HomeMy WebLinkAbout1251 Cross Access Easement Agreement Horizons East First Plat BILL NO. 2013 -074 ORDINANCE NO. IaS
AN ORDINANCE AUTHORIZING THE EXECUTION OF A CROSS ACCESS EASEMENT
AGREEMENT BY AND BETWEEN THE CITY OF RIVERSIDE, MISSOURI AND THE
INDUSTRIAL DEVELOPMENT AUTHORITY OF THE CITY OF RIVERSIDE, MISSOURI FOR
THE BENEFIT OF LOTS 5 AND 6 OF RIVERSIDE HORIZONS EAST FIRST PLAT
WHEREAS, the City of Riverside, Missouri (the "City ") owns, or shall own, in fee simple
that certain real property legally described as Lot 5, Riverside Horizons East First Plat, a
subdivision in Riverside, Platte County, Missouri ( "Lot 5 "); and
WHEREAS, the Industrial Development Authority of the City of Riverside, Missouri (the
"IDA ") owns in fee simple that certain real property legally described as Lot 6, Riverside
Horizons East First Plat, a subdivision in Riverside, Platte County, Missouri ( "Lot 6 "); and
WHEREAS, the City and the IDA desire mutual access on, over, and across portions of
Lot 5 and Lot 6.
NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE
CITY OF RIVERSIDE, MISSOURI, AS FOLLOWS:
Section 1. EASEMENT APPROVED. The Cross Access Easement Agreement
attached hereto and incorporated herein as Exhibit A (the "Easement ") is hereby approved in
order to provide for mutual access for the benefit of Lot 5 and Lot 6, to allow for pedestrian and
vehicular ingress and egress in, to, upon, over and across portions of Lot 5 and Lot 6, and to set
forth provisions for repair, maintenance, and replacement of the Access Drive (as such term is
defined in the Easement).
Section 2. RECORDING OF EASEMENT. The fully- executed Easement shall be
recorded on the land records of Platte County, Missouri subsequent to the recording of that
certain Partial Release from UMB Bank, N.A. affecting Lot 5, dated on or about the date hereof.
Section 3. AUTHORITY GRANTED. The City hereby authorizes the Mayor of the
City to execute and deliver the Easement, consistent with the terms of this Ordinance and
Missouri law, and hereby authorizes the Mayor, the City Administrator, Special Counsel to the
City and other appropriate City officials to take any and all actions as may be deemed
necessary or convenient to carry out and comply with the intent of this Ordinance and to
execute and deliver for and on behalf of the City all certificates, instruments, agreements and
other documents, as may be necessary or convenient to perform all matters herein authorized.
Section 4. EFFECTIVE DATE. This Ordinance shall be in full force and effect from
and after its passage and approval.
WA 4525466.1
BE IT REMEMBERED that the above was read two times by heading only, PASSED AND
APPROVED by a majority of be Board of Aldermen and APPROVED by the Mayor of the City
of Riverside, Missouri, this�1ay of September, 2013.
/
" .'AA :S
Kathleen L. Rose, Mayor
ATTEST:.,'
Robin Littrell, C ,y Clerk
Approved as to form:
Spe ce ane Britt & Browne LLP
S. -cial •unsel to the City
by .• - :ednar
2 WA 4525466.1
EXHIBIT A
CROSS ACCESS EASEMENT AGREEMENT
THIS CROSS ACCESS EASEMENT AGREEMENT (this "Agreement ") is made this
23rd day of September, 2013, by and between the City of Riverside, Missouri ( "City ") and the
Industrial Development Authority of the City of Riverside, Missouri ( "IDA ") each having
an address of 2950 NW Vivion Road, Riverside, Missouri 64150 as both Grantor and Grantee of
the easements and rights described herein.
RECITALS:
A. IDA is the owner in fee simple of certain real property now legally described as Lot
6 of Riverside Horizons East First Plat ( "Lot 6 "), attached hereto as Exhibit B.
B. City is the owner in fee simple of certain real property now legally described as Lot
5 of Riverside Horizons East First Plat ( "Lot 5 "), attached hereto as Exhibit A.
