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07-302
Resolution No. 07-302 RESOLUTION AUTHORIZING EXECUTION OF A THIRD AMENDMENT TO ANNEXATION AGREEMENT WITH THE TRADITIONS AT FITCHIE CREEK, L.L.C. (The Glen Subdivision-1100 Nolan Road) WHEREAS, the owners of certain property commonly known as The Traditions at Fitchie Creek at 1100 Nolan Road have proposed that the annexation agreement between the owners and the City of Elgin concerning said property be amended; and WHEREAS, after due notice as required by law,a public hearing on said proposal was held by the corporate authorities of the City of Elgin; and WHEREAS,the proposed Third Amendment to Annexation Agreement with The Traditions at Fitchie Creek is in the best interests of the City of Elgin. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Ed Schock, Mayor, and Diane Robertson, City Clerk, be and are hereby authorized and directed to execute, on behalf of the City of Elgin, the Third Amendment to Annexation Agreement with The Traditions at Fitchie Creek, LLC, a copy of which is attached hereto. s/Ed Schock Ed Schock, Mayor Presented: December 5, 2007 Adopted: December 5, 2007 Omnibus Vote: Yeas: 7 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk 11/29/07 THIRD AMENDMENT TO ANNEXATION AGREEMENT (The Glen Subdivision) THIS THIRD AMENDMENT AGREEMENT is made and entered into this 5th day of December,2007,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 THE TRADITIONS AT FITCHIE CREEK, LLC, an Illinois limited liability company, successor in interest to the Traditions of Fitchie Creek, LLC(hereinafter referred alternatively as the"Owner"or "Developer"). WHEREAS, Owner is the owner of record of the real property commonly known as 1101 Nolan Road and legally described in Exhibit"A",which is attached and made a part hereof(which real property, for convenience, is hereafter referred to as the "Subject Property"); and WHEREAS, the City entered into a certain annexation agreement for the Subject Property bearing the date of June 29,2001 with Union National Bank and Trust Company of Elgin,as Trustee under Trust Agreement dated March 10, 1992, and known as Trust No. 1395 (the "Annexation Agreement"); and WHEREAS,the City and the Owner of record of the Subject Property thereafter entered into a first amendment to the Annexation Agreement for the Subject Property with such first amendment bearing a date of February 11, 2004 (the "First Amendment"); and WHEREAS,the City and the Owner of record of the Subject Property thereafter entered into a second amendment to the Annexation Agreement for the Subject Property with such second amendment bearing a date of December 1, 2004 (the "Second Amendment"); and WHEREAS, Owner, THE TRADITIONS AT FITCHIE CREEK, LLC, is successor in interest to the previous owners of record of the Subject Property; and WHEREAS, the Owner has filed a petition with the City to further amend the Annexation Agreement for the Subject Property and the zoning ordinances for the Subject Property and replace the Annexation Agreement,the First Amendment and the Second Amendment in their entirety with this Third Amendment Agreement; and WHEREAS, the City and the Owner acknowledge and agree that the Subject Property has previously validly been annexed to the City; and WHEREAS,the Mayor and City Council of the City(Corporate Authorities)have duly set a time,date and place for a public hearing on this Third Amendment Agreement,and have caused due notice to be made of said public hearing through publication in the Daily Courier News,a newspaper with general circulation in the community, and the City has held such public hearing; and 1 WHEREAS, pursuant to notice as required by statute and ordinance public hearings were held by the Planning and Development Commission and the Zoning Subdivision Hearing Board,as applicable, of the City on the requested zoning of the Subject Property. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, and other good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows: 1. This Third Amendment 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.), and in the exercise of the home rule power of the City. The foregoing recitals are incorporated herein as fully set forth herein. The Annexation Agreement,the First Amendment and the Second Amendment are hereby amended in their entirety and replaced in their entirety with this Third Amendment Agreement. The Annexation Agreement,the First Amendment and the Second Amendment are of no further force or effect. The terms and conditions of this Third Amendment Agreement shall control. 2. Intentionally Omitted. 