Loading...
05-296 Resolution No. 05-296 RESOLUTION AUTHORIZING EXECUTION OF A DEVELOPMENT AGREEMENT WITH VALLEY CREEK OF ELGIN, INC. AND MARK AVENUE WEST, LLC, AND ELGIN- RANDALL RD. LLC BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that Ed Schock, Mayor, and Dolonna Mecum, City Clerk, be and are hereby authorized and directed to execute a Development Agreement on behalf of the City of Elgin with Valley Creek of Elgin, Inc. and Mark Avenue West,LLC and Elgin-Randall Rd.,LLC for the development of townhomes in the Valley Creek Subdivision,Elgin,Illinois,a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: October 12, 2005 Adopted: October 12, 2005 Vote: Yeas: 7 Nays: 0 Attest: s/Dolonna Mecum Dolonna Mecum, City Clerk 10/05/05 DEVELOPMENT AGREEMENT THIS AGREEMENT made and entered into this 12th day of October, 2005, 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" ) , and Valley Creek of Elgin, Inc . and Mark Avenue West, LLC, ( "Owner" ) , and Elgin- Randall Rd. , LLC ( "Developer" ) WHEREAS, Owner is the owner of record of the real property described in Exhibit "A" , which is attached hereto and made a part hereof (which real property, for convenience, is hereafter referred to as the "Subject Property" ) ; and WHEREAS, a portion of the Subject Property legally described in Exhibit B, which is attached hereto and made a part hereof, is not within the corporate limits of any municipality but is contiguous to the corporate limits of the City of Elgin (that portion of the Subject Property which is not presently within the corporate limits of any municipality and which is legally described on Exhibit B attached hereto is hereinafter referred to as the "Annexation Property" ) ; and WHEREAS, Developer is the contract purchaser of the Subject Property; and WHEREAS, Owner and Developer have petitioned the City to annex the Annexation Property into the City of Elgin and to zone the Subject Property as hereinafter described; and WHEREAS, pursuant to notice as required by statute and ordinance public hearings were held by the Planning and Development Commission and the Zoning and Subdivision Hearing Board, as applicable, of the City on the requested zoning of the Subject Property. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows : 1 . This Agreement is made pursuant to and in accordance with the exercise of the home rule power of the City. 2 . A. This Agreement and all of the parties' obligations hereunder are expressly contingent upon and subject to the City Council of the City of Elgin adopting the following ordinances and resolution: (i) an ordinance annexing the Annexation Property into the City of Elgin. The annexation plat for the subject annexation ordinance shall be in the form of Exhibit C attached hereto and made a part hereof . By mutual agreement of the City and the Owner and Developer, said annexation may be in one or more phases . (ii) two ordinance zoning portions of the Subject Property to the PMFR Planned Multiple Family Residence District in the forms attached hereto in Group Exhibit D. (iii) an ordinance zoning portions of the Subject Property to the PCF Planned Community Facilities District in the form attached hereto in Group Exhibit D. (iv) a resolution approving the Preliminary Plat of Subdivision for the Subject Property prepared by Jen Land Design, dated October 22 , 2003 , last revised October 3 , 2005 (hereinafter referred to alternatively as the "Preliminary Plat of Subdivision" , "Development Plan" or "Development" ) , a copy of such Preliminary Plat of Subdivision being attached hereto as Exhibit E . B. Notwithstanding anything in the contrary in this Agreement, to the extent that the Annexation Property has not been annexed to the Fox River Water Reclamation District, the Developer shall cause and provide for the annexation of the Annexation Property to the Fox River Water Reclamation District within thirty (30) days following the execution of this Agreement . Developer shall provide the City with a certified copy of the ordinance annexing the Subject Property into the Fox River Water Reclamation District . Notwithstanding anything to the contrary in this Agreement, it is agreed and understood that no final engineering plans, plats of subdivision, grading permits, building permits, other construction permits or any other type of development permits or approval of any kind shall be approved or issued for the Annexation Property unless and until the Annexation Property has been annexed into the Fox River Water Reclamation District . C. In the event the City Council of the City of Elgin fails or refuses to adopt, in its sole and absolute discretion, the ordinances and resolution referred to in the preceding Paragraph 2A of this Agreement concurrently with the entry into and the execution of this Agreement, upon written notice of either party, this Agreement may be terminated and null and void and without -2- further obligations of the parties hereunder. 3A. The Subject Property and the Development contemplated herein shall be developed in accordance with the Preliminary Plat of Subdivision. Engineering for the Subject Property and the Development contemplated herein shall be in substantial accordance with the Preliminary Engineering Plans prepared by V3 Consultants, dated 10/22/03 , last revised October 3 , 2005 attached hereto as Exhibit "F" , with such further revisions to such Preliminary Engineering Plans as set forth in the listing prepared by the City' Engineer dated October 4 , 2005, attached hereto as Exhibit "F-1" (hereinafter referred to as the "Preliminary Engineering Plans" ) . The City and the Owner and/or Developer agree to make reasonable modifications to the Preliminary Plat , subdivision plat, Preliminary Engineering and/or the landscaping plans to solve engineering, layout and/or design problems not reasonably foreseeable at the time of the execution of this Agreement, provided that such changes are in substantial conformance with the approved Preliminary Plat of Subdivision, and do not increase the total number of dwelling units which may be constructed on the Subject Property as contemplated in the Preliminary Plat of Subdivision. The parties agree that any changes to planned developments provided for in Elgin Municipal Code Section 19 . 