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11-99 Unsigned Resolution No. 11-99 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH KANE, McKENNA AND ASSOCIATES, INC. FOR A FEASIBILITY STUDY REGARDING THE PROPOSED BUSINESS DISTRICT AT THE OTTER CREEK RETAIL CENTER BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that Sean R. Stegall, City Manager, and Jennifer Quinton, Acting City Clerk, be and are hereby authorized and directed to execute an Agreement on behalf of the City of Elgin with Kane,McKenna and Associates,Inc.for a feasibility study regarding the proposed Business District at the Otter Creek Retail Center Project, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: June 8, 2011 Adopted: June 8, 2011 Omnibus Vote: Yeas: 7 Nays: 0 Attest: s/Jennifer Quinton Jennifer Quinton, Acting City Clerk • Fully executed agreement was never provided to the City Clerk's Office. Z._ ,/ Resolution No. 11-99 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH KANE, McKENNA AND ASSOCIATES, INC. FOR A FEASIBILITY STUDY REGARDING THE PROPOSED BUSINESS DISTRICT AT THE OTTER CREEK RETAIL CENTER BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that Sean R. Stegall, City Manager, and Jennifer Quinton, Acting City Clerk, be and are hereby authorized and directed to execute an Agreement on behalf of the City of Elgin with Kane,McKenna and Associates,Inc.for a feasibility study regarding the proposed Business District at the Otter Creek Retail Center Project, a copy of which is attached hereto and made a part hereof by reference. --- )r jaij ® A[ for: El M ❑ Came in ❑ Telephoned ❑ Returned your call ❑ See me 1) MI call again ❑ Please return the call ^ Message: ------- ---- ------------------------------------------- Time By ------.-_"-"—___. Date _ --- Phone: AGREEMENT THIS AGREEMENT is made and entered into this 8th day of June, 2011, by and between the CITY OF ELGIN, an Illinois municipal corporation (hereinafter referred to as "CITY") and Kane, McKenna and Associates, Inc., an Illinois Corporation (hereinafter referred to as "CONSULTANT"). WHEREAS, the CITY desires to engage the CONSULTANT to furnish certain professional services in connection with the proposed Business District at the Otter Creek Retail Center (hereinafter referred to as the PROJECT); and WHEREAS, the CONSULTANT represents that it 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. CONSULTANT shall perform the services for the PROJECT as outlined in CONSULTANT'S letter of agreement dated November 29, 2010, a copy of which is attached hereto as Exhibit 1. B. All work hereunder shall be performed under the direction of the Corporation Counsel of the CITY, hereinafter referred to as the "DIRECTOR". 2. SCHEDULE CONSULTANT shall commence with the services to be provided pursuant to this agreement upon entry into and execution of this agreement and shall complete such services as soon as is reasonably practicable. 3. WORK PRODUCTS All work products prepared by the CONSULTANT pursuant hereto including, but not limited to, reports, plans, designs, calculations, 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 products for its records. Such work products are 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. 4. PAYMENTS TO THE CONSULTANT A. For services provided the CONSULTANT shall be paid at the direct hourly rate of its personnel employed on the PROJECT as set forth in Exhibit 1 attached hereto with the total fee for Phase I not to exceed Fifteen Thousand Dollars ($15,000) except as may be authorized in writing by the CITY. B. Out-of-pocket expenses related to any mailing expenses, newspaper publication, or the preparation of the legal description are not included in the above hourly fees. CONSULTANT will not charge the CITY any travel expenses. C. The CITY shall make periodic payments to the CONSULTANT based upon actual progress within thirty (30) days after receipt and approval of invoice. 5. INVOICES A. The CONSULTANT shall submit invoices in a format approved by the CITY. Progress reports will be included with all payment requests. 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 a 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 fifteen (15) 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 amount set forth under Paragraph 4 above. 7. TERM This Agreement shall become effective as of the date the CONSULTANT is given a notice to proceed and, unless terminated for cause or pursuant to paragraph 6, shall be deemed concluded on the date the CITY determines that all of the CONSULTANT'S work under this Agreement is completed. A determination of completion shall not constitute a waiver of any rights or claims which the CITY may have or thereafter acquire with respect to any term or provision of the Agreement. 