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City Council Packet 2011 02-08-11 meeting handouts United City of Yorkville FY 09/ 10 Audit City Council February 8 , 2011 Background Discussion outlined in February 4 , 2011 memo from Bart Olson to, City Council in City Council packet for tonight's meeting http://yorkvil,le.il.us/201 i MeetingMinutesAgendasandPackets.php FY 09/ 10 runs from : May 1 , 2009 to April 30, 2010 How did we get here ? Definition of " here " From estimating a $0 general fund fund balance in February 2010 to a negative N$492 ,000 fund balance as of April 30, 2010 For a more comprehensive definition of "here, " check ,fast City Council and Administration Committee packets for the past year and stay tuned for the FY 11/ 12 budget discussions over the next few months How did we get here ? Four reasons in FY 09/ 10 Bad debt writ offs Sales Tax incentive agreements Police capital fund loan rejected Health insurance and salary budget estimates were wrong How did we get here ? Bad Debt Dollar amounts listed on our books as assets ( accounts receivable) that were not received When those assets are not received , or not expected to be received , they are turned into "' bad debt "' and are, removed from our financial statements as an asset How did we here ? Bad Debt The City 's bad debt policy has a general timeframe of 12 months to wait from declaring something bad debt and writing it off the books : Policy instituted in 2008 . An example of bad debt : City enters into an agreement to complete a piece of infrastructure, with a commitment from a developer to reimburse by a certain date The commitment, because it is within a legal document, is listed as a receivable (asset) in our books The reimbursement date passes One year later, the receivable is declared a bid debt and is written down Howdid we get here ? Bad Debt This form of asset tracking is the accepted way of government budgeting and auditing How did we get here ? Bad Debt None of the bad debt written off this year is " new " If it's not a " new " issue, why are we discussing it? Because our staff and the auditors decided to write-off a large percentage of the remaining bad debt that is not tied to the landfill application This gives us a more clear picture of our fund balance How did we get here ? Sales tax " Prior period adjustment" Sales tax rebates were booked in FY 09/10 that should have been booked in FY 08/09 Impact on FY 09/ 10 audit is $ 177,283 Kendall Marketplace was a larger percentage of total sales tax than expected Impact an FY 09/ 10 audit is $ 153, 140 How did we get here ? Police capital loan During revised budged discussions, the police capital fund was going to loan the general fund $ 103 , 000 would be repaid over next four fiscal years Loan was to be booked as revenue Auditors and staff decided after the fact that it wasn 't proper, so it was not completed How did we get here ? Health insurance and salary budget estimates The easiest issue to understand Health insurance and salary budget estimates were wrong It appears figures were not updated as employees left the City mid-year How do we get to where we want to be? With a nega tive fund balance and poor cash position , budget surpluses must be run each year in the general Lund for the next few fiscal years With layoffs, other non - personnel cuts, new revenues ( OTBf cell towers) the City is better positioned to run budget surpluses in the general fund for the next few fiscal years More adjustments must be made, and will during the FY 11/ 12 budget discussion How do we get to where we want to be ? The budget process FY 11/ 12 Tentative Budget Timeline City Administrator and Finance Director meeting with the Mayor and department heads this next week Available for public inspection Friday, February 18 Saturday, February 26 at gam - Special City Council March 8 - Budget public hearing March 22 - City Council discussion April 12 - City Council discussion April 26 - City Council (last possible date to approve budget) •��° �'''�- Memorandum To: Bart Olson, Interim Director of Parks & Recreation EST. 1836 .: From: Laura Schraw, City Park Designer CC: Scott Sleezer, Superintendent of Parks =O Date: January 20, 2011 i<cE �av� Subject: OSLAD 2011 Riverfront Park Grant Proposal Project Timeline Bicentennial Riverfront Park's Whitewater Canoe/Kayak Chute is expected to be completed by the Illinois Department of Natural Resources (IDNR) by May 31, 2011. They expect to begin Phase III of the pedestrian bridge installation this summer. OSLAD Grant Applications are due July 1". There are several reasons Staff would like to begin the discussion and plan revisions to the park design. First, the park plan will probably be displayed at the Canoccopia in March and a new design would be beneficial at this expo. Second, another public hearing should be held to discuss the park design and any additional amenities that should be added. Third, I have limited time to work on revisions, and am requesting that we determine a design as soon as possible so that the decision to apply for an OSLAD grant can be discussed using this new design during my absence. Tentative Project Review Timeline January 25 —Park Board review of design and comment for additional elements February 8 —City Council review of design and comment for additional elements February 10—Public Meeting at 6pm on park design prior to Park Board meeting February 24—Park design revisions to Park Board March 10—Park design revisions to City Council March 12 --Canoecopia! Additional Grant Applications for Park Site At this time the City has not yet heard about any award of the Boat Access and Development Grant to add a boat launch and access drive/parking lot or the EPA 319 grant to upgrade the asphalt parking lot to eco-pavers to create a more environmentally friendly and educational element to the park. Bart has been working with the contractor on site to store then spread gravel on site at no cost to the City for a parking facility. Both of these grants primarily deal with parking and NOT park development. 