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HomeMy WebLinkAbout04-78Resolution No. 04 -78 RESOLUTION AUTHORIZING EXECUTION OF AN ANNEXATION AGREEMENT (Copper Springs Subdivision — 3400 and 3401 Water Road) WHEREAS, the owners of record of certain territory described in Exhibit A, attached hereto and made a part hereof by reference, desire annexation of said territory to the City of Elgin; and WHEREAS, said territory is not a part of any other municipality; and WHEREAS, no electors reside on the subject territory; and WHEREAS, the corporate authorities of the City of Elgin desire to annex said territory upon certain terms and conditions; and WHEREAS, a proposed annexation agreement has been filed with the City Clerk and a public hearing has been held after due notice as required by law and all persons appearing and wishing to testify concerning the proposed annexation agreement have been heard; and WHEREAS, it is the considered opinion of the corporate authorities of the City of Elgin that it is in the best interests of the City of Elgin to enter into said annexation agreement as proposed. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS: Section 1. That the Mayor and City Clerk of the City of Elgin be and are hereby authorized and directed to execute on behalf of the City of Elgin an annexation agreement in the form attached hereto as Exhibit A and incorporated herein by reference. Section 2. That this resolution shall be effective from and after its passage as provided by law. s/ Ed Schock Ed Schock, Mayor Presented: March 31, 2004 Adopted: March 31, 2004 Vote: Yeas: 5 Nays: 1 Attest: s/ Dolonna Mecum Dolonna Mecum, City Clerk i 0!Q /03 FWR ANNEXATION AGREEMENT THIS AGREEMENT made and entered into this day of ;'. f' 2004, by and between THE CITY OF ELGIN, ILLINOIS, a Municipal Corporatidn, of the Counties of Cook and Kane, in the State of Illinois (hereinafter referred to as "City "), KATHRYN J. CHRIST, as Trustee under the Kathryn J. Christ Trust dated February 13, 1996, AND Tracy J. Christ Wood, as Successor Trustee under the Glenn H. Christ Trust dated February 13, 1996 ( "Owner "), and CENTEX HOMES, a Nevada general partnership ( "Developer" and "Owner" to the extent it acquires title to portions of the Subject Property). WHEREAS, Owner is the owner of record of the real properly described in Exhibit "A ", which is attached hereto and made a part hereof (which real property, for convenience, is hereafter referred to as the "Subject Property") and which real estate is not within the corporate limits of any municipality but is contiguous to the corporate limits of the City of Elgin; and WHEREAS, Developer is the contract purchaser of the Subject Property-, and WHEREAS, Owner and Developer desires to annex the Subject Property to the C:'tr upon terms and conditions recited in this agreement; and :i':-IFRFAS. Owner and Developer, after full consideration, recognizes the mare .r•nta; . s &nd benefits resulting from the annexation of the Subject Property to the Ciry; and \\ "ERF_AS, the Subject Property is not included within the corporate limits of any !vic,nabrv: and ti.' REAS, the Subject Property constitutes territory which is contiguous to and may be annexed to rite City of El�•in as provided in article 7 of the Illinois Municipal Code '65 IT CS i -1 -1 et seq., 19,)); and WHEREAS, the Subject Property is located within the South Elgin and Countrvside Fire Protection District and the Pingree Grove Fire Protection District, and whereas each of 1 Ti ustees cf s .id District was notified in writing by certified or registered mail at least ten (10) days in advauce of any action taken with respect to the annexation of the Subject Proucrty, and t,hereas an affidavit that service of the said notice had been provided has Teen filed with tae County Recorder; and btVHEREAS, the Subject Property is located within Elgin Township, and whereas _the Township Commissioner of Highways and each of the Trustees of said Township were Z: iJA?,C,-[j IE$ Jet notified in writing by certified or registered mail at least ten (10) days in advance of any action taken with respect to the annexation of the Subject Property, and whereas an affidavit that service of the said notice had been provided has been filed with the County Recorder; and WHEREAS, the Mayor and City Council of the City (Corporate Authorities) have duly set a date, time and place for a public hearing on this Annexation Agreement, and have caused due notice to be made of said public hearing through publication in the Daily Courier News, a newspaper of general circulation in the community, and the City has held such public hearing; and WHEREAS, the Corporate Authorities of the City, after due and careful consideration, have concluded that the annexation of the Subject Property to the City on the terms and conditions hereinafter set forth is in the best interests of the City; and WHEREAS, pursuant to notice as required by statute and ordinance public hearings were held by the Planning and Development Commission and the Zoning and Subdivision Hearing Board, as applicable, of the City on the requested zoning of the Subject Property. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby acknowledged, the parties hereto hereby agree as folio-s: 1. This Agreement is made pursuant to and in accordance with the provisions of Section I1 of the Illinois Municipal Code (65 ILCS 5/11- 15.1.1 et seq., 1991), and in the exercise of the home rule power of the City. 2. The Corporate Authorities, within 10 days following: (a) the execution of this Agreement, (b) the receipt of a current title report verifying the owner of record of the Subject Property by the City Clerk, (c) the filing of Developer s Petition for Annexation in form and substance as required by law, and (d) the receipt of a certified copy of the ordinance annexing the Subject Property to the Fox River Water Reclamation District ( "FRWRD "), shall pass an ordinance annexing the Subject Property to the City. By mutual agreement of the City and Developer, said annexation may be in one or more phases. The Annexation Plat(s) for the subject ordinance(s) shall be in the form of Exhibit "B" attached hereto and made a part hereof. 3. A. Immediately after the passage of the ordinance(s) annexing the Subject Property, as provided in paragraph 2 hereof, the Corporate Authorities shall pass or adopt the following ordinances and resolution: i. ordinances classifying the Subject Property as (a) PSFR2 Planned Single Family Residence District in the form attached hereto as Exhibit "C -2" attached hereto and incorporated herein by this reference for the portions of the Subject z=.&prsprc5.zgt 2 Property to be developed with single - family residences, as depicted in the Zoning Map attached hereto and incorporated herein by this reference as Exhibit "C -1 ", (b) PTFR Planned Two Family Residence District in the form attached hereto as Exhibit "C -3" attached hereto and incorporated herein by this reference for the portions of the Subject Property to be developed with duplex residences, as depicted in Exhibit "C-l", and (c) PCF Planned Community Facility District in the form attached hereto as Exhibit "C -4" attached hereto and incorporated herein by this reference for the portions of the Subject Property to be improved with community facilities, including open space areas, as depicted in Exhibit "C -1 "; and a resolution approving the subdivision thereof as depicted on the preliminary plat of subdivision attached hereto as Exhibit "D--t" (hereinafter referred to as the "Preliminary Plat of Subdivision ") attached hereto and incorporated herein by this reference. B. Except as otherwise provided for in this agreement no changes or amendments in the zoning ordinance of the City which shall directly or indirectly adversely affect the use or development of the Subject Property shall be of any effect unless applicable to all comparable areas of the City. C. The Subject Property and the Development contemplated herein shall be developed in accordance with the Preliminary Plat of Subdivision. Engineering for the Subject Property and the Development contemplated herein shall be in substantial accordance with the Preliminary Engineering Plans prepared by V3 Consultants, dated August 19, 2002, last revised March 23, 2004, attached hereto as part of Exhibit "D" (hereinafter referred to as the "Preliminary Engineering Plans "). The City and the Developer agree to make reasonable modifications to the Preliminary Plat of Subdivision, Preliminary Engineering Plans and /or the landscaping plans to solve engineering, layout and /or design problems not reasonably foreseeable at the time of the execution of this Agreement, provided that such changes are in substantial conformance with the approved Preliminary Plat of Subdivision, and do not increase the total number of dwelling units which may be constructed on the Subject Property as contemplated in the Preliminary Plat of Subdivision. The parties agree that any modifications which are deemed minor by the City's Development Administrator may be approved by the City's Development Administrator without public hearings and without formal amendment to this agreement. D. Developer shall be allowed to seek final approval for the subdivision of portions of the Subject Property as depicted in the Preliminary Plat of Subdivision and shall not be required to submit a final plat thereof as a single unit, but may submit for approval in accordance with applicable ordinances of the City such plats for phased development of the