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10-3 Resolution No. 10-3 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH PINGREE, LLC REGARDING CERTAIN PUBLIC IMPROVEMENTS IN THE HIGHLAND WOODS SUBDIVISION AND THE FOY PROPERTY 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 with Pingree LLC on behalf of the City of Elgin regarding certain public improvements in the Highland Woods Subdivision(Neighborhoods A,B,C,D,E,F,H,J,K,N and 0) and the Foy Property, a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: January 13, 2010 Adopted: January 13, 2010 Omnibus Vote: Yeas: 7 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk 12/8/09 AGREEMENT REGARDING CERTAIN PUBLIC IMPROVEMENTS IN HIGHLAND WOODS SUBDIVISION (Neighborhoods "A, B, C, D, E, F, H,J, K,N and 0") AND THE FOY PROPERTY THIS AGREEMENT made this /3 day of 0/0 , 2111111, by and between Pingree LLC, an Illinois limited liability company ("Crown"), and City of Elgin, an Illinois municipal corporation (the "City"). WHEREAS, Crown is the owner of the territory comprising what has been designated as Neighborhoods "A, B, C, D, E, F, H, J, K, N and 0" in the Highland Woods Subdivision and the Foy Property in the City of Elgin such Highland Woods Subdivision being depicted in Exhibit A attached hereto and such Foy Property being depicted in Exhibit B attached hereto (hereinafter collectively referred to as the "Subject Property"); and WHEREAS, Crown has commenced certain development activities in relation to the Subject Property; and WHEREAS, Crown 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, Crown 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; 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. 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, (with the exception of the street lights in Neighborhood J) 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 Crown having completed and corrected all outstanding punch list items for such Public Improvements to the satisfaction of the City's Engineer. 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 park sites, sidewalks or required parkway improvements including trees, mulch, black dirt and sod. For the purposes of clarification, it is agreed and understood that the detention facilities and 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 Crown to secure satisfactory completion of such Public Improvements in the Subject Property. 3. Despite said acceptance, and as an express condition thereof, Crown shall have the following obligations: a. Crown shall be responsible to repair any damage caused to surface improvements within each individually Platted Area (hereinafter defined) in the Subject Property, including to the street pavement, curbs, gutters, street lights, signage, sidewalks and parkway improvements (hereinafter collectively referred to as the "Surface Improvements") 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 not less than 75% of the dwellings to be constructed within a particular individually platted area 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 Surface 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 Crown to repair. There shall exist a rebuttable presumption that any damage to the Surface Improvements shall be considered to be Construction Damage and shall be the responsibility of Crown to repair at its cost. In the event Crown wishes to contend that certain damage to the Surface Improvements is not Construction Damage and not the responsibility of Crown to repair, Crown shall submit documentation of same to the City Engineer for the City Engineer's consideration. The determination of whether any damage to the Surface Improvements constitutes Construction Damage shall be made by the City Engineer which determination shall be binding. b. If Crown fails to make such repairs to the Surface 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 Crown. Additionally, if Crown fails to make such repairs to the Surface 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 2 further permits or other approvals for the Subject Property including, but not limited to, building permits and/or occupancy permits until such time as Crown makes the repairs to the Surface 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. Crown shall also be responsible for the installation of the planting and live growth of parkway trees, together with appropriate mulch, black dirt and sod (collectively the "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 Highland Woods Subdivision 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. Crown 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 an individually Platted Area (hereinafter defined) in the Subject Property having been issued temporary or permanent occupancy permits, unless otherwise agreed to by the City, Crown shall complete the installation of all required sidewalks in such a Platted Area. For the purposes of this agreement an individually Platted Area shall be defined to mean each of the following: Neighborhoods A and B; Neighborhood C; Neighborhoods D, E, F and H; Neighborhood J; Neighborhood K; Neighborhoods N and 0; and the Foy Property. 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, unless otherwise agreed to by the City, Crown shall complete the installation of all required sidewalks in the Subject Property. 