03-164Resolution No. 03-164
RESOLUTION
AUTHORIZING EXECUTION OF AN ANNEXATION AGREEMENT
(Pulte Edgewater Development - 2700 Bowes 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
and
WHEREAS, said territory not a part of any other municipality;
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: June 11, 2003
Adopted: June 11, 2003
Omnibus Vote: Yeas 7 Nays 0
Attest:
s/Dolonna Mecum
Dolonna Mecum, City Clerk
ANNEXATION AGREEMENT
PULTE / EDGEWATER
03/11/98
ANNEXATION AGREEMENT
THIS AGREEMENT made and entered into this //?H day of
ZrUAlE aoo3 , AM, by and between the City of Elgin,
Illinois, a Municipal Corporation, of the Counties of Cook and
Kane, in the State of Illinois (hereinafter referred to as
"City"), and (hereinafter
referred to as "Owner");
WHEREAS, Owner is the owner of record of the real property
described in Exhibit " ," 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, Owner desires to annex the Subject Property to the City
upon terms and conditions recited in this agreement; and
WHEREAS, Owner, after full consideration, recognizes the many
advantages and benefits resulting from the annexation of the
Subject Property to the City; and
WHEREAS, the Subject Property is not included within the
corporate limits of any municipality; and
WHEREAS, the Subject Property constitutes territory which is
contiguous to and may be annexed to the City of Elgin as provided
in Article 7 of the Illinois Municipal Code (65 ILCS 5/7-1-1 et.
seq., 1993); and
WHEREAS, the Subject Property is located within the South Elgin
Countryside Fire Protection District, and whereas each of
the Trustees of said District was 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 Subject Property is located within
Elgin Township, and whereas the Township
Commissioner of Highways and each of the Trustees of said
Township were 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 premises and of the mutual
covenants and agreements herein contained, IT IS HEREBY AGREED AS
FOLLOWS:
ONE: This Agreement is made pursuant to and in accordance
with the provisions of Section 11 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.
TWO: The Corporate Authorities of the City, within thirty
(30) days following the execution of the Agreement, and the
receipt of a current title report verifying owners of record of
the Subject Property by the City Clerk, and the filing of Owner's
Petition for Annexation in form and substance as required by law,
and dedication of any land or payment of any roadway improvement
contributions required under the City of Eloin Statement of
Policy - Development Contributions for Roadways, and 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.
THREE: Immediately after passage of the ordinance annexing
the Subject Property, as provided in Paragraph Two hereof, the
Corporate Authorities of the City shall pass an ordinance
classifying the Subject Property as depicted on the attached
Zoning Plat, if any; and an ordinance granting a conditional use,
if any; and a resolution approving the subdivision of the
property as depicted on the attached Preliminary Plat; if any.
Owner shall be allowed to seek final approval for portions of the
Subject Property as subdivided 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
Owner may determine, and as the City may approve.
FOUR: Owner represents that off -site utility easements
required to serve the Subject Property are described on Exhibit
11 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 such 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 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.
FIVE: Owner shall comply with the Elgin Municipal Code
(E.M.C.) Title 17 - Development Impact Fees. To the extent it
may lawfully do so, the City shall administer and apply the
provisions of Title 17 in a uniform manner.
SIX: Owner agrees that the Subject Property shall be
developed in conformance with the open space policies included in
the Far West Area Plan, an amendment to the Elgin Comprehensive
Plan, and attached hereto as Exhibit
SEVEN: Owner shall cause all portions of Subject Property
depicted on a Preliminary Plat as wetlands, screening berms and
entry ponds, common open space areas, 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. 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 for the applicable phase of Subject Property as
Owner may determine.
EIGHT: Except as specifically permitted pursuant to
variation or planned development approval, or paragraphs NINE and
TEN 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.
NINE: 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.
TEN: 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 my 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 City.
ELEVEN: 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 co-operate with Owner in obtaining all
necessary Illinois Environmental Protection Agency (I.E.P.A.)
permits required for such sanitary sewer systems 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 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 Final Engineering Plan
approved by the City Engineer for each phase of the development.
TWELVE: 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
Illinois Environmental Protection Agency (I.E.P.A.) 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 Final Engineering Plan
approved by the City Engineer for each phase of the development.
THIRTEEN: 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 party from liability or obligations in
this regard. Acceptance of public improvements by the City shall
be consistent with applicable City ordinances.
FOURTEEN: Owner shall comply with the
nF D-I; ,, - n1 -1 ...........a n--a._4 L..a
attached as Exhibit " J " prior to the approval of an ordinance
annexing the Subject Property.
FIFTEEN: Owner of property to be annexed and zoned in a
residential classification shall construct, or cause to be
constructed, principal residential structures in substantial
conformance with the building elevations attached as Exhibit
Substantial conformance shall include, but not be
limited to, general architectural style and building materials.
SIXTEEN: 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 forgoing,
no action shall be commenced by the Owner against the City for
monetary damages.
SEVENTEEN: This Annexation Agreement shall be in effect for
a period of 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.
EIGHTEEN: 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.
NINETEEN: 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 judgement or
decree shall relieve the City from performance under such invalid
provision of this Agreement.
TWENTY: 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.
See Paragraph TWENTY-ONE below.
IN WITNESS WHEREOF, The Elgin Corporate Authorities 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 seal affixed hereto, all on the day and year first
above written.
Attest:
Attest:
CITY OF ELGIN, ILLINOIS
City Clerk Mayor
Secretary President
"TWENTY-ONE: The Rider dated <1 0 A/C (I , 2002, and attached
hereto, and the terms and provisions set forth therein, are hereby made a part
of and incorporated into this Agreement."
RIDER TO ANNEXATION AGREEMENT BETWEEN THE CITY OF ELGIN AND
LASALLE BANK,f-SUCCESSOR TO AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO, SUCCESSOR TO THE FIRST NATIONAL BANK OF
ELGIN, AS TRUSTEE UNDER TRUST AGREEMENT DATED NOVEMBER 25, 1981,
AND KNOWN AS TRUST NO. 4085, CAROLYN D. SKOK, MARTIN JOHN SKOK
HI, WILLIAM H. SKOK THOMAS D. SKOK, CHERYL S. HOGREWE, VIJAY
KUMAR GUPTA, DOLLY GUPTA, GARY N. LUDWIG, SCOTT C. SCHROEDER,
NANCY S. SCHROEDER, AND PULTE HOME CORPORATION
This Rider is attached to, and incorporated within, an Annexation Agreement dated
7uNt5 _a, 2003, by and between THE CITY OF ELGIN, ILLINOIS, a municipal
corporation of the counties of Cook and Kane, in the State of Illinois (hereinafter referred to
as the "City"), LASALLE BANKfSUCCESSOR TO AMERICAN NATIONAL BANK
AND TRUST COMPANY OF CHICAGO, SUCCESSOR TO THE FIRST NATIONAL
BANK OF ELGIN, AS TRUSTEE UNDER TRUST AGREEMENT DATED
NOVEMBER 25, 1981, AND KNOWN AS TRUST NO. 4085, CAROLYN D. SKOK,
MARTIN JOHN SKOK III, WILLIAM H. SKOK THOMAS D. SKOK CHERYL S.
HOGREWE (the "Skoks"), VIJAY KUMAR GUPTA, DOLLY GUPTA (the "Guptas"),
GARY N. LUDWIG, ("Ludwig"), and SCOTT C. SCHROEDER and NANCY S.
