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10-112 Resolution No. 10-112 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT REGARDING CERTAIN PUBLIC IMPROVEMENTS IN TALL OAKS SUBDIVISION WITH WYNDHAM DEERPOINT HOMES (Units 1, 2, and 4) 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 an Agreement Regarding Certain Public Improvements in Tall Oaks Subdivision(Units 1,2, and 4)on behalf of the City of Elgin with Wyndham Deerpoint Homes,a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: June 9, 2010 Adopted: June 9, 2010 Omnibus Vote: Yeas: 5 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk f AGREEMENT REGARDING CERTAIN PUBLIC IMPROVEMENTS IN TALL OAKS SUBDIVISION (Units 1, 2, and 4) THIS AGREEMENT made this 9th day of June , 2010, by and between WYNDHAM DEERPOINT HOMES, an Illinois general partnership ("Wyndham"), and CITY OF ELGIN, an Illinois municipal corporation (the "City"). WITNESSETH: WHEREAS, Wyndham is the owner of the territory comprising what has been designated as Units 1, 2, and 4 in the Tall Oaks Subdivision in the City of Elgin (hereinafter collectively referred to as the "Subject Property"); and WHEREAS, Wyndham has commenced certain development activities in relation to the Subject Property; and WHEREAS, Wyndham has requested that the City accept certain public improvements constructed in the Subject Property including the public streets, street lighting and the public utilities; and WHEREAS, the parties have identified other matters in issue between them in regard to the Subject Property; and WHEREAS, Wyndham may not be the builder of dwelling units in the Subject Property, but typically sells, transfers, and assigns the right to build homes, and the concurrent obligations related to home building, to another entity or entities; and WHEREAS, the City has certain concerns about accepting the streets in an area where so few dwelling units have actually been constructed, and where the future home builder will have the obligation of constructing sidewalk and of planting parkway trees; and WHEREAS, the parties have discussed the concerns of the City, and the matters in issue between them, and have come to certain understandings regarding same, and desire to reduce said understandings to writing to memorialize their agreement regarding them. NOW THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows: 1. Subject to the terms of this Agreement, the City shall by appropriate Resolution of the City Council accept the public streets, street lighting, street signage, storm sewers, water main, and sanitary sewers, and related appurtenances (hereinafter collectively referred to as the "Public Improvements") in the Subject Property within 60 days of (1) Wyndham having completed installation of the final surface course on the streets in the Subject Property to the satisfaction of the City's Engineer; (2) Wyndham having completed and corrected all outstanding punch list items for the Public Improvements in Units 1, 2 and 3 to the satisfaction of the City's Engineer; (3) Wyndham having posted the Letters of Credit specified in paragraph 4 hereof; and (4) Wyndham having provided to the City an easement for the public improvements located in Unit 3 which serve or benefit Units 1, 2 or 4. Notwithstanding the foregoing, or anything else to the contrary in this agreement, the City's acceptance of such Public Improvements shall not include acceptance of sidewalks or required parkway improvements including trees, mulch, black dirt, and sod (collectively the "Parkway Improvements"). For the purpose of clarification, it is also agreed and understood that the detention facilities and any bike paths within the Subject Property are private improvements and will not be accepted by the City. 2. Upon said acceptance, but subject to the provisions of Paragraph 4 below, the City shall release the Letters of Credit previously posted by Wyndham to secure satisfactory completion of such Public Improvements in the Subject Property. 3. Despite said acceptance, and as an express condition thereof, Wyndham shall have the following obligations: a. Wyndham shall be responsible to repair any damage caused to said Public Improvements, including but not limited to the pavement and curbs and gutters, caused by any and all persons involved in, or resulting from, construction of dwelling units on any of the lots in the Subject Property (hereinafter "Construction Damage") up to and including such time as seventy-five percent (75%) or more of the dwellings to be constructed in each unit of subdivision (i.e., Units 1, 2 or 4) have been issued temporary or permanent occupancy permits. The repair of any Construction Damage shall be limited to the areas reasonably requiring such repair as determined by the City's Engineer and shall be performed in a manner consistent with, and so as to blend into the original, non-damaged Public Improvements as determined by the City's Engineer. Notwithstanding the foregoing, Construction Damage caused by City vehicles or individuals not involved with the construction of dwelling units within the Subject Property shall not be considered to be Construction Damage and shall not be the responsibility of Wyndham to repair. There shall exist a rebuttable presumption that any damage to the Public Improvements shall be considered to be Construction Damage and shall be the responsibility of Wyndham to repair at