18-29 Resolution No. 18-29
RESOLUTION
AUTHORIZING EXECUTION OF A SPONSOR IMPACT FEE, EXCESS COST, AND
CONSTRUCTION AGREEMENT WITH WATERMARK IP IL LLC FOR THE
WATERMARK AT THE GROVE DEVELOPMENT
(Vantage Drive within the Grove at Randall)
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 Sponsor Impact Fee,Excess Cost,and Construction Agreement on behalf
of the City of Elgin with Watermark IP IL LLC for the Watermark at the Grove Development, a
copy of which is attached hereto and made a part hereof by reference.
s/David J. Kaptain
David J. Kaptain, Mayor
Presented: February 28, 2018
Adopted: February 28, 2018
Vote: Yeas: 9 Nays: 0
Attest:
s/Kimberly Dewis
Kimberly Dewis, City Clerk
SPONSOR IMPACT FEE, EXCESS COST,AND CONSTRUCTION AGREEMENT
THIS SPONSOR IMPACT FEE, EXCESS COST, AND CONSTRUCTION
AGREEMENT ("Agreement") is dated as of February 28, 2018 (the "Effective Date"), and is
by and between the CITY OF ELGIN, an Illinois municipal corporation ("City"), and
WATERMARK IP IL LLC, an Illinois limited liability company("Sponsor").
RECITALS
WHEREAS, Sponsor is the manager and a member of Watermark Apartments LLC, an
Illinois limited liability company ("Owner", and collectively with Sponsor, "Watermark").
WHEREAS, Owner is the owner of certain real property located on Vantage Drive
within The Grove in Elgin, Illinois, which real property is legally described in Exhibit A
attached hereto (the "Property").
WHEREAS, Watermark proposes to develop the Property as a 282 unit apartment
complex and to perform certain public improvements to the Property in connection therewith
(collectively, the "Project"). The development of the Property and completion of the Project as
proposed by Watermark is expected to, among other things, generate real estate and sales tax
revenues, create new employment opportunities, and further establish the important "gateway"
development along Randall Road that will increase property values and serve as a catalyst for
future development opportunities in the City.
WHEREAS, to finance the development of the Property, construction of the Project, and
payment of the Impact Fee (defined below), Owner intends to obtain financing (the "HUD
Financing") from the U.S. Department of Housing and Urban Development ("HUD").
WHEREAS, Watermark and the City have determined that certain Impact Fee
Improvements (defined below) for the benefit of the general public are necessary in order to
facilitate the development of the Property and the construction of the Project.
WHEREAS, after due and careful consideration, the Corporate Authorities (defined
below) have determined that the development of the Property and completion of the Project by
Watermark will increase the assessed valuation of real estate within the City, increase tax
revenues to the City, promote increased economic activity within the City, increase employment
opportunities within the City, and are otherwise in the best interest of the City by furthering the
health, safety, and welfare of its residents and taxpayers, and as such, it is in the best interest of
the City to facilitate the development of the Property and the completion of the Project.
WHEREAS. in order to facilitate the development of the Property and the completion of
the Project, the City is willing to undertake the construction of the Impact Fee Improvements
provided that (1) Owner agrees to pay the City an impact fee to reimburse the City for the cost of
constructing the Impact Fee Improvements (the "Impact Fee") in accordance with the terms of
that certain Owner Impact Fee Agreement by and between Owner and the City (the "Owner
Agreement"), and (2) Sponsor agrees to assume certain other obligations related to the Impact
Fee Improvements, all as hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants
and agreements herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties do hereby agree as follows:
1. Definitions. Whenever used in this Agreement, the following terms shall have
the following meanings unless a different meaning is required by the context:
"Construction Contract" means the Construction Contract to be entered into between the
City and Carlson Construction LLC as described in Section 2a of the Owner Impact Fee
Agreement between the City of Elgin and Watermark Apartments LLC, an Illinois limited
liability company, as Owner.
"Corporate Authorities" means the City Council and the Mayor of the City.
"Estimated Costs" means the estimated development costs to be incurred by City for the
construction of the Impact Fee Improvements on the Impact Fee Improvement Properties, which
Estimated Costs are more specifically set forth on Exhibit C attached hereto.
"Final Engineering Plan" means the engineering plan that receives the final approval of
HUD and the City pursuant to Section 2 of this Agreement.
"Final Landscaping Plan" means the landscaping plan that receives the final approval of
HUD and the City pursuant to Section 2 of this Agreement.
"Final Plans" shall have the meaning assigned to such term in Section 2b.
"Final Plat of Subdivision" means the final plat of subdivision for the Property and the
Project that receives final approval of HUD and the City pursuant to Section 2 of this
Agreement.
"Force Majeure" means strikes, shortages of long lead time materials (e.g., structural
steel, precast concrete, and brick), lockouts, acts of God, weather conditions, or other factors
beyond a party's reasonable control and reasonable ability to remedy.
"Impact Fee Improvements" means, collectively, the (1) the Trail, Sidewalk
Improvements and Restoration (2) Right of Way Dedication, including the associated street and
right-of-way improvements, (3) Electrical Improvements, and (4) Landscape and Hardscape
Improvements, all of which Impact Fee Improvements will be constructed and installed by the
City on the Impact Fee Improvement Properties and are more particularly described on Exhibit
C attached hereto.
"Impact Fee Improvement Properties" means the (1) North Space Open Area, (2) Hard
Corner Lot, and (3) Right of Way Dedication, which Impact Fee Improvement Properties are
legally described on Exhibit B attached hereto. A site plan for each of the Impact Fee
Improvement Properties is attached hereto as Exhibit B-1.
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"Owner Impact Fee Agreement" means the agreement between the City of Elgin and
Watermark Apartments, LLC an Illinois limited liability company, as Owner, entered into
simultaneously with this Agreement.
"Person" means any corporation, partnership, individual, joint venture, trust, estate,
association,business, enterprise, proprietorship, or other legal entity of any kind, either public or
private, and any legal successor, agent, representative, or authorized assign of the above.
