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18-51 Resolution No. 18-51 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH CARLSON BROTHERS, INC. REGARDING THE IMPACT FEE IMPROVEMENTS IN CONNECTION WITH THE WATERMARK AT THE GROVE IMPACT FEE AGREEMENTS BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that pursuant to Elgin Municipal Code Section 5.02.020B(9) the City Council hereby finds that an exception to the requirements of the procurement ordinance is necessary and in the best interest of the city; and BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Richard G. Kozal, City Manager, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute an agreement on behalf of the City of Elgin with Carlson Brothers, Inc. regarding the impact fee improvements in connection with the Watermark at the Grove Impact Fee Agreements, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: April 25, 2018 Adopted: April 25, 2018 Omnibus Vote: Yeas: 9 Nays: 0 Attest: s/ Kimberly Dewis Kimberly Dewis, City Clerk AGREEMENT THIS AGREEMENT is dated this 25th day of April, 2018 by and between the City of Elgin,an Illinois Municipal Corporation(herein called"City")and Carlson Brothers,Inc.(herein called"Contractor"),an Illinois corporation. WHEREAS, on February 28, 2018 the City entered into the following agreements: (i) Owner Impact Fee Agreement with Watermark Apartments LLC ("Owner" and the "Owner Impact Agreement") and (ii) Sponsor Impact Fee, Excess Cost and Construction Agreement with Watermark IP IL LLC ("Sponsor"and the"Sponsor Impact Agreement"). The Owner Impact Agreement and Sponsor Impact Agreement are sometime collectively called the "Impact Fee Agreements", and such Impact Fee Agreements are incorporated into this Agreement by this reference; and WHEREAS, Watermark Apartments LLC ("Owner")is the owner and developer of a 282 unit apartment project (the"Project") in the City of Elgin and as part of the development of the Project, Owner has requested City to construct certain off-site improvements and Owner has agreed to pay an Impact Fee to the City as consideration for the construction of the Impact Fee Improvements,as defined in the Impact Fee Agreements.Watermark IP IL LLC as a member of Owner and as sponsor has undertaken the responsibility to oversee the construction of the Impact Fee Improvements for the benefit of itself and the City; and WHEREAS, the Impact Fee Improvements include in summary the trail and sidewalk improvements, right-of- way dedication, electrical improvements, and landscape and hardscape improvements, all as further defined and described in the Impact Fee Agreements;and Whereas,under the terms of the Sponsor Impact Agreement,Contractor is designated as the general contractor to perform the Impact Fee Improvements. NOW THEREFORE, in consideration of the mutual promises and covenants herein, the sufficiency of which is hereby mutually acknowledged, the parties hereto hereby agree as follows: Article 1. Work. Contractor shall complete the Work as specified in the Impact Fee Agreements and these Contract Documents. The Work is generally described as follows: Construction of the Impact Fee Improvements on the Impact Fee Improvement Properties as further described and defined in the Impact Fee Agreements and these Contract Documents. Article 2. ENGINEER. The Work has been designed by RWG Engineering ("Engineer"). Engineer shall act as Owner's and City's representative and shall assume and provide such duties and obligations to the extent provided in the Contract Documents. Article 3. WORK COMPLETION, LIQUIDATED DAMAGES,DELAYS AND DAMAGES. 3.1. Work Completion. The Work shall be completed by October 15,2018. In the event of any conflict between these dates and dates elsewhere in the Contract Documents, these dates shall prevail. Time is of the essence of this Agreement. Substantial completion and final completion of the impact fee improvements and the Work to be performed pursuant to this Agreement shall be evidenced by the written approval of the City and the Owner. - 1 - 3.2. Liquidated Damages. City and Contractor agree that as reasonable liquidated damages for delay(but not as a penalty) Contractor shall pay City $500.00 for each day beyond the time specified for Substantial Completion in the Contract Documents. After Substantial Completion, if Contractor shall neglect,refuse, or fail to complete the remaining Work within the times specified in the Contract Documents (hereinafter referred to as "Contract Times") or any proper extension thereof granted by City,Contractor shall pay City $500.00 for each day beyond the time for Final Completion. Contractor agrees and acknowledges that such liquidated damages constitute a reasonable estimate of City's actual damages. Such liquidated damages shall constitute City's sole recourse for and shall constitute full satisfaction of City's actual damages resulting from Contractor's delay. Contractor further acknowledges and agrees that in the event any provisions in any of the Contract Documents conflict with the provisions of this paragraph or otherwise provide for damages resulting from Contractor's delay, the provisions of this paragraph shall control,and such conflicting provisions and any Contract Documents shall not constitute, and shall not be construed as,a basis by which to render the provisions of this paragraph unenforceable. 