its cost. In the event Wyndham wishes to contend that certain damage to the Public Improvements is not Construction Damage and not the responsibility of Wyndham to repair, Wyndham shall submit documentation of same to the City Engineer for the City Engineer's consideration. The determination of whether any damage to the Public Improvements constitutes Construction Damage shall be made by the City Engineer which determination shall be binding. At such time 75% of the dwellings to be constructed in Unit 1, 2 or 4 of the subdivision have been issued temporary or permanent occupancy permits, Wyndham shall provide the City Engineer written notice thereof. The City shall then cause the Public Improvements within the applicable unit of subdivision to be inspected and the City shall create a punch list of Construction Damage to the Public Improvements to be repaired by Wyndham at its cost. Wyndham shall repair any Construction Damage identified in such punch list by the City as soon as is reasonably practicable. 2 b. If Wyndham fails to make such repairs to the Public Improvements suffering Construction Damage to the satisfaction of the City's Engineer and to pay the repair costs associated therewith, then the City shall have the right to perform such repairs and to recover the cost thereof from Wyndham. Additionally, if Wyndham fails to make such repairs to the Public Improvements suffering Construction Damage to the satisfaction of the City's Engineer and to pay the costs associated therewith, the City shall have the right to withhold further permits or other approvals for the Subject Property including, but not limited to, building permits and/or occupancy permits until such time as Wyndham makes the repairs to the Public Improvements. Such remedies shall be in addition to any and all remedies the City may have with respect to enforcing and/or collecting on the Letters of Credit referenced in Section 4 hereof. c. Wyndham shall also be responsible for the installation of the planting and live growth of parkway trees, together with appropriate Parkway Improvements on the Subject Property as required by the terms and provisions of the City Code and/or the Annexation Agreement pertaining to the Tall Oaks as originally enacted and thereafter amended, or shall cause the installation of the Parkway Improvements to be completed by others. The installation of the Parkway Improvements shall also be in conformance with the approved final engineering plans for the Subject Property. The installation of Parkway Improvements shall be completed in conjunction with the development of the lot adjacent to the specific Parkway Improvements. d. Wyndham shall also be responsible for the installation of the required sidewalk on each individual lot and in other areas in the Subject Property as required by the approved final engineering plans for the Subject Property or shall cause the installation of the sidewalk to be completed by others. The installation of sidewalks shall be in conformance with the approved final engineering plans for the Subject Property. Notwithstanding the foregoing, or anything else to the contrary in this agreement, upon the occurrence of 90% or more of the dwelling units to be constructed within a unit of subdivision on the Subject Property having been issued temporary or permanent occupancy permits, Wyndham shall complete the installation of all required sidewalks in such unit of subdivision. Additionally, and notwithstanding the foregoing, or anything else to the contrary in this agreement, upon the occurrence of the 10th anniversary of this Agreement and in the event any required sidewalks have not yet been installed in the Subject Property, Wyndham shall complete the installation of all required sidewalks in the Subject Property. 4. a. Wyndham shall, prior to the City's acceptance of the Public Improvements in the Subject Property and prior to expiration or release of its currently outstanding Letters of Credit, post with the City Letters of Credit with respect to each unit of subdivision to secure performance of its obligations under this Agreement in amounts as computed in accordance with the following sub-paragraph b. b. Such Letters of Credit shall be computed per unit in the aggregate amount of(a) ten percent (10%) of the original estimate for underground improvements, plus (b) ten percent (10%) of the original estimate for surface improvements, and plus (c) one 3 hundred ten percent (110%) of the original estimate for the sidewalk and Parkway Improvements. The final computations for the applicable unit of subdivision shall be computed by the Engineering Department of the City in accordance with its established procedures. The portion of each Letter of Credit with respect to the underground improvements shall remain in place for a one (1) year maintenance period. The portion of each Letter of Credit for the surface improvements shall remain in place until such time as seventy-five percent (75%) or more of the dwellings to be constructed in the applicable unit of subdivision have been issued temporary or permanent occupancy permits. The portion of each Letter of Credit for the sidewalk and Parkway Improvements shall remain in effect until such sidewalks and Parkway Improvements have been completed and have been accepted by the City. In the alternative, the currently outstanding Letter of Credit for public improvements to be constructed in the Subject Property may be modified in its terms and reduced as to amount for said purposes. 