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HomeMy WebLinkAbout24-12 Resolution No. 24-12 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH RYAN, LLC FOR PROFESSIONAL SERVICES IN CONNECTION WITH THE ECONOMIC DEVELOPMENT FINANCE SERVICES FOR THE CITY OF ELGIN CENTRAL AREA TIF DISTRICT BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that pursuant to Elgin Municipal Code Section 5.02.020B(9)the City Council hereby finds that an exception to the requirements of the procurement ordinance is necessary and in the best interest of the city; and BE IT FURTHER 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 an Agreement on behalf of the City of Elgin with Ryan, LLC, for professional services in connection with the economic development finance services for the City of Elgin Central Area TIF District, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: January 24, 2024 Adopted: January 24, 2024 Omnibus Vote: Yeas: 9 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk AGREEMENT THIS AGREEMENT ("Agreement") is made and entered into this 24th day of January, 2024,by and between the CITY OF ELGIN,an Illinois municipal corporation(hereinafter referred to as "CITY") and Ryan, LLC, a Delaware corporation (hereinafter referred to as "CONSULTANT"). WHEREAS, the CITY desires to engage the CONSULTANT to furnish certain professional services in connection with economic development finance services related to the CITY's Central Area TIF District and other economic development finance services and TIF related matters as hereinafter described(hereinafter referred to as the"PROJECT");and WHEREAS, the CONSULTANT represents that it is in compliance with Illinois Statutes relating to professional registration of individuals and has the necessary expertise and experience to furnish such services upon the terms and conditions set forth herein below. NOW, THEREFORE, it is hereby agreed by and between the CITY and the CONSULTANT that the CITY does hereby retain the CONSULTANT for and in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby acknowledged to perform the services relating to the PROJECT as described herein,subject to the following terms and conditions and stipulations,to-wit: 1. SCOPE OF SERVICES A. All work hereunder shall be performed under the direction of the Community Development Director of the CITY,herein after referred to as the"DIRECTOR". B. CONSULTANT shall provide the CITY the economic development finance services as hereinafter requested by the City related to the CITY's Central Area Tax Increment Financing (TIF) District and other economic development finance services and TIF related matters as described in the attachment dated December 8, 2023,attached hereto and made a part hereof as Attachment A. In the event of any conflict between the terms of this Agreement, and the terms of Attachment A, the terms of this Agreement shall supersede and control. 2. TERM The initial term of this Agreement shall be from January 1, 2024, through December 31, 2025. This Agreement shall automatically renew for an additional one (1) year term thereafter unless either party sends to the other party written notice not less than thirty(30) days prior to December 31, 2025, of its intention not to renew the Agreement for such additional one(1)year term. 3. WORK PRODUCT Except for CONSULTANT'S work product described below, all work product prepared by the CONSULTANT pursuant hereto including, but not limited to, reports, plans, designs, work drawings, studies, photographs, models and recommendations shall be the property of the CITY and shall be delivered to the CITY upon request of the DIRECTOR; provided, however, that the CONSULTANT may retain copies of such work product for its records. CONSULTANT's execution of this Agreement shall constitute CONSULTANT's conveyance and assignment of all right, title and interest, including but not limited to any copyright interest,by the CONSULTANT to the CITY of all such work product prepared by the CONSULTANT pursuant to this Agreement. The CITY shall have the right either on its own or through such other consultants as determined by the CITY to utilize and/or amend such work product. Any such amendment to such work product shall be at the sole risk of the CITY. Such work product is not intended or represented to be suitable for reuse by the CITY on any extension to the PROJECT or on any other project, and such reuse shall be at the sole risk of the CITY without liability or legal exposure to the CONSULTANT. CONSULTANT's work product includes specific engagement procedures,techniques,and tax strategies, and is proprietary to CONSULTANT. Except as described above, CITY agrees not to disclose such CONSULTANT work product to any third party without obtaining prior written approval from CONSULTANT. Notwithstanding the foregoing, CONSULTANT does not limit CITY's disclosure of the tax treatment or the tax structures of the transactions. 