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12-58 Resolution No. 12-58 RESOLUTION AUTHORIZING EXECUTION OF AN AMENDMENT TO FACADE IMPROVEMENT PROGRAM AGREEMENT WITH JAMES WICKER (79 S. Grove Avenue) BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS,that Sean R. Stegall,City Manager,and Kimberly A.Dewis,City Clerk,be and are hereby authorized and directed to execute an amendment to facade improvement program agreement on behalf of the City of Elgin with James Wicker,owner of the property commonly known as 79 S.Grove Avenue,a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: March 21, 2012 Adopted: March 21, 2012 Omnibus Vote: Yeas: 6 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk AMENDMENT TO FACADE IMPROVEMENT PROGRAM AGREEMENT (79 South Grove Avenue) THIS AMENDMENT AGREEMENT is made and entered into this 21st day of March, 2012, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as the "City") and James Wicker, the owner of the property commonly known as 79 South Grove Avenue, Elgin, Illinois, (hereinafter referred to as the "Owner"). WHEREAS, the City and the Owner have previously entered into a Fagade Improvement Program Agreement dated November 17, 2010, for the property commonly known as 79 South Grove Avenue, Elgin, Illinois (hereinafter referred to as the "Subject Agreement" and as the "Subject Property"); and WHEREAS, as a result of a prevailing wage issue in connection with the fagade improvements to the Subject Property the Owner has incurred additional costs relative to the fagade improvements in the amount of$14,675.64; and WHEREAS, the Owner has requested that the City amend the Subject Agreement to reimburse the Owner thirty-five percent (35%) of said additional costs. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, and the mutual promises and covenants contained in the original Subject Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree to amend the Subject Agreement as follows: 1. The total previously approved project costs in the amount of$73,420 are hereby increased in the amount of $14,675.64. The City agrees to pay to the Owner an additional $5,137, such amount being thirty-five percent (35%) of the additional approved project costs of $14,675.64. 2. It is agreed and understood that the City's agreement to provide the additional payment of$5,137 as provided in this Amendment Agreement is in full and final satisfaction of all claims by the Owner against the City and/or its agents with respect to the Subject Agreement, this Amendment Agreement and the fagade improvement project for the Subject Property. Owner for himself, his successors and assigns, and any persons claiming through the Owner, jointly and severally, hereby to the fullest extent permitted by law fully and irrevocably releases and discharges the City, its assigns, officers, officials, employees, attorneys and agents, jointly and severally, from all manner of liability or loss, claims, liens, causes of action, of any nature, whether in law or equity, known or unknown, which the Owner now has or may have arising out of or related to the Subject Agreement, this Amendment Agreement, and/or the fagade improvement program project for the Subject Property. 3. The changes to the Subject Agreement as provided for in this Amendment Agreement are germane to the original contract as signed. - r - 4. It is agreed and understood by the City and the Owner that this Amendment Agreement shall be construed without regard to any presumption or rule requiring construction against the drafting party. 5. In the event that any conflict between the terms of the Subject Agreement, and this Amendment Agreement, the terms of this Amendment Agreement shall supersede and control. 6. That except as amended by this Amendment Agreement, the Subject Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties have executed and entered into this Amendment Agreement as of the date and year first written above. As to ER: As to CITY OF ELGIN: Ja s Wicker; Sean R. Stegall, City nager I r ATTEST: Kimberly A. Dewis, City Clerk FALegal Dept\Agreement\Facade Improvement-79 S.Grove-Wicker-Amendment.docx - 2 - ELGIN THE CRY IN THE SUBURBS AGENDA ITEM: N MEETING DATE: March 7, 2012 ITEM: Amendment to Facade Improvement Program Agreement for 79 S. Grove Avenue ($5,137) OBJECTIVE: Implementation of the city's fa4ade improvement program to improve structures in the downtown area. RECOMMENDATION: Approve the amendment to the facade improvement program agreement for 79 S. Grove Avenue BACKGROUND The city and James Wicker, the owner of the property at 79 S. Grove Avenue, have previously entered into a facade improvement program agreement dated November 17, 2010, for Mr. Wicker's property at 79 S. Grove Avenue. A copy of the agreement is attached. Pursuant