HomeMy WebLinkAbout2017-10-23 Agenda.7r Y i :'tom
MORTON GROVE
Incredibly Close k Amazingly Open
VILLAGE BOARD OF TRUSTEES
REGULAR MEETING NOTICE/AGENDA
TO BE HELD AT THE RICHARD T. FLICKINGER MUNICIPAL CENTER
SCANLON CONFERENCE ROOM
October 23, 2017
6:00 pm
(The hour between 6:00 and 7:00 pm is set aside for Executive Session
per 1-5-7A of the Village of Morton Grove Municipal Code.
If the Agenda does not include an Executive Session, the meeting will begin at 7:00 pm.)
1. Call to Order
2. Pledge of Allegiance
3. Executive Session
THE BALANCE OF THE MEETING SHALL COMMENCE AT 7:00 PM
IN THE COUNCIL CHAMBERS
OF THE RICHARD T. FLICKINGER MUNICIPAL CENTER
4. Reconvene Meeting
5. Pledge of Allegiance
6. Roll Call
7. Approval of Minutes Regular Meeting — October 9, 2017
Special Meeting (Budget Workshop) — October 10, 2017
8. Special Reports
9. Public Hearings
10. Residents' Comments (agenda items only)
11. President's Report —Administration, Comprehensive Plan, Council of Mayors, Northwest Municipal
Conference, Strategic Plan Committee
12. Clerk's Report — Condominium Association, Strategic Plan Committee
13. Staff Reports
a. Village Administrator
1) Resolution 17-42 (Introduced October 23, 2017)
Authorizing the Approval of and Funding for an Agreement Between Morton Grove -
Niles Water Commission and Albrecht Enterprises, Inc. for Demolition and Asbestos
Abatement and Removal Services at 7900 Nagle Avenue, Morton Grove, Illinois
2) Miscellaneous Reports and Updates
b. Corporation Counsel
14. Reports by Trustees
a. Trustee Grear — Building Department, Community and Economic Development Department,
Lehigh/Ferris TIF, Police Facility Committee, Prairie View TIF, Special Events Commission,
Traffic Safety Commission (Trustee Minx)
1) Ordinance 17-27 (Introduced October 23, 2017) (First Reading)
Authorizing an Economic Incentive and Tax Increment Allocation Financing
Redevelopment Agreement ("RDA") By and Between the Village and Lexington Homes,
LLC
b. Trustee Minx — Capital Projects, Chamber of Commerce, Natural Resource Commission, Plan
Commission/Zoning Board, Public Works Department, Waukegan Road TIF (Trustee Grear)
c. Trustee Ramos —Appearance Commission, Environmental Health, IT, Legal Department
(Trustee Travis)
d. Trustee Thill — Advisory Commission on Aging, Emergency Management Agency, Family and
Senior Services Department, Fire Department, Fire Pension Board, RED Center, SWANCC
(Trustee Witko)
e. Trustee Travis — Community Relations Commission, Dempster Street Corridor Plan, Finance
Advisory Commission, Finance Department (Trustee Ramos)
f. Trustee Witko — Economic Development Commission, Farmers' Market, Fire and Police
Commission, NIPSTA, Police Department, Police Pension Board, Water Commission (Trustee
Thill)
15. Other Business
16. Presentation of Warrants $496,233.44
17. Residents' Comments
18. Executive Session — Personnel Matters, Labor Negotiations, Pending Litigation, and Real Estate
19. Adjournment - To ensure full accessibility and equal participation for all interested citizens, individuals with disabilities
who plan to attend and who require certain accommodations in order to observe and/or participate in this meeting, or who
have questions regarding the accessibility of these facilities, are requested to contact Susan or Marlene (847/470-5220)
promptly to allow the Village to make reasonable accommodations.
MINUTES OF A REGULAR MEETING OF THE PRESIDENT
AND THE BOARD OF TRUSTEES OF THE VILLAGE OF MORTON GROVE
COOK COUNTY, ILLINOIS, HELD AT THE
RICHARD T. FLICKINGER MUNICIPAL CENTER
OCTOBER 9, 2017
CALL TO ORDER
I — Village President Dan DiMaria convened the meeting at 7:00 pm. in the Council Chambers of
V. Village Hall and led the assemblage in the Pledge of Allegiance. He asked for a moment of
silence to honor the victims of the Las Vegas mass shooting.
VI. Village Clerk Eileen Harford called the roll. Present were: Trustees Bill Grear, Rita Minx,
Ed Ramos, John Thill, Connie Travis, and Janine Witko.
VII.
VIII.
IX.
X.
APPROVAL OF MINUTES
Regarding the September 25, 2017 Regular Board Meeting Minutes, Trustee Thill moved to
approve the Minutes as presented, seconded by Trustee Minx. Motion passed unanimously
via voice vote.
SPECIAL REPORTS
NONE
PUBLIC HEARINGS
NONE
RESIDENTS' COMMENTS (Agenda Items Only)
NONE
XI. PRESIDENT'S REPORT
1. Mayor DiMaria proclaimed October 21, 2017 as the "Anniversary Day of the Birth of
Baha 'u'llah" in the Village. Baha 'u'llah is the founder of the Baha'i Faith, and October 21, 2017
is the 200'" anniversary of his birth. The Baha'i community of Morton Grove and their families,
friends, neighbors, and colleagues are commemorating this bicentennial along with other Baha
across the U.S. and the world. Mayor DiMaria urged all citizens to resolve on October 21 to
promote in themselves and in their relations with others those qualities and attributes that will
help bring about oneness of humanity, to embrace diversity, and to work for unity within our
community and in our country. Mayor DiMaria joined representatives of the Baha'i community
at the podium to present them with this proclamation. He said that we could all learn a lot from
the Baha'i religion.
2. Mayor DiMaria reminded everyone that there are ongoing lane closures on Lehigh Avenue due
to Commonwealth Edison's maintenance work on the transmission towers along Lehigh. This
work should be completed by November 17, 2017.
3. Mayor DiMaria encouraged everyone to come out and attend the Pancake Breakfast on
Saturday, October 14, from 8:00 a.m. to noon at the Civic Center. It's an all -you -can -eat
breakfast for only $6, and the proceeds will go toward funding "Santa Claus Comes to Town"
in December. He said he had a great time at the May pancake breakfast, and was sorry he
was going to be out of town for this one.
4. Mayor DiMaria noted that the Farmers' Market on October 14 is the last one of the season.
He urged people to visit the Market and become a "Friend of the Market."
XII. CLERK'S REPORT
Clerk Harford had no report.
XIII. STAFF REPORTS
A. Village Administrator:
1. Village Administrator Czerwinski said that the Community Relations Commission is sponsoring
a Community Artist Performance at 4:00 p.m. on Sunday, October 15, at the Civic Center.
This event is free to the public. He complimented the Commission on doing an excellent job
of bringing this together.
2. Mr. Czerwinski announced that the Police Department's "Virtual Block Watch" program has
been implemented. The purpose of this program is to encourage residents with outside security
systems to register those cameras with the police department. Often times, investigators have
found, when canvassing a neighborhood after a crime has occurred, that a home or business
video system may have captured a picture of a suspect or a vehicle. This can be a valuable lead
that can help in the investigation and may lead to an arrest.
2
XIII.
STAFF REPORTS (continued)
3. Mr. Czerwinski said that this year's Budget Workshops would be held on Tuesday, October 10;
Tuesday, October 17; and if necessary, Tuesday, October 24. All Budget Workshops begin at
6:00 p.m. and will be held in the Scanlon Conference Room on the second floor of Village Hall.
The public is welcome to attend.
Minutes of October 9, 2017 Board Meeting
B. Corporation Counsel:
Corporation Counsel Liston had no report.
XIV. TRUSTEES' REPORTS
A. Trustee Grear:
Trustee Grear had no report, but said he hoped a lot of people would come out for the Pancake
Breakfast. He also thanked staff for being so quick to get a proposed budget together; he said
he was glad that the Board was able to get an earlier start with the Budget Workshops.
B. Trustee Minx:
1. Trustee Minx presented Resolution 17-41, Authorization for the Purchase of One (1) 2017
Ford 4X4 F-250 Super Duty Pickup Truck with a Snow Plow Through the Suburban
Purchasing Cooperative Procurement Program.
She explained that Public Works routinely reviews vehicles and equipment for fuel economy,
safety, dependability, age, and excessive repair cost, and has determined that the 1999 Chevy
K2500 used by the Street Department no longer meets the departments needs and should
be replaced. The Village, along with 142 other municipalities, participates in the Suburban
Purchasing Cooperative to take advantage of volume purchasing discounts for municipal
vehicles. The Cooperative recently conducted a bidding process for 2017 Ford 4X4 F-250 Super
Duty pickup trucks, which is a suitable replacement for the 1999 Chevy K25. This resolution
authorizes the Village to purchase a 2017 Ford 4X4 F-250 Super Duty pickup truck with a snow
plow from the lowest bidder, Currie Motors of Frankfort, IL, for $44,049.
Trustee Minx moved to approve Resolution 17-41, seconded by Trustee Witko.
Motion passed: 6 ayes, 0 nays.
Tr. Grear
Tr. Thill
ayt
Tr. Minx
Tr. Travis
Eys
Tr. Ramos afire
Tr. Witko
2. Trustee Minx said she was looking forward to seeing everyone at the Pancake Breakfast this
coming Saturday.
3
XIV. TRUSTEES' REPORTS (continued)
C. Trustee Ramos:
Trustee Ramos had no report, but he, too, said he'd be at the Pancake Breakfast on Saturday
and hoped to see everyone there.
D. Trustee Thill:
Trustee Thill had no formal report, but had a question for Mr. Czerwinski. He asked if the Village
was getting reimbursed for all the parking money we're losing by having parts of Lehigh closed.
Mr. Czerwinski said that ComEd is supposed to reimburse the Village, but they're requesting that
the Village waive the requirement to do so. Right now, it's under discussion.
E. Trustee Travis:
Trustee Travis noted that the Community Relations Commission's Fall Photo Contest is under
way. Residents who wish to submit photos have until December 2, 2017 to do so. She urged
residents to submit their photos depicting the Village's tagline "Incredibly Close. Amazingly
Open." and said that more information is available on the Village's website.
F. Trustee Witko:
Trustee Witko had no report.
XV.
OTHER BUSINESS
NONE
XVI. WARRANTS
Trustee Travis presented the Warrant Register for October 9, 2017, in the amount of
$699,097.40. She moved that the Warrants be approved as presented. Trustee Thill seconded
the motion.
Motion passed: 6 ayes, 0 nays.
Tr. Grear
Tr. Thill
a1L
Tr. Minx
Tr. Travis
fl
XVII. RESIDENTS' COMMENTS
NONE
Tr. Ramos aye
Tr. Witko Ays
4
Minutes of October 9, 2017 Board Meeting
XVIII
ADJOURNMENT
Trustee Minx moved to adjourn the meeting, seconded by Trustee Thill.
Motion passed: 6 ayes, 0 nays.
Tr. Grear
Tr. ThiII
Lyg
pys
Tr. Minx
Tr. Travis
The meeting adjourned at 7:15 p.m.
PASSED this 23rd day of October, 2017.
Trustee Grear
Trustee Minx
Trustee Ramos
Trustee Thill
Trustee Travis
Trustee Witko
APPROVED by me this 23rd day of October, 2017.
Daniel P. DiMaria, Village President
Board of Trustees, Morton Grove, Illinois
aye
APPROVED and FILED in my office this 24th day of October, 2017.
Eileen Scanlon Harford, Village Clerk
Village of Morton Grove, Cook County, Illinois
Tr. Ramos
Tr. Witko
kya
Minutes by. Teresa Cousar
5
MINUTES OF THE OCTOBER 10, 2017
SPECIAL MEETING/ BUDGET WORKSHOP OF THE BOARD OF TRUSTEES
RICHARD T. FLICKINGER CENTER 6101 CAPULINA
MORTON GROVE, ILLINOIS 60053
Pursuant to proper notice in accordance with the Open Meetings Act, the special meeting was called to
order at 6:02 p.m. by Mayor Daniel P. DiMaria who led the assemblage in the pledge of allegiance. Clerk
Eileen Scanlon Harford called the roll. In attendance were:
Elected Officials: Mayor Daniel P. DiMaria, Trustees Bill Grear, Janine Witko, John Thill, Rita Minx,
and Connie Travis, and Clerk Eileen Scanlon Harford.
Absent: Trustee Ed Ramos,
Village Staff :
Village Administrator Ralph Czerwinski, Assistant to the Village Administrator Tom
Friel, Corporation Counsel Teresa Hoffman Liston, Finance Director Hanna Sulli-
van, Public Works Director Andy DeMonte, Police Chief Mike Simo, IT Manager
Boyle Wong.
Guests: None
Mayor DiMaria introduced the 2018 Budget workshop and thanked Village Administrator Ralph Czerwinski,
Assistant to the Village Administrator Tom Friel, and Finance Director Hanna Sullivan for their efforts to
prepare the proposed budget,
Village Administrator Czerwinski presented a PowerPoint presentation. He noted tonight's meeting would
provide an overview and review of the Village's revenue and general fund. On October 17, 2017 the
presentation of the General Fund budgets would continue and the Enterprise Fund budgets will be pre-
sented as well as certain personnel issues: An October 24, 2017 budget workshop has been scheduled if
needed.
He noted the Board had received a binder containing the proposed budget documents which included a
transmittal letter including financial information, and Department sections containing details, supporting
information, projected revenues and expenditures in the areas of personnel, contractual services, com-
modities, as well as a summary of proposed modifications. He also distributed a one page summary of
changes between the 2017 and 2018 budgets, and a comparison chart of fees charged by neighboring
communities.
The Village's 2018 total proposed budget is $62,400,000 which represents a 4.67% decrease from the
2017 budget of $65.460,000. The 2018 budget represents a reactive stabilizing service oriented budget
with priorities of stabilizing the Villages bond rating, proceeding with the Alternate Water Supply project,
completing the Austin Avenue reconstruction project, replacing sanitary sewers, maintaining public facili-
ties, and managing the negative impacts of the state of Illinois budget.
The General Fund, which makes up the day to day operations has a proposed budget of $30,240,000, rep-
resenting a 4.7% increase from the 2017 budget of $28,880,000. Funds have been allocated to provide
increased funding for employee pensions, replace a roof at the Public Works Garage, perform needed
tuck pointing and rebuilt a failing parapet wall. Funds have also been set aside in the reserve accounts,
since the Village has not finalized its collective bargaining agreements with unions representing the police
patrol officers and firefighters. The Finance Department Budget was increased to provided additional fund-
ing for IRMA contributions, and a reallocation of personnel funds to remove the salary for the assistant to
the Village Administrator from the Finance Department to the Administration budget. The Building and In-
spectional Services Budget showed an 8.09% increase from $724,000.00 to $782,750.00 to provide funds
to train existing staff to obtain necessary certifications for plan review, and outsource certain service during
a transitionary period.
Mayor DiMaria then lead a discussion about recent cuts to the Village's share of state funds. He noted his
concern that these cuts were just the beginning. Trustee Grear question the current expenses as com-
pared to revenues for the Civic Center operations. Trustee Thill asked staff to investigate a local cigarette
tax. A general discussion then ensued.
There being no further business, Trustee Thill moved to adjourn the budget workshop. The motion was
seconded by Trustee Minx and approved unanimously pursuant to a voice vote at 6:52 p.m.
Respectfully Submitted
Eileen Scanlon Harford
Village Clerk
2
Legislative Summary
Ordinance 17-27
AUTHORIZING AN ECONOMIC INCENTIVE AND TAX INCREMENT ALLOCATION
FINANCING REDEVELOPMENT AGREEMENT ("RDA") BY AND BETWEEN THE VILLAGE
OF MORTON GROVE AND LEXINGTON HOMES, LLC
Introduced:
Purpose:
Background:
Programs, Departs
or Groups Affected
Fiscal Impact:
Source of Funds:
Workload Impact:
Admin Recommend:
Second Reading:
Special Consider or
Requirements:
tespectfully submitted:
Ralph
teviewed by:
Nancy M.
October 23, 2017
This ordinance will authorize an economic incentive and tax increment allocation financing redevelopment
agreement ("Agreement") with Lexington Homes, LLC and the Village for a new townhome development on
a two acre vacant development site located at the southwest corner of Capulina and Ferris Avenues.
Between 2005 and 2009 the Village acquired this property and demolished the structures. Environmental
hazardous conditions remain in the underlying soil which has deterred redevelopment of this site. Lexington
Homes, LLC has submitted a proposal to purchase the property and develop a 26 -unit townhome community
in a total of seven buildings. Those units will consist of either 2 bedrooms plus den or 3 bedrooms, all with
2.5 baths and 2 car garages. Per Ordinance 17-24 the Village has granted a special use permit for the
development. The developer has stated this project is not economically feasible unless the Village provides
financial assistance pursuant to the TIF Act (65 ILCS 5/11-74.4-3(q) to help pay for certain preparations and
environmental remediation costs. This development is anticipated to achieve some of the long-term
objectives of the Lehigh/Ferris TIF Redevelopment Plan including:
1. The removal of a vacant, obsolete and deteriorated industrial building and the remediation of
environmentally contaminated land to residential level safety standards.
2. Return thel2 tax-exempt parcels back to the tax rolls producing approximately $395,000 in annual
property taxes upon full valuation and over $4.2 million over the next ten years.
3. 36 new townhomes will be added to the mix of housing options available to residents thereby furthering
the transit oriented objectives of the Lehigh/Ferris Framework Plan. This project will also fit within the
density and design standards of the CR -zoning district.
4. The creation of full and part-time construction jobs during the construction of the development.
The Village and the developer have negotiated an agreement (RDA) which provides:
I. The Village will sell the property to the developer for $710,000.
2. The developer will construct the development in accordance to the terms and conditions set forth in the
special use ordinance and pursuant to the terms of the RDA.
3. The Village will pay up to $900,000 for environmental remediation costs incurred by the developer.
4. The Village will pay up to $537,000 to bury certain utility wires underground.
5. The Village will reimburse the developer up to $268,000 for TIF eligible expenses incurred by the
developer which will be paid from incremental property taxes generated by the development.
This Ordinance will approve the Redevelopment Agreement.
Administration, Community and Economic Development, Finance and Legal
The development will generate approximately $4.2 million over the next ten years in property taxes, for the
benefit of the Village and other taxing bodies.
Community and Economic Development, Finance and Legal will administer as part of their regular duties.
