08-189 AgreementResolution No. 08 -189
RESOLUTION
AUTHORIZING EXECUTION OF A THIRD AMENDMENT TO
BOWES CREEK ANNEXATION AGREEMENT WITH TOLL IL, L.P.
AND LO LAND ASSETS, L.P.
(Bowes Creek Country Club — 3600 Bowes Road)
WHEREAS, the owners of certain property commonly known as Bowes Creek Country Club
have proposed that the annexation agreement between the owners and the City of Elgin concerning
said property be amended; and
WHEREAS, after due notice as required by law, a public hearing on said proposal was held
by the corporate authorities of the City of Elgin; and
WHEREAS, the proposed Third Amendment to Annexation Agreement with Toll IL, L.P.
and LO Land Assets, L.P., is in the best interests of the City of Elgin.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ELGIN, ILLINOIS, that Ed Schock, Mayor, and Diane Robertson, City Clerk, be and are hereby
authorized and directed to execute, on behalf of the City of Elgin, the Third Amendment to
Annexation Agreement with Toll IL, L.P. and LO Land Assets, L.P., a copy of which is attached
hereto.
s/ Robert Gilliam
Robert Gilliam, Mayor Pro Tern
Presented: August 13, 2008
Adopted: August 13, 2008
Vote: Yeas: 5 Nays: 0
Attest:
s/ Diane Robertson
Diane Robertson, City Clerk
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THIS INSTRUMENT PREPARED BY
AND RETURN TO:
William A. Cogley
Corporation Counsel
City of Elgin
150 Dexter Ct.
Elgin, Illinois 60120
THE ABOVE SPACE FOR RECORDER'S USE
THIRD AMENDMENT
TO
BOWES CREEK ANNEXATION AGREEMENT
(BOWES CREEK COUNTRY CLUB)
THIS THIRD AMENDMENT TO ANNEXATION AGREEMENT ( "Third
Amendment') made and entered into this � day of �u �— . 2008, by and between
the CITY OF ELGIN, Illinois, a municipal corporation of the Counties of Cook and Kane, in the
State of Illinois (hereinafter referred to as the "City "), TOLL IL, L.P., an Illinois limited
partnership ( "Developer or Toll") and LO Land Assets, L.P., a Delaware limited partnership
( "Owner ").
WHEREAS, Toll IL, L.P. is the legal title holder of a portion of the property proposed to
be affected by this Third Amendment and the Developer as that term is defined in the Second
Amendment to the Bowes Creek Annexation Agreement; and
WHEREAS, LO Land Assets, L.P., a Delaware limited partnership is the legal title
holder of a portion of the property proposed to be affected by this Third Amendment, and
37 WHEREAS, the property is generally located south of Bowes Road, east of Corran Road,
38 north of McDonald Road and west of Nolan Road and legally described on Exhibit A, attached
39 hereto and made a part hereof (which real property, for convenience, is hereinafter referred to
40 as the "Subject Property"); and
41
42 WHEREAS, as indicated above, Toll is currently the legal title owner of certain portions
43 of the Subject Property (such portions being herein referred to as the "Toll Property") and
44 Owner is the legal title owner of certain portions of the Subject Property (such portions being
45 herein referred to as the "Owner Property"). Both Owner Property and Toll Property are more
46 particularly described on Exhibit E.
47
48 WHEREAS, Owner has granted Toll, and Toll possesses, certain option rights (the
49 "Option Rights ") to acquire legal title to portions of the Owner Property from time to time.
50 Owner, by virtue of its `ownership of the Owner Property and by virtue of separate written
51 agreements between Owner and Toll, possesses certain rights exercisable under certain
52 circumstances to become the Developer under this Agreement and applicable laws, rules and
53 regulations. If those rights are properly exercised under the applicable circumstances, then the
54 portions of the Subject Property for which Owner would be entitled to become Developer
55 would include (1) those portions of the Owner Property not acquired by Toll through the
56 exercise of the stated Option Rights, and (2) certain other portions of the Subject Property (e.g.
57 the Open Space Parcels) conveyed by Owner to Toll or at Toll's direction to the City, or to Toll's
58 designee or other third parties. However, in no event will Owner be deemed the Developer for
59 Lot(s) comprising the Toll Property or Lot(s) acquired by Toll from Owner pursuant to the
60 exercise of Toll's Option Rights; and
61
62 WHEREAS, the City entered into an Annexation Agreement for the Subject Property
63 dated February 28, 2001, with the predecessor owners of the Subject Property (the "Annexation
64 Agreement "); and
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66 WHEREAS, the City entered into a First Amendment to the Annexation Agreement
67 dated June 25, 2003 with the predecessor owners of the Subject Property (the "First
68 Amendment "); and
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70 WHEREAS, the City entered into the Second Amendment to the Annexation Agreement
71 for the Subject Property bearing the date of January 26, 2005 ( "Second Amendment"), with
72 Developer and others; and
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74 WHEREAS, Owner, Developer and the City (collectively the "Parties "), after full
75 consideration recognize the many advantages and benefits resulting from amending the Second
76 Amendment; and
77
78 WHEREAS, the Mayor and City Council of the City ( "Corporate Authorities ") have
79 duly set a date, time and place for a public hearing on this Third Amendment and have caused
80 due notice to be made of said public hearing through publication in the Daily Courier News, a
81 newspaper of general circulation in the community and the City has held such public hearing;
82 and
83
84 WHEREAS, the Corporate Authorities of the City, after due and careful consideration,
85 have concluded that the amendment to the Second Amendment on the terms and conditions
86 hereinafter set forth is in the best interests of the City.
87
68 NOW, THEREFORE, in consideration of the mutual promises and covenants contained
89 herein, the sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
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91 1. This Third Amendment is made pursuant to and in accordance with the
92 provisions of Section 11 of the Illinois Municipal Code (65 ILCS 5/11 - 15.E -1 et seq. 2007) and in
93 the exercise of the home rule power of the City.
