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Home My WebLink About09-239Resolution No. 09 -239 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT REGARDING PUBLIC IMPROVEMENTS IN THE RANDALL, ROSE AUTO MALL SUBDIVISION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Ed Schock, Mayor, and Diane Robertson, City Clerk, be and are hereby authorized and directed to execute an agreement on behalf of the City of Elgin regarding public improvements in the Randall Rose Auto Mall Subdivision, a copy of which is attached hereto and made apart hereof by reference. s/ Ed Schock Ed Schock, Mayor Presented: November 4, 2009 Adopted: November 4, 2009 Vote: Yeas: 7 Nays: 0 Attest: s/ Diane Robertson Diane Robertson, City Clerk 8/1.0/09 THIS AGREEMENT made this Y7= day of 2009, by and between Randall 90, LLC, an Illinois limited liability company (`Randall 90 "), Heath 79, LLC, an Illinois limited liability company (`Heath "), SWC Rand & Willow, LLC, an Illinois limited liability company ( "SWC ") and Wolf & Laraway, LLC, an Illinois limited liability company (`Wolf', with Randall 90, Heath, SWC and Wolf being hereinafter collectively called the "Owners ") , and City of Elgin, an Illinois municipal corporation (the "City "). WHEREAS, Owners are the developer of the Randall Rose Auto Mall Subdivision in the City of Elgin, Illinois (the "Subdivision ") and continue to own 8 of the 9 commercial lots (`Lots ") within the Subdivision; and WHEREAS, Owners have substantially completed all of the public improvements within the Subdivision; including, without limitation, the public streets, curbs, gutters, sanitary sewers, storm sewers, water improvements, street lights, sidewalks, public landscaping and the like (collectively the "Public Improvements "); and WHEREAS, the Owners wish to (i) install the final lift of asphalt (the "Final Lift") on the streets within the Subdivision (the "Subdivision Streets ") and (ii) have the City accept said Subdivision Streets immediately following the installation of the Final Lift, even though it is the policy of the City not to accept public streets for City maintenance until such time as seventy percent (70 %) of the developable lots in a subdivision have been developed (which, in the case of the Subdivision, would require that six (6) of the 9 Lots be developed); and WHEREAS, Owners have also requested that the City accept the other Public Improvements (other than the Subdivision Streets) within the Subdivision; and WHEREAS, the City has certain concerns about accepting the maintenance responsibility for the Subdivision Streets until such time as six (6) of the Lots have been developed; and WHEREAS, the parties have discussed the concerns of the City, and the matters in issue between them, and have come to certain understandings regarding same, and desire to reduce said understandings to writing to memorialize their agreement regarding them. IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN, AND OTHER GOOD AND VALUABLE CONSIDERATION, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES AGREE AS FOLLOWS: 1. Within sixty (60) days of Owners having completed and corrected at their expense all outstanding punch list items for such Public Improvements to the satisfaction of the City's Engineer, a copy of which punchlist items are attached hereto as Exhibit 1, subject to the terms hereof, the City shall by appropriate Resolution of the City Council accept the Public Improvements within the Subdivision. 2. Upon said acceptance by the City, but subject to the provisions of Paragraph 4 below, the City shall release the three (3) letters of credit previously posted by Owners to secure satisfactory completion of said Public Improvements in said Subdivision (collectively the "Construction LCs "). 