HomeMy WebLinkAbout2005-147 - Assignment, Assumption , and Easement Agreement with Missouri Gaming Company-'t ~
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BILL N0.2005-147
ORDINANCE N0.2005-147
AN ORDINANCE APPROVING THE ASSIGNMENT, ASSUMPTION
AND EASEMENT AGREEMENT BETWEEN THE CITY OF RIVERSIDE,
MISSOURI AND THE MISSOURI GAMING COMPANY IN
CONNECTION WITH CERTAIN RIGHTS RELATING TO 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") and William T. Mann (the
"Seller") entered into that certain Amended and Restated Sale of Real Estate Interest Agreement
("Sale Agreement") relating to the City's acquisition of certain real estate interests in
approximately 17.37 acres ("Sale Property"); and
WHEREAS, the City and the Missouri Gaming Company ("Argosy") entered into that
certain Lease and Development Agreement dated June 7, 1993, as amended, relating to the
development and operation of the Argosy Casino in the City ("Lease Agreement"); and
WHEREAS, pursuant to the Lease Agreement, the City receives significant revenues
from the operation of the Argosy Casino, which revenues are anticipated to increase upon
completion of Argosy's project; and
WHEREAS, in connection with Argosy's project, Argosy is required to mitigate certain
wetlands and in connection therewith, Argosy desires to acquire a portion of the Sale Property
for uses including the construction and maintenance of replacement mitigation, subject to the
terms and conditions of the Sale Agreement; and
WHEREAS, the City desires to transfer to Argosy its interest and obligations under the
Sale Agreement with respect to eight (8) acres (the "Assigned Property") and obtain an easement
from Argosy to access the retained portion of the Sale Property; and
WHEREAS, Argosy desires to acquire the City's rights and assume all of the City's
obligations under the Sale Agreement with respect to the Assigned Property and grant to the City
the easement; and
WHEREAS, the City and Argosy desire to enter into that certain Assignment,
Assumption and Easement Agreement relating to the above.
NOW, THEREFORE, be it ordained by the Board of Aldermen of the City of Riverside,
Missouri, as follows:
Section 1. The transfer by the City of certain property rights under the Sale Agreement
to Argosy, pursuant to the terms and conditions of the Assignment, Assumption and Easement
Agreement (the "Agreement"), is approved.
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Section 2. The execution and delivery of the 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. The City Clerk is authorized to attest the
Agreement and such other documents as are executed pursuant to this Ordinance.
Section 3. This Ordinance shall be in full force and effect from and after its passage and
approval.
Passed and Approved this ~"day of December, 2005.
ATTEST:
[seal]
~~,
. ~
ise Rusick, ity Clerk
~~~~
R eard, Mayor Pro Tem
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COVER PAGE
Title of Document:
Date of Document:
Grantor:
Grantor:
Grantee:
Legal Description:
Reference Book and Page:
Assignment, Assumption and Easement Agreement
January 4, 2006
Missouri Gaming Company, having an address at 777 Argosy
Parkway, Riverside, Missouri 64150.
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 and Exhibit C.
Please return recorded document to:
Deborah Polk
Armstrong Teasdale LLP
2345 Grand, Suite 2000
Kansas City, MO 64108
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ASSIGNMENT, ASSUMPTION AND EASEMENT AGREEMENT
THIS AGREEMENT, made as of the Effective Date, between the City of Riverside,
Missouri, afourth-class Missouri municipality with an address of 2950 NW Vivion Road,
Riverside, Missouri 64150 ("City") and Missouri Gaming Company with an address of 777
Argosy Parkway, Riverside, Missouri 64150 ("Assignee") with the approval and consent of
William T. Mann, owner of the Assigned Property described below ("Seller").