Subject Property as the Developer may determine, and as the City may approve. The City shall approve final plats of a planned development, subdivision or resubdivision as submitted if such plat or plats are consistent with (i) applicable ordinances, (ii) sound engineering zoning \aprsprg5.xg[ 3 practices (iii) the Preliminary Plat of Subdivision and the Preliminary Engineering Plans, and (iv) the terms and conditions of this Agreement. If a final plat or final engineering plan is not approved, the City shall notify Developer in writing without unreasonable delay in what ways such plat or plan is not in conformity with the applicable approved preliminary plat or other applicable requirements set forth herein. E. Developer shall be responsible for the construction and installation of those on- site public improvements and utilities consisting of storm sewers, sanitary sewers, water mains, streets and appurtenant structures as are needed to adequately service the Subject Property in accordance with applicable City ordinances and requirements and as are depicted on the Preliminary Engineering Plans for the Subject Property. Except as otherwise specifically provided herein, public improvements shall be required only for those areas which are included in each final plat or plats of planned unit development, subdivision, or resubdivision except for such off -site public improvements, including but not limited to water main loops, sanitary sewer facilities, and storm water management facilities as the City may reasonably require based upon generally accepted engineering standards. Adequate security as provided by law shall also be furnished by Developer for any such improvements. Developer shall dedicate to the City, and, the City shall accept, all municipal utility easements, including water, sanitary sewer, and storm sewer easements to detention /retention facilities, if any, included in each phase of the project and shall also grant easements to applicable utility companies for gas, electric, telephone, and cable television; all of such easements and facilities shall be consistent with the City ordinances and practices regulating condition, placement, use and size of easements. F. It is expressly understood and agreed that this Agreement, in its entirety, together with the various Petitions for Annexation filed in connection herewith, shall be null, void, and of no force and effect unless (1) the Subject Property is annexed, (2) the Subject Property is zoned and classified in the manner provided herein, and (3) approval of the Preliminary Plat of Subdivision, all by the City contemporaneously with the approval and execution of this Agreement. As a part of annexation of the Subject Property, the City shall annex all adjacent roads which are not within the corporate limits of any municipality to the far side thereof, including Water Road. 4. Owner represents that off -site utility easements required to service the Subject Property are described on Exhibit "F ". The City agrees that in the event Owner is unable to obtain said utility easements over, under, across, or through property not owned by the City or under the City s control which may be necessary or appropriate for the development of the Subject Property at a cost and on conditions acceptable to Owner„ the City shall use, to the full extent permitted by law, its eminent domain power to secure all easements. Prior to commencing any condemnation action, Owner shall submit, for City review and approval written documentation demonstrating that Owner has pursued reasonable alternatives for the acquisition of such easements, and Owner shall deposit with City the amount of funds necessary to pursue eminent domain action. All such actions by the City shall be at no cost wn=,cp,sp,95. ag[ 4 to the City, which costs shall be borne solely by the Owner. The City shall issue no building permits until the required utility easements have been secured and recorded. 5. A. Except as otherwise expressly set forth herein, Developer shall comply with the Elgin Municipal Code Title 17-- Development Impact Fees, as amended, and pay the fees when due as required therein. Notwithstanding the foregoing, Developer shall pay to the City a school district capital improvement contribution according to the formula attached hereto as Exhibit "G" in lieu of the school district capital improvement development impact fee provided for in Elgin Municipal Code Section 17.04.010 and Developer shall pay to the City a library district capital improvement contribution according to the formula attached hereto as Exhibit "H" in lieu of the library district capital improvement fee provided for in Elgin Municipal Code Section 17.04.040. Such school district capital improvement contribution and library district capital improvement contribution shall be paid on a per - residential unit basis prior to or concurrent with the issuance of a building permit. Developer shall also comply with City of Elgin Ordinance No. G2 -02 and Ordinance No. G3 -02 and shall pay to the City the park capital improvement contribution and the public safety building capital improvement contribution as required therein. Developer hereby represents and agrees that it is paying the fees and contributions to the City provided for in this paragraph and this Agreement as an inducement to the City to annex the Subject Property. Developer further agrees that the contemplated fees and cash contributions to the City for the improvements which may ultimately be constructed by the City, the school district or the library district with such fees and cash contributions are acknowledged and agreed to be specifically and uniquely attributable to the future development of the Subject Property and the public improvements contemplated by such fees and cash contributions will not otherwise be anticipated by the City, the school district or the library district absent the annexation of the Subject Property. Developer further hereby acknowledges the propriety, necessity and legality of the fees and contributions provided for in this paragraph and this Agreement and waives any and all rights to any and all legal challenges thereto. B. Developer agrees to convey to the City on or before November 1, 2005, title to a parcel of 4.16 acres, containing a residence and farm buildings, along the Water Road frontage of the Subject Property ( "City Parcel "), which is depicted on the Development Plan attached hereto and incorporated herein by this reference as Exhibit "I" as 'Park Site ". In consideration of the agreement of Developer to (i) make the conveyance set forth above and (ii) construct a so- called "tot lot" at a cost to Developer of not to exceed Fifty Thousand Dollars ($50,000.00) on a portion of the Park Site in accordance with Exhibit "I," the City agrees that the development contemplated in this Agreement shall be deemed (iii) to have fully complied with the Park Site Development Impact Fee (EMC Sec. 17.04.030) and (iv) to have complied with the Park Land Dedication in lieu of the Park Site Development Impact Fee (EMC Sec. 17.05) to the extent of forty -one percent (41 %) of such fee. Plans for such tot lot shall be subject to the reasonable review and approval of the City. The conveyance of the parcel of property from Developer to the City as provided herein shall be made by the Developer to the City by warranty deed conveying good and merchantable title to such parcel subject only to general real estate taxes for the year in which the conveyance occurs and zoning'�prsprp agi 5 subsequent years. General real estate taxes shall be prorated as of the date of the conveyance. Upon conveyance of the City Parcel to the City under this Subparagraph 5B, the City shall grant the Developer such temporary licenses or easements as may be requested by Developer to stockpile on the City Parcel any soil and fill generated by the development of the Subject Property pursuant to a stockpiling plan and erosion control plan approved by the City. All such work performed on the City Parcel shall be in full compliance with all applicable laws and ordinances. Such stockpiling and erosion control plan shall include the right of the City to cause removal of any stockpiled material from the City Parcel on six (6) months written notice to Developer, which removal shall be at no cost or expense to the City, whereupon the portion of the City Parcel shall be returned to its existing grade prior to any such stockpiling. C. The calculation of the City's impact fees under current ordinances is attached hereto as Exhibit "J ". Nothing herein prevents the Developer from prepaying any impact fees in order to avoid subsequent impact fee increases. 6. Developer agrees that, except as otherwise specifically set forth below in this Agreement or in the Preliminary Plat of Subdidvision, the Subject Property shall be developed in conformance with the open space policies included in the Far West Area Plan, dated January 26. 2000, which is an amendment to the Elgin Comprehensive Plan, and is incorporated herein by reference. 