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Ordinance 2012-11 UNITED CITY OF YORKVILLE KENDALL COUNTY, ILLINOIS ORDINANCE NO. 2012-11 AN ORDINANCE OF THE UNITED CITY OF YORKVILLE, KENDALL COUNTY, ILLINOIS, APPROVING THE SECOND INTERGOVERNMENTAL AGREEMENT FOR THE REPLACEMENT OF THE RIVER ROAD BRIDGE OVER BLACKBERRY CREEK, YORKVILLE, IL Passed by the City Council of the United City of Yorkville,Kendall County,Illinois This 8`h day of May, 2012 Published in pamphlet form by the authority of the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois on May 15, 2012. Ordinance No. 2012- 11 AN ORDINANCE OF THE UNITED CITY OF UNITED CITY OF YORKVILLE, KENDALL COUNTY, ILLINOIS, APPROVING THE SECOND INTERGOVERNMENTAL AGREEMENT FOR THE REPLACEMENT OF THE RIVER ROAD BRIDGE OVER BLACKBERRY CREEK, YORKVILLE, IL WHEREAS, the United City of Yorkville (the "City") is a duly organized and validly existing non home-rule municipality created in accordance with the Constitution of the State of Illinois of 1970 and the laws of the State; and, WHEREAS, the City previously entered into an Intergovernmental Agreement for the Replacement of the River Road Bridge Over Blackberry Creek (the "Agreement") dated January 18, 2011 with Kendall County (the "County"); and, WHEREAS, the City and the County desire to amend the Agreement in order to set forth additional obligations required of each party in regard to the replacement of the River Road Bridge over Blackberry Creek. NOW, THEREFORE, BE IT ORDAINED by the City Council of the United City of Yorkville, Kendall County, Illinois, as follows: Section 1. That the Second Intergovernmental Agreement for the Replacement of the River Road Bridge Over Blackberry Creek, attached hereto and made a part hereof by reference, is hereby approved. Section 2. This Ordinance shall be in full force and effect upon its passage, approval, and publication as provided by law. Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this day of , A.D. 2012. CITY CLERK _- ROSE ANN SPEARS DIANE TEELING GEORGE GILSON JR. JACKIE MILSCHEWSKI �l CARLO COLOSIMO ` MARTY MUNNS �f �f CHRIS FUNKHOUSER �_ LARRY KOT Ordinance No. 2012--it- Page 2 Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this 1 day of MAY 2012. Z?lloiA MAY Ordinance No. 2012--d— Page 3 SECOND INTERGOVERNMENTAL AGREEMENT FOR THE REPLACEMENT OF THE RIVER ROAD BRIDGE OVER BLACKBERRY CREEK, YORKVILLE,ILLINOIS THIS SECOND INTERGOVERNMENTAL AGREEMENT ("the Agreement") by and between the County of Kendall, a unit of local government of the State of Illinois ("Kendall County") and the United City of Yorkville, Kendall County, Illinois (the "City") a municipal corporation of the State of Illinois. WITNESSETH: WHEREAS, the Constitution of the State of Illinois of 1970, Article VII, Section 10, provides that units of local government may contract or otherwise associate among themselves to obtain or share services and to exercise, combine, or transfer any power or function in any manner not prohibited by law or by ordinance and may use their credit, revenues, and other resources to pay costs related to intergovernmental activities; and WHEREAS, the City and Kendall County are units of local government within the meaning of Article VII, Section 1 of the Illinois Constitution of 1970 who are authorized to enter into intergovernmental agreements pursuant to the Intergovernmental Cooperation Act, 5 ILCS 220/1 et seq.; and WHEREAS, the Intergovernmental Cooperation Act, 5 ILCS 220/1 et seq., provides that any county may participate in an intergovernmental agreement under this Act notwithstanding the absence of specific authority under the State law to perform the service involved, provided that the unit of local government contracting with Kendall County has authority to perform the service; and WHEREAS, on or about January 18, 2011, Kendall County and the City (the "Parties") entered into an Intergovernmental Agreement for the Replacement of the River Road Bride Over 1 Blackberry Creek (the "First Agreement"). In the First Agreement, the Parties agreed to combine funds received by the City from the Illinois Department of Transportation's Major Bridge Program with funds received by Kendall County from the Federal Highway Bridge Program and other funds in order to undertake the replacement of the River Road Bridge over Blackberry Creek (the "Project") pursuant to the terms and conditions stated therein; and, WHEREAS, pursuant to Section 3 of the First Agreement, Kendall County agreed to fund eighty percent (80%) of the total cost of Preliminary Engineering and Design Engineering for the Project. Kendall County further agreed to advance one hundred percent (100%) of the total cost for the Preliminary Engineering and Design Engineering, and the City agreed to reimburse Kendall County in an amount equal to twenty percent (20%) of the total cost for the preliminary engineering and design