94
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95 2. The foregoing recitals are incorporated herein as if fully set forth herein. In the
96 event of an inconsistency between the terms and conditions of this Third Amendment and the
97 terms and conditions of the Second Amendment, the terms and conditions of this Third
98 Amendment shall control.
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100 3. In Paragraph 3.B. of the Second Amendment, the subparagraph beginning with
101 the word "ARTICLE _" on the bottom of page 5 and ending with the words "enforceability of
102 the Article." at the top of page 6, is hereby amended and restated as follows:
103
104 "General. The Lots and dwelling units within the
105 Property are intended for the housing of persons 55 years of
106 age or older, and the following requirement shall apply
107 pursuant to the Fair Housing Amendments Act of 1988 and
108 the Illinois Fair Housing Act (collectively the "Fair Housing
109 Acts ")::
110
111 (i) Except as may be otherwise permitted
112 pursuant to Section _ (d) and (e) in the provisions of
113 this paragraph, each Lot or dwelling unit on the
114 Subject Property, if occupied, shall be occupied by at
115 least one individual 55 years of age or older (the "Age
116 Qualified Occupant');
117
118 (ii) no person under nineteen (19) years of
119 age shall occupy or reside on a Lot or in a dwelling
120 unit on the Subject Property;
121
122 (iii) the housing facility or community
123 publishes and adheres to policies and procedures that
124 demonstrate the intent required under this
125 subparagraph; and
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127 (iv) the housing facility or community
128 complies with rules issued by the Secretary for
129 verification of occupancy, which shall - -
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131 (I) provide for verification by reliable
132 surveys and affidavits; and
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134 (II) include examples of the types of
135 policies and procedures relevant to a
136 determination of compliance with the
137 requirement of clause (iii). Such surveys and
138 affidavits shall be admissible in administrative
139 and judicial proceedings for the purposes of
140 such verification.
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142 These provisions are intended to be consistent with, and are
143 set forth in order to comply with the Fair Housing Acts
144 regarding,. discrimination based on familial status. Declarant,
145 so long as it is a Member of the Association, or thereafter the
146 Association, acting through its board of directors, shall have
147 the power to amend these provisions, without the consent of
148 the Members, for the purpose of making these provisions
149 consistent with the Fair Housing Acts, as it may be amended,
150 the regulations adopted pursuant thereto, and any judicial
151 decisions arising thereunder or otherwise relating thereto, in
152 order to maintain the intent and enforceability."
153
154 4. In Paragraph 3.13. of the Second Amendment, subparagraphs
155 a, b, c, d and a new (e) commencing at the top of page 6 are hereby amended
156 and restated as follows:
157
158 "a. Except as may otherwise be permitted pursuant
159 to Section _ (d) and (e) in the provisions of this paragraph,
160 each Lot or dwelling unit on the Subject Property, if occupied,
161 shall be occupied by at least one individual 55 years of age or
162 older (the "Age Qualified Occupant"), provided, however,
163 that once a Lot or dwelling unit is occupied by the Age
164 Qualified Occupant, other Qualified Residents (as hereinafter
165 defined) of that Lot or dwelling unit may continue to occupy
166 a Lot or dwelling unit on the Subject Property, regardless of
167 the termination of the Age Qualified Occupant.
168 Notwithstanding the above, at all times, at least eighty
169 percent (80 %) of the Lots or dwelling units within the Subject
170 Property shall be occupied by at least one individual 55 years
171 of age or older.
172
173 b. No Lot or dwelling unit on the Subject Property
174 shall be occupied by any person under the age of 19 years of
175 age. For the purposes of these provisions the terms "occupy ",
176 "occupies ", "occupant", "occupancy" or "reside" shall mean
177 staying overnight on a particular Lot or in a particular
178 dwelling unit on the Subject Property for at least ninety (90)
179 days in any consecutive twelve (12) month period. For the
180 purposes of these provisions the terms "Resident" or
181 Qualified Resident" is defined to mean any of the following
182 persons occupying a Lot or dwelling unit on the Subject
183 Property:
184
185 i. Any Age Qualified Occupant;
186 ii. Any person 19 years of age or oOer
187 occupying a Lot or dwelling unit with an Age
188 Qualified Occupant; and
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189 iii. Any person 19 years of age or older who
190 occupied a Lot or dwelling unit with an Age Qualified
191 Occupant and who continues, without interruption, to
192 occupy the same dwelling unit after termination of the
193 Age Qualified Occupant's occupancy thereof."
194
195 C. Nothing in these provisions are intended to
196 restrict the ownership of or transfer of title to any Lot or
197 dwelling unit; however, no owner may occupy the Lot or
198 dwelling unit unless the requirements of these provisions are
199 met, nor shall any owner permit occupancy of the Lot or
200 dwelling unit in violation of these provisions. Developer shall
201 be responsible for (i) including a statement that the Lots or
202 dwelling units within the Property are intended for the
203 housing of persons 55 years of age or older, in conspicuous
204 type in any lease or other occupancy agreement or contract of
205 sale relating to such owner's Lot or dwelling unit, which
206 agreements or contracts shall be in writing and signed by the
207 tenant, purchaser, and (ii) clearly disclosing such intent to any
208 prospective tenant, purchaser or other potential occupant of
209 the -Lot or dwelling unit. Every lease of a Lot or dwelling unit
210 shall provide that failure to comply with the requirements
211 and restrictions of these provisions shall constitute a default
212 under the lease.
213
214 d. Any Owner, in writing, may request that the
215 Board of Directors may make an exception to the
216 requirements of this Section _ with respect to his or her Lot
217 or dwelling unit. The Board of Directors may, but not shall
218 not be obligated to, grant exceptions in its sole discretion,
219 provided that the requirements for exception from the Act
220 would still be met.
221
222 e. Notwithstanding the restrictions set forth
223 herein regarding age restrictions, Toll IL, L.P., as the
224 Developer of the Subject Property and the Declarant reserves
225 a right to sell Lots or dwelling units to persons between the
226 ages of 50 and 55, inclusive years of age; provided, such sales
227 shall not affect the Subject Property's compliance with all
228 applicable state and federal laws under which the Subject
229 Property may be developed and operated as an age restricted
230 community."