3.3. Delays and Damages. In the event Contractor is delayed in the prosecution and completion of the Work or achievement of any Contract Times because of any delays caused by City or Engineer, Contractor shall have no claim against City or Engineer for damages or contract adjustment other than an extension of the Contract Times as provided herein and the waiving of liquidated damages during the period occasioned by the delay. Article 4. CONTRACT PRICE. City shall pay Contractor $730,187.55 as indicated in the Contractor's Bid for completion of the Work in accordance with the Contract Documents. Article 5. PAYMENTS. 5.1. Payments. City shall make payment on the basis of Contractor's application for payment as recommended by City Engineer upon substantial completion using the Impact Fee paid to the City by the Owner pursuant to the Impact Fee Agreements. In the event the Contractor requires progress payments then Sponsor shall fund those payments through a construction escrow to be established at Chicago Title Insurance Company, 1795 West State Street, Geneva, IL, ("the Title Company") as the Work to complete the Impact Fee Improvements progresses. Notwithstanding anything to the contrary in any Contract Documents,City or Sponsor shall be entitled to withhold any payments pending the submission of partial or full waivers of lien and/or certifications for review and approval of the Title Company verifying the receipt of payment for all work performed by all subcontractors up to the date of Contractor's application for partial or final payment in City's sole discretion. City shall further be entitled to make such payments directly to any subcontractors as may be necessary to obtain such lien waivers and/or certifications. In the event City or Sponsor makes any such payments directly to any subcontractors, the amount of such payments shall be deducted from the total amount due to Contractor pursuant to this agreement; and Contractor shall provide a written release to City and Sponsor in the amount of any such payments upon ten (10) days written demand. Concurrent with all applications for payment, Contractor shall provide City, Owner and Sponsor with a sworn certification of all work performed by all subcontractors and amounts paid to all subcontractors as of the date of application. 5.2. Retainage. City, or Sponsor may withhold, from all payments prior to Substantial Completion, an amount equal to up to ten percent(10%) of work completed,at City's or Sponsor's sole discretion. Upon Substantial Completion,City or Sponsor may release a portion of the retainage to Contractor,retaining at all times an amount sufficient to cover the cost of the Work remaining to be completed, at City's, or Sponsor's sole discretion. -2 - The time for payment of any retainage from City to Contractor shall be at City's or Sponsor's sole discretion. Such payment shall not be unreasonably withheld. 5.3. Final Payment. The City or Sponsor shall not be required to make final payment prior to completion and acceptance of the Work by the City. Article 6. CONTRACT DOCUMENTS. There are no Contract Documents other than those listed below. The Contract Documents which comprise the entire agreement between City and Contractor concerning the Work consist of the following: a. This Agreement. b. Certificates of Insurance. c. Bonds. d. Impact Fcc Agreements. e. Notice to Proceed. f. General Conditions. g. The final engineering plans for the Watermark at the Grove Development, prepared by RGW Engineering dated November 21,2017, last revised March 16, 2018. h. Landscape plans for the Watermark at the Grove Development prepared by Stephen Perry Smith Architects, Inc. dated November 21,2017, last revised March 23,2018, consisting of five(5) pages. i. Any Addenda. j. Contractor's Bid. k. City Forms. 1. Any subsequent Written Amendments to any documents listed above and other documents amending, modifying, or supplementing the Contract Documents, which may be delivered or issued after the Effective Date of the Agreement and are not attached hereto. This Agreement and the Contract Documents listed above comprise the sole and exclusive Agreement between the parties hereto. There are no other agreements between the parties hereto either oral or written, and neither this Agreement nor any Contract Documents shall be modified or amended without the written consent of the authorized representatives of the parties hereto. Article 7. MISCELLANEOUS. a. Terms used in this Agreement shall have the meanings indicated in the General Conditions. b. No assignment or delegation by a party hereto of any rights