engineering on or before April 30, 2012; and, WHEREAS, since the execution of the First Agreement, the Parties desire to enter into this Agreement as a supplement to the First Agreement and for the purpose of completing all remaining tasks and financing of the Project, which the Parties agree are reasonably necessary to complete the Project and to provide a safe and efficient roadway network for the benefit of the residents of the City and Kendall County. NOW, THEREFORE, in consideration of the premises and the mutual covenants hereafter set forth, the parties agree as follows: Section 1. The foregoing preambles are hereby incorporated into this Agreement as if fully restated in this Section 1. Section 2. In addition to the City's obligations as set forth in the First Agreement, the City agrees to perform all of the following additional obligations pursuant to the terms of this Agreement: 2 A. The City shall construct and complete the Project in accordance with the final engineering plans and all other approvals as may be required by the Illinois Department of Transportation ("IDO7"), the Federal Highway Bridge Program and all other applicable local ordinances, state and federal laws. The Parties agree that construction of the Project is scheduled to proceed upon execution of the Agreement, and the Parties anticipate final completion of the Project by January 1, 2013. B. The City shall comply with all competitive bidding and selection requirements necessary for construction and completion of the Project pursuant to applicable state and federal laws; C. The City shall select and contract with all contractors and subcontractors necessary to complete the construction of the Project; D. The City shall be solely responsible for supervising the construction and completion of the Project and of all contractors and subcontractors retained by the City to assist in the construction and completion of the Project. E. The City shall be responsible for reimbursing Kendall County for the costs and attorneys' fees expended by Kendall County for land acquisition as set forth in Section 3A below. F. The City acknowledges that the work to be performed by the City and the City's contractors and subcontractors are subject to the Illinois Prevailing Wage Act, 820 ILCS 130/1 et seq. ("Prevailing Wage Act"). The City agrees to fully comply with all applicable requirements of the Prevailing Wage Act, and the City agrees to notify all contractors and subcontractors that the work performed pursuant to this Agreement shall be subject to the Prevailing Wage Act. In the event that the City fails to comply with the notice requirements set forth in this Paragraph, 3 the City shall be solely responsible for any and all penalties, fines and liabilities incurred for contractors' and/or subcontractors' violations of the Prevailing Wage Act. G. The City shall ensure that each contractor and/or subcontractor performing work on the Project shall obtain and continue in force during the term of the Project, all insurance necessary and appropriate and that each contractor and/or subcontractor contracted with shall name Kendall County as an Additional Insured on a Primary and Non-Contributory basis with respect to the general liability, business auto liability and excess liability insurance, as well as a waiver of subrogation with respect to the general liability and workers' compensation in favor of Kendall County. Section 3. In addition to all of Kendall County's obligations under the First Agreement, Kendall County agrees to perform all of the following additional obligations pursuant to the terms of this Agreement: A. Kendall County shall undertake the acquisition of such interests in real estate, including temporary or permanent easements or fee ownership, which Kendall County deems necessary for the City to construct the replacement of the River Road Bridge over Blackberry Creek. Kendall County shall pay all costs and attorneys' fees expended in connection with such land acquisition, and the City shall reimburse Kendall County for all costs and attorneys' fees expended by Kendall County for land acquisition pursuant to the payment schedule set forth in Section 6 below. B. Kendall County shall lend to the City an amount not to exceed five hundred thousand dollars and zero cents ($500,000.00) with no interest for the costs necessary to complete all aspects of the Project including, but not limited to, the costs incurred for the design engineering, land acquisition, construction engineering, and construction of the Project. The 4 parties understand and agree that this $500,000.00 loan amount includes all monies expended by Kendall County pursuant to the terms of the First Agreement and this Second Agreement. Any fees and costs incurred for the Project that exceed the $500,000.00 loan amount shall be the sole responsibility of the City and shall be paid by the City. Section 4. As