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 15 days after occurrence of such action. No claim for additional 2 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. S. 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) 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. 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 omissions of the CONSULTANT in connection herewith, including negligence or omissions 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 CITY'S choosing. 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 A. Comprehensive Liability. The CONSULTANT shall provide, pay for and maintain in effect, during the term of this Agreement, 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 Certification 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. 3 The Certificate of Insurance which shall include Contractual obligation assumed by the CONSULTANT under Article 10 entitled "Indemnification" shall be provided. This insurance shall apply as primary insurance with respect 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, alternatively, if the insurance states that it is excess or prorated, it shall be endorsed to be primary with respect to the CITY. B. Comprehensive Automobile Liability. Comprehensive Automobile Liability Insurance covering all owned, non-owned and hired motor vehicles with limits of not less than $)500,000 per occurrence for damage to property. 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 occurrence. 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. 13. NONDISCRIMINATION In all hiring or employment made possible or resulting from this Agreement, there shall be no discrimination against any employee or applicant for employment because of sex, age, race, color, creed, national origin, marital status, of the presence of any sensory, mental or physical handicap, unless based upon a bona fide occupational qualification, and this requirement shall apply to, but not be limited to, the following: employment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. 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 sex, race, color, creed, national origin, age except minimum age and retirement provisions, marital status or the presence of any sensory, mental or physical handicap. Any violation of this provision 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. 14. 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. 4 15. 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. 16. 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. 17. SEVERABILITY The parties intend and agreed 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. 18. 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. 19. MODIFICATION OR AMENDMENT This Agreement and its attachments constitutes 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. 20. 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 enforcement of any rights pursuant to this Agreement shall be in the Circuit Court of Kane County, Illinois. 21. 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. 5 22. COOPERATION WITH OTHER CONSULTANTS The CONSULTANT shall cooperate with any other consultants in the CITY'S employ or any work associated with the PROJECT. 23. INTERFERENCE WITH PUBUC 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. 24. 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 Human 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. 25. SUBSTANCE ABUSE PROGRAM. As a condition of this agreement, CONSULTANT shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse Prevention Public Works Project Act at 820 ILCS 265/1 et seq. A copy of such policy shall be provided to the DIRECTOR prior to the entry into and execution of this agreement. 26. 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. 6 27. 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 CITY: William A. Cogley Corporation Counsel City of Elgin 150 Dexter Court Elgin, Illinois 60120-5555 B. As to CONSULTANT: Philip R. McKenna, President Robert Rychlicki, Executive Vice-President Kane, McKenna and Associates, Inc. 150 N. Wacker Drive Suite 1600 Chicago, Illinois 60606 28. 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 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 legal residents of 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 section. 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. 7 IN WITNESS WHEREOF, the parties hereto have entered into and executed this agreement effective as of the date and year first written above. FOR THE CITY: FOR TH TAW: v ,7/A By r.