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HomeMy WebLinkAbout1951 Authorizing and Approving an Option to Purchase Certain Real Property Agreement by and Between The City and M.S. Restoration LLC BILL NO. 2023-060 ORDINANCE NO. l / 5 AN ORDINANCE AUTHORIZING AND APPROVING AN OPTION TO PURCHASE CERTAIN REAL PROPERTY AGREEMENT BY AND BETWEEN THE CITY OF RIVERSIDE, MISSOURI AND M.S. RESTORATION LLC, OR ITS ASSIGNEE AND AUTHORIZING OTHER DOCUMENTS AND ACTIONS RELATED THERETO WHEREAS, the City of Riverside, Missouri (the "City") owns certain real property, commonly known as Hydro Conduit Lot 1 , as further described on Exhibit A attached hereto and incorporated herein by this reference (the "Property"); and WHEREAS, M.S. Restoration, LLC, a Missouri limited liability company ("M.S. Restoration"), has expressed an interest to purchase that certain parcel of property to develop and use such parcels potentially for an office industrial building with office and warehouse uses (the "Proposal)"; and WHEREAS, the City desires to sell Hydro Conduit Lot 1 to M.S. Restoration and M.S. Restoration desires to purchase Hydro Conduit Lot 1 from the City, all upon the terms and conditions yet to be determined, and which must be finally passed and approved by the Board of Aldermen and approved by the Mayor of the City : and WHEREAS, M.S. Restoration has requested additional time to formulate a purchase and development proposal; and WHEREAS, City Staff recommend the City authorize the execution of an exclusive Option to Purchase Real Property Agreement ("Agreement") substantially similar to the Agreement attached hereto as Exhibit B and incorporated herein, by and between the City and M.S. Restoration to provide M.S. Restoration until December 4, 2023, to submit a proposed purchase and sale and development proposal to the City; and WHEREAS, the City will not market the site to any other individual or entity for the term of the Option to Purchase Agreement; and WHEREAS, the Board of Aldermen find that the execution of an exclusive Option to Purchase Real Property Agreement by and between the City and M.S. Restoration to provide M.S. Restoration until December 4, 2023, to submit a proposed purchase and sale and development proposal to the City fulfills a public purpose and will provide an opportunity to further the growth of the City, facilitate the development of Riverside, improve the environment of the City, increase the assessed valuation of the real estate situated within the City, increase the sales tax revenues realized by the City, foster increased economic activity within the City, increase employment opportunities within the City, enable the City to direct the development of Hydro Conduit Lot 1 , and otherwise be in the best interests of the City by furthering the health, safety, and welfare of its residents and taxpayers. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF RIVERSIDE, MISSOURI AS FOLLOWS: JC 17518836.1 SECTION 1 — BEST INTEREST OF THE CITY TO APPROVE THE OPTION TO PURCHASE REAL PROPERTY AGREEMENT BY AND BETWEEN THE CITY AND M.S. RESTORATION, LLC. It is in the best interest of the City, in order to provide an opportunity to further the growth of the City, improve the environment of the City, foster increased economic activity within the City, increase employment opportunities within the City, further the objectives of the TIF Plan, further build out the public infrastructure and otherwise is in the best interests of the City by furthering the health, safety, and welfare of its residents and taxpayers, to enter into an exclusive Option to Purchase Real Property Agreement substantially similar to the Agreement attached hereto as Exhibit B and incorporated herein, by and between the City and M.S. Restoration to provide M.S. Restoration until December 4, 2023, to submit a proposed purchase and sale agreement and development proposal to the City. SECTION 2 — AUTHORITY GRANTED. The Mayor is authorized to execute and deliver the Agreement in substantially the form attached hereto as Exhibit B and incorporated herein, with such changes therein as are approved by the Mayor. The Mayor, City Administrator, Special Counsel to the City — Spencer Fane LLP, and other appropriate officials and employees of the City are hereby authorized and directed to take any and all actions as may be deemed necessary or convenient to carry out and comply with the intent of this Ordinance and to execute and deliver for and on behalf of the City all certificates, instruments, agreements and other documents as may be necessary or convenient to perform all matters herein authorized. SECTION 3 — EFFECTIVE DATE. This Ordinance shall be in full force and effect from and after its passage and approval. BE IT REMEMBERED that the above was read two times by heading only, PASSED AND APPROVED by a majority of the Board of Aldermen and APPROVED by the Mayor of the City of