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HomeMy WebLinkAbout22-201 Resolution No. 22-201 RESOLUTION AUTHORIZING EXECUTION OF TYLER CREEK WATERSHED STREAMBANK STABILIZATION PROGRAM GRANT AND LOAN AGREEMENT WITH GARDEN QUARTER I ASSOCIATION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Richard G. Kozal, City Manager, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute a Tyler Creek Watershed Streambank Stabilization Program Grant and Loan Agreement on behalf of the City of Elgin with Garden Quarter I Association, for funding assistance in connection with the city's Tyler Creek Watershed Streambank Stabilization Program, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain _ David J. Kaptain, Mayor Presented: November 16, 2022 Adopted: November 16, 2022 Omnibus Vote: Yeas: 8 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk TYLER CREEK WATERSHED STREAMBANK STABILIZATION PROGRAM GRANT AND LOAN AGREEMENT THIS AGREEMENT is made and entered into this 16 th day of November ,2022,by and between the City of Elgin,Illinois,a municipal corporation, (hereinafter referred to as the "City") and GARDEN QUARTER I ASSOCIATION, an Illinois not-for-profit corporation(hereinafter referred to as the"Applicant"). WITNESSETH WHEREAS, the Applicant is the owner of the property commonly known as GARDEN QUARTER I ASSOCIATION, Elgin, Illinois (hereinafter referred to as the "Subject Property"); and, WHEREAS, the Applicant has made an application to the City for funding assistance pursuant to the City's Tyler Creek Watershed Streambank Stabilization Program (hereinafter referred to as the"Program"),to be used for streambank stabilization improvements at the Subject Property; and, WHEREAS,the City has established a fund to be utilized for watershed protection efforts within the Tyler Creek Watershed(hereinafter the"Tyler Creek Fund"); and, WHEREAS, the City has determined the streambank stabilization improvements at the Subject Property would further watershed protection within the Tyler Creek Watershed and are an appropriate use of the Tyler Creek Fund; and, WHEREAS, the City has agreed to provide funding assistance to the Applicant for the work described herein on the Subject Property, pursuant to the terms and conditions of this Agreement; and, WHEREAS,the City of Elgin is a home rule unit of local government which may exercise any power and perform any function pertaining to its government and affairs; and, WHEREAS,providing financial assistance to facilitate the installation of improvements as described herein will promote the public welfare of the community and pertains to the government and affairs of the City. NOW, THEREFORE, for and in consideration of the mutual promises and undertakings contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby mutually acknowledged,the parties hereto agree as follows: 1. The foregoing recitals are incorporated into this Agreement in their entirety. 2. The Applicant represents and warrants that he/she complies with the applicant eligibility guidelines for the Program, including the following: 1 a. The Applicant owns the Subject Property and is at least eighteen(18)years of age, or has been designated and authorized by the owner of the Subject Property to commit the changes proposed on the Subject Property. b. The Subject Property is located with the corporate limits of the City of Elgin. c. The Subject Property is located within the Tyler Creek Watershed. d. The streambank stabilization project on the Subject Property has been identified in the Tyler Creek Management Plan and has the support of the Tyler Creek Watershed Coalition. 3. The Applicant shall complete all work proposed under this Agreement in conformance with all applicable codes, ordinances, and laws and in conformance with the Tyler Creek Watershed Streambank Stabilization Program guidelines.Notwithstanding anything to the contrary in this Agreement, it is expressly agreed and understood by the Applicant that in the performance of this Agreement the Applicant shall comply with all applicable federal, state,city and other requirements of law.The Applicant shall also at his/her expense secure all permits and licenses,pay all charges and fees and give all notices necessary and incident to the due and lawful prosecution of the work as described in this Agreement. 4. The Applicant warrants and represents that he/she has obtained at least two (2) written estimates from responsible contractors for the proposed work, and has provided copies of the same to the City. In the event that the proposed work will require more than one (1) contractor, the Applicant warrants and represents that he/she has obtained at least two (2) written estimates from contractors for each discrete and separate aspect of the proposed work,and has provided copies of the same to the City.The Applicant shall select the lowest written estimate submitted by a responsible contractor for the total Work or for each discrete and separate aspect of the proposed Work, subject to approval by the City. The lowest cost estimate(s) and scope(s) of work submitted by responsible contractors for the work to be performed under this Agreement and approved by the City is(are) attached hereto as Attachment A and made a part hereof by this reference(hereinafter referred to as the"Work"). No change shall be made to the cost estimate(s) and/or