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HomeMy WebLinkAbout1361 Infrastructure Development Agreement Related to BABRA, LLC BILL NO. 2014-094 ORDINANCE NO. /36 AN ORDINANCE AUTHORIZING THE CITY OF RIVERSIDE MISSOURI TO ENTER INTO AN INFRASTRUCTURE DEVELOPMENT AGREEMENT RELATED TO THE BABRA, LLC PROJECT. WHEREAS, the City has been working to provide for the efficient and orderly construction, operation and management of retail/commercial/industrial developments in the City of Riverside to further its objectives of industrial and economic development of the City for the benefit of the citizens of the City; and WHEREAS, the City has determined that the development the Riverside Horizons Area fulfills a public purpose and will further the growth of the City, 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, and otherwise be in the best interests of the City by furthering the health, safety, and welfare of its residents and taxpayers; and WHEREAS, the City understands that street improvement infrastructure ("Infrastructure') will be necessary to accommodate the BABRA, LLC, industrial warehousing and distribution facility ("BABRA") project, the site plan of which is attached hereto and incorporated herein as Exhibit A; and WHEREAS, in order to provide for orderly design and construction of the Infrastructure and to set forth the responsibilities for payment of the costs associated with such construction, the City wishes to approve the Infrastructure Improvement Agreement attached hereto and incorporated herein as Exhibit B ("Infrastructure Improvement Agreement"). 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. It is in the best interest of the City, in order to further the objectives of industrial and economic development of the City to approve the Infrastructure design and construction process and to approve the Infrastructure Improvement Agreement in substantially the form attached hereto and incorporated herein as Exhibit B. Section 2. APPROVAL OF INFRASTRUCTURE SPECIFICATIONS. The specifications for the construction of the Infrastructure shall be prepared pursuant to the process established in the Infrastructure Improvement Agreement and shall be subject to final City review and approved. Section 3. AUTHORITY GRANTED. The City is hereby authorized to execute and deliver the Infrastructure Improvement Agreement with such changes therein as are approved by the Mayor, the City Administrator, Special Counsel to the City and other appropriate City officials, such officials' signatures thereon being conclusive evidence of their approval thereof. The City shall, and the officials, agents and employees of the City are hereby authorized to, take such further action, and execute such other documents, certificates and instruments as may be necessary or desirable to carry out and comply with the intent of this Ordinance, specifically WA 6278622.1 including any such actions to be taken by the City which are necessary or appropriate to accommodate the construction of the Infrastructure. Section 4. EFFECTIVE DATE. This Ordinance shall be in full force and effect from and after 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, this4�'day of November, 2014. Ka leen L. Rose, Mayor :ATTESTS • � . Robin'Littrell,'Cit C,I'erh Approved as to form: SpenWouns'41 riff & Browne LLP Specialto theCity by Joe 2 WA 6278622.1 EXHIBIT A BABRA SITE PLAN 3 WA 6278622.1 EXHIBIT B INFRASTRUCTURE IMPROVEMENT AGREEMENT 4 WA 62786211 INFRASTRUCTURE IMPROVEMENT AGREEMENT THIS INFRASTRUCTURE IMPROVEMENT AGREEMENT (this "Agreement") is made and entered into this day of , 2014, by and between the CITY OF RIVERSIDE, MISSOURI, a fourth-class city and political subdivision duly organized and existing under the Constitution and laws of the State of Missouri ("City"), and BABRA, LLC, a Missouri limited liability company(`BABRA"). RECITALS WHEREAS, DB Land Holdings, L.L.C., a Missouri limited liability company ("DB"), owns all of Lot I of RIVERSIDE LOGISTICS CENTRE, a subdivision in the City of Riverside, Platte County, Missouri, according to the recorded plat thereof(the"Site"); WHEREAS, BABRA desires to: 1) acquire the Site from DB, 2) transfer the Site to, and lease the Site from, the City by way of a Chapter 100 transaction, and 3) construct an approximately 245,343 square foot industrial warehousing and distribution facility on the Site in accordance with the development plans submitted by BABRA to the City; WHEREAS, in order for the Site to be so developed, certain public infrastructure improvements to serve the Site and surrounding area must be constructed and/or installed, including the design, construction, and construction observation of Mattox Road as generally set forth on Exhibit A (the "Street Improvements"); WHEREAS, the Street Improvements are intended to be connected to the streets owned and maintained by the City and are subject to the City's acceptance; WHEREAS, the Missouri Department of Economic Development ("DED") has previously awarded a grant for public infrastructure in the City of Riverside, Missouri in the amount of $1,750,000.00 through its Community Development Block Grant