HomeMy WebLinkAbout2004-106 - Sale of Real Estate Interest AgreementBILL NO. 2004-106
ORDINANCE NO. 2004-106
AN ORDINANCE AUTHORI7,ING THE EXECUTION OF SALE OF REAL ESTATE
INTEREST AGREEMENT FOR THE PURCHASE BY THE CITY OF CERTAIN
PROPERTY RIGHTS RELATED TO WETLANDS MITIGATION
WHEREAS, The City of Riverside (the "City") is in the process of developing a plan and
project for obtaining and maintaining property to meet the City's wetlands mitigation obligations
(the "Mitigation Project') in connection with the development of certain of the City's real
property located within the Riverside Horizons development area; and
WHEREAS, William T. Mann (the "Seller") is the owner of certain real property located
near Farley, Missouri, on which the Mitigation Project could be constructed (the "Property");
and
WHEREAS, the City desires to purchase, and the Seller desires to sell, certain interests in
the Property for uses inchtding the construction and maintenance of the Mitigation Project; and
WHEREAS, the City and the Seller have reached an agreement on a purchase price for
the interests in the Property.
NOW, THEREFORE, be it ordained by the Board of Aldermen of the City of Riverside,
Missouri, as follows:
Section 1. The City shall enter into an agreement with the Seller to purchase certain real estate
interests in the Property for a purchase price not to exceed Ninety Thousand and No/I00 Dollars
($90,000.00) (the "Agreement").
Section 2. The execution and delivery of the Agreement, in substantially the form attached
hereto as Exhibit A, is approved, the Mayor is authorized to execute the Agreement and to take
such other actions reasonably necessary to carry out the intent of this Ordinance on behalf of the
City, the execution of the Agreement being conclusive evidence of such approval.
Section 3. This Ordinance shall be in full force and effect from and after its passage and
approval.
Passed this ~l ~ay of November, 2004.
Mayor ~~
ATTEST: ": ( ~
1
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City "Clerk
SALE OF REAL ESTATE INTEREST AGREEMENT
"PHIS AGREEMENT, made as of the Effective Date, between William "I~. 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 ("Buyer").
RECITALS
WHEREAS, the 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 desires to purchase, and Seller desires to sell, certain interests in the
Property for uses including the construction and maintenance of replacement mitigation;
NOW, "I'HEREPORE, 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 Property. Por the price and upon and subject to the terms, conditions and
provisions herein, Seller shall sell and convey to the Buyer and the Buyer shall purchase from
Seller a perpetual conservation easement, and casement for egress and ingress in the form
attached as Exhibit B, free and clear of all liens and encumbrances, except as specifically
allowed in Section 2.
2. Subject Conditions.
a. The Buyer agrees to take its right and interest in the Property subject to
existing easements for public roads, highways, utilities and pipelines.
b. The Buyer and Seller agree to and shall comply with all covenants and
Agreement attached hereto as Exhibit B.
c. The Seller agrees to grant to Buyer that easement described in Exhibit [3
attached hereto to allow Buyer and its assigns and/or agents access to the
Property across Seller's adjacent property (the "Adjacent Property") for
construction and maintenance of "Replacement Mitigation" as defined and
described in Exhibit I3.
d. Neither the Restrictive Covenant and Easement Agreement nor any
regulatory agreement applicable thereto shall in any manner 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 Sellers ability to irrigate crops or sod or
carry on hunting activities on the Adjacent Property, except to the extent
such activities violate the provisions of the restrictive covenants and
easement granted in Exhibit B hereto.
c. The Property shall consist of twenty (20) acres. The Property and the
easement for egress and ingress shall be located as finally agreed by Buycr
and Seller in compliance with a stake survey. In the event that the parties
cannot reach an agreement as to the exact location, this Agreement shall
terminate immediately upon written notice from the party desiring
termination to the other party.
f. The Replacement Mitigation shall be constructed and maintained in
accordance with the Replacement Mitigation Plan attached hereto as
Exhibit C.
