Loading...
HomeMy WebLinkAbout2005-079 - Amended and Restated Sale of Real Estate Interest Agreement with William Mann BILL N0.2005-79 ORDINANCE N0.2005-~~ AN ORDINANCE APPROVING THE AMENDED AND RESTATED SALE OF REAL ESTATE INTEREST AGREEMENT BETWEEN THE CITY OF RIVERSIDE, MISSOURI AND WILLIAM T. MANN IN CONNECTION WITH POTENTIAL REPLACEMENT MITIGATION PROPERTY; APPROVING THE EXECUTION AND DELIVERY THEREOF, AND APPROVING OTHER DOCUMENTS AND ACTIONS RELATED THERETO. WHEREAS, the City of Riverside, Missouri (the "City") is in the process of developing a plan and project for obtaining and maintaining property to meet the City's wetlands mitigation obligations (the "Mitigation Project") in connection with the development of certain of the City's infrastructure projects and real property projects located within the Riverside Horizons development area; and WHEREAS, William T. Mann (the "Seller") is the owner of certain real property located near Farley, Missouri, on which the Mitigation Project could be constructed; and WHEREAS, the City and Seller have entered into that certain Sale of Real Estate Interest Agreement with an effective date of December 14, 2004 relating to the City's acquisition of certain real estate interests in twenty (20) acres for the Mitigation Project ("Original Agreement"); and WHEREAS, the survey to be performed pursuant to the Original Agreement has been performed and there are 17.37 available acres; and WHEREAS, the City and Seller desire to amend and restate the Original Agreement to provide for the acquisition of certain real estate interests in this property pursuant to the Amended and Restated Sale of Real Estate Interest Agreement. NOW, THEREFORE, be it ordained by the Board of Aldermen of the City of Riverside, Missouri, as follows: Section 1. The Amended and Restated Sale of Real Estate Interest Agreement is approved as set forth in this Ordinance. The purchase price of $4,500 per acre remains the same as under the Original Agreement. The total purchase price shall be the price per acre times the actual number of acres acquired by the City pursuant to the Amended and Restated Sale of Real Estate Interest Agreement. Section 2. The execution and delivery of the Amended and Restated Sale of Real Estate Interest Agreement, in ~ substantially the form on file with the City Clerk and presented with this Ordinance, is approved and the Mayor is authorized to execute such Agreement, with such changes as are approved by the Mayor, the execution of such Agreement being conclusive evidence of such approval. The Mayor, the City Finance Officer and the City Administrator are authorized to execute such other documents and to take such other actions reasonably necessary or desirable to carry out the intent of this Ordinance and such Agreement on behalf of the City, the execution of such documents and the taking of such actions being conclusive evidence of such approval. ~. ... .T n .~,. r .. r ~. ,„ , Section 3. This Ordinance shall be in full force and effect from and after its passage and approval. Passed and Approved this 16th day of August, 2005. ATTE ity Clerk Betty Burch, tayor ` 2 r .... .T ~,. ~ ~ r '.'~ r i~ s COVER PAGE Title of Document: Date of Document: Grantor: Grantee: Legal Description: Reference Book and Page: Amended and Restated Sale of Real Estate Interest Agreement December 27, 2005 William T. Mann, having an address at 9601 N. Platte Purchase Drive, Kansas City, Missouri 64155. The City of Riverside, Missouri, having an address at 2950 N.W. Vivion Road, Riverside, Missouri 64150. See Exhibit A -Property Legal Description Please return recorded document to: Deborah Polk Armstrong Teasdale LLP 2345 Grand, Suite 2000 Kansas City, MO 64108 r .. .r t. ,. .~ , AMENDED AND RESTATED SALE OF REAL ESTATE INTEREST AGREEMENT THIS AGREEMENT, made as of the Effective Date, between William T. Mann, an unmarried individual ("Seller") and the City of Riverside, Missouri, afourth-class Missouri municipality with an address of 2950 NW Vivion Road, Riverside, Missouri 64150 ("Buyer"). RECITALS WHEREAS, Seller is the owner of certain property, a legal description of which is set forth on the attached Exhibit A (the "Property"); and WHEREAS, Buyer is in the process of developing a plan and project for obtaining and maintaining property to meet Buyer's wetlands mitigation obligations in connection with the development of Buyer's real property located within the City of Riverside (the "Project"); and WHEREAS, Buyer and Seller entered into that certain Sale of Real Estate Interest Agreement with an effective date of December 14, 2004 ("Original Agreement"); and WHEREAS, Buyer and Seller desire to amend and restate the Original Agreement as set forth herein; and WHEREAS, Buyer desires to purchase, and Seller desires to sell, certain interests in the Property for uses including the construction and maintenance of replacement mitigation; NOW, THEREFORE, in consideration of the mutual covenants herein granted and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: 1. The Proyerty. For the price and upon and subject to the terms, conditions and provisions herein, Seller shall sell and convey to Buyer and Buyer shall purchase from Seller a perpetual conservation easement over the Property, and an easement for egress and ingress to the Property, all in the form attached as Exhibit B, free and clear of all liens and encumbrances, except as specifically allowed in Section 2 of this Agreement. 2. Subject Conditions. a. Buyer agrees to take its right and interest in the Property subject to existing easements for public roads, highways, utilities and pipelines. b. Buyer and Seller agree to and shall comply with all covenants and agreements set forth in the Restrictive Covenant and Easement Agreement attached hereto as Exhibit B. c. Seller agrees to grant to Buyer that easement described in Exhibit B attached hereto to allow Buyer and its assigns and/or agents access to the Property across r ... , .T ¶ 3,. .. .