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09-0925 Spartan Drive Rehab o9-o9aS K.,OF Et.0 Memorandum -7 , .fi u City of Elgin °/?1TEU(‘‘' Date: September 29, 2009 To: Diane Robertson, City Clerk From: William A. Cogley, Corporation Counsel Subject: Intergovernmental Agreement Between the City of Elgin and Community College District No. 509 Attached for the city clerk's files is an original fully executed copy of the above-referenced agreement dated September 25, 2009,relating to the Spartan Drive rehabilitation project. kojw WAC bf Attachment f INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF ELGIN AND COMMUNITY COLLEGE DISTRICT NO. 509 THIS INTERGOVERNMENTAL AGREEMENT ("Agreement") is made and entered into this a5. day of September, 2009, by and between the City of Elgin, Illinois, a municipal corporation, (hereinafter referred to as the "City") and, Community College District No. 509, an Illinois community college, (hereinafter referred to as "ECC"). WITNESSETH: WHEREAS, Article VII, Section 10 of the Illinois Constitution authorizes units of local government to enter into agreements "to obtain or share services and to exercise, combine or transfer any power or function, in any manner not prohibited by law or ordinance"; and WHEREAS, the Intergovernmental Cooperation Act at 5 ILCS 220/1 et seq. provides that any power or powers, privileges, functions, or authority exercised or which may be exercised by a public agency of the state may be exercised, combined, transferred, and enjoyed jointly with any other public agency of the state; and WHEREAS, the City and ECC are both public agencies as defined by the Intergovernmental Cooperation Act; and WHEREAS, the City has previously issued a bid pursuant to Bid No. 09-037 for the Spartan Drive Rehabilitation Project (the"Project"); and WHEREAS, the Project provides for the rehabilitation by the City of an approximately 3,000 foot section of the City owned Spartan Drive commencing at the intersection of Spartan Drive and McLean Boulevard; and WHEREAS, the portion of Spartan Drive to be rehabilitated pursuant to the Project is a main entrance to ECC and such roadway serves primarily ECC; and WHEREAS, ECC has requested the City agree to proceed with the Project at this time notwithstanding the fact that the Project was not scheduled by the City to proceed in the near future; and WHEREAS, the City and ECC agree that it is in each of their best interests and the best interests of the public for the City to proceed now with the Project to provide for the rehabilitation of the subject portion of Spartan Drive; and WHEREAS, the City and ECC have discussed a loan agreement between ECC and the City which would provide for a loan from ECC to the City for the necessary funds for the Project; and WHEREAS, the City is a home rule unit and may exercise any power and perform any function pertaining to its government and affairs; and WHEREAS, the Project providing for the rehabilitation of the subject portion of Spartan Drive and the City's borrowing of funds as provided in this agreement pertain to the government and affairs of the City. NOW, THEREFORE, for and in consideration of the mutual undertakings contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. The foregoing recitals are incorporated into this agreement. 2. ECC hereby agrees to loan to the City the total sum of $2,300,000 (such $2,300,000 loan from ECC to the City is hereinafter referred to as "Principal" or the "Subject Loan"). ECC shall provide to the City the monies for Subject Loan in the form of United States dollars in a single payment to the City in the amount of$2,300,000 on or before October 1, 2009. 3. In return for ECC's providing the monies for the Subject Loan to the City, the City promises to repay to ECC the sum of$2,300,000 plus interest thereon. The City will make all payments under this agreement in the form of United States Dollars by check. The City will repay to ECC in full the Subject Loan amount of $2,300,000 plus accrued interest on June 1, 2015 (hereinafter referred to as the "Maturity Date"). No payments of principal or interest for the Subject Loan shall be due from the City until such Maturity Date of June 1, 2015. Payments will be made and delivered to ECC in the name of Community College District No. 509 at 1700 Spartan Drive, Elgin, Illinois 60123 sent to the attention of ECC's President. 