Approval as presented
November 13, 2017
None
Cz ' inski, Villag dministrato
adzevich
Prepared by:
Teresa Hoffman Liston, Corporation Counsel
mmu ity & Economic Development Director
Reviewed by:
Hanna Sullivan, Finance Director
ORDINANCE 17-27
AUTHORIZING AN ECONOMIC INCENTIVE AND TAX INCREMENT
ALLOCATION FINANCING REDEVELOPMENT AGREEMENT ("RDA")
BY AND BETWEEN THE VILLAGE OF MORTON GROVE
AND LEXINGTON HOMES, LLC
WHEREAS, the Village of Morton Grove (Village), located in Cook County, Illinois, is a home
rule unit of government under the provisions of Article 7 of the 1970 Constitution of the State of
Illinois, can exercise any power and perform any function pertaining to its government affairs,
including but not limited to the power to tax and incur debt; and
WHEREAS, the Village has the authority pursuant to the laws of the State of Illinois to
promote the health, safety, and welfare of the Village and its residents, to prevent the spread of blight,
to encourage private development to enhance the local tax base, to increase employment, and to enter
into contractual agreements with developers and redevelopers for the purpose of achieving such
objectives; and
WHEREAS, the Village is authorized under the provisions of Article VII, Section 10 of the
State of Illinois Constitution, 1970, to contract and otherwise associate with individuals, associations,
and corporations in any manner not prohibited by law; and
WHEREAS, the Village is authorized under the provisions of the Tax Increment Allocation
Redevelopment Act, as amended, 65 ILCS 5/11-74.4-1 et seq. ("the Act"), to convey and finance
redevelopment projects in accordance with and pursuant to the Act; and
WHEREAS, the Village is authorized under the provisions of the Illinois Municipal Code 65
ILCS 5/8-11-20 to enter into an economic incentive agreement relating to the development or
redevelopment of land within the corporate limits of the municipality; and
WHEREAS, On January 24, 2000, the Village, pursuant to and in accordance with the Act,
adopted (i) Ordinance No. 00-01 approving a Tax Increment Redevelopment Plan and a Tax Increment
Redevelopment Project, (ii) Ordinance No. 00-02 designating a Tax Increment Redevelopment Project
Area, and (iii) Ordinance No. 00-03 adopting Tax Increment Allocation Financing (collectively, "TIF
Ordinances"), which established the Lehigh Ferris Tax Increment Finance Redevelopment Project
Area ("TIF District"); and
WHEREAS, The Village is the owner of a 2.0 -acre vacant development site located at the
southwest corner of Capulina and Ferris Avenue and legally described in Exhibit A (the "Property");
and
1
WHEREAS, the Property is located entirely within the corporate limits of the Village, in the
CR Commercial Residential Zoning District and the TIF District; and
WHEREAS, the Property was formerly occupied by industrial and commercial uses, that closed
more than two decades ago. Between 2005 to 2009, the Village acquired the Property and demolished
the existing structures on the site. Environmental hazardous conditions remain in the underlying soil,
the unknown extent to which has dissuaded previous redevelopment of the site; and
WHEREAS, the Village does and continues to seek proposals for the Property by advertising
the property for sale, to qualified buyers who will develop the property in a manner which will achieve
the objectives of the redevelopment plan and project. Reasonable opportunities have been and
continue to be offered for anyone wishing to make an alternative bid for this Village property; and
WHEREAS, Lexington Homes, LLC, (the "Developer") has submitted a proposal to purchase
the Property and develop it as a 36 -unit townhome community in a total of seven (7) buildings. The
units will consist of 2 -bedroom plus den and 3 -bedrooms, all with 2.5 baths and 2 car garages (`the
Development"); and
WHEREAS, the Developer pursuant to Ordinance 17-24, has been granted a special use permit
for the Development; and
WHEREAS, the Developer has requested the Village pay for certain Redevelopment Project
Costs (as defined here, in the TIF Act, 65 ILCS 5/11-74.4-3(q), including certain site preparation and
environmental remediation costs, all of which will serve a public purpose and are necessary to foster
redevelopment of the Property; and
WHEREAS, it is economically infeasible for the Developer to undertake the Development
without certain assistance from the Village pursuant to the TIF Act which the Village has been, and
continues to be, willing to provide under certain terms and conditions; and
WHERAS, the Corporate Authorities find the Development will achieve some of the long-term
objectives of the Lehigh Ferris TIF Redevelopment Plan including:
a) The removal of a vacant, obsolete and deteriorated industrial building and the remediation
of environmentally contaminated land to residential level safety standards.
b) Returning 12 tax-exempt parcels to the tax rolls, producing approximately $395,000 in
annual property taxes upon full valuation, and over $4.2 million over the next 10 years.
c) Adding 36 new townhomes that adds to the mix of housing options available to residents
and furthers the transit oriented objectives of the Lehigh Ferris Framework Plan and fits
with density and design standards of the CR -Zoning district.
2
d) Creating full and part-time construction jobs during the construction of the Development.
WHEREAS, the Village and the Developer have negotiated, subject to Board approval, an
Economic Incentive and Tax Increment Allocation Financing Redevelopment Agreement ("RDA"), a
copy of which is attached hereto as Exhibit B whereby:
a) The Village of Morton Grove shall sell the Developer the Property for $710,000;
b) The Developer shall construct the Development in accordance to the terms and conditions
set forth in the Special Use Ordinance and pursuant to the terms of the RDA;
c) The Village shall pay up to $900,000 for environmental remediation costs incurred by the
Developer;
d) The Village shall pay up to $537,000 to bury certain utility wires underground; and
e) The Village will reimburse the Developer for up to $268,000 in TIF eligible expenses
incurred by the Developer to be paid from incremental property taxes generated by the
Development; and
WHEREAS, the Village has and continues to actively solicit proposals from other developers
for the development of the Property and to date, the proposal that best meets the goals and objective of
the Lehigh Ferris TIF Redevelopment Plan, was the proposal from the Developer; and
WHEREAS, the Corporate Authorities find the development of the Village's property pursuant
to the terms and conditions of the RDA is an important project which achieves the objectives of the
redevelopment plan and project of the TIF; and
NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF
TRUSTEES OF THE VILLAGE OF MORTON GROVE, COOK COUNTY, ILLINOIS AS
FOLLOWS:
SECTION 1: The Corporate Authorities do hereby incorporate the foregoing WHEREAS
clauses into this Ordinance as though fully set forth therein making the findings as hereinabove set
forth.
SECTION 2: Notice is hereby given that unless the Village receives and accepts an alternative
proposal for the sale of the Village properties pursuant to terms and conditions more favorable than
those set forth in this ordinance, the Corporate Authorities hereby intends to sell the Property to the
Developer and to approve and execute an RDA with Lexington Homes, LLC pursuant to the terms and
conditions set forth above on November 13, 2017.
SECTION 2: The Village President is hereby authorized to execute and the Village Clerk to
attest to the RDA between the Village of Morton Grove and Lexington Homes, LLC consistent with
3
the terms and conditions set forth in Exhibit B which may contain certain non -substantive and non-
financial modifications that are approved by the Village Administrator and Corporation Counsel.
SECTION 3: The Village Administrator or his designee is authorized to take all steps
necessary to finalize the terms and conditions of the RDA, implement and administer the RDA, and is
authorized to execute all contracts, deeds, and other documents necessary to comply and implement
said agreement.
SECTION 4: This Ordinance shall be in full force and effect from and after its passage by the
Corporate Authorities and approval in a manner provided by law.
PASSED THIS 13th DAY OF November 2017
Trustee Grear
Trustee Minx
Trustee Ramos
Trustee Thill
Trustee Travis
Trustee Witko
APPROVED BY ME THIS 13`h DAY OF November 2017
Daniel P. DiMaria, Village President
Village of Morton Grove
Cook County, Illinois
ATTESTED and FILED in my office
This 14th DAY OF November 2017
Eileen Scanlon Harford, Village Clerk
Village of Morton Grove
4
EXHIBIT "A"
SURVEY FOR LEXINGTON WALK, LLC
1731 NORTH MARCEY STREET, #200
CHICAGO, ILLINOIS 60614
STATE OF ILLINOIS )
SS
COUNTY OF COOK )
I, JEFFREY W. GLUNT, A REGISTERED LAND SURVEYOR, DO HEREBY CERTIFY THAT I HAVE SURVEYED AND
RESUBDIVIDED THE FOLLOWING DESCRIBED PROPERTY:
PARCEL 1:
LOTS 1 & 2 IN THE SUBDIVISION OF THAT PART OF LOT 45 OF COUNTY CLERK'S DIVISION OF SECTION 20
AND THE EAST HALF OF THE NORTHEAST QUARTER OF SECTION 19, TOWNSHIP 41 NORTH, RANGE 13
EAST OF THE THIRD PRINCIPAL MERIDIAN, LYING EAST OF THE CHICAGO, MILWAUKEE, SAINT PAUL &
PACIFIC RAIL ROAD, RIGHT-OF-WAY, EXCEPTING A TRACT DESCRIBED AS, COMMENCING 1293.15 FEET
SOUTH AND 171.6 FEET EAST OF THE NORTHWEST CORNER OF SECTION 20 HENCE SOUTH PARALLEL
WITH THE WEST LINE OF SECTION 20. 295.6 FEET TO THE CENTER OF MILLER'S MILL ROAD: THENCE
NORTH 66 DEGREES 9 MINUTES WEST ALONG CENTER OF ROAD, 29.4 FEET TO THE EAST LINE OF
RAILROAD, THENCE NORTHWESTERLY ALONG EASTERLY LINE OF RAILROAD, TO A POINT DUE WEST OF
THE PLACE OF BEGINNING (BEING ON A LINE PARALLEL WITH THE NORTH LINE OF SAID SECTION 20)
THENCE EAST 142.5 FEET TO THE PLACE OF BEGINNING, IN COOK COUNTY, ILLINOIS.
PARCEL 2:
LOTS 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, AND 11 IN BLOCK 1 IN BINGHAM AND FERNALD'S MORTON GROVE
SUBDIVISION, BEING A SUBDIVISION OF PART OF LOT 40 OF COUNTY CLERK'S DIVISION OF SECTION 20
AND THE EAST HALF OF THE NORTHEAST QUARTER OF SECTION 19 (EXCEPT A TRACT 200 FEET NORTH &
SOUTH BY 118.9 FEET EAST & WEST AT THE SOUTHWEST CORNER OF SAID LOT40, IN COOK COUNTY,
ILLINOIS.
PARCEL 3:
THAT PART OF THE PUBLIC ALLEY ESTABLISHED BY BINGHAM AND FERNALD'S MORTON GROVE
SUBDIVISION LYING WEST OF BLOCK 1 IN SAID SUBDIVISION, BEING A SUBDIVISION IN SECTION 20 AND
SECTION 19, ALL IN TOWNSHIP 41 NORTH RANGE 13 EAST OF THE THIRD PRINCIPAL MERIDIAN,
ACCORDING TO THE PLAT THEREOF RECORDED APRIL 3, 1891, AS DOCUMENT NUMBER 1443602,
DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID BLOCK 1: THENCE SOUTH 00 DEGREES 59 MINUTES 06
SECONDS WEST ALONG THE WEST LINE OF SAID BLOCK, 256.09 FEET; THENCE NORTH 89 DEGREES 00
MINUTES 54 SECONDS WEST, 16.00 FEET TO THE WEST LINE OF SAID PUBLIC ALLEY; THENCE NORTH 00
DEGREES 59 MINUTES 06 SECONDS EAST ALONG SAID WEST LINE, 255.63 FEET TO THE WESTERLY
EXTENSION OF THE NORTH LINE OF AFORE SAID BLOCK 1; THENCE NORTH 89 DEGREES 20 MINUTES 45
SECONDS EAST ALONG SAID WESTERLY EXTENSION, 16.01' TO THE POINT OF BEGINNING, IN COOK
COUNTY, ILLINOIS.
PARCEL 4:
THAT PART OF THE AREA DEDICATED FOR STREETS, SIDEWALKS, DRAINAGE, VILLAGE OWNED UTILITIES,
AND PUBLIC UTILITIES DEDICATED BY THE CROSSINGS OF MORTON GROVE, A PLANNED UNIT
DEVELOPMENT, BEING A SUBDIVISION OF PART OF THE NORTHEAST QUARTER OF SECTION 19 AND PART
OF THE NORTHWEST QUARTER OF SECTION 20, TOWNSHIP 41 NORTH, RANGE 13 EAST OF THE THIRD
PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT THEREOF RECORDED MARCH 16, 2006 AS DOCUMENT
NUMBER 0607544008, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF LOT 1 IN THE SUBDIVISION OF PART OF LOT 45 OF COUNTY
CLERKS DIVISION IN SECTION 19, TOWNSHIP 41 NORTH, RANGE 13 EAST OF THE THIRD PRINCIPAL
MERIDIAN, ACCORDING TO THE PLAT THEREOF RECORDED JULY 11, 1930, AS DOCUMENT NUMBER
10702094; THENCE NORTH 21 DEGREES 30 MINUTES 20 SECONDS WEST ALONG THE NORTHERLY RIGHT-
OF-WAY LINE OF THE CHICAGO MILWAUKEE ST. PAUL AND PACIFIC RAILROAD (METRA MILWAUKEE
NORTH DISTRICT LINE) 35.31 FEET TO THE SOUTH LINE OF LOT 2 IN SAID CROSSINGS OF MORTON GROVE
SUBDIVISION; THENCE NORTH 89 DEGREES 20 MINUTES 45 SECONDS EAST, ALONG SAID SOUTH LINE,
72.73 FEET; THENCE SOUTH 00 DEGREES 39 MINUTES 15 SECONDS EAST, 6.00 FEET; THENCE
SOUTHEASTERLY ALONG A CURVE CONCAVE TO THE NORTHEAST HAVING A RADIUS OF 60.00 FEET, AN
ARC DISTANCE OF 28.01 FEET, THE CHORD OF SAID ARC HAVING A LENGTH OF 27.75 FEET AND A
BEARING OF SOUTH 14 DEGREES 01 MINUTES 33 SECONDS EAST TO THE NORTH LINE OF AFORESAID LOT
1: THENCE SOUTH 89 DEGREES 20 MINUTES 45 SECONDS WEST, ALONG SAID NORTH LINE, 66.58 FEET TO
THE POINT OF BEGINNING, IN COOK COUNTY, ILLINOIS.
IN THE MANNER REPRESENTED ON THE PLAT HEREON DRAWN AND THAT SAID PLAT 15 CORRECT
REPRESENTATION OF SAID SURVEY AND RESUBDIVISION. DIMENSIONS ARE SHOWN IN FEET AND
DECIMAL PARTS THEREOF.
I DO HEREBY FURTHER CERTIFY THAT UPON COMPLETION OF CONSTRUCTION, IRON PIPES AT ALL
INTERIOR LOT CORNERS AND POINTS OF CHANGE IN ALIGNMENT WILL BE SET, AS REQUIRED BY THE PLAT
ACT (765 ILCS 205.0.01 ET SEQ.). I FURTHER CERTIFY THAT ALL EXTERIOR CORNERS OF THE SUBDIVISION
HAVE BEEN MONUMENTED PRIOR TO RECORDATION OF THE SUBDIVISION PLAT AND THAT CONCRETE
MONUMENTS HAVE BEEN SETAS REQUIRED.
I FURTHER CERTIFY THAT THE ABOVE DESCRIBED PROPERTY IS WITHIN THE CORPORATE LIMITS OF THE
VILLAGE OF MORTON GROVE, COOK COUNTY, ILLINOIS WHICH HAS ADOPTED A COMPREHENSIVE CITY
PLAN AND IS EXERCISING THE SPECIAL POWER AUTHORIZED BY DIVISION 12 OF ARTICLE 11 OF THE
ILLINOIS MUNICIPAL CODE.
I FURTHER CERTIFY THAT BASED ON INFORMATION PROVIDED ON THE FLOOD INSURANCE RATE MAP
COMMUNITY- PANEL NO. 17031CO241J DATED AUGUST 19, 2008, PRODUCED BY THE FEDERAL
EMERGENCY MANAGEMENT AGENCY (FEMA) FOR COOK COUNTY, ILLINOIS, THE PROPERTY SHOWN AND
DESCRIBED HEREON IS LOCATED WITHIN ZONE X, WHICH IS DEFINED BY FEMA AS "AREAS DETERMINED
TO BE OUTSIDE THE 0.2% ANNUAL CHANCE FLOODPLAIN".
THIS PROFESSIONAL SERVICE CONFORMS TO THE CURRENT ILLINOIS MINIMUM STANDARDS FOR A
BOUNDARY SURVEY.
SCHAUMBURG, ILLINOIS MAY 25, 2017.
BY:
ILLINOIS PROFESSIONAL LAND SURVEYOR NO. 3695
HAEGER ENGINEERING LLC
ILLINOIS PROFESSIONAL DESIGN FIRM NO. 184-003152
CONSULTING ENGINEERS AND LAND SURVEYORS
100 E. STATE PARKWAY, SCHAUMBURG, ILLINOIS 60173
TEL: 847/394-6600 FAX: 847/394-6608
THIS INSTRUMENT PREPARED BY:
AND AFTER RECORDING
RETURN TO:
Teresa Hoffman Liston
Corporation Counsel
Village of Morton Grove
6101 Capulina Avenue
Morton Grove, II, 60053
This Space for Recorder's Use Only
EXHIBIT "B"
REDEVELOPMENT AGREEMENT
BETWEEN
THE VILLAGE OF MORTON GROVE,
AND
LEXINGTON HOMES, LLC
DATED AS OF , 2017
REDEVELOPMENT AGREEMENT
THIS REDEVELOPMENT AGREEMENT ("Agreement") is made as of the _ day of 2017, and is
by and between the VILLAGE OF MORTON GROVE, an Illinois home rule municipal corporation
("Village"); and LEXINGTON HOMES, LLC., an Illinois limited liability company ("Developer").
IN CONSIDERATION OF the recitals and the mutual covenants and agreements set forth in this
Agreement, and pursuant to the Village's home rule powers, the parties hereto agree as follows:
SECTION 1. RECITALS.
A. The Village is a home rule unit by virtue of the provisions of the 1970 Constitutions of
the State of Illinois.
B. The Village, as of the Effective Date, is the owner of a 2.0 -acre vacant development site
located at the southwest corner of Capulina and Ferris Avenue and legally described in Exhibit A (the
"Property").
C. The Property is located entirely within the corporate limits of the Village and is in the C1
General Commercial District.
D. The Property was formerly occupied by industrial and commercial uses, that closed
more than two decades ago. Between 2005 to 2009, the Village acquired the Property and demolished
the existing structures on the site. Environmentally hazardous conditions remain in the underlying soil,
the unknown extent to which has dissuaded previous redevelopment of the site.
E. The Village has the authority, pursuant to the laws of the State of Illinois, to promote
the health, safety, and welfare of the Village and its inhabitants, to prevent the spread of blight, to
encourage private development to enhance the local tax base, to increase employment, and to enter
contractual agreements with third parties to achieve these purposes.
F. The Village is authorized under the provisions of the Tax Increment Allocation
Redevelopment Act, 65 ILCS 5/11-74.4-1 et seq., as amended, ("TIF Act") to finance redevelopment in
accordance with the conditions and requirements set forth in the TIF Act.
G. To stimulate and induce redevelopment pursuant to the TIF Act, the Village has, after
giving all notices required by law and after conducting all public hearings required by law, adopted the
TIF Ordinances (as defined herein).
H. Developer desires and seeks purchase the Property and develop it as a 36 -unit
townhome community in a total of seven (7) buildings. The units will consist of 2 -bedroom plus den and
3 -bedrooms, all with 2.5 baths, 2 car garages, fee simple ownership, and a homeowner's association
(HOA) to manage all common elements. The Developer proposes to start construction in the Fall of
2017, complete construction by October 2019, and complete all sales by October 2019.
I. The Developer seek approval of, and has filed an application for, a special use permit
("Special Use") for the Property.
J. Pursuant to public notice published in the Pioneer Press on June 1, 2017, a public
hearing was held by the Plan Commission on June 19, 2017, to consider the Developer's request for (i)
approval of a Special Use; and (11) any such other variations, waivers and zoning relief as may be
LEXINGTON SITE B RDA 10-19-17
necessary to accomplish the development and use of the Property as requested by the Developer
(collectively, "Requested Relief'). The Plan Commission made its recommendation to approve the
Requested Relief on June 19, 2017.
K. The Developer has requested that the Village pay for certain Redevelopment Project
Costs (as defined here, in the TIF Act, 65 ILCS 5/11-74.4-3(q), including certain costs of property
acquisition, site preparation, environmental remediation, demolition, and construction of certain
Improvements, all of which will serve a public purpose and are necessary to foster redevelopment of the
Property.
I. It is necessary for the successful completion of the Development that the Village enter
into this Agreement with the Developer.
M. It is economically infeasible for the Developer to undertake the Development, and the
Developer thus is unable to undertake the redevelopment of the Property, without certain assistance
from the Village pursuant to the TIF Act which the Village has been, and continues to be, willing to
provide under the terms and conditions contained in this Agreement.
N. The Developer, after due and careful consideration and with advice and input from
their own legal counsel, have agreed to subject the Property to the terms, provisions, and conditions of
this Agreement.
O. The Corporate Authorities, after due and careful consideration, have concluded that
granting the requested relief for the Development on the Property pursuant to and in accordance with
this Agreement would further enable the Village to control the development of the area and would
serve the best interests of the Village.
P. The Corporate Authorities find that the Development will achieves some of the long-
term objectives of the Lehigh Ferris TIF Redevelopment Plan by:
a) The removal of a vacant, obsolete and deteriorated industrial building and the remediation of
environmentally contaminated land to residential level safety standards.
b) Returning 12 tax-exempt parcels to the tax rolls, producing approximately $395,000 in annual
property taxes upon full valuation, and over $4.2 million over the next 10 years.
c) Adding 36 new townhomes that adds to the mix of housing options available to residents and
furthers the transit oriented objectives of Lehigh Ferris Framework Plan and fits with density
and design standards of the CR -Zoning district.
d) Creating full and part-time construction jobs during the construction of the Development.
Q. The Village and the Developer desire that the Property be developed, used, operated
and maintained only in compliance with this Agreement.
SECTION 2. DEFINITIONS; RULES OF CONSTRUCTION.
A. Definitions. Whenever used in this Agreement, the following terms shall have the
following definitions:
"Common Improvements": Those certain Improvements that will be privately owned but of
common or general benefit to the Development, including parking lots and vehicular access ways in
accordance with approved engineering plans; Storm Water Facilities, private water system (pipes,
LEXINGTON SITE B RDA 10-19-17
valves, fire hydrants, and related system improvements including hook-ups to the public water system),
private sanitary sewer system (pipes, manholes, lift stations, and related system improvements,
including hook up to the public sewer), private walkways, landscaping, grading and related site
preparation work, erosion and sediment controls during the various phases of site development
(including site and lot grading, construction entrances, diversion dikes, silt fences, sediment traps,
seeding and site stabilization); and other special environmental protection measures which are a
component of the engineering Final Plans.