Program ("CDBG") on such terms as are set forth on the CDBG award attached hereto as Exhibit B (the "CDBG Award") and the City has obtained approval from the DED to apply a portion of such award towards allowable costs related to the construction of the Street Improvements (such funds allocated to the Street Improvements, the "CDBG Funds"); WHEREAS, with the exception of the City's obligation to administer the CDBG Funds in accordance with applicable federal and Missouri law, the City shall have no obligation to provide the Street Improvements or other public infrastructure to benefit the Site and surrounding areas except as provided herein; WHEREAS, based on the project design and construction specifications, the anticipated cost of completing the Street Improvements is$ WHEREAS, except to the extent the CDBG Funds are available to use for allowable costs related to the construction of the Street Improvements, BABRA shall be solely responsible for payment of the cost of the Street Improvements out of its own funds(the"Private Funds"); and WHEREAS, BABRA and the City desire to set forth terms regarding the beneficial and orderly design, construction, and construction observation of the Street Improvements. 1 WA 6202595.3 49056371.3 COVENANTS AND AGREEMENTS NOW,THEREFORE, in consideration of the foregoing recitals, mutual covenants and promises set forth below, the receipt and sufficiency of which are mutually acknowledged, the City and BABRA hereby agree to this Agreement as follows: 1. Incorporation of Recitals and Exhibits. The Recitals set forth above and the exhibits attached hereto are incorporated into and made a part of this Agreement as if fully set forth herein. 2. Din,Construction,and Construction Observation of the Street Improvements. A. Design Responsibilities. BABRA shall arrange for the preliminary engineering design of the Street Improvements. BABRA and the City shall agree to final project design and engineering specifications for the Street Improvements. B. Construction Responsibilities. Once the final project design and engineering specifications are complete, and expressly conditioned upon the availability of adequate funds in the Escrow Account (as defined below), the City shall contract with appropriate engineering and construction firms for the construction and construction observation of the Street Improvements, all in a timely manner based upon the agreed-upon design and engineering specifications. The Street Improvements shall be constructed in accordance with the Unified Development Ordinance of the City of Riverside, Missouri, the Municipal Code of the City of Riverside, Missouri, and other applicable CDBG requirements and state and federal law. The City intends, but shall in no way be obligated, to contract with HB Construction, Inc., a Missouri corporation,to perform the construction of the Street Improvements and to contract with Bartlett & West, Inc., a Kansas corporation,to perform the construction observation and certification of the Street Improvements. The City understands that time is of the essence with respect to completion of the Street Improvements and shall use commercially reasonable efforts to cause the Street Improvements to be completed by July I,2015. 3. Cost of Construction. A. Total Estimated Cost of Construction. The City and BABRA anticipate the cost of construction for the Street Improvements shall not exceed $ The cost may change based on details provided as part of the completed design specifications. B. Excess Funds. Should the cost of design, construction, and construction observation for the Street Improvement not result in the expenditure of the full amount of the CDBG Funds, the City and BABRA may agree to amend this Agreement to include additional public infrastructure projects. C. Insufficient Funds. Should the cost of Street Improvements exceed the full amount of the CDBG Funds, BABRA shall be responsible for providing the full amount of remaining funds necessary to complete the Street Improvements. In this event, the Private Funds incurred by BABRA to complete construction of the Street Improvements (the "TIF Reimbursable Costs") shall be reimbursed by the City to BABRA pursuant to Section 7 below. 4. Source of Funds. A. CDBG Funds. The CDBG Funds shall be provided for construction of the Street Improvements and may be applied towards construction observation but shall not be applied towards design costs for the Street Improvements. 2 WA 6202595.3 49056371.3 B. Private Funds. Subject to the terms and conditions set forth in this Agreement, BABRA shall be solely responsible for Private Funds in an amount sufficient to pay any and all reasonable and necessary costs, including the construction contingency as described in Section 6, incurred in connection with the design, construction, and construction observation of the Street Improvements in excess of the CDBG Funds. 