3. A. Immediately after the entry into and execution of this Third Amendment Agreement the Corporate Authorities shall pass or adopt the following ordinances and resolution: i. an ordinance zoning the portion of the property depicted in the zoning exhibit prepared by the Lannert Group dated last revised January 3, 2007, (the "Zoning Exhibit") attached hereto in Group Exhibit C-1 in the PSFR2 Planned Single Family Residence District in the form attached hereto in Group Exhibit C-1. ii. an ordinance zoning the portion of the property depicted in the Zoning Exhibit attached hereto in Group Exhibit C-2 in the PSFR2 Planned Single Family Residence District for the age restricted Single Family Residence District in the form attached hereto as Exhibit C-2. iii. an ordinance zoning the portion of the property depicted in the Zoning Exhibit attached hereto in Group Exhibit C-3 in the PMFR Planned Multiple Family Residence District in the form attached hereto as Exhibit C-3. iv. an ordinance zoning the portion of the property depicted in the Zoning Exhibit attached hereto in Group Exhibit C-4 in the PCF Planned Community Facility District in the form attached hereto in Group Exhibit C-4. v. a resolution approving the preliminary site plan and preliminary plat of subdivision for the Subject Property prepared by The Lannert Group, dated last revised January 3, 2007, (hereinafter referred to alternatively as the 2 "Preliminary Plat of Subdivision","Development Plan"or"Development"),a copy of such Preliminary Plan and Plat being attached hereto as Exhibit D. B. Except as otherwise provided for in this agreement no changes or amendments in the zoning ordinance of the City which shall directly or indirectly adversely affect the use or development of the Subject Property shall be of any effect unless applicable to all comparable areas of the City. C. The Subject Property and the Development contemplated herein shall be developed in substantial conformance with the Preliminary Plat of Subdivision and the preliminary landscape plan prepared by The Lannert Group, last revised April 11, 2007. Engineering for the Subject Property and the Development contemplated herein shall be in substantial conformance with the preliminary engineering plans, prepared by Cowhey, Gudmundson, Leder, Ltd., dated last revised January 10, 2007, (hereinafter referred to as the"Preliminary Engineering Plans"), a copy of which are attached hereto as Exhibit E. The City and the Owner agree to make reasonable modifications to the Preliminary 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 maybe constructed on the Subject Property as contemplated in the Preliminary Plat of Subdivision. The parties agree that changes to planned developments provided for in Elgin Municipal Code Section 19.60.200, as amended, may be approved by the City's Development Administrator without public hearings and without formal amendment to this agreement. D. Developer shall be allowed to seek final approval for the subdivision of portions of the Subject Property as depicted in the Preliminary Plat of Subdivision and shall not be required to submit a final plat thereof as a single unit,but may submit for approval in accordance with applicable ordinances of the City such plats for phased development of the Subject Property as the Developer may determine, and as the City may approve. The City shall approve final plats of a planned development, subdivision or resubdivision as submitted if such plat or plats are consistent with(i) applicable ordinances, (ii)sound engineering practices,(iii)the Preliminary Plat of Subdivision and the Preliminary Engineering Plans, and (iv) the terms and conditions of this Agreement. E. Developer shall be responsible for the construction and installation of those on-site public improvements and utilities consisting of storm sewers, sanitary sewers,water mains, streets and appurtenant structures as are needed to adequately service the Subject Property in accordance with applicable City ordinances and requirements and as are depicted on the Preliminary Engineering plans for the Subject Property. Except as otherwise specifically provided herein, public improvements shall be required only for those areas which are included in each final plat or plats of planned unit development, subdivision, or resubdivision except for such off-site public improvements, including but not limited to water main loops, sanitary sewer facilities, and storm water management facilities as the City may reasonably require based upon generally accepted engineering standards. Adequate security as provided by law shall also be furnished by Developer for any such improvements. Developer shall dedicate to the City, and, the City shall accept, all 3 municipal utility easements, including water, sanitary sewer, and storm sewer easements to detention/retention facilities, if any, included in each phase of the project and shall also grant easements to applicable utility companies for gas, electric, telephone, and cable television; all of such easements and facilities shall be consistent with the City ordinances and practices regulating condition, placement, use and size of easements. F. Notwithstanding anything to the contrary in this agreement,prior to the development of that portion of the property in the PMFR Planned Multiple Family Residence District the Owner and/or Developer of the Subject Property shall be required to submit a development plan to the City for a public hearing and City Council approval pursuant to the provisions of Chapter 19.60,Planned Developments, of the Elgin Municipal Code, as amended, to include the items required by Chapter 19.60 and architectural elevations, building plans and proposed building materials. 