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232 5. Paragraph 3.E. of the Second Amendment (at the top of page 9) is hereby
233 amended by inserting the following sentences at the end of said paragraph:
234
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235 "The recordation of the Final Plat of Subdivision for
236 Phase 1 recorded on February 24, 2006 and the recordation of
237 the Final Plat of Subdivision for Phase 2 recorded on April 20,
238 2007, shall be deemed to have satisfied time limits for final plat
239 approval for such phases provided for in the City's
240 subdivision code. The City hereby grants the Developer an
241 extension for the time limit for final plat approval for the
242 remaining Phases 3 and 4 on the Subject Property with the
243 timing for the final plat approval and recording of the final
244 plats for these phases to be accomplished by the Developer as
245 soon as is reasonably practicable taking into account market
246 conditions."
247
248 6. The sum of $285,000 in the fifth line of Paragraph 11.B. of the Second
249 Amendment is hereby further amended to read $275,000.
250
251 7. Paragraph 11.B. of the Second Amendment is hereby amended by inserting the
252 following sentence at the end of said paragraph:
253
254 "The southeast lift station shall be sized to serve Phase 4 of
255 the Bowes Creek Country Club and other properties and shall
256 be designed with a submersible pump with a 3000 P.E.
257 capacity. The City agrees to reserve 588 PE of capacity in that
258 lift station to serve Phase 4 and the remaining capacity shall
259 belong to the City to use at its discretion and Developer shall
260 not be entitled to any recapture for the excess capacity in the
261 southeast lift station. The payment by the Developer to the
262 City in the amount of $275,000 shall be made by the
263 Developer to the City as follows: (a) prior to the City's
264 acceptance of the Phase I lift station, $175,000.00 shall be paid
265 to the City, and (b) prior to the City's acceptance of the Phase
266 II lift station, $100,000.00 shall be paid to the City."
267
268 8. Paragraph 12 of the Second Amendment is hereby amended by adding a new
269 subparagraph D thereof as follows:
270
271 "D. The parties acknowledge that the City has commenced
272 construction of the Bowes Road Booster Pump Station
273 Modifications and that such improvements will serve and
274 benefit the Subject Property. Owner and Developer agree that
275 the proportionate share of the costs for the Subject Property of
276 the Bowes Road Booster Pump Station Modifications being
277 performed by the City is in the amount of $25,516. Developer
278 agrees to and shall pay the sum of $25,516 for such costs to the
279 City prior to December 31, 2008.
280
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281 9. Paragraph 25A of the Second Amendment Agreement provides in part that the
282 Developer shall construct the Clubhouse Facility pursuant to the architectural specifications to be
283 mutually agreed to by the City and the Developer. The parties hereto agree that the architectural
284 specifications for the Clubhouse Facility to be constructed by the Developer shall be those
285 prepared by PHN Architects dated May 14, 2008, attached hereto as Exhibit B (the "Subject
286 Clubhouse Plans "). The City and the Developer agree that the Clubhouse Facility will be
287 constructed by the Developer in conformance with the Subject Clubhouse Plans.
288 Notwithstanding the foregoing, and not withstanding anything to the contrary in the Subject
289 Clubhouse Plans or anything to the contrary in the Second Amendment Agreement or in this
290 Third Amendment Agreement, it is agreed and understood that the so- called Turnstand included
291 within the Subject Clubhouse Plans will be bid as an alternate as part of the construction contract
292 bid for the Clubhouse Facility and will not be constructed either as part of the Clubhouse Facility
293 or as part of the Golf Course unless the City elects to proceed with same and notifies the
294 Developer in writing to award the bid alternate for the Turnstand as part of the construction
295 contract for the Clubhouse Facility. If as expected the cost for the construction of the
296 Clubhouse Facility exceeds the original budget limitation of $3,000,000 any additional costs for
297 the construction of the Tumstand shall be paid by the City. The City and the Developer
298 acknowledge that the cost for the construction of the Clubhouse Facility was subject to the
299 budget limitation of $3,000,000 as provided for in the Golf Course Budget Review document as
300 part of Group Exhibit M in the Second Amendment, under line item "Golf Clubhouse Building ",
301 10,000 Square Foot Each Floor, budget items 2785 and 2788 listed as "Clubhouse (10,000 sf
302 finished at $300 sf) ". The City and the Developer further agree that the cost of the construction
303 of the Clubhouse Facility pursuant to the Subject Clubhouse Plans will be in excess of the
304 original budget limitation for the Clubhouse Facility of $3,000,000 with the current estimated
305 cost for the construction of the Clubhouse Facility pursuant to the Subject Clubhouse Plans being
306 in the amount of $3,900,000 as set forth in the Bowes Creek Country Club Clubhouse Budget
307 prepared by Shales McNutt Construction dated April 17, 2008, attached hereto as Exhibit C.
308 Accordingly, the first $3,000,000 in construction costs for the Clubhouse Facility will be paid by
309 the Developer, and in connection therewith Developer shall be entitled to fee credits as described
310 in Paragraph 25K of the Second Amendment. Construction costs for the Clubhouse Facility
311 pursuant to the Subject Clubhouse Plans in excess of said budget amount of $3,000,000
312 (currently estimated at $900,000), and any additional construction costs arising from any other
313 changes requested by the City and approved by Developer, will be paid by the City in cash as
314 such expenses are incurred (such cash payments to be made either as reimbursements directly to
315 the Developer or as payments directly to the applicable contractor or subcontractor, as
316 reasonably determined by the Developer.) Notwithstanding the foregoing, and notwithstanding
317 anything to the contrary in paragraph 25A of the Second Amendment or in Group Exhibit M of
318 the Second Amendment, the parties further agree as follows:
319
320 A. The architect for the Clubhouse Facility PHN Architects has submitted eight (8)
321 addendums and one reimbursement expense request to its original contract for
322 payment. The parties hereto agree as follows with respect to such eight (8)
323 contract addendums and one reimbursement expense request:
324
325 (1) Addendum 1 in the amount of $15,576.25, Addendum 5 in the amount of
326 $15,000, Addendum 6 in the amount of $4,860 and reimbursable expense
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327 request 1 in the amount of $3,315 are shared expenses of the City and the
328 Developer and accordingly will be paid by the Developer and in
329 connection therewith Developer shall be entitled to fee credits as
330 described in paragraph 25K of the Second Amendment for fifty percent
331 (50 %) of such expenses being fee credits in the amount of $19,375.63.
