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HomeMy WebLinkAbout12-127 Resolution No. 12-127 RESOLUTION AUTHORIZING EXECUTION OF WETLAND CREDIT AGREEMENT WITH SLOUGH CREEK JOINT VENTURE FOR THE PURCHASE OF CERTIFIED WETLAND CREDITS FOR THE SOUTH STREET EXTENSION PROJECT BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that Sean R. Stegall, City Manager be and is hereby authorized and directed to execute Wetland Credit Agreement on behalf of the City of Elgin with Slough Creek Joint Venture for the purchase of certified wetland credits for the South Street Extension Project, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: August 8, 2012 Adopted: August 8, 2012 Omnibus Vote: Yeas: 7 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk WETLAND CREDIT AGREEMENT THIS WETLAND CREDIT AGREEMENT (hereinafter referred to as "Agreement") is made and entered into this 8th day ofAugus , 2012, (the "Effective Date") by and between SLOUGH CREEK JOINT VENTURE, an Illinois general partnership (hereinafter referred to as "Seller") and the CITY OF ELGIN, (hereinafter referred to as "Purchaser"); WITNESSETH: WHEREAS, Purchaser has applied to the U. S. Army Corps of Engineers (hereinafter referred to as "USACOE") for a permit under Section 404 of the Clean Water Act so as to allow the discharge of clean non-toxic fill material into 0.321 acres of a wetland within the South Street Extension Project, in the City of Elgin, Illinois (hereinafter referred to as "Project"). The Project Number assigned by the USACOE is LRC-2008-382; and WHEREAS, as a condition to the issuance of a permit from the USACOE Purchaser is required to compensate for said wetland impacts, and elects to do so through the purchase of certified wetland credits (1:1) in the Sellers' Slough Creek Wetland Mitigation Bank (hereinafter referred to as "Wetland Bank"); and WHEREAS, the USACOE has directed that Purchaser shall be required to purchase a total of 0.465 acres of certified wetland credit due to the proposed impacts to the wetlands resulting from the development of the Project; and WHEREAS, the Project is located in the Fox River watershed and the Wetland Bank is also located in the same watershed, in Greenwood Township, McHenry County, Illinois. NOW. THEREFORE, for and in consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, it is agreed as follows: 1) RECITALS: The recitals are hereby incorporated herein by this reference. 2) COMPENSATION: Purchaser shall, subject to the terms and conditions hereinafter provided, pay to the Seller the sum of THIRTY-ONE THOUSAND AND ZERO DOLLARS ($31,000.00 hereinafter referred to as the "Purchase Price") for 0.465 certified wetland credits in the Wetland Bank. The Purchase Price shall be paid in the following manner: a) PURCHASE PRICE: Upon receipt of the USACOE approval notice for the Project (hereinafter referred to as "Permit Approval Notification"), Purchaser shall pay Seller the Purchase Price as stated herein, or $31,000.00. All payments hereunder shall be made to SLOUGH CREEK JOINT VENTURE. If the balance of the Purchase Price is not paid by the end of the fifth business day after receiving the Permit Approval Notification, interest on the balance of the Purchase Price will accrue at the rate of ten percent (10%) per annum. Upon payment of the Purchase Price, Seller shall notify the USACOE that Purchaser has secured 0.465 acres of credit from the Wetland Bank. b) REQUIRED AMOUNT OF CREDITS: Should the wetland credits required by the USACOE be increased or decreased from the time of Agreement execution to the time Purchase Price has been paid, the Agreement shall be modified to reflect an adjusted Purchase Price based on the same price per acre as originally set out in this Agreement, if Seller has such credits available. c) TERMINATION: If after one hundred and twenty (120) days after the Effective Date Purchaser has not received the Project Permit, then at any time thereafter until Purchaser receives the Project Permit either party may 2 terminate this Agreement by written notice to the other party and the parties shall have no further obligations hereunder. If Seller terminates Agreement, Seller shall return the Earnest Money to Purchaser. 