2010 OSLAD Grant Review The grant reviewer for this project stated that we don't need to change anything to make our application stronger. The weakest element that scored the lowest was the playground. Lowering the amount of funds allocated to the playground would NOT help our application standings. Last year the state only had $11 million worth of grant money to award. Previous years were over$20 million. The grant reviewer stated that if it had been a normal year of$20 million, we would have received grant funds. With the smaller funding pool, we were not high enough on the list. Existing Design Review This park is a high use facility for residents that want to come have a picnic, use the playground, or host a festival under the shelter. In the conceptual design, the existing large shelter will remain, but the brick stairs are beginning to fall apart and need to be replaced with new stairs. The playground equipment, nearing 15 years of use, is at the end of its life cycle and is due for an update. The playground is scheduled to be removed this winter, and at this time funds are not being allocated at this time for playground replacement. At the request of several public meeting attendees, Park Board members, and City Council members in 2010, we included the playground into the budget. Relocating the playground will allow the old playground area to become a civic lawn perfect for concert seating, festival events, or hosting a farmers market or other vendor fair. A memorial area was included. The only elements that can be reimbursed through the grant are pavers and benches for a memorial. A monument stone can be added outside of the grant funding. Re-using the small wooden shelters and moving them to the woods will provide a great picnic spots for canoe or kayak users who pull off onto the canoe beach for a lunch break on their way down the river. Items also included adding port-o-let shelters for additional restroom facilities, a shared-use trail to connect the park from one end to the other, and providing vendor stations with electrical outlets at the new security lighting (our standard lights in each park). The project also included an accessible fishing pier upstream of the dam and canoe/kayak chute; no fishing will be allowed at the chute. Landscape and woodland restoration would help restore the grass for festival use, as well as improve the woodland habitat from its current scrub trees to desired native species. Additional Elements Requested Many paddlers have contacted the City and have requested certain facilities, such as changing stations, be included in the park. Other suggestions for the park have been mentioned to Staff, such as showers, and Staff would like to ask the Park Board of any additional facilities or ideas that they have heard people request for this park. Budget The grant budget will be revised after a consensus on the park design. The City would apply for the maximum reimbursement of$400,000 and again use Corlands property as the acquisition match. Plan Revisions Staff is requesting that we openly discuss any additional park design suggestions and set a public hearing for February 10`x` at 6pm. Yorkville Nixes Sewer Hike-Bond Buyer Article 213111 9.06 AM THE BONID BUYER THE DAILY NEWSPAPER of PUBLIC FINANCE Yorkville Nixes Sewer Hike Wednesday, February 2, 2011 By Yvette Shields The Yorkville City Council last week voted against asking residents to cover a $264,000 shortage in revenue needed in the city's sewer fund to cover debt payments coming due next year, according to published reports. The council voted 4-4 to impose the fee. While Mayor Valerie Burd typically would cast the deciding vote in a tie, she was absent, so the measure failed. The city, which is 50 miles west of Chicago, last month approved a ballot measure asking voters to approve a 1% sales tax increase to cover sewer bond payments. If voters approve the tax hike, Yorkville has said it could then afford to abate a portion of property taxes that go to repay city sewer debt. 1,2011 The Bond Buyer and SourceMedia fnc., AU rights reserved. Use, duplication, or sale of this service, or data contained herein, except as described in the subscription agreement, is strictly prohibited. Trademarks page, Client Services 1-800-221.1809, 8:30am - 5:30pm, ET For information regarding Reprint Services please visit: htLp:I/license.icopyright.net/3.7745?icx_id=20090817FNNRUTWS http:/lwww.bondbuyer.com/issues/120 22/-1022783-1.html7zkPrintable=true Page 1 of 1 SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE This SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE (the "Agreement") is entered into as of this day of February, 2011 by and