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HomeMy WebLinkAbout1997-07-01 - Settlement Agreement RESOLUTION WHEREAS, the City of Riverside, Missouri, Missouri Division of Motor Carrier and Railroad Safety Staff, Burlington Northers Railroad Company, Holliday Sand & Gravel Company, and the Missouri Gaming Company have met on several occasions with regard to the Matter of the Application of the City of Riverside Concerning the Zeke Road Crossing in the City of Riverside, Missouri, and WHEREAS, negotiations have been held concerning terms, conditions, and provisions acceptable to all parties which will result in the Zeke Road Crossing remaining open to public traffic, BE IT RESOLVED THAT THE BOARD OF ALDERMEN OF THE CITY OF RIVERSIDE, MISSOURI, ACCEPTS THE SETTLEMENT AGREEMENT AND MOTION FOR APPROVAL OF SETTLEMENT (RS-96-327) AS PRESENTED BY THE ABOVE NAMED PARTIES ON JUNE 30, 1997, AND AUTHORIZE ANN DANIELS TO SIGN THE SETTLEMENT AGREEMENT AS ATTACHED HERETO, ON BEHALF OF THE CITY OF RIVERSIDE. PASSED THIS 1ST DAY OF Oi%~1~9i TUE tl~J:21 F.~S JAL-01-1997 68~4~ MOTOR aaHR;_R 8 RR ~Hr-ti'r 5'~~ 726 ~b~l Jug ai •gr STATE OF MISSOURI DIVISION OF MOTOR CARRIER AL~tD RAILROAD SAFETY Tn the Matter of the ApplicalYOn of the City ~ Case Na. RS-9G-327 of Riverside Canceming the Zeke Road Grassing ) in the City of Riverside, Missouri ) S~'CTr 'Iti~'''~"'' A ~'FL1?FNT ALN~ I~iOTION 'V ~] UV: r.a~ ae = avr-,~ Conic now the parties in. the above-entitled case, ttze CI'T'Y OF RIVL•RSIDE, MI~SOLTRI (CITY), MISSOURI DIVISION OF MOTOR CARRIL•R AlV~ RAII-ROAp 3AkBxY STAFF (STA,b'F), BURL~TGTON NORTI-TERN RAILROAD COMI'A.VY (RAILROAD), HOLLA~AY SAND Bc GRAVEL COM]?ANY (J:IOLLJDAY) and THE I1~SSOURi GAMING COMPANY (CASINO) appearing with counsel, and hereby mutually agree and propose to compromise, settle anal dispose of the above-referenced proceeding upon the terms, cond~.t~ana and provisions )~ezein set forth. T17.e parties furthez hereby jointly move that the Division's Adraitzistrative J.,aw Judge issue an order apptnving this settleruent, as provided tmd~es Division Rule 4 CSR Z63.2.070(15), and that the order adopt by reference the material terms, conditions and provisions of this Settlement Agreement and order the pa*lies to carry out and perform the same as set fort!-. herein. The parties therefore represent and agree as follows ~.. AIi patties stipulate that 'l7te Missouri Gaming Company (Casino) bas an interest in the proceeding which is different from that of the general public and that Pursuant to 4 CSR 26~-2.116 tlZe Casino should be made patty to this Proc~~tg• By signing this agteernent the Casino consents to be made a party to t!xis case, and will comply with the Division's lawful orders issued in this case. U7%U1~ 9i TL'E 09:21 F:~Y P.O ~UU3 ~ ~;~ a:. ~'JJ i e:u • y7 ~•:~. ~ a< t,.nKK A ec~ s i.i~ :~rn-~ i r :a'f3 7Gb .]05i JUL 6: '97 08~~.BAM Settlement Agreement and Motion for Approval of Settlement (RS-96-32'7} page Z 2. Bach patty aclcsowledges that it is aware of the various rights anal privileges a~'orded to it by law, including the zi gbt to appear and be represented by counsel; the right to czoss-examine any witness appearing at tha heating against it; the right to present evidence on its own behalf at the hearing; tha right w a decision upon the retard o£the hearing by a fair and impartial administrative )aw judge concerning the facts anal legal merits of the Amended Application and Cavnter.-Application. Being aware of ti~-e foregoing xights provided to each patty by Iaw, each par. ty knowingiY anal voluntu~ily waives ea^b and every ono o£ the rights set forth in this para~apl~, attd freely enters inw this settlemerrt agreement arld agrees to abide by the terms of this dACUment as they pertain to each respective party. ;. 