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HomeMy WebLinkAbout06-0503 Gifford LLCCONSTRUCTION AGREEMENT THIS AGREEMENT ("Agreement")made and entered into as of the 3rd day of May, 2006,by and between the City of Elgin,a municipal corporation (hereinafter referred to as the "City")and Gifford 300,LLC,an Illinois limited liability company (hereinafter referred to as the "Developer"). WHEREAS,Developer has proposed the construction of a certain solid waste transfer station to be constructed on the property not currently having a common address but being a part of tax parcel numbers 06-29-100-007,06-29-100-014 and 06-30-201-006,each within the City of Elgin,Illinois.(Such solid waste transfer station is hereinafter referred to as the "Subject Solid Waste Transfer Station",and such property is hereinafter referred to as the "Subject Property"); and WHEREAS,Developer has requested that the City temporarily approve a gravel road as a temporary main access to the Subject Property and temporarily approve the use of a holding tank for temporary sanitary sewer collection for the Subject Property;and WHEREAS,there exists certain other outstanding matters as further described in this Agreement with respect to the City approving a building permit and engineering plans for the Subject Solid Waste Transfer Station and the Subject Property;and WHEREAS,the City has agreed to issue a building permit and approve engineering plans for the Subject Solid Waste Transfer Station and upon completion of the Subject Solid Waste Transfer Station to issue a temporary occupancy permit therefore pursuant to the terms and conditions of this Agreement in exchange for Developer's agreements as set forth in this Agreement. NOW,THEREFORE,for and in consideration of the mutual promises,agreements,and undertakings as set forth herein,and for other good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged,the City and Developer hereby agree as follows: 1.Developer is proposing a temporary road to be constructed of 24 inches of PGE (1"to 3")stone base with 6 inches of asphalt grinding surface ("Temporary Road")from Bluff City Boulevard to the Subject Solid Waste Transfer Station on the Subject Property.The City agrees to allow for such a Temporary Road under the following terms and conditions: (1)Developer or its successor shall replace the Temporary Road with a permanent road meeting all City requirements and specifications not later than five (5)years from the issuance of a building permit for the subject Waste Management transfer site building.The permanent road shall be designed and located as approved by the City Engineer. (2)The Developer shall prepare and submit to the City Engineer for the City Engineer's review and approval a temporary easement in favor of Waste Management which provides Waste Management a temporary easement over the temporary road from Bluff City Boulevard to the Subject Property.The City will hold such temporary easement until such time as the permanent road is constructed and open for travel.This temporary easement shall be submitted within fourteen (14)days of the date of this Agreement. Developer shall make any revisions to such document as directed by the comments from the City Engineer within seven (7)days after receipt of such comments from the City Engineer. (3)The Temporary Road shall be designed and constructed to the satisfaction of the City Engineer and Developer shall at all times maintain dust control over the Temporary Road to the extent reasonably required. (4)The Developer shall pave the existing roadway to the southwest of the Subject Property along the railroad right-of-way to the south and then northerly to the southwest corner of the Subject Property.Such paving work shall be completed prior to the city's issuance of a temporary occupancy permit for the Subject Property. (5)The City will initially issue only a temporary occupancy permit for the Subject Solid Waste Transfer Station to be constructed on the Subject Property.One of the conditions on the temporary occupancy permit will be the construction and opening of the permanent roadway as required in this Agreement. 2.The Developer shall provide the City with a copy of the temporary access permit issued by IDOT prior to approval of the building permit or engineering plans. 3.The Developer shall dedicate easements over the storm sewers and the detention facility.Such easements describe maintenance and ownership responsibilities.Developer shall provide these easements to the City Engineer for the City Engineer's review and approval within fourteen (14)days.Developer shall make any revisions to such documents as directed by the comments from the City Engineer within seven (7)days after receipt of same from the City Engineer.Developer shall cooperate with the City in allowing the City to establish a so-called standby-by special service area ("SSA")to provide for the proper maintenance of such stormwater facilities should the Developer or its successors fail to do so,with such SSA to be established (at the election of the City)prior to the issuance of a temporary occupancy permit for the Subject Property. 4.Developer shall provide the City with an easement for the watermain in a form as approved by the City Engineer prior to the approval of the building permit or engineering plans. 5.Developer is requesting that the City allow the temporary use of a holding tank for sanitary sewer collection for the Subject Property.Sanitary sewer service is potentially available to the Subject Property by connecting to the interceptor sewer line along the railroad right-of-way to the south.Developer will be permitted to temporarily utilize the proposed holding tank for a period of time not to exceed three (3)years from the issuance of the temporary occupancy permit for the Subject Solid Waste Transfer Station.Such temporary holding tank for sanitary sewer collections shall be designed,constructed,maintained and operated such that it does not present a risk to the public health,safety and welfare.Developer shall submit plans and specifications for the temporary holding tank for sanitary sewer collection to the City Engineer for the City Engineer's review and approval.Developer shall provide sanitary sewer service to the Subject Property in conformance with City ordinances and other applicable requirements of law by the earlier of (i)three (3)years from the date of the issuance of the temporary occupancy permit for the Subject Property or (ii)the issuance of a permit for the development of any of the properties owned by the Developer located to the south of the Subject Property and north of the railroad right of way.This approval is limited solely and only to the Subject Solid Waste Transfer Station and should not be construed as precedent for any additional approvals in the area of the Subject Property.The City will issue only a temporary occupancy permit for the Subject Property until such time as sanitary sewer service is supplied to the Subject Property in accordance with all applicable City ordinances and other requirements of law.One of the conditions on the temporary occupancy permit shall be the requirement that sanitary sewer service be supplied to the Subject Property as required in this Agreement. 