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HomeMy Public PortalAboutORD14585 BILL NO. 2009-69 SPONSORED BY COUNCILMAN Klindt ORDINANCE NO. 14'� z�- AN ORDINANCE OF THE CITY OF JEFFERSON, MISSOURI, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN AGREEMENT WITH PREMIER BANK FOR THE ACQUISITION OF REAL ESTATE. BE IT ENACTED BY THE COUNCIL OF THE CITY OF JEFFERSON, MISSOURI, AS FOLLOWS: Section 1 . The Mayor and City Clerk are hereby authorized and directed to execute an agreement with Premier Bank for the acquisition of real estate. Section 2. The agreement shall be substantially the same in form and content as that agreement attached hereto as Exhibit A. Section 3. This Ordinance shall be in full force and effect from and after the date of its passage and approval. Passed: �� �a� Approv �5 4 Presiding Officer Mayor ATTEST: APPROVED AS T FORM: `City Cldrk City Counselor CONTRACT FOR PURCHASE OF REAL ESTATE This Contract for Purchase of Real Estate ("Contract") for the purchase and sale of certain real property is entered into between PDIL, L.L.C., a Missouri limited liability company, ("Seller") and The City of Jefferson City, Missouri, a political subdivision, ("City"). 1) PARTIES. This Contract is made by and between the parties identified above, and effective as of the date and time of final acceptance, hereinafter referred to as the "Effective Date." Date of final acceptance means the date upon which Seller and the City have both executed and delivered this Contract as set forth on the signature page of this Contract. If this Contract is executed by one party before the other party, then final acceptance shall be deemed to have occurred on the latest date shown for signature and delivery on this Contract. 2) PROPERTY. The City has offered to buy and the Seller is willing to sell the Property by special warranty deed, , the real property commonly known as (address) 400 Rock Hill Road, Jefferson City located in Cole County, State of Missouri, more particularly described in Exhibit A, which is by this reference incorporated herein as if more fully and completely set forth, which shall be free from all liens and encumbrances on the day of Closing, except as described in Section 8 of this Contract, together with all attached improvements located on the property, all of which is,except exclusions,the "Property" in this Contract. Notwithstanding the above, the Property shall be conveyed subject to a restrictive covenant intended to minimize noise emissions which are anticipated in connection with the City's intended use of the Property. Such covenant will generally prohibit the production of noise or sound on the property in excess of 100 decibels (excluding emergency sirens, bells, and other similar sounds emitted from vehicles used in connection with the Property) and will require the City to plant trees in a manner to be approved by the Seller or its successors and assigns, but which is generally designed to provide a visual and safety buffer surrounding improvements upon the Property, including any tower to be constructed thereon. The conveyance of the Property shall also be subject to a covenant that no chain link, barb wire, or other metal non-ornamental fence shall be permitted thereon. 3) PURCHASE. The City agrees to buy and the Seller agrees to sell the Property upon the terms and conditions as follows: a) Price. The City agrees to pay the amount of Six Hundred and Forty-Five Thousand Five Hundred and Ninety-One Dollars ($645,591.00) for the Property. In addition, the City agrees to pay five- eighths (5/8) of i) the surveying and engineering expenses incurred by Seller and/or City in connection with this Contract; ii)the cost to extend the street, sanitary sewer, storm sewer,water, and other utility services to the Property; and iii) one hundred percent (100%) of any costs incurred by Seller as a result of City requirements that may not be identified in this Contract. b) Contingencies. This Contract is subject to the following contingencies, and City may elect to declare this Contract null and void prior to the Closing without obligation or liability to Seller if: i) An environmental assessment of the Property performed by or on behalf of the City at the City's own expense discloses that hazardous substances may have been released on the Property, or that the Property is otherwise contaminated or environmentally impaired. I ii) A survey or inspection of the Property discloses encroachments, violations of subdivision or other restrictions, boundary line disputes, or rights or claims of third parties in possession, on any portion of the Property, which are unacceptable to City. iii) The title requirements set out in Section 8 of this Contract shall fail to be satisfied. 4) CLOSING. The sale under this Contract shall be closed at the office of the City at 320 E. McCarty, Jefferson City, Missouri, the 29th day of September, 2009, at10:00, a.m. or at such other time and place as the parties may mutually agree. For purposes of this Contract,the term"Closing"shall refer not only to the physical act of closing the transactions described herein, but also to the exact date and time set forth in this Section. Upon Closing, City and Seller shall deposit with the Escrow Agent all funds and instruments necessary to complete this Contract. All escrow fees and/or charges for conducting the Closing shall be split equally between City and Seller unless otherwise stated herein. All fees associated with recording the deed shall be paid by City, unless such fees are directly related to the Seller's obligation to provide marketable title. 