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Home My Public Portal AboutORD14564 BILL NO. 2009-38 Passed as Amended SPONSORED BY COUNCILMAN PENFOLD ORDINANCE NO. 14564 AN ORDINANCE OF THE CITY OF JEFFERSON, MISSOURI, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A COST SHARE AGREEMENT WITH THE MISSOURI DEPARTMENT OF TRANSPORTATION COMMISSION AND COLE COUNTY FOR AN INTERCHANGE ON HIGHWAY 179. BE IT ENACTED BY THE COUNCIL OF THE CITY OF JEFFERSON, MISSOURI, AS FOLLOWS: Section 1. The Mayor and City Clerk are hereby authorized and directed to execute a Cost Share Agreement with the Missouri Department of Transportation and Cole County. Section 2. The amendment shall be substantially the same in form and content as that amendment attached hereto as Exhibit A. Section 3. This Ordinance shall be in full force and effect from and after the date of its passage and approval. Passed: Aug. 3. 2009 Approved: � 200, P iding Officer Mayor ATT T. APPROVED AS TO FORM: City Clerk City Counselor PA . CCO Form: Route 179 Approved: 04/08 (MRA) County Cole Revised: Job No. J5S0906 &J5090613 Modified: 03/11 (AR) City Jefferson MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION SECURITY PLEDGE AND CONTROL AGREEMENT THIS AGREEMENT is entered into by and between the MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION (hereinafter, "Commission"), and the City of Jefferson,-(hereinafter, "City"). WITNESSETH: WHEREAS, the Commission and the City have entered into a Cost Share Agreement, as amended, (the Original Agreement and the Amendment Agreement herein collectively referred to as "Cost Share Agreement") as to public improvements designated as Highway 179 Interchange (Commission's Job No. J5S0906) and the connector road located east of the improvements to the Route 179 interchange and identified as "St. Mary's Road" (Commission's Job No. J5S0906B), hereinafter collectively referred to as "Project"; and 1 _ WHEREAS, the City agrees to provide security for its obligations as well as the obligation of Cole County (hereinafter, "County") to pay a portion of construction costs, including construction engineering and contingencies, incidentals, and utility adjustment costs, associated with the Project , as provided in the Cost Share Agreement; and WHEREAS, the Commission and the City now desire to enter into this Security Pledge and Control Agreement. NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and benefits stated herein, and in further consideration of the obligations, terms and conditions set forth and recited, the parties agree as follows: (1) PURPOSE: The purpose of this Agreement is to provide for the City to pledge securities owned by the City to the Commission to ensure that funds are available to satisfy the City and County's obligations towards costs of the "Project", as required by the Cost Share Agreement and all previous agreements between the parties. (2) COMMISSION REPRESENTATIVE: The Commission's District Engineer for District 5 is designated as the Commission's representative for the purpose of administering the provisions of this Agreement. The Commission's representative may designate by written notice other persons having the authority to act on behalf of the 1 Commission in furtherance of the performance of this Agreement. (3) CITY REPRESENTATIVE: The City's Mayor 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 authority to act on behalf of the City in furtherance of the performance of this Agreement. (4) REPRESENTATIONS BY THE CITY: The City makes the following representations as the basis for the undertakings contained in this Agreement: (A) The City of Jefferson'is a constitutional charter city, existing under and by virtue of the Constitution of the State of Missouri. (B) The City has the lawful power and authority to enter into this Agreement and to cant' out its obligations hereunder. (C) The City has taken all necessary actions to approve this Agreement. No further action or approvals are necessary to make this Agreement a valid and binding obligation of the City. (D) The execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, and the performance of or compliance with the terms and conditions of this Agreement by the City will not conflict with or result in a breach of any of the terms, conditions or provisions of, or constitute a default under, any mortgage, deed of trust, lease or any other restriction or any agreement or instrument to which the City is a party or by which it or any of its securities are bound, or any order, rule or regulation applicable to the City or any of its securities, or result in the creation or imposition of any prohibited lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the City under the terms of any instrument or agreement to which the City is a party. (5) SECURITY PLEDGE: The City of Jefferson hereby pledges unencumbered securities owned by the City to the Commission, which shall have a fair market value equivalent to the City and County's estimated remaining project obligation, in the amount of Two Million Nine Hundred Thirty-Five Thousand Five Hundred Sixty-Five dollars ($2,935,565), pursuant to Paragraph 9(F) of the Cost Share Agreement. The City shall absolutely and irrevocably instruct the Bank where its securities are held (hereinafter, "Bank") that these securities shall be pledged to the Commission. (6) TYPES OF SECURITIES: The City's pledged securities may only include obligations of the United States government or any agency or instrumentality thereof maturing and becoming payable not more than five years from the date of purchase. (7) BANK MONITORING: The City shall cause its Bank to provide on-line monitoring. to the Commission to account for the pledged securities that are held and 2 controlled by the Bank on behalf of the Commission. On the first business day of each month, the City shall cause the Bank to determine the fair market value of the pledged securities and to report the same to the Commission. If the fair market value of the pledged securities is less than 100% of the actual obligation of the City and County for the above-described Project, the City shall immediately pledge additional, unencumbered securities meeting the requirements provided herein, which shall have a fair market value equivalent to the City and County's estimated additional project obligation and provide notice to the Commission of the additional pledged securities through a securities statement from the Bank indicating