• • `' City Manager Its: Attest: City Clerk 8 Kane, McKenna NortT Wacker. r 312 444. i702 >u:te:600 F 312.444.90 and Associates, in.c. Chicago. l„inois 60606 November 29,2010 cid Mr. Richard G. Kozal Assistant City Manager City of Elgin 150 Dexter Court Elgin, Illinois 60120-5555 Re: City of Erin-Business District (BD)Review Dear Mr. Kozal: Pursuant to our recent discussions with your staff, Kane, McKenna and Associates, Inc, ("K.MA") is prepared to assist the City of Elgin (the "City") in reference to a business district program in an area located near Route 20 and Randall Road (the "BD"). Kane, McKenna and Associates, Inc. is prepared to provide the following services to the City as necessary, and only for areas specifically identified by the City. PREPARE BUSINESS DISTRICT PLAN AND PROJECT • Under City direction, KMA will complete the Redevelopment Plan and Project required by the Business District Act (defined herein as "BD law") (whether new or amended). Among other elements,the Plan prepared for the proposed 13D will include: • 1) A statement of redevelopment goals and objectives. 2) Examination of BD qualification factors and presentation or rationale for basis under which the BD is to be justified under State law. 3) A statement of eligible redevelopment activities. 4) Presentation of estimated costs for the redevelopment projects contemplated for implementation under the plan. 5) A detailed discussion of impediments to the successful redevelopment of the project area and measures the City could undertake to eliminate such barriers so to promote economic revitalization of the project area. Exhibit 1 iSO North i/ ckerDriv_ r 312.444.1702 Suite 1600 F 312.444. .052 .......:;ayt.!ii'nois 60606 Mr.Richard G.Koval Page Two November 29,2010 ;ttl 6) As necessary, assist City by participating in required community meetings or public hearings, as well as helping to insure preparation and execution of property notification as required for all meetings. 7) As necessary, assist the City and Client in participating in meetings will al.l interested and affected parties and overlapping taxing jurisdictions. KMA will help City to follow the procedures for such gatherings as required by State law. 8) Work with the City's counsel to meet all the requirements of appropriate law so to insure proper establishment of the BD. 9) Assist City's counsel in preparation of the appropriate Ordinances required for adoption of the redevelopment plan and project. 10) Assist City to establish and maintain complete documentation files to assure proper support of eligibility findings in order to support legal standing for establishment of the 1311 11) In addition KMA will assist the City to review any economic proposals submitted to the City by potential developers or the owners of property located in the BD. COMPENSATION FOR SERVICES The Consultant will bill the City monthly for services at the following rates per hour: Personnel Hourly Rates President $200.00/Hour Executive Vice President $175.00/Hour Officers $150.00/Hour Associates $100.00/Hour Research $ 60.00/Hour Administrative $ 25.00/Hour 1501`46qh Waer Drive T 312.444 i 702 Suite.1600 F 312 444 Chicacio,111;nois 60606 Mr. Richard G. Kozal Page Three November 29,2010 :d1 We estimate that such services shall be in the range of$8,500 to $12,000. L--/I •L---" Philip R. McKenna President .71". Robert Rythlicki Executive Vice President Accepted'hy: 1 City of Elgin Date SAClient Folders\EIgin Contractsk201Musiness District Review LOA 1 1.29.10.doc lh ELGIN THE CITY IN THE SUBURBS AGENDA ITEM: E MEETING DATE: May 25, 2011 ITEM: Feasibility Study for Establishing a Business District at Otter Creek Retail Center (No Cost to the City) OBJECTIVE: Conducting a feasibility study to determine the viability of creating a Business District at the Ot- ter Creek retail center. RECOMMENDATION: Authorize a feasibility for creating a Business District at the Otter Creek retail center. BACKGROUND Otter Creek, LLC (developer) owns the Otter Creek retail center located on the west side of south Randall Road between U.S. Highway 20 and South Street. The developer is asking the city to establish a "Business District" for its retail development to help it finance (1) the repaving of the retail center's parking lot, and (2) the relocating of a stormwater detention area in an outlot with frontage on Randall Road to an interior lot within the retail center. The developer purchased the Otter Creek retail center in 2007 and began reconfiguring the two, vacant "big box" tenant spaces formerly occupied by the Omni grocery store and the Han- dy Andy home and building improvement store. The facades on those two, vacant spaces along with those of all the other properties in the retail center were also extensively rehabilitated during the two years following the purchase in addition to other tenant space improvements and incentives. The developer states that it has invested approximately $4.2 million in the retail center since purchasing the property. (Although the Target store is located within the commonly recognized boundaries of the Otter Creek retail center, that retail operation and the property on which it is located are separately owned by entities not affiliated with