between Plaintiff, ASPEN RIDGE ESTATES, LLC, an Illinois limited liability company (hereinafter "Aspen Ridge"), and Defendants, UNITED CITY OF YORKVILLE, a municipal corporation (hereinafter "Yorkville" or the "City"), ART PROCHASKA, JAMES BOCK, DEAN WOLFER, JOSEPH BESCO, PAUL JAMES, MARTY MUNNS, TRAVIS MILLER, JOHN WYETH, and ENGINEERING ENTERPRISES, INC., an Illinois corporation (hereinafter "EEI") (collectively referred to from time to time as "the Defendants"). WHEREAS, on August 7, 2008, Aspen Ridge filed a lawsuit against the City, several of its current and former officials and employees, and EEI in the United States District Court for the Northern District of Illinois, which lawsuit was docketed as Case Number 08 C 4479 (the "Lawsuit"); WHEREAS, the Lawsuit arises out of the Plaintiffs petition for, and the City's subsequent approval of annexation, zoning and development of the approximately 125.674 acres located in Kendall County, Illinois and owned by Aspen Ridge(hereinafter"the Property"). WHEREAS,the City has filed a counterclaim in the Lawsuit against Aspen Ridge; WHEREAS, Aspen Midge subsequently filed a counterclaim in the Lawsuit against the City; WHEREAS, the parties have denied, and continue to deny, that they, individually or collectively, have liability for any of the acts or omissions alleged against them in the Lawsuit; and QBU 2223496.2 l WHEREAS, in order to avoid the time and expense of further contested litigation, together with the uncertainty thereof, the parties hereto desire to settle and compromise any and all claims, whether known or unknown, that any party has,or may have, against any other party. NOW, THEREFORE, in consideration of the foregoing recitals, the mutual promises and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,the parties agree as follows. 1. Non-Admission of Liability. Nothing contained herein or accomplished hereby shall be construed or deemed to be an admission by any of the parties that he, she or it has any liability for the claims alleged against such party in the lawsuit,the same being expressly denied. In addition, neither this Agreement nor anything contained herein or accomplished hereby shall be admissible in any court of law or in any administrative or other proceeding of any kind or nature,except in a proceeding to enforce the terms of this Agreement. 2. Payment of Settlement Amount. Defendants shall pay to Aspen Ridge the sum of Seven Hundred Twenty-Five Thousand and 001100 ($725,000.00) (the"Settlement Payment") as follows. a. Within thirty (30) days following execution of this Agreement, the City and/or its insurer on behalf of itself and the Individual Defendants shall pay to Aspen Ridge the sum of Six Hundred and Fifty Thousand and 00/100 ($650,000.00)Dollars; b. Within thirty (30) days following execution of this Agreement, EE1 shall pay to Aspen Ridge the sum of Fifty Thousand and 001100 ($50,000.00) Dollars; QB112223496.2 2 c. Contemporaneously with the execution of this Agreement, the City shall deliver to the attorneys for Aspen Ridge a promissory note in the principal amount of Twenty-Five Thousand Dollars ($25,000.00) substantially in the form attached hereto as Exhibit A. On or before May 2,2011, the City and/or its insurer on behalf of itself and the Individual Defendants shall pay the principal amount of the aforesaid Promissory Note to the then holder of the Promissory Note. d. All payments shall be made payable to "Aspen Ridge Estates, LLC" and "Quarles and Brady LLP." e. Any payment made by an insurer for a Defendant shall be deemed to be a payment by the party on whose behalf said payment is made. 3. Dismissal of the Lawsuit. Within ten (10) days after all parties have executed this Agreement, the Parties shall execute and file a Stipulation and Order of Dismissal With Prejudice substantially in the form attached hereto as Exhibit B, with the Court retaining jurisdiction to enforce the settlement and otherwise dismissing the Lawsuit, including claims and counterclaims,with prejudice, and with each Party bearing its own attorneys' fees and costs. 4. Release. The parties hereby release one another as follows; a. Except for the obligations of Defendants as set forth in this Agreement, Aspen Ridge, for itself and its respective officers, managers, members, agents, employees, successors and assigns (hereinafter "the Aspen Ridge Releasing Parties"), does hereby release, remise,acquit,hold harmless and forever discharge each of the Defendants and their respective officers, directors and shareholders, elected and non-elected officials, mayor and QB112223446.2 3 aldermen, agents, employees, successors and assigns (hereinafter "the Aspen Ridge Released Parties") from all causes of action, suits, debts, liens, obligations, rights, costs, expenses, compensation, contracts, contributions, indemnities, agreements, promises, damages, interest, attorneys' fees, reckonings, bonds, judgments and all claims or demands whatsoever, whether known or unknown, whether in law or equity, by contract, tort, common law or pursuant to statute, of whatever bind or however arising, which the Aspen Ridge Releasing Parties now have or ever had, against the Aspen Ridge Released Parties arising out of or relating to the Property,the Annexation Agreement or the Lawsuit. b. Except for the obligations of Aspen Ridge and its successors as set forth in this