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Home My WebLink AboutRES.1604.09-05-2000BILL NO. 2000-225 RESOLUTION NO. JU a4 A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A DEVELOPMENT AGREEMENT WITH BIOKYOWA, INC. FOR THE RAIL SPUR EXTENSION PROJECT PHASE I 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 execute a Development Agreement with Biokyowa, Inc., for the Rail Spur Extension Project Phase I. A copy of said Agreement is attached to this Resolution and made a part hereof. PASSED AND ADOPTED THIS ', Gayle jt. Conrad', City Clerk DAY OF ,0 . 20 00, . Spradling, III, yor Y { R August 21, 2000 DEVELOPMENT AGREEMENT FOR A RAIL SPUR PROJECT BETWEEN BIOKYOWA, INC. AND THE CITY OF CAPE GIRARDEAU, MISSOURI This Development Agreement (the "Agreement") is entered into this _21h—day of Aatenhec , 2000, between the City of Cape Girardeau, Missouri (the "City") and Biokyo a, Inc. WHEREAS, in order to allow for the construction of a rail spur to the Biokyowa property on Nash Road, Cape Girardeau, Mo., the Parties wish to enter into this Agreement in order to generally describe their respective rights, duties and obligations regarding this rail spur extension. 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 spur as shown on the Rail Spur Extension Project Plans Phase I developed by Bowen Engineering, dated May, 2000. 2. The City shall utilize funds from an Economic Development Block Grant from the Missouri Community Development Block Grant Program in the amount of $421,800 to pay for the construction of the rail spur and $23,500 for engineering inspection which shall constitute the City's share of the bid price of $618,722 which was opened 7/27/00, submitted by Am -Rail, for the construction of the rail spur extension. As previously set forth in an Intergovernmental Agreement, the City of Cape Girardeau and Cape Girardeau County will provide the required local match of $51,000 for this Block Grant, which shall be spent in the following manner: seeding and mulching, $6,000; in-kind design engineering, $31,000 (which was paid in full prior to August, 2000); and administration of the Block Grant, $14,000. 3. Biokyowa, Inc. shall pay $196,922 towards the cost of the construction of the rail spur extension. These monies shall be paid to the City within fifteen (15) days of the execution of this Agreement. Additionally, Biokyowa, Inc. shall pay any additional engineering costs for design work or engineering (construction) inspection above the CDBG allocation of $23,500, plus the $31,000 previously spent by the City, for total engineering cost paid by the Block Grant and City of $54,500. Any additional engineering and/or inspection work which would result in an increase in costs over the $54,000 must first be reviewed and approved by the City Engineer and Biokyowa's Rail Spur Supervisor prior to being initiated. 4. Biokyowa, Inc. shall be responsible for additional costs caused by change orders during the project. Any change orders shall be approved in writing by both the City Engineer and Biokyowa's Rail Spur Supervisor. 5. Monies shall be paid into an escrow account held by the City to be used only for the purposes stated in this Agreement. At the time the rail spur is completed and accepted by the City Council, any escrow funds remaining shall be returned within 30 days of acceptance of the project by the City council to Biokyowa, Inc. 6. All easements on land belonging to Biokyowa, Inc. necessary for the construction and maintenance of the rail spur extension shall be granted by Biokyowa, Inc. to the City prior to, or in conjunction with, the execution of this Agreement. 7. 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. August 21, 2000 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 Biokyowa, Inc., such notice shall be addressed to: Kevin Ross Rail Spur Supervisor Biokyowa, Inc. P.O. Box 1550 Cape Girardeau, Mo. 63702-1550 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. S. Amendments. This Agreement shall not be amended, modified, canceled or abrogated without the written consent of the parties. 9. 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. 10. 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. 11. Assignment. Biokyowa, Inc. 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. 12. Agency. Nothing contained herein shall constitute or designate Biokyowa, Inc. or any of Biokyowa's agents or employees as agents or employees of the City of Cape Girardeau, Missouri. 13. City Benefits. Neither Biokyowa, Inc. 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. August 21, 2000 14. Liability and Indemnity. The parties hereby mutually agree to the following: a. In no event shall the City or Biokyowa, Inc. 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 spur extension. b. Biokyowa, Inc. 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 property which are caused by Biokyowa, Inc., 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. 15. 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. 16. Authority. All individuals signing this agree that they have authority to sign this agreement for the purposes herein,stated. CITY OF/,( -"APE GIRARDEAU, MISSOURI Attest: a By: Michael G. M City Manager BIOKYOWA, INC. Attest: By: e. Kohta Fujiwara Date President kiAlliam. Hinckley ate Plant Manager APPROVED AS TO FORM: /0f;YrS7XAJ-J('fnl By: L& cc ��« 44;. - Eric Cunm gham Of 7� ,q, l� City Attorney Resolution No. )4p� August 21, 2000 STATE OF MISSOURI ) ) ss. COUNTY OF CAPE GIRARDEAU ) BE IT REMEMBERED, That on this '7f h day of S e pf-em b e r 2000, 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. v �$SSIONF;. 0 - /Si Q.�oe�ber 1220� [Typed Name of No ary Public] =Z'• NOTARYSEAL �j �� • :.0 STATE OF Missouri ) %99` ;�.��g`' COUNTY OF Cape Girardeau ) BE IT REMEMBERED, That on this 7 th day of September , 2000 before me, the undersigned, a Notary Public in and for the County and State aforesaid, came Kohta Fujiwara, to me personally known, who, being by me duly sworn, did state that he is the President of Biokyowa, 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 Kohta Fujiwara 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.KATHR NOTARY PUBLIC STATE O MISSOURI --- CAPE CIRARDEAU COUNTY My WMMISSION EXP. OCT. 4,2001 Kathryn B. McLain STATE OF Missouri COUNTY OF Cape Girardeau ss. ) [Typed Name of Notary Publicl BE IT REMEMBERED, That on this 7th day of September , 2000 before me, the undersigned, a Notary Public in and for the County and State aforesaid, came William T. Hinckley, to me personally known, who, being by me duly sworn, did state that he August 21, 2000 executed the foregoing instrument and acknowledged that he executed the same as his free act and deed. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year last above written. KATHRYN B MCLAIN NOTARY PUBLIC STATE OF MISSOURI CAPE CIRARDEAU COUNTY MY COMMISSION EXP. OCT. 4,2001 Kathryn B. McLain [Typed Name of Notary Public] August 21, 2000 CERTIFICATE OF DIRECTOR OF FINANCE I certify that this contract is within the purpose of the appropriation to which it is to be charged and that there is an unencumbered balance to the credit of such appropriation sufficient to pay therefor, and that the appropriate accounting entries have been made. C-\ 'p, i"— Jogn Richbourg — Director of Finance