under,obligations or interests in the Contract Documents shall be binding on another party hereto without the written consent of the party sought to be bound;and specifically but without limitation moneys that may become due and moneys that are due -3 - may not be assigned without such consent(except to the extent that the effect of this restriction may be limited by law); and unless specifically stated to the contrary in any written consent to an assignment, no assignment shall release or discharge the assignor from any duty or responsibility under the Contract Documents. c. City and Contractor each binds itself, its partners, successors, employees, assigns, and agents to the other party hereto, its partners, successors, employees, assigns, and agents in respect of all covenants, agreements,and obligations contained in the Contract Documents. d. The business address of Contractor is hereby designated as the place to which all notices, letters, and other communication to Contractor shall be mailed or delivered. The address of City, Owner and Sponsor as provided in the Impact Fee Agreements are hereby designated as the place to which all notices, letters, and other communication to City, Owner and Sponsor shall be mailed or delivered. Such notices, letters and other communications shall be directed to the City's Engineer with a copy to the City's Corporation Counsel. Either party may change its address at any time by an instrument in writing delivered to Engineer and to the other party. e. The terms and provisions of this Agreement shall be severable. In the event any of the terms or provisions of this Agreement shall be deemed to be void or otherwise unenforceable for any reason,the remainder of this Agreement shall remain in full force and effect. f. This Agreement shall be subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes and the enforcement of any rights arising out of or in connection with the Agreement shall be in the Circuit Court of Kane County, Illinois. g. This Agreement shall not be construed so as to create a partnership, joint venture, employment or agency relationship between the parties hereto except as may be specifically provided for herein. h. Except as set forth below, in the event of any conflict between any of the terms or provisions of this Agreement and any other Contract Documents,the terms and provisions of this Agreement shall control. It is intended that Work not covered under a specific beading, paragraph, branch, class or trade of any of the Contract Documents shall be supplied if it is required elsewhere in any of the Contract Documents or is reasonably inferable therefrom as being necessary to produce the intended results. In the event of any inconsistency,conflict,or ambiguity between and among the Contract Documents,the requirement with the highest standard,greatest quantity,or a strictest compliance requirement shall govern. i. Indemnification. To the fullest extent permitted by law, Contractor agrees to and shall indemnify, defend and hold harmless the City, the Engineer, Engineer's consultants and the officers, employees, boards and commissions of each and any of them from and against any and all claims,suits,judgments, costs, attorneys' fees, damages or any and all other relief or liability arising out of or resulting from or through,or alleged to arise out of,any acts or negligent acts or omissions of Contractor or Contractor's officers, employees,agents or subcontractors in the performance of this agreement,or arising out of or in connection with litigation based on any mechanic's lien or other claims, suits, judgments and/or demands for damages by subcontractors. 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 City's choosing. In the event and to the extent that any legal work is performed by City's in-house legal counsel pursuant to the provisions of this section, City shall be reimbursed by Contractor for such legal work at the rate of$200 per hour, which rate Contractor hereby agrees and acknowledges to be a reasonable rate for such in-house -4- attorneys'fees. The provisions of this paragraph shall survive any expiration and/or termination of this agreement. j. 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, Contractor 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, Contractor hereby certifies, represents and warrants to the City that all of Contractor's employees and/or agents who will be providing products and/or services with respect to this Agreement shall be legally authorized to work in the United States. Contractor 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 Contractor to determine Contractor's compliance with the provisions of this section. In the event the City proceeds with such an audit, Contractor shall make available to the City Contractor's relevant records at no cost to the City. City shall pay any and all costs associated with any such audit. k. Contractor hereby waives any and all claims to interest on money claimed to be due pursuant to this Agreement, and all such rights to interest to which it may otherwise be entitled pursuant to law, including,but not limited to, pursuant to the Local Government Prompt Payment Act,as amended(50 ILCS 505/1, et.seq),or the Illinois Interest Act as amended(815 ILCS 205/1, et.seq). 