the scope(s) of work unless approved in writing by the City. 5. The Applicant shall obtain all necessary permits prior to beginning any Work. The Applicant shall begin the work within sixty (60) days of the date of execution of this Agreement. The Applicant shall complete all of the Work within a period of one hundred eighty (180) days after the date of execution of this Agreement. The Work shall be performed in compliance with all applicable City codes and ordinances. The Applicant shall arrange to have the Work inspected at such times as may be required by the City and after the completion of the Work. No funds shall be disbursed prior to an inspection and final approval of the Work by the City, or, in the case of multiple contractors, prior to an inspection and final approval of any discrete and separate aspect of the Work, such 2 inspection and approval constituting a condition precedent to the disbursement of any funds under this Agreement. 6. Following completion, inspection and approval of the Work by the City or, in the case of multiple contractors, following completion, inspection and approval of any discrete and separate aspect of the Work, the Applicant shall present the City with an invoice from the contractor for the total amount of the completed Work for payment. 7. Within thirty (30) days of the receipt and approval by the City of an invoice from a contractor described in Paragraph 6, above, the City shall disburse funds to the contractor in the amount of the invoice,but in no event shall such amount exceed the total cost of the Work provided for in Attachment A or, in the case of multiple contractors, the cost of any discrete and separate aspect of the Work provided for in Attachment A (the total amount of funds to be disbursed by the City on behalf of the Applicant pursuant to this Agreement is hereinafter referred to as the"Program Funds"). The total amount of the Program Funds shall not exceed one hundred forty five thousand two hundred thirty one dollars and six cents ($145,231.06). In no event shall any payment be made by the City prior to the final completion, inspection and approval of the Work by the City or, in the case of multiple contractors, prior to completion, inspection and approval of any discrete and separate aspect of the Work. Any payments under this Agreement shall be conditioned upon the Subject Property being brought into compliance with all applicable codes and ordinances, and all other conditions and requirements of this Agreement having been satisfied. 8. The Program Funds disbursed on behalf of the Applicant shall be as follows: a. Fifty percent(50%)of the Program Funds shall constitute a grant to the Applicant, said grant amount being seventy two thousand six hundred fifteen dollars and 53 cents ($72,615.53), for which no repayment shall be required unless otherwise provided for in this Agreement(hereinafter referred to as the"Grant"). b. Fifty percent (50%)" of the Program Funds shall constitute a 5-year loan to the Applicant,said loan amount being seventy two thousand six hundred fifteen dollars and 53 cents ($72,615.53) (hereinafter referred to as the "Loan"). The following terms and provisions shall apply to said Loan: i. In return for the City providing the monies for the Loan to the Applicant,the Applicant promises to repay to the City in full the Loan amount of$72,615.53 plus interest as provided for in paragraph 8.b.iii of this Agreement. The Applicant will make all payments under this agreement in the form of United States Dollars in cash,check or money order. The Applicant will repay to the City in full the Loan amount, plus applicable interest, on or before the Maturity Date set forth in paragraph 8.b.ii, below. Payments will be made and delivered to the City in the manner set forth in paragraph 8.b.iv,below. ii. The term of such Loan shall be five(5)years from the date on which the City first disburses any Program Funds under this Agreement(hereinafter referred 3 to as the "Maturity Date"). In no event shall the term of a Loan under this Agreement exceed ten(10)years. iii. There shall be no interest charged to the Applicant for the first five (5)years of the term of the Loan if it is repaid in accordance with the terms of this Agreement. Following this five-year period, the Applicant shall be charged interest on the unpaid balance of the Loan at an annual rate equal to the most recently available Bond Buyer 20-Bond Index rate, as published in The Wall Street Journal (hereinafter referred to as the "Interest Rate"). The Interest Rate shall be adjusted annually thereafter on the anniversary date of this Agreement to an annual rate equal to the most recently available Bond Buyer 20-Bond Index rate,as published in The Wall Street Journal.Notwithstanding the foregoing, in the event the Applicant has not repaid the Loan to the City in full by the Maturity Date, then thereafter interest will be charged on the unpaid balance of the Loan at the annual rate of nine percent (9%) until the full amount of the principal and interest of the Loan has been repaid to the City. iv. The Loan shall be repaid to the City in thirty (30) equal bimonthly installments(an installment being due once every two(2)months).The initial amount of said bimonthly installments shall be two thousand four hundred twenty dollars and fifty-two cents($2,420.52) (hereinafter