7. Owner shall cause all portions of Subject Property depicted on a Preliminary Plat of Subdivision as wetlands, screening berms and entry ponds, common open space area, storm water retention areas, and dry detention areas either to be retained by Owner or to be conveyed to a Property Owners Association or associations consisting of the owners of all property located in areas designated by Owner, unless said areas are to be dedicated for public ownership and maintenance at the City's request. The City covenants and agrees with Developer that the landscape buffer within the project contemplated herein running east and west on the south side of South Street adjacent to the residential units in the Providence project shall be conveyed to, and maintained by, the Property Owners Association established or to be established for the Providence project and the balance of the open space parcels within the project contemplated herein shall be the responsibility of the Property Owners Association established or to be established for the project contemplated herein. A Declaration or Declarations of Covenants, Conditions and Restrictions requiring that the Association or associations own and maintain areas conveyed thereto shall be submitted to City for review and approval prior to final plat approval, said Declaration to be filed for recording, at Owner's expense, with the final plat of the applicable phase of Subject Property as Owner may determine. 8. Except as specifically permitted pursuant to variation or planned development zonmg;<prsprgj.egt 6 approval, or paragraphs 9 and 10 of this Agreement, all aspects of the development and use of the Subject Property and construction and installation of improvements thereon, both on- site and off -site, shall comply fully with all applicable City ordinances and codes. 9. A. If during the term of this Agreement and after final plat or planned development approval, any existing, amended, modified or new ordinances, codes or regulations of general applicability throughout the community to a land developer or subdivider affecting the installation of land improvements (streets, underground utilities, sidewalks, curbs and gutters) upon the Subject Property are amended or modified in any manner to impose additional requirements on the installation of land improvements within the City, the burden of such additional requirements shall not apply to the Subject Property. This section shall not apply to any changes in fees imposed by the City. City agrees that there shall be no unreasonable or discriminatory changes in the method of calculation of fees applicable to the Subject Property. B. The improvements to Water Road lying east of a point two hundred nineteen (219) feet east of Copper Springs Lane, as set forth on the Preliminary Engineering Plans, shall be limited to improvements that transition Water Road in accordance with generally accepted traffic engineering standards to a rural cross - section. For all purposes of this Paragraph 9B., the term "rural cross- section" shall be deemed to refer to a dedicated roadway which includes street lights but does not include curbs, gutters, storm sewers, or sidewalks. That portion of Water Road lying west of a point two hundred nineteen (219) feet east of Copper Springs Lane shall be an urban cross - section within a sixty -six (66) foot right of way. For all purposes of this Paragraph 9B., the term "urban cross - section" shall be deemed to refer to a dedicated roadway which includes curbs, gutters, storm sewers, and sidewalks in addition to street lights. 10. If, during the term of this Agreement, any existing, amended, modified or new ordinances, codes or regulations affecting the zoning, subdivision, development, construction of improvements, buildings or appurtenances or other regulatory ordinances regarding the public health, safety and welfare are amended or modified in any manner to impose less restrictive requirements on the development of, or construction upon, properties within the City, then the benefit of such less restrictive requirements shall inure to the benefit of Owner, and anything to the contrary contained herein notwithstanding, Owner may elect to proceed with respect to the development of, or construction upon, the Subject Property upon the less restrictive amendment or modification applicable generally to all properties within the City. 11. Subject to the provisions of paragraph 58 of this Agreement, City hereby agrees to allow Owner to tie into the existing sanitary sewer lines of the City, at Owner's expense, subject to payments required under any outstanding reimbursement ordinances, and with payment of all applicable fees. At Owner's expense, City agrees to cooperate with Owner in obtaining all necessary Illinois Environmental Protection Agency ( "IEPA ") permits required for such sanitary sewer systems and tie -ins. Owner shall bear all costs for extensions, tie -ins, zoning \corspr95, agl 7 and permits consistent with applicable City ordinances. Owner shall be responsible for the extension of sewer lines to the far edges of the Subject Property subject to review and approval by the City Engineer. Owner shall install sewer line extension improvements on the Subject Property in compliance with the Final Engineering Plan approved by the City Engineer for each phase of the development. 12. Subject to the provisions of paragraph 59 of this Agreement, City hereby agrees to allow Owner to tie into the existing water lines of the City, at Owner's expense, subject to payments required under any outstanding reimbursement ordinances, and with the payment of applicable fees. At Owner s expense, City agrees to cooperate with Owner in obtaining all necessary IEPA permits required for such water main extensions and tie -ins. Owner shall bear all costs for extensions, tie -ins and permits consistent with applicable City ordinances. Owner shall be responsible for the extension of water mains to the far edges of the Subject Property subject to review and approval by the City Engineer. Owner shall install water line extension improvements on the Subject Property in compliance with the Final Engineer Plan approved by the City Engineer for each phase of the development. 13. Upon review and recommendation by the City Engineer, the City Council shall accept all public rights -of -way and improvements located thereon, sanitary sewers, storm drainage sewers and water mains lying within public rights -of -way or public easements on the Subject Property. Any improvements located in private rights -of -way shall be installed in easements dedicated for and acceptable to the City. The sewer and water service lines (from the buffalo box to the residential or commercial unit, as the case may be) shall not be owned or maintained by the City. Owner shall replace or repair damage to public improvements installed within, under or upon the Subject Property resulting from construction activities by Owner and its employees, agents, contractors and subcontractors prior to final acceptance by the City, but shall not be deemed hereby to have released any such other part from liability or obligations in this regard. Acceptance of public improvements by the City shall be consistent with applicable City ordinances. 14. Developer shall comply with City of Elgin Ordinance No. G 20 -03 establishing a policy for the Far West Area for Development Contributions for Roadways and shall pay such contributions to the City when due as required therein, which the City acknowledges is $1,915.80 per dwelling unit, provided, however, that such fee shall be reduced by fifty percent (50 %) in the event Developer is required to pay a roadway impact fee adopted by Kane County which is applicable to the Subject Property. Developer hereby represents and agrees that it is contributing such roadway improvement contributions to the City as an inducement to the City to annex the Subject Property. Developer further agrees that the contemplated cash contributions to the City for roadways and the road improvements which may ultimately be constructed by the City with such cash contributions are acknowledged and agreed to be specifically and uniquely attributable to the future development of the Subject Property and the public improvements contemplated by such cash contributions would not otherwise be anticipated by the City absent the annexation of the Subject Property. Developer further hereby acknowledges the propriety, necessity, and W=& \cP"P,g -1 gt 8 legality of the roadway improvements contributions as provided for herein and waives any and all rights to any and all legal challenges thereto. Said contribution shall be paid on a per unit basis (per residence) concurrent with the issuance of a building permit. The City acknowledges that this is the only road impact fee which will be assessed against the development by the City and that Developer shall not be subject to any further impact fees or contributions for the Subject Property from the City for road impact fees. 15. All residential structures to be constructed on the Subject Property shall be designed and constructed in conformance with the requirements of the planned development ordinances enumerated in paragraph 3 hereof, the building elevations attached hereto as Exhibit "h" ( "Building Elevations "), and with the private covenants referred to in paragraph 7 hereof. In the event of any conflict between the provisions of the planned development ordinances, the building elevations and the private covenants, the provisions of the planned development ordinances shall control. Additional building elevations for residential structures to be constructed on the subject property may be authorized and approved by the City's Community Development Manager without the need to amend this Agreement so long- as any such additional building elevations otherwise are in compliance with the terms and provisions of the planned development ordinances, private covenants and this Agreement. For all purposes of this paragraph 15, the following modifications shall be deemed to be in compliance with the provisions of the planned development ordinances covering the Subject Property: (a) increase or reduction in size of residence by ten percent (10 %) or less; (b) increase or reduction in amount of specified building material (e.g. amount of brick) by ten percent (10 %) or less; and (c) moving within the same elevation (but not eliminating) architectural features, including but not limited to windows, doors, dormers, columns, and shutters, provided such reductions do not fall below the minimums, if any, established by the Far West Area Plan as it exists on the date of this Agreement. 