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Ordinance 2023-17 UNITED CITY OF YORKVILLE KENDALL COUNTY, ILLINOIS ORDINANCE NO. 2023-17 ORDINANCE APPROVING A MEMORANDUM OF UNDERSTANDING BETWEEN THE UNITED CITY OF YORKVILLE, KENDALL COUNTY, ILLINOIS AND YORKVILLE NEXUS, LLC, RELATING TO ENGINEERING SERVICES FOR INFRASTRUCTURE PROJECTS Passed by the City Council of the United City of Yorkville, Kendall County, Illinois This 30"day of May, 2023 Published in pamphlet form by the authority of the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois on June 6, 2023. Ordinance No. 2023-17 AN ORDINANCE APPROVING A MEMORANDUM OF UNDERSTANDING BETWEEN THE UNITED CITY OF YORKVILLE, KENDALL COUNTY, ILLINOIS AND YORKVILLE NEXUS,LLC,RELATING TO ENGINEERING SERVICES FOR INFRASTRUCTURE PROJECTS WHEREAS, the United City of Yorkville, Kendall County, Illinois (the "City") is a duly organized and validly existing municipality of the State of Illinois pursuant to the 1970 Illinois Constitution and the Illinois Municipal Code, as from time to time amended (the "Municipal Code") (65 ILCS 5/65-1-1-2, etseq.); and WHEREAS, the City has received a concept plan from Yorkville Nexus, LLC an Illinois limited liability company ("Yorkville Nexus") for an industrial development which covers an area consisting of approximately 279 acres at the northeast corner of Eldamain and Faxon Road (the "Development Site"); and, WHEREAS,the Development Site lacks the necessary infrastructure required to service any such development and Yorkville Nexus has agreed to pay all costs to be incurred by City Engineers in connection with the design of and the potential costs of any water and sewer service to be extended to the Development Site all as set forth in the Memorandum of Understanding ("MOU") attached hereto; and, WHEREAS, the City is prepared to request the City Engineers to proceed with the preparation of the engineering plans and the estimated costs to provide water and sewer service to the Development Site pursuant to the terms and conditions as set forth in the MOU. NOW,THEREFORE,BE IT ORDAINED by the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois, as follows: Section 1. All of the Preambles hereinabove set forth are incorporated herein as if restated. Ordinance No. 2023-17 Page 2 Section 2: That "The Memorandum of Understanding by and between the United City of Yorkville, Kendall County, Illinois and Yorkville Nexus, LLC" attached hereto and made a part hereof is hereby approved and the Mayor and City Clerk are hereby authorized to execute said Memorandum. Section 3. This Ordinance shall be in full force and effect after its passage, publication, and approval as provided by law. Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this 301" day of May, 2023. * V CLERK KEN KOCH AYE DAN TRANSIER NAY ARDEN JOE PLOCHER AYE CRAIG SOLING AYE CHRIS FUNKHOUSER AYE MATT MAREK AYE SEAVER TARULIS AYE RUSTY CORNEILS AYE Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this rJday of T� P, , 2023. Mayor Attest: 1A ity erk Ordinance No. 2023-17 Page 3 MEMORANDUM OF UNDERSTANDING BY AND BETWEEN THE UNITED CITY OF YORKVILLE, KENDALL COUNTY, ILLINOIS AND YORKVILLE NEXUS LLC THIS MEMORANDUM OF UNDERSTANDING (the "Memorandum"), is made and entered as of the 301"day of " a\J , 2023, by and between the United City of Yorkville, Kendall County, Illinois (the "City' and Yorkville Nexus LLC, an Illinois limited liability company ("Yorkville Nexus"). RECITALS: 1.1. The City is a duly organized and validly existing non-home rule municipality created in accordance with the Constitution of the State of Illinois of 1970 and the laws of the State. 1.2 Yorkville Nexus operates an investment company which manages and invests in a company-owned portfolio in different businesses, including the development of industrial and commercial complexes. 1.3 Yorkville Nexus has submitted to the City a concept plan, attached hereto as Exhibit A (the "Concept Plan"), for an area consisting of approximately 279 acres at the northeast corner of Eldamain and Faxon Road (the "Development Site") for the development of six (6) industrial buildings to be constructed in three (3)phases (the "Project"). 1.4 Yorkville Nexus has acknowledged that the Development Site lacks the necessary infrastructure to service the proposed development and shall require a substantial investment to provide water and sanitary sewer services to the Development Site (collectively, the "Water/Sewer Infrastructure Project"). 1.5 On August 5, 2022, Yorkville Nexus submitted an application for Economic Incentive/Development Agreement for the Concept Plan and made all required deposits for legal and engineering review. Yorkville Nexus has also informed the City that it is prepared to be responsible for all costs to be incurred by the City to construct the Water/Sewer Infrastructure Project to service the Development Site, including surveying, engineering, legal, and other professional costs related to obtaining the necessary easements to provide water and sanitary sewer service to Development Site, as depicted on the attached Exhibit A. The City is prepared to proceed with obtaining the necessary easements to provide water and sanitary sewer service to the Development Site (collectively, the "Water/Sewer Easements") pursuant to the terms and conditions as hereinafter provided. ARTICLE II OBLIGATIONS OF THE CITY AND YORKVILLE NEXUS 2.1 The City has identified the proposed routes required for each component of the Water/Sewer Infrastructure Project to extend such services to the Development Site and has requested the City Engineers to provide such engineering design as are required to ascertain the following: A. The specific location and estimated cost of the installation of a sixteen inch (16") diameter water main to be extended from an area generally near Comeils Road and Caledonia Drive, then west along Corneils Road to the Development Site and then looped back to an area generally near Faxon Road and High Ridge Road (the "Water Main Extension"). B. The specific location and estimated cost of the extension of a sanitary sewer from the southeast corner of the BrightFarms development along Corneils Road to the North 50 Acres of the proposed development(the "Corneils Road Sanitary Sewer Extension"). C. The specific location and estimated cost for the extension of a sanitary sewer from the existing thirty-six inch (36") interceptor sewer to the south parcel of the proposed development along the BNSF Railroad (the "South Sanitary Sewer Extension"). 