3. Despite said acceptance, and as an express condition thereof, Owners shall have the following obligations: a. Owners shall be responsible to repair at Owners' expense to the satisfaction of the City's Engineer any damage (hereinafter called "Pre - Development Damage ") caused to said Public Improvements caused by any and all persons involved in, or resulting from, construction on any of the Lots in the Subdivision until such time as six (6) of the Lots have been issued final occupancy permits. The costs of malting such repairs until such six (6) lots have been issued final occupancy permits shall hereinafter be called "Pre - Development Repair Costs ". All Pre - Development Damage, if any, shall be limited to the areas reasonably requiring such repair as determined by the City's Engineer and shall be performed in a manner consistent with, and so as to blend into the original, non - damaged Public Improvements as determined by the City's Engineer. Notwithstanding the foregoing, damage to the Public Improvements caused by City vehicles or individuals not involved with the construction on Lots within the Subdivision shall not be considered to be Pre - Development Damage and shall not be the responsibility of Owners to repair. There shall exist a rebuttable presumption that any damage to the Public Improvements shall be considered to be Pre - Development Damage and shall be responsibility of the Owners to repair. In the event the Owners wish to contend that certain damage to the Public Improvements is not Pre - Development Damage and not the responsibility of the Owners to repair, the Owners shall submit documentation of same to the City Engineer for the City Engineer's consideration. The determination of whether any damage to the Public Improvements constitutes Pre - Development Damage shall be made by the City Engineer which determination shall be binding. b. If the Owners fail to make such repairs to the Public Improvements suffering Pre - Development Damage to the satisfaction of the City's Engineer and to pay the Pre - Development Repair Costs associated therewith, then the City shall have the right to deduct from future payments due the Owners under the Development Agreement between the Owners and the City (the "Development Agreement ") the Pre - Development Repair Costs which should have been paid by the Owners. C. Upon the issuance of the final occupancy permit for the sixth (6`'h) Lot within the Subdivision, the City shall inspect the Public Improvements and notify the Owners of the Pre - Development Damage, if any, then remaining to be repaired by the Owners, the cost of which shall be the responsibility of the Owners. In addition to any and all other Pre - Development Damage, it is acki rowledged that if, at the time issuance of the final occupancy permit for the sixth (6 "') Lot within the Subdivision, the surface of all or any 2 portion of the Subdivision Streets reasonably requires replacement as determined by the City's Engineer, then the City may require the Owners at their cost to grind off and repave such portion (or all) of the surface of the Subdivision Streets. 4. Owners shall, prior to expiration or release of its currently outstanding Construction LCs (which the City agrees to release within 60 days following the completion by Owners of all punch list items), post with the City (i) a letter of credit (the "Street Maintenance LC") in an amount equal to Eighty -Three Thousand Six Hundred Eleven and 71 /100ths ($83,611.71) Dollars, being ten percent of the original estimate of the cost of the Subdivision Streets (including the streets themselves and the associated curbing, gutters and sidewalks), to secure Owners' maintenance obligations as to the Subdivision Streets and (ii) a separate letter of credit (the "General Maintenance LC ") in an amount equal to Two Hundred Thirty -Nine Thousand One Hundred Thirty -Six and 65 /100ths ($239,136.65) Dollars, being ten percent (10 %) of the original estimate for underground improvements, plus ten percent (10 %) of the original estimate for surface improvements (other than Subdivision Streets) and plus ten percent (1.0 %) of the original estimate for the sidewalk and parkway landscaping improvements. It is further agreed that: (a) The Street Maintenance LC shall remain in place until such time as six (6) of the Lots have been issued final