C. IDA and City desire to enter into this Agreement in order to provide for mutual
access for the benefit of Lot 5 and Lot 6 in accordance with the terms and provisions set forth in this
Agreement with respect to Lots 5 and 6, Riverside Horizons East First Plat (the "Plat ").
D. Lot 5 and Lot 6 may be collectively referred to herein as the "Lots ", each owner of a
Lot may be referred to as an "Owner" or a "Lot Owner" and the owners of the Lots may be
collectively referred to herein as the "Owners" or the "Lot Owners ".
E. In connection with the Lot 5 Improvements, the Owner of Lot 5 will be paving not
only a portion of Lot 5 as legally described on Exhibit A (the "Lot 5 Access Drive Easement
Area ") but also a portion of the Lot 6 as legally described on Exhibit B (the "Lot 6 Access Drive
Easement Area "), and the Owner of Lot 5 and its invitees will be using the Lot 6 Access Drive
Easement Area for maneuvering of trucks as they enter the parking area of Lot 5.
AGREEMENT:
NOW, THEREFORE, in consideration of the recitals, the covenants and agreements
contained herein, and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, IDA and City grants as follows:
Section 1. Recitals. The recitals set forth above are true and correct and are
incorporated herein by reference.
Section 2. Grant of Access Easements.
(a) City as the Owner of Lot 5, hereby grants, declares and establishes to and for the
benefit of IDA its successors and assigns, as an appurtenance to Lot 6, a perpetual, non - exclusive
right and easement for pedestrian and vehicular ingress and egress in, to, upon, over and across a
portion of Lot 5 as legally described on Exhibit A (the "Lot 5 Access Drive Easement Area "), to
have and to hold such easement unto IDA, its successors and assigns, subject, however, to the
terms of this Agreement.
3 WA 4525466.1
(b) IDA, as the Owner of Lot 6, hereby grants, declares and establishes to and for the
benefit of City, its successors and assigns, as an appurtenance to Lot 5, a perpetual, non-
exclusive right and easement for pedestrian and vehicular ingress and egress in, to, upon, over
and across a portion of the Lot 6 as legally described on Exhibit B (the "Lot 6 Access Drive
Easement Area "), to have and to hold such easement unto City, its successors and assigns,
subject, however, to the terms of this Agreement. The Lot 5 Access Drive Easement Area and
the Lot 6 Access Drive Easement Area will be collectively referred to herein as the "Access
Drive" or the "Access Drive Easement Areas".
(c) IDA, as the owner of Lot 6 and City, as the owner of Lot 5, hereby grants,
declares and establishes to and for the benefit of City and IDA, and their successors and assigns,
for the benefit of each of Lot 5 and Lot 6 and burdening each of Lot 5 and Lot 6 perpetual, non-
exclusive rights of access for vehicular and pedestrian traffic across the Lots over only those the
portions of Lots 5 and 6 that are designed and constructed for pedestrian and vehicular passage
way and are generally open for such usage to allow access to Lot 5 and Lot 6 at those points
which are from time to time open for pedestrian and vehicular access, ingress and egress between
and across the Lots. No parking easements or rights are granted by this Agreement. No access,
ingress or egress rights to any building or other improvements or structure constructed on a Lot
is granted hereby.
(d) The Owner of each of Lot 5 and /or Lot 6, may modify, restrict, alter or change
any driveways providing access, ingress or egress on, over or across Lot 5 and Lot 6 without first
obtaining the prior written consent of the owner of the other tract, provided that nothing shall
allow either Owner of Lot 5 or Lot 6 to alter their respective portions of the Access Drive
without the consent of the other.
(e) The intent of this Section 2 is to allow the free vehicular and pedestrian access
over and across the Access Drive from 41 and 43` Street (as shown on the Plat) to and from Lot
5 and Lot 6. Accordingly, the Owners agree that no building, wall or other structural barrier of
any kind may be located upon the Access Drive other than during periods of maintenance, repair
or replacement. The Owners shall use best efforts to prevent vehicles or equipment to park or
stand within the Access Drive.