of the date of execution of this Agreement, the City anticipates the Illinois Department of Transportation (IDOT) shall advance all funds necessary for the City to construct and complete the Project, and the City shall reimburse MOT in an amount equal to twenty percent (20%) of the total amount advanced by IDOT for completion of the Project. Upon the City's receipt of an invoice from IDOT requesting reimbursement, the City shall provide a copy of the IDOT invoice to Kendall County within five (5) calendar days of receipt thereof. Upon receipt of the IDOT invoice, Kendall County agrees to disburse all, or a portion of the $500,000.00 loan, in an amount equal to the requested IDOT reimbursement amount (hereinafter referred to as "the Loan Proceeds"). Kendall County shall disburse the Loan Proceeds to the City within ten (10) business days after receipt of the invoice from the City. In the event that IDOT's requested reimbursement amount exceeds the remaining balance of the $500,000.00 loan, the City understands and agrees that it shall be solely responsible for reimbursing IDOT for any remaining balance not covered under the $500,000.00 loan. Section 5. If IDOT fails to advance funds due on the Project, the City understands and agrees that it is still obligated to honor its obligations under this Agreement and the City remains responsible for repayment of any funds due to Kendall County. Section 6. In consideration of the mutual promises and the terms and conditions set forth herein, Kendall County agrees to loan the amounts stated herein in exchange for the City's obligation to repay those amounts in accordance with the following payment schedule: On or 5 before September 1, 2013, Kendall County shall provide the City with an invoice for the total amount of money loaned by Kendall County to the City pursuant to the terms of this Agreement (hereinafter referred to as "the Loan Balance"). Upon receipt of the invoice, the City shall make payments to Kendall County for the Loan Balance in six (6) equal annual installments with the first payment commencing on October 31, 2013, and continuing each year thereafter until the Loan Balance has been repaid to Kendall County in full. Therefore, the payment schedule shall be paid as follows: 1) October 31, 2013 —First payment of 1/6`h of Loan Proceeds 2) October 31, 2014—Second payment of 1/6h of Loan Proceeds 3) October 31, 2015 —Third payment of 1/60'of Loan Proceeds 4) October 31, 2016—Fourth payment of 1/60i of Loan Proceeds 5) October 31, 2017—Fifth payment of 1/60i of Loan Proceeds 6) October 31, 2018—Sixth and final payment. of 1/60i of Loan Proceeds The parties understand and agree that Kendall County shall not be obligated to disburse any additional funds after issuance of the Loan Balance invoice without the prior written consent of all parties. Section 7. The failure of the City to perform, keep or observe any of the covenants, conditions, promises, agreements or obligations with respect to this Agreement, shall constitute a Default by the City hereunder. Further, in the event the City shall fail to timely make a scheduled payment, which the City is required to perform under this Agreement, Kendall County shall notify the City in writing and allow the City thirty(30) days from the date of receipt of the notice to cure the default. If the default is not cured within 30 days of receipt of such notice, Kendall County will consider the City to be in Default under this Agreement. Upon the occurrence of a 6 Default, Kendall County may by any action or proceeding at law or in equity, pursue and secure any available remedy, including but not limited to the specific performance of the agreement contained herein. The City further agrees to reimburse Kendall County for all attorneys' fees and costs incurred by Kendall County related to Kendall County's enforcement of this Agreement. Section 8. This Agreement and the rights of the parties hereunder may not be assigned (except by operation of law), and the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties hereto. Nothing in this Agreement, express or implied, is intended to confer upon any party, other than the parties and their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of such agreements. Section 9. All notices required or permitted hereunder shall be in writing and may be given by either (a) depositing the same in the United States mail, addressed to the party to be notified, postage prepaid and certified with the return receipt requested, (b) delivering the same in person, or(c) telecopying the same with electronic confirmation of receipt. If to the County: County Administrator County of Kendall 111 West Fox Street Yorkville, Illinois 60560 If to the Village: City Administrator United City of Yorkville 800 Game Farm Road Yorkville, Illinois 60560 Or such address or counsel as any party hereto shall specify in writing pursuant to this