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R-1287 - 08/27/2013 - PEDESTRIAN ACCESS - Resolutions RESOLUTION 2013-PED-ACCESS-AG-R-1287 A RESOLUTION APPROVING A PEDESTRIAN ACCESS AGREEMENT BY AND BETWEEN THE VILLAGE AND GENERAL GROWTH PROPERTIES, MCDONALD'S CORPORATION AND ARDEN REALTY WHEREAS, the Village desires to improve pedestrian and bicycle access to the Oakbrook Center and the hotels, offices, businesses, universities, and residential developments located adjacent to or near the Oakbrook Center (collectively, "Oakbrook Center Area Businesses") through implementation of 10 related infrastructure projects collectively known as the Pedestrian Access Project (collectively, "Project'); and WHEREAS, the Project will provide numerous benefits to the residents and businesses of the Village, including: (i) more convenient and safer walkways, crosswalks, and access for hotel patrons, office workers, visitors, shoppers, and other pedestrians; (ii) increased economic activity between the restaurants, retail stores, hotels, offices, and businesses within the Oakbrook Center area; and (iii) reduced vehicular traffic within the Oakbrook Center Area, on Route 83, 16th Street, Spring Road, and 22nd Street; and WHEREAS, as part of the Project, the Village, General Growth Properties ("GGP"), McDonald's Corporation ("McDonald's") and Arden Realty ("Arden") desire for the Village to make improvements to sidewalks, pedestrian crossings, and lighting in the vicinity of Spring Road and Commerce Drive, ("Improvements"); and WHEREAS, to enable the Village to make the Improvements, the Village, GGP, McDonald's, and Arden desire to enter into the Pedestrian Access Improvement Agreement that is hereby attached as Exhibit A ("Agreement"), which Agreement provides, in part, for the granting of easements to the Village and sets forth a cost-sharing mechanism whereby GGP, McDonald's and Arden will share in some of the costs for the construction of the Improvements; and WHEREAS, the President and Board of Trustees have determined that it is in the best interest of the Village to enter into the Agreement; NOW THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS as follows: Section 1: Recitals. The foregoing recitals are hereby incorporated into, and made a part of, this Resolution as the findings of the President and Board of Trustees of the Village of Oak Brook. Section 2: Approval of the Agreement. The President and Board of Trustees hereby approve the Pedestrian Access Agreement by and between the Village of Oak Brook, GGP, McDonald's, and Arden in substantially the form attached to this Resolution as Exhibit A, and in a final form to be approved by the Village Manager and the Village Attorney. Section 3: Execution of Agreement. The Village President and the Village Clerk shall be, and are hereby, authorized to execute the approved final Agreement on behalf of the Village. Section 4: Effective Date. This Resolution shall be in full force and effect upon passage and approval in the manner provided by law. [SIGNATURE PAGE FOLLOWS] Resolution 2013-PED-ACCESS-AG-R-1287 Pedestrian Access Agreement with GGP, McDonald's and Arden 2 of 3 APPROVED THIS 27th day of August, 2013 Gopal G. Lalmalani Village President PASSED THIS 27th day of August, 2013 Ayes: Trustees Adler, Baar, Manzo, Moy, Wolin, Yusuf Nays: None Absent: None ATTEST: NA, F 0� L a Charlotte K. Pruss Village Clerk rff Resolution 2013-PED-ACCESS-AG-R-1287 Pedestrian Access Agreement with GGP, McDonald's and Arden 3 of 3 EXHIBIT A Agreement PEDESTRIAN ACCESS IMPROVEMENT AGREEMENT BY AND BETWEEN THE VILLAGE OF OAK BROOK AND GENERAL GROWTH PROPERTIES, McDONALD'S CORPORATION, and ARDEN REALTY THIS PEDESTRIAN ACCESS IMPROVEMENT AGREEMENT ("AGREEMENT') is made and entered into as of the _ day of , 2013 ("Effective Date"), and is by and between the VILLAGE OF OAK BROOK, an Illinois municipal corporation ("Village'), and GENERAL GROWTH PROPERTIES ("GGP'), MCDONALD'S CORPORATION, and ARDEN REALTY (McDonald's Corporation and Arden Realty collectively, are "Stakeholders'). IN CONSIDERATION OF, and in reliance upon, the recitals and the mutual covenants set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Village, GGP and the Stakeholders mutually agree as follows: SECTION 1. RECITALS. A. The Village is an Illinois municipal corporation. B. The Oakbrook Center and adjacent hotels, offices, businesses, universities, and residential developments (collectively, "Oakbrook Center Area") are located within or adjacent to the Village. C. The Parties recognize that they will mutually benefit from infrastructure improvements to provide improved pedestrian access between the properties within the Oakbrook Center Area and the Oakbrook Center ("Improvements"). These benefits include, without limitation: 1. More convenient and safer walkways, crosswalks, and access for hotel patrons, office workers, visitors, and other pedestrians to the restaurants, stores, shops, offices and other destinations in the Oakbrook Center Area; 2. More convenient and safer walkways, crosswalks, and access for the employees of the Stakeholders and tenants of Oakbrook Center using public transportation to access their places of employment in the Oakbrook Center Area; 3. Increased economic activity between the restaurants, retail stores, hotels, offices, and businesses within the Oakbrook Center Area, benefitting each of their respective businesses and the general economic activity within the Village; and 4. Reduced vehicular traffic within the Oakbrook Center Area, on Route 83, 1 6t Street, Spring Road, and 22"d Street, thereby reducing traffic congestion and auto omissions. D. The Village has identified 10 projects ("Projects") that comprise the Improvements ("Pedestrian Access Initiative'), and at its sole expense, has obtained an initial feasibility study for the Pedestrian Access Initiative from Hitchcock Design Group. The Village, at its sole expense, also has retained Hitchcock Design Group to: (i) conduct engineering studies; (ii) provide preliminary designs; and (iii) provide cost estimates for the Projects in the Pedestrian Access Initiative. Each Project shall be subject to an agreement substantially the same as this Agreement. E. This Agreement relates to the Project identified and detailed as Project E in Exhibit A attached hereto ("Subject Project'), which is a Project included in the Pedestrian Access Initiative. F. The Parties acknowledge and agree that it is desirable and in the best interests of the Village and the Parties to undertake the Subject Project as provided in this Agreement. SECTION 2. Obligations of the Parties. A. Village Obligations. The Village shall: 1. prepare the preliminary and final design, engineering and construction plans for the Subject Project, which plans shall be provided to GGP and the Stakeholders for review prior to the commencement of construction; 2. prepare and be responsible for any bidding documents and the bidding and contractor selection process for the Subject Project; 3. ensure consistency of construction and appearance, and achieve economies of scale and scope, by contracting with the suppliers of materials and contractors retained for the Subject Project. GGP and the Stakeholders acknowledge and agree that the Village is required to abide by all applicable laws, statutes, regulations, ordinances, and policies that relate to the construction and location of the Subject Project or to entering into contracts for public improvements, materials, and other types of services ("Requirements of Law'). GGP and the Stakeholders shall not interfere with the Village's bidding and contracting process for the Subject Project. GGP and the Stakeholders further acknowledge and agree that the Village shall have the sole right and responsibility to choose the contractors and suppliers for the Subject Project and to reject any or all bids that the Village receives relating to the Subject Project; 4. construct and install all infrastructure that is part of the Subject Project and require that contractors fulfilling Village Insurance requirements list the Stakeholders and GGP as additional insureds on any contractually required policy; 5. manage construction supervision of the Subject Project; and 6. maintain and repair any portion of the Subject Project that is located on Village property or within Village rights-of-way, including, but not limited to, providing at the Village's expense, necessary electricity, maintenance of walkway lighting, snow and leaf removal, and landscaping. B. GGP's Obligations. With regard to GGP: 1. GGP, shall provide the Village, and the contractors retained by the Village, all necessary construction easements and rights-of-access necessary to design, construct, install, and, if necessary, repair the Improvements that are part of the Subject Project -2- and shall authorize the Village to record any such easements and rights-of-access against the applicable property; 2. GGP shall be responsible for maintaining and repairing those portions of the Subject Project that are constructed, installed, or located on its property in a good and safe working condition, including, but not limited to, making all necessary repairs, providing electricity for all lighting fixtures and any other Improvement requiring electric power, providing snow and leaf removal, and landscaping. In the event that there is a failure to comply with these obligations, the Village and its contractors shall