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HomeMy WebLinkAbout2005-031 - Eighth Amendment to Lease and Developemnt Agreement.~ BILL N0.2005-31 ORDINANCE N0.2005-31 AN ORDINANCE AUTHORIZING AND APPROVING THE EIGHTH AMENDMENT TO LEASE AND DEVELOPMENT AGREEMENT 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, I993 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, and Ordinance No. 95-37 dated June 20, 1995 approving Amendment No. 5 (collectively, the "Lease") and Ordinance No. 2001- 130 dated December 13, 2001 approving Amendment No. 6, (collectively, the "Lease") and Ordinance No. 2004-20 dated February 24, 2004 approving Amendment No. 7, (collectively, the "Lease") and; WHEREAS, the City and MGC desire to further amend the Lease. BE TT ORDAINED BY THE BOARD OF ALDERMEN FOR THE CITY OF RIVERSIDE, MISSOURI AS FOLLOWS: SECTION 1. The execution and delivery of the Contract, in substantially the form attached as Exhibit A with such changes, additions and deletions as maybe approved by the officer executing such document, such execution being conclusive proof of such approval, the performance of City obligations under the Contract and the executions and delivery of all documents and the performance of all actions related thereto are approved; subject to the approval of the Contract by the City Attorney. The Mayor, City Clerk, City Administrator and the City Attorney are authorized to execute such documents and take such actions as are 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 PASSED AND APPROVED THIS 12TH DAY OF APRIL 2005. Mayor C er ~, .. ~ ,T n .~~ t EIGHTH AMENDMENT TO LEASE AND DEVELOPMENT AGREEMENT THIS AMENDMENT is made and entered into as of April ~~~2005 by and between the City of Riverside, Missouri ("City") and Missouri Gaming Company ("MGC"). WHEREAS, the City and MGC entered into the Lease and Development Agreement (the "Original Lease") 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 and Seventh Amendments; WHEREAS, MGC desires to temporarily lease the property described below so that additional real property improvements can be built at the Argosy Casino; WHEREAS, it is anticipated that these real property improvements will increase the patronage of the Argosy Casino and its AGR and correspondingly, the rent due under the Lease; and WHEREAS, the City and MGC desire to further amend the Original Lease, as previously amended by the First, Second, Third, Fourth, Fifth, Sixth and Seventh Amendments (as now and hereafter amended, the "Lease'. Terms used in this Amendment but not defined herein shall have the meaning set forth in tbe Lease. NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND PREMISES HEREIN CONTAINED, THE PARTIES AGREE AS FOLLOWS AND THE LEASE IS AMENDED TO INCLUDE THE FOLLOWING: 1. Additional Leased Premises For Temporary Maintenance Facilities. The City leases (as a part of the leased premises under the Lease) to MGC the property described on Exhibit A, subject to all existing easements, restrictions, reservations, conditions, and other encumbrances of record and to all existing roads and power lines, whether of record or not and the City's right to use such property as long as it does not unreasonably interfere with MGC's use of such property, ("Temporary Maintenance Property") to be used by MGC solely as temporary maintenance facilities for the Argosy Casino (`"Temporary Maintenance Facilities"). 2. Utilities. Repairs and Maintenance. a. MGC shall be responsible, solely at its cost and expense, for providing all utilities required or desired by MGC to or for the Temporary Maintenance Property. MGC shall be solely responsible for paying all charges, costs, expenses and fees relating to the provision of utility services to the Temporary Maintenance Property. b. MGC shall be responsible, at its sole cost and expense, for providing sanitary sewer (or septic) service to the Temporary Maintenance Property in compliance with all applicable federal, state and local laws, regulations, guidelines and criteria, including but not limited to all County Health Department requirements relating to septic tanks, if any are on the Temporary Maintenance Property. c. MGC shall be responsible, at its sole cost and expense, for all repairs and maintenance required relating to the Temporary Maintenance Facilities to be fit or suitable for MGC's use of the Temporary Maintenance Property and to be in compliance with all applicable federal, state and - _ _ - -.- local laws, regulations, guidelines and criteria. 3. Term. The Temporary Maintenance Property is leased to MGC for a term commencing on the date hereof and ending on the earlier of (i) the date that the City issues a certificate of occupancy for the Hotel, (ii) December 3Q 2007, or (iii) that date specified by the City in a written notice to MGC T. .T t ~~' 1 ~ 1 ,, stating that the Temporary Maintenance Property is needed for the Shoenbeck Road Project, which date shall be at least thirty (30) days after such written notice is mailed. 