R-778 - 05/21/2001 - AGREEMENT - Resolutions ExhibitsPUBLIC SAFETY A!ID ROADWAY LNIPROVEME T AGREEMENT
THIS PUBLIC SAFETY AND ROADWAY IMPROVEMENT AGREEMENT
("Agreement") is made on this -;6�day of -Tom-e-, 2001, by and between the City of Oakbrook
Terrace (the "City "), the Village of Oak Brook (the "Village ") and the Commercial Owners and
Lessors identified in the attached Exhibit "A" (the "Commercial Owners ")
WHEREAS, the City and Village are municipal corporations operating pursuant to the
Illinois Municipal Code, and
WHEREAS, the Illinois Municipal Code allows for the joint exercise by the City and
Village of authority under the Illinois Municipal Code, and
WHEREAS, the City and Village are authorized by the Illinois Municipal Code to enter into
this Agreement in order to promote the safety of vehicular traffic on public highways, and
WHEREAS, under the Illinois Intergovernmental Cooperation Act, the City and Village
may contract by, between and among each other, corporations, partnerships or individuals, in order
to resolve traffic and other public safety and general welfare matters, and
WHEREAS, the Commercial Owners (the Oakbrook Terrace Office Tower and the Drury
Lane Theater) represent two (2) of the larger commercial and office uses in DuPage County, Illinois,
and either own or lease real estate situated within the corporate limits of the City, and
WHEREAS, the City, the Village and the Commercial Owners intend that this Agreement
serve as the means by which each of them and all of them workjointly in furtherance of their efforts
to relieve traffic congestion along the northeast, north, and northwest perimeter of the Oak Brook
Center area, specifically located on 16' Street in the northeastern quadrant of the City, and
WHEREAS, the Village, by reason of its annexation of Oak Brook Center upon
disconnection of the same by the City in 1964, controls the intersection located at 16`h Street and
Spring Road; and
WHEREAS, the City has determined that the lack of certain traffic improvements and
various traffic control devices at the intersection of 16" Street and Spring Road has caused a number
of traffic safety concerns, including, but not limited to, traffic congestion, incidents between
vehicular traffic and pedestrian traffic, and the City has a specific concern for the vehicular users
of the roadway and the public safety personnel of the City; and
WHEREAS, the Village has confirmed that there are no traffic improvements which it
presently intends to perform absent this Agreement, and there are no traffic control devices which
the Village presently intends to install absent this Agreement, and
WHEREAS, the City has negotiated with the Commercial Owners in order that the
Commercial Owners will share with the City in the cost and expense of the intersection
improvements and the traffic control devices which will or may in the future be installed at the
intersection, and
WHEREAS, this Agreement is intended to maintain for the public safety officials in the
Village continued jurisdiction over the intersection for the purpose of regulating the installation,
maintenance and repair of the traffic improvements and devices while allowing the City permission
to have certain improvements installed on Village owned right -of -way.
NOW THEREFORE, for valuable and lawful consideration, the sufficiency and, mutuality
of which is hereby acknowledged by the City, the Village and the Commercial Owners; the City,
the Village and the Commercial Owners hereby agree:
1 PURPOSE OF AGREEMENT
The intent and purpose of this Agreement is to permit the City to make improvements to
Spring i Road at the intersection of Spring Road and 16' Street (as more particularly described
herein)I through a combination of public sector and private sector funding The Village will not
make any contributions but, at all times, shall provide the necessary access, approvals, signatures
and authorizations before taking ownership of the improvements and maintaining and repairing the
same. The Commercial Owners enter into this Agreement after due consideration and intend by this
Agreement to waive any claims related to their funds and against all others, including but not limited
to surrounding owners and both municipalities, and their agents and representatives
2 THE PROJECT
'The "Project" contemplates and will be defined as the improvement of Spring Road at the
intersection of Spring Road and 16`' Street in the following manner.