Riverside, Missouri, this 3rdth day of October 2023. athleen L. Rose, Mayor RTTE Robin Kincaid,'City Clerk Approved as to form: S nc ane LLP, Sp • nsel to the City by Joe Bednar JC 17518836.1 OPTION AGREEMENT THIS OPTION AGREEMENT ("Agreement") is made and entered into as of the 3 R� day of October, 2023 (the"Effective Date"), by and between the City of Riverside, Missouri, a fourth-class city organized and existing under the laws of the State of Missouri (hereinafter referred to as "City"), and M.S. Restoration LLC, a Missouri limited liability company, or its assigns ("Developer"). In consideration of the agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City and Developer hereby agree as follows: WITNESSETH: WHEREAS, City is the owner of the approximately 3.54 acre tract of real property, and all improvements located thereon, located in the City of Riverside, Platte County, Missouri, as legally described on Exhibit"A" and identified on Exhibit"B" attached hereto and made a part hereof(the"Option Property"); WHEREAS, in exchange for the consideration described herein,the City hereby agrees to grant the Developer an exclusive right and option to acquire the Option Property for purposes of designing, constructing and developing an office, retail, commercial and/or industrial improvements to be located upon said real property all upon the events and under the terms set forth herein. NOW, THEREFORE, for and in consideration of the mutual covenants, conditions, stipulations, agreements and obligations hereinafter set forth,the City and the Developer agree as follows: 1. Grant of Purchase Option. The City hereby grants to the Developer or the Developer's successors or assigns, the exclusive right and option to acquire the Option Property from the City, on and subject to the terms and conditions hereinafter set forth(the"Option"). 2. Term of Option. The Option shall continue in effect up to and including April 30, 2024(the"Option Period"). 3. Exercise of Option. The Developer may exercise the Option at any time prior to the expiration of the Option Period by providing written notice to the City, delivered either by hand delivery, overnight delivery service, or by mail,to the City Administrator who is authorized to receive said proposal on behalf of the City on or before the expiration of the Option Period. The Option shall be deemed exercised on the earlier of: (i) the date the notice is personally delivered to City; or(ii) the date the notice is delivered to the mail or overnight delivery service (the "Option Exercise Date"). The Developer's notice shall specify the Closing Date (as hereinafter defined), which shall be no later than one hundred twenty (120) days from the date the notice is delivered. 4. Option Purchase Price. (a) Upon the execution of this Agreement, the Developer shall pay to the City in immediately available funds the amount of Three Thousand and 00/100ths Dollars ($3,000.00) as consideration for the granting of the Option and this Agreement ("Option Consideration"). Upon payment of the Option Consideration, the Option Consideration shall be deemed non-refundable. The Option Consideration is applicable to the Option Price. (b) In the event the Option is exercised by the Developer, the purchase price for the Option Property shall be $3.50 per square foot or Five Hundred Thirty Nine Thousand, and 46/100ths Dollars (the "Option Price"). The Option Price, subject to all prorations, credits and adjustments as provided in this Agreement, shall be payable in immediately available funds by the Developer to the City at Closing (as hereinafter defined). Based on a surveyed square footage of 154,000.13, the Option Price shall be$539,000.46. 5. Option Closing Date and Possession. In the event the Option is exercised by the Developer, the Closing ("Closing" or "Closing Date") shall be the date as set forth in the Developer's notice exercising the Option, as provided in Section 3 hereof; provided however,the closing shall be no more than one hundred twenty (120) days following the date of the notice. The Developer shall be entitled to possession of the Option Property at Closing. Closing shall be at a title company selected mutually by the City and the Developer (the "Closing Service"). At Closing, the City shall convey fee simple marketable title to Developer. The City shall deliver exclusive possession of the Option Property free of any third-party claims, liens, occupancy rights, or leases. At Closing, the City shall deliver to the Developer and Closing Service the following documents: (a) Special Warranty Deed subject only to the Permitted Exceptions (as defined in the "PSA" (defined below)), (b) Title Company's Owner's Affidavit, (c) FIRPTA Affidavit, and (d) such other documents as required by the Title Company to deliver an acceptable Owner's Policy of Title Insurance to Developer. 