developer. Target will not be included within the proposed Business District.) In March 2009, developer entered into a sales tax sharing agreement with the city to assist in securing the Burlington Coat Factory as a tenant. Under the agreement, the city agreed to re- bate up to $495,500 in sales tax generated by the Burlington Coat Factory over a five-year pe- riod. Last year, the city made its first sales tax rebate payment to developer in the amount of $87,499.02. The Illinois Business District Development and Redevelopment Act (65 ILCS 5/11-74-3.1 et seq.) AI)(Act) allows municipalities to establish a Business District and, if it is determined that the prop- erty within the Business District is blighted and certain conditions and procedures are met, enables a municipality to impose a Business District tax within the Business District and to use the funds generated to pay for Business District improvements. The Act is intended to streng- then the tax base of Business Districts, to assure opportunities for district development or re- development and to attract sound and stable commercial growth in the district. Municipalities can elect, by ordinance, to impose increased sales taxes in 0.25 percent incre- ments up to 1.0 percent within the district. Sales taxes can then be used within the Business District for any costs allowable under the Act. Typical costs include land assembly, streetscape improvements, public infrastructure improvements, site preparation and stormwater deten- tion. The city currently imposes a sales tax of one percent (1%) on tangible personal property sold in the city. (The combined total sales tax from all governmental entities on personal prop- erty purchased in Kane County is 7.75 percent and 9.75 percent in Cook County.) A Business District remains in place for up to 23 years following designation. During that time, all retail sales taxes are collected by the Illinois Department of Revenue and paid to the State Treasurer, who disperses a check to the municipality. Any revenues generated within the dis- trict are placed in the Business District Tax Allocation Fund. Formation of a Business District does not require the consent of the property owners within the district and the sales tax that is levied is paid by those who purchase goods and services in the Business District. To form a Business District and levy a sales tax in the district, the Act requires that a municipality prepare a plan, hold public hearings and make a blight finding. An amend- ment to the Act adopted last year eliminated the requirement that the proposed Business Dis- trict area's present condition and use is blighted, allowing a municipality to determine that the property will become blighted in the future without additional investment. OPERATIONAL ANALYSIS The developer asked the city to consider establishing a Business District at the Otter Creek retail center in late 2009. At that time, staff did not believe the developer would be able to demon- strate the retail shopping center was in a blighted condition within the meaning of the Act and declined to pursue the matter further. After the 2010 amendment to the Act allowing for a find- ing of "future" blighting conditions became law, the developer asked that the city reconsider the creating a Business District for its retail center. The developer is seeking to use the funds that would be generated from the sales tax increase in a Business District to finance an estimated $3.2 million in infrastructure improvements and tenant incentives. An estimated $500,000 would be used to relocate the stormwater detention area from an outlot fronting Randall Road; $300,000 for repaving the parking lot; $1.6 million to incent a 'big box" retailer; $420,000 to incent a restaurant; and $400,000 for other tenant in- 2 centives and facility improvements. The developer estimates that a sales tax surcharge of.75 to 1.0 percent will be required to generate sufficient revenue to fund these proposed improve- ments. Staff interviewed two consultants specializing in conducting feasibility studies used to deter- mine the viability of establishing a Business District. Robert Rychlicki of Kane, McKenna and As- sociates, Inc. was selected by the staff not only for the significant depth of experience he has in analyzing and creating Business Districts, but also for the exceptional work he is providing to the city in consulting for the Bluff City Quarry TIE District. Mr. Rychlicki's cost for services is also lower than the competing consultant the staff interviewed. There is no cost to the city for undertaking the feasibility study; all costs for Mr. Rychlicki's work will be borne by the developer. The feasibility study will include: • Examination of Business District qualification factors and presentation or rationale for basis under which the Business District is to be justified