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17-40 Resolution No. 17-40 RESOLUTION AUTHORIZING EXECUTION OF AGREEMENT WITH DAVID HUANG REGARDING CERTAIN PUBLIC IMPROVEMENTS ASSOCIATED WITH THE DACHING BUSINESS PARK 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 Agreement on behalf of the City of Elgin with David Huang regarding certain public improvements associated with the Daching Business Park, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: March 11, 2017 Adopted: March 11, 2017 Omnibus Vote: Yeas: 8 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk AGREEMENT REGARDING CERTAIN PUBLIC IMPROVEMENTS ASSOCIATED WITH THE DACHING BUSINESS PARK THIS AGREEMENT is made and entered into this 11 th _day of March , 2017, by and between DAVID HUANG (hereinafter referred to as the "Owner"), and the CITY OF ELGIN,an Illinois municipal corporation, (hereinafter referred to as the "City"); and WHEREAS, the property commonly known as the Daching Business Park, 2601 Mason Road, Elgin, Illinois, was annexed into the City of Elgin pursuant to an annexation agreement between the Owner and the City dated July 9, 2014, such property being legally described in Exhibit A attached hereto (hereafter referred to as the "Subject Property"); and WHEREAS, pursuant to such annexation agreement the Owner has provided for the construction of certain public improvements defined therein as the "Specified Utility Extensions" and the "Extended Section of Alft Lane/Mason Road" including the streets,curbs,gutters,sanitary sewers, storm sewers, water mains, street lights, sidewalks, public landscaping and the appurtenances associated with such Specified Utility Extensions and the Extended Section of Alft Lane/Mason Road(hereinafter collectively referred to as the "Public Improvements"); and WHEREAS, the Owner has substantially completed such Public Improvements with the exception of the sidewalks and public landscaping; and WHEREAS, the Owner wishes to have the City accept said Public Improvements immediately even though it is the policy of the City not to accept public streets for city maintenance until such time as seventy percent (70%) of the developable lots in a subdivision have been developed; and WHEREAS, the City has certain concerns accepting the maintenance responsibility for the Public Improvements associated with the Public Improvements until such time as the Subject Property has been developed; and WHEREAS,the parties have discussed the concerns of the City,and the matters and issues between them,and have come to certain understandings regarding same, and desire to reduce said understandings regarding the acceptance of the specified Public Improvements to writing to memorialize their agreement regarding same; and WHEREAS, the City is a home rule unit authorized to exercise any power and perform any function pertaining to its government and affairs; and WHEREAS, the acceptance of public improvements and an agreement regarding same pertains to the government and affairs of the City. NOW, THEREFORE, in consideration of mutual undertakings as set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,the parties hereto agree as follows: 1. The foregoing recitals are hereby incorporated into this agreement. 2. The City and Owner acknowledge that other than the associated public sidewalks and the public landscaping that the subject Public Improvements have been substantially completed. The public sidewalks to be completed are along the south side of Mason Road and along the west side of AIR Lane adjacent to the so called golf driving range property. The public landscaping to be completed are along the south side of Mason Road, along the west side of AIR Lane adjacent to the so-called golf driving range property and along the east side of AIR Lane. The Owner shall at no cost to the City cause the construction and completion of the associated public sidewalks and public landscaping along the south side of Mason Road and the public landscaping along the east side of AIR Lane to the satisfaction of the City Engineer in conjunction with the development of each Lot(hereinafter defined)on the Subject Property. The Owner shall at no cost to the City cause the construction completion of the public sidewalks and public landscaping along the west side of AIR Lane no later than in conjunction with the completion of the public sidewalks and public landscaping along the south side of Mason Road and the public landscaping along the east side of AIR Lane. Notwithstanding the foregoing, or anything else to the contrary in this agreement, Owner shall provide for the construction and completion of all of the associated public sidewalks and public landscaping to the satisfaction of the City Engineer no later than five (5) years from the date of this agreement. The Owner shall also at no cost to the City cause the repair of the broken drain tile on or before June 30,2017. 