3) SELLER'S PERFORMANCE INDEMNITY: In consideration of the Purchase Price, Seller affirms that it has sufficient wetland credits released by the USACOE in the Wetland Bank to satisfy the wetland credits required by Purchaser and hereby does sell such credits to Purchaser. Purchaser shall have no obligation to perform any of the responsibilities of the Seller, or satisfy any other obligations of Seller now or hereafter as set forth by the USACOE in the development and maintenance of the Wetland Bank. 4) NOTICES: Any notices required or permitted hereunder shall be sufficiently given if delivered by overnight courier, by United States mail, return receipt requested, or by facsimile to the parties hereto as follows: If to Seller: Mr. Steve Weller EcoLogic Planning, Inc. 4250 W. Tanglewood Road Bloomington, Indiana 47404 Phone: (812) 935-7078 Fax: (812) 935-7079 If to Purchaser: Mr. Michael Hall, P.E. City of Elgin 150 Dexter Court Elgin, IL 60120 Phone (847) 931-5960 Fax: (847) 931-5965 Any notice given pursuant hereto by overnight courier shall be effective as of delivery: any notice given pursuant hereto by First Class United States mail, return receipt requested, shall be effective as of the third business day following its posting, and any 3 notice given pursuant hereto by facsimile shall be effective as of receipt of a confirmation by the sending party. 5) PRIOR AGREEMENTS: This Agreement shall supersede any and all prior understandings and agreements between the parties hereto, whether written or oral, with respect to the subject matter hereof and may be amended only by a written instrument executed by or on behalf of both Seller and Purchaser. 6) APPLICABLE LAW: Seller and Purchaser shall be contractually bound to this Agreement, which shall be governed by the laws of the state of Illinois and subject to the requirements of any applicable federal laws or regulations. Changes in federal, state, or local laws, which might have otherwise impacted this Agreement, shall not be enforced retroactively after execution of this Agreement. Each party shall be held harmless for damages sustained by the other party as a result of changes in federal, state, or local laws or their interpretation or enforcement. 7) SUCCESSORS AND ASSIGNS: This Agreement shall inure to the benefit of and he binding upon the successors and assigns of Seller and Purchaser , as the case may be, and their respective successors and assigns. Neither party hereto shall assign any interest hereunder without the prior written approval of the other first hand. 8) CONTRACT ACCEPTANCE: This Agreement is null and void if not executed within thirty (30) days of the effective date on the first draft of Agreement or date first draft of Agreement is sent to Purchaser. This time limitation may be extended upon written approval by the parties to this Agreement. 4 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written. PURCHASER: CITY OF ELGIN By: .+/0/L . Sean R. Stegall, City nager SELLER: SLOUGH CREEK JOINT V TURE By: °C.-5LR..)" Steven Weller Manager 5 e 0 REPOR[`, MAYOR & MEMBERS OF IT„ COUNCIL E LG I N ___ _ THE CITY IN THE SUBURBS- AGENDA ITEM: F MEETING DATE: July 25, 2012 ITEM: Agreement with Slough Creek Joint Venture for the Purchase of Certified Wetland Credits for the South Street Extension Project ($31,000) OBJECTIVE: Satisfy the conditions of the U.S. Army Corps of Engineers Permit required in order to construct the South Street Extension Project. RECOMMENDATION: Approve the agreement with Slough Creek Joint Venture to purchase Certified Wetland Credits. BACKGROUND The city council approved an engineering services agreement with Hampton, Lenzini & Renwick (HLR) for the South Street Extension Project In May 2006. The project provides for the exten- sion of South Street from its current terminus just west of Randall Road by the Target Store westward to the northeast corner of the Waterford Subdivision. The construction of South Street from the northeast corner of Waterford Subdivision westward to Longcommon Parkway was to be completed by Kimball Hill Homes as part of the Waterford Development. The obliga- tion of these improvements is at the center of pending litigation with the surety companies and the current land owner. The city is seeking a judgment for additional funding to complete this section of South Street. A location map is included