16. This Agreement shall be enforceable in any court of competent jurisdiction by any of the parties or by an appropriate action at law or in equity to secure the performance of the covenants herein contained. Notwithstanding the foregoing, no action shall be commenced by the Owner against the City for monetary damages. 17. This Annexation Agreement shall be in effect for a period of twenty (20) years from the date of execution hereof and shall be binding upon and inure to the benefit of the parties hereto, and their heirs, successors and assigns of all or any part of the Subject Property. To the extent permitted by law, it is agreed that in the event the annexation of the Subject Property or the terms of this Agreement are challenged in any court proceedings, the period of time during which such litigation is pending shall not be included in calculating said twenty (20) year term or any other time period provided for in this Agreement. In the event this Agreement is not extended by mutual consent prior to the expiration of such twenty (20) year term then, in that event (a) this Agreement shall be of no further force or effect, (b) the zoning classifications granted the Subject Property pursuant to paragraph 3 hereof shall remain in full force and effect unless and until amended by ordinance adopted by the City pursuant to standard rezoning procedures then in effect, and (c) the development zonmg.prsprg>.agt 9 of the remainder of the Subject Property shall proceed in accordance with all applicable ordinances then and thereafter in effect in the City of Elgin. The provisions of this paragraph 17 shall survive the expiration of this Agreement. 18. Owner shall be responsible for costs associated with filing and recording of the plat of annexation and any plat or plats of subdivision or planned development for the Subject Property. 19. 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 provisions, such provisions shall be deemed to be excised herefrom and the invalidity thereof shall not affect any of the other provisions contained herein. Such judgment or decree shall relieve the City from performance under such invalid provision of this Agreement. 20. This Agreement can be amended, in writing, at any time, by the mutual consent of all parties to this Agreement, in the manner provided by law. 21. The City agrees that, prior to the issuance of final plat approval the City shall, at the request of the Developer, promptly issue to the Developer such permits as may be required to permit the Developer to proceed with the mass grading required for the construction of the Development; provided, however, that as a condition to the issuance of such permits, Developer shall be required to submit to the City all of those matters required by Title 21 of the ENIC and to obtain development permits as required by said Title 21. 22. The City agrees that there shall be no unreasonable or discriminatory increases or changes in the method of calculation of development fees compared to similar fees and charges of general applicability throughout the City imposed by the City which are in effect as of the date hereof. 23. After the annexation of the Subject Property to the City, it is agreed that the City shall create and establish a Special Service Area for the Subject Property pursuant to 35 ILCS 200/27 -5, et seq., as amended, to provide the City with the source of revenue for maintaining, repairing, reconstructing or replacing the stormwater drainage system, detention and retention areas; special management areas or other improvements located on the Common Area of the Subject Property should the homeowners association owning the land on which such facilities or improvement are located fail to perform maintenance, repair, reconstruction or replacement in accordance with City ordinances or other applicable requirements of law. The Developer and any of the Developers successors in interest agree to and do hereby waive any and all protests, objections and /or rights to petition for disconnection regarding such Special Service Area for the Subject Property. The Special Service Area is for the exclusive purpose of creating a revenue source to the City for the referenced maintenance, repairs, reconstruction or replacement and are not intended and shall zonm,g cprsprp.agt 10 not be construed to create an obligation of the City to provide for such maintenance, repairs, reconstruction or replacement. 24. Developer shall not be required to improve or otherwise develop any open space parcels to be conveyed to the City in accordance with paragraph 5B. of this Agreement, except that Developer intends to construct a so- called "tot lot" on a portion of the Park Site as set forth in such paragraph 5B of this Agreement. The Developer shall convey the Open Space Parcels, as depicted on Exhibit "I," to the following entities: Entity City of Elgin Homeowners Association established for the Providence project Copper Springs Homeowners Association Open Space Parcel Parcel(s) 01 Parcel(s) 09 All remaining Parcels 25. Whenever consent or approval of the City is required in order for Developer to accomplish the purpose and intent hereof, such consent shall not be unreasonably withheld, conditioned, or unduly delayed. If such consent or approval is denied, such denial shall be in writing and shall specify the reason or reasons for such denial. 26. Except as may be required pursuant to the Kane County stormwater management ordinance, the City shall issue no stop orders directing work stoppages on buildings or parts of the Subject Property without setting forth the alleged violations in writing, and Developer shall forthwith proceed to correct such violations as may exist, provided, however, that the City shall give notice to Developer of its intention to issue stop orders in advance of the actual issuance of such stop orders, except in the event an emergency is deemed to exist by the City. 27. The City agrees to issue, within a reasonable time after initial submission, review, and approval of building construction plans, and the payment of required building permit fees and all other applicable fees, all necessary building and other permits for the construction of any and all improvements on the Subject Property or issue a letter of denial within said period of time informing Developer and the applicant as to wherein the application does not conform to the stated section of the Code. The City agrees that building permits issued for winter installation of basements /slabs shall not require immediate construction of structural components for such building provided (a) all foundation walls shall have decks installed and shall be backfilled and (b) such decks shall be covered with a weather resistant material and (c) the foundations shall be protected against frost according to code requirements. The issuance of a building permit, in and of itself, shall not be construed as a guarantee that a Certificate of Occupancy shall be issued, it being the intention of the parties that the issuance of a Certificate of Occupancy shall be subject to the provisions of paragraph 28 hereof. wmnpcprspreSagt I I 28. The City agrees to issue Certificates of Occupancy within a reasonable time (which, in any event, shall not exceed 10 business days) after application or to issue a letter of denial within said period of time informing Developer and the individual or entity to whom the building permit was issued specifically as to those corrections necessary as a condition to the issuance of a Certificate of Occupancy and quoting the section of the Code relied upon by the City in its request for correction. The City shall make reasonable allowances for the completion of public improvements which cannot be completed due to adverse weather conditions. Specifically, the City shall issue conditional or temporary Certificates of Occupancy for dwelling units when adverse weather conditions do not permit: outside painting; landscaping, driveway, sidewalk, or servicewalk construction; or final grading of individual homes, appurtenances, or lots, provided the purchaser of the applicable dwelling unit executes and delivers to the City the City's standard "hold harmless" agreement whereby such purchaser waives any claims it may have against the City by reason of the failure of the Developer to complete any such unfinished item. The City agrees that Certificates of Occupancy (temporary or permanent, as the case may be) shall be issued upon (a) proper application of the appropriate party, (b) compliance with all applicable building codes, zoning ordinance requirements and other applicable requirements of law, and (c) receipt and approval by the City of a performance bond (or a suitable alternative such as an irrevocable letter of credit or a cash deposit) covering one hundred twenty -five (125 %) percent of the cost of any incomplete site work. The City shall allow one master bond at a mutually agreed upon amount to cover any incomplete work for multiple numbers of dwelling units, which amount shall be increased in the event the City determines that the amount of the bond is insufficient. 