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HomeMy WebLinkAbout2008-129 - Ninth Amendment for Lease and Development Agreement with Missouri Gaming Companyi BILL N0.2008-129 ORDINANCE No. 2008-129 AN ORDINANCE AUTHORIZING AND APPROVING THE NINTH AMENDMENT TO LEASE AND DEVELOPMENT AGREEMENT BETWEEN THE CITY AND MISSOURI GAMING COMPANY AND DOCUMENTS AND ACTIONS RELATED THERETO. WHEREAS, the City and Missouri Gaming Company ("MGC") entered into that certain "! Lease and Development Agreement dated June 7, 1993 as amended by Ordinance No. 93-37 dated July 6, 1993, Ordinance No. 93-41 dated July 20, 1993, Ordinance No. 93-41 dated July 20, 1993 approving Amendment No. 3, Ordinance No. 94-12 dated February 7, 1994 approving Amendment No. 4, Ordinance No. 95-37 dated June 20, 1995 approving Amendment No. 5, Ordinance No. 2001-130 dated December 13, 2001 approving Amendment No. 6, Ordinance No. 2004-20 dated February 24, 2004 approving Amendment No. 7, and Ordinance No. 2005-31 dated April 12, 2005 approving Amendment No. 8 (collectively, the "Lease'; and WHEREAS, MGC desires to lease additional property from the City to construct, maintain and operate a billboard advertising the Argosy Hotel and Casino in the City; and WHEREAS, it is anticipated that such billboard will increase the adjusted gross receipts of MGC and thereby increase the rent under the Lease; and WHEREAS, the City and MGC desire to further amend the Lease to so provide. NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN FOR THE CITY OF RIVERSIDE, MISSOURI AS FOLLOWS: SECTION 1. The leasing of certain additional property to MGC so that MGC can place a billboazd advertising its facilities in Riverside is approved pursuant to the terms and conditions of the Ninth Amendment to Lease and Development Agreement ("Amendment"), and the execution and delivery of the Amendment, in substantially the form attached as Exhibit A with such changes, additions and deletions as may be approved by the officer executing such document, such execution being conclusive proof of such approval, the performance of City obligations under the Amendment and the executions and delivery of all documents and the performance of all actions related thereto aze approved. The Mayor, City Clerk, City Administrator and the City Attorney are authorized to execute such documents and take such actions as aze necessary or desirable to effectuate the intent of this Ordinance. SECTION 2. This Ordinance shall be in full force and effect from and after its passage and approval. o PASSED AND APPROVED THIS /b ~ DAY OF NOVEMBER, 2008. ATTEST• Louise Rusick, City Clerk ~~t-Cx C~~ O~ `~ Kathleen L. Rose, Mayor ag~t ~~ NINTH AMENDMENT TO LEASE AND DEVELOPMENT AGREEMENT THIS AMENDMENT' is made and entered into as of~ ~,~asx,2AOr/=by and between the City of Riverside, Missouri ("City"), and The Missouri Gaming Comp ("MGC",, WHEREAS, the City and MGC entered into the Lease and Development Agreement (the "Development Agreemrnt'~ dated June 7, 1993 relating to the development of the Argosy Casino in the City, as subsequently amended by the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eighth Amendments (as now and hereafter amended, the "Development Agreement'. Terms used in this Amendment but not defined herein shall have the meaning set forth in the Development Agreement. WHEREAS, MGC desires to lease the properly described herein to consnuct a billboard (and all related improvements) to be used to advertise the Argosy Hotel and Casino (`Billboard'7. WHEREAS, it is anticipated, but not guaranteed, that the Billboard will increase the patronage of the Argosy Casino and its Adjusted Gross Receipts and if so increased, correspondingly, the percentage rent due under the Development Agreement, WHEREAS, the City and MGC desire to further amend the Development Agreement. NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND PREMISES HEREIN CONTAINED, THE PARTIES AGREE AS FOLLOWS AND THE DEVELOPMENT AGREEMENT IS AMENDED TO INCLUDE THE FOLLOWING: 1. Additional Leased Prooertv. The City hereby leases (as a part of the premises leased under the Development Agreement) to MGC the property described on Exhibit A, to be used by MGC solely to construct, maintain, repair, replace and operate the Billboard, subject to all existing casemrnts, restrictions, rescrvatiotts, conditions, and other encumbrances of record and to all existing roads, power lines and utilities, whether of record or not and the City's right to use such property es long as said use does not unreasonably interfere with the leasehold interest granted to MGC hereunder ("North Billboard Property„) 2. Levee District and Citv Easements. Without limiting paragraph 1, MGC acknowledges that two of the encumbrances the North Billboard Property is subject to are (i) the easement granted to the Levee District pursuant to the Permanent Right-of Way for Railroad Diversion Ditch dated as of February 28, 1972 recorded at Book 437, Page 464 ("Levee District Easement") and (ii) the Storm Drainage Easement granted to the City pursuant to Storm Drainage Easement dated September 26, 2007 recorded at Book 1111, Page 862. The North Billboard Property is being utilized for storm sewer purposes and is e part of a drainage system and MGC wi Il take no action nor omit to take an action which would unreasonably interfere with the use of the North Billboard Property for such purposes. 