2.01 'Phase One Improvements The Village shall issue permits for improvements to Sprang Road
at the intersection of Spring Road and 161 Street ( "Phase One Improvements ") substantially
in accordance with the plans prepared by Christopher B Burke Engineering, Ltd
( "CBBEL ") dated July 14, 2000, bearing the last revision date of February 28, 2001, which
are located and available for review in the off=ices of the Village's Engineer and the City's
Engineer (the "Plans ") The City shall construct the Phase One Improvements at no cost to
the Village, subject to the terms of this Agreement
102 Phase Two Election The Village shall, on the election of the City, issue permits, subject to
conformance with the Village's permit procedures and requirements for signaiization of the
intersection of Spring Road and 16`' Street substantially in accordance with plans to be
prepared by an engineer and approved by a traffic consultant selected jointly by the Village
and the City ( "Signalization Improvements ") The City shall share with the Village any
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warrant study of the intersection performed within one (1) year of the Village's acceptance
of the Phase One Improvements If a warrant study during that period indicates signalization
is warranted, the City shall construct the Signalization Improvements at no cost to the
Village or the Commercial Owners, subject to the terms of this Agreement Construction
shall proceed and conclude within a reasonable time after the study is completed and
reviewed by the City Council and Village Board If additional warrant studies, undertaken
by the City after permission by the Village, during any period within the ten (10) years
following the date of this Agreement indicates signalization is warranted, the City may elect
to construct the Signalization Improvements at no cost to the Village or the Commercial
Owners, subject to the terms of this Agreement Construction shall proceed and conclude
within a reasonable time after the date of election.
2.03 Phase Three Election The Village shall, on the election of the City, to be exercised within
ten (10) years from the date of acceptance of the Phase One Improvements, issue permits,
subject to conformance with the Village's permit procedures and requirements, for widening
of both streets at the intersection of Spring Road and 16' Street substantially in accordance
with plans to be prepared by an engineer and approved by a traffic consultant selected jointly
by the Village and the City ( "Additional Lane Improvements ") The City shall construct the
Additional Lane Improvements at no cost to the Village or the Commercial Owners, subject
to the terms of this Agreement and within a reasonable time after it exercises its election.
204 Workmanship The City shall cause the work contemplated by the Project to be performed
in a good and workmanlike manner in accordance with the approved final plans and
specifications
205 Method of Election. The elections contemplated above shall be made in writing by any duly
authorized official of the City and provided in compliance with the notice provisions of this
Agreement
3 THE PARTICIPANTS
3 01 Lead Agency The City shall be the Lead Agency for the purposes of directing and
supervising the Project, except as limited in Section 3 02. The Lead Agency shall hold
meetings as deemed appropriate, open to all parties hereto in order to allow them full
information as to the progress of the Project as it relates to their internal and external
corporate responsibilities The Lead Agency shall coordinate intergovernmental
communication, public and private bidding as required and allowed, awarding of contracts,
supervision of work and progress and such other matters which are necessary and customary
As Lead Agency, the City shall present final engineering plans and specifications for the
applicable phase of the Project
3 02 Permitting A encv The Village shall be the Permitting Agency and its rights and
responsibilities shall be limited to those under its Code of Ordinances related to enforcing
its right -of -way construction and maintenance standards, if any Prior to taking any legal
action or issuing and notices of violation, the Village shall, whenever practicable, notify the
City and the General Contractor of the failure to comply with any aspect of construction
permits, standards or any law or regulation relating thereto The City and General
Contractor shall have a period of 14 days during which they shall resolve the problem or
present a plan of resolution to the Village's engineering officials for review The Village,
as Permitting Agency, represents it has approved the Phase One Improvements Plans and the
temporary and/or permanent movement of all utilities necessary to accomplish the work
reflected in the Plans. Further, the Permitting Agency shall execute, subject to conformance
with the Village's permit procedures and requirements, all documentation reasonably
necessary to efficiently accomplish the work reflected in the Plans, including but not limited
to intergovernmental or private applications and agreements
3.03 Consultants The selection of consultants and legal advisors for Phase I and Phase II of the
Project shall be within the sole discretion of the City
3 04 Contractor The selection of the General Contractor and any specified subcontractors shall
be within the sole discretion of the City, provided the City complies with all laws and
regulations applicable to this selection
4 CONTRACT PROVISIONS
401 ;General Contract, Indemnification and Insurance The City shall execute one or more