~ ~,. a portion of the adjacent property (the "Adjacent Property") for construction, development, creation, maintenance, repair, replacement and monitoring of "Replacement Mitigation" as defined and described in Exhibit B. d. Except to the extent such activities are prohibited by the restrictive covenants and easements granted in Exhibit B hereto, neither the Restrictive Covenant and Easement Agreement nor any regulatory agreement applicable thereto shall impair Seller from carrying on normal farming activities including, but not limited to, raising row crops, sod or animals on the Adjacent Property, nor shall said Agreement or regulations impair Seller's ability to irrigate crops or sod or cant' on hunting activities on the Adjacent Property. e. The Property consists of approximately 17.37 acres. The easement for egress and ingress shall be located as set forth on Exhibit B to the Restrictive Covenant and Easement Agreement. f. The Replacement Mitigation shall be constructed and maintained in accordance with the Replacement Mitigation Plan to be attached to the Restrictive Covenant and Easement Agreement as Exhibit C. 3. Purchase Price. The price to be paid for the Property by Buyer to Seller is Four Thousand Five Hundred and No/100 Dollars ($4,500.00) per acre (the "Per Acre Price"), with the total purchase price to be determined by multiplying the total number of acres of the Property in which a conservation easement is being acquired at such Closing by the Per Acre Price (the "Purchase Price"), to be paid in full and in cash at Closing. 4. Taxes and Assessments. Seller shall pay all taxes, general and special, and all special assessments, against the Property subject to such Closing, currently owed, if any. Buyer shall assume all of such taxes and assessments, and installments of unpaid special assessments becoming due and accruing after Closing with respect to the Property subject to such Closing, except that all general state, county, school and municipal taxes and special assessments and installments of unpaid special assessments (exclusive of rebates and penalties) becoming due and accruing during the calendar year of Closing shall be pro ratedi between Seller and Buyer on the basis of said calendar year, as of the date of Closing. 5. Seller's Option. For the consideration described herein, Seller shall have the option (the "Seller's Option"), in its sole discretion, to sell and convey, for One Dollar ($1.00), fee title and interest in the Property to Buyer, such Seller's Option to be exercised within one hundred twenty (120) months after the Effective Date. Should Seller determine to exercise Seller's Option, Seller must notify Buyer in writing of such determination no less than (30) days ~ The Property is included in a Platte County tax parcel number which includes a total of 301 acres. In performing the pro-ration calculation, there are two pro-ration percentages which must be determined. First, the number of acres being acquired shall be divided by 301 to obtain the applicable percentage of ownership; and then the number of days remaining in the applicable year shall be divided by 365. 2 ~. ....t n ~,. r ., r 1. prior to the intended exercise and sale thereunder, and upon such exercise, Buyer must accept the conveyance of fee title in the Property provided that at such time all of the warranties and representations set forth in Section 10 of this Agreement are true and correct as of the date of conveyance of such Property as if originally made on such date and Seller is not in default under this Agreement or the Restrictive Covenant and Easement Agreement. If Seller's Option is exercised, Seller shall also simultaneously grant Buyer a perpetual easement for ingress and egress to the land conveyed to Buyer, such perpetual easement to be located as Seller shall reasonably determine provided such easement does not disqualify the Property as replacement mitigation. 6. Inspections and Tests by Buyer. At any time and from time to time during the term of this Agreement, Buyer and its agents, employees, contractors, and representatives, shall have the right, privilege, and license to enter upon the Property for the purpose of making any and all tests, inspections, investigations, feasibility studies, surveys, soil test borings, etc., of any kind or nature which Buyer, in Buyer's sole discretion, desires, including without limitation: (i) tests with respect to the conditions of the soil; (ii) feasibility studies; (iii) the nature and extent of all restrictions and/or requirements imposed by any federal, state, county, or city building departments, highway departments or other governmental agencies, including without limitation environmental laws, rules, and regulations and all costs of complying with any of the foregoing; and (iv) physical inspection of the site and approval thereof. All such tests, inspections, investigations, feasibility studies, surveys, etc. shall be done at Buyer's sole cost and expense. Such tests, inspections, investigations, feasibility studies, surveys, etc., may include, but shall not be limited to, the right to drill test holes, dig test pits, and to obtain core samples. Buyer agrees to repair any damage to the Property arising from Buyer's inspections and tests, except the reasonable wear and tear normally incurred in such inspections, and to indemnify, defend and hold Seller harmless from and against any liability damages, cost or expense, including, without limitation, reasonable attorneys' fees, court costs and other legal expenses, resulting from Buyer's inspections. 7. Conditions Precedent to Buver's Obligation To Close. Notwithstanding anything in this Agreement to the contrary, Buyer's obligation to complete Closing under this Agreement is contingent upon the following conditions being satisfied immediately prior to and at the Closing, unless such condition is waived, in writing, by Buyer in its sole and absolute discretion: a. Title Work: Receipt of the survey of the Property and completion of title work with respect to the Property, acceptable to Buyer in its reasonable discretion. b. Counsel's Satisfaction: The form and substance of all certificates and documents to be delivered by Seller shall be reasonably satisfactory in all respects to counsel for Buyer. c. Representations and Warranties True at Closing: The representations and warranties of Seller contained in this Agreement and all other Closing documents shall be true on and as of the settlement date with the same effect as though such representations and warranties had been made on and as of such date, and there shall be no breach of any said representations or warranties. 