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City Council Packet 2006 07-25-06 ,'��° °'Ty United City of Yorkville J= T a 800 Game Farm Road EST. 1836 Yorkville, Illinois 60560 �� Telephone: 630-553-4350 O �� Fax: 630-553-7575 9 ®�® JILL E AGENDA CITY COUNCIL MEETING CITY COUNCIL CHAMBERS 7:00 PM Tuesday,July 25,2006 Call to Order: Pledge of Allegiance: Roll Call by Clerk: WARD I WARD II WARD III WARD IV Paul James Valerie Bard Marty Munns Joe Besco Jason Leslie Dean Wolfer James Bock Rose Ann Spears Establishment of Quorum: Introduction of Guests: Amendments to Agenda: Committee Meeting Dates: Public Works Committee Meetine: Ad-hoc: Technology Committee Committee of the Whole To be Announced 7:00 p.m., Tuesday, August 15, 2006 City Hall Conference Room Economic Development Committee: 7:00 p.m., Thursday, July 27, 2006 City Hall Conference Room Administration Committee Meeting: Committee of the Whole 7:00 p.m., Tuesday,August 1,2006 City Hall Conference Room Public Safety Committee Meeting: Committee of the Whole 7:00 p.m., Tuesday,August 1,2006 City Hall Conference Room Presentations: None City Council Meeting Agenda July 25, 2006 Page 2 Public Hearings: 1. Westbury East Village Special Service Area 2006-111 2. Westbury South Village Special Service Area 2006-112 Citizen Comments: Consent Agenda: 1. EDC 2006-05 Ratos Development/Economic Initiative Agreement for Comeils and Route 47 -authorize Mayor and City Clerk to execute 2. EDC 2006-16 Raymond Stormwater Management and Storm Sewer Outfall Improvement Agreement- authorize Mayor and City Clerk to execute 3. PW 2006-117 Water Department Report for May 2006 4. PW 2006-118 Rob Roy Creek Interceptor(Contract#3)—Change Order#4 -authorize increase in an amount not to exceed$9541.15 and authorize Mayor to execute 5. PW 2006-119 Wells 3 and 4 Treatment Facility—Change Order#2 -authorize increase in an amount not to exceed$12,143.00 and authorize Mayor to execute 6. PW 2006-120 Menard's Commercial Commons (Lot 7)—Sidewalk Agreement- authorize City Administrator to execute 7. PW 2006-121 101 W. Veteran's Parkway—Sidewalk Agreement-authorize City Administrator to execute 8. PW 2006-122 Cozy Corner Subdivision—IDOT Highway Permit and Resolution- authorize Mayor and City Clerk to execute 9. PW 2006-123 Shops at Veteran's Parkway—IDOT Highway Permit and Resolution-authorize City Clerk to execute 10. PW 2006-124 Aerial Lift Truck Purchase- authorize purchase of Demonstrator Unit 2006 Ford F450 with Altec AT37-G Articulating Aerial Unit in an amount not to exceed$69,2 70.00 11. PW 2006-128 101 E. Center Street—Sidewalk Agreement-authorize City Administrator to execute Plan Commission/Zoning Board of Appeals: Minutes for Approval(Corrections and Additions): Minutes of City Council—None Minutes of Committee of the Whole—July 5, 2006 City Council Meeting Agenda July 25, 2006 Page 3 Bill payments for approval from the current Bill List(Corrections and Additions): Checks total these amounts: $ 1,427,951.96 (vendors) $ 195,087.86 (payroll period ending 7/08/06) $ 1,623,039.82 (total) Reports: Mayor's Report: 1. Proclamation for National Night Out 2. COW 2006-05 Resolution Establishing a Policy for the City Administrator's Annual Performance Evaluation 3. CC 2006-04 Ratify Ordinance Providing for the Issuance of$1,500,000 General Obligation Library Bonds, Series 2006 City Council Report: City Attorney's Report: City Clerk's Report: City Treasurer's Report: City Administrator's Report: Finance Director's Report: Director of Public Works Report: Chief of Police Report: Director of Parks &Recreation Report: Community Development Director Report: Community Relations Manager: Community& Liaison Report: Committee Reports: Public Works Committee Report: 1. No Report. Economic Development Committee Report: 1. No Report. City Council Meeting Agenda July 25,2006 Page 4 Public Safety Committee Report: 1. No Report. Administration Committee Report: 1. ADM 2006-44 Proposal for Community Relations Intern 2. ADM 2006-46 IT Assistant Job Description Update Additional Business: Adjournment: COMMITTEES, MEMBERS AND RESPONSIBILITIES PUBLIC WORKS '----- Committee Departments Liaisons Chairman: Alderman Besco Water and Sewer Park Board Committee: Alderman Munns Streets and Alleys YBSD Committee: Alderman Wolfer Sanitation and Waste Committee: Alderman James _[ECONOMIC DE_VE__L_OPMEN_ _ Committee Departments Liaisons Chairman: Alderman Munns Planning& Building&Zoning Chamber of Commerce Committee: Alderwoman Burd Business &Economic Dev. Kendall County Econ. Dev. Committee: Alderman Besco Plan Commission Committee: Alderman Leslie Bristol Plan Commission Yorkville Econ. Dev. Corp. Aurora Area Convention& Tourism Council Downtown Re-development UBLIC S_AFE_TI' Committee Departments Liaisons Chairman: Alderwoman Spears Police Human Resource Comm. Committee: Alderman Wolfer Schools School District Committee: Alderman Leslie Public Relations KenCom Committee: Alderman Bock City Council Meeting Agenda July 25, 2006 Page 5 COMMITTEES,MEMBERS AND RESPONSIBILITIES (con't) DMINIST_R_ATIONI Committee Departments Liaisons Chairman: Alderman James Finance Metra Committee: Alderwoman Spears Public Properties Library Committee: Alderwoman Burd Personnel Cable Consortium Committee: Alderman Bock AD_HOC_ TECHNOLOGY Committee Co-Chairman: Alderman Wolfer Co-Chairman: Alderman Bock =`CEO car o United City of Yorkville Memo a A 800 Game Farm Road EST. 1836 Yorkville, Illinois 60560 -4 Telephone: 630-553-4350 Fax: 630-553-7575 Date: July 21,2006 To: Mayor and City Council From: Lisa Pickering, Deputy Clerk CC: Department Heads Subject: Revised information for City Council packets—July 25,2006 Attached please find revised information for Consent Agenda Item#1 —Ratos Development/Economic Initiative Agreement for Comeils and Route 47. Please add this updated information to your City Council packet. 07/21/2006 14:41 FAX 630 553 5764 DANIEL J. KRAMER IM 003/0222 f CT I Roo- Lw Eb vE(?'Sio� Revised July 19,2006 Revised Ju1v21,2006 STATE OF ILLINOIS ) )ss. COUNTY OF KENDALL ) UNITED CITY OF YORKVILLE --------AND CASTLE BANK AS TRUSTEE UNDER TRUST AGREEMENT DATED JULY 8.2005 AND KNOWN AS TRUST#2373 DEVELOPMENT/ECONOMICINITIATIVE AGREEMENT TRIS DEVELOPMENT AGREEMENT (this"Agreement')is made and entered into as of the_day of 2006 by and between THE UNITED CITY OF YORKVILLE, an Illinois corporation located in Kendall County (the "CITY") and CASTLE BANK AS TRUSTEE UNDER TRUST AGREEMENT DATED JULY 8,2005 AND KNOWN AS TRUST#2373(the"OWNEWI. RECITALS The CITY is an Illinois municipality and hereby enters into this Agreement pursuant to 65 ILCS 5/8-11-20 (2002)("Enabling Statute"); and pursuant to Section 6(a) of Article VII of the Constitution of the State of Illinois of 1970,the CITY has determined that it has the authority to enter into this Agreement. The OWNER owns and intends to develop the real property located at the northeast comer of the intersection of Route 47 and Camels Road and legally described in Exhibit"A" (the"Property")for commercial uses("Development Project") subject to the zoning ordinance enacted by the CITY. OWNER has demonstrated to the CITY's satisfaction that the OWNER has the experience and capacity to complete the Development Project. The OWNER and the CITY have determined that without the financial assistance provided under this Agreement the Development Project would not be feasible and that the OWNER would not undertake the Development Project. The OWNER has expressly conditioned the undertaking of the Development Project on the CITY's agreement to pledge the Sales Tax Revenues(defined later) it receives from the Development Project to repay OWNER its Reimbursable Improvements (defined later),all as provided in this Agreement. -1- 07/21/2006 14:41 FAX 630 553 5764 DANIEL J. RRAMER 1 004/022 The CITY deems it to be of significant importance to encourage development within the CITY so as to maintain a viable real estate tax and sales tax base and employment opportunities. Accordingly, the CITY has made the following findings necessary pursuant to the Enabling Statute: That the Property has remained vacant in excess of twenty(20)years; That the Development Project is expected to create job opportunities within the municipality; That the Development Project will serve to further the development of adjacent areas; That the CITY is desirous of creating a large regional detention lake on real property adjoining and contiguous to the subject property immediately to the north thereof and in order to provide an outlet for said regional drainage facility, the CITY needs a storm outlet easement along the east and southern boundary of the subject real property described in the attached Exhibit`B"; The CITY in addition to said drainage out-flow easement also needs funds with which to construct said regional detention facility and outlet easement. Construction of said improvements will benefit and allow the development of surrounding parcels of commercial real property. The CITY has further requested that OWNER financially participate in the improvement of Illinois Route 47 adjacent to the subject real property,and the cost of signalization at the intersection of Illinois State Route 47 and Comeils Road in the United City of Yorkville, And to make proportion payments toward the design, engineering and construction as needed on a fair and equitable basis consistent with those payments made by other land owners contributing to the improvement project.Preliminary scope of the project is depicted in the attached Exhibit ". The CITY has requested OWNER to dedicate real property to the CITY on Comeils Road and Illinois State Route 47 for the widening of Right-of--Ways. That without this Agreement,the Development Project would not be reasonably possible given the off-site costs imposed by the Illinois Department of Transportation; That the OWNER meets high standards of creditworthiness and financial strength; That the Development Project will strengthen the commercial sector of the municipality; That the Development Project will enhance the tax base of the CITY; That this Agreement is made in the best interest of the CITY;and -2- 07/21/2006 14:41 FAX 630 553 5764 DANIEL S. KRAMER 0005/022 Pursuant to the Illinois Municipal Code,as amended("Code"),the CITY has authority to enter into an economic incentive agreement relating to the development of land within corporate limits, including an agreement to share or rebate a portion of the retailer's occupation taxes received by the CITY that are generated by the development. ' Subject to the terms and conditions of this Agreement,the CITY agrees to reimburse the OWNER for its Reimbursable Improvements. In reliance upon the CITY's representations and covenants contained in and subject to the terms and conditions of this Agreement,the OWNER intends to cause the Reimbursable Improvements(as hereinafter defined)to be constructed and to enter into construction contracts and other agreements as necessary. This Agreement has been submitted to the corporate authorities of the CITY for consideration and review, and the corporate authorities have given all notices and taken all actions required to be taken prior to the execution of this Agreement to make this Agreement effective. NOW,THEREFORE,to maintain and revitalize business within the CITY by assuring opportunities for development and attracting sound and stable commercial growth; to promote the public interest and to enhance the tax base of the CITY;to induce the OWNER to undertake the Development Project; in consideration of the OWNER's agreement to undertake the Development Project and the CITY's agreement to reimburse the OWNER for the costs of causing the construction of certain of the Reimbursable Improvements;and in consideration of the mutual promises,covenants,.stipulations and agreements herein contained in this Agreement, the OWNER and the CITY hereby agree as follows: Incorporation of Recitals. The recitals set forth above are incorporated hereby by this reference as if fully set forth herein. Creation of Economic Incentive Agreements. The CITY acknowledges that an economic incentive agreement for the subject commercial property within the Property will provide incentives for development within the Property, which will provide sales tax benefits to the CITY. The CITY shall,upon application by OWNER or its assigns,pursuant to 65 ILCS 5/8-I1-20(2002) or any other statutory means, enact all ordinances and execute all agreements to share or rebate a fifty percent(50 01o)portion of the CITY's allocated portion of sales tax revenue as set forth herein to OWNER or as assigned in writing by OWNER, pursuant to the terms provided in this paragraph of the Agreement (hereinafter referred to as "Incentives"). For purposes of this Agreement a "commercial retail user" shall be any user that collects sales tax as part of its operation. The commercial retailer user shall be referred to as the"Generator". The CITY acknowledges that its agreement to execute this Development/Economic Initiative Agreement is a material inducement to OWNER to enter into this Agreement -3- 07/21/2006 14:41 FAX 630 553 5764 DANIEL J. KRAMER 006/022 Development Incentive Reimbursement. Incentives. The OWNER pursuant to the terms of this Agreement shall be repaid 100% of its Reimbursable Improvement costs(defined below)out off 00 0 of sales tax generated by any.:— Deleted:a m mm or "Generator" on the Property as evidenced by paid lien waivers and sworn contracim affidavit submitted to the CITY. OWNER shall be entitled to recover up to the total amount of the Reimbursable brrprovement calculation plus interest at the rate of 5%per annum simple interest for a period of twenty(20)years commencing from the date of&s Agreement_ _ _ -_.-__ oerecan:meta=t«�"p�cynra�,"o in ITa subjectdwetmcupe OWNER and CITY agree that the OWNER may request an additional stepped-up basis of percentage of reimbursement, under the tetras of this Agreement if the OWNER is able to procure for development on the subject site,a tenant who has an extraordinarily high floor area ratio of retail sales,or in the alternative that there is not a extraordinarily high floor area ratio but the dollar per square foot of retail sales tax payable to the CITY generated by on-site user produces sales tax at a rate higher than is customary for the benefit of the CITY and local taxing bodies. In the event OWNER recovers its full Reimbursable Improvement plus interest calculation prior to that expiration time, the right to recovery shall terminate earlier than the previous stated expiration date. In the event OWNER has not received all of its Reimbursable Improvements calculation and interest upon said expiration date,the Agreement shall be treated as expired. Interest shall not be compounded. These Reimbursable Improvements include,but are not limited to,the following: 1) Construction, excavation, hauling, compacting, and all related functions for any portion of the regional detention facility undertaken off-site to the north of the subject property by OWNER, over and above the acreage feet of storage in said Regional Detention Facility as is necessary to meet the detention needs of the subject property. 2) Construction,installation,materials, labor, design, and any other costs associated with the installation of a storm sewer pipe serving as the out-fall pipe from the detention facility along the east boundary of the property of OWNER and along the south property of OWNER both as described in the attached Exhibit"A". 3) Construction of any off-site Illinois State Route 47 not included in another agreed to method of reimbursement and Comeils Road improvements intersection, signalization, or other improvements on Comeils Road or Route 47 as is necessitated by [DOT or the CITY for the development of the subject property and handling ambient traffic benefiting from said roadway improvements. 4) Extension of city water and sanitary sewer mains to the east boundary of the subject parcel as described in Exhibit"A"along and parallel with Comeils Road to the east boundary of the subject property. -4- 07/21/2006 14:42 FAX 630 553 5764 DANIEL J. KRAKER IM007/022 5) Any oversizing of the stormwater out-fall pipe in excess of that amount required to benefit the subject property of OWNER as described in the attached Exhibit "A„ 6) Any internal street connections required to be oversized as collector streets under the CITY Ordinances to benefit surrounding properties. 7) Any connection to off-site downstream benefiting from the out-fall sewer to cross Route 47 to connect to said downstream properties, and any additional out-flow pipe advanced by OWNER to connect to the ultimate out-fall at the Rob Roy . Creek Watershed. 8) The Fair Market Value of any real property dedicated to the CITY or the State of Illinois for Route 47 not included in another agreed to method of reimbursement for right-of-way expansion excluding areas for highway cat for OWNER/DEVELOPER and any Comeils Road right-of-way dedication in excess of forty feet(40') from the center line of the existing Comeils Road northerly onto the property of OWNER, as determined by Appraisal Figure agreed to by OWNER and CITY at the time of any dedication or taking of real property for right-of-way purposes at the time of said real property is dedicated or taken for said purposes. The CITY shall distribute the sales tax revenue generated by any Generator as follows: A)50%to the OWNER,or as directed by the OWNER; 50%to the CITY Sales Tax and Sales Tax Revenue Defined. The term Sales Tax used herein refers to revenues generated by the sale of merchandise from and collected under the Retailer's Occupation Tax, or any other "sales tax" or similar tax that may be enacted by the State of Illinois or any governmental agency or body created under the laws of the State of Illinois,based upon gross sales, and located within the State of Illinois,that is collected by the Generators as a result of business transactions occurring on the Property. In the event that the CITY's share of said sales tax or substitute tax is reduced or increased by the State,then the affected Generator's share thereof shall be reduced or increased in the same proportion. Payment Obligation. The CITY hereby agrees to pay OWNER or its assignee the quarterly installment payments made to the CITY by the llllinois Department of Revenue within thirty (30) days of receipt by the CITY of the quarterly installments, and continuing until the Reimbursable Improvements and applicable interest are paid to the OWNER as set out in this Agreement. The"quarterly installment payment'shall mean an amount equal to one-half('/x)of the sales tax revenue received by the CITY from the State generated by each Generator on the Property, or any additions to the Property. All amounts paid to the OWNER will be due and -5- 07/21/2006 14:42 FAX 630 553 5764 DANIEL J. KRAMER IA 008/022 payable solely from one-half('h) or as adjusted under paragraph 8(a) of this Agreement of the sales tax revenues received by the CITY from any Generator's sales for the preceding calendar quarter. However,if the CITY no longer receives sales tax revenues from the Generator due to a change in Illinois statutes, then the CITY shall make payments to the OWNER from any alternate sources of revenue provided to the CITY by the State,if any are made,specifically as a replacement or substitute for sales tax revenue presently received by the CITY. Verification of Costs. Following construction of the Reimbursable Improvements, OWNER shall provide the CITY with final lien waivers and sworn contractor affidavit establishing the cost of such improvements. Commencement Date. The terns of this Agreement shall be for Twenty (20) years commencing upon the completion of said improvement. Sources of Funds to Pay Reimbursable Development Project Costs. Funds necessary to ' pay for the Incentives are to be solely derived from the additional sales tax generated by the Generators. This pledge of additional sales tax revenues hereby is approved by the CITY. In order to comply with the terms of this Agreement, OWNER shall require in writing all tenants in the Property and to any subsequent purchasers of any portion of the Property to direct the Illinois Department.of Revenue to provide the CITY with a breakdown of sales tax being remitted to the CITY for each commercial retailer on-site. In the event OWNER or a commercial retailer fails to provide the CITY with written authority for release of said information from the Illinois Department of Revenue the CITY shall have no duty to remit sales tax proceeds from that commercial retailer to the OWNER Assignability. 