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11-54Resolution No. 11 -54 RES OLIJTION AUTHORIZING EXECUTION OF AN AMENDMENT TO AGREEMENT REGARDING PUBLIC IMPROVEMENTS IN THE RANDALL ROSE AUTO MALL SUBDIVISION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Ed Schock, Mayor, and Diane Robertson, City Cleric, be and are hereby authorized and directed to execute an amendment to agreement on behalf of the City of Elgin regarding public improvements in the Randall Rose Auto Mall Subdivision, a copy of which is attached hereto and made a part hereof by reference. s/ Ed Schock Ed Schock, Mayor Presented: March 23, 2011 Adopted: March 23, 2011 Omnibus Vote: Yeas: 7 Nays: 0 Attest: s/ Diane Robertson Diane Robertson, City Clerk AMENDMENT TO AGREEMENT REGARDING PUBLIC IMPROVEMENTS IN RANDALL ROSE AUTO MALL SUBDIVISION THIS AMENDMENT Agreement ( "Amendment Agreement ") is made and entered into this 23 day of- JztrMartiap 2011, by and among Randall 90, LLC, an Illinois limited liability company ( "Randall 90 "), Heath 79, LLC, an Illinois limited liability company ( "Heath "), SWC Rand & Willow, LLC, an Illinois limited liability company ( "SWC ") and Wolf & Laraway, L,LC, an Illinois limited liability company ( "Wolf', with Randall 90, Heath, SWC and Wolf being hereinafter collectively called the "Owners ") , and the City of Elgin, an Illinois municipal corporation (the "City "). _ WHEREAS, the Owners are the developer of the Randall Rose Auto Mall Subdivision in the City of Elgin, Illinois (the "Subdivision ") and continue to own seven (7) of the nine (9) commercial lots ( "Lots ") within the Subdivision; and WHEREAS, the Owners and the City previously entered into an Agreement Regarding Public Improvements in the Randall Rose Auto Mall Subdivision dated November 4, 2009 (the "Subject Agreement "); and WHEREAS, with the exception of the completion of the portion of the public street known as Vantage Drive, the Owners have completed all of the Public Improvements within the Subdivision; and WHEREAS, the Owners have requested the City accept the Public Improvements within the Subdivision other than Vantage Drive and have requested the City enter into this Amendment to the Subject Agreement, as hereinafter provided. NOW, THEREFORE, in consideration of the mutual covenants contained herein, and in consideration of the mutual undertakings set forth in the Subject Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: That Paragraph 1 of the Subject Agreement is hereby amended to read as follows: "1. Within sixty (60) days of Owners having completed and corrected at their expense all outstanding punch list items for the Public Improvements to the satisfaction of the City's Engineer, and Owners having posted with the City the letters of credit referred to in Paragraph 4 hereof, the City shall, subject to the other terms of this Agreement, by appropriate Resolution of the City Council accept the Public Improvements within the Subdivision, with the exception of Vantage Drive." 2. That paragraph 3c of the Subject Agreement is hereby amended to read as follows: "c. Upon the issuance of the final occupancy permit for the sixth (6`h) Lot within the Subdivision, the Developer shall provide a written notice to the City's Engineer requesting that the City's Engineer cause the Public Improvements to be inspected for Pre - Development Damage as defined in this Agreement. The City shall thereafter inspect the Public Improvements and provide to the Owners a punch list of Pre - Development Damage to be repaired by the Owners at their cost. Owners shall repair any such Pre - Development Damage identified in such punch list by the City as soon as is reasonably practicable. In addition to any and all other Pre - Development Damage, it is acknowledged that if, at the time of the issuance of the final occupancy permit for the sixth Lot within the Subdivision, the surface of all or any portion of the Subdivision Streets reasonably requires replacement as determined by the City's Engineer, then the City may require the Owners at their cost to grind off and repave such portion (or all) of the surface of the Subdivision Streets. 