332 Such fee credits for such expenses in the amount of $19,375.63 shall not
333 be subject to the limitation on fee credits of not to exceed $8,000,000
334 provided for in Paragraph 25K of the Second Amendment.
335
336 (2) Addendum 2 in the amount of $27,441.25, Addendum 3 in the amount of
337 $7,720, Addendum 7 in the amount of $40,500 and Addendum 8 in the
338 amount of $8,800 are the responsibility of the City and shall be paid by
339 the City to PHN Architects within thirty (30) days of the entry into this
340 Third Amendment Agreement.
341
342 (3) Addendum 4 in the amount of $5,035 is not an acceptable charge by the
343 architect and will not be paid by either the City or the Developer.
344
345 10. Paragraph 25D of the Second Amendment is hereby amended by inserting the
346 following sentences at the end of said paragraph:
347
348 "The parties agree that the restroom facility building, also known as a comfort station, to
349 be constructed on the Golf Course adjacent to the green for hole 3 and the tee for hole 4 (the
350 "Subject Restroom Building ") shall be completely constructed by the Developer in conjunction
351 with the initial Golf Course improvements except that the Developer may initially provide for
352 temporary water and sanitary service facilities for the Subject Restroom Building in accordance
353 with applicable City regulations and subject to the approval of the City's Engineer. For the
354 purposes of clarification, all improvements for the Subject Restroom Building shall be completed
355 by the Developer as part of the initial construction of the Golf Course improvements including,
356 but not limited to, sinks, toilets and all plumbing connections thereto. The temporary water and
357 sanitary service for the Subject Restroom Building authorized by this Section shall consist of
358 temporary connection to such permanent plumbing fixtures and improvements in the nature of
359 either a temporary well, septic system or holding tanks but such temporary water and sanitary
360 service shall not include any facilities commonly known as portable or temporary toilets. All
361 costs relating to such temporary water and sanitary facilities, including but not limited to, the
362 construction, installation, maintenance, operation and removal of such temporary water and
363 sanitary facilities, shall be paid for by the Developer. No later than the extension of permanent
364 water and sanitary utilities for the portion of the residential development of the Subject Property
365 in the vicinity of the Subject Restroom Building the Developer at its cost shall remove such
366 temporary water and sanitary facilities from the Subject Restroom Building and connect the water
367 and sanitary facilities in the Subject Restroom Building to the permanent water and sanitary
368 utilities to be constructed on the Subject Property. All costs of the permanent utilities serving the
369 Subject Restroom Building and the adjacent portions of the Subject Property shall be paid by the
370 Developer. Notwithstanding anything to the contrary herein, it is agreed and understood that any
371 costs incurred or to be incurred by the Developer in any way relating to the temporary water and
372 sanitary service for the Subject Restroom Building shall not be considered a part of and shall be
D
373 in addition to the payments to be made by the Developer pursuant to Paragraph 25H of the
374 Second Amendment."
375
376 11.
Paragraph 25.E. of the Second Amendment is hereby amended and restated as
377 follows:
378
379
"E. Developer shall commence construction of the
380
Clubhouse Facility no later than thirty (30) days after a
381
complete set of plans, contracts and the contractors for the
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Clubhouse Facility have been mutually approved by the City
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and the Developer, and the required building permits have
384
been issued in connection therewith, provided the building
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permit is issued between April 30, 2008 and October 1, 2008.
386
In the event the building permit is issued after October 1,
387
2008, Developer shall commence construction of the
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Clubhouse Facility no later than the latter to occur of thirty
389
(30) days after the required building permits have been issued
390
in connection therewith or April 30, 2009. Developer shall
391
apply for all building permits and other permits required for
392
the Clubhouse Facility and diligently pursue obtaining same
393
no later than thirty (30) days after a complete set of plans,
394
contracts and the contractors for the Clubhouse Facility have
395
been mutually approved by the City and the Developer.
396
Commencement of the Clubhouse Facility shall be deemed to
397
occur when footings have been poured. The actual date of
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such commencement shall be deemed to be the "Clubhouse
399
Construction Commencement Date ". "
400
401 12.
Paragraph 25.17, of the Second Amendment is hereby amended and restated as
402 follows:
403
404
"F. Developer shall diligently pursue and use its
405
commercially reasonable efforts to complete the Clubhouse
406
Facility within twelve (12) months following the Clubhouse
407
Construction Commencement Date. The Developer shall
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have the customary benefit of reasonable extensions for
409
typical force majeure conditions such as labor disputes,
410
adverse weather conditions and other such events causing
411
delays which are outside Developer's control.
412
Notwithstanding the foregoing or anything else to the
413
contrary herein, Developer shall in any event complete
414
construction of the Clubhouse Facility no later than the later
415
to occur of (i) three (3) months prior to the date the Golf
416
Course opens for play, or (ii) one year (1) from the date the
417
Club House construction , commences as provided fop' in
418
paragraph 25.E above, subject only to force majeure
419
conditions. The construction of the Clubhouse Facility shall
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420 be deemed completed when a final occupancy permit
421 therefore has been issued by the City and such facility is
422 turned over to the City and is available to be opened to the
423 public."
424
425 14. Paragraph 25G of the Second Amendment is hereby amended by inserting the
426 following sentences at the end of said paragraph:
427
428 "Any personal property on the Golf Course, the
429 Clubhouse Facility or within any other improvements located
430 thereon shall be simultaneously conveyed by the Developer to
431 the City by a Bill of Sale free and clear of any claims of any
432 third parties."
433
434 15. Paragraph 25.K. of the Second Amendment is hereby amended by inserting the
435 following sentences at the end of said paragraph:
436
437 "The parties agree that Owner is entitled to the Fee
438 Credits for the Lot(s) comprising the Owner Property, and Toll
439 is entitled to the Fee Credits for the Lot(s) comprising the Toll
440 Property. Owner will assign to Toll all Fee Credits allocated to
441 all Lot(s) acquired by Toll from Owner pursuant to the exercise
442 of Toll's Option Rights. Toll's possession of Fee Credits must be
443 evidenced by written assignment(s) of Fee Credits from Owner.