'fhe crossuag is located near the Missouri River in the City ofRiverside, Platte Cowity, yJissouri_ The tracks run basically east to west. ~M1ile Zeke Road nms basically north anal south.. Zeke Road begins from the DArtll at a frontage road which is approxiL-7ately 40 yards north of the crossing. Initially, this crossing was rarely used although the tracks were busy with trains entering and exiting the Railroad's Murray Yard J.ocated just cast of. tl~e zetce Road. crossing_ However, in 1.990 Holliday began running its business operations f7om as area between the tracks and tJze river. Also in 1990, Holliday constructed Zelce Road, in its present form, providing asphalt, grading, drainao structiue, stabilzzed base arsd shoulder reconstruction. This construction. went fzom the frontage road to the l~olliday plant The nature of I3olliday's business causes a large Oi-01.9i TL~E U9:2~ F:~Y C~J00-~ ,_~ .._ ___. ~~ __. ._...~~. _. .. .. `., ~ .... ._.. .... ~... ...z ......~ r.r~.. VJUL 0i '97 O8~49AM Sestlement Agreement and Motion for Approval of Settlement (RS-96-32Tj Page 3 Dumber of tractor-trailer units to use this crossing on a daily basis. rln agreement was made betw•eez~ kialliday and th.e Railroad which covered rl~e rnairstenance and indemnity insuxaneo with respect to the 7eke Road crossing. Purtheanore, during 1993, the Casino began using the crossing as they started operating from the area between the tracks and the river just west of Holliday. At this time the Railroad was still using its tracks on a frequent basis, The 7.eke Road crossing was then the only means of ingress and egress to this area between the tracks and the Missouri River. Therefore, the crossing became heavily used. The Casino and Holliday entered. iota an a~•eem.ent on ox about March. i4, 1994, whereby th,e Casino assumed the hinancial responsibilities experienced by Holliday due to iti, contractual obligations with fife Railroad. During I99G, the Casino constructed a second ingress and egress to the area between the tracks and river wluch coAnects with zeke Road jrist south of the Zeke Road grade crossing which does not cross any ra,,road tracks. All parties agree that blockage of the crossing by the Railroad's txains is not a problem. at this time, nresently the City i.s planning to constrict a park in the area between the txaclts and the river, betwe~x Holliday's plant alid the Casino's Facility. The City initiated this proceeding in an attempt to have the crossing deemed a "public" crossing and to have the Division issue orders which would dizect the Railroad to assume the responsibilities of raaintaixtiag the crossing and to refrain from bloclcirzg the crossing. The Railroad has filed a Counter-Application alleging that the crossing is a'~rivate" crossing and that if. it is 3ccmed "public" th.e crossing should be closed. Oi/O1/9i TUE 09:20 FAT ~ 005 J LiL-/•]~-17Ti' YJ17 ~ :7C7 I'IU ~ Lilt ~ .KK 1 tK 6 RK Jhl L ~ 7 7Y3 7C4 SD71 P. 0$ . JUL 01 '97 08~49~+1 Settlement Agareement and Moiioa for Approval of Settleraeat (RS-96-32'n page 4 'n. consideration of the covenants hereinafter contained all parties agree: 1. That the City shall immediately withdraw ixs Amended Application. 2. That the Railroad shall immediately withdraw its Counter-Application. 3. To maintain the status quo, which includes: ,4_ The Division of Motor Carrier anal Railmad Safety would not enter orders directing the Railroad to operate its trains so as not to block the Zeke Road crossing for any length of time. However, th:e Railroad wit] continue its practice oi'not blocking the Zeke Road crossing pursuant to the operating procedures acid orders it has previously distributed to its empJ.oyees. $. Staffs crossing inventory would continue to designate the zeke Road crossing as a "Private industrial" crossing, unless and until there is a substantial ellaage is cireutnstances az the crossing which changes this status. Nei.eher party stipulates or agrees that the erassing is private or. public. Although the crossing's designation shall. zemain "private industrial", it shall remain open ~ the public. however, this Agreement does not 5ar any parry from inzti.ating future litigation with. respect to the "pr~vatc industrial" status of the crossing. 