3. Construction. MGC shall be responsible, at its solC cost and expense, for constructing the Billboard in compliance with all applicable federal and local laws, regulations, guidelines and criteria. In addition to the requirements of paragraph 2 above, MGC agrees that the Billboard will not affect the current elevation of the balance of drainage system net designated as the North Billboad Property. The plans and specifications for the Billboard ere subject to the approval of the City, as lessor, which approval, as lessor, shall not 6e unreasonably withheld, conditioned or delayed and shall be limited only to issues of whether MGC's use or proposed use of the Property, the Billboard and/or the plans end specifications for same create an unreasonable interference with the use of the North Billboard property in accordance with paragraphs 1 and 2 above. Nothing contained in this paragreph shall, in any way, limit the City's approval rights under its City Code or relieve MGC from its obligation to comply with alt statutes, rules. and regulations relating to MGC's use- of the North $illboard Property. 4. Utilities and Gomnliance. a. MGC shall. be responsible, solely at its cost end expense, for providing ali utilities required or desired by MGC to or fcr the North Billboard. Priperty. MGC shall be solely responsible for paying all charges, costs; expenses: and'fees reladng to the provision of utility services to the North Billboard Property. b. The City.agrees to grant, ppuursuant to a mutually agreeable easement form, to Kansas City Power and Light a 10' casement for tFie electrical line required for the Billboard provided the location of such lino has been approved by the City. c. MGC.shall be responsible, at its sole eoatand expense, in all ways for the North Billboard Property to be fit or suitable far MGC's-use thereof and for the North Billboard Property and the Billboard to be incompliance with all applicablo-federal, state and localiaws, regulations, guidelines and criteria at all times. S. Tyr TheNorth Billboard Property is considered a' part of the premises leased under the Development Agreement and the-term of the least of the Noah Billboard Property shallbe that term as defined under the Development Agreement. 6. As Is/No Warranties. or ltenresentationa. MGC acknowledges. and agrees that the North Billboard Property is being leased to MGC in its "AS IS" condition and'that the City makes no warranty or representation. that the North Billboard Property is in fit or suitable condition for any use whatsoever. MGC is leasing such property basal solely on its own investigation end determination relating to the North Billboard Property. 7. MGC's Property. All structures ar materials placed upon the North Billboard Property by MGC shalt remain MGC's property and may be removed by MGC at any time. 8. Good Rep~jr and Condition. MGC shelf maintain and keep the Billboard and the North Billboard Property in good condition, order and repair so as to keep same in a safe, sightly and functional condition at all times based on sprodards for first-class community. 9. ).removal of Sian. If the Development Agreement is terminated for any reason or MGC permanently abandons the North Billboard Property, M(3C shall imrtKdiately remove the Billboard. Upon removal of the Billboard MGCahall surrenderthe North Billboard Property, repair any damage caused by such removal and return Ehe North Billboard Propertyin reasonably the same condition as the better of the condition (i) on the date immediately preceding the erection of the Billbonrd, or (ii) on the date prior to the removal of the Billboard. 10. Liens. If any mechanics' or materialmens' liens are filed against the North Billboard Property based upon any act or omission by MZ3G or anyone claiming through MGC, MGC shall hold the City harmless end defend from all damages, claims and expenses sriaing therefrom and MGC, within thirty (30) days after MGC's receipt of written notice from the City (orany person in privity of estate with the City), shall forthwith wmmena action as will remove or satisfy such lien within said thirty (30) days by bonding, deposit, payment or otherwise. If MGC does not remove or satisfy a lien within said thirty (30) day period, the City shall have the right to do so and MGC shall, within tendays notice thereof, reimburse the City, as applicable, for enyand all expanses incurred bythe City in connection therewith. Expenses shall include, but are not limited to, filing fees, legal fees and disbursements, bond premiums and bond rating premium increases. 