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Ordinance 2025-20 UNITED CITY OF YORKVILLE KENDALL COUNTY, ILLINOIS ORDINANCE NO. 2025-20 AN ORDINANCE APPROVING A CONSTRUCTION ESCROW AGREEMENT BY AND BETWEEN THE UNITED CITY OF YORKVILLE, KENDALL COUNTY, ILLINOIS AND CI YORKVILLE LLC Passed by the City Council of the United City of Yorkville, Kendall County, Illinois This 1 It'day of March, 2025 Prepared by and Return to: United City of Yorkville 651 Prairie Pointe Drive Yorkville,IL 60560 Published in pamphlet form by the authority of the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois on March 13, 2025. Ordinance No. 2025-20 AN ORDINANCE APPROVING A CONSTRUCTION ESCROW AGREEMENT BY AND BETWEEN THE UNITED CITY OF YORKVILLE, KENDALL COUNTY, ILLINOIS AND C1 YORKVILLE LLC WHEREAS, the United City of Yorkville, Kendall County, Illinois (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, C1 Yorkville LLC, a Delaware limited liability company (the "Developer") is the owner of 229 acres located at the northeast corner of Eldamain and Faxon Road (the "Development Sites") which the Developer intends to develop as a data center; and WHEREAS, on July 9, 2024, the City and the Developer entered into an agreement providing for the construction by the City of the utility infrastructure required for the Development Site on the condition that the Developer be solely responsible for all costs incurred by the City to acquire easements, design and construction of all of the utility infrastructure (the "Utility Infrastructure Agreement"); and WHEREAS, pursuant to the Utility Infrastructure Agreement, the Developer agreed to deposit in escrow a sum equal to one hundred fifteen percent(115%) of the estimated costs for the utility infrastructure upon designation of an escrow agent all as set forth in the Construction Escrow Agreement attached hereto; and WHEREAS,the City and the Developer have come to an understanding and agreement on all of the terms of the Construction Escrow Agreement which the City is prepared to approve as hereinafter set forth. NOW,THEREFORE,BE IT ORDAINED by the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois, as follows: Ordinance No.2025-20 Page 2 Section 1. All of the Preambles hereinabove set forth are incorporated herein as if restated. Section 2. The Construction Escrow Agreement in the form attached hereto and made a part hereof, by and between the United City of Yorkville, Kendall County, Illinois and Cl Yorkville, LLC, a Delaware limited liability company is hereby approved. Section 3. The Mayor and City Clerk are hereby authorized to execute said Agreement and the City Administrator, the City Engineer and the City Finance Director are hereby authorized to take any action required to implement all of its terms. Section 4. This Ordinance shall be in full force and effect after its passage, publication, and approval as provided by law. Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this l l 1h day of March,A.D. 2025. _ e TY CLERK KEN KOCH AYE DAN TRANSIER AYE ARDEN JOE PLOCHER AYE CRAIG SOLING AYE CHRIS FUNKHOUSER AYE MATT MAREK AYE SEAVER TARULIS ABSENT RUSTY CORNEILS AYE APPROVED by me, as Mayor of the United City of Yorkville, endall County, Illinois this 4:�� day of C1 Y� C,�� ,A.D. 2025. MAYOR Attest: _./CITY CLERK Ordinance No. 2025-20 Page 3 CONSTRUCTION ESCROW AGREEMENT TO: Commonwealth Land Title Insurance Company NCS(the"Company"or"Escrow Agent") Office Address:2390 E.Camelback Road Phoenix,AZ 85016 Escrow#ZOTIKA-040-MZ3 Escrow Officer: Michael Zotika Email: mzotika@cltic.com In connection with that certain Utility Infrastructure Agreement by and between THE UNITED CITY OF YORKVILLE, KENDALL COUNTY, ILLINOIS(the"City")and Cl YORKVILLE LLC("Developer")dated as of July 9, 2024 (the "Utility Agreement"), the City and Developer hereby agree that the sum of $7,040,915.17 (the "Escrowed Funds") shall be deposited by Developer in escrow with the Company in a separate interest-bearing account. The Escrowed Funds represent the Approved Bid Amount(as defined in the Utility Agreement) and are to be utilized for the purpose of funding the costs of the Water/Sewer Project (as defined in the Utility Agreement) in accordance with one or more construction contracts to be entered into substantially concurrently herewith by and between the City and the third-party contractor(the "Contractor") named therein (individually and/or collectively, the "Construction Contract"). The Company shall hold the monies deposited hereunder until such time as written disbursement requests (which shall be submitted monthly) from the City, accompanied by the following, have been delivered to the Company and Developer (each such request,a"Disbursement Request"): (a) Invoices, together with reasonable evidence of completion of the items set forth in such invoices (which evidence shall be in the form of a properly executed AIA Form G907 sworn construction statement (the "Contractor's Sworn Statement") attaching sworn statements from the Contractor, together with supporting waivers and releases). The Contractor's