certificates of occupancy, at which time the City shall promptly release same so long as all Pre - Development Damage, if any, has been repaired by the Owners; and (b) The General Maintenance LC shall remain in place for one (1) year from the date of release of the Constriction LC, at which time the City shall release same. (c) In the alternative, the currently outstanding Construction LC may be modified in its terms and reduced as to amount in order to meet the requirements of this Agreement with respect to the Street Maintenance LC and the General Maintenance LC. 5. Miscellaneous Provisions a. This Agreement shall not be modified, altered or amended without a further written document signed by each of the parties hereto. b. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each party hereto. c. Venue of any action for enforcement of, or arising out of any breach of, the terms and provisions of this Agreement shall lie in the Circuit Court of Kane County, Illinois. d. Each person signing and delivering this document covenants and warrants that he /she has been duly authorized to do so for and on behalf of the party for whom he /she has taken such action. 3 e. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally or mailed by registered or certified mail (return receipt requested) to the parties at the following addresses (or such other addresses for a party as shall be specified by like notice), and shall be deemed received on the date on which so hand - delivered or on the second (2nd) business day following the date on which so mailed: To the City: City Elgin 150 Dexter Court Elgin, 11 60120 Attn: City Manager with copy to: City of Elgin 150 Dexter Court Elgin, Illinois 60120 Attn: Corporation Counsel To Owners: Randall 90, LLC 9440 Enterpri se Drive Mokena, IL 60448 Attn: Joseph Bochenski With a copy to: Attn: Sherwin Portnoy 1.4604 Kishwaukee Valley Rd. Woodstock, IL 60098 With a copy to: Bazos, Freeman, Kramer, Schuster, Vanek & Kolb Attn: Peter C. Bazos, Esq. 1250 Larkin Avenue Elgin, Illinois 60123 [Signature pages follow] Executed and delivered at Elgin, Kane County, Illinois the day and year first above written. CITY OF ELGIN Attest: L City Clerk OWNERS: RANDALL 90, LLC an Illinois limited liability company Heath 79 LLC an Illinois limited liability company Title: Manager SWC Rand & Willow LLC an Illinois limited liability company Wolf & Laraway LLC an Illinois limited liability company, Title: Manager BLegal DeptVAgreement \LFl Auto Mall - Randall 90- Acceptance Agreement -v4- clean.doc EXHIBIT 1 PUNCHLIST GENERAL ITEMS Landscaping not started. Need to consolidate the numerous piles of dirt, stabilize and surround with silt fence per sheet C -13 of drawings. Detention Basin #2 not graded out per plan, missing 2 Flared End Sections, Restrictor CB — D not installed, 258' 15" RCP not installed and all required plantings not installed. Lots 2 through 9 not graded. Silt fence around site requires maintenance Street light poles 1,2,7,9,12,13,14, 15 and 16 not erected. Surface course of asphalt not in place. Traffic signage and street name signs per sheet C -21 not in place. Street striping per sheet C -5A not installed. Need videos of storm and sanitary. EXHIBIT 1 22M r Auto Mall Dr Station Problem 21 +84,Lt Curb & Gutter chipped 21 +94 to 24 +64, Lt Missing Sidewalk 22 +04, Lt Gutter chipped 22 +09 Lt Curb &cuter cracked 22 +44, Lt Gutter chipped 22 +747 Rt Gutter chipped 25 +39 Lt 1 Square of Sidewalk missing 26 +09, Lt Gutter chipped 26 +44, Rt Gutter chipped 26 +69, Lt 1 Square of Sidewalk missing 26 +94, Lt Gutter chipped 28 +24, Lt R &R 4' Curb &Gutter 28 +39, Rt Curb chipped 28 +64, Lt Gutter chipped 28 +94, Rt Curb &Gutter cracked 29 +04, Rt Gutter chipped 30 +24, Lt Gutter chipped 30 +39, Rt Gutter chipped 30 +44, Lt Curb &Guter cracked 31 +64, Lt Curb &Gutter chipped 32 +14, Rt Curb chipped 32 +34, Lt Curb &Gutter chipped 32 +50, Lt Sidewalk undermined 2 spots 33 +89, Lt Sidewalk undermined 36 +34 to 37 +84, Lt Numerous spots sidewalk undermined 38+24, Rt to 44 +00, Rt Missing Sidewalk 38+54, Rt