Loading...
HomeMy Public PortalAboutORD16046BILL NO. 2019-139 SPONSORED BY Councilman Kemna ORDINANCE NO. 11/o4l AN ORDINANCE OF THE CITY OF JEFFERSON, MISSOURI, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A SECOND AMENDED AND RESTATED MASTER LICENSE AND COOPERATIVE AGREEMENT WITH JEFFERSON CITY PARKS AND RECREATION COMMISSION, JEFFERSON CITY PARKS AND RECREATION FOUNDATION, AND BICENTENNIAL BRIDGE, LLC BE IT ENACTED BY THE COUNCIL OF THE CITY OF JEFFERSON, MISSOURI, AS FOLLOWS: Section 1. The Mayor and City Clerk are hereby authorized to execute a Second Amended and Reinstated Master License and Cooperative Agreement with Jefferson City Parks and Recreation Commission, Jefferson City Parks and Recreation Foundation, and Bicentennial Bridge, LLC. Section 2. The agreement shall be substantially the same in form and content as that agreement attached hereto as Attachment 1. Section 3. The Mayor, City Clerk, City Administrator, and City Counselor are hereby authorized to execute all other necessary instruments and appurtenant documents to carry out the intent of this ordinance. Section 4. This Ordinance shall be in full force and effect from and after the date of its passage and approval. 2.02`Passed: / Approved: Presiding Officer ATTEST: Mayor Carrie Tergin APPROVED AS TO FORM: 1 City erk Cit ounse r SECOND AMENDED AND RESTATED MASTER LICENSE AND COOPERATIVE AGREEMENT WHEREAS, the City of Jefferson (referred to herein in the singular as "City") is a municipal corporation and the owner of property known as Adrian's Island, Jefferson City, Cole County, Missouri (referred to herein as the "Island"); and WHEREAS, the Parks and Recreation Commission of the City of Jefferson (referred to herein as the "Commission") is a Commission created by the people of Jefferson City under the Charter of the City of Jefferson and is charged with the supervision, improvement, care, and custody of the parks of the City of Jefferson; and WHEREAS, the Jefferson City Parks and Recreation Foundation (referred to herein as the "Foundation") is a nonprofit corporation organized under the laws of the State of Missouri and is the recipient of a certain restricted gift in the amount of Three Million Two Hundred and Forty Thousand Dollars ($3,240,000.00) (referred to herein as the "Gift") which is limited in its use to the design and construction of a bridge to provide public pedestrian access to the Island (the "Bridge"). WHEREAS, Bicentennial Bridge, LLC (referred to herein as the "Company") is a Missouri limited liability company whose sole member is the Jefferson City Area Chamber of Commerce (referred to herein as the "Chamber") and is responsible for administering the Gift to carry out its intended charitable purposes on behalf of the Foundation and City. WHEREAS, entry onto the Island and land controlled by the City adjacent to the Missouri State Capitol Grounds (collectively, the "Property") is necessary for the design and construction of a bridge to provide public pedestrian access to the Island and to successfully carry out the intent of the Gift. WHEREAS, upon completion the Bridge will be dedicated to use by the general public for enjoyment of a park on the Island, consistent with the charitable goals of the Foundation. NOW THEREFORE, for valuable consideration, it is agreed as follows: 1. Company's Obligations. Transfer of Bridge Documents. Company hereby transfers title to all documents, drawings, rendering, reports, and all other document owned by the Company which were prepared to design and construct the Bridge. Company shall execute any document necessary to effectuate the intent of this Section 2. Foundation's Obligations. a. Deposit of Gift. Upon receipt of the Gift, the Foundation shall deposit all Gift funds in one or more interest-bearing accounts in the name of the Foundation at one or more financial institutions of the Foundation's choosing, (referred to herein as the "Foundation Project Fund"), so long as the financial institution is authorized to do business in the state of Missouri. The Mayor of the City of Jefferson, the President of the Commission, and the President of the Chamber shall each be entitled to review and inspect all account information and other records of the Foundation related to the Foundation Project Fund upon reasonable notice. b. Other Funds. All other funds currently held or received by the Foundation which are restricted, earmarked, or otherwise designated to fund design and construction of the Bridge shall be deposited in the same account as the Gift and subject to the same provisions for distribution of the Foundation Project Fund. c. Remaining