5) POSSESSION. Possession of the property shall be delivered to the City at the time of Closing. Notwithstanding any other provision to the contrary, City will allow Seller, until the end of the day on November 15, 2009, to remove top soil from the pile of top soil currently situated upon the Property. To the extent any top soil remains after November 15, 2009, such top soil will become the sole and exclusive property of the City. SELLER'S REPRESENTATIONS. Sellers represents to City that,to the best of Seller's knowledge,: (a) There are no underground tanks, toxic or hazardous substances, or dump sites on the Property, either at present or in the past; (b) That the Property is not subject to any real estate listing agreement, or other agreement providing for any real estate commission; (c)That there have been no unpaid improvements, or any other work performed in connection with the Property that would give rise to the filing of any mechanics' liens against the property; (d) That the Seller has full authority to enter into this Contract and that the Property is not subject to any options, contracts of sale, leases or other rights in favor of any third parties; (e)That there are no legal proceedings pending which involve the Property; and (f) That these representations will continue to be true at the Closing, unless Seller has given City notice to the contrary in writing prior thereto. 6) CONDITION OF PROPERTY. Notwithstanding the provisions of Section 6 above, the City acknowledges that Premier Bank acquired the Property on or about August 5, 2008 and transferred the Property to Seller on or about August 21, 2008. As a result, Seller's ownership of the Property is limited in time. Therefore, except as is otherwise expressly provided in this Contract, Seller hereby specifically disclaims any warranty (oral or written) concerning (i) the nature and condition of the Property and its suitability for any and all activities and uses that City may elect to conduct on the Property; (ii) the manner, construction, condition and state of repair or lack of repair of the improvements on the Property; (iii) the nature and extent of any right-of-way, lien, encumbrance, license, reservation, condition, or otherwise; (iv) the compliance of the Property or its operation with any laws, rules, ordinances or regulations of any government or other body, it being specifically understood that City was given the full opportunity prior to the execution to this Contract to conduct desired inspection s and determine for itself the condition of the Property; and (v) any other matter whatsoever except as expressly set forth in this Contract. Except as is otherwise expressly provided in this Contract, the sale of the Property as provided for in this Contract is made on a strictly "AS IS" "WHERE IS" basis as of the Closing. Except as otherwise expressly provided in this Contract, City expressly acknowledges that, in consideration of the agreements of Seller in this Contract, Seller makes no warranty or representation, express or implied, or arising by operation of law, including, but in no way limited to, any warranty of quantity, quality,condition, habitability, merchantability,suitability 2 or fitness for a particular purpose of the Property, any improvements located on the Property or any soil conditions related to the Property. City specifically acknowledges that City is not relying on (and Seller hereby disclaims and renounces) any representations or warranties made by or on behalf of Seller of any kind or nature whatsoever, except as is otherwise expressly provided in this Contract. City represents to Seller that City has conducted,or will conduct before Closing, such investigations of the Property, including but not limited to, the physical and environmental conditions thereof, as City deems necessary to satisfy itself as to the condition of the Property and the existence or nonexistence or curative action to be taken with respect to any hazardous or toxic substances on or discharged from the Property and will rely solely on same and not on any information provided by or on behalf of Seller or its agents or employees with respect thereto, other than such representations, warranties, and covenants of Seller as are expressly set forth in this contract. Upon Closing, except as otherwise expressly provided herein, City shall assume the risk that adverse matters, including, but not limited to, construction defects and adverse physical and environmental conditions, may not have been revealed by City's investigations, and City, on Closing, shall be deemed to have waived, relinquished, and released Seller from and against any and all claims, demands, causes of action (including causes of action in tort), losses, damages, liabilities, costs, and expenses(including attorneys'fees and court costs) of any and every kind or character, known or unknown, contracts of sale that City might have asserted or alleged against Seller, at any time by reason of or arising out of any latent or patent construction defects or physical conditions/violations of any applicable laws (including, without limitation/any environmental laws) and any and all other acts/omissions, events, circumstances, or matters regarding the Property. 7) TITLE. Seller shall provide to City title to the Property which is marketable by Closing. Unless otherwise agreed in writing, Seller shall provide to City, no later than September 23, 2009 a commitment to issue an owner's policy of title insurance in the amount of the Purchase Price of the Property, naming the City as the insured and issued by Cole County Abstract & Title Co. Upon receipt of said commitment, City shall have five (5) business days to examine the commitment and state in writing to Seller any defects in the condition of the title. Thereafter, Seller shall have thirty (30) days, if and only if necessary, to make any correction to the defects in the title and Closing shall be extended as necessary to the extent such thirty (30) day time period is requested in writing by Seller. Seller shall use due diligence to meet City's objection by removing any objected to encumbrance or defect. If City's noted defects in title are not rectified within the time specified, this Contract shall be null and void, unless the City elects by written notice to Seller to waive such defects. If City fails to make written objections to title within the five (5) business day period set forth above, City shall be deemed to have waived any right to make such objections as a condition to performance of Closing obligations and all matters reported therein shall be permitted defects or encumbrances with respect to the Seller's obligation to convey the Property at Closing. The Seller shall then deliver for the City at Closing a special warranty deed subject to the foregoing, and the City shall then and there pay the purchase price to Seller by check or other acceptable funds. 