as Exhibit A. The city has been in the process of acquiring the various properties for the South Street exten- sion right-of-way. The city council approved the most recent acquisition which involved the do- nation of vacant land west of Randall Road for property known as Parcel 6 in late June this year. The final property acquisition for the South Street extension right-of-way is expected to be completed within the next 60 days. All right-of-way and easements required to construct the South Street extension project would then be in place. The project also includes wetland identification and the securing of a U.S. Army Corps of Engi- neers (ACOE) permit. Exhibit B depicts the South Street alignment including wetland impacts. (I' HLR submitted an application on the city's behalf to the ACOE seeking to construct the South Street Extension Project under the Regional Permit Program. As a condition of the ACOE permit, the city is being required to compensate for wetland impacts necessary to construct the road- way improvements. A copy of the ACOE permit authorization is attached as Exhibit C. Under the Special Conditions of the permit authorization, the ACOE has directed the city to purchase certi- fied wetland mitigation credits from the ACOE approved Slough Creek Wetland Mitigation Bank to meet this condition of the permit. The ACOE will not counter-sign the authorization until evi- dence of the purchased credits is received. OPERATIONAL ANALYSIS For the city to proceed with purchasing the required ACOE-certified wetland mitigation credits from Slough Creek Joint Venture, the owner of the Slough Creek Wetland Mitigation Bank, ACOE requires the city to enter into a Wetland Credit Agreement and provide the required compensation. A copy of the Wetland Credit Agreement is attached as Exhibit D. By entering into the agreement and purchasing the wetland credits, the city will have met the ACOE permit conditions for mitigation to compensate for the wetland impacts and will no longer have any obligation in the development or maintenance of the wetland bank. INTERESTED PERSONS CONTACTED None. FINANCIAL ANALYSIS The cost to purchase the required 0.465 certified wetland credits from Slough Creek Joint Ven- ture is $31,000 Normally, costs related to mitigation are included as part of the construction budget. Given that the construction budget has not been established funding for this mitigation purchase was not specifically budgeted in 2012. The purchase will be funded with Roadway Im- pact Fees dedicated to the improvement of streets west of Randall Road. A decision package requesting funding for the construction of South Street will be submitted as part of the 2013 budget process. BUDGET IMPACT AMOUNT AMOUNT FUND(S) ACCOUNT(S) PROJECT#(S) BUDGETED AVAILABLE General Fund 010-6902-719.92-31 334042 $65,223 $31,000 LEGAL IMPACT None. 2 ALTERNATIVES The city council could choose not to approve the agreement with Slough Creek Joint Venture and opt to mitigate the wetland impacts by acquiring land, designing and constructing a wet- land facility onsite and maintain it in perpetuity or the city could delay the construction of the South Street Extension. NEXT STEPS 1. Execute the Agreement with Slough Creek Joint Venture. 2. Issue a check to the mitigation bank. 3. Finalize permit with the ACOE. Originators: Michael L Hall, P.E., Engineer II Ronald L Rudd, P.E., Senior Engineer- Development Joseph Evers, P.E., City Engineer Final Review: Colleen Lavery, Chief Financial Officer William A. Cogley, Corporation Counsel/Chief Development Officer Richard G. Kozal, Assistant City Manager/Chief Operating Officer Sean R. Stegall, City Manager ATTACHMENTS A. Location Map B. South Street Alignment and Wetland Impact C. U.S. Army Corps of Engineers Regional Permit Authorization D. Wetland Credit Agreement with Slough Creek Joint Venture C 3 N Exhibit A South Street Location Map illk . , . . ..... .. , ---... , .. / .::,. "---... "--J , ,,,, -, ! „_--. „- :,..... . ., .. „-;-„,--, , 11...---- 14, ----•••....,hrt.t..-• : • , s ' i I-1 r-•-' ::..e,.,„=,• /4::•-•-ceS•tot. ./,," .. .-----i..., ....-- • ,,-- ...,-../ci---q! -"7 Haven (:::://---,:::-.'•-• 2'^, /\--7.:::13::::::.•-e-. )14h',.. ' °- 1----4,,-,, /,„...:.„).-L,...../.. / 7---7::::••;-...„_kikt,.2 _ . .....,,,??./.0.0.,.. ''.