3. Purchase Price. The price to be paid by the Buyer to Seller is Four Thousand Fivc
hundred and No/100 Dollars ($4,500.00) per acre (the `Yer Acre Price"), for a total purchase
price of Ninety Thousand and no 100 Dollars ($90,000.00) (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, currently owed, if any. Buycr shall assume all of such
taxes and assessments, and installments of unpaid special assessments becoming due and
accruing after Closing with respect to the Property, 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 rated between the Seller and the 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 Buycr, such Seller's Option to be exercised within one
hundred twenty (I20) months after the Effective Date. Should Seller determine to exercise the
Seller's Option, Seller must notify Buyer in writing of such determination no less than (30) days
prior to the intended exercise and sale thereunder, and upon such exercise, Buyer must accept the
conveyance of fee title in the Property. If the Seller's Option is exercised, Seller shall also grant
Buyer a perpetual easement for ingress and egress to the land conveyed to Buyer, such perpetual
casement to be located as the Seller shall reasonably determine provided such easement does not
disqualify the Property as replacement mitigation.
6. Inspections and "tests b Buyer. At any time and from time to time during the
term of this Agreement, the 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 the Buyer, in the Buyer's sole discretion, desires, including without
limitation: (i) tests with respect to the conditions of the soil; (ii) feasibility studies; (iii) the nature
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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 the Buyer's sole cost
and expense. Such tests, inspections, investigations, feasibility studies, surveys, etc., may
include, but shalt 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 Buyer's Obligation To Close.
a. 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 the Buyer in its sole and absolute
discretion:
(i) Title Work: Receipt of the survey of the Property and completion
of title work with respect to the Property, acceptable to the Buyer in its
reasonablc discretion.
(ii) 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 the Buyer.
(iii) 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.
b. A portion of the Property is an oxbow lake the water for which is partially,
and possibly at times fully, provided through a water source located on the land
adjacent to and south of the Property (the "Adjacent Land"). The water source
for the oxbow lake portion of the Property is controlled by a flap valve system
located on the Adjacent Land, and access to the water source, and thus the flap
valve system, is a critical component of the Replacement Mitigation plan.
Therefore, the parties agree that prior to Closing Seller shall cooperate with Buyer
and take reasonablc steps necessary to secure an agreement with the owner of the
Adjacent Land in connection with access to and use of the Ilap valve system to
allow desired and reasonablc water flow to the oxbow portion of the Property. hl
the event that Buyer is unable to secure such an arrangement and agreement with
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owner of the Adjacent Land on terms and in a form acceptable to Buyer prior to
Closing, the parties agree that the Buyer shall be under no, and shall be
discharged from every, obligation under this Agreement, including without
limitation any obligation to pay the Purchase Price. Nothing herein shall be
construed so as to prevent the Buyer from waiving this condition to purchase and
proceeding to Closing without an acceptable agreement or arrangement
contemplated in this subsection
8. Closing_Date. The closing shall take place on llecember 22 2004, or
such other date as the parties shall agree upon in writing (the "Closing" or "Closing Date"). "The
reasonable, standard and ordinary closing and escrow charges of the "Title Company shall be paid
by the 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.
9. Survey and Title Commitment. The 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 the 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. The Buyer shall cause to be prepared a commitment for
the title policy (the °Title Commitment") to be issued by a title company authorized to issue title
insurance in Missouri (the "Title Company"). Any matters specifically identified on the Title
Commitment to which the 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 the Buyer.
Seller shall have until the Closing Date in which to make any corrections to matters to which the
Buyer has objected to in writing by the written statement If such matters are not corrected by
the Closing Date, the Buyer's sole remedy shall be either (a) accept such title as Seller is able to
deliver, with reasonable diminution of the Purchase Price, or (b) tcnninatc this Agreement by
written notice to Seller. If the Buyer does not so notify Seller, the 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 the
Buyer to enter into this Agreement, Seller represents to the Buyer that:
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a. Authority. Seller has the authority and power and has obtained any and all
consents required therefor to enter into this Agreement and to consummate and/or
cause to be consummated the transactions provided for by this Agreement. Each
and every person signing this Agreement and all related documents on behalf of
Seller is authorized to do so. This Agreement has been and all documents to be
executed by Seller pursuant to this Agreement will be, authorized and properly
executed and does and will constitute the valid and binding obligations of Seller,
fully enforceable against Seller in accordance with their respective terms.
b. No Encumbrances. The Property will be free of any and all encumbrances
and liabilities as of the Closing Date.
c. Conflict. Consummation of suc1~ 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.
c. Withholding Obligation. This transaction is not subject to any federal,
state or local withholding obligation of the 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
Iazardous 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 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 Iazardous
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
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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 Agrecment.