8) PRORATION. a. Taxes, insurance, interest, rentals, and association dues, if applicable, shall be prorated to Closing Date and Seller shall be responsible for payment of his pro rata share of all property taxes accrued as of the date of Closing. b. If the current year's taxes cannot be determined, proration will be based on the preceding year's taxes with adjustments for known changes in assessed valuation or tax levies. c. Seller's prorated amount shall be delivered to the appropriate County Collector within ten (10)days of closing by the closing company or the City, as a service to the Seller. 3 d. If there is no closing company involved, the amount due shall be paid by the City out of the Seller's proceeds. 9) PROPERTY INSPECTION. The City may, at City's expense, employ independent, qualified inspectors of City's choice (and shall arrange for any inspections and testing systems) in order to make the following determinations: a. To determine whether there are any material defects in the plumbing systems, including septic tank, waste water treatment system and water well, if any, sewer and water lines. b. To determine the presence of termite or other wood destroying insect infestation in the accessible areas of the Property, by a reputable, licensed pest control firm, selected by the City, and obtain any necessary certificates. Notwithstanding any provision in this paragraph to the contrary, City's termite and wood destroying insect inspection and report shall be completed and provided to Seller no more than thirty (30) days nor less than (10) days prior to the Closing Date. If City's inspection report reveals evidence of past untreated or current termite or wood destroying insect infestation, Seller agrees to pay for the usual and customary cost of having the Property treated for the control of the infestation by a reputable, licensed pest control firm, and if there is evidence of damage to the Property as a result of any infestation, and Seller and the City cannot reach Contract on the allocation of costs of repairs within five (5)days of the City's delivery of such inspection and report to Seller, the City may waive by written notice within such time period any requirement that Seller pay such additional costs and proceed to Closing, or the City may terminate this Contract by written notice to Seller. c. To determine that there exists on the property, sink holes, voids and soil composition, no environmentally hazardous or otherwise regulated substance which might impose liability on the City as subsequent owner of the property. d. To conduct boring samples on the Property at the City's own expense and determine whether the City's intended placement of a water tower on the Property is reasonably feasible. e. Such other inspections as City deems reasonably necessary. Seller shall give the City, or its designated agent, reasonable access to the Property to make the inspections. City, or its consultants,will commence its due diligence concerning the foregoing matters on the Effective Date of this Contract, and said due diligence period will expire at 5:00 p.m. on September 20, 2009 (such period called the"Inspection Period"). Notwithstanding anything to the contrary contained in this Contract, if City delivers to Seller, on or before the expiration of the Inspection Period, notice of City's election to terminate this Contract (which shall include copies of all commitments, assessments, surveys, property inspections, or other similar reports prepared by third parties and obtained by City on or before the date City sends such notice) for any reason, then the Contract will terminate. The Seller acknowledges and agrees that the right of inspection contained in this paragraph shall not in any way relieve the Seller,from the obligation to satisfy any contingencies contained in this Contract within the applicable time periods. 10) VERIFICATION OF CONDITION. The City shall have the right to make a final inspection of the Property prior to Closing to confirm that: a. Repairs, if any, have been completed as agreed in writing by the City and Seller; 4 ( b. Seller has complied with Seller's other obligations as specifically described in this Contract; and c. The Property is otherwise in substantially the same condition, subject to normal wear and tear, as on the date of the offer, unless otherwise agreed in writing; d. Any contingency or defect of title has been resolved as set forth in Section 8 above. 