5. Wyndham shall, prior to the City's acceptance of the public improvements in the Subject Property provide to the City an easement for the public improvements in Unit 3 which serve or benefit Units 1, 2 or 4. 6. Miscellaneous Provisions: a. This Agreement shall not be modified, altered or amended without a further written document signed by each of the parties hereto. b. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each party hereto. c. Venue of any action for enforcement of, or arising out of any breach of, the terms and provisions of this Agreement shall lie in the Circuit Court of Kane County, Illinois. d. Each person signing and delivering this document covenants and warrants that he/she has been duly authorized to do so for and on behalf of the party for whom he/she has taken such action. e. All notices and other communications hereunder shall be in writing and shall be deemed given if personally delivered or mailed by registered or certified mail (return receipt requested) or by courier delivery to the parties at the following addresses (or such other addresses for party as shall be specified by like notice) and shall be deemed received on the date on which so hand-delivered or the second business day following the date on which so mailed or sent by courier: TO THE CITY: WITH A COPY TO: City of Elgin City of Elgin 150 Dexter Court 150 Dexter Court Elgin, Illinois 60120 Elgin, Illinois 60120 Attention: City Manager Attention: Corporation Counsel 4 • TO WYNDHAM: WITH A COPY TO: Wyndham Deerpoint Homes Richard L. Heimberg, Esq. 605 Lindsay Circle Brady& Jensen, LLP North Aurora, Illinois 60542 2425 Royal Boulevard Attention: Mary Krasner and Elgin, Illinois 60123 Richard Guerard IN WITNESS WHEREOF, the parties hereto have entered into and executed this agreement as of the date and year first written above. CITY OF ELGIN WYNDHAM DEERPOINT HOMES 411, By: By d Shock Its Authorized Agent Mayor Attest: � N�City Clerk F:\Legal Dept\Agreement\Wyndham-Tall Oaks Public Improvements-5-5-10.docx 5 ♦ `CI of E<C C' � City of Elgin Agenda Item No. X..* J'1TLD'\6" May 20, 2010 � � 4 TO: Mayor and Members of the City Council FROM: Sean R. Stegall, City Manager Aswan 0 ` ancjailp Stable William A. Cogley, Corporation Counsel ' iiy Gnvernraurot SUBJECT: Proposed Agreement with Wyndham Deerpoint Homes Regarding the Acceptance of Certain Public Improvements in the Tall Oaks Subdivision Units 1, 2 and 4 PURPOSE The purpose of this memorandum is to provide the Mayor and members of the City Council with a proposed agreement with Wyndham Deerpoint Homes regarding the acceptance of certain public improvements in the Tall Oaks Subdivision Units 1, 2 and 4. RECOMMENDATION It is recommended that the City Council approve the proposed agreement regarding the g g acceptance of certain public improvements in the Tall Oaks Subdivision Units 1, 2 and 4. BACKGROUND Wyndham Deerpoint Homes ("Developer") is a developer of the Tall Oaks Subdivision. Developer has completed certain public improvements in Units 1, 2 and 4 of the Tall Oaks Subdivision. Developer is requesting an agreement with the City whereby the City would accept the public improvements despite the typical policy of not accepting public streets for maintenance until such time as 75% of the developable lots in a subdivision have been developed. Given the current and anticipated conditions in the housing market, city staff has negotiated a proposed agreement with the Developer which may be summarized as follows: 1. Within 60 days of(1) Developer having completed installation of the final surface course on the streets in the subject property to the satisfaction of the City's Engineer; (2) Developer having completed and corrected all outstanding punch list items for the public improvements in Units 1, 2 and 3 to the satisfaction of the City's Engineer; (3) Developer having posted the letters of credit specified in Section 4 of the agreement; and (4) the Developer having provided to the City an easement for the public improvements located in Unit 3, which serves Units 1, 2 or 4, the City would accept the public improvements within Units 1, 2 and 4 but not including sidewalks or required parkway improvements. Proposed Agreement with Wyndham Deerpoint Homes May 20, 2010 Page 2 2. Despite the acceptance of the public improvements by the City, the Developer at its expense will be responsible to repair to the satisfaction of the City's Engineer any damage to the public improvements including, but not limited to, the pavement and curbs and gutters, resulting from construction on any of the lots in the development until such time as 75% or more of the dwellings to be constructed within each unit of the subdivision have been issued temporary or permanent occupancy permits. There will exist a rebuttable presumption that any damage to the public improvements shall be considered to be damage which is the responsibility of the Developer to repair. If the Developer fails to make repairs to the public improvements to the satisfaction of the City Engineer, the City will have the right to perform such repairs and to recover the costs thereof from the Developer. The City will also have the right to withhold further permits or approvals for the development including, but not limited to, building permits and/or