5. Escrow. A. Creation of Escrow Account. The City and BABRA agree to either: 1)create and establish with the City a segregated account for Street Improvement expenses designated as the "BABRA Street Improvement Escrow Account'; or 2) create and establish with UMB Bank, N.A., a national banking association with its principal payment office located in Kansas City, Missouri, an escrow account for the deposit of the CDBG Funds and Private Funds to be used for the payment of the Street Improvement costs(such account so chosen,the"Escrow Account'). B. Deposits to Escrow Account. Within five (5) days of the execution of this Agreement, the City shall deposit into the Escrow Account the full amount of CDBG Funds. In the same timeframe, BABRA shall deposit the amount of Private Funds deemed necessary for the completion of the Street Improvements as determined through the final construction estimates. If the construction estimates are insufficiently complete as of the date of execution of this Agreement, BABRA shall deposit the full amount of Private Funds into the Escrow Account as soon as reasonably possible and prior to the City issuing a notice to proceed to construct any portion of the Street Improvements. C. Disbursement of Moneys and Account Records for the Escrow Account. Funds in the Escrow Account shall be used solely to pay for costs of the Street Improvements. The City shall maintain adequate records pertaining to the Escrow Account and all disbursements therefrom, and shall file monthly statements of activity regarding the Escrow Account with BABRA. Any credits,recoveries from insurance or third parties, offsets or reductions in the scope of the Street Improvement work shall be credited against the Private Funds once any appropriate reimbursements have been made to the City or otherwise for actions necessary to identify and retrieve those credits, recoveries,offsets, or reductions. D. Termination. The City shall terminate the Escrow Account when all disbursements required to be made for the Street Improvements are complete. 6. Construction Cost Contineencv and Chanee Orders. A. Project Cost Contingency. BABRA shall be solely responsible for any and all reasonable and necessary costs incurred in connection with the design, construction, and construction observation of the Street Improvements in excess of the CDBG Funds. If the total contract award for the selected bid(s) is not at least ten percent (10%) less than available funds in the Escrow Account, BABRA shall be required to deposit into the Escrow Account at the time of contract award for the Street Improvements additional Private Funds in order to provide a ten percent(10%)contingency for such contract(s). B. Change Orders. If a contractor and/or subcontractor constructing any portion of the Street Improvements (or providing construction observation therefore) submits a written claim or demand for payment of additional costs directly associated with the construction or construction observation of the Street Improvements to the City ("Requested Change Order"), the City may consult its construction management engineer, the design engineer, and BABRA to review and evaluate such Requested Change Order. If and when the cumulative gross value of Requested Change Orders exceeds 10% of the CDBG Funds available, the City shall consult with BABRA prior to exercising its absolute authority in its sole discretion to approve entering into any written agreement(s) memorializing any equitable adjustment(s) 3 WA 6202595.3 49056371.3 for payment of the contractor and/or subcontractor's claim ("Change Order"). C. Deposit of Additional Private Funds. In the event the amount of any Requested Change Orders) causes the total contract price of the Street Improvements to exceed the amount of the Escrow Account, BABRA shall, upon five(5)business days' prior written notice from the City,deposit additional Private Funds into the Escrow Account in an amount necessary to pay for such Requested Change Order, plus ten percent(10%)of the total amount of such Requested Change Order. D. Timing of Deposit of Private Funds. Any Private Funds required shall be deposited into the Escrow Account prior to the City approving any Requested Change Order or issuing a notice to proceed. The Private Funds may be drawn down by the City as necessary for the duration of the construction of the Street Improvements. E. Failure to Deposit Private Funds. If BABRA fails to deposit any Private Funds required pursuant to the terms of this Agreement into the Escrow Account within the specified notice period provided herein, the City shall issue a stop work order for any aspect of any construction of the Street Improvements. The stop work order shall not be rescinded until the full amount of required Private Funds has been deposited into the Escrow Account. F. Return of Private Funds. If there are any Private Funds in the Escrow Account remaining following completion of the Street Improvements, the Private Funds shall be returned to BABRA within sixty(60)days following acceptance of the completed Street Improvements by the City. G. No City Liability. In the event BABRA fails to deposit the Private Funds into the Escrow Account,the City shall have no obligation to authorize any Requested Change Order which would exceed any CDBG Funds or other funds remaining in the Escrow Account, either of which may result in the stoppage or delay on completion of work until such time as the Private Funds are deposited into the Escrow Account. IN NO EVENT SHALL THE CITY INCUR ANY LIABILITY TO BABRA FOR ANY DIRECT OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO BABRA'S DELAY OR FAILURE TO DEPOSIT THE PRIVATE FUNDS INTO THE ESCROW ACCOUNT. 