"Preliminary Engineering Plan" means the preliminary engineering plan prepared by
RWG Engineering, LLC, with latest revision date of November 27, 2017 for the Project and the
Impact Fee Improvements.
"Preliminary Final Plat of Subdivision" means the preliminary draft of the final plat of
subdivision for Watermark at The Grove prepared by Terra Technology Land Surveying, Inc.,
dated last revised February 16, 2018 for the Project and the Property.
"Preliminary Landscaping Plan" means the preliminary landscaping plan prepared by
Stephen Perry Smith Architects, Inc., with the last revision date November 27, 2017 for the
Project and the Impact Fee Improvements.
"Preliminary Plans" means, collectively, the Preliminary Engineering Plan, Preliminary
Final Plat of Subdivision and Preliminary Landscaping Plan.
"Requirements of Law" means all applicable federal, state, and local laws, statutes,
codes, ordinances, resolutions, orders, rules, and regulations, including any City subdivision,
utility, street, zoning,building code, and other development standards and regulations.
2. Required Approval of Final Plans.
a. Approval of Final Plans. As of the Effective Date, the City has reviewed
and approved the Preliminary Plans. Sponsor shall cause Owner to submit the proposed Final
Engineering Plan, Final Plat of Subdivision and Final Landscaping Plan (collectively, the
"Proposed Final Plans") to the City for final approval, which Proposed Final Plans shall
substantially conform to the Preliminary Plans. The Proposed Final Plans may be submitted by
Sponsor to the City for approval in stages.
b. Incorporation of Final Plans. Upon final approval by the City of the
Proposed Final Plans (the approved Final Engineering Plan, Final Plat of Subdivision and Final
Landscaping Plan are herein collectively, the "Final Plans"), the Final Plans shall automatically
be deemed to be incorporated in, and made a part of, this Agreement and shall supersede the
Preliminary Plans without further action by the Corporate Authorities.
c. No Construction Prior to Final Approvals. Sponsor agrees that no
construction, improvement, or development of any kind shall be permitted on any portion of the
Property or the Impact Fee Improvement Properties unless and until the Final Plans are approved
by HUD and the Corporate Authorities in accordance with the Requirements of Law and this
Agreement.
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3. Impact Fee Improvements.
a. General Contractor. Sponsor shall cause Carlson Construction LLC, an
Illinois limited liability company, or another general contractor reasonably acceptable to Sponsor
(such general contractor, the "GC") to submit a guaranteed maximum price construction contract
for the construction of the Impact Fee Improvements on the Impact Fee Improvement Properties
in accordance with the Final Plans (the "Construction Contract") to the City for its review and
approval. Among the terms and conditions of the Construction Contract, the Construction
Contract must recognize Sponsor as the City's designated representative for this project and GC
shall look to Sponsor for any decisions relating to the construction of the Impact Fee
Improvements. The Construction Contract shall also include a condition that such Construction
Contract is subject to and conditioned upon Sponsor having deposited or caused to be deposited
with the City the Bond to guarantee all payments which might become due under the
Construction Contract. Upon final approval of the Construction Contract by the City, the City
shall enter into the Construction Contract for the purpose of causing the Impact Fee
Improvements to be constructed in accordance with the terms of this Agreement and the Owner
Agreement.
b. Construction of Impact Fee Improvements. Subject to the obligation of
Owner to reimburse the City for the Impact Fee under the terms of the Owner Agreement and the
fulfillment of Sponsor's obligations under the terms of this Agreement, the City shall cause the
GC to construct and install all of the Impact Fee Improvements on the Impact Fee Improvement
Properties as depicted and described in the Final Plans.
c. Standards Applicable to Impact Fee Improvements.
i. General Standards. All Impact Fee Improvements shall be
designed and constructed by the GC pursuant to and in accordance with the Final Plans
and the Requirements of Law. All work performed on the Impact Fee Improvement
Properties shall be conducted in a good and workmanlike manner and in accordance with
the schedule established pursuant to Section 3d of this Agreement. All materials used for
construction of the Impact Fee Improvements shall be new and of first-rate quality.
ii. Contract Terms; Prosecution and Supervision of the Work. The
GC and all of its subcontractors shall perform the work diligently, continuously, in full
compliance with, and as required by or pursuant to, this Agreement, until the work is
properly completed. Sponsor shall supervise the construction of the Impact Fee
Improvements at its sole cost and expense and shall be responsible for reporting any
errors or deviations from the Final Plans to the City and the GC.
iii. Changes in the Final Plans during Construction. During the
construction and development of the Project and the Impact Fee Improvements, Sponsor
in its supervisory capacity may, with the approval of the City of Elgin Engineer,
authorize minor adjustments to any of the Final Plans when such adjustments are
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necessary in light of technical, esthetic, use, or engineering considerations related to the
Project and the Impact Fee Improvements.
iv. City Inspections and Approvals. City representatives shall have
the full, right, permission, and authority to inspect and approve all work on the Impact
Fee Improvement Properties at all times provided that (1) such inspections do not cause
construction delays, (2) the City shall be responsible for any damage or injuries caused
by such inspections, and (3) the City reasonably grants or withholds its approval of the
work in accordance with the terms of and intent of the Final Plans and this Agreement.
v. Sponsor, Owner, and HUD Approvals. All construction and
installation of any Impact Fee Improvements shall require the consent, permission, or
approval of Sponsor, and Owner (and to a certain extent, HUD), which approvals shall
not be unreasonably withheld or delayed.
vi. Easements. To the extent that any utility, right of way, or other
easements are required for the City and GC to construct the Impact Fee Improvements on
the Impact Fee Improvement Properties, Sponsor shall obtain or cause Owner to obtain
such rights of access, right-of-way and easements for these purposes.
d. Schedule for Completion of Impact Fee Improvements. All significant
components of the Impact Fee Improvements are anticipated to be completed and made ready for
inspection, approval, and any required acceptance by the City pursuant to a construction
schedule approved by the City as part of the Final Plans (the "Construction Schedule").
