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HomeMy WebLinkAbout1016 - Amendment to Overpass Agreement BNSFBILL NO. 2010-041 ORDINANCE NO. 014 AN ORDINANCE AUTHORIZING AND RATIFYING EXECUTION OF THE FIRST AMENDMENT TO OVERPASS AGREEMENT WITH THE BNSF RAILWAY COMPANY IN CONNECTION WITH CONSTRUCTION OF THE ARGOSY PARKWAY PROJECT WHEREAS, the City approved execution of an Overpass Agreement with BNSF to construct the Argosy Parkway Project pursuant to Ordinance 2010-025 on February 16, 2010; and WHEREAS, in order to provide for the closure of the at -grade Zeke Road Crossing to public traffic, the parties desire to Amend such agreement according to the terms and conditions contained in the First Amendment to Overpass Agreement set forth in Exhibit "A" attached hereto; and WHEREAS, the Board of Aldermen find it is in the best interest of the citizens of the City of Riverside to authorize and approve execution of the First Amendment to Overpass Agreement between BNSF and the City and to further ratify any and all actions taken prior to formal approval by the Board of Aldermen; NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF RIVERSIDE, MISSOURI, AS FOLLOWS: SECTION 1 -APPROVAL OF AGREEMENT. That execution of the First Amendment to Overpass Agreement by and between the City of Riverside and BNSF Railway Company, in substantially the form set forth in Exhibit "A" attached hereto, is hereby authorized, approved and ratified by the Board of Aldermen. SECTION 2 - EXECUTION OF CONTRACT. That the Mayor, City Administrator and City staff are authorized to execute and deliver the First Amendment to Overpass Agreement and to take such other actions reasonably necessary to carry out the intent of this Ordinance or which are necessary or incidental to the performance thereof. Any and all actions taken by the Mayor, City Administrator and City staff relating to execution and performance under such contract prior to the effective date of this ordinance are hereby ratified and confirmed. SECTION 3 - REPEAL OF ORDINANCES IN CONFLICT. All ordinances or parts of ordinances in conflict with this ordinance are hereby repealed. SECTION 4 — SEVERABILITY CLAUSE. The provisions of this ordinance are severable and if any provision hereof is declared invalid, unconstitutional or unenforceable, such determination shall not affect the validity of the remainder of this ordinance. SECTION 5 — EFFECTIVE DATE. This ordinance shall be in full force and effect from and after the date of its passage and approval. BILL NO. 2010-041 ORDINANCE NO. BE IT REMEMBERED that the above was read two times by heading only, PASSED AND APPROVED by a majority of the Board of Aldermen d APPROVED by the Mayor of the City of Riverside, Missouri, this ,/-- day of 2010. ' t. b Ma or Kathleen L. Rose ATTEST:, r Rogirn'Lifitrell, City Clerk Approved as to form: FIRST AMENDMENT TO OVERPASS AGREEMENT Arpsy Parkway Overpass U.S. D.O.T. No. U1 ? D3Z9 -ra This First Amendment to Overpass Agreement (this "Amendment") is executed to be effective as of this a day of MU ,2010 (the "Effective Date"), by and between BNSF RAILWAY COMPANY, a Delaware corporation (` NSF"), and the CITY OF RIVERSIDE, a political subdivision of the State of Missouri ("Agency"). RECITALS WHEREAS, BNSF and Agency are parties to that certain Overpass Agreement, dated February 16, 2010 (the "Overpass Agreement"); and WHEREAS, BNSF and Agency desire to amend the Overpass Agreement as set forth in this Amendment. NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: AMENDMENT 1. Definitions. Capitalized terms used but not defined herein shall have the meaning assigned to them in the Overpass Agreement. 2. Amendment. The following language is hereby added to "ARTICLE III — AGENCY OBLIGATIONS" of the Overpass Agreement in appropriate numerical order: 20. Immediately upon completion of construction and the placing in service of the Structure, Agency agrees to remove the existing Argosy Parkway roadway in such a manner as to prevent public use of the existing Zeke Road at -grade crossing (DOT 079378E). The improvements constructed by Agency at the Zeke Road crossing shall be in substantially the same form as attached hereto in Exhibit "A" and shall only provide private access to the Holliday Sand and Gravel Company ("Holliday") property. The crossing shall be gated at all times, except during times when Holliday, or its successor or assigns, is open for business. As long as Zeke Road crossing is open, Agency agrees to reimburse BNSF for all costs incurred for maintenance of crossing. Further, the parties agree that general liability insurance in a form acceptable to BNSF shall be purchased by Agency insuring Zeke Road crossing in an amount not less than $5 Million per occurrence with an aggregate limit of at least $10 Million. In lieu of providing separate general liability insurance coverage, Agency may elect to obtain such insurance through an existing provider of BNSF and reimburse BNSF for the cost of such insurance. In the event any of the terms and conditions contained in this Section 20 are not fulfilled, Agency agrees that BNSF may seek permanent closure of the Zeke Road at -grade crossing from MoDOT and that Agency will not intervene in such proceedings to object to such closure. 