SCHROEDER (the "Schroeders"), (the Skoks, the Guptas, Ludwig, and the Schroeders
being hereinafter referred to in the aggregate as the "Owner") and PULTE HOME
CORPORATION, a Michigan corporation (hereinafter referred to as "Developer" and
"Owner" to the extent it acquires title to portions of the Subject Property). To the extent
there exists or may exist any conflict between the terms and provisions of this Rider and the
terms and provisions of the preceding form Annexation Agreement, the terms and provisions
of this Rider shall be deemed to be controlling and shall supersede any such conflicting terms
and provisions of said form agreement.
I. The heading and introductory paragraph of the Agreement are hereby
deleted in their entirety and the following are inserted in lieu thereof:
"ANNEXATION AGREEMENT
(Pulte Active Adult Resort Community)
THIS AGREEMENT made and entered into this X day of c7t)NE , 2003, by and
between THE CITY OF ELGIN, ILLINOIS, a Municipal Corporation, of the Counties of
Cook a d Kane, in the State of Illinois (hereinafter referred to as "City"), and (1) LASALLE
BANK, SUCCESSOR TO AMERICAN NATIONAL BANK AND TRUST COMPANY
OF CHICAGO, SUCCESSOR TO THE FIRST NATIONAL BANK OF ELGIN, AS
TRUSTEE UNDER TRUST AGREEMENT DATED NOVEMBER 25, 1981, AND
KNOWN AS TRUST NO. 4085, CAROLYN D. SKOK, MARTIN JOHN SKOK III,
WILLIAM H. SKOK, THOMAS D. SKOK, and CHERYL S. HOGREWE, (the
"Skoks"), (2) VIJAY KUMAR GUPTA and DOLLY GUPTA (the "Guptas"), (3) GARY
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N. LUDWIG, ("Ludwig"), and (4) SCOTT C. SCHROEDER and NANCY S.
SCHROEDER (the "Schroeders"), (the Skoks, the Guptas, Ludwig, and the Schroeders
being hereinafter referred to in the aggregate as "Owner"), and (5) PULTE HOME
CORPORATION, a Michigan corporation ("Developer"), which shall be deemed an Owner
as to portions of the Subject Property upon conveyance of said portions of the Subject
Property to Developer by the present record owner or owners thereof;"
II. The first "Whereas Clause" of the Agreement is hereby deleted in its
entirely and the following is Inserted in lieu thereof:
"WHEREAS, (1) the Skoks are the owners of record of the real property described as
the "Skok Parcel" on Exhibit "A" attached hereto and incorporated herein by this reference,
(2) the Guptas are the owner:, of record of the real property described as the "Gupta Parcel"
on Exhibit "A" attached hereto and incorporated herein by this reference, (3) Ludwig is the
owner of record of the real property described as the "Ludwig Parcel" on Exhibit "A"
attached hereto and incorporated herein by this reference, and (4) the Schroeders are the
owners of record of the real property described as the "Schroeder Parcel' on Exhibit "A"
attached hereto and incorporated herein by this reference (the Skok Parcel, the Gupta Parcel,
the Ludwig Parcel, and the Si,hroeder Parcel being hereinafter referred to in the aggregate 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; and"
I L The folk ,ving is hereby added following the first "Whereas Clause" of the
Agreement:
"WHEREAS, Developer is the contract purchaser of the Subject Property; and"
IV. The sccl,nd "Whereas Clause" of the Agreement is hereby deleted in its
entirety and the following i:, inserted in lieu thereof:
"WHEREAS, Owner and Developer desire to annex the Subject Property to the City
upon terns and conditions recited in this Agreement; and"
V. The third "Whereas Clause" of the Agreement is hereby deleted in its
entirety and the following is inserted in lieu thereof:
"WHEREAS, 0" I.er and Developer, after fill consideration, recognize the many
advantages and benefits resulting from the annexation of the Subject Property to the City;
and"
CAmyfi1es\zoning\p1mrcI 2.rdr 2
VI. The eighth "Whereas Clause" of the Agreement is hereby deleted in its
entirety and the following is inserted in lieu thereof:
"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"
VII. Paragraph TWO of the Agreement is hereby deleted in its entirety and the
following is inserted in lieu thereof:
"TWO: The Corporate Authorities, within thirty (30) days following (a) the execution
of this Agreement, (b) the receipt of a current title report verifying owners of record of the
Subject Property by the City Clerk, (c) the filing of Owner's Petition for Annexation in form
and substance as required by law, (d) the receipt by the City of a certified copy of the
ordinance annexing the Subject Property to, or the presentation to the City of written evidence
acceptable to the City from the Fox River Water Reclamation District ("FRM'"") wherein
FRWRD agrees that the City can proceed with the annexation of the Subject Property to the
City prior to FRWRD finalizing the annexation of the Subject Property to FRWRD, and (e)
the receipt by the City of a written notice from Developer of the completion of its acquisition
of the Skok Parcel, which shall be given within thirty (30) days after the closing of such
Parcel, shall pass an ordinance within thirty (30) days after the date of the written notice
referenced in the foregoing clause (e) annexing the Subject Property to the City.
Notwithstanding anything to the contrary in this Agreement, the Subject Property shall be
annexed to FRWRD prior to the issuance of an occupancy pen -nit for any residential dwelling
on the Subject Property. The Annexation Plat for the subject ordinance shall be in the form
of Exhibit "B" attached hereto and incorporated herein by this reference."
VIIl. Paragraph THREE of the Agreement is hereby deleted in its entirety and
the following is inserted in lieu thereof:
"THREE: A. Immediately after passage of the ordinance annexing the Subject
Property, as provided in Paragraph TWO hereof, the Corporate Authorities shall pass or adopt
the following ordinances and resolution:
(1) ordinances classifying the Subject Property as (a) PSFR1 Planned Single
Family Residence District in the form attached hereto as Exhibit "C-1" for the portions of
the Subject Property lying west of the New Collector Street to be developed with single-
family residences, as depicted in Exhibit "D-V or "D-2" attached hereto and incorporated
herein by this reference, as applicable, and Exhibit "D-3", attached hereto and incorporated
herein by this reference (b) PSFR2 Planned Single Family Residence District in the form
C:b yfiles\zonin<arc l 2.rdr 3
attached hereto as Exhibit "C-2" for the portions of the Subject Property lying east of the
New Collector Street to be developed with single-family residences, as depicted in Exhibit
"D-1" or "D-2", as applicable, and Exhibit "D-3", and (c) PCF Planned Community Facility
District in the form attached hereto as Exhibit "C-3" for the portions of the Subject Property
to be improved with community facilities, including open space areas, as depicted in Exhibit
"D-1" or "D-2", as applicable, and Exhibit "D-31'; and
(2) a resolution approving the subdivision thereof as depicted on whichever of
the preliminary plats attached hereto as Exhibit "D-1" and "D-2" is applicable, as set forth
in the following Subparagraphs FIVE B and FIVE C.