Extensions of time beyond the completion dates set forth in the Construction Schedule shall be
permitted as needed since the dates set forth in the Construction Schedule will be estimates.
e. Final Inspections and Approvals. When Sponsor determines that the
Impact Fee Improvements have been properly completed, Sponsor shall request final inspection,
approval, and, as appropriate, acceptance of that those Impact Fee Improvements by the City.
The notice shall be given fourteen (14) days in advance to allow the City time to inspect the
Impact Fee Improvements and prepare a punch list of any items requiring repair or correction
(the "Punch List"). Sponsor will direct the GC to make all reasonably required repairs and
corrections identified on the Punch List. The City shall not be required to approve or accept any
Impact Fee Improvement until all of the Impact Fee Improvements required under this
Agreement, including all items identified on the Punch List, have been fully and properly
completed.
f. Guaranty and Maintenance of Impact Fee Improvements. Upon
completion of the Impact Fee Improvements, The Grove Property Owners Association, Inc., an
Illinois not-for-profit corporation (the "Association"), shall be responsible for routine
maintenance of the Impact Fee Improvements that are located within the common areas of the
property managed by the Association (the "Routine Maintenance"). Notwithstanding the
foregoing, Sponsor hereby guarantees the prompt and satisfactory correction of all identified
defects and deficiencies in the Impact Fee Improvements that occur or become evident within
one (1) year after approval and any acceptance of those Impact Fee Improvements which will be
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accepted by the City (such one (1) year period, the "Warranty Period"). The following Impact
Fee Improvements are to be accepted by the City following the completion thereof: Right Lane
Deceleration. If any defect or deficiency occurs or becomes evident during the Warranty Period,
then Sponsor shall, within thirty (30) days' after the receipt of written notice from the City
(subject to Force Majeure and securing the correct personnel and materials for such work), cause
the GC or another contractor reasonably acceptable to Sponsor to correct such items at Sponsor's
sole cost and expense. Following the expiration of the Warranty Period, then in addition to the
Routine Maintenance, the Association shall be responsible for all repairs of or replacements to
any of the Impact Fee Improvements that are located within the common areas of the property
managed by the Association.
4. Costs in Excess of the Impact Fee; Payment.
a. Obligation to Pay. In the event that the costs incurred by the City to
construct the Impact Fee Improvements on the Impact Fee Improvement Properties in
accordance with the terms of this Agreement exceed the Impact Fee payable by Owner under the
terms of the Owner Agreement, then any additional funds required to reimburse the City for the
payment of such costs (the "Excess Costs") will be the sole obligation of Sponsor.
Notwithstanding the foregoing, the parties agree that the funds made available for payment of the
Impact Fee under the HUD Financing will be the primary source of payment for the Impact Fee
and any Excess Costs.
b. Payment. Sponsor and the City acknowledge and agree that the Impact
Fee will be paid by Owner following substantial completion of the Impact Fee Improvements.
In the event that the GC requires progress payments then Sponsor shall fund those payments
through a construction escrow to be established at Chicago Title Insurance Company, 1795 W.
State Street, Geneva, Illinois 60134 as the work to complete the Impact Fee Improvements
progresses. All monies funded by Sponsor shall be reimbursed to Sponsor by the City upon its
receipt of the Impact Fee once paid by Owner provided that any Excess Costs shall be the sole
responsibility of Sponsor and will not be reimbursed through the payment of the Impact Fee. In
no event shall the City be liable for any monies due under the Construction Contract or for the
costs of the construction of the Impact Fee Improvements.
c. Security For Payment. Prior to or concurrently with the execution of the
Construction Contract for the Impact Fee Improvements, Sponsor shall deposit, or cause the GC
to deposit, with City one or more bonds, letters of credit, or other security reasonably acceptable
to the City as security for Owner's payment of the Impact Fee, Sponsor's payment of the Excess
Costs, the performance of Owner's obligations under the terms of the Owner Agreement, and the
performance of Sponsor's obligations under the terms of this Agreement, and the performance of
GC's obligations under the Construction Contract (collectively, the "Bond"). The Bond shall be
held by the City until complete performance of the Construction Contract by GC, payment in full
of the Impact Fee by Owner, and payment of any Excess Costs by Sponsor. The City shall look
solely to the Bond for the reimbursement of any fees, costs, or other charges (including legal fees
and administrative expenses) due from Sponsor to the City hereunder. In consideration for its
receipt of the Bond, the City hereby waives any right or ability to lien the Property or the Impact
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Fee Improvement Properties due to a breach of Owner's obligations under the terms of the
Owner Agreement or Sponsor's obligations under the terms of this Agreement.
5. Liability and Indemnity of City.
a. City Review. Sponsor acknowledges and agrees that the City is not, and
shall not be, in any way liable for any damages or injuries that may be sustained as the result of
the City's review and approval of any plans for the Property, the Project, or the Impact Fee
Improvements, or the issuance of any approvals, permits, certificates, or acceptances for the
development or use of the Property, the Project, the Impact Fee Improvements, or as a result of
this Agreement, the Owner Impact Fee Agreement or the Construction Contract, and that the
City's review and approval of those plans and the Impact Fee Improvements and issuance of
those approvals, permits, certificates, acceptances, or as a result of this Agreement, the Owner
Impact Fee Agreement or the Construction Contract, does not, and shall not, in any way, be
deemed to insure the Sponsor, Owner, or any of their heirs, successors, assigns, tenants, and
licensees, or any other Person, against damage or injury of any kind at any time.
b. Indemnity. Sponsor agrees to, and does hereby, hold harmless and
indemnify the City, the Corporate Authorities, and all City elected or appointed officials,
officers, employees, agents, representatives, engineers, and attorneys, from any and all claims
that may be asserted at any time against any of them in connection with (i) the City's review and
approval of any plans for the Property, the Project, or the Impact Fee Improvements; (ii) the
issuance of any approval, permit, certificate, or acceptance for the Property, the Project, or the
Impact Fee Improvements; (iii) the development, construction, maintenance, or use of any
portion of the Property, the Project, or the Impact Fee Improvements; (iv) this Agreement; (v)
the Owner Impact Fee Agreement; and (vi) the Construction Contract.