3. No Other Amendments. Except as specifically modified and amended herein, all of the terms, provisions, requirements and specifications contained in the Overpass Agreement remain in full force and effect. Except as otherwise expressly provided herein, the parties do not intend to, and the execution of this Amendment shall not, in any manner impair the Overpass Agreement; the purpose of this Amendment being simply to amend the Overpass Agreement as set forth herein, and to confirm and carry forward the Agreement, as hereby amended, in full force and effect. 4. Counterparts. This Amendment may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. Signature Page Followsl IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and attested by its duly qualified and authorized officials as of the day and year first above written. RNSF RAILWAY COMPANY By: Name: Title: WITNESS: CITY OF RIVERSIDE By: Name: I < < e. Title: A2. WITN S: EYJMIT "A" Zeke Road Crossing Improvements CITY OF RIVERSI MISSOURI Upstream from ordinary. 2950 NW Vivion Road Riverside, Missouri 64150 MEMO DATE: May 28, 2010 AGENDA DATE: June 1, 2010 TO: Mayor and Board of Aldermen FROM: Nancy Thompson, City Attorney RE: BNSF First Amendment to Overpass Agreement BACKGROUND: The Board of Aldermen approved execution of an Overpass Agreement with BNSF for construction of the Argosy Parkway overpass on February 16, 2010. The City submitted an executed copy of the agreement to BNSF and began construction of the project. Unfortunately, BNSF did not execute its copy of the Overpass Agreement and subsequently issued a stop work order on the project in order to ensure concerns expressed by BNSF concerning access issues at the existing Argosy Parkway/Zeke Road at grade crossing were addressed in the agreement prior to commencement of construction. As background, Zeke Road Crossing was originally established as an at -grade crossing in the 1980's by the predecessor to Holliday Sand. In 1994, title to the crossing was conveyed to the City and an agreement was entered into between Holliday, Argosy and the City to open the private crossing for use by patrons to and from Argosy Casino and the city park. In 1996, a formal application was filed with the Missouri Department of Transportation to have the crossing declared to be a public crossing. There is a 1998 Settlement Agreement in that action entered into between the parties and BNSF to maintain the crossing open to public traffic, but formally declaring it to be a "private industrial crossing". The 1998 Settlement Agreement required Argosy and/or the City to maintain $2M in liability insurance for the crossing (which was the industry standard at the time). The construction plans for the new overpass showed a private road access connecting Holliday Sand to the new Argosy Parkway for emergency access to the Holliday Sand tract. BNSF objected to ANY access that would provide ANY available route for private vehicular traffic going to/from Argosy Casino to try to bypass using the new overpass. Since then, the plans have been redrawn and re -engineered to completely obliterate what will be the old Argosy Parkway and leaving the only access in/out of Holliday Sand across Zeke Road crossing. BNSF has approved the new plans, which are attached as an exhibit to the Amendment. In addition, BNSF has approved construction of a barricaded emergency access route to the Holliday Sand property from the parking lot located in EH Young Park. During negotiations to close Zeke Road to public access, BNSF requested the City execute a new Private Crossing Agreement between the City and BNSF. The Private Crossing Agreement would have imposed a large number of requirements and restrictions and would have allowed BNSF to close the crossing upon 30 days notice. Based on the history and fact that Zeke Road Crossing is an existing at -grade private crossing, the City objected to the terms and continued to discuss the outstanding issues with BNSF in an attempt to reach resolution and resume construction. At the time the 1998 Settlement Agreement was entered into between the parties, the railroad industry standard was to obtain $2 Million in insurance coverage for at -grade crossings. The current industry standard is $5 Million per occurrence/$10 Million aggregate. Early on in the negotiations, staff took the position that the City would be willing to provide the increased coverage to meet the industry standard as long as the execution of a new Private Crossing Agreement was not required. Staff has worked to secure the increased insurance coverage for the crossing and cooperated with BNSF to utilize one of its providers. The policy will be written through BNSF with BNSF as the insured party and the City named as an additional. The City will reimburse BNSF for the annual costs associated with the policy. At this time, the cost of the insurance will be $8,125 per year. With the Amendment and insurance in place, BNSF has approved commencement of construction on the overpass structure. Cook Flatt & Stobel and Olsson Associates will work with APAC-Kansas City and BNSF to ensure compliance with the contractual obligations for safety, flagging and inspection during construction activities. RECOMMENDATION: Approve the amendment. BUDGETARY IMPACT: Staff anticipates the insurance needed to comply with the terms of the Amendment will be $8,125 annually.