4. Interest will be charged on unpaid Principal until the full amount of Principal has been paid. Interest will be charged and calculated as simple interest. The initial annual interest rate will be at the annual rate of .5%. The annual interest rate will change on October 1, 2010 and on that date every twelve months thereafter for the term of this Agreement. Each day on which the interest rate could change is called a "Change Date". Beginning on the first Change Date, the annual interest rate will be based upon the amount of 50% of the lower of ECC's then current annual rate of return on its invested funds or the City's current annual borrowing rate. For the purposes of this Agreement, ECC's current annual rate of return shall be determined by averaging the then current annual rate of return on the one year certificate of deposit rates being offered by the following three banks with a main office or branch in the City of Elgin: J.P. Morgan Chase Bank, Bank of America, and Associated Bank or their successors or assigns.. For the purposes of this Agreement, the City's current annual borrowing rate shall throughout this agreement be deemed to be 2.5%. For the purpose of clarification and example, if on October 1, 2010, ECC's then current annual rate of return on its invested funds as determined by the above- described formula is 1.5%, and the City's current annual borrowing rate is 2.5 then the annual interest rate for the Subject Loan will change as of October 1, 2010 to the annual interest rate of .75%. Each new annual interest rate will become effective on each Change Date. ECC and the City shall exchange correspondence confirming the new annual interest rate as of each Change Date. -2- 5. The City has the right to make payments of principal and/or interest at any time before the Maturity Date of June 1, 2015. The City may make a full prepayment or partial prepayments without paying a prepayment charge or penalty. Notwithstanding anything to the contrary in this agreement, no partial repayments by the City of the Subject Loan shall constitute or be construed as a waiver by ECC of the right to receive the full repayment of the Subject Loan. 6. Contingent upon the City receiving the monies for the Subject Loan from ECC as provided in Section 2 hereof, the City agrees to award Bid No. 09-037 for the Project and to provide for the commencement of the construction of the Project no later than October 15, 2009. The City agrees to make reasonable efforts in connection with the Project to provide for the installation of the binder course and to have the subject portion of Spartan Drive reopened to vehicular traffic by December 31, 2009. 7. Unless applicable law requires a different method, any notices 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 ECC is given a notice of that different address of the City. Any notices that must be given to ECC under this agreement will be given by delivering it or by mailing it by first class mail to Community College District No. 509, 1700 Spartan Drive, Elgin, Illinois 60123, Attention: College President, with a copy to John Early, Attorney at Law, Early, Tousey, Regan & Wlodak, 2400 Big Timber Road, Suite 201 a, Elgin, Illinois 60124, or at a different address if the City is given a notice of that different address of ECC. 8. The City waives the rights of Presentment and Notice of Dishonor ("Presentment" means the right to require ECC to demand payment of amounts due. "Notice of Dishonor" means the right to require ECC to give notice to other persons that amounts due have not been paid.) 9. This agreement shall not be construed so as to create a partnership,joint venture, employment or other agency relationship between the parties hereto. 10. This agreement constitutes the entire agreement of the parties and 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 on the other party unless expressed in writing herein or in a duly executed amendment hereof. 11. 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 enforcement of any rights pursuant to this agreement shall be in the Circuit Court of Kane County. 12. This agreement is and shall be deemed and construed to be a joint and collective work product of the City and ECC, 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, of the terms and provisions contained herein. -3- 13. This agreement shall be binding on the parties hereto and their respective successors and permitted assigns. IN WITNESS WHEREOF, the undersigned have entered into and executed this agreement on the date and year first written above. CITY OF ELGIN COMMUNITY COLLEGE DISTRICT NO. 509 Byi!