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HomeMy WebLinkAbout2007-081 - Cost Participation Agreement with Missouri Gaming Company'"OppY Bill No. 2007-81 Ordinance No. 2007-81 AN ORDINANCE AUTHORIZING AND APPROVING THE CITY OF RIVERSIDE, MISSOURI, TO ENTER INTO A COST PARTICIPATION AGREEMENT WITH MISSOURI GAMING COMPANY FOR ROAD IMPROVEMENT PROJECTS WHEREAS, the City of Riverside (the "City") desires to enter into a Cost Participation Agreement with Missouri Gaming Company for construction of a two lane roadway from the diamond interchange at Horizons Pazkway (formerly Van de Populier) to the west end of Argosy Parkway, including turn lanes, underpass at the southbound lanes of Highway 69, a signalized intersection with the northbound lanes of Highway 69, and bridges over drainage ditches; and a two lane roadway from Tullison Road west of the intersection of Argosy Parkway to Argosy's main entrance, including a bridge over the BNSF Railroad tracks (the "Projects'; and WHEREAS, the City has reached an agreement ("the Agreement") with Missouri Gaming Company concerning the cost participation for the Projects in which the City agrees to fund certain engineering, construction and other costs, and Missouri Gaming Company agrees to fund all additional construction costs; and WHEREAS, the City finds that entering into the Agreement is for a public purpose and is advisable and in the City's best interests for the promotion of the health, safety and welfare of the residents of the City. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF RIVERSIDE, MISSOURI, AS FOLLOWS: Section 1. 'This Ordinance is intended and is hereby determined and declared to be necessary to accomplish and serve the public purpose of improving public roads by entering into a Cost Participation Agreement. Section 2. The City of Riverside shall enter into the Agreement, to be substantially in the form attached hereto as Exhibit A, with Missouri Gaming Company. Section 3. The Mayor, the City Administrator, the City Attorney and other appropriate City officials are hereby authorized to take any and all actions as may be deemed necessary or convenient to carry out and comply with the intent of this Ordinance and to execute and deliver for and on behalf of the City all certificates, instruments, agreements and other documents, as maybe necessary or convenient to perform all matters herein authorized. Section 4. approval. This Ordinance shall be in full force and effect from and after its passage and _. I, _ _ rr ., ~,_ ADOPTED by the Board of Aldermen of the City of Riverside, Missouri, and approved by the Mayor of Riverside, this ~~ay of July, 2007. yor Kathleen L. Rose ATTEST: C' Clerk . ~.. ~ .. ... _ rr COST PARTICIPATION AGREEMENT THIS AGREEMENT is entered into by the City of Riverside, Missouri (hereinafter, "City") and MISSOURI GAMING COMPANY (hereinafter, "Argosy"). WITNESSETH: NOW, THEREFORE, in consideration of the mutual covenants, promises and representations in this Agreement, the parties agree as follows: (1) PURPOSE: The purpose of this Agreement is to coordinate the cost and participation by Argosy in City projects 019-530-03A, and 019-530-03B. The public improvements shall consist of two projects (the "Projects"): (A) Public improvement designated as Job No. 019-530-03A will consist of the addition of a two lane roadway from the diamond interchange at Horizons Parkway (formerly Van de Populier) to the west end of Argosy Parkway, including tum lanes, underpass at the southbound lanes of Highway 69, a signalized intersection with the northbound lanes of Highway 69, and bridges. over drainage ditches. (B) Public improvement designated as Job No. 019-530-036 will consist of the addition of a two lane roadway from Tullison Road west of the intersection of Argosy Parkway to Argosy's main entrance, including a bridge over the BNSF Railroad tracks. (2) LOCATION: The general location of the projects are shown on the attachment marked "Exhibit A" and incorporated herein by reference. (3) CANCELLATION: (A) The City may cancel this Agreement at any time for a material breach of contractual obligations, which material breach continues after 30 days notice and opportunity to cure, by providing Argosy with written notice of cancellation. Should the City exercise its right to cancel this Agreement for such reasons, cancellation will become effective upon the date specified in the notice of cancellation sent to Argosy. (B) Argosy may cancel this Agreement at any time for a material breach of contractual obligations, which material breach continues after 30 days notice and opportunity to cure, by providing the City with written notice of cancellation. Should Argosy exercise its right to cancel this Agreement for such reasons, cancellation will become effective upon the date specified in the notice of cancellation sent to the City. Argosy may also cancel this Agreement if the total cost to Argosy of the Projects is in excess of Ten Million Dollars ($10,000,000). (4) DUTIES AND FINANCIAL RESPONSIBILITIES: With regard to work under this Agreement: -1- ,, n,.. , ~ ,.. _ rr (A) C~ In addition to any other obligations of the City as stated in this Agreement, the City shall be responsible for the following: acceptable to Argosy) the proposed improvements