6. Enforcement. The parties to this Agreement may, in law or in equity, by suit,
action, mandamus, or any other proceeding, including specific performance, enforce or compel
the performance of this Agreement. Notwithstanding the foregoing, or anything else to the
contrary in this Agreement, no action shall be commenced by the Sponsor against the City for
monetary damages.
7. General Provisions.
a. Notice. Any notice to be given under this Agreement shall be in writing
and shall be delivered (i) personally, (ii) by a reputable overnight courier, (iii) by certified mail,
return receipt requested, and deposited in the U.S. Mail, postage prepaid, (iv) by facsimile, or(v)
by e-mail. Facsimile notices shall be deemed valid only to the extent that they are (a) actually
received by the individual to whom addressed and (b) followed by delivery of actual notice in the
manner described in either (i), (ii), or (iii) above within three (3) business days thereafter at the
appropriate address set forth below. E-mail notices shall be deemed valid only to the extent that
they are (a) opened by the recipient on a business day at the address set forth below, and (b)
followed by delivery of actual notice in the manner described in either (i), (ii), or (iii) above
within three (3) business days thereafter at the appropriate address set forth below. Unless
otherwise provided in this Agreement, notices shall be deemed received after the first to occur of
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(a) the date of actual receipt; or (b) the date that is one (1) business day after deposit with an
overnight courier as evidenced by a receipt of deposit; or (b) the date that is three (3) business
days after deposit in the U.S. mail, as evidenced by a return receipt. By notice complying with
the requirements of this Section 7(a), each party to this Agreement shall have the right to change
the address or the addressee, or both, for all future notices and communications to them, but no
notice of a change of addressee or address shall be effective until actually received.
Notices and communications to the City shall be addressed to, and delivered at, the
following address:
To City:
City of Elgin
150 Dexter Court
Elgin, Illinois 60120
Attention: City Manager
kozal_r@cityofelgin.org
With a Copy To:
City of Elgin
150 Dexter Court
Elgin, Illinois 60120
Attention: Corporation Counsel
cogley_w@cityofelgin.org
To Sponsor:
Watermark IP IL LLC
do Interstate Partners LLC
90 Prairie Parkway
Gilberts, Illinois 60136
(o) 847-428-5303
(c) 312-318-0077
(f) 847-428-5342
Email: mebacher@interstatepartnersil.com
b. Amendments and Modifications. No amendment or modification to this
Agreement shall be effective until it is reduced to writing and approved and executed by all
parties to this Agreement. Unless otherwise provided in this Agreement, City approval for any
amendment or modification shall be granted by the Corporate Authorities, in their sole and
absolute discretion, by resolution duly adopted.
c. Time of the Essence. Time is of the essence in the performance of this
Agreement.
d. Rights Cumulative. Unless expressly provided to the contrary in this
Agreement, each and every one of the rights, remedies, and benefits provided by this Agreement
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shall be cumulative and shall not be exclusive of any other rights, remedies, and benefits allowed
by law.
e. Non-Waiver. The City shall be under no obligation to exercise any of the
rights granted to it in this Agreement. The failure of the City to exercise at any time any right
granted to the City shall not be deemed or construed to be a waiver of that right, nor shall the
failure void or affect the City's right to enforce that right or any other right.
f. Consents. Unless otherwise provided in this Agreement, whenever the
consent, permission, authorization, approval, acknowledgement, or similar indication of assent of
any party to this Agreement, or of any duly authorized officer, employee, agent, or representative
of any party to this Agreement, is required in this Agreement, the consent, permission,
authorization, approval, acknowledgement, or similar indication of assent shall be in writing.
g. Governing Law. This Agreement shall be governed by, and enforced in
accordance with, the internal laws, but not the conflicts of laws rules, of the State of Illinois.
h. Severability. It is hereby expressed to be the intent of the parties to this
Agreement that should any provision, covenant, agreement, or portion of this Agreement or its
application to any Person or property be held invalid by a court of competent jurisdiction, the
remaining provisions of this Agreement and the validity, enforceability, and application to any
Person or property shall not be impaired thereby, but the remaining provisions shall be
interpreted, applied, and enforced so as to achieve, as near as may be, the purpose and intent of
this Agreement to the greatest extent permitted by applicable law.
i. Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes any and all prior agreements and negotiations between the
parties, whether written or oral, relating to the subject matter of this Agreement.
Notwithstanding the foregoing, the parties acknowledge a separate associated agreement relating
to the subject matter of this Agreement entitled "Owner Impact Fee Agreement" between the
City of Elgin and Watermark Apartments LLC as Owner.
j. Authority to Execute. The City hereby warrants and represents to the
Sponsor that the Persons executing this Agreement on its behalf have been properly authorized to
do so by the Corporate Authorities. The Sponsor hereby warrants and represents to the City
(i) that Owner is or will be the record and beneficial owner of fee simple title to the Property,
(ii) that no other Person has any legal, beneficial, contractual, or security interest in the Property,
(iii)that they have the full and complete right, power, and authority to enter into this Agreement
and to agree to the terms, provisions, and conditions set forth in this Agreement and to bind the
Property as set forth in this Agreement, (iv) that all legal actions needed to authorize the
execution, delivery, and performance of this Agreement have been taken, and (v) that neither the
execution of this Agreement nor the performance of the obligations assumed by the Sponsor will
(a) result in a breach or default under any agreement to which the Sponsor is a party or to which
they or the Property is bound or(b) violate any statute, law, restriction, court order, or agreement
to which the Sponsor or the Property are subject.
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k. No Third Party Beneficiaries. No claim as a third party beneficiary under
this Agreement by any Person shall be made, or be valid, against the City or Sponsor.