11) REMEDIES UPON DEFAULT. a. In General. Seller or City shall be in default under this Contract if either fails to comply with any material provision within the time limits required by the Contract. If either party defaults, the party claiming a default shall notify the other party in writing of the nature of the default and may, as set forth in said notice, either terminate this Contract or extend the time for performance by providing the defaulting party a deadline for curing the default, provided that if the default is the inability of the City to close the purchase because of its lack of appropriated and unencumbered funds, the City may at its option by written notice extend the Closing date for a period of not more than sixty (60)days. If this Contract shall not be closed for the fault of Seller, then City may elect to either sue for specific performance of the Contract and any incidental damages arising therefrom or sue for its damages. If this Contract shall not be closed for the fault of the City, then Seller may elect to either sue for specific performance of the Contract and any incidental damages arising therefrom or sue for its damages. b. Loss Prior to Conveyance. In the event the Property is destroyed or partially destroyed by calamity including but not limited to fire, the City shall have the option of reducing the purchase price by any insurance proceeds available to Seller, or to claim said insurance proceeds and pay the full purchase price. If Seller fails to maintain insurance or sufficient insurance, City shall have the option of declaring this Contract null and void if the Property is destroyed or partially destroyed by calamity including but not limited to fire. 12) CONFLICTS OF INTEREST. No salaried officer or employee of the City of Jefferson, Missouri,and no member of any Board or the City Council of the City shall have a financial interest, direct or indirect, in this Contract. A violation of this provision renders the Contract void. Any federal regulations, and applicable provisions in RSMo. Section 105.450 et seq. shall not be violated. 13) PROVISIONS NOT MERGED WITH DEED. No provision of this Contract is intended to or shall be merged by reason of any deed transferring title to the Property from the Seller to the City, or any successor in interest, and any such deed shall not be deemed to affect or impair the provisions and covenants of this Contract. 14) NOTICE. All notices required or permitted hereinunder and required to be in writing may be given by FAX or by first class mail addressed to City and Seller by one of three different means: Facsimile Transmission ("FAX") if both parties have a FAX number; U.S. Postal Service Mails; or by hand delivering a copy of the same to the receiving party; or may give notice by any combination of the above methods. a. The date of notice shall be: (1) The date upon which notice is hand delivered to the receiving party; 5 (2) The date of delivery of notice by FAX transmission which shall be deemed to be the date transmission occurs, except where the transmission is not completed by 5:00 p.m. on a regular business day at the terminal of the receiving party, in which case the date of delivery shall be deemed to fall on the next regular business day for the receiving party; (3) The third day following mailing of the notice, whichever first occurs. b. It shall be sufficient if notices to the City are addressed to City Attorney,City of Jefferson,320 E. McCarty, Jefferson City, Missouri, 65101. c. It shall be sufficient if notices sent to the Seller are addressed to PDIL, L.L.C., Attn: Schuyler Mariea, 815 W. Stadium, Jefferson City, Missouri 65101. 15) HEADINGS. The headings or captions of this Contract are for convenience and reference only, and in no way define, limit, or describe the scope or intent of the Contract or any provision hereof. 16) SEVERABILITY. In the event that any one or more of the phrases, sentences, clauses, paragraphs or sections contained in this Contract shall be declared invalid by the final and unappealed order, decree or judgment of any court, the City may, at its sole option, set this Contract aside. 17) VENUE AND JURISDICTION. This Contract and every question arising hereunder shall be construed or determined according to the laws of the State of Missouri. Should any part of this Contract be adjudicated, venue shall be proper only in the Circuit Court of Cole County, Missouri. 18) ENTIRE CONTRACT. This Contract contains the entire Contract of the parties. No modification, amendment, or waiver of any of the provisions of this Contract shall be effective unless in writing specifically referring hereto, and signed by both parties. 19) TIME PERIODS. If the final day of any period which is set forth in this Contract falls on a Saturday, Sunday, or legal holiday under the laws of the United States, then in such event, the duration of such period shall be extended to the next day which is not a Saturday, Sunday, or other legal holiday. Any reference to a time of day (e.g., 12:00 noon) shall refer to the time of day applicable to the location of the Property. 20)ASSIGNMENT. This Contract may not be assigned by City without the prior written consent of Seller, which consent may be withheld in Seller's sole and absolute discretion; provided, however, that City may assign this Contract without Seller's consent to an Affiliate. For the purposes of this subsection (i), the term"Affiliate" means (a) an entity that directly or indirectly controls, is controlled by or is under common control with the City, or (b) an entity at least fifty-one percent (51%) of whose economic interest is owned by City, and the term "control" means the power to direct the management of such entity through voting rights, ownership or controlled obligations. No such assignment shall relieve City of any its obligations and liabilities hereunder. 21) NO THIRD PARTY BENEFICIARIES.This Contract shall not confer any rights or remedies upon any person other than the parties hereto and their respective successors and permitted assigns. 22) FACSIMILE AND ELECTRONIC SIGNATURES. All parties hereto agree to accept facsimile or digitized (electronic) signatures the same as an original signature. 6 23) COUNCIL APPROVAL. THIS OFFER IS SUBJECT TO APPROVAL BY THE CITY COUNCIL OF THE CITY OF JEFFERSON, MISSOURI, AND SHALL BECOME BINDING AND ENFORCEABLE AGAINST THE CITY ONLY AFTER APPROVAL BY THE CITY COUNCIL. IN WITNESS WHEREOF, the parties hereto have set their hands and seals on the day and year herein stated. CITY-OF—JEFF-ERSON SELLER BY: ` PDIL, L.L.C. John Landwehr, Mayor BY. :Date: Printed Name: Date: 6 d Attest w (5hyllis PcKvell, City Clerk APPROVED AS TO FORM Nathan M. Nickolaus City Counselor 7