6. Records. Within fifteen (15) days from the Effective Date and at all times during the Option Period and prior to the Closing Date, as new or additional information becomes available, the City agrees to make available to the Developer for inspection and copying all information, documents, and other records in the City's possession, if any, relating to the City's title to the Property, taxes on the Property, and any information within the City's possession or under its control relating to its ownership of or the physical condition of the Property, including without limitation any prior surveys, environmental reports, geotechnical reports, and title policies (the "Records"). Except as otherwise provided herein, the City does not represent or warrant the accuracy of any of the information contained in the Records. 7. Access. During the Option Period, the Developer, its employees, consultants, contractors and subcontractors shall have the exclusive right to enter the Property for the purposes of conducting, at its sole cost and expense, such activities as may be necessary in the Developer's sole discretion to review the Property to determine its suitability for the purposes of the Option Property, including, but not limited to, Phase I and/or Phase II Environmental Site JC 17520616.2 Assessments, a survey (the "Survey"), core drilling, or any other similar activities that may be reasonably utilized by the Developer to determine the Property's suitability for the Developer's intended use. The Developer shall give the City at least five (5) days written notice prior to accessing the Option Property pursuant to this Section. Developer agrees to indemnify and hold the City harmless for all liabilities, damages and claims arising out of injury to persons or property as a result of Developer's inspections or other activities on the Property. 8. Option Closing Procedures. If this Option is exercised by the Developer, the conveyance of the Option Property shall be governed by a separately executed Purchase and Sale Agreement ("PSA") to be negotiated by the parties. Developer shall provide a form of PSA to the City within ten (10) days after exercising its Option and the parties shall negotiate the terms of the PSA in good faith. If the parties do not agree on the form of the PSA within thirty (30) days after the Option is exercised, either party may terminate this Agreement. The PSA shall not require an additional earnest money deposit as the Option Consideration shall serve as the earnest money deposit. 9. Affirmative Covenant of the City. From the date hereof to the Closing Date, the City shall not agree to sell, encumber or grant any interest in the Option Property or any part thereof to any party other than the Developer. The City agrees not to perform any work or make any improvements to the Option Property, prior to the Closing Date, other than work reasonably necessary to fulfill its governmental obligations as provided by law or determined by the Board of Aldermen to be in the best interests of the City to fulfill its obligations to the health, safety and welfare of its citizens and businesses. 10. Option Expenses. All recording fees, expenses, deeds and any other costs of this Agreement or the Closing, (including but not limited to Developer's attorneys' fees), recording fees, and this transaction, shall be borne solely by the Developer. The City shall be responsible for its own attorney's fees and expenses. 11. Default and Remedies under Option. In the event of default in the performance or observance of any provision of this Agreement by a party hereto, the parties hereto agree as follows: (a) The Developer's Default and the City's Remedies. In the event the Developer shall fail to perform the Developer's obligations hereunder or fails to perform any obligation or make any payment except as excused in writing by the City or by the City's default, the City shall make written demand upon the Developer for performance, and if the Developer fails to comply with such written demand within thirty (30) days after receipt thereof, the Developer shall be in default and the City's sole and exclusive remedies shall be to retain the Option Payment made to the City by the Developer. The above shall be deemed full and complete liquidated damages for the failure of the Developer to perform its obligations hereunder, the parties agreeing that in such circumstances actual damages would be difficult, if not impossible, to ascertain. Upon termination, the parties shall be discharged from any further obligation hereunder, except that the parties shall bear the costs and expenses set forth herein as were incurred prior to the event of default. It is expressly understood and agreed that the City shall not be entitled to specific performance of this Agreement in the event of the Developer's default. .1C 17520616.2 (b) The City's Default and the Developer's Remedies. In the event the City fails to perform the City's obligations hereunder, the Developer shall make written demand upon the City for performance, and if the City fails to comply with such written demand within thirty (30) days after receipt thereof, the City shall be in default the Developer may (i) sue to specifically enforce this Agreement and the PSA, or (ii) terminate this Agreement and receive its Option Consideration plus all out of pocket expenses incurred by Developer in connection with this Agreement and its due diligence. 