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 the Buyer which date may be the Closing Date or any date thereafter as long as the
Buyer provides Seller with at least fifteen (1 S) 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 writte^ 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 Agrecment 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 Bum: William "f. Mann
9601 N. Platte Purchase Drive
Kansas ('i ~~ din 64155
Fax: (816) 436-6316
copy to: Keith W. Hicklin
Witt &Hicklin, P.C.
4`~' and Main, P.O. Box 1517
Platte City, Missouri 64079
Telephone: (816) 858-2750
Fax: (816)858-3009
"fo Seller: The City of Riverside, Missouri
2950 NW Vivion Road
Riverside, MO 64150
Attn: David Blackburn, City Manager
copy to: Matt Kitzi, Fsq.
Armstrong ~feasdale LLP
2345 Grand Blvd.
Suite 2000
Kansas City, MO 64108
Telephone: (816) 221-3420
Facsimile: (816) 221-0786
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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 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 IJssence. 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 airy obligation to incur any additional
liability or expense, on or after the Closing any further deliveries and assurances as may he
reasonably necessary to consummate the transactions contemplated hereby or to further perfect
the conveyance, transfer and assignment of the property interests to the 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 camlot be ascertained to
have been fully performed until after the Closing Date, shall survive the Closing Date.
18. Successors. "hhis Agreement shall inure to the benefit of and bind the parties and
their respective successors and assigns.
19. Headings. 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
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 'hwo Thousand Pive Hundred Dollars
($2,500.00), incurred by Seller in the negotiation and preparation of this Agreement.
22. Governing Law. 'I'bis Agreement shall be governed by the laws of Missouri
without regard to its conflict of laws statute.
23. 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.
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24. Entire Agreement. This Agreement and the Restrictive Covenant and Easement
Agreement attached as Exhibit B contain the entire agreement between Seller and the Buyer, and
there are no other terms, conditions, promises, undertakings, statements or representations,
express or implied, concerning the sale contemplated hereunder.
25. Effective Date. The Effective Date of this Contract 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 the Seller and delivered to the Buyer within ten
(10) days of the Buyer's execution of this Agreement, unless such date is extended by the Buyer
in writing.
26. 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 agrees
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 Seller from any loss, liability, damage,
cost or expense, including without limitation, reasonable attorneys' fees, court costs and other
legal expenses paid or incurred by Seller that is in any manner related to such a claim. By
execution of this Agreement, the parties acknowledge receipt of the Missouri Broker Disclosure
Dorm and the Agency/Broker Disclosure Addendum which indicate the type of agency
relationship being provided to the parties.
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NOW, TIIERIiPORG, the parties execute this Agreement the date set forth below next to
each parties respective signature.
William T. Mann ("Seller")
z ~
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~illiam T~Nlann
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City of Riverside, Missouri ("Buyer")
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[notary blocks on following pages]
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STATE OP MISSOURI )
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COUNTY OF -~~ )
On this o~^`'Qday of _(~ ~, 2004, 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 WITNIJSS WHEREOF, I have hereunto set my hand and affixed my notarial seal at
my office the day and year last above written.
My commission expires:
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COUNI~Y OF ~~. )
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On this ~~~~ay of ~ ?E!~ Lf~'i"~~z_,. 2004, before me appeared ~~!~ ~~rir ~ to
me personally known, who, b ing by me duly sworn, did say that r~ ~ ~ is the
Mayor of THE CI"fY OF RIVERSIDE, MISSOURI, and that the seal affixed to~thc 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
~~~> ~, „ ~ and State aforesaid, the day and year first above written.
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No ry public
My.commission expires:
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Platt% County
MvCommisslor~Fxr~eesAug.28.200E
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ary Public
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EXHIBIT A
Legal Description of the Property Subject to Seller's Approval and Consent
I:X',III3IT B
RESTRICTIVE COVENANT AND EASEMENT AGREEMENT
STATE OF MISSOURI )
COUNTY OF PLATTE )
THIS RESTRICTIVE COVENANT AND EASEMENT AGREEMENT ("Agreement") is
executed as of the day of 2004, by and between William T. Maml, an
9F~1 ?V. Platte Purchase brand
unmarried individual ("Land Owner") having an address at ~~~~~~~~, ~~ ~~z~~
The City of Riverside, Missouri ("Riverside"), having an address at 2950" 1VW Vivion Road,
Riverside, Missouri.
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 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.