Funds. Subject to the Restricted Gift Agreement, if any monies remain in the Foundation Project Fund after final completion of the Bridge and after final payment of any professional services providers, construction manager, contractor, or vendor engaged in the design and construction of the Bridge, the Foundation may maintain the Foundation Project Fund and use such monies to advance development of the passive park on the Island, including additional access on the east side of the Island, for the upkeep, maintenance, or repair of the passive park on the Island, or it may use such monies to assist in the maintenance, upkeep, enhancement or repair of the Bridge. Nothing herein shall prevent the Foundation from honoring or complying with any restriction or limitation on any gift or donation made to the Foundation. 3. City's Obligations a. Construction of the Bridge. City shall complete construction of the Bridge in accordance with design plans prepared and sealed by a Missouri -licensed design professional. The City is authorized to continue to utilize the design professional who is currently retained by the Company for design of the Bridge. Said design plans shall be in conformance with any applicable City specifications. This obligation shall include securing, executing, and managing written contracts with a design professional and a general contractor, or any other vendors or contractors necessary. Such contracts may be executed in the name of the City. Neither the Foundation nor the Company shall be deemed to be a party to any of the City's contracts and shall have no liability arising from or relating thereto. b. Selection of General Contractor. City shall utilize a competitive bidding process to select a General Contractor to construct the Bridge. Any deviations from the purchasing requirements of the City Code in selecting a design professional or general contractor are authorized as an exercise of the City Council's authority under § 26A-42 of the City Code. 4. Commission's Obligations. a. Park Development on Adrian's Island. The Commission shall develop a passive park on the Island. The Commission shall endeavor to develop such park contemporaneously with the construction of the Bridge so that least a portion of such park will be accessible to the public at the time the Bridge is dedicated to the City and opened to public pedestrian traffic. Development of such passive park shall be consistent with the requirements of the Redevelopment Contract entered into between the Housing Authority of Jefferson City and the City, which is hereby ratified by the Commission and the lands conveyed to the City under such Redevelopment Contract is hereby accepted by the Commission as a park into the park system of the City. S. Distribution of Funds a. Bridge Project Costs. The Foundation shall make distributions to the City from the Foundation Project Fund upon presentation by the City of a request for disbursement, which such request shall include an itemized list of actual costs incurred by the City in the design and construction of the Bridge and any related work. b. Foundation or City Costs. The Foundation and City each may be reimbursed from the Foundation Project Fund for administrative costs, including attorney's fees, incurred by the Foundation or City in the administration of the Gift or Foundation Project Fund, or the design and construction of the Bridge. Whenever the Foundation or the City receives such a reimbursement, the reimbursed party shall provide a notice of reimbursement to the other parties to this Agreement. c. Company Administration Fee. Consistent with the charitable purposes of the Gift, the Company shall be entitled to an administration fee of Forty Thousand Dollars ($40,000.00), payable from the Gift as a lump sum on or before January 31, 2019. This administration fee shall constitute compensation for the Company's efforts in administering the necessary contracts for design and bidding of the Bridge but nothing herein shall prevent the Company from requesting and receiving reimbursement from the Foundation Project Fund of costs directly incurred by the Company in the design and construction of the Bridge. 