1. Recording. This Agreement may be recorded in the office of the Recorder
of Kane County.
m. Counterparts. This Agreement may be executed in counterpart, each of
which shall constitute an original document, which together shall constitute one and the same
instrument.
n. Miscellaneous. This Agreement is deemed to have been drafted jointly by
the parties to this Agreement, and any uncertainty or ambiguity shall not be construed for or
against any party as an attribution of drafting to any party. The recitals contained in this
Agreement are, and shall be construed to be, an integral part of this Agreement. Any schedules
and exhibits attached hereto are hereby incorporated herein as if fully set forth herein. Whenever
the context so requires, the singular shall include the plural and vice versa. The headings of
paragraphs and sub-paragraphs contained in this Agreement are merely for convenience of
reference and shall not affect the interpretation of any of the provisions of this Agreement. All
words and phrases shall be construed as masculine, feminine or neutral gender, according to the
context. Whenever the term "include", "including", or "included" is used in this Agreement, it
shall mean "including without limiting the generality of the foregoing". A "business day" under
this Agreement shall mean any day other than a Saturday, Sunday or a holiday under U.S. or
Illinois law. Any period of time for an act or notice under this Agreement which ends on a day
which is not a business day may be timely performed on the next following business day.
[Signature Page Follows.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first written above.
CITY: SPONSOR:
CITY OF ELGIN, an Illinois municipal WATERMARK IP IL LLC, an Illinois
corporatio corporation
dr/e,--11' ,
By: / /,� � By: �'1' i
/ `
Name: David J d. apt., Name: 1€4 • t
Its: Mayor Its: AlAti.44%Ithi A.,erp,ei
Atte• :
.411
City Clerk mug
STATE OF ILLINOIS )
) SS.
COUNTY OF KANE )
I, the undersigned, a Notary Public in the State aforesaid, DO HEREBY CERTIFY that
David J. Kaptain, Mayor, and Kimberly A. Dewis, City Clerk, of the CITY OF ELGIN, an
Illinois municipal corporation, who are personally known to me to be the same persons whose
name are subscribed to the foregoing instrument, appeared before me this day in person and
acknowledged that signing and delivering the said instrument as their own free and voluntary act
for the uses and purposes therein set forth. JENNIFER J QUINTON
OFFICIAL SEAL
NOTARY PUBLIC
GIVEN under m hand .nd ler. _ ial se.l this February , 28, 2018. STATE OF ILLINOIS
MY COMMISSION EXPIRES
JANUARY 10,2020
STATE OF ILLINOIS ) BLAKE BARILE
) SS. OFFICIAL SEAL
COUNTY OF KANE Notary Public,State of Illinois
My Commission Expires
7:7; J
October 23,2021
I, the undersigned, a Notary Public iri the State aforesaid, DO HEREBY CERTIFY that
Mor j,c.c , the rA.�,;., P�M:Pr� of WATERMARK IP IL LLC, an Illinois limited
liability company, who is personally known to me to be the same person whose name is
subscribed to the foregoing instrument, appeared before me this day in person and acknowledged
that signing and delivering the said instrument as his own free and voluntary act for the uses and
purposes therein set forth.
GIVEN under my hand a . •• axial seal this f LrNc.- , )o, 2018.
F:\Legal Dept\Agreement\Watermark-Sponsor Impact Fee-Excess Cost-Construction Agr-Clean 2-19-18.docx
11
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
LOTS 41 THROUGH 65 INCLUSIVE,AND LOTS 107 THROUGH 120 INCLUSIVE,ALONG
WITH THAT PART OF LOT 106 DESCRIBED AS FOLLOWS: BEGINNING AT THE
NORTHEAST CORNER OF SAID LOT 106; THENCE SOUTH 00 DEGREES 51 MINUTES
58 SECONDS EAST ALONG THE EAST LINE OF SAID LOT 106, 14.49 FEET; THENCE
SOUTH 88 DEGREES 37 MINUTES 46 SECONDS WEST 404.44 FEET MORE OR LESS TO
A POINT ALONG THE WEST LINE OF SAID LOT 106; THENCE NORTHERLY 14.46 FEET
ALONG THE WEST LINE OF SAID LOT 106, SAID LINE BEING AN ARC OF A CURVE
CONCAVE EASTERLY WITH A RADIUS OF 700.00 FEET, SAID ARC HAVING A CHORD
BEARING OF NORTH 2 DEGREES 47 MINUTES 03 SECONDS WEST AND A CHORD
LENGTH OF 14.46 FEET, TO THE NORTHWEST CORNER OF SAID LOT 106; THENCE
NORTH 88 DEGREES 37 MINUTES 28 SECONDS EAST ALONG THE NORTH LINE OF
SAID LOT 106, 404.92 FEET MORE OR LESS TO THE PLACE OF BEGINNING, ALL IN
THE FINAL PLAT OF SUBDIVISION OF THE GROVE BEING A RESUBDIVISION IN THE
SOUTHEAST QUARTER OF SECTION 19, AND IN THE NORTHEAST QUARTER OF
SECTION 30,ALL IN TOWNSHIP 42 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL
MERIDIAN, ACCORDING TO THE PLAT THEREOF RECORDED SEPTEMBER 23, 2004
AS DOCUMENT NO. 2004K125816, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS,
EXCEPTING THEREFROM THAT PART OF LOT 41 DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEAST CORNER OF SAID LOT 41; THENCE
SOUTHWESTERLY 29.44 FEET ALONG THE SOUTHERLY LINE OF SAID LOT 41, SAID
LINE BEING AN ARC OF A CURVE CONCAVE SOUTHERLY WITH A RADIUS OF 800.00
FEET, SAID ARC HAVING A CHORD BEARING OF SOUTH 65 DEGREES 00 MINUTES
23 SECONDS WEST WITH A CHORD LENGTH OF 29.44 FEET; THENCE NORTH 25
DEGREES 58 MINUTES 51 SECONDS WEST, 12.00 FEET; THENCE NORTHEASTERLY
31.42 FEET ALONG A NON-TANGENTIAL CURVE CONCAVE SOUTHERLY WITH A
RADIUS OF 772.61 FEET, SAID CURVE HAVING A CHORD BEARING OF NORTH 66
DEGREES 34 MINUTES 08 SECONDS EAST WITH A CHORD LENGTH OF 31.42 FEET TO
A POINT ALONG THE EASTERLY LINE OF SAID LOT 41;THENCE SOUTH 16 DEGREES
01 MINUTES 14 SECONDS EAST ALONG THE EASTERLY LINE OF SAID LOT 41, 11.28
FEET TO THE PLACE OF BEGINNING, ALL IN KANE COUNTY, ILLINOIS.