--......-3...,.4.\//..„ /l'„)7.--,.....i.".• j ° ---4--.1.....4_ ''''. '...:"1 \ \ \ 'Y.' 7 f‘.,I1 r•'.....\' ' 1. i i I. l) ' I. ':'• ' '-'',4"/ I.,) '-....„: ';', ----7..-7---. < 0 (A9 ft. * 47 0 *1 Q , c) \ • ,c.,, .. to * •O ,C . 0 ,.o . • ' ! 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'.., It ' \\ % '•."'Mi dleton ; Lismore :,.. ..,/..,. >,.,-2...,,/x •.!..: •>•••\\-\„\,,.„\..`,\..,.\\...s.\<,,,i• ,-r”.1`.,1------'1•-'1;.-*/--/-.; 1•>\.--1'.-i..',.- -.r,..I. /....- -21 - Wexford j < lih,'T'.....-....-....-.:..1; Cape Cod i; .....-- •, ...,-„,„..,„ ,...., : '‘ •", . 1) S \ . 1 1 .d...-1,././ A ; , • ' ' ' %/›. . • ‘..., i •-":: ,-- ', >„ : , -- .1.. . , ;.......,i ; f.7....4„,..] / ........._.„,-... .1.1., 4/.• >,: //-,.. /\ \ .., <-, ,,,„., -,. '\ 'sc.i ,," N Z i. . ...t{aY° 7\/\-•.• ' / \/\/ --- /r?\\,/ -- , Waterford /,---- -.,„._,A7 1 rr ,.,'-‘,.-, ',CO!. •-..'....',••,.., // V\ ><\ '•./) ' ', 1 i '' •'••••''.• '.\NA10-1- Aj-trijiab4rd _......- , , .. • ,_.., , . _ pip..., , ( z - --• s.-A -., , •:-.- ,-.....-,.' I". j.. .".• ,..-‘, \-)-C• ' • ',-ii ':- ..---C ./•\<• • ••• ',. y.--,..-.......":' '......i "', • ' 171'0'.\"/\//s A ;,\/,I? •, I 1;1 1 ..7 \ ,..---,i,..%.,\ ' > - " i '7 ,;\ 1/ -./\ A ,. \,Y / v 1'',.....--4. 'i I A' , ,----,-.. ,;•.': '''.;`,- .7 ( i \ ,A.\,' ..1.-- \\...J..I ''•. i !/-! .\,._ ® 1 . , r Exhibit B South Street Alignment and Wetland Impacts • � c, Pi h i ' »v ' ^zt t via t' f � e' � ''''',;°2 q 'a j 't er a�� � a ' .,.* , - �) , F� k , s• ¢6f.%„-aP�° �' t fix , . o r '� r1 ... 6ti tt..: 1' g x 4 t , ��a� 4.- • }ti m .,4 d 'a S .,r"m7r Si ilt; .:,. �. moi ' ¢�'64°,... ..t. ' �'o 3�, `�_Ift+ a: t a ;4--r °sp, @+, X34.. ,�. +' k t 6 ' B 9 r `L Pf�*•^ ,Ya ;r °J ' '1- :'''1,P," ` ' e ,< 7 — z, `eic Exhibit C REGIONAL PERMIT PROGRAM 1 ... AUTHORIZATION PERMITTEE: Stephen Pertzborn, City of Elgin APPLICATION: LRC-2008-382 ISSUING OFFICE: U.S. Army Corps of Engineers, Chicago District DATE: You are hereby authorized to perform work in accordance with the terms and conditions specified below. Note: The term "you" and its derivatives, as used in this authorization,means the permittee or any future transferee. The term "this office" refers to the U.S. Army Corps of Engineers, Chicago District. PROJECT DESCRIPTION: South Street Extension, as described in your notification and as shown on the plans titled, "City of Elgin, Illinois, South Street Extension, Kane County, 2010" dated January 28, 2010,prepared by Hampton, Lenzini, and Renwick, Inc. To offset project impacts, approximately 0.465 certified credits shall be purchased from the Slough Creek wetland mitigation bank. PROJECT LOCATION: West of Randall Road, Elgin and Elgin Township,Kane County, Illinois (NE ''A of Section 20 and NW 1/4 of Section 21, T41 N R8E) GENERAL CONDITIONS: The above described work is authorized under the terms, conditions and requirements of Regional Permits 3 (Transportation Projects) and 7 (Temporary Construction Activities) and shall follow the General Conditions outlined in the Regional Permit Program dated April 1, 2007. SPECIAL CONDITIONS: To ensure that the activity has minimal individual and cumulative impacts,the following special conditions are required: 1. This authorization is based on the materials submitted as part of application number LRC-2008-382. Failure to comply with the terms and conditions of this authorization may result in suspension and revocation of your authorization. A, - 2 - 2. This verification expires three (3) years from the date of this letter and covers only your activity as described in your notification and as shown on the plans titled, "City of Elgin, Illinois, South Street Extension, Kane County.2010" dated January 28, 2010,prepared by Hampton, Lenzini, and Renwick, Inc. Caution must be taken to prevent construction materials and activities from impacting waters of the United States beyond the scope of this authorization. If you anticipate changing the design or location of the activity, you should contact this office to determine the need for further authorization. 3. You shall provide evidence that 0.465 acres of certified mitigation credits have been purchased from the Corps approved Slough Creek Wetland Mitigation Bank when you return the signed copies of the RPP authorization to this office. This office will not counter-sign the authorization until such evidence has been received. 