7. TIF Reimbursement of Private Funds. The City shall reimburse BABRA for Private Funds incurred in connection with the design, construction, and construction observation of the Street Improvements in excess of the CDBG Funds to the extent available from incremental ad valorem property taxes (as defined by the Real Property Tax Increment Allocation Redevelopment Act, Section 99.800 et seq., RSMo.)(the "TIF Act") generated from the Site (the "TIF Revenues") in accordance with the terms set forth below. A. Reimbursement of Project Costs. Subject to the limitations set forth in this Agreement,the City shall reimburse BABRA for all certified TIF Reimbursable Costs to the extent available from TIF Revenues. The parties agree that reimbursement will occur on a "pay as you go" basis as revenues are collected from the Site in the City's TIF fund ("Special Allocation Fund"). The City shall have no obligation to reimburse BABRA until funds are available in the Special Allocation Fund. The City shall have no obligation to reimburse BABRA from any funds other than those funds in the Special Allocation Fund. The City will not reimburse BABRA for any cost that is not a"redevelopment project cost" under Section 99.805(15)of the TIF Act. B. Interest on Reimbursable Costs. TIF Reimbursable Costs shall accrue simple interest at five percent (5%) starting on the day BABRA deposits the Private Funds into the BABRA Street Improvement Escrow Account until the principal amount of such certified TIF Reimbursable Costs are 4 WA 6202595.3 49056371.3 paid. TIF Revenues distributed to pay TIF Reimbursable Costs shall be applied first to accrued and unpaid interest, then to principal. Unpaid interest shall accrue but shall not be compounded. 8. Improvement Districts. BABRA shall reasonably cooperate in good faith to support and participate in the City's efforts to form a Community Improvement District("CID") including the Site and similarly situated properties and established for the maintenance of common areas within the Horizons Business Park. In the event a CID is formed and the Site becomes subject to payment of assessments to pay eligible CID costs, then the City agrees that such assessments for the Site shall not exceed $0.01 per s.f. of land area in the Site for the first ten (10)years of the CID, and shall not exceed $0.015 per s.f of land area in the Site for the remaining term of the CID. 9. Dedication of Street Improvements. The City will accept the Street Improvements for dedication following construction approval verifying that all such Street Improvements have been constructed to City standards and that all the requirements of this Agreement have been met. The Street Improvements shall be inspected by the City prior to acceptance for dedication and reviewed subject to the City's normal process for dedication. Title to, and ownership of, all Street Improvements constructed according to this Agreement shall vest absolutely in City, upon completion and acceptance of such Street Improvements by City. 10. Indemnification. BABRA shall indemnify and save the City and its governing body members, directors, officers, employees and agents harmless from and against all loss, liability, damage or expense arising solely out of BABRA's actions involving: the design, construction and completion of the Street Improvements, or as a result of any breach, default or failure to perform by BABRA under this Agreement(collectively referred to as"Claim"), so long as such Claim is not caused, in whole or in part, by the City or the City's agents, employees or contractors. BABRA shall also indemnify and save the City and its governing body members, directors, officers, employees and agents harmless of, from and against, all costs, reasonable counsel fees, expenses and liabilities incurred by them in any action or proceeding brought by reason of any such Claim. If any action or proceeding is brought against the City or its governing board members, directors, officers, employees or agents by reason of any such Claim, BABRA, upon notice from the City, covenants to defend such action or proceeding on demand of the City or its governing body members, directors, officers, employees or agents. Nothing in this section shall constitute a waiver of governmental or officers immunity of the City or its officers or employees. 