HomeMy WebLinkAbout2002-132 - First Amendment to the Investigation, Confidentiality, and Escrow AgreementBILL NO. 2002-132
ORDINANCE N0. 2002-132
AN ORDINANCE APPROVING THE FIRST AMENDMENT TO THE INVESTIGATION,
CONFIDENTIALITY AND ESCROW AGREEMENT BETWEEN THE CITY OF RIVERSIDE,
MISSOURI, KESSINGER/HUNTER & COMPANY, AND FARMERS EXCHANGE 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 ("Escrow Agent")
entered into the Investigation, Confidentiality and Escrow Agreement dated September 25, 2002
("Agreement") pursuant to which the City and Kessinger/Flunter are causing certain Investigations (as
defined in the Agreement) to be undertaken; and
WHEREAS, now that the lnvcstigations are underway, more definitive information is available
regarding the estimated costs of the Investigations; and
WHEREAS, the City and Kcssinger/Hunter desire to provide for increased costs of the
Investigations, including engaging Muller & Company to perform certain public relations activities; and
WHEREAS, the Agreement provided for termination if a development agreement was not executed
within 90 days of the date of the Agreement (December 24, 2002) unless other extended; and
WHEREAS, the parties desire to extend the Agreement.
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 amendment to the Agreement providing for: (i) the extension of time
to March 1, 2003 for the execution of a Development Agreement; (ii) the addition of public relations
activities as an Investigation; (iii) the current estimate of the costs of the Investigations; and (iv) the payment
by the City of an additional $50,000.00 into the escrow held by Escrow Agent (with a similar payment being
made by Kcssinger/Hunter), for costs of the Investigation (the "First Amendment").
Section 2. The execution and delivery of the First Amendment, in substantially the form attached hereto as
Exhibit A, is approved and the Mayor of the City is authorized to execute the First 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 arc 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 $50,000.00 for
costs of the Investigation, pursuant to the Agreement, as amended by the First Amendment.
Section 4. This Ordinance shall be in full force and effect from and after its passage and approval.
Passed this 17th day of December, 2002.
Attest:
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EXHIBIT A
FIRST AMENDMENT TO
INVESTIGATION, CONFIDENTIALITY AND ESCROW AGREEMENT
THIS FIRST AMENDMENT TO INVESTIGATION, CONFIDENTIALITY AND ESCROW
AGREEMENT (this "Amendment"), is entered into as of the day of December, 2002, by
and among City of Riverside, a fourth class Missouri municipality ("Owner"), Farmers Exchange
Bank, a Missouri banking corporation ("Escrow Agent"), and Kessinger/Hunter & Company, a
Missouri limited liability company ("Developer");
RECITALS:
WHEREAS, Owner, Developer and Escrow Agent entered into the Investigation,
Confidentiality and Escrow Agreements dated September 25, 2002 ("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
within 90 days of the Agreement (December 24, 2002), the Agreement will terminate.
WHEREAS, the parties desire to extend such date to March 1, 2003.
WHEREAS, now that the lnvestigations are underway, more definitive information is
available regarding the estimated costs of the lnvestigations and such estimated costs have
increased.
WHEREAS, Owner and Developer have agreed to engage Muller & Company to perform
certain public relations activities and therefore, it is desirable to add "Public Relations" as an
Investigations under the Agreement and provide for the costs of such activities.
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 90 day time period in which a Development Agreement
must be executed to March 1, 2003. Section 4.3(B) of the Agreement is amended to provided
that "The failure of the Depositors to execute the Development Agreement on or before March 1,
2003 (notwithstanding anything to the contrary contained in the LOI), or on such later date as the
parties may mutually agree and designate."
1 Terms used in this Amendment but not defined herein shall have the meaning ascribed to such
term in the Agreement.
1.2 INVESTIGATIONS. Exhibit B, Investigations, is amended to provide for "Public
Relations" as an Investigation and to provide for the estimated costs of the
Investigations. Exhibit B to the Agreement is deleted and replaced, in its entirety,
with the attached Exhibit B.
1.3 COSTS FOR INVESTIGATIONS. The third sentence of Section 2.2 of the Agreement
is amended by deleting "$100,000" and replacing such amount with the amount of "$200,000",
making the "Investigations Budget" now $200,000.
ARTICLE 2-MISCELLANEOUS
2.1 FULL FORCE AND EFFECT. The Agreement, as amended by this Amendment,
shall continue in full force and effect.
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
By:
Betty Burch, Mayor
DEVELOPER:
KESSINGER/HiJNTER & COMPANY
By: KHC, INC., its managing member
By:
ESCROW AGENT:
FARMERS EXCHANGE BANK
By:
Printed Name:
Title:
John DeHardt, Vice President
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