3 8. Closing/Closing Date. a. It is anticipated that Buyer will assign its rights to purchase the property described as Tract A on Exhibit A. The Closing on both Tracts shall take place on December 30, 2005 or such earlier date as the parties shall agree upon in writing (the "Closing" or "Closing Date"). b. The Property may be purchased in parts but both Closing shall occur on the same day. Buyer may assign its rights with respect to a portion of the Property. Notwithstanding .anything to the contrary contained in this Agreement, the Closing on a part of the Property shall not in any way affect Buyer's rights with respect to other portions of the Property. Buyer, by a Closing on a part of the Property, is not in any way waiving any of its rights under this Agreement but rather each such Closing and each part of the Property subject to the Closing shall be subject to the same terms and conditions of this Agreement as the Property. In way of illustration but without limiting the forgoing, Buyer, by a Closing on a part of the Property, is not waiving its rights to inspections and testing under Section 6 of this Agreement with respect to other portions of the Property. c. The reasonable, standard and ordinary closing and escrow charges of the Title Company shall be paid by Buyer unless Closing shall not occur because of the failure of a party to perform hereunder, in which event such non performing party shall pay such charges. d. Buyer may desire to Close on the Property prior to the time the Property is needed for Replacement Mitigation. 9. Survey and Title Commitment. Buyer may, but shall not be required to, cause a survey of the Property to be performed in order to determine any change in the exact legal description of the Property, which survey shall conform with the standards of the American Land Title Association and be acceptable to the Title Company for purposes of removing the survey exception. Buyer shall provide Seller with copies of all surveys obtained, if any, and all information gathered by the surveyor in connection therewith. Additional information obtained in the course of the Survey, if any, will be shown on the Survey at Seller's request. Upon completion of the Survey, Seller and Buyer shall mutually agree, in writing, upon a revised legal description to be inserted as and as a replacement for Exhibit "A" hereto based upon the Survey. In the event no Survey is secured, Buyer shall have obtained a legal description sufficient for use as Exhibit "A" and shall have provided the same to Seller for review. Said approved revised legal description derived from a Survey, if any, shall also be provided to Title Company for its use in issuing the Title Commitment (as defined below in this paragraph) and inserted into the conveyance documents. Buyer shall cause to be prepared a commitment for the title policy (the "Title Commitment") to be issued by a title company authorized to issue title insurance in Missouri (the "Title Company"). Any matters specifically identified on the Title Commitment to which Buyer does not object to in a written statement delivered to Seller on or prior to ten (10) days prior to the Closing Date shall be deemed to be accepted by Buyer. Seller shall have until the Closing Date in which to make any corrections to matters to which Buyer has objected to in writing by the written statement. If such matters are not corrected by the Closing Date, Buyer's 4 . r .... 7 ¶ ,~„ .. r ,. ? 1. sole remedy shall be either (a) accept such title as Seller is able to deliver, with reasonable diminution of the Purchase Price, or (b) terminate this Agreement by written notice to Seller. If Buyer does not so notify Seller, Buyer shall be deemed to have waived its right of termination and shall be deemed to have approved all such matters set forth in the Title Commitment, and this Agreement shall remain in full force and effect and the parties shall proceed to close this transaction according to the terms of this Agreement. Upon such termination of this Agreement under this Section, neither party shall have any further obligation under this Agreement. Buyer shall bear all expense for both the prepazation of the Title Commitment and the owner's title policy to be issued thereunder. 10. Seller's Warranties and Representations. As a material inducement to cause this Buyer to enter into this Agreement, Seller represents to Buyer that: a. Authority. Seller has the authority and power and has obtained any and all consents required therefor to enter into this Agreement and to consummate and/or cause to be consummated the transactions provided for by this Agreement. Each and every person signing this Agreement and all related documents on behalf of Seller is authorized to do so. This Agreement has been and all documents to be executed by Seller pursuant to this Agreement will be, authorized and properly executed and does and will constitute the valid and binding obligations of Seller, fully enforceable against Seller in accordance with their respective terms. b. No Encumbrances. The Property will be free of any and all encumbrances and liabilities as of the Closing Date. c. Conflict. Consummation of such transaction will not breach any of Seller's duties. There is no agreement to which Seller is a party or, to Seller's knowledge, binding on Seller which is in conflict with this Agreement. There is no action or proceeding pending or, to Seller's knowledge, threatened against or relating to the Property or which challenges or impairs Seller's ability to execute or perform its obligations under this Agreement. d. Compliance With Laws. To the best of Seller's knowledge, all of the Property and the existing uses of the Property, are in compliance with all applicable laws, ordinances, rules, regulations and requirements of all governmental authorities having jurisdiction thereof, including, without limitation thereto, those pertaining to zoning subdivision, building, housing, safety, fire and health. e. Withholding Obligation. This transaction is not subject to any federal, state or local withholding obligation of Buyer under the tax laws applicable to Seller or the Property. f. Environmental. Seller has no knowledge of any violation of Environmental Laws related to the Property or the presence