Section from time to time. 7 Section 10. This Agreement shall be interpreted and enforced under the laws of the State of Illinois. Any legal proceeding related to enforcement of this Agreement shall be brought in the Circuit Court of Kendall County, Illinois. In case any provision of this Agreement shall be declared and/or found invalid, illegal or unenforceable by a court of competent jurisdiction, such provision shall, to the extent possible, be modified by the court in such manner as to be valid, legal and enforceable so as to most nearly retain the intent of the parties, and, if such modification is not possible, such provision shall be severed from this Agreement, and in either case the validity, legality, and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. Section 11. The City and Kendall County agree that the waiver of, or failure to enforce, any breach of this Agreement by the remaining party shall not be construed, or otherwise operate, as a waiver of any future breach of this Agreement. Further, the failure to enforce any particular breach shall not bar or prevent the remaining party from enforcing this Agreement with respect to a different breach. No endorsement or statement on any check or correspondence accompanying a check for payment of an installment shall be deemed as an accord and satisfaction and Kendall County may accept such payment without prejudice to its rights to recover the balance of Loan Proceeds still owed. Section 12. This Agreement may be executed in counterparts (including facsimile signatures), each of which shall be deemed to be an original and both of which shall constitute one and the same Agreement. Section 13. This Agreement represents the entire agreement between the parties and there are no other promises or conditions in any other agreement whether oral or written except for the terms and conditions set forth in the First Agreement. The parties acknowledge and agree 8 that the First Agreement remains valid and binding, with the exception of Section 4 of the First Agreement, which is hereby modified and replaced with Section 3(A) of this Agreement. Except as stated herein, this agreement supersedes any other prior written or oral agreements between the parties and may not be further modified except in writing acknowledged by both parties. Section 14. Nothing contained in this Agreement, nor any act of Kendall County or the City pursuant to this Agreement, shall be deemed or construed by any of the parties hereto or by third persons, to create any relationship of third party beneficiary, principal, agent, limited or general partnership,joint venture, or any association or relationship involving the County and the City. Section 15. The City shall defend, with counsel of Kendall County's own choosing, indemnify and hold harmless the County, including the County's past, present and future board members, elected officials, insurers, employees, and agents from and against any and all claims, liabilities, obligations, losses, penalties, fines, damages, and expenses and costs relating thereto, including but not limited to attorneys' fees and other legal expenses, which the County, its past, present and future board members, elected officials, insurers, employees, and/or agents may hereafter sustain, incur or be required to pay relating to or arising in any manner out of the work to be performed by the City, the City's employees and agents, the City's contractors, and the City's sub-contractors retained to perform work on the Project, or arising in any manner out of the City's performance or alleged failure to perform its obligations pursuant to this Agreement. Section 16 Either party may terminate this Agreement by providing sixty (60) calendar days' advance written notice to the other party. Upon notice of termination of the Agreement, Kendall County shall provide the City with an invoice for the total Loan Balance. 9 I Within sixty (60) calendar days after receipt of the invoice, the City shall pay the total Loan Balance to Kendall County. Section 17. Kendall County and the City each hereby warrant and represent that their respective signatures set forth below have been, and are on the date of this Agreement, duly authorized by all necessary and appropriate corporate and/or governmental action to execute this Agreement. Section 18. The Term of the Agreement shall commence as of the Agreement Date and shall expire upon final repayment of the Loan Proceeds except as otherwise specified herein. IN WITNESS WHEREOF, the parties hereto have caused this Second Intergovernmental Agreement to be executed by their duly authorized officers on the above date at Yorkville, Illinois. County of Kendall, a unit of local government United City of Yorkville, Kendall County, of the State of Illin Illinois a municipal corporation By: y; _ Chair, Kendall County Board Mayor Dated: Att st: Attest: County Clerk City Clerk 10