B. The Subject Property and the project contemplated herein shall be developed in
accordance with whichever of the preliminary plats attached hereto as Exhibit "D-1" and
Exhibit "D-2" is applicable, as set forth in the following Subparagraphs FIVE B and FIVE
C, and with the Master Concept Plan documentation set forth in Exhibit "D-3". In the event
of any conflict between whichever of the preliminary plats attached hereto as Exhibit "D-1"
and Exhibit "D-2" is applicable and the Master Concept Plan documentation set forth in
Exhibit "D-3", the provisions of the applicable preliminary plat shall control. Engineering
for the Subject Property and the project contemplated herein shall be in substantial accordance
with the preliminary engineering plans prepared by Manhard Consulting, Ltd. (the
"Preliminary Engineering Plans") in the form of Exhibit "D-41', attached hereto and
incorporated herein by this reference. The City, Owner, and Developer agree to make
reasonable modifications to the applicable preliminary plat or subdivision to solve
engineering, layout, and/or design problems not reasonably foreseeable at the time of
execution of this Agreement, provided that such changes are in substantial conformance with
the approved applicable 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
applicable preliminary plat of subdivision and in Exhibit "D-3". 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.
C. Developer shall be allowed to seek final approval for the subdivision and
improvement of portions of the Subject Property as depicted in whichever of the preliminary
plats of subdivision attached hereto as Exhibit "D-1" and "D-2" is applicable, as set forth in
the following subparagraphs FIVE B and FIVE C and shall not be required to submit a final
plat and final engineering plans thereof as a single unit, but may submit for approval in
accordance with applicable ordinances of the City such plats and engineering plans 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 planned unit development, subdivision, or
resubdivision as submitted within a reasonable time after a complete application is made
therefor and such plat or plats are consistent with (a) applicable ordinances and other
requirements of law, (b) generally accepted and sound engineering practices as reasonably
determined by the City Engineer, (c) whichever of the preliminary plats of subdivision
CAmyGleslzoning\plurcI 2.rdr 4
attached hereto as Exhibit "D-1" and Exhibit "D-2" is applicable, as set forth in the
following Subparagraphs FIVE B and FIVE C, (d) the Preliminary Engineering Plans, and (e)
the terms and conditions of this Agreement. Final plats shall be approved for portions of the
Subject Property which are identical in both of the referenced preliminary plats of
subdivision, even though the final determination has not been made at the time of final plat
approval as to which of the preliminary plats will be utilized in accordance with the following
Subparagraphs FIVE B and FIVE C. 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.
D. 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. 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 public improvement. Owner 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 Owner 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 regulating condition, placement, and size of easements.
E. 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 a preliminary plat of
subdivision in accordance with Exhibit "D-1" and Exhibit "D-2", and the Master Concept
Plan attached hereto as Exhibit "D-3", all by the City within thirty (30) days after receipt by
the City of a written notice from the Developer of the completion of Developer's acquisition
of the Skok Parcel referred to in Paragraph TWO hereof. 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 Bowes Road and Water Road.
IX. Paragraph FIVE of the Agreement is hereby deleted in its entirety and the
following is inserted in lieu thereof:
C:\myfileslzoning\p1MrcI 2.rdr 5
"FIVE: A. Except as otherwise specifically set forth herein, Owner and Developer
shall comply with the Elgin Municipal Code("E.M.C.") Title 17, Development Impact Fees,
as amended. Except as otherwise specifically set forth herein, Owner and Developer shall
also comply with City of Elgin Ordinance No. G2-02 and shall pay to the City the Park
Capital Improvement Contribution as required therein. Owner and Developer hereby represent
and agree that they are 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.
Owner and Developer further agree that the contemplated fees and cash contributions to the
City for the improvements which may ultimately be constructed by the City 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
absent the annexation of the Subject Property. Owner and Developer further hereby
acknowledge the propriety, necessity and legality of the fees and contributions provided for in
this paragraph and in this Agreement and waive any and all rights to any and all legal
challenges thereof.
B. Except as otherwise set forth in the following Sub -paragraph C of this Paragraph
FIVE, Developer agrees (1) to convey to the City on or before December 31, 2004, (a) title to
a parcel of five (5) acres within the southwest quadrant of the Subject Property, which is
depicted in Exhibit "D-3" as "PROPOSED FIRE STATION 5.0 ACRES" and (b) title to a
parcel of four (4) acres within the southeast quadrant of the Subject Property which is
depicted in Exhibit "D-3" as 'PROPOSED PUBLIC LIBRARY 4.0 ACRES", and (2) to pay
the City (a) the sum of Three Million Dollars ($3,000,000.00) for use by the City in the
construction of a public safety building or for use by the City for such other public purposes
as determined in the City's sole discretion, prorated and payable on a building permit by
building permit basis, subject to the right of the City, exercisable by the City in its sole
discretion at any time after the second anniversary date of this Agreement, to accelerate
payment of the unpaid balance from time to time based upon City plans to constrict such
public safety building during the City's fiscal year of such acceleration, such accelerated
payments being payable by the Developer in four (4) consecutive equal quarterly installments,
and (b) the sum of One Million Five Hundred Thousand Dollars ($1,500,000.00) for use by
the City for public purposes as determined by the City in its sole discretion, prorated and
payable on a building pen -nit by building permit basis. In the event of the Developer's
conveyance to the City of the two parcels of property identified in this paragraph, it is agreed
and understood that Exhibit "D-1" shall be the applicable approved preliminary plat of
subdivision for the Subject Property. In consideration of the agreements of Developer to
make the conveyances set forth in (a) above and the payments set forth in (b) above, the City
agrees that the development contemplated in Exhibit "D-1" shall be exempt from (w) the
School District Capital Improvement Development Impact Fee (EMC Sec. 17.04.010), (x) the
School Site Development Impact Fee (EMC Sec. 17.04.020), (y) the Library District Capital
Improvement Impact Fee (EMC Sec. 17.04.040), and (z) the Public Safety Building Capital
Improvement Contribution (City of Elgin Ordinance No. G3-02).
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C. Notwithstanding the provisions of the foregoing Sub -paragraph B of this Paragraph
FIVE, in the event that on or before December 31, 2004, the Developer acquires or otherwise
participates in the acquisition of the so-called "Kendall Parcel," the Developer agrees (1) to
convey or cause to be conveyed to the City within sixty (60) days after the acquisition thereof
by Developer title to a parcel containing approximately twenty-five (25) acres of the Kendall
Parcel, to be in the general location and configuration depicted on Exhibit "F-1" attached
hereto and incorporated herein by this reference and legally described on Exhibit "F-2"
attached hereto and incorporated herein by this reference (the "City Parcel"), (2) to pay the
City (a) the sum of Three Million Dollars ($3,000,000.00) for use by the City in the
construction of a public safety building or for use by the City for such other public purposes
as determined in the City's sole discretion, prorated and payable on a building permit by
building permit basis, subject to the right of the City, exercisable by the City in its sole
discretion at any time after the second anniversary date of this Agreement, to accelerate
payment of the unpaid balance from time to time based upon City plans to construct such
public safety building during the City's fiscal year of such acceleration, such accelerated
payments being payable by the Developer in four (4) consecutive equal quarterly installments,
(b) the sum of One Million Five Hundred Thousand Dollars ($1,500,000.00) for use by the
City for public purposes as determined by the City in its sole discretion, prorated and payable
on a building permit by building permit basis. In the event of the Developer's conveyance to
the City of the property identified in this paragraph, it is agreed and understood that Exhibit
"D-2" shall be the applicable approved preliminary plat of subdivision for the Subject
Property. In consideration of the agreements of Developer to make the conveyance set forth
in (a) above and the payments set forth in (b) above, the City agrees that the development
contemplated in Exhibit "D-2" shall be exempt from (I) (u) the Park Site Development
Impact Fee (EMC Sec. 17.04.030), (v) the Park Land Dedication in lieu of the Park Site
Development Impact Fee (EMC Sec. 17.05), (w) the School District Capital Improvement
Development Impact Fee (EMC Sec. 17.04.010), (x) the School Site Development Impact Fee
(EMC Sec. 17.04.020) , (y) the Library District Capital Improvement Impact Fee (EMC Sec.