1) It is expressly agreed and understood by the parties to this Agreement that the benefits contemplated in the Development/Economic Initiative Agreement and pursuant to 65 ILCS 5/8-11-20 (2002) are assignable at the option of the OWNER. Upon such written assignment by the OWNER, Generator shall have all rights currently vested in the OWNER under the Development Agreements, this Ordinance and applicable law, and shall be entitled to enforce same by any legal or equitable remedy. If any Lot is sold by the OWNER,OWNER shall be entitled to continue to receive payments for Reimbursable Improvements pursuant to the Development(Economic Initiative Agreement unless specifically assigned by the OWNER. Any assignment shall be subject to the assignee entering into an assignment agreement acknowledging its acceptance of the OWNER'S obligations under this agreement. 2) OWNER may assign a portion or all of its rights under the terms of this Agreement to any future developers, owners, or institutions or individuals providing financing for the improvements outlined above in this Agreement. -6- 07/21/2006 14:42 FAX 630 553 5764 DANIEL J. KRAMER 2009/022 Right of Way and Easement Dedication/Conveyance OWNER agrees to dedicate or convey (at City's sole discretion)right or way for the widening and improvement of both Comeils Road and Route 47. OWNER also agrees to convey any easements necessary to carry City utilities (Water, Storm Water and Sanitary Sewer) to and through the Property. OWNER shall be entitled to compensation at the then current fair market value as is mutually acceptable to OWNER and CITY prior to conveyance of the underlying property for Right of Way or Easement purposes. OWNER agrees he may elect to receive said compensation as part of the recovery under this Agreement or the City may elect to pay said compensation at the time of conveyance. Reimbursement Procedures. Sales Tax Reports. OWNER agrees to cause all Generators to execute and deliver to the CITY a written direction, in form and content acceptable to the CITY and the Illinois Department of Revenue ("DOW), authorizing the DOR to release to the CITY the sales tax figures for the Generator,on a quarterly basis and during the term of this Agreement. The CITY agrees to take the necessary action to initiate the transaction. Should the DOR cease to release the sales tax information to the CITY on a quarterly basis,OWNER and all Generators shall be responsible for any further action to obtain the sales tax information from the DOR or shall be responsible for submittal of the sales tax information from the DOR or shall be responsible for submittal of the sales tax information as provided for in the next paragraph of this Agreement. In the event the DOR fails to submit to the CITY the quarterly sales tax information for any Generator as provided for in Section A above, OWNER shall cause Generators to, contemporaneous with the filing of sales tax reports with the Illinois Department of Revenue or successor agency, furnish to the CITY copies of any and all sales tax returns, sales tax reports, amendments, or any other paper filed with the State of Illinois,said Department of Revenue or other appropriate governmental entity, pertaining to the Generators, and certified as being true and correct,which documents are being provided to the CITY for purposes of identifying sales tax revenues collected pursuant to this Agreement. Confidentiality. The CITY acknowledges and agrees that information to be provided by Generators hereunder are proprietary and valuable information and that any disclosure or unauthorized use thereof will cause irreparable harm to OWNER and/or OWNER's affiliates and/or Generator and/or Generator's affiliates,and to the extent permitted by state of federal law, including but not limited to Section 7(1)(g)of the Illinois Freedom of Information Act,the CITY agrees to hold in confidence all sales figures and other information provided by OWNER or Generators or obtained from OWNER's or Generator's records in connection with this Agreement,and in connection therewith,the CITY shall not copy any such information except as necessary for dissemination to the CTfY's agents or employees as permitted hereinafter. The CITY shall be permitted to disclose such information (i)to its agents or employees who are reasonably deemed by the CITY to have a need to know such information for purposes of this Agreement;provided,that such agents and employees shall hold in confidence such information to the extent required of the CITY hereunder or(ii)to the extent required by order of court or by -7- 07/21/2006 14:42 FAX 630 553 5764 DANIEL J. KRAMER @.1010/022 state of federal law. The confidentiality requirements of this Agreement shall survive any expiration,termination or cancellation of this Agreement and shall continue to bind the CITY,its successors,assigns and legal representatives for a period of five(5)years from the termination, expiration or cancellation of this Agreement. All Generators shall be treated as third party beneficiaries to this Confidentiality provision. Audit. Each payment by the CITY to OWNER shall be accompanied by a statement executed by the City Treasurer or the Treasurer's designee,setting forth the calculations of such payment and identifying the sales tax return period to which the payment relates. The City Treasurer or the Treasurer's designee shall further issue a statement setting forth all payments made to date to OWNER. OWNER shall have one(1)year following the receipt of said payment to contest any of the calculations or information contained in said statements. OWNER shall have the right to review all sales tax reports provided to the CITY by the state relating to any Generator upon two days written request by OWNER. DefaulttWeht to Cure. No party shall be deemed in default hereunder until such Party has failed to cure the alleged default with ten(10)days in the case of a monetary default,or within thirty(30)days in the case of a non-monetary default, from notice of such default from the other Party;provided, however, if the nature of such non-monetary,default is such that it cannot reasonably be cured within such thirty(30)days period,then such Party shall not be deemed in default if such Party commences to cure such default within such thirty (30) day period and thereafter diligently prosecutes such cure to completion. In the event of a default and except as may be otherwise provided herein to the contrary, the non-defaulting party may: (i)terminate this Agreement upon written notice to the defaulting party, recover from the defaulting party all damages incurred by the non-defaulting party; (ii) except as may be otherwise expressly provided to the contrary herein,seek specific performance of this Agreement, and, in addition, recover all damages incurred by the non-defaulting party; (the parties declare it to be their intent that this Agreement may be specifically enforced); (iii) pursue all other remedies available at law, it being the intent of the parties that remedies be cumulative and liberally enforced so as to adequately and completely compensate the non- defaulting party. No ObUization to Develo Oven or Operate Nothing contained in this Agreement shall be deemed to obligate OWNER,Generator or any of Generator's affiliates to construct any improvements on the Property or to open or operate any form of business in the Property for any period of time or at all. -g- 07/21/2006 14:42 FAX 630 553 5764 DANIEL J. KRAMER 011/022 Additional Covenants. Time. Time is of the essence unless otherwise stated in this Agreement and all time limits set forth are mandatory and cannot be waived except by a lawfully authorized and executed written waiver by the party excusing such timely performance. Binding Effect. This Agreement shall be construed and enforced in accordance with the laws of the State of Illinois. Severabilitv. If any provision of this Agreement is held invalid by a court of competent jurisdiction or in the event such a court shall determine that the CITY does not have the power to perform any such provision, such provision shall be deemed to be excised herefrom and the invalidity thereof shall not affect any of the other provisions contained herein. Notices. All notices and requests required pursuant to this Agreement shall be sent by certified mail as follows: To Owner: Castle Bank as Trustee under Trust Agreement Dated July 8,2005 and known as Trust#2373 c/o Jim Ratos 207 W.Kendall Dr. Yorkville,IL 60560 To Owner's Attorney: Law Offices of Daniel J.Kramer 1107A S.Bridge Street Yorkville,IL 60560 With copies to: Attorney John Wyeth United City of Yorkville Offices 800 Game Farm Rd. Yorkville,IL 60560 Authority to Execute. The signatories of the parties hereto warrant that they have been lawfully authorized by the City Council of the CITY and the Board of Directors of DEVELOPER,to execute this Agreement on their behalf. Attorneys'Fees. If a party commences a legal proceeding to enforce any of the terms of this Agreement, the prevailing party in such action shall have the right to recover reasonable attorneys'fees and costs from the other Party to be fixed by the court in the same action. Relationship of the Parties.Nothing herein shall be deemed or construed by the Parties or by any third patty as creating the relationship of principal and agent or of partnership of or joint venture between the Parties,it being understood and agreed that no provision herein,nor any acts of the parties,shall be deemed to create any relationship between the parties. -9- 07/21/2006 14:42 FAX 630 553 5764 DANIEL J. KRAMER Q012/022 Remedies Not Exclusive. Except as may be otherwise expressly provided herein, the various rights and remedies herein contained and reserved to each of the parties,except as herein otherwise expressly provided,are not exclusive of any other right or remedy of such party,but are cumulative and in addition to every other remedy now or hereafter existing at law,in equity or by statute.No delay or omission of the right to exercise any power or remedy by either party shall impair any such right,power or remedy or be construed as a waiver of any default or non- performance or as acquiescence therein. IN WITNESS WHEREOF, this Agreement is entered into at United City of Yorkville, Illinois,as of the date and year shown above. UNITED CITY OF YORKVILLE, CASTLE BANK AS TRUSTEE UNDER TRUST an Illinois Municipal Corporation, AGREEMENT DATED JULY g,2005 AND KNOWNAS TRUST#2373 By: BY= MAYOR JAMES G.RATOS Attest: Dated: CITY CLERK Law Offices of Daniel J.Kramer 1 I 07 S.Bridge Street Yorkville,Illinois 60560 630.553.9500 -10- 07/21/2006 14:42 FAX 630 553 5764 DANIEL J. KRAMER Q013/022 C SETA VET;S]O 1 Revised July 21, 2006 STATE OF ILLINOIS ) )ss. COUNTY OF KENDALL ) UNITED CITY OF YORKVIL AND CASTLE BANK AS TRUSTEE UNDER TRUST AGREEMENT DATED JULY 8,2005 AND KNOWN AS TRUST#2373 DEVELOPMENT/ECONOMIC INI'T'IATIVE AGREEMENT THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into as of the day of , 2006 by and between THE UNITED CITY OF YORKVILLE, an Illinois corporation located in Kendall County (the "CITY') and CASTLE BANK AS TRUSTEE UNDER TRUST AGREEMENT DATED JULY 8, 2005 AND KNOWN AS TRUST#2373 (the"OWNER'. RECITALS The CITY is an Illinois municipality and hereby enters into this Agreement pursuant to 65 ILCS 5/8-11-20 (2002) ("Enabling Statute'); and pursuant to Section 6(a) of Article VII of the Constitution of the State of Illinois of 1970,the CITY has determined that it has the authority to enter into this Agreement. The OWNER owns and intends to develop the real property located at the northeast comer of the intersection of Route 47 and Corneils Road and legally described in Exhibit "A" (the "Property") for commercial uses ("Development Projecf) subject to the zoning ordinance enacted by the CITY. OWNER has demonstrated to the CITY's satisfaction that the OWNER has the experience and capacity to complete the Development Project. The OWNER and the CITY have determined that without the financial assistance provided under this Agreement the Development Project would not be feasible and that the OWNER would not undertake the Development Project. The OWNER has expressly conditioned the undertaking of the Development Project on the CITY's agreement to pledge the Sales Tax Revenues (defined later)" it receives from the Development Project to repay OWNER its Reimbursable Improvements (defined later), all as provided in this Agreement. -1- 07/21/2006 14:42 FAX 630 553 5764 DANIEL J. RRAUER 0 014/022 The CITY deems it to be of significant importance to encourage development within the CITY so as to maintain a viable real estate tax and sales tax base and employment opportunities. Accordingly, the CITY has made the following findings necessary pursuant to the Enabling Statute: That the Property has remained vacant in excess of twenty(20)years; That the Development Project is expected to create job opportunities within the municipality; That the Development Project will serve to further the development of adjacent areas; That the CITY is desirous of creating a large regional detention lake on real property adjoining and contiguous to the subject property immediately to the north thereof, and in order to provide an outlet for said regional drainage facility, the CITY needs a storm outlet easement along the east and southern boundary of the subject real property described in the attached Exhibit"B"; The CITY in addition to said drainage out-flow easement also needs funds with which to construct said regional detention facility and outlet easement. Construction of said improvements will benefit and allow the development of surrounding parcels of commercial real property. The CITY has further requested that OWNER financially participate in the improvement of Illinois Route 47 adjacent to the subject real property, and the cost of signalization at the intersection of Illinois State Route 47 and Comeils Road in the United City of Yorkville, And to make proportion payments toward the design, engineering and construction as needed on a fair and equitable basis consistent with those payments made by other land owners contributing to the improvement project. Preliminary scope of the project is depicted in the attached Exhibit"_ The CITY has requested OWNER to dedicate real property to the CITY on Comeils Road and Illinois State Route 47 for the widening of Right-of-Ways. That without this Agreement, the Development Project would not be reasonably possible given the off-site costs imposed by the Illinois Department of Transportation; That the OWNER meets high standards of creditworthiness and financial strength; That the Development Proj ect will strengthen the commercial sector of the municipality; That the Development Project will enhance the tax base of the CITY; That this Agreement is made in the best interest of the CITY; and -2- 07/21/2006 14:43 FAX 630 553 5764 DANIEL J. KRAMER [M 015/022 Pursuant to the Illinois Municipal Code, as amended("Code"), the CITY has authority to enter into an economic incentive agreement relating to the development of land within corporate limits, including an agreement to share or rebate a portion of the retailer's occupation taxes received by the CITY that are generated by the development. Subject to the terms and conditions of this Agreement, the CITY agrees to reimburse the OWNER for its Reimbursable Improvements. In reliance upon the CITY's representations and covenants contained in and subject to the terms and conditions of this Agreement, the OWNER intends to cause the Reimbursable Improvements (as hereinafter defined) to be constructed and to enter into construction contracts and other agreements as necessary. This Agreement has been submitted to the corporate authorities of the CITY for consideration and review, and the corporate authorities have given all notices and taken all actions required to be taken prior to the execution of this Agreement to make this Agreement effective. NOW, THEREFORE, to maintain and revitalize business within the CITY by assuring opportunities for development and attracting sound and stable commercial growth; to promote the public interest and to enhance the tax base of the CITY; to induce the OWNER to undertake' the Development Project; in consideration of the OWNEWs agreement to undertake the Development Project and the CITY's agreement to reimburse the OWNER for the costs of causing the construction of certain of the Reimbursable Improvements; and in consideration of the mutual promises, covenants, stipulations and agreements herein contained in this Agreement, the OWNER and the CITY hereby agree as follows: Incorporation of Recitals. The recitals set forth above are incorporated hereby by this reference as if fully set forth herein. Creation of Economic Incentive Agreements. The CITY acknowledges that an economic incentive agreement for the subject commercial property within the Property will provide incentives for development within the Property, which will provide sales tax benefits to the CITY. The CITY shall, upon application by OWNER or its assigns, pursuant to 65 ILCS 5/8-11-20 (2002) or any other statutory means, enact all ordinances and execute all agreements to share or rebate a fifty percent(50%)portion of the CITY's allocated portion of sales tax revenue as set forth herein to OWNER or as assigned in writing by OWNER, pursuant to the terms provided in this paragraph of the Agreement (hereinafter referred to as "Incentives'). For purposes of this Agreement a "commercial retail user" shall be any user that collects sales tax as part of its operation. The commercial retailer user shall be referred to as the"Generator". The CITY acknowledges that its agreement to execute this Development/Economic Initiative Agreement is a material inducement to OWNER to enter into this Agreement. -3- 07/21/2006 14:43 FAX 630 553 5764 DANIEL J. KRAMER 1a016/022 Development Incentive Reimbursement. Incentives. The OWNER pursuant to the terms of this Agreement shall be repaid 100% of its Reimbursable Improvement costs(defined below)out of 50%of sales tax generated by any "Generator" on the Property as evidenced by paid lien waivers and sworn contractor affidavit submitted to the CITY. OWNER shall be entitled to recover up to the total amount of the Reimbursable Improvement calculation plus interest at the rate of 5% per annum simple interest for a period of twenty(20)years commencing from the date of this Agreement. OWNER and CITY agree that the OWNER may request an additional stepped-up basis of percentage of reimbursement, under the terms of this Agreement if the OWNER is able to procure for development on the subject site, a tenant who has an extraordinarily high floor area ratio of retail sales, or in the alternative that there is not a extraordinarily high floor area ratio but the dollar per square foot of retail sales tax payable to the CITY generated by on-site user produces sales tax at a rate higher than is customary for the benefit of the CITY and local taxing bodies. In the event OWNER recovers its full Reimbursable Improvement plus interest calculation prior to that expiration time, the right to recovery shall terminate earlier than the previous stated expiration date. In the event OWNER has not received all of its Reimbursable Improvements calculation and interest upon said expiration date, the Agreement shall be treated as expired. Interest shall not be compounded. These Reimbursable Improvements include, but are not limited to,the following: 1) Construction, excavation, hauling, compacting, and all related functions for any portion of the regional detention facility undertaken off-site to the north of the subject property by OWNER, over and above the acreage feet of storage in said Regional Detention Facility as is necessary to meet the detention needs of the subject property. 