17, Indemnification. a. MGC shall indemnify, hold harmless and defend the Levee Districk and the City and such other persons to whom the City and the Levee District is legally responarbla, from and against any and all claims, actions, suits, cross-claims, counterclaims, third party actions, damages, liabilities and expenses in connection with loss of life, personal injury, bodily injury, damage to properly or any other action arising from or relating tq the Billboard and/ovMGC's us, of the North Billboard Property or any part thereof or occasioned wholly or in part byany act or omission of MGC, its agents, contractors, employees, members, or invitees, Further; in case theLevee District' orthe City or any other person to whom the City or the Levee District is legally res{onsible, shallbemadea party to any action or proceeding commenced by or against MGC, then MGC agrees to protect and hold such parties harmless and to pay all coats, expenses and reasonablasttomeys' fees incurred orpaid by such parties in connection with such action or proceeding, MGC shall pay to such parties all coats, expenses and reasonable attorneys' fees that-may beincutred orpaid bythe City or, the Levee District in enforcing these terms, conditions; covenants and agreements. b. The above indomnificationcxpaessly,includes any claims; actions, suits, cross claims, counterclaims, damages, liabilities anti expenaea.asaociated in any waywith each and every easement relating to the Billboard and/or MQC's use. of the North Billboard Property. 12. Taxes and Assessments. MGC shall assume. and pay all ad valorem taxes, if any, and all special taxes and assessments, includingdhe annual Levee District assessments end foxes, against the North Billboard Property becoming due and payable after the date hereof. 13. Ins<u neg. In addition to all other insurance requirements in the Development Agreement; MGC shall maintain, stall times, comprehensive general liability insurance with a qualified insurance company, licensed In do business in the StateofMi~ouri, properly protxting and indemnifying the Cis and the Levee District in respect of personal injury, bodily injury, death or property damage (combined single limit) against claims for personal injury, bodily injury, death or property damage occurring on, in, about or relating in any mariner to the $illboard and/or MGC's use of the North BillboardProperty in amounts required by thiaparagraph. The amount of insurance required by this paragraph shall be not leas than theamotmts established by Section 537:611):2 of the Revised Statutes of Missouri, as amended. If thaamounts specified in Section 537.610.2 ofthe Revised Statutes of Missouri, as amended, arc changed, MGC must procure and maintain insurance in an amount necessary to satisfy such legislative or administrative change. Initially, the insurance required by this paragraph relating to the North Billboard Property and a Billboard: shall have a single limit coverage of not less than Two Million Five Hundred Dollars ($2,500,000) for injury to or death of persons and for property damage. Upon request, MGC shall furnish the Citywith a certificate or certifti:ates of insurance, in a form acceptable to the City, covering such insurance so maintainedby MGC andmaming the City and the Levee District as additional insureds. Provided the forgoing requirements are satisfied, a separate policy for the North Billboard Property is not required,but rather it is snffictent for these purposes for the North Billboard Property to be included in an insurance policy with other Argosy Casino property located in the City. 14. Assignment. MGC shallnot assign or sublek in any manner, its interest in the North Billboard Property without the prior written consent of the City which consent may be withheld or conditioned in the sole discretiomof the City. The Citymay sell or otherwise dispose of the North Billboard Property, subject to the rights of MGC in the North Billboard Property. 15. Miscellaneous. a. Countemarts. This Amendment may be executed in several counterparts and by each party on a separete counterpart, each of which when w mxecuted snd deiivtted shall be an original, and all of which together shall constitute one instrument. b, Titles and S bµ titles. Titles and aubtiEles are used in this Amendment for the purpose of reference only and are not to be consid¢red a pert of the taxt of this Amendment in the interpretation or constructionof its terms. c. Authorisation. The individual executing this Amendment on behalf of MGC represents and warrants that he has been authorized to do so by th¢ Board of Directors of such corporation. The individual executing'thia Amendment on behalf of the City represents and warrants that she has been authorized to do so by the Board of Aldermen. d. Full Foreo-and'Effect. Except as specifically am¢nded hereby, the Development Agreementand all of its terms, covenants andconditions shell remain in full forct and effect and MGC and the City shall continue to be obligated to perform their respective covenants, duties and obligations under the Development Agreement in accordance with the terrns thereof, as amended hereby. ]n the event of a conflict between this Amendment and the Development Agreement, the terms of the Amendm¢ntwill control with respect to the subject matter hereof. 