60 . 200 may be approved by the City' s Development Administrator without public hearings and without formal amendment to this agreement . B . Developer shall be allowed to seek final approval for the subdivision of portions of the Subject Property as depicted in the Preliminary Plat of Subdivision and shall not be required to submit a final plat thereof as a single unit, but may submit for approval in accordance with applicable ordinances of the City such plats for phased development of the Subject Property as the Developer may determine, and as the City may approve . The City shall approve final plats of a planned development, subdivision or resubdivision as submitted if such plat or plats are consistent with (i) applicable ordinances, (ii) sound engineering practices (iii) the Preliminary Plat of Subdivision and the Preliminary Engineering Plans, and (iv) the terms and conditions of this Agreement . C. Developer shall be responsible for the construction and installation of those on-site public improvements and utilities consisting of storm sewers, sanitary sewers, water mains, streets and appurtenant structures as are needed to adequately service the Subject Property in accordance with applicable City ordinances and requirements and as are depicted on the Preliminary Engineering Plans for the Subject Property. Except as otherwise specifically provided herein, public improvements shall be required only for those areas which are included in each final plat or plats of -3- 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 Owner for any such improvements . 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 shall also grant easements to applicable utility companies for gas, electric, telephone, and cable television; all of such easements and facilities shall be consistent with the City ordinances and practices regulating condition, placement, use and size of easements . Developer shall be also responsible for finishing Lyle Avenue improvements including resurfacing along frontage of this development, bringing Lyle Avenue bridge in compliance with the City standards, adding street lights and sidewalks on both sides . D. The City shall accept the Old Randall Road Right of Way as part of a Jurisdictional Transfer from the Kane County Department of Transportation. E . Notwithstanding anything to the contrary in this Agreement, Developer shall cause and provide for the annexation of the Subject Property to the Fox River Water Reclamation District ( "FRWRD" ) within thirty (30) days following the execution of this Agreement . Developer shall provide the City with a certified copy of the ordinance annexing the Subject Property into FRWRD. Notwithstanding anything to the contrary in this Agreement, it is agreed and understood that no final engineering plans, plats of subdivision, grading permits, building permits, other construction permits or any other type of development permits or approval of any kind shall be approved or issued for the Subject Property unless and until the Subject Property has been annexed to FRWRD. 4 . A. Developer shall comply with the Elgin Municipal Code Title 17--Development Impact Fees, as amended, and pay the fees when due as required therein. Notwithstanding the foregoing, Developer shall pay to the City a school district capital improvement contribution and a school district transition fee according to the formula set forth in Exhibit G attached hereto in lieu of the school district capital improvement development impact fee provided for in Elgin Municipal Code Section 17 . 04 . 010 and Developer shall pay to the City a library district capital improvement contribution according to the formula set forth in Exhibit "G" attached hereto in lieu of the library district capital improvement fee provided for in Elgin Municipal Code -4- Section 17 . 04 . 040 . Such school district capital improvement contribution, school district transition fee and library district capital improvement contribution shall be paid on a per unit basis (per dwelling unit) prior to or concurrent with the issuance of a building permit . Developer shall also comply with City of Elgin Ordinance No. G2-02 and Ordinance No. G3-02 and shall pay to the City the park capital improvement contribution and the public safety building capital improvement contribution as required therein. Owner and Developer hereby represent and agree that Developer is paying the fees and contributions to the City provided for in this paragraph and this Agreement as an inducement to the City to annex the Annexation 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, the school district or the library district with such fees and cash contributions are acknowledged and agreed to be specifically and uniquely attributable to the future development of the Subject Property and the public improvements contemplated by such fees and cash contributions will not otherwise be anticipated by the City, the school district or the library district absent the annexation of the Subject Property. Owner and Developer on behalf of themselves and their successors, assigns and the grantees of their properties, further hereby acknowledge the propriety, necessity and legality of the fees and contributions provided for in this paragraph and in this Agreement and do further hereby agree and do waive any and all rights to any and all legal or other challenges or defenses to the fees and contributions provided for in this paragraph and in this Agreement and hereby agree and covenant on behalf of themselves and their successors, assigns and the grantees of their properties, not to sue the City of maintain any other legal action or defense against the City with respect to such fees and or contributions . B. The conveyance of the 12 . 