RECITALS
WHEREAS, the City and William T. Mann, as Seller, entered into that certain Amended
and Restated Sale of Real Estate Interest Agreement with an Effective Date of December 27,
2005 (the "Sale Agreement"); and
WHEREAS, under the Sale Agreement, the City acquired the right to purchase certain
interests in the property described in the Sale Agreement (the "Sale Propert}~') for uses including
the construction and maintenance of replacement mitigation; and
WHEREAS, Assignee desires to acquire a portion of the Sale Property for uses including
the construction and maintenance of replacement mitigation, subject to the terms and conditions
of the Sale Agreement; and
WHEREAS, the City desires to transfer to Assignee its interest and obligations under the
Sale Agreement with respect to the eight (8) acres legally described on the attached Exhibit A
("Assigned Property") and Assignee desires to acquire the City's rights and assume all of the
City's obligations under the Sale Agreement with respect to the Assigned Property;
NOW, THEREFORE, in consideration of the payment by Assignee to the City of Ten
Dollars and other good and valuable consideration receipt of which is hereby acknowledged, and
of the mutual covenants herein granted, the parties hereby agree as follows:
1. Assiemnent. The City hereby assigns, transfers, conveys and grants to Assignee
all of the City's rights, title and interest in and under the Sale Agreement with respect to the
Assigned Property upon and subject to the terms, conditions and provisions herein and therein,
which Sale Agreement is incorporated herein by this reference.
2. Assumytion. Assignee accepts such assignment and assumes and agrees to be
bound by and perform all the terms, covenants and conditions of the Sale Agreement to be
observed, kept or performed with respect to the Assigned Property accruing from and after the
date of this Agreement, including but not limited to Seller's Option in the Sale Agreement, with
respect to the Assigned Property. Assignee shall indemnify, defend and hold harmless the City
from and against all loss, cost, damages and liability, including reasonable attorneys' fees and
expenses of litigation, arising out of or by reason of any default(s) or violations relating to the
Assigned Property and/or Assignee's obligations under the Sale Agreement.
3. Copv of the Sale Agreement. The parties agree that the Sale Agreement attached
hereto as Exhibit B is a true and correct copy of the Sale Agreement between the City and the
Seller regarding the Property.
4. Access Easement. Assignee hereby grants and conveys to the City and consents
to the Seller's grant to the City of a nonexclusive easement over and across the property
described in Exhibit C for ingress and egress in connection with the construction, development,
creation, maintenance and monitoring of mitigation property.
5. Consent of Seller. Seller hereby consents and approves the assignment of the
Sale Agreement with respect to the Assigned Property and approves the assumption by Assignee
of all of the City's obligations under the Sale Agreement with respect to the Assigned Property.
Seller agrees that Seller will sell the Assigned Property, including an access easement to the
Assigned Property, pursuant to the terms and conditions of the Sale Agreement, including the
Restrictive Covenant and Easement Agreement, as amended, attached as an exhibit to the Sale
Agreement. Seller releases and discharges the City from any and all obligations and liability
with respect to the Assigned Property. This Consent is not assignable and shall not be a consent
by Seller to, or as permitting, any further assignment.
6. Representations and Warranties.
a. Representations and Warranties of the City: The City represents
and warrants as follows:
(i) Legal Status. The City is a city of the fourth class of the
State of Missouri, validly existing and in good standing under the laws of
Missouri. The City has the power and authority to enter into this Agreement and
to consummate the transactions contemplated by this Agreement.
(ii) Due Authorization and Enforceability. The City has duly
executed this Agreement, and this Agreement, including all of the terms,
conditions, representations and warranties, covenants, agreements and obligations
contained herein, constitutes a valid, legal and binding obligation of the City,
enforceable against it in accordance with the terms hereof.
(iii) Litigation; Orders. There is no action, claim, demand,
litigation, proceeding, investigation or inquiry pending, or order existing, nor, to
the City's lrnowledge, threatened, the outcome of which would, or could
reasonably be expected to, have a material adverse effect upon the City's abilities
to perform any of the terms, conditions, representations or warranties, covenants,
agreements or obligations contained herein.
(iv) No Conflict or Default. No provision, term or condition of
this Agreement, including the Sale Agreement incorporated herein, is contrary to
(1) other documents, agreements or arrangements of the City, (2) any law
applicable to the City or (3) the City Code; nor will the consummation of the
transactions contemplated hereby, create a default or event of default in any
agreement or contract of the City.
b. Representations and Warranties of Assignee: Assignee represents
and warrants as follows:
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(i) Legal Status. Assignee is a Missouri corporation, validly
existing and in good standing under the laws of Missouri. Assignee has the power
and authority to enter into this Agreement and to consummate the transactions
contemplated by this Agreement.