Sworn Statement shall set forth in detail all subcontractors, laborers, materialmen and/or consultants (collectively, "Subcontractors") with whom the Contractor has entered into a contract, together with their addresses,the work and materials to be furnished, the amounts of their contracts, amounts paid to date, and balance owing. Such statements and waivers shall be in a form satisfactory to the Company for the purpose of releasing and waiving any and all rights to file mechanics lien claims against the premises in question for those amounts and the work or materials for which they represent payments only; (b) A draw request which shall list all of the parties that shall receive proceeds from the Escrowed Funds at that time. Such draw request may be embodied in the Contractor's Sworn Statement or may take the form of a separate document; (c) Unconditional lien waivers from Contractor or its Subcontractors, as applicable, in the form of a properly executed AIA Form G901 for the purpose of substantiating the completion of the applicable item(s)and extinguishment of mechanics'lien rights thereby;and (d) With respect to the final disbursement under this Agreement, written confirmation that, in the opinion of the Contractor and the City's consulting engineer, if any, the Water/Sewer Project has been completed in accordance with the terms of the Utility Agreement and the Construction Contract. Developer shall have up to five(5)business days following receipt of any Disbursement Request from the City(the "Objection Period")to either approve or object to the validity of the Disbursement Request by delivering written notice to the City (with copy to the Company) (each, an "Approval Notice" or an "Objection Notice", as applicable); provided, that any Objection Notice must include a statement in reasonable detail of the reasons(s) for such objection. If Developer fails to timely deliver either an Approval Notice or an Objection Notice within the Objection Period, then such Disbursement Request shall be deemed to be approved. If Developer delivers an Objection Notice in accordance with this paragraph, the disputed amount in the Disbursement Request shall continue to be held by the Company until such time as that disputed matter has been resolved and settled in a joint writing by Developer and the City to the Company (a "Resolution Notice"). The Company shall disburse all or a portion of the Escrowed Funds in an amount equal to that set forth in the Approval Notice or Resolution Notice, as applicable, to the City (or, at the City's designation, the Contractor and/or one or more of its Subcontractors) promptly after the date of the Approval Notice or Resolution Notice,as applicable. Escrow#ZOTIKA-040-MZ3 Notwithstanding the foregoing, if any monies remain on deposit with the Company as of the date that is eighteen (18) months after the date of this Agreement or such earlier date as the Company receives written notice from the City that the Construction Contract has been terminated and/or the obligations thereunder have been satisfied in full, the Company shall disburse such remaining monies to Developer.The Company is hereby authorized and directed to make the foregoing disbursement' without further authorization or direction from the parties hereto. Upon disbursement of any remaining Escrowed Funds in accordance with this paragraph, this Agreement shall terminate and the Company shall have no further liability hereunder. The Company shall hold the Escrowed Funds in an interest-bearing account, and any interest accruing thereon shall inure to the benefit of Developer and shall be disbursed to Developer at such time as all remaining Escrowed Funds are disbursed to the party entitled to receive them pursuant to the terms hereof. The City and Developer understand and agree that the Company shall have no liability in connection with this agreement, except for the disbursement of the Escrowed Funds in accordance with the terms hereof and except for its fraud, illegal acts,willful misconduct and/or gross negligence. The parties hereto further agree to indemnify and hold the Company harmless for, from and against all actual, out-of-pocket costs, damages, reasonable attorneys' fees, and expenses arising as a result of or related to this agreement or the disbursement of the Escrowed Funds, including without limitation any judgment, amounts paid in settlement, and all costs and expenses, including reasonable attorneys' fees, incurred in defending or settling any action, suit or proceeding in connection with the foregoing. The Company shall have no obligation to see that the disbursements made by it in accordance with the terms hereof are actually used for the purposes set forth herein,nor shall the Company have any responsibility or liability for: (i) completion or satisfactory completion of said purpose, (ii) guaranteeing that the Escrowed Funds will be sufficient to complete said purpose,(iii)any mechanics'or materialmen's liens that may be filed,(iv)compliance of the parties with the terms of any other agreements between the parties relating