under State law. • A statement of redevelopment goals and objectives. • A statement of eligible redevelopment activities. • Presentation of estimated costs for the redevelopment projects contemplated for im- plementation under the plan. • A detailed discussion of impediments to the successful redevelopment of the project area and measures the city could undertake to eliminate such barriers so to promote economic revitalization of the project area. Should the viability of establishing a Business District be substantiated, staff will then seek city council approval to proceed with the legislative establishment of the Business District. At that point, the proposed increase to the sales tax in the Business District will be considered by the city council as well as the terms of the proposed development agreement between the city and developer governing the sharing of that increased sales tax revenue. If the city council approves the creation of a Business District, Mr. Rychlicki will then, at the de- veloper's expense: • Assist the city and the developer in participating in meetings with all interested and af- fected parties and overlapping taxing jurisdictions and develop the procedures for such gatherings as required by state law. ►yam 3 • Assist the city in participating in required community meetings or public hearings, as well as helping to insure preparation and execution of property notification as required for all meetings. • Work with the city's corporation counsel to meet all the requirements of appropriate laws to insure proper establishment of the Business District. • Assist the city's corporation counsel in preparing appropriate ordinances required for adoption of the redevelopment plan and project. • Assist city in establishing and maintaining complete documentation files to assure prop- er support of eligibility findings in order to support legal standing for establishment of the Business District. • Assist the city in reviewing any economic development proposals submitted to the city by potential developers or the owners of property located in the Business District. Two agreements are attached for reference. The first agreement is between the city and Kane, McKenna and Associates, Inc. for the professional services that firm will be providing to the city for the Business District's feasibility study and for the legislative creation of the Business District should the city council provide such approval at a future date. The second agreement is be- tween the city and the developer and requires the developer to pay the professional service fees the city incurs from Kane, McKenna's work on the business district. That agreement re- quires the developer to deposit the sum of$15,000 with the city to draw down upon when ser- vices are rendered by Kane, McKenna. INTERESTED PERSONS CONTACTED Otter Creek, LLC, the retail center's owner, has been contacted regarding the proposed busi- ness district as has the Elgin Area Chamber of Commerce. Both parties are in agreement with conducting a feasibility study to determine the viability of establishing a business district at the Otter Creek shopping center. FINANCIAL ANALYSIS There is no cost to the city for undertaking the feasibility study to determine the viability of creating a Business District at the Otter Creek retail center. The developer will be paying all costs for the city consultant's work analyzing the feasibility of creating a Business District, and all costs relating to the establishment of the Business District should the city council ultimately approve its creation. Should the feasibility study make a favorable determination for creating Business District at the Otter Creel retail center, the city council will be provided with a detailed financial analysis of 4 the proposed development agreement between the city and the developer governing the shar- ing of the additional tax revenue expected to be generated from the Business District. BUDGET IMPACT FUND(S) ACCOUNT(S) PROJECT#(S) AMOUNT AMOUNT BUDGETED AVAILABLE N/A N/A N/A N/A N/A LEGAL IMPACT None. ALTERNATIVES The city council may choose not to authorize a feasibility study to determine the viability of creating a business district at the Otter Creek retail center. This option will require the develop- er to seek other financing sources for the retail center's maintenance and redevelopment. NEXT STEPS 1. Execute the respective agreement with Kane, McKenna and Associates, Inc. and Otter Creek, LLC. 2. Report back to city council with determination on viability of establishing a Business Dis- trict in the Otter Creek retail center. Originators: Richard G. Kozal, Assistant City Manager Final Review: Colleen Lavery, Chief Financial Officer William A. Cogley, Corporation Counsel/Chief Development Officer Approved: Sean R. Stegall, City Manager ■ 5 ATTACHMENTS A. Professional Services