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HomeMy WebLinkAbout11-39 Resolution No. 11-39 RESOLUTION AUTHORIZING EXECUTION OF ACCESS AGREEMENT WITH ARTSPACE PROJECTS, INC. (51 S. Spring Street) 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 access agreement with Artspace Projects,Inc.on behalf of the City of Elgin,a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: February 23, 2011 Adopted: February 23, 2011 Vote: Yeas: 7 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk ACCESS AGREEMENT THIS ACCESS AGREEMENT is made and entered into as of this /yj day of February, 2011, by and between the City of Elgin, an Illinois municipal corporation (hereinafter referred to as the "City") and Artspace Projects, Inc., a Minnesota not-for-profit corporation, authorized to do business in the State of Illinois(hereinafter referred to as"Developer"). WHEREAS, the City and Developer have previously entered into a development agreement dated May 12, 2010, relating to the Artspace project for the property at 51 S. Spring Street, Elgin, Kane County, Illinois (such property being hereinafter referred to as the "Subject Property"and such development agreement as amended by the first amendment thereto agreed to between the City and the Developer dated November 17, 2010, being hereafter referred to as the "Subject Development Agreement");and WHEREAS, the Subject Development Agreement provides in part for the City to convey to the Developer the Subject Property on or before September 1,2011; and WHEREAS, Developer has requested that the City allow limited access to the Subject Property prior to the conveyance of the Subject Property from the City to Developer to allow the Developer to further examine certain physical characteristics of the Subject Property in order for the Developer to complete its development plans for the Subject Property; and WHEREAS, the City has agreed to allow the Developer limited access to the Subject Property as set forth herein subject to the terms and conditions of this access agreement. NOW,THEREFORE,for and in consideration of the mutual undertaking set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,the parties hereto agree as follows: • 1. That subject to the terms and conditions of this agreement,the City hereby grants to the Developer a non-exclusive right of access to enter onto the Subject Property for the sole purpose of making further inspections to the improvements on the Subject Property with respect to the structure of the buildings on the Subject Property, mechanical systems on the Subject Property and the electrical systems on the Subject Property. Nothing contained in this agreement shall be construed or interpreted to grant the Developer an easement,tenancy, leasehold interest or any other real property interest in the Subject Property. Notwithstanding anything contained herein to the contrary, at all times during the term of this agreement, the City and any of its officials, officers, employees and/or agents shall be entitled to occupy and otherwise use the Subject Property or any portion of the Subject Property for any purpose determined by the City in the City's sole discretion. 2. That it is understood and agreed that the Developer, its third-party contractors, employees or other agents (the "Developer Parties") shall have the right to access the Subject Property as permitted under Paragraph 1 of this agreement provided that all the Developer Parties comply fully with the terms and provisions contained in this agreement. Third-party contractors of the Developer shall consist of qualified architects, engineers and contractors who are qualified and capable of conducting the proposed inspections on the Subject Property without causing damages to the Subject Property. Following the exercise by the Developer and the Developer Parties of the access rights granted herein, the Developer and Developer Parties shall promptly repair and restore the Subject Property to the same condition as existed immediately prior to the exercise of such rights as is reasonably practicable and shall leave the Subject Property free from debris. -2 - 3. That in order to obtain access to the Subject Property pursuant to this agreement the Developer shall make a written request to the City advising the City of the date(s)and time(s) the Developer wishes to have access to the Subject Property. Unless the City determines in its sole discretion that access cannot be provided to the Subject Property on a particular date(s) or time(s) as requested by the Developer, the City will have a city representative meet the Developer Parties at the Subject Property on the date(s) and time(s) requested and allow the Developer Parties into the Subject Property. Developer Parties' use of the Subject Property shall be limited to solely and only of making further inspections to the improvements on the Subject Property with respect to the structure of the buildings on the Subject Property, mechanical systems on the Subject Property and the electrical systems on the Subject Property. Developer Parties shall make such inspections without causing any damage to the Subject Property or improvements thereon including, but not limited to, without causing damages to,any structural components, mechanical systems or electrical systems. Without limiting the foregoing, Developer Parties shall make the necessary contacts to determine the location of all utilities, both above ground and underground, and shall exercise due care to avoid damaging such utilities and shall promptly repair any damage occurring as a result of their activities. Notwithstanding