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11-138 I Resolution No. 11-138 RESOLUTION AUTHORIZING EXECUTION OF A FIRST AMENDMENT TO PUBLIC IMPROVEMENTS CONSTRUCTION AGREEMENT WITH PINGREE LLC, PINGREE CREEK, L.L.C., WENNLUND FARM, L.L.C., NESLER& LAKE-CRE, LLC,NESLER& LAKE-LOTS, LLC, WEST POINT GARDENS HOMES, LLC, WEST POINT GARDENS SOUTH, LLC, WYNDHAM DEERPOINT HOMES, INC. AND HPI-ELGIN, LLC FOR OTTER CREEK INTERCEPTOR SEWER PHASES 4A AND 4B AND OTTER CREEK INTERCEPTOR SEWER AND WATER MAIN PHASES 5A AND 5B BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that David J.Kaptain,Mayor,and Kimberly A.Dewis,City Clerk,be and are hereby authorized and directed to execute a First Amendment To Public Improvements Construction Agreement with Pingree LLC,Pingree Creek,L.L.C., Wennlund Farm,L.L.C.,Nesler&Lake-CRE, LLC,Nesler& Lake-Lots, LLC, West Point Gardens Homes, LLC, West Point Gardens South, LLC, Wyndham Deerpoint Homes,Inc. and HPI-Elgin,LLC for Otter Creek Interceptor Sewer Phases 4A and 4B and Otter Creek Interceptor Sewer and Water Main Phases 5A and 5B,a copy of which is attached hereto and made a part hereof by reference. s/ David J. Kaptain David J. Kaptain, Mayor Presented: July 27, 2011 Adopted: July 27, 2011 Vote: Yeas: 6 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk FIRST AMENDMENT TO PUBLIC IMPROVEMENTS CONSTRUCTION AGREEMENT THIS AMENDMENT is made and entered into this27th day of July , 2011 by and between THE CITY OF ELGIN, a municipal corporation, in the Counties of Kane and Cook, State of Illinois (hereinafter referred to as "City") and PINGREE LLC, an Illinois limited liability company (hereinafter referred to as "Crown"), PINGREE CREEK, L.L.C., a limited liability company (hereinafter referred to as "Shodeen"), WENNLUND FARM, L.L.C., an Illinois limited liability company (hereinafter referred to as "Wennlund Farm"), NESLER & LAKE-CRE, LLC, an Illinois limited liability company, as assignee and successor in interest to Meier Farm Associates Limited Partnership, an Illinois limited partnership, NESLER & LAKE-LOTS, LLC, an Illinois limited liability company, as assignee and successor in interest to Nesler Road Limited Partnership, an Illinois limited partnership, WEST POINT GARDENS HOMES, LLC, an Illinois limited liability company, as an assignee and a successor in interest to Nesler Road Limited Partnership, an Illinois limited partnership, and WEST POINT GARDENS SOUTH, LLC an Illinois limited liability company, assignee and a successor owner to a portion of the West Point Gardens Subdivision property (hereinafter collectively referred to as "West Point"), WYNDHAM DEERPOINT HOMES, INC., an Illinois corporation, hereinafter referred to as "Wyndham"), and HPI-ELGIN, LLC, an Illinois limited liability company (hereinafter referred to as "HPI"). WITNESSETH: WHEREAS, the City, Crown, Shodeen, Wennlund Farm, West Point, Wyndham and HPI previously entered into that certain Public Improvements Construction Agreement dated February 22, 2006 (hereinafter referred to as the "Agreement"); WHEREAS, the Agreement provides for the procedures for the construction of the Otter Creek Interceptor Sewer Phases 4A and 4B and the Otter Creek Interceptor Sewer and Water Mains phases 5A and 5B all as depicted on the plan entitled "Sewer and Water Improvements" prepared by Robinson Engineering Ltd. revised December 2, 2005, attached to the Agreement as Exhibit 3 (hereinafter collectively referred to as the "Public Improvements"), payment for the costs of the construction of the Public Improvements, the payment of recapture for certain costs of the Public Improvements by certain benefited properties as identified herein, and acceptance of the Public Improvements by the City; and WHEREAS, the Agreement designated Crown and Wennlund Farm as the construction managers for the construction of the Public Improvements; and WHEREAS, pursuant to the Agreement, Crown and Wennlund undertook to construct the Public Improvements in conformance with the Final Engineering Plans and in conformance with all applicable City ordinances and standards and other requirements of law and agreed to pay all of the Costs for the Public Improvements in excess of Ten Million Dollars ($10,000,000) subject to recapture as provided for in the Agreement; and 1 WHEREAS, all of the Public Improvements with the