In order to guarantee the completion of public improvements, including parks and common areas, and the performance of all other obligations required by this chapter, no final plat of subdivision or final development plan shall be approved or recorded, and no installation or construction of such improvements shall commence until the requirements of section 12-4-5-4 of this title have been satisfactorily provided. The developer or subdivider shall file an irrevocable letter of credit issued by any financial institution approved by the Village Attorney and Finance Director. The irrevocable letter of credit shall be in substantially and substantively the same written form as the sample irrevocable letter of credit provided as follows:
STATE OF ILLINOIS )
): ss.
COUNTY OF KANE )
WHEREAS, the Statutes of the State of Illinois grant to a municipal corporation the right to require that a developer constructing certain improvements with the community guarantee the construction of such improvements by a Completion Bond or other security acceptable to the community; and
WHEREAS, desires to construct a (residential) (commercial) (industrial) development within the Village of Sugar Grove, Illinois and that said municipality is willing to accept an undertaking from a financial institution in the nature of an irrevocable commitment in lieu of such Completion Bond,
NOW, THEREFORE, are the following representations made by the owner and/or developer to the Village of Sugar Grove, as follows:
1. That is the owner and/or developer of the property legally described in Clause 2 of this undertaking, and shall hereinafter be referred to as "Owner"; and, that the Village of Sugar Grove shall hereinafter be referred to as "Village".
2. That the Owner is the legal title holder or developer of the following described property:
(insert legal description)
3. That the Owner shall be required to install at his own cost and expense all necessary materials, labor and equipment to complete the public and private improvements required by the ordinances of the Village, including but not limited to the installation of the following: streets, sidewalks, street lights, street signs, sanitary sewers, storm sewers, detention and retention basins and storm drainage systems, water lines, common landscaping in common areas and grading, restoration, professional fees (legal, engineering, planning and other related fees) required to be expended by the Village both before and during construction of said development and collection of the amount specified in the approved Letter of Credit in the event of a default under said Letter of Credit, and a sufficient amount to cover a one year warranty in the event an adequate substitute security is not submitted for said warranty period (hereinafter "Public Improvements"). All improvements shall be in accordance with the standards, specifications and requirements of the Village. In order to guarantee that such facilities shall be installed, the Owner shall submit to the Village Engineer such specifications and estimated engineering costs as shall be required to meet with his approval. In aiding the Village Engineer in determining the amount of reasonably anticipated costs for the construction of such improvements, the Owner may submit to the engineer signed contracts for the construction of such improvements. The Village Engineer, upon determining that the design of the required improvements are in accordance with good engineering practices, shall estimate and certify an amount which shall represent one hundred twenty percent (120%) of the reasonably estimated cost of completing those improvements and for which amount the Municipality requires the posting of a completion guarantee.
4. That the Owner shall furnish qualified field supervision of the installation of all public improvements in the person of a professional engineer registered and licensed in the State of Illinois.
5. That the Owner shall not be entitled to the recording of the final plat or the issuance of Building Permits until and unless said Owner shall submit to the Village an irrevocable financial commitment from a bank, savings and loan or mortgage company approved by the Village in the amount certified by the Village Engineer.
6. That the written irrevocable financial commitment shall be furnished to the Village from a banking or lending institution in the form marked "Appendix A" and appended to this Agreement.
7. That the Owner guarantees the workmanship of the public improvements to be installed upon the site for a period of one year after their donation to the Village. Upon final completion of the public improvements the Owner shall execute a Bill of Sale for those items which are personal property and those items which are intended to be accepted by the Village for maintenance. For a period of one year after the granting of the Bill of Sale in the case of personal property and the acceptance for maintenance of any other public improvements, all necessary repairs to such facilities shall be the responsibility of the Owner.
IN WITNESS WHEREOF, has hereunto set his hand and seal this day of , 20 .
Owner
Owner
Approved by the Village of Sugar Grove this day of , 20 .
By:
Village of Sugar Grove
Appendix A
(Letterhead of a Bank, Savings and Loan or Mortgage House)
, 20
Village President and Board of Trustees
Village of Sugar Grove
10 S. Municipal Drive
Sugar Grove, IL 60554
Re: Subdivision Name:
Letter of Credit No.:
For Account of:
Amount:
Date:
Gentlemen:
The undersigned (name of financial institution) by (name and title), its duly authorized agent, hereby establishes and issues this Irrevocable Letter of Credit in favor of the Village of Sugar Grove in the amount of $ , which represents one hundred twenty percent (120%) of the cost of the improvements described herein. Such credit is available to be drawn upon by said Village upon presentation to this Bank of your demand for payment accompanied by a copy of this Letter of Credit.
This letter of credit is issued for the purpose of securing and paying for the installation of the following public improvements in the aforesaid subdivision:
DIVISION "A" - SANITARY SEWERS | (engineer's estimate = ) |
DIVISION "B" - WATER MAIN | (engineer's estimate = ) |
DIVISION "C" - STORM SEWERS | (engineer's estimate = ) |
DIVISION "D" STREETS | (engineer's estimate = ) |
DIVISION "E" - DETENTION BASIN | (engineer's estimate = ) |
DIVISION "F" - MISC IMPROVEMENTS | (engineer's estimate = ) |
DIVISION "G" - PROFESSIONAL FEES | (engineer's estimate = ) |
DIVISION "H" - ONE YEAR MAINTENANCE SECURITY | (engineer's estimate = ) |
TOTAL ENGINEER'S ESTIMATE =
The engineer's estimate is for purposes of determining the total amount of the Letter of Credit, but in no way limits the demands of the Village under a default. Any and all funds provided for under the Letter of Credit can be used for any and all items covered by the Letter of Credit. The costs of the foregoing improvements are detailed in the attached Engineer's Cost Estimate.