�! . �(/ By Sea R. Stegall, City nager Da m, P esident Attest: Attest: Diane Robertson, City Clerk Its Si -tar I / STATE OF ILLINOIS ) ) SS. COUNTY OF K A N E ) I, the undersigned, a Notary Public, in and for the County and State aforesaid, DO HEREBY CERTIFY that Sean R. Stegall, City Manager of the City of Elgin, an Illinois municipal corporation, and Diane Robertson, City Clerk of said municipal corporation, and personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and severally acknowledged that as such City Manager and City Clerk, they signed and delivered the said instrument as City Manager and City Clerk as their free and voluntary act, and free and voluntary act and deed of said corporation, for the uses and purposes therein set forth. A5.1 Given under my hand and official seal this A5. day of September, 2009. IMPRESS NOTARIAL SEAL HERE da DIANE J. _ _ Notary Publi.f • ST . .. : ,STATE OF IWNOIS .1141N>> .�,,10— Mt ••" ' ` • ' Notary Pu, is • "OFFICIAL SEAL" ? BARBARA E. FURMAN Notary Public,State of Illinois My Commission Expires 08/06/2011 -4- STATE OF ILLINOIS ) ) SS. COUNTY OF K A N E ) I, the undersigned, a Notary Public, in and for the County and State aforesaid, DO HEREBY CERTIFY that David Sam, President of Community College District No. 509 and .36141\1 UFA D S y , Secretary of said corporation, and personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and severally acknowledged that as such President and Secretary, they signed and delivered the said instrument as President and Secretary as their free and voluntary act, and free and voluntary act and deed of said corporation, for ,the �uses and purposes therein set forth. Given under my hand and official seal this�4 day of September, 2009. IMPRESS NOTARIAL SEAL HERE gLir � "OFFICIAL SEAL" Notary Public DIANE J. KERRUISH NOTARY PUBUC,STATE OF IWNOIS MY COMMISSION EXPIRES 3/2612013 F:\Legal Dept\Agreement\Intergovernmental Agr-ECC-Loan re Spartan Dr Rehab-clean-9-24-09.doc -5- VOLUME LXXIV AUGUST 26, 2009 BID 09-037 AWARDED TO MARTAM CONSTRUCTION FOR SPARTAN DRIVE REHABILITATION Councilmember Warren made a motion, seconded by Councilmember Steffen, to award a contract to Martam Construction in the amount of$2,100,137.70 for the Spartan Drive Rehabilitation Project, subject to the approval of Item 3 on Other Business. Upon a roll call vote: Yeas: Councilmembers Dunne, Gilliam, Kaptain, Steffen, Warren, and Mayor Schock. Nays: None. Councilmember Prigge abstained due to a conflict of interest. BID 09-041 AWARDED TO J & T SERVICES, INC. FOR CATCH BASIN SITE REPAIRS AT VARIOUS LOCATIONS Councilmember Kaptain made a motion, seconded by Councilmember Gilliam, to enter into an agreement with J & T Services, Inc. in the amount of$44,700 to perform catch basin site restorations at varied locations throughout the City of Elgin. Upon a roll call vote: Yeas: Councilmembers Dunne, Gilliam, Kaptain, Prigge, Steffen, Warren, and Mayor Schock. Nays: None. BID 09-043 AWARDED TO SEAGREN CONSTRUCTION FOR THE HIGHLANDS OF ELGIN COMFORT STATION Councilmember Kaptain made a motion, seconded by Councilmember Warren, to award a contract to Seagren Construction in the amount of$102,150 for a comfort station at the Highlands of Elgin Golf Course. Upon a roll call vote: Yeas: Councilmembers Dunne, Gilliam, Kaptain, Prigge, Steffen, Warren, and Mayor Schock. Nays: None. BID 09-044 AWARDED TO J & T SERVICES, INC. FOR THE 2009 CENTRAL BUSINESS DISTRICT WATER MAIN REPLACEMENT PROJECT Councilmember Steffen made a motion, seconded by Councilmember Kaptain, to enter into an agreement with J & T Services, Inc. in the amount of$949,076.78 for the 2009 Central Business District Water Main Replacement Project. Upon a roll call vote: Yeas: Councilmembers Dunne, Gilliam,Kaptain, Prigge, Steffen, Warren, and Mayor Schock. Nays: None. BID 09-048 AWARDED TO MEADE ELECTRIC FOR THE 2009 TRAFFIC SIGNAL MAINTENANCE PROGRAM Councilmember Kaptain made a motion, seconded by Councilmember Warren, to award a contract to Meade Electric in the amount of$27,808 for the 2009 Traffic Signal Maintenance Program. Upon a roll call vote: Yeas: Councilmembers Dunne,Gilliam, Kaptain, Prigge, Steffen, Warren, and Mayor Schock. Nays: None. 595