1. Limitation of Actions. Contractor shall not be entitled to and hereby waives, any and all rights that it might have to file suit or bring any cause of action or claim for damages against the City of Elgin and/or its affiliates,officers,employees,agents,attorneys,boards and commissions,of whatsoever nature and in whatsoever forum after two(2)years from the date of this Agreement. m. Notwithstanding any other provision hereof, the City may terminate this Agreement at any time for convenience or any other reason upon thirty (30) days prior written notice to Contractor and Sponsor without penalty. In the event this Agreement is so terminated Contractor shall be paid for goods provided and/or services actually performed, and reimbursable expenses actually incurred as may be specifically provided for herein prior to such termination, except that such payment and/or reimbursement shall not in any event exceed the total amount set forth for the total contemplated payment provided for herein. Additionally, in the event this Agreement is so terminated, Contractor shall immediately cease the expenditure of any funds paid to Contractor by the City and shall refund to the City any unearned or unexpended funds. n. This agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute one and the same agreement. For the purposes of executing this agreement,any signed copy of this agreement transmitted by fax machine or e-mail shall be treated in all manners and respects as an original document. The signature of any party on a copy of this agreement transmitted by fax machine or e-mail shall be considered for these purposes as an original signature and shall have the same legal effect as an original signature. Any such faxed or e-mailed copy of this agreement shall be considered to have the same binding legal effect as an original document. At the request of either party any fax or e-mail a copy of this agreement shall be re-executed by the parties in an original form. No party to this agreement shall raise the use of fax machine or e-mail as a defense to this agreement and shall forever waive such defense. o. Contractor hereby irrevocably consents to the jurisdiction of the Circuit Court of Kane County, Illinois for the enforcement of any rights, the resolution of any disputes and/or for the purposes of any lawsuit brought pursuant to this agreement or the subject matter hereof; and the Contractor agrees that service - 5 - by first class U.S. mail to the entity and address provided for herein shall constitute effective service. Both parties hereto waive any rights to a jury. p. Contractor hereby acknowledges and agrees that the City's entry into this Agreement is as an intermediary for the Owner and the Sponsor pursuant to the Impact Fee Agreements. This Agreement is subject to and conditioned upon Sponsor having deposited or caused to be deposited with the City the Bond described in Section 4(c)of the Sponsor Impact Fee,Agreement to guarantee all payments which might become due under this Agreement. It is further acknowledged and agreed that the City's obligation to make payments to the Contractor pursuant to this Agreement shall be limited to funds the City receives from the Owner in the form of the Impact Fee payable by the Owner to the City pursuant to the Owner Impact Agreement or pursuant to funds which are available to the City pursuant to the Bond deposited by the Sponsor with the City pursuant to the Sponsor Impact Agreement, and that the City shall have no other obligation or liability to make payments to the Contractor. The provisions of this subsection(p)shall control over any other contrary provisions in this Agreement. IN WITNESS WHEREOF, City and Contractor have signed this Agreement. One counterpart each has been delivered to City,Contractor, Surety,and Engineer. This Agreement shall be effective upon the parties executing and delivering all of the Contract Documents and Contractor also delivering to the City such bonds and certificates of insurance as Contractor is required to furnish pursuant to this Agreement. CONTRACTOR: CITY OF ELGIN: CARLSON BROTHERS, INC. RY By AitigL�/i Atl�//. Richard G. Kozal, ity Manage Title: V Att' t' FEIN#: 3 G. - 3 8 31 3 .,4/.i Address for giving notices: ity Clerk 17250 New Lenox Rd Address for giving notices: Joliet, IL 60433 Ph. 815-531-3400 City of Elgin Attn: City Manager With a copy to Sponsor at: 150 Dexter Court cto Interstate Partners, LLC Elgin,Illinois 60120 90 Prairie Parkway Gilberts, IL 60136 With a copy to the City at: City of Elgin 150 Dexter Court Elgin, Illinois 60120 Attn: Corporation Counsel F:'•Legal Dept`•Agreement\Contractor Agreement-Carlson Brothers-redlined-4-20-I8.docx -6-