The development is legally described as follows:
(Insert legal description)
Said public improvements shall be constructed by (subdivider), our customer, in accordance with the plans, specifications, completion schedules and cost estimates prepared by (subdivider's engineer).
The undersigned agrees that this Irrevocable Letter of Credit shall remain in full force and effect and pertain to any and all amendments or modifications which may be made from time to time to the plans, specifications and cost estimates for said modifications.
This Irrevocable Letter of Credit shall expire on , 20 , provided, however, the undersigned shall notify the Village Clerk, by certified or registered mail, return receipt requested, at least ninety (90) days prior to said expiration date, that said Letter of Credit is about to expire. In no event shall this Irrevocable Letter of Credit or the obligations contained herein expire except upon said prior written notice, it being expressly agreed by the undersigned that the above expiration date shall be extended as required to comply with this notice provision.
This Irrevocable Letter of Credit shall remain in effect until (expiration date), 20 , without regard to any default in payment of money owed to the Issuer by our customer and without regard to other claims which the Issuer may have against our customer, and in no event shall terminate without notice as specified above.
This Letter of Credit may be renewed by the Issuer or our customer prior to the above expiration date by submitting a new Letter of Credit of the same form and substance as this Letter of Credit to the Village Clerk in an amount equal to 120% of the estimated cost to complete and pay for the above described improvements.
It is agreed that the following shall be considered a default by our customer and shall entitle the Village to make demand on this Letter of Credit:
(1) That said Letter of Credit will expire within thirty (30) days and has not been renewed; or
(2) That the aforesaid improvements have not been completed by the subdivider at least thirty (30) days prior to the aforesaid expiration date; or
(3) That the owner and/or subdivider has failed to complete or carry on the work of the installation and construction of the required improvements, in accordance with the schedule or at a faster pace if the installation of the private improvements shall be completed before public improvements to service them are available; or
(4) That the Village of Sugar Grove has determined that the owner and/or subdivider has demonstrated that they will be unable to complete the improvement; or
(5) That the Village of Sugar Grove has determined that the public improvements or other improvements covered by this commitment have been or are likely to be the subject of liens or other claims by contractors, subcontractors or third parties; or
(6) That the Village of Sugar Grove has determined that the owner and/or subdivider has failed to post the required guarantees for the required maintenance periods for the public improvements; or
(7) That if more funds are disbursed at this time on order of the owner and/or subdivider insufficient funds will remain irrevocably committed to guarantee the completion of all improvements, and such certification indicates that the owner and/or subdivider has been notified that the municipality finds that a breach of the owner's and/or subdivider's obligations has occurred and has not been cured within a period of thirty (30) days.
The Issuer's obligation to the Village is based solely on this Irrevocable Letter of Credit engagement between this financial institution and the Village and is not subject to instructions from our customer.
It is recognized that the Village has directed our customer to proceed with the construction of public improvements upon the guarantee of this irrevocable commitment. It is further acknowledged that the consideration for this irrevocable commitment is provided by agreements between this financial institution and our customer.
This Irrevocable Letter of Credit sets forth in full the terms of the undertaking between the Issuer and the Village, and such undertaking shall not in any way be modified, amended, amplified, nor shall it be limited by reference to any document, instrument or agreement referred to herein, and any such reference shall not be deemed to incorporate herein by reference any document, instrument or agreement.
Demands on this Letter of Credit shall be made by presenting the Issuer with a letter from the Village Clerk of the Village of Sugar Grove demanding payment accompanied by the certificate of the Village Clerk of the Village of Sugar Grove certifying the basis for the default and demand on this Letter of Credit.
The undersigned agrees that this Letter of Credit shall not be reduced or discharged except upon receipt of a certificate of the Village Clerk of the Village of Sugar Grove certifying that this Letter of Credit may be reduced and the amount by which this Letter of Credit may be reduced. The outstanding balance of this Letter of Credit shall be the face amount of this Letter of Credit less any amount which is discharged upon certificate of the Village Clerk; provided, however, the outstanding balance of this Letter of Credit shall not be reduced to less than 10% of the initial face amount of the Letter of Credit until the Village Board of Trustees accepts the aforementioned improvements, the required guarantees for the required maintenance period have been posted by the owner and/or subdivider and a certificate of the Village Clerk certifying that the Letter of Credit has been released by the Village Board of Trustees of the Village.
All acts, requirements and other preconditions for the issuance of this Irrevocable Letter of Credit have been completed.
The undersigned further agrees and engages that it will be responsible and liable for attorney fees and court costs which may be incurred by the Village in enforcing collection of this Letter of Credit in accordance with its terms.
We hereby engage with you that all demands for payment in conformity with the terms of this Irrevocable Letter of Credit will be duly honored on presentation to us prior to expiration of this Letter of Credit.
BY: ATTEST:
Name: Name:
Title: Title:
STATE OF ILLINOIS )
): ss.
COUNTY OF KANE )
I, the undersigned, a Notary Public in and for the County and State aforesaid, do hereby certify that , personally known to me to be the (title) of the (name of institution), and , personally known to me to be the (title) of said institution, and who are personally known to me to be the same persons whose names are subscribed to the foregoing Letter of Credit as such (title) and (title), respectively, and caused the corporate seal of said (name of institution) to be affixed thereto pursuant to authority given by the Board of Directors thereof, as their free and voluntary acts and as the free and voluntary act and deed of said institution.
Given under my hand and official seal this day of , 20 .
Notary Public
(Ord. 2019-02-05C, 2-5-2019)