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