occupancy permits until such time as the Developer makes the repairs to the public improvements. Such remedies by the City will be in addition to any and all remedies the City may have with respect to enforcing in or collecting the letters of credit referenced in Section 4 of the agreement. At such time 75% of the dwellings to be constructed in Unit 1, 2 or 4 of the subdivision had been issued temporary or permanent occupancy permits, the Developer shall provide the City Engineer written notice thereof The City shall then cause the public improvements within the applicable unit of the subdivision to be inspected and the City shall create a punch list of construction damage to the public improvements to be repaired by the Developer at its cost. Developer shall then repair any construction damage identified in the punch list by the City as soon as is reasonably practicable. 3. Developer shall continue to be responsible for the installation of and the lannin and p g live growth of parkway trees together with appropriate mulch, black dirt and sod as required by city ordinances and/or the annexation agreement pertaining to the Tall Oaks development. The installation of parkway improvements shall be completed in conjunction with the development of the lot adjacent to the specific parkway improvements. 4. The Developer shall also continue to be responsible for the installation of required sidewalks on each individual lot and in other areas in the subject development as required by the approved final engineering plans for the development. The installation of sidewalks shall be in conformance with approved engineering plans for the development. Upon the occurrence of 90% or more of the dwelling units to be constructed within an individual platted area in the development having been issued temporary or permanent occupancy permits, Developer is required to complete the installation of all required sidewalks in such a platted area. Additionally, upon the occurrence of the tenth anniversary of the agreement, in the event any required sidewalks have not yet been installed in the development, unless otherwise agreed to by the City, the Developer is required to complete the installation of all required sidewalks in the development. 411) • Proposed Agreement with Wyndham Deerpoint Homes May 20, 2010 Page 3 5. The Developer prior to the City's acceptance of the public improvements and prior the expiration or release of its currently outstanding letters of credit, shall post with the City maintenance letters of credit and letters of credit with respect to parkway improvements and sidewalks in the amounts as specified in Section 4 of the agreement. 6. The Developer, prior to the acceptance of the public improvements, shall provide the City with an easement for the public improvements located in Unit 3, which serves Units 1, 2 or 4. Such easement will be vacated upon the future platting of Unit 3. COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED None. FINANCIAL IMPACT None. EGAL IMPACT None. ALTERNATIVES 1. The City Council may choose to approve the proposed agreement regarding the acceptance of public improvements as presented or in an amended form. 2. The City Council may choose not to approve the proposed agreement regarding the acceptance of public improvements. Respectfully submitted for Council consideration. WAC/bf Attachment AGREEMENT REGARDING CERTAIN PUBLIC IMPROVEMENTS IN TALL OAKS SUBDIVISION (Units 1,2, and 4) THIS AGREEMENT made this day of , 2010, by and between WYNDHAM DEERPOINT HOMES, an Illinois general partnership ("Wyndham"), and CITY OF ELGIN, an Illinois municipal corporation (the "City"). WITNESSETH: WHEREAS, Wyndham is the owner of the territory comprising what has been designated as Units 1, 2, and 4 in the Tall Oaks Subdivision in the City of Elgin (hereinafter collectively referred to as the"Subject Property"); and WHEREAS, Wyndham has commenced certain development activities in relation to the Subject Property; and WHEREAS, Wyndham has requested that the City accept certain public improvements constructed in the Subject Property including the public streets, street lighting and the public utilities; and WHEREAS, the parties have identified other matters in issue between them in regard to the Subject Property; and WHEREAS, Wyndham may not be the builder of dwelling units in the Subject Property, but typically sells, transfers, and assigns the right to build homes, and the concurrent obligations related to home building, to another entity or entities; and WHEREAS, the City has certain concerns about accepting the streets in an area where so few dwelling units have actually been constructed, and where the future home builder will have the obligation of constructing sidewalk and of planting parkway trees; and WHEREAS, the parties have discussed the concerns of the City, and the matters in issue between them, and have come to certain understandings regarding same, and desire to reduce said understandings to writing to memorialize their agreement regarding them. NOW THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows: 1. Subject to the terms of this Agreement, the City shall by appropriate Resolution of the City Council accept the public streets, street lighting, street signage, storm sewers, water main, and sanitary sewers, and related appurtenances (hereinafter collectively referred to as the "Public Improvements") in