"Corporate Authorities": The President and Board of Trustees of the Village.
"Development": Defined in Section 4A of this Agreement
"Effective Date": The date of execution of this Agreement by all parties hereto, which date shall
be deemed to be the date set forth in the first paragraph of Page 1 of this Agreement.
"Final Plans and Elevations": Defined in Section 6.A. After approval by the Village Administrator
or his designee, the Final Plans shall, automatically and without further action by the Corporate
Authorities, be deemed to be incorporated in, and made a part of, this Agreement and shall, for all
purposes in this Agreement, replace and supersede the Preliminary Plans.
"Improvements": Except as specifically excepted in this definition, all of the public and private
improvements and facilities necessary to serve the Property, including, without limitation, all other
storm water detention facilities, water mains, storm sewers, sanitary sewers, parking lots, lighting,
sidewalks, access driveways, parkways, rough and final grading, trees, sod, seeding, and other
landscaping, and all other improvements required pursuant to this Agreement, the Preliminary Plans or
the Final Plans, and the Requirements of Law.
"Incremental Property Taxes": An amount equal to (i) the ad valorem taxes, if any, arising from
the taxes levied upon the Property, which taxes are attributable to the increases in the then current
equalized assessed valuation ("EAV") of each taxable lot, block, tract, or parcel in the Property over and
above the total Initial EAV of each such lot, block, tract, or parcel of real property, all as determined by
the County Clerk of Cook County, Illinois, pursuant to and in accordance with the TIF Act, the TIF
Ordinances and this Agreement, minus (ii) any required payments to other taxing districts, including
those made pursuant to 65 ILCS 5/11-74.4-3(q)(7.5 and 7.7) and further minus (iii) any amounts
returned (or which would be subject to return) to Developer pursuant to any appeal, objection or other
proceeding that reduces the assessed valuation of the Property or the amount of ad valorem taxes paid
on the Property during the Term, and minus (iv) any other amounts required to be paid by
Requirements of Law, when such taxes are collected and paid to and received by the Treasurer of the
Village for deposit in the TIF Fund.
"Initial EAV": The "initial equalized assessed value" (as defined in Section 11-74.4-9 of the TIF
Act) of the Property.
"Municipal Code": The Municipal Code of Morton Grove, as the same has been and may, from
time to time hereafter, be amended.
LEXINGTON SITE B RDA 10-1947
"Person": Any corporation, partnership, limited liability company, individual, joint venture,
trust, estate, association, business, enterprise, proprietorship, or other legal entity of any kind, either
public or private, and any legal successor, agent, representative, or authorized assign of the above.
"Plan Commission": The Plan Commission of the Village, established by Section 2-5-1 of the
Municipal Code.
"Preliminary Plans": The following preliminary plans and elevations:
A. Site Plan, submitted by Haeger Engineering, dated May 24, 2017;
B. Fire Truck Turning Exhibit, submitted by Haeger Engineering, dated May 24, 2017;
C. Lexington Walk Final Plat of Subdivision, submitted by Haeger Engineering, dated May
25, 2017
D. Lexington Walk Preliminary Engineering Plans submitted by Haeger Engineering, dated
May 24, 2017
E. Sales Trailer Exhibit, submitted by Haeger Engineering, dated May 24, 2017
F. Off-site Sign Exhibit, submitted by Haeger Engineering, dated May 24, 2017
G. Preliminary Landscape Plan, submitted by Krogstad Land Design Limited, dated May 26,
2017
H. Summary of Traffic and Parking Evaluation, submitted by KLOA Inc., dated May 24, 2017,
revised June 12, 2017
I. Photometric Plan, submitted by Legacy Design Inc., dated May 26, 2017
J. Colored Elevations and Floor Plans, submitted by BSB, dated May 30, 2017
K. Preliminary Stormwater Management Report, submitted by Haeger Engineering, dated
May 31, 2017
L. Colored Site Plan, submitted by Krogstad Land Design Limited, dated May 26, 2017
"Property": That certain tract of land consisting of a 2.0 -acre vacant development site located
at the southwest corner of Capulina and Ferris Avenue and legally described in Exhibit A.
"Public Improvements": Those certain Improvements located or to be located on public
property or public rights-of-way or within easements to the Village or another governmental entity.
"Special Use Ordinance": Ordinance 17-24 attached hereto as Exhibit B approved and adopted
by the Corporate Authorities on September 11, 2017 approving a Special Use permit for a PUD
governing the development of the Property, and granting certain waivers from the requirements of the
Unified Development Code.
"Redevelopment Project Costs": Costs defined as "Redevelopment Project Costs" in the TIF Act,
65 ILCS 5/11-74.4-3(4
"Requirements of Law": All applicable federal, state, and Village laws, statutes, codes,
ordinances, resolutions, rules and regulations.
"Site Restoration": Defined in Section 7.D.1 of this Agreement.
"Storm water Facilities": The following specific Improvements, as depicted on the Preliminary
Engineering Plan: the storm water detention basin, and private storm sewers, related equipment,
appurtenances, and structures installed and maintained on the Property to ensure adequate storm
LEXINGTON SITE B RDA 10-19-17
water drainage and management and to collect and direct storm water into the Village's storm sewer
system.
"TIF Act": The Tax Increment Allocation Redevelopment Act, as amended, 65 ILCS 5/11-74.4-1
et seq.
"TIF Ordinances":) Ordinance No. 00-01 approving a Tax Increment Redevelopment Plan and a
Tax Increment Redevelopment Project, (ii) Ordinance No. 00-02 designating a Tax Increment
Redevelopment Project Area, and (iii) Ordinance No. 00-03 adopting Tax Increment Allocation Financing,
all which established the Lehigh Ferris Tax Increment Finance Redevelopment Project Area.
"Uncontrollable Circumstance": Any of the following events and circumstances that materially
change the costs or ability of the Developer to carry out its obligations under this Agreement:
a. a change in the Requirements of Law;
b. insurrection, riot, civil disturbance, sabotage, act of public enemy, explosion,
nuclear incident, war, or naval blockade;
c. epidemic, hurricane, tornado, landslide, earthquake, lightning, fire, windstorm,
other extraordinary weather condition, or other similar act of God;
d. governmental condemnation or taking other than by the Village; or
e. strikes or labor disputes, other than those caused by the unlawful acts of the
Developer, its partners, or affiliated entities.
Uncontrollable Circumstance shall not include economic hardship, impracticability of performance,
commercial, economic, or market conditions, or a failure of performance by a contractor (except as
caused by events which are Uncontrollable Circumstances as to the contractor).
"Unified Development Code": The Village of Morton Grove Unified Development Code, as the
same has been and may, from time to time hereafter, be amended.
B. Rules of Construction.
1. Grammatical Usage and Construction. In construing this Agreement, pronouns
include all genders, and the plural includes the singular and vice versa.
2. Headings. The headings, titles, and captions in this Agreement have been
inserted only for convenience and in no way define, limit, extend, or describe the scope or intent of this
Agreement.
3. Calendar Days. Unless otherwise provided in this Agreement, any reference in
this Agreement to "day" or "days" shall mean calendar days and not business days. If the date for giving
of any notice required to be given, or the performance of any obligation, under this Agreement falls on a
Saturday, Sunday, or federal holiday, then the notice or obligation may be given or performed on the
next business day after that Saturday, Sunday, or federal holiday.
LEXINGTON SITE B RDA 10-19-17
4. Other Defined Terms. Capitalized terms not defined in this Agreement shall
have the meanings set forth in the Unified Development Code.
SECTION 3. SALE OF PROPERTY TO DEVELOPER.
The Developer agrees to purchase from the Village, and the Village agrees to sell to the Developer the
Property in "As Is" condition for the price of Seven Hundred Ten Thousand and No/100 Dollars
($710,000.00) (the "Purchase Price") paid in cash at closing plus or minus usual and customary
prorations, credits and deductions. The Closing of the sale of the Property shall take place on or before
November 15, 2019
SECTION 4. DEVELOPMENT OF PROPERTY.
A. Development. The Developer shall construct the Development on the Property in
accordance with the terms and conditions of this Agreement and the Special Use Ordinance. The
Development shall consist of 36 -unit townhome community in a total of seven (7) residential buildings.
The units will consist of 2 -bedroom plus den and 3 -bedrooms, all with 2.5 baths. The units will be
approximately 1,800 to 2,000 square feet and will include 2 attached car garages. Ownership of each
unit shall be conveyed pursuant to a fee simple deed. The Development shall include seventeen (17) on-
site visitor parking spaces. In addition, the developer will add six (6) on— street parking spaces on the
south side of Capulina Avenue, immediately north of the proposed development, which will be open for
use by all area residents and visitors, but will be time restricted to discourage all day parking by Metra
riders. The Developer expects to sell the units between $355,000 and $365,000, including upgrades.
A homeowner's association (HOA) shall be established by the Developer to manage all common
elements two buildings. The Developer shall also construct a noise attenuation wall to reduce the noise
and visual impact of the adjacent Metra rail line and enhance the safety for residents. The Developer
expects to invest approximately twelve million, three hundred thousand ($12,300,000.00) dollars for the
Development.
B. Environmental Remediation. The Developer, will conduct the environmental
remediation of the site in strict accordance with IEPA standards and procedures and secure a No Further
Remediation Letter upon completion of all project construction in the Development.
C. General Use and Development Restrictions. Development of the Property, except for
minor alterations due to final engineering and site work approved by the Village Administrator or his
designee shall be pursuant to and in accordance with the following (upon their respective approval,
adoption, and effective date):
1. This Agreement;
2. The Special Use Ordinance, and all documents and plans incorporated in the
Special Use Ordinance;
3. The Final Plans;
4. The Unified Development Code; and
LEXINGTON SITE B RDA 10-19-17
5. The Requirements of Law.
Unless otherwise provided in this Agreement, in the event of a conflict between or among any of the
above plans or documents, the plan or document that provides the greatest control and protection for
the Village, as determined by the Village Administrator, shall control. All of the above plans and
documents shall be interpreted so that the duties and requirements imposed by any one of them are
cumulative among all of them, unless otherwise provided in this Agreement. In the event of an
inconsistency between the Special Use Ordinance and the Unified Development Code, the Special Use
ordinance shall be controlling.
SECTION 5. IMPROVEMENTS.
A. Description of Improvements. The Developer shall, construct, install, or perform all the
Improvements on the Property as set forth in the Final Plans.
B. Dedication and Maintenance of the Improvements.
1. Final Inspection and Approval of the Improvements. The Developer shall notify
the Village when it believes that any or all the Improvements have been fully and properly completed
and shall request final inspection, approval, and where appropriate, acceptance of the Improvement or
Improvements by the Village. Such notice and request shall comply with, and include, all requirements
of Section 12-9-4 of the Unified Development Code and shall be given far enough in advance to allow
the Village time to inspect the Improvements and to prepare a punch list of items requiring repair or
correction and to allow the Developer time to make all required repairs and corrections prior to the
scheduled completion date. The Developer shall promptly make all necessary repairs and corrections as
specified on the punch list. The Village shall not be required to approve or accept any portion of the
Improvements until all the Improvements for the Development, including all punch list items, have been
fully and properly completed.
2. Dedication and Acceptance of Specified Improvements. The execution of this
Agreement shall not constitute an acceptance by the Village of any public facilities that are depicted as
"dedicated" on the engineering sheets of the Final Plans, if any, or of any Improvements. The
acceptance of all Improvements shall be made only in compliance with the requirements of the Unified
Development Code, including, without limitation, Section 12-9-4 of that Code.
C. Transfer of Ownership of Public Improvements and Easements to the Village. Upon
the approval of, and prior to acceptance of, any Public Improvements to be accepted by the Village the
Developer shall execute, or cause to be executed, such documents as the Village shall request to
transfer ownership of such Public Improvements to, and to evidence ownership of such Public
Improvements by, the Village, free and clear of all liens, claims, encumbrances, and restrictions unless
otherwise approved by the Village in writing. The Developer shall, at the same time, grant, or cause to
be granted, to the Village all such easements or other property rights as the Village may require to
install, operate, maintain, service, repair, and replace any Public Improvements that have not previously
been granted to the Village, free and clear of all liens, claims, encumbrances, and restrictions unless
otherwise approved by the Village in writing.
D. Two -Year Guaranty of Improvements. Pursuant to Section 12-8-3 of the Unified
Development Code, the Developer hereby guarantees the prompt and satisfactory correction of all
defects and deficiencies in the Improvements, including, without limitation, any landscaping installed by
LEXINGTON SITE B RDA 10-19-17
the Developer on public lands or within public rights-of-way or easements, that occur or become
evident within two years after approval and, where appropriate, acceptance of the Improvements by
the Village pursuant to this Agreement. If any such defect or deficiency occurs or becomes evident
during such period, then the Developer shall, after 10 days prior written notice from the Village (subject
to Uncontrollable Circumstances), correct it or cause it to be corrected. In the event any Improvement is
repaired or replaced pursuant to such a demand, the guaranty provided by this Subsection shall be
extended, as to such repair or replacement, for two full years from the date of such repair or
replacement. Any Public Improvements under the jurisdiction of IDOT shall have a warranty of at least
two years or longer, if an extended warranty period is required by IDOT.
SECTION 6. CONSTRUCTION.
A. Final Plans Approval. Prior to applying for a building permit for the construction of any
of the Improvements, the Developer shall submit to the Village Administrator or his
designee for review, acceptance, and approval, in the Village Administrator's or his
designee's sole and absolute discretion, final building plans, elevations, lighting plan,
engineering plans, landscaping plans and tree removal plan and any related and
supporting documents for the development of the Property. Such plans shall be in
substantial compliance with the Preliminary Plans and all applicable Village codes,
ordinances, rules, and regulations, and the Requirements of Law, including the Special
Use Ordinance. Upon approval, those plans shall be the Final Plans.
B. Design and Construction.
1. General Standards. The Development shall be designed and constructed
pursuant to and in accordance with the Final Plans, the Special Use Ordinance and Requirements of Law.
All work performed on the Development shall be conducted in a good and workmanlike manner and
with due dispatch in accordance with the schedule established in Subsection 7.C.2 of this Agreement. All
materials used for construction of the Development shall be new and of first quality.
2. Improvements. The design and construction of the Improvements shall be
subject to the reasonable written satisfaction of the Village Administrator or his designee in accordance
with the Unified Development Code.
3. Contract Terms; Prosecution of the Work. The Developer shall include in every
contract for work on the Development terms requiring the contractor to prosecute the work diligently,
continuously, in full compliance with, and as required by or pursuant to, this Agreement, the Final Plans,
the Special Use Ordinance, and the Requirements of Law, until the work is properly completed, and
terms if the Developer may take over and prosecute the work if the contractor fails to do so in a timely
and proper manner.
4. Architect or Engineering Services. The Developer shall provide, at its sole cost
and expense, all engineering services for the design of the Development by a professional architect or
engineer responsible for overseeing the of the Development. The Developer shall promptly provide the
Village with the name of the construction project manager and a telephone number or numbers at
which the construction project manager can be reached at all times.
5. Village Inspections and Approvals. All work on the Development shall be subject
to inspection and approval by Village representatives at all times.
LEXINGTON SITE B RDA 10-19-17
6. Other Approvals. Where the construction and installation of the Development
requires the consent, permission, or approval of any public agency other than the Village or private
party, the Developer shall promptly file all applications, enter into all agreements, post all security, pay
all fees and costs, and otherwise take all steps that may be reasonably required to obtain the required
consent, permission, or approval.
C. Construction Traffic and Parking.
1. Designated Traffic Routes. Prior to or concurrent with the Developer's
application for the first work to be performed on the Property, the Developer shall submit a
construction management traffic and parking plan for review and approval by the Village Administrator
or his designee. Such plan shall include all designated traffic routes, construction fencing and
construction sequencing plans. Notwithstanding the plan, the Village may designate alternate routes of
access to the Property for construction traffic to protect pedestrians and to minimize disruption of
traffic and damage to paved street surfaces; provided, however, that the designated routes shall not
unduly hinder or obstruct direct and efficient access to the Property for construction traffic. The plan
shall include the proposed methods by which the Developer will keep all routes used for construction
traffic free and clear of mud, dirt, debris, obstructions, and hazards. The Developer shall repair all
damage caused by the construction traffic.
2. Parking. The construction management plan shall show the location where all
construction vehicles, including passenger vehicles, and construction equipment shall be parked within
the Property. Any proposed parking area located outside the Property shall be identified and subject to
approval by the Village Administrator or his designee.
D. Issuance of Permits and Certificates. The Village has the right to withhold the issuance
of certificates of occupancy for any building or structure located on the Property until the Improvements
are completed by the Developer or until other arrangements satisfactory to the Village Administrator or
his designee, in his reasonable sole and absolute discretion, shall have been made. The issuance of any
building permit or certificate of occupancy by the Village at any time prior to completion of all the
Improvements and, where appropriate, acceptance thereof by the Village shall not confer on the
Developer any right or entitlement to any other building permit or certificate of occupancy. Any
amendment to the Village's local building codes solely related to new construction, which is approved
after the first complete building permit application has been filed with the Village, shall not require
changes in the Final Plans.
E. Damage to Public Property. The Developer shall maintain the Property and all streets,
sidewalks and other public property in and adjacent to the Property in a good and clean condition at all
times during development of the Property and construction of each phase of the Development. Further,
the Developer shall (1) promptly clean all mud, dirt, or debris deposited on any street, sidewalk, or other
public property in or adjacent to the Property by the Developer or any agent of or contractor hired by,
or on behalf of, the Developer; and (2) repair any damage that may be caused by the activities of the
Developer or any agent of or contractor hired by, or on behalf of, the Developer.
F. Burial of Public Utility Lines. Developer shall, at its expense, bury at the locations
approved by the Village Engineer, all overhead public utility lines that are newly constructed and
installed within the Property to serve the Development. The Developer will contract with a contractor
mutually approved by the Village and the Developer, for the removal of the existing overhead utility
LEXINGTON SITE B RDA 10-19-17
lines and the replacement thereof with underground utilities pursuant to terms and conditions mutually
approved by the parties.
G. Compliance with Prevailing Wage. The Developer shall comply, and shall cause all
contractors constructing the Development to comply, with the Illinois Prevailing Wage Act (820 ILCS
130/0.01 et seq.), as it may be applicable. Without limiting anything in prior sentence, the Developer
acknowledges and agrees, and will take all necessary steps to insure, that the Illinois Prevailing Wage Act
applies to each contract pursuant to which Developer will construct, or cause the construction of, an
Improvement that will be dedicated or transferred to the Village or other public entity upon its
completion and acceptance.
SECTION 7. COMMENCEMENT AND COMPLETION OF CONSTRUCTION.
A. Prohibition of Construction of Any Kind Prior to All Approvals. The Developer
acknowledges and agrees that, unless specifically authorized in writing by the Village Administrator, in
his sole and absolute discretion, no Environmental Remediation, grading, site work, tree or landscape
removal, construction, improvement, or development of any kind shall be permitted on any portion of
the Property unless and until the Final Plans have all been approved by the Village Administrator or his
designee. Notwithstanding the provisions of this Section, the Developer may apply for and the Village
Administrator may permit limited Environmental Remediation and or may issue limited site work
permits prior to the approval of the Final Plans.
B. Commencement of Construction. In addition to the restriction set forth in Section 7.A
of this Agreement, the following shall apply to the construction of the Development:
1. Foundation Construction. No construction of any kind shall be permitted on or
with respect to the foundation portion of the Development unless and until the Developer obtains
written approval from the Village Administrator or his designee.
2. Vertical Construction. No vertical construction of any kind shall be permitted on
the Development unless and until the Developer delivers to the Village Administrator evidence of a
written financial commitment(s) from one or more reputable lending institution(s) agreeing to make a
loan to the Developer that, in an amount which is sufficient to reasonably satisfy the Village that
Developer has sufficient financial resources to cover the costs of construction of the Development and
of all Improvements related to the first phase of construction. The form, substance, and adequacy of
the written financing commitment shall be acceptable to the Village Administrator in his reasonable
determination.
C. Diligent Pursuit of Construction.
1. Once commencement of construction is authorized pursuant to this Agreement,
the Developer shall pursue the construction of the Development in a diligent and expeditious manner.
2. The Developer shall complete the Development within the time prescribed in
the applicable building permits, but in event no later than December 31, 2019 The Developer shall be
allowed extensions of time beyond the completion dates set forth in such permits only for unavoidable
delay caused by Uncontrollable Circumstances or as may be approved by the Village Administrator.