referred to as"Loan Installments"). Following the initial five(5)years of the Loan,the amount of the Loan Installment will be adjusted annually to reflect the amount of interest charged pursuant to paragraph 8.b.iii of this Agreement. The City's Finance Department shall issue a bill to the Applicant reflecting the amount of the Loan Installment on a bimonthly basis. The Applicant agrees that the Applicant's Loan Installments shall be considered a part of the Applicant's sewer and water service charges for all purposes, including the remedies set forth in paragraph 8.b.x of this Agreement. The Applicant further agrees that any payments from the Applicant received by the City shall first be applied to any outstanding Loan Installments then due and owing, and shall then be applied to other charges incurred for sewer and water service, in the City's sole discretion. V. The Applicant agrees that the Loan from the City shall constitute a lien on the Subject Property,and the Applicant further agrees to sign the Lien Agreement attached hereto as Attachment B. Upon the Applicant's receipt of the Loan, the City shall record said lien against the Subject Property at the Applicant's sole cost and expense as security in the event the Applicant fails to repay the Loan and applicable interest, breaches this Agreement in any manner, or attempts to convey the Subject Property prior to full repayment of the Loan and applicable interest. Upon full repayment of the Loan and applicable interest, the City shall perform all necessary actions to release the lien that has been recorded against the Subject Property.The Applicant shall cooperate with the City and shall execute any and all documents as may be necessary to 4 perform the intended effect of this Agreement, including, but not limited to, executing all documents necessary to correct any errors or omissions. vi. The Applicant agrees that, in the event the Applicant wishes to sell, convey or otherwise transfer the Subject Property during the term of this Agreement, then the entire amount of any unpaid balance on the Loan, including applicable interest charges, must be repaid in full prior to or concurrent with any such sale, conveyance or transfer. The repayment in full of the entire amount of any unpaid balance on the Loan and applicable interest charges prior to or concurrent with any sale, conveyance or transfer shall be a condition to the issuance of a City transfer stamp. vii. The Applicant has the right to make payments of principal of the Loan at any time before they are due.The Applicant may make a full prepayment or partial prepayments without paying a prepayment charge.Notwithstanding anything to the contrary in this Agreement, no partial repayments by the applicant of the Loan shall constitute or be construed as a waiver by the City of the right to receive the full repayment of the Loan in the amount of$72,615.53, plus any applicable interest charges. viii. In addition to any other remedies available to the City, if the Applicant does not pay the full amount of the Loan, including applicable interest charges,by the Maturity Date, or if the Applicant does not make a Loan Installment by the date on which it is due, the Applicant will be in default. If the Applicant is in default, the City may send a written notice telling the Applicant that if they do not pay the overdue amount by a certain date, the City may require the Applicant to immediately pay the full amount of the principal of the Loan which has not been paid and all interest that it owes on that amount.That date must be at least thirty(30)days after the date on which the notice is mailed to the Applicant or delivered by other means. If the City has required the Applicant to pay immediately in full the Loan as described in this subparagraph, the City will have the right to be paid back by the Applicant for all its costs and expenses in enforcing this Agreement to the extent not prohibited by applicable law.Those expenses shall include,but not be limited to,reasonable attorney's fees. ix. In addition to any other remedies available to the City, the Applicant agrees that in the event that the Loan is not repaid in accordance with the provisions set forth in this Agreement, the City may commence legal action against the Applicant to collect the Loan and/or to enforce its lien on the Subject Property in accordance with the terms of this Agreement. The Applicant agrees that the City shall also be entitled to collect from the Applicant its attorney's fees and costs for commencing any such legal action. X. In addition to any other remedies available to the City, the Applicant agrees that the Applicant's failure to pay the full amount of the Loan and any 5 applicable interest charges by the Maturity Date, or the Applicant's failure to make a Loan Installment by the date on which it is due, shall constitute grounds to shut-off and/or disconnect the Applicant's water and sewer service, in accordance with the applicable provisions of Chapter 14.04 and Chapter 14.08 of the Elgin Municipal Code. xi. The provisions of these paragraphs 8.b.i through 8.b.xi, inclusive, shall survive any termination of this Agreement, and shall not be construed as a limitation on any other of the City's rights under law or equity. 