29. A. Except with respect to the construction of the off -site sanitary sewer, it is understood that prior to the construction of any streets or any other public improvements, Developer shall submit the required plans, final plat, specifications and engineers estimate of probable cost, for approval by the City Engineer, as provided herein, after which and upon providing the required surety bond, the Developer may proceed to construct said streets and other public improvements. Upon installation of the asphalt base course and upon completion of other portions of the improvements, the security shall be reduced to an amount which, in the opinion of the City Engineer, is sufficient to ensure completion of the work yet to be performed. B. The acceptance of public improvements by the City shall (i) be accomplished within a reasonable time after notice of completion by Developer and full compliance with applicable codes and ordinances, (ii) follow the posting by Developer of a guarantee bond acceptable to the City in accordance with applicable ordinances, and (iii) be made only by the passage of a resolution by the City Council of the City after filing with the City Clerk of a certificate by the City Engineer certifying that all such improvements have been completed and the construction or installation thereof has been approved by him. If appropriate under the circumstances, such acceptance shall be in phases, as such phases are complete. mning�cp:sprgi.agt 12 C. From and after the acceptance of any public improvements by the City, such public improvements shall be maintained, reconstructed, repaired, and replaced by the City and all cost and expense of operation, maintenance, repair, reconstruction, and replacement of such public improvements shall be the sole responsibility of the City. Warranty period bonding or a suitable alternative (such as an irrevocable letter of credit or a cash deposit) shall be provided in accordance with ordinances of the City. D. It shall be a condition to the City's obligation to accept dedication of any public improvement that the dedication of such improvement be accompanied by the grant of appropriate easements to permit the City to carry out its responsibilities with respect to such improvements. -1 Except as otherwise provided by law including, but not limited to, the provisions of 70 ILCS 705/20(b), from and after the annexation of the Subject Property to the City, the City shall from time to time provide, on a basis comparable to and not less favorable than that applicable to other areas of the City bearing similar characteristics to the Subject Property, all services for the Subject Property and the occupants and properties located therein, of the same kind, character, and quality including, without limitation, fire protection and police protection, which are at any such time provided for other areas of the City. It is agreed and understood that the services referred to in this paragraph that the City will be providing are general services only and that no special duties or obligations are intended nor shall be deemed or construed to be created by this Agreement. It is further agreed and understood that this Agreement is not intended nor shall be construed to alter, limit, or constitute a waiver of any of the civil immunities afforded the City and /or its employees pursuant to the Local Governmental and governmental Employees Tort Immunity Act at 745 ILCS 10/1 -101 et seq., as amended, it being agreed that all of the civil immunities as set forth in such Act, as amended, shall fully apply to any claims asserted or which might be asserted against the City and /or its employees as a result of this Agreement or any of the actions of the parties pursuant to this Agreement. Without limiting the foregoing, it is further agreed and understood that the City and /or its employees as a result of this Agreement or any of the actions of the parties pursuant to this Agreement shall not be liable to any party to this Agreement or to any other person or entity for failure to provide adequate police protection or service, failure to prevent the commissions of crime, failure detect or solve crimes, failure to identify or apprehend criminals, failure to provide fire protection, rescue, or emergency service, failure to suppress or contain a fire, or failure to provide or maintain sufficient personnel, equipment, or other fire protection facilities. Notwithstanding anything to the contrary in this paragraph or in this .Agreement, it is agreed and understood that no action may be commenced by any person or entity against the City or its officials, officers, employees, or other related persons or entities for monetary damages for any alleged breach of the provisions of this paragraph or other provisions of this Agreement. 31. The parties hereto asree that there has been taken all action required by law, including the holding of such hearings as may be required, to bring about the amendments to zonintcpnprg5.agt 1 J the Zoning Ordinance of the City and other related ordinance amendments as may be necessary or proper in order to zone and classify the Subject Property so as to enable the same to be used and developed as contemplated herein and to enable the parties to execute this Agreement and fully carry out the covenants, agreements, duties, and obligations created and imposed by the terms and conditions hereof. 32. A. The City agrees to enter into a recapture agreement with the Developer to collect from the owner or owners of benefited properties at the time of annexation or if annexation is completed before the improvements are accepted then as a condition to the approval of the first subdivision plat their pro -rata share of the cost of the following improvements: (i) Regional off -site sanitary sewer oversizing to forty -eight (48) inches in the event that either the agreement described in Paragraph 58 E. below is not executed or in the event that a recapture is not agreed to in said agreement; (ii) The Off -Site Water Main referenced in Paragraph 59 of this Agreement; and (iii) The On -Site Water Main referenced in Paragraph 59 of this Agreement in excess of twelve (12) inches. B. The recapture agreement shall provide for interest from the time any such improvements are completed, at the market rate prevailing at the time the recapture agreement is entered. In any such recapture agreement, the City shall determine the benefited properties and the amount subject to recapture for such benefited off -site properties on a cost - benefit basis acceptable to the City and Developer. Any obligations of the City under such recapture agreements shall be non - recourse to the City, shall require that the City attempt to collect recapture fees from the owners of the other areas to be benefited, and shall provide that the City shall not be responsible in the event there is no development of the property contemplated to be benefited by such improvement or the recapture fees are otherwise uncollected for any reason other than the failure of the City to in good faith attempt to collect same. The City shall enact all ordinances necessary or appropriate to give effect to or implement any recapture agreements entered into pursuant to the terms hereof. C. The City and Developer acknowledge that the only recaptures due and owing from the Developer due to the City are those set forth in the City's Impact Fee Schedule (Exhibit "J "). The City agrees that it shall not approve any recapture agreements burdening Developer with additional recapture obligations without Developers consent. 33. A. Prior to the commencement of the construction and final plat approval for each unit, the Developer shall submit to the City Zoning Administrator a plan showing the location of all proposed temporary construction and sales trailers /offices, including parking areas, fencing, signage and landscape treatment. Said plan shall also indicate the one general location of where all construction and material storage trailers other than the trailers mmng�cprsprgi. zgi 14 for the sales office shall be located. The Developer shall be permitted two (2) construction trailers, two (2) sales trailers, and ten (10) material storage trailers. The Developer shall have the right to use the construction and material storage trailers for the purpose of its construction and sales activities until construction is completed on the Subject Property and shall have the right to use the sales trailers for the purpose of its sales activities from the date of this Agreement until model homes are available for use. The Developer shall keep such area free of debris and rubbish and keep the area free of weeds and in a mowed condition, and the City may inspect such area from time to time to determine that Developer is in compliance with its obligations hereunder. B. Construction of temporary facilities shall be in compliance with the provisions of the City's building code, except that sewer and water need not be connected to the temporary facilities. Paved drives and parking areas (weather permitting) shall be provided to accommodate vehicular access to all temporary sales trailers /office facilities. The Developer agrees to hold the City harmless for any liability associated with the installation and operation of any temporary facilities. 