A
EXHIBIT B
LEGAL DESCRIPTION OF THE IMPACT FEE IMPROVEMENT PROPERTIES
NORTH OPEN SPACE AREA: LOT 98 IN THE FINAL PLAT OF SUBDIVISION OF
NORTHWEST CORPORATE PARK UNIT 1, BEING A SUBDIVISION OF A PORTION OF
THE SOUTHEAST QUARTER OF SECTION 19, AND A PORTION OF THE NORTH HALF
OF SECTION 30, TOWNSHIP 42 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL
MERIDIAN, ACCORDING TO THE PLAT THEREOF RECORDED NOVEMBER 6, 1998 AS
DOCUMENT NUMBER 98K103162, EXCEPTING THEREFROM LOTS 63, 64, 65, 119,AND
120 IN THE FINAL PLAT OF SUBDIVISION OF THE GROVE,ACCORDING TO THE PLAT
THEREOF RECORDED AS DOCUMENT NUMBER 2004K125816, IN KANE COUNTY,
ILLINOIS, ALSO EXCEPTING THEREFROM THAT PART OF SAID LOT 98 DESCRIBED
AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 98; THENCE
NORTH 88 DEGREES 37 MINUTES 46 SECONDS EAST ALONG THE NORTH LINE OF
SAID LOT 98, 168.04 FEET; THENCE SOUTH 34 DEGREES 07 MINUTES 02 SECONDS
WEST, 18.30 FEET; THENCE SOUTH 51 DEGREES 06 MINUTES 31 SECONDS WEST,
11.60 FEET;THENCE SOUTH 27 DEGREES 35 MINUTES 33 SECONDS EAST,29.22 FEET;
THENCE SOUTH 29 DEGREES 57 MINUTES 30 SECONDS WEST, 46.54 FEET; THENCE
NORTH 87 DEGREES 50 MINUTES 58 SECONDS WEST, 25.96 FEET; THENCE SOUTH 39
DEGREES 10 MINUTES 30 SECONDS EAST, 25.65 FEET; THENCE SOUTH 66 DEGREES
48 MINUTES 37 SECONDS EAST, 58.29 FEET; THENCE SOUTH 20 DEGREES 06
MINUTES 55 SECONDS WEST, 59.20 FEET; THENCE SOUTH 35 DEGREES 01 MINUTES
11 SECONDS EAST,3.32 FEET TO THE NORTHEAST CORNER OF SAID LOT 65;THENCE
SOUTH 88 DEGREES 39 MINUTES 55 SECONDS WEST ALONG THE NORTH LINE OF
SAID LOT 65, 85.04 FEET; THENCE NORTH 58 DEGREES 21 MINUTES 59 SECONDS
WEST ALONG A NORTHWESTERLY LINE OF SAID LOT 98, 89.28 FEET; THENCE
NORTH 01 DEGREES 22 MINUTES 18 SECONDS WEST ALONG THE NORTHWEST LINE
OF SAID LOT 98, 140.00 FEET TO THE PLACE OF BEGINNING,ALL IN KANE COUNTY,
ILLINOIS.
ALSO: THAT PART OF THE SOUTHEAST QUARTER OF SECTION 19, TOWNSHIP 42
NORTH, RANGE 8, EAST OF THE THIRD PRINCIPAL MERIDIAN DESCRIBED AS
FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 19;
THENCE SOUTH 88 DEGREES 37 MINUTES 40 SECONDS WEST,62.67 FEET TO A POINT
ALONG THE WEST LINE OF RANDALL ROAD PER DOCUMENT NUMBER 96K017695;
THENCE NORTH 00 DEGREES 51 MINUTES 58 SECONDS WEST ALONG SAID WEST
LINE, 550.02 FEET TO A POINT ALONG THE NORTH LINE OF THE SOUTH 550 FEET OF
THE EAST HALF OF SAID SOUTHEAST QUARTER AND THE PLACE OF BEGINNING;
THENCE SOUTH 88 DEGREES 37 MINUTES 40 SECONDS WEST ALONG SAID NORTH
LINE, 566.31 FEET; THENCE NORTH 19 DEGREES 36 MINUTES 47 SECONDS EAST,
47.63 FEET;THENCE NORTH 13 DEGREES 57 MINUTES 43 SECONDS EAST,42.68 FEET;
THENCE NORTH 09 DEGREES 04 MINUTES 52 SECONDS WEST, 60.41 FEET; THENCE
SOUTH 73 DEGREES 08 MINUTES 27 SECONDS WEST, 53.35 FEET; THENCE SOUTH 48
DEGREES 50 MINUTES 14 SECONDS WEST, 22.01 FEET; THENCE NORTH 18 DEGREES
37 MINUTES 40 SECONDS WEST,9.95 FEET;THENCE NORTH 62 DEGREES 14 MINUTES
09 SECONDS WEST, 69.67 FEET; THENCE NORTH 64 DEGREES 01 MINUTES 27
B
SECONDS WEST, 26.12 FEET; THENCE NORTH 17 DEGREES 00 MINUTES 26 SECONDS
EAST, 10.93 FEET; THENCE NORTH 01 DEGREES 22 MINUTES 20 SECONDS WEST,
107.77 FEET; THENCE NORTH 88 DEGREES 37 MINUTES 40 SECONDS EAST, 700.52
FEET TO A POINT ALONG SAID WEST LINE OF RANDALL ROAD; THENCE SOUTH
ALONG SAID WEST LINE, 290.74 FEET TO THE PLACE OF BEGINNING, ALL IN KANE
COUNTY, ILLINOIS.