9. The Applicant further warrants and agrees that it will keep and maintain the streambank stabilization improvements that are the subject of the Work for a minimum of fifteen(15) years from the date on which the Program Funds are disbursed.Any failure of the Applicant to adequately maintain the streambank stabilization improvements, in the sole discretion of the City, shall constitute a breach of this Agreement. 10. In the event the Applicant breaches or otherwise fails to perform any of the terms or provisions of this Agreement, the available remedies to the City shall include, but not be limited to,the immediate termination of this Agreement and the forfeiture by the Applicant of any Program Funds. In the event of such termination and forfeiture, the Applicant shall repay to City any Program Funds paid by the City to the Applicant, or to a contractor on the Applicant's behalf,upon thirty(30)days written demand.It is expressly agreed that the nonpayment or failure to make timely payment of a Loan Installment shall constitute a breach of this Agreement. In addition,the forfeiture and/or repayment of such funds by the Applicant shall not be construed so as to constitute a waiver or relinquishment of any other rights which may be available to City at law or equity. This provision shall survive any termination of this Agreement, and shall not be construed as a limitation on any other of the City's rights under law or equity. 11.Notwithstanding any other provision of this Agreement it is expressly agreed and understood that in connection with the performance of this Agreement that the Applicant shall comply with all applicable Federal, State, City and other requirements of law, including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, Applicant hereby certifies, represents and warrants to the City that all Applicant's contractors and/or agents who will be providing products and/or services with respect to this Agreement shall be legal residents of the United States. Applicant shall also at its expense secure all permits and licenses,pay all charges and fees and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided for in this Agreement. The City shall have the right to audit any records in the possession or control of the Applicant to determine Applicant's compliance with the provisions of this section. In the event the City proceeds with such an audit the Applicant shall make available to the City the Applicant's relevant records at no cost to the City. 6 12.Unless applicable law requires a different method, any notice that must be given to the Applicant under this Agreement will be given by delivering it or by mailing it by first class mail to the Applicant at the Subject Property,or at a different address if the Applicant gives the City a notice of a different address for the Applicant. Any notice that must be given to the City under this Agreement will be given by delivering it or by mailing it by first class mail to the City of Elgin at City of Elgin, 150 Dexter Court, Elgin, Illinois, 60120, Attention: City Manager, with a copy to Corporation Counsel, City of Elgin, 150 Dexter Court, Elgin, Illinois, 60120, or at a different address if the Applicant is given a notice of that different address of the City. 13. The Applicant and any other entity which has obligations under this Agreement waive the rights of Presentment and Notice of Dishonor ("Presentment" means the right to require the City to demand payment of amounts due. "Notice of Dishonor" means the right to require the City to give notice to other persons that amounts due have not been paid.) 14. The failure by the City to enforce any provisions of this Agreement against the Applicant shall not be deemed a waiver of the right to do so thereafter. 15. In the event funding for the Program from any federal, state or other source is withdrawn, reduced,or limited in any way after the effective date of this Agreement and prior to normal completion, the City may terminate this Agreement, reduce funding to the Applicant, or renegotiate the Agreement subject to such new funding conditions,at the City's sole option and discretion and without liability to the City, except for the payment of Program Funds for Work that has already been approved and performed at the Subject Property pursuant to this Agreement and prior to any such termination. 16. In the event the Applicant fails to commence the Work within six (60)days from the date of execution of this Agreement, or fails to complete the Work within one hundred eighty (180) days from the date of execution of this Agreement, the City shall have the right, in the City's sole option and discretion, to immediately terminate this Agreement without liability to the City. In the event the City terminates the Agreement for the reasons set forth herein, the Applicant shall refund to the City any Program Funds paid by the City to the Applicant, or paid to any contractor on behalf of the Applicant, upon thirty (30) days written demand. The repayment of such funds by the Applicant shall not be construed so as to constitute a waiver or relinquishment of any other rights which may be available to City at law or equity. This provision shall survive any termination of this Agreement, and shall not be construed as a limitation on any other of the City's rights under law or equity. 