444 Neither Owner or Toll shall apply to the City for a Fee Credit
445 unless Owner or Toll (as the case may be) is the entity entitled to
446 the Fee Credit in question. Owner and Toll will seek payment
447 only from one another, and not the City, in the event either
448 Owner or Toll has obtained a Fee Credit from the City belonging
449 to the other party. Owners and Toll's rights to their respective
450 Fee Credits are personal and therefore such rights shall not be
451 transferred to any other entity or developer without Owner or
452 Toll's (as the case may be) express written consent, even if the
453 subject Lot(s) have been conveyed to a third party developer or
454 builder. Without limiting the foregoing, Owner shall have no
455 right to consent to a transfer or assignment of Fee Credits for
456 Lot(s) comprising the Toll Property (such transfer rights shall be
457 personal to Toll) and Toll shall have no right to consent to a
458 transfer or assignment of Fee Credits for Lots comprising
459 portions of the Owner Property not acquired by Toll through the
460 exercise of Toll's stated Option Rights (such transfer rights shall
461 be personal to Owner). "
462
463 16. Section 25 of the Second Amendment is hereby amended to include the following
464 new Paragraph 25.5.:
465
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466 "S. The City acknowledges that the City Finance
467 Director, or his designee, are hereby authorized on behalf of
468 the City to approve the construction plans (and any changes
469 thereto), construction contracts and contractors, as well as all
470 change orders issued in connection with the Clubhouse
471 Facility."
472
473 17. Sheets 6 and 7 of Exhibit E to the Second Amendment, said sheets being identified
474 as the "Preliminary Engineering Plan Sanitary Sewer & Water Main Plan Southeast', are hereby
475 replaced by Exhibit D hereto. The parties agree that said Sheets 6 and 7 have only been
476 amended for the purposes of (a) showing a 3000 PE lift station in lieu of the 24,000 PE lift station
477 identified on the original sheets, and (b) showing the new off -site access to the sanitary sewer
478 force main shown on page 4 of 6 of the Preliminary Engineering Plan.
479
480 18. Except as specifically modified herein, the terms and conditions of the Second
481 Amendment are hereby ratified and acknowledged by the parties as being in full force and
482 effect.
483
484 19. This Third Amendment may be executed in several counterparts, all of which
485 shall be an original and all of which shall constitute the one and the same Agreement.
486
487 20. Notices or other writings to be served upon Developer or Owner in connection
488 with the Second Amendment and this Third Amendment shall be given in the manner set forth
489 in Paragraph 42 as follows:
490
491 If to Owner:
492
493 Lo Land Assets, L.P.
494 c/o Tri Pacific Capital Advisors, LLC
495 Attn: Geoffrey S. Fearns
496 2020 Main Street, Suite 1100
497 Irvine, California 92614
498 Facsimile: (949) 724 -1919
499
500 If to Developer:
501
502 TOLL IL, L.P.
503 250 Gibraltar Road
504 Horsham, PA 19044
505 Attn: Douglas Yearley, Regional President and
506 Mark Kessler, General Counsel and Senior Vice President
507 Telephone: 215- 938 -8000
508 Facsimile: 215 - 938 -8255
509
510 and
511
512 TOLL IL, L.P.
11
513 1153 W. Dundee Road
514 Arlington Heights, IL 60004
515 Attn: Keith Anddrson, Group President
516 Telephone: 847-590-5100
517 Facsimile: 847- 590 -5640
518
519 IN WITNESS WHEREOF, the Elgin Corporate Authorities, Owner and Developer have
520 hereunto set their hands and seals and have caused this instrument to be executed by their duly
521 authorized officials and the corporate seal affixed hereto, all on the day and year first above
522 written.
523
524 THE CITY OF ELGIN, ILLINOIS, an Illinois
525 municipal corporation
526
527 ATTEST:
528 !A
529 By: By:
530 Its: City Clerk Its: Mayor
531
532
533 TOLL IL, L.P., an Illinois limited partnership
534
535 BY: TOLL IL GP CORP., an Illinois corporation
536 Its: General Partner
537 '
538 By:`i1�S
5 39 Its:d 1-^
540
541
542
543 LO LAND ASSETS, LP, a Delaware limited
544 partnership
545
546 By: LE LAND ASSETS, LLC, a Delaware
547 limited liability company
548 Its: General Partner
549
550
551 By.
552 Print i�me: f j kjlA
553
554
Its: lC�'_�R�.bG1r�L^T
555 F: \Legal Dept \Agreement \Annexation -Bowes Creek Third Amendment WACclean1212 -08dm
556
12
THIRD AMENDMENT TO BOWES CREEK ANNEXATION AGREEMENT
(BOWES CREEK COUNTRY CLUB)
12 -22 -08
State of California )
County of L,Va q L )
On 'f � = a a _ `- D D _ _ before me Ck " y ( . 2 e rK
personally appeared - pall- 0- VU k who proved to me on the basis
of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within
instrument and acknowledged to me that he /she /they executed the same in his/her /their
authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
JANICE J. ZERR
Commission # 1549701 z
WITNESS my hand and official seal. , Notary Public - California 5
Orange County
My Comm. Expires Feb 3, 2009
Signature: ; = -Uwe �/✓
U' (Seal)
40158 \1188477vl
557
558
EXHIBIT LIST
559
560
Exhibit A:
Legal Description of Subject Property
561
562
Exhibit B:
Bowes Creek Country Club New Golf Clubhouse Architectural Plans Prepared by
563
PHN Architects dated May 14, 2008
564
565
Exhibit C:
Bowes Creek Country Club - Clubhouse Budget Prepared by Shales McNutt
566
Construction Dated April 17, 2008
567
568
Exhibit D:
Revised sheets 6 and 7 of Preliminary Engineering Plans Sanitary Sewer and
569
Water Main Plans Southeast
570
571
Exhibit E:
Bowes Creek Country Club Land Ownership Reconciliation.