in accordan a withyC'ty standards and as approved by the City. (ii) Submitting Conceptual, Preliminary, Right-of--Way and Final plans to Argosy for approval. (iii) Pertorm the necessary negotiations for the acquisition of permits, easements and right of way with the exception of the approximately 6.6 acres to be purchased by Argosy from the Mark S. Jansen Revocable Trust in connection with Job Number 019-530-036 (the "Jansen Property"). (iv) Obtaining permits from the Corps of Engineers to comply with Section 404 regulations and environmental clearance to enable construction of the Projects. The cost of all necessary permit mitigation requirements for these improvements shall be allocated as part of the actual construction costs. (v) Obtain all necessary permits for construction in accordance with federal, state, and local laws and regulations for construction of the Projects, including permits for construction in the critical zone of the L-385 Levee. (vi) Submit final contract plans, specifications and estimate for construction, broken into the respective Argosy and City components 14 weeks prior to advertising for bids for review and approval by Argosy. All such plans will be consistent with the respective obligations of the City and Argosy as set forth in this Agreement. (vii) Supply design personnel for pre-bid and preconstruction conferences. (viii) The City shall secure the temporary or permanent removal, relocation, or adjustment of public utilities or private lines, poles, wires, conduits, and pipes located on the right-of-way of existing .public ways as necessary for construction of the improvement and the cost shall be borne by such public utilities or the owners of the facilities except where the City is by existing statutes, franchise or agreement obligated to pay all or a portion of such cost, in which case Argosy will pay its obligated portion of the cost. (ix) Conduct all surveying in connection with the Projects. (x) Let and administer the construction contract, including inspection of work pertormed by the contractor. -2- ' rr (xi) Prepare final as-built plans in conformance with City's standards, and provide copies to Argosy. improvements, except~those portbns unde rcontrol of tithe State of M ssouripletion of the (xiii) maintain adjacent sidewalks, permanent drainage system, and lighting along the improvement designated as Job No. 019-530-03B after completion of the improvements'. (xiv) Allocate a maximum of Two Million Five Hundred Thousand dollars ($2,500,000) of City funds towards the construction costs of Job Number 019- 530-03A. dollars ($2,500,000)(of)City funds for towards the constllructionl ao is onr Job Number 019-530-03B. (B) Aruosv: In addition to other obligations of Argosy as stated in this Agreement, Argosy shall be responsible for the following: (i) Review and approve all submittals of plans, specifications, estimates and variances to City standards. (ii) Provide copies of or access to all information in the control of Argosy to assist in the construction of the improvements. (iii) Acquiring the Jansen Property and providing the City with the appropriate easements and rights-of--way for construction of the Projects over the Jansen Property. . shall be transferred to the City w'thout cost upon completion o 9 he Projectsh negotiation (v) All other expenses not specifically listed under City Responsibilities. (vii) Argosy shall be responsible for all construction costs in excess of $2,500,000 on Job Number 019-530-03A, and for all construction costs in excess of $2,500,000 on Job Number 019-530-03B, as well as for all other costs beyond the City's responsibility. (viii) Argosy shall, 14 weeks prior to the scheduled letting of the project, deposit funds in an amount to be mutually agreed by the parties, for that portion of the work that is Argosy's obligation under this Agreement. If Argosy fails to deposit To be located along Tullison. Road to the entrance of Argosy's property. ..R.. . -3- ~ _ ,., rr r the funds at that time, the City may terminate this Agreement. The funds shall be held and disbursed pursuant to an escrow agreement acceptable to Argosy and the City which shall provide for progress payments upon acceptance of work in compliance with the terms of the construction contract. Any interest earned on the deposit amount shall be credited to Argosy and applied to Argosy's portion of the cost of the Projects. (ix) The deposit of money by Argosy to the City pursuant to this Agreement may be by wire transfer, as follows: Bank Name: UMB Bank NA ABA #101000695 A/C #: 23400226500 Central Securities Dept. Attention: Ruth Fields (5) COMMINGLING OF FUNDS: Argosy agrees that all funds deposited by Argosy pursuant to this Agreement with the City may be commingled by the City with other similar monies deposited from other sources. Any deposit may be invested at the discretion of the City in such investments allowed for other municipal funds. All interest monies shall be payable to the City and shall be applied by the City towards the cost of the Projects. If the amount deposited with the City shall be less than the actual obligation of Argosy for the Projects, Argosy, upon written notification by the City, shall tender the necessary monies to the City to completely satisfy its