Agreement with Kane, McKenna and Associates, Inc. B. Fees and Costs Reimbursement Agreement with Otter Creek, LLC 6 AGREEMENT THIS AGREEMENT is made and entered into this 8th day of June, 2011 , by and between the CITY OF ELGIN, an Illinois municipal corporation (hereinafter referred to as "CITY") and Kane, McKenna and Associates, Inc., an Illinois Corporation (hereinafter referred to as "CONSULTANT"). WHEREAS, the CITY desires to engage the CONSULTANT to furnish certain professional services in connection with the proposed Business District at the Otter Creek Retail Center (hereinafter referred to as the PROJECT); and WHEREAS, the CONSULTANT represents that it 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. CONSULTANT shall perform the services for the PROJECT as outlined in CONSULTANT'S letter of agreement dated November 29, 2010, a copy of which is attached hereto as Exhibit 1. B. All work hereunder shall be performed under the direction of the C Corporation Counsel of the CITY, hereinafter referred to as the "DIRECTOR". 2. SCHEDULE CONSULTANT shall commence with the services to be provided pursuant to this agreement upon entry into and execution of this agreement and shall complete such services as soon as is reasonably practicable. 3. WORK PRODUCTS All work products prepared by the CONSULTANT pursuant hereto including, but not limited to, reports, plans, designs, calculations, 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 products for its records. Such work products are 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. 4. PAYMENTS TO THE CONSULTANT 411) A. For services provided the CONSULTANT shall be paid at the direct hourly rate of its personnel employed on the PROJECT as set forth in Exhibit 1 attached hereto with the total fee for Phase I not to exceed Fifteen Thousand Dollars ($15,000) except as may be authorized in writing by the CITY. B. Out-of-pocket expenses related to any mailing expenses, newspaper publication, or the preparation of the legal description are not included in the above hourly fees. CONSULTANT will not charge the CITY any travel expenses. C. The CITY shall make periodic payments to the CONSULTANT based upon actual progress within thirty (30) days after receipt and approval of invoice. 5. INVOICES A. The CONSULTANT shall submit invoices in a format approved by the CITY. Progress reports will be included with all payment requests. 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 a 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 fifteen (15) 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 amount set forth under Paragraph 4 above. 7. TERM This Agreement shall become effective as of the date the CONSULTANT is given a notice to proceed and, unless terminated for cause or pursuant to paragraph 6, shall be deemed concluded on the date the CITY determines that all of the CONSULTANT'S work under this Agreement is completed. A determination of completion shall not constitute a waiver of any rights or claims which the CITY may have or thereafter acquire with respect to any term or provision of the Agreement. 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 15 days after occurrence of such action. No claim for additional I 2 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) 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. 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 omissions of the CONSULTANT in connection herewith, including negligence or omissions 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 CITY'S choosing. 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 A. Comprehensive Liability. The CONSULTANT shall provide, pay for and maintain in effect, during the term of this Agreement, 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 Certification 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. 3 The Certificate of Insurance which shall include Contractual obligation 41) assumed by the CONSULTANT under Article 10 entitled "Indemnification" shall be provided. This insurance shall apply as primary insurance with respect 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, alternatively, if the insurance states that it is excess or prorated, it shall be endorsed to be primary with respect to the CITY. B. Comprehensive Automobile Liability. Comprehensive Automobile Liability Insurance covering all owned, non-owned and hired motor vehicles with limits of not less than $500,000 per occurrence for damage to property. 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 occurrence. 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. 13. NONDISCRIMINATION In all hiring or employment made possible or resulting from this Agreement, there shall be no discrimination against any employee or applicant for employment because of sex, age, race, color, creed, national origin, marital status, of the presence of any sensory, mental or physical handicap, unless based upon a bona fide occupational qualification, and this requirement shall apply to, but not be limited to, the following: employment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. 