or release of Hazardous Materials on or from the Property. The term "Environmental Laws" includes without limitation the Resource Conservation and Recovery Act and the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA") and other 5 r „ , 1, ¶ .1,. .. r ., T 1. federal laws governing the environment as in effect on the date of this Agreement together with their implementing regulations and guidelines as of the date of this Agreement, and all state, regional, county, municipal and other local laws, regulations and ordinances that are equivalent or similar to the federal laws recited above or that purport to regulate Hazardous Materials. The term "Hazardous Materials" includes petroleum as defined in CERCLA and any substance, material waste, pollutant or contaminant listed or defined as hazardous or toxic under any Environrnental Law. 11. Brokers' Commissions. The parties acknowledge and represent that no entity is entitled to a commission, finder's fee or other like compensation arising in any manner from this Agreement. Each party agrees to defend, protect, indemnify and hold the other party harmless from and against any claim for commission or finder's fee by any person or party who alleges that it was engaged or retained by such party, or that, at the request of such party, it was the procuring cause or instrumental in consummating this Agreement. 12. Delivery of Possession. Seller represents that the Property has no tenants or other persons in possession. Seller covenants that Seller will ensure that all tenants and other persons in possession, if any, shall remove their property and quit the premises by that certain date selected by Buyer which date may be the Closing Date or any date thereafter as long as Buyer provides Seller with at least fifteen (15) days prior written notice of such other date. 13. Default. In the event of a default by either party, which default is not cured within fifteen (15) days of written notice thereof from the other party or such longer period as shall be reasonably required to cure such Default (provided that the party has commenced such cure within said 15-day period, and diligently prosecutes such cure to completion), then the party giving notice of default may, at its option, terminate this Agreement. The parties agree that neither party shall be entitled to any additional damages or other relief in the event of such default and termination hereunder. 14. Notices. Any notice given or required to be given under this Agreement, unless otherwise provided, shall be in writing and shall be given by certified or registered mail, directed as follows, and shall be deemed to have been given when so mailed: To Buver: William T. Mann, a Missouri licensed Real Estate Broker 9601 N. Platte Purchase Drive Kansas City, Missouri 64155 copy to: Keith W. Hicklin Witt & Hicklin, P.C. 2300 Higgins Road P.O. Box 1517 Platte City, Missouri 64079 Telephone: (816) 858-2750 Fax: (816) 858-3009 6 .... ,. To Seller: The City of Riverside, Missouri 2950 NW Vivion Road Riverside, Missouri 64150 Attn: David Blackburn, City Manager copy to: John McClelland, Esq. Armstrong Teasdale LLP 2345 Grand Blvd., Suite 2000 Kansas City, Missouri 64108 Telephone: (816) 221-3420 Facsimile: (816) 221-0786 Any such notices shall be either (a) sent by certified mail, return receipt requested, in which case notice shall be deemed delivered three business days after deposit, postage prepaid in the U.S. Mail, (b) sent by overnight delivery using a nationally recognized overnight courier, in which case it shall be deemed delivered one business day after deposit with such courier, (c) sent by telefax, in which case notice shall be deemed delivered upon transmission (with facsimile confirmation) of such notice, or (d) sent by personal delivery. The above addresses may be changed by written notice to the other party; provided, however, that no notice of a change of address shall be effective until actual receipt of such notice. Copies of notices are for informational purposes only, and a failure to give or receive copies of any notice shall not be deemed a failure to give notice. 15. Time of Essence. Time is of the essence of this transaction. 16. Further Assurances. In addition to the acts and deeds recited herein and contemplated to be performed, executed and/or delivered by the parties at Closing, Seller and Buyer agree to perform, execute and deliver, but without any obligation to incur any additional liability or expense, on or after the Closing any further deliveries and assurances as may be reasonably necessary to consummate the transactions contemplated hereby or to further perfect the conveyance, transfer and assignment of the property interests to Buyer. 17. Survival. All obligations of Seller and Buyer which by their nature involve performance in any particular manner after the Closing Date, or which cannot be ascertained to have been fully performed until after the Closing Date, shall survive the Closing Date. 18. Successors. This Agreement shall inure to the benefit of and bind the parties and their respective successors and assigns. Buyer may assign its rights under this Agreement to a portion of the Property and there may be more than one but not more than two Closing on the Property. 19. Headines. The headings in this instrument have been inserted for convenience of reference only and shall in no way modify or restrict any provision hereof, or be used to construe any of such provisions. 20. Invalidity and Waiver. If any portion of this Agreement is held invalid or inoperative, then so far as is reasonable and possible the remainder of this Agreement shall be 7 r .. , .T n ~,. .. r .. r 1. deemed valid and operative, and effect shall be given to the intent manifested by the portion held invalid or inoperative. The failure by either party to enforce against the other any term or provision of this Agreement shall be deemed not to be a waiver of such party's right to enforce against the other party the same or any other such term or provision. 21. Costs and Fees Incurred by Seller. Buyer agrees to reimburse and pay Seller for reasonable attorneys' fees and expenses, -not to exceed Five Thousand Dollars ($5,000.00), incurred by Seller in the negotiation and preparation of this Agreement (the "Fees") with such Fees to be paid at Closing and if the rights to a portion of the Property hereunder is assigned, since both Closings will occur on the same date, the Fees shall be pro-rated based upon the acres being acquired in such Closing and the total acres of the Property. 