the foregoing, Developer Parties will be permitted to make limited and discreet openings in walls and ceilings within the buildings on the Subject Property but only as reasonably necessary to conduct inspections of the structural components of the buildings, mechanical systems and electrical systems. Such discreet openings in the walls and ceilings shall be performed by a qualified contractor in a workmanship like manner. At the direction of the City, the Developer and the Developer Parties shall repair and restore any such openings in the walls'or ceilings in the buildings on the Subject Property. If such repairs are requested by the City, and the - 3 - Developer fails to provide for such repairs, the City reserves the right to make such repairs and Developer shall reimburse the City the cost thereof. Developer Parties will also be permitted to conduct soil borings in the existing parking lot on the Subject Property. Developer and Developer Parties shall promptly repair and restore the parking lot to the same condition as existed immediately prior to the soil borings as is reasonable practicable and shall leave the Subject Property free from debris. 4. That to the fullest extent permitted by law, Developer agrees to and shall indemnify, defend (by legal counsel reasonably approved by the City's Corporation Counsel) and hold harmless the City, its officials, officers, employees, agents and affiliated persons or entities (the "Indemnified Parties") from and against any and all claims, actions, proceedings, suits,judgments, costs, expenses, attorneys' fees, injury (including death), property damage and destruction and any other damages or relief, including but not Iimited to workers' compensation claims, in any way resulting from or arising out of or relating to (i) Developer Parties or any other persons, firms and corporations acting on the Developer's behalf or with the Developer's authority accessing the Subject Property pursuant to this agreement; or (ii) any failure by the Developer or any other Developer Parties to comply with the terms and provisions of this agreement. Developer further agrees to indemnify, defend (by legal counsel reasonably approved by the City's Corporation Counsel) and hold harmless the Indemnified Parties from any and all liens placed against the Subject Property arising from or in any way relating to said Developer activities. Developer agrees to require the other Developer Parties not to place any liens upon any portion of the Subject Property. Upon execution of this agreement, Developer shall deliver to the City a certificate of insurance evidencing proof of Developer's general liability and other insurance described hereinafter. Prior to entry onto the Subject Property, -4- Developer shall provide and cause any other Developer Parties to provide to the City, for its prior reasonable approval, with copies of the certificates, which represent all insurance required below, and will insure that such insurance is not subject to modification or termination without at least thirty (30) days prior written notice to the City. The Developer and the other Developer Parties,as applicable, will maintain the following coverages in the following amounts: (a) Comprehensive general liability insurance covering the Developer, Developer Parties, if applicable,the City and the other Indemnified Parties for claims of bodily injury, personal injury and property damage arising out of the use of the Building for limits not less than: Bodily Injury Liability: $1,000,000 each occurrence, $2,000,000 annual aggregate with additional umbrella liability coverage therefor in an amount not less than$5,000,000. Personal Injury Liability: $1,000,000.00 each occurrence, $2,000,000 annual aggregate with additional umbrella liability coverage therefor in an amount not less than$5,000,000. Property Damage Liability: $1,000,000 each occurrence, $2,000,000, annual aggregate with additional umbrella liability coverage therefor in an amount not less than$5,000,000. (b)Auto Liability: $1,000,000 combined single limit. (c) Worker's Compensation in the amount required by applicable law, with Employer's Liability of not less than $500,000.00 per accident and $100,000.00 per employee disease($500,000.00 policy limit-disease). 5. That to the fullest extent permitted by law, Developer hereby assumes and agrees to release, acquit and waive any rights which Developer may have against and forever discharge the Indemnified Parties from and against any and all claims, damages or liabilities imposed upon them by law or otherwise of every kind, nature and character on account of personal injuries, including death at any time resulting therefrom, and on account of damage to or destruction of property arising out of or in any way relating to or occurring in connection with the use or access of the Subject Property, which may occur to or be incurred by any of the Indemnified Parties - 5 - (except to the extent such injuries or damages are caused by the gross negligence or willful misconduct of an Indemnified Party seeking the waiver and release hereunder), or arising from the condition of the Subject Property. The provisions of this paragraph shall survive any completion,expiration and/or termination of this agreement. 