the Subject Property within 60 days of (1) Wyndham having completed installation of the final surface course on the streets in the Subject Property to the satisfaction of the City's Engineer; (2) Wyndham having completed and corrected all outstanding punch list r items for the Public Improvements in Units 1, 2 and 3 to the satisfaction of the City's Engineer; (3) Wyndham having posted the Letters of Credit specified in paragraph 4 hereof; and (4) Wyndham having provided to the City an easement for the public improvements located in Unit 3 which serve or benefit Units 1, 2 or 4. Notwithstanding the foregoing, or anything else to the contrary in this agreement, the City's acceptance of such Public Improvements shall not include acceptance of sidewalks or required parkway improvements including trees, mulch, black dirt, and sod (collectively the "Parkway Improvements"). For the purpose of clarification, it is also agreed and understood that the detention facilities and any bike paths within the Subject Property are private improvements and will not be accepted by the City. 2. Upon said acceptance, but subject to the provisions of Paragraph 4 below, the City shall release the Letters of Credit previously posted by Wyndham to secure satisfactory completion of such Public Improvements in the Subject Property. 3. Despite said acceptance, and as an express condition thereof, Wyndham shall have the following obligations: a. Wyndham shall be responsible to repair any damage caused to said Public Improvements, including but not limited to the pavement and curbs and gutters, caused by any and all persons involved in, or resulting from, construction of dwelling units on any of the lots in the Subject Property (hereinafter "Construction Damage") up to and including such time as seventy-five percent (75%) or more of the dwellings to be constructed in each unit of subdivision (i.e., Units 1, 2 or 4) have been issued temporary or permanent occupancy permits. The repair of any Construction Damage shall be limited to the areas reasonably requiring such repair as determined by the City's Engineer and shall be performed in a manner consistent with, and so as to blend into the original, non-damaged Public Improvements as determined by the City's Engineer. Notwithstanding the foregoing, Construction Damage caused by City vehicles or individuals not involved with the construction of dwelling units within the Subject Property shall not be considered to be Construction Damage and shall not be the responsibility of Wyndham to repair. There shall exist a rebuttable presumption that any damage to the Public Improvements shall be considered to be Construction Damage and shall be the responsibility of Wyndham to repair at its cost. In the event Wyndham wishes to contend that certain damage to the Public Improvements is not Construction Damage and not the responsibility of Wyndham to repair, Wyndham shall submit documentation of same to the City Engineer for the City Engineer's consideration. The determination of whether any damage to the Public Improvements constitutes Construction Damage shall be made by the City Engineer which determination shall be binding. At such time 75% of the dwellings to be constructed in Unit 1, 2 or 4 of the subdivision have been issued temporary or permanent occupancy permits, Wyndham shall provide the City Engineer written notice thereof. The City shall then cause the Public Improvements within the applicable unit of subdivision to be inspected and the City shall create a punch list of Construction Damage to the Public Improvements to be repaired by Wyndham at its cost. Wyndham shall repair any Construction Damage identified in such punch list by the City as soon as is reasonably practicable. 2 b. If Wyndham fails to make such repairs to the Public Improvements suffering Construction Damage to the satisfaction of the City's Engineer and to pay the repair costs 441) associated therewith, then the City shall have the right to perform such repairs and to recover the cost thereof from Wyndham. Additionally, if Wyndham fails to make such repairs to the Public Improvements suffering Construction Damage to the satisfaction of the City's Engineer and to pay the costs associated therewith, the City shall have the right to withhold further permits or other approvals for the Subject Property including, but not limited to, building permits and/or occupancy permits until such time as Wyndham makes the repairs to the Public Improvements. Such remedies shall be in addition to any and all remedies the City may have with respect to enforcing and/or collecting on the Letters of Credit referenced in Section 4 hereof. c. Wyndham shall also be responsible for the installation of the planting and live growth of parkway trees, together with appropriate Parkway Improvements on the Subject Property as required by the terms and provisions of the City Code and/or the Annexation Agreement pertaining to the Tall Oaks as originally enacted and thereafter amended, or shall cause the installation of the Parkway Improvements to be completed by others. The installation of the Parkway Improvements shall also be in conformance with the approved final engineering plans for the Subject Property. The installation of Parkway Improvements shall be completed in conjunction with the development of the lot adjacent to the specific Parkway Improvements. d. Wyndham shall