to the use of the Escrowed Funds, or (v) any other matter relating to the accomplishment of the purposes set forth herein. The Company shall act hereunder as a depository only and shall not be responsible or liable in any manner whatever for the sufficiency,correctness,genuineness or validity of any instrument deposited with the Company hereunder,or with respect to the form or execution of same, or the identity, authority or rights of any person executing or depositing the same. The Company is neither a party to nor bound by any agreement which may be deposited under, evidenced by, or arising out of this agreement. The Company is not required to investigate the circumstances, background or truthfulness of any notice received from the parties hereto. The Company shall have no duties to anyone except those signing this agreement. If conflicting demands are made upon the Company, the Company may hold any money and/or documents subject to such conflicting demands until the rights of the parties making such conflicting demands are determined by written agreement by the parties or court action,or the Company may interplead said funds and/or documents. The parties agree that the Company is authorized and directed to deduct its actual, out-of-pocket charges, expenses and reasonable attorneys' fees incurred in connection with an interpleader action from said funds before depositing the funds into court. Deposit by the Company of said funds and/or documents into the court or similar tribunal shall relieve the Company of all further liability and responsibility with respect to said funds or documents. The Company may, at any time and with or without cause, resign by sending written notice to all parties to the escrow. The resignation is effective thirty (30) days after the notice is deposited into the United States Mail, addressed as follows,with a copy of such resignation to be delivered via e-mail as well: If to the City: United City of Yorkville 651 Prairie Pointe Yorkville,Illinois 60560 Attention: City Administrator,Bart Olson NTD:The Company needs to be able to disburse funds after 18 months regardless of whether it receives notice to do so;the sentence prior states that the title company will do so automatically unless earlier sent written notice by the City because the construction contract has been terminated or the obligations thereunder have been fully satisfied. Escrow#ZOTIKA-040-MZ3 E-mail: [ ] L-,01 u-16140rY-uIlte, I l tt If to Developer: C1 YORKVILLE LLC 2850 N. Harwood Street,Suite 2200 Dallas,Texas 75201 Attention:Nicholas Papadimitriou and Bradd Hout E-mail:npapadimitriou@cyrusone.com and bhout@cyrusone.com Any notice, request, demand, consent, approval and other communications under this agreement (any of the foregoing, a"Notice") shall likewise be in writing and shall be deemed properly given if sent pursuant to the notice provisions above (or, with respect to any Notice to the Company, to the address provided in the "To" line of this agreement). All money and documents held by the Company after its resignation shall be disbursed according to the written mutual instructions of the parties hereto or, if no such instructions are received by the Company by the effective date of the Company's resignation,shall be disbursed to Developer,without further instructions. The Company's liability is limited to the holding and disbursement of the funds as set forth herein,and Company is not responsible to pay any invoice or liens not specifically provided for herein. Further, the Company shall not be bound by any modification, cancellation or rescission of this agreement unless in writing and signed by it, the City and Developer. This agreement and the terms,covenants and conditions hereof shall inure to the benefit of and be binding upon the successors and assigns of each of the parties hereto. This agreement shall be construed and enforced in accordance with the Laws of the State of Illinois. This agreement shall not limit,waive,amend or modify the rights or obligations of any party under the Utility Agreement and/or the Construction Contract. This agreement may be executed in multiple counterparts, each of which shall be an original, but all of which shall constitute one and the same agreement. Signatures to this agreement transmitted by telecopy or electronic mail with PDF attachment or DocuSign shall be valid and effective to bind the party so signing. Each party to this agreement shall be bound by its own telecopied or electronic mailed signature and shall accept the telecopied or electronic mailed signature of the other parties to this agreement. [Signature Page(s)Follow.] DATED this l day of Febraary,2025 N16aGfI ACCEPTED AND APPROVED: ACCEPTED AND APPROVED: UNITED CITY OF YORKVILLE,KENDALL COUNTY,ILLINOIS, CI YORKVILLE LLC, a municipal corporation a Delaware limited liability company By: \ By: , ' _:7� Mayor - V' '1 alej()l,Yl t�c� i Yl Ev p�p C©c) RECEIVED AND ACCEPTED this day of '2025. Commonwealth Land Title Insurance Company NCS AS ESCROW AGENT BY: Michael Zotika [Signature Page to Construction Escrow Agreement]