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HomeMy WebLinkAbout2003-101 - Second Amendment to the Investigation, Confidentiality and Escrow AgreementBILL NO. 2003-101 ORDINANCE NO. 2003-101 AN ORDINANCE APPROVING THE SECOND AMENDMENT TO "THE INVESTIGATION, CONFIDENTIALITY AND ESCROW AGREEMENT BETWEEN THE CITY OF RIVERSIDE, MISSOURI, KESSINGER/HUNTER & COMPANY, AND FARMERS EXCHANGE BANK (NOW PARK BANK), AND FURTHER AUTHORIZING AND APPROVING THE EXECUTION OF SAME AND THE PAYMENT OF CERTAIN FUNDS INTO ESCROW PURSUANT THERETO WHEREAS, the City of Riverside, Missouri (the "City"), Kessinger/Hunter & Company ("Kessinger/Hunter") and Farmers Exchange Bank, a Missouri banking corporation, now Park Bank ("Escrow Agent") entered into the Investigation, Confidentiality and Escrow Agreement dated September 25, 2002 (such agreement, as amended by the First Amendment, the "Agreement") pursuant to which the City and Kessinger/Hunter are causing certain Investigations (as defined in the Agreement) to be undertaken; and WHEREAS, the City and Kessinger/Hunter desire to provide for outstanding costs of the Investigations; and WHEREAS, the City and Kessinger/Hunter desire to extend the time period in which to execute a development agreement; and 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 a second amendment to the Agreement: (i) extending the time to December 31, 2003 for the execution of a Development Agreement; (ii) acknowledging and providing for the payment of outstanding amounts due for Tnvestigations; (iii) providing for the payment by the City of an additional $4,197.71 into the escrow held by Escrow Agent (with a similar payment being made by Kessinger/Hunter), for costs of Investigations; and (iv) directing the Escrow Agent to pay such outstanding amounts and then close the escrow fund under the Agreement (the "Second Amendment"). Section 2. The execution and delivery of the Second Amendment, in substantially the form attached hereto, is approved and the Mayor is authorized to execute the Second Amendment, with such changes as she shall approve, execution of such document being conclusive proof of such approval and the Mayor, City Administrator, City Attorney and other officers of the City are authorized to take such other actions reasonably necessary to carry out the intent of this Ordinance on behalf of the City. Section 3. The City shall pay into escrow, to the Escrow Agent, the additional amount of $4,197.71 for costs of the Investigations, pursuant to the Agreement, as amended by the Second Amendment. Section 4. This Ordinance shall be in full,force and effect from and after its passage and approval. Passed and approved this day of October, 2003. ")~ ~tc r'~ 2 c' f Att t: Mayor Cit ,,lerk SECOND AMENllMENT TO INVESTIGATION, CONFIDENTIALITX .AND ESCROW A(~REEMEN'T THIS SECOND AMENDMENT TO INVESTIGATION, CONFIDENTIALITY AND ESCROW AGREEMENT (this "Amendment"), is entered into as of December 23, 2003, by and among City of Riverside, a fourth class Missouri municipality ("Owner"), Park Bank, formerly Farmers Exchange Bank, a Missouri banking corporation ("Escrow Agent"), and Kessinger/Hunter & Company, a Missouri limited liability company ("Developer"); RECITALS: WHEREAS, Owner, Developer acrd Escrow Agent entered into the Investigation, Confidentiality and Escrow Agreements dated September 25, 2002, as amended by the First Amendment to Investigation, Confidentiality and Escrow Agreement dated January 15, 2003 (as amended, the "Agreement") pursuant to which Owner and Developer are causing certain investigations of the Property to be undertaken and examining the feasibility of the Project contemplated by the Transactions (collectively, the "Investigations"). WHEREAS, the Agreement provides that if a Development Agreement is not executed by the parties on or before March 1, 2003, the Agreement will terminate. WHEREAS, the parties desire to extend such date to December 31, 2003. WHEREAS, Owner and Developer have completed the Investigations pursuant to and in accordance with the Agreement. WHEREAS, Owner and Developer, pursuant to the Agreement, have paid in full all of the costs of the Investigations except for the Cooper Costs (as hereinafter defined). WHEREAS, Owner and Developer desire to pay the Cooper Costs from the