D. Pursuant to applicable Federal law and the requirements of the U.S. Army Corps of
Engineers (the "Corps"), Riverside will need to obtain a permit pursuant to Section 404 of the
Clean Water Act (a "Permit") to engage in and complete the Project, and will need to present a
plan for replacement mitigation related to wetlands resources for the Project (the "Replacement
Mitigation"), and desires to do so using the Property.
E. Land Owner, for the consideration described below, desires to 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 an easement to Riverside and its affiliates, contractors, subcontractors, and
representatives, to assist in the creation 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 acknowledged, Riverside and Land Owner hereby agree as follows:
1. Restrictive Covenants. Subject to the limitations herein, Land Owner agrees that
the Property shall be used solely for the creation, monitoring and maintenance of the
MattKitzi -~ `•;~ ~ "~
mkitzi~armstron~yteasdale.com ~, .~, ~~,i'' 1
ARMSTRONG TEASDALE LLP
MISSOURI ~, KANSAS ILI,IN OIS ~ R'A SHIN GTO N, llC NEW SOKK, NY
November 4, 2004
Mr. Keith Hicklin
Witt &Hicklin, P.C.
4th at Main, P.O. Box 1517
Platte City, MO 64079
I SILANGfIAI ~'~, STDNG}'
i.- ___ _. ____.. __
ATTORNEYS AT LAW
Re: Sale of Real Estate Interest Agreement-Bill Mann/City of Riverside
Dear Mr. Hicklin:
In response to your letter of October 21, 2004, we have revised the Sale of Real Estate
Interest Agreement to be executed by the City of Riverside and your client, Bill Mann. I have
enclosed herein a copy of the revised Agreement along with a comparite which reflects those
changes. If the Agreement as revised is satisfactory, please contact me at your earliest
convenience. The City of Riverside approves all contracts and agreements by ordinance, and we
will need to prepare an ordinance and have it brought before the Board of Aldermen for its
consideration. I look forward to hearing from you soon.
Best regards,
Matt Kitzi
MDK/amc
Enclosures
ce: Betty Burch
David Blackburn
2345 GRAND BOULEVARD ~ SUITG 2000 ~ KANSAS Cll'Y, MISSOURI 6h 108-2617 ~ TEL: 516.221.3420 ~ PAX: 816.221.0786
w o~~c.ann clmn8l ra sd nl e.rom
Page 1 of 1
Louise Rusick
From: Matthew Kitzi [MKITZI@ArmstrongTeasdale.com]
Sent: Friday, October 29, 2004 4:20 PM
To: Louise Rusick
Cc: David Blackburn
Subject: Documents for Betty
Louise: Please print the two attached documents and deliver them to Kathy, so she can take them up to Betty. Also,
please print this email and deliver with the documents so Betty can review the following comments:
On the Mann Purchase Agreement, Mr. Mann's attorney has made 3 additional requests:
1. He wants to add a copy of the Replacement Mitigation Plan to the agreement as an exhibit. At this time, of course,
there is no plan, and the City has not hired anyone to create the same. If we're going to add the Plan to the contract,
we'll need to get that started pretty soon.
2. Mr. Mann wants the right to sell the property to the City for $1.00, and he wants to be able to exercise that right
during the first 10 years after the agreement. I assume he wants to do this just in case Mr. Mann, after a few months or
years of the easement arrangement, decides it's too much of a hassle and wants to sell the entire parcel. We need to
determine whether the City wants to take on the obligations and responsibilities of actually owning the wetlands, rather
than just enjoying a restrictive covenant and easement.
3. Mr. Mann wants the City to pay his attorneys' fees on this deal. His suggestion is that the City pay no more than
$2,500.00.
Please call with any questions (cell phone: 816.898.3023).
Matt Kitzi
Armstrong Teasdale LLP
Telephone: 816.221.3420
Facsimile: 816.221.0786
mkitzi~~CZrmstrongteasdale. com
10/29/2004
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 conduct and maintain the mitigation measures in accordance with a plan for
Replacement Mitigation (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, mining, removal of topsoil, sand, rock, gravel, minerals or other materials on
the Property, except to conduct the mitigation measures and maintain the Property in
conformance with a Plan. Landowner 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 compliance
liability for the replacement mitigation, including 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 this declaration.
2. Grant of Easement. Land Owner hereby grants and conveys to Riverside and its
affiliates, contractors, subcontractors, agents and representatives, and authorized
representatives of the Corps, anon-exclusive easement (the "Easement") over and across
Landowners' adjacent real property, for the sole purpose of egress and ingress across
such land in connection with the construction, development, creation, maintenance and
monitoring of the Replacement Mitigation on the Property in accordance with a Plan.