(0 Each Owner reserves the non - exclusive right to use such portions of the Access
Drive as are located on such Owner's property for any purpose not inconsistent with the rights
granted to the other Owners hereunder, including but not limited to the right to install
subterranean utilities within the Access Drive. Each Owner shall provide fifteen (15) days
advanced written notice to the non - installing Owner(s) about the intent of Owner to install
subterranean utilities. Further, all such non - exclusive use of the Access Drive shall be done in
such a manner as to limit and minimize interference with the use of the Access Drive by the non -
installing Owner(s), and further the Owner performing any such work shall be responsible for all
actual direct and indirect costs, expenses and losses associated with said installations, including
but not limited to non - installing Owner's utility interruptions and landscaping disturbances, and
further any damage to any non - installing Owner's property shall be promptly repaired at the sole
cost and expense of the Owner performing any such work.
4 WA 4525466.1
Section 3. Grant of Access Easements for Construction. Each Owner hereby grants
to the other Owner (the "Constructing Owner ") an easement for access to the Access Drive Area
on its Lot for purposes of constructing, developing, paving, installing and maintaining the Access
Drive prior to buildings being constructed on both Lots, it being the intent of the Owners that the
Constructing Owner may construct, develop, pave, install and maintain the Access Drive on its
Lot and in the Access Drive Easement Area on the adjacent Lot (an "Adjacent Easement Area ")
when such Constructing Owner will have the need to utilize the Access Drive Easement Areas
but such Access Drive has not been constructed or installed by the Owner of the adjacent Lot
(the "Adjacent Owner ") on the Adjacent Easement Area. In the event that a Constructing Owner
constructs, develops, paves, installs or maintains the Access Drive in the Adjacent Easement
Area, the Adjacent Owner agrees to reimburse the Constructing Owner for the costs and
expenses incurred by the Constructing Owner for constructing, developing, paving, installing and
maintaining the Access Drive in the Adjacent Easement Area (including all expenses incurred
for labor (including the reasonable costs of salaries and other costs or fringe benefits of persons
actually employed by the Constructing Owner to perform such work), services, equipment,
supplies and materials used in performing such work), in the case of such construction on the Lot
5 Access Drive Easement Area, upon any sale or other transfer of Lot 5 and in the case of such
construction on the Lot 6 Access Drive Easement Area, upon any sale or other transfer of Lot 6
by IDA to a third party other than City or Horizons Industrial IV, LLC (an intended third party
beneficiary of this Agreement), or, if IDA first transfers Lot 6 to the City, upon any sale or other
transfer of Lot 6 by City to a third party other than Horizons Industrial IV, LLC, and such costs
and expenses, and any and all other fees and other costs recoverable by the paying Owner
hereunder in connection therewith, shall be charged upon the Adjacent Owner's Lot and shall be
secured by a lien upon such Lot in favor of the Constructing Owner, and upon any such sale or
other transfer, the Constructing Owner may bring an action at law against the Adjacent Owner to
enforce such personal obligation to reimburse the Constructing Owner for such costs and
expenses, and such other fees and costs (including interest from the date of such sale or other
transfer at the lesser of (a) fifteen percent (15 %) per annum, and (b) the maximum rate of interest
allowed under the laws of the State of Missouri), or to foreclose the lien against such Lot.
Section 4. Damage to and Maintenance of Access Drive. Any damage to the Access
Drive caused by a Lot Owner or its agents, employees, servants or invitees shall be repaired at
the cost of such Lot Owner.
(a) Except as set forth in the first sentence of this Section 4, the Owner of the Lot 5
Access Drive Easement Area shall be responsible for all maintenance, repair and replacement of
the Lot 5 Access Drive Easement Area. Except as set forth in the first sentence of this Section 4,
the Owner of the Lot 6 Access Drive Easement Area shall be responsible for all maintenance,
repair and replacement of the Lot 2 Access Drive Easement Area.