34. A. Prior to final plat and engineering approval for any phase of the development and in advance of completing the installation of sanitary, storm drainage system, water mains and roadway improvements, the Developer shall be permitted at the Developer's sole risk, to construct and maintain: (a) three (3) model home areas and associated sales offices ( "Model Areas "), (i) one Model Area for the single family residence neighborhood south of Water Road, (ii) one Model Area for the single family residence neighborhood north of Water Road„ and (iii) one Model Area for the two - family residence neighborhood; (b) other appurtenant facilities for said model units, including an 10x20 foot sales office marquee and temporary sanitary facilities for each Model Area, subject to any required permits from the applicable health department (if the same are not operated as "dry" models); and (c) temporary parking areas. Developer may construct and operate "dry" models. A condition of approval shall be that the City's Development Administrator and the City's Fire Marshall or his designee are satisfied that access to the Model Areas is safe and adequate. If, at the time the use of the models is commenced, weather conditions will not permit the paving of the access drive and parking areas for such models, access and parking may be stone or gravel and paving shall occur when weather conditions permit. The Developer shall have the right to occupy and use said models, as well as their garages, for sale, sales promotions and offices for sales personnel, all as may be desirable or in any way connected with the sales of dwellings on the Subject Property. B. Construction of models shall be in compliance with the provisions of the City's Building Code, except that sewer and water need not be connected to the models so long as the Developer provides well and septic facilities in accordance with applicable City and County regulations; and provided further, that each model shall not be occupied for residential dwelling purposes until such time as the public improvements are sufficiently completed for the City to issue a Certificate of Occupancy. zoning \cprTrgi.agt 15 C. Notwithstanding any City ordinances to the contrary, for as long as the model area is used for selling dwelling units, the Developer shall have the right to erect fencing on a temporary basis that entirely encloses the model area and directs model area traffic. It is further understood that successor developers shall be entitled to signs and models in replacement of those to which Developer is entitled. It is understood that signs and fences provided for herein shall be subject to the approval of the City Zoning Administrator and that no signs or fences shall be placed upon the public right -of -way. D. At such time as the City has approved building plans for any model of a dwelling unit (including extras or options), the same shall constitute a "master approval" of the plans for such model. Thereafter, subsequent building permit applications for any model which conforms to the plans for which a master approval has been made shall include documentation customarily required for building permit applications but shall not be required to include additional copies of building plans. The Developer shall provide the city with sufficient copies of plans for which master approval has been given, for use in the field as dwelling units are constructed. Nothing contained herein shall relieve Developer from the obligations to pay permit fees for each dwelling unit for which a building permit is sought. 35. Developer shall at all times post in a conspicuous place within the sales office, a copy of the Development Plan and a map designating surrounding land uses and public properties on adjacent lands. 36. The Developer shall pay (or reimburse the City for payment of) the disconnection fee, if any, payable to the South Elgin and Countryside Fire Protection District and the Pingree Grove Fire Protection District, as applicable, under the provisions of 70 ILCS 705/20 (e). At the time of annexation, the Developer shall deposit with the City the amount of such disconnection fee; provided, however, that if such disconnection fee cannot be determined with precision, then the Developer shall deposit with the City the estimated amount of such disconnection fee (based on the last ascertainable tax bill), and upon the issuance of the final tax bill upon which such calculation and loss, according to statute, be based, the City and the Developer shall equitably readjust the amount of such payment. 37. This Agreement is and shall be deemed and construed to be the joint and collective work product of the City and Developer and, as such, this Agreement shall not be construed against any party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict in terms or provisions, if any, contained herein. 38. Notwithstanding anything to the contrary contained in paragraph 16 of this Agreement, it is agreed that the parties hereto shall have the following rights and remedies in the event of a breach or default hereunder. (a) enforce or compel the performance of this Agreement, at law or in equity by suit, action, mandamus, or any other proceeding, including W.gicpnp,O gt 16 specific performance; (b) maintain an action to recover any sums which the other party has agreed to pay pursuant to this Agreement and which have become due and remain unpaid for more than 15 days following written notice of such delinquency. It is expressly acknowledged and agreed that except as provided in subparagraph (b) above, neither party shall have the right to seek or recover a judgment for monetary damage against the other or their respective officers, directors, employees, agents or elected public officials. 39. This Agreement is adopted pursuant to the provisions of the Illinois Municipal Code; provided, however, that any limitations in the Illinois Municipal Code in conflict with the provisions of this Agreement shall not be applicable, and as to all such provisions the City hereby exercises its powers pursuant to the provisions of Article VII, Section 6 of the Constitution of the State of Illinois. Simultaneously with the annexation of the Subject Property and without further public hearings, the City agrees, to the extent it may lawfully do so, to adopt such ordinances as may be necessary to effectuate the use of its home rule powers. City recognizes and agrees that the entry into this Agreement, the annexation of the Subject Property to the City, and the zoning of the Subject Property as set forth in paragraph 3 hereof, are upon the express reliance by Developer that the terms and provisions of this Agreement shall be valid for the term set forth in paragraph 17 hereof and that the City shall take no action which shall in any way be contrary to, or inconsistent with, the terms and provisions of this Agreement. 40. The provisions contained herein shall survive the annexation of the Subject Property and shall not be merged or expunged by the annexation of the Subject Property or any part thereof to the City. This Agreement shall be construed under the laws of the State of Illinois. The parties agree that venue shall be proper only in the Circuit Court for the Sixteenth Judicial Circuit, Kane County, Illinois. 41. Except as otherwise provided herein, it is understood and agreed by the parties hereto that, in the event all or any portion of the Subject Property is sold or conveyed at any time during the terms of this Agreement, all of the obligations and responsibilities of the Developer deriving from this Agreement for the parcel sold or otherwise conveyed shall devolve upon and be assumed by such purchaser or grantee, and the Developer as herein defined shall be released from all obligations of the Developer which relate to the sold portion of the Subject Property upon same being sold or conveyed. 42. Notices or other writings which any party is required or may wish to serve upon any other party in connection with this Agreement shall be in writing and shall be delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, or by a nationally recognized overnight courier, prepaid, addressed as follows: zoning.cprTrg5. agi 17 If to the City or to the Corporate Authorities: City of Elgin 150 Dexter Court Elgin, Illinois 60120 Attention: City Clerk With a copy to: City of Elgin 150 Dexter Court Elgin, Illinois 60120 Attention: Corporation Counsel If to Developer: Centex Homes c/o James Riley 2205 Pointe Boulevard Elgin, IL 60123 with a copy to: Richard L. Heimberg, Esq. Brady & Jensen 2425 Royal Boulevard Elgin, IL 60121 with a copy to: Fred I. Feinstein, P.C. McDermott, Will & Emery 227 W. Monroe Street Chicago, IL 60606 -5906 If to Owner:* Kathrvn J. Christ and Tracy J. Christ Wood 411 East Heron Creek Drive Sycamore, IL 601782 *Notices to this Owner shall not be required after adoption of the annexation ordinance as set forth in paragraph 2 of this Agreement 43. If the Subject Property, or portions thereof, are currently used for the planting, harvesting, housing, storage and selling of soil grown crops then the Subject Property or the portions thereof used for such purposes may continue to be used from time to time for the planting, harvesting, housing, storage and selling of soil crops grown on the Subject Property as lawful nonconforming uses until such time as another use allowed under the City of Elgin Zoning Ordinance is established or until it is under development as provided herein. zcnmg \cp,sprgi agt 18 44. It is agreed that time is of the essence of this Agreement and each and every term and condition hereof and that the parties shall make every reasonable effort to expedite the matters included herein. 