7nT01 P . AS ~~'01'JD `~u1 VLF il.2 VOF.1.1 I'IVIVR ~.FIfCIC~GR .i. nn :ir~rn r~l ~ Jf~:l 7GG w:IVlil1 r.bi oOV JUU e2 '97 ~~59AM Settlement A;reement aad ylotion for Approval of Settlement (RS.96-3Z~ page 5 C. The Railroad agrees not to remove the active warning devices frond the 7eke Road crossing, ual.ess otherwise ordered by the Division of Motor Carrier and Railroad Safety ar in the event the Casino or aay other party agrees to fund an upgrade to constant warning time cixcuitry, D. ' All parties, in good faith, wi]I work together rn Ending solutions to the Rai.lroad's concerns regarding potential increases in. pedestrian. traffic due to the construction of a city park. rurtherniore, the Ciry will sbaxe its plans for development of tl~.e park with. the ],2ailroad. L. That cuzrently the Casino is pxov%ding indemnity insurance in the amount of Two Ivlillioa Dollars per occarcence covering tj~e Railroad's liability for the Zeke Road crossing. That tote Casino shall can.tirlue to provide and keep in effect this policy of indemnity insurance covering the Railroad's liability for the 7eke Road crossing. The parties ag~ee to review the adequacy of the indemnity insurance coverage at the request oi• any party. F. In the ovens tle Casino terminates or neglects its obli.gatioa to provide the indemnity insurance, the Ciry, in additYan to any other Oi/O1/9i TUE 09:2~i F:~Y ~00/ . _. ~ ... . _ _. ~ ._.._ _ ~ .._ .. _.. _. _ _ . _ .. _ . _ . ~ ~ ~ r r . V r ~7ULr01 '97 08:51rx~1 Settlement Agreement clad Motion for ~~.ppraval of Settlement (RS-96-32'n ;!'age 6 legal remedy it may have, may accept the obligation to provide the ind~eranity insurance covering tl~e Railroad's liability for. die 7eke Road crossing and the crossing shall then remain open to the public. G. That the Casino shall continue the fuiauciah responsibility ofmaintauting the crossing, however, if th,e Casino ~ or neglects this obligation, the City, in addition to oily othex legal remedy it raay have, may continue the h7naneial respoasibili.ty for rt,a;n "" ^ e of the Zelre Road crossing or a.Low the crossing the be closed to the public. H. The }tailroad agrees not to cl.ase the Zelte Road grade crossing to public motor vehicle traffic as long as the Casino, City or third party continues to provide iananciah maintenance to the crossing and indariiiiry insurance covering the Railroad's liability for the Zeke Road crossing. 13owever, i F the Casino, City or third party fail. to provide financial maintenance anal the specified level of indemnity itisurauce, the lZailFOa,d may close the Zelce Road crossing to the public motor vehicle traffc. Tbin Agreement shall not relieve the Railroad of any duties it may have to Holliday to keep the Zeke Road crossing open to private motor vehicle traffic tin and from Holliday's plant Furthemlore, this Agreement shall not relieve Holliday of any duties it may then have to indemnify the 0.%01~9i TIE 09:2-! F:~T X003 J LL-x71-177 i /JU • Dc I'IU I UK l.f"Iltih 1 J< d t~ _.nrc i i J i J JGb .:IUJl I"' .1~7,~ JUL 01 '97 09:52AM Settlement Agreement and Motion for ApQroval of Settlement (RS-96-32'n Page 7 ~ilroad and provide financial Aoaintenance with regard to the Zeke Road crossing: 4. In flue event of any material nortperfotmaace, default, breach. oz noneompliaa,ce by anY PAY with any provision of this A~'eeraeat, each party reserves the right in such event to instiuue eriforcertart proceedings seelSitlg to enforce this Agreement and any other available remedy, including, lout not limited to, payment by the noncomplying party of reasonable attorney's £ees and court costs, without zestciction by reason of any provision o£this Agreement. In addition to any other statutorily auth.osized venue, the parties agree that any action to enforce this r4~eement may be brought in the Circuit Court o£ Cole County, Missouri. 