exception of the HPI Force Main (which is described in Section 2 below) have now been completed, have been dedicated to and accepted by the City which is responsible for the operation and maintenance thereof (Such completed, dedicated and accepted Public Improvements are hereinafter referred to as the "Project"); and WHEREAS, Crown and Wennlund Farm have provided the City's finance director with a complete accounting of all costs associated with the completed Project, the "Project Costs", and the final amount of the Project Costs have been determined to be $21,048,842.77 and the Costs Advanced by Crown and Wennlund Farm, which are subject to recapture as provided in the Recapture Ordinance, have been determined to be $11,048,842.77; and WHEREAS, the parties are entering into this Amendment to amend the Agreement to: provide for the return of all security posted by Crown and Wennlund Farm to guarantee completion and payment of the Public Improvements pursuant to Section 7 of the Agreement; release and relieve Crown and Wennlund Farm from all further obligations to advance payment for and to construct the HPI Force Main; to obligate the owners and developers of the HPI Property which is legally described in Exhibit 6 to the Agreement to fund and construct the HPI Force Main when the HPI Property is developed in accordance with the procedures and requirements set forth in the Agreement; and to provide a credit against certain future recaptures otherwise payable to Crown and Wennlund Farm to the owners and developers of the HPI Property for financing and funding the HPI Force Main; and WHEREAS, terms used in the Agreement when used in this Amendment shall, unless another definition is provided herein, shall have the same meaning when used in this Amendment. NOW, THEREFORE, for and in consideration of the mutual promises, agreements, and undertakings as set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Incorporation of Recitals. The recitals set forth above are incorporated herein as if fully set forth herein. 2. HPI Force Main. As used herein the term "HPI Force Main" refers to that portion of the 14 inch force main from station 23+48.11 within the HPI Property to the outfall within the Highland Woods subdivision to the south as identified on Exhibit 3 attached to the Agreement as "Proposed force main by Crown/Shodeen" which shall not be greater than 9,545 lineal feet in length. In accord with the Agreement, Crown and Wennlund Farm submitted to the City and the City Engineer reviewed and approved a supplement to Costs of Public Improvements of $628,074.27 for the estimated costs of the 9,545 lineal feet of the HPI Force Main which shall replace the original estimated cost of $232,180.00 for 4,465 lineal feet of 10 inch force main indicated on Exhibit 10 of the Agreement. 2 \� 3. Return of Security Posted To Guarantee Completion and Payment. All security including performance bonds, cash and letters of credit posted by Crown and Wennlund Farm with the City prior to commencement of the construction of the Public Improvements, not previously returned to Crown and Wennlund Farm, shall be returned to Crown and Wennlund Farm and no additional security shall be required of Crown and Wennlund Farm for performance or warranty work associated with the Public Improvements upon execution of this Amendment. 4. Construction of the HPI Force Main. Crown and Wennlund Farm are hereby released and relieved of all obligations to advance monies for Costs of Public Improvements for the HPI Force Main and to construct the HPI Force Main in accordance with the provisions and procedures set forth in the Agreement. At such time as the HPI Property is developed, the owners and developers of the HPI Property shall be responsible for permitting and constructing and paying all costs and expenses required to permit and construct the HPI Force Main. Such construction shall be undertaken pursuant to the provisions and procedures set forth in the Agreement and shall include the posting with the City a performance bond, cash or letter of credit in the amounts and under the terms as set forth in Elgin Municipal Code Section 18.20.050C and a payment bond as required in 30 ILCS 550/0.01 et seq. for the HPI Force Main. The amounts of such performance bond, cash or letter of credit, shall be in the amount of 110% of the approved engineer's estimate of cost thereof. Easements over the HPI Property shall be granted without cost to the City. The contractor(s) chosen for the construction of the HPI Force Main shall be subject to the prior approval of the City, Crown and Wennlund Farm provided that approval is not reasonably withheld. Upon completion of the construction and upon review and recommendation by the City Engineer, the owners and developers shall dedicate and the City Council shall accept the HPI Force Main. Such acceptance by the City shall be consistent with applicable City ordinances and procedures. 