obligation. Upon completion of the Projects, any excess funds, including interest, shall be refunded to Argosy based on its pro rata share of the investment. (6) CITY RIGHT OF WAY: All improvements made within the City-owned right-of-way shall become the property of the City, and all future alterations, modifications, or maintenance thereof, will be the responsibility of the City except as provided in this Agreement. (7) NO INTEREST: By contributing to the cost of this project or improvement, Argosy gains no interest in the constructed roadway or improvements whatsoever. The City shall not be obligated to keep the constructed improvements or roadway in the manner originally constructed by the City, in its sole discretion, determines modification of the roadway or improvements, is in the best interests of the City or state highway system. (8) ADDITIONAL FUNDING• In the event the City obtains additional federal, state, local, private or other funds to construct the improvements being constructed pursuant to this Agreement that are not obligated at the time of execution of this Agreement, Argosy shall not receive an off-set for the deposited funds, a reduction in obligation, or a return of, a refund of, or a release of any funds deposited by Argosy with the City pursuant to this Agreement. (9) RIGHT-OF-WAY USE: Argosy grants the right to use the right-of--way of -4- . ~ ,.. rr public roads, streets, and alleys as necessary for construction and maintenance of said public improvement. (10) CLOSE AND VACATE STREETS: The City may close all streets or roads, or parts thereof, which may be necessary to permit the construction of the Projects in accordance with the detailed plans. Whenever the City deems it necessary to close any street or road permanently or temporarily during construction, Argosy shall be advised in time to make provisions for the diversion and rerouting of traffic. (11) LIGHTING: The installation, operation, and maintenance by the City of any lighting system on the public improvements covered by this Agreement shall be only in accordance with the City's policy on street and highway lighting in effect at the time of any such installation and only to the extent the City then deems warranted. No street lighting system shall be installed or maintained by or for Argosy on the improvements within City owned right-of-way without approval of the City. (12) TRAFFIC CONTROL DEVICES: The installation, operation and maintenance of all traffic signals, pavement markings, signs, and devices on the improvement, including those between the highways and intersecting streets shall be under the exclusive jurisdiction of the City or the State of Missouri. Argosy shall not install, operate, or maintain any traffic signals, signs or other traffic control devices on the highway or on streets and highways at any point where they intersect this highway without approval of the City. (13) DRAINAGE: The City will construct drainage facilities along the improvement and may use any existing storm and surtace water drainage facilities now in existence in the area. Argosy shall be responsible for receiving and disposing of storm and surtace water discharged from those drainage facilities which the City constructs within the limits of highway right-of--way to the extent of Argosy's authority and control of the storm sewer facilities or natural drainage involved. (14) MAINTENANCE: (A) Except as provided in this Agreement, upon completion of the public improvements, the City will maintain all portions of the improvement within the City owned right-of--way. Maintenance by the City shall not in any case include maintenance or repair of sidewalks or bike/pedestrian trails whether new or used in place, water supply lines, sanitary or storm sewers (except those storm sewers constructed by the City to drain the roadway), Argosy-owned utilities within the right-of- way or the removal of snow other than the machine or chemical removal from the traveled portion of the highway. (B) Argosy shall inspect and maintain the sidewalks and bike/pedestrian trails constructed by the Projects on the land adjacent to Argosy's property in a condition reasonably safe to the public. -5- ,..~..., ~, .. ., ~... - rr (15) COMMENCEMENT OF WORK: After approval of the final detailed plans and acquisition of the Jansen Property, the City shall construct the public improvements in accordance with the approved plans. The obligation of the City toward the actual construction of the public improvements is conditioned upon the completion of plans in time to obligate funds for such construction, upon approval of the plans by any applicable governmental agencies or commissions, and upon the award by the City of the contract for the construction. (16) RESTRICTION OF PARKING: Since the public improvements are being designed and constructed to accommodate a maximum amount of traffic with a minimum amount of right-of-way, Argosy shall take all reasonable actions to prevent parking upon such public improvements or any part of the area of the roadway right-of- way within the limits of the public improvements. (17) INTENTIONALLY OMITTED. (18) WITHHOLDING OF FUNDS: In the event that Argosy fails, neglects, or refuses to perform any of the obligations assumed by it under this Agreement, the