Agreement, Yorkville, for itself and elected and non-elected officials, its mayor and aldermen, agents, employees, successors and assigns (hereinafter "the Yorkville Releasing Parties"), does hereby release, remise, acquit, hold harmless and forever discharge Aspen Ridge and its respective officers, members, managers, agents, employees, successors and assigns (hereinafter"the Yorkville Released Parties") from all causes of action, suits, debts, liens, obligations, rights, costs, expenses, compensation, contracts, contributions, indemnities, agreements, promises, damages, interest, attorneys' fees, reckonings, bonds,judgments and all claims or demands whatsoever, whether known or unknown, whether in law or equity, by contract, tort, common law or pursuant to statute, of whatever kind or however arising, which the Yorkville QSU 2223496.2 4 Releasing Parties now have or ever had, against the Yorkville Released Parties arising out of or relating to the Property, the Annexation Agreement or the Lawsuit. c. Except for the obligations of Aspen Ridge as set forth in this Agreement, EEI, for itself and its officers, directors and shareholders, agents, employees, successors and assigns (hereinafter "the EEI Releasing Parties"), does hereby release, remise, acquit, hold harmless and forever discharge Aspen Ridge and its respective officers, members, managers, agents, employees, successors and assigns (hereinafter "the EEI Released Parties") from ail causes of action, suits, debts, liens, obligations, rights, costs, expenses, compensation, contracts, contributions, indemnities, agreements, promises, damages, interest, attorneys' fees, reckonings, bonds,judgments and all claims or demands whatsoever, whether known or unknown, whether in law or equity, by contract, tort, common law or pursuant to statute, of whatever kind or however arising, which the EEI Releasing Parties now have or ever had, against the EEI Released Parties arising out of or relating to the Property,the Annexation Agreement or the Lawsuit. d. Except for the obligations of Aspen Ridge as set forth in this Agreement, Art Prochaska, James Bock, Dean Wolfer, Joseph Besco, Paul James, Marty Munns, Travis Miller and John Wyeth, for themselves and their respective agents, employees, successors and assigns (hereinafter "the Individual Defendant Releasing Parties"), do hereby release, remise, QB112223496.2 5 acquit, hold harmless and forever discharge Aspen Ridge and its respective officers, members, managers, agents, employees, successors and assigns (hereinafter"the Individual Defendant Released Parties'}from all causes of action, suits, debts, liens, obligations, rights, costs, expenses, compensation, contracts, contributions, indemnities, agreements, Promises, damages, interest, attorneys' fees, reckonings, bonds,judgments and all claims or demands whatsoever, whether known or unknown, whether in law or equity, by contract, tort, common law or pursuant to statute, of whatever kind or however arising, which the Individual Defendant Releasing Parties now have or ever had, against the Individual Defendant Released Parties arising out of or relating to the Property, the Annexation Agreement or the Lawsuit. e. Yorkville agrees to pay the above settlement amounts on behalf of Art Prochaska, James Bock, Dean Wolfer, Joseph Besco, Paul James, Marty Munns, Travis Miller and John Wyeth, ("the Individual Defendants") and does hereby release, remise, acquit, hold harmless and forever discharge the Individual Defendants and the EEI Releasing Parties from all causes of action, suits, debts, liens, obligations, rights, costs, expenses, compensation, contracts, contributions, indemnities, agreements, promises, damages, interest, attorneys' fees, reckonings, bonds,judgments and all claims or demands whatsoever, whether known or unknown, whether in law or equity, by contract, tort, common Iaw or pursuant to statute, of whatever kind or however arising, which Yorkville now has or QBU2223496.2 6 ever had, against the Individual Defendants or the EEI Releasing Parties arising out of or relating to the Property,the Annexation Agreement or the Lawsuit. 5. Annexation Agreement to Remain in Full Force and Effect. The Annexation Agreement between Aspen Ridge and Yorkville, dated August 8,2006, shall remain in full force and effect but shall be limited as provided for in this Agreement. The continuing effectiveness of the Annexation Agreement, as amended by this Agreement, shall in no way limit or modify the complete release of the Yorkville Released Parties by the Yorkville Releasing Parties. In the event that Aspen Ridge assigns its rights and obligations under the Annexation Agreement to a successive owner of the Aspen Ridge Property, Yorkville shall not be deemed to have waived its rights to collect front-funding from that successor pursuant to Paragraph 10(D) of that agreement. The Aspen Ridge Releasing Parties and Yorkville Releasing Parties agree that they will not pursue any cause of action for alleged breach of the Annexation Agreement by any of the Aspen Ridge Released Parties or Yorkville Released Parties, respectively, based on events occurring prior to the Effective Date of this Agreement. The Aspen Ridge Releasing Parties further agree that they will not pursue any cause of action for alleged fraud relating to the Annexation Agreement by any of the Aspen Ridge Released