17.04.040), and (z) the Public Safety Building Capital Improvement Contribution (City of
Elgin Ordinance No. G3-02) with respect to the Subject Property, and (II) (uu) the Park Site
Development Impact Fee (EMC Sec. 17.04.030), (vv) the Park Land Dedication in lieu of the
Park Site Development Impact Fee (EMC Sec. 17.05), (yy) the Library District Capital
Improvement Impact Fee (EMC Sec. 17.04.040), and (zz) the Public Safety Building Capital
Improvement Contribution (City of Elgin Ordinance No. G3-02) with respect to the Kendall
Parcel upon its annexation to the City.
In the event the City Parcel is conveyed to the City under this Subparagraph FIVE C.,
the City shall grant the developer of the remaining portions of the Kendall Parcel such
temporary licenses or easements as may be requested by such developer to stockpile on the
City Parcel any soil and fill generated by the development of the Kendall Parcel 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,
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whereupon the portion of the City Parcel shall be returned to its existing grade prior to any
such stockpiling. All such removal of stockpiled material shall be at the sole cost and
expense of Developer.
D. The conveyance(s) of the parcel(s) of property from Developer to the City as
provided in the preceding Subparagraphs FIVE B and FIVE C shall be made by the
Developer to the City by warranty deed(s) conveying good and merchantable title to such
parcel(s) subject only to general real estate taxes for the year in which the conveyance occurs
and subsequent years. General real estate taxes shall be prorated as of the date of the
conveyance."
X. Paragraph SIX of the Agreement is hereby deleted in its entirety and the following
is inserted in lieu thereof:
"SIX: Owner agrees that, except as otherwise specifically set forth in this Agreement
or in whichever of the preliminary plats of subdivision attached hereto as Exhibit "D-1" and
Exhibit "D-2" is applicable or in the Master Concept Plan documentation attached hereto as
Exhibit "D-Y, the Subject Property shall be developed in conformance with the open space
policies included in the Far West Area Plan, an amendment to the Elgin Comprehensive Plan,
and attached hereto as Exhibit "G". Notwithstanding the foregoing, or anything else to the
contrary in this Agreement, any development or redevelopment of the Subject Property shall
comply with the terms of the Intergovernmental Agreement between the City and the Kane
County Forest Preserve District dated December 19, 1997, as amended by Exhibit "M"
attached hereto."
XI. Paragraph SEVEN of the Agreement is hereby deleted in its entirety and
the following is inserted in lieu thereof:
"SEVEN: As contemplated in Exhibit "M", Owner shall cause all portions of Subject
Property depicted in whichever of the preliminary plats of subdivision attached hereto as
Exhibit "13-1" and Exhibit "D-2" is applicable as wetlands, screening berms and entry
ponds, common open space areas, storm water retention areas, and dry detention areas to be
conveyed to a Property Owners Association or associations consisting of the owners of all
property located in areas designated by Owner. 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
for the applicable phase of Subject Property as Owner may determine."
XII. Paragraph EIGHT of the Agreement is hereby deleted in its entirety and
the following is inserted in lieu thereof:
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"EIGHT: Except as specifically permitted pursuant to variation or planned
development approval as set forth in Exhibits "C-1" and "C-2" attached hereto, and
Exhibits "D-1" or "D-2" as applicable, attached hereto, or Paragraphs NINE and TEN 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."
XIII. Paragraph NINE of the Agreement is hereby deleted in its entirety and
the following is inserted in lieu thereof:
"NINE: A. If during the term of this Agreement 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.
The Developer may prepay any or all of the applicable City fees with respect to the project
contemplated in whichever of the preliminary plats of subdivision attached hereto as Exhibit
"D-1" and Exhibit "D-2" is applicable prior to the time any increases in fees go into effect.
B. The improvements to Water Road, as set forth as a part of the Preliminary
Engineering Plans shall be limited to improvements that maintain Water Road as a rural cross-
section. For all purposes of this Paragraph NINE B., the term 'rural cross-section" shall be
deemed to refer to a dedicated roadway which includes street lights but does not include
curbs, gutters, or sidewalks."
XIV. Paragraph ELEVEN of the Agreement is hereby deleted in its entirety
and the following is inserted in lieu thereof:
"ELEVEN: Subject to the provisions of Paragraph TWENTY-THREE of this
Agreement, the 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, the
City agrees to co-operate with Owner in obtaining all necessary Illinois Environmental
Protection Agency ("I.E.P.A.") permits required for such sanitary sewer systems and tie-ins.
CAmyfi1es\zoning\p1Mm I2.rdr 9
Except as otherwise set forth herein, Owner shall bear all costs for extensions, tie-ins, 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 Final Engineering Plan approved by the City Engineer
for each phase of the development."
XV. Paragraph TWELVE of the Agreement is hereby deleted in its entirety
and the following is inserted in lieu thereof:
"TWELVE: Subject to the provisions of Paragraph TWENTY-FOUR of this
Agreement, the 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 co-
operate with Owner in obtaining all necessary I.E.P.A. 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 Final Engineering Plan approved by the City Engineer for each phase of
the development."
XVl. Paragraph FOURTEEN of the Agreement is hereby deleted in its entirety
and the following is inserted in lieu thereof:
"FOURTEEN: A. The parties acknowledge that the City has adopted City of Elgin
Ordinance No. G20-03 establishing a policy for the Far West Area for Development
Contributions for Roadways. Such ordinance provides for a cash contribution for roadway
improvements for a property such as the Subject Property in the amount of $1,860.00 per
dwelling unit. In recognition of the nature of the active adult use of the Subject Property, the
panties have agreed to a reduced roadway contribution fee for the Subject Property.
Developer shall pay to the City a cash contribution for roadway improvements in the amount
of $930.00 for each dwelling unit to be constructed on the Subject Property. The contribution
for roadway improvements shall be payable by the Developer to the City prior to the issuance
of a building permit for any dwelling unit on the Subject Property. With the sole exception
of the reduced amount of a cash contribution for roadway improvements in the amount of
$930.00 for each dwelling unit, the provisions of Ordinance No. G20-03 shall otherwise apply
to the Developer and to the development of 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
0\myfiles\zoning\pllnml 2.rdr 10
acknowledged and agreed to be specifically and uniquely attributable to the future
developemnt 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 acknowledges the propriety, necessity, and legality of the
roadway improvement contributions as provided for herein and waives any and all rights to
any and all legal challenges thereto. The City acknowledges and agrees that the contribution
provided for in the aforementioned Ordinance No. G20-03 shall be the only charge by the
City to the development contemplated in whichever of the preliminary plats of subdivision
attached hereto as Exhibit "D-1" and Exhibit "D-2" is applicable for roadway system impacts.