City may, after serving written request upon Argosy for compliance and Argosy's failure to comply, withhold the expenditure of further funds for maintenance, improvement, construction, or reconstruction of the Projects. (19) INDEMNIFICATION: To the extent allowed by law, each of Argosy and the City shall be responsible for injury or damages as a result of any services and/or goods rendered by or through the other under the terms and conditions of this Agreement. In addition to the liability imposed upon Argosy or the City on the account of personal injury, bodily injury, including death, or property damage, suffered as a result of Argosy's of the City's performance under this Agreement, Argosy or the City assumes the obligation to save harmless the other, including its agents, employees and assigns, and, to the extent allowed by law, to indemnify the other party, including its agents, employees and assigns, from every expense, liability or payment arising out of such wrongful or negligent act or omission, including legal fees. Argosy and the City each also agree to hold harmless the other, including its agents, employees and assigns, from any wrongful or negligent act or omission committed by any subcontractor or other person employed by or under the supervision of such party for any purpose under this Agreement, and, to the extent allowed by law, to indemnify the other party, including its agents, employees and assigns, from every expense, liability or payment arising out of such wrongful or negligent act or omission. (20) AMENDMENTS: Any change in this Agreement, whether by modification or supplementation, must be accomplished by a formal contract amendment signed and approved on or betwebn the duly authorized representatives of Argosy and City. (21) CITY REPRESENTATIVE: The City Administrator is designated as the City's representative for the purpose of administering the provisions of this Agreement. The City's representative may designate by written notice other persons having the -s- ~...,. _, .,, ~ ... _ rr r authority to act on behalf of the City in furtherance of the performance of this Agreement. (22) ARGOSY REPRESENTATIVE: Argosy's General Manager is designated as Argosy's representative for the purpose of administering the provisions of this Agreement. Argosy's representative may designate by written notice other persons having the authority to act on behalf of Argosy in furtherance of the performance of this Agreement. (23) NOTICES: Any notice or other communication required or permitted to be given hereunder shall be irn writing and shall be deemed given three (3) days after delivery by United States mail, regular mail postage prepaid, or upon receipt by personal or facsimile delivery, addressed as follows: (A) To the City: David Blackburn 2950 NW Vivian Road Riverside, Missouri 64150 Phone No. (816) 741-3993 Facsimile No. (816) 746-8349 (B) To Argosy: Missouri Gaming Company Attn: General Manager 777 NW Argosy Parkway Riverside, Missouri 64150 Phone No. (816) 746-3100 Facsimile No. (816) 741-5423 or to such other place as the parties may designate in accordance with this Agreement. To be valid, facsimile delivery shall be followed by delivery of the original document, or a cleaz and legible copy thereof, within three (3) business days of the date of facsimile transmission of that document. (24) ASSIGNMENT: Argosy shall not assign, transfer or delegate any interest in this Agreement without the prior written consent of the City. (25) LAW OF MISSOURI TO GOVERN: This Agreement shall be construed according to the laws of the State of Missouri. Argosy shall comply with all local, state and federal laws and regulations relating to the performance of the contract. (26) VENUE: It is agreed by the parties that any action at law, suit in equity, or other judicial proceeding to enforce or construe this Agreement, or regarding its alleged breach, shall be instituted only in the Circuit Court of Platte County, Missouri. (27) SOLE BENEFICIARY: This Agreement is made for the sole benefR of the parties hereto and nothing in this Agreement shall be construed to give any rights or benefits to anyone other than the City and Argosy. (28) AUTHORITY TO EXECUTE: The signers of this Agreement wan'ant that they are acting officially and properly on behalf of their respective institutions and have been duly authorized, directed and empowered to execute this Agreement. -7- _. ,~ , .., '° rr (29) SECTION HEADINGS: All section headings contained in this Agreement are for the convenience of reference only and are not intended to define or limit the scope of any provision of this Agreement. (30) ENTFRE AGREEMENT: ~ This Agreement represents the entire understanding between the parties regarding this subject and supersedes all prior written or oral communications between the parties regarding this subject. IN WITNESS WHEREOF, the parties have entered into this Agreement on the date last written below. Executed by Argosy this o7~ day of ~t~c~R4C 200 Executed by the City this ~-~-t9ay of 20 Q~ ATTEST:: r i-'- .. Cler of the City Approved as to Form: ' Counsel ~ -s- MISSOURI GAMING COMPANY //~ L1„ 3 By Title 1 ~~~~~d2.YT~" , ATTEST: By ~~ ~~c~ Title V~ r~.~S (S Approved as to Form: G ~~ Title ~rn}P C- ~~y~ Ordinance No a~~~ ~i