5 acre parcel to the City (the "Park Site" ) described in Exhibit "H" shall be subject to the following: (i) A "restoration and mitigation plan" detailing the means and methods in which the Owner and Developer propose to change the existing physical characteristics of the 12 . 5 acre Park Site shall be required to be submitted to the City Engineer for review and approval by the City Engineer before any work on the Park Site or the conveyance of the Park Site; and (ii) The Owner shall agree to accept all liabilities related to and maintenance of the Park Site until -5- conveyance of the Park Site to the City, which shall not occur prior to the explanation of the improvements to or the maintenance period as described in a wetland maintenance agreement for the Park Site which begins after City and USACOE approval of the wetland mitigation work. A wetland maintenance agreement shall be prepared by the Developer and submitted to the City for the City' s review and approval . The terms and form of such maintenance agreement shall be in a form as approved by the City Engineer and the Corporation Counsel ; and (iii) The Developer shall be responsible for obtaining all necessary permits required by the Kane/DuPage Soil Conservation Service, the U. S . Army Corp of Engineers, and any other government entities with jurisdictional control relating to the mitigation and restoration of the Park Site . The City agrees to sign an Illinois Department of Natural Resources maintenance and operation letter in a form approved by the Corporation Counsel relating to the Park Site which provides in part that the City will have the right and will agree, upon default of the party primarily responsible for such operating and maintenance, to undertake such operating and maintenance . Notwithstanding the City' s signing of such Illinois Department of Natural Resources maintenance and operation letter, or anything else to the contrary in this Agreement , it is expressly agreed and understood that the Owner and the Developer, and subsequently the homeowner' s association as provided in this Agreement, shall be responsible for the maintenance and all costs for maintenance of the Park Site . ; and (iv) The Developer shall perform, manage, and pay for all work related to the restoration and mitigation of the Park Site as outlined in the aforementioned "restoration and mitigation plan" . No deduction from or credit against required impact fees for the development shall be granted by the City for this work; and (v) The Park Site shall be conveyed by the Owner to the City by recordable Warranty deed subject only to real estate taxes incurred and due payable subsequent to the conveyance and to the restriction -6- that same be retained as undeveloped open space by the City and its successors, in perpetuity unless the waiver or modification of such no-development restriction is agreed to in writing by the property owners association for the residential portion of the Subject Property. (vi) Notwithstanding the conveyance of the Park Site to the City it is expressly agreed and understood that the Developer and then subsequently the homeowner' s association for the Subject Property shall be responsible for and pay for all costs related to the maintenance of the Park Site . The Declaration of Covenants, Conditions and Restrictions for the homeowner' s association for the Subject Property referred to in Section 5 hereof shall include specific provisions whereby the homeowner' s association shall be responsible for the maintenance of such Park Site and all costs relating thereto and that the homeowner' s association shall indemnify and hold the City harmless from all claims, costs and expenses relating thereto . Such Declaration of Covenants, Conditions and Restrictions shall be submitted to the City for review and approval prior to final plat approval . C. The calculation of the City' s impact fees and contributions under current ordinances and policies is attached hereto as Exhibit "G" . Nothing herein prevents the Developer from prepaying any impact fees or contributions in order to avoid subsequent impact fee or contribution increases . 5 . Developer shall cause all portions of Subject Property, except the 12 . 5 acre park site as specified in Section 5 paragraph B, depicted on a Preliminary Plat as wetlands, screening berms and entry ponds, common open space area including the "tot lot" , 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 of the applicable phase of Subject Property as Owner may determine . Such Declaration shall also include the provisions regarding the Park Site and the homeowner' s association' s responsibility for the maintenance thereof as set forth in Section 4B (vi) hereof . -7- 6 . Except as specifically permitted pursuant to variation or planned development approval , or paragraphs 9 and 10 of this Agreement, all aspects of the development and use of the Subject Property and construction and installation of improvements thereon, both on-site and off-site, shall comply fully with all applicable City ordinances and codes . 7 . 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. 