5. Zfthis AgreerA.ent or arty of the material te~.s, condit9ons and provisions thereof is disapproved by order of an Administrative I,aw Judge of the Missouri I~ivisioa of Motor Carriez arzd Railroad Safety, then this document shall be deemed void and of no effect whatsoever. 6. All of the provisions of this Agreemenrt are binding upon. and shall apply fox the benefit of tl,.e garden executing the same, as well as their rcpreseotatives, successors and assigns, respectively. 7. The date o£this Agreement shall be the date when it is signed by counsel for the Staff. VJT~EREFCRE, in consideration of the mutual stipulations, agreements, and other provisions set forili above, alJ parties respectfully request the Missouri Division ofNlotor Carrier O i- O1 ~ 9 i TLS p 9: 2 5 F.~.T f~ 00 9 JUL Ja 1J7! JO'VV ••"+~~•' 4..."1n11•LJ'. t} ~... ti ~. ~• • ~/IJ .Aru JWa r. 'yY 7LIL 01 ' 97 08: 52AM Settlement Agreement and Motion for Approval of Settieuient (RS-96-32'~ Page S and Railroad Safety to issue i.ts order approving the faregoiag Settlement Agreement, a~od. r: quiring the parties to comply with this Agreement, and incorporating a.U the material pzovisiot~s thereof, in its said order, by and with the consent of aI] the undersigned parties, and to giant such other and furtbex orders, not inconsistent herewith, as Ehe Administrative Law Judge of the Missouri Division oflVlotor Caxri.er and Railroad Safety may consider approgriase. Si,~med this day of , l9~ on behalf of: MLSSOUTtI DIVISION Ol~ MOTOR CARRIER AND RAILROAD SAFETY STAFF Signed tbis day of. 19_,, on behalf o£ BURLINGTON NORTHERN RAILROAD caivr~ArlY Rob Trowbridge #44637 Counsel Missouri Divisin2.ofMotor. Carrier and Railroad Safety P. O. Box 1216 Jefferson City, MO 65102 (573) 751-7120 Signed t]ai.s day of ~ I9_,_, on behalf of: CITY 01: RNERSIAE, MISSOURI Edward R. Spa].ty, Esq. ;#2GOSG S Ceveti ~~. Crysta? Esq. Attorney for City of Riverside Armstrong, Teasda3e, Sehlafley & Davis 23A.5 Grad Boulevard, Suite 2000 Kansas City, Missouri 64208 Doaald E. Ransom, Irsq. ~#22G54 Attorooy for Respondent Brasher Law Firm Orze Metropolitan. Square Suite 2300 Z11 N. T3roadway St. I-ouis, Missouri G3102 Signed this, ~,y of , I9_, an behalf of $OLLIDAY SAND & GRAVL-L COMPA~TX S. Preston Williams, F..sq. #3.4383 Attorney for ]3olIiday Sand & Gravel Co. Williams & Harxee Oae "I~owri Square North Kansas City, Missouri Got 16-3G89 0 i %O1: 9 i TL'E 09:58 F3.Y ~;;;--I(JL-1bS'!' v~+7~ Piuiul< L"rCK 1CK a i.n onra~ ~ ~ ooi r~ aca .:~cai r. iaa ruL az '9z ae~s2aM Settlement agreement and IVfotion for Approval oPSettlement (RS-9~i-32~ Page 9 ~~ Signed this, day of _ -~ I9~ or. behalf of: CITY Or RIVERSIDE., MISSOURI • Dean L. Cooper, Esq. #3G592 ~/ Attorney for City ofRiverside ErydoA, Swearengen 8c England, P.C. 312 East Capitol Aveaue P.O.13ox r35G Jeffersoa City, Missouri 65].02-045G Signed this day o£ ~ 1~.~ _ an be1~2l.f of: CITY OF RIVERSTAl:, MiSSOt,'RT. Elizabeth. A. Daniels City Administrator City of Riverside, Missouri X500 High Drive Riverside, Missouri. G4I~0 Sited this day of , I9~ on behalf o£ TIC MISSOURI GAMII~TG COMPANY Donald ]. Malloy, Esq. Setuor Attozlxey The Missouri Gaming Company 21,9 Piasa Streat Alton, Illinois GZOOZ-6232 Missouri 73ar No. THE ML550URI GAMING COMPAAIY (Missouri counsel) (print n~7.e/ Mobar #) (address & phone #) TOTpL P.05