572
13
EXHIBIT A
BOWES CREEK ESTATES ANNEXATION LEGAL DESCRIPTION
PARCEL I:
THAT PART OF THE EAST HALF OF SECTION 25, TOWNSHIP 41 NORTH,
RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS
FOLLOWS:
COMMENCING AT A FOUND IRON ROD AT THE NORTHEAST CORNER OF
THE SOUTHEAST QUARTER OF SAID SECTION 25; THENCE SOUTH 00 °09'35"
EAST, ALONG THE EAST LINE OF SAID SOUTHEAST QUARTER, A DISTANCE
OF 16.24 FEET TO THE SOUTHERLY LINE OF BOWES ROAD FOR A POINT OF
BEGINNING; THENCE CONTINUING SOUTH 00 °09'35" EAST ALONG SAID
EAST LINE OF SAID SECTION 25, A DISTANCE OF 553.01 FEET TO THE
NORTHERLY LINE OF THE ILLINOIS GULF AND CENTRAL RAILROAD PER
DEED DATED DECEMBER 8, 1886 AND RECORDED AS DOCUMENT NUMBER
9508; THE FOLLOWING TWO COURSES ARE ALONG SAID NORTHERLY LINE;
1) THENCE NORTHWESTERLY ALONG A CURVE CONCAVE SOUTHERLY
HAVING A CHORD BEARING OF NORTH 72 021'29" WEST AND A RADIUS OF
5831.65 FEET, FOR AN ARC LENGTH OF 201.82 FEET TO A POINT OF
TANGENCY; 2) THENCE NORTH 73 °20'58" WEST A DISTANCE OF 1504.99 FEET
TO THE SOUTHERLY LINE OF SAID BOWES ROAD; THE FOLLOWING THREE
COURSES ARE ALONG SAID SOUTHERLY LINE; 1) THENCE EASTERLY
ALONG A CURVE CONCAVE NORTHERLY HAVING A CHORD BEARING OF
Documentl & .ans
1 09/02/04
NORTH 89 035'53" EAST AND A RADIUS OF 1735.02 FEET, FOR AN ARC
LENGTH OF 127.95 FEET TO A POINT OF TANGENCY; 2) THENCE NORTH
87 °29'08" EAST, A DISTANCE OF 299.01 FEET; THENCE EASTERLY ALONG A
CURVE CONCAVE SOUTHERLY HAVING A CHORD BEARING OF NORTH
87 047'15" EAST AND A RADIUS OF 114559.00 FEET, FOR AN ARC LENGTH OF
1206.93 FEET TO THE POINT OF BEGINNING, ALSO INCLUDING THAT PART
OF BOWES ROAD LYING PERPENDICULAR TO THE SOUTH LINE OF BOWES
ROAD AS DESCRIBED ABOVE, ALL IN KANE COUNTY ILLINOIS
CONTAINING 13.01 ACRES OF LAND MORE OR LESS.
PARCEL2:
THOSE PARTS OF THE SOUTH HALF OF SECTION 25, THE NORTH HALF OF
SECTION 36 AND THE NORTHEAST QUARTER OF SECTION 35 ALL IN
TOWNSHIP 41 NORTH, RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN,
DESCRIBED AS FOLLOWS:
COMMENCING AT A FOUND IRON ROD AT THE NORTHEAST CORNER OF
THE SOUTHEAST QUARTER OF SAID SECTION 25; THENCE SOUTH 00 °09'35"
EAST, ALONG THE EAST LINE OF SAID SOUTHEAST QUARTER, A DISTANCE
OF 770.34 FEET TO A POINT OF INTERSECTION WITH THE SOUTH LINE OF
THE ILLINOIS GULF AND CENTRAL RAILROAD PER DIM RECORDED
Documentl & .ans
2 09/02/04
DECEMBER 8, 1886 AS DOCUMENT NUMBER 9508 FOR A POINT OF
BEGINNING; THENCE CONTINUING SOUTH 00 009'35" EAST ALONG SAID
EAST LINE, A DISTANCE OF 1869.01 FEET TO A FOUND IRON ROD AT THE
NORTHEAST CORNER OF THE NORTHEAST QUARTER OF SAID SECTION 36;
THENCE SOUTH 00 018'36" EAST ALONG THE EAST LINE OF SAID NORTHEAST
QUARTER, A DISTANCE OF 2656.69 FEET TO A FOUND IRON ROD AT THE
SOUTHEAST CORNER OF SAID NORTHEAST QUARTER; THENCE SOUTH
88 031'19" WEST ALONG THE SOUTH LINE OF THE NORTH HALF OF SAID
SECTION 36, A DISTANCE OF 5335.16 FEET TO A FOUND IRON ROD AT THE
SOUTHWEST CORNER OF THE NORTHWEST QUARTER OF SAID SECTION 36;
THENCE SOUTH 88 009'53" WEST ALONG THE SOUTH LINE OF THE
NORTHEAST QUARTER OF SAID SECTION 35, A DISTANCE OF 1.679.35 FEET
TO A FOUND IRON ROD; THENCE NORTH 00 °27'05" WEST, A DISTANCE OF
877.10 FEET TO A FOUND IRON ROD; THENCE NORTH 84 029'44" WEST, A
DISTANCE OF 30.16 FEET TO A LINE 300.00 FEET SOUTHEASTERLY OF AND
PARALLEL WITH THE CENTERLINE OF CORRON ROAD AS MONUMENTED
AND OCCUPIED; THENCE NORTHEASTERLY ALONG A CURVE CONCAVE
NORTHWESTERLY HAVING A CHORD BEARING OF NORTH 30 021'17" EAST
AND A RADIUS OF 4901.00 FEET, FOR AN ARC LENGTH OF 624.57 FEET TO
THE SOUTH LINE OF STURBRIDGE, ACCORDING TO THE PLAT OF
SUBDIVISION THEREOF RECORDED SEPTEMBER 16, 1978 AS DOCUMENT
NUMBER 1479286; THENCE SOUTH 83 040'33" EAST ALONG THE SOUTH LINE
Documentl & .ans
3 09/02/04
OF SAID SUBDIVISION, 1425.81 FEET TO A FOUND CONCRETE MONUMENT
AT THE SOUTHEAST CORNER OF SAID SUBDIVISION BEING ALSO A POINT
ON THE WEST LINE OF THE NORTHWEST QUARTER OF SAID SECTION 36;