Parties occurring prior to the Effective Date of this Agreement. Aspen Ridge shall have no obligations under the Annexation Agreement; provided, however, if in the future either Aspen Ridge voluntarily elects, in its sole discretion, to develop the Aspen Ridge Property, or any successor owner of the Aspen Ridge Property proceeds to develop the Aspen Ridge Property, then and only then shall either Aspen Ridge or such successor owner, as the case may be, be obligated to fully perform each and every obligation of the Annexation Agreement, including but not limited to the payment and/or QBU 2223496.2 7 reimbursement of professional fees incurred in the review or construction of any development proposed for the Aspen Ridge Property. The Parties to this Agreement agree and acknowledge that the Annexation Agreement may be subject to future amendment or modification, which amendment shall require a separate written agreement executed in accordance with the provisions of the Illinois Municipal Code, the Yorkville City Code of Ordinances and the terms of the Annexation Agreement, but which amendment shall not alter the terms of this Agreement except with the express, written consent of all parties hereto. 6. Each Party To Bear Its Respective Attorneys' Fees and Costs. Each of the parties shall be responsible for its respective costs, expenses and attorneys' fees incurred in the Lawsuit. 7. No Assistance to Litigants. From the date of this Agreement forward, Aspen Ridge and its members and officers shall not disclose any information gained in the course of this litigation to any person or entity who may or who has filed a lawsuit, charge, claim or complaint against any of the Defendants or any person or entity against whom Aspen Ridge has released its claims as provided for in this Agreement. This restriction applies to information obtained by Aspen Ridge in the course of this litigation only and does not apply to information that is otherwise publically available. if Aspen Ridge receives any subpoena or becomes subject to any legal obligation that implicates this paragraph, it shall provide prompt written notice of that fact to the Defendants and provide a copy of the subpoena and any other documents describing any such legal obligation. 8. Disclosure of Information. The parties shall limit statements, press releases, corporate announcements and the like regarding the litigation and terms of settlement, if any,to a statement that is mutually acceptable to the parties after consultation thereby, or a statement that QB112223496.2 8 "the parties have agreed to settle the dispute to avoid further costly litigation and that no party admitted any wrongdoing or liability, and that the settlement amounts paid by the City were paid in part by the City's insurer." Yorkville shall notify EEI and Aspen Ridge before issuing any press releases or official statements, and EEI and Aspen Ridge shall have the opportunity to review and modify any such proposed press release or statement prior to its issuance. Yorkville shall also notify EEI and Aspen Ridge before releasing any information regarding this Agreement or the settlement of the Lawsuit pursuant to the Illinois Freedom of Information Act or any other legal obligation; said notification shall be issued to EEI and Aspen Ridge immediately upon the receipt of any request for such information (and in no event later than 24 hours after such receipt), and EEI and Aspen Ridge shall be provided with a meaningful opportunity to assist in the preparation of a response prior to any such response being tendered to the party requesting the information. Nothing in this Agreement shall be construed to limit the rights of any party to disclose the terms of this Agreement as: (i)required by law to any governmental authority or agency; (ii) otherwise required by law or legal process or court order; (iii) reasonably necessary in any legal proceeding to enforce any provisions of this Agreement; or (iv)reasonably necessary to communicate with legal counsel, accountants and other tax, financial and legal advisors. Yorkville shall ensure that each and every one of its public officials are aware of the terms and conditions contained herein, and covenants and agrees that it shall not issue any official public comments or statements in contravention of these provisions. 9. Representations and Warranties: Each of the persons signing this Agreement hereto represents and warrants to the other as follows: a. that he or she has read this Agreement; Qau 2223496.2 9 b. that he or she has signed this Agreement voluntarily after consultation with counsel and without coercion or duress; C. If this Agreement is being executed on behalf of an entity, that he or she has the authority to execute this Agreement on behalf of the entity and thereby bind such entity to perform all acts required to be performed under this Agreement by that entity; d. that he or she acknowledges that this Agreement is being entered into voluntarily and without duress and not on the basis of any promise or representation, express or implied,that is not set forth herein;and e. that he or she or the entity on whose behalf this Agreement is entered into has not sold, assigned, transferred, conveyed or otherwise disposed of any claim, demand, cause of action, obligation, damage or liability covered by this Agreement. 