construction contracts with a General Contractor selected by the City for each phase of the
Project The construction contract shall be of a format customary in the industry and for
municipal projects and shall specifically include the following
4.0101 an acknowledgment by all parties to the General Contract that the General
Contractor was the lowest responsible bidder and acknowledging the price,
4 01 02 a clause, excepting therefrom the negligence of any of the Indemnitees
(hereinafter defined) and not limited by availability, limits or coverage of
insurance carried or required herein, or required by law to be carried,
obligating the General Contractor to protect, defend, indemnify and hold
harmless the City, the Village, the Commercial Owners and each of their
elected, appointed or other officers, employees and agents (collectively,
sometimes called "Indemr itees ") from and against all loss, claims and
expenses, including but not limited to, loss or destruction of property,
including the loss of use thereof, bodily injury, personal injury, death,
incapacitation, sickness, disease or disability sustained by any person as well
as court costs, litigation expenses, collection costs and reasonable attorneys'
fees;
FA
.,
4 01 0� a clause indemnifying, protecting and saving harmless the Village and Citv
from and against any and all mechanic's liens or claims for lien arising out
of the performance of the work, including any actions brought or judgments
rendered therefrom, and from and against any loss, damage, liability, costs
and expenses, including legal fees and disbursements, which the City or
Village may sustain or incur,
401 04 a clause requiring the Contractor to maintain liability insurance coverage
with limits to be determined by the City and the Village, and to provide a
certificate of insurance as evidence of such coverage, naming the City and
the Village as additional insureds on the General Contractor's comprehensive
general liability policies of insurance,
401.05 a clause requiring the General Contractor to always maintain and supervise
at least one lane of traffic and access to the Commercial Owners' Property
during construction of the Project, to maintain and supervise entrances and
side roads along the perimeter of the Project Area, and to maintain and
supervise the cleanliness and safety of all locations within the Project Area
(defined hereafter),
401.06 an acknowledgment by the General Contractor that he has read and reviewed
each and every portion of this Agreement, that the General Contractor
understands that the intersection on which he is performing his work is
within the Village and that the Village holds no funds for the Project, and a
clause requiring the General Contractor to so advise each of its
subcontractors,
401.07 a hold -back of an appropriate sum until substantial completion of the
contracted -for phase of the Project, then a hold -back of an appropriate sum
until one (1) year following the date of acceptance of the improvements
within the phase of the Project contemplated by the General Contract and in
accordance with MOT specifications, and
401 08 a clause requiring compliance with the I1I1nois Prevailing Wage Act and the
payment of wages to workers on the Project based upon the Prevailing Wage
Ordinance adopted by the City or the Village dependent upon which
municipality has jurisdiction over the area of the phase of the Project,
provided however, that if the work area is located in both municipalities, then
wages paid workers on the Project shall not fall below the greater of the
prevailing wages adopted by the City and Village for each class of worker at
issue
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401 09 a clause requiring the Contractor to provide a performance and payment
bond, with a surety acceptable to the City, in an amount equal to 100% of the
contract price
402 Chance Orders The City shall promptly review and approve any and all change orders for
the Project Notwithstanding any ordinance, resolution or motion to the contrary, the City
shall approve or deny (with a detailed explanation in writing) all change orders within the
following time periods (a) within seven (7) days of receipt by the City if the change order
is less than $ 10,000 00, or (b) not later than the next City Council meeting following receipt
by the City if the change order is $ 10,000 00 or greater In the event of a field change, the
City's retained engineer or other representative shall be authorized to approve or object to
such requests
4.03 Pav -outs and Disbursements Per request by the Village, the City shall provide the Village
with copies of all sworn General Contractor's statements and lien waivers relating to the
requested disbursement to the General Contractor
6 PROJECT ACCEPTANCE AND SUBSEQUENT MANAGEMENT
5.01 Acceptance of the Project The Village shall accept the relevant portion of the Project,
within thirty (30) days following substantial completion, as determined by the Village, of
the particular phase of the Project and receipt of the project documentation, and said
acceptance shall not be unreasonably withheld
5 02 - laintenance and Utilities In the same fashion as the Village manages its other intersections
and unless provided otherwise herein, the Village shall, from the date it accepts each phase
of the improvements, (a) maintain, repair and replace the accepted portion of the Project
(including but not limited to street sweeping, snow plowing, snow removal, and salting), (b)
pay the expense of utility service to the intersection improvements requiring utilities, and
(c) police the intersection.