4. Owner represents that no additional off-site utility easements are required to service the Subject Property. 5. A. Owner and 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, in consideration of the development of a portion of the Subject Property for the congregate care use,the City agrees that that portion of the Development in Exhibit B identified and zoned as PMFR Planned Multiple Family Resident District for the intended purpose of providing a congregate care use, shall be treated in the same manner as a hospital or nursing home with respect to impact fees and shall be exempt from the(a)the school district capital improvement development impact fee provided for in Elgin Municipal Code Section 17.04.010,(b)the school site development impact fee provided for in Elgin Municipal Code Section 17.04.020, (c) the library district capital improvement contribution provided for in Elgin Municipal Code Section 17.04.040, and (d) the park capital improvement contribution. For that portion of the development contemplated in Exhibit B and zoned for Planned Single Family Residence District use without a covenant for age restriction, Owner shall pay to the City(a) a school district capital improvement contribution and a school district transition fee according to the formula set forth in Exhibit F attached hereto in lieu of the school district capital improvement development impact fee provided for in Elgin Municipal Code 17.04.010,(b)the school site development impact fee pursuant to Elgin Municipal Code Section 17.04.020 and (c) a library district capital improvement contribution according to the formula attached hereto as Exhibit F in lieu of the library district capital improvement fee provided for in Elgin Municipal Code Section 17.04.040. Such school district capital improvement contribution, school district transition fee and library district capital improvement contribution shall be paid on a per unit basis(per single family dwelling unit)prior to or concurrent with the issuance of a building permit. For that portion of the development contemplated in Exhibit B and zoned for Planned Single Family Residence use with a covenant for age restrictions, Owner shall not be required to pay to the City (a) the school district capital improvement development impact fee provided for in Elgin Municipal Code Section 17.04.010,(b) the school site development impact fee provided in Elgin Municipal Code Section 17.04.020, but shall be required to pay to the City a library district capital improvement contribution according to the formula attached hereto as Exhibit E in lieu of the library district capital improvement fee 4 provided for in Elgin Municipal Code Section 17.04.040. Such library district capital improvement contribution shall be paid on a per unit basis(per single family residence)prior to or concurrent with the issuance of a building permit. For all property identified as PSFR2 Planned Single Family Residence District, whether with or without the covenant for age restrictions,the Owner shall also comply with City of Elgin Ordinance No. G2-02, as amended, and Ordinance No. G3-02, as amended, and pay to the City the park capital improvement contribution and the public safety building capital contribution as required therein. Owner/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 amend the Second Amendment Annexation Agreement for the Subject Property. Owner/Developer further agree that the contemplated fees and cash contributions to the City for the improvements or undertakings which may ultimately be constructed or performed 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 or undertakings 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 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, contributions, recaptures and/or reimbursements provided for in this paragraph and/or 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,contributions,recaptures and/or reimbursements provided for in this paragraph and/or in this Agreement, as same may be amended by the City, and hereby agree and covenant on behalf of themselves and their successors,assigns and grantees of their properties not to sue the City or maintain any legal action or other defense against the City with respect to such fees,contributions, recaptures and/or reimbursements. B. The calculation of the City's impact fees and contributions under current ordinances and policies is attached hereto as Exhibit F. Notwithstanding anything to the contrary in this Agreement,it is agreed and understood that the Subject Property and the Owner and Developer and their successors and assigns shall be subject to and shall be required to pay any and all new and/or increased fees or other contributions adopted by the City. Owner and Developer on behalf of themselves and their successors,assigns and the