10. No Other Representations and Warranties. The parties understand and agree that there are no other promises,representations or statements of fact and/or opinion except as set forth in this Agreement. 11. Notices. All notices and other communications hereunder shall be given in writing and shall be deemed to have been duly given and effective as follows: (i)upon receipt if delivered in person or via facsimile; (ii) one day after deposit prepaid with a national overnight express delivery service; or (iii) three days after deposit in the United States Mail, postage prepaid. Any party may change the following contact information upon written notice to the other ley. QB112223496.2 10 Notices shall be delivered or transmitted as follows: If to Aspen Ridge: Aspen Ridge Estates c/o Paul Dresden P.O. Box 790 Mokena, Illinois 60448 With a copy to: Leonard S. Shif'tlett Quarles&Brady, LLP 300 North LaSalle Street, Suite 4000 Chicago, Illinois 60654 Telephone: (312) 715-5038 Facsimile: (312)632-1738 Email: lss @quarles.com If to Yorkville and the Individual Defendants except Wyeth: City Administrator 800 Game Farm Road Yorkville, Illinois 60560 Telephone: (630) 553-8537 Facsimile: (630) 553-7575 With a copy to: Thomas G. Gardiner Gardiner Koch Weisberg&Wrona 53 West Jackson Boulevard Suite 950 Chicago, Illinois 60604 Telephone: (312)362-0000 Facsimile: (312)362-0440 E-mail: tardiner@gkwwlaw.com If to Wyeth: John Wyeth 701 North Bridge Street Yorkville, Illinois 60560 (630) 553-9916 QBU2223496.2 1 1 With a copy to: Michael D, Bersani 333 Pierce Road, Suite 195 Itasca, Illinois 60143 (630) 860-4343 If to EEI: Peter G. Wallers,President Engineering Enterprises, Inc. 52 Wheeler Road Sugar Grove, Illinois 60554 Telephone: (630)466-6700 Facsimile: (630)466-6701 Email: pwallers@eeiweb.com With a copy to: Dean M. Frieders Mickey, Wilson, Weiler& Renzi 2111 Plum Street Aurora, Illinois 60507-0787 Telephone: (630) 801-9699 Facsimile: (630) 801-9715 Email: dmf@mickeywilson.com 12. Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all parties have signed the same document. All counterparts shall be construed together and shall constitute one agreement. Each counterpart having attached to it signature pages which collectively bear an original signature or a facsimile signature of all of the parties shall be an original copy. 13. Execution by Facsimile or Other Electronic Means. This Agreement may be executed and delivered by facsimile or other electronic means, including but not limited to the delivery, by e-mail, of optically scanned electronic documents or PDF-format documents, and the parties hereto agree that such facsimile or other electronic execution and delivery shall have the same force and effect as delivery of an original document with original signatures, and that QBI 12223496.2 12 each party hereto may use such facsimile or other electronic signatures as evidence of the execution and delivery of this Agreement by the parties hereto to the same extent that an original signature could be used. 14. Entire Agreement. This Agreement represents the entire understanding between the parties in relation to the matters dealt with herein and supersedes all previous covenants and representations made between the parties in relation to the Agreement, whether oral or written. All prior negotiations, promises and representations and statements of fact and/or opinion are merged into this Agreement. This Agreement may only be modified if such modification is in writing and signed by a duly authorized representative of each party hereto. 15. Binding upon Successors and Assigns. This Assignment shall be binding upon, and shall inure to the benefit of,the parties hereto and their respective successors and assigns. 16. Severability. Every provision of this Agreement is intended to be severable. if any term or provision of this Agreement is determined to be illegal, invalid, or unenforceable for any reason whatsoever, such provision shall be limited or eliminated to the minimum extent necessary to preserve the intent of this Agreement so that the remaining provisions of this Agreement shall otherwise remain in full force and effect. 17. Headings. The headings used herein are for purposes of convenience or reference and are not part of this Agreement. The headings shall have no effect upon the construction or interpretation of any part hereof. 18. Attorneys' Fees. If any party institutes an action against another party, proceeding or counterclaim against the other relating to this Agreement, or a default thereof, the non-prevailing party shall pay the court costs, expenses and reasonable attorneys' fees incurred by the prevailing party. The giving of a notice of default by a party shall constitute part of an QBU 22223496.2 13 action or proceeding under this Agreement, entitling the prevailing party to reimbursement of its reasonable expenses of attorneys' fees and disbursements, even if an action or proceeding is not commenced in a court of law and whether or not the default is cured. The obligations set forth in this paragraph shall survive the expiration or termination of this Agreement. 19. Governing Law. The validity, construction and enforceability of this Agreement shall be construed under and governed by,as the case may be,the laws of the State of Illinois. 