PIN 03-19-400-022 and 03-19-476-004
HARD CORNER LOT: LOTS 100 THROUGH 106 INCLUSIVE IN THE FINAL PLAT OF
SUBDIVISION OF THE GROVE, BEING A RESUBDIVISION IN THE SOUTHEAST
QUARTER OF SECTION 19, AND IN THE NORTHEAST QUARTER OF SECTION 30, ALL
IN TOWNSHIP 42 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN,
ACCORDING TO THE PLAT THEREOF RECORDED SEPTEMBER 23, 2004 AS
DOCUMENT 2004K125816, IN KANE COUNTY, ILLINOIS, EXCEPTING THEREFROM
THAT PART OF LOT 106 DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST
CORNER OF SAID LOT 106; THENCE SOUTH 00 DEGREES 51 MINUTES 58 SECONDS
EAST ALONG THE EAST LINE OF SAID LOT 106, 14.49 FEET; THENCE SOUTH 88
DEGREES 37 MINUTES 46 SECONDS WEST 404.44 FEET MORE OR LESS TO A POINT
ALONG THE WEST LINE OF SAID LOT 106; THENCE NORTHERLY 14.46 FEET ALONG
THE WEST LINE OF SAID LOT 106, SAID LINE BEING AN ARC OF A CURVE CONCAVE
EASTERLY WITH A RADIUS OF 700.00 FEET, SAID ARC HAVING A CHORD BEARING
OF NORTH 2 DEGREES 47 MINUTES 03 SECONDS WEST AND A CHORD LENGTH OF
14.46 FEET, TO THE NORTHWEST CORNER OF SAID LOT 106; THENCE NORTH 88
DEGREES 37 MINUTES 28 SECONDS EAST ALONG THE NORTH LINE OF SAID LOT
106, 404.92 FEET MORE OR LESS TO THE PLACE OF BEGINNING, ALSO EXCEPTING
THEREFROM THAT PART OF LOT 100 DESCRIBED AS FOLLOWS: BEGINNING AT THE
SOUTHEAST CORNER OF SAID LOT 100; THENCE SOUTHWESTERLY 308.27 FEET
ALONG THE SOUTHERLY LINE OF SAID LOT 100, SAID SOUTHERLY LINE BEING AN
ARC OF A CURVE CONCAVE SOUTHERLY WITH A RADIUS OF 800.00 FEET, SAID ARC
HAVING A CHORD BEARING OF SOUTH 77 DEGREES 06 MINUTES 00 SECONDS WEST
WITH A CHORD LENGTH OF 306.37 FEET,TO THE SOUTHWEST CORNER OF SAID LOT
100; THENCE NORTH 16 DEGREES 01 MINUTES 14 SECONDS WEST ALONG SAID
WEST LINE, 11.28 FEET; THENCE NORTHEASTERLY 309.25 FEET ALONG A NON-
TANGENTIAL CURVE CONCAVE SOUTHERLY WITH A RADIUS OF 772.61 FEET, SAID
CURVE HAVING A CHORD BEARING OF NORTH 79 DEGREES 12 MINUTES 02
SECONDS EAST AND A CHORD LENGTH OF 307.19 FEET TO THE PLACE OF
BEGINNING,ALL IN KANE COUNTY, ILLINOIS.
RIGHT OF WAY DEDICATION: THAT PART OF LOTS 100 AND 41 IN THE FINAL PLAT
OF SUBDIVISION OF THE GROVE, BEING A RESUBDIVISION IN THE SOUTHEAST
QUARTER OF SECTION 19, AND IN THE NORTHEAST QUARTER OF SECTION 30,ALL
IN TOWNSHIP 42 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN,
ACCORDING TO THE PLAT THEREOF RECORDED SEPTEMBER 23, 2004 AS
DOCUMENT 2004K125816, IN KANE COUNTY, ILLINOIS, DESCRIBED AS FOLLOWS:
B
BEGINNING AT THE SOUTHEAST CORNER OF SAID LOT 100; THENCE
SOUTHWESTERLY 337.71 FEET ALONG THE SOUTHERLY LINE OF SAID LOTS 100
AND 41, SAID SOUTHERLY LINE BEING AN ARC OF A CURVE CONCAVE SOUTHERLY
WITH A RADIUS OF 800.00 FEET, SAID ARC HAVING A CHORD BEARING OF SOUTH
76 DEGREES 02 MINUTES 44 SECONDS WEST WITH A CHORD LENGTH OF 335.21
FEET; THENCE NORTH 25 DEGREES 58 MINUTES 51 SECONDS WEST, 12.00 FEET;
THENCE NORTHEASTERLY 340.67 FEET ALONG A NON-TANGENTIAL CURVE
CONCAVE SOUTHERLY WITH A RADIUS OF 772.61 FEET, SAID CURVE HAVING A
CHORD BEARING OF NORTH 78 DEGREES 02 MINUTES 08 SECONDS EAST AND A
CHORD LENGTH OF 337.91 FEET TO THE PLACE OF BEGINNING, ALL IN KANE
COUNTY, ILLINOIS. (HAVING AN AREA OF 2,214 SQUARE FEET)
B
EXHIBIT B-1
IMPACT FEE IMPROVEMENT PROPERTIES
7///////////////;//7//P/7 ;/ /////// AGREEMENT
// / / // /i/" / / ' / //7/
! / SUBJECT
/ / // / / / //// _,,/ OFF-SITE
` / /' /1 / i 1„. , AREAS
�*4#4:**.I�V /4",J /(,..,(-1/c., 90, P• ///f , * NOTE: CROSSv)1/, •�A /; 0 S/ / WALK
.047/// �/Q���,� /// //� STRIPING
/44\ // /�/
lii:
N i is ,,;: / /1, ,/1
OF PROPOSED
- :.. 4 h-\ e,-;- r,,, / //j/ / RIGHT OF WAY
• r'' . , . ',.:' t / �/ / /
DE////
/ tL�
I ,.', - .. ;•.,,- ,/// I�., • l -
7.
40 , NEA1 I ;41.
h NEA
.� .I t /- I i Y:
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;> ' i g
....
