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HomeMy WebLinkAbout2008-9-7460105545 ORDINANCE NO. 2008-9-7460 AN ORDINANCE OF THE CITY OF PADUCAH, KENTUCKY, APPROVING A RIGHT OF FIRST REFUSAL AND OPTION AGREEMENT AMONG THE CITY OF PADUCAH, KENTUCKY, AND AGRIUM U.S. INC., WITH RESPECT TO A PUBLIC PROJECT; AND AUTHORIZING THE EXECUTION OF SAME. WHEREAS, the City of Paducah, Kentucky (the "City") has previously determined, and hereby further determines, that it is a public purpose to reduce unemployment in the City, to increase the City's tax base, to foster economic development within the City of Paducah and the County of McCracken and to promote the development of a skilled workforce, all to the benefit of the citizens and residents of the City; and WHEREAS, in the furtherance of the aforesaid public purposes and as an inducement to Agrium U.S. Inc., ("Agrium") to purchase from the Paducah -McCracken County Riverport Authority a certain tract of riverfront real property situated on the Tennessee River and located at 110 Locust Drive, in Paducah, McCracken County, Kentucky, upon which tract of real property is located a grain facility and other improvements, and to cause the improvement of the grain facility, the City is agreeable to according to Grantee a right of first refusal and option to purchase certain real property owned by the City, which property currently serves as a natural storm water storage area, subject, however, to the terms and conditions as set forth in the Right of First Refusal and Option Agreement. NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF PADUCAH, KENTUCKY, AS FOLLOWS: Section 1. Recitals and Authorization. The City hereby approves the Right of First Refusal and Option Agreement by and among the City and Agrium (the "Agreement") in substantially the form attached hereto as Exhibit A and made part hereof. It is further determined that it is necessary and desirable and in the best interests of the City to enter into the Agreement for the purposes therein specified, and the execution and delivery of the Agreement is hereby authorized and approved. The Mayor of the City is hereby authorized to execute the Agreement, together with such other agreements, instruments or certifications which may be necessary to accomplish the transaction contemplated by the Agreement with such changes in the Agreement not inconsistent with this Ordinance and not substantially adverse to the City as may be approved by the official executing the same on behalf of the City. The approval of such changes by said official, and that such are not substantially adverse to the City, shall be conclusively evidenced by the execution of such Agreement by such official. Section 2. Severability. If any section, paragraph or provision of this Ordinance shall be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such section, paragraph or provision shall not affect any of the remaining provisions of this Ordinance. Section 3. Compliance With Open Meetings Laws. The City Commission hereby finds and determines that all formal actions relative to the adoption of this Ordinance were taken in an open meeting of this City Commission, and that all deliberations of this City Commission and of its committees, if any, which resulted in formal action, were in meetings open to the public, in full compliance with applicable legal requirements. Section 4. Conflicts. All ordinances, resolutions, orders or parts thereof in conflict with the provisions of this Ordinance are, to the extent of such conflict, hereby repealed and the provisions of this Ordinance shall prevail and be given effect. Section 5. Emergency. Pursuant to KRS 83A.060, the City Commission suspends the requirement of a second reading of this Ordinance. As grounds therefore, the City Commission does hereby declare an emergency to exist as to the execution of the Agreement. Specifically, any delay in the execution of the Agreement could adversely impact the closing of the sale of the grain facility by the Paducah -McCracken County Riverport Authority to Agrium. Section 6. Effective Date. This Ordinance shall take effect from and after its passage, as provided by law. ATTEST: L4qW%�%a�&zk_Tammara S. Brock, City Clerk Introduced and Adopted by the Board of Commissioners, September 23, 2008 Recorded by Tammara S. Brock, City Clerk, September 23, 2008 Published by The Paducah Sun, September 29, 2008 Ord/agree-first refusal-agrium (105545) EXHIBIT A TO ORDINANCE See Attachment 105574 RIGHT OF FIRST REFUSAL AND OPTION AGREEMENT THIS RIGHT OF FIRST REFUSAL AND OPTION AGREEMENT made and executed on this day of , 2008, by and between CITY OF PADUCAH, KENTUCKY, a municipal corporation of the second class under the laws of the Commonwealth of Kentucky, whose address is P. O. Box 2267, Paducah, Kentucky 42002-2267 ("Grantor") and AGRIUM U.S. INC., a Colorado corporation, whose address is 4582 South Ulster Street, Suite 1700, Denver, Colorado, (the "Grantee"). WITNESSETH: WHEREAS, Grantee is the present fee simple owner of a certain tract of riverfront real property situated on the Tennessee River and located at 110 Locust Drive, in Paducah, McCracken County, Kentucky, upon which tract of real property is located a grain facility and other improvements, which real property was recently acquired by Grantee from the Paducah - McCracken County Riverport Authority by deed of the same date hereof and to be recorded in the office of the Clerk of the County Court of McCracken County, Kentucky, a specific description of which is attached hereto as Exhibit A ("Grantee Property"); and WHEREAS, Grantee desires to acquire certain real property which is located contiguous to the Grantee Property, which real property is presently owned in fee simple by Grantor and which property currently serves as a natural storm water storage area during periods of flooding by the Ohio River and/or flash flooding during significant rainfall events, which real property was acquired by Grantor by deed dated August 5, 2008, of record in Deed Book 1152, page 679, in the office of the Clerk of the County Court of McCracken County, Kentucky , a specific description of which is attached hereto as Exhibit B (the "Property'); and WHEREAS, Grantor is agreeable to according to Grantee a right of first refusal and option to acquire the Property subject, however, to the terms and conditions as hereinafter provided, which terms and conditions are agreeable to Grantee. NOW, THEREFORE, in consideration of the foregoing premises, and as an inducement to Grantee to acquire the Grantee Property, and for other valuable consideration, the legal adequacy and sufficiency of which is hereby acknowledged by all parties hereto, the parties do covenant and agree as follows: 1. Term of the Right of First Refusal and Option. The term of this right of first refusal and option shall commence on the date set forth above and shall continue for a period of five (5) years following same. Thereafter, this right of first refusal and option shall be terminated, and be of no further legal force and effect. 2. Right of First Refusal. In the event Grantor shall receive a bona fide written offer with respect to the sale or lease of any portion of the Property, Grantee shall have a right of first refusal to consummate the proposed transaction which is defined under said offer in accordance with the following provisions: a. In the event Grantor should receive such bona fide offer which Grantor desires to accept, Grantor shall provide to the Grantee a written notification of the Grantor's intention to sell or lease the Property or any portion thereof. Grantor shall deliver such written notification to Grantee. b. Upon receipt of such written notice, Grantee shall have a period of thirty (3 0) days to elect to purchase that portion of the Property which is subject to the yi bona fide offer at the price of $53,000.00 for the first 1.1 acres of the Property (from north to south) and at a price of $9,734.00 per acre for the remainder of land comprising the Property (approximately 2.3321 acres). The total purchase price for the Property being $81,000.00. In the event Grantee desires to exercise the right of first refusal, Grantee shall deliver to Grantor a written notice of the Grantee's election to exercise such right by the expiration of the aforesaid thirty (30) day period. In the event the Grantee elects to exercise its right of first refusal herein, Grantee and Grantor shall be bound to complete the purchase, in which case Grantee and Grantor shall meet to discuss and reach agreement regarding any additional terms. C. If Grantee does not exercise its right of first refusal within the aforementioned thirty (30) day period, Grantor shall be free to accept the bona fide offer, provided that Grantor had delivered the written notice to Grantee pursuant to paragraph (a) hereof, and to complete the lease or sale at the price and upon the material terms and conditions set forth in said bona fide offer. d. If Grantee fails to exercise its right of first refusal with respect to any bona fide offer, and for any reason the proposed sale or lease of the property is not consummated in accordance with the material terms and conditions in the bona fide offer, f Grantee shall thereafter have the right of first refusal with regard to any subsequent bona fide offers which are received by Grantor with respect to the Property. 