6. Establishment of City Funds. The City and the Commission have identified Six Hundred Ninety -Nine Thousand Eight Hundred Thirty -Five Dollars ($699,835.00) in total capital improvements sales tax funds and parks funds which have been previously identified for riverfront access and park and trail development. This amount shall be used to fund maintenance and upkeep of the Bridge and to develop a passive park on the Island. a. Bridge Maintenance Sinking Fund. Prior to the time the Bridge is dedicated to the City and opened to public pedestrian traffic, the City shall establish a Bridge Maintenance Sinking Fund with an initial amount of Three Hundred Thousand Dollars ($300,000.00) in capital improvements sales tax funds. The Bridge Maintenance Sinking Fund shall be maintained, subject to annual appropriation, and shall only be drawn upon for the maintenance, repair, and operation of the Bridge. The Commission may annually withdraw Ten Thousand Dollars ($10,000.00) from the Bridge Maintenance Sinking Fund for the general minor maintenance and upkeep of the Bridge (the "Annual Bridge Operations Expense"). Once the Bridge Maintenance Sinking Fund is depleted, the Commission shall not be entitled to withdraw the Annual Bridge Operations Expense. All other expenditures from the Bridge Maintenance Sinking Fund shall be subject to approval by the City Council and the Commission. b. Island Park Development Fund. No later than October 31, 2019, the Commission shall establish the Island Park Development Fund, which shall be a separate fund in the Park Fund. The City shall appropriate Two Hundred Forty -Three Thousand Eight Hundred Seventy -Five Dollars ($243,875.00) of capital improvement sales tax funds, which had been previously identified for riverfront access and park and trail development, into the Island Park Development Fund. The Commission shall appropriate an additional One Hundred Fifty -Five Thousand Nine Hundred Sixty Dollars ($155,960.00) from the Park Fund balance into the Island Park Development Fund. Such amounts shall be used to develop a passive park on the Island, which can include additional public access to the Island on the east side of the Island. Any unused amounts shall be reappropriated back into the respective originating funds on a pro -rata basis, upon approval by the City and Commission. c. Amendments to Section 6. Notwithstanding anything in this agreement to the contrary, amendments to this Section 6 shall not require the approval of the Company or the Foundation, and may be amended by resolution or motion approved by the City Council and the Commission. d. Cost Overruns. In the event that costs to construct the Bridge are in excess of funds available in the Foundation Project Fund, first the Bridge Maintenance Sinking Fund, and then the Island Park Development Fund, may be accessed by the City to complete construction of the Bridge. The Island Park Development Fund and the Bridge Maintenance Sinking Fund may be replenished from the Foundation Project Fund or other private funds dedicated to construction of the Bridge or development of a park on the Island upon further fundraising. 7. [RESERVED] 8. [RESERVED] 9. Related Agreements. The parties recognize that the Restricted Gift Agreement entered into by and between the Betty J. DeLong Revocable Trust, Dated December 9, 1992, the Foundation, and the City (approved by the City Council on December 3, 2018 and referred to herein as the "Restricted Gift Agreement") and the Redevelopment Contract entered into by and between the Housing Authority of Jefferson City and the City (approved by the City Council on December 17, 2018 and referred to herein as the "Redevelopment Contract") (collectively, the "Related Agreements") are essential to the performance of this Agreement, that performance of this Agreement is intended to comply with the requirements of the Related Agreements, and nothing herein shall be construed to allow or require non-compliance with any material provision of the Related Agreements. 10. Construction of Improvements. Except as otherwise expressly indicated herein, all public improvements to be developed on the Property shall be constructed in accordance with any applicable City Department of Public Works Standard Specifications and Drawings, as may be amended, or any successor specifications and standards adopted by the City. The City shall obtain all necessary permits and governmental permissions to perform its obligations set forth in this Agreement. The City shall also comply with all applicable City Building Codes. 11. Adjoining Properties. City shall obtain all necessary private easements or licenses to perform its obligations set forth in this Agreement, which cost for such acquisition shall be reimbursable from the Foundation Project Fund. 12. Amendments. Any amendment to this Agreement must be in writing and must be executed by the City, Commission, Foundation and Company, or any successor interest who would otherwise be obligated to perform any of the requirements imposed upon the parties by this Agreement. Oral modifications or amendments of this Agreement shall be of no force or effect. 