4. Crown shall, prior to expiration or release of its currently outstanding Letters of Credit, post with the City Letters of Credit to secure performance of its obligations under this Agreement. Such Letters of Credit shall be in the amount of ten percent (10%) of the original estimate for underground improvements, ten percent (10%) of the original estimate for street pavement, curbs, gutters, street lights (with the exception of Neighborhood J street lights) and signage improvements and one hundred ten percent (110%) of the original estimate for the sidewalk and Parkway Improvements (including also Neighborhood J street lights). The Letters of Credit with respect to the underground improvements shall remain in place for a one year maintenance period. The Letters of Credit for the surface improvements for each Platted Area shall remain in place until such time as not less than seventy-five percent (75%) of the dwellings 3 to be constructed within each Platted Area have been issued temporary or permanent occupancy permits. The Letters of Credit for the sidewalk and Parkway Improvements for each Platted Area shall remain in effect until such sidewalks and Parkway Improvements within each Platted Area have been completed and have been accepted by the City. The Letter of Credit for the Neighborhood J street lights shall remain in effect until such Neighborhood J street lights have been energized and are otherwise completed and accepted by the City. In the alternative, the currently outstanding Letters of Credit for Public Improvements to be constructed in the Subject Property may be modified in their terms and reduced as to amount for said purpose(s). Pursuant to City ordinance, Crown may request, and the City shall grant periodic reductions in the Letter of Credit amounts as improvements are completed. 5. 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: City of Elgin 150 Dexter Court Elgin, Illinois 60120 Attention: City Manager WITH A COPY TO: City of Elgin 150 Dexter Court Elgin, Illinois 60120 Attention: Corporation Counsel 4 TO CROWN: Crown Community Development 1751A West Diehl Road Naperville, Illinois 60563 Attention: Daniel J. Olsem Director of Engineering 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 PINGREE LLC By: Agent Mayor Attest: City Clerk F:\Legal Dept\Agreement\Highland Woods Acceptance Agr-clean 12-8-09.docx 5 ,c.t OF E4C (?, 'ti Agenda Item No. City of Elgin r „iLD„, taPs December 10, 2009 TO Mayor and Members of the City Council , = -i� k FROM: Sean R. Stegall, City Manager t L. -- C1 y scabk William A. Cogley, Corporation Counsel City Government SUBJECT: Proposed Agreement with Pingree LLC Regarding the Acceptance of Certain Public Improvements in the Highland Woods Subdivision and the Foy Property PURPOSE The purpose of this memorandum is to provide to the Mayor and members of the City Council a proposed agreement with Pingree LLC regarding the acceptance of certain public improvements in the Highland Woods Subdivision and the Foy Property. RECOMMENDATION ribk It is recommended that the City Council approve the proposed agreement regarding the acceptance of certain public improvements in the Highland Woods Subdivision and the Foy Property. BACKGROUND Pingree LLC, also known as Crown Community Development, ("Developer") is the developer of the Highland Woods development. Such development consists of both the Highland Woods Subdivision and the Foy Property Subdivision. Developer has completed the public improvements in most of the neighborhoods in the Highland Woods Subdivision and on the Foy Property. Developer has requested 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 70% 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 the Developer having completed and corrected at its expense all outstanding punch-list items, the City would accept the public improvements within the subdivision but not including park sites, sidewalks, required parkway improvements or the street lights in Neighborhood J. r ti Proposed Agreement with Pingree, LLC Regarding the Acceptance of Certain Public Improvements in the Highland Woods Subdivision and the Foy Property December 10,2009 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 Engineer any damage to surface improvements in the subject property including street pavement, curbs, gutters, street lights, signage, sidewalks and parkway improvements caused by any and all persons involved in, 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 a platted area have been issued temporary or permanent occupancy permits. There will exist a rebuttable presumption that any damage to the surface improvements shall be considered to be damage which is the responsibility of the Developer to repair. If Developer fails to make repairs to such surface 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 surface improvements. 3. The Developer shall continue to be responsible for the installation of and the planting and live growth of parkway trees together with appropriate mulch, black dirt and sod as required by City ordinances or the annexation agreement for the 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 #'81) 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 individually 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 10th 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. 5. The Developer prior to the expiration and release of the current outstanding letters of credit shall post with the City maintenance letters of credit and letters of credit with respect to parkway improvements, sidewalks and the street lights in Neighborhood J in the amounts as specified in Section 4 of the agreement. COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED None. A, Proposed Agreement with Pingree, LLC Regarding the Acceptance of Certain Public Improvements in the Highland Woods Subdivision and the Foy Property December 10,2009 rib.* Page 3 FINANCIAL IMPACT None. vovv\Ii, tAL IMPACT None. ALTERNATIVES 1. The City Council may choose to approve the proposed agreement regarding the acceptance of public improvement 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. mg ribk Attachments 4:4OF6.40 City of Elgin Memorandum L it Y '+' + TED FED Date: January 22, 2010 To: Mary Giffort, Paralegal From: Jennifer Quinton, Deputy City Clerk Subject: Resolution No. 10-3, Adopted at the January 13, 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 with Pingree, LLC Regarding Certain Public Improvements in the Highland Woods Subdivision and the Foy Property