The Easement shall be located as finally agreed by Riverside and Land Owner in
compliance with a stake survey as depicted on Exhibit "B" attached hereto. Upon Land
Owner's receipt of written notice from Riverside or its contractor of the completion or
termination of the maintenance and monitoring of the Replacement Mitigation, the
Easement provided for in this Paragraph 2 shall terminate. Riverside shall maintain
general comprehensive liability insurance on the Property during the term of the
Easement 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. No term or
condition of this Agreement shall in any manner impair Seller from carrying on normal
farming activities including, but not limited to, raising row crops, sod or animals on real
estate owned by Seller which is adjacent to the Property (the "Adjacent Land") nor shall
said Agreement impair Seller's ability to irrigate crops or sod or carry on hunting
activities on the Adjacent Land, provided that such activities are not specifically
prohibited in a Plan. The Land Owner does hereby agree to allow the Corps the right to
enter the Property at all reasonable times for the purpose of inspecting the Property to
CVDOCUME-I~KEITHVLOCALS-IATGMPU2estric~ive Covenant and 2,
Gasemcnt Agreement (K0408980-2) DOC
determine if the Land Owner, or it heirs or assigns, is complying with the covenants and
purposes of this declaration.
3. Riverside's Duties. Riverside or its affiliate shall be responsible for the creation of
the Replacement Mitigation 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 or its affiliate shall notify Land Owner in writing
after completion of the work necessary for the creation of Replacement Mitigation at the
Property. Riverside or its affiliate shall cause the Replacement Mitigation to be
monitored and maintained as set forth in its Permit and pay for all costs incurred in
connection therewith. If Riverside fails to maintain the Property in conformance with a
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. I3inding Effect. The Easement and Restrictive Covenant 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. The Restrictive Covenants shall remain in full force and effect in
perpetuity until terminated or modified pursuant to this Agreement by the then owner of
the Property, if allowed pursuant to applicable legal requirements, and subject to the prior
consent of Riverside or its affiliate, successor or assignee, if, and only if, approved by the
Corps in writing, witnessed, authenticated and recorded pursuant to the laws of the state
of Missouri.
6. Indemnification of Riverside. Land Owner agrees to protect, hold harmless,
defend, and indemnify Riverside, and its affiliates, directors, officers, shareholders,
partners, employees, contractors, subcontractors, counsel, agents and representatives
from an 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 or its affiliates or contractor has
given Land Owner written notice of the completion of the creation activities.
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
CiDOCUMG-IAKFITHVLOCALS-IATGMPAReslriclivc Covcnam and 3
hWSement Agrecnunl (K0408980-3) DOC
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.
(a) Governing La~~. This document shall be interpreted and enforced
according to the laws of the State of Missouri.
(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 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) Defauh. 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, attorneys' fees and
costs.
(f) Enfcn~ced by Corps. The Land Owner does hereby insure the right of the
Corps, in a reasonable manner and at reasonable times, to enforce by proceedings
at law or in equity the covenants hereafter set forth. The Corps does not waive or
forfeit 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 Seller's Option in the Sale of Real Estate Interest Agreement
entered into between Landowner and Riverside in connection with this
Agreement.
C:~DOCUME-IAKEITHU.OCALS-IA'CGMPAReslrictive Covenant and 4
Gasemenl Ay~eement (K0408980-?).DOC
TN WITNESS HEREOF, this Agreement is executed as of the date first above written.
William T. Mann ("Land Owner")
William T. Mann
City of Riverside, Missouri ("Riverside")
By:
Its:
C ~OCUMB-IAKLI"fl-fU.OCALS-1ATBMPAFtes~rictire Covenant and 5
Easement Agreement (K0408980-2).DOC
IN TESTIMONY WHEREOF, WILLIAM MANN has hereunto set its hand and seal this
day of , 2004.
WILLIAM T. MANN
Bv:
William T. Mann
STATE OF MISSOURI )
SS
COUNTY OF )
On this day of , 2004, before me, appeared WILLIAM "f. 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:
C ~~UOCUMG-IUCHITHU,OCAI,S-IA"1 L'MP`dicstric~icc Covcnnnt and 6
Gasemcnt Agrccmcm (K0408980-2) DOC
IN TESTIMONY WHEREOF, the CITY OF RIVERSIDE, MISSOURI, has hereunto set its
hand and seal this day of , 2004.