2) Construction, installation, materials, labor, design, and any other costs associated with the installation of a storm sewer pipe serving as the out-fall pipe from the detention facility along the east boundary of the property of OWNER and along the south property of OWNER both as described in the attached Exhibit"A". 3) Construction of any off-site Illinois State Route 47 not included in another agreed to method of reimbursement and Corneils Road improvements intersection, signalization, or other improvements on Corneils Road or Route 47 as is necessitated by IDOT or the CITY for the development of the subject property and handling ambient traffic benefiting from said roadway improvements. 4) Extension of city water and sanitary sewer mains to the east boundary of the subject parcel as described in Exhibit"A" along and parallel with Corneils Road to the east boundary of the subject property. -4- 07/21/2006 14:43 FAX 630 553 5764 DANIEL J. KRAMER Q 017/022 5) Any oversizing of the stormwater out-fall pipe in excess of that amount required to benefit the subject property of OWNER as described in the attached Exhibit .IN,. 6) Any internal street connections required to be oversized as collector streets under the CITY Ordinances to benefit surrounding properties. 7) Any connection to off-site downstream benefiting from the out-fall sewer to cross Route 47 to connect to said downstream properties, and any additional out-flow pipe advanced by OWNER to connect to the ultimate out-fall at the Rob Roy Creek Watershed. 8) The Fair Market Value of any real property dedicated to the CITY or the State of Illinois for Route 47 not included in another agreed to method of reimbursement for right-of-way expansion excluding areas for highway cut for OWNER/DEVELOPER and any Comeils Road right-of-way dedication in excess of forty feet (40') from the center line of the existing Comeils Road northerly onto the property of OWNER, as determined by Appraisal Figure agreed to by OWNER and CITY at the time of any dedication or taking of real property for right-of-way purposes at the time of said real property is dedicated or taken for said purposes. The CITY shall distribute the sales tax revenue generated by any Generator as follows: A)50%to the OWNER,or as directed by the OWNER, 50%to the CITY Sales Tax and Sales Tax Revenue Defined. The term Sales Tax used herein refers to revenues generated by the sale of merchandise from and collected under the Retailer's Occupation Tax, or any other "sales tax" or similar tax that may be enacted by the State of Illinois or any governmental agency or body created under the laws of the State of Illinois,based upon gross sales, and located within the State of Illinois, that is collected by the Generators as a result of business transactions occurring on the Property. In the event that the CITY's share of said sales tax or substitute tax is reduced or increased by the State, then the affected Generator's share thereof shall be reduced or increased in the same proportion. Payment Obligati on. The CITY hereby agrees to pay OWNER or its assignee the quarterly installment payments made to the CITY by the Illinois Department of Revenue within thirty (30) days of receipt by the CITY of the quarterly installments, and continuing until the Reimbursable Improvements and applicable interest are paid to the OWNER as set out in this Agreement. The "quarterly installment payment" shall mean an amount equal to one-half(%a) of the sales tax revenue received by the CITY from the State generated by each Generator on the Property, or any additions to the Property. All amounts paid to the OWNER will be due and -5- 07/21/2006 14:43 FAX 630 553 5764 DANIEL J. MAUER [210 18/0 2 2 payable solely from one-half('/:) or as adjusted under paragraph 8(a) of this Agreement of the sales tax revenues received by the CITY from any Generator's sales for the preceding calendar quarter. However, if the CITY no longer receives sales tax revenues from the Generator due to a, change in Illinois statutes, then the CITY shall make payments to the OWNER from any alternate sources of revenue provided to the CITY by the State, if any are made, specifically as a replacement or substitute for sales tax revenue presently received by the CITY. Verification of Costs. Following construction of the Reimbursable Improvements, OWNER shall provide the CITY with final lien waivers and sworn contractor affidavit establishing the cost of such improvements. Commencement Date. The terms of this Agreement shall be for Twenty (20) years commencing upon the completion of said improvement. Sources of Funds to Pay Reimbursable Development Project Costs. Funds necessary to pay for the Incentives are to be solely derived from the additional sales tax generated by the Generators. This pledge of additional sales tax revenues hereby is approved by the CITY. In order to comply with the terms of this Agreement, OWNER shall require in writing all. tenants in the Property and to any subsequent purchasers of any portion of the Property to direct the Illinois Department of Revenue to provide the CITY with a breakdown of sales tax being remitted to the CITY for each commercial retailer on-site. In the event OWNER or a commercial retailer fails to provide the CITY with written authority for release of said information from the Illinois Department of Revenue the CITY shall have no duty to remit sales tax proceeds from that commercial retailer to the OWNER. Assignability. 1) It is expressly agreed and understood by the parties to this Agreement that the benefits contemplated in the Development/Economic Initiative Agreement and pursuant to 65 ILCS 5/8-11-20 (2002) are assignable at the option of the OWNER. Upon such written assignment by the OWNER, Generator shall have all rights currently vested in the OWNER under the Development Agreements, this Ordinance and applicable law, and shall be entitled to enforce same by any legal or equitable remedy. If any Lot is sold by the OWNER, OWNER shall be entitled to continue to receive payments for Reimbursable Improvements pursuant to the Development/Economic Initiative Agreement unless specifically assigned by the OWNER. Any assignment shall be subject to the assignee entering into an assignment agreement acknowledging its acceptance of the OWNER'S obligations under this agreement. 2) OWNER may assign a portion or all of its rights under the terms of this Agreement to any future developers, owners, or institutions or individuals providing financing for the improvements outlined above in this Agreement. -6- 07/21/2006 14:43 FAX 630 553 5764 DANIEL J. KRAMER 019/022 Right of Way and Easement Dedication/Conveyance OWNER agrees to dedicate or convey (at City's sole discretion) right or way for the widening and improvement of both Comeils Road and Route 47. OWNER also agrees to convey any easements necessary to carry City utilities (Water, Storm Water and Sanitary Sewer) to and through the Property. OWNER shall be entitled to compensation at the then current fair market value as is mutually acceptable to OWNER and CITY prior to conveyance of the underlying property for Right of Way or Easement purposes. OWNER agrees he may elect to receive said compensation as part of the recovery under this Agreement or the City may elect to pay said compensation at the time of conveyance. Reimbursement Procedures. Sales Tax Reports. OWNER agrees to cause all Generators to execute and deliver to the CITY a written direction, in form and content acceptable to the CITY and the Illinois Department of Revenue C DOW), authorizing the DOR to release to the CITY the sales tax figures for the Generator, on a quarterly basis and during the term of this Agreement. The CITY agrees to take the necessary action to initiate the transaction. Should the DOR cease to release the sales tax information to the CITY on a quarterly basis, OWNER and all Generators shall be responsible for any further action to obtain the sales tax information from the DOR or shall be responsible for submittal of the sales tax information from the DOR or shall be responsible for submittal of the sales tax information as provided for in the next paragraph of this Agreement. In the event the DOR fails to submit to the CITY the quarterly sales tax information for any Generator as provided for in Section A above, OWNER shall cause Generators to, contemporaneous with the filing of sales tax reports with the Illinois Department of Revenue or successor agency, furnish to the CITY copies of any and all sales tax returns, sales tax reports, amendments, or any other paper filed with the State of Illinois, said Department of Revenue or other appropriate governmental entity, pertaining to the Generators, and certified as being true and correct, which documents are being provided to the CITY for purposes of identifying sales tax revenues collected pursuant to this Agreement. Confidentiality. The CITY acknowledges and agrees that information to be provided by Generators hereunder are proprietary and valuable information and that any disclosure or unauthorized use thereof will cause irreparable harm to OWNER and/or OWNER's affiliates and/or Generator and/or Generator's affiliates,and to the extent permitted by state of federal law, including but not limited to Section 7(1)(g)of the Illinois Freedom of Information Act,the CITY agrees to hold in confidence all sales figures and other information provided by OWNER or Generators or obtained from OWNER's or Generator's records in connection with this Agreement, and in connection therewith, the CITY shall not copy any such information except as necessary for dissemination to the CITY's agents or employees as permitted hereinafter. The CITY shall be permitted to disclose such information (i) to its agents or employees who are reasonably deemed by the CITY to have a need to know such information for purposes of this Agreement; provided, that such agents and employees shall hold in confidence such information to the extent required of the CITY hereunder or(ii) to the extent required by order of court or by -7- 07/21/2006 14:44 FAX 630 553 5764 DANIEL J. RRA ER 0020/022 state of federal law. The confidentiality requirements of this Agreement shall survive any expiration, termination or cancellation of this Agreement and shall continue to bind the CITY, its successors, assigns and legal representatives for a period of five (5) years from the termination, expiration or cancellation of this Agreement. All Generators shall be treated as third party beneficiaries to this Confidentiality provision. Audit. Each payment by the CITY to OWNER shall be accompanied by a statement executed by the City Treasurer or the Treasurer's designee, setting forth the calculations of such payment and identifying the sales tax return period to which the payment relates. The City Treasurer or the Treasurer's designee shall further issue a statement setting forth all payments made to date to OWNER. OWNER shall have one(1) year following the receipt of said payment to contest any of the calculations or information contained in said statements. OWNER shall have the right to review all sales tax reports provided to the CITY by the state relating to any Generator upon two days written request by OWNER Defaulmaht to Cure. No party shall be deemed in default hereunder until such Party has failed to cure the alleged default with ten (10) days in the case of a monetary default, or within thirty (30) days in the case of a non-monetary default, from notice of such default from the other Party; provided, however, if the nature of such non-monetary default is such that it cannot reasonably be cured within such thirty (30) days period, then such Party shall not be deemed in default if such Party commences to cure such default within such thirty (30) day period and thereafter diligently prosecutes such cure to completion. In the event of a default and except as may be otherwise provided herein to the contrary, the non-defaulting party may: (i) terminate this Agreement upon written notice to the defaulting party, recover from the defaulting party all damages incurred by the non-defaulting party; (ii) except as may be otherwise expressly provided to the contrary herein, seek specific performance of this Agreement, and, in addition, recover all damages incurred by the non-defaulting party; (the parties declare it to be their intent that this Agreement may be specifically enforced); (iii)' pursue all other remedies available at law, it being the intent of the parties that remedies be cumulative and liberally enforced so as to adequately and completely compensate the non- defaulting party. No Obligation to Develop, Open or Operate. Nothing contained in this Agreement shall be deemed to obligate OWNER, Generator or any of Generator's affiliates to construct any improvements on the Property or to open or operate any form of business in the Property for any period of time or at all. -8- 07/21/2006 14:44 FAX 630 553 5764 DANIEL J. RRAMER (a021/022 Additional Covenants. Time. Time is of the essence unless otherwise stated in this Agreement and all time limits set forth are mandatory and cannot be waived except by a lawfully authorized and executed written waiver by the party excusing such timely performance. Binding Effect. This Agreement shall be construed and enforced in accordance with the laws of the State of Illinois. Severabili ty. If any provision of this Agreement is held invalid by a court of competent jurisdiction or in the event such a court shall determine that the CITY does not have the power to perform any such provision, such provision shall be deemed to be excised herefrom and the invalidity thereof shall not affect any of the other provisions contained herein. Notices. All notices and requests required pursuant to this Agreement shall be sent by certified mail as follows: To Owner: Castle Bank as Trustee under Trust Agreement Dated July 8,2005 and known as Trust#2373 c/o Jim Rates 207 W. Kendall Dr. Yorkville,IL 60560 To Owner's Attorney: Law Offices of Daniel J. Kramer 1107A S. Bridge Street Yorkville,IL 60560 With copies to: Attorney John Wyeth United City of Yorkville Offices 800 Game Farm Rd. Yorkville, IL 60560 Authority to Execute. The signatories of the parties hereto warrant that they have been lawfully authorized by the City Council of the CITY and the Board of Directors of DEVELOPER,to execute this Agreement on their behalf. Attorneys' Fees. If a party commences a legal proceeding to enforce any of the terms of this Agreement, the prevailing party in such action shall have the right to recover reasonable. attorneys' fees and costs from the other Party to be fixed by the court in the same action. Relationship-of the Parties. Nothing herein shall be deemed or construed by the Parties or by any third party as creating the relationship of principal and agent or of partnership of or joint venture between the Parties, it being understood and agreed that no provision herein,nor any acts of the parties, shall be deemed to create any relationship between the parties. -9- 07/21/2006 14:44 FAX 630 553 5764 DANIEL J. RRAMER IM 022/022 Remedies Not Exclusive. Except as may be otherwise expressly provided herein, the various rights and remedies herein contained and reserved to each of the parties, except as herein otherwise expressly provided, are not exclusive of any other right or remedy of such party, but are cumulative and in addition to every other remedy now or hereafter existing at law, in equity or by statute. No delay or omission of the right to exercise any power or remedy by either party shall impair any such right,power or remedy or be construed as a waiver of any default or non- performance or as acquiescence therein. IN WITNESS WHEREOF, this Agreement is entered into at United City of Yorkville, Illinois,as of the date and year shown above. UNITED CITY OF YORKVILLE, CASTLE BANK AS TRUSTEE UNDER TRUST an Illinois Municipal Corporation, AGREEMENT DATED JULY 8, 2005 AND KNOWN AS TRUST#2373 By: BY: MAYOR JAMES G. RATOS Attest: Dated: CITY CLERK Law Offices of Daniel J.Kramer 1107A S.Bridge Street Yorkville,Illinois 60560 630.553.9500 -10- i `QED C/py Reviewed By: J= Legal ❑ City Council sass esr. 11 - Finance ❑ Engineer ❑ Agenda Item Tracking Number City Administrator ❑ 09 �a O Consultant ❑ F-bc� QCG(cs.cs ❑ <CE Y City Council Agenda Item Summary Memo Title: Ratos Development/Economic Initiative Agreement for Comeils and Route 47 City Council/COW/ Committee Agenda Date: COW 7/18/06 Synopsis: Council Action Previously Taken: Date of Action: Action Taken: Item Number: Type of Vote Required: Council Action Requested: Submitted by: Travis Miller Community Development Name Department Agenda Item Notes: Revised July 19, 2006 STATE OF ILLINOIS ) )ss. COUNTY OF KENDALL ) UNITED CITY OF YORKVILLE AND CASTLE BANK AS TRUSTEE UNDER TRUST AGREEMENT DATED JULY 8,2005 AND KNOWN AS TRUST#2373 DEVELOPMENT/ECONOMIC INITIATIVE AGREEMENT THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into as of the day of , 2006 by and between THE UNITED CITY OF YORKVILLE, an Illinois corporation located in Kendall County (the "CITY") and CASTLE BANK AS TRUSTEE UNDER TRUST AGREEMENT DATED JULY 8, 2005 AND KNOWN AS TRUST#2373 (the"OWNER"). RECITALS The CITY is an Illinois municipality and hereby enters into this Agreement pursuant to 65 ILCS 5/8-11-20 (2002) ("Enabling Statute'); and pursuant to Section 6(a) of Article VII of the Constitution of the State of Illinois of 1970, the CITY has determined that it has the authority , to enter into this Agreement. The OWNER owns and intends to develop the real property located at the northeast comer of the intersection of Route 47 and Comeils Road and legally described in Exhibit "A" (the "Property) for commercial uses ("Development Project') subject to the zoning ordinance enacted by the CITY. OWNER has demonstrated to the CITY's satisfaction that the OWNER has the experience and capacity to complete the Development Project. The OWNER and the CITY have determined that without the financial assistance provided under this Agreement the Development Project would not be feasible and that the OWNER would not undertake the Development Project. The OWNER has expressly conditioned the undertaking of the Development Project on the CITY's agreement to pledge the Sales Tax Revenues (defined later) it receives from the Development Project to repay OWNER its Reimbursable Improvements (defined later), all as provided in this Agreement. -1- The CITY deems it to be of significant importance to encourage development within the CITY so as to maintain a viable real estate tax and sales tax base and employment opportunities. Accordingly, the CITY has made the following findings necessary pursuant to the Enabling Statute: That the Property has remained vacant in excess of twenty(20) years; That the Development Project is expected to create job opportunities within the municipality; That the Development Project will serve to further the development of adjacent areas; That the CITY is desirous of creating a large regional detention lake on real property adjoining and contiguous to the subject property immediately to the north thereof, and in order to provide an outlet for said regional drainage facility, the CITY needs a storm outlet easement along the east and southern boundary of the subject real property described in the attached Exhibit"B"; The CITY in addition to said drainage out-flow easement also needs funds with which to construct said regional detention facility and outlet easement. Construction of said improvements will benefit and allow the development of surrounding parcels of commercial real property. The CITY has further requested that OWNER financially participate in the improvement of Illinois Route 47 adjacent to the subject real property, and the cost of signalization at the intersection of Illinois State Route 47 and Comeils Road in the United City of Yorkville, And to make proportion payments toward the design, engineering and construction as needed on a fair and equitable basis consistent with those payments made by other land owners contributing to the improvement project. Preliminary