Except as otherwise set forth herein, the City agrees that the cost of construction of any
upgrades of the existing roads initially covered by the formula by which such cash
contribution for roadway improvements was computed, as set forth in the Elgin Far West
Planning Area Roadway Improvement Plan Analysis of Adjusted Developers' Share of
Improvement Costs dated February, 2003, shall be paid by the City, and the payment by the
Developer of the contribution provided for in the aforementioned Ordinance No. G20-03 shall
be the sole and exclusive cost attributable to the development contemplated in whichever of
the preliminary plats of subdivision attached hereto as Exhibit "D-1" and Exhibit "D-2" is
applicable for the cost of upgrades to the existing roads. For purposes of clarification,
Developer shall be constructing, at its cost, upgrades to existing Water Road and Bowes Road
as identified in the Preliminary Engineering Plans attached hereto as "Exhibit D-4".
B. As depicted in whichever of the preliminary plats of subdivision attached hereto as
Exhibit "D-1" and Exhibit "D-2" is applicable, the northerly and southerly existing street
stubs to the east boundary line of the Subject Property, installed as part of the Woodbridge
North and Columbine projects, along with a new street stub to be installed along the north
boundary of the Subject Property, shall be improved by Developer as emergency vehicle
access points. The design and installation of such access points shall be consistent with other
similar emergency vehicle access points in the City and the plans and specifications shall be
subject to City approval, which shall not be unreasonably withheld, conditioned, or delayed.
The (i) central street stub to the east boundary line of the Subject Property (College Green
Drive, extended), (ii) entrance to the Subject Property from Bowes Road, and (iii) entrance
from the New Collector Street, shall be gated electronically or otherwise restricted for access
by residents and guests of residents of the project contemplated in whichever of the
preliminary plats of subdivision attached hereto as Exhibit "D-1" and Exhibit "D-2" is
applicable. The Developer agrees to construct the street connection from Otter Creek Lane to
the north boundary of the Subject Property, as depicted in Exhibit "D-1" and Exhibit "D-2",
at the time of, and as part of, the installation of the improvements of the phase of the
development contemplated in this Agreement in which such street connection is located.
C. The parties recognize the need for a North/South Collector Street running north
from Bowes Road to U.S. 20 in the location shown on Exhibit "D-1" and Exhibit "D-2"
attached hereto ("New Collector Street"). Developer at its cost shall provide for the
substantial completion of construction of that portion of the New Collector Street from Bowes
Road to the north property line of the Subject Property so that such portion is open to receive
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traffic on or before August 31, 2005."
XVII. Paragraph FIFTEEN of the Agreement is hereby deleted in its entirety
and the following is inserted in lieu thereof:
"FIFTEEN: Owner shall construct, or cause to be constructed, principal residential
structures in conformance with the building elevations and restrictions relating thereto as set
forth in the Master Concept Plan documentation attached hereto as Exhibit "D-3".
Conformance shall include, but not be limited to, architectural style and building materials."
XVIII. The following is hereby inserted at the end of Paragraph SEVENTEEN
of the Agreement:
"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 THREE 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 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
SEVENTEEN shall survive the expiration of this Agreement."
XIX. The following paragraphs are hereby inserted in the Agreement as
Paragraphs TWENTY-TWO through SIXTY-TWO:
"TWENTY-TWO: Approval of Private Covenants. Attached hereto as Exhibit "J"
and incorporated herein by this reference is a document entitled "Edgewater Declaration of
Restrictions and Covenants" (the "Private Covenants"). Developer agrees to record the
Private Covenants simultaneously with the recording of the final plat of subdivision as to each
phase of the Project to be recorded. All residential structures (including, without limitation,
garages) within the Project shall be designed and constructed in compliance with the Private
Covenants. No lot on the Subject Property (other than the lots fronting Water Road, west of
the New Collector Street) or any residence constructed on a lot on the Subject Property (other
than on the lots fronting Water Road, west of the New Collector Street) shall be occupied by
any person contrary to the age restrictions as set forth in the Private Covenants. The Private
Covenants may be modified or amended by Developer, but, as to amendments or revisions
affecting housing design issues (including, but not limited to, lot size, square footage of
buildings, building materials or garage design) and age restrictions, such amendments or
C9myfi1es\zoning\p1Mrc12.rdr 12
revisions shall require the prior approval of the City Council of the City but shall not require
amendment of this Agreement.
TWENTY-THREE: Off -Site Sanitary Sewer Service. A. The City has completed
construction of the so-called Otter Creek Lift Station ("Lift Station") as set forth on Exhibit
"K" attached hereto and incorporated herein by this reference, and installed an effluent
(discharge) line connecting the discharge side of said Lift Station to the Bowes Road
Interceptor Phase II ("BRIS 2") sewer line, all as generally depicted on said Exhibit "K".
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 "BRIS 113").
B. The City (i) acknowledges that the Lift Station and BRIS 1B 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 113, 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 whichever of the preliminary plats of subdivision
attached hereto as Exhibit "D-1" and Exhibit "13-2" is applicable.
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 TWENTY-THREE.
D. The construction by the City of the Otter Creek Lift Station, the effluent lines
leading to BRIS 2, and the sewer line from the Otter Creek Lift Station which terminates
immediately east of Otter Creek (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. Attached hereto and incorporated herein by this reference as Exhibit "N" is a
document entitled "Sewer Line Construction, Contribution and Recapture Agreement"
("Sewer Agreement") executed by and among the City, the Developer, and other developers
within the Far West Planning Area. The Sewer Agreement provides the agreed mechanism
for the connection of the project contemplated in Exhibit "D-3" and other proposed
developments in the Far West Planning Area to the Lift Station through the construction of a
Cdnry6les\mning\pllarcl 2.rdr 13
sanitary sewer line ("Sanitary Line") and the recapture of portions of the cost of
construction of the Sanitary Line by the Developer from developers of benefited properties
within the service area of the Sanitary Line; the City agrees to incorporate the Sewer
Agreement in all annexation agreements of benefited properties within the service area of the
Sanitary Line to effectuate - onsistent administration of the procedures outlined in the Sewer
Agreement. The Uevcloi ;i agrees that the Sanitary Line shall be constructed and completed
no later than June 30, 2004, and prior to the issuance of the fast occupancy permit on the
Subject Property. The adoption and administration of the recapture ordinance contemplated in
the Sewer Agreement shall be the sole responsibiliy of the City with respect to the collection
or payment of any recapt are fees for the construction of the Sanitary Line, and the City shall
have no other or further obligation to Developer with respect to the collection or payment of
any recapture fees.
F. The plans for the Sanitary Line shall be subject to the approval of the City
Engineer and the design and costruction of the Sanitary Line shall comply with all applicable
requirements of law.
G. The design, )]an review, construction, construction inspection, and construction
administration for any interceptor sanitary sewer to be constructed in conjunction with the
development of the Subjcci 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 "H"."
TWENI'Y-FOUR: Off -Site Water Supply Service. A. The City represents that (i)
there currently exists a f ally functionally potable water supply system sufficient to serve the
project conter nplated in ,whichever of the preliminary plats of subdivision attached hereto as
Exhibit "D-1" and Exhiibit "D-2" is applicable and (ii) an existing municipal water main
("Existing Water Main ") is located near the intersection of Randall Road and Bowes Road
as shown on the plans attached hereto as Exhibit "L".