to such agreement and the fa4ade improvement program, the city agreed to pay 35 percent of the eligible facade improvement program costs. The eligible costs were identified in the amount of $73,420. The city's 35 percent share was $25,700. Mr. Wicker has completed the facade improvements and the city has paid the city's 35 percent share to Mr. Wicker. OPERATIONAL ANALYSIS Mr. Wicker has been contacted by the Illinois Department of Labor and has been advised that because the work on the project was to be paid in part by public funds that the work on the project is subject to the Prevailing Wage Act notwithstanding the fact that the building and property in question is privately owned. As a result thereof, Mr. Wicker was required to pay an additional $14,675.64 in connection with the masonry work on the project due to the fact that the prevailing wage for masonry work was higher than the wages paid by the masonry contractor. Mr. Wicker has submitted evidence to the city that he has paid these additional costs. Mr. Wicker is requesting that the city enter into an amendment to the facade improvement program agreement whereby the city would agree to pay the 35 percent share under the J�► fagade improvement program of the additional $14,675.64 in costs incurred by Mr. Wicker for the project. The 35 percent share by the city represents an additional payment of $5,137. A copy of the proposed amendment agreement is also attached. INTERESTED PERSONS CONTACTED The property owner,James Wicker. FINANCIAL ANALYSIS The total cost of the original agreement and this amendment is$30,837. BUDGET IMPACT FUND(S) ACCOUNT(S) PROJECT#(S) AMOUNT AMOUNT BUDGETED AVAILABLE Riverboat 275-0000-791.78-99 79897C $5,137.00 $5,137.00 LEGAL IMPACT The confusion of whether the Prevailing Wage Act applied to the city's fagade improvement program appears to be the result of several recent amendments to the Prevailing Wage Act. Although the building and property in question is privately owned, "Public Works" in the Prevailing Wage Act now also includes privately owned buildings if improvements thereto are paid for wholly or in part out of public funds. (The statute further provides however that"Public Works" does not include projects undertaken by the owner at an owner occupied single family residence or an owner occupied unit of a multi-family residence.) ALTERNATIVES The city council may elect not to enter into the proposed amendment to the facade improvement program agreement. NEXT STEPS Enter into the amendment to the fagade improvement program agreement. Originators: William A. Cogley, Corporation Counsel/Chief Development Officer Final Review: Colleen Lavery, Chief Financial Officer Richard G. Kozal, Assistant City Manager/Chief Operating Officer Sean R. Stegall, City Manager J �► ATTACHMENTS A. Facade Improvement Program Agreement B. Amendment to Fagade Improvement Program Agreement ��i CITY OF ELGIN FACADE IMPROVEMENT PROGRAM AGREEMENT 79 South Grove Avenue THIS AGREEMENT is made and entered into this 17th day of November _,2010, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as "City"),and James Wicker,the owner of the property commonly known as 79 South Grove Avenue, Elgin,Illinois, (hereinafter referred to as"Owner"). WHEREAS,City has established a facade improvement program(hereinafter referred to as "Program")for application within certain areas of the corporate limits of City designated by City as appropriate for such application(hereinafter referred to as "Rehabilitation Areas"); and WHEREAS,Program is administered and funded solely by City for purposes of the control and prevention of blight,dilapidation and deterioration of Rehabilitation Areas; and WHEREAS, pursuant to Program, City has undertaken to share the cost of facade improvements to certain structures within Rehabilitation Area, pursuant to the criteria set forth herein; and WHEREAS,Owner owns at least 50%of subject commercial building(s),or is the tenant of commercial building(s)located within Rehabilitation Area,with owner having provided the owner's consent and authority to participate in Program pursuant to the terms and provisions of this Agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein,the sufficiency of which is hereby mutually acknowledged,the parties hereto hereby agree as follows: Section 1.The above recitals are incorporated into and made a part of this agreement. The total approved project costs for the facade improvements for the structure referred to at Section 16 herein shall be $73,420.00, as set forth in Attachment A attached hereto made a part hereof(such total approved project costs for facade improvements are hereinafter referred to as"Eligible Costs" and such structure is hereinafter referred to as the"Structure").The City shall pay the