Curbed chipped 39 +14,Lt Gutter chipped 39 +341 Rt Gutter chipped 39 +39, Rt Gutter chipped 39 +44, Lt Gutter chipped 39 +64, Lt Gutter chipped 40 +54, Lt Gutter chipped 40 +84, Lt Gutter chipped 40 +94, Lt Gutter chipped 41 +44, Lt Curb chipped 41 +69, Lt Gutter chipped 42 +09, Lt Gutter chipped 42 +14, Lt Gutter chipped 42 +44, Lt Gutter chipped 42 +84 Crack 44 +00 Chipped Auto Mall Circle Station Problem Auto Mall Circle entirety Missing Sidewalk 10 +10 to 11 +75 Missing Sidewalk, Curb &Gutter, and Asphalt 11 +60, Lt Gutter chipped 13 +45, Rt Curb chipped 13 +50, Lt Gutter chipped 14 +50, Lt Curb chipped 15 +55, Lt R &R 4' Curb &Gutter 16 +90, Lt Gutter chipped 17 +90, Rt Gutter chipped 18 +60, Lt Gutter chipped 19 +90, Lt Crack 21 +40, Lt Gutter chipped 23 +55, Rt Crack 23 +8Q Lt Curb chipped 29 +90, Rt Curb chipped 30 +00, Rt Curb chipped 8' 30 +10, Lt Gutter chipped Hydrant Walk Through Inspection 8-14 -09 Hydrant # Problem 2 Remove chains on caps 3 Remove chains on caps 7 Remove chains on caps S iOLf} 1 Grout or re out vault 8 Remove chains on ca ps — turns hard ! tube upper stem per manufacturer 12 Remove chain on caps — turns hard / lube upper stern per manufacturer 12A Remove chains on caps — turns hard I tube upper stem per manufacturer 18 Remove chains on caps — turns hard / lube upTer stem per manufacturer 19 Remove chains on gaps — lower entire h d. to grade 34 Remove chains on caps — lower entire h d. to grade 33 Remove chains on caps — raise h d. to proper depth of bury 28 Remove chains on caps — raise h d. to proper depth of bury 26 Remove chains on caps — lower entire h d. to grade 21 Remove chains on caps 22 20 Remove chains on caps Valve, Vault, & V -box walk Through Inspection 8 -14 -09 1 Re-grout Vault H d. 3 Aux. v -box for h d. offset 6 Raise vault structure / frame to grade 9 Grout or re out vault 9A Grout or re out vault 13 Grout or re- out vault / full of water, need to inspect when pumped 17 Grout or re- out vault 37 Grout or re -grout / full of water, need to inspect when pumped H d. 34 Depth of main at aux. valve is only 4'11" 30 Re-grout vault 27 Grout or re- out vault / full of water, need to inspect when pumped 25 Grout or re-grout vault / full of water, need to inspect when pumped out i grade ? H d. 24 Aux. valve - Adjust v -box to grade 22 Grout or re-grout vault / full of water, need to inspect when pumped out ! grade ? B -Box Walk Through Inspection 8 -14 -09 No # Irrigation sere. East of H d. 3 — can't find it 16 2" serv. — b -box offset — raise to SE4& 30B 2" serv. — raise V -Box to ELde 32 B -Box — top section offset 23 B -Box — raise to grade F1 t4W M® 4W e7' N p$,J$ {. �'¢y�.� ® % x 4q (qua ® � {{�j [ 77 __ gyp✓Ri.PP� Wr ° �._,_s_. 6�,'�,r'°�- i- l yu�p��y+yv$�.: . a�Y �n.�'8 }a'"0�` p..�(p✓wawtlt �/^�y W 1W Mod"' >�.o�°p«w � 4'3 A✓ } `a �$N !—E. �nwd � /qp 'ja1 7 I I ,i 9 me _ yi C_ gp�W r^ m a 9 g CaB'I'ts ®s w wmV.✓ R a �`iC. STi m 70 roe f r , tad- i P I� -- — - -- — — . —_ P� rE �nY,. !jam E z P j W.% Lj" °A% O °.d °° '^r - -- so •�., v-"'� �� S� �* e.TWl"�. N�2r' �'4 *� i°awd C eb &` B@`•16.J'+ _B e is `a ti ✓'i �7� �+ � ttpp �. e, Ems' c� � �' r ..«r �. C .ey 5 OIL 69 07co" I 5 sn O Ot ate, t 4 M -- -- _ . a s Ds to B°w Ca. /ma - fir,. �- � �.�»✓� '� •� l" _— -- -- - -- -- - -- 5TD/L-,i.. c� - - -- - – G am, 0 e C ,i , -- -_ _ - _ _ --- ------------ __ It �..t6':✓L,. qw. ' of It .q J 5,.00 i �4P key a p CR i -- - - -' — ... a, i - - - -- — .. — - -- - - -- —' — -- — ...... - - -- ---------- ------- ..._ -_. — - -- - - - -- — -- ----------- - -- — — — - -- -- — s City of Elgin Y Date: To: From: Subject: November 16, 2009 Mary Giffort, Paralegal Jennifer Quinton, Deputy City Clerk Memorandum Resolution No. 09 -239, Adopted at the November 4, 2009, Council Meeting Enclosed you will find the agreement listed below. Please retain a copy for your records. If you have any questions please feel free to contact our office 847 - 931 -5660 and we will do our best to assist you. Thank you. • Agreement Regarding Public Improvements in the Randall Rose Auto Mall Subdivision