5. Credit Against Recaptures. As consideration for undertaking the obligation to finance and construct the HPI Force Main, Crown, Wennlund Farm and the City hereby agree that from and after construction and acceptance of the HPI Force Main, that the owners and developers of the HPI Property shall be entitled to a credit in the amount of the actual cost of the construction of the HPI Force Main (including costs associated with engineering, inspection, surety, permit, municipal review fees and construction management fees per the original Agreement), as certified by the City Engineer, which may then be applied against the first monies due to be paid to Crown and Wennlund Farm pursuant to the Recapture Ordinance (the "HPI Credit'). Costs associated with mass earthwork grading shall not be applied toward the HPI Credit. 6. Amendment to Recapture Ordinance. Upon execution of this Amendment, the City agrees to adopt a Supplement to the Recapture Ordinance attached as Exhibit 12 to the Agreement providing for the HPI Credit described in Section 5 above. Crown and Wennlund Farm acknowledge that the granting of the HPI Credit will reduce the amount received by them under the Recapture Ordinance. Crown, Wennlund Farm, West Point, Wyndham, and HPI hereby on behalf of themselves and their successors, assigns and grantees of their properties consent and agree to such Amendment to the Recapture Ordinance; 3 �,, West Point and Wyndham hereby further consent and agree on behalf of themselves and their successors, assigns and grantees of their properties to make the recapture payments pursuant to the terms provided for in the Recapture Agreement; and HPI hereby further consent and agree on behalf of itself and the successors, assigns and grantees of the HPI Property to make the recapture payments pursuant to the terms provided for in the Recapture Agreement as amended by this Amendment to Recapture Agreement after application of the HPI Credit. Crown, Wennlund Farm, West Point, Wyndham, and HPI hereby on behalf of themselves and their successors, and assigns and grantees of their properties, hereby consent and agree to the propriety, necessity and legality of Recapture Ordinance and Amendment to Recapture Ordinance and the payments required therein and the HPI Credit provided for therein and do further hereby agree to and do waive any and all rights to any and all legal or other challenges or defenses to such Recapture Ordinance and the payments required therein and hereby agree and covenant on behalf of themselves and their successors, assigns and grantees of their properties, not to sue the City or maintain any other legal action or defense against the City with respect to such Recapture Ordinance, Amendment to Recapture Ordinance and payments and the HPI Credit. 7. Notices. All notices and other communications to be given hereunder by any party, shall be in writing and sent by personal delivery, overnight courier with evidence of receipt, or certified or registered mail, return receipt requested, postage prepaid, addressed: If to City: City of Elgin 150 Dexter Court Elgin, IL 60120 Attn: City Clerk With a copy to: City of Elgin 150 Dexter Court Elgin, IL 60120 Attn: Corporation Counsel If to Crown: c/o Crown Community Development 1751A West Diehl Road Naperville, IL 60563 Attn: Daniel J. Olsem If to Wennlund Farm: Wennlund Farm LLC 17 North First Street Geneva, IL 60134 Attn: David A. Patzelt If to Pingree Creek LLC: Pingree Creek LLC c/o Shodeen Incorporated 17 North First Street Geneva, IL 60134 Attn: David A. Patzelt 4 If to Nesler & Lake-CRE, c/o Hinsdale Bank & Trust LLC: 25 E. First Street Hinsdale, IL 60521 Attention: Mark Connelly If to Nesler & Lake-Lots, c/o Hinsdale Bank & Trust LLC: 25 E. First Street Hinsdale, IL 