22. Recordine. This Agreement shall be filed in the real property records for the County of Platte, Missouri, the county in which the Property is located. 23. Governing Law. This Agreement shall be governed by the laws of Missouri without regard to its conflict of laws statute. 24. Counternarts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of such counterparts shall constitute one and the same Agreement. To facilitate execution of this Agreement, the parties may execute and exchange by telephone facsimile counterparts of the signature pages. 25. Entire A~xeement. This Agreement and the Restrictive Covenant and Easement Agreement attached as Exhibit B contain the entire agreement between Seller and Buyer, and there are no other terms, conditions, promises, undertakings, statements or representations, express or implied, concerning the sale contemplated hereunder. 26. Effective Date. The Effective Date of this Agreement shall be the latest date upon which any party to this Agreement executes this Agreement; provided, however to become effective, this Agreement must be executed by Seller and delivered to Buyer within ten (10) days of Seller's execution of this Agreement, unless such date is extended by Buyer in writing. 27. Real Estate Broker Disclosure. Seller has advised Buyer that he is a licensed Missouri real estate broker and has the intent to make a profit from the sale of the Property. Neither Buyer nor Seller are represented by a real estate agent in this transaction. Buyer and Seller each agree that should any claim be made through it for any broker's, finder's or other fee in connection herewith it shall indemnify, defend and hold harmless the other party from any loss, liability, damage, cost or expense, including without limitation, reasonable attorneys' fees, court costs and other legal expenses paid or incurred by such party that is in any manner related to such a claim. By execution of this Agreement, the parties acknowledge receipt of the Missouri Broker Disclosure Form and the AgencyBroker Disclosure Addendum which indicate the type of agency relationship being provided to the parties. [remainder of this page intentionally left blank; signatures on following page] 8 above. NOW, THEREFORE, the parties execute this Agreement as of the date first set forth "SELLER" William T. Mann vv William ann STATE OF MISSOURI COUNTY OF ~C,~-~ j SS On this °2~day of et~~,er , 2005, before me, appeared WILLIAM T. MANN, to me personally known, who being by me duly sworn, did say that he is the owner of the property described above and that said instrument was signed by WILLIAM T. MANN as the free act and deed of the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal at my office the day and year last above written. of lic My commission expires: LYNN GRADER Notary Public-State of Missouri Commissioned in Platte County My Commission Expires Sept. 11, 2007 9 ~. .. .T ¶ ,~,. i r .. ~ ~. "CITY" City of Riverside, Missouri By: ~~ Ray Beard, Mayor Pro Tem STATE OF MISSOURI ) SS COUNTY OF PLATTE ) On this ~' day of 2005, before me appeared Ray Beard to me personally known, who, being by me duly sworn, did say that he is the Mayor Pro Tem of THE CITY OF RIVERSIDE, MISSOURI, and that the seal affixed to the foregoing instrument is the corporate seal of the City of Riverside, Missouri, and that said instrument was signed and sealed on behalf of said City, by authority of its Board of Aldermen; and said Mayor acknowledged said instrument to be the free act and deed of said City. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in the County and State aforesaid, the day and year first abov written. Notary Public My commission expires: ~q o~{~ NOT~P~JC:~-N tAL 8~ots otiNMlo~N1 My ~Eq~~~.~1 10 ~. ,. , ~ n .a,. . EXHIBIT A PROPERTY LEGAL DESCRIPTION BOSS0790 June 21, 2005 Mann Property Wetlands Property Descriptions DESCRIPTION: TRACT A: A TRACT OF LAND LOCATED IN SECTION 4, TOWNSHIl' S1 NORTH, RANGE 35 WEST, PLATTE COUNTY, MISSOURI, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS; COMMENCING AT THE SOUTHEAST CORNER OF SECTION 33, TOWNSHIP 52 NORTH, RANGE 35 WEST; THENCE N89°45'17"W ALONG THE SOUTH LINE OF SAID SECTION 33, A DISTANCE OF 1734.23 FEET; THENCE S00°00'00"W A DISTANCE OF 1393.20 FEET TO THE POINT BEGINNING; THENCE S62°35'03"E A DISTANCE OF 203.93 FEET; THENCE S53°08'32"E A DISTANCE OF 121.72 FEET; THENCE S46°01'47"E A DISTANCE OF 373.02 FEET; THENCE S45°35'03"E A DISTANCE OF 416.91 FEET; THENCE S59°04'33"E A DISTANCE OF 92.97 FEET: THENCE N89°45'17"W A DISTANCE OF 655.14 FEET; THENCE N24°21'09"W A DISTANCE OF 171.93; THENCE N41°59'39"W A DISTANCE OF 596.44 FEET; THENCE N48°17'48"E A DISTANCE OF 65.34 FEET; THENCE S88°26'36"E A DISTANCE OF 139.54 FEET; THENCE N44°49'39"E A DISTANCE OF 38.23 FEET; THENCE N39°42'43"W A DISTANCE OF 83.87 FEET; THENCE N51°10'01"E A DISTANCE OF 50.10 FEET TO THE POINT OF BEGINNING. CONTAINS 348,645 SQUARE FEET OR 8.00 ACRES MORE OR LESS. SUBJECT TO RESTRICTIONS, RESERVATIONS AND EASEMENTS NOW OF RECORD. END OF DESCRIlTION. DESCRIPTION: TRACT B: A TRACT OF LAND LOCATED IN SECTION 4, TOWNSHIP 51 NORTH, RANGE 35 WEST, PLATTE COUNTY, MISSOURI, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS; COMMENCING AT THE SOUTHEAST CORNER OF SECTION 33, TOWNSHIP 52 NORTH, RANGE 35 WEST; THENCE N89°45'17"W, A DISTANCE OF 800.57 FEET; THENCE S00°00'00"E A DISTANCE OF 2154.67 FEET TO THE POINT BEGINNING OF THE TRACT OF LAND TO BE DESCRIBED; THENCE S59°04'33"E A DISTANCE OF 232.93 FEET; THENCE S56°27'17"E A DISTANCE OF 119.74 FEET; THENCE ON A CURVE TO THE RIGHT, TANGENT TO THE LAST DESCRIBED COURSE, HAVING A RADIUS OF 357.04 FEET AND AN ARC LENGTH OF 344.95 FEET; THENCE N89°45'17"W A DISTANCE OF 832.90 FEET; THENCE N26°59'39"W A DISTANCE OF 551.03 FEET; THENCE S89°45'17"E A DISTANCE OF 655.14 FEET TO THE POINT OF BEGINNING. CONTAINS 408,199 SQUARE FEET OR 9.37 ACRES MORE OR LESS. SUBJECT TO RESTRICTIONS, RESERVATIONS AND EASEMENTS NOW OF RECORD. END OF DESCRIPTION r .. ~ n ~,. ~, .. ~ L. EXHIBIT B TO SALE AGREEMENT RESTRICTIVE COVENANT AND EASEMENT AGREEMENT