LEXINGTON SITE B RDA 10-19-17
D. Failure to Complete Construction.
1. Removal of Partially Constructed Structures and Improvements. Subject to
Uncontrollable Circumstances, if the Developer fails to diligently pursue all construction as required
within the time period prescribed in the building permit or permits issued by the Village for the
construction or in accordance with the schedule approved by the Village Administrator or his designee
pursuant to Subsection 7.C.2, and if a perfected application to renew the building permit or permits is
not filed and approved within 30 days after the expiration of the permit or permits, the Developer shall,
subject to the rights of the project lenders within 60 days after notice from the Village: (a) remove or
commence to remove any partially constructed or partially completed buildings, structures, or
Improvements for that phase from the Property; and (b) perform site restoration and modification
activities to establish a passive park -like setting on the affected portion of the Property in accordance
with plans approved by the Village ("Site Restoration").
2. Removal and Restoration by Village. In the event the Developer fails or refuses
to remove the buildings, structures, and Improvements, or to perform the Site Restoration, as required
pursuant to Section 7.D.1 of this Agreement, the Village shall have, and is hereby granted, the right, at
its option (but subject to the rights of the project lenders), to enter upon the Property to: (a) demolish
and/or remove any of the buildings, structures and Improvements from any and all portions of the
Property, and to perform the Site Restoration; or (b) cause the Improvements to be completed in
accordance with the plans submitted and any of the buildings or structures to be secured and weather
tight. The Developer shall fully reimburse the Village for all costs and expenses, including legal and
administrative costs, for such work within 30 days after a request therefor. If the Developer does not
fully reimburse the Village for all such costs and expenses, and the Bonds described in Section 10 of this
Agreement have no funds remaining in them or are otherwise unavailable to finance such work, then,
subordinate to the project lenders, the Village shall have the right to place a lien on Property for all such
costs and expenses in the manner provided by law. The rights and remedies provided in this Section
shall be in addition to, and not in limitation of, any other rights and remedies otherwise available to the
Village at law and/or in equity.
E. Certificate of Completion.
1. Conditions for Certificate of Completion. The Village will issue Developer a
certificate of completion ("Certificate of Completion") upon the Developer's satisfaction of the following
conditions ("Completion Conditions"):
a. All residential units in the Development have been constructed and the
Village has issued a final certificate of occupancy for at least 33 residential units;
b. No fewer than 85 percent of the residential units in the Development
have been sold;
c. The Development conforms to this Agreement, the Special Use
Ordinance, and Requirements of Law.
2. Request for Certificate of Completion. The Developer shall notify the Village
when it believes that the Completion Conditions have been satisfied and shall request an inspection and
a Certificate of Completion. The Village shall respond to the Developer's request for the Completion
Certificate within 30 days by issuing either the Completion Certificate or a written statement detailing
LEXINGTON SITE B RDA 10-19-17
the ways in which the Completion Conditions have not been satisfied and the measures which must be
taken by the Developer to obtain the Completion Certificate.
F. Other Transactions. Developer shall not enter into any transaction prior to the issuance
of the Certificate of Completion that materially or adversely affects its ability to finance or complete the
Development.
G. Maintenance of the Development Upon Completion. Upon the issuance of the
Certificate of Completion, Developer shall maintain the Development in accordance with the Special Use
Ordinance, the Final Plans, and the Requirements of Law ("Maintenance Obligation"). If (i) Developer
defaults on its Maintenance Obligation and fails to cure such default after ninety (90) days' written
notice from the Village, or as soon as practicable after written notice in the case of a default that creates
a hazard to public health and safety, and (ii) the Village substantially prevails in a judicial action
regarding such default, Developer shall post a letter of credit in an amount not less than the cost of six
months of maintenance for the Property, as determined by the Village Administrator, based on
generally acceptable maintenance standards for properties of similar size and use, within ninety (90)
days of a final order issued in the judicial action, which letter of credit the Village may draw upon to cure
any future or continued breach of the Maintenance Obligation. The Village's remedies pursuant to this
Section 7.G are in addition, and without prejudice, to any other rights and remedies available to the
Village for Developer's breach of its Maintenance Obligation. This Section runs with the land.
SECTION 8. RECAPTURES.
The Village has no recapture fees that the Developer is required to pay pursuant to this
Agreement. There are no costs for which the Developer is entitled to recapture under this Agreement.
SECTION 9. PAYMENT OF VILLAGE FEES AND COSTS.
A. Village Impact Fees. The Village has no Village impact fees in effect that will be caused
by the Development
B. General Requirements. In addition to any other costs, payments, fees, charges,
contributions, or dedications required by this Agreement, the Developer shall pay to the Village, as and
when due, all application, inspection, and permit fees, all water and sewer general and special
connection fees, tap -on fees, charges and contributions, and all other fees, charges, and contributions
required by applicable Village codes, ordinances, resolutions, rules, or regulations.
C. Special Requirements. In addition to any other costs, payments, fees, charges,
contributions, or dedications required by this Agreement or by applicable Village codes, ordinances,
resolutions, rules or regulations, the Developer shall pay to the Village, immediately upon presentation
of a written demand or demands therefor, all reasonable legal, engineering, and other consulting or
administrative fees, costs, and expenses incurred or accrued in connection with the review and
processing of plans for the development of the Property and in connection with the negotiation,
preparation, consideration, and review of this Agreement and all of its exhibits. Payment of all such
fees, costs, and expenses for which demand has been made, but payment has not been received, by the
Village prior to execution of this Agreement shall be made by a certified or cashier's check immediately
upon execution of this Agreement by the Village President. Further, the Developer agrees that it will
continue to be liable for and to pay, immediately upon presentation of a written demand or demands
therefor, such fees, costs, and expenses incurred in connection with any applications, documents, or
LEXINGTON SITE B RDA 10-19-17
proposals, whether formal or informal, of whatever kind submitted by the Developer during the term of
this Agreement in connection with the development and use of the Property. Further, the Developer
agrees that it shall be liable for and shall pay upon demand all costs incurred by the Village for
publications and recordings required in connection with the aforesaid matters.
SECTION 10. PERFORMANCE SECURITY.
A. Performance and Payment Bonds. As security to the Village for the performance by the
Developer of the Developer's obligations to construct and complete the Public Improvements and the
Common Improvements pursuant to and in accordance with this Agreement, the Developer hereby
irrevocably elects, on behalf of itself and its successors, and agrees to provide the Village, no later than
the date of the approval of the Final Plans, performance and payment security for the Public
Improvements and the Common Improvements ("Guarantee") in the form of irrevocable surety bonds
("Bonds") in the amount set forth in Section 12-8-3.0 of the Unified Development Code, and in
accordance with the terms set forth therein. The Bonds shall be in form and satisfactory to the Village's
Corporation Counsel, from a surety company licensed to do business in the State of Illinois with a
general rating of A and a financial size category of Class X or better in Best's Insurance Guide. The
Guarantee shall be administered pursuant to Section 12-8-3.0 of the Unified Development Code.
B. Use of Funds in the Event of Breach of Agreement. If the Developer fails or refuses to
complete the Public Improvements, the Common Improvements, or both in accordance with this
Agreement, or fails or refuses to correct any defect or deficiency in the Public Improvements, the
Common Improvements, or both, or remove partially completed buildings or structures as required by
this Agreement, or fails or refuses to perform Site Restoration in accordance with a demand made
pursuant to his Agreement, or fails or refuses to pay any amount demanded by the Village as and when
required pursuant to this Agreement, or in any other manner fails or refuses to meet fully any of its
obligations under this Agreement, then the Village in its reasonable discretion may draw on and retain
all or any of the funds remaining in the Bonds. The Village thereafter shall have the right, subject to 30
days notice and opportunity for cure, to exercise its rights under this Agreement, to take any other
action it deems reasonable and appropriate to mitigate the effects of any failure or refusal, and to
reimburse itself from the proceeds of the Bonds for all of its costs and expenses, including legal fees and
administrative expenses, resulting from or incurred as a result of the Developer's failure or refusal to
fully meet its obligations under this Agreement. If the funds remaining in the Bonds are insufficient to
repay fully the Village for all costs and expenses, then the Developer shall upon demand of the Village
therefor deposit with the Village any additional funds as the Village determines are necessary, within 30
days of a request therefor, to fully repay such costs and expenses.
SECTION 11. TIF Assistance.
A. Redevelopment Project Costs Eligible for Reimbursement. The parties acknowledge
that Developer will pay, or has paid, for expenses which qualify as Redevelopment Project Costs as
defined in the TIF Act ("TIF Eligible Expenses"). The Developer has estimated that it has spent or will
spend approximately three million seven hundred and nineteen thousand dollars, five hundred and
sixty-three ($3,719,563.00) dollars TIF Eligible Expenses
B. Village to Provide a Subsidy to Developer for Certain TIF Eligible Expenses. The Village
shall provide a subsidy the Developer to reimburse the Developer for the following expenses, provided
such expenses qualify as TIF Eligible Expenses. However, under no circumstances shall the total TIF
LEXINGTON SITE B RDA 10-19-17
subsidy paid to the Developer exceed one million seven hundred and five thousand ($1,705,000) or such
lesser sums as set forth in Section 11.F of this Agreement ("TIF Subsidy").
1. The Village shall reimburse or remit to Developer up to $1,431,700.00 for the TIF Eligible
Expenses incurred by the Developer to complete the Environmental Remediation work set
forth in Section 4.6 of this Agreement, and to bury overhead utility lines on the Property as
set forth in Section 6.E of the Agreement.
2. The Developer stipulates that the Village has already paid Commonwealth Edison
$35,000.00 for engineering services for burying existing overhead utilities, which shall be
counted against the $1,431,700.00. The Village shall reimburse the Developer for its actual
out of pocket costs incurred for this work, 30 days after the work has been completed and
approved by the Village and the Developer has satisfied the conditions of Section 11. C
below.
3. As work is performed pursuant to Section 11.6.1, provided Developer has complied with
Section 11.C, the Village shall reimburse Developer for the actual out-of-pocket costs
incurred for such work, or at the request of Developer, the Village shall cause to be
deposited in an escrow with Chicago Title and Trust Company, pursuant to escrow
instructions acceptable to the Village, the sum of $1,430,700.00 which shall be deposited
upon establishment of the escrow and to be disbursed as work is performed and draw
requests are submitted..
4. The Village shall reimburse the Developer for an additional amount of the out-of-pocket TIF
Eligible Expenses to maximum of $273,300.00 ("The 11. 8.4 Reimbursement). The 11.6.4
Reimbursement will be reduced by: (i) the amount equal to $35,000.00 for every quarter
percent (0.25%) increase in the Developer's unleveraged return on total costs (with TIF
Assistance from the Village) over 6% ("Increased Development Profitability"); and (11) the
amount the work pursuant to section 11.8.1 is less than $1,430,700.00. The Section 11.6.4
Reimbursement shall be paid to the Developer after: (i) the Village has issued the Developer
a Certificate of Completion pursuant to Section 7.E of this Agreement, (ii) the Developer
satisfies the conditions of Section 11. C below and (iii) when Developer has transferred title
to all the 36 units to be constructed by Developer to third party purchasers thereof.
C. Conditions for Reimbursement of TIF Eligible Expenses. To be reimbursed for the TIF
Eligible Expenses set forth in Section 11. B. 1 and 3. Above, the Developer shall provide the Village with
or deposit in the escrow referred to in section Section 11. B. 3 : (i) sworn statements and lien waivers
for any material, fixtures, apparatus, machinery, services, or labor provided by any contractor,
subcontractor, or other Person entitled to file a lien under the Mechanics Lien Act, 770 ILCS 60/1, for the
TIF Eligible Expense for which reimbursement is sought; (ii) bills, contracts, invoices and paid receipts
(provided that Developer need not advance payment for work which is to be paid through the escrow)
evidencing the costs and payment by the Developer of the TIF Eligible Expense; (iii) other documents or
information that the Village reasonably requires to evidence appropriate payment of the TIF Eligible
Expense; and (iv) in the case of Section 11.8.4 a certified statement from the Developer as to the
Developer's unleveraged return on total costs (with TIF Assistance from the Village) based on its actual
expenses and revenues. Within thirty (30) days after the Village receives a TIF Certification Request, the
Village shall send the Developer written notice (i) approving or disapproving the TIF Eligible Expense or
LEXINGTON SITE B RDA 10-19-17
(ii) if the Village disapproves the TIF Eligible Expense, the Village shall specify the reason for such
disapproval in reasonable detail.
D. Creation of Separate Tax Code. The Parties acknowledge that (i) under the TIF Act, the
Cook County Clerk is required, for each individual tax parcel within the TIF District with a current EAV
greater than its Initial EAV, to annually calculate, allocate, collect, and pay to the Village an amount
equal to the Incremental Property Taxes attributable to such increase, (ii) as a matter of practice, the
Cook County Clerk has not always followed this requirement and, instead of calculating Incremental
Property Taxes on a parcel by parcel basis, has been calculated Incremental Property Taxes on an
aggregate basis, taking the entire Incremental Property Taxes for an entire redevelopment project area,
reducing that amount by the total reduction in property taxes that are paid for tax parcels that have a
then -current EAV that is less than the Initial EAV, and allocating proportionate shares of that aggregate
amount to the tax parcels within the redevelopment project area that have current EAV's greater than
the Initial EAV, (iii) the "aggregate" method could result in an improper overpayment to certain taxing
bodies and an improper underpayment of Incremental Property Taxes to the Village, and (iv) to avoid
such improper underpayments, the Cook County Clerk and Cook County Assessor have sometimes
assigned specific and unique tax code designations to certain tax parcels within a redevelopment project
area to effectively allow Incremental Property Taxes to be calculated on a the basis of the tax codes.
The Village has, prior to the Effective Date, submitted a request to the Cook County Clerk to petition for
a separate tax code for the Property. The Village and Developer shall work cooperatively with the
Offices of the Cook County Clerk and Assessor to create a separate tax code designation for the tax
parcels located within the Property, so that Incremental Property Taxes can be properly calculated on a
parcel by parcel basis.
E. Property Tax Appeals. At any time during the Term of this Agreement, if the Owner or
Developer, or any other Person with the legal authority to do so, files or submits any appeal, objection,
or other proceeding to any official, agency or other entity with jurisdiction, that seeks to reduce the
assessed value of the Property or any part thereof, or to otherwise reduce the total amount of ad
valorem taxes paid on the Property or any part thereof, during the term of this Agreement, copies of all
documents, evidence or other materials filed by the Owner, Developer or such other Person shall also
be submitted to the Village not later than thirty (30) days after each such filing with such official, agency
or other entity with jurisdiction.
F. Reduced TIF Subsidy Based on Increased Development Profitability. The maximum TIF
Subsidy of $1,705,000 shall be reduced by $35,000 for every quarter percent (.25%) increase in the
Developer's unleveraged return on total costs (with TIF Assistance from the Village) over six percent
(6%).
SECTION 12. LIABILITY AND INDEMNITY OF VILLAGE.
A. Village Review. The Developer acknowledges and agrees that the Village is not, and
shall not be, in any way liable for any damages or injuries that may be sustained as the result of the
Village's review and approval of any plans for the Property, the Development, or the Improvements, or
the issuance of any approvals, permits, certificates, or acceptances, for the development or use of the
Property, the Development, or the Improvements, and that the Village's review and approval of any
such plans and the Improvements and issuance of any such approvals, permits, certificates, or
acceptances does not, and shall not, in any way, be deemed to insure the Developer, or any of its heirs,
LEXINGTON SITE B RDA 10-19-17
successors, assigns, tenants, and licensees, or any third party, against damage or injury of any kind at
any time.
B. Village Procedure. The Developer acknowledges and agrees that all notices, meetings,
and hearings have been properly given and held by the Village with respect to the approval of this
Agreement and agrees not to challenge such approval on the grounds of any procedural infirmity or of
any denial of any procedural right.
C. Indemnity. The Developer agrees to, and does hereby, hold harmless and indemnify the
Village, the Corporate Authorities, the Plan Commission, and all Village elected or appointed officials,
officers, employees, agents, representatives, engineers, and attorneys, from any and all claims that may
be asserted at any time against any of such parties in connection with (i) the Village's review and
approval of any plans for the Property or the Improvements; (ii) the issuance of any approval, permit,
certificate or acceptance for the Property or the Improvements; (iii) the development, construction,
maintenance or use of any portion of the Property, the Development or the Improvements; and (iv) the
collection and distribution of amounts paid by the Developer pursuant to this Agreement.
D. Defense Expense. The Developer shall, and does hereby agree to, pay all reasonable
expenses, including legal fees and administrative expenses, incurred by the Village in defending itself
regarding all the claims referenced in Subsection 12.0 of this Agreement.
SECTION 13. SUBDIVISION, SUCCESSORS IN INTEREST, AND TRANSFER OF OBLIGATIONS.
A. Future Subdivision of Property. Any proposed subdivision of the Property shall comply
in all respects with the Requirements of Law, including without limitation Section 12-8-1 et seq. of the
Unified Development Code, and may require an amendment to the Special Use Ordinance and the
Redevelopment Agreement. No part of the Property may be withdrawn from the Special Use Ordinance
or this Agreement nor transferred to another party, without express approval of the Corporate
Authorities.
B. Binding on Successors. All obligations assumed by the Developer under this Agreement
shall be binding upon Developer, its successors and assigns, and upon all the respective successor legal
or beneficial owners of all or any portion of the Property. To assure that all such successors, assigns and
successor owners have notice of this Agreement and the obligations created by it, the Developer shall:
1. Upon request, provide any consents or other documents necessary to authorize
the Village to record this Agreement with the Office of the Cook County Recorder of Deeds; and
2. Notify the Village in writing at least 30 days prior to any date upon which such
party transfers a legal or beneficial interest in any portion of the Property to any party not a
party to this Agreement; and
3. Require, prior to the transfer of all or any portion of the Property, or any legal or
equitable interest therein, except for individual residential units of the Development for which
the Village has issued Certificates of Occupancy, to any party not a party to this Agreement , the
transferee of the Property or of said portion of or interest in the Property to execute an
enforceable written agreement, in a form approved by the Village's Corporation Counsel in
which such party agrees to be bound by the provisions of this Agreement and to provide the
LEXINGTON SITE B RDA 10-19-17
Village, upon request, with such reasonable assurance of the financial ability of such transferee
to meet those obligations as the Village may require.
C. Limited Release of the Developer. Subject to the terms and conditions of this
Agreement, this Agreement is transferable and assignable only with the written consent of the Village
and upon a successor becoming bound to the personal obligation created in the manner provided in this
Agreement and providing the financial assurances required herein. In such event, the personal liability of
the Developer shall be released to the extent of the transferee's assumption of such liability. The failure
of the Developer to provide the Village with a fully executed copy of a Transferee Assumption
Agreement required above by the transferee to be bound by the provisions of this Agreement and, if
requested by the Village, with the transferee's proposed assurances of financial capability before
completing any such transfer shall result in the Developer remaining fully liable for all of the
Developer's and Developer's obligations under this Agreement but shall not relieve the transferee of its
liability for all such obligations as a successor to the Developer.
SECTION 14. TERMINATION OF AGREEMENT.
A. Termination due to Non-performance. In the event that (i) the sale of the
Property does not occur on or before 12:00 noon on December 31, 2017; or (ii) construction does not
commence on or before 12:00 noon on March 1, 2018, the Village shall have the right to terminate this
Agreement, by delivering to the other parties to this Agreement a notice of termination.
B. The provisions of this Agreement shall run with and bind the Property, and shall
inure to the benefit of, and be enforceable by, the Developer, the Village, and any of their respective
legal representatives, heirs, grantees, successors, and assigns, from the Effective Date of this
Agreement and until the last to occur of (i) the termination of tax increment financing district
established pursuant to the TIF Ordinances, and (ii) final resolution of any appeal, objection or other
proceeding that reduces the assessed valuation of the Property or the amount of ad valorem taxes paid
on the Property during the Term. Any rights of the Parties or causes of action accruing to the parties
during the Term of this Agreement shall survive its termination and be enforceable against the other
party or parties. In addition, notwithstanding anything to the contrary in this Section 16, the
Developer's indemnity and defense obligations as set forth in Section 12 of this Agreement, and
Sections 7.G. and 13, shall survive the termination of this Agreement.
SECTION 15. DEVELOPER'S REPRESENTATIONS, COVENANTS, AND WARRANTIES.
