06-0503 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