Escrow Fund and to close the Escrow Fund. Now, THEREFORE, in consideration of the foregoing recitals, the mutual promises, covenants and agreements set forth in this Amendment and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: ARTICLE 1-AMENDMENTS 1.1 EXTENSION OF AGREEMENT. Pursuant to Section 4.3(B) of the Agreement, the parties mutually agree to extend the time period in which a Development Agreement must be executed to December 31, 2003. Section 4.3(B) of the Agreement is amended to provide that "The failure of the Depositors to execute the Development Agreement on or before December s Terms used in this Amendment but not defined herein shall have the meaning ascribed to such term irr the Agreement. 31, 2003 (notwithstanding anything to the contrary contained in the LOI), or on such Later date as the parties may mutually agree and designate." L2 INVESTIGA'TIONS. Owner and Developer hereby acknowledge and agree that all of the Investigations provided for under the Agreement have been completed. Owner and Developer further acknowledge and agree that neither party shall conduct further Investigations relative to the Property or the Project for which such party shall seek reimbursement under the Agreement without the prior written approval of the other party; provided further that Owner and Developer agree that additional Investigations may be performed in the future pursuant to the Development Agreement and the cost responsibility for such additional Investigations will be as set forth in the Development Agreement. 1.3 COSTS Fox INVESTIGATIONS. Owner and Developer hereby acknowledge and agree that all of the Costs of the Investigations have been paid in full out of the Escrow Fund and in accordance with the Agreement, except for the balance remaining due and owing to Cooper, Robertson & Partners for master planning services, in the amount of $8,496.94 (the "Cooper Costs"). The parties hereby agree that the Cooper Costs shall be paid in full out of the Escrow Fund. In accordance with Section 3.4 of the Agreement, Owner and Developer each shall deliver to Fscrow Agent, within ten (10) days after the date hereof, a Notice of Draw directing the Escrow Agent to pay the Cooper Costs out of the Escrow Funds. 1.4 DEPOSIT OF ADDITIONAL ESCROW FUNDS. Escrow Agent, Owrier atld Developer hereby acknowledge and agree that, as of the date hereof, the current balance of the Escrow Fund is $101.60, comprised of Owner's funds in the amount of $65.06, and Developer's funds in the amount of $36.54. Owner and Developer direct Escrow Agent to adjust their respective funds in order that Owner's funds equal $50.80 and Developer's funds equal $50.80. Each of Owner and Developer, as Depositors, shall within ten (10) days after the date hereof deposit additional funds with the Escrow Agent as follows: (i) Owner shall deposit an additional Four Thousand One Hundred Ninety-Seven and 67/100 Dollars ($4,197.67), and (ii) Developer shall deposit an additional Four Thousand One Hundred Ninety-Seven and 67/100 Dollars ($4,197.67). The Escrow Agent shall deliver a receipt therefor to each party upon such party's deposit. With these additional deposits, the total amount of the Escrow Fund will be $8,496.94. Such amounts shall be delivered to and held by the Escrow Agent under the terms the Agreement, and Escrow Agent shall disburse such amount to pay the Cooper Costs in accordance with Section 3.4 of the Agreement. 1.5 CLOSURE of Escxow FUND. Escrow Agent shall, within twenty (20) days after the disbursal of the remaining balance of the Escrow Fund in payment of the Cooper Costs, close Escrow Fund. ARTICLE 2-MISCELLANEOUS 2.1 FULL FoxcE ANU EFFECT. The Agreement, as amended by this Amendment, shall continue in full force and effect. -2- 2.2 COUNTERPARTS. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. IN WITNESS WHEREOF, each of the parties hereto have caused this Amendment to be duly executed and delivered as of the date and year hereinabove first set forth. OWNER: CITY OF RIVERSIDE /"ice' ~~~c ~> ~ c. t_ ~ (-j By: Betty Burc ,Mayor DEVELOPER: KESSINGER/HUNTER & COMPANY By: KHC, INC., its managing member 1 I Joh DeHardt, Vice President ESCROW AGENT: PARK BANK, formerly FARMERS EXCHANGE BANK (~ ~,~ By:_ ~..~ _ '~ ~ . ~ _ u-_ `ck Po ter, President -~-