6.It is agreed and understood that in the event Developer and/or its successors and/or assigns fail to comply with the terms of this Agreement,(hereinafter called an "Event of Default"),the City may in addition to any other remedies available to the City,issue a stop work order for the Subject Property.It is further agreed and understood that upon the occurrence of an Event of Default the City may,in addition to any other remedies available to the City,refuse to issue an occupancy permit for the Subject Property,temporary or otherwise,or in the event that an occupancy permit has been issued,temporary or otherwise,revoke such occupancy permit. 7.Notwithstanding anything to the contrary in this Agreement,Developer hereby agrees to and shall save the City of Elgin,Illinois,a municipal corporation,and its officials, officers,employees,attorneys,and agents (collectively the "City")harmless from and against and shall indemnify the City from and against any and all losses,liabilities,damages,claims, judgments,fines,suits,demands,costs,interest and expenses of any kind or nature whatsoever (including,but not limited to,reasonable attorney's fees and expenses)asserted against or incurred by the City in connection with any claim,proceeding or judgment (and the defense thereof)arising (i)in connection with the terms of this Agreement,and/or (ii)the Developer proceeding with construction of the Subject Solid Waste Transfer Station on the Subject Property under the terms of this Agreement.Developer acknowledges and agrees that it is proceeding with the construction activities relating to the Subject Solid Waste Transfer Station on the Subject Property at its sole and exclusive risk without any liability whatsoever to the City. 8.The parties hereby covenant and agree that they will at all times after the execution of this Agreement do,execute,acknowledge,and deliver and will cause to be done, executed,acknowledged and delivered all such further acts,documents,and instruments as may reasonably be required in order to carry out fully and effectuate the purposes and acts contemplated in this Agreement. 9.This Agreement represents the entire agreement between the parties hereto with respect to the matters specifically described herein and shall not be modified or affected by any offer,proposal,statement,or representation,oral or written,made by or for either party in connection with the negotiation of the terms hereof.No future modification or amendment of this Agreement may be made,except by written agreement executed by the parties hereto.No failure by the parties hereto to insist upon the strict performance of any covenant,duty, agreement,or condition of this Agreement or to exercise any right or remedy upon a breach thereof shall constitute a waiver of any such right or remedy or any other covenant,agreement, term,or condition.Any party hereto,by written notice,may,but shall be under no obligation to, waive any of its rights or any conditions to the obligations hereunder,or any duty,obligation or covenant of any other party hereto.No waiver shall affect or alter this Agreement,but each and every covenant,agreement,term and condition of this Agreement shall continue in full force and effect with respect to any other then existing or subsequent breach thereof. 10.Time shall be of the essence of this Agreement and the performance of all covenants,agreements,and obligations hereunder. 11.All notices and other communications to be given hereunder by any party to the others shall be in writing and sent by personal delivery,overnight courier with evidence of receipt,or certified or registered mail,return receipt requested,postage prepaid,addressed: If to City:City of Elgin 150 Dexter Court Elgin,IL 60120 Attn:City Clerk With a copy to:City of Elgin 150 Dexter Court Elgin,IL 60120 Attn:Corporation Counsel If to Developer:Gifford 300,LLC c/o Dean Kelley Bluff City Materials,Inc. 2252 Southwind Boulevard Bartlett,IL 60103 With a copy to:Peter C.Bazos Schnell,Bazos,Freeman,Kramer,Schuster and Vanek 1250 Larkin Avenue,Suite 100 Elgin,IL 60123 or at such other addresses as the parties may designate to the other by written notice in the manner herein provided.Any such notices or election shall be effective upon deliver,if personally delivered,one (1)day after delivery to the overnight courier or two (2)days after depositing same in the United States mails. 12.This Agreement shall inure to the benefit of,and shall be binding upon the parties hereto and their respective successors,assigns and grantees. 13.This Agreement is not intended and shall not be deemed or construed to evidence or create an employment,joint venture,partnership or other agency relationship between the parties hereto. 14.If the Developer,or any of their successors,assigns or grantees fails or refuses to carry out any of the covenants or obligations hereunder,the City shall be entitled to pursue any and all available remedies available at law,equity or otherwise,including,but not limited to,the right to specifically enforce the terms of this Agreement.Venue for the resolution of any disputes or the enforcement of any rights pursuant to this Agreement shall be in the Circuit Court of Kane County,Illinois.In the event any lawsuit is brought by the City for the enforcement of any of the obligations of this Agreement,and the City is a prevailing party to such action,the City shall also be entitled to recover against the defendants in such lawsuit reasonable attorneys' fees and court costs.Notwithstanding anything to the contrary in this Agreement,no action shall be commenced by the Developer,and/or any of their successors,assigns and/or grantees against the City for monetary damages.Developer on behalf of themselves,and their successors,assigns and grantees further hereby acknowledge the propriety,necessity and legality of this Agreement and all of the terms thereof,including,without limitation,the obligations to pay all costs related to the Subject Stormwater Improvements and the obligations to indemnify and hold the City harmless,and do further hereby agree and do waive any and all rights to any and all legal or challenges or defenses to this Agreement and the terms hereof and hereby agree and covenant on behalf of themselves and their successors,assigns and grantees not to sue the City or maintain any other legal action or defense against the City with respect to this Agreement and/or the terms hereof. 15.This Agreement may be executed in any number of counter-parts,each of which counter-parts,when executed and delivered,shall be deemed to be an original and all of which counter-parts,taken together,shall constitute one in the same instrument. IN WITNESS WHEREOF,the parties have entered into and executed this Agreement as of the day and year first above written. CITY OF ELGIN GIFFORD 300,LLC F:\Legal Dept\Agreement\Gifford LLC-Construction Agreement-5-2-06-WAC-cIean.doc