(b) Each Owner shall maintain its respective portion of the Access Drive at all times
in good and clean condition and repair in a quality and condition comparable with similar
commercial developments in Platte or Clay County, Missouri. Such maintenance
( "Maintenance ") shall include, without limitation, the following:
(i) Maintaining, repairing and resurfacing, when necessary, all paved surfaces
of the respective Access Drive Easement Areas in a level, smooth and evenly covered
5 WA 4525466.1
condition with the type of surfacing material originally installed or such substitute as
shall in all respects be equal or superior in quality, use and durability; and restriping,
when necessary.
(ii) Removing all snow, papers, debris, filth and refuse and sweeping the area
to the extent reasonably necessary to keep the Access Drive Easement Area in a clean
and orderly condition.
(iii) Maintaining, repairing and replacing, when necessary, all respective
Access Drive Easement Area traffic directional signs, markers and lines.
(iv) Operating, maintaining, repairing and replacing, when necessary, such
artificial lighting facilities as shall be reasonably required along the respective Access
Drive Easement Area.
(v) Performing itself or contracting with a third party or parties to perform any
of the services described herein.
(c) During such time as a building has been constructed on only one of the Lots and
only one Owner is using the Access Drive Easement Areas, the Owner of such developed Lot
utilizing the Access Drive Easement Areas shall pay all costs of Maintenance whether on the
Access Drive located on its Lot or on the portion of the Access Drive located on the adjacent
Lot. Once a building is constructed on both Lots, all costs of maintenance and repair shall be as
set out above in Section 4(a).
Section 5. Right to Maintain the Access Drive. In the event any Owner fails to
maintain the Access Drive Easement Area on its Lot (the "Defaulting Owner ") in accordance
with this Agreement, any other Owner may, upon thirty (30) days written notice to the
Defaulting Owner, repair or maintain the Defaulting Owner's Access Drive Easement Area.
Anything to the contrary in this Agreement notwithstanding, in the event that an emergency
condition should exist because of the failure of a Defaulting Owner to perform any of its
obligations in accordance with this Agreement, any other Owner may immediately repair such
Owner's Access Drive Easement Area. For the purposes of the preceding sentence, the phrase
"emergency condition" shall mean any condition constituting an immediate risk of injury to
person or serious damage to property. In the event an Owner repairs the Defaulting Owner's
Access Drive Easement Area, the Defaulting Owner, pursuant to this section shall, within thirty
(30) days after being invoiced therefore, reimburse the paying Owner for the cost of the
Defaulting Owner's Access Drive Maintenance costs incurred by the paying Owner in the repair
of the Defaulting Owner's Access Drive Easement Area, including all expenses incurred for
labor (including the reasonable costs of salaries and other costs or fringe benefits of persons
actually employed by the paying Owner to perform such work), services, equipment, supplies
and materials used in performing such obligations. In the event that the Defaulting Owner fails
to reimburse the paying Owner for such cost within such period of thirty (30) days, then such
costs, together with interest from the date of delinquency at the lesser of (a) fifteen percent
(15 %) per annum, and (b) the maximum rate of interest allowed under the laws of the State of
6 WA 4525466.1
Missouri, and any and all other fees and other costs recoverable by the paying Owner hereunder
in connection therewith, shall be a charge upon the Lot of the Defaulting Owner and shall be
secured by a lien upon such Lot in favor of the paying Owner, and the paying Owner may bring
an action at law against the Defaulting Owner to enforce such personal obligation to reimburse
the paying Owner for such costs, interest, and other fees and costs, or to foreclose the lien against
such Lot.
Section 6. Insurance. Each Owner shall obtain liability insurance to protect itself
from the claims of other parties with regard to the use of the Access Drive in amounts deemed
reasonable to protect themselves, and no Owner shall be obligated to include any other party as a
named insured in such policies. Each Owner ( "Indemnifying Party ") shall indemnify the other
Owners ( "Indemnified Party ") for all costs, expenses and damages sustained by the Indemnified
Party as a result of the Indemnifying Party's failure to meet the Indemnifying Party's obligations
under this Agreement.
Section 7. Attorneys' Fees and Costs. If any legal action or other proceeding is
brought for the enforcement of this Agreement, or because of an alleged dispute, breach or
default in connection with any of the provisions of the Agreement, the prevailing party or parties
shall be entitled to recover reasonable paralegal and attorneys' fees and other costs incurred in
that action or proceeding, including those related to appeals in addition to any other relief to
which it or they may be entitled.