scope of the project is depicted in the attached Exhibit"_" The CITY has requested OWNER to dedicate real property to the CITY on Comeils Road and Illinois State Route 47 for the widening of Right-of-Ways. That without this Agreement, the Development Project would not be reasonably possible given the off-site costs imposed by the Illinois Department of Transportation; That the OWNER meets high standards of creditworthiness and financial strength;' That the Development Project will strengthen the commercial sector of the municipality; That the Development Project will enhance the tax base of the CITY; That this Agreement is made in the best interest of the CITY; and -2- Pursuant to the Illinois Municipal Code, as amended ("Code"), the CITY has authority to enter into an economic incentive agreement relating to the development of land within corporate limits, including an agreement to share or rebate a portion of the retailer's occupation taxes received by the CITY that are generated by the development. Subject to the terms and conditions of this Agreement, the CITY agrees to reimburse the OWNER for its Reimbursable Improvements. In reliance upon the CITY's representations and covenants contained in and subject to the terms and conditions of this Agreement, the OWNER intends to cause the Reimbursable Improvements (as hereinafter defined) to be constructed and to enter into construction contracts and other agreements as necessary. This Agreement has been submitted to the corporate authorities of the CITY for consideration and review, and the corporate authorities have given all notices and taken all actions required to be taken prior to the execution of this Agreement to make this Agreement effective. NOW, THEREFORE, to maintain and revitalize business within the CITY by assuring opportunities for development and attracting sound and stable commercial growth; to promote the public interest and to enhance the tax base of the CITY; to induce the OWNER to undertake the Development Project; in consideration of the OWNER's agreement to undertake the Development Project and the CITY's agreement to reimburse the OWNER for the costs of causing the construction of certain of the Reimbursable Improvements; and in consideration of the mutual promises, covenants, stipulations and agreements herein contained in this Agreement, the OWNER and the CITY hereby agree as follows: Incorporation of Recitals. The recitals set forth above are incorporated hereby by this reference as if fully set forth herein. Creation of Economic Incentive Agreements. The CITY acknowledges that an economic incentive agreement for the subject commercial property within the Property will provide incentives for development within the Property, which will provide sales tax benefits to the CITY. The CITY shall, upon application by OWNER or its assigns, pursuant to 65 ILCS 5/8-11-20 (2002) or any other statutory means, enact all ordinances and execute all agreements to share or rebate a fifty percent(50%) portion of the CITY's allocated portion of sales tax revenue as set forth herein to OWNER or as assigned in writing by OWNER, pursuant to the terms provided in this paragraph of the Agreement (hereinafter referred to as "Incentives"). For purposes of this Agreement a "commercial retail, user" shall be any user that collects sales tax as part of its operation. The commercial retailer user shall be referred to as the"Generator". The CITY acknowledges that its agreement to execute this Development/Economic Initiative Agreement is a material inducement to OWNER to enter into this Agreement. -3- Development Incentive Reimbursement. Incentives. The OWNER pursuant to the terms of this Agreement shall be repaid 100% of its Reimbursable Improvement costs (defined below) out of a minimum of 50% of sales tax generated by any "Generator" on the Property as evidenced by paid lien waivers and sworn contractor affidavit submitted to the CITY. OWNER shall be entitled to recover up to the total amount of the Reimbursable Improvement calculation plus interest at the rate of 5% per annum simple interest for a period of twenty (20) years commencing from the date of the first occupancy by a tenant in the subject development. OWNER and CITY agree that the OWNER may request an additional stepped-up basis of percentage of reimbursement, under the terms of this Agreement if the OWNER is able to procure for development on the subject site, a tenant who has an extraordinarily high floor area ratio of retail sales, or in the alternative that there is not a extraordinarily high floor area ratio but the dollar per square foot of retail sales tax payable to the CITY generated by on-site user produces sales tax at a rate higher than is customary for the benefit of the CITY and local taxing bodies. In the event OWNER recovers its full Reimbursable Improvement plus interest calculation prior to that expiration time, the right to recovery shall terminate earlier than the previous stated expiration date. In the event OWNER has not received all of its Reimbursable Improvements calculation and interest upon said expiration date, the Agreement shall be treated as expired. Interest shall not be compounded. These Reimbursable Improvements include, but are not limited to, the following: 1) Construction, excavation, hauling, compacting, and all related functions for any portion of the regional detention facility undertaken off-site to the north of the subject property by OWNER over and above the acreage feet of storage in said Regional Detention Facility as is necessary to meet the detention needs of the subject property. 2) Construction, installation, materials, labor, design, and any other costs associated with the installation of a storm sewer pipe serving as the out-fall pipe from the detention facility along the east boundary of the property of OWNER and along the south property of OWNER both as described in the attached Exhibit"A". 3) Construction of any off-site Illinois State Route 47 and Comeils Road improvements intersection, signalization, or other improvements on Corneils Road or Route 47 as is necessitated by IDOT or the CITY for the development of the subject property and handling ambient traffic benefiting from said roadway improvements. 4) Extension of city water and sanitary sewer mains to the east boundary of the subject parcel as described in Exhibit "A" along and parallel with Comeils Road to the east boundary of the subject property. -4- 5) Any oversizing of the stormwater out-fall pipe in excess of that amount required to benefit the subject property of OWNER as described in the attached Exhibit «A„ 6) Any internal street connections required to be oversized as collector streets under the CITY Ordinances to benefit surrounding properties. 7) Any connection to off-site downstream benefiting from the out-fall sewer to cross Route 47 to connect to said downstream properties, and any additional out-flow pipe advanced by OWNER to connect to the ultimate out-fall at the Rob Roy Creek Watershed. 8) The Fair Market Value of any real property dedicated to the CITY or the State of Illinois for Route 47 for right-of-way expansion excluding areas for highway cut for OWNER/DEVELOPER and any Corneils Road right-of-way dedication in excess of forty feet (40') from the center line of the existing Corneils Road northerly onto the property of OWNER, as determined by Appraisal Figure agreed to by OWNER and CITY at the time of any dedication or taking of real property for right-of-way purposes at the time of said real property is dedicated or taken for said purposes. The CITY shall distribute the sales tax revenue generated by any Generator as follows: A)50%to the OWNER, or as directed by the OWNER; 50% to the CITY Sales Tax and Sales Tax Revenue Defined. The term Sales Tax used herein refers to revenues generated by the sale of merchandise from and collected under the Retailer's Occupation Tax, or any other "sales tax" or similar tax that may be enacted by the State of Illinois or any govemmental agency or body created under the laws of the State of Illinois, based upon gross sales, and located within the State of Illinois, that is collected by the Generators as a result of business transactions occurring on the Property. In the event that the CITY's share of said sales tax or substitute tax is reduced or increased by the State, then the affected Generator's share thereof shall be reduced or increased in the same proportion. Payment Obligation. The CITY hereby agrees to pay OWNER or its assignee the quarterly installment payments made to the CITY by the Illinois Department of Revenue within. thirty (30) days of receipt by the CITY of the quarterly installments, and continuing until the Reimbursable Improvements and applicable interest are paid to the OWNER as set out in this Agreement. The "quarterly installment payment" shall mean an amount equal to one-half(%z) of the sales tax revenue received by the CITY from the State generated by each Generator on the Property, or any additions to the Property. All amounts paid to the OWNER will be due and -5- payable solely from one-half(%2) or as adjusted under paragraph 8(a) of this Agreement of the sales tax revenues received by the CITY from any Generator's sales for the preceding calendar quarter. However, if the CITY no longer receives sales tax revenues from the Generator due to a change in Illinois statutes, then the CITY shall make payments to the OWNER from any alternate sources of revenue provided to the CITY by the State, if any are made, specifically as a replacement or substitute for sales tax revenue presently received by the CITY. Verification of Costs. Following construction of the Reimbursable Improvements, OWNER shall provide the CITY with final lien waivers and sworn contractor affidavit establishing the cost of such improvements. Commencement Date. The terms of this Agreement shall be for Twenty (20) years commencing upon the completion of said improvement. Sources of Funds to Pay Reimbursable Development Project Costs. Funds necessary to pay for the Incentives are to be solely derived from the additional sales tax generated by the Generators. This pledge of additional sales tax revenues hereby is approved by the CITY. In order to comply with the terms of this Agreement, OWNER shall require in writing all tenants in the Property and to any subsequent purchasers of any portion of the Property to direct the Illinois Department of Revenue to provide the CITY with a breakdown of sales tax being remitted to the CITY for each commercial retailer on-site. In the event OWNER or a commercial retailer fails to provide the CITY with written authority for release of said information from the Illinois Department of Revenue the CITY shall have no duty to remit sales tax proceeds from that commercial retailer to the OWNER. Assignability. 1) It is expressly agreed and understood by the parties to this Agreement that the benefits contemplated in the Development/Economic Initiative Agreement and pursuant to 65 ILCS 5/8-11-20 (2002) are assignable at the option of the OWNER. Upon such written assignment by the OWNER, Generator shall have all rights currently vested in the OWNER under the Development Agreements, this Ordinance and applicable law, and shall be entitled to enforce same by any legal or equitable remedy. If any Lot is sold by the OWNER, OWNER shall be entitled to continue to receive payments for Reimbursable Improvements pursuant to the Development/Economic Initiative Agreement unless specifically assigned by the OWNER. Any assignment shall be subject to the assignee entering into an assignment agreement acknowledging its acceptance of the OWNER'S obligations under this agreement. 2) OWNER may assign a portion or all of its rights under the terms of this Agreement to any future developers, owners, or institutions or individuals providing financing for the improvements outlined above in this Agreement. -6- Right of Way and Easement Dedication/Conveyance OWNER agrees to dedicate or convey (at City's sole discretion) right or way for the widening and improvement of both Comeils Road and Route 47. OWNER also agrees to convey any easements necessary to carry City utilities (Water, Storm Water and Sanitary Sewer) to and through the Property. OWNER shall be entitled to compensation at the then current fair market value as is mutually acceptable to OWNER and CITY prior to conveyance of the underlying property for Right of Way or Easement purposes. OWNER agrees he may elect to receive said compensation as part of the recovery under this Agreement or the City may elect to pay said compensation at the time of conveyance. Reimbursement Procedures. Sales Tax Reports. OWNER agrees to cause all Generators to execute and deliver to the CITY a written direction, in form and content acceptable to the CITY and the Illinois Department of Revenue ('DOW), authorizing the DOR to release to the CITY the sales tax figures for the Generator, on a quarterly basis and during the term of this Agreement. The CITY agrees to take the necessary action to initiate the transaction. Should the DOR cease to release the sales tax information to the CITY on a quarterly basis, OWNER and all Generators shall be responsible for any further action to obtain the sales tax information from the DOR or shall be responsible for submittal of the sales tax information from the DOR or shall be responsible for submittal of the sales tax information as provided for in the next paragraph of this Agreement. In the event the DOR fails to submit to the CITY the quarterly sales tax information for any Generator as provided for in Section A above, OWNER shall cause Generators to, contemporaneous with the filing of sales tax reports with the Illinois Department of Revenue or successor agency, furnish to the CITY copies of any and all sales tax returns, sales tax reports; amendments, or any other paper filed with the State of Illinois, said Department of Revenue or other appropriate governmental entity, pertaining to the Generators, and certified as being true and correct, which documents are being provided to the CITY for purposes of identifying sales tax revenues collected pursuant to this Agreement. Confidentiality. The CITY acknowledges and agrees that information to be provided by Generators hereunder are proprietary and valuable information and that any disclosure or unauthorized use thereof will cause irreparable harm to OWNER and/or OWNER's affiliates and/or Generator and/or Generator's affiliates, and to the extent permitted by state of federal law, including but not limited to Section 7(1)(g) of the Illinois Freedom of Information Act, the CITY agrees to hold in confidence all sales figures and other information provided by OWNER or Generators or obtained from OWNER's or Generator's records in connection with this Agreement, and in connection therewith, the CITY shall not copy any such information except as necessary for dissemination to the CITY's agents or employees as permitted hereinafter. The CITY shall be permitted to disclose such information (i) to its agents or employees who are reasonably deemed by the CITY to have a need to know such information for purposes of this. Agreement; provided, that such agents and employees shall hold in confidence such information to the extent required of the CITY hereunder or (ii) to the extent required by order of court or by -7- state of federal law. The confidentiality requirements of this Agreement shall survive any expiration, termination or cancellation of this Agreement and shall continue to bind the CITY, its successors, assigns and legal representatives for a period of five (5) years from the termination, expiration or cancellation of this Agreement. All Generators shall be treated as third party beneficiaries to this Confidentiality provision. Audit. Each payment by the CITY to OWNER shall be accompanied by a statement executed by the City Treasurer or the Treasurer's designee, setting forth the calculations of such payment and identifying the sales tax return period to which the payment relates. The City Treasurer or the Treasurer's designee shall further issue a statement setting forth all payments made to date to OWNER. OWNER shall have one (1) year following the receipt of said payment to contest any of the calculations or information contained in said statements. OWNER shall have the right to review all sales tax-reports provided to the CITY by the state relating to any Generator upon two days written request by OWNER. DefaultfM21it to Cure. No party shall be deemed in default hereunder until such Party has failed to cure the alleged default with ten (10) days in the case of a monetary default, or within thirty(30) days in the case of a non-monetary default, from notice of such default from the other Party; provided, however, if the nature of such non-monetary default is such that it cannot reasonably be cured within such thirty (30) days period, then such Party shall not be deemed in default if such Party commences to cure such default within such thirty (30) day period and thereafter diligently. prosecutes such cure to completion. In the event of a default and except as may be otherwise provided herein to the contrary, the non-defaulting party may: (i) terminate this Agreement upon written notice to the defaulting party, recover from the defaulting party all damages incurred by the non-defaulting party; (ii). except as may be otherwise expressly provided to the contrary herein, seek specific performance of this Agreement, and, in addition, recover all damages incurred by the non-defaulting party; (the parties declare it to be their intent that this Agreement may be specifically enforced); (iii). pursue all other remedies available at law, it being the intent of the parties that remedies be cumulative and liberally enforced so as to adequately and completely compensate the non- defaulting party. No Oblieation to Develop, Open or Operate. Nothing contained in this Agreement shall be deemed to obligate OWNER, Generator or any of Generator's affiliates to construct any improvements on the Property or to open or operate, any form of business in the Property for any period of time or at all. -8- Additional Covenants. Time. Time is of the essence unless otherwise stated in this Agreement and all time limits set forth are mandatory and cannot be waived except by a lawfully authorized and executed written waiver by the party excusing such timely performance. Binding Effect. This Agreement shall be construed and enforced in accordance with the laws of the State of Illinois. Severabilitv. If any provision of this Agreement is held invalid by a court of competent jurisdiction or in the event such a court shall determine that the CITY does not have the power to perform any such provision, such provision shall be deemed to be excised herefrom and the invalidity thereof shall not affect any of the other provisions contained herein. Notices. All notices and requests required pursuant to this Agreement shall be sent by certified mail as follows: To Owner: Castle Bank as Trustee under Trust Agreement Dated July 8,2005 and known as Trust#2373 c/o Jim Ratos 207 W.Kendall Dr. Yorkville, IL 60560 To Owner's Attorney: Law Offices of Daniel J. Kramer 1107A S. Bridge Street Yorkville, IL 60560 With copies to: Attorney John Wyeth United City of Yorkville Offices 800 Game Farm Rd. Yorkville, IL 60560 Authority to Execute. The signatories of the parties hereto warrant that they have been lawfully authorized by the City Council of the CITY and the Board of Directors of DEVELOPER to execute this Agreement on their behalf. Attorneys' Fees. If a party commences a legal proceeding to enforce any of the terms of this Agreement, the prevailing party in such action shall have the right to recover reasonable attorneys' fees and costs from the other Party to be fixed by the court in the same action. Relationship of the Parties. Nothing herein shall be deemed or construed by the Parties or by any third party as creating the relationship of principal and agent or of partnership of or joint venture between the Parties, it being understood and agreed that no provision herein,nor any acts of the parties, shall be deemed to create any