60521 Attention: Mark Connelly If to West Point Gardens West Point Gardens South LLC South, LLC 220 Honey Lake Ct N. Barrington, IL 60010 Attention: Wade B. Light If to Wyndham: Wyndham Deerpoint Homes, Inc. 605 Lindsay Circle North Aurora, IL 60542 Attn: Richard M. Guerard If to HPI: HPI-Elgin, LLC 6860 Frontage Road, Suite 100 Burr Ridge, IL 60527 Attn: Land Development or at such other addresses as the parties may designate to the other by written notice in the manner provided herein. Any such notices or elections shall be effective upon delivery, if personally delivered, one (1) day after delivery by the overnight courier or two (2) days after depositing the same in the United States mail. 8. Miscellaneous. A. This Amendment is and shall be deemed construed to be the joint and collective work product of the parties hereto, and as such, this Amendment shall not be construed against any party, as the otherwise purported drafter of same by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict in terms or provisions, if any, contained herein. B. This Amendment shall be construed under the laws of the State of Illinois. The parties agree that venue shall be proper only in the Circuit Court for the Sixteenth Judicial Circuit, Kane County, Illinois. C. This Amendment shall inure to the benefit of, and be binding upon, the parties hereto, the successors in title of the parties, and each of them, their respective successors, grantees, lessees, and assigns, and upon successor corporate authorities of the City and successor municipalities. 5 D. This Amendment may be executed in any number of counter-parts and duplicate originals, each of which shall be deemed an original, but all of which shall constitute one in the same instruments. E. This Amendment constitutes a covenant running with the land of the parties referred to or in, binding upon the parties hereto, the successors in title of the parties and each of them, all grantees, successors and assigns of the respective parties hereto, including successor corporate authorities and successor municipalities of the City. The City shall record a memorandum of this agreement placing of record the terms, provisions and obligations of this Amendment. F. Except for: the changes made herein with respect to the construction of the HPI Force Main, the granting of the HPI Credit to be applied against recaptures otherwise payable to Crown and Wennland Farm for Costs Advanced for the Project and providing for the passage of an Amendment to the Recapture Ordinance and the provisions hereof which memorialize: the completion and acceptance by the City of all Public Improvements other than the HPI Force Main, need to return all security posted by Crown and Wennland Farm to guarantee completion and payout and the total amount of Costs Advanced by Crown and Wennland Farm which are subject to recapture, all other provisions of the Agreement remain in force and effect and shall remain applicable to and shall govern construction of the HPI Force Main. In the event of a conflict between a provision set forth in this Amendment and a provision in the Agreement, the provision of this Amendment shall govern and control. IN WITNESS WHEREOF, the parties have executed this Amendment on the date and year first above written. THE CITY OF ELGIN, an Illinois municipal Attest: corporation By: /(/1,7 ��°` k( "/,�,',,`� Lc David J' apta , Its Mayor Kimberly A. Dewis, City Clerk HPI-ELGIN, LLC, PINGREE, LLC, , an Illine limited liability IIPI ELGIN, LLC, an Illinois limited corn any liability company By: rig . Ar fill A.. J By: Its: / ./- / WENNLUND FARM, LLC, an Illinois limited liability corn any 4.; By: adeOr' Its: A&ewT 4 6 • PINGREE CREEK, LLC, an Illinois limited liability co • :.ny By: Its: LAKE—CRE, LLC, an Illinois limited liability company (as assigner of MEIER FARM AS OCIATES LIMA • PARTNERSHIP) By: Its: S u NESLER & LAKE—LOTS, LLC, an Illinois limited liability compan, (as assignee of NESL R RO LIMI p 1 P• RTNERSHIP) By: Its: •JI WEST POINT GARDENS HOMES, LLC, an Illinois limited liab' ity company By: :loge ItsL/ WEST POINT GARDENS SOUTH LLC, an Illinois limited liability com any By: WYNDHAM DEERPOINT HOMES, INC., an Illinois corporation ) / By: �� >�Z Its: ,4i.c .zer F:\Legal Dept\Agreement\Otter Creek-Public Improvements Const Agr-1st Amend-clean-3-22-11.doc 7 \u