grantees of their properties,hereby acknowledge the propriety,necessity and the legality of any such new and/or increased fees or other contributions and do further hereby agree and do waive any and all rights to any and all legal or other challenges or defenses to any such new and/or increased fees and/or contributions and hereby agree and covenant on behalf of themselves and their successors, assigns and grantees of their properties not to sue the City or maintain any legal action or other defense against the City with respect to any such new and/or increased fees and/or contributions. Notwithstanding anything to the contrary in this agreement,is it further agreed and understood that in no event and under no circumstances shall the Owner and/or Developer and/or their successors and assigns pay fees and/or other contributions less than the amounts in effect as of the entry into this agreement. Nothing herein prevents the Developer from prepaying any impact fees in order to avoid subsequent impact fee increases. 6. Owner and Developer agree that, except as otherwise specifically set forth below in this Agreement or in the Preliminary Plat of Subdivision attached hereto as Exhibit B, the Subject 5 Property shall be developed in conformance with any applicable open space policies included in the Comprehensive Plan and Design Guidelines for the City of Elgin adopted February 9,2005,pursuant to Ordinance No. G18-05, and which is incorporated herein by reference. 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. 7. Owner and Developer shall cause all portions of Subject Property depicted on the Preliminary Plat of Subdivision as wetlands, screening berms and entry ponds, common open space area, storm water retention areas, and dry detention areas either to be retained by Owner or to be conveyed to a Property Owners Association or associations consisting of the owners of all property located in areas designated by Owner;unless said areas are to be dedicated for public ownership and maintenance at the City's request. A Declaration or Declarations of Covenants, Conditions and Restrictions requiring that the Association or associations own and maintain areas conveyed thereto shall be submitted to City for review and approval prior to final plat approval, said Declaration to be filed for recording, at Owner's expense, with the final plat of the applicable phase of Subject Property as Owner may determine. 8. Except as specifically permitted pursuant to variation or planned development approval,or paragraphs 9 and 10 of this Agreement, all aspects of the development and use of the Subject Property and construction and installation of improvements thereon,both on-site and off-site, shall comply fully with all applicable City ordinances and codes. 9. 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 paragraph shall not apply to any changes and/or increases in fees and or contributions imposed by the City. 10. If, during the term of this Agreement, any existing, amended, modified or new ordinances, codes or regulations affecting the zoning,subdivision,development,construction of improvements, buildings or appurtenances or other regulatory ordinances regarding the public health, safety and welfare are amended or modified in any manner to impose less restrictive requirements on the development of, or construction upon, properties within the City, then the benefit of such less restrictive requirements shall inure to the benefit of Owner, and anything to the contrary contained herein notwithstanding, Owner may elect to proceed with respect to the development of, or construction upon, the Subject Property upon the less restrictive amendment or modification applicable generally to all properties within City. 11. 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 recapture and/or reimbursement 6 ordinances heretofore or hereinafter adopted by the City,and with payment of all applicable fees. At Owner's expense, City agrees to cooperate with Owner in obtaining all necessary Illinois Environmental Protection Agency(IEPA)permits required for such sanitary sewer systems and tie- ins. Owner shall bear all costs for extensions, tie-ins, and permits consistent with applicable City ordinances. Owner shall be responsible for the extension of sewer lines to the far edges of the Subject Property subject to review and approval by the City Engineer. Owner shall install sewer line extension improvements on the Subject Property in compliance with the Final Engineering Plan approved by the City Engineer for each phase of the development. 12. 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 recapture and/or reimbursement ordinances heretofore or hereinafter adopted by the City, 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(IEPA)permits required for such water main extensions and tie-ins. Owner shall bear all costs for extensions,tie-ins and permits consistent with applicable City ordinances. Owner shall be responsible for the extension of water mains to the far edges of the Subject Property subject to review and approval by the City Engineer. Owner shall install water line extension improvements on the Subject Property in compliance with the Final Engineer Plan approved by the City Engineer for each phase of the development. 