8 . If, during the term of this Agreement, any existing, amended, modified or new ordinances, codes or regulations affecting the zoning, subdivision, development, construction of improvements, buildings or appurtenances or other regulatory ordinances regarding the public health, safety and welfare are amended or modified in any manner to impose less restrictive requirements on the development of, or construction upon, properties within the City, then the benefit of such less restrictive requirements shall inure to the benefit of Developer, and anything to the contrary contained herein notwithstanding, Developer 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. 9 . City hereby agrees to allow the Developer to tie into the existing sanitary sewer lines of the City, at Developer' s expense, subject to payments required under any outstanding reimbursement ordinances, and with payment of all applicable fees . At Developer' s expense, City agrees to cooperate with Developer in obtaining all necessary Illinois Environmental Protection Agency (IEPA) permits required for such sanitary sewer systems and tie- ins . Developer shall bear all costs for extensions, tie-ins, and permits consistent with applicable City ordinances . Developer 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. Developer shall install sewer line extension -8- improvements on the Subject Property in compliance with the Final Engineering Plan approved by the City Engineer for each phase of the development . 10 . City hereby agrees to allow Developer to tie into the existing water lines of the City, at Developer' s expense, subject to payments required under any outstanding reimbursement ordinances, and with the payment of applicable fees . At Developer' s expense, City agrees to cooperate with Developer in obtaining all necessary Illinois Environmental Protection Agency (IEPA) permits required for such water main extensions and tie-ins. Developer shall bear all costs for extensions, tie-ins and permits consistent with applicable City ordinances . Developer 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. Developer shall install water line extension improvements on the Subject Property in compliance with the Final Engineer Plan approved by the City Engineer for each phase of the development . 11 . 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. Developer shall replace or repair damage to public improvements installed within, under or upon the Subject Property resulting from construction activities by Developer and its employees, agents, contractors and subcontractors prior to final acceptance by the City, but shall not be deemed hereby to have released any such other part from liability or obligations in this regard. Acceptance of public improvements by the City shall be consistent with applicable City ordinances . 12 . All residential structures to be constructed on the Subject Property shall be designed, constructed and maintained in conformance with the requirements of the planned development ordinances enumerated in paragraph 3 hereof, the building elevations attached hereto as Exhibit "I" ("Building Elevations" ) , and with the private covenants referred to in paragraph 7 hereof . In the event of any conflict between the provisions of the planned development ordinances, the building elevations and the private covenants, the provisions of the planned development ordinances shall control . Additional building elevations for residential structures to be constructed on the subject property may be -9- authorized and approved by the City' s Community Development Manager so long as any such additional building elevations otherwise are in compliance with the terms and provisions of the planned development ordinances, private covenants and the annexation Agreement . 13 . This Agreement shall be enforceable in any court of competent jurisdiction by any of the parties or by an appropriate action at law or in equity to secure the performance of the covenants herein contained. Notwithstanding the foregoing or anything else to the contrary in this Agreement, no action shall be commenced by the Owner and/or Developer and/or any of their successors and/or assigns against the City for monetary damages . 14 . This Agreement shall be in effect for a period of twenty (20) years from the date of execution hereof and shall be binding upon and inure to the benefit of the parties hereto, and their heirs, successors and assigns of all or any part of the Subject Property. 15 . Developer 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. 16 . If any provision of this Agreement is held invalid by a court of competent jurisdiction or in the event such a court shall determine that the City does not have the power to perform any such provisions, such provisions shall be deemed to be excised herefrom and the invalidity thereof shall not affect any of the other provisions contained herein. Such judgment or decree shall relieve the City from performance under such invalid provision of this Agreement . 17 . 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. 18 . The City agrees that, prior to the issuance of final plat approval the City shall, at the request of the Developer, promptly issue to the Developer such permits as may be required to permit the Developer to proceed with the mass grading required for the construction of the Development ; provided, however, that as a condition to the issuance of such permits, Developer shall be required to submit to the City all of those matters required by Title 21 of the EMC and to obtain development permits as required by said Title 21 . -10- 19 . The City agrees that there shall be no unreasonable or discriminatory increases or changes in the method of calculation of development fees compared to similar fees and charges of general applicability throughout the City imposed by the City which are in effect as of the date hereof . 