4. PAYMENTS TO THE CONSULTANT A. For services provided by the CONSULTANT the CITY shall pay the CONSULTANT the initial rate of$290.00 per hour for personnel employed on the PROJECT, with total fees not to exceed $125,000 regardless of the actual costs incurred by the CONSULTANT unless substantial modifications to the scope of the work are authorized in writing by the CITY and approved by way of written amendment to this Agreement and executed by the parties. In the event the total fees and expenses paid by the CITY to the CONSULTANT reach the not to exceed amount of $125,000.00, CONSULTANT'S obligation to provide continued services and this Agreement shall terminate unless amended by a way of a written amendment to this Agreement executed by the parties. B. For outside services provided by other firms or subcontractors,the CITY shall pay the CONSULTANT the invoiced fee to the CONSULTANT.The costs for any such outside services are included within the total cost not to exceed amount provided for in paragraph 4A above. C. The CITY also agrees to reimburse CONSULTANT for direct expenses incurred in connection with the PROJECT. Direct expenses include reasonable customary out of pocket expenses for such items as filing, application fees, mailer postage, -2- external printing and copying services, third party fees and conferencing services. The costs of any such reimbursable expenses are included within the not to exceed amount provided for in paragraph 4A above. D. All invoices are due and payable in full within thirty (60) days of CITY's receipt of invoice(s), in accordance with the Illinois Prompt Payment Act. Notwithstanding, full payments for each invoiced task shall not be made until the task is completed and accepted by the DIRECTOR. E. Upon request, CONSULTANT will provide to the CITY fee estimates for any specific tasks that may be later developed and defined by the CITY. CONSULTANT will only proceed with work on such tasks upon receiving explicit instructions from the CITY to proceed on such tasks. F. CONSULTANT's preferred method of payment is via electronic funds transfers ("EFT"), and EFT instructions will be provided to CITY on each invoice. In the event CITY is unable to remit payment via EFT, CONSULTANT will accept checks, credit cards, or purchasing cards; however, if payment is made using a credit card or purchasing card, CITY authorizes CONSULTANT to add a processing fee to the payment. Such processing fee is currently three percent(3%) of the payment amount and is subject to change upon thirty(30)days prior notice. CONSULTANT and CITY shall abide by the rules of the National Automated Clearing House Association(or other similar local regulator)and the banking laws of the United States (or other applicable jurisdiction) when performing EFT (or similar electronic payment)transactions. 5. INVOICES A. The CONSULTANT shall submit invoices in a format approved by the CITY. B. The CONSULTANT shall maintain records showing actual time devoted and cost incurred. The CONSULTANT shall permit the authorized representative of the CITY to inspect and audit all data and records of the CONSULTANT for work done under this Agreement. The CONSULTANT shall make these records available at reasonable times during the Agreement period and for one(1)year after termination of this Agreement. 6. TERMINATION OF AGREEMENT Notwithstanding any other provision hereof, the CITY may terminate this Agreement at any time upon thirty(30)days prior written notice to the CONSULTANT.In the event that this Agreement is so terminated, the CONSULTANT shall be paid for services actually performed and reimbursable expenses actually incurred prior to termination, except that reimbursement shall not exceed the amounts set forth under Paragraph 4 above. -3 - 7. INTENTIONALLY OMITTED 8. NOTICE OF CLAIM If the CONSULTANT wishes to make a claim for additional compensation as a result of action taken by the CITY,the CONSULTANT shall give written notice of his claim within fifteen (15) days after occurrence of such action. No claim for additional compensation shall be valid unless so made. Any changes in the CONSULTANT's fee shall be valid only to the extent that such changes are included in writing signed by the CITY and the CONSULTANT. Regardless of the decision of the DIRECTOR relative to a claim submitted by the CONSULTANT, all work required under this Agreement as determined by the DIRECTOR shall proceed without interruption. 