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Home My WebLink About10-64 Resolution No. 10-64 RESOLUTION RATIFYING THE EXECUTION OF AN AGREEMENT AS TO CERTAIN OBLIGATIONS - PUBLIC IMPROVEMENTS CONSTRUCTION AGREEMENT WITH PINGREE LLC AND WENNLUND FARM, L.L.C. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that it hereby ratifies and approves the execution of an Agreement as to Certain Obligations-Public Improvements Construction Agreement with Pingree LLC and Wennlund Farm, L.L.C. by Ed Schock, Mayor, and Diane Robertson, City Clerk, regarding the security for the HPI Force Main, a copy of which is attached hereto and made a part hereof by reference. s/ Ed Schock Ed Schock, Mayor Presented: March 31, 2010 Adopted: March 31, 2010 Omnibus Vote: Yeas: 6 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk AGREEMENT AS TO CERTAIN OBLIGATIONS - PUBLIC IMPROVEMENTS CONSTRUCTION AGREEMENT This AGREEMENT AS TO CERTAIN OBLIGATIONS - PUBLIC IMPROVEMENTS CONSTRUCTION AGREEMENT (this "Agreement") is made and entered into this 24th day of March, 2010, by and between PINGREE LLC, an Illinois limited liability company ("Crown"), WENNLUND FARM, L.L.C., an Illinois limited liability company ("Wennlund") and THE CITY OF ELGIN, an Illinois municipal corporation, in the Counties of Kane and Cook, State of Illinois (the "City"). WITNESSETH: WHEREAS, on February 22, 2006, Crown, Wennlund, City and others entered into that certain Public Improvements Construction Agreement (the "Construction Agreement"); WHEREAS, the Construction Agreement obligated Crown and Wennlund to construct certain public improvements described in the Construction Agreement and, subject to recapture, to pay all of the costs for the described public improvements in excess of $10,000,000 (the "Obligations"); WHEREAS, the Construction Agreement further provided that Crown and Wennlund would post letters of credit with the City in the aggregate amount of$7,818,000.00 as security for the Obligations; WHEREAS, pursuant to the Construction Agreement, Crown and Wennlund posted with the City, Letter of Credit Number CPCS-282960 in the amount of U.S. $3,909,000.00 issued by JPMorgan Chase Bank, NA (the "Crown LC") and Bond No. 5023899 in the amount of U.S. $3,909,000.00 issued by Bond Safeguard Insurance Company (the "Wennlund LC); the Crown LC and the Wennlund LC are collectively referred to as the "Letters of Credit"); WHEREAS, with the exception of certain force main improvements intended to be constructed at the end of the sanitary sewer for the portion of Phase 5A on the HPI Property (the "HPI Force Main" which can be described as the northern point of the force main identified on Exhibit 3 to the Construction Agreement as "Proposed force main by Crown/Shodeen 9,545 LF of 14" FM from Crown's Property to HPI's lift station" described in Section 2 of the Construction Agreement), all of the public improvements to be constructed pursuant to the Construction Agreement have been completed, dedicated to and accepted by the City of Elgin; WHEREAS, no contracts can be let for the construction of the HPI Force Main since the HPI Force Main can not be installed until certain site work on the HPI property is completed; WHEREAS, it is intended that the parties to the Construction Agreement will amend the Construction Agreement (the "Amendment") to: provide for the return of the Letters of 455260.1 89140.001 • Credit by Crown and Wennlund; provide for the release and relieve Crown and Wennlund of any obligation to construct and pay for the HPI Force Main; obligate the owners and developers of the HPI Property to construct the HPI Force Main when the HPI Property is developed; and provide a credit against certain future recaptures otherwise payable to Crown and Wennlund to the owners and developers of the HPI Property for constructing and financing the HPI Force Main, WHEREAS, circumstances involving the other parties to the Construction Agreement and beyond the control of City, Crown and Wennlund will delay the immediate execution of the Amendment; and WHEREAS, City is willing to return the Letters of Credit to Crown and Wennlund, provided Crown and Wennlund will undertake to have the Amendment executed and will agree to post new security for the completion of the HPI Force Main if the Amendment is not executed as herein provided. NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties agree as follows: 1. City will, upon the entry into this Agreement, return the Crown LC to Crown and the Wennlund LC to Wennlund and Crown and Wennlund will have no further obligations to post security under the Construction Agreement other than as expressly provided below. 2. Crown and Wennlund hereby agree that they will work with the other parties to the Construction Agreement to have the Amendment executed on or before March 31, 2011. 3. If for any reason the Amendment is not executed by the parties to the Construction Agreement on or before March 31, 2011 (or if executed, it does not, at a minimum contain the substantive terms referenced above) Crown shall post on or before April 1, 2011 new security for the HPI Force Main in a form approved by the City with the City of Elgin in the amount of$314,037.14 and Wennlund shall post on or before April 1, 2011 new security for the HPI Force Main in a form approved by the City with the City of Elgin in the amount of $314,037.13, for an aggregate amount of $628,074.27, which is 110% of the estimated cost of the HPI Force Main.) 4. All notices and demands required or permitted by this Agreement shall be made in writing and shall be served by personal or carrier delivery or by mailing by certified mail, return receipt requested, or by fax with confirmation copies by regular mail. All such notices and demands shall be deemed to be delivered on the date of personal delivery, on the date of transmission if by fax or two days after posting mail. 2 City: City of Elgin Attn: City Clerk & Corporation Counsel 150 Dexter Court Elgin, IL 60120 (847) 931-6100 (847) 931-6027 (fax) Crown: Crown Community Development 1751A West Diehl Road Naperville, IL 60563 Attn: Mary Bailey (630) 851-5490 (630) 898-0480 (fax) With copies to: Virginia M. Harding John H. Mays Gould & Ratner LLP 222 N. LaSalle Street Suite 800 Chicago, IL 60601 (312) 236-3003 (312) 236-3241 (fax) Wennlund: Wennlund Farm L.L.C. 17 North First Street Geneva, IL 60134 Attn: David A. Patzelt 5. Except as expressly provided for herein, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns. 6. In the event of any conflict or inconsistency between this Agreement and any provision in the Construction Agreement or the ordinances of the City, the provisions of this Agreement shall prevail to the extent of any such conflict or inconsistency. 7. The obligations contained herein are for the benefit of all three parties and any party may enforce its rights under this Agreement in any court of competent jurisdiction by an appropriate action at law or in equity to secure the performance of the covenants herein described. 8. Each of the signatories is duly authorized to execute this Agreement on behalf of the partiers hereto and each party has taken the necessary action to grant such authority 3 IN WITNESS WHEREOF, the corporate authorities of the City, Crown and Wennlund have caused this Agreement to be executed by their respective proper officers and officials, duly authorized to execute the same, on the day and year first written above. CROWN: WENNLUND: PINGREE LLC, an Illinois limited liability WENNLUND FARM, L.L.C. , an Illinois Company limited liability Compan ssaBy: Its: ,'cI'z Its: 4 EigN7 CITY OF ELGIN By: — / Mayor Attest: City Clerk F:\Legal Dept\Agreement\HW Interceptor Agreement-HPI Forcemain Security(100212)-WAC redlined 3-18-10.docx 4