12. Assignment. Neither party may assign its interests under this Agreement to a third party without the written consent of the other,not to be unreasonable withheld, conditioned, or delayed. 13. Binding Effect and Benefits under Option. Subject to the restrictions on assignment as set forth in Section 12 hereof, this Agreement shall run with the land, and shall be binding upon, and shall inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and assigns. 14. Governing Law. This Agreement shall be construed and interpreted in accordance with, and governed by,the laws of the State of Missouri. 15. Notices. Notices are given pursuant to this Agreement shall be in writing, shall be given by personal delivery, by facsimile, or by mailing the same to the party entitled thereto at the address set forth below or at such other address as either party may designate in writing to the other party pursuant to the provisions of this paragraph. Notices given by mail shall be sent by United States mail, certified or registered, return receipt requested, or by nationally recognized overnight courier service providing receipt of delivery. Notices shall be deemed to be received on the day of actual receipt, in the case of personal delivery, or on the date of receipt set forth in the confirmation of delivery, in the case of facsimile or mailing. Notices shall be forwarded to the following addresses and/or facsimile numbers, subject to change as provided above: (a) If to the City: Brian Koral City Administrator, City of Riverside 2950 NW Vivion Road Riverside, MO 64150 (b) If to the Developer: George Gunter III M.S. Restoration LLC 10604 NW 75th Terrace Weatherby Lake, MO 64152 JC 17520616.2 16. Counterparts. This Agreement may be executed simultaneously in two (2) or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. 17. Attorney Fees. In the event either party is required to bring an action to enforce any provision or right under this Agreement, the prevailing party as determined by a court of competent jurisdiction shall be entitled to its reasonable costs incurred in connection with such litigation, including reasonable attorney fees, and the unsuccessful party covenants and agrees to pay to the prevailing party the same. 18. Real Estate Broker. The City hereby represents and warrants to the Developer that the City has not submitted this transaction to any broker, finder or other agent whatsoever. The Developer hereby represents and warrants to the City that the Developer has not submitted this transaction to any broker, finder, or agent, and the Developer hereby agrees to indemnify the City for any claim, brokerage commission or finder's fee asserted by any person, firm, or corporation claiming to have been engaged by the Developer. 19. Construction. The parties acknowledge that each party and its counsel have reviewed and revised this Agreement, and that rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendments or exhibits thereto. 20. Entire Agreement. This Agreement constitutes the entire agreement between the parties in connection with the Option Property and supersedes any and all prior written or oral agreement or understanding between the parties in connection with this transaction. 21. Time of Essence. Time is of the essence in connection with all matters relating to this Agreement. 22. Memorandum of Option. The parties hereto agree that, simultaneously with the execution of this Agreement, the parties shall execute a Memorandum of Option Agreement for the purpose of recording with the Platte County, Missouri, Recorder of Deeds to provide the general public with notice of the Developer's Option to purchase the Option Property. The Memorandum shall be substantially in the form of that document attached hereto as Exhibit JC 17520616.2 IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the day and year set opposite their names. THE CITY: City of Riverside, Missouri Date: &ci o.h€,e_3, By: Ga.C44J Name: 'Alta L. Rose Title: Mayor THE DEVELOPER: M.S. Restoration, LLC Date: 10-27-2023 By: . Name: George Gunter III Title: Manager JC 17520616.2 EXHIBIT A LEGAL DESCRIPTION OF REAL PROPERTY SUBJECT TO THE OPTION TO PURCHASE AGREEMENT Property description: Hydro Conduit Lot 1 Parcel ID# 23-3.0-05-000-000-041.002. SEC.TWN.RNG: 5-50-33 ACRES: 3.54 JC 17520616.2 inii�' 'f error fr. raw,rob= „ 'a...-_ s3;0t 50'E nr +Y ''o•b' a.+s 140_, � _ --- ce m.1,0 gl W'lMr qr� vlmrh�• 1-J YX •i tik7r H:h.