(ii) Due Authorization and Enforceability. Assignee has
obtained all necessary or appropriate approvals to accept the assignment and to
assume the obligations hereunder and to enter into this Agreement and the
transactions contemplated hereby. Assignee has duly executed this Agreement,
and this Agreement, including all of the terms, conditions, representations and
warranties, covenants, agreements and obligations contained herein, constitutes a
valid, legal and binding obligation of Assignee, enforceable against it in
accordance with the terms hereof.
(iii) Litigation; Orders. There is no action, claim, demand,
litigation, proceeding, investigation or inquiry pending, or order existing, nor, to
Assignee's lrnowledge, threatened, the outcome of which would, or could
reasonably be expected to, have a material adverse effect upon Assignee's
abilities to perform any of the terms, conditions, representations or warranties,
covenants, agreements or obligations contained herein.
(iv) No Conflict or Default. No provision, term or condition of
this Agreement, including the Sale Agreement incorporated herein, is contrary to
(1) other documents, agreements or arrangements of Assignee, (2) any law
applicable to Assignee or (3) Assignee's articles of incorporation or by-laws; nor
will the consummation of the transactions contemplated hereby, create a default
or event of default in any agreement or contract of Assignee. No governmental
approval or other consent is required to be obtained by Assignee in connection
with the execution and delivery of this Agreement or the consummation of any of
the transactions contemplated hereby.
c. Representations and Warranties of Seller: Seller represents and
warrants as follows:
(i) Legal Status. Seller is an unmarried individual and has the
power and authority to enter into this Agreement and to consummate the
transactions contemplated by this Agreement.
(ii) Due Authorization and Enforceability. Seller has obtained
all necessary or appropriate approvals to enter into this Agreement and the
transactions contemplated hereby. Seller has duly executed this Agreement, and
this Agreement, including all of the terms, conditions, representations and
warranties, covenants, agreements and obligations contained herein, constitutes a
valid, legal and binding obligation of Seller, enforceable against him in
accordance with the terms hereof.
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(iii) Litigation; Orders. There is no action, claim, demand,
litigation, proceeding, investigation or inquiry pending, or order existing, nor, to
Seller's knowledge, threatened, the outcome of which would, or could reasonably
be expected to, have a material adverse effect upon Seller's abilities to perform
any of the terms, conditions, representations or warranties, covenants, agreements
or obligations contained herein.
(iv) No Conflict or Default. No provision, term or condition of
this Agreement, including the Sale Agreement incorporated herein, is contrary to
(1) other documents, agreements or arrangements of Seller, or (2) any law
applicable to Seller nor will the consummation of the transactions contemplated
hereby, create a default or event of default in any agreement or contract of Seller.
No governmental approval or other consent is required to be obtained by Seller in
connection with the execution and delivery of this Agreement or the
consummation of any of the transactions contemplated hereby.
7. Notices. If any Notice under Section 14 of the Sale Agreement is required to be
sent to Assignee, it shall be addressed as follows and all provisions of Section 14 shall apply as if
Assignee were originally a party to the Sale Agreement:
If to Assignee: Missouri Gaming Company
777 Argosy Parkway
Riverside, Missouri 64150
With a Copy to: Steve Wolcott
104 W. Kansas
Liberty, Missouri 64068
Telephone: 816\792-4242
Fax: 816\792-0888
8. HeadinQS. 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.
9. Costs and Fees. Except for the obligation of Assignee to pay the Fees (as defined
in the Sale Agreement) to Seller at Closing, each party shall pay their own costs and expenses
incurred in the negotiation and preparation of this Agreement.
10. Survival; No Merger. The obligations hereunder to be performed after the
Closing, including but not limited to Assignee's obligations under Section 2 and Section 4 of this
Agreement, shall survive the Closing and shall not be merged.
11. Governing_Law. This Agreement shall be governed by the laws of Missouri
without regard to its conflict of laws statute.