Owner a sum not to exceed$25,697.00, being 35% of the total Eligible Costs, for facade improvements to the structure approved pursuant to the provisions of this Agreement. The project shall be confined to approved improvements made to that part of the Structure visible from any public right-of-way. All parties hereto agree that all payments from the City provided for herein shall be made to James Wicker,who shall provide the City with a full release upon receipt. Section 2. Eligible Costs shall include labor, material and equipment costs,and such other costs as may be reasonably necessary for the execution and completion of the facade improvement hereby provided for(hereinafter referred to as the"Work"),as designated from the design drawings, i specifications, and/or scope of work as set forth in Attachment B attached hereto made a part hereof,and approved by the Project Review Team pursuant to the provisions of Section 3 herein and prepared by Consultant(hereinafter referred to as"Plans"). Section 3. No Work shall be undertaken or shall be considered to constitute the basis for an Eligible Cost until the design for such Work has been submitted to and approved in writing by the City's Project Review Team (hereinafter referred to as "Project Review Team") consisting of the City's Historic Preservation Planner and City's Senior Planner,and any othermember designated on the Project Review Team. Such design shall include,but not be limited to, a date certain by which the Work shall be completed. In no event shall such Work be completed more than one hundred eighty(180)days from the date of this Agreement,without the written consent of the Project Review Team. Section 4. The Project Review Team shall be permitted access to Structure to periodically review the progress of the Work. Such review shall not be in lieu of any other inspections that may otherwise be required by law or by City. Any and all portions of the Work which do not,in the sole discretion of the Project Review Team, conform to the Plans or other applicable terms of this Agreement, shall be made to conform to the Plans and other applicable Terms of this Agreement upon written notice of the existence of such non-conforming portions. Section 5. Upon completion of the Work,and upon final inspection and written approval by the Project Review Team and such other final inspections and approvals as may be required by law, Owner shall submit to City: (1)an executed,notarized itemized contractor statement reflecting the total cost of the Work and each portion thereof, including, but not limited to, the cost of labor (whether provided by any contractor or subcontractor), materials and equipment; (2) copies of all bids, contracts and invoices submitted, executed or incurred pursuant to the Work; and (3) reasonable proof of payment of all costs incurred pursuant to the Work. Section 6. City shall pay to Owner the sum provided for at Section 1 herein within thirty (30) days of owner's compliance with the provisions of Section 5 herein. In no event shall the amount paid to Owner exceed the amount specified in this Agreement or in the contractor statement. Section 7. In the event Owner fails to complete the Work in accordance with the terms of this Agreement, or otherwise breaches the terms of this Agreement, City may terminate this Agreement upon written notice of breach and termination to Owner, and any and all financial or other obligations on the part of City shall cease and become null and void.Additionally,Owner shall refund to City all money paid to Owner by City pursuant to this agreement upon thirty (30) days written demand This provision shall not constitute a restriction on City to pursue any and all other rights to which it may be entitled by law. Section 8. Upon completion of the Work,and for a period of five(5)years thereafter,Owner shall properly maintain the Work in its finished form,without alteration or change thereto,and shall not enter into any agreement, or take any other steps to alter, change or remove such Work, or to create or undertake any other Work which may constitute a deviation from the Plans,without prior 2 written approval from the Project Review Team in its sole discretion. Section 9. Nothing herein is intended to limit, restrict or prohibit the Owner from undertaking any other Work in or about the subject premises that is unrelated to the facade improvement provided for in this Agreement. Section 10. This Agreement shall be binding upon City and its successors,and upon Owner, Owner's successors and assigns for a period of five (5)years from and after the date of completion and approval of the Work. Owner shall provide subsequent Owner(s)of Structure with a copy of this Agreement. This Agreement shall run with the land underlying