Section 8. Private Agreement. This Agreement does not and shall not be construed
to grant any rights to the public in general.
Section 9. Enforcement. Each party agrees to use all reasonable efforts to enforce
the easements, rights and restrictions herein against its tenants, customers, licensees, guests and
invitees, as applicable.
Section 10. Binding Effect. The easements, rights and restrictions granted herein shall
be appurtenant to and shall run with Lot 5 and Lot 6, as applicable, and shall be binding upon City
and the IDA and their respective successors and assigns. Such easements, rights and restrictions
shall inure to the benefit of City and IDA, as applicable, and its respective tenants, customers,
invitees, licensees, successors and assigns.
Section 11. Notices. All notices, demands and requests required or permitted to be given
under this Agreement must be in writing and shall be deemed to have been given as of the date such
notice is: (i) delivered to the party intended, (ii) delivered to the then designated address of the party
intended, or (iii) rejected at the then designated address of the party intended, provided such notice
was sent prepaid certified mail, return receipt requested or by overnight courier providing for
delivery against receipt. The initial addresses of the parties shall be:
7 WA 4525466.1
If to IDA: The Industrial Development Authority of the City of Riverside,
Missouri
2950 NW Vivion Road
Riverside, Missouri 64150
If to City: The City of Riverside, Missouri
2950 NW Vivion Road
Riverside, Missouri 64150
Section 12. Counterparts. This Agreement may be executed in multiple, separate
counterparts.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by authority duly
given, as of the date first written above.
The Industrial Development Authority of the
City of Riverside, Missouri
By:
Pamela Darata, Vice President
ATTEST:
Sarah Wagner, Secretary
The City of Riverside, Missouri
By:
Kathleen L. Rose, Mayor
ATTEST:
Robin Littrell, City Clerk
8 WA 4525466.1
STATE OF MISSOURI )
ss
COUNTY OF PLATTE )
On this day of September, 2013, before me appeared Pamela Darata, to me
personally known, who, being by me duly sworn, did say that she is the Vice President of the
Industrial Development Authority of the City of Riverside, Missouri and that said instrument was
signed and sealed on behalf of said Authority, and said officer acknowledges said instrument to
be executed for the purposes therein stated and as the free act and deed of said Industrial
Development Authority of the City of Riverside, Missouri.
Notary Public
My commission expires:
STATE OF MISSOURI )
) ss
COUNTY OF PLATTE )
ON THIS day of September, 2013, before me 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 affixed to the foregoing instrument is the seal of said
municipality, and that instrument was signed and sealed in behalf of said municipality by free act
and deed of said municipality.
Notary Public
My commission expires:
9 WA 4525466.1
Exhibit A: Lot 5
Exhibit A
Acces Easement
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RIVERSIDE HORIZONS EAST FIRST PLAT , ,
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A part of Lot 5, RIVERSIDE HORIZONS EAST FIRST PLAT, a subdivision in the City of Riverside,
Platte County, Missouri, described as follows:
The Southeast 45.00 feet of said Lot 5, containing 34,872 square feet, or 0.801 acres, more or less.
0 Renaissance Infrastructure
Consulting (MC)
11490 Strang Line Road 1 tam, Kansas 66215 1
(913) 317-9500 1 www•teninfrastructure.com
1 0 WA 4525466.1
Exhibit B: Lot 6
Exhibit B
Access
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LOC6 A _ /
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65' A/E
LOT 6
69 .0 j RIVERSIDE HORIZONS EAST FIRST PLAT
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A part of Lot 6, RIVERSIDE HORIZONS EAST FIRST PLAT, a subdivision in the City of Riverside,
Platt: County, Missouri, described as follows:
The Northwest 65.00 feet of said Lot 6, containing 56,666 square feet, or 1.301 aces, more or less.
t4 Renaissance Infrastructure
Consulting (R°I °C)
11490 Strang Line Road I Lenora, Kamm 662151
(913) 317.9500 1 www•reninfamumue•mm
11 WA 4525466.1