17. This Agreement is and shall be deemed and construed to be a joint and collective work product of the City and the Applicant, and, as such,this Agreement shall not be construed against the other party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, in the terms and provisions contained herein. 18. This Agreement shall be binding on the parties hereto and their respective successors and permitted assigns. This Agreement and the obligations herein may not be assigned without 7 the express written consent of each of the parties hereto, which consent may be withheld at the sole discretion of either of the parties hereto. 19. This Agreement shall not be deemed or construed to create an employment, partnership, joint venture, or other agency relationship between the parties hereto. 20. The Applicant shall to the fullest extent permitted by the law,indemnify and hold harmless the City, its officials, employees, agents and all other related organizations and persons from all loss, cost,claims damages, expenses of whatever kind arising out of any liability, or claim of liability for any injury or damage to persons or property or claimed to have been sustained by anyone whomsoever by reason of the proposed improvements to be made to the Subject Property. In the event of any action against the City, its officers,employees, agents, boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City's choosing. The provisions of this paragraph shall survive any termination and/or expiration of this Agreement. 21. In no event shall the City be liable for monetary damages to the Applicant for any reason, including, but not limited to, compensatory, consequential or incidental damages or attorneys' fees, with the sole exception of the payment of Program Funds for Work that has already been approved and performed at the Subject Property pursuant to this Agreement. 22. The Applicant shall supervise and monitor the performance of the Work in order to ensure compliance with all grant program requirements and all applicable City codes and ordinances. 23. This Agreement represents the entire agreement between the parties hereto. There are no other agreements, either oral or implied, between the parties hereto regarding the subject matter of this Agreement. This Agreement may not be modified or amended without the written agreement of the parties hereto. 24. The terms of this Agreement shall be severable. In the event any of the terms or provisions of this Agreement are deemed to be void or otherwise unenforceable for any reason, the remainder of this Agreement shall remain in full force and effect. 25. This Agreement shall be subject to and governed by the laws of the State of Illinois. The sole and exclusive venue for the resolution of any disputes or the enforcement of any rights arising out of or in connection with this Agreement shall be in the Circuit Court of Kane County, Illinois. 26. Applicant, on behalf of itself and its respective successors, assigns and grantees of the Subject Property, hereby acknowledges the propriety, necessity and legality of all of the terms and provisions of this Agreement, and does hereby further agree and does waive any and all rights to any and all legal or other challenges or defenses to any of the terms and provisions of this Agreement, and hereby agrees and covenants on behalf of itself and its 8 successors, assigns and grantees of the Subject Property, not to sue the City or maintain any legal action or other defenses against the City with respect to any challenges of the terms and provisions of this Agreement. SIGNATURE PAGE FOLLOWS 9 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date following their respective signatures. C LGIN APPLICANT Richard G. Kozal Donald Rage City Manager T� Name (Please Print) November 16, 2022 Date Date ATT S ity Clerk 10 ATTACHMENT A COST ESTIMATE(S)AND SCOPE(S) OF WORK 11 ATTACHMENT B NOTICE OF LIEN This Lien Agreement is hereby made and entered into this 1L__ day of November ,2022,by and between the CITY OF ELGIN, ILLINOIS, a municipal corporation, (hereinafter referred to as "City") and GARDEN QUARTER I ASSOCIATION, (hereinafter referred to as the "Property Owner")the title holder or sole beneficial owner of the real property commonly known as Garden Quarter I Association Propelly, Elgin, Kane County, Illinois, Permanent Index Number 06-10-253-014 &06-10-401-011,(hereinafter referred to as "Subject Property"), and legally described as follows: Ladd's Elgin Garden Quarter Lot A-36 Ladd's Elgin Garden Quarter Lot G-44 WHEREAS, the Property has made an application to the City for Tyler Creek Watershed Streambank Stabilization Program funds to be used for certain streambank stabilization improvements to the Subject Property; and, WHEREAS, the City has provided such funds to the Property Owner as a loan in the amount of seventy-two thousand six hundred fifteen dollars and 53 cents ($72,615.53). NOW, THEREFORE, the parties hereto agree that the City of Elgin shall have a lien against title to the Subject Property in the amount of seventy-two thousand six hundred fifteen dollars and 53 cents ($72,615.53). This lien shall be effective as to the Subject Property from the date of this lien. CITY OF ELGIN, ILLINOIS PROPERTY OWNER By Richard G. Kozal a a e City Manager Prepared by- After Recording Return to: 12 Christopher J. Beck City Clerk City of Elgin City of Elgin 150 Dexter Court 150 Dexter Court Elgin, IL 60120-5555 Elgin,IL 60120-5555 13