THENCE NORTH 00 048'45" EAST ALONG SAID WEST LINE, 1450.58 FEET TO A
FOUND IRON ROD AT NORTHWEST CORNER OF THE NORTHWEST QUARTER
OF SAID SECTION 36; THENCE NORTH 88 °31'25" EAST ALONG THE NORTH
LINE OF SAID NORTHWEST QUARTER, A DISTANCE OF 1320.77 FEET TO THE
WEST LINE OF THE EAST HALF OF THE SOUTHWEST QUARTER OF SAID
SECTION 25; THENCE NORTH 00 046'42" WEST ALONG SAID WEST LINE, A
DISTANCE OF 2645.67 FEET TO THE NORTH LINE OF SAID SOUTHWEST
QUARTER; THENCE NORTH 8803718" EAST ALONG SAID NORTH LINE, A
DISTANCE OF 1308.56 FEET TO THE SOUTHERLY LINE OF A PARCEL
CONVEYED TO COMMONWEALTH EDISON COMPANY PER DEED RECORDED
MARCH 16, 1978 AS DOCUMENT NUMBER 1448597; THENCE ALONG THE
BOUNDARY OF SAID PARCEL FOR THE FOLLOWING THREE COURSES; 1)
THENCE SOUTH 71 058'14" EAST, A DISTANCE OF 220.82 FEET; 2) THENCE
SOUTH 73 020'58" EAST, A DISTANCE OF 772.87 FEET; 3) THENCE NORTH
00 °04'47" WEST, A DISTANCE OF 108.60 FEET TO THE SOUTH LINE OF THE
AFORESAID ILLINOIS GULF AND CENTRAL RAILROAD; THE FOLLOWING
TWO COURSES ARE ALONG THE SOUTH LINE OF SAID RAILROAD; 1)
THENCE SOUTH 73 020'58" EAST, A DISTANCE OF 1550.94 FEET TO A
TANGENT CURVE; 2) THENCE EASTERLY ALONG A CURVE CONCAVE
Document] &.ans
4 09/02/04
SOUTHERLY, HAVING A RADIUS OF 5641.65 FEET FOR AN ARC LENGTH OF
260.03 FEET TO THE POINT OF BEGINNING, ALL IN KANE COUNTY ILLINOIS
CONTAINING 592.07 ACRES OF LAND MORE OR LESS.
Documentl & .ans
5 09/02/04
CORRON ROAD ANNEXATION LEGAL DESCRIPTION
THAT PART OF THE NORTHEAST QUARTER OF SECTION 35, TOWNSHIP 41
NORTH, RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN, KANE
COUNTY ILLINOIS, DESCRIBED AS FOLLOWS:
COMMENCING AT A FOUND IRON ROD AT THE NORTHEAST CORNER OF
THE SOUTHEAST QUARTER OF SECTION 25, TOWNSHIP 41 NORTH, RANGE 7
EAST OF THE THIRD PRINCIPAL MERIDIAN; THENCE SOUTH 00 °09'35" EAST, .
ALONG THE EAST LINE OF SAID SOUTHEAST QUARTER, A DISTANCE OF
2639.35 FEET TO A FOUND IRON ROD AT THE NORTHEAST CORNER OF THE
NORTHEAST QUARTER OF SECTION 36, TOWNSHIP 41 NORTH, RANGE 7
EAST OF THE THIRD PRINCIPAL MERIDIAN; THENCE SOUTH 00 °18'36" EAST
ALONG THE EAST LINE OF SAID NORTHEAST QUARTER, A DISTANCE OF
2656.69 FEET TO A FOUND IRON ROD AT THE SOUTHEAST CORNER OF SAID
NORTHEAST QUARTER; THENCE SOUTH 88 °31'19" WEST ALONG THE SOUTH
LINE OF THE NORTH HALF OF SAID SECTION 36, A DISTANCE OF 5335.16
FEET TO A FOUND IRON ROD AT THE SOUTHWEST CORNER OF THE
NORTHWEST QUARTER OF SAID SECTION 36; THENCE SOUTH 88 °09'53"
WEST ALONG THE SOUTH LINE OF THE NORTHEAST QUARTER OF SAID
SECTION 35, A DISTANCE OF 1679.35 FEET TO A FOUND IRON ROD; THENCE
NORTH 00 027'05" WEST, A DISTANCE OF 877.10 FEET TO A FOUND IRON ROD;
THENCE NORTH 84 029'44" WEST„ A DISTANCE OF 30.16 FEET TO A LINE
300.00 FEET SOUTHEASTERLY OF AND PARALLEL WITH THE CENTERLINE
I:\Bowm \ti tle \CorronRd legal. doc
OF CORRON ROAD AS MONUMENTED AND OCCUPIED TO THE POINT OF
BEGINNING; THENCE NORTH 84 °29'44" WEST, A DISTANCE OF 379.59 FEET
TO A POINT ON THE WESTERLY LINE OF CORRON ROAD; THENCE
NORTHEASTERLY ALONG THE WESTERLY LINE OF CORRON ROAD BEING A
CURVE CONCAVE NORTHWESTERLY HAVING A CHORD BEARING OF
NORTH 32 015'45" EAST AND A RADIUS OF 4571.00 FEET, FOR AN ARC
LENGTH OF 640.47 FEET TO A POINT ON THE WESTERLY EXTENSION OF THE
SOUTH LINE OF STURBRIDGE, ACCORDING TO THE PLAT OF SUBDIVISION
THEREOF RECORDED SEPTEMBER 16, 1978 AS DOCUMENT NUMBER 1479286;
THENCE SOUTH 83 040'33' EAST ALONG THE SOUTH LINE OF SAID
SUBDIVISION, A DISTANCE OF 353.81 FEET TO A POINT ON A LINE 300.00
FEET SOUTHEASTERLY OF AND PARALLEL WITH THE CENTERLINE OF
CORRON ROAD AS MONUMENTED AND OCCUPIED; THENCE
SOUTHWESTERLY ALONG A CURVE CONCAVE NORTHWESTERLY HAVING
A CHORD BEARING OF SOUTH 30 021'17" WEST AND A RADIUS OF 4901.00
FEET, FOR AN ARC LENGTH OF 624.57 FEET, SAID CURVE BEING 300.00 FEET
SOUTHEASTERLY OF AND PARALLEL WITH THE CENTERLINE OF CORRON
ROAD AS MONUMENTED AND OCCUPIED TO THE POINT. OF BEGINNING;
CONTAINING 4.79 ACRES OF LAND, MORE OR LESS.