have the right, but not the obligation, to enter upon GGP's property to conduct any necessary maintenance and repairs, and GGP shall be required to reimburse the Village for its costs in undertaking the maintenance and repairs; and 3. GGP may provide landscaping, benches, kiosks, directional signage, and other amenities upon or adjacent to the Subject Project, subject to the Requirements of Law, including, but not limited to, all applicable zoning, building code, sign regulations, and permitting requirements. All directional signage shall be uniform and require written approval from the Village prior to installation. C. McDonald's Obligations. With regard to McDonald's Corporation: 1. McDonald's Corporation shall provide the Village, and the contractors retained by the Village, all necessary construction easements and rights-of-access necessary to design, construct, install, and, if necessary, repair the Improvements that are part of the Subject Project and shall authorize the Village to record any such easements and rights-of-access against the applicable property; 2. McDonald's Corporation shall be responsible for maintaining and repairing those portions of the Subject Project that are constructed, installed, or located on its property in a good and safe working condition, including, but not limited to, making all necessary repairs, providing electricity for all lighting fixtures and any other Improvement requiring electric power, providing snow and leaf removal, and landscaping. In the event that there is a failure to comply with these obligations, the Village and its contractors shall have the right, but not the obligation, to enter upon McDonald's Corporation's property to conduct any necessary maintenance and repairs, and McDonald's Corporation shall be required to reimburse the Village for its costs in undertaking the maintenance and repairs; and 3. McDonald's Corporation may provide landscaping, benches, kiosks, directional signage, and other amenities upon or adjacent to the Subject Project, subject to the Requirements of Law, including, but not limited to, all applicable zoning, building code, sign regulations, and permitting requirements. All directional signage shall be uniform and require written approval from the Village prior to installation. D. Arden Realty's Obligations. With regard to Arden Realty: 1. Arden Realty shall provide the Village, and the contractors retained by the Village, all necessary construction easements and rights-of-access necessary to design, construct, install, and, if necessary, repair the Improvements that are part of the Subject Project and shall authorize the Village to record any such easements and rights-of-access against the applicable property. -3- SECTION 3. Costs of the Subject Proiect. A. Village Oversight Costs. The Village shall be solely responsible for the following Subject Project Costs: (i) the initial feasibility study; (ii) all preliminary design and engineering work for the Subject Project; (iii) the final design and engineering work for the Subject Project; (iv) the construction and bidding documents for the Subject Project; (v) administering the bidding and award of contract process; and (vi) providing construction supervision (collectively, "Village Oversight Costs"). B. Sharing of Construction Costs. 1. The estimate of cost for the construction and materials for the Subject Project is $248,422, which is more fully detailed in Exhibit B attached to this Agreement ("Estimated Construction Costs'J. The Parties acknowledge and agree that the actual cost of all construction and materials for the Subject Project ("Actual Construction Costs) may exceed the Estimated Construction Costs (Actual Construction Costs less the Estimated Construction Costs shall be "Excess Construction Costs"). 2. Subject to Paragraphs 3 and 4 of this Subsection, the Parties shall each be responsible for paying the following Actual Construction Costs; Share of the Excess Not-to-Exceed amount: Share of Estimated Construction Costs: Construction Costs McDonald's Corporation 0% $41,486 16.7% Arden Realty 0% $20,619 8,3% GGP 0% $37,263 15 % Village 100% $149,053 60% 3. In the event that the Actual Construction Costs are less than the Estimated Construction Costs, then the Parties shall each be responsible for paying a percentage of the Actual Construction Costs that equals their respective percentage of the Estimated Con structiomCosts as set forth in paragraph 2 of this Subsection. 