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, ad Owner's expense, to serve the Subject Property as shown on Exhibit "L",
such extension to the easterly boundary of the Subject Property being hereinafter called the
"Off -Site Water Main" and such extension from the easterly boundary of the Subject
Property to the northerly boundary of the Subject Property following the general route as
shown on Exhibit "L" (sixth extension being hereinafter called the "On -Site Water Main").
The City and Developer .i;ree that the construction of the Off -Site Water Main and that
portion of the Or, -Site Water Main to the east line of the New Collector Street and, then,
north along the east line of Water Road to the north property line of the Subject Property
shall be constructed and crronpleted by June 30, 2004, and prior to the issuance of the first
occupancy permit on the Subject Property. Each Owner agrees to provide the City, on
request, all require t casements in a form acceptable to the City for the construction of the On-
C9myfH.s\zoning\pN,c l 2.rdr 14
Site Water Main and, in addition, within thirty (30) days after Developer closes the purchase
of the Skok Parcel, Developer shall provide all required easements in a form acceptable to the
City for the connection of municipal water service for the Waterford project to the existing
municipal water main at the east boundary of the Subject Property and College Green Drive,
in the location generally depicted on Exhibit "L". 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. In the event the City desires to have
either or both of the Off -Site Water Main and the On -Site Water Main constructed prior to
June 30, 2004, it is agreed that the City may proceed to provide for the construction of either
or both of the Off -Site Water Main and the On -Site Water Main and the Developer shall and
agrees to reimburse the City not later than June 30, 2004, for the cost of of such portion(s)
constructed by the City, plus interest at the City's cost of funds from each applicable date of
disbursement to the date of payment by Developer.
C. It is agreed by the City and Developer that (a) the entire cost of the Off -Site Water
Main and (b) one-half (1/2) of the cost of the On -Site Water Main (the "Recapture Water
Main Cost") shall be subject to recapture by Developer in accordance with the following
provisions of this Subparagraph TWENTY-FOUR C. The Recapture Water Main Costs 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
each of the Off -Site Water Main and the On -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 Subparagraph TWENTY-FOUR C., the
term "adjoining properties" shall be deemed to refer to (c) the properties on the north and
south sides of Bowes Road adjacent to the Off -Site Water Main as to the entire cost of the
Off -Site Water Main, and (b) the properties on (i) the south side of Bowes Road, except the
City Parcel defined in Subparagraph Five C., and (ii) the west side of Water Road adjacent to
the On -Site Water Main, as to one-half (1/2) of the cost of the On -Site Water Main. 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 Main and the On -Site
Water Main, as the case may be, 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.
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D. The payment of water tap -on fees for the project contemplated in Exhibit "D-3"
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."
TWENTY-FIVE: A. On -Site Plans: Utilities and Stormwater Management: Roads.
The City and Developer agree that all streets within the development contemplated in
whichever of the preliminary plats of subdivision attached hereto as Exhibit "D-1" and
Exhibit "D-2" is applicable shall be privately owned and maintained by a property owners
association as set forth in the Private Covenants attached hereto as Exhibit "J". 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 Peliminary
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
whichever of the preliminary plats of subdivision attached hereto as Exhibit "D-1"
and Exhibit "D-2" is applicable shall be owned and maintained by the City and shall
be located in the portions of the public and private rights -of -way and, if necessary, in
the parkway or other easements granted by Developer adjacent to the applicable
private street. The City agrees that parkway landscaping may be located within any
such right-of-way and easement;
(2) The sewer service lines (from the street stub to the residential unit) and water
service line (from the buffalo box to the residential unit) shall be maintained by the
property owners' association referenced in Paragraph SEVEN of this Agreement;
(3) Stormwater lines serving the development contemplated in whichever of the
preliminary plats of subdivision attached hereto as Exhibit "D-1" and Exhibit "D-2"
is applicable shall be owned and maintained by the property owners association
referenced in Paragraph SEVEN of this Agreement and shall be located in the portions
of the public and private rights -of -way and, if necessary, in the parkway or other
easements granted by Developer the parkway adjacent to the applicable private 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; and
Comyfi1es\zomng\p1Wrc I2.rdr 16
(4) The creek realignment as contemplated in whichever of the preliminary plats of
subdivision attached hereto as Exhibit "D-1" and Exhibit "D-2" is applicable shall be
designed to maintain existing floodplain storage at a 1:1 hydraulic equivalent.
(5) 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 Subject Property an additional fee of $1,003.00 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.
TWENTY-SIX: Issuance of Mass Grading Permits. 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 Project; 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 E.M.C. and to obtain development permits as
required by said Title 21.
TWENTY-SEVEN: Open Space Parcels: Subject to Exhibit "M", the Open Space
Parcels, as defined in whichever of the preliminary plats of subdivision attached hereto as
Exhibit "D-l" and Exhibit "D-2" is applicable, shall be developed by the Owner in
accordance with the Master Concept Plan docmmentation attached hereto as Exhibit "D-3"
and conveyed by the Owner to a property owners' association or associations, as set forth in
Paragraph SEVEN, subject to the conditions and reservations that each such parcel may be
impressed with an easement reserving to the Owner the right and easement to make use of
same for recreational, stormwater detention, and other purposes not inconsistent with open
space preservation.
TWENTY-EIGHT: Remedies. Notwithstanding anything to the contrary contained in
Paragraph SIXTEEN 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 specific performance;
(b) maintain an action to recover any sums which the other parry has agreed to pay
pursuant to this Agreement and which have become due and remain unpaid for more than
C:Myfiles\wningV1Mrc 12.rdr 17
fifteen (15) days following written notice of such delinquency.
It is expressly acknowledged and agreed that except as provided in paragraph TWENTY-
EIGHT (b) above, neither party shall have the right to seek or recover a judgment for
monetary damages against the other or their respective officers, directors, employees, agents,
or elected public officials.
TWENTY-NINE: No Merger. 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.
THIRTY: Notices. 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 nationally recognized overnight courier, prepaid, addressed as follows:
If to the City or City of Elgin
the Corporate 150 Dexter Court
Authorities: Elgin, IL 601.20
Attn: City Clerk
with a copy to: City of Elgin
150 Dexter Court
Elgin, IL 60120
Attn: Corporation Counsel
If to Owner: Vijay and Dolly Gupta
3N982 Walt Whitman Road
St. Charles, IL 60175
If to Owner: Carolyn D. Skok, Martin J. Skok, III, William H. Skok,
Thomas D. Skok and Cheryl S. Hogrewe
c/o William H. Skok
1100 Jansen Farm Drive
Elgin, IL 60123
If to Owner:
Gary N. Ludwig
9N865 Water Road
Elgin, IL 60123
C:Wyfi1es\zoning\p1Wrc12.rdr 18
If to Owner: Scott C. and Nancy S. Schroeder
407 Elm Street
Elgin, IL 60123
If to Developer: Pulte Home Corporation
c/o Peter Keane
2250 Pointe Boulevard, Suite 401
Elgin, IL 60123
with a copy to: Richard L. Heimberg, Esq.
Brady & Jensen
2425 Royal Boulevard
Elgin, IL 60123
with a copy to: Charles L. Byrum, Esq.
Gardner, Carton & Douglas
Suite 3700
191 North Wacker Drive
Chicago, IL 60606
with a copy to: Douglas J. Sclrflow, Esq.