3. Option. At any time during the term of this right of first refusal and option, the Grantor shall accept an offer to purchase by Grantee with respect to the Property at a purchase price of $53,000.00 for the first 1.1 acres of the Property (from north to south) and at a price of $9,734.00 per acre for the remainder of land comprising the Property (approximately 2.3321 acres) (the total purchase price for the Property being $81,000.00); provided, however, that (a) Grantee expressly acknowledges that the Property is zoned as a Conservancy Zone (C-1) in accordance with the Paducah Zoning Ordinance and (b) Grantee fully agrees that the use of the Property shall be in strict compliance with the requirements of the C-1 zone, as may be amended, and any other local, state, and federal ordinance, statute, law, or regulation, as may be amended, regulating the use of land which serves as a natural storm water storage area during periods of flooding by the Ohio River and/or flash flooding during significant rainfall events. These restrictions shall be set forth in the deed of conveyance of the Property from the Grantor to the Grantee. In the event the Grantee elects to exercise its Option herein, Grantee and Grantor shall be bound to complete the purchase, in which case Grantee and Grantor shall meet to discuss and reach agreement regarding any additional terms. 4. Miscellaneous Provisions. This agreement shall be binding upon the parties hereto, their successors, and assigns. This agreement embodies the entire agreement made by and between the parties, and all prior promises, statements, representations, and agreements are merged herein. This agreement shall be construed under and interpreted in accordance with the laws of the Commonwealth of Kentucky. WITNESS our signatures on the date first above written. Grantor: Grantee: CITY OF PADUCAH, KENTUCKY AGRIUM U.S. INC Title: Date: IM Title: Date: STATE OF KENTUCKY ) COUNTY OF MCCRACKEN) The foregoing instrument was acknowledged before me on this day of , 2008, by (title) of the City of Paducah, Kentucky, a municipal corporation, on behalf of said corporation, Grantor. My commission expires Notary Public, State at Large STATE OF ) COUNTY OF ) The foregoing instrument was acknowledged before me on this _ day of , 2008, by (title) of Agrium U.S. Inc., a Colorado corporation, on behalf of said corporation, Grantee. My commission expires Notary Public, State at Large This instrument prepared by: DENTON & KEULER, LLP P. O. Box 929 Paducah, KY 42002-0929 EXHIBIT A The Grantee Property LOCATED AT 110 LOCUST DRIVE, PADUCAH, MCCRACKEN COUNTY, KENTUCKY Begin Tract 1, consisting of 6.1039 acres, Tract 2, consisting of 0.5341 acres, and Tract 3, consisting of 6.6831 acres, as set forth on the Waiver of Subdivision Plat for the Paducah - McCracken County Riverport Authority & Urban Renewal and Community Development Agency of the City of Paducah prepared by SCI Surveyors, Inc., of record in Plat Section "M," page 23, in the McCracken County Court Clerk's Office. Said tracts of land generally lying east of Locust Drive and Myers Street (aka South 4th Street) and north of Wayne Sullivan Drive, in Paducah, McCracken County, Kentucky. EXHIBIT B The Property Being Tract 5, consisting of 3.4321 acres of land, as set forth on the Waiver of Subdivision Plat for the Paducah -McCracken County Riverport Authority & Urban Renewal and Community Development Agency of the City of Paducah prepared by SCI Surveyors, Inc., of record in Plat Section "M," page 23, in the McCracken County Court Clerk's Office. Said tracts of land generally ly east of Locust Drive and Myers Street (aka South 4h Street) and north of Wayne Sullivan Drive, in Paducah, McCracken County, Kentucky. Being a part of the same property conveyed to the City of Paducah, Kentucky by deed dated August 5, 2008, of record in Deed Book 1152, page 679, in the McCracken County Court Clerk's office.