4. Subject to completion of the Subject Project and the provision to the Parties by the Village of a final accounting of the Actual Construction Costs, all payments owed by GGPand the Stakeholders pursuant to this Subsection shall be paid as a reimbursement to the Village on or before February 1, 2014. SECTION 4. Ownership of Improvements. A. Village Owned Improvements. The Village shall own and maintain all Improvements constructed or installed as part of the Subject Project on Village property or within Village rights-of-way. B. GGPand Stakeholder Owned Improvements. GGP and the Stakeholders shall own all Improvements constructed or installed as part of the Subject Project on their respective -4- properties, regardless of whether the Improvements, or any part thereof, were paid for, maintained, or repaired, either in whole or in part, by the Village. SECTION 5. Subject Project Schedule. The Parties shall proceed with the Subject Project in general accordance with the following schedule: Preliminary Design and Engineering Plans NLT 07/23/2013 Final Design and Engineering Plans NLT 07/31/2013 Completion of Bidding Process NLT 08116/2013 Award of Contracts NLT 09/06/2013 Begin Construction NLT 09/23/2013 Completion of Subject Project NLT 11/15/2013 Payment Due On or before 211114 SECTION 6. General Provisions. A. Notice. All notices required or permitted to be given under this Agreement shall be in writing and shall be delivered (i) personally, (ii) by a reputable overnight courier, or (iii) by certified mail, return receipt requested, and deposited in the U.S. Mail, postage prepaid. Unless otherwise expressly provided in this Agreement, notices shall be deemed received upon the earlier of (a) actual receipt; (b) one business day after deposit with an overnight courier as evidenced by a receipt of deposit; or (c) three business days following deposit in the U.S. mail, as evidenced by a return receipt. By notice complying with the requirements of this Section, each Party shall have the right to change the address or the addressee, or both, for all future notices and communications to the other Parties, but no notice of a change of addressee or address shall be effective until actually received. Notices and communications to the Village shall be addressed to, and delivered at, the following address: Village of Oak Brook 1200 Oak Brook Road Oak Brook, IL 60523 Attention: Village Manager Notices and communications to GGP shall be addressed to, and delivered at, the following address: [ADDRESS OF GGP] Notices and communications to McDonald's Corporation shall be addressed to, and delivered at, the following address: -5- [ADDRESS of McDonald's] Notices and communications to Arden Realty shall be addressed to, and delivered at, the following address: [ADDRESS of Arden Realty] B. Time of the Essence. Time is of the essence in the performance of this Agreement. C. Waiver. The Parties shall be under no obligation to exercise any of the rights granted to them in this Agreement except as they shall determine to be in their best interests from time to time. The failure of a party to exercise at any time any such rights shall not be deemed or construed as a waiver of that right, nor shall the failure void or affect the party's right to enforce such rights or any other rights. D. Governing Law. This Agreement shall be governed by, and enforced in accordance with, the internal laws, but not the conflicts of laws rules, of the State of Illinois. E. Provisions Severable. It is hereby expressed to be the intent of the Parties to this Agreement that should any provision, covenant, agreement, or portion of this Agreement or its application to any person, entity, or property be held invalid by a court of competent jurisdiction, the remaining provisions of this Agreement and the validity, enforceability, and application to any person, entity, or property shall not be impaired thereby, but the remaining provisions shall be interpreted, applied, and enforced so as to achieve, as near as may be, the purpose and intent of this Agreement to the greatest extent permitted by applicable law. F. Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes any and all prior agreements and negotiations between the Parties, whether written or oral, relating to the subject matter of this Agreement. G. Interpretation. This Agreement shall be construed without regard to the identity of the party who drafted the various provisions of this Agreement. Moreover, each and every provision of this Agreement shall be construed as though all Parties to this Agreement participated equally in the drafting of this Agreement. As a result of the foregoing, any rule or construction that a document is to be construed against the drafting party shall not be applicable to this Agreement. H. Amendments and Modifications. No amendment or modification to this Agreement shall be effective until it is reduced to writing and approved and executed by all Parties to this Agreement in accordance