20 . After the annexation of the Annexation Property to the City, it is agreed that the City shall create and establish a Special Service Area for the Subject Property pursuant to 35 ILCS 200/27-5, et seq. , as amended, to provide the City with the source of revenue for maintaining, repairing, reconstructing or replacing the stormwater drainage system, detention and retention areas, special management areas or other improvements located on the Common Area of the Subject Property and the Park Site referred to in Section 4B hereof should the Property Owners 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 and the Developer and any of their successors in interest agree to and do hereby waive any and all protests, objections and/or rights to petition for disconnection regarding such Special Service Area for the Subject Property. The Special Service Area is for the exclusive purpose of creating a revenue source to the City for the referenced maintenance, repairs, reconstruction or replacement and are not intended and shall not be construed to create an obligation of the City to provide for such maintenance, repairs, reconstruction or replacement . 21 . A. The Open Space Parcels, as identified on the Preliminary Plat of Subdivision attached hereto as Exhibit "C" shall be developed by the Developer in accordance with such Preliminary Plat of Subdivision. The Owner shall convey the Open Space Parcels to the following entities : Entity Open Space Parcel City of Elgin 1 Parcel (s) of 12 . 5 acres B . The Common Space Parcels, as identified on the Preliminary Plat of Subdivision attached hereto as Exhibit "E" shall be developed by the Developer in accordance with such Preliminary Plat of Subdivision. The Developer shall convey the Common Space Parcels to the following entities : Entity Common Space Parcel Property Owners Association All remaining Parcels -11- 22 . Whenever consent or approval of the City is required in order for Developer to accomplish the purpose and intent hereof, such consent shall not be unreasonably withheld, conditioned, or unduly delayed. If such consent or approval is denied, such denial shall be in writing and shall specify the reason or reasons for such denial . 23 . Except as may be required pursuant to the Kane County stormwater management ordinance, the City shall issue no stop orders directing work stoppages on buildings or parts of the Subject Property without setting forth the alleged violations in writing, and Owner shall forthwith proceed to correct such violations as may exist ; provided, however, that the City shall give notice to Developer of its intention to issue stop orders in advance of the actual issuance of such stop orders, except in the event an emergency is deemed to exist by the City. 24 . The City agrees to issue, within a reasonable time after initial submission, review, and approval of building construction plans, and the payment of required building permit fees and all other applicable fees, all necessary building and other permits for the construction of any and all improvements on the Subject Property or issue a letter of denial within said period of time informing Owner and the applicant as to wherein the application does not conform to the stated section of the Code . 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 27 hereof . 25 . The City agrees to issue Certificates of Occupancy within a reasonable time (which, in any event, shall not exceed 10 business days) after application or to issue a letter of denial within said period of time informing 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. The City agrees that Certificates of Occupancy (temporary or permanent, as the case may be) shall be issued upon (a) proper application of the appropriate party, (b) compliance with all applicable building codes, zoning ordinance requirements and other applicable requirements of law, and (c) receipt and approval by the City of a performance bond (or a suitable alternative such as an irrevocable letter of credit or a cash deposit) covering one hundred twenty- five (125%) percent of the cost of any incomplete site work. The City shall allow one master bond at a mutually agreed upon amount -12- to cover any incomplete work for multiple numbers of dwelling units, which amount shall be increased in the event the City determines that the amount of the bond is insufficient . 26 . A. It is understood that prior to the construction of any streets or any other public improvements, Developer shall submit the required plans, final plat, specifications and 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 streets and other public improvements . Upon installation of the asphalt base course and upon completion of other portions of the improvements, the security shall be reduced to an amount which, in the opinion of the City Engineer, is sufficient to ensure completion of the work yet to be performed. B . The acceptance of public improvements by the City shall (i) be accomplished within a reasonable time after notice of completion by Developer and full compliance with applicable codes and ordinances, (ii) follow the posting by Developer of a guarantee bond acceptable to the City in accordance with applicable ordinances, and (iii) be made only by the passage of a resolution by the City Council of the City after filing with the City Clerk of a certificate by the City Engineer certifying that all such improvements have been completed and the construction or installation thereof has been approved by him. If appropriate under the circumstances, such acceptance shall be in phases, as such phases are complete . 