A. By the Developer. The Developer, and the persons executing this Agreement on
behalf of the Developer, represent, warrant, and covenant, as of the date of this Agreement,
that:
1. the Developer is an Illinois limited liability company duly organized, validly
existing, qualified to do business in Illinois;
2. the Developer has the right, power, and authority to enter into, execute, deliver
and perform this Agreement, and the Developer is in compliance with all
Requirements of Law, the failure to comply with which could affect the ability of
the Developer to perform its obligations under this Agreement;
LEXINGTON SITE B RDA 10-19-17
3. the execution, delivery and performance by the Developer of this Agreement
has been duly authorized by all necessary corporate action, and does not and
will not violate its organizational documents, as amended and supplemented,
any of the applicable Requirements of Law, or constitute a breach of or default
under, or require any consent under, any agreement, instrument, or document
to which the Developer is now a party or by which the Developer is now or may
become bound;
4. there are no actions or proceedings by or before any court, governmental
commission, board, bureau or any other administrative agency pending,
threatened, or affecting the Developer which would impair its ability to perform
under this Agreement;
5. the Developer, to the extent it elects to proceed with the construction of the
Development, shall apply for or cause to be applied for, and upon receipt,
thereafter, maintain or caused to be maintained, all government permits,
certificates, and consents (including, without limitation, appropriate
environmental approvals) necessary to conduct its business and to construct
and complete the Development and operate the Development as required by
this Agreement; and
6. the Developer has sufficient financial and economic resources to implement and
complete its obligations under this Agreement. The Developer has no
knowledge of any liabilities, contingent or otherwise, of Developer which might
have a material adverse effect upon its ability to perform its obligations under
this Agreement.
SECTION 16. VILLAGE'S REPRESENTATIONS, COVENANTS, AND WARRANTIES.
The Village represents, warrants and agrees as the basis for the undertakings on its part
contained in this Agreement that:
1. The Village is a municipal corporation duly organized and validly existing under
the law of the State of Illinois and has all requisite corporate power and
authority to enter into this Agreement.
2. The execution, delivery and the performance of this Agreement and the
consummation by the Village of the transactions provided for herein and the
compliance with the provisions of this Agreement: (i) have been duly authorized
by all necessary corporate action on the part of the Village, (ii) require no other
consents, approvals or authorizations on the part of the Village in connection
with the Village's execution and delivery of this Agreement, and (iii) shall not, by
lapse of time, giving of notice or otherwise result in any breach of any term,
condition or provision of any indenture, agreement or other instrument to
which the Village is subject.
3. To the best of the Village's knowledge, there are no proceedings pending or
threatened against or affecting the Village or the Property in any court or before
any governmental authority that involves the possibility of materially or
LEXINGTON SITE B RDA 10-19-17
adversely affecting the ability of the Village to perform its obligations under this
Agreement.
SECTION 17. ENFORCEMENT.
The parties to this Agreement may, in law or in equity, by suit, action, mandamus or any other
proceeding, including without limitation, specific performance, enforce or compel the performance of
this Agreement: provided, however, that the Developer agrees that it will not seek, and does not have
the right to seek, to recover a judgment for monetary damages against the Village or any elected or
appointed officials, officers, employees, agents, representatives, engineers, or attorneys thereof, on
account of the negotiation, execution, or breach of any of the terms and conditions of this Agreement.
In addition to every other remedy permitted by law for the enforcement of the terms of this Agreement,
the Village shall be entitled to withhold the issuance of building permits or certificates of occupancy for
any building or structures within the Property at any time when the Developer or Developer has failed
or refused to meet fully any of its obligations under this Agreement after notice and an opportunity to
cure as provided in Section 18. In the event of a judicial proceeding brought by one party to this
Agreement against another party to this Agreement, the prevailing party in such judicial proceeding
shall be entitled to reimbursement from the unsuccessful party of all costs and expenses, including
reasonable attorneys' fees, incurred in connection with such judicial proceeding.
SECTION 18. DEFAULT.
A. Events of Default by the Developer. The following shall be Events of Default with
respect to this Agreement:
1. A statement or representation by the Developer in this Agreement, or in any
certificate, notice, demand or request made and delivered to the Village that is
untrue or incorrect in any material respect as of the date made; provided,
however, that such default shall constitute an Event of Default only if the
Developer does not remedy the default, within 15 days after written notice
from the Village.
2. Default by the Developer for a period of 15 days after written notice thereof in
the performance or breach of any covenant, warranty, or obligation contained
in this Agreement, including without limitation any covenant concerning the
existence, structure or financial condition of the Developer; provided, however,
that such default or breach shall not constitute an Event of Default if such
default cannot be cured within said 15 days and the Developer, within said 15
days, initiates and diligently pursues appropriate measures to remedy the
default and in any event cures such default within ninety (90) days after such
notice.
3. The entry of a decree or order for relief by a court having jurisdiction in the
premises in respect of the Developer in an involuntary case under the federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
federal or state bankruptcy, insolvency or other similar law, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Developer for any substantial part of its property, or ordering the
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winding -up or liquidation of its affairs and the continuance of any such decree
or order unstayed and in effect for a period of 60 consecutive days.
4. The commencement by the Developer of a voluntary case under the federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
federal or state bankruptcy, insolvency or other similar law, or the consent by
the Developer to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or similar official) of the
Developer or of any substantial part of the Property, or the making by any such
entity of any assignment for the benefit of creditors or the failure of the
Developer generally to pay such entity's debts as such debts become due or the
taking of action by the Developer in furtherance of any of the foregoing, or a
petition is filed in bankruptcy by others.
5. Failure to have funds to meet the Developer's obligations.
6. Sale, assignment, or transfer of the Property except in accordance with the
transferee assumption provisions in Section 13 of this Agreement.
7. Change in the organizational status of the Developer except in accordance with
the transferee assumption provisions in Section 13 of this Agreement.
8. The Developer abandons the development and construction on the Property.
Abandonment shall be deemed to have occurred when, after the
commencement of construction on the Property as contemplated in Section 7.8
of this Agreement, the construction work stops for more than 60 days for any
reason other than Uncontrollable Circumstances. Neither the failure of the
Developer to secure any approvals required for the Development or
construction, nor the failure of the Developer to deliver the evidence of
construction financing required pursuant to Section 7.B of this Agreement shall
be valid defenses to abandonment.
9. The Developer fails to comply with the Requirements of Law in relation to the
construction and maintenance of the buildings contemplated by this
Agreement.
B. Events of Default by the Village. The following shall be Events of Default with
respect to this Agreement:
1. If any material representation made by the Village in this Agreement, or in any
certificate, notice, demand or request made by a party hereto, in writing and
delivered to the Developer pursuant to or in connection with any of said
documents, shall prove to be untrue or incorrect in any material respect as of
the date made; provided, however, that such default shall constitute an Event of
Default only if the Village does not remedy the default, within 15 days after
written notice from the Developer.
2. Default by the Village in the performance or breach of any material covenant
contained in this Agreement concerning the existence, structure or financial
LEXINGTON SITE B RDA 10-19-17
condition of the Village; provided, however, that such default or breach shall
constitute an Event of Default if the Village does not, within 15 days after
written notice from the Developer, initiate and diligently pursue appropriate
measures to remedy the default.
C. Remedies for Default. In the case of a party's Event of Default under this Agreement:
1. The defaulting party shall, upon written notice from the non -defaulting party,
take immediate action to cure or remedy such Event of Default. If, in such case,
any monetary Event of Default is not cured, or if in the case of a non -monetary
Event of Default, action is not taken or not diligently pursued, or if action is
taken and diligently pursued but such Event of Default or breach shall not be
cured or remedied within a reasonable time, but in no event more than 30
additional days unless otherwise provided for in this this agreement or
extended by mutual agreement, the non -defaulting party may institute such
proceedings as may be necessary or desirable in its opinion to cure or remedy
such default or breach, including, but not limited to, proceedings to compel
specific performance of the defaulting party's obligations under this Agreement.
2. In the case of an Event of Default by the Developer occurring and continuing
after the expiration of any applicable notice and cure period set forth in this
Agreement, the Village may, and without prejudice to any other rights and
remedies available to the Village, exercise all rights available to it by law and
equity and any or all the following options:
a) if no building permits have been issued for the Development, the
Village may require Site Restoration in accordance with the terms and
provisions of Section 7.D of this Agreement, and the Developer shall
transfer title back to the Village, and the Developer shall return any
payments or credits given to it from the Village for the Development
and reimburse the Village for any costs or expenses it has incurred or
paid due to the Developer's Special Use application or otherwise
relating to the Development;
b) if one or more building permits have been issued for the
Development, the Village may require demolition, removal, and
restoration work in accordance with the terms and provisions of Section
7.D of this Agreement, and the Developer shall transfer title back to the
Village, and the Developer shall return any payments or credits given to
it from the Village for the Development and reimburse the Village for
any costs or expenses it has incurred or paid due to the Developer's
Special Use application or otherwise relating to the Development;
c) The Corporate Authorities may initiate the process for revocation of
the Zoning and Special Use Ordinance, in accordance with the provisions
of that Ordinance. In such case, revocation shall be without protest or
objection by the Developer.
LEXINGTON SITE B RDA 10-19-17
3. In case the Village shall have proceeded to enforce its rights under this
Agreement and such proceedings shall have been discontinued or abandoned
for any reason, then, and in every such case, the Developer and the Village shall
be restored respectively to their several positions and rights hereunder, and all
rights, remedies and powers of the Village shall continue as though no such
proceedings had been taken.
SECTION 19. GENERAL PROVISIONS.
A. Notice. Any notice or communication required or permitted to be given under this
Agreement shall be in writing and shall be delivered: (i) personally, (ii) by a reputable overnight courier,
(iii) by certified mail, return receipt requested, and deposited in the U.S. Mail, postage prepaid. Unless
otherwise expressly provided in this Agreement, notices shall be deemed received upon the earlier of (a)
actual receipt; (b) one business day after deposit with an overnight courier as evidenced by a receipt of
deposit; or (c) three business days following deposit in the U.S. mail, as evidenced by a return receipt. By
notice complying with the requirements of this Section, each party shall have the right to change the
address or the addressee, or both, for all future notices and communications to such party, but no
notice of a change of addressee or address shall be effective until actually received.
Notices and communications to Village shall be addressed to, and delivered at, the following
address:
Village of Morton Grove
6101 Capulina Ave
Morton Grove, IL 60053
Attention: Village Administrator
With a copy to:
Village of Morton Grove
6101 Capulina Ave
Morton Grove, IL 60053
Attention: Corporation Counsel
Notices and communications to the Developer shall be addressed to, and delivered at, the
following addresses:
Developer,
Lexington Homes LLC
1731 N. Marcey Street
Suite 200
Chicago, IL 60614
Attention: Mr. Jeff Compton
With a copy to:
Ash, Anos, Freedman & Logan, L.L.C.
77 W. Washington Street, Suite 1211
LEXINGTON SITE B RDA 10-19-17
Chicago, Illinois 60602
Attention: Lawrence M. Freedman
B. Time of the Essence. Time is of the essence in the performance of all terms and
provisions of this Agreement.
C. Entire Agreement. This Agreement constitutes the entire agreement between the
parties and supersedes all prior agreements and negotiations between the parties, whether written or
oral, relating to the subject matter of this Agreement.
D. Exhibits. Exhibits A through E attached to this Agreement are, by this reference,
incorporated in and made a part of this Agreement. In the event of a conflict between an exhibit and the
text of this Agreement, this Agreement shall control.
E. Amendments and Modifications. No amendment or modification to this Agreement
shall be effective unless and until it is reduced to writing and approved and executed by all parties to
this Agreement in accordance with all applicable statutory procedures.
F. Governing Law. This Agreement shall be governed by, and enforced in accordance with,
the internal laws, but not the conflicts of laws rules, of the State of Illinois.
G. Changes in Laws. Unless otherwise explicitly provided in this Agreement, any reference
to any Requirements of Law shall be deemed to include any modifications of, or amendments to such
Requirements of Law as may, from time to time, hereinafter occur.
H. Non -Waiver. The Village shall be under no obligation to exercise any of the rights
granted to it in this Agreement. The failure of the Village to exercise at any time any right granted to the
Village shall not be deemed or construed to be a waiver of that right, nor shall the failure void or affect
the Village's right to enforce that right or any other right.
1. Severability. It is hereby expressed to be the intent of the parties hereto that should
any provision, covenant, agreement, or portion of this Agreement or its application to any person,
entity, or property be held invalid by a court of competent jurisdiction, the remaining provisions of this
Agreement and the validity, enforceability, and application to any person, entity, or property shall not
be impaired thereby, but the remaining provisions shall be interpreted, applied, and enforced so as to
achieve, as near as may be, the purpose and intent of this Agreement to the greatest extent permitted
by applicable law.
J. No Third Party Beneficiaries. No claim as a third party beneficiary under this Agreement
by any Person shall be made, or be valid, against the Village, or the Developer.
SIGNATURE PAGES TO FOLLOW
LEXINGTON SITE B RDA 10-19-17
IN WITNESS WHEREOF, the parties hereto have affixed their signatures the date and year first
above written.
ATTEST:
By:
Eileen Scanlon Harford, Village Clerk
STATE OF ILLINOIS
) SS.
COUNTY OF COOK
VILLAGE OF MORTON GROVE, an Illinois
home rule municipal corporation
By:
Daniel P. DiMaria, Village President
The foregoing instrument was acknowledged before me on day of 2017, by Daniel P.
DiMaria, the Village President of the VILLAGE OF MORTON GROVE, an Illinois home rule municipal
corporation, and by Eileen Scanlon Harford, the Village Clerk of said municipal corporation.
Signature of Notary
SEAL
My Commission expires:
LEXINGTON SITE B RDA 10-19-17
IN WITNESS WHEREOF, the parties hereto have affixed their signatures the date and year first above
written.
ATTEST:
By:
Its:
STATE OF ILLINOIS
SS
COUNTY OF COOK
Lexington Homes, LLC, an Illinois limited liability
company
By:
Its:
On 2017, ,the
of Lexington Homes, LLC, an Illinois limited liability company, which
individual is personally known to me, appeared before me and acknowledged that he signed the
foregoing instrument for and on behalf of said limited liability company as his free and voluntary act and
as the free and voluntary act of said company for the uses and purposes herein mentioned.
Signature of Notary
SEAL
My Commission expires:
LEXINGTON SITE 13 RDA 10-19-17
LIST OF EXHIBITS
Exhibit A
Exhibit B
Legal Description of the Property
Special Use Ordinance
LEXINGTON SITE B RDA 10-19-17
Legislative Summary
Resolution 17-42
AUTHORIZING THE APPROVAL OF AND FUNDING FOR AN AGREEMENT BETWEEN
MORTON GROVE-NILES WATER COMMISSION AND ALBRECHT ENTERPRISES, INC.
FOR DEMOLITION AND ASBESTOS ABATEMENT AND REMOVAL SERVICES
AT 7900 NAGLE AVENUE, MORTON GROVE, ILLINOIS
Introduced:
Purpose:
Background:
Departs Affected:
Fiscal Impact:
Source of Funds:
Work Impact:
Admin
Recommend:
First Reading:
Special Consider
or Requirements:
October 23, 2017
This Resolution will authorize an Agreement with Albrecht Enterprises, Inc. to provide
demolition, asbestos abatement, and building removal services for the address commonly
known as 7900 Nagle Avenue in preparation of a pump station for the MGNWC..
On October 5, 2017, the Morton Grove -Niles Water Commission (MGNWC) issued a
Request for Proposals to provide services relating to the demolition, asbestos abatement,
and building removal as well as an underground storage tank at 7900 Nagle Avenue,
Morton Grove, Illinois. Albrecht Enterprises submitted the lowest bid for these services;
however their bid did not include the removal of the underground storage tank. The
MGNWC environmental consultant, Northstar Consultants, Inc., approved the
qualifications of Albrecht Enterprises and recommended the MGNWC accept this bid.
The MGNWC negotiated a contract for these services subject to approval by the Villages
of Morton Grove and Niles. This resolution will approve the contact and authorize
payment of the Village's share for this work.
Legal, Administration, and Finance Departments
Albrecht's fees for this service will be $89,400. The Village's share will be one-half of
the total expenditures which will be paid equally by the Villages of Morton Grove and
Niles.
The Village Administrator, Finance Director, and Corporation Counsel will oversee the
implementation of the Agreement.
Approval as presented.
Not required.
None.
Respectfully submitted:
Prepared by:
Teresa Ho
nski,
man
llage Adminis
n, Corporation Counsel
Reviewed by:
Hanna Sullivan, Finance Director
RESOLUTION 17-42
AUTHORIZING THE APPROVAL OF AND FUNDING FOR AN AGREEMENT BETWEEN
MORTON GROVE-NILES WATER COMMISSION AND ALBRECHT ENTERPRISES INC.
FOR DEMOLITION AND ASBESTOS ABATEMENT AND REMOVAL SERVICES
AT 7900 NAGLE AVENUE MORTON GROVE, ILLINOIS
WHEREAS, the Village of Morton Grove (Village), located in Cook County, Illinois, is a home
rule unit of government under the provisions of Article 7 of the 1970 Constitution of the State of
Illinois, can exercise any power and perform any function pertaining to its government affairs,
including but not limited to the power to tax and incur debt; and
WHEREAS, on or about October 5, 2017, the Morton Grove -Niles Water Commission
(MGNWC), issued a Request for Proposals, entitled " Demolition, Asbestos Abatement and
Underground Storage Tank Removal Specifications and Request for Bid" (the MGNWC RFP), to
provide services relating to the demolition, asbestos abatement, and removal of the building, as well as
the removal of an underground storage tank at 7900 Nagle Avenue, Morton Grove, Illinois; and
WHEREAS, Albrecht Enterprises, Inc., submitted the lowest bid for the demolition, asbestos
abatement, and removal of the building at 7900 Nagle Avenue, Morton Grove, Illinois (the
"Services"). Albrecht Enterprises, Inc.'s bid did not include services relating to the underground
storage tank; and
WHEREAS, Albrecht Enterprises, Inc. was deemed qualified by the MGNWC's environmental
consultant, True North Consultants, Inc. to provide the Services; and
WHEREAS, MGNWC and Albrecht Enterprises, Inc. have negotiated an agreement for the
Services for the not to exceed price of $89,400 pursuant to terms and conditions in substantially the
same as the agreement attached hereto as Exhibit A and made a part hereof (the "Agreement"); and
WHEREAS, MGNWC intends to retain Albrecht Enterprises, Inc. to perform the Services in
accordance with the terms of the Agreement; and
WHEREAS, pursuant to Intergovernmental Agreement between the Villages of Morton Grove
and Niles for the establishment and operation of the Morton Grove -Niles Water Commission approved
by the Corporate Authorities of the Village of Morton Grove pursuant to Ordinance 17-05, both
Village Boards must approve any expenditure of the MGNWC over $40,000.00; and
WHEREAS, the President and Board of Trustees of the Village of Morton Grove wish to
approve the Agreement and authorize the MGNWC to pay Albrecht Enterprises Inc., up to $89,400 for
the Services in accordance with the Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF
TRUSTEES OF THE VILLAGE OF MORTON GROVE, COOK COUNTY, ILLINOIS AS
FOLLOWS:
SECTION 1: The Corporate Authorities do hereby incorporate the foregoing WHEREAS
clauses into this Resolution as though fully set forth therein thereby making the findings as
hereinabove set forth.
SECTION 2: The President and Board of Trustees of the Village of Morton Grove hereby
authorize the approval of an Agreement between the MGNWC and Albrecht Enterprises Inc., and the
funding of payment by the MGNWC to Albrecht Enterprises Inc. in the not to exceed amount of
$89,400.00 for the purposes set forth in the Agreement which is attached hereto as Exhibit A which
may be modified as to non -substantive and non-financial terms approved by the Village Administrator
and Corporation Counsel, and authorize the payment of the Village's share of the cost for these
services.
SECTION 3: This Resolution shall be in full force and effect upon its passage and approval.
PASSED THIS 23`h DAY OF OCTOBER 2017
Trustee Grear
Trustee Minx
Trustee Ramos
Trustee Thill
Trustee Travis
Trustee Witko
APPROVED BY ME THIS 23`h DAY OF October 2017
ATTESTED and FILED in my office
This 24`h DAY OF October 2017
Eileen Scanlon Harford, Village Clerk
Village of Morton Grove
Cook County, Illinois
Daniel P. DiMaria, Village President
Village of Morton Grove
Cook County, Illinois
2
Exhibit "A"
AGREEMENT BETWEEN MORTON GROVE-NILES WATER COMMISSION AND
ALBRECHT ENTERPRISES INC.
FOR DEMOLITION AND ASBESTOS ABATEMENT AND REMOVAL SERVICES
AT 7900 NAGLE AVENUE MORTON GROVE, IL
3
AGREEMENT BETWEEN MORTON GROVE-NILES WATER COMMISSION AND ALBRECHT ENTERPRISES
INC.
FOR DEMOLITION AND ASBESTOS ABATEMENT AND REMOVAL SERVICES
AT 7900 NAGLE AVENUE MORTON GROVE, IL
This agreement ("Agreement") is made this _ day of , 2017, by and between Albrecht
Enterprises Inc., an Illinois corporation, whose mailing address is 1684 E. Oakton Street, Des Plaines,
Illinois 60018 (the "Contractor") and the Morton Grove -Niles Water Commission, whose mailing address
is 1000 Civic Center Drive, Niles, Illinois 60714 ("Commission" or the "MGNWC"). The Contractor and the
Commission are at times referred to herein individually as a "Party" and collectively as the "Parties."