6 CONINERCIAL SECTOR CONTRIBUTIONS AND EFFECT THEREOF'
601 Time and Amount Within thirty (30) days of the letting of the bid upon the Phase One
Improvements, the Commercial Owners shall make the following voluntary contributions
to the City via cashier's check or wire transfer pursuant to instructions obtained from the
City's Interim Finance Director or, in his or her absence, the City's Interim Administrator
Owner of Drury Lane Theater Property $20,00000
Owner of Oakbrook Terrace Office Tower Property $40)00000
602 Castle Drive Improvements The owner of the Oakbrook Terrace Office Tower Property
hereby gives consent for the Village, at the Village's sole expense, to construct, maintain,
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repair and replace a non - mountable median within 16`h Street at Castle Drive for the
purposes of (1) prohibiting vehicles from turning left from 16`h Street into Castle Drive and
(2) prohibiting vehicles from turning left from Castle Drive into 161 Street The owner of
the Oakbrook Terrace Office Tower Property shall record a distinct memorandum
evidencing the consent given herein and relinquishing any and all rights to ingress and egress
via Castle Drive by means of left turns from and to 16' Street
6 03 Enforcement This obligation touches and concerns the land commonly known as the
intersection of Spring Road and 16' Street and the right of way commonly known as Spring
Road as it lies in the Village's corporate limits
604 Not an Assessment or Tax The Commercial Owners acknowledge and agree that nothing
in this Agreement creates a de facto special service area special assessment or tax
6.05 Future Municipal Actions During the term of this Agreement, as defined hereinafter, the
Commercial Owners shall not object or fund or otherwise support an objection to action by
the City or the Village, or both, to finance the expense of improving any aspect of Spring
Road or the intersection of Spring Road and 16' Street, as contemplated by Sections 2 01,
2.02 and 203
606 Maximum Input on Contributions Notwithstanding any provision herein to the contrary,
as pertains to the Phase One Improvements, the sum noted in Section 6 01 shall be the sole
contribution of the Commercial Owners for any improvement of the intersection of Spring
Road and 16`x' Street arising from the Phase One Improvements, the City being responsible
for any additional costs The City and Village reserve their right, as provided by law, to
determine financing of improvements beyond the scope of the Phase One Improvements
7 ZONPi tG A_ND TRAFFIC REGULATIONS
701 Project Area Definition For the purposes of this Section, the Project Area shall be that
detailed in the Plans, and commonly known as 161 Street at the point of its intersection with
'Spring Road (defined as Station 10 +00) and Spnng Road at the point of intersection with
16`h Street (defined as Station 10 +00) and extending to a point located 540' to the north
(defined as Station 15 +40)
7.02 Proiect Area Development Because the City is spending substantial funds to construct the
improvements detailed in this Agreement and because any new developments along the
Project Area could negatively effect or mitigate the advantages provided by the construction
of the improvements, the Village shall not approve any development, traffic control
improvement, any traffic control device or any parking variation for a parcel of land located
along 16" Street, between Illinois State Highway 83 and Spring Road, or Spring Road,
between Illinois State Route 38 and 22n1 Street, unless it first gives notice to the City as
prescribed in this Agreement In addition, the Village will utilize its best efforts to obtain
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a contribution, if warranted, for all or some of the cost of the Phase 11 improvements, from
certain property owners whose property is located on the west side of Spring Road, south of
16' Street and on the north side of Harper Road (the "Citibank property "), if and when said
property is the subject of a redevelopment plan during the term of this Agreement
7 03 Proiect Area Traffic Regulations At no time shall the Village or the City authorize parking
in any portion of the rights -of -way along Spring Road or 16`x' Street
S STORM WATER MANAGEMENT
The City and Village agree that the Plans comply with all applicable storm water
management laws, ordinances and regulations
9 LNDENVINIFICATION
901 To the extent permitted by law, each of the municipalities shall defend, indemnify and hold
one another and the Commercial Owners harmless from and against any and all lawsuits,
judgments and administrative proceedings or judgments, including costs, witness fees,
expenses and reasonable attorneys' fees, arising out of any breach by it of this Agreement
or the Project, including any negligence arising out of the construction or implementation
of the Project Each indemnifying party agrees that the indemnified party retains the right
to select and retain independent counsel in the event an actual or apparent conflict of interest
arises in the representation of the City or the Village and one or more of the Commercial
Owners by one attorney or firm
902 To the extent permitted by law, each of the Commercial Owners shall defend, indemnify and
hold the City and Village harmless from and against any and all lawsuits, judgments and
administrative proceedings or judgments, including costs, witness fees, expenses and
reasonable attorneys' fees arising out of any breach by it of this Agreement The
Commercial Owners agree that the City and/or Village retains the right to select and retain
independent counsel in the event an actual or apparent conflict of interest arises in the
representation of one or more of the Commercial Owners and the City or Village by a single
attorney or firm.
10 TERM, TERMINATION AND SURVIVAL
The Term of this Agreement shall begin on the date that the last party has executed this
Agreement in proper form as represented to all of the other parties (the "Effective Date ") and end
on the eleventh (11 ") anniversary of the date on which the Village accepts the Phase One
Improvement ( "Term ") Sections 5 02, 9 01 and 9 02 shall survive the termination of this
Agreement.
s
11 GENERAL
11.01 Complete Understanding This Agreement supercedes and nullifies any prior understanding
regarding this precise subject matter between the City, the Village and the Commercial
Owners This Agreement serves as the entire understanding of the parties hereto with
respect to the Project and subject matter related to the Project
11.02 Notices Notice shall be delivered in person or via certified United States Mail, return
receipt requested, and shall be deemed effective on the date received or on the date reflected
in certified mail receipts All notices required hereunder shall be made in writing and at the
following addresses
If to the CITY OF OAKBROOK TERRACE.