45. The City and Developer agree to take all steps necessary or appropriate to carry out the terms of this Agreement and to aid and assist the other party, including enactment of such resolutions and ordinances and the taking of such other actions as may be necessary or desirable to enable the parties to comply with and give effect to the terms of this Agreement. It is further understood and agreed that the successful consummation of this Agreement and the development of the Subject Property is in the best interests of all the parties and requires their continued cooperation. The City, Owner, and Developer shall do all things necessary or appropriate to carry out the terms and provisions of this Agreement and to aid and assist each other in carrying out the terms and objectives of this Agreement and the intentions of the parties as reflected by said terms, including, without limitation, the giving of such notices, the holding of such public hearings, the enactment by the City of such resolutions and ordinances, and the taking of such other actions as may be necessary to enable the parties' compliance with the terms and provisions of this Agreement and the intentions of the parties as reflected by said terms. The City, Owner, and Developer shall act in good faith, reasonably and promptly, with respect to all consents, approvals, and actions required or requested of it or taken by it hereunder or in connection with the development of the Subject Property. Whenever any approval, discretion, or consent of the City or of any of its departments, officials, or employees is called for under this Agreement, the same shall not be unreasonably withheld, delayed, conditioned, or exercised. 46. This Agreement shall insure to the benefit of, and be binding upon, the parties hereto, the successors in title of the Developer, and each of them, their respective successors, grantees, lessees, and assigns, and upon successor corporate authorities of the City and successor municipalities. 47. This Agreement may be executed in any number of counterparts and duplicate originals, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. 48. This Agreement constitutes a covenant running with the land composing the Subject Property, binding upon the parties hereto, the successors in title of the Developer and each of them, all grantees, successors, and assigns of the respective parties hereto, including successor corporate authorities and successor municipalities of the City. 49. In the event any phrase, paragraph, article or portion of this Agreement is found to be invalid or illegal by anv court of competent jurisdiction, such finding of invalidity as to that portion shall not affect the validity, legality or enforceability of the remaining portions of this Agreement. 50. Neither the Developer nor any of the Developer's successors in interest shall wwn&p,sprg5. agt 19 file, cause to be filed, or take any action that would result in the disconnection or deannexation of the Subject Property from the City of Elgin during the term of this Agreement. 51. It is agreed that in the event the Developer or any of the Developer's successors in interest, propose to amend the PSFR2 Single Family Residence District zoning ordinance or the PTFR Two Family Residence District zoning ordinance referred to in paragraph 3 of this Agreement, then any such proposed rezoning or amendment to such zoning ordinances shall require the amendment of this Agreement upon the terms and conditions which are acceptable to the City, in the City's sole discretion. However, with respect to the requirement of the Developer s signature only the written approval of the legal titleholder of the interest in the property affected by the amendment shall be required to effect an amendment to this Agreement. 52. The City shall provide reasonable cooperation in making temporary access available to the Subject Property for traffic used in the development and construction of public improvements and buildings on the Subject Property, including the issuance of temporary curb cuts from roads within the jurisdiction of the City and the issuance or permits for haul roads and construction roads, as well as assisting in the obtaining of temporary curb cuts from roads within the jurisdiction of other governmental bodies or agencies. 53. The City specifically acknowledges that each the individuals shown herein as "Owner" are executing this Agreement solely for the reason that they are the owners of record of the Subject Property and may continue to be owners of record of portions of the Subject Property during the term of this Agreement, even though Developer or another party may acquire a portion of the Subject Property and may develop such portion. The City further acknowledges that each Owner (other than Developer as to any portion it owns) is not, and does not intend to become, a developer of the Subject Property although such Owner may from time to time execute various documents, such as subdivision plats, applications for utility permits, and the like in order to comply with rules and regulations applicable to the development of the Subject Property as well as the provisions of contracts with other parties. In light of the foregoing, the City agrees that no Owner (other than Developer as to any portions of the Subject Property which it owns) shall be responsible for the performance of any of the provisions of this Agreement. In the event an Owner of the Subject Property assigns its rights under this Agreement and such assignee in whole or in part defaults in the performance of this Agreement or any provision hereof, the City shall look solely to such developer of all or a portion of the Subject Property, or its successors or assigns who are developers, as the case may be, for such performance or for compensation for damages due to the failure of such performance as it related to the portion of the Subject Property being developed. 54. The City acknowledges and agrees that, in the interpretation and implementation of this Agreement, the term "Owner" as used herein shall be deemed to apply only with respect to a particular portion of the Subject Property as to which an individual or zoningoprsprp.agt 20 entity is the record title holder or beneficial owner and specifically and expressly agrees that no liability or responsibility under any provision of this Agreement shall be attributed to an individual or entity with respect to a portion of the Subject Property as to which such individual or entity has no legal or beneficial interest. 55. Except as otherwise specifically provided herein, all public improvements pertaining to the development of the Subject Property shall be constructed in accordance with the applicable ordinances of the City and other governmental agencies having jurisdiction over the Subject Property and pursuant to the terms of this Agreement. 56. This Agreement may be amended from time to time in the manner provided by law by written document executed by the City and Owner, or their respective successors or assigns, following all other procedures required by law. In furtherance of the foregoing, a power is hereby granted to Richard L. Heimberg or Fred I. Feinstein, and their successors and assigns, as attorney -in -fact, to execute, on behalf of any and all record title holders other than owner of any portion of the Subject Property from time to time after the date hereof, such amendments to this Agreement shall be agreed to from time to time by and between City and Owner, regardless of the number or subject matter of such amendments. unless specifically provided to the contrary in a deed, mortgage, or other instrument of conveyance, each deed, mortgage, or other instrument with respect to any portion of the Subject Property, and the acceptance thereof, shall be deemed a grant and acknowledgment of, and consent to, such power to said attorney -in -fact and shall be deemed to reserve to him the power to execute such amendments to this Agreement as hereinabove set forth. Anything herein contained to the contrary notwithstanding, the power herein granted to either said attorney -in -fact may be revoked or amended in a written declaration of revocation or in a written declaration of amendment, specifically referring to the power herein granted, signed by all of the record title holders of all portions of the Subject Property from time to time, other than Owner. 57. Wherever a time period exists in this Agreement within which a party is obligated to perform an act, such time period shall be deemed automatically extended for the period of unavoidable delay if the party is unable, through no fault of its own, to perform such act in a timely manner as a result of war, act of God, insurrection, labor unrest, or material shortages. The inability to .pay debts as they become due shall not excuse timely performance hereunder. 