Commission's pledge on securities in the amount of at least 100% of the City and County's remaining obligation toward the Project. If the City fails to promptly pledge said securities, the Commission shall take appropriate actions to obtain reimbursement from other available City resources, including future revenues, and may discontinue work on the above-described Project until the City meets its obligations as provided herein. (8) SECURITY INVESTMENT ADJUSTMENTS: If the City desires to make any investment adjustments for the pledged securities, the City's representative may request the Commission to release specified pledged securities in exchange for the pledging of other securities, which shall have a fair market value equivalent to the securities desired for release. Upon receipt of written notice from the Commission's representative and the City's representative, the City shall cause the Bank to release control of a portion of specified pledged securities in exchange for the pledging of other unencumbered, specified securities, which shall have a fair market value equivalent to the released securities. The City shall cause the Bank to hold and control these newly pledged securities on behalf of the Commission. (9) SECURITY RELEASES: As the City and County pay each of their obligations under the Cost Share Agreement to the Commission, the designated City representative may request the Commission's permission to authorize the Bank to release particular pledged securities in amounts of the paid down obligations, resulting in the remaining balance of pledged securities commensurate with the remaining balance of the City and County's obligations on the above-described Project. (10) EVENT OF DEFAULT: In the event of default, whereby the City or County is unable to pay its obligations to the Commission, and the City or County fails to cure within sixty (60) days of notice of failed payment, the City authorizes its Bank to transfer ownership of these securities to the Commission in an amount sufficient to satisfy the City and/or County's obligations under the Cost Share Agreement. (11) SEVERABILITY: If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision contained in the Agreement. (12) AMENDMENTS: Any change in this Agreement, whether by modification or supplementation, must be accomplished by a formal contract amendment signed,and approved by the duly authorized representative of the Commission and the City. 3 (13) NO ADVERSE INFERENCE: This Agreement shall not be construed more strongly against one party or the other. The parties to this Agreement had equal access to, input with respect to, and influence over the provisions of this Agreement. Accordingly, no rule of construction which requires that any allegedly ambiguous provision be interpreted more strongly against one party than the other shall be used in interpreting this Agreement. (14) VOLUNTARY NATURE OF AGREEMENT: Each party to this Agreement warrants and certifies that it enters into this transaction and executes this Agreement freely and voluntarily and without being in a state of duress or under threats or coercion. (15) ASSIGNMENT: No party to this Agreement shall assign, transfer or delegate any interest in this Agreement without the prior written consent of the other parties to this Agreement. (16) LAW OF MISSOURI TO GOVERN: This Agreement shall be construed according to the laws of the State of Missouri. The Commission and the City shall comply with all local, state and federal laws and regulations relating to the performance of this Agreement. (17) 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 Cole County, Missouri. (18) 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. (19) AUTHORITY TO EXECUTE: The signers of this Agreement warrant 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. (20) NOTICES: Any notice or other communication required or permitted to be given hereunder shall be in 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: Commission to: District Engineer, District 5 Missouri Department of Transportation 1511 Missouri Boulevard P.O. Box 718 Jefferson City, MO 65102 Copy to: Controller's Office 4 i Missouri Department of Transportation 105 West Capitol P.O. Box 270 Jefferson City, MO 65102-0270 City of Jefferson to: Mayor, City of Jefferson 320 E. McCarty Jefferson City, MO 65101 IN WITNESS WHEREOF, the City and the Commission have executed this Agreement as of the date last written below: J Executed by the City this day of 0 I. Executed by Commission this , 'I day ofi , 20�. MISSOURI HIGHWAYS AND CITY OF JEFFERSON TRANSPORTATION COMMISSION Byxs"'Oe'd " '� 'e'e� By 1 Chief Engineer ! Title Title ATT ATT By ! Secr to the Commission ` , - Title ApptysUtoF o : Appr d Form: Con&6sion Cou el City C unsel Ordinance 5 �\tr o► r R��-. Eric Struemph, Mayor City of Jefferson W � p City Counselor's Office 320 East McCarty Street = VOICE(573)-634-6313 Jefferson City, MO 65701 FAX(573)=634-6504 April 28,2011 Ms.Ardita Roark Senior Assistant Counsel 105 West Capitol, P.O:Box 270 Jefferson City, MO 65102 Re: Authority of City Administrator to Execute Securities Pledge Agreement Re: Authority of City Administrator Dear Ardita: You had inquired regarding the authority ofthe City Administrator.to sign the Securities-Agreement. As you know, this agreement places certain restrictions on part of the.assets held by the City. Importantly, as will be indicated later on, it does not incur any expense on behalf of the City. Under its charter, the City claims all those powers which it is possible for the legislature to grant, excepting those specifically prohibited by the legislature(Charter 2.1). All powers not other wise specifically delegated are .reserved to the Council(Charter 3..1). The Council has delegated-to the City Administrator the authority to execute:contracts where no real estate is involved and where the cost of the contract is less than$25,000(Code§2-290(G)). In this particular case,the expenditure of the funds was previously appropriated by the council.. What remains is merely the administrative designation of how the funds will be held until such time as they are expended. As the funds remain, in the City's accounts there-is no fiscal impact beyond the original appropriation. Therefore it is my opinion that since the cost of the contract does not exceed $25,000 the City Administrator is-authorized to execute the.contract and thereby bind the city. Sin-c J Nathan M.Nicko_laus City Counselor