3. That Paragraph 4 of the Subject Agreement is hereby amended to read as follows: "4. Owners shall, prior to the expiration or release of its currently outstanding Construction LCs (which the City agrees to release within 60 days following the completion by Owners of all punch list items), post with the City (i) a letter of credit (the "Street Maintenance LC ") in an amount equal to Eighty -Three Thousand Six Hundred Eleven and 71 /100ths Dollars ($83,611.71), being ten percent (10 %) of the original estimate of the cost of the Subdivision Streets (including the streets themselves and the associated curbing, gutters and sidewalks), to secure Owners' maintenance obligations as to the Subdivision Streets, and (ii) a separate letter of credit (the "General Maintenance LC ") in an amount equal to Two Hundred Thirty -Nine Thousand One Hundred Thirty -Six and 65 /100ths Dollars ($239,136.65), being ten percent (10 %) of the original estimate for underground improvements, plus ten percent (10 %) of the original estimate for surface improvements (other than Subdivision Streets), and plus ten percent (10 %) of the original estimate for the sidewalk and parkway landscaping improvements, and (iii) a letter of credit (the "Vantage Drive and Lot Grading LC ") in an amount equal to Eighty -Three Thousand Eight Hundred Thirty and 13 /100ths Dollars ($83,830.13), to secure Owners' obligations to complete the construction of Vantage Drive and to complete the grading for the various lots within the Subdivision. It is further agreed that: (a) The Street Maintenance LC shall remain in place until such time as six (6) of the Lots have been issued final certificates of occupancy, at which time the City shall promptly release same so long as all Pre - Development Damage, if any, has been repaired by the Owners. At such time as six (6) of the Lots have been issued final certificates of occupancy, and prior to the release by the City of the Street Maintenance LC, the -2- Owners shall provide the City's Engineer written notice thereof. The City shall then cause the Public Improvements to be inspected, and the City shall create a punch list of Pre - Development Damage to be repaired by the Owners at their cost. Owners shall repair any Pre - Development Damage identified in such punch list by the City as soon as is reasonably practical; and (b) The General Maintenance LC shall remain in place for one (1) year from the date of release of the Construction LC, at which time the City shall release same; and (c) The Vantage Drive and Lot Grading LC shall remain in place until such time as the Owners have completed the construction of Vantage Drive and have completed the grading for the various Lots within the Subdivision, at which time the City shall release same upon the posting by the Owners of a successor Vantage Drive and Grading Maintenance Bond in the amount of ten percent (10 %) of the Vantage Drive and Lot Grading LC. Notwithstanding anything else to the contrary in this Agreement, Owners shall complete the grading of all Lots within the Subdivision no later than the occurrence of the earliest of: (i) six of the Lots within the Subdivision having been issued final certificates of occupancy or (ii) upon the fifth anniversary of this Amendment Agreement. Notwithstanding anything else to the contrary in this Agreement, Owners shall complete Vantage Drive no later than the occurrence of the earliest of: (i) the application for a building permit for Lots 7 or 8, (ii) six of the Lots within the Subdivision having been issued final certificates of occupancy, (iii) the development of the adjacent property to the north commonly known as Randy's Pumpkin Farm /the Gaitsch property, or (iv) the occurrence of the fifth anniversary of this Amendment Agreement. (d) In the alternative, the currently outstanding Construction LC may be modified in its terms and reduced as to amount in order to meet the requirements of this Agreement with respect to the Street Maintenance LC, the General Maintenance LC and the Vantage Drive and Lot Grading LC." 4. That the terms as utilized in this Amendment Agreement shall be defined as provided for in the Subject Agreement or in the Amendment Agreement. The term "Letter of Credit" or "LCs" shall mean either a letter of credit or a bond in a form as approved by the City's Corporation Counsel. The term "Vantage Drive" shall mean that portion of Auto Mall Drive located north of the north line of Auto Mali Drive between Lot 7 and Lot 8 extending northeasterly to the north line of the Subdivision at the property line of the adjacent property to the north commonly known as Randy's Pumpkin Farm /the Gaitsch property. -3- 5. That in the event of any conflict between the terms of this Amendment Agreement and the terms of the Subject Agreement, the terms of this Amendment Agreement shall supersede and control. That except as specifically amended in this Amendment Agreement, the terms of the Subject Agreement shall remain in full force and effect. The parties hereto have entered into and executed this Amendment Agreement as of the date and year first written above. OWNERS: RANDALL 90, LLC an Illinois limited liability company y By Name: Michael H. Rose Title: Manager Heath 79 LLC an Illinois limited liability company By:z Name: Michael H. Rose Title: Manager SWC Rand &c Willow LLC an Illinois limited Inability company -y By.���s z Name Michael H Rose Title: Manager F:ALegal DeptVAgreement\LFI Auto Mall - Randall 90- Amendment to Agreement- clean- I- 26- 11.doe -4-