63 Douglas Avenue
Elgin, IL 60120
with a copy to: Richard I. Marblestone, Esq.
1250 Larkin Avenue, Suite 240
Elgin, IL 60123
with a copy to: Raymond R. Geimer, Esq.
96 Kennedy Memorial Drive, Suite 203
Carpentersville, IL 60110-1698
Notices shall be deemed received on the fifth (5th) business day following deposit in the U.S.
Mail, if given by certified mail as aforesaid, and upon receipt or refusal if personally
delivered.
THIRTY-ONE: Time of the Essence. 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.
THIRTY-TWO: Cooperation and Good Faith. The City and Owner agree to take all
steps necessary or appropriate to carry out the terns of this Agreement and to aid and assist
CAmyfiles\zoning\p1(arc 12.rdr 19
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
consununation 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.
THIRTY-THREE: Miscellaneous. This Agreement shall inure to the benefit of, and
be binding upon, the parties hereto, the successors in title of the Owner and their respective
successors, grantees, lessees, and assigns, and upon successor corporate authorities of the City
and successor municipalities; provided, however, any provision of this Agreement to the
contrary notwithstanding, that in the event and to the extent that Owner, or its successors or
assigns, shall designate or contract with a developer to perform Owner's obligations
hereunder, then in that event, the new designee or obligee shall be subject to the liabilities,
commitments, and obligations of this Agreement and Owner shall thereupon be released from
such assumed obligations. It is understood that this Agreement shall run with the land and, as
such, shall be assignable to and binding upon subsequent grantees, lessees, and successors in
interest of Owner, and, as such, this Agreement and all exhibits hereto shall be recorded with
the Recorder of Kane County, Illinois.
THIRTY-FOUR: Sale of Subject Property. Except as otherwise provided in this
Agreement, 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 term of this
Agreement, all of the obligations and responsibilities of the Owner deriving from this
Agreement for the parcel sold or otherwise conveyed shall devolve upon and be assumed by
such purchaser or grantee, and the Owner as herein defined shall be released from all
obligations of the Owner which relate to the sold portion of the Subject Property upon same
being sold or conveyed.
THIRTY-FIVE: Agricultural Use. The Subject Property, or portions thereof, may
CArnyfiles\zoning\ptlemI2.rdr 20
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.
THIRTY-SIX: Joint Preparation. This Agreement is and shall be deemed and
construed to be the joint and collective work product of the City and Owner and, as such, this
Agreement shall not be construed against either 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.
THIRTY-SEVEN: Storm Water Facilities. The development of the Subject Property
shall comply with the Preliminary Engineering Plans or any amendment thereto approved by
the City. Subject to the review and approval of the City Engineer in accordance with
applicable City ordinances and procedures, which shall not be unreasonably withheld, delayed,
or conditioned, the Developer shall be permitted to install temporary stormwater detention
facilities on the Subject Property as part of the first phase of development thereon. The
Developer shall be responsible for all costs associated with the review and approval of the
Owner's stormwater management submittal.
THIRTY-EIGHT: Payment of Fire Protection District Disconnection Fee. Developer
shall pay (or reimburse the City for the payment of) the disconnection fee, if any, payable to
the South Elgin and Countryside Fire Protection District under the provisions of 70 ILCS
705/20 (e). At the time of annexation 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 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 must, according to the statute, be based, the City
and Developer shall equitably re -adjust the amount of such payment.
THIRTY-NINE: Counterparts. This Agreement may be executed in any number of
counterparts and triplicate originals, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
FORTY: Amendment. 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 Charles L.
Byrum, 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
C\myGles\zoning\p1mrcI 2.rdr 21
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.
FORTY-ONE: Timing Delas. 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.
FORTY-TWO: Fee Increases. 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 imposed by the City of general applicability throughout
the so-called Far West Area of the City which are in effect as of the date hereof.
FORTY-THREE: Compliance with Laws and Regulations. 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.
FORTY-FOUR: City Consent. Whenever consent or approval of the City is required
in order for Owner 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.
FORTY-FIVE: Stop Orders. Except as may be required pursuant to the Kane County
0Wyfi1e \zoning\p1wc12.rdr 22
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 Owner shall forthwith proceed to correct such violations as may
exist; provided, however, that the City shall give notice to Owner 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.
FORTY-SIX: Building Permits/ Foundation Permits. 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 required 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 Owner 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. 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 FORTY-SEVEN
hereof.
FORTY-SEVEN: Occunancv Permits. A. The City agrees to issue Certificates of
Occupancy within a reasonable time (which, in any event, shall not exceed ten (10) business
days) after application or to issue a letter of denial within said period of time informing
Owner 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.
B. 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 warrants and 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 and other zoning ordinance
requirements, 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 percent (125%) of the cost of any incomplete site work.
Q\myfles\zoning\plts¢l2.rdr 23
FORTY-EIGHT: Public Improvements. A. It is understood that prior to the
construction of any public improvements, Developer shall submit the required plans, final plat,
specifications and engineer's 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 improvements. Upon installation of underground utilities, 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. The security shall also be
reduced pursuant to this Paragraph FORTY-EIGHT upon installation of the street base and
then, again, upon the completion of the final lift for streets.
B. The acceptance of public improvements by the City shall (i) be accomplished
within a reasonable time after notice of completion by Owner and full compliance with
applicable codes and ordinances, (ii) follow the posting by Owner 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.
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.
E. It shall be a condition to the granting of any easement required to be granted
pursuant to any provision of this Agreement that the grantee shall agree that, in the event of
C9myfiles\zoning\p1mnI IT& 24
any use of such easement for construction or maintenance of the facility for which such
easement was granted, (1) the grantee shall restore the property to substantially the same
condition as existed prior to such construction or maintenance, and (2) the grantee, its agents,
employees, or contractors shall hold the grantor and his or its successors in interest harmless
from any third party claims for personal injury or property damage which arise or result from
the activities of the grantee in connection with such construction or maintenance.
FORTY-NINE: Public Services. 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 provided
adequate police protection or service, failure to prevent the commissions of crime, failure to
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 provisins of this paragraph or other provisions of this Agrement.
FIFTY: Controlling Law. 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
C:\myfi1cs\zonmg\p1UrcI2.rdr 25
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 THREE hereof, are upon the express reliance by Owner that the terms and
provisions of this Agreement shall be valid for the term set forth in Paragraph SEVENTEEN
hereof and that the City shall take no action which shall in any way be contrary to, or
inconsistent with, the teens and provisions of this Agreement.
FIFTY-ONE: Procedures Followed. The parties hereto agree 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 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.
FIFTY-TWO: Individual Owner Exculpation. The City specifically acknowledges
that each Owner is 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 Pulte 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 Pulte 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 Pulte 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.
FIFTY-THREE: Interpretation of "Owner". 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 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
C:\myfiles\zoning\piMrci2.rdr 26
as to which such individual or entity has no legal or beneficial interest.
FIFTY-FOUR: Temporary Buildings Construction & Sales Trailers/Offices. 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 and sales trailers other than the trailers for the sales
office shall be located. The Developer shall be permitted two construction trailers and six
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 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. No later than fifteen (15) days
after the sales offices move to a model home, Developer agrees to remove any temporary
sales trailers and temporary parking areas and leave the area in a presentable condition.
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 comiected to the temporary
facilities. Paved drives and parking areas 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.