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 sex, race, color, creed, national origin, age except minimum age and retirement provisions, marital status or the presence of any sensory, mental or physical handicap. Any violation of this provision 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. 14. 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. 4 15. 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. 16. 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. 17. SEVERABILITY The parties intend and agreed 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. 18. 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. 19. MODIFICATION OR AMENDMENT This Agreement and its attachments constitutes 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. 20. 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 enforcement of any rights pursuant to this Agreement shall be in the Circuit Court of Kane County, Illinois. 21. 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. 5 22. COOPERATION WITH OTHER CONSULTANTS The CONSULTANT shall cooperate with any other consultants in the CITY'S employ or any work associated with the PROJECT. 23. 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. 24. 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 Human Rights Commission; 411) 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. 25. SUBSTANCE ABUSE PROGRAM. As a condition of this agreement, CONSULTANT shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse Prevention Public Works Project Act at 820 ILLS 265/1 et seq. A copy of such policy shall be provided to the DIRECTOR prior to the entry into and execution of this agreement. 26. 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. 6 27. 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 CITY: William A. Cogley Corporation Counsel City of Elgin 150 Dexter Court Elgin, Illinois 60120-5555 B. As to CONSULTANT: Philip R. McKenna, President Robert Rychlicki, Executive Vice-President Kane, McKenna and Associates, Inc. 150 N. Wacker Drive Suite 1600 Chicago, Illinois 60606 28. 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 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 legal residents of 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 section. 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. 7 IN WITNESS WHEREOF, the parties hereto have entered into and executed this agreement effective as of the date and year first written above. FOR THE CITY: FOR THE CONSULTANT: By By: City Manager Its: Attest: City Clerk 411). I 8 Kane, McKenna port, x a ker.Drive , 4,14 702 Suite io00 r 312 444 91):2 and Associates, Inc. ,:,f::aq o. 60606 November 29, 2010 ail Mr. Richard 0. Kozal Assistant City Manager City of Elgin 150 Dexter Court Elgin, Illinois 60120-5555 Re: City of Elgin - Business DistrictjBD) Review Dear Mr. Kozal: Pursuant to our recent discussions with your staff, Kane, McKenna and Associates, Inc. ("KMA") is prepared to assist the City of Elgin (the "City") in reference to a business district program in an area located near Route 20 and Randall Road (the .BD") Kane, McKenna and Associates, Inc. is prepared to provide the following services to the City as necessary, and only for areas specifically identified by the City. PREPARE BUSINESS DISTRICT PLAN AND PROJECT Under City direction, KMA will complete the Redevelopment Plan and Project required by the Business District Act (defined herein as "BD law") (whether new or amended). Among other elements,the Plan prepared fi>r the proposed 131.) will include: 1) A statement of redevelopment goals and objectives. 2) Examination of BD qualification factors and presentation or rationale for basis under which the BD is to be justified under State law. 3) A statement of eligible redevelopment activities. 4) Presentation of estimated costs for the redevelopment projects contemplated for implementation under the plan. 5) A detailed discussion of impediments to the successful redevelopment of the project area and measures the City could undertake to eliminate such barriers so to promote economic revitalization of the project area. era. 150 North Wacker r 312 444 70:.? ? ;ui?N 60 i c 311 444 3051 Chicagc1, li rw'r 40606 4111) Mr. Richard G. Kozal Page Two November 29, 2010 6) As necessary, assist City by participating in required community meetings or public hearings, as well as helping to insure preparation and execution of property notification as required for all meetings. 