9. BREACH OF CONTRACT If either party violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and the other party has the right to seek such administrative,contractual or legal remedies as may be suitable to the violation or breach; and, in addition, if either party, by reason of any default, fails within fifteen(15) business days after notice thereof by the other party to comply with the conditions of the Agreement, the other party may terminate this Agreement. Notwithstanding the foregoing,or anything else to the contrary in this Agreement, with the sole exception of an action to recover the monies the CITY has agreed to pay to the CONSULTANT pursuant to Paragraph 4 hereof, no action shall be commenced by the CONSULTANT against the CITY for monetary damages. CONSULTANT hereby further waives any and all claims or rights to interest on money claimed to be due pursuant to this Agreement and waives any and all such rights to interest which it claims it may otherwise be entitled pursuant to law, including, but not limited to, the Local Government Prompt Payment Act (50 ILCS 501/1, et seq.), as amended,or the Illinois Interest Act(815 ILCS 205/1,et seq.),as amended. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. 10. INDEMNIFICATION To the fullest extent permitted by law, CONSULTANT agrees to and shall indemnify, defend and hold harmless the CITY, its officers, employees, agents, boards and commissions from and against any and all claims, suits,judgments, costs, attorneys fees, damages or other relief, including, but not limited to, workers' compensation claims, in any way resulting from or arising out of negligent actions or willful misconduct of the CONSULTANT in connection herewith, including negligence or willful misconduct of employees or agents of the CONSULTANT arising out of the performance of this Agreement. 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 CONSULTANT's choosing but such legal counsel must be approved in writing by CITY, such approval to not -4- unreasonably be withheld. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. 11. NO PERSONAL LIABILITY No official, director, officer, agent or employee of the CITY shall be charged personally or held contractually liable under any term or provision of this Agreement or because of their execution,approval or attempted execution of this Agreement. 12. INSURANCE CONSULTANT shall provide,maintain and pay for during the term of this Agreement the following types and amounts of insurance: A. Comprehensive Liability. A policy of comprehensive general liability insurance with limits of at least $1,000,000 aggregate for bodily injury and $1,000,000 aggregate for property damage. The CONSULTANT shall deliver to the DIRECTOR a Certificate of Insurance naming the CITY as additional insured. The policy shall not be modified or terminated without thirty(30)days prior written notice to the DIRECTOR. The Certificate of Insurance shall include the contractual obligation assumed by the CONSULTANT under Paragraph 10 entitled"Indemnification". This insurance shall be primary and non-contributory to any other insurance or self- insurance programs afforded to the CITY. There shall be no endorsement or modification of this insurance to make it excess over other available insurance. B. Comprehensive Automobile Liability. Comprehensive Automobile Liability Insurance covering all ovxned, non-owned and hired motor vehicles with limits of not less than $500,000 per occurrence for bodily injury and/or property damage. C. Combined Single Limit Policy. The requirements for insurance coverage for the general liability and auto exposures may be met with a combined single limit of $1,000,000 per occurrence subject to a$1,000,000 aggregate. D. Professional Liability. The CONSULTANT shall carry CONSULTANT's Professional Liability Insurance covering claims resulting from error,omissions or negligent acts with a combined single limit of not less than $1,000,000 per claim. A Certificate of Insurance shall be submitted to the DIRECTOR as evidence of insurance protection. The policy shall not be modified or terminated without thirty (30)days prior written notice to the DIRECTOR. - 5 - 13. LIMITATION OF LIABILITY CONSULTANT does not guarantee a particular result as part of the scope of services and CONSULTANT shall not be liable for an adverse or unsatisfactory result unless such result is solely and directly caused by CONSULTANT's negligence.CONSULTANT shall not be liable for the following: (i) any failure or delay by CITY or DIRECTOR in executing returns,forms or letters of authorization;(ii)inaccurate,untimely, incomplete,or otherwise unreliable information provided by CITY or DIRECTOR or third-parties engaged by CITY or DIRECTOR; (iii) inaccuracies in data or forms published by taxing authorities; or(iv) statutory, administrative, or judicial changes occurring after the submission of claims or filings to the taxing authority. CONSULTANT's liability for all claims, liability, damages, and expenses are under any theory arising under or relating to CONSULTANT's performance of the scope of services will not exceed $1,000,000. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR COSTS, INCLUDING LOST OR DAMAGED DATA, LOSS OF PROFIT OR GOODWILL, WHETHER FORESEEABLE OR NOT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 14. NONDISCRIMINATION/AFFIRMATIVE ACTION The Consultant will not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, age, ancestry, order of protection status, familial status, marital status, physical or mental disability, military status, sexual orientation,or unfavorable discharge from military service which would not interfere with the efficient performance of the job in question. Consultant shall take affirmative action to comply with the provisions of Elgin Municipal Code Section 5.02.040 and will require any subcontractor to submit to the City a written commitment to comply with those provisions. Consultant shall distribute copies of this commitment to all persons who participate in recruitment, screening, referral and selection of job applicants and prospective subcontractors. Consultant agrees that the provisions of Section 5.02.040 of the Elgin Municipal Code, 1976,as amended, is hereby incorporated by reference,as if set out verbatim. No person shall be denied or subjected to discrimination in receipt of the benefit of any services or activities made possible by or resulting from this Agreement on the grounds of race, color, religion, sex, national origin, age, ancestry, order of protection status, familial status, marital status, physical or mental disability, military status, sexual orientation, or unfavorable discharge from military service. Any violation of this paragraph shall be considered a violation of a material provision of this Agreement and shall be grounds for cancellation,termination or suspension, in whole or in part, of the Agreement by the CITY. -6- 15. ASSIGNMENT AND SUCCESSORS This Agreement and each and every portion thereof shall be binding upon the successors and the assigns of the parties hereto;provided,however,that no assignment shall be made without the prior written consent of the CITY. 16. DELEGATIONS AND SUBCONTRACTORS Any assignment, delegation or subcontracting shall be subject to all the terms, conditions and other provisions of this Agreement and the CONSULTANT shall remain liable to the CITY with respect to each and every item,condition and other provision hereof to the same extent that the CONSULTANT would have been obligated if it had done the work itself and no assignment,delegation or subcontract had been made. Any proposed subcontractor shall require the CITY's advanced written approval. 17. NO CO-PARTNERSHIP OR AGENCY This Agreement shall not be construed so as to create a partnership, joint venture, employment or other agency relationship between the parties hereto. 18. SEVERABILITY The parties intend and agree that, if any paragraph, sub-paragraph,phrase, clause or other provision of this Agreement, or any portion thereof, shall be held to be void or otherwise unenforceable, all other portions of this Agreement shall remain in full force and effect. 19. HEADINGS The headings of the several paragraphs of this Agreement are inserted only as a matter of convenience and for reference and in no way are they intended to define, limit or describe the scope of intent of any provision of this Agreement,nor shall they be construed to affect in any manner the terms and provisions hereof or the interpretation or construction thereof. 20. MODIFICATION OR AMENDMENT This Agreement and its attachments constitute the entire Agreement of the parties on the subject matter hereof and may not be changed,modified,discharged or extended except by written amendment duly executed by the parties. Each party agrees that no representations or warranties shall be binding upon the other party unless expressed in writing herein or in a duly executed amendment hereof,or change order as herein provided. 21. APPLICABLE LAW This Agreement shall be deemed to have been made in and shall be construed in accordance with the laws of the State of Illinois. Venue for the resolution of any disputes or the -7- enforcement of any rights pursuant to this Agreement shall be in the Circuit Court of Kane County, Illinois. 