Structure.Notwithstanding the aforementioned five (5) year period, the provisions of Sections 7 and 12 herein shall survive the termination of this agreement. Section 11. If Owner does not own the underlying property for which Work is being done, Owner warrants and represents to City that Owner has a lease at the location for which the Work is proposed for a term of at least six (6) years. Owner further warrants and represents that he has received authorization from all owners of the property for which Work is to be done to accept funds under this program and to undertake the Work. Further, such owner(s) of the property for which Work is to be done.hereby acknowledges that he is aware of this Agreement and authorized the Work that is to be made to the Structure. Said owner(s)of the property for which improvements are to be made further acknowledge that,as owner of the property,he is a party to this Agreement and is bound by the provisions of this Agreement specifically,but not limited to,the provisions of Section 8 of this Agreement. Each"Owner"signature hereto hereby warrants and represents that there are no other entities having an ownership interest in the Structure, which have not executed this Agreement. Section 12. Owner hereby holds harmless and indemnifies City from and against any and all causes of action,suits,claims for damages,and any and all other liability,which may arise out of or in connection with Owner's or Owner's agents',employees' and assigns'negligent performance of any of the terms of this Agreement. In the event the indemnification provisions of this Agreement are invoked so as to require legal defense of City, counsel for such defense shall be of City's choosing. The provisions of this section shall survive any termination and/or expiration of this agreement. Section 13. This Agreement shall not be construed to create a partnership,joint venture or employment relationship between the parties hereto. Section 14. This Agreement shall be subject to and governed by the laws of the State of Illinois. The parties hereto hereby agree that venue for any and all actions that may be brought by each and either of them to enforce the provisions of this Agreement shall be in the Circuit Court of Kane County, Illinois. Section 15. The terms of this Agreement shall be severable. In the event that any of the terms or provisions of this Agreement are deemed to be void or otherwise unenforceable for any 3 • 5 reason, the remainder of this Agreement shall remain in full force and effect. Section 16. Owner's Name: James Wicker Address: 286 Comstock Drive City: Elgin, IL 60124 Telephone Number: 815-482-0732 Property Location: 79 South Grove Avenue Ownership Interest: Property owner Contact Person: James Wicker 286 Comstock Drive Elgin,IL 60124 815-482-0732 Section 17. Notwithstanding any other provision of this Agreement it is expressly agreed and understood that in connection with the performance of this Agreement that the Owner 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, Owner hereby certifies, represents and warrants to the City that all Owner'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. Owner 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 Owner to determine Owner's compliance with the provisions of this section. In the event the City proceeds with such an audit the Owner shall make available to the City the Owner's relevant records at no cost to the City.Owner shall pay any and all costs of such audit. Section 18. Time is of the essence of this Agreement. 4 IN WITNESS WHEREOF,the parties hereto have executed this Agreement on the date first appearing above. As to CITY OF ELGIN As to OWNER: By: By: can R. Stegall James cker City Manager Prope Owner ATTEST: Diane Robertson City Clerk s Attachment A Downtown Facade Improvement Program Eligible Cost Comparison Property Address-79 South Grove Avenue Property owner-James Wicker Scope of work Bid #1 Bid#2(lower bid) Contractor name Amount Contractor name Amount Architectural consultation and Anthem rendering Silva Architects $8,500.00 Architects $7,600.00 Masonry/Tuckpointing and Olsen Cornerstone painting Tuckpointing $73,100.00 Masonry $58,700.00 A Shade Above Awnings Awning $4,780.00 Richter Awning $4,620.00 Lighting/Electrical Lohbauer Electric $2,579.00 Benitez Electric $2,500.00 total $88,959.00 $73,420.00 total eligible cost(based on low bid) $73,420.00 City's participation at 35% $25,697.00 total recommended Facade Improvement Program allocation $25,697.00 6 Attachment B Scope of Work Property Address-79 South Grove Avenue Property owner-James Wicker 1. Removing the 1970s street-level facade and replacing with a brick that compliments the original second story brick with a limestone cap. (Due to the two foot elevation difference between the first floor of the building and street, and the triangular shaped interior space, the applicant is improving the street facade in a design that is conducive to establishing an office on the first floor. Additionally,the applicant has demonstrated, and staff has confirmed,that restoration of the original brick on the first floor level is not possible, since the original storefront was completely removed to allow for the 1970s facade.) 