with all applicable statutory procedures. I. No Third Party Beneficiaries. No claim as a third party beneficiary under this Agreement by any Person shall be made, or be valid, against the Village, GGP, or the Stakeholders. J. Counterparts. This Agreement may be executed in counterparts, each of which, when executed, shall constitute an original document, which together shall constitute one and the same instrument. -6- [SIGNATURE PAGE FOLLOWS] -7- IN WITNESS WHEREOF, the Village, GGP and the Stakeholders have executed this Agreement as of the Effective Date. ATTEST: VILLAGE OF OAK BROOK, an Illinois municipal corporation By: By: Village Clerk Village Manager ATTEST: GENERAL GROWTH PROPERTIES By: By: Title: Its: ATTEST: MCDONALD'S CORPORATION By: By: Title: Its: ATTEST: ARDEN REALTY By: By: Title: Its: i _g_ EXHIBIT A DESCRIPTION OF SUBJECT PROJECT Project E This project includes improvements to sidewalks, pedestrian crossings, and lighting in the vicinity of Spring Road and Commerce Drive. Specific project features include: dedicated crossing of Commerce from south exit of 2011 Spring Road with pedestrian actuated warning lights, sidewalk from the south exit of 2011 Spring Road west to Spring Road. Enhanced crossing constructed of stamped concrete. Lighted bollards marking access path to Oakbrook Center. Widened sidewalk from Spring Road to the Oakbrook Center ring road. -9- EXHIBIT B ESTIMATED SUBJECT PROJECT COSTS Date: Revised 0 512 2/2 01 3 Village of Oak Brock-Pedestrian Circulation RE Improvements Project: 03.0745-012-01-02 Area E-Commerce Drive Connection to Mall Spring Spring Public Right-of- RcadlMall Entry Mad Private Public Right-Df- RoadfMall Entry Mall Private Wa Intersection Pre ar! Wa Intersection Pro ell Description Duanlil Quantity Quantity Unit Unit Cost Fwd Cosi 6tt Cos€ Exl Cost General Conditions Contractor General Conditions Allowance including: 1 1 1 LS as shown 5 9,100 S 5,500 S 6,200 -mobilization and general requirements -temporary facilities and environmental controls -Traffic control and protection -construction layout Section Subtotal: $ 9,100 $ 5,500 $ 8,200 Site Preparation and Removals landscape removal 1 1 I 1 I LS $ 1,5001s 1,500 1 S 1,50013 1,500 earth excavation 115 1001 651 CY I$ 25 $ 2.8751$ 2.5001$ 1,625 remove conrsele sidewalk 225 565 980 ff $ 2 $ 450 S 1,130 $ 1,98Q remove concrete curb 25 75 30 lF S 10 S 250 IS 750 $ 300 remove asphalt paving 150 001 01 Sr' 1$ 201$ 3,0001S 1,6001$ Section Subtotal:1$ 8,0751$ 7,4801$ 5,385 Storm Drainage and Utilities existing utility adjustment allowance 1 11 01 LS I as shown f$ 6,0001S 2,5001s 500 Section Subtotal:1$ 5,0001$ 2,5001$ 500 Curbs and Paving concrete sidewalk 1,985 175 1,620 IF $ 8 $ 15,860 S 1,400 fl$ 3, specialty sidewalk o 700 0 g $ 15 S S 10,500 curb ramps(detectable warrdngs 4 3 4 FA $ 750 S 3,000 S 2,250 concrete curb and gutter 220 30 40 IF $ 25 S 5,500 $ 750 conaele barrier curb 60 0 40 LF $ 20 5 1,2D0 $specialtycrosswaik 360 800 0 ff $ t5 $ 5,400 $ 12,000 painted crosswalk o D 67 lF S 10 S $ pavement marking.6" 60 500 D LF $ 4 $ 320 $ 2,000 $ pavement marking,12" 0 104 0 LF S 8 $ $ 632 S pavement marking,24" 0 70 15 EF 5 28 S S 1,960 S 420 pavement marking removal 01 4GOI 2401 Sc Is 3 5 $ 1,470 $ 720 Section Subtotal;I S 31,3001$ 33,162 $ 19,570 Landscape and Accessories erennial(18"on center) 0 2751 01 EA is 15 S $ 4,125 $ (ud restoration(sod) 275 251 251 St Is 7 $ 1,925 $ 175 $ 175 topsoil 75 25 1Q CY $ 30 $ 2,250 $ 750 $ 3 mulch 0 5 0 CV 00$ 50 $ $ 250 $ unit retaining wall 0 01 340 T- $ 100 $ S - S 34,000 stone retaining wall 0 ol 01 T- 1$ 100 S $ $ Section Subtotal: S 4,175 S 5,300 S 34,475 SiteFurnishin s bench 1 01 1 01 FA S 1,5Q0 S 5 1,501 $ trash receptacle 0 t o FA S 1,200 IS S 1,2001$ Section Subtotal: $ $ 2,700 $ Lighting and Signals bollard light fixture 11 2 5 EA $ 1,000 $ 11,000 $ 2,000 $ 5,000 electrical allowance(per fixture) 11 2 5 EA S 500 $ 5,500 $ 1,000 $ 2,500 electrical service connection 1 0 0 EA S 1,500 $ 1,500 $ $ - electrical controller 1 0 0 FA $ 2,500 $ 2,500 $ $ - cunnect to existing electrical system 0 0 1 LS $ 1,000 $ $ $ 1,000 handhole 0 0 0 FA S 1,250 $ $ $ reconstruct existing handhole 01 2 0 EA 1$ 1,500 $ $ 3,000 $ adjust handhole 0 2 D FA $ 2,000 $ $ 4,000 $ pedestrian push button 0 2 o FA $ Soo S - $ 1,(100 $ vehicle deleclmn loop 01 4001 01 LF is 20 - aoss-walkwarning device 1 01 01 EA $ 20,000 S 20,OD1 $ S Section Subtotal: S 40,50014 19,000 $ 6.600 Base Project Construction Subtotal:I S 98,150 ; 75,642 $ 74,630 2 B, 22 -1 a- PLEASE NOTE: The Agreement, Resolution, or Ordinance does not contain a completed signed signature on this document due to the fact that a signed signature page was not returned to the Clerk's Department.