relationship between the parties. -9- Remedies Not Exclusive. Except as may be otherwise expressly provided herein, the various rights and remedies herein contained and reserved to each of the parties, except as herein otherwise expressly provided, are not exclusive of any other right or remedy of such parry, but are cumulative and in addition to every other remedy now or hereafter existing at law, in equity or by statute. No delay or omission of the right to exercise any power or remedy by either party shall impair any such right, power or remedy or be construed as a waiver of any default or non- performance or as acquiescence therein. IN WITNESS WHEREOF, this Agreement is entered into at United City of Yorkville, Illinois, as of the date and year shown above. UNITED CITY OF YORKVILLE, CASTLE BANK AS TRUSTEE UNDER TRUST an Illinois Municipal Corporation, AGREEMENT DATED JULY 8, 2005 AND KNOWN AS TRUST#2373 By: By: t� MAYOR JAMES G. RATOS Attest: Dated: CITY CLERK Law Offices of Daniel J. Kramer 1107A S. Bridge Street Yorkville, Illinois 60560 630.553.9500 -10- cl A T�0 United City of Yorkville Memo 800 Game Farm Road EST. 1 ` ,:1836 Yorkville, Illinois 60560 .4 Telephone: 630-553-4350 O �� Fax: 630-553-7575 9 �a�� O <kE Date: July 25,2006 To: Mayor and City Council From: Lisa Pickering, Deputy Clerk Subject: Revised information for City Council packet—July 25, 2006 Attached please find revised information on Consent Agenda Item#2—Raymond Stormwater Management and Storm Sewer Outfall Improvement Agreement. CA4�a- REb- VtIEta STATE OF ILLINOIS ) Revised July 24,2006 " &CS`O COUNTY OF KENDALL ) RAYMOND STORMWATER MANAGEMENT AND STORM SEWER OUTFALL IMPROVEMENT AGREEMENT NOW COMES the United City of Yorkville,hereinafter referred to "CITY" and CASTLE BANK AS TRUSTEE UNDER TRUST AGREEMENT DATED JULY 8, 2005 AND KNOWN AS TRUST #2373, hereinafter referred to as "RATOS'; OCEAN ATLANTIC/PFG-WESTBURY, LLC, a California Limited Liability Company hereinafter referred to as "OCEAN ATLANTIC"; and WYNDHAM DEERPOINT, (RATOS, OCEAN ATLANTIC and WYNDHAM DEERPOINT all collectively hereinafter referred to as"OWNERS/DEVELOPERS"),who in consideration of entering into this RAYMOND STORMWATER MANAGEMENT AND STORM SEWER OUTFALL IMPROVEMENT AGREEMENT("Agreement")dated 2006 agree to the following terms and conditions: WITNESSETH WHEREAS, CITY is desirous of having constructed, on land that it owns or will acquire, the Raymond Regional Stormwater Management Facility (hereinafter "FACILITY'S to serve the United City of Yorkville, various property owners, and an adjoining service area on a regionalized basis;and WHEREAS, CITY has agreed to acquire certain real property described in the attached Exhibit "A" and any necessary easements appurtenant thereto for purposes of the construction of said Facility;and WHEREAS, CITY will also construct the `Raymond Outfall' (hereinafter "OUTFALL") from the FACILITY to the OUTFALL'S terminus as depicted on Exhibit "B";and WHEREAS, it is estimated that the cost of said OUTFALL and related appurtenances will be in excess of one million dollars and the CITY does not have financing in place to construct the same;and WHEREAS, RATOS, OCEAN ATLANTIC, and WYNDHAM DEERPOINT all own real property which will benefit from the construction of the OUTFALL;and WHEREAS, RATOS, OCEAN ATLANTIC, and WYNDHAM DEERPOINT all agree to provide easements as necessary for the construction of the OUTFALL,and WHEREAS, CITY shall enter into all necessary ownership, easement, or license agreements to permit the construction of the FACILITY on the property owned by Centex Development, or to permit the construction of the FACILITY by RATOS or its agents and assigns for purposes of digging the regional detention facility;and WHEREAS, the CITY is desirous of undertaking the construction of the OUTFALL and has determined that the actual cost of engineering, design, construction, and supervision is the estimated sum of One Million Two Hundred Thousand Dollars ($1,200,000.00);and 2 WHEREAS the CITY has requested RATOS, OCEAN ATLANTIC, and WYNDHAM DEERPOINT pay the following sums for the design, construction and installation of the OUTFALL or construct its oortion of the OUTFALL: 1.RATOS $400,000.00 2.OCEAN ATLANTIC $500,000.00 Deleted:$300.000.00 3.WYNDHAM DEERPOINT gonstruct its portion NOW THEREFORE, inconsideration of the mutual covenants, recitals and the mutual and reciprocal obligations hereinafter set forth the parties agree as follows: 1. The recitals herein contained are adopted herein and made an enforceable part of this Agreement. 2. The CITY will obtain an engineer's estimate for the design, construction and installation of the OUTFALL described and depicted in Exhibit"C"("OUTFALL CONSTRUCTION DESIGNS") and shall cause the OUTFALL to be completed Deleted:0ctober31 and operational on or before November 17, 2006. In the event of delays caused_. by severe weather, war, riot, civil commotion, explosion, fire, epidemic, government action,or court order that hinder or delay performance of the CITY's obligations hereunder,the parties shall agree to a reasonable extension of time for completion and operation of the OUTFALL. 3. That the OWNERS/DEVELOPERS listed as follows: A. WYNDHAM DEERPOINT has be"n its portion of the OUTFALL and agrees to complete it to the CITY:s satisfaction no later than August 31,2006. B. 1.RATOS $400,000.00 3 Deleted:3.WYNDHAM 2. OCEAN ATLANTIC $500,000.00 DEERPOINT 6300.000.00 shall deposit the above described funds ("OUTFALL FUNDS') in an escrow account to be established by the OWNERS/DEVELOPERS within Thirty (30) days of the demand by the CITY which OUTFALL FUNDS shall be used solely for the costs of designing,constructing,and installing the OUTFALL pursuant to the OUTFALL CONSTRUCTION DESIGNS. OWNERS/DEVELOPERS shall release the OUTFALL FUNDS upon the award and execution of a contract by the CITY for the construction of the OUTFALL. Any amounts remaining after design, construction and installation of the OUTFALL by the City shall be returned to the OWNERS/DEVELOPERS in proportion to the amounts each contributed. 4. OWNERS/DEVELOPERS shall tender all easements necessary for construction of the OUTFALL to be commenced by the CITY on or after August 1,2006. 5. CITY agrees to enter into written agreements for recapture of OWNERS/DEVELOPERS' respective contributions of OUTFALL FUNDS from any property owner purchasing use of the FACILITY, or connecting to the OUTFALL,pursuant to a written recapture agreement acceptable to the CITY and OWNERS/DEVELOPERS and approved by the City Council. No owner of any property other than property owned as of the date of this Agreement by the OWNERS/DEVELOPERS shall be permitted to purchase use of the FACILITY, or to connect to said OUTFALL, until a written recapture agreement benefiting the OWNERS/DEVELOPERS is executed by the CITY and said property owner. 4 6. OWNERS/DEVELOPERS shall not be required to design and construct the FACILITY or OUTFALL. 7. The CITY under good faith will immediately begin the bid for construction and shall continue in good faith to diligently execute the project. 8. INTEGRATION: This Agreement shall not be claimed enforceable by or to any party thereto unless completed in writing and executed by representatives of each party hereto. 9. Severability Clause: In the event any portion of this Agreement is deemed to be unenforceable by any court of competent jurisdiction, the remaining portions thereof shall be enforceable between the parties hereto. 10. This Agreement shall be binding upon the successor, heirs and assigns of each party hereto. IN WITNESS WHEREOF the parties have executed this Agreement this day of 2006. UNITED CITY OF YORKV ILLE CASTLE BANK,as Trustee Under Trust #2373 (RATOS) By: By: Mayor ATTEST: ATTEST: City Clerk 5 OCEAN ATLANTIC WYNDHAM DEERPOINT By: By: ATTEST: ATTEST: 1157293x2 6 CAS (,'LE-,ul vElaS)10 J STATE OF ILLINOIS ) Revised July 24,2006 COUNTY OF KENDALL ) RAYMOND STORMWATER MANAGEMENT AND STORM SEWER OUTFALL IMPROVEMENT AGREEMENT NOW COMES the United City of Yorkville, hereinafter referred to "CITY" and CASTLE BANK AS TRUSTEE UNDER TRUST AGREEMENT DATED JULY 8, 2005 AND KNOWN AS TRUST #2373, hereinafter referred to as "RATOS"; OCEAN ATLANTIC/PFG-WESTBURY, LLC, a California Limited Liability Company hereinafter referred to as "OCEAN ATLANTIC'; and WYNDHAM DEERPOINT, (RATOS, OCEAN ATLANTIC and WYNDHAM DEERPOINT all collectively hereinafter referred to as "OWNERS/DEVELOPERS"), who in consideration of entering into this RAYMOND STORMWATER MANAGEMENT AND STORM SEWER OUTFALL IMPROVEMENT AGREEMENT("Agreement') dated , 2006 agree to the following terms and conditions: WITNESSETH WHEREAS, CITY is desirous of having constructed, on land that it owns or will acquire, the Raymond Regional Stormwater Management Facility (hereinafter "FACILITY") to serve the United City of Yorkville, various property owners, and an adjoining service area on a regionalized basis; and WHEREAS, CITY has agreed to acquire certain real property described in the attached Exhibit "A" and any necessary easements appurtenant thereto for purposes of the construction of said Facility; and WHEREAS, CITY will also construct the `Raymond Outfall' (hereinafter "OUTFALL") from the FACILITY to the OUTFALL'S terminus as depicted on Exhibit "B"; and WHEREAS, it is estimated that the cost of said OUTFALL and related appurtenances will be in excess of one million dollars and the CITY does not have financing in place to construct the same; and WHEREAS, RATOS, OCEAN ATLANTIC, and WYNDHAM DEERPOINT all own real property which will benefit from the construction of the OUTFALL; and WHEREAS, RATOS, OCEAN ATLANTIC, and WYNDHAM DEERPOINT all agree to provide easements as necessary for the construction of the OUTFALL, and WHEREAS, CITY shall enter into all necessary ownership, easement, or license agreements to permit the construction of the FACILITY on the property owned by Centex Development, or to permit the construction of the FACILITY by RATOS or its agents and assigns for purposes of digging the regional detention facility; and WHEREAS, the CITY is desirous of undertaking the construction of the OUTFALL and has determined that the actual cost of engineering, design, construction, and supervision is the estimated sum of One Million Two Hundred Thousand Dollars ($1,200,000.00); and 2 WHEREAS the CITY has requested RATOS, OCEAN ATLANTIC, and WYNDHAM DEERPOINT pay the following sums for the design, construction and installation of the OUTFALL or construct its portion of the OUTFALL: 1. RATOS $400,000.00 2. OCEAN ATLANTIC $500,000.00 3. WYNDHAM DEERPOINT Construct its portion NOW THEREFORE, inconsideration of the mutual covenants, recitals and the mutual and reciprocal obligations hereinafter set forth the parties agree as follows: 1. The recitals herein contained are adopted herein and made an enforceable part of this Agreement. 2. The CITY will obtain an engineer's estimate for the design, construction and installation of the OUTFALL described and depicted in Exhibit"C" ("OUTFALL CONSTRUCTION DESIGNS") and shall cause the OUTFALL to be completed and operational on or before November 17, 2006. In the event of delays caused by severe weather, war, riot, civil commotion, explosion, fire, epidemic, government action, or court order that hinder or delay performance of the CITY's obligations hereunder, the parties shall agree to a reasonable extension of time for completion and operation of the OUTFALL. 3. That the OWNERS/DEVELOPERS listed as follows: A. WYNDHAM DEERPOINT has begun its portion of the OUTFALL and agrees to complete it to the CITY;s satisfaction no later than August 31,2006. B. 1. RATOS $400,000.00 3 2. OCEAN ATLANTIC $500,000.00 shall deposit the above described funds ("OUTFALL FUNDS") in an escrow account to be established by the OWNERS/DEVELOPERS within Thirty (30) days of the demand by the CITY which OUTFALL FUNDS shall be used solely for the costs of designing, constructing, and installing the OUTFALL pursuant to the OUTFALL CONSTRUCTION DESIGNS. OWNERS/DEVELOPERS shall release the OUTFALL FUNDS upon the award and execution of a contract by the CITY for the construction of the OUTFALL. Any amounts remaining after design, construction and installation of the OUTFALL by the City shall be returned to the OWNERS/DEVELOPERS in proportion to the amounts each contributed. 4. OWNERS/DEVELOPERS shall tender all easements necessary for construction of the OUTFALL to be commenced by the CITY on or after August 1,2006. 5. CITY agrees to enter into written agreements for recapture of OWNERS/DEVELOPERS' respective contributions of OUTFALL FUNDS from any property owner purchasing use of the FACILITY, or connecting to the OUTFALL,pursuant to a written recapture agreement acceptable to the CITY and OWNERS/DEVELOPERS and approved by the City Council. No owner of any property other than property owned as of the date of this Agreement by the OWNERS/DEVELOPERS shall be permitted to purchase use of the FACILITY, or to connect to said OUTFALL, until a written recapture agreement benefiting the OWNERS/DEVELOPERS is executed by the CITY and said property owner. 4 6. OWNERS/DEVELOPERS shall not be required to design and construct the FACILITY or OUTFALL. 7. The CITY under good faith will immediately begin the bid for construction and shall continue in good faith to diligently execute the project. 8. INTEGRATION: This Agreement shall not be claimed enforceable by or to any party thereto unless completed in writing and executed by representatives of each party hereto. 9. Severability Clause: In the event any portion of this Agreement is deemed to be unenforceable by any court of competent jurisdiction, the remaining portions thereof shall be enforceable between the parties hereto. 10. This Agreement shall be binding upon the successor, heirs and assigns of each party hereto. IN WITNESS WHEREOF the parties have executed this Agreement this day of 2006. UNITED CITY OF YORKVILLE CASTLE BANK, as Trustee Under Trust #2373 (RATOS) By: By: Mayor ATTEST: ATTEST: City Clerk 5 OCEAN ATLANTIC WYNDHAM DEERPOINT By: By: ATTEST: ATTEST: 1157293v2 6 CA 3 `QED C/Ty United City of Yorkville / County Seat of Kendall County -Pw - c)cc_ l 1 800 Game Farm Road Yorkville, Illinois, 60560 EST. 1 ..- 1836 Telephone: 630-553-4350 -�� Fax: 630-553-7575 `.�.�_ ca Website: www.yorkville.il.us 9 O E `= WATER DEPARTMENT REPORT MAY 2006 MONTH/YEAR WELLS NO WELL DEPTH PUMP DEPTH WATER ABOVE PUMP THIS MONTH'S PUMPAGE FEET FE FEET MILLION GALLONS 3 1335 463 203 13,145 4 1393 542 186 20,683 TOTAL 33,828 CURRENT MONTH'S PUMPAGE IS 1,711,000 GALLONS MO LESS THAN LAST MONTH 9,371,000 GALLONS MOR LESS THAN LAST MONTH DAILY AVERAGE PUMPED: 1,091,000 GALLONS DAILY MAXIMUM PUMPED: 1,416,000 GALLONS DAILY AVERAGE PER CAPITA USE: 109 GALLONS WATER TREATMENT CHLORINE FED: 557 LBS. CALCULATED CONCENTRATION: 2.0 MG/L FLUORIDE FED: 516 LBS. CALCULATED CONCENTRATION: 0.33 MG/L WATER QUALITY AS DETERMINED FROM SAMPLES ANALYZED BY ILLINOIS ENVIRONMENTAL PROTECTION AGENCY BACTERIOLOGICAL: 9 SAMPLES TAKEN SATISFACTORY 9 UNSATISFACTORY(EXPLAIN) FLUURIDE: 2 SAMPLE(S)TAKEN CONCENTRATION: 1.1 MG/L MAINTENANCE NUMBER OF METERS REPLACED: 12 NUMBER OF LEAKS OR BREAKS REPAIRED: 0 NEW CUSTOMERS RESIDENTIAL: 76 COMMERCIAL: 2 INDUSTRIAL/GOVERNMENTAL: 1 COMMENTS Page 1 of 1 lit AFT UNITED CITY OF YORKVILLE COMMITTEE OF THE WHOLE Council Chambers Tuesday,July 5,2006—7:00 pm In Attendance: City Art Prochaska-Mayor John Crois—Interim City Administrator Jim Bock—Alderman Bart Olson—Assistant City Administrator Rose Spears-Alderwoman John Wyeth—City Attorney Travis Miller—Community Development Director David Mogle—Parks&Rec. Exec. Director Susan Mika—Finance Director Bill Powell-Treasurer Guests Heather Gillers—Beacon News John Bomeman Lynn Dubajic—YEDC James Brown—Villas of the Preserves Georgia Krause Dave Johnson—Villas of the Preserves John Philipchuck Randy Witt—Lundmark Group Jim Urhausen—Lundmark Group Sterling Witt—Lundmark Group Tim O'Keefe Jason Poppen—Land Advisors Pete Huinker—Smith Eng. Vince Rosanova—Dommermuth,Brestal Jan Fiala—Corporate Design Cobine & West Dave Thomas—Marathon Petroleum Vince Gelsomino—Speedway Eric Hufstetler J. Rato E. LeCompte—John Greene Rick Murphy—Pasquinelli Kate McCracken Mayor Prochaska cancelled the meeting at 7:15pm due to lack of a quorum. He stated that a short C.O.W would be held at 6pm prior to the Council meeting next week. Minutes by Marlys Young,Minute Taker NIA vo UNITED CITY OF YORKVILLE J w&unati= NATIONAL NIGHT OUT 2006 WHEREAS, the National Association of Town Watch (NATW) is sponsoring a unique, nationwide crime, drug and violence prevention program on August 1St, 2006 entitled"National Night Out"; and WHEREAS, the "23' Annual National Night Out" provides a unique opportunity for the United City of Yorkville to join forces with thousands of other communities across the country in promoting cooperative, police-community crime prevention efforts; and WHEREAS,the Citizens Police Academy Alumni Association plays a vital role in assisting the Yorkville Police Department through joint crime, drug and violence prevention efforts in the United City of Yorkville and is supporting"National Night Out 2006"locally; and WHEREAS, it is essential that all citizens of the United City of Yorkville be aware of the importance of crime prevention programs and impact that their participation can have on reducing crime, drugs and violence in the United City of Yorkville; and WHEREAS, police-community partnerships, neighborhood safety, awareness and cooperation are important themes of the "National Night Out Program"; NOW, THEREFORE I, Mayor Arthur F. Prochaska, Jr., do hereby call upon all citizens of the United City of Yorkville to join the Citizens Police Academy Alumni Association and the National Association of Town Watch in supporting "23`d Annual National Night Out" on August 1 St, 2006. FURTHER, LET IT BE RESOLVED THAT I, Mayor Arthur F. Prochaska, Jr., do hereby proclaim Tuesday, August 1St, 2006 as "NATIONAL NIGHT OUT" in the United City of Yorkville. Dated this 25th day of July 2006, A.D. Arthur F. Prochaska, Jr., Mayor M Ayop- a Reviewed By: J� I T Le g al F] City Council EST 1838 Finance ❑ Engineer ❑ < � City Administrator Agenda Item Tracking Number Off C Consultant ❑ Cl fin/ .YCC6- '-j <CE City Council Agenda Item Summary Memo Title: City Administrator Performance Evaluation City Council/COW/ Committee Agenda Date: City Council—July 25, 2006 Synopsis: This is the City Administrator's performance evaluation process that was discussed and recommended from the Administration Task Force. Council Action Previously Taken: Date of Action: N /A Action Taken: Item Number: Type of Vote Required: N/A Council Action Requested: Approval Submitted by: Bart Olson Administration Name Department Agenda Item Notes: See cover memo of packet for explanation. This item was the last in the list that Dr. Gabris and Dr. Wood recommended for the Administration Task Force. 7-19-2006 UPDATE— 5 t step in evaluation cover memo was added outlining the desire for a six month ungraded performance review. Approved copy will be a clean version. Crt` 2 o United City of Yorkville Memo J. 0N 800 Game Farm Road Yorkville,Illinois 60560 C �I y Telephone: 630-553-4350 9W 20 Fax: 630-553-7575 ALE tvr Date: May 30,2006 Subject: City Administrator Evaluation The documents enclosed in this packet are to be filled out on an annual basis to complete the City Administrator's evaluation. They are as follows: 1) The most recent,approved,City Administrator job description 2) The City Administrator's evaluation of performance form 3) The City Administrator's evaluation of goals form The evaluation process shall be completed as follows: 1) The evaluation of goals form and the"employee comments"section of the evaluation of performance shall be filled out by the City Administrator for each evaluation category. 2) The City Administrator's comments for each form shall be made available to the City Council. 