�s 4>•- ( I. I t,
b Z;..: LOT 2 F -.
" P f j 10.866 ACRES +/- I I II t=
S if x.EA.J I I L i ' '
w :, I71 , I
i
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I '
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-.---as��,Tr, i amiss - 3- =a___z �Ia3ac•('�.
Nf ,. ..;—1 i F :.rte---.A� A7 LOT 1 1'Y�'=I I 0-5
4 II i I .it .,1 .I 1.690 +/-•T i v
I 1 1`z. '` PROPOSED
m, �,r- ..ft,‘•i.�:.. = :e.;11 ' RIGHT OF
eg
'4t ILEA x, WAY
' � a
` ,i _ '"r' - t DEDICATION
..gx. \------ .7;7;'"j" _ --sine,..--fee aes,,�xa i- ;' ---,ur
C••c`— Tfro gfli ry ro
�'t- - rra car or rear
B-1
,
i
EXHIBIT C
IMPACT FEE IMPROVEMENTS AND ESTIMATED COSTS
Summary Line-Item:
Exhibit Scope $Amount
Exhibit C-1 Trail, Sidewalk Improvements & Restoration $187,355.60
Exhibit C-2 Right Turn Lane & Light Fixtures $173,375.20
Exhibit C-3 Electrical Improvements $139,500.00
Exhibit C-4 Landscape & Hardscape Improvements $229,956.75
Total Estimate $730,187.55
NOTE—All offsite improvements are noted throughout RWG Engineering civil
plans including revisions dated November 27, 2017
C
EXHIBIT C-1
TRAIL, SIDEWALK IMPROVEMENTS AND RESTORATION
[See Attached.]
C-1
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4
EXHIBIT C-1
SCOPE OF WORK AND TOTAL COST
Estimated Budget: $187,355.60
Scope:
• Subgrade prep for walking trail ❑ 18,255 SF x $ 1.50 = $ 27,382.50
• Aggregate material & compaction for walking trail -450 CY x $ 55.55 = $ 24,997.50
• Sidewalk aggregate & concrete - 18,255 SF x $ 7.12 = $ 129,975.60
• Backfill new walks & trails - 1 LS x $5 ,000.00 = $ 5,000.00
TOTAL FOR C-1 = $ 187,355.60
C-1
•
EXHIBIT C-2
RIGHT TURN LANE &LIGHT FIXTURES
IJv?.11 a1FNr S•1�\. .I,,1 7�� _: • •w ' -. •. ••, s� w :.f ' .� .r"-
•
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EXHIBIT C-2
SCOPE OF WORK AND TOTAL COST
Estimated Budget: $173,375.20
Scope:
• Provide traffic control ❑ Jersey barrier, signs, flagman - 1 LS x $ 40,000.00= $
40,000.00
• Demo curbs, parkway, structures - 1 LS x $ 9,000.00= $ 9,000.00
• Excavate and remove sub❑grade - 388 CY x $46.40= $18,003.20
• Install storm sewer, structures &backfill - 688 LF x $45.00= $30,960.00
• Fine grade sub❑grade - 10,500 SF x $0.50= $5,250.00
• Install compacted aggregate base, asphalt &markings - 1,167 SY x $31.00= $36,177.00
• Provide curb and gutter- 695 LF x $23.00= $15,985.00
• Light poles—2 EA x $3,500 = $7,000
• Bases—2 EA x $1,000 = $2,000
• Assembly—2 EA x $1,000 = $2,000
• Directional bore under Northwest Pkwy— 1 EA x $5,000= $5,000
• Wiring— 1,000 LF x $2.00= $2,000
TOTAL FOR C-2 = $173,375.20
C-2
EXHIBIT C-3
ELECTRICAL IMPROVEMENTS
[See Attached./
C-3
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05 ;:i :- Engineering,LLC '.:.:4,•.:;t" NORTH OVENS ON POND ..
EXHIBIT C-3
SCOPE OF WORK AND TOTAL COST
Estimated Budget: $139,500.00
Scope:
• Provide 2 new light poles & foundations - 2 EA x $4,000.00= $8,000.00
• Provide new electrical service and utility box - 1 LS x $121,000.00 = $121,000.00
• Provide pond fountain with electrical connections - 1 EA x $3,500.00= $3,500.00
• Provide 4 aerators with electrical connections - 4 EA x $1,250.00= $5,000.00
• Provide misc. materials & labor for systems - 1 LS x $2,000.00= $2,000.00
TOTAL FOR C-3 = $139,500.00
C-3
EXHIBIT C-4
LANDSCAPE AND HARDSCAPE IMPROVEMENTS
/See Attached./
C-4
SUBJECT PROPERTY EXCLUDED FROM AGREEMENT
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LANISCAPE PIM-OVERALL
SCALE. ' -
C-4
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IMPROVEMENTS
INCLUDE:
• Ilard Scape
• Landscaping
• Irrigation
• Accent/Safety Lighting
• See Preliminary Sheets:
o L1.3
o L1.4
o L1.9A
o L1.9B
IMISCIIPE MAN•MALL
flf:ALE
C-4
EXHIBIT C-4
SCOPE OF WORK AND TOTAL COST
Estimated Budget: $229,956.75
Scope:
• Provide sub❑grade preparation - 10,665 SF x $0.75 = $7,998.75
• Provide all plantings along Watermark Drive- 162 EA x $191.00 = $30,942.00
• Provide all plantings at north terrace - 290 EA x $104.00= $30,160.00
• Provide all hardscape planters & seating north terrace - 7 EA x $5,014.00= $35,098.00
• Provide sidewalks per L1.9A and L1.9B - 6850 SF x $7.12 = $48,772.00
• Provide seating&tables & access. per L1.9A and L1.9B - 47 Items x $638.00=
$29,986.00
• Provide metal pergola- 1 EA x $45,000.00= $45,000.00
• Provide other misc items per LI.9A and L1.9B - 1 LS x $2,000.00 = $2,000.00
TOTAL FOR C-4 = $229,956.75
C-4