1:\Bowes \[i de \CorronRdlegal.doc
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Bowes Creek Country Club
Clubhouse Budget
GENERAL REQUIREMENTS 465,331
Sitemrk
1450 Testing
2550 Mist metallpipe
2315 Building excavation
SITEWORK
Concrete
3300 Building
3411 Concrete walks
3410 PmMst intedordeck
CONCRETE
Masonry
4811 Brick
MASONRY
Metals
5120 Structural Steel
Misc Metals
METALS
4/17/2008
Revised
AOVU0t
16716 SF
0 SMC
10,000 SMC
40,477 SMC
20,000 SMC
318,639 SMC
116,112 SMC
35,932 SMC
0 SMC
541,160
4,500
Original
Cost.C-fe Lem
Amunt
2,400
11325SF
General Requirements
98,725
1733 Building Permit
25,000
1734 Builders Risk
10,000
1732 General Llablily Insurance
29,246
1312 Pre-Con Services
15,000
1312 General Conditions
269,000
1311 Fee
84,000
1320 MEP Design Fees
25,585
1543 Crane Rental
7,500
GENERAL REQUIREMENTS 465,331
Sitemrk
1450 Testing
2550 Mist metallpipe
2315 Building excavation
SITEWORK
Concrete
3300 Building
3411 Concrete walks
3410 PmMst intedordeck
CONCRETE
Masonry
4811 Brick
MASONRY
Metals
5120 Structural Steel
Misc Metals
METALS
4/17/2008
Revised
AOVU0t
16716 SF
0 SMC
10,000 SMC
40,477 SMC
20,000 SMC
318,639 SMC
116,112 SMC
35,932 SMC
0 SMC
541,160
4,500
5,500
SMC
6,450
2,400
SMC
88,600
98,725
SMC
99,550
106,625
175,041
306,225
SMC
8.250
11,000
SMC
63,629
-_
89,295
SMC
246,920
406,520
70,000
0
SMC
70,000
0
1M4
25,000
0
25,000
48,000 SMC
8500 SMC
56,500
EXHIBIT C
2 of
Original
Revised
Catagn 1=
Amours
Amount
Source
Wood & Plastics
6100 Misc Carpentry
35,000
35,000
SMC
6110 Framing
35,100
81,855
SMC
6119 Wallfrruss
63,000
75,410
SMC
6112 Interior Bloddng
3,500
5,250
SMC
6450 Interior trim
60,000
75,000
SMC
6220 Bar/casework
40,000
50,000
SMC
6440 Pro shop fixtures
60,000
60,000
SMC
7461 Cement sitting
15,955
0
SMC
7462 Siding trim
3,047
0
SMC
7400 Soffit
4,082
9,230
SMC
7600 Fascia board
5,531
6,031
SMC
7699 Frieze board
4,382
3,651
SMC
WOOD & PLASTICS
329,597
401,427
Thermal & Moisture
7610 Metal Roof
30,000
34,000
SMC
7310 Shing Roof
22,000
39500
SMC
7711 Soft gutter, downspouts
4,560
25,000
SMC
EPDM Roof
0
28,300
SMC
Plaster
0
105,000
SMC
THERMAL &MOISTURE
56,560
231,800
Doors & Windows
8211 Doors, Frames, Hardware
22,000
72,000
SMC
8300 Rolling overhead door
3,000
8,000
SMC
8500 Wood windows
69,000
78,000
SMC
8580 Interior glass
1,500
4500
SMC
8213 Door install
6,714
26,834
SMC
8590 Wmdow install
4,952
8,749
SMC
Access Hatch
0
5,259
SMC
DOORS & WINDOWS
107,166
203,342
Finishes
9250 Drywall
78,400
82,163
SMC
9680 Carpet
18280
16,800
SMC
9310 Ceramic file
48,680
57,370
SMC
9329 Ouarry file
15,301
21,096
SMC
9312 Slate
11,693
12,300
SMC
9205 Acoustical file ceiling
15,000
16,656
SMC
9910 Painting
58,948
74,948
SMC
9200 FRP panels
3,833
6,930
SMC
Sealed Concrete
0
7,180
SMC
FINISHES
250,135
295,443
2 of
(L 6/30/201 Jim Hengtgen - Clubhouse Budget Comparison Rev 4 -17 -08 pdf V Pa e 3'
- 9
3d4
Original
Revised
J1e1D
Am,,nt
Amon t
aScur
Specialties
10810 Toilet partitions
5,800
0
SMC
10820 Toilet accessories
2,950
9,750
SMC
10521 Fire extinguishers
2,000
2,000
SMC
10440 Interior siqnaqe (non decorative'
2,500
5,000
SMC
10825 Install accessories
2,000
inc
SMC
10800 Lockers
35,000
30,000
Treeforms
11450 Kitchen Equipment
200,000
235,000
Premier
10310 Fireplaces
16,000
40,000
SMC
SPECIALTIES
256,250
321,750
Mechanical
15300 Fire Protection
75.500
93,000
SMC
15400 Plumbing
220,000
171,000
SMC
15700 FNAC
125,000
181,700
SMC
MECFMICAL
420,500
445,700
Electrical
16050 Electrical
230,000
368,500
SMC
16530 Security
6,000
25,000
Fox
16720 Low Voltage
15,000
15,000
SMC
1680 Muzak
15,000
15,000
SMC
ELECTRICAL
266,000
423,500
Furniture, Fiftres, Accessories
9912 Furniture
85,000
86,730
JEI
9912 Office, Furniture
15,000
14500
JEI
9912 Decorative Lighting
15,000
16,640
JEI
9912 Window Treagnents
15,000
30,420
JEI
9912 Decorative Signage
10,000
20,000
JEI
9912 Accessories
20,000
25,850
JEI
FF&A
160,000
194,140
Subtotal
2,763,009
3,627,907
Contingency
234,856
272,093
TOTAL
2,997,865
3,900,000
3d4
EXHIBIT D
Revised Sheets 6 & 7 of the Preliminary Engineering Plans
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