11. CDGB Conditions. The parties hereto acknowledge that pursuant to 620.017 RSMo, the CDBG Funds may only be used for eligible expenses and that failure to comply with any CDBG and/or DED requirement may result in loss of any unspent CDBG Funds and an obligation to repay any CDBG Funds already expended. BABRA agrees to submit such documentation, including but not limited to CDBG Employment Status Statements,to the City, the CDBG, and/or the DED as necessary, to demonstrate that the CDBG requirement that at least 51% or more of the persons and families benefiting from the use of the CDBG Funds must be low to moderate income, as well as such other documentation and items as may be required by the CDBG and/or the DED from time to time. To the extent BABRA's use and possession of the Site or non-compliance with any CDBG requirements imposes any obligations on the City to repay any spent CDBG Funds or otherwise incur any direct costs related to the Street Improvements, BABRA shall indemnify and save the City and its governing body members, directors, officers, employees and agents harmless from and against all loss, liability, damage or expense resulting therefrom, and the City may (i) direct any Private Funds in the Escrow Account toward such costs, and (ii) direct such amounts otherwise due to BABRA pursuant to Section 7 hereof toward such costs. 12. Further Assurances. The parties agree to execute such other further documents as may be necessary to effectuate the purposes of this Agreement or that may be required by law. 5 WA 6202595.3 49056371.3 13. Notice. Any and all notices permitted or required to be given under this Agreement shall be in writing and shall be given by either personal delivery which shall be effective upon delivery,by telecopy, facsimile, e-mail or other form of telecommunication which shall be effective upon confirmed transmittal, by express mail delivery that guarantees next day delivery (which shall be effective the day after delivery to such express mail company), or by U.S. registered or certified mail which shall be effective two (2) days after mailing,at the following addresses: If to City: If to Companies: City of Riverside, Missouri BABRA, LLC 2950 N.W. Vivion Road 700 W. 47'h Street, Suite 200 Riverside, Missouri 64150 Kansas City, Missouri 64112 Attention: Mike Duffy Attn: Kenneth G. Block Fax: (816)746-8349 Fax: (816)932-5598 E-mail: mduffy@riversidemo.com Email: kblock@blockllc.com With a copy to: With a copy to: Spencer Fane Britt& Browne LLP Polsinelli PC 304 East High Street 6201 College Blvd., Suite 500 Jefferson City, Missouri 65101 Overland Park,KS 66211 Attn: Joe Bednar Attn: Curtis M. Holland Fax: (573) 634-8140 Fax: (913)451-6505 E-mail:jbednar@spencerfane.com E-mail: cholland@polsinelli.com 14. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof, superseding all prior oral or written agreements or understandings with respect thereto and may not be changed, modified, discharged or terminated orally or in any manner other than by an agreement in writing signed by all of the parties hereto. No waiver of the breach of the provisions of any section of this Agreement shall be construed as a waiver of any subsequent breach of the same section or any other sections which are contained herein. 15. Successors. The obligations under this Agreement shall run with the land and be binding upon and inure to the benefit of the parties and their respective successors and assigns. 16. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which,taken together,will constitute on and the same instrument. 17. Recording and Binding Effect. BABRA shall file a copy of this Agreement or a memorandum of this Agreement in the office of the Recorder of Deeds for Jackson County, Missouri("Office"). The City agrees to cooperate in the execution of any documents necessary to cause the Agreement to be released from the records of the Office at the conclusion of the Agreement. [Remainder of Page Intentionally Left Blank—Signature Page to Follow] 6 WA 6202595.3 49056371.3 IN WITNESS WHEREOF, this Infrastructure Improvement Agreement has been duly executed by the parties hereto as of the date first set forth above. THE 4PTY OF RIVER7E ISSOM BABRA,LLC By: IVA K&ax? By: Name: Kathleen L. Rose Name: Title: Mayor Title: ACKNOWLEDGMENTS STATE OF ) ss: COUNTY OF ) On this_day of , 2014, before me appeared ,to me personally known,who, being by me duly sworn, did say that she/he is the of BABRA, LLC, a Missouri limited liability company, and that the foregoing Infrastructure Improvement Agreement was signed on behalf of said company and said acknowledged said instrument to be the free act and deed of said company. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year last above written. Notary Public in and for County and State [SEAL] Type or Print Name My Commission Expires: STATE OF MISSOURI ) ss: COUNTY OF PLATTE ) On this _ day of 2014, before me, personally appeared the honorable 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 fourth-class city and political subdivision duly organized and existing under the Constitution and laws of the State of Missouri, and that the foregoing Infrastructure Improvement Agreement was signed on behalf of said City of Riverside, Missouri by authority of its Board of Aldermen, and Mayor Rose acknowledged said instrument to be the free act and deed of said City. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year last above written. Notary Public in and for County and State [SEAL] Type or Print Name My Commission Expires: 7 WA 6279064.1WA 6202595.1 EXHIBIT B CDBG AWARD 9 WA 6202595.3 49056371.3 EXHIBIT A STREET IMPROVEMENTS 8 WA 6279064.11uA-6202-595.1