58. A. The City has completed construction of the so- called Otter Creek Lift Station ( "Lift Station ") and installed an effluent (discharge) line connecting the discharge side of said Lift Station to the Bowes Road Interceptor Phase II ('KRIS 2 ") sewer line. The City has also constructed an additional interceptor sewer running parallel to the Bowes Road Interceptor line and leading from the eastern most terminus of the Bowes Road Interceptor 2 line to the west treatment of FRWRD at Route 31 and Dana Drive, Elgin, Illinois (hereinafter called 'KRIS 113"). zonrng�cprsprp.agt 21 B. The City (i) acknowledges that the Lift Station and BRIS 113 were designed and constructed with sufficient capacity to serve the Subject Property and (ii) agrees to reserve sufficient capacity (commonly referred to as "PE "', or "population equivalents ") within the Lift Station, BRIS 2 and BRIS IB, and all sanitary sewer lines owned by the City which service the Otter Creek Service Area so as to serve the number of residential units approved by the City for the project contemplated in the Preliminary Plat of Subdivision. C. The City acknowledges and agrees that Owner and Developer are changing their position with respect to the Subject Property and making a substantial investment in the development of same in express reliance upon the full and faithful performance by the City of its covenants and agreements as contained in this Paragraph 58 D. The Otter Creek Lift Station, the effluent lines discharging therefrom to BRIS 2, and the sewer line from the Otter Creek Lift Station which terminates immediately east of Otter Creek shall be hereinafter collectively called the "Otter Creek Lift Station System ". Developer shall comply with City Ordinance No. 22 -03 providing for reimbursements to the City for the Otter Creek Lift Station System and shall make payments to the City when due as required therein. Developer hereby acknowledges the propriety, necessity, and legality of such ordinance and the payments provided for therein and waives any and all rights to any and all legal challenges thereto. E. The City, Developer, and others contemplate negotiating an agreement to provide for the construction of a regional sanitary sewer line. In the event that such an agreement is executed, the City and Developer agree that the regional sanitary sewer shall be constructed pursuant to said Sewer Line Construction, Contribution and Recapture Agreement. F. The design, plan review, construction, construction inspection, and construction administration for any interceptor sanitary sewer to be constructed in conjunction with the development of the Subject Property, whether off -site or on -site, shall also be in compliance with the Far West Interceptor Sewers Policy for Inspections and Construction, dated April 30, 2003, attached hereto and incorporated herein by this reference as Exhibit "M." 59. A. The City represents that (i) there currently exists a fully functionally potable water supply system sufficient to serve the project contemplated in the Preliminary Plat of Subdivision and (ii) an existing municipal water main ( "Existing Water Main ") is located on Gansett Drive in the Providence project being developed by Town & Country Homes, as shown on the plans attached hereto as Exhibit "N ". B. If the Existing Water Main has not been extended by other developers to the boundary of the Subject Property, the City shall permit Developer to extend the Existing Water Main, at Owners expense, to serve the Subject Property as shown on said Exhibit "N ". Such extension to the easterly boundary of the Subject Property shall hereinafter be called the "Off -Site Water Main" and such extension from the easterly boundary of the Subject Property to the westerly boundary of the Subject Property following the general route as shown on said zoning %cprsprg5 agt 2 Exhibit "N ", shall hereinafter be called the "On -Site Water Main ". It is the intention of Developer and the City that the On -Site Water Main shall be developed as part of phase 1 of the project contemplated in the Preliminary Plat of Subdivision; the exact route of the On -Site Water Main shall be determined in connection with the completion of final engineering plans for such phase 1. Once completed, Developer shall dedicate pursuant to City ordinances and procedures the portion of the Off -Site Water Main and the On -Site Water Main so extended by Developer to the City, which shall accept said dedication and thereafter maintain same as the City's property. C. It is agreed by the City and Developer that the entire cost of the Off -Site Water Main (the "Recapture Water Main Cost) shall be subject to recapture by Developer from the developer of the property or properties in which such Off -Site Water Main is located in accordance with the following provisions of this Paragraph 59C. The Recapture Water Main Cost shall include the actual cost attributable to the design, engineering, construction, and interest actually expended for financing such costs. Within ninety (90) days of the completion of the Off -Site Water Main and the acceptance thereof by the City, the City shall adopt a water main reimbursement ordinance which shall provide for reimbursement to Developer from the owner /developer of the adjoining properties of the Recapture Water Main Cost. For purposes of this Paragraph 59C., the term "adjoining properties" shall be deemed to refer to the property or properties in which such Off -Site Water Main is located. The recapture ordinance or ordinances shall, at Developer's expense, be recorded by the City with the Kane County Recorder. Water main reimbursements to be collected pursuant to such ordinance or ordinances shall be collected by the Developer according to the same procedures utilized for the collection of private interceptor sanitary reimbursements as set forth in Chapter 22.06 of the E.M.C., as amended. Developer shall, not later than the time it gives the notice of completion and request for acceptance of the Off -Site Water Main submit to the City documentation of the actual cost of construction thereof for review and approval by the City and for the City's use in preparation of the applicable recapture ordinance. The adoption of each such recapture ordinance shall be the sole responsibility of the City with respect to the collection or payment of any recapture fee, and the City shall have no other or further obligation with respect to the collection or payment of any recapture fee. D. The payment of water tap -on fees for the project contemplated in the Preliminary Plat of Subdivision shall be on a per -unit basis at the time of issuance of building permits. From and after the annexation of the Subject Property to the City and the payment of all applicable fees and compliance with applicable ordinance requirements, the City shall provide water service to the Subject Property on a basis comparable to and not less favorable than other similarly zoned residential properties in the City. E. Looping of the water system for the project contemplated in this Agreement shall be accomplished in phases as the adjacent phases in the Providence project are developed. 60 A. The City and Developer agree that all streets within the development contemplated in the Preliminary Plat of Subdivision shall be publicly owned and maintained. zoning�cprsprg5.agt 23 Developer shall not be required to provide any additional streets, locate any additional streets, collectors or street connections through the Subject Property, other than as set forth in the Preliminary Engineering Plans. The City agrees to allow the Owner to construct and extend within the boundaries of the Subject Property, at the Owner s expense, the utilities of sanitary sewer, storm sewer, and water (the "On -Site Utility Lines ") and to provide for on -site stormwater retention/ detention, all in substantial accordance with the Preliminary Engineering Plans. By way of further clarification, it is agreed that: (1) Sanitary sewer lines and water mains serving the development contemplated in the Preliminary Plat of Subdivision shall be owned and maintained by the City and shall be located in the portions of the public rights -of -way and, if necessary, in the parkway or other easements granted by Developer adjacent to the applicable street. The City agrees that parkway landscaping may be located within any such right -of -way and easement; (2) Stormwater lines serving the development contemplated in the Preliminary Plat of Subdivision which may be owned and maintained by the City and may be located in the portions of the public rights -of -way and, if necessary, in the parkway or other easements granted by Developer adjacent to the applicable street or, if Developer so elects and if consistent with generally acceptable engineering standards, along and adjacent to the rear lot lines of each lot within such development. The City agrees that parkway landscaping may be located within any such right -of -way and easement. (3) In consideration of the City's consent to allow the Developer to locate sanitary sewer lines, water mains, or stormwater lines in the parkway, the Developer shall pay to the City prior to and as a condition to the issuance of each residential building permit for the SuV;ect Property an additional fee of $427.52 per dwelling unit. B. Prior to formal final plat approval for any phase of the development, but following approval of final engineering plans for underground utilities, the Developer shall be permitted, at the Developer s sole risk, to construct and maintain sanitary sewer lines, storm drainage system, water mains and roadway improvements for any such phase. SIGNATURES ON PAGE 25 zoning,.prsprg5.ag1 24 IN WITNESS WHEREOF, the Elgin Corporate Authorities, Developer, and Owner have hereunto set their hands and seals and have caused this instrument to be executed by their duly authorized officials and the corporate sea] affixed hereto, all on the day and year first above written. CITY OF ELGIN, ILLINOIS Attest Mayor �f City Clerk CENTEX HOMES By,4 aZ/'�� Its r � Kathhrvvn r Christ ' Tracy J. Chrisf Wood zoning \cprsprg5.agT 25