20. Effective Date. The effective date of this Agreement shall be deemed to be the last date on which a party has executed this Agreement,as set forth below, 21. Time of the Essence. Time is of the essence in this Agreement, [SIGNATURE PAGE TO FOLLOW] QB\12223496.2 14 IN WITNESS WHEREOF,the parties have entered into this Agreement as of the date first above written. ASPEN RIDGE ESTATES,LLC,an Illinois UNITED CITY OF YORKYILLE,a limited liability company municipal corporation OD By: I/� (7_ f By: Name• PA-al �f r Z_ -- Name: Title: 'mQ-!7' be r'' Title: Date: February '7 Date:February ,201 I ENGINEERING ENTERPRISES,INC., an ARTHUR F.PROCHASKA,JR. Illinois corporation By: Date:February ,2011 Name: PAUL JAMES Titie: Date: February , 2011 Date:February 2011 JAMES BOCK DEAN WOLFER. Date:February ,2011 Date:February ,2011 JOSEPH BESCO MARTY MUNNS Date: February__ ____ ,2011 Date:February ,2011 TRAVIS MILLER JOHN WYETH Date: February ,2011 Date: February ,2011 QB\12223496.2 15 IN WITNESS WHEREOF,the parties have entered into this Agreement as of the date first above written. ASPEN RIDGE ESTATES,LLC,an Illinois 'UNITED CITY OF YORKVILLE,a limited liability company municipal corporation By: By: Name: Name: Title: Title: Date: February ,2011 Date:February ,2011 ENGINEERING ENTERPRISES,INC.,an ARTHUR F.PROCHASKA,JR. Illinois corporation By: � 1 vdA,— Date:February ,2011 Name: LL�.5 Title: Fg6sipteoT PAUL JAMES Date: February 15'01 12011 Date:February ,2011 JAMES BOCK DEAN WOLFER Date: February ,2011 Date: February ,2011 JOSEPH BESCO MARTY MUNNS Date: February ,2011 Date: February .2011 TRAVIS MILLER JOHN WYETH Date: February ,2011 Date:February • ,2011 QH112223496.2 15 IN WITNESS VMREOF,the parties have entered into this Agreement as of the date first above written. ASPEN RIDGE ESTATES,LLC,an Dliaols UNITED CI'T'Y OF YORKVR.LE,A limited liability company municipal corporation By: By: Name: Mane- Title: Title: Date:February , 2011 Date:February_ ,2011 ENGINEERING ENTERPRISES,INC,,an ARTHUR F.PROCHASKA,JR. Illinois corporation By: Name; ' Date:February 2011 PAUL JAN ES Title: Date:February 2011 Date:February .2011 JAMES BOCK_ DEAN WOLFER Date:February S' ,2011 Datc: February 2011 JOSEPH RESCO MARTY MUNNS Date:February ,2011 Date:February ,2011 TRAVIS MMLER JOHN WYETH Date:February ,2011 Date;February ,2011 Q131122234%.2 is IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date first above written. ASPEN RIDGE ESTATES, LLC,an Illinois UNITED CITY OF YORKVILLE,a limited liability company municipal corporation By: By: Name: Name: Title: Tide: Date, February ,2011 Date: February ,2011 ENGINEERING ENTERPRISES, INC.,an ARTHUR F.PROCHASK,A,,JR. Illinois corporation By: Date: February ,2011 Name; PAUL JAMES Title: Date: February '2011 Date: February_ ,2011 JAMES BOCK DEAN WOLFER Date: February ,2011 Date: February , 2011 JQSFPH BESCO MARTY MUNNS Date: February 20l 1 Date: February ,. 2011 TRAVIS MILLER JOHN WYETH Date: February ,201 l Date: February , 2011 QB112223446.2 15 IN WIT'NESS AEOF the parties have entered inta thi,; Agreement as of the elate fil'sl abo" A.SPL'N RIDGI L.STA 1'1.*.s, 1.1 Illinois UNITED CITY OF VORKVI LLE.', 11 limited liabiliIN c'millam municipal corporation Nanw. Daw. Dntc: February 2011 ENCIN-FERING EN't ERPRISES, INC.,au ARTHUR F. PROCHASKA,JR. 11hikois corporal lot] lly" Date: February 2011 VAUL.IAMES Dalu. 1"Awila-v 2()l 1• Datc: February 2011 JAMES ROCK DEAN WOLFER Date- 1.chrwor% 201 1 DMC. F-01111-MV 2011 JOSEI'll MARTY MUNNS Dille. February 2011 \111 LE R MAIN, N1.1"Fil-I Dlke' F• hl'Ll'M-V 201 1 IN WITNESS WHEREOF.the parties have entered into this Agreement as of the date first 111)(we written. ASPEN RIDGE ESTATES,LLC,an Illinois UNITED CITY OF YORKVILLE,a limited liability company municipal corporation Name: Title: pate: I cbruar) , 201 l Date: February___,2011 FNGINFF.RING ENTERPRISES,INC.,an ARTHUR F.PROCCH XA,JR, � Illinois corporation -.._�_.�._. ._. .,.._...�_ _.•_a_�,a.�...._.�_��-� Date:February.. 2011 Nair`: PAUL 3AMl?S I itic: Date: [chruar� . 201 1 Date: Februnry 2011 JAMES BOCK DEAN WOLFER Date: Februar), . 201 1 Date: February 2011 JOSEPH Bl?.SCO MARTY MUNNS 1 nte- I ehruar\ . 201 1 Cate: February 2011 TRAVIS N111.1,ER JOHN WYETH Daw: Fcbruar% . 2U l I Date: February _,2011 011,022114P12 15 IN WITNESS WHEREOF,the Parties have entered into this Agreement as of the date first above written. ASPEN RIDGE ESTATES,LLC,an Illinois UNITED CITY OFYORKVILLE, a limited liability company municipal corporation By: By_ Name: Name: Title: Title: Date:February , 2011 Date:February ' 2011 ENGINEERING ENTERPRISES,INC., an ARTHUR F.PROCHASKA,M Illinois corporation $y. Date: February � .2011 Name: PAU .S Title: Date: February ,2011 Date:Fehrt e ,2011 JAMES BOCK DEAN WOLFER Date: February ,2011 Date:February ,2011 JOSEPH BESCO MARTY MUNNS Date: Febmary ,2011 Date: February ,2011 TRAVIS MILLER JOHN WYETH Date: Febmary_ , 2011 Date: February ,2011 Q6�12Z2349G.