1~ IN WITNESS WHEREOF, tho parties have caused this Ninth Amendment to be executed. on as of the date fu•st set forth above, GITYi ', , ATTESTi [seal] seRusick, i C erk STATE OF MISSOURI } ss: COUNTI'OFPLATTL~ J THE C1TS' OF RIVERSIDE, MISSOURI ~'" thl6en h: Mdse, Mayot On this. the ~ day of ``^' ~' 21104, before me appeared Kathlben L. Rose, to me personally known, who; being by me duly sworn, did, say. that she is the Maybr of the City of Riverside, a political subdivision, known tome to be the person and officer whose name. is subscribed Ya the foregoing instrument,, acknowledged to me that she executed the same for the purposes and consideration-therein expressed; and as the free act and deed of said City, and it the capacity therein stated, all by authority of its Board o£?}ldermen. IN TESTIMONY WHEREOF, I have: hereunto: set:<iy hand and affixed my official seal at my office in said County andState the day and year last above written. i .' Notary P6bTic My commission expires: ~QJQCaD2,~ Q~ ~~~ 5-l Approved as to Form By sy Gaming Cob e9 De o a a e MGC: c-~ ~ THE MISSOURI O G COMPANY ~~-' By: . Nsmc Amcet Patel Title Vice President and General Mana¢er SPATE OF MISSOURI ) Sa. COUNTY OP PLA'1"C'E ) On this the day of November, 2008, before me ap , to ~ pearetl~1-11'riC~t ~l~-F' Lf me personally ]mown, who, being by me duly awom, did say that he is the ~~ of The Missouri Gaming Company, that the seal affixed to the foregoing instrument is the corporate seal of said corporation, and that said ins ant was a and sealed Cn behalf of said corporation by authority of its Board of Directors, and sou ~B knowledged said instrument to be the free act and deed of said corporation. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal at my office in said County and State the day and year lastabove written. Notary i§rblC My commission ~~~ -~~, ''~RF~N expires: ,~o~~ ~~ P ~ ~,gy;ta t~ T oat~°"' :{,per Berl as trs Farm py ~;.r~osyGam:n9 'o 'a Le ll~ep} S_2 n ~ a s r ate The ltiverslde Quindaro Aend Levee District of Platte County, Mfasourl hereby agrces to and consents to the lease of the North Billboard Property to Missouri Gaming£ompany pursuant to theforgoing Ninth Amendment to Lease and Development Agreement. The individual executing this document below on belialfof Levee District represents and warrants that he has been authorized to do so by the Board of Supervisors of the Levee District. L);VEE DISTRICT: RIVERSIDE Ql11NDAR0 BEND LEVEE DISTRICT O/F~PLATTE COUNTY, ByS~~~/~`" G~~l-- Don Coleman, President STATE OF MISS RI ) ss. coup or• ~ On this the day of;~/I!!/,Mi(y, , before me appeared pon Coleman, to me personally known, who, being by me duly sworn,did/say that he is the President of the Board of Supervisors of the Riverside Quindaro Bend Levee District of Platte County, Missouri, that the seal affixed to the foregoing instrument is the corporate seal ofsaid-corporation, and thatsaid instrument was signed and sealed in behalf of said corporation by suthoritgof its Board of Supervisors, and said Don Coleman acknowledged said instrument to be the free act and deed of said corporation. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal at my office in said County and State the day and year last above written. /~G~Z No ry Public My commission expires: ~~9 IgTARY PUBLIC • NOTARY BEAT ltatm o1 Mlrroud Pbtte CouMv MyCenxnkdonE:clreaAup 28,21109 Comm' --~ ~ 05494763 Approvod as to Form By Argosy Gaming Ca.' Lega t. + X!1 S-3 n ha s a e DESCRIPTION OF ADDITIONAL LEASED PREMISES NORTHBILLBOARD PROPERTY All that part of the Southeast Quarter of Section S, Township 50 North, Range 33 West, in the City of Riverside, Platte County, Missouri, more particularly described as follows: commencing at the southwest comer of said Section 5, thence South 88 degrees S 1 minutes 51 seconds East, with the south line of the Southwest Quarter of said Section 5, a distance of 2620.58 feet to the southwest comer of the Southeast Quarter of said Section 5; thence South 88 degrees 47 minutes 46 seconds East, with the south line of the Southeast Quarter of said Section 5, a distance of 1443.91 feet to a point on the west right-of--way lino of Interstate 63'5; thence North 13 degroes 47 minutes 36 seconds East, with the west right-of-way line of Interstate 635, a distance of 152.20 feet to the point of beginning; thence North. 76 degrees 12 minutes 24 seconds West, perpendicular to, and no longer with the wort right-oF--way line of Interstate 635, a distance of 50.00 feet; thence North 13 degrees 47 minutes 36 seconds Best; parallel with the west right-of- way ofInterstate 635, a distance of 50.00 feet; thence South 76-degrees 12 minutes 24 seconds East, a distance of 50.00 feetto a point-on the west-right-of-way line 6f 3ntorstata-635; thence South 13 degroes 47 minutes 36 seconds West, with the west right-of--way of Interstate 635, a distance of 50.00 feet to the point of beginning. The above described tract contains 2,500 square feet, or 0.06 acres.