13. Upon review and recommendation by the City Engineer, the City Council shall accept all public rights-of-way and improvements located thereon,sanitary sewers, storm drainage sewers and water mains lying within public rights-of-way or public easements on the Subject Property. Any improvements located in private rights-of-way shall be installed in easements dedicated for and acceptable to the City. The sewer and water service lines(from the buffalo box to the residential or commercial unit, as the case may be) shall not be owned or maintained by the city. Owner shall replace or repair damage to public improvements installed within, under or upon the Subject Property resulting from construction activities by Owner and its employees,agents,contractors and subcontractors prior to final acceptance by the City,but shall not be deemed hereby to have released any such other part from liability or obligations in this regard. Acceptance of public improvements by the City shall be consistent with applicable City ordinances. 14. 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$2,093.45 per dwelling unit. In recognition of the nature of the congregate care use of that portion of the Subject Property to be zoned for PMFR Planned Multiple Family Residence District, the parties have agreed that such portion of the development shall be exempt from such roadway contribution fee of Ordinance No. G20-03. In recognition of the active adult use of the portion of the property zoned PSFR2 Planned Single Family Residence District subject to age restriction covenants,the parties have agreed to a reduced roadway contribution fee for such portion of the Subject Property. Developer shall pay to the City a cash contribution for roadway improvements in the amount of$1,046.72 for each dwelling unit to be constructed on such portion of the Subject Property. The contribution for roadway improvements shall be payable by the Owner to 7 the City prior to the issuance of a building permit for each dwelling unit on the Subject Property. With the sole exception of the elimination of a cash contribution for roadway improvements for that portion of the Property zoned PMFR Planned Multiple Family Residence District and the reduction of the cash contribution for roadway improvements for that portion of the Property zoned PSFR2 Planned Single Family Residence District with covenants for age restriction, the provisions of Ordinance No. G20-03 shall otherwise apply to the Owner and to the development of the Subject Property. Owner and Developer agree to and shall pay such contributions to the City as provided for in Ordinance G20-03 when due as required therein. Owner and Developer hereby represent and agree that they are contributing such roadway improvement contributions to the City as an inducement to the City to annex the Subject Property. Owner and Developer further agree that the contemplated cash contributions to the City for roadways and the road improvements which may ultimately be constructed by the City with such cash contributions are acknowledged and agreed to be specifically and uniquely attributable to the future development of the Subject Property and the public improvements contemplated by such cash contributions would not otherwise be anticipated by the City absent the annexation of the Subject Property. 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 roadway improvement contributions as provided for herein and do hereby further agree and do waive any and all rights to any and all legal or other challenges or defenses to such roadway contribution and hereby agree and covenant on behalf of themselves and their successors,assigns and the grantees of their properties,not to sue the City or maintain any legal action or defense against the City with respect to such roadway contributions. Said roadway contributions shall be paid on a per unit basis (per building) concurrent with the issuance of a building permit. 15. All structures to be constructed on the Subject Property shall be designed, constructed and maintained in conformance with the requirements of the planned development ordinance(s) enumerated in paragraph 3 hereof. All structures in the PSFR2 Planned Single Family Residence zoning district on the Subject Property with no age restriction shall also be designed and constructed in conformance with the building elevations prepared by Roth Architects dated July 14, 2006, attached hereto in Group Exhibit G and all structures in the PSFR2 Planned Single Family Residence Zoning District on the Subject Property with an age restriction shall also be designed and constructed in conformance with the building elevations prepared by Roth Architects dated January 10, 2007, also attached hereto in Group Exhibit G (collectively the "Building Elevations"). Declaration of Covenants, Conditions and Restrictions referred to in Paragraph 49 hereof(the"Private Covenants") also include and incorporate the design and construction requirements of the planned development ordinances and the Building Elevations for the Subject Property. 