22. NEWS RELEASES The CONSULTANT may not issue any news releases without prior approval from the DIRECTOR, nor will the CONSULTANT make public proposals developed under this Agreement without prior written approval from the DIRECTOR prior to said documentation becoming matters of public record. 23. COOPERATION WITH OTHER CONSULTANTS The CONSULTANT shall cooperate with any other consultants in the CITY's employ or any work associated with the PROJECT. 24. INTERFERENCE WITH PUBLIC CONTRACTING The CONSULTANT certifies hereby that it is not barred from bidding on this contract as a result of a violation of 720 ILCS 5/33E et seq. or any similar state or federal statute regarding bid rigging. 25. SEXUAL HARASSMENT As a condition of this contract, the CONSULTANT shall have written sexual harassment policies that include,at a minimum,the following information: A. the illegality of sexual harassment; B. the definition of sexual harassment under state law; C. a description of sexual harassment, utilizing examples; D. the vendor's internal complaint process including penalties; E. the legal recourse, investigative and complaint process available through the Illinois Department of Human Rights,and the Illinois 1-luman Rights Commission; F. directions on how to contact the department and commission; G. protection against retaliation as provided by Section 6-101 of the Human Rights Act. A copy of the policies shall be provided by CONSULTANT to the Department of Human Rights upon request(775 ILCS 5/2-105). - 8 - 26. INTENTIONALLY OMITTED 27. WRITTEN COMMUNICATIONS All recommendations and other communications by the CONSULTANT to the DIRECTOR and to other participants which may affect cost or time of completion, shall be made or confirmed in writing. The DIRECTOR may also require other recommendations and communications by the CONSULTANT be made or confirmed in writing. 28. NOTICES All notices, reports and documents required under this Agreement shall be in writing and shall be mailed by First Class Mail,postage prepaid,addressed as follows: A. As to the CITY: Marc Mylott Community Development Director City of Elgin 150 Dexter Court Elgin, Illinois 60120-5555 With a Copy to: Corporation Counsel City of Elgin 150 Dexter Court Elgin, Illinois 60120-5555 B. As to the CONSULTANT: Ryan, LLC Three Galleria Tower 13155 Noel Road Suite 100 Dallas,Texas 75240 Attn: Chairman and CEO With a Copy to: Attn: General Counsel With email copy to: chairman@ryan.com and legal.notices@ryan.com 29. COMPLIANCE WITH LAWS Notwithstanding any other provision of this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement that the - 9- CONSULTANT 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, CONSULTANT hereby certifies, represents and warrants to the CITY that all CONSULTANT's employees and/or agents who will be providing products and/or services with respect to this Agreement shall be legally authorized to work in the United States. CONSULTANT 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 CONSULTANT to determine CONSULTANT's compliance with the provisions of this paragraph. In the event the CITY proceeds with such an audit the CONSULTANT shall make available to the CITY the CONSULTANT's relevant records at no cost to the CITY. CONSULTANT shall pay any and all costs associated with any such audit. 30. COUNTERPARTS AND EXECUTION This Agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute one and the same agreement. This Agreement may be executed electronically, and any signed copy of this Agreement transmitted by facsimile machine, email,or other electronic means shall be treated in all manners and respects as an original document. The signature of any party on a copy of this Agreement transmitted by facsimile machine,email,or other electronic means shall be considered for these purposes an original signature and shall have the same legal effect as an original signature. 