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Home My WebLink AboutRes.1665.05-08-20011` BILL NO. 2001-97 RESOLUTION NO. r A RESOLUTION AUTHORIZING THE CITY MANAGER TO ENTER INTO A DEVELOPMENT AGREEMENT FOR A RAIL SWITCH PROJECT ON THE GREATER CAPE GIRARDEAU INDUSTRIAL PARK RAIL SPUR WITH THE TIMBERLINE INTERNATIONAL FOREST PRODUCTS, INC. BE IT RESOLVED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAU, MISSOURI, AS FOLLOWS: ARTICLE 1. The City Manager, for and on behalf of the City of Cape Girardeau, Missouri, is hereby authorized to enter into a Development Agreement with Timberline International Forest Products, Inc. for a rail switch project on the Greater Cape Girardeau Industrial Park Rail Spur. A copy of said Development Agreement is attached to this resolution and made a part hereof. PASSED AND APPROVED THIS DAY OF , 2001. Gayle 0 Conrad City Clerk Mayor U DEVELOPMENT AGREEMENT FOR A RAIL SWITCH PROJECT ON THE GREATER CAPE GIRARDEAU INDUSTRIAL PARK RAIL SPUR BETWEEN TIMBERLINE INTERNATIONAL FOREST PRODUCTS, INC. AND THE CITY OF CAPE GIRARDEAU, MISSOURI This Development Agreement (the "Agreement"), entered into this $"U. day of , 2000, by and between the City of Cape Girardeau, Missouri (the "City") and Timberline 4nternational Forest Products, Inc. ("Timberline"),collectively referred to herein as the Parties, is herewith set forth as follows. WHEREAS, in order to allow for the construction of a rail switch in the City's rail spur to the Timberline property on Rambler Road, Cape Girardeau County, Mo., the Parties wish to enter into this Agreement in order to generally and specifically describe their respective rights, duties and obligations regarding the rail switch herein generally described. NOW, THEREFORE, for and in consideration of the mutual covenants and considerations contained herein, it is agreed by the parties as follows: 1. The City shall be responsible for the construction of the rail switch as shown in the attached modification to the Rail Spur Extension Project Plans Phase I developed by Bowen Engineering, dated May, 2000. 2. Timberline shall pay to the City the amount of $21,505.10 which is the total estimated cost of the rail switch, installed, less credit for the previously approved track within the switch area. This payment shall be made to the City on the date of the final execution of this Agreement. Any additional costs for the herein -described rail switch incurred for this project above and beyond the estimate noted herein, including construction inspection costs, shall be the responsibility of Timberline. 3. The funds required for this project shall be paid by Timberline into an escrow account held by the City to be used only for the Rail Switch Project. At the time the rail switch is completed and accepted by the City Council, any escrow funds in excess of the total cost of the switch paid by Timberline shall be returned to Timberline within 30 days of acceptance of the project by the City Council. 4. All easements on land belonging to Timberline necessary for the construction of the switch shall be granted by Timberline to the City prior to, or in conjunction with, the execution of this Agreement. 5. The Parties agree that Timberline shall be solely responsible for all maintenance relative to the rail switch, that the rail switch at no time shall interfere with the use of the rail spur by other parties and further, that the failure of Timberline to provide maintenance as described herein shall permit the City to effect all necessary repairs, maintenance or otherwise, and all costs for such shall be paid by Timberline. 6. Notice. Any notice required by this Agreement shall be deemed to be given if it is mailed by first class, United States Mail, postage prepaid and addressed as hereinafter specified. If to the City, such notice shall be addressed to: Michael G. Miller, City Manager City of Cape Girardeau 401 Independence Cape Girardeau, MO 63703 And a copy to: Eric Cunningham, City Attorney City of Cape Girardeau 401 Independence Cape Girardeau, MO 63703 If to Timberline, such notice shall be addressed to: Brian Tracy Timberline International Forest Products, Inc. 2525 State Highway 177 Cape Girardeau, Mo. 63701 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. 7. Amendments. This Agreement shall not be amended, modified, canceled or abrogated without the written consent of the parties. 8. Effective Date. This Agreement shall be binding on the parties hereto only after all legal requirements relating to the City entering into this Agreement have been satisfied. 