Morton Grove and Niles are at times referred to collectively as the "Villages".
RECITALS
WHEREAS, on October 5, 2017 the MGNWC issued an RFP, and on October 11, 2017 the
MGNWC issued an addendum to this RFP for demolition, asbestos abatement and removal services at
property owned by the MGNWC commonly known as 7900 Nagle Avenue Morton Grove, IL; and
WHEREAS, Albrecht Enterprises Inc. (the "Contractor") submitted the lowest qualified bid for these
service; and
The MGNWC and the Contractor further negotiated and refined the final Scope of Services that are
to be performed by the Contractor under this Agreement attached hereto as Exhibit A and made a part
hereof (the "Services"), and
WHEREAS, the MGNWC agrees to retain the Contractor to perform the Services in accordance
with the terms of this Agreement; and
WHEREAS, the Contractor agrees to perform the Services in accordance with the terms of this
Agreement.
NOW, THEREFORE, in consideration of the recitals, mutual covenants and representations set
forth in this Agreement, the Parties mutually agree that the Contractor shall perform the Services
described below, and the MGNWC shall pay the Contractor for said performance, under the following
terms and conditions:
SECTION 1. INCORPORATION AND DEFINITIONS.
Each of the above Whereas paragraphs are incorporated into this Section 1 as material provisions of this
Agreement.
Whenever used in this Agreement, the following terms shall have the meanings indicated and the
singular shall be read to include the plural and vice versa, and pronouns stated herein shall be construed
to include all genders.
A. The term"Agreement" includes the Recitals set forth above, which are incorporated into Section
1 of this Agreement, and shall mean this Agreement and its attached Exhibits as entered into by
the Contractor and MGNWC setting forth the terms and conditions governing the Services.
1
B. The term "MGNWC Affiliates" means MGNWC's and the Villages of Morton Grove and Niles'
former, current and future appointed officials, officers, commissioners, employees, engineers,
attorneys, Contractors, authorized representatives and volunteers.
C. The term "Scope of Work", "Services" or "Work" means the services and work included in Scope of
Services attached hereto as Exhibit A.
H. The terms "sub -consultant" and "sub -contractor" mean the person, independent contractor,
partnership, corporation, joint venture or other business entity (including its employees, agents or
others performing or supplying on its behalf, or at its direction) having a contract with the Contractor
for the performance of any portion of the Services.
The term "MGNWC Working Group" means the respective staff and Contractors employed by
Morton Grove, Niles and the Commission who are working on the Project.
SECTION 2. TERM OF AGREEMENT.
This Agreement shall be effective on the date that the last signatory executes this Agreement, which date
shall be inserted on page 1 of this Agreement, and shall terminate upon the completion by the Contractor
and acceptance by the MGNWC of the Services, which shall occur or before November 22, 2017 (the
"Completion Date"), unless this Agreement is terminated earlier by any Party, or by agreement of the
Parties, in writing, to extend the Completion Date.
SECTION 3. SCOPE OF SERVICES
A. Services; Non -Exclusive Relationship. The Contractor agrees to perform the Services to complete the
Scope of Work in accordance with the terms and conditions of this Agreement. The MGNWC, in its
collective discretion, is also free to assign all or any portion of the Services to other vendors or
Contractors, upon ten (10) calendar days written notice to the Contractor's Primary Representative,
and the Compensation of the Contractor shall be reduced on an equitable basis. Unless otherwise
indicated by the MGNWC, the primary contact point for the MGNWC and the MGNWC Working
Group ("MGNWC Representative") to provide direction to the Contractor under this Agreement shall
be:
Bill Balling
WRB, LLC
Cellular Phone: (847) 863-7101
Office Phone: (847) 398-8399
Email: bill@wrblic.com
The Contractor is directed to address all technical questions to the MGNWC's Technical Representative who
shall be:
Ryan M. LaDieu, P.E.
True North Consultants, Inc.
P: (630) 717-2880 M: (224) 387-6063 F: (630) 689-5881
Email: rladieu@consulttruenorth.com
B. Mutual Cooperation. The MGNWC agrees to cooperate with the Contractor in the performance
of the Services, including meeting with the Contractor on an as -needed basis and providing the
Contractor with such "Confidential Information" (as defined in Section 10 below) and non -
confidential information that the MGNWC may have that may be relevant and helpful to the
2
Contractor's performance of the Services. These documents shall be furnished to the Contractor
without cost or expense to the Contractor. The Contractor agrees to cooperate with the
MGNWC in the performance and completion of the Services, including meeting with the
MGNWC, the MGNWC Representative and/or the MGNWC Working Group on an as-needed
basis, and with any other Contractors engaged by the MGNWC.
C. Contractor's Personnel and Representative.
(1) Primary Representative. The Contractor shall designate XXX, who shall be available during
normal business hours (Monday through Friday from 8:00 a.m. CST to 5:00 p.m. CST) and
who shall serve as the Contractor's primary authorized representative throughout the Term
of this Agreement. This "Primary Representative" shall be readily available to respond to
communications from the MGNWC and shall be primarily responsible for performing the
Services as requested by the MGNWC. The Primary Representative shall receive requests
from the MGNWC to perform the Services and shall have full authority to execute the
directions of the MGNWC, without delay, and promptly supply any necessary labor,
equipment or incidentals to do so. The Primary Representative shall, in the case of any off -
hours emergency, be readily accessible and available for a quick response. The Contractor
shall immediately notify the MGNWC in writing of any change in the identity and telephone
number of the Contractor's Primary Representative. The Primary Representative shall not
be changed by the Contractor without the MGNWC's prior written approval. If the Primary
Representative fails to perform the Services to the satisfaction of the MGNWC, then the
Contractor shall immediately replace the Primary Representative with a new person with
comparable experience and knowledge.
(2) Availability of Personnel. The Contractor shall provide adequate personnel necessary to
complete the Services. The Contractor shall notify the MGNWC as soon as practicable prior
to terminating the employment of, reassigning or receiving notice of the resignation of any
personnel assigned to regularly perform the Services. The Contractor shall have no claim for
damages and shall not bill the MGNWC for additional time and materials charges as the
result of any portion of the Services which must be duplicated or redone due to such
termination or for any delay or extension of time in performing the Services as a result of
any such termination, reassignment or resignation.
(3) Approval and Use of Sub-consultants / Sub-contractors. The Contractor shall perform the
Services with its own personnel and under the management, supervision and control of its
own organization, unless otherwise approved in advance and in writing by the MGNWC. All
sub-consultants and sub-contractors used by the Contractor shall be acceptable to and
approved in advance by the MGNWC. The MGNWC's approval of any sub-consultant or sub-
contractor shall not relieve the Contractor of full responsibility and liability for the provision,
performance and completion of the Services as required by this Agreement, including the
agreed upon compensation for the Services. All Services performed under any sub-contract
shall be subject to each of the terms of this Agreement, in the same manner as if performed
by employees of the Contractor. Every subcontract that the Contractor enters into in regard
to the performance of_the_Services_ under _this Agreement -shallinclude an-express provision - -
binding the sub-consultant or sub-contractor to all of the terms of this Agreement, and
specifically noting the obligations in this Section 3.C(3).
(4) Removal of Personnel and Sub-consultants / Sub-contractors. If any of Contractor's
personnel or any sub-consultant or sub-contractor fails to perform the Services in a
manner satisfactory to the MGNWC and consistent with commonly accepted industry
3
standards and professional practices, the Contractor shall immediately, upon notice
from the MGNWC, remove and replace such personnel or sub -consultant or sub-
contractor. The Contractor shall have no claim for damages, for compensation more
than the amount contained in this Agreement, or for a delay or extension of time of
performance because of any such removal or replacement.
(5) Financial Ability to Perform. The Contractor states that it is financially solvent, has the
financial resources necessary, has sufficient experience and competence, and has the
necessary capital, facilities, organization and staff necessary to provide, perform and
complete the Services set forth in this Agreement.
D. PROJECT TIMING. Work shall begin and shall be completed as specified in the Scope of Services.
Time is of the essence to the contract. Should the Contractor fail to complete the work on or
before the Completion Date or within such extended time as may have been allowed, the
Contractor shall be liable and pay to the Village the amount of $300 per calendar day, not as a
penalty but as liquidated damages, for each day of overrun in the contract time or such
extended time as may have been allowed. The liquidated damages for failure to complete the
contract on time are approximate, due to the impracticality of calculating and proving actual
delay costs. This schedule of deductions establishes the cost of delay to account for
administration, engineering, inspection, and supervision during periods of extended and delayed
performance. The costs of delay represented by this schedule are understood to be fair and
reasonable estimate of the costs that will be borne by the MGNWC during extended and
delayed performance by the Contractor of the Work or the correction of Work improperly
completed, or repair of Work damaged because of the Contractor. The liquidated damage
amount specified will accrue and be assessed until completion of the total physical Work of the
Agreement even though the Work may be substantially complete. The MGNWC will deduct
these liquidated damages from any monies due or to become due to the Contractor from the
MGNWC.
E. Notice to Proceed with Services. The Contractor shall commence the Services immediately upon
execution of this Agreement. ("Commencement Date"). The Contractor shall diligently and
continuously work on the Services until the completion of the Services or upon the termination
of this Agreement, but in no event later than the Completion Date. The Parties may mutually
agree in writing to modify the Completion Date. Delays caused by the MGNWC shall extend the
Completion Date in equal proportion to the delay caused by the MGNWC. If the Contractor
performs any Services and incurs any expenses in furtherance of Scope of Services prior to
receiving a written notice to proceed from the MGNWC, the Services are performed and the
expenses are incurred at the Contractor's sole risk, and such Services and expenses are not
authorized for payment or reimbursement, unless and until a written notice to proceed is issued
by the MGNWC. Upon authorization, the actual, documented approved Services performed
prior to the issuance of the MGNWC notice to proceed shall be paid by the MGNWC as part of
the "not to exceed" Fee provided by this Agreement.
F. Suspension of Services. The MGNWC, at any time and for any reason, may suspend work on any
or all Services by issuing a written work suspension notice to the Contractor. The Contractor
must stop the performance of all Services within the scope of the suspension notice until the
MGNWC directs the Contractor in writing to resume performance of the Services.
4
G. Termination before Completion of Services. If the MGNWC decides not to proceed with the
Project or any phase of the Project for any reason, this Agreement shall terminate upon written
notice to the Contractor issued by the MGNWC advising of the termination of this Agreement. In
such case, the MGNWC shall be liable to the Contractor only for payment of all actual,
completed, documented Services through the date of termination. The Contractor agrees to
waive any and all claims and causes of action for any other damages or losses of any kind that
could be brought relative to the termination of this Agreement by the MGNWC based on the
MGNWC's decision not to proceed with any part of the Scope of Services.
H. Final Acceptance. The Services shall be considered complete on the date of final written
acceptance by the MGNWC Representative, which acceptance shall not be unreasonably
withheld or delayed.
Sub-consultant/Sub-contractor List. The Contractor shall maintain an updated list of sub-
consultant/sub-contractors who are working on the Project and shall provide the list and any
updates to the list to the MGNWC Representative. A copy of the initial sub-consultant/sub-
contractor list shall be attached hereto as Exhibit B and made a part hereof; and any updated
version(s) of the list shall be incorporated herein by reference.
SECTION 4. EXHIBITS.
The following exhibits are either incorporated by reference or attached to and made part of this
Agreement as noted. In the event of a conflict between an Exhibit and the text of this Agreement, the text of
this Agreement shall control.
Exhibit A Scope of Services
Exhibit B Sub-consultant/Sub-contractor List
Exhibit C Compensation and Fee Schedule for Services ("Fee Schedule")
Exhibit D Services Change Order (Form)
Exhibit E - Performance and Payment Bond (Form)
Exhibit F Insurance Requirements for the Contractors, Sub -consultants and Sub-
contractors
Exhibit G Contract Clauses Required by the Illinois Environmental Protection
Agency ("IEPA") for Incorporation into this Agreement
SECTION 5. INDEPENDENT CONTRACTOR STATUS.
A. Relationship of the Parties. The Contractor's role, and the role of its employees and its sub -
consultants and sub -contractors, with respect to the performance of the Services, is solely that
of an independent contractor. The following terms and conditions are operative and applicable to
the Parties under this Agreement:
(1) Non -Exclusive Contractual Arrangement. The Contractor and its employees and its sub -
consultants and sub -contractors are retained under a non-exclusive contractual
5
arrangement to perform the Services only for the limited purposes set forth in this
Agreement. No provision of this Agreement or subsequent conduct between the Parties
shall be construed to create a relationship between the Parties as that of "employer-
employee," "principal and agent," "partners" or "participants in a joint venture"
(2) No Authority to Bind. The Contractor and its employees and its sub -consultants and
sub -contractors shall have no authority or right to enter into any contract or incur any
debt or liability of any nature in the name of, or on behalf of the MGNWC or Morton
Grove or Niles.
(3) Not Employees of MGNWC, Morton Grove or Niles. The Contractor and its employees
and its sub -consultants and sub -contractors serve only as independent contractors of
the MGNWC, and not as employees of the MGNWC, Morton Grove or Niles, for all
purposes, including, but not limited to, the application of the Fair Labors Standards Act
minimum wage and overtime payments, including any similar Illinois wage laws, the
Federal Insurance Contribution Act, the Social Security Act, the Federal Unemployment
Tax Act, the Illinois Unemployment Insurance Act (820 ILCS 405/1 et seq.), and the
Illinois Worker's Compensation and Occupational Diseases Act (820 ILCS 305/1, et
seq.). Therefore, neither federal nor state nor local income tax nor payroll tax of any
kind, nor any other withholding, shall be withheld or paid by the MGNWC, Morton
Grove, Niles or Cook County on behalf of the Contractor, and its employees and its
sub -consultants and sub -contractors. Nothing in this Agreement shall be construed as
MGNWC, Morton Grove or Niles requiring or acquiring or incurring any liability for
Worker's Compensation, FICA, withholding tax, unemployment compensation or any
other payment which would be required to be paid by the MGNWC, Morton Grove or
Niles if the MGNWC and the Contractor, and its employees and its sub -consultants and
sub -contractors, were engaged in an "employer-employee" relationship.
(4) Payment of Taxes. The Contractor and its employees and its sub -consultants and sub-
contractors are responsible, pursuant to applicable law, for payment of any income
and employment taxes or any other taxes of any kind arising from their receipt of
compensation under this Agreement.
(5)
Ineligible for MGNWC/Village Employment Benefits. The Contractor and its employees
and its sub -consultants and sub -contractors agree that they shall not be entitled to
receive or to participate in any employee benefits or health, life or professional liability
insurance programs or other employee benefit programs or pension plans or
retirement plans available to part-time or full-time MGNWC, Morton Grove or Niles or
employees, and agree that they are ineligible to file a claim for unemployment
compensation benefits or for Worker's Compensation benefits against MGNWC,
Morton Grove or Niles. The Contractor and its employees and its sub -consultants and
sub -contractors agree not to file any such claims in the event this Agreement is
terminated or if they are injured or become ill as a result of performing any Services
under this Agreement.
(6) Autonomy. The Contractor and its employees and its sub -consultants and sub-
contractors are free to use their time, energy and skill when they are not performing
the Services for the MGNWC on other endeavors, as they deem appropriate and
advisable.
6
(7) Discretion Over Performance and Delivery of Services. The MGNWC shall have no
control over the timing, means and way the Services are to be performed by the
Contractor, and its employees or its sub -consultants and sub -contractors. The
Contractor is responsible for directing and controlling the performance and
completion of the Services in a timely manner that meets MGNWC's requested
schedule and the Completion Date.
(8) Certification, Training and Licensing. The Contractor represents that its employees,
sub -consultants and sub -contractors: (a) are fully qualified, licensed, registered,
trained and capable within their respective disciplines in accordance with applicable
laws, regulations and industry standards, and (b) currently hold, and shall maintain
throughout the Term of this Agreement, all required licenses, registrations, permits
and certificates applicable to the their performance of the Services. To the extent that
equipment is being utilized in the providing of the Services, the Contractor and its
employees and its sub -consultants and sub -contractors shall use their own equipment
and tools of the trade, and be qualified and authorized to operate same.
(9) Applicable Regulations. The Contractor, and its employees and its sub -consultants and
sub -contractors, shall be familiar with and comply with the applicable Federal, State,
County and local codes, ordinances and regulations, and shall use, apply and enforce
the same when performing the Services.
(10) Injury to Reputation. The Contractor, and its employees and its sub -consultants and
sub -contractors, shall not act in a manner that might injure the reputation of MGNWC
Affiliates.
SECTION 6. COMPENSATION AND METHOD OF PAYMENT.
A. Fee Amount.
(1) Fee Schedule. The MGNWC agrees to pay for any requested, fully completed and
accepted Services rendered by the Contractor in accordance with and not to exceed the
Compensation and Fee Schedule attached hereto as Exhibit C of this Agreement. The
"not to exceed" Fee for the Basic Services shall be $89,400 (the "Not -To -Exceed Fee").
(2) Out -of -Pocket Costs. The Contractor, at its sole cost, shall pay all other expenses
related to the performance of this Agreement including, but not limited to, travel,
printing, reproduction, mailing, insurance premiums, licensing fees, fuel, overhead,
administrative costs, delivery charges, and all costs associated with the acquisition and
maintenance of vehicles and equipment. The Contractor may request reimbursement
of these out-of-pocket costs, including the Reimbursable Costs shown in Exhibit C,
upon proper documentation, but such reimbursement shall be paid as part of the
payment of and within the dollar amount of the Not -To -Exceed Fee.
Scope of Fees. Except for the $2,35000 for the Cook County Notification of Asbestos
Abatement Activities filing fee of $2,350.00 which shall be paid by the MGNWC, the
amounts set forth in the Compensation and Fee Schedule include all applicable Federal,
State, County and Village taxes of every kind and nature applicable to the Services, as well
as all taxes, contributions and premiums for unemployment insurance, old age or
retirement benefits, pensions, annuities or similar benefits, and all costs, royalties and fees
(3)
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arising from the use on, or the incorporation into, the Services, of patented or
copyrighted equipment, materials, supplies, tools, appliances, devices, processes or
inventions. All claims or rights to claim additional compensation due to the payment
by the Contractor of any such tax, contribution, premium, cost, royalty or fee are the
sole responsibility of the Contractor, and any claim or demand from any person that
the MGNWC or Morton Grove or Niles pay such taxes, contributions, premiums, costs,
royalties or fees are waived and released and shall be indemnified by the Contractor.
B. Invoices and Payment.
(1) Frequency and Content. The Contractor shall submit invoices to the MGNWC monthly
to the MGNWC Representative. Each invoice must be accompanied by receipts,
vouchers and other documents as necessary to reasonably establish the Contractor's
right to payment of the Compensation stated in the invoice. In addition, each invoice
must include employee classifications and employee designations (e.g., initials), rates
per hour, and hours worked by each employee classification. If the Services are to be
performed in separate phases, then, for each phase, the invoice must also include: the
total amount billed in the current phase(s), the total amount billed to date including
each completed phase and any current phase(s), and the estimated percent
completion of the Services for each phase and on an overall basis.
(2) Invoice Payment. The MGNWC agrees to make payments to the Contractor within
thirty (30) calendar days of receipt of the invoice, unless there is a dispute regarding
the invoice, and to pay interest on unpaid balances under the provisions of the Local
Government Prompt Payment Act (50 ILCS 505/1, etseq.), unless the Parties mutually
agree to waive the interest payment. If there is a dispute regarding any invoice, the
MGNWC shall make payment for that portion of the invoice not in dispute and the
Parties shall cooperate to resolve the dispute as soon as possible in accordance with
Subsection 6.G below, but any such dispute shall not cause the Contractor to stop
performing Services or delay in its completion of the Scope of Work. The MGNWC's
failure to object to any monthly invoices and payment by the MGNWC for Services
related to any monthly invoice or other periodic progress payment shall not be an
acceptance by the MGNWC of such Services that are incomplete and in progress.
(3)
Final Payment. The Services will be considered complete on the date of final written
acceptance by the MGNWC after completion of all the Services for the entire Scope of
Services. After delivery of the final report and completion of the Services, the
Contractor shall request in writing a confirmation of acceptance of the Services by the
MGNWC and shall also deliver an invoice for final acceptance and payment. The
MGNWC will make final payment to the Contractor within thirty (30) calendar days
after final written acceptance of the Services to be delivered under this Agreement,
after deducting therefrom charges, if any, as provided in this Agreement ("Final
Payment"). The acceptance by the Contractor of Final Payment will operate as a full
and complete release of the MGNWC by the Contractor of and from all lawsuits, claims
or demands for further payment of any kind for the Services performed by the
Contractor.