4. As Is/No Warranties or Representations. MGC acknowledges and agrees that the Temporary Maintenance Property is being leased to MGC in its "AS IS" condition and that the City makes no warranty or representation that the Temporary Maintenance Property is in fit or suitable condition for any use whatsoever, MGC leasing such property solely due to its own investigation and determination relating to the Temporary Maintenance Property. 5. Indemnification. a. MGC shall indemnify, hold harmless and defend the City and such other persons to whom the City is legally responsible, 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 or damage to property arising from or relating to the Temporary Maintenance Property and/or the Temporary Maintenance Facilities. Further, in case the City or any other person to whom the City is legally responsible, shall be made a 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 costs, expenses and reasonable attorneys' fees incurred or paid by such parties in connection with such action or proceeding. MGC shall pay to such parties all costs, expenses and reasonable attorneys' fees that may be incurred or paid by the City in enforcing these terms, conditions, covenants and agreements. b. The above indemnification expressly includes any claims, actions, suits, cross claims, counterclaims, damages, liabilities and expenses associated in any way with each and every easement relating to the Temporary Mairrtenance Property. 6. Insurance. Under the Lease, MGC is required to maintain, at all times, comprehensive general liability insurance properly protecting and indemnifying the City from claims and damages relating in any manner to the Lease. MGC is required to maintain these same insurance requirements with respect to the Temporary Maintenance Property. Provided the forgoing requirements are satisfied, a separate policy for the Temporary Maintenance Property is not required, but rather it is sufficient for these purposes for the Temporary Maintenance Property to be included in an insurance policy with other Argosy Casino property located in the City. Miscellaneous. a. Countemarts. This Amendment may be executed in several counterparts and by each party on a separate counterpart, each of which when so executed and delivered shall be an original, and all of which together shall constitute one instrument. b. Titles and Subtitles. Titles and subtitles are used in this Amendment for the purpose of reference only and are not to be considered a part of the text of this Amendment in the interpretation or construction of its terms. c. Authorization. The individual executing this Amendment on behalf of MGC represents and warrants that he has been authorized to do so by the Board of Directors of such corporation. The individual executing this Amendment on behalf of the City represents and warrants that she has been authorized to do so by the Board of Aldermen. d. Full Force and Effect. Except as specifically amended hereby, the Lease and all of its terms, covenants and conditions shall remain in full force and effect and MGC and the City shall continue to be obligated to perform their respective covenants, duties and obligations under the Lease in accordance with the terms thereof, as amended hereby. ~. .. , e 7r IN WITNESS WHEREOF, the parties have caused this Amendment to be executed on as of the date first set forth above. CITY: ATTEST: [seal] o ise Rusick, City lerk STATE OF MISSOURI COUNTY OF PLATTE ss. THE CITY OF RIVERSIDE, MISSOURI Betty B ,Mayor On this the ~ay of April, 2005, before me appeared Betty Burch, to me personally known, who, being by me duly sworn, did say that she is the Mayor of the City of Riverside, a political subdivision, known to me to be the person and officer whose name is subscribed to the foregoing instrument, acknowledged to me that she executed the same for the purposes and consideration therein expressed, and as the &ee act and deed of said City, and in the capacity therein stated, all by authority of its Board of Aldermen. 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. My commission expires: ~. as, ~~ HOLLY PHILLIPS NOTARY PUBLIC -NOTARY SEAL State of Mlssourl Clay County My Commisslon Expires March 25, 2008 S-1 r ... ., n ^~rr MGC: STATE OF f' 1t~5Srov r . ) ss. COUNTY OF Sac~6oY.~ ) ~1+ 5.,,~.,e, On this the ) zl day of.A~pri1, 2005, before me appeared Gr~~ ToF~.~s bri to me personally (mown, who, being by me duly sworn, did say that he is the M of Missouri Gaming Company, that the seal affixed to the foregoing instrument is the corporate seal of said corporation, and that said instrument was signed and sealed in behalf of said corporation by authority of its Board of Directors, and said cx~^ ~ c r• aclmowledged said instrument to be the free act and deed of said corporation. 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