� 15 915-941 1621 Line 1 06:51:10 p.m. 02-07-2011 212 IN'WITNESS WHEREOF,the parties have entered into this Agreement as of The date first above written. ASPEN RIDGE ESTATES,LLC,an Illinois UNITED CITY OF YORKVILLE,a limited liability company municipal corporation By: By: Name: Name: Title: Title: Date:February ,2011 Date:February_0 2011 ENGINEERING ENTERPRISES,INC.,an ARTHUR F.PROCHASKA,JR. Illinois corporation By: Date:February ,2011 Name: PAUL,TAMES Title; Date:February ,2011 Date; February� ,2011 JAMES BOCK DEAN WOLFER Date: February ,2011 Date:February ,2011 JOSEPH BESCO MARTY MUNNS Date;February ,2011 Date: February ,2011 TRAVIS MILLER JOHN WYETH Date:February ,2011 Date:February ,2011 QB112223496.2 15 IN WITNESS WHEREOF,the parties have entered into this Agreement as of the date first above written. ASPEN RIDGE ESTATES,LLC,an Illinois UNITED CITY OF YORKVILLE,a limited liability company municipal corporation By. By: Name: Name: Title: Title: Date;February ,2011 Date: February ,2011 ENGINEERING ENTERPRISES,INC.,an ARTHUR F.PROCHASKA,JR. Illinois corporation By: Date:February ,2011 Name: PAUL JAMES Title: Date: February , 2011 Date:February ,2011 ,FAMES!BOCK DEAN WOLFER Date; February .2011 Date: February .2011 JOSEPH HESCO MARTY MUNNS Date:February , 2011 Date: February ,2011 TRAVIS MILLER JOHN WYETH Date: February ,2011 Date: February ,2011 QBN ZI23496.2 15 IN WITNESS WHEREOF,the parties have entered into this Agreement as of the date first above written. ASPEN RIDGE ESTATES,LLC,an Illinois UNITED CITY OF YORKVILLE, a limited liability company municipal corporation By: By; Name: Name: Title: Title: Date: January ,2011 Date: January ,2011 ENGINEERING ENTERPRISES,INC., an ARTHUR F. PROCHASKA,JR. Illinois corporation By: Date: January ,2011 Name: PAUL JAMES Title: Date: January ,2011 Date. January ,2011 JAMES BOCK DEAN WOLFER Date. January ,2011 Date: January ,2011 JOSEPH BESCO MARTY MUNNS Date:January ,2011 Date: January _ ,2011 TRAVIS MILLER JO 1473-M.71 W�-r-�#' � Date: January__ ,2011 Vte: Jan ff 2011 QBI12223495.2 15 EXHIBIT A PROMISSORY NOTE $25,000.00 Chicago, Illinois February,,2011 FOR VALUE RECEIVED, the undersigned, United City of Yorkville, Illinois (hereinafter "Maker"), promises to pay to the order of Aspen Ridge Estates, LLC and Quarles & Brady LLP (hereinafter collectively "Holder") at United City of Yorkville, City Hall, Office of the Treasurer, 800 Game Farm Road, Yorkville, Illinois, on May 2, 2011 ("Maturity Date"), the principal sum of Twenty-Five Thousand Dollars and No/100 ($25,000.00), without interest to Maturity Date. This Promissory Note may be pre-paid in whole or in part without penalty or charge. The undersigned hereby waives demand, presentment, dishonor and protest and any notice thereof as well as all other notices of any kind. No delay or omission by Holder to exercise any right or remedy hereunder, whether on, before or after the happening of any breach or default, shall impair any such right or remedy or shall operate as a waiver thereof or as a waiver of any such breach or default. No single or partial exercise by Holder hereof of any right or remedy shall preclude any other or further exercise thereof, or preclude any other right or remedy. The rights and remedies herein provided are cumulative and are not exclusive of any other rights or remedies provided by law or in equity. Any portion of the principal sum that is not paid on the Maturity Date shall bear interest at the rate of nine percent (9%) per annum from and after the Maturity Date until paid in full. Any payments on this Promissory Note received after the Maturity Date shall be applied first to accrued and unpaid interest through the date of payment and then to principal. Holder may assign, sell, sccuritize, participate, pledge or otherwise transfer all or any portion of Holder's right and interest in, to and under this Promissory Note. Any successor holder of this Promissory Note shall be Holder as that term is used herein. The obligations of Maker hereunder may not be assigned or assumed or transferred. Maker agrees to pay all costs of collecting any amounts due under this Promissory Note, including reasonable attorney's fees, costs and expenses. Maker agrees that the amount of attorney's fees, costs and expenses provided for in this Promissory Note is intended to reimburse Holder of this Promissory Note for all legal fees, costs and expenses incurred in collecting any amounts due hereunder, including legal fees, costs and expenses incurred in any and all proceedings after the entry of judgment thereon up to and including the time when Holder has irrevocably recovered all amounts due hereunder. Page 1 of 2 QB\1 1932296.2 EXHIBIT A This Promissory Note is executed its and shell be governed by and construed in accordance with the internal laws of the State of Illinois without regard to principles of conflicts of law. UNITED CITY OF YORKVILLE By: Its Mayor ATTEST: By: City Cleric Page 2 of 2 QBU 19322%.2 EXHIBIT B IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ASPEN RIDGE ESTATES,LLC ) Plaintiff, ) No. 08 CV 4479 ) V. ) Hon. Charles P.Kocoras Magistrate Judge Mason UNITED CITY OF YORKVILLE, } ARTHUR F.PROCHASKA, JR., ) JOHN JUSTIN WYETH, ) JAMES BOCK,DEAN WOLFER, ) JOSEPH BESCO, PAUL JAMES, ) MARTY MUNNS, } ENGINEERING ENTERPRISES, INC., ) TRAVIS MILLER, } } Defendants. ) STIPULATION OF DISMISSAL PLEASE TAKE NOTICE that pursuant to Fed. R. Civ. Pro. 41(a)(1)(ii),the parties herein have stipulated that this action and all counterclaims filed herein shall be dismissed with prejudice. Date: February 8,2011 AGREED: By: By: Leonard Shifflett Thomas Gardiner Attorney for Aspen Ridge Estates, LLC Attorney for United City of Yorkville,Arthur F. Prochaska,Jr.,James Bock,Dean Wolfer, Joseph Besco,Paul James,Marry Munns,and Travis Miller By: By: Dean Frieders Michael Bersani Attorney for Engineering Enterprises, Inc. Attorney for John Justin Wyeth