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 . 27 . Intentionally Omitted 28 . The parties hereto agree that there has been taken all -13- 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 . 29 . A. Prior to the commencement of the construction and final plat approval for each unit, the Developer shall submit to the City Zoning Administrator a plan showing the location of all proposed temporary construction and sales trailers/offices, including parking areas, fencing, signage and landscape treatment . Said plan shall also indicate the one general location of where all construction and material storage trailers other than the trailers for the sales office shall be located. The Developer shall be permitted at least 3 construction trailers, 2 sales trailers and at least 3 material storage trailers . The Developer shall have the right to use the construction and material storage trailers for the purpose of its construction and sales activities until construction is completed on the Subject Property and shall have the right to use the sales trailers for the purpose of its sales activities from the date of this Agreement until model homes are available for use. The Developer shall keep such area free of debris and rubbish and keep the area free of weeds and in a mowed condition, and the City may inspect such area from time to time to determine that Developer is in compliance with its obligations hereunder. B. Construction of temporary facilities shall be in compliance with the provisions of the City' s building code, except that sewer and water need not be connected to the temporary facilities . Paved drives and parking areas (weather permitting) shall be provided to accommodate vehicular access to all temporary sales trailers/office facilities . The Developer agrees to hold the City harmless for any liability associated with the installation and operation of any temporary facilities . 30 . A. Prior to final plat and engineering approval for any phase of the development and in advance of completing the installation of sanitary, storm drainage system, water mains and roadway improvements, the Developer shall be permitted at the Developer' s sole risk, to construct and maintain: (a) two (2) model home areas, associated signage not to exceed one hundred (100) square feet in the aggregate, and associated sales offices ( "Model Area" ) ; (b) other appurtenant facilities for said model units, including (i) a temporary sign associated with a temporary -14- sales trailer of one hundred (100) square feet (ii) upon opening of a sales office and removal of the sales trailer, a temporary double-faced one hundred (100) per side square foot sales office marquee, (iii) an awing on the sales office containing the builder ' s name and logo, and (iv) temporary sanitary facilities for the Model Area, subject to any required permits from the applicable health department (if the same are not operated as "dry" models) ; and (c) temporary parking areas . Developer may construct and operate "dry" models . A condition of approval shall be that the City' s Development Administrator and the City' s Fire Marshall or his designee are satisfied that access to the Model Area is safe and adequate . If, at the time the use of the models is commenced, weather conditions will not permit the paving of the access drive and parking areas for such models, access and parking may be stone or gravel and paving shall occur when weather conditions permit . The Developer shall have the right to occupy and use said models, as well as their garages, for sale, sales promotions and offices for sales personnel , all as may be desirable or in any way connected with the sales of dwellings on the Subject Property. B. Construction of models shall be in compliance with the provisions of the City' s Building Code, except that sewer and water need not be connected to the models so long as the Developer provides temporary water and sanitary 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. C. Notwithstanding any City ordinances to the contrary, for as long as the model area is used for selling dwelling units, the Developer shall have the right to erect fencing on a temporary basis that entirely encloses the model area and directs model area traffic . It is further understood that the Developer' s successor shall be entitled to signs and models in replacement of those to which Developer is entitled. It is understood that signs and fences provided for herein shall be subject to the approval of the City Zoning Administrator and that no signs or fences shall be placed upon the public right-of-way. D. At such time as the City has approved building plans for any model of a dwelling unit (including extras or options) , the same shall constitute a "master approval" of the plans for such model . Thereafter, subsequent building permit applications for any model which conforms to the plans for which a master approval has been made shall include documentation customarily required for building permit applications but shall not be required to include additional copies of building plans . The Developer shall provide -15- the city with sufficient copies of plans for which master approval has been given, for use in the field as dwelling units are constructed. Nothing contained herein shall relieve Developer from the obligations to pay permit fees for each dwelling unit for which a building permit is sought . 31 . Developer shall at all times post in a conspicuous place within the sales office, a copy of the Development Plan and a map designating surrounding land uses and public properties on adjacent lands . 