With a copy to:
If to the VILLAGE OF OAK BROOK
With a copy to-
If to the Drury Lane Theater
If to the Oakbrook Terrace Office Tower
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Office of the City Administrator
City of Oakbrook Terrace
17 W 275 Butterfield Road
Oakbrook Terrace, IL 60181
Kenneth T Kubiesa
Kubiesa, Spiroff, Gosselar & Acker,
PC
533 West North Avenue, Suite 204
Elmhurst, Illinois 60126
Office of the Village Manager
Village of Oak Brook
1200 Oak Brook Road
Oak Brook, IL 6052'
of the Village Attorney
Village of Oak Brook
1200 Oak Brook Road
Oak Brook, IL 6052'
DeSantis
100 Drury Lane
Oakbrook Terrace, Illinois 60181
EOP - Oakbrook Terrace LLC
c/o Equity Office Properties
One Tower Lane, Suite 330
Oakbrook Terrace, IL 60181
Attention Building Manager
With a copy to
11 03 Additional Definitions
Equity Office Properties
Two North Riverside Plaza
Suite 220
Chicago, IL 60606
Attention Regional Counsel
11 03 01 "Cost" shall mean a sum paid by a party to a third party who is not a party to
this Agreement and for which the third party invoiced the paying party prior
to payment.
11 04 Cooperation The City and Village have authorized, by appropriate ordinance or resolution,
the execution of this Agreement, as an exercise of their respective intergovernmental
cooperation and as authorized by the Illinois Municipal Code and the 1970 Illinois
Constitution
11 05 Enforcement "Default" is defined as the failure of a party hereto to substantially perform
any one or more of its obligations under this Agreement The parties recognize that this
Agreement provides benefits to each party hereto and that the obligations of each other to
one another may be enforced by any signatory hereto In the event of a default of any one
or more portions of this Agreement by any one or more parties hereto, the non - defaulting
party(ies) shall have the right to any and all legal and equitable remedies subject to the
following limitations, which shall not apply to indemnities for third party claims- (a) the City
and Village may be liable to the Commercial Owners only for a maximum of the unapplied
contribution of the Commercial Owners and in no manner or form shall the Village or City
be liable for consequential or any other damages, (b) the City and Village shall be liable to
one another only for the actual cash outlay of the non - defaulting party, specific performance,
or under a theory of injunctive relief, and (c) the Commercial Owners shall be liable to the
City only to an amount equal to twenty percent (20 %) in excess of their respective
contributions
11 06 Choice of Law and Venue This Agreement shall be interpreted in accord with Illinois law
and any dispute hereunder shall be resolved through an action in the Eighteenth Judicial
Circuit Court, DuPage County, Illinois
11 07 Severability The Terms of this Agreement are severable and, if any court or administrative
tribunal declares one or more of them to be invalid, such invalidity shall have no effect on
the remainder of the terms and the remainder of the terms shall survive
H
�i'ITIN-ESS THEREOF, the City of Oakbrook Terrace , the Village of Oak Brook and
I`i j
the Commercial Owners and Lessors identified in the attached Exhibit "A" have hereunto set their
hands and seals on the dates noted below
CITY OF OAKBROOK TERRACE VILLAGE OF OAK BROOK
By-
Mayor Thomas S 1 azaika
Attest:
� r
City Clerk
Dated this 81 of May, 2001
, LAIRTI.NIQUE DRURY LAINE
OAKBROOK PARTNERSBH
i
By Af'
Anthon eSantis, P ner
IM
President•-v,I
Attest
I lag Clerk,... f r = �;�;�� , •1
e— vj�%
Dated this � of v y, 200 �� '' : rte
EOP - OAKBROOK TERRACE, LLC,
a Delaware Limited Liability Company
By EOP - 30 N LaSalle Street, LLC, a
Delaware Limited Liability Company,
its Sole Member
Attest �
By EOP Operating Limited Partnership, a
Its S cretary Delaware Limited Liability
Partnership, its Sole Member
Dated this ? of vlay, 2001 By Equity Office properties Trust, a
Maryland al ate Investment
Trust, en ^art
r
By
N
Title
Dated this of May, 2001
II \0,%rk+\Nrb\Spnnjt1 E1h. \g obt.vpd 11
Y I d
EXHIBIT A
Martinique Drury Lane Oakbrook Partnership
EOP - Oakbrook Terrace, LLC, a Delaware Limited Liability Company