FIFTY-FIVE: Model Home Sites; Master Approval of Building Plans. A. Prior to
final plat and engineering approval for any phase of the development and in advance of
completing the installation of sanitary sewer, storm drainage system, water mains and roadway
improvements, the Developer shall be permitted at the Developer's sole risk, to construct and
maintain model homes as set forth in Exhibit "D-3", to construct and maintain other
appurtenant facilities for said model units, including temporary sanitary facilities subject to
any required permits from the applicable health department (if the same are not operated as
"dry" models), and to construct and maintain 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 are satisfied that access to the model
homes 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.
Q\nryfi1es\zoning\p1tarc12.rdr 27
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.
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.
B. 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
customarilty 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 and other applicable fees for each dwelling unit for which a building
permit is sought.
FIFTY-SIX: Posting of Information: Developer shall at all times post in a
conspicuous place within the sales office, a copy of the Master Concept Plan and a map
designating surrounding land uses and public properties on adjacent lands.
FIFTY-SEVEN: Temporary Access. 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.
FIFTY-EIGHT: Liquor License. Following the annexation of the Subject Property
and the completion of the community center thereon, and subject to the conditions and
limitations hereinafter set forth in this paragraph, the City shall provide for the issuance of a
CAmyfi1es\zoning\p1MmI2.rdr 28
Class C liquor license to the Edgewater Property Owners' Association, an association
consisting of the owners of all of the property to be located on the Subject Property, which
will permit the sale and consumption of alcoholic beverages on the site of the community
center. The Class C liquor license shall be used in connection with the Edgewater Property
Owners' Association community center. The City will issue such Class C liquor license
provided that the applicant shall meet each and every provision of the City's liquor control
ordinance and the Dram Shop Act (235 ILCS5/1-1, et seq.) relating to applications,
qualifications, regulations, and restrictions for operators of establishments serving, dispensing,
or selling alcoholic beverages. It is expressly understood by the parties that, notwithstanding
any other provisions of this Agreement, any changes in, modifications of, or amendments to
the liquor control ordinance that shall impose more or less restrictive requirements and
regulations on establishments serving, dispensing or selling alcoholic beverages or operators or
licensees thereof shall be applicable to establishments situated within the Subject Property.
The ordinance, as it may be amended from time to time, shall operate uniformly and without
exception on all persons and establishments within the class to which it relates. No license
that may be issued hereunder shall be effective for a period in excess of the term applicable to
the respective classification as provided in the liquor control ordinance. The location of such
liquor establishment shall be in accordance with good planning standards and applicable
provisions of state and local law. The refusal to issue a liquor license on the basis that the
request is not in compliance with good planning standards shall be exercised only in cases of
clear abuse of such reasonable standards.
FIFTY-NINE: Roadway Vacation. In the event that the City elects to vacate any
roadway adjacent to the Subject Property, including Water Road, the City shall be responsible
for reserving or obtaining and maintaining, at its own cost and expense, easements for utilities
in lieu of utilities being located in public rights -of -way.
SIXTY: Disconnection. Neither the Owner, Developer, nor any of the Owner's or
Developer's successors in interest shall 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.
SIXTY-ONE. Rezoning Procedure. It is agreed that in the event the Owner or the
Developer, or any of the Owner's or Developer's successors in interest, proposes to rezone the
Subject Property after the passage of the PSFRI or PSFR2 Single Family Residence District
zoning ordinances and the PCF Planned Comnumity Facility District zoning ordinance
referred to in Paragraph THREE of this Agreement, or in the event the Owner, Developer, or
any of the Owner's or Developer's successors in interest otherwise proposes to amend such
referenced zoning ordinances, that any such proposed rezoning or amendment to such zoning
ordinances shall require the prior amendment of this Agreement upon terms and conditions
which are acceptable to the City, in the City's sole discretion and any petition for any such
CAmyrilea\zoning\pllarci 2.rdr 29
amendment shall require only the signature(s) of the Owner or Developer of the portion(s) of
the Subject Property covered by such amendment.
SIXTY-TWO. Special Service Area. 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 resource of revenue for maintaining, repairing, reconstructing, or replacing the storm water
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 improvements are located fail to
perform maintenance, repair, reconstruction, or replacement in accordance with City
ordinances or other applicable requirements of law. The Owner, Developer, and any of the
Owner's or Developer's successors in interest with respect to the Subject Property 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 provisions of
this paragraph are intended to create a revenue source to the City for the referenced
maintenance, repairs, reconstruction, or replacement and are not intended, and shall not be
construed, to create an obligation of the City to provide for such maintenance, repairs,
reconstruction, or replacement."
XX. The closing paragraph and signature blocks set forth is the Agreement are
hereby deleted in their entirety and the following are inserted in lieu thereof:
"IN WITNESS WHEREOF, The Corporate Authorities 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 seal affixed hereto, all on the day and year first above written.
SIGNATURES ON PAGE 31
CAn,yG1u\zoning\p1M,c l 2A, 30
Attest
Attest
William H. Skok
-
ow �)4
Chehil S. Hoerewe
CITY OF ELGIN, ILLINOIS
PULTE HOME CORPORATION
WIN
Carolyn 6. Skok
Thomas D. Skok
Vijay Kamdar Gupta
..'
Na y S. Schroeder
Attest A°' a't` �'�'J rasa m'Y't " tit% �ASALLE BANK
l X11:12 soft f wwta M Ilfi"'o
3
LaSalle Bank
as successor trustee under Trust
No Lnd
SV7
CAmy6les\zoning\p1WrcI2.rdr 31 Ass19tant { Hlrir•,' �reslit t
Tn.ksiee'sUeae a didCiveto
ar. td rfao:. a part
RIDER ATTACHED TO AND MADE A PART OF DOCUMENT DATED
3 Id 4 R UNDER TRUST NO. qOsS
This instrument is executed by LaSalle Bank National Association, not personally but
solely as trustee, as aforesaid, in the exercise of the power and authority conferred upon
and vested in it as such trustee. All the terms, provisions, stipulations, covenants and
conditions to be performed by LASALLE BANK NATIONAL ASSOCIATION, are
undertaken by it solely as trustee, as aforesaid, and not individually and all statements
herein made are made on information and belief and are to be construed accordingly, and
no personal liability shall be asserted or be enforceable against LASALLE BANK
NATIONAL ASSOCIATION, by reason of any of the terms, provisions, stipulations,
covenants and/or statements contained in this instrument.
TABLE OF EXHIBITS
Exhibit Description
A Legal Description of the Subject Property
1. Skok Parcel
2. Gupta Parcel
3. Ludwig Parcel
4. Schroeder Parcel
B Annexation Plat
C-1 PSFRI Ordinance
C-2 PSFR2 Ordinance
C-3 PCF Ordinance
D-1 Preliminary Plat with 4/5 acre parcels for City
D-2 Preliminary Plat without City parcels
D-3 Master Concept Plan
D-4 Preliminary Engineering Plans
E Description of off -site utility easements
F-1 Location Plat of the City Parcel
F-2 Legal description of the City Parcel
G Far West Area Plan
H Far West Interceptor Sewers Policy for Inspections and Construction
I [Reserved]
J Private Covenants
K Lift Station
L Off -site Municipal Water Plans
M Amendment to Kane County Forest Preserve District/City Intergovernmental
Agreement
N Sewer Line Construction, Contribution and Recapture Agreement