32 . The Developer shall pay (or reimburse the City for payment of) the disconnection fee, if any, payable to the Pingree Grove Fire Protection District under the provisions of 70 ILCS 705/20 (e) . At the time of annexation, the Developer shall deposit with the City the amount of such disconnection fee; provided, however, that if such disconnection fee cannot be determined with precision, then the Developer shall deposit with the City the estimated amount of such disconnection fee (based on the last ascertainable tax bill) , and upon the issuance of the final tax bill upon which such calculation and loss, according to statute, be based, the City and the Developer shall equitably readjust the amount of such payment . 33 . This Agreement is and shall be deemed and construed to be the joint and collective work product of the City and Developer and, as such, this Agreement shall not be construed against any party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict in terms or provisions, if any, contained herein. 34 . Notwithstanding anything to the contrary contained in Paragraph 16 of the 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 party has agreed to pay pursuant to this Agreement and which have become due and remain unpaid for more than 15 days following written notice of such delinquency. -16- It is expressly acknowledged and agreed that except as provided in subparagraph (b) above, neither party shall have the right to seek or recover a judgment for monetary damage against the other or their respective officers, directors, employees, agents or elected public officials . 35 . The provisions contained herein shall survive the annexation of the Annexation Property and shall not be merged or expunged by the annexation of the Annexation 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 . 36 . Except as otherwise provided herein, it is understood and agreed by the parties hereto that, in the event all or any portion of the Subject Property is sold or conveyed at any time during the terms of this Agreement, all of the obligations and responsibilities of the Developer deriving from this Agreement for the parcel sold or otherwise conveyed shall devolve upon and be assumed by such purchaser or grantee, and the Developer as herein defined shall be released from all obligations of the Developer which relate to the sold portion of the Subject Property upon same being sold or conveyed. 37 . Notices or other writings which any party is required or may wish to serve upon any other party in connection with this Agreement shall be in writing and shall be delivered personally or sent by registered or certified mail , return receipt requested, postage prepaid, or by a nationally recognized overnight courier, prepaid, addressed as follows : If to the City or to the Corporate Authorities : City of Elgin 150 Dexter Court Elgin, Illinois 60120 Attention: City Clerk With a copy to : City of Elgin 150 Dexter Court Elgin, Illinois 60120 Attention: Corporation Counsel If to Developer: Elgin-Randall Rd. LLC -17- 3436 Kennicott, Suite 120 Arlington Heights, IL 60004 If to Owner: Valley Creek of Elgin Inc and Mark Avenue West, LLC 574 North McLean Blvd. lA Elgin, IL 60123 38 . If the Subject Property, or portions thereof, are currently used for the planting, harvesting, housing, storage and selling of soil grown crops then the Subject Property or the portions thereof used for such purposes may continue to be used from time to time for the planting, harvesting, housing, storage and selling of soil crops grown on the Subject Property as lawful nonconforming uses until such time as another use allowed under the City of Elgin Zoning Ordinance is established or until it is under development as provided herein. 39 . 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. 40 . The City and Developer agree to take all steps necessary or appropriate to carry out the terms of this Agreement and to aid and assist the other party, including enactment of such resolutions and ordinances and the taking of such other actions as may be necessary or desirable to enable the parties to comply with and give effect to the terms of this Agreement . It is further understood and agreed that the successful consummation of this Agreement and the development of the Subject Property is in the best interests of all the parties and requires their continued cooperation. The City, Owner, and Developer shall do all things necessary or appropriate to carry out the terms and provisions of this Agreement and to aid and assist each other in carrying out the terms and objectives of this Agreement and the intentions of the parties as reflected by said terms, including, without limitation, the giving of such notices, the holding of such public hearings, the enactment by the City of such resolutions and ordinances, and the taking of such other actions as may be necessary to enable the parties ' compliance with the terms and provisions of this Agreement and the intentions of the parties as reflected by said terms . The City, Owner, and Developer shall act in good faith, reasonably and promptly, with respect to all consents, approvals, and actions required or requested of it or taken by it hereunder or in connection with the development of the Subject Property. Whenever any approval , discretion, or consent of the City or of any of its -18- departments, officials, or employees is called for under this Agreement, the same shall not be unreasonably withheld, delayed, conditioned, or exercised. 41 . This Agreement shall insure to the benefit of, and be binding upon, the parties hereto, the successors in title of the Owner, and each of them, their respective successors, grantees, lessees, and assigns, and upon successor corporate authorities of the City and successor municipalities . 