7) As necessary, assist the City and Client in participating in meetings will all interested and affected parties and overlapping taxing jurisdictions, KMA will help City to follow the procedures for such gatherings as required by State law. 8) Work with the City's counsel to meet all the requirements of appropriate law so to insure proper establishment of the BD. 9) Assist City's counsel in preparation of the appropriate Ordinances required for adoption of the redevelopment plan and project. 10) Assist City to establish and maintain complete documentation files to assure proper support of eligibility Endings in order to support legal standing for establishment of the BD. 11) In addition KMA will assist the City to review any economic proposals submitted to the City by potential developers or the owners of property located in the BD. COMPENSATION FOR SERVICES The Consultant will bill the City monthly for services at the following rates per hour: Personnel Hourly Rates President $200.00/Hour Executive Vice President $1.75.00/Hour Officers $150.00/flour Associates $100.00/Hour Research $ 60.00/Hour Administrative $ 25.00/Hour 4111) 150 Drive r 312 444 1702 Site 1600 F -712 414 9(': ! 111no,:. 60606 Mr. Richard G. Kozal Page Three November 29, 2010 p. We estimate that such services shall be in the range of$8,500 to $12,000. Sincerely, Philip R. McKenna President /1 ' .7 Robert Ryihlieki Executive Vice President rub' Accepted by: City of Elgin Date elk SfClient FoldersTigin\Contracts\2010\Business District Review LOA 11.29.10.doc FEES AND COSTS REIMBURSEMENT AGREEMENT 4111) THIS AGREEMENT is made and entered into this 8th day of June, 2011, by and between the City of Elgin an Illinois municipal corporation (hereinafter referred to as the "City") and Otter Creek, LLC, an Illinois limited liability company (hereinafter referred to as the "Developer"); and WHEREAS, the Developer has requested that the City take the following action (the "Municipal Action"), to wit, enact or adopt legislation that will cause certain property owned by the Developer commonly known as the "Otter Creek Retail Center" on the west side of South Randall Road between U.S. Highway 20 and South Street in the City of Elgin, Illinois (the "Subject Property") as a Business District (hereinafter a "Business District") as defined under the Illinois Business District Development and Redevelopment Act (65 ILCS 5/11-74-3.1 et seq.); and WHEREAS, in analyzing and (at the sole discretion of the City) implementing the requested Municipal Action, the City expects to incur fees and costs including, without limitation, fees and costs payable to Kane, McKenna and Associates, Inc. in connection with such consultant's (i) preparation and presentation of a feasibility analysis of the proposed Business District and (ii) consulting with the City in connection with the redevelopment agreement with the Developer (collectively the "Fees and Costs"); and WHEREAS, the City is unwilling to embark on its consideration of the requested Municipal Action unless the Developer agrees to reimburse the City for the Fees and Costs as herein provided; NOW, THEREFORE, the undersigned Developer does hereby covenant and agree as follows: 1. The Developer shall promptly reimburse the City for such Fees and Costs as the City may from time to time incur; provided, however, that unless and until this Agreement is hereafter amended so as to increase such limit, the Developer shall not be required to reimburse the City more than an aggregate of Twenty Thousand Dollars ($20,000) of such Fees and Costs (the "Aggregate Reimbursement Limitation"). 2. Subject to the Aggregate Reimbursement Limitation, the Developer's covenant as contained in paragraph 1 above shall apply to all such Fees and Costs incurred by the City prior to such date (if ever) as the Developer shall have notified the City in writing that the Developer has elected to withdraw its request for the Municipal Action. 3. To secure its obligations to the City hereunder, the Developer shall deposit with the City the sum of Fifteen Thousand Dollars ($15,000) (the "Escrow Deposit"). The City shall have the right to withdraw from the Escrow Deposit such Fees and Costs as may from time to time be due and owing by the Developer to the City, and shall account for all such withdrawals to the Developer. The amount of such Escrow Deposit shall not limit the Developer's obligation to the City hereunder. Further, any balance of the Escrow Deposit remaining after the payment to the City of all Fees and Costs due and owning by the Developer shall be promptly refunded by the City to the Developer. • 4. This agreement shall not be construed so as to create a partnership, joint venture, employment or other agency relationship between the parties hereto. IN WITNESS WHEREOF, the parties have entered into and execute this agreement as of the 8th day of June, 2011. DEVELOPER: CITY: OTTER CREEK, LLC CITY OF ELGIN By: By: City Manager Name: Title: Attest: rik City Clerk rik 2