3. The City shall by appropriate resolution of the City Council accept the Public Improvements, not including the public sidewalks and the public landscaping, within forty-five (45)days after Owner has deposited with the City the Maintenance Security and the Performance Security referred to in Section 4 hereof. The City shall by appropriate resolution of the City Council accept the public sidewalks and public landscaping portions of the Public Improvements within forty-five (45) days after Owner has (a) completed such improvements to the satisfaction of the City Engineer and (b) has deposited with the City the Maintenance Security for the Public Sidewalks and Public Landscaping referred to in Section 4 hereof. 4. Prior to the acceptance of the Public Improvements by the City, other than the public sidewalks and public landscaping, the Owner shall deposit with the City (a) a one-year maintenance bond, letter of credit or cash in a form approved by the City's Corporation Counsel in the amount of ten percent (10%) of the approved engineer's estimate for the Public Improvements,other than the associated public sidewalks and public landscaping,and for the cost for the drain tile repair,in the total amount of$135,114.73 (the"Maintenance Security")and(b)a bond, letter of credit or cash in a form approved by the City's Corporation Counsel in the amount of one hundred ten percent (110%) of the approved engineer's estimate for the associated public sidewalks and public landscaping not installed in the total amount of $122,787.50 (the "Performance Security"). Upon City Council acceptance of the Public Improvements,other than the sidewalks and public landscaping, the City shall return the performance security the Owner has previously deposited with the City for such Public Improvements. Prior to the City's -2- acceptance of the associated public sidewalks and public landscaping,the Owner shall deposit with the City a one-year maintenance bond, letter of credit or cash in a form approved by the City's Corporation Counsel in the amount of ten percent (10%) of the approved engineer's estimate for the associated public sidewalks and public landscaping(the "Maintenance Security for the Public Sidewalks and Public Landscaping"). Upon City Council acceptance of the completed associated public sidewalks and public landscaping,the City shall return the Performance Security previously provided by the Owner to the City for the associated public sidewalks and public landscaping. 5. Prior to the issuance of a building permit for any undeveloped portion of the Subject Property(hereinafter referred to as a "Lot"), the then owner(s) of any such Lot on the Subject Property shall post with the City cash or a letter of credit in the amount of Twenty-five Thousand Dollars ($25,000) per each Lot in a form approved by the City's Corporation Counsel providing the City security against construction damage to the Public Improvements caused by construction activities on the Lot(s)proposed to be developed(the"Construction Damage Security"). Damage to the Public Improvements caused by construction activities on Lots within the Subject Property are hereinafter referred to as "Construction Damage". 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 the then owner(s) of the Lot in question to repair. In the event the then owner(s)wish to contend that certain damage to the Public Improvements is not Construction Damage and not the responsibility of the owners to repair,the owner(s)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. If the then owner(s) fail to make repairs to the Public Improvements suffering Construction Damage to the satisfaction of the City Engineer and to pay the repair costs associated therewith, then the City shall have the right to use the Construction Damage Security posted by the owner(s) to provide for the repairs to the Public Improvements for such Construction Damage. The owner(s) of a Lot being developed shall be responsible for the full costs to repair Construction Damage to the Public Improvements and the amount of the Construction Damage Security posted with the City shall not be a limitation on the then owner's liability to pay for the Construction Damage to the Public Improvements. Following the completion of the construction activities on a Lot in question and the City's inspection of the Public Improvements,and the repair of any Construction Damage,if any,the City shall release the Construction Damage Security. 6. This agreement shall be binding upon the successors and assigns of the parties hereto including, but not limited to, the successor owner(s) of the Subject Property. The Owner shall provide any successor owner(s) of any portion of the Subject Property notice of and a copy of this agreement to inform them of the obligations herein. 7. In the event of any conflict between the terms of this agreement and the terms of the annexation agreement for the Subject Property,the terms of this agreement shall supersede and control. 8. This agreement may be executed in counterparts,each of which shall be an original and all of which shall constitute one in the same agreement. Signatures transmitted by facsimile or e-mail shall have the same legal effect as an original signature. - 3 - IN WITNESS WHEREOF,the parties have entered into and executed this agreement as of the date and year first written above. CITY OF ELGIN DAVID G By: David J. Ko$tain, ayor AT EST: City Clerk FALegal Dept\AgreementWcceptance Agr-Public Improvements-Huang-Daching Business Park-clean-2-14-17.doex -4-