STATE OF MISSOURI ) COUNTY OF PLATTE ) THIS RESTRICTIVE COVENANT AND EASEMENT AGREEMENT ("Agreement") is executed as of the day of , 2005 by and between William T. Mann, an unmarried individual ("Land Owner") having an address at 9601 N. Platte Purchase Drive, Kansas City, Missouri 64155, and the City of Riverside, Missouri ("Riverside"), having an address at 2950 N.W. Vivion Road, Riverside, Missouri 64150, provided, however, notwithstanding anything to the contrary contained in this Agreement, the Corps (defined below) shall have no rights under this Agreement and all references to the Corps shall have no effect unless and until Riverside files in the real property records for the County of Platte, Missouri a writing executed on behalf of Riverside setting forth a date certain identified as the Corps Effective Date and provided further that until the Corps Effective Date, Riverside has no obligation to create or construct the Replacement Mitigation and Riverside may, in its sole discretion, terminate this Agreement. From and after the Corps Effective Date, the Corps shall have all of the rights set forth in this Agreement and Riverside shall be obligated to create and construct the Replacement Mitigation as set forth in this Agreement. Background A. Land Owner is the owner, in fee simple, of the real property (the "Property') located in Platte County, Missouri, more particular described on Exhibit "A" attached hereto and made a part hereof. B. Riverside is afourth-class. Missouri municipality, which is in the process of developing and promoting amixed-use development within the city (the "Project") in a manner that will infringe upon current wetland acreage and which will require that Riverside secure replacement mitigation acreage. C. Riverside could not construct or develop the Project without wetland mitigation acreage. ~ To the extent that the City of Riverside, Missouri assigns any portion of its interest under the Amended and Restated Sale of Real Estate Interest Agreement and such assignee Closes on a portion of the Property so assigned, then with respect to the assigned property, this Restrictive Covenant and Easement Agreement shall be revised by replacing "the City of Riverside, Missouri" and "Riverside" with the name of the assignee and such other appropriate changes as are required to accurately reflect the identify of such assignee. D. Pursuant to applicable Federal law and the requirements of the U.S. Army Corps of Engineers (the "Corps"), Riverside will need to obtain a permit pursuant to Section 404 of the Clean Water Act (a "Permit") to engage in and complete the Project, and will need to present a plan for replacement mitigation related to wetlands resources for the Project (the "Replacement Mitigation"), and desired to do so using the Property. E. Land Owner, for the consideration .described below, desires to grant the easements and cause the Property to be utilized as Replacement Mitigation for the benefit of Riverside. F. Land Owner has designated and has agreed to restrict the use of the Property and to provide easements to Riverside and its authorized affiliates, contractors, subcontractors, and representatives, to assist in the creation and maintenance of the Replacement Mitigation on the Property. NOW, THEREFORE, in consideration of the foregoing, and for Ten and No/100 Dollazs ($10.00) and other good and valuable consideration the receipt and sufficiency of which is hereby aclrnowledged, Riverside and Land Owner hereby agree as follows: 1. Restrictive Covenants and Replacement Mitigation Easement. Subject to the limitations herein, Land Owner agrees that the covenants set forth herein shall apply and the Property shall be restricted as set forth herein for perpetuity. Riverside is hereby granted an exclusive easement on the Property and the Property shall be used solely for the construction, development, creation, maintenance, repair, replacement and monitoring of the Replacement Mitigation. Land Owner shall not allow any other use of the Property or any non-storm water discharge onto or into the Property without authorization from the Corps or other governmental agency with jurisdiction over the Replacement Mitigation. There shall be no excavation nor dredging of fill material placed on the Property, except to construct, develop, create, maintain, repair, replace, and conduct the Riverside mitigation measures in accordance with a plan submitted by or on behalf of Riverside and approved by the Corps for Replacement Mitigation (a "Plan"), which Plan is to be attached as Exhibit "C" upon such approval (including subsequent approved changes) by the Corps and made a part of this Agreement as if originally attached hereto.2 Except as expressly allowed by a Plan, there shall be no commercial, industrial, agricultural, residential, or recreational developments, buildings, or structures including signs, billboards, other advertising material, or other structures built or placed on the Property. There shall be no removal or destruction of trees and plants, mowing, draining, plowing, 2 The Plan, Exhibit "C", may be attached initially to this Agreement or may be attached by recording.such Plan in the real estate records of Platte County, Missouri and providing notice of the Plan to Land Owner. If the Plan is not initially attached, a sample plan will be attached as Exhibit "C" and replaced with the Plan: when it is available provided such Plan does not adversely restrict Landowner's use of his adjacent property. The sample plan shall place no obligations on Riverside. Similarly, changes or amendments to the Plan shall be made by recording such changes or amendments in the real estate records of Platte County, Missouri and providing notice of the changes or amendment to the Land Owner. J:pct,~rrrsw~avzwoo~a~coas~os~.noc 2 r ... ~ n ~,. r .. ~ 1. mining, removal of topsoil, sand, rock, gravel, minerals or other materials on the Property, except to conduct the mitigation measures and maintain the Property in conformance with a Plan. Land Owner may remove voluntary trees not included in any Plan. There shall be no grazing or keeping of cattle, sheep, horses, or other livestock on the Property. There shall be no operation of snowmobiles, dunebuggies, motorcycles, all-terrain vehicles or any other types of motorized vehicles on the Property, except to conduct the mitigation measures. It is expressly understood and agreed that Land Owner may at his expense make any use of the Property from time to time, including substituting other wetlands for the Replacement Mitigation in the event, and only in the event, that Land Owner receives the prior approval of the Corps or other governmental agency with then jurisdiction over the Replacement Mitigation, and thereafter assumes all liability for the replacement mitigation, including creation, maintenance, monitoring and deed restriction of the site in perpetuity. Except as expressly limited herein, the Land Owner reserves for itself, its heirs and assigns, all rights as owner of the Property, including the right to use the property for all purposes not inconsistent with a Plan and this declaration. 