4. You shall comply with the water quality certification issued under Section 401 of the Clean Water Act by the Illinois Environmental Protection Agency for the project. 5. This permit does not authorize any temporary stockpiling, work, or access through the fen area. Flags,markers, or temporary fencing shall be installed to prevent any access or disturbance to the fen. 6. Wetland buffer areas, naturalized basins, naturalized ditches shall be composed of native vegetation in perpetuity. 7. This authorization is contingent upon implementing and maintaining soil erosion and sediment controls in a serviceable condition throughout the duration of the project. You shall comply with the Kane/DuPage Soil and Water Conservation District's (SWCD) written and verbal recommendations regarding the soil erosion and sediment control (SESC)plan and the installation and maintenance requirements of the SESC practices on-site. a. You shall schedule a preconstruction meeting with the SWCD to discuss the SESC plan and the installation and maintenance requirements of the SESC practices on the site. b. You shall notify the SWCD of any changes or modifications to the approved plan set. Field conditions during project construction may require the implementation of additional SESC measures. If you fail to implement corrective measures,this office may require more frequent site inspections to ensure the installed SESC measures are acceptable. c. Prior to commencement of any in-stream work, you shall submit constructions plans and a detailed narrative to the SWCD that disclose the contractor's preferred method of cofferdam and dewatering method. Work in the waterway shall NOT commence until the SWCD notifies you, in writing, that the plans have been approved. 8. You shall provide written notification to this office at least ten (10) days prior to the commencement of work indicating the start date and estimated end date of construction. C -3 - 9. You are responsible for all work authorized herein and for ensuring that all contractors 411) are aware of the terms and conditions of this authorization. A copy of this authorization must be present at the project site during all phases of construction. 10. You shall notify this office of any proposed modifications to the project, including revisions to any of the plans or documents cited in this authorization. You must receive approval from this office before work affected by the proposed modification is performed. l l. You shall ensure that any wetland areas created or preserved as mitigation for work authorized by this permit shall not be made subject to any future construction and/or fill activities, except for the purposes of enhancing or restoring the mitigation area associated with this permit. All plans are to be approved by this office prior to commencement of any work. 12. You shall notify this office prior to the transfer of this authorization and liabilities associated with compliance with its terms and conditions. The transferee must sign the authorization in the space provided and forward a copy of the authorization to this office. OTHER INFORMATION: 1. This office has authority to determine if an activity complies with the terms and conditions of the Regional Permit Program (RPP). 2. Limits of RPP authorization: '1111) a. This authorization does not obviate the need to obtain other federal, state, or local authorizations required by law. b. This authorization does not grant any property rights or exclusive privileges. c. This authorization does not authorize any injury to the property or rights of others. d. This authorization does not permit interference with any existing or proposed Federal project. 3. Limits of Federal Liability. The Federal Government does not assume any liability for the following: a. Damages to the authorized project or uses thereof as a result of other authorized activities or from natural causes. b. Damages to the authorized project or uses thereof as a result of current or future activities undertaken by or on behalf of the United States in the public interest. c. Damages to persons, property,or to other permitted or unpermitted activities or structures caused by this authorized activity. 