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12. Successors. This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto. This Agreement may be not assigned without the prior written consent of
the Seller and the City.
13. Counterparts. 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.
14. Entire Agreement. This Agreement, the Sale Agreement and the Restrictive
Covenant and Easement Agreement attached as Exhibit B to the Sale Agreement contain the
entire agreement between the City, Assignee and Seller, and there are no other terms, conditions,
promises, undertakings, statements or representations, express or implied, concerning the sale
contemplated hereunder.
15. Recording. Once fully executed, this Agreement shall be recorded in the Officer
of the Recorder of Deeds of Platte County, Missouri.
16. Effective Date. The Effective Date of this Agreement shall be the latest date upon
which any party to this Agreement executes this Agreement.
[remainder of this page intentionally left blank; signatures on following page]
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NOW, THEREFORE, the parties execute this Agreement the date set forth below next to
each party's respective signature.
"CITY"
DATE: , 2005
City of Riverside, Missouri
By: ~Q
R Beard, Mayor Pro Tem
2005, before me appeared Ray Beard to me
pe o y o g y y ,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 aclrnowledged said
instrument to be the free act and deed of said City.
STATE OF MISSOURI )
SS
COUNTY OF PLATTE )
On this ~' day of
rs nall lcr- wn who bein me dul sworn
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in the
County and State aforesaid, the day and yeaJ
My commission expires: ~~~ a 009
Np-/1R1- BUC - N ffEAl
~Ote of A~AIUOyUA
~M CAmmlaion E>~iret ~. Z009
Commission #~ 054e4 S3
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~~ASSIGNEE"
DATE: VA/y, `~ , 200
LAM-~°~N y
Missouri G~nin~ Ger-pe~a~ieu, a Missouri
Name: L~ (~ ~. ~l r-~ ~ LL V1 g
Title: V V ~LL Ln -~
STATE OF MISSOURI )
SS
COUNTY OF~ )
On this ~ day of 200,8, before me appeared ~r ,P NscNto me
personally known, who, bei by me du sworn, did say that she is the ,of
Missouri Gaming Company, a Missouri corporation, and that the seal affixe to the foregoing
instrument is the corporate seal of said corporation, and that said instrument was signed and
sealed on behalf of said corporation, by authority of its Board of Directors; and said
~~-~ ~ ,jOfJrVSdtJ acknowledged said instrument to be the free act and deed of said
Corporation.
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.
r
N /Public
My commission expires:
K
CyMMa A. Jartar
Notary PubNe - Nobly Seal
State ar 1Aleeouri
cClesy CourllY"
Juw 25 2007
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"SELLER"
DATE: ~ ~ oZ 2005
William T. Mann
illiam T. Mann
STATE OF MISSOURI )
SS
COUNTY OF ~I~. ~ )
On this ~ day of Cern~J~ , 2005, before me, appeazed WILLIAM T. MANN,
to me personally lrnown, 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.
1N WITNESS WHEREOF, I have hereunto set my h d and affixed my notarial seal at
my office the day and yeaz last above written. ~ ~ ~
Notary
My commission expires:
LYiviV Ck~ADr=F? ~
Notary Public-State of A~issouri
Commissioned in Platte County
My Commission Expires' Sept ~I~i %~)' ~'
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EXHIBIT A TO ASSIGNMENT, ASSUMPTION AND EASEMENT AGREEMENT
ASSIGNED PROPERTY
LEGAL DESCRIPTION
BOSS0790 June 21, 2005
Mann Property Wetlands Property Descriptions
DESCRIPTION:
TRACT A:
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,
TOWNSHIl' S2 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 PO1T 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 DESCRIPTION.
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EXHIBIT B TO ASSIGNMENT, ASSUMPTION AND EASEMENT AGREEMENT
AMENDED AND RESTATED SALE OF REAL ESTATE INTEREST AGREEMENT
(Attached Hereto)
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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 Pronertv. 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
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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 carry 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 instalhents 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
t 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.
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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.