(4) Deductions. Notwithstanding any other provision of this Agreement, the MGNWC may
deduct and withhold from any payment or from Final Payment such amounts as may
reasonably appear necessary to compensate the MGNWC for any loss due to: (1)
Services that are defective, nonconforming or incomplete, (2) liens or claims of lien,
8
(5)
(3) claims against the Contractor or the MGNWC made by any of the Contractor's sub -
consultants, sub -contractors or suppliers or by other persons about the Services, (4)
delay by the Contractor in the completion of the Services, (5) the cost to the MGNWC,
including without limitation reasonable attorneys' fees, of correcting any of the
matters stated in this Section or exercising any one or more of the MGNWC's remedies
set forth in Section 6.G. (Informal Dispute Resolution) or Section 13.0. (Cumulative
Rights and Remedies) below. The MGNWC will notify the Contractor in writing, in
accordance with Section 13.D. below, of the MGNWC's determination to deduct and
withhold funds, which notice will state with specificity the amount of, and reason or
reasons for, such deduction and withholding.
Use of Deducted Funds. The MGNWC will be entitled to retain all amounts withheld,
pursuant to Section 6.B.(4) (Deductions) above, until the Contractor either has
performed the obligations in question or has furnished security for that performance
satisfactory to the MGNWC. The MGNWC will be entitled to apply any money withheld
or any other money due to the Contractor to reimburse itself for all costs, expenses,
losses, damages, liabilities, suits, judgments, awards and reasonable attorneys' fees
(collectively "Costs") incurred, suffered or sustained by the MGNWC and chargeable to
the Contractor under this Agreement.
C. Records; Audit. The Contractor shall maintain records showing the Services performed and a
record of additional services performed, and shall permit the MGNWC to inspect and audit all
data and records of the Contractor for Services performed pursuant to this Agreement. The
records shall include all billable charges and costs, descriptions and time entries by personnel
(in minutes/hours increments) incurred in performing the Services in accordance with
generally accepted accounting practices, consistently applied, and in such manner as to permit
verification of all entries. Upon written request by the MGNWC, the records shall promptly be
made available to the MGNWC or its auditors during normal business hours during the Term of
this Agreement, and for three (3) consecutive calendar years after the termination of this
Agreement. Copies of such records shall be promptly furnished by the Contractor to the
MGNWC at a reasonable per page photocopy expense or in an electronic or digital format at
no charge.
D. Claim In Addition To Agreement Amount.
(1) The Contractor shall provide written notice to the MGNWC of any claim for additional
Compensation because of any action taken by the MGNWC, within fifteen (15)
calendar days after the occurrence of such action.
(2) The Contractor acknowledges and agrees that written notice pursuant to this Section shall
not be deemed or interpreted as entitling the Contractor to any additional compensation;
and that any changes in the Agreement Amount shall be valid only upon written
amendment signed by all Parties pursuant to Section 6F. (Service Change Orders; Delays)
below.
(3)
Regardless of the decision of the MGNWC relative to a claim submitted by the
Contractor, the Contractor shall proceed with all of the Services required to complete
the Services under this Agreement, as determined by the MGNWC, without
interruption.
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E. Additional Services. The Contractor acknowledges and agrees that in no event shall the MGNWC or
Morton Grove or Niles be liable for any additional Compensation or fees or costs incurred by the
Contractor or any sub -consultant or sub -contractor in connection with any Services provided by the
Contractor or any sub -consultant or sub -contractor that are outside of, or exceed, the scope of this
Agreement ("Additional Services"), regardless of whether such Additional Services are requested or
directed by the MGNWC or Morton Grove or Niles, except upon the prior written consent of the
MGNWC provided under Section 6.F. (Service Change Orders; Delays) below.
F. Services Change Orders; Delays.
(1) Services Change Orders. The MGNWC, from time to time, may issue a written order
modifying or otherwise changing the scope of the Services included in a Services
Change Order (a "Services Change Order"). Any one or more Services Change Order
which increases the original contract not to exceed price amount (individual or in the
aggregate) by more than Twenty Thousand and No/100 Dollars ($20,000.00) must be
approved by Resolution of the governing authorities of the MGNWC. For a Services
Change Order below the Twenty Thousand and No/100 Dollars ($20,000.00) threshold,
the MGNWC Representative is authorized to execute the Services Change Order
(provided it is not part of other related Services Change Orders that, in the aggregate,
exceed the foregoing dollar threshold) after review and approval by the MGNWC
Chair. Copies of all Services Change Orders will be sent to the MGNWC Board by the
MGNWC Representative upon receipt from the Contractor. The Services Change Order
will be generally in the form attached to and by this reference incorporated into this
Agreement as Exhibit D. The MGNWC or the Contractor may request a Services Change
Order based on new or different information or changes in conditions or
circumstances that were not known or not anticipated at the time of approval of this
Agreement that results in change in the scope of any Services to be performed under
this Agreement. A Services Change Order may include additions to and deletions from
the Services and will include any equitable increases or decreases to the
Compensation as mutually agreed to by the Parties.
(2) Revision Notices. Within five (5) calendar days of receipt of a MGNWC-approved
Services Change Order, the Contractor must notify the MGNWC Representative and
the MGNWC Board in writing if the Contractor desires a revision to the Services
Change Order (a "Revision Notice"). The Revision Notice must clearly state the
Contractor's requested revisions and the reasons for the revisions. If the MGNWC
Board agrees to any revision, then the MGNWC Representative will issue a revised
Services Change Order in a form acceptable to the Parties. If the Contractor does not
submit a Revision Notice within the 5 -calendar day period, then the Contractor will be
deemed to have accepted the Services Change Order and the Services Change Order
will be final.
(3)
Disagreements over Services Change Order Terms. If the MGNWC and the Contractor
cannot agree on the proposed revisions to the Compensation or the Schedule terms of a
Services Change Order, then the Parties will apply the dispute resolution provisions of
this Agreement to reach agreement. In that event, the Contractor must proceed
diligently with the revised Services as directed by the MGNWC Board pending resolution
of the disagreement. The Contractor will be compensated equitably for the work the
Contractor undertakes during the informal dispute resolution process.
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(4) No Change in Absence of a Services Change Order. No claim for an adjustment in
Compensation or Project Schedule will be made or allowed unless it is embodied in a
Services Change Order signed by the MGNWC Representative and the Contractor. If the
Contractor believes it is entitled to an adjustment in the Compensation or Project
Schedule terms that has not been included, or fully included, in a Services Change Order,
then the Contractor may submit to the MGNWC a written request for the issuance of, or
revision of, a Services Change Order including the desired adjustment. The Contractor's
request must be submitted before the Contractor proceeds with any Services for which
an adjustment is desired.
(5) Delays. If a delay in providing Services results from one or more causes that could not be
avoided or controlled by the Contractor, then the Contractor may be entitled to an
extension of the Project Schedule for a period equal to that delay. The Contractor must
notify the MGNWC in writing within ten (10) calendar days after the start of the delay and
again in writing within ten (10) calendar days after the delay has ended (the "Delay Period").
The first notice must state the cause or causes of the delay and the impact of the delay on
providing Services. The second notice must state the cause or causes of the delay, the length
of the delay, the reasons why the delay disrupted performance of the Services, and the
Contractor's request, if any, for a change in the Completion Date. If the Contractor fails to
submit notices as provided for in this Section, then the Contractor will be deemed to have
waived any right to an adjustment.
G. Informal Dispute Resolution.
(1) Dispute Resolution. If a dispute arises between any of the Parties concerning this
Agreement, the Parties will first attempt to resolve the dispute by negotiation. Each Party
will designate persons to negotiate on their behalf. The Party contending that a dispute
exists must specifically identify in writing all issues and present it to the other Parties. The
Parties will meet and negotiate to resolve the matter. If the dispute is resolved because of
such negotiation, there must be a written determination of such resolution, and ratified by
the corporate authorities of each Party, which will be binding upon the Parties. If necessary,
the Parties will execute an addendum to this Agreement. Each Party will bear its own costs,
including attorneys' fees, incurred in all proceedings in this Section. If the Parties do not
resolve the dispute through negotiation, any Party to this Agreement may pursue other
remedies under Section 13.0. (Cumulative Rights and Remedies) below to enforce the
provisions of this Agreement.
(2) Performance of Services. During the dispute resolution process, the Contractor must
proceed diligently with the performance of Services.
SECTION 7. PERFORMANCE AND STANDARD OF SERVICES.
A. Contractor Responsibilities. The Contractor, at its sole cost, agrees as follows:
(1)
Standard of Performance. The Contractor shall perform the Services in a manner
consistent with the degree of care and skill ordinarily exercised by members of the
same profession currently practicing under similar circumstances in the Chicago
Metropolitan Region (the "Standard of Performance"). All Services must be free from
defects and flaws, must conform to the requirements of this Agreement, and must be
11
performed in accordance with the Standard of Performance. The Contractor is fully
and solely responsible for the quality, technical accuracy, completeness and
coordination of all Services. Such performance shall be to the satisfaction of the
MGNWC. All Services shall be performed in a reasonably prompt manner.
(2) Corrections of Defects, Errors and Omissions. If any errors, omissions or acts,
intentional or negligent, are made by the Contractor and/or its employees, its sub -
consultants and sub -contractors in providing the Services, the correction of which
requires additional Services, the Contractor shall be required to perform such
additional Services as may be necessary to remedy same without undue delay and
without any charge or cost to the MGNWC. The Contractor must provide, for no
additional Compensation and at no separate expense to the MGNWC, all work
required to correct any defects or deficiencies in the performance of Services,
regardless of whether the defect or deficiency relates to the work of the Contractor or
of the Contractor's sub -consultants or suppliers.
(3) Risk of Loss. The Contractor bears the risk of loss in providing all Services. The
Contractor is responsible for all damages to property or persons arising from any
Contractor negligent or intentional error, omission or act and for any losses or costs to
repair or remedy any work undertaken by the MGNWC based on the Services because of
any such error, omission or act. Notwithstanding any other provision of this Agreement,
the Contractor's obligations under this Section 7 exist without regard to, and may not be
construed to be waived by, the availability or unavailability of any insurance, either of
the MGNWC or the Contractor, to indemnify, hold harmless or reimburse the Contractor
for damages, losses or costs.
(4) Communications with Regulators. The Contractor must comply with all statutes,
ordinances, codes and regulations applicable to the Services. Except to the extent
expressly set forth in this Agreement, the Contractor may not communicate directly
with applicable governmental regulatory agencies about the Services without prior
express authorization from the MGNWC Board or the MGNWC Representative. The
Contractor must either direct inquiries from governmental regulatory agencies to the
MGNWC Board for appropriate response or respond on behalf of the MGNWC as
directed by the MGNWC Representative. To the extent that the Contractor
communicates directly with applicable governmental regulatory agencies with regard to
Services, it shall promptly (same day or within twenty-four (24) hours) inform the
MGNWC Representative of such communications, provide copies to the MGNWC
Representative of any such written communications (e.g., letters, emaiis, etc.) and shall
copy the MGNWC Representative or the MGNWC Working Group on its own
communications to the governmental regulatory agencies, as requested by the
MGNWC. In those cases that the MGNWC will be either responding directly to the
regulatory agencies, or providing information to the Contractor to allow the Contractor
to respond, the response must be made within five (5) calendar days so as not to delay
the Project.
(5) Contractor Payments; Waivers of Liens. The Contractor must pay promptly for all
services, labor, materials and equipment used or employed by the Contractor in the
performance of any Services and must not cause any materials, equipment, structures,
buildings, premises and property of the MGNWC to be impressed with any mechanic's
12
lien or other liens. The Contractor, if requested, must provide the MGNWC with
reasonable evidence that all services, labor, materials and equipment have been paid in
full and with waivers of lien as appropriate.
(8) Safety; Hazardous Materials.
Protection of Health, Environment. The Contractor's personnel must be
experienced and properly trained to perform the Services and must take
adequate precautions to protect human health and the environment in the
performance of Services.
ii. Notice of Hazardous Conditions. If the Contractor observes a potentially
hazardous condition relating to the Services, the Contractor must immediately
bring that condition to the attention of the MGNWC Board, the MGNWC
Representative and the MGNWC Working Group.
Hazardous Materials. The Contractor acknowledges that there may be
hazardous substances, wastes or materials as defined by applicable Law
("Hazardous Materials") within the proposed Project area or otherwise
associated with Services, and the Contractor under those circumstances must
take appropriate precautions to protect its employees, sub -consultants and
suppliers, and shall advise in writing the MGNWC Board, the MGNWC
Representative and the MGNWC Working Group of the presence or suspected
presence and location of such Hazardous Materials.
(9) Performance Bond and a Payment Bond.
The Contractor shall provide a Performance Bond and a Payment Bond in the full
amount of the Agreement. The bonds shall be in form and substance satisfactory
to the MGNWC, consistent with Exhibit E. The Contractor shall pay the cost of
premiums for said bonds. The bonds shall be signed and sealed by an authorized
representative of the bonding company and an authorized officer or
representative of the Contractor, and a certificate of the authority of those
signing the bonds, if not officers, shall be attached thereto.
ii. The Performance Bond and the Payment Bond shall guarantee the performance
of the duties placed on the Contractor by the Prevailing Wage Act, as well as all
other duties undertaken by the Contractor pursuant to the Agreement and shall
indemnity the MGNWC from any liability or loss resulting to the MGNWC from
any failure of the Contractor to fully to perform each all said duties. The
Performance Bond and the Payment Bond shall be deemed to cover all such
duties.
iii. The Performance Bond and the Payment Bond herein provided shall be placed
with a surety company or companies having a policyholders' rating not lower than
"A" and a financial rating not lower than "X" in Best's Insurance Guide (current
edition). Company must be licensed in the State of Illinois and shall show
evidence of same.
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iv. The bond furnished by the Contractor shall fully comply with the Illinois Public
Construction Bond Act (30 ILCS550/0.01 et seq.) including the provisions as found
in section 30 ILCS 550/1., entitled, Bond Required- Provisions required in bond as
amended.
v. The bond shall include a provision stating that no modification of any provision
of any Contract Document, including, without limitation, a change in the contract
time, Compensation or other condition of payment, will release the surety either
in part or in whole. If from time to time the Compensation is increased by
$10,000.00 or more, then the bond thereto shall be increased by the amount
which the contract sum was increased.
B. MGNWC Responsibilities. The MGNWC, at its collective cost, agrees as follows:
(1) To designate in writing a person with authority to act on behalf of the MGNWC with
respect to the Services. The MGNWC Representative will have the authority to act on
behalf of the MGNWC, except on matters that require approval of the respective
governing authorities of the MGNWC or the input of the MGNWC Working Group.
(2) To provide to the Contractor all criteria and information about the requirements for the
Services, including, as relevant, the MGNWC's objectives and constraints, schedule,
space, capacity and performance requirements, and budgetary limitations.
(3) To provide to the Contractor existing studies, reports and other available data relevant
to the Services.
(4) To arrange for access to, and make provisions for the Contractor (and its employees,
sub -consultants and sub -contractors) to enter on, public and private property as
reasonably required for the Services.
(5) To provide, as relevant, existing surveys and GIS data describing physical characteristics,
legal limitations and utility locations for the Services and the services of other
Contractors when the services of other Contractors are requested by the Contractor and
are necessary for the performance of the Services.
(6) To provide structural, mechanical, chemical, air and water tests, tests for hazardous
materials, and other laboratory and environmental tests, inspections and reports
required by law to be provided by the MGNWC in connection with the Services, except
to the extent such tests, inspections or reports are part of the Services.
(7)
(8)
To review reports, documents, data and all other information presented by the
Contractor as appropriate and to provide responses in a timely manner.
To provide approvals from all governmental authorities having jurisdiction over the
Services when requested by the Contractor, except to the extent such approvals are
part of the Services.
(9) To attend meetings related to the Services.
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(10) To give prompt written notice to the Contractor whenever the MGNWC or one of the
MGNWC Affiliates observes or otherwise becomes aware of any development that
affects the scope or timing of Services, except that the inability or failure of the MGNWC
or one of the MGNWC Affiliates to give any such a notice will not relieve the Contractor
of any of its responsibilities under this Agreement.
SECTION 8. INDEMNIFICATION
A. To the fullest extent permitted by law, the Contractor shall defend, hold harmless and indemnify
the MGNWC and the MGNWC Affiliates from and against any and all injury, death, loss, property
damage, judgments, liens, claims, suits, liabilities, actions, causes of action, demands, expenses,
costs or other liabilities of any character (including reasonable attorney fees and litigation costs)
to the extent arising in whole or in part, relating to or resulting from the performance under this
Agreement by the Contractor and/or its employees and its sub -consultants and sub -contractors,
or others performing or furnishing any Services directly or indirectly on the Contractor's behalf,
including but not limited to: (a) failure to comply with, or violation of, any federal, state or local
law, statute, regulation, rule, ordinance, order or governmental directive; (b) negligent acts,
omissions or willful misconduct; and (c) failure to comply with the terms, conditions,
representations or warranties contained in this Agreement. In connection with any such liabilities,
the MGNWC and the MGNWC Affiliates shall have the right to defense counsel of their choice and
the Contractor shall be solely liable for all reasonable costs, fees and expenses of such defense.
Any insurance policies required to be maintained pursuant to this Agreement shall in no way limit
the extent of the Contractor's responsibility to indemnify as herein provided. The terms of this
indemnity shall survive the suspension, expiration or termination of this Agreement.
B. If the MGNWC or the MGNWC Affiliates permits the Contractor to use any of the MGNWC or the
MGNWC Affiliates' equipment, tools or facilities, such use will be gratuitous and the Contractor
shall release the MGNWC or the MGNWC Affiliates' from any responsibility arising from claims for
personal injuries, including death arising out of the use of such equipment, tools, facilities
irrespective of the condition thereof or any negligence on the part of the MGNWC or the MGNWC
Affiliates in permitting their use
C. Kotecki Waiver. The Contractor (and all sub -consultants and sub -contractors into whose
subcontract this clause is incorporated) agrees to assume the entire liability for all personal injury
claims suffered by its own employees and waives any limitation of liability defense based upon the
Worker's Compensation Act and cases decided thereunder. The Contractor agrees to indemnify and
defend MGNWC and the MGNWC Affiliates from and against all such loss, expense, damage or
injury, including reasonable attorney fees, which MGNWC and the MGNWC Affiliates, may sustain
as a result of personal injury claims by the Contractor's employees and by the sub -consultants
and sub -contractors and their respective employees, except to the extent those claims arise as
a result of MGNWC's and the MGNWC Affiliates' own negligence.
D. No Personal Liability. No elected or appointed official or employee of the MGNWC and the
MGNWC Affiliates shall be personally liable, in law or in contract, to the Contractor as the
result of the execution of this Agreement. No employee of the Contractor, sub -consultants,
and sub -contractors shall be personally liable, in law or in contract, to the MGNWC as the
result of the execution of this Agreement.
15
SECTION 9. INSURANCE.
A. During the Term of this Agreement, or any extended term, the Contractor shall procure and
maintain the insurance coverages set forth in Exhibit F.
SECTION 10. CONFIDENTIAL INFORMATION. OWNERSHIP OF DOCUMENTS.
A. No Disclosure of Confidential Information. The Contractor acknowledges that it shall, in
performing the Services for the MGNWC under this Agreement, have access, or be directly or
indirectly exposed, to Confidential Information, as defined below. The Contractor shall hold
confidential all Confidential Information of the MGNWC and Morton Grove and Niles and shall not
disclose or use such Confidential Information without the express prior written consent of the
MGNWC, Morton Grove or Niles, depending on whose Confidential Information is at issue. The
Contractor shall use reasonable measures at least as strict as those the Contractor uses to protect
its own confidential information. Such measures shall include, without limitation, requiring its
employees and sub -consultants and sub -contractors of the Contractor to execute a non-
disclosure agreement (in a format approved by the MGNWC) before obtaining access to
Confidential Information.
(1) Confidential Information. All confidential information and data disclosed by the MGNWC
and developed or obtained from the MGNWC under this Agreement must be treated by
the Contractor as proprietary and confidential information ("Confidential Information").
Based on whose Confidential Information is at issue, the Contractor must not disclose
Confidential Information without the MGNWC's or Morton Grove's or Niles' prior
written consent. No person may use Confidential Information for any purpose other
than for the proper performance of the Services. The obligations under this Section do
not apply to Confidential Information that is (i) in the public domain without breach of
this Agreement, (ii) developed by the Contractor independently from this Agreement,
(iii) received by the Contractor on a non -confidential basis from others who had a right
to disclose the information, or (iv) required by law to be disclosed, but only after prior
written notice has been received by the MGNWC or Morton Grove or Niles and the
MGNWC or Morton Grove or Niles has had a reasonable opportunity to protect
disclosure of the Confidential Information. The Contractor must ensure that the
foregoing obligations of confidentiality and use extend to and bind the Contractor's
employees, sub -consultants and sub -contractors.