2. Returning the main entry door to south facing facade 3. Cleaning and tuckpointing of existing brick on all facades facing the street—south, east and west and painting building cornice,window and door trim in a historic color scheme 4. Installing new awnings that wrap around all three facades Installation of new exterior lighting on the building 7 AMENDMENT TO FACADE IMPROVEMENT PROGRAM AGREEMENT (79 South Grove Avenue) THIS AMENDMENT AGREEMENT is made and entered into this day of March, 2012, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as the "City") and James Wicker, the owner of the property commonly known as 79 South Grove Avenue, Elgin, Illinois, (hereinafter referred to as the "Owner"). WHEREAS, the City and the Owner have previously entered into a Fagade Improvement Program Agreement dated November 17, 2010, for the property commonly known as 79 South Grove Avenue, Elgin, Illinois (hereinafter referred to as the "Subject Agreement" and as the "Subject Property"); and WHEREAS, as a result of a prevailing wage issue in connection with the facade improvements to the Subject Property the Owner has incurred additional costs relative to the facade improvements in the amount of$14,675.64; and WHEREAS, the Owner has requested that the City amend the Subject Agreement to reimburse the Owner thirty-five percent(35%) of said additional costs. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, and the mutual promises and covenants contained in the original Subject Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree to amend the Subject Agreement as follows: 1. The total previously approved project costs in the amount of$73,420 are hereby increased in the amount of $14,675.64. The City agrees to pay to the Owner an additional $5,137, such amount being thirty-five percent (35%) of the additional approved project costs of $14,675.64. 2. It is agreed and understood that the City's agreement to provide the additional payment of$5,137 as provided in this Amendment Agreement is in full and final satisfaction of all claims by the Owner against the City and/or its agents with respect to the Subject Agreement, this Amendment Agreement and the facade improvement project for the Subject Property. Owner for himself, his successors and assigns, and any persons claiming through the Owner, jointly and severally, hereby to the fullest extent permitted by law fully and irrevocably releases and discharges the City, its assigns, officers, officials, employees, attorneys and agents, jointly and severally, from all manner of liability or loss, claims, liens, causes of action, of any nature, whether in law or equity, known or unknown, which the Owner now has or may have arising out of or related to the Subject Agreement, this Amendment Agreement, and/or the facade improvement program project for the Subject Property. 3. The changes to the Subject Agreement as provided for in this Amendment Agreement are germane to the original contract as signed. 4. It is agreed and understood by the City and the Owner that this Amendment Agreement shall be construed without regard to any presumption or rule requiring construction against the drafting party. 5. In the event that any conflict between the terms of the Subject Agreement, and this Amendment Agreement, the terms of this Amendment Agreement shall supersede and control. 6. That except as amended by this Amendment Agreement, the Subject Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties have executed and entered into this Amendment Agreement as of the date and year first written above. As to OWNER: As to CITY OF ELGIN: James Wicker Sean R. Stegall, City Manager ATTEST: Kimberly A. Dewis, City Clerk FALegal Dept\Agreement\Facade Improvement-79 S.Grove-Wicker-Amendment.docx - 2 - All , ELGIN THE CITY IN THE SUBURBS- DATE: March 30, 2012 TO: Barb Furman, Paralegal FROM: Jennifer Quinton, Deputy City Clerk SUBJECT: Resolution No. 12-58, Adopted at the March 21, 2012, Council Meeting Enclosed you will find the agreement listed below. Please distribute this agreement to the other party and keep a copy for your records if you wish. If you have any questions please feel free to contact our office 847-931-5660 and we will do our best to assist you. Thank you. • Amendment to the Fagade Improvement Program Agreement with James Wicker (79 S. Grove Avenue)