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8. Closin 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
whch 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
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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 preparation 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 &ee 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
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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 Environmental 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 Buyer: 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
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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 Teesdale 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. Headin¢s. 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
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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. Recording. 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. Counterparts. 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 Agreement. 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 acknowiedge 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]
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NOW, THEREFORE, the parties execute this Agreement as of the date first set forth
above.
"SELLER"
William T. Mann
1 A~~ ~
~liam T. ann
STATE OF MISSOURI )
COUNTY OF lq,~-~ j SS
On this day of ~ 2~ 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
&ee act and deed of the same.
IN WITNESS WHEREOF, I have hereunto set my 1}~nd and affixed my notarial seal at
my office the day and year last above written. ~~ ~ /J
My commission expires:
LYNN GRADER
Notary Public-State of Missouri
Commissioned in Platte Couniy
My Commission Expires: Sept. 11, 2007
9
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uCITY»
City of Riverside, Missouri
By: ~~/~~`~~
Ray Beard, Mayor Pro Tem
STATE OF MISSOURI )
SS
COUNTY OF PLATTE )
On thisc~ "day of 2005, before me appeared Ray Beard to me
personally known, who, being 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.
N ary Public
My commission expires: ~ .'?8, .?Od~'
~~~'~~• ~II~IIL
Mr-C~p~
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EXHIBIT A
PROPERTY
LEGAL DESCRIPTION
BOSS0790 June 21, 2005
Mann Property Wetlands Property Descriptions
DESCRII'TION:
TRACT A:
A TRACT OF LAND LOCATED IN SECTION 4, TOWNSHIP 51 NORTH, RANGE 35 WEST,
PLATTE COUNTY, MISSOURI, BEING MOR$ 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 DESCRII'TION.
AND
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 n T. t o y T ~~
EXHIBIT B TO SALE AGREEMENT
RESTRICTIVE COVENANT AND EASEMENT AGREEMENT
STATE OF MISSOURI )
COUNTY OF PLATTE )
THIS RESTRICTIVE COVENANT AND EASEMENT AGREEMENT ("Agreement's 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, Missourii ("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 a fourth-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.
t 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.
..r .. . Y t n n 1' i i i T t6
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 `Ternut'~ 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 Dollars
($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? 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 Plant'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:~CLI6NTS~61492~A0074~R0457037.DOC 2
,.~. .., ~ n n ~ 1 it T rc
mining, removal of topsoil, sand, rock, gravel, minerals or other materials on the
Properly, 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
1:SCI.IBNTS~61492~A0074~IC0457037.DOC 3
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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:JCLI8NT3~6I49TA0074~IC0457037.DOC t~
i.r .' i t °1 1< 1. r it t rr
(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:~CUBNTS161492W0074~R0457037.DOC 5
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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 year last above written.
Notary Public
My commission expires:
I:~CLIBNTS~61492~00074~IC0457037.DOC
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IN TESTIMONY WHEREOF, THE CITY OF RIVERSIDE, MISSOURI has hereunto
set its hand and seal this day of 2005.
City of Riverside
ATTEST:
[SEAL]
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 &ee 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..
My commission expires:
is~aarrrs~tanvooo~artcoas~os~.noc
Notary Public
7
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EXHIBTT A
TO RESTRICTIVE COVENANT AND EASEMENT AGREEMENT
REPLACEMENT MITIGATION EASEMENT PROPERTY
LEGAL DESCRIPTION
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EXHIBIT B
TO RESTRICTIVE COVENANT AND EASEMENT AGREEMENT
ACCESS EASEMENT PROPERTY
LEGAL DESCRII'TION
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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.
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EXHIBIT C
TO RESTRICTNE COVENANT AND EASEMENT AGREEMENT
CORPS' APPROVED PLAN FOR REPLACEMENT MITIGATION
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EXHIBTT C TO ASSIGNMENT, ASSUMPTION AND EASEMENT AGREEMENT
LEGAL DESCRII'TION OF ACCESS EASEMENT PROPERTY
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 STRIl' CENTERLINE. CONTAINS 58152 SQUARE FEET , OR
1.33 ACRES, MORE OR LESS SUBJECT TO EASEMENTS, RESTRICTIONS AND
RESERVATIONS NOW OF RECORD.
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