3) The City Administrator and the City Council shall meet to discuss the City Administrator's comments on the forms,and to give the City Administrator the results of the evaluation of performance and evaluation of goals form. a. Consensus of the City Administrator's evaluation of performance by the City Council is the norm;however,in cases of dissenting opinions, the signature sheet on the evaluation of performance form allows the individual Council member to omit their signature. 4) Goals for the City Administrator for the upcoming fiscal year will be discussed and recorded for purposes of next year's evaluation. 5) At the half year(6-month)mark.the City Council shall meet with the City - Formatted:Bullets and Numbering Administrator to discuss evaluation of the annual goals,and to provide the City Administrator with an ungraded evaluation of performance form MAyo� �3 CIP Reviewed By: J� .0 Legal ❑ City Council Finance ❑ EST. , �� 1636 Engineer ❑ -t y City Administrator El Item Tracking Number O� ��^z �O Consultant ❑ 0 �`E , F-1 City Council Agenda Item Summary Memo Title: General Obligation Library Bonds, Series 2006 City Council/Committee of the Whole Date: City Council 7/25/06 Synopsis: Council Action Previously Taken: Date of Action: 7/11/06 Action Taken: Approved Item Number: Type of Vote Required: Award this Bond to Wachovia Securities Council Action Requested: Signature on closing documents Submitted by: Susan Mika Finance Name Department Agenda Item Notes: Law Offices of CH"MAN AND CUTLER LLP Theodore S.Chapman I I I West Monroe Street,Chicago,Illinois 60603-4080 San Francisco 1877-1943 Henry E.Cutler FAX(312)701-2361 595 Market Street 1879-1959 Telephone(312)845-3000 San Francisco,CA 94105 chapman.com (415)541-0500 Kelly K.Kest Salt Lake Village 312-845-3875 201 South Main Street 312-516-1875 Fax Salt Lake Village,Utah 84111 kost@chapman-com (801)533-0066 July 11, 2006 TO THE PEOPLE ON THE ATTACHED DISTRIBUTION LIST Re: United City of Yorkville Kendall County,Illinois General Obligation Library Bonds, Series 2006 Ladies and Gentlemen: In accordance with the pricing information received this date from Kevin McCanna of Speer Financial, Inc., we have prepared and are enclosing a revised copy of the Bond Ordinance in connection with the issuance of the above referenced Bonds. We will forward the usual showings memorandum and closing certificates. In the meantime, if you have any questions,please do not hesitate to contact the undersigned. Very truly yours, CHAPMAN AND CUTLER LLP By �4 11�. - Kelly K.Kost KKostlar Enclosures 2058619.01.02.B.doc 2120863 KK 07/11/06 UNITED CITY OF YORKVILLE,KENDALL COUNTY,ILLINOIS $1,500,000 GENERAL OBLIGATION LIBRARY BONDS, SERIES 2006 DISTRIBUTION LIST Issuer Bond Registrar United City of Yorkville The Bank of New York Trust Company,N.A. 800 Game Farm Road 2 North LaSalle Street, Suite 1020 Yorkville,Illinois 60560 Chicago,Illinois 60602 Ms. Susan Mika (630) 553-4350 Lena Mopsik (312) 827-8530 E-Mail: smika @yorkville.il.us E-Mail: lmopsik @bankofny.com City Attorney Bond Counsel United City of Yorkville Chapman and Cutler LLP 800 Game Farm Road 111 West Monroe Street, 13th Floor Yorkville,Illinois 60560 Chicago, Illinois 60603 John Justin Wyeth (630) 553-4350 Kelly Kost (312) 845-3875 E-Mail: jwyeth @yorkville.il.us E-Mail: kost @chapman.com Financial Advisor Underwriter Speer Financial,Inc. Wachovia Securities,LLC One North LaSalle Street, Suite 4100 901 E. Byrd Street Chicago,Illinois 60602 Richmond, Virginia 23219 Kevin McCanna (312) 346-3700 Lisa Hammersley (804)782-3272 E-Mail: kmccanna @speerfinancial.com E-Mail: lisa.hammersley @wachoviasec.com Brenda Housten (312) 346-3700 E-Mail: bhousten @speerfinancial.com Insurer XL Capital Assurance Inc. 1221 Avenue of the Americas New York,New York 10020 Helen Mendez E-Mail: Helen.Mendez @xlgroup.com EXTRACT OF MINUTES of the regular public meeting of the City Council of the United City of Yorkville, Kendall County, Illinois, held at the City Council Chambers,City Hall, located at 800 Game Farm Road, in said City, at 7:00 p.m., on Tuesday, the 11th day of July,2006. Mayor Arthur F. Prochaska called the meeting to order and directed the City Clerk to call the roll. Upon the roll being called, the following Aldermen answered present at said location: The following were absent: The City Council then discussed the proposal to improve and equip the existing Yorkville Public Library and considered an ordinance providing for the issuance of$1,500,000 General Obligation Library Bonds, Series 2006, of the City and providing for the levy and collection of a direct annual tax sufficient for the payment of the principal of and interest on said bonds. Thereupon, the presented and the read into the record in full the following ordinance: Ordinance.doc 2120863 KK 07/11106 AN ORDINANCE providing for the issuance of$1,500,000 General Obligation Library Bonds, Series 2006, of the United City of Yorkville, Kendall County, Illinois, and providing for the levy and collection of a direct annual tax sufficient for the payment of the principal of and interest on said bonds. (the "Bond Ordinance"). Alderman moved and Alderman seconded the motion that the Bond Ordinance as presented be adopted: A City Council discussion of the matter followed. During the City Council discussion, gave a public recital of the nature of the matter, which included a reading of the title of the ordinance and statements (1)that the ordinance provided for the issuance of General Obligation Library Bonds for the purpose of paying the costs of improving and equipping the existing Yorkville Public Library, (2) that the bonds were authorized pursuant to a referendum held on November 2, 2004, (3) that the Bond Ordinance provides for the levy of taxes sufficient to pay the bonds, and (4) that the Bond Ordinance provides many details for the bonds, including tax-exempt status covenants, provision for terms and form of the bonds, and appropriations. The Mayor directed that the roll be called for a vote upon the motion to adopt the ordinance. Upon the roll being called, the following Aldermen voted AYE: and the following Aldermen voted NAY: WHEREUPON, the Mayor declared the motion carried and the Bond Ordinance adopted, and henceforth did approve and sign the same in open meeting, and did direct the City Clerk to record the same in full in the records of the City Council of the United City of Yorkville, Kendall County, Illinois. Other business was duly transacted at said meeting. Upon motion duly made and carried, the meeting adjourned. City Clerk -2- ORDINANCE NUMBER AN ORDINANCE providing for the issuance of$1,500,000 General Obligation Library Bonds, Series 2006, of the United City of Yorkville, Kendall County, Illinois, and providing for the levy and collection of a direct annual tax sufficient for the payment of the principal of and interest on said bonds. Adopted by the City Council on the 11th day of July, 2006. TABLE OF CONTENTS SECTION BEADING PAGE Preambles ................................................................................................................................... 1 SECTION1. DEFINITIONS .............................................................................................3 SECTION 2. INCORPORATION OF PREAMBLES................................................................4 SECTION 3. DETERMINATION TO ISSUE BONDS .............................................................4 SECTION4. BOND DETAILS..........................................................................................4 SECTION S. GLOBAL BOOK-ENTRY SYSTEM.................................................................6 SECTION 6. EXECUTION; AUTHENTICATI ON..................................................................H SECTION7. REDEMPTION.............................................................................................9 SECTION S. REDEMPTION PROCEDURE..........................................................................9 SECTION 9. REGISTRATION AND EXCHANGE OR TRANSFER OF BONDS; PERSONS TREATED AS OWNERS...............................................................11 SECTION10. FORM OF BOND....................................................................................... 13 SECTION11. TAX LEVY...............................................................................................20 SECTION 12. FILING WITH COUNTY CLERK...................................................................21 SECTION13. SALE OF BONDS.......................................................................................21 SECTION 14. CREATION OF FUNDS AND APPROPRIATI ONS.............................................22 SECTION 15. GENERAL ARBITRAGE COVENANTS..........................................................23 SECTION 16. REGISTERED FORM..................................................................................2$ -I- SECTION 17. RIGHTS AND DUTIES OF BOND REGISTRAR AND PAYING AGENT....................................................................................................25 SECTION 18. CONTINUING DISCLOSURE UNDERTAKING................................................26 SECTION 19. MUNICIPAL BOND INSURANCE.................................................................26 SECTION 20. SEVERABILITY.........................................................................................27 SECTION 21. SUPERSEDER AND EFFECTIVE DATE.....................:....................................28 -ii- ORDINANCE NUMBER AN ORDINANCE providing for the issuance of$1,500,000 General Obligation Library Bonds, Series 2006, of the United City of Yorkville, Kendall County, Illinois, and providing for the levy and collection of a direct annual tax sufficient for the payment of the principal of and interest on said bonds. WHEREAS, it is deemed advisable, necessary and for the best interests of the United City of Yorkville, Kendall County, Illinois (the "City"), that the City improve and equip the existing Yorkville Public Library and pay for expenses incidental thereto (the "Project"); and WHEREAS, the City Council of the City (the "City Council") has determined the total cost of the Project and costs and expenses incidental thereto, including in such costs and expenses all items of cost permitted under the Local Government Debt Reform Act of Illinois, as amended, and without limitation, costs of issuance of bonds, capitalized interest, and reserves, to be not less than $1,500,000, plus the estimated investment earnings available upon the investment of said sum prior to expenditure; and WHEREAS, the City Council did, by ordinance adopted on the 22nd day of June, 2004, provide for and require the submission of the following proposition: Shall bonds in the amount of not to exceed $8,750,000 be issued by the United City of Yorkville, Kendall County, Illinois, for the purpose of improving and equipping the existing Yorkville Public Library and for expenses incidental thereto, said bonds bearing interest at the rate not to exceed 9% per annum? to the voters of the City at the general election held on the 2nd day of November, 2004 (the "Election"); and WHEREAS, the County Clerk (the "County Clerk") of The County of Kendall, Illinois, caused proper notice to be given of the Election (the "Notice") by (i) publishing the Notice once not more than 30 nor less than 10 days prior to the date of the Election in a local, community newspaper having general circulation in the City, and (ii) posting a copy of the Notice at least 10 days before the date of the Election at the principal office of the County Clerk; and WHEREAS, the City Clerk posted a copy of the Notice at the principal office of the City; and WHEREAS, the Election was duly held in the manner provided by law, and it has heretofore been found, determined, declared and proclaimed that a majority of all the votes cast at the Election on said proposition was cast in favor of said proposition, and said proposition was properly carried; and WHEREAS, the City issued on August 11, 2005, $7,250,000 of the authorized sum to pay for a portion of the costs of the Project; and WHEREAS, it is in the judgment of the City Council necessary to pay for the cost of the Project to borrow the sum of$1,500,000 and issue bonds of the City in the principal amount of $1,500,000; and WHEREAS, such bonds shall be payable from a direct annual ad valorem tax levied against all taxable property in the Village, without limitation as to rate or amount; and WHEREAS, the Property Tax Extension Limitation Law of the State of Illinois, as amended, imposes certain limitations on the "aggregate extension" of certain property taxes levied by the City, but provides that the definition of "aggregate extension" applicable to the City contained in Section 18-185 of the Property Tax Code of the State of Illinois, as amended, does not include extensions "made for the taxing district to pay interest or principal on general obligation bonds that were approved by referendum"; and WHEREAS,the City Council does hereby find and determine that the bonds for the Project were approved by referendum; and 2 WHEREAS, the County Clerk is therefore authorized to extend and collect said tax so levied for the payment of the bonds for the Project without limitation as to rate or amount; Now THEREFORE Be It Ordained by the City Council of the United City of Yorkville, Kendall County, Illinois, as follows: Section 1. Definitions. In addition to such other words and terms used and defined in this Ordinance, the following words and terms used in this Ordinance shall have the following meanings, unless, in either case, the context or use clearly indicates another or different meaning is intended: "Bonds" means the $1,500,000 General Obligation Library Bonds, Series 2006, authorized to be issued by this Ordinance. "Bond Fund" means the Bond Fund established and defined in Section 14 of this Ordinance. "Bond Register" means the books of the City kept by the Bond Registrar to evidence the registration and transfer of the Bonds. "Bond Registrar" means The Bank of New York Trust Company, N.A., Chicago, Illinois, a bank having trust powers, or a successor thereto or a successor designated as Bond Registrar hereunder. "City" means the United City of Yorkville,Kendall County,Illinois. "City Council" means the City Council of the City. "Code" means the Internal Revenue Code of 1986, as amended. "County Clerk" means the County Clerk of The County of Kendall, Illinois. "Ordinance" means this Ordinance, numbered as set forth on the title page hereof, and passed by the City Council on the 11th day of July, 2006. -3- "Paying Agent" means The Bank of New York Trust Company, N.A., Chicago, Illinois, a bank having trust powers, or a successor thereto or a successor designated as Paying Agent hereunder. "Pledged Taxes" means the taxes levied on the taxable property within the City to pay principal of and interest on the Bonds as made in Section 11 hereof. "Project" means the City's expenditures as described and defined as such in the preambles to this Ordinance. "Tax-exempt" means, with respect to the Bonds, the status of interest paid and received thereon as not includible in the gross income of the owners thereof under the Code for federal income tax purposes except to the extent that such interest will be taken into account in computing an adjustment used in determining the alternative minimum tax for certain corporations. Section 2. Incorporation of Preambles. The City Council hereby finds that all of the recitals contained in the preambles to this Ordinance are true, correct and complete and does incorporate them into this Ordinance by this reference. Section 3. Determination to Issue Bonds. It is necessary and in the best interests of the City to finance the Project, to pay all related costs and expenses incidental thereto, and to borrow money and issue the Bonds for such purposes. Section 4. Bond Details. For the purpose of providing for such costs, there shall be issued and sold the Bonds in the principal amount of $1,500,000. The Bonds shall each be designated "General Obligation Library Bond, Series 2006"; be dated August 1, 2006 (the "Dated Date"); and shall also bear the date of authentication thereof. The Bonds shall be in fully registered form, shall be in denominations of$5,000 or integral multiples thereof(but no single Bond shall represent principal maturing on more than one date), shall be numbered -4- consecutively in such fashion as shall be determined by the Bond Registrar, and shall become due and payable (subject to right of prior redemption as hereinafter set forth) on December 30 of the years and in the amounts and bearing interest at the rates percent per annum as follows: YEAR AMOUNT RATE 2008 $ 50,000 4.75% 2009 150,000 4.75% 2010 150,000 4.75% 2011 175,000 4.75% 2012 150,000 4.75% 2013 100,000 4.75% 2014 50,000 4.75% 2015 50,000 4.75% 2016 50,000 4.75% 2017 50,000 4.75% 2018 50,000 4.75% 2019 50,000 4.75% 2020 75,000 4.75% 2021 75,000 4.75% 2022 75,000 4.75% 2023 100,000 4.75% 2024 100,000 4.80% Each Bond shall bear interest from the later of its Dated Date as herein provided or from the most recent interest payment date to which interest has been paid or duly provided for, until the principal amount of such Bond is paid or duly provided for, such interest(computed upon the basis of a 360-day year of twelve 30-day months) being payable on June 30 and December 30 of each year, commencing on June 30, 2007. Interest on each Bond shall be paid by check or draft of the Paying Agent, payable upon presentation thereof in lawful money of the United States of America, to the person in whose name such Bond is registered at the close of business on the applicable Record Date (the "Record Date"), and mailed to the registered owner of the Bond as shown in the Bond Registrar or at such other address furnished in writing by such Registered Owner. The Record Date shall be the 15th day of the month of any regular or other interest payment date occurring on the 30th day of any month and 15 days preceding any interest -5- payment date occasioned by the redemption of Bonds on other than the 30th day of a month. The principal of or redemption price due on the Bonds shall be payable in lawful money of the United States of America upon presentation thereof at the principal corporate trust office of the Paying Agent in the City of Chicago,Illinois, or at successor Paying Agent and locality. Section 5. Global Book-Entry System. The Bonds shall be initially issued in the form of a separate single fully registered Bond for each of the maturities of the Bonds as provided in Section 4 hereof, and the ownership of each such Bond shall be registered in the Bond Register in the name of Cede & Co., or any successor thereto ("Cede"), as nominee of The Depository Trust Company, New York, New York, and its successors and assigns ("DTC"). All of the outstanding Bonds shall be registered in the Bond Register in the name of Cede, as nominee of DTC, except as hereinafter provided. The Mayor, Treasurer and Clerk of the City are hereby authorized to execute and deliver on behalf of the City such letters to or agreements with DTC and the Bond Registrar as shall be necessary to effectuate such book-entry system (any such letter or agreement being referred to herein as the "Representation Letter"). With respect to the Bonds registered in the Bond Register in the name of Cede, as nominee of DTC, the City and the Bond Registrar shall have no responsibility or obligation to any broker-dealer, bank or other financial institution for which DTC holds Bonds from time to time as securities depository (each such broker-dealer, bank or other financial institution being referred to herein as a "DTC Participant") or to any person on behalf of whom such a DTC Participant holds an interest in the Bonds. Without limiting the immediately preceding sentence, the City and the Bond Registrar shall have no responsibility or obligation with respect to (i) the accuracy of the records of DTC, Cede or any DTC Participant with respect to any ownership interest in the Bonds, (ii) the delivery to any DTC Participant or any other person, other than a registered owner of a Bond as shown in the Bond Register, of any notice with respect to the -6- Bonds, including any notice of redemption, or (iii) the payment to any DTC Participant or any other person, other than a registered owner of a Bond as shown in the Bond Register, of any amount with respect