6. That if the Developer or any Developer Parties violates or breaches any term of this agreement, such violation or breach shall be deemed to constitute a default, and the City shall have the right to seek legal or equitable remedies as may be available for the breach or violation; and, in addition, if the Developer or any Developer Parties fails to within five (5) business days after notice of default by the City to comply with the conditions of this agreement, the City may terminate this agreement. In the event the City breaches any of the terms or provisions of this agreement, and the City fails to within five (5) business days after notice thereof by the Developer to comply with the conditions of this agreement, the Developer as its sole and exclusive remedy may terminate this agreement. Any waiver by the City of a breach of any provision of this agreement shall not constitute a waiver of any subsequent breach of this agreement, nor shall the City's delay in exercising any right or remedy operate as a waiver of such right or remedy. No waiver under this agreement shall be valid unless made in writing and signed by the City. Notwithstanding anything to the contrary in this agreement, the Developer and the Developer Parties shall not file or maintain any action against the City for monetary damages as a result of this agreement or the access to the Subject Property permitted pursuant to this agreement. 7. That the term of this agreement shall commence upon the execution by the parties hereto and shall terminate as of the closing of the conveyance of the Subject Property from the -6 - i City to the Developer. Additionally, either party may terminate this agreement upon written notice to the other party. 8. That no amendment, revision or modification to this Agreement shall be effective unless it is in writing and signed by all parties hereto. 9. That this Agreement shall be governed by and construed in accordance with the laws of the State of Illinois. The parties shall submit all disputes which arise under this agreement to the Sixteenth Judicial Circuit of Kane County, Illinois. The parties acknowledge that the aforesaid court shall have exclusive jurisdiction over this agreement and specifically waive any claims, which they may have that involve jurisdiction or venue, including but not limited to forum non conveniens. 10. That this Agreement shall be binding on the parties hereto, their successors and permitted assigns. Developer shall not have the right to assign this agreement to any other party without the City's prior written consent. Developer shall not record this agreement or any memorandum of this agreement. 11. That all notices which concern this agreement shall be given in writing, as follows: (i)by actual delivery of the notice into the hands of the other party entitled to receive it, in which case such notice shall be deemed given on the date of delivery; (ii) by mailing such notice by registered or certified mail, return receipt requested, in which case such notice shall be deemed given two (2) business days from the date of its mailing; (iii) by Federal Express, UPS, DHL or any other overnight carrier, in which case such notice shall be deemed given one (1) business day from the date of its mailing; or (iv) by e-mail, in which case such notice shall be deemed given on the date it is sent. All notices, which concern this agreement, shall be addressed as follows: - 7 - If to the City of Elgin: William A.Cogley Corporation Counsel/Chief Development Officer City of Elgin 150 Dexter Court Elgin,Illinois 60120 E-Mail: cogley_w@cityofelgin.org With a copy to: Cherie Murphy Assistant to City Manager for Community Engagement City of Elgin 150 Dexter Court Elgin,Illinois 60120 E-Mail: murphy_c@cityofelgin.org If to Developer: Artspace Projects, Inc. Greg Handberg Senior Vice-President of Property Development 250 Third Avenue N Suite 500 Minneapolis,Minnesota 55407 E-Mail: greg.handberg@artspace.org With a copy to: Heidi Kurtze Artspace Projects,Inc. 250 Third Avenue N Suite 500 Minneapolis,Minnesota 55407 E-Mail: heidi.kurtze@artspace.org - 8 - With a copy to: Andrew Michaelson Artspace Project Manager 250 Third Avenue N Suite 500 Minneapolis,Minnesota 55407 E-Mail: andrew.michaelson@artspace.org 12. That this agreement shall be deemed and construed to be a joint and collective work product of the City and the Developer, and,as such, this agreement shall not be construed against the other party, as the otherwise purported draft or of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, in the terms or provisions contained herein. 13. That 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. That this agreement is not intended and shall not be deemed or construed to alter or otherwise amend the Subject Development Agreement between the parties. It is agreed and understood that the Subject Development Agreement remains in full force and effect. 15. That this agreement may be executed in any number of counter-parts, each of which counter-part, when executed and delivered, shall be deemed to be an original and all of which counter-parts, taken together, shall constitute one and the same instrument. Facsimile signatures and/or electronic signatures shall be sufficient for the purpose of executing this agreement. 16. That each of the undersigned hereby represents and warrants that they are authorized to execute this agreement on behalf of the parties and that this agreement, when - 9 - executed by the party, shall be a valid and binding obligation, enforceable in accordance with its terms. IN WITNESS WHEREOF, the parties hereto have entered into and executed this agreement on the date and year first written above. CITY OF ELGIN,a municipal ARTSPACE PROJECTS,INC., corporation a Minnesota not-for-profit corporation BY erms' Le''' By Mayor Its h. K— Attest: City Clerk F:1Legal Dept Agreement\Access Agreement-Artspace-51 S Spring-clean-02-I8-11.docx - 10-