2. Grant of Access Easement. Land Owner hereby grants and conveys to Riverside and its authorized affiliates, contractors, subcontractors, agents and representatives, and authorized representatives of the Corps, anon-exclusive easement (the "Access Easement") over and across Land Owner's adjacent real property, legally described on Exhibit "B", (the "Access Easement Property"), for the sole purpose of egress and ingress across the Access Easement Property in connection with the construction, development, creation, maintenance, repair, replacement and monitoring of the Replacement Mitigation on the Property in accordance with Riverside's Plan. Upon termination of this Restrictive Covenant and Easement Agreement, the Access Easement provided for in this Paragraph 2 shall terminate. Riverside shall maintain general comprehensive liability insurance on the Property and the Access Easement Property during the term of the easements with limits of not less than One Million and No/100 Dollars ($1,000,000.00) aggregate which policy shall name Land Owner as an additional insured. The Land Owner does hereby agree to allow Riverside and the Corps the right to enter the Access Easement Property and the Property at all reasonable times for the purpose of inspecting such property to determine if the Land Owner, or his heirs or assigns, is complying with the covenants and purposes of this declaration. 3. Riverside's Rights and Duties. Riverside shall have the right and the responsibility for the creation of the Replacement Mitigation in accordance with the Plan, when attached hereto as Exhibit "C", and the costs associated therewith, including any further work the Corps or any other governmental agency with jurisdiction over the Replacement Mitigation may require from time to time, including, but not limited to, a survey of the Replacement Mitigation. Riverside shall notify Land Owner in writing after completion of the work necessary for the creation of Replacement Mitigation at the Property. Riverside shall cause the Replacement Mitigation to be monitored and maintained as set forth in its Permit J:\CLIENTSW1492\00074\K0457037.DOC 3 ~. .... .T n ~,. ~. .. ? ~. and pay for all costs incurred in connection therewith. If Riverside fails to maintain the Property in conformance with its Corps approved Plan, Land Owner shall have the right, but not the obligation, to perform the same after giving twenty (20) days written notice to Riverside. 4. Binding Effect. This Restrictive Covenant and Easement Agreement shall run with the Property and shall. be binding on each and every successor, assignee or future owner of the Property and shall inure to the benefit of Riverside, its successors, assignees, transferees, agents, contractors, employees and licensees. The terms and conditions of this Agreement shall be both implicitly and explicitly included in any transfer, conveyance, or encumbrance of the Property or any part thereof, and any instrument of transfer, conveyance, or encumbrance affecting all or part of the Property shall set forth the terms and conditions of this document either by reference to this document or set forth in full text. 5. Termination. This Agreement, as may be amended from time to time, including but not limited to the Restrictive Covenants, shall remain in full force and effect in perpetuity until terminated pursuant to this Agreement by the then fee owner of the Property if allowed pursuant to applicable legal requirements and subject to the prior written consent of Riverside and if after the Corps Effective Date, the written approval of the Corps, witnessed, authenticated and recorded pursuant to the laws of the State of Missouri. 6. Indemnification of Riverside. Land Owner agrees to abide by the restrictive covenants set forth herein and to protect, hold harmless, defend, and indemnify Riverside, and its affiliates, directors, officers, shareholders, partners, employees, contractors, subcontractors, counsel, agents and representatives from and against any and all claims, demands, allegations, actions, proceedings, damages and expenses (including without limitation attorneys' fees and consultants' fees) related- to or arising from the intentional act or omission or negligence of Land Owner which would be a violation of this Agreement after Riverside has given Land Owner written notice of the Corps Effective Date. 7. Indemnification of Land Owner. Riverside agrees to protect, hold harmless, defend and indemnify Land Owner and his successors, assigns, employees, contractors, subcontractors, agents and representatives from and against any and all claims, demands, allegations, actions, proceedings, damages and expenses (including without limitation attorneys' fees and consultants' fees) related to or arising from, directly or indirectly: (a) the intentional act or negligent act or omission of Riverside or its contractors in connection with the creation, monitoring and maintenance of the Replacement Mitigation; and (b) Riverside's ingress and egress over and across the Property. 8. Miscellaneous. J:~CLIENTSl61492~00074~IC0457037.DOC 4 ~. .. .l ¶ ~, .. r .. 