to principal of or interest on the Bonds. The City and the Bond Registrar may treat and consider the person in whose name each Bond is registered in the Bond Register as the holder and absolute owner of such Bond for the purpose of payment of principal and interest with respect to such Bond, for the purpose of giving notices of redemption and other matters with respect to such Bond, for the purpose of registering transfers with respect to such Bond, and for all other purposes whatsoever. The Bond Registrar shall pay all principal of and interest on the Bonds only to or upon the order of the respective registered owners of the Bonds, as shown in the Bond Register, or their respective attorneys duly authorized in writing, and all such payments shall be valid and effective to fully satisfy and discharge the City's obligations with respect to payment of principal of and interest on the Bonds to the extent of the sum or sums so paid. No person other than a registered owner of a Bond as shown in the Bond Register, shall receive a Bond certificate evidencing the obligation of the City to make payments of principal and interest with respect to any Bond. Upon delivery by DTC to the Bond Registrar of written notice to the effect that DTC has determined to substitute a new nominee in place of Cede, the name "Cede" in this Ordinance shall refer to such new nominee of DTC. In the event that (i) the City determines that DTC is incapable of discharging its responsibilities described herein and in the Representation Letter, (ii) the agreement among the City, the Bond Registrar and DTC evidenced by the Representation Letter shall be terminated for any reason or (iii) the City determines that it is in the best interests of the beneficial owners of the Bonds that they be able to obtain certificated Bonds, the City shall notify DTC and DTC Participants of the availability through DTC of Bond certificates and the Bonds shall no longer be restricted to being registered in the Bond Register in the name of Cede, as nominee of DTC. -7- At the time, the City may determine that the Bonds shall be registered in the name of and deposited with such other depository operating a global book-entry system, as may be acceptable to the City, or such depository's agent or designee, and if the City does not select such alternate global book-entry system, then the Bonds may be registered in whatever name or names registered owners of Bonds transferring or exchanging Bonds shall designate, in accordance with the provisions of Section 9 hereof. Notwithstanding any other provision of this Ordinance to the contrary, so long as any Bond is registered in the name of Cede, as nominee of DTC, all payments with respect to principal of and interest on such Bond and all notices with respect to such Bond shall be made and given,respectively, in the manner provided in the Representation Letter. Section 6. Execution;Authentication. The Bonds shall be executed on behalf of the City by the manual or facsimile signature of its Mayor and attested by the manual or facsimile signature of its City Clerk, as they may determine, and shall have impressed or imprinted thereon the corporate seal or facsimile thereof of the City. In case any such officer whose signature shall appear on any Bond shall cease to be such officer before the delivery of such Bond, such signature shall nevertheless be valid and sufficient for all purposes, the same as if such officer had remained in office until delivery. All Bonds shall have thereon a certificate of authentication, substantially in the form hereinafter set forth, duly executed by the Bond Registrar as authenticating agent of the City and showing the date of authentication. No Bond shall be valid or obligatory for any purpose or be entitled to any security or benefit under this Ordinance unless and until such certificate of authentication shall have been duly executed by the Bond Registrar by manual signature, and such certificate of authentication upon any such Bond shall be conclusive evidence that such Bond has been authenticated and delivered under this Ordinance. The certificate of authentication on any Bond shall be deemed to have been executed -8- by it if signed by an authorized officer of the Bond Registrar, but it shall not be necessary that the same officer sign the certificate of authentication on all of the Bonds issued hereunder. Section 7. Redemption. The Bonds maturing on or after December 30, 2017, are subject to redemption prior to maturity at the option of the City as a whole, or in part in any order of maturity determined by the City (less than all of the Bonds of a single maturity to be selected by the Bond Registrar), on December 30, 2016, or on any date thereafter, at the redemption price of par plus accrued interest to the date of redemption. Section 8. Redemption Procedure. The City shall, at least 45 days prior to the redemption date (unless a shorter time period shall be satisfactory to the Bond Registrar), notify the Bond Registrar of such redemption date and of the principal amount and maturities of Bonds to be redeemed. For purposes of any redemption of less than all of the Bonds of a single maturity, the particular Bonds or portions of Bonds to be redeemed shall be selected by lot not more than 60 days prior to the redemption date by the Bond Registrar for the Bonds of such series and maturity by such method of lottery as the Bond Registrar shall deem fair and appropriate;provided, that such lottery shall provide for the selection for redemption of Bonds or portions thereof so that any $5,000 Bond or $5,000 portion of a Bond shall be as likely to be called for redemption as any other such$5,000 Bond or$5,000 portion. The Bond Registrar shall promptly notify the City and the Paying Agent in writing of the Bonds or portions of Bonds selected for redemption and, in the case of any Bond selected for partial redemption, the principal amount thereof to be redeemed. Unless waived by the registered owner of Bonds to be redeemed, official notice of any such redemption shall be given by the Bond Registrar on behalf of the City by mailing the redemption notice by first-class mail not less than 30 days and not more than 60 days prior to the date fixed for redemption to each registered owner of the Bond or Bonds to be redeemed at the -9- address shown on the Bond Register or at such other address as is furnished in writing by such registered owner to the Bond Registrar. All official notices of redemption shall include the name of the Bonds and at least the information as follows: (1) the redemption date; (2) the redemption price; (3) if less than all of the Bonds of a single maturity are to be redeemed, the identification (and, in the case of partial redemption of any Bonds, the respective principal amounts) of the Bonds to be redeemed; (4) a statement that on the redemption date the redemption price will become due and payable upon each such Bond or portion thereof called for redemption and that interest thereon shall cease to accrue from and after said date; and (5) the place where such Bonds are to be surrendered for payment of the redemption price, which place of payment shall be the principal corporate trust business office of the Paying Agent. Prior to any redemption date, the City shall deposit with the Paying Agent an amount of money sufficient to pay the redemption price of all the Bonds or portions of Bonds which are to be redeemed on that date. Official notice of redemption having been given as aforesaid, the Bonds or portions of Bonds so to be redeemed shall, on the redemption date, become due and payable at the redemption price therein specified, and from and after such date (unless the City shall default in the payment of the redemption price), such Bonds or portions of Bonds shall cease to bear interest. Neither the failure to mail such redemption notice, nor any defect in any notice so mailed, to any particular registered owner, shall affect the sufficiency of such notice with respect -10- to other Bonds. Notice having been properly given, failure of a registered owner to receive such notice shall not be deemed to invalidate, limit or delay the effect of the notice or redemption action described in the notice. Such notice may be waived in writing by the registered owner entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by registered owners shall be filed with the Bond Registrar, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. Upon surrender of such Bonds for redemption in accordance with said notice, such Bonds shall be paid by the Paying Agent at the redemption price. The procedure for payment of interest due on or prior to the redemption date shall be as herein provided for payment of interest otherwise due. Upon surrender for any partial redemption of any Bond, there shall be prepared for the registered owner a new Bond or Bonds of like tenor, of authorized denominations, of the same maturity and bearing the same rate of interest in the amount of the unpaid principal. If any Bond or portion of Bond called for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid or duly provided for, bear interest from the redemption date at the rate bome by the Bond or portion of Bond so called for redemption. All Bonds which have been redeemed shall be cancelled and destroyed by the Bond Registrar and shall not be reissued. Section 9. Registration and Exchange or Transfer of Bonds; Persons Treated as Owners. The City shall cause books (the "Bond Register") for the registration and for the transfer of the Bonds as provided in this Ordinance to be kept at the principal corporate trust office of the Bond Registrar in the City of Chicago, Illinois, which is hereby constituted and appointed the registrar of the City for the Bonds. The City is authorized to prepare, and the Bond -11- Registrar or such other agent as the City may designate shall keep custody of, multiple Bond blanks executed by the City for use in the transfer and exchange of Bonds. Any Bond may be transferred or exchanged, but only in the manner, subject to the limitations, and upon payment of the charges as set forth in this Ordinance. Upon surrender for transfer or exchange of any Bond at the principal corporate trust office of the Bond Registrar, duly endorsed by or accompanied by a written instrument or instruments of transfer or exchange in form satisfactory to the Bond Registrar and duly executed by the registered owner or an attorney for such owner duly authorized in writing, the City shall execute and the Bond Registrar shall authenticate, date and deliver in the name of the transferee or transferees or, in the case of an exchange, the registered owner, a new fully registered Bond or Bonds of like tenor, of the same maturity, bearing the same interest rate, of authorized denominations, for a like aggregate principal amount. The Bond Registrar shall not be required to transfer or exchange any Bond during the period from the close of business on the Record Date for an interest payment to the opening of business on such interest payment date or during the period of 15 days preceding the giving of notice of redemption of Bonds or to transfer or exchange any Bond all or a portion of which has been called for redemption. The execution by the City of any fully registered Bond shall constitute full and due authorization of such Bond, and the Bond Registrar shall thereby be authorized to authenticate, date and deliver such Bond; provided, however, that the principal amount of Bonds of each maturity authenticated by the Bond Registrar shall not at any one time exceed the authorized principal amount of Bonds for such maturity less the amount of such Bonds which have been paid. -12- The person in whose name any Bond shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes, and payment of the principal of or interest on any Bond shall be made only to or upon the order of the registered owner thereof or his legal representative. All such payments shall be valid and effectual to satisfy and discharge the liability upon such Bond to the extent of the sum or sums so paid. No service charge shall be made for any transfer or exchange of Bonds, but the City or the Bond Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Bonds, except in the case of the issuance of a Bond or Bonds for the unredeemed portion of a Bond surrendered for redemption. Section 10. Fornz of Bond. The Bonds shall be in substantially the form hereinafter set forth;provided, however, that if the text of the Bonds is to be printed in its entirety on the front side of the Bonds, then the second paragraph on the front side and the legend "See Reverse Side for Additional Provisions" shall be omitted and the text of paragraphs set forth for the reverse side shall be inserted immediately after the first paragraph. -13- [Form of Bond - Front Side] REGISTERED REGISTERED No. $ UNITED STATES OF AMERICA STATE OF ILLINOIS THE COUNTY OF KENDALL UNITED CITY OF YORKVILLE GENERAL OBLIGATION LIBRARY BOND,SERIES 2006 See Reverse Side for Additional Provisions. Interest Maturity Dated Rate: _% Date: December 30,_ Date: August 1, 2006 CUSIP: Registered Owner: CEDE& Co. Principal Amount: KNow ALL PERSONS BY THESE PRESENTS that the United City of Yorkville, Kendall County, Illinois, a municipality and political subdivision of the State of Illinois (the "City"), hereby acknowledges itself to owe and for value received promises to pay to the Registered Owner identified above, or registered assigns as hereinafter provided, on the Maturity Date identified above (subject to right of prior redemption as hereinafter stated), the Principal Amount identified above and to pay interest (computed on the basis of a 360-day year of twelve 30-day months) on such Principal Amount from the later of the Dated Date of this Bond identified above or from the most recent interest payment date to which interest has been paid or duly provided for, at the Interest Rate per annum identified above, such interest to be payable on June 30 and December 30 of each year, commencing June 30, 2007, until said Principal Amount is paid or duly provided for. The principal of or redemption price on this Bond is payable in lawful money of the United States of America upon presentation hereof at the principal corporate trust office of The Bank of New York Trust Company, N.A., in the City of Chicago, Illinois, as paying agent -14- (the "Paying Agent"). Payment of interest shall be made to the Registered Owner hereof as shown on the registration books of the City maintained by The Bank of New York Trust Company, N.A., in the City of Chicago, Illinois, as bond registrar (the "Bond Registrar"), at the close of business on the applicable Record Date (the "Record Date"). The Record Date shall be the 15th day of the month of any regular or other interest payment date occurring on the 30th day of any month and 15 days preceding any interest payment date occasioned by the redemption of Bonds on other than the 30th day of a month. Interest shall be paid by check or draft of the Paying Agent, payable upon presentation in lawful money of the United States of America, mailed to the address of such Registered Owner as it appears on such registration books or at such other address furnished in writing by such Registered Owner to the Bond Registrar, or as otherwise agreed by the City and Cede&Co., as nominee, or successor, for so long as this Bond is held by The Depository Trust Company, New York,New York, the depository, or nominee, in book-entry only form as provided for same. Reference is hereby made to the further provisions of this Bond set forth on the reverse hereof, and such further provisions shall for all purposes have the same effect as if set forth at this place. It is hereby certified and recited that all conditions, acts and things required by the Constitution and Laws of the State of Illinois to exist or to be done precedent to and in the issuance of this Bond, including the authorizing Act, have existed and have been properly done, happened and been performed in regular and due form and time as required by law; that the indebtedness of the City, represented by the Bonds, and including all other indebtedness of the City, howsoever evidenced or incurred, does not exceed any constitutional or statutory or other lawful limitation; and that provision has been made for the collection of a direct annual tax, in -15- addition to all other taxes, on all of the taxable property in the City sufficient to pay the interest hereon as the same falls due and also to pay and discharge the principal hereof at maturity. This Bond shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed by the Bond Registrar. IN WITNESS WHEREOF the United City of Yorkville, Kendall County, Illinois, by its City Council, has caused this Bond to be executed by the manual or duly authorized facsimile signature of its Mayor and attested by the manual or duly authorized facsimile signature of its City Clerk and its corporate seal or a facsimile thereof to be impressed or reproduced hereon, all as appearing hereon and as of the Dated Date identified above. Mayor,United City of Yorkville Kendall County,Illinois ATTEST: City Clerk,United City of Yorkville Kendall County, Illinois [SEAL] -16- Date of Authentication: , CERTIFICATE OF AUTHENTICATION This Bond is one of the Bonds described in the within-mentioned Ordinance and is one of the General Obligation Library Bonds, Series 2006, having a Dated Date of August 1, 2006, of the United City of Yorkville, Kendall County, Illinois. THE BANK OF NEW YORK TRUST COMPANY,N.A., as Bond Registrar By Authorized Officer Bond Registrar and Paying Agent: The Bank of New York Trust Company, N.A. Chicago, Illinois -17- [Form of Bond-Reverse Side] This bond is one of a series of bonds (the "Bonds") in the aggregate principal amount of $1,500,000 issued by the City for the purpose of paying the costs of the Project and of paying expenses incidental thereto, all as described and defined in the ordinance authorizing the Bonds (the "Ordinance"), pursuant to and in all respects in compliance with the applicable provisions of the Illinois Municipal Code and the Local Government Debt Reform Act, as supplemented and amended(such code and act collectively being the "Act"), and is authorized by a majority of all votes cast on the proposition at an election duly called and held for that purpose in the City, and with the Ordinance, which has been duly passed by the City Council of the City and approved by the Mayor. Subject to the provisions relating to this Bond remaining in book-entry only form, this Bond may be transferred or exchanged, but only in the manner, subject to the limitations, and upon payment of the charges as set forth in the Ordinance. Upon surrender for transfer or exchange of this Bond at the principal corporate trust office of the Bond Registrar in the City of Chicago, Illinois, duly endorsed by or accompanied by a written instrument or instruments of transfer or exchange in form satisfactory to the Bond Registrar and duly executed by the Registered Owner or an attorney for such owner duly authorized in writing, the City shall execute and the Bond Registrar shall authenticate, date and deliver in the name of the transferee or transferees or, in the case of an exchange, the Registered Owner, a new fully registered Bond or Bonds of like tenor, of the same maturity, bearing the same interest rate, of authorized denominations,for a like aggregate principal amount. The Bond Registrar shall not be required to transfer or exchange any Bond during the period from the close of business on the Record Date for an interest payment to the opening of business on such interest payment date or during the period of 15 days preceding the giving of -18- notice of redemption of Bonds or to transfer or exchange any Bond all or a portion of which has been called for redemption. The Bonds may be subject to optional or mandatory redemption, and the holder of this Bond shall refer to the provisions of the Ordinance for the terms and provision for notice of redemption. The City, the Bond Registrar and the Paying Agent may deem and treat the Registered Owner hereof as the absolute owner hereof for the purpose of receiving payment