- �, SjJ1w- 8.. y�b�F y N007I'59"E ??d/6` ' r1 XU0.,D' ./.r - - E � v Wo..r 0.i�'v --__ ' ( 1r131SV NMX `iyr i T— 0' ,r ' b i I/w _ ••IW,v aA•r l rr• ' 44 ' ^ LOT 1 ^t /� ' — __ ,f g_--- , 7. b -• • � f� \ , s/,'`II 1a PI l ,f LOT 2 410 / ... f? , r iii- _ _., -..•�a r v At t - i , �q u 1- $ , `\� ```b4 1 `� 4v i -'...,... �n!/qp \��\\ JC 17520616.2 Recorded in Platte County, Missouri 1111111111111111111111111111111111 Recording Date/Time: 12/01/2023 at 10:54:04 AM Book: 1399 Page: 997 PQtll @A/OFOd vp•' Fo- Instr#: 2023011835 • !'' L."'" ,•a• ; Pages: 5 _'• 4' " Fee: S36.00 S 20230010728 Christopher L. Wright SPENCER FANE LLP Recorder of Deeds (Space above reserved for Recorder of Deeds certification) COVER PAGE FOR RECORDING 1. Title of Document: Memorandum of Option 2. Date of Document: October 3, 2023 3. Grantor Name and Address: City of Riverside, Missouri 2950 NW Vivion Road Riverside, MO 64150 Attn: Brian Koral, City Administrator 4. Grantee Name and Address: M.S. Restoration LLC, a Missouri limited liability company 10604 NW 75th Terrace Weatherby Lake, Missouri 64152 5. Legal Description: See Exhibit A 6. Book and Page Reference: N/A Error!Unknown document property name. Bc3c. 1 -' ' P-a. EA '9'97 • A • MEMORANDUM OF OPTION AGREEMENT Lpi EMORANDUM OF OPTION AGREEMENT ("Memorandum"), made this day of C7b , 2023, by and between the City of Riverside, Missouri, a fourth-class city organized and existing under the laws of the State of Missouri (hereinafter referred to as (the "City"), and M.S. Restoration LLC, a Missouri limited liability company (hereinafter referred to as the"Developer"). 6n0L-G-ie._WITNESSETH: 1. Effective 3 , 2023, the City and the Developer have executed and delivered an Option Agreement(the "Agreement"), wherein the City has granted to the Developer, and the Developer has accepted from the City, in exchange for good and sufficient consideration which both parties acknowledge, an option(the "Option") to purchase an approximately 3.54 acre tract of real property and all improvements located thereon, as more particularly described and depicted on Exhibit "A", attached hereto and made a part hereby this reference (the"Option Property")on the terms and conditions as set forth in the Agreement. 2. The purpose of this Memorandum is to give notice to all parties that the Developer has an interest in the Option Property pursuant to the terms of the Agreement. This Memorandum shall be recorded in the Office of the Recorder of Deeds for Platte County, Missouri, in lieu of recordation of the Agreement. [Signature Page to Follow] JC 17520616.2 Bt_._, I-:: 1 .99 F'-y- ci e 5'97 IN WITNESS WHEREOF, the parties hereto have executed this Memorandum as of the day and year first above written. THE CITY OF RIVERSIDE, MISSOURI: {�� By: 7107;(1 - r `- Kathleen L. Rose, Mayor ATTEST: By: Robin Kinca d, City Clerk ACKNOWLEDGEMENT STATE OF MISSOURI ) ) SS COUNTY OF PLATTE ) ON THIS 3 day of Odaiz-c, , 2023, before me, the undersigned, a Notary Public in and for said county and state, personally appeared Kathleen L. Rose, to me personally known, who being by me duly sworn, did say that she is the Mayor of the City of Riverside, Missouri, a municipal corporation duly organized and existing under the laws of the state of Missouri, and that the seal affixed to the foregoing instrument is the seal of said municipality, and that instrument was signed and sealed in behalf of said municipality by free act and deed of said municipality. WITNESS my hand and official seal in the County and State aforesaid, the day and year first above written. ROBIN L KINCAID NOTARY PUBLIC-NOTARY SEAT. Cd STATE OF I�Issouro Q Notary ublic Signature `.'`11sNTOEIJI MARCH I _._ COMMISSION#15390631 L.N L. I: a 1 C.a,i CI Printed or Typed Name My Commission Expires: Rcut, n g/ 7 JC 17520616.2 B an k: 1 399 P- sae 997 M. S.RESTORATION,LLC a Miissouri limited liability company Name: Geor Gunter Title: 7 7 , STATE OF MISSOURI ) COUNTY OF U ) ON THIS day of t \D , - , 2023, before me, the undersigned, a Notary Public in and for said county and state, personally appeared Geor e Gunter III, to me personally known, who being by me duly sworn, did say that he is the of M.S. Restoration LLC, a Missouri limited liability company, and that the instrument was signed and sealed on behalf of M.S. Restoration LLC, a Missouri limited liability company, by free act and deed on behalf of said company. _— NEE SaM V 1' KRYSTAN RE Notary Public, ` "n State f un Jackson 8 11412025 ry lic Si nature 9 D, �e \M Printed br Typed Name My Commission Expires: JC 17520616.2 Er 0.7 J I_ 1 1 99 q Et 997 Y EXHIBIT A LEGAL DESCRIPTION OF REAL PROPERTY SUBJECT TO THE OPTION TO PURCHASE AGREEMENT Lot 1 Hydro Conduit Final Plat, a Minor Subdivision in the City of Riverside, Platte County, Missouri, recorded in Book 21, Page 213, as Instrument No. 2016005512 on May 5, 2016 in the Platte County, Missouri Recorder of Deeds Office.