13. Remedies. The parties to this Agreement may, either in law or equity, by suit, action, mandamus or other proceedings in court, seek declaratory relief, enforce and compel specific performance of this Agreement, provided that in no event shall the City or Commission have any liability in damages, costs (including attorneys' fees) or any other monetary liability to Company or Foundation or any affiliate of either, any person claiming through Company or Foundation, or to their respective successors, assigns, heirs and personal representatives in respect of any suit, claim, or cause of action arising out of this Agreement or any of the actions or transactions contemplated herein. 14. Third Party Actions. Company shall have the right, but not the obligation to assume the costs of defense of any action or proceeding initiated by a third parry challenging this Agreement, or any other actions or transactions contemplated by this Agreement (including, without limitation, to settle or compromise any claim or action for which Company has assumed the defense) with counsel of Company's choosing, and the City and Company agree that so long as no conflicts of interest exist between them (in the judgment of the City Counselor), the same attorney or attorneys may simultaneously represent the City, Commission, and Company in any such proceeding. If the Company declines to exercise its rights of defense under this Section, the Foundation may assume such rights. In no event shall the City or Commission have any liability to Company or Foundation for damages or otherwise in the event that all or any part of this Agreement or the ordinances approving this agreement shall hereafter be declared invalid or unconstitutional in whole or in part by a final (as to which all rights of appeal have been exhausted or expired) judgment of a court of competent jurisdiction, and, in the event Company or Foundation elects not to assume such defense and costs, the City shall have no obligation to defend or to assume the costs of defense of any such action. 15. Notices. All notices between the parties hereto shall be in writing and shall be sent by certified or registered mail, return receipt requested, by personal delivery against receipt, or by overnight courier, and shall be deemed to have been validly served, given or delivered immediately when delivered against receipt or three (3) business days after deposit in the mail, postage prepaid, or one (1) business day after deposit with an overnight courier, and shall be addressed as follows: If to the City: City of Jefferson City Administrator 320 E. McCarty Jefferson City, MO 65101 If to Company: If to Commission: Jefferson City Parks and Recreation Commission Director of Parks, Recreation and Forestry 1299 Lafayette Jefferson City, MO 65101 If to Foundation: Bicentennial Bridge, LLC Jefferson City Parks and Recreation Foundation Managing Member Registered Agent/Director of Parks, Recreation 213 Adams St. and Forestry Jefferson City, MO 65101 1299 Lafayette Jefferson City, MO 65101 Each party shall have the right to specify that notice is to be addressed to another address by giving to the other party ten (10) days written notice thereof. 16. [RESERVED] 17. [RESERVED] 18. Compliance with Laws. Foundation and Company shall comply with all applicable state, local, and federal laws in the performance of this Agreement. 19. No Assignment. The obligations created under this Agreement may not be assigned without the written permission of all parties. 20. [RESERVED] 21. Entire Agreement. This Agreement contains the entire and complete agreement between the City, Commission, Company, and Foundation with respect to the requirements imposed upon the parties for the providing of certain interests in land, and the construction and installation of certain improvements, all as hereinabove described in the Recitals for this Agreement and the above numbered paragraphs of this Agreement. Parties agree that this Agreement constitutes a lawful contract between the Parties and the Foundation and Company hereby acknowledge and agree that this Agreement and provisions of the City's Code of Ordinances applicable to this Agreement constitute lawful exercises of the City's authority and police power. IN Witness Whereof, the parties hereto have hereunto set their hands this day of , 2020. CITY OF JEFFERSON % T4 Mayor Carrie Tergin ATTEST: APPROVED AS TO FORM: Ci Cou I oror JEFFERSON CITY PARKS AND RECREATION FOUNDATION A 6alz Greg 6alQQ, Presid ATTEST: Secretary ATTEST: Executive Secretary BICENTENNIAL BRIDGE, LLC hive