also be responsible for the installation of the required sidewalk on each individual lot and in other areas in the Subject Property as required by the approved final engineering plans for the Subject Property or shall cause the installation of the sidewalk to be completed by others. The installation of sidewalks shall be in conformance with the approved final engineering plans for the Subject Property. Notwithstanding the foregoing, or anything else to the contrary in this agreement, upon the occurrence of 90% or more of the dwelling units to be constructed within a unit of subdivision on the Subject Property having been issued temporary or permanent occupancy permits, Wyndham shall complete the installation of all required sidewalks in such unit of subdivision. Additionally, and notwithstanding the foregoing, or anything else to the contrary in this agreement, upon the occurrence of the 10th anniversary of this Agreement and in the event any required sidewalks have not yet been installed in the Subject Property, Wyndham shall complete the installation of all required sidewalks in the Subject Property. 4. a. Wyndham shall, prior to the City's acceptance of the Public Improvements in the Subject Property and prior to expiration or release of its currently outstanding Letters of Credit, post with the City Letters of Credit with respect to each unit of subdivision to secure performance of its obligations under this Agreement in amounts as computed in accordance with the following sub-paragraph b. b. Such Letters of Credit shall be computed per unit in the aggregate amount of(a) ten percent (10%) of the original estimate for underground improvements, plus (b) ten percent (10%) of the original estimate for surface improvements, and plus (c) one 3 hundred ten percent (110%) of the original estimate for the sidewalk and Parkway Improvements. The final computations for the applicable unit of subdivision shall be computed by the Engineering Department of the City in accordance with its established procedures. The portion of each Letter of Credit with respect to the underground improvements shall remain in place for a one (1) year maintenance period. The portion of each Letter of Credit for the surface improvements shall remain in place until such time as seventy-five percent (75%) or more of the dwellings to be constructed in the applicable unit of subdivision have been issued temporary or permanent occupancy permits. The portion of each Letter of Credit for the sidewalk and Parkway Improvements shall remain in effect until such sidewalks and Parkway Improvements have been completed and have been accepted by the City. In the alternative, the currently outstanding Letter of Credit for public improvements to be constructed in the Subject Property may be modified in its terms and reduced as to amount for said purposes. 5. Wyndham shall, prior to the City's acceptance of the public improvements in the Subject Property provide to the City an easement for the public improvements in Unit 3 which serve or benefit Units 1, 2 or 4. 6. Miscellaneous Provisions: a. This Agreement shall not be modified, altered or amended without a further written document signed by each of the parties hereto. b. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each party hereto. c. Venue of any action for enforcement of, or arising out of any breach of, the terms and provisions of this Agreement shall lie in the Circuit Court of Kane County, Illinois. d. Each person signing and delivering this document covenants and warrants that he/she has been duly authorized to do so for and on behalf of the party for whom he/she has taken such action. e. All notices and other communications hereunder shall be in writing and shall be deemed given if personally delivered or mailed by registered or certified mail (return receipt requested) or by courier delivery to the parties at the following addresses (or such other addresses for party as shall be specified by like notice) and shall be deemed received on the date on which so hand-delivered or the second business day following the date on which so mailed or sent by courier: TO THE CITY: WITH A COPY TO: City of Elgin City of Elgin 150 Dexter Court 150 Dexter Court Elgin, Illinois 60120 Elgin, Illinois 60120 Attention: City Manager Attention: Corporation Counsel 4 TO WYNDHAM: WITH A COPY TO: Wyndham Deerpoint Homes Richard L. Heimberg, Esq. 605 Lindsay Circle Brady& Jensen, LLP North Aurora, Illinois 60542 2425 Royal Boulevard Attention: Mary Krasner and Elgin, Illinois 60123 Richard Guerard IN WITNESS WHEREOF, the parties hereto have entered into and executed this agreement as of the date and year first written above. CITY OF ELGIN WYNDHAM DEERPOINT HOMES By: By: Ed Shock Its Authorized Agent Mayor Attest: City Clerk F:\Legal DepnAgreement\Wyndham-Tall Oaks Public Improvements-5-5-10.docx A, 5 ,•OFF,C )1. Memorandum City of Elgin RIDS Date: June 22, 2010 To: Barb Furman, Paralegal From: Jennifer Quinton, Deputy City Clerk Subject: Resolution No. 10-112, Adopted at the June 9, 2010 Council Meeting Enclosed you will find the agreement listed below. Please retain a copy for your records. If you have any questions please feel free to contact our office 847-931-5660 and we will do our best to assist you. Thank you. • Agreement Regarding Certain Public Improvements in Tall Oaks Subdivision with Wyndham Deerpoint Homes (Units 1, 2, and 4)