9. Conflicts. No officer or employee of the City and no member of the City Council shall have a financial interest, direct or indirect, in this contract. A violation of this provision renders the contract void. Any federal regulations and applicable provisions in Section 105.450 et. seq. R.S.Mo. shall not be violated. 10. Assignment. Timberline shall not assign any interest in this contract, and shall not transfer any interest in the same (whether by assignment or novation), without prior written consent of the City hereto. Notice of such assignment or transfer shall be furnished in writing promptly to the City. Any such assignment is expressly subject to all rights and remedies of the City under this agreement, including the right to change or delete activities from the contract or to terminate the same as provided herein, and no such assignment shall require the City to give any notice to any such assignee of any actions which the City may take under this agreement, though the City will attempt to so notify any such assignee. 11. Agency. Nothing contained herein shall constitute or designate Timberline or any of Timberline's agents or employees as agents or employees of the City of Cape Girardeau, Missouri. 12. City Benefits. Neither Timberline nor any of its agents or employees shall be entitled to any of the benefits established for the employees of the City nor be covered by the Worker's Compensation Program of the City. 13. Liability and Indemnity. The parties hereby mutually agree to the following: a. In no event shall the City or Timberline be liable to each other for special, indirect, or consequential damages, except those caused by gross negligence or willful or wanton misconduct arising out of or in any way connected with a breach of this contract. The maximum liability hereunder shall be limited to the total amount of money to be paid by the City for the construction of the rail switch. b. Timberline shall defend, indemnify, and hold the City harmless from and against all claims, losses, and liabilities arising out of personal injuries, including death, and damage to �M t. property which are caused by Timberline, its agents, employees, servants or contractors arising out of or in any way connected with the construction of the rail spur. c. This agreement is not intended to create any rights enforceable by any third party beneficiary. 14. jurisdiction. This agreement and every question arising hereunder shall be construed or determined according to the laws of the State of Missouri. Should any part of this agreement be litigated, venue shall be proper only in the Circuit Court of Cape Girardeau County, Missouri. 15. Authority. All individuals signing this agreement state)that they have authority to sign this agreement for the purposes herein stated. CITY Attest: B� t icha CAPE GIRARDEAU, MISSOURI G. Miller City Manager ' TIMBERLIN PRO Resolution No. I �^ rl^ 5 STATE OF MISSOURI COUNTY OF CAPE GIRARDEAU Brian D.' President ss. ATIONAL FOREST :7 y / Zel 49, Date tk BE IT REMEMBERED, That on this Y day of M A 2001, before me, the undersigned, a Notary Public in and for the County and State aforesaid, came Michael G. Miller, City Manager of Cape Girardeau, Missouri, a City duly organized, incorporated and existing under and by virtue of the laws of the State of Missouri, and who is personally known to me to be the same person who executed, as such officials, the within instrument on behalf of said municipal corporation, and such person duly acknowledged the execution of the same to be the act and deed of said municipal corporation. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year last above written. ........... ..... .. l ,l t }, 4 4� J°y 4 �e, LTy M,bb c STATE OF MISSOURI ) w sus courv�r f SS. roan. 8,2W4 COUNTY OF CAPE GIRARDEAU },��'`• BE IT REMEMBERED, That on this day of Q V -e Y /,(-4A— '2000 before me, the undersigned, a Notary Public in and for the County and State aforesaid, came Brian D. Tracy, to me personally known, who, being by me duly sworn, did state that he is the President of Timberline International Forest Products, Inc., and that said instrument was signed in behalf of said corporation by authority of its Board of Directors for the consideration stated therein and no other, and said Brian D. Tracy acknowledged said instrument to be the free act and deed of said corporation. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year last above written. [Typed Name of Notary Public] ALICIA BUCHANAN, Notary ra is State Of f 4issouri, Cape Girprdeau County My Commission Expires Docrembpr 22, 2000