31. ELECTRONIC DATA FILES CITY agrees to provide electronic data files to CONSULTANT that will facilitate the identification and location of records to be reviewed. CONSULTANT will assist CITY's information systems personnel with determining the appropriate system file layouts, required data fields, and file types. Any out-of-pocket costs of preparing, modifying, or transferring such data will be the responsibility of CONSULTANT. CITY further agrees to assist CONSULTANT in using CONSULTANT's data extraction applications and other tools by providing all necessary access and configurations. CITY acknowledges that CONSULTANT's data extraction applications and other tools are proprietary to CONSULTANT, and CITY shall acquire no rights whatsoever with respect to such applications and other tools. CITY agrees that all electronic data files shall be transferred by CITY to CONSULTANT through a secure transfer site and by methods approved in advance by CONSULTANT and City. The following data sites are approved by CONSULTANT for such transfer: SFS and SFTP. In facilitation of this transfer, CONSULTANT shall provide specific transfer instructions to CITY when the electronic data files are prepared for delivery. CITY further agrees that neither CITY nor any employee or agent of CITY shall transmit PII (as defined below) to CONSULTANT without first (a) having reached an agreement with CONSULTANT as to the date, time, and method of such transmission; (b) identified the - 10- particular types of PII; and (c) represented to CONSULTANT that CITY is not restricted from transferring the PH."PII"or"Personally Identifiable Information"is any information that can be used to identify,contact,or locate an individual, either alone or combined with other easily accessible sources, or as defined by applicable law. PII includes information that is linked or linkable to an individual, such as medical, educational, financial, and employment information. 32. RESPONSIBILITIES All services provided by the CONSULTANT will be conducted under the supervision of Ms. Sharon Roberts, Principal who serves as Client Principal for CITY. Ms. Sharon Roberts,Principal,will serve as the Engagement Principal for this PROJECT. Mr. Charles Durham, Manager will serve as Project Manager for this engagement and will be responsible for staffing, project coordination, technical direction, and related issues. Additionally, throughout the course of this engagement, CONSULTANT will make every effort to arrange and schedule all work to avoid interruption to CITY's normal business operations. IN WITNESS WHEREOF, the parties hereto have entered into and executed this Agreement effective as of the date and year first written above. CITY • 13v: Richard G. Kozal,City anager Attest: ty Clerk CONSULTANT: Ryan LLC ,-7eldak By: Name/Print: Sharon M. Roberts Title: Principal Legal Dept\Agreement\Ryan LLC Agr-Central Area TIF District- Clean-I-8-24 docx — 11 — ATTACHMENT A SCOPE OF SERVICES 12/8/2023 ENGAGEMENT SCOPE Ryan, LLC ("Ryan") will assist the City of Elgin ("City") with general economic development consulting services as requested by the City related to the City's Central Area TIF District("TIF District"). Ryan's Services will include the following: • Upon request, prepare reports, studies, fiscal projections and analysis, and assist in the preparation of legal documents related to various options the City may have related to the extension,amendment or termination of the TIF District. • Upon request, prepare reliable and reasonable estimates of property tax increment revenues,gaming, sales tax projections and/or other municipal revenues that are projected to be generated from proposed development projects within the City. Review and analyze any such projections that may be provided and shared with overlapping tax district and/or other parties. • Upon request, assist City in the drafting and negotiation of intergovernmental and/or redevelopment agreements. Provide assistance, research, and information as may be necessary to resolve any tax district communications issues. • Upon request, attend various development related meetings as requested by the City, such as meetings of the City Council,other public meetings or various Client-tax district and/or developer held meetings. • Upon request,review summary data and redevelopment activities including follow-up with overlapping tax districts, developer and/or business entity projects undertaken within the TIF Districts. • Upon request, advise City staff on responding to data requests from overlapping tax districts and/or Joint Review Board(JRB)members(e.g.,projected EAV upon termination of TIF District). • Should City determine it is necessary to amend the TIF District, reset the TIF District and/or establish a new TIF redevelopment area in place of the TIF District,Ryan will assist the City in all steps required to accomplish the TIF goals of the City. Neither Ryan nor any of its employees will provide any legal or accounting services to City in connection with this engagement. Neither Ryan nor any employee of Ryan will serve in a representative capacity on behalf of before the Internal Revenue Service (IRS), nor will Ryan or any employee of Ryan obtain a power of attorney (on IRS Form 2848 or otherwise) authorizing Ryan or such employee to represent City before the IRS. - 13 -