42 . This Agreement may be executed in any number of counterparts and duplicate originals, each of which shall be deemed an original , but all of which shall constitute one and the same instruments . 43 . This Agreement constitutes a covenant running with the land composing the Subject Property, binding upon the parties hereto, the successors in title of the Owner and each of them, all grantees, successors, and assigns of the respective parties hereto, including successor corporate authorities and successor municipalities of the City. The City may record a Memorandum of Development Agreement placing of record the terms, provisions and obligations of this Agreement . 44 . In the event any phrase, paragraph, article or portion of this Agreement is found to be invalid or illegal by any court of competent jurisdiction, such finding of invalidity as to that portion shall not affect the validity, legality or enforceability of the remaining portions of this Agreement . 45 . The Owner and/or Developer and the Owner ' s and/or Developer' s successors in interest shall not 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 . 46 . It is agreed that in the event the Owner and/or Developer or any of their successors in interest , propose to amend the PMFR Multiple Family Residence District zoning ordinance referred to in paragraph 3 of this Agreement, then any such proposed rezoning or amendment to such zoning ordinance shall require the amendment of this Agreement upon the terms and conditions which are acceptable to the City, in the City' s sole discretion. However, with respect to the requirement of the then record owner ' s signature, only the written approval of the legal titleholder of the interest in the property affected by the amendment shall be required to affect the initiation of a proposed amendment to this Agreement . -19- 47 . In consideration of the City' s consent and agreement (hereby given) to allow the Developer to locate sanitary sewer lines, water mains, or stormwater lines outside the pavement areas in the parkway portion of the public right-of-way, 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 the lessor of (i) $470 . 31 per dwelling unit or (ii) 50% of the actual savings enjoyed by the Developer (as documented to the City' s reasonable satisfaction) by locating sanitary sewer lines, water mains, or stormwater lines outside the pavement areas in the parkway portion of the public right-of-way. Notwithstanding the forgoing, or anything else to the contrary in this paragraph or this agreement , in the event the City Engineer determines that physical constraints prohibit the location of such utilities in certain areas of the unpaved portion of the parkway portion of the public right-of-way, the City Engineer may direct the developer to locate utilities in such areas to be located under the pavement in the public right-of-way. In such event the proceeding figure of $470 . 31 of the City' s share of cost savings shall be recalculated as approved by the City Engineer to reflect the additional costs, if any, incurred by the Developer in locating such portions of the utilities under the pavement in the public rights-of-way. IN WITNESS WHEREOF, the Elgin Corporate Authorities and Developer 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. CITY OF ELGIN, a municipal Valley Creek of Elgin, Inc . corporation By By Mayor Attest : Mark Avenue West, LLC By City Clerk F:\Legal Dept\Agreement\Development Agr-Valley Creek&Mark Ave-WAC-Final-10-5-05.doc -20- EXHIBITS Exhibit A: Legal Description of Subject Property Exhibit B : Legal Description of Annexation Property Exhibit C : Annexation Plat Group Exhibit D : 2 PMFR Zoning Ordinances, PCF Zoning Ordinance and Resolution Approving Preliminary Plat of Subdivision Exhibit E: Preliminary Plat of Subdivision Exhibit F : Preliminary Engineering Plans Exhibit F-1 : City Engineer' s Listing of Additional Corrections to Preliminary Engineering Plans Exhibit G: Calculation of Impact Fees and Contributions under Current Ordinances and Policies Exhibit H: 12 . 5 acre park site Exhibit I : Building Elevations for Residential Structures -21- EXHIBIT F-1 VALLEY CREEK TOWNHOME OCTOBER 4 , 2005 LISTING OF FUTURE REVISIONS TO PRELIMINARY PLANS 1 . All storm sewers and associated structures located outside the limits of dedicated right-of-way, including those in the 12 . 5 acre Park Site and common areas, shall be owned and maintained by the Homeowners Association. 2 . All storm sewers located within the dedicated right-of-way of Fletcher Drive and Mark Avenue shall be accepted and maintained by the City of Elgin. All catchbasins on Fletcher Drive and Mark Avenue shall be a minimum four foot diameter pre-cast structure and shall be separated from the main line storm sewer. The private storm sewers shall not pass through publicly owned catchbasins . 3 . The publicly owned curb and gutter and sidewalk along Mark Avenue shall extend through all private streets . All private streets shall include a concrete drive approach between the public curb and gutter and sidewalk along Mark Avenue . 4 . Each townhome shall have an external connection to a Homeowners Association owned and maintained sanitary and water service . Each townhome shall include an overhead sewer system and a cleanout located a minimum of two feet outside the units foundation. 5 . The removal of the old Randall Road pavement shall include proper disposal of the material . Portions to be converted to turf areas shall be restored with a minimum of six inches of topsoil, proper seeding and erosion protection. 6 . All water main and sanitary sewer to be located outside the limits of dedicated right-of-way shall include a specific easement dedicated solely for that utility. -22-