B. Ownership of Data and Documents. The Parties expressly agree that all data, documents, records,
studies or other information (collectively "Data") provided by the MGNWC to the Contractor or
generated, created, found or otherwise completed by the Contractor, and its employees, sub -
consultants and sub -contractors, in the performance of Contractor's Services under the terms of
this Agreement shall at all times remain the proprietary information of and under the ownership of
the MGNWC and shall be provided to the MGNWC by the Contractor upon request of the MGNWC,
or at the termination of this Agreement. All Data, regardless of its format, developed or obtained
under this Agreement, other than the Contractor's confidential information, will be and remain the
sole property of the MGNWC, unless the MGNWC agree that certain portions of the Data is the sole
property of either Morton Grove or Niles. The Contractor must promptly deliver all Data to the
MGNWC at the MGNWC's request. The Contractor is responsible for the care and protection of the
Data until that delivery. The Contractor may retain one or more copies of the Data.
Notwithstanding the foregoing, upon request of the MGNWC at any time, or at the termination of
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this Agreement, the Contractor shall promptly return to the MGNWC all documents provided to the
Contractor by the MGNWC during the Term of this Agreement.
C. Intellectual Property. The Contractor may not infringe on any intellectual property (including but
not limited to patents, trademarks, or copyrights) (collectively "Intellectual Property") in the
performance of Services. If ever the Contractor is alleged to have infringed on any Intellectual
Property, then, in addition to the Contractor's obligations to indemnify the MGNWC under this
Agreement, the Contractor also, at the sole discretion of the MGNWC and at the Contractor's
sole expense (a) procure for the MGNWC the right to continue using the infringing subject
matter, or (b) replace or modify the infringing subject matter so that it becomes non -infringing
but still complies with the requirements of this Agreement, or (c) reimburse the MGNWC for all
payments made to the Contractor relating to or impacted by the infringing material and all costs
incurred by the MGNWC resulting from such infringement.
D. Copyrights and Patents. The Contractor agrees not to assert, or to allow persons performing
under the Contractor's control to assert, any rights to Data or establish any claim under design, patent,
or copyright laws. It is expressly agreed that all copyrightable or patentable Data produced as part of
Services has been specifically commissioned by the MGNWC and is considered "work for hire," and that
all copyrightable and other proprietary rights in that Data will vest solely in the MGNWC. Further, the
Contractor agrees that all rights under copyright and patent laws under this Agreement belong to the
MGNWC. The Contractor assigns any and all rights, title, and interests under copyright, trademark, and
patent law to the MGNWC and agrees to assist the MGNWC in perfecting the same at the MGNWC's
expense.
E. Advertisements; Media / News Releases; Use of Letterhead or Logo. The Contractor, and its
employees, sub -consultants and sub -contractors, shall not issue any media news releases,
advertisements, promotional materials or other public statements regarding the Services
without the prior written consent of the MGNWC Working Group. The Contractor shall not use
the letterhead or logo or any service mark or trademark of Morton Grove without the prior
written consent of the Village Administrator of Morton Grove and shall not use the letterhead
or logo or any servicemark or trademark of Niles without the prior written consent of the
Village Manager of Niles.
SECTION 11. COMPLIANCE WITH LAWS.
A. Compliance with Laws. The Contractor, and its employees, sub -consultants and sub-
contractors, shall comply with all applicable laws, regulations and rules promulgated by any
Federal, State, County, local, or other governmental authority or regulatory body pertaining to
all aspects of the Services, now in effect, or which may become in effect during the
performance of the Services. The scope of the laws, regulations and rules referred to in this
paragraph includes, but is in no way limited to, the Occupational Safety and Health Act
standards, the Illinois Human Rights Act, the Illinois Equal Pay Act of 2003, along with the
standards and regulations promulgated pursuant thereto (including but not limited to those
safety requirements involving work on elevated platforms), all forms of traffic regulations,
public utility, Interstate and Intrastate Commerce Commission regulations, Workers'
Compensation Laws, the Substance Abuse Prevention on Public Works Projects Act, Prevailing
Wage Laws, the Smoke Free Illinois Act, the USA Security Act, the Federal Social Security Act
(and any of its titles), and any other law, rule or regulation of the Illinois Department of Labor,
Illinois Department of Transportation, Illinois Environmental Protection Act, Illinois
Department of Human Rights, Human Rights Commission, EEOC, Metropolitan Water
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Reclamation District of Greater Chicago, the Village of Morton Grove and the Village of Niles. If
the Contractor, or its employees, sub -consultants and sub -contractors, in performing the
Services are found to have not complied with any of the applicable laws and regulations as
required by this Agreement, then the Contractor shall indemnify and hold the MGNWC
harmless, and pay all amounts determined to be due from the MGNWC for such non-
compliance by the Contractor, including, but not limited to fines, costs, attorneys' fees and
penalties.
(1) Employment of Illinois Workers on Public Works Act Compliance. To the extent required
by law, the Contractor agrees to comply with the provisions of the Employment of
Illinois Workers on Public Works Act (30 ILCS 570/0.01 etseq.).
(2) Preference To Veterans Act Compliance. The Contractor will comply with the Preference
to Veterans Act (330 ILCS 55).
(4) Patriot Act Compliance. The Contractor represents and warrants to the Villages that
neither it nor any of its principals, shareholders, members, partners, or affiliates, as
applicable, is a person or entity named as a Specially Designated National and Blocked
Person (as defined in Presidential Executive Order 13224) and that it is not acting,
directly or indirectly, for or on behalf of a Specially Designated National and Blocked
Person. The Contractor further represents and warrants to the Villages that the
Contractor and its principals, shareholders, members, partners, or affiliates, as
applicable, are not, directly or indirectly, engaged in, and are not facilitating, the
transactions contemplated by this Agreement on behalf of any person or entity named
as a Specially Designated National and Blocked Person. The Contractor hereby agrees to
defend, indemnify and hold harmless the Villages, their respective corporate authorities,
and all of each Village's elected or appointed officials, officers, employees, agents,
representatives, engineers, and attorneys, from and against any and all claims,
damages, losses, risks, liabilities, and expenses (including reasonable attorneys' fees and
costs) arising from or related to any breach of the representations and warranties in this
subsection.
B. The Parties to this Agreement shall further comply with all applicable federal, state and local
laws, rules and regulations in carrying out the terms and conditions of this Agreement,
including the following:
(1)
Certification. Each Party and its officers, corporate authorities, employees and agents
certify that they are not barred from entering into this Agreement as a result of a
violation of either 720 ILCS 5/33E-3 or 5/33E-4 (bid rigging or bid rotating) or 5/33E-6
(interference with contract submission and award by public official) or as a result of a
violation of 820 ILCS 130/1 et seq. (the Illinois Prevailing Wage Act) or as a result of: (1) a
delinquency in the payment of any tax administered by the Illinois Department of Revenue or
any fee required by any unit of local government or the State, unless the Party is contesting,
in accordance with the procedures established by the appropriate revenue act, its liability for
the tax or the amount of the tax or the fee, as set forth in Section 11-42.1-1 et seq. of the
Illinois Municipal Code, 65 ILCS 5/11-42.1-1 et seq. Each Party and its officers, corporate
authorities, employees and agents further certify by signing this Agreement that the
Party and its officers, corporate authorities, employees and agents have not been
convicted of, or are not barred for attempting to rig bids, price-fixing or attempting to
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fix prices as defined in the Sherman Anti -Trust Act and Clayton Act. 15 U.S.C. § 1 et seq.;
and has not been convicted of or barred for bribery or attempting to bribe an officer or
employee of a unit of state or local government or school district in the State of Illinois
in that officer's or employee's official capacity. Nor has any of the Parties and their
officers, corporate authorities, employees and agents made admission of guilt of such
conduct which is a matter of record, nor has any official, officer, agent or employee of
the Parties been so convicted nor made such an admission.
(2) Non -Discrimination. Each Party and its officers, corporate authorities, employees and
agents agree not to commit unlawful discrimination and agree to comply with all
applicable provisions of the Illinois Human Rights Act, Title VII of the Civil Rights Act of
1964, as amended, the Americans with Disabilities Act, the Age Discrimination in
Employment Act, Section 504 of the Federal Rehabilitation Act, and all applicable rules
and regulations. Each Party maintains a written Sexual Harassment Policy in compliance
with Section 2-105 of the Illinois Human Rights Act (775 ILCS 5/2-105(A)(4)). Each Party
certifies that it is an "Equal Opportunity Employer" as defined by federal and State laws
and regulations, and agrees to comply with the Illinois Department of Human Rights
("IDHR") Equal Opportunity Employment clause as required by the IDHR's Regulations
(44 III. Adm. Code, Part 750, Appendix A). As required by Illinois law and IDHR
Regulation, the Equal Opportunity Employment clause is incorporated by reference in its
entirety as though fully set forth herein. Each Party certifies that it agrees to comply
with the Prohibition of Segregated Facilities clause, which is incorporated by reference
in its entirety as though fully set forth herein. See, Illinois Human Rights Act (775 ILCS
5/2-105). See also, Illinois Department of Human Rights Rules and Regulations, Title 44,
Part 750. Administrative Code, Title 44: Government Contracts, Procurement and
Property Management, Subtitle B: Supplemental Procurement Rules, Chapter X:
Department of Human Rights, Part 750: Procedures Applicable to All Agencies, Section
750.160: Segregated Facilities (44 III. Adm. Code 750.160)
(3) Illinois Freedom of Information Act. The definition of a public record in the Freedom of
Information Act (5 ILCS 140/1 et seq.) ("FOIA") includes a "public record that is not in
the possession of a public body but is in the possession of a party with whom the agency
has contracted to perform a governmental function on behalf of the public body and
that directly relates to the governmental function and is not otherwise exempt under
this Act." (5 ILCS 140/7(2). Consequently, the Parties must maintain and make available
to the other Parties, upon request, their public records relating to the performance of
this Agreement in compliance with the requirements of the Local Records Act (50 ILCS
205/1 et seq.) and FOIA. To facilitate a response by the MGNWC to any FOIA request, the
Contractor agrees to provide all requested public records within five (5) business days of a
request being made by MGNWC. The Contractor agrees to defend, indemnify and hold
harmless MGNWC and the MGNWC Affiliates, and agrees to pay all reasonable costs
connected therewith (including, but not limited to, reasonable attorney and witness fees,
filing fees and any other expenses) for the MGNWC, Morton Grove and/or Niles to defend
any and all causes, actions, causes of action, disputes, prosecutions or conflicts arising from
the Contractor's actual or alleged violation of the FOIA or the Contractor's failure to furnish
all public records as requested by the MGNWC. Furthermore, should the Contractor request
that the MGNWC utilize a lawful exemption under FOIA in relation to any FOIA request
thereby denying that request, the Contractor agrees to pay all costs connected therewith
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(such as reasonable attorney and witness fees, filing fees and any other expenses) to defend
the denial of the request. The defense shall include, but not be limited to, challenged or
appealed denials of FOIA requests to either the Illinois Attorney General or a court of
competent jurisdiction. The Contractor agrees to defend, indemnify and hold harmless
MGNWC and the MGNWC Affiliates, and agrees to pay all costs incurred by the MGNWC,
Morton Grove and/or Niles connected therewith (such as reasonable attorney and witness
fees, filing fees, penalties, fines, and any other expenses) to defend any denial of a FOIA
request pursuant to the Contractor's request to utilize a lawful exemption.
C. Contractor Representations.
(1) No Collusion. The Contractor represents and certifies that the Contractor is not barred
from contracting with a unit of State or local government as a result of: (1) a delinquency in
the payment of any tax administered by the Illinois Department of Revenue or any fee
required by the Village of Morton Grove and the Village of Niles, unless the Contractor is
contesting, in accordance with the procedures established by the appropriate revenue act,
its liability for the tax or the amount of the tax or the fee, as set forth in Section 11-42.1-1 et
seq. of the Illinois Municipal Code, 65 ILCS 5/11-42.1-1 et seq.; or (2) a violation of either
Section 33E-3 or Section 33E-4 of Article 33E of the Criminal Code of 1961, 720 ILCS 5/33E-1
et seq. The Contractor represents that the only persons, firms or corporations interested in
this Agreement as principals are those disclosed to the MGNWC prior to the execution of
this Agreement, and that this Agreement is made without collusion with any other person,
firm or corporation. If at any time, it shall be found that the Contractor has, in procuring this
Agreement, colluded with any other person, firm or corporation, then the Contractor
shall be liable to the MGNWC, the Village of Morton Grove and/or the Village of Niles
for any loss or damage that the MGNWC, the Village of Morton Grove and/or the
Village of Niles may suffer, and this Agreement shall, at the MGNWC's option, be null
and void.
(2) Conflict of Interest.
(3)
(a) The Contractor represents and certifies that, to the best of its knowledge: (1)
no MGNWC, Morton Grove or Niles employee or agent is interested in the
business of the Contractor or this Agreement; (2) as of the date of this Agreement,
neither the Contractor nor any person employed or associated with the
Contractor has any interest that would conflict in any manner or degree with the
performance of the obligations under this Agreement; and (3) neither the
Contractor nor any person employed by or associated with the Contractor shall at
any time during the Term of this Agreement obtain or acquire any interest that
would conflict in any manner or degree with the performance of the obligations
under this Agreement.
Compliance with Laws Grant Regulations. All Services must be provided, performed,
and completed in accordance with all required governmental permits, licenses, or other
approvals and authorizations, and with applicable statutes, ordinances, rules, and
regulations. The Contractor also must comply with applicable conditions of any federal,
state, or local grant received by the MGNWC with respect to this Agreement. The
Contractor will be solely responsible for any fines or penalties that may be imposed or
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incurred by a governmental agency with jurisdiction over the Services because of the
Contractor's improper performance of, or failure to properly perform, any Services.
SECTION 12. DEFAULT AND TERMINATION OF SERVICES.
A. This Agreement is at -will and may be terminated by the MGNWC at any time at MGNWC'S
convenience, without reason or cause. If the MGNWC terminates this Agreement without
reason or cause, then the MGNWC will liable to the Contractor only for payment of all actual,
completed, documented Services through the date of termination. The Contractor shall not be
entitled to Compensation of any kind, including without limitation for lost profit, for any
Services not performed by the Contractor.
B. Termination by MGNWC for Breach. MGNWC at any time, by written notice, may terminate this
Agreement because breach by the Contractor and failure of the Contractor to cure the breach
within ten (10) calendar days after that written notice or such further time as the MGNWC may
agree, in the MGNWC's sole discretion, in response to a written notice from the Contractor
seeking additional time to cure. "Breach" by the Contractor includes (a) failure of the Contractor
to adhere to any terms or conditions of this Agreement, (b) failure of the Contractor to properly
perform Services, (c) failure of the Contractor to maintain progress in the performance of
Services to endanger proper performance of the Services within the Project Schedule, or (d)
failure of the Contractor to have or maintain adequate financial or legal capacity to properly
complete any Services.
C. MGNWC Remedies. If t MGNWC terminates this Agreement for Breach by the Contractor, then
the MGNWC will have the right, at its election and without prejudice to any other remedies
provided by law or equity, to pursue any one or more of the following remedies:
(1) MGNWC may recover from the Contractor any and all costs, including without limitation
reasonable attorneys' fees, incurred by the MGNWC as the result of any Breach or as a
result of actions taken by MGNWC in response to any Breach.
(2) MGNWC may withhold any or all outstanding Compensation to reimburse itself or pay
for any and all costs, including without limitation reasonable attorneys' fees, incurred by
the MGNWC as the result of any Breach or as a result of actions taken by the MGNWC in
response to any Breach. In that event, the MGNWC will pay any excess funds to the
Contractor, if any, after all of the MGNWC's costs are reimbursed or paid. If the
Compensation withheld by the MGNWC is insufficient to reimburse the MGNWC for, or
pay, all costs, then the MGNWC will has the right to recover directly from the Contractor
a sum of money sufficient to reimburse itself, or pay, all remaining costs.
D. Termination for Convenience. If, after termination of this Agreement by the MGNWC for breach,
it is determined that the Contractor was not in breach or that the termination otherwise was
irregular or improper, then the termination shall be deemed to have been made for the
convenience of the MGNWC under this Section 12.
E. Termination by Contractor for Breach. The Contractor at any time, by written notice, terminate
this Agreement because a failure by the MGNWC to adhere to any terms or conditions of this
Agreement and a failure of the MGNWC to cure the breach within ten (10) calendar days after
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that written notice or such further time as the Contractor may agree, in the Contractor's sole
discretion, in response to a written notice from the MGNWC seeking additional time to cure.
F. Termination by Contractor without Cause. The Contractor shall not terminate this Agreement
without cause.
SECTION 13. GENERAL PROVISIONS.
A. Amendment. No amendment or modification to this Agreement shall be effective until it is reduced
to writing and approved by the MGNWC Board and executed by the MGNWC Chair and the
Contractor.
8. Assignment. The Contractor shall not assign this Agreement or any portion thereof without the
prior written approval of the MGNWC Board, which shall not be unreasonably withheld. The
merger, consolidation or liquidation of the Contractor or any change in the ownership of or power
to vote equal to twenty percent (20%) or more of the Contractor's capital stock, as held as of the
date of execution of this Agreement, shall be deemed an assignment; provided, however, that the
transfer of ownership of shares of capital stock between persons who, on the date of this
Agreement, are owners of the Contractor's capital stock or who are employees of Contractor,
shall not constitute an assignment. As part of the written notice of assignment sent to the
Contractor, an addendum to this Agreement that memorializes the assignment shall be prepared and
sent to the Contractor for execution.
C. Binding Effect. The terms of this Agreement shall bind and inure to the benefit of the MGNWC
and the Contractor, and their agents, successors and assigns.
D. Notice. All notices required or permitted to be given under this Agreement shall be in writing and
shall be delivered: (1) by personal delivery; (2) by a reputable overnight courier; (3) by certified
mail, return receipt requested, and deposited in the U.S. Mail, postage prepaid; or (4) by email
delivery to the Party's business email address set forth below. Unless otherwise expressly
provided in this Agreement, notices shall be deemed received upon the earlier of: (a) actual
receipt; (b) one (1) business day after deposit with an overnight courier, as evidenced by a receipt
of deposit; (c) four (4) business days following deposit in the U.S. mail, as evidenced by a return
receipt; or (d) date of delivery of the email. By notice complying with the requirements of this
Section 13.D., each Party shall have the right to change the address or the addressee, or both, for
all future notices and communications to the other Party, but no notice of a change of addressee
or address shall be effective until actually received.
Notices and communications to the MGNWC shall be addressed to, and delivered at, the
following addresses:
Steven Vinezeano, Chair
Morton Grove -Niles Water Commission
1000 Civic Center Drive
Niles, Illinois 60714
Phone: (847) 588-8010
Fax: (847) 588-8051
Email: scv@niles.com or TBD
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With a copy to:
Teresa Hoffman Liston, General Counsel
Morton Grove Water Commission
6101 Capulina Avenue
Morton Grove, IL, 60053
Fax: 847-965-4162
Email: tliston@mortongroveil.org
Notices and communications to the Contractor shall be addressed delivered to the following
address:
Attn:XXX
XXX
XXX
XXX, Illinois XXX
Phone: XXX and Cellular Phone: (XXX
Fax: (XXX
Email: X)0(
With a copy to: XXX
E. Third Party Beneficiary. No claim as a third party beneficiary under this Agreement by any person,
firm or corporation shall be made or be valid against MGNWC and the MGNWC Affiliates.
F. Provisions Severable. If any term, covenant, condition or provision of this Agreement is held by
a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the
provisions shall remain in full force and effect and shall in no way be affected, impaired or
invalidated.
G. Time. Time is of the essence in the performance of all terms and provisions of this Agreement.
H. Calendar Days and Time. Unless otherwise provided in this Agreement, any reference in this
Agreement to "day" or "days" shall mean calendar days and not business days. If the date for
giving of any notice required to be given, or the performance of any obligation, under this
Agreement falls on a Saturday, Sunday or federal holiday, then the notice or obligation may be
given or performed on the next business day after that Saturday, Sunday or federal holiday.
Venue and Governing Law. All questions of interpretation, construction and enforcement, and
all controversies with respect to this Agreement, shall be governed by the applicable
constitutional, statutory and common law of the State of Illinois. The Parties agree that, for the
purpose of any litigation relative to this Agreement and its enforcement, venue shall be in the
Circuit Court of Cook County, Illinois or the Northern District of the United States District
Court, Chicago, Illinois, and the Parties consent to the jurisdiction of said Courts for any such
action or proceeding.
J. Authority to Execute.
(1)
MGNWC Water Commission. The MGNWC warrants and represents to the Contractor that
the persons executing this Agreement on its behalf have been properly authorized to do so
by its corporate authorities.
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