7 t. (a) Governing Law. This document shall be interpreted and enforced according to the laws of the State of Missouri without regard to its conflict of law statutes. (b) Headings. All headings of paragraphs of this document are inserted for convenience only, and do not form part of this document or limit, expand or otherwise alter the meaning of any provisions hereof. (c) Amendments. No amendment of this document, including the Easement and the restrictions, shall be effective unless the same is in writing, signed by both the Land Owner and Riverside, and if after the Corps Effective Date, approved by the Corps in writing, witnessed, authenticated and recorded pursuant to the laws of the State of Missouri. (d) Recordation. This Agreement shall be filed in the real property records for the County of Platte, Missouri, the county in which the Property is located. (e) Default. If default under this Agreement occurs and the parties are unable to resolve the dispute, the party to whom such duty or obligation was owed may enforce such performance through any remedies available whether through law or through equity and the prevailing party shall be entitled to recover all its costs and expenses of any proceeding, including but not limited to, reasonable attorneys' fees and costs. (f) Enforced by Corps. The Land Owner does hereby insure the right of Riverside and that of the Corps, in a reasonable manner and at reasonable times, to enforce, from and after the Corps Effective Date, by proceedings at law or in equity the covenants herein set forth. Neither Riverside nor the Corps waives or forfeits the right to take action as may be necessary to insure compliance with the covenants and purpose of this declaration by any prior failure to act. (g) Assignment. Land Owner hereby agrees and acknowledges that Riverside may assign, transfer, convey or otherwise sell all or any part of its rights and interest in the Property specifically for, but not limited to, wetland mitigation purposes, as Riverside, in its sole discretion, sees fit, provided that Riverside must provide Land Owner written notice of such assignment or transfer no fewer than thirty (30) days before that date of such proposed transfer. Any assignment shall contain a provision by which the Assignee agrees to assume and perform all of Riverside's obligations pursuant to this Agreement and its obligation to accept title per terms of the Land Owner's Option in the Amended and Restated Sale of Real Estate Interest Agreement entered into between Land Owner and Riverside in connection with this Agreement. [The remainder of this page is intentionally left blank.] J:~CLIENTSW1492W0074UC0457037.DOC 5 .r ....T ¶ ,~,. ; . r .. ~ 1. IN TESTIMONY WHEREOF, WILLIAM T. MANN has hereunto set his hand this day of , 2005. WILLIAM T. MANN William T. Mann STATE OF MISSOURI ) SS COUNTY OF ) On this day of 2005, before me, appeared WILLIAM T. MANN, to me personally known, who being by me duly sworn, did say that he is the owner of the property described above and that said instrument was signed by WILLIAM T. MANN as the free act and deed of the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal at my office the day and yeaz last above written. Notary Public My commission expires: J:~CLIENTS~61492W0074UC0457037.DOC 6 r .... 7 n ~~. .. r ,. T 1. 1N TESTIMONY WHEREOF, THE CITY OF RIVERSIDE, MISSOURI has hereunto set its hand and seal this day of 2005. ATTEST: [SEAL] City of Riverside By: Ray Beard, Mayor Pro Tem Louise Rusick, City Clerk STATE OF MISSOURI ) SS COUNTY OF PLATTE ) On this day of 2005, before me appeared Ray Beard to me personally known, who, being by me duly sworn, did say that he is the Mayor Pro Tem of the CITY OF RIVERSIDE, MISSOURI, a municipality of the State of Missouri, and that the seal affixed to the foregoing instrument is the corporate seal of said city, and that said instrument was signed and sealed on behalf of said city, by authority of its Board of Aldermen; and said Mayor acknowledged said instrument to be the free act and deed of said city. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in the County and State aforesaid, the day and year first above written.. Notary Public My commission expires: ]:~CLIENTS~61492W0074~IC0457037.DOC r ....r 7 n a~ .. T l EXHIBIT A TO RESTRICTNE COVENANT AND EASEMENT AGREEMENT REPLACEMENT MITIGATION EASEMENT PROPERTY LEGAL DESCRIPTION EXHIBIT B TO RESTRICTIVE COVENANT AND EASEMENT AGREEMENT ACCESS EASEMENT PROPERTY LEGAL DESCRIPTION r T' LEGAL DESCRIPTION A 10 FOOT WIDE STRIP OF LAND FOR INGRESS/EGRESS PURPOSES LOCATED IN SECTION 3 AND IN SECTION 4, TOWNSHIP 51 NORTH, RANGE 35 WEST, PLATTE COUNTY, MISSOURI, THE CENTERLINE OF WHICH BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF SECTION 34, TOWNSHIP 52 NORTH, RANGE 35 WEST; THENCE S89°45'17"E ALONG THE SOUTH LINE OF SAID SECTION 34, A DISTANCE OF 1914.08 FEET; THENCE S00°00'00"E A DISTANCE OF 11.33 FEET TO THE POINT OF BEGINNING OF THE CENTERLINE OF SAID 10 FOOT WIDE STRIP OF LAND; THENCE S84°32'25"W A DISTANCE OF 132.60 FEET; THENCE S79°50'04"W A DISTANCE OF 111.95 FEET; THENCE N79°39' 18"W A DISTANCE OF 226.65 FEET TO A POINT 5.00 FEET SOUTH OF THE SOUTH LINE OF SAID SECTION 34; THENCE N89°45' 17"W PARALLEL WITH AND 5.00 FEET SOUTH OF SAID SOUTH LINE, A DISTANCE OF 1448.95 FEET; THENCE CONTINUING N89°45' 17"W A DISTANCE OF 22.80 FEET; THENCE ON A CURVE TO THE LEFT, TANGENT TO THE LAST DESCRIBED COURSE, HAVING A RADIUS OF 35.00 FEET AND AN ARC LENGTH OF 57.04 FEET; THENCE S03°08'08"E A DISTANCE OF 391.07 FEET; THENCE ON A CURVE TO THE RIGHT, TANGENT TO THE LAST DESCRIBED COURSE, HAVING A RADIUS OF 35.00 FEET AND AN ARC LENGTH OF 59.37 FEET; THENCE N85°56'44"W A DISTANCE OF 452.30 FEET; THENCE S84°11'20"W A DISTANCE OF 259.88 FEET; THENCE S62°23'49"W A DISTANCE OF 233.60 FEET; THENCE S27°41'06"W A DISTANCE OF 407.03 FEET; THENCE S57°26'39"W A DISTANCE OF 421.19 FEET; THENCE S61°24'29"W A DISTANCE OF 263.45 FEET; THENCE ON A CURVE TO THE LEFT, TANGENT TO THE LAST DESCRIBED COURSE, HAVING A RADIUS OF 35.00 FEET AND AN ARC LENGTH OF 60.04 FEET; THENCE S36°52'28"E A DISTANCE OF 66.37 FEET; THENCE S62°35'03"E A DISTANCE OF 204.66 FEET; THENCE S53°08'32"E A DISTANCE OF 120.99 FEET; THENCE S46°01'47"E A DISTANCE OF 372.67 FEET; THENCE S45°35'03"E A DISTANCE OF 417.50 FEET; THENCE S59°04'33"E A DISTANCE OF 85.13 FEET TO THE TERMINUS OF SAID STRIP CENTERLINE. CONTAINS 58152 SQUARE FEET , OR 1.33 ACRES, MORE OR LESS SUBJECT TO EASEMENTS, RESTRICTIONS AND RESERVATIONS NOW OF RECORD. .f .... T ¶ ~,. r .. ~ ~. EXHIBIT C TO RESTRICTIVE COVENANT AND EASEMENT AGREEMENT CORPS' APPROVED PLAN FOR REPLACEMENT MITIGATION .r ... ~ , .¶ ~,.