of or on account of principal hereof and interest due hereon and for all other purposes, and the City, the Bond Registrar and the Paying Agent shall not be affected by any notice to the contrary. ASSIGNMENT FOR VALUE RECEIVED, the undersigned sells, assigns and transfers unto Here insert Social Security Number, Employer Identification Number or other Identifying Number (Name and Address of Assignee) the within Bond and does hereby irrevocably constitute and appoint as attorney to transfer the said Bond on the books kept for registration thereof with full power of substitution in the premises. Dated: Signature guaranteed: NOTICE: The signature to this transfer and assignment must correspond with the name of the Registered Owner as it appears upon the face of the within Bond in every particular, without alteration or enlargement or any change whatever. -19- Section 11. Tax Levy. For the purpose of providing funds required to pay the interest on the Bonds promptly when and as the same falls due, and to pay and discharge the principal thereof at maturity there is hereby levied upon all of the taxable property within the City, in the years for which any of the Bonds are outstanding, a direct annual tax sufficient for that purpose; and there is hereby levied on all of the taxable property in the City, in addition to all other taxes, the following direct annual taxes (the Pledged Taxes as hereinabove defined): FOR THE YEAR A TAX SUFFICIENT TO PRODUCE THE DOLLAR SUM OF: 2006 $100,810.28 for interest up to and including December 30, 2007 2007 $121,300.00 for interest and principal 2008 $218,925.00 for interest and principal 2009 $211,800.00 for interest and principal 2010 $229,675.00 for interest and principal 2011 $196,362.50 for interest and principal 2012 $139,237.50 for interest and principal 2013 $ 84,487.50 for interest and principal 2014 $ 82,112.50 for interest and principal 2015 $ 79,737.50 for interest and principal 2016 $ 77,362.50 for interest and principal 2017 $ 74,987.50 for interest and principal 2018 $ 72,612.50 for interest and principal 2019 $ 95,237.50 for interest and principal 2020 $ 91,675.00 for interest and principal 2021 $ 88,112.50 for interest and principal 2022 $109,550.00 for interest and principal 2023 $104,800.00 for interest and principal The Pledged Taxes and other moneys (excepting proceeds of the Bonds) on deposit (collectively, the "Bond Moneys") in the Bond Fund shall be applied to the payment of interest when due and principal when due at maturity. Interest or principal coming due at any time when there are insufficient funds on hand from the Pledged Taxes to pay the same shall be paid promptly when due from current funds on hand in advance of the collection of the Pledged Taxes herein levied; and when the Pledged -20- Taxes shall have been collected, reimbursement shall be made to said funds in the amount so advanced. The City covenants and agrees with the purchasers and registered owners of the Bonds that so long as any of the Bonds remain outstanding, the City will take no action or fail to take any action which in any way would adversely affect the ability of the City to levy and collect the foregoing tax levy. The City and its officers will comply with all present and future applicable laws in order to assure that the Pledged Taxes may be levied, extended and collected as provided herein and deposited into the Bond Fund. Whenever other funds from any lawful source are made available for the purpose of paying any principal of or interest on the Bonds so as to enable the abatement of the taxes levied herein for the payment of same, the City Council shall, by proper proceedings, direct the deposit of such funds into the Bond Fund and further shall direct the abatement of the taxes by the amount so deposited. A certified copy or other notification of any such proceedings abating taxes may then be filed with the County Clerk in a timely manner to effect such abatement. Section 12. Filing with County Clerk. Promptly, as soon as this Ordinance becomes effective, a copy hereof, certified by the City Clerk of the City, shall be filed with the County Clerk; and the County Clerk shall in and for each of the years 2006 to 2023, inclusive, ascertain the rate percent required to produce the aggregate tax hereinbefore provided to be levied in each of said years; and the County Clerk shall extend the same for collection on the tax books in connection with other taxes levied in said years in and by the City for general corporate purposes of the City; and in said years such annual tax shall be levied and collected by and for and on behalf of the City in like manner as taxes for general corporate purposes for said years are levied and collected, and in addition to and in excess of all other taxes. Section 13. Sale of Bonds. The Bonds hereby authorized shall be executed as in this Ordinance provided as soon after the passage hereof as may be, and thereupon be deposited with -21- the City Treasurer, and be by said Treasurer delivered to Wachovia Securities, LLC, Richmond, Virginia, the purchaser thereof (the "Purchaser"), upon receipt of the purchase price therefor, the same being $1,525,002.00, plus accrued interest, if any, to date of delivery; the contract for the sale of the Bonds heretofore entered into (the "Purchase Contract") is in all respects ratified, approved and confirmed, it being hereby found and determined that the Bonds have been sold at such price and bear interest at such rates that neither the true interest cost (yield) nor the net interest rate received upon such sale exceed the maximum rate otherwise authorized by Illinois law and that the Purchase Contract is in the best interests of the City and that no person holding any office of the City, either by election or appointment, is in any manner financially interested directly in his own name or indirectly in the name of any other person, association, trust or corporation, in the Purchase Contract. The use by the Purchaser of any Preliminary Official Statement and any final Official Statement relating to the Bonds is hereby ratified, approved and authorized; the execution and delivery of said final Official Statement is hereby authorized; and the officers of the City Council are hereby authorized to take any action as may be required on the part of the City to consummate the transactions contemplated by the Purchase Contract, this Ordinance, said Preliminary Official Statement, said final Official Statement and the Bonds. Section 14. Creation of Funds and Appropriations. A. There is hereby created the "General Obligation Library Bonds, Series 2006, Bond Fund" (the "Bond Fund"), which shall be the fund for the payment of principal of and interest on the Bonds. B. The Pledged Taxes shall either be deposited into the Bond Fund and used solely and only for paying the principal of and interest on the Bonds or be used to reimburse a fund or account from which advances to the Bond Fund may have been made to pay principal of or _22_ interest on the Bonds prior to receipt of Pledged Taxes. Interest income or investment profit earned in the Bond Fund shall be retained in the Bond Fund for payment of the principal of or interest on the Bonds on the interest payment date next after such interest or profit is received or, to the extent lawful and as determined by the City Council, transferred to such other fund as may be determined. The City hereby pledges, as equal and ratable security for the Bonds, all present and future proceeds of the Pledged Taxes for the sole benefit of the registered owners of the Bonds, subject to the reserved right of the City Council to transfer certain interest income or investment profit earned in the Bond Fund to other funds of the City, as described in the preceding sentence. C. Accrued interest, if any, on the Bonds shall be set aside in the Bond Fund to pay a portion of the first interest on the Bonds. D. The remaining principal proceeds of the Bonds shall be set aside in a separate fund, hereby created, and designated as the "Series 2006 Project Fund" (the "Project Fend"), hereby created as the fund to provide for the receipt and disbursement of proceeds of the Bonds for the Project and to pay costs of issuance of the Bonds. Alternatively, the Treasurer may allocate such remaining proceeds to one or more related project funds of the City already in existence; provided, however, that this shall not relieve the Treasurer of the duty to account for the proceeds as herein provided. (Any such one or more funds shall also be referred to hereinafter, collectively, as the "Project Fund.") E. The City and the City Council hereby covenant that all of the proceeds of the Bonds shall be used in strict compliance with the authorization of the voters of the City at the Election and with all of the requirements of the Illinois Municipal Code, as amended. Section 15. General Arbitrage Covenants. The City hereby covenants that it will not take any action, omit to take any action or permit the taking or omission of any action within its -23- control (including, without limitation, making or permitting any use of the proceeds of the Bonds) if taking, permitting or omitting to take such action would cause any of the Bonds to be an arbitrage bond or a private activity bond within the meaning of the Code or would otherwise cause the interest on the Bonds to be included in the gross income of the recipients thereof for federal income tax purposes. The City acknowledges that, in the event of an examination by the Internal Revenue Service of the exemption from Federal income taxation for interest paid on the Bonds, under present rules, the City is treated as the "taxpayer" in such examination and agrees that it will respond in a commercially reasonable manner to any inquiries from the Internal Revenue Service in connection with such an examination. The City also agrees and covenants with the purchasers and holders of the Bonds from time to time outstanding that, to the extent possible under Illinois law, it will comply with whatever federal tax law is adopted in the future which applies to the Bonds and affects the tax- exempt status of the Bonds. The City Council hereby authorizes the officials of the City responsible for issuing the Bonds, the same being the Mayor, Clerk and Treasurer of the City, to make such further covenants and certifications as may be necessary to assure that the use thereof will not cause the Bonds to be arbitrage bonds and to assure that the interest on the Bonds will be exempt from federal income taxation. In connection therewith, the City and the City Council further agree: (a) through their officers, to make such further specific covenants, representations as shall be truthful, and assurances as may be necessary or advisable; (b) to consult with counsel approving the Bonds and to comply with such advice as may be given; (c) to pay to the United States, as necessary, such sums of money representing required rebates of excess arbitrage profits relating to the Bonds; (d) to file such forms, statements, and supporting documents as may be required and in a timely manner; and(e) if deemed necessary or advisable by their officers, to employ and -24- pay fiscal agents, financial advisors, attorneys, and other persons to assist the City in such compliance. Section 16. Registered Form. The City recognizes that Section 149 of the Code requires the Bonds to be issued and to remain in fully registered form in order to be and remain Tax-exempt. In this connection, the City agrees that it will not take any action to permit the Bonds to be issued in,or converted into,bearer or coupon form. Section 17. Rights and Duties of Bond Registrar and Paying Agent. If requested by the Bond Registrar or the Paying Agent, or both, any officer of the City is authorized to execute standard forms of agreements between the City and the Bond Registrar or Paying Agent with respect to the obligations and duties of the Bond Registrar or Paying Agent hereunder. In addition to the terms of such agreements and subject to modification thereby, the Bond Registrar and Paying Agent by acceptance of duties hereunder agree: (a) to act as bond registrar, paying agent, authenticating agent, and transfer agent as provided herein; (b) as to the Bond Registrar,to maintain a list of Bondholders as set forth herein and to furnish such list to the City upon request, but otherwise to keep such list confidential to the extent permitted by law; (c) as to the Bond Registrar, to give notice of redemption of Bonds as provided herein; (d) as to the Bond Registrar, to cancel and/or destroy Bonds which have been paid at maturity or upon redemption or submitted for exchange or transfer; (e) as to the Bond Registrar, to furnish the City at least annually a certificate with respect to Bonds cancelled and/or destroyed; and -25- (f) to furnish the City at least annually an audit confirmation of Bonds paid, Bonds outstanding and payments made with respect to interest on the Bonds. The City Clerk of the City is hereby directed to file a certified copy of this Ordinance with the Bond Registrar and the Paying Agent. Section 18. Continuing Disclosure Undertaking. The Mayor or the Treasurer of the City is hereby authorized, empowered and directed to execute and deliver the Continuing Disclosure Undertaking (the "Continuing Disclosure Undertaking") in substantially the same form as now before the City Council, or with such changes therein as the individual executing the Continuing Disclosure Undertaking on behalf of the City shall approve, the official's execution thereof to constitute conclusive evidence of the approval of such changes. When the Continuing Disclosure Undertaking is executed and delivered on behalf of the City as herein provided, the Continuing Disclosure Undertaking will be binding on the City and the officers, employees and agents of the City, and the officers, employees and agents of the City are hereby authorized, empowered and directed to do all such acts and things and to execute all such documents as may be necessary to carry out and comply with the provisions of the Continuing Disclosure Undertaking as executed. Notwithstanding any other provision of this Ordinance, the sole remedies for failure to comply with the Continuing Disclosure Undertaking shall be the ability of the beneficial owner of any Bond to seek mandamus or specific performance by court order, to cause the City to comply with its obligations under the Continuing Disclosure Undertaking. Section 19. Municipal Bond Insurance. In the event the payment of principal of and interest on the Bonds is insured pursuant to a municipal bond insurance policy (a "Municipal Bond Insurance Policy") issued by a bond insurer (a "Bond Insurer"), and as long as such Municipal Bond Insurance Policy shall be in full force and effect, the City and the Bond Registrar agree to comply with such usual and reasonable provisions regarding presentment and -26- payment of the Bonds, subrogation of the rights of the Bondholders to the Bond Insurer when holding Bonds, amendment hereof, or other terms, as approved by the City Council on advice of counsel, his or her approval to constitute full and complete acceptance by the City of such terms and provisions under authority of this section. Section 20. Severability. If any section, paragraph, clause or provision of this Ordinance shall be held invalid, the invalidity of such section, paragraph, clause or provision shall not affect any of the other provisions of this Ordinance. _27_ Section 21. Superseder and Effective Date. All ordinances, resolutions and orders, or parts thereof, in conflict herewith, are to the extent of such conflict hereby superseded; and this Ordinance shall be in full force and effect immediately upon its passage and approval. ADOPTED by the City Council on the 11th day of July, 2006, pursuant to a roll call vote as follows: JOSEPH BESCO JASON LESLIE JIM BOCK MARTY MUNNS VALERIE BURD ROSE SPEARS PAUL JAMES DEAN WOLFER APPROVED by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, the 11th day of July,2006. MAYOR PASsED by the City Council of the United City of Yorkville, Kendall County, Illinois, the 11th day of July,2006. Attest: CITY CLERK _28_ STATE OF ILLINOIS ) ) SS COUNTY OF KENDALL ) CERTIFICATION OF MINUTES AND ORDINANCE I, the undersigned, do hereby certify that I am the duly qualified and acting City Clerk of the United City of Yorkville, Kendall County, Illinois (the "City"),and as such official I am the keeper of the official journal of proceedings, books, records, minutes and files of the City and of the City Council (the "City Council")thereof. I do further certify that the foregoing is a full, true and complete transcript of that portion of the minutes of the meeting of the City Council held on the 11th day of July, 2006 insofar as the same relates to the adoption of an ordinance,entitled: AN ORDINANCE providing for the issuance of $1,500,000 General Obligation Library Bonds, Series 2006, of the United City of Yorkville,Kendall County, Illinois, and providing for the levy and collection of a direct annual tax sufficient for the payment of the principal of and interest on said bonds. a true, correct and complete copy of which said ordinance as adopted at said meeting appears in the foregoing transcript of the minutes of said meeting. I do further certify that the deliberations of the City Council on the adoption of said ordinance were taken openly; that the vote on the adoption of said ordinance was taken openly; that said meeting was held at a specified time and place convenient to the public; that notice of said meeting was duly given to all newspapers, radio or television stations and other news media requesting such notice; that an agenda for said meeting was posted at the location where said meeting was held and at the principal office of the City Council at least 96 hours in advance of the holding of said meeting; that said agenda contained a separate specific item concerning the proposed adoption of said ordinance; a true, correct and complete copy of said agenda as so posted being attached to this certificate as Exhibit A; that said meeting was called and held in strict compliance with the provisions of the Open Meetings Act of the State of Illinois, as amended, and the Illinois Municipal Code, as amended, and that the City Council has complied with all of the provisions of said Act and said Code and with all of the procedural rules of the City Council in the adoption of said ordinance. IN WITNESS WHEREOF I hereunto affix my official signature and the seal of the City this 11 th day of July,2006. City Clerk [SEAL] [Attach Exhibit A] STATE OF ILLINOIS ) SS COUNTY OF KENDALL ) CERTIFICATE OF FILING I, the undersigned, do hereby certify that I am the duly qualified and acting County Clerk of The County of Kendall, Illinois, and as such officer I do hereby certify that on the_day of July, 2006 there was filed in my office a properly certified copy of Ordinance Number , passed by the City Council of the United City of Yorkville, Kendall County, Illinois, on the 11th day of July, 2006 and entitled: AN ORDINANCE providing for the issuance of$1,500,000 General Obligation Library Bonds, Series 2006, of the United City of Yorkville, Kendall County, Illinois, and providing for the levy and collection of a direct annual tax sufficient for the payment of the principal of and interest on said bonds. and that the same has been deposited in, and all as appears from, the official files and records of my office. IN WITNESS WHEREOF I have hereunto affixed my official signature and the seal of The County of Kendall, Illinois,this_day of July, 2006. County Clerk of The County of Kendall, Illinois [SEAL) All ItJ 1 C/T� °% United City of Yorkville Memorandum EST. 1 1836 800 Game Farm Road -� Yorkville, Illinois, 60560 Telephone: 630-553-4350 Xetl9�Cawb v2 Fax: 630-553-7575 cCE `�� Date: July 20, 2006 To: City Council From: Susan Mika - Finance Director Subject: Community Relations Intern This is to inform Council Members that the proposal for a Community Relations Intern was not budgeted for this fiscal year 2006/2007. If you have any further questions regarding this matter, please feel free to contact me.