water, gas, sewage, drainage, steam, electricity, or any other energy or service shall be installed
or maintained upon any building site (outside of any building) above the surface of the ground.
K. Fencing. All fencing on any building site shall be compatible with the building
materials used in the construction of the major structure on said building site. All metal fencing
shall be wrought iron like and shall be screened by landscaping from view from existing or
proposed streets, highways and contiguous building sites.
L. Animals. No livestock, poultry or other animals shall be kept on any part of the
Park.
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