4111) -4 — row d. Design or construction deficiencies associated with the authorized work. e. Damage claims associated with any future modifications, suspension, or revocation of this authorization. 4. Reliance on Applicant's Data. The determination by the issuing office that this activity complies with the terms and conditions of the RPP was made in the reliance on the information you provided. 5. Reevaluation of Permit Decision. This office may reevaluate its decision on this authorization at any time the circumstances warrant. In addition, this office may reevaluate the determination that the project qualifies under a RPP. Circumstances that could require a reevaluation include, but are not limited to, the following: a. You fail to comply with the terms and conditions of this authorization. b. The information provided by you in support of your application proves to have been false, incomplete or inaccurate (see 4 above). c. Significant new information surfaces which was not considered in reaching the original interest decision. Such a reevaluation may result in a determination that it is appropriate to suspend, modify or revoke your authorization. r - 5 - Your signature below, as permittee, indicates that you accept and agree to comply with the terms and conditions of this authorization. PERMITTEE DATE Stephen Pertzborn, City of Elgin LRC-2008-382 This authorization becomes effective when the Federal official, designated to act for the Secretary of the Army, has signed below. For and on behalf of DATE Frederic A. Drummond, Jr. Colonel, U.S. Army District Commander 411) If the structures or work authorized by this authorization are still in existence at the time the property is transferred, the terms and conditions of this authorization will continue to be binding on the new owner(s) of the property. To validate the transfer of this authorization, and the liabilities associated with compliance to its terms and conditions, the transferee shall sign and date below. TRANSFEREE DATE ADDRESS TELEPHONE Exhibit D WETLAND CREDIT AGREEMENT THIS WETLAND CREDIT AGREEMENT (hereinafter referred to as "Agreement") is made and entered into this day of , 2012, (the "Effective Date") by and between SLOUGH CREEK JOINT VENTURE, an Illinois general partnership (hereinafter referred to as "Seller")and the CITY OF ELGIN, (hereinafter referred to as"Purchaser"); WITNESSETH: WHEREAS, Purchaser has applied to the U. S. Army Corps of Engineers (hereinafter referred to as "USACOE") for a permit under Section 404 of the Clean Water Act so as to allow the discharge of clean non-toxic fill material into 0.321 acres of a wetland within the South Street Extension Project, in the City of Elgin, Illinois (hereinafter referred to as "Project"). The Project Number assigned by the USACOE is LRC-2008-382; and WHEREAS, as a condition to the issuance of a permit from the USACOE Purchaser is required to compensate for said wetland impacts, and elects to do so through the purchase of certified wetland credits (1:1) in the Sellers' Slough Creek Wetland Mitigation Bank (hereinafter referred to as "Wetland Bank"); and WHEREAS, the USACOE has directed that Purchaser shall be required to purchase a total of 0.465 acres of certified wetland credit due to the proposed impacts to the wetlands resulting from the development of the Project; and WHEREAS, the Project is located in the Fox River watershed and the Wetland Bank is also located in the same watershed, in Greenwood Township,McHenry County, Illinois. NOW, THEREFORE, for and in consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby 41) mutually acknowledged, it is agreed as follows: 1) RECITALS: The recitals are hereby incorporated herein by this reference. 