2.2 The City Engineers have provided design engineering proposals for the Water/Sewer Infrastructure Project. The City is prepared to engage various professionals to survey and document the Water/Sewer Easements. 2.3 Yorkville Nexus has agreed to pay, subject to Yorkville Nexus's sole approval, all reasonable charges incurred by the City in connection with the obtaining the Water/Sewer Easements, including but not limited to (i) survey costs, (ii) legal fees, and (iii) consideration paid to property owners for the Water/Sewer Easements. The City shall submit any estimates received for the above-referenced costs to Yorkville Nexus for its approval prior to authorizing said work. 2.4 The City shall submit all invoices related to obtaining the Water/Sewer Easements to Yorkville Nexus for review and approval, which shall not be unreasonably withheld. Once approved, Yorkville Nexus shall reimburse the City for all such invoices within thirty (30) days. 2.5 Yorkville Nexus may, at any time by written order to the City, order City to stop work, in whole or in part, for a period of up to ninety (90) days. Upon receipt of such stop-work order, the City shall comply with the terms of such order and shall take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the order during the period of work stoppage. Within said ninety (90) day period, Yorkville Nexus shall either cancel the stop- work order or terminate this Agreement. Notwithstanding the above, Yorkville Nexus shall promptly pay all charges incurred prior to the issuance of the stop work notice pursuant to this Memorandum. 2.6 The City shall provide the Water/Sewer Easements required to construct the Water/Sewer Infrastructure Project, and shall utilize all methods at its disposal, including condemnation, to obtain the Water/Sewer Easements. ARTICLE III IN GENERAL 3.1 The term of this Memorandum shall commence upon the date first written above and shall terminate upon the completion of the Water/Sewer Infrastructure Project and payment by Yorkville Nexus in full of all costs incurred by the City in connection with the same by Yorkville Nexus. 3.2 In the event of a breach of this Memorandum by either party that is not cured within thirty (30) days after its receipt of written notice of such breach, such breaching party shall be deemed to be in default of this Memorandum. In such event, the defaulting party hereby agrees to pay and reimburse the non-defaulting parties for all costs and expenses incurred by them in connection with an action taken to enforce this Memorandum, including reasonable attorney's fees and court costs. 3.3 This Memorandum shall be binding upon and inure to the benefit of the successor of either party hereto and any successor governmental legal entity (governmental or otherwise) that may assume and perform the duties of either party hereto. Notwithstanding the foregoing, this Memorandum shall not be assigned by a party hereto without the prior written consent of the other parties to this Memorandum, for which approval shall not be unreasonably withheld or delayed. 3.4 The invalidity of any provisions of this Memorandum shall not impair the validity of any other provisions. If any provision of this Memorandum is determined by a court of competent jurisdiction to be unenforceable that provision shall be deemed severed from this Agreement or as otherwise modified by the court. 3.5 This Memorandum, along with any Development Agreement and Recapture Agreement entered into between the parties, sets forth the entire understanding of the parties as pertaining to the Engineering Agreement and may only be amended, modified or terminated by a written instrument signed by the parties. 3.6 This Memorandum shall be interpreted and construed in accordance with the laws of the State of Illinois. 3.7 Any notice, request, demand, waiver, consent, approval or other communication that is required or permitted under the terms of this Agreement (a "Notice") shall be in writing and shall be delivered by personal delivery, via overnight carrier or e-mail transmission or via registered or certified mail, return receipt requested, first class postage prepaid. If Notice is delivered by personal delivery or via overnight carrier, Notice shall be deemed given on the date that actual delivery is made. If Notice is delivered via e-mail transmission, Notice shall be deemed given on the date that the Notice is transmitted and written confirmation of such transmission is obtained. If Notice is delivered via mail, Notice shall be deemed given on the earlier of(a) the actual day of delivery or (b) the third day after the date of mailing. All Notices shall be addressed to the intended recipient as set forth below: To the City: United City of Yorkville 651 Prairie Pointe Dr Yorkville, Illinois 60560 Attention: City Administrator With a Copy to: Kathleen Field Orr 2024 Hickory Road Suite 205 Homewood, Illinois 60430 To Yorkville Nexus: Yorkville Nexus LLC 145 South Wells Street Suite 1800 Chicago, Illinois 60606 Attention: Matt Gilbert Email: matt(it greendoorcapital.com With a copy to: Pedersen & Houpt, PC 161 N. Clark Street, Suite 2700 Chicago, Illinois 60601 Attention: Michael P. Sullivan Email: msullivan[u,pedersenhoupt.com 3.8 This Memorandum maybe executed in multiple counterparts, each of which shall be deemed to be and shall constitute one and the same instrument. [SIGNATURE PAGE TO FOLLOW] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers on the Effective Date. United City of Yorkville, Kendall County, Illinois, a mum al corporation By: Mayor Attest: ,City e Yorkville Nexus LLC, an Illinois limited liability company By: GDC Yorkville LLC, an Illinois limited liability company, its sole member By: Yorkville Nexus Capital Investments, LLC, an Illinois limited liability company, its manager / � By: 14Q-!/l Matthew B. Gilbert, Manager