CITY OP RIVERSIDE, MISSOURI
By:
Its:
STATE OF MISSOURI )
SS
COUNTY OP )
On this day of 2004, before me appeared Betty Burch to me
personally known, who, being by me duly sworn, did say that she is the Mayor of CITY OP
RIVERSIDE, fourth-class Missouri municipality and that the seal affixed to the foregoing
instrument is the seal of said city, and that said instrument was signed and sealed in 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 afllxed my official seal in the
and State aforesaid, the day and year first above written.
Notary Public
My commission expires:
C'VDOCUMH-I VCEITH\LOCALS-IATEMPARestnctive CovenaN and 7
Easement Agreement (K0408980-2) DOC
EXHIBIT A
Legal Description of the Property
Subject to Seller's npproval
and Consent
C~DOCUMF.-I`KGI"I~I I~LOCALS-IA"I~GMP1Rcstrfc~ive Coccnnm and
L'asemem Agreement (KOJ08980-2).DOC
City of
IVERSIDE
2950 NW Vivion Road
'` Riverside, Missouri 64150
816-741-3993 or FAX 816-746-8349
www.riversidemo.com
~~T- _ _F55
~ ISSOII I'l
December 16, 2004
Keith Hicklin
Witt &Hicklin, P.C.
Fourth at Main
P.O. Box 1517
Platte City, Mo 64079
Dear Mr. Hicklin:
Enclosed you will find one original contract for the sale of a real estate interest agreement
between the City of Riverside and William T. Mann.
Sincer ~ ~
Louise Rusick,
City Clerk
Enc.
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(, !(i, 9
November 29, 2004
:YIs. Louise Rusicl:, City Clcrl:
City of Riverside
2)50 N~V Vivion Road
Riverside, MO 6=11 ~0
RE: Riverside/Mann Sale of Kcal Estate
Interest Agreement
Deac Ms. Rusick:
Enclosed arc two (2) originals of the ~ibove referenced Agreement which I have
notarircd per your request As noted in ow- telephone conversation and as set forth on
Exhibit A to the Agreement, the Agreement is subject to Scllcr's approval and consent of
the legal description ~~-hich is to be attached ~,vhen completed.
Yours tidy, '
~- ~
~~
~- - ~ - ~ ~'~ ~H ~-
:H ~~
Kc~ 1 W. Hicl<lin
KH:mc
Enc.
City of
IVERSIDE
- 2950 NW Vivion Road
"` Riverside. Missouri 64150
816-741-3993 or FAX 816-746-8349
- www.riversidemo.com
~ lgKe PRIDEJIN OUR PROGR~
Missouri
November 24, 2004
Keith W. Hicklin
Witt &Hicklin, P.C.
4°i and Main
P.O. Box 1517
Platte City, Mo 64079
Dear Mr. Hicklin:
I am returning the two Sale of Real Estate Interest Agreements so that someone can
notarize Mr. Mann's signature. After notarizing, please return both agreements and I will
have Mayor Burch sign both, have them notarized and return one original to you.
Sincerely,
~~
~~Louise Rusick,
City Clerk
encs
Page l of l
Louise Rusick
From: Matthew Kitzi [MKITZI@ArmstrongTeasdale.com]
Sent: Tuesday, November 09, 2004 4:33 PM
To: Louise Rusick
Cc: David Blackburn
Subject: Mann Purchase: Ordinance and Contract
Louise:
I've attached an ordinance approving the sale of real estate interest agreement between the City and Bill Mann for the 20
acres of wetland mitigation property. I've also attached a copy of the agreement, which the Mayor should NOT sign, but
which instead should be attached as an Exhibit to the ordinance. The Mayor should sign the agreement AFTER Mann
signs and delivers it. I think certain of the Board members want this contract approved as soon as possible, so it should
be put on the agenda for the next meeting. David, I guess we should discuss (1) hiring Steve Parker to do the mitigation
plan, (2) who is going to do the legal description and stake survey of the property and (3) how to go about getting Mann's
neighbor to agree to assist with the flap valve system issue.
Matt Kitzi
Armstrong Teasdale LLP
Telephone: 816.221.3420
Facsimile: 816.221.0786
mkitzi~~czrmstrongteasdale. com
J
11 / 19/2004