2) COMPENSATION: Purchaser shall, subject to the terms and conditions hereinafter provided, pay to the Seller the sum of THIRTY-ONE THOUSAND AND ZERO DOLLARS ($31,000.00 hereinafter referred to as the "Purchase Price") for 0.465 certified wetland credits in the Wetland Bank. The Purchase Price shall be paid in the following manner: a) PURCHASE PRICE: Upon receipt of the USACOE approval notice for the Project (hereinafter referred to as "Permit Approval Notification"), Purchaser shall pay Seller the Purchase Price as stated herein, or $31,000.00. All payments hereunder shall be made to SLOUGH CREEK JOINT VENTURE. If the balance of the Purchase Price is not paid by the end of the fifth business day after receiving the Permit Approval Notification, interest on the balance of the Purchase Price will accrue at the rate of ten percent (10%) per annum. Upon payment of the Purchase Price, Seller shall notify the USACOE that Purchaser has secured 0.465 acres of credit from the Wetland Bank. b) REQUIRED AMOUNT OF CREDITS: Should the wetland credits required by the USACOE be increased or decreased from the time of Agreement execution to the time Purchase Price has been paid, the Agreement shall be modified to reflect an adjusted Purchase Price based on the same price per acre as originally set out in this Agreement, if Seller has such credits available. c) TERMINATION: If after one hundred and twenty (120) days after the Effective Date Purchaser has not received the Project Permit, then at any time thereafter until Purchaser receives the Project Permit either party may Amok 2 terminate this Agreement by written notice to the other party and the parties shall have no further obligations hereunder. If Seller terminates Agreement, Seller shall return the Earnest Money to Purchaser. 3) SELLER'S PERFORMANCE INDEMNITY: In consideration of the Purchase Price, Seller affirms that it has sufficient wetland credits released by the USACOE in the Wetland Bank to satisfy the wetland credits required by Purchaser and hereby does sell such credits to Purchaser. Purchaser shall have no obligation to perform any of the responsibilities of the Seller, or satisfy any other obligations of Seller now or hereafter as set forth by the USACOE in the development and maintenance of the Wetland Bank. 4) NOTICES: Any notices required or permitted hereunder shall be sufficiently given if delivered by overnight courier, by United States mail, return receipt requested, or by facsimile to the parties hereto as follows: 411) If to Seller: Mr. Steve Weller EcoLogic Planning, Inc. 4250 W. Tanglewood Road Bloomington, Indiana 47404 Phone: (812) 935-7078 Fax: (812) 935-7079 If to Purchaser: Mr. Michael Hall,P.E. City of Elgin 150 Dexter Court Elgin, IL 60120 Phone (847) 931-5960 Fax: (847)931-5965 Any notice given pursuant hereto by overnight courier shall be effective as of delivery; any notice given pursuant hereto by First Class United States mail, return receipt requested, shall be effective as of the third business day following its posting, and any 3 © notice given pursuant hereto by facsimile shall be effective as of receipt of a confirmation by the sending party. 5) PRIOR AGREEMENTS: This Agreement shall supersede any and all prior understandings and agreements between the parties hereto, whether written or oral, with respect to the subject matter hereof and may be amended only by a written instrument executed by or on behalf of both Seller and Purchaser. 6) APPLICABLE LAW: Seller and Purchaser shall be contractually bound to this Agreement, which shall be governed by the laws of the state of Illinois and subject to the requirements of any applicable federal laws or regulations. Changes in federal, state, or local laws, which might have otherwise impacted this Agreement, shall not be enforced retroactively after execution of this Agreement. Each party shall be held harmless for damages sustained by .•- the other party as a result of changes in federal, state, or local laws or their interpretation or enforcement. 7) SUCCESSORS AND ASSIGNS: This Agreement shall inure to the benefit of and be binding upon the successors and assigns of Seller and Purchaser , as the case may be. and their respective successors and assigns. Neither party hereto shall assign any interest hereunder without the prior written approval of the other first hand. 8) CONTRACT ACCEPTANCE: This Agreement is null and void if not executed within thirty (30) days of the effective date on the first draft of Agreement or date first draft of Agreement is sent to Purchaser. This time limitation may be extended upon written approval by the parties to this Agreement. 4 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed III on the day and year first above written. PURCHASER: CITY OF ELGIN By: SELLER: SLOUGH CREEK JOINT VENTURE By: IIISteven Weller Manager 1 III 5