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. 16. This Agreement shall be enforceable in any court of competent jurisdiction by any of the parties or by an appropriate action at law or in equity to secure the performance of the covenants herein contained. Notwithstanding the foregoing,or anything else to the contrary in this agreement, no action shall be commenced by the Owner and/or Developer, or any of their successors and/or assigns, against the City, its officials, officers, employees, agents, attorneys or any other related 8 entity of person, for monetary damages. 17. This Annexation Agreement shall be in effect for a period of twenty(20)years from the date of June 29, 2001 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. 18. Owner shall be responsible for costs associated with filing and recording of the plat of annexation and any plat or plats of subdivision or planned development for the Subject Property. 19. If any provision of this Agreement is held invalid by a court of competent jurisdiction or in the event such a court shall determine that the City does not have the power to perform any such provisions, such provisions shall be deemed to be excised herefrom and the invalidity thereof shall not affect any of the other provisions contained herein. Such judgment or decree shall relieve the City from performance under such invalid provision of this Agreement. 20. This Agreement can be amended,in writing,at any time,by the mutual consent of all parties to this Agreement, in the manner provided by law. 21. After the annexation of the Subject Property to the City, it is agreed that the City shall create and establish a Special Service Area for the Subject Property pursuant to 35 ILCS 200/27-5,et seq., as amended,to provide the City with the source of revenue for maintaining,repairing,reconstructing or replacing the stormwater drainage system, detention and retention areas, special management areas or other improvements located on the Common Area of the Subject Property should the Owner or the property owners association owning the land on which such facilities or improvement are located fail to perform maintenance,repair, reconstruction or replacement in accordance with City ordinances or other applicable requirements of law. The Owner and any of the Owner's 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. 22. All portions of the Subject Property which are zoned PCF Planned Community Facility District shall be owned by one or more Property Owners Associations established by Developer. 23. 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. 24. Except as may be required pursuant to the Kane County stormwater management ordinance, the City shall issue no stop orders directing work stoppages on buildings or parts of the Subject Property without setting forth the alleged violations in writing, and Developer shall forthwith 9 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. 25. The City agrees to issue, within a reasonable time after initial submission, review, and approval of building construction plans, and the payment of required building permit fees and all other applicable fees, all necessary building and other permits for the construction of any and all improvements on the Subject Property or issue a letter of denial within said period of time informing Developer and the applicant as to wherein the application does not conform to the stated section of the Code. The 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. 26. The City agrees to issue Certificates of Occupancy within a reasonable time(which,in any event, shall not exceed 10 business days) after application or to issue a letter of denial within said period of time informing Developer and the individual or entity to whom the building permit was issued specifically as to those corrections necessary as a condition to the issuance of a Certificate of Occupancy and quoting the section of the Code relied upon by the City in its request for correction. The City agrees that Certificates of Occupancy(temporary or permanent,as the case may be)shall be issued upon (a) proper application of the appropriate party, (b) compliance with all applicable building codes, zoning ordinance requirements and other applicable requirements of law, and (c) receipt and approval by the City of a performance bond (or a suitable alternative such as an irrevocable letter of credit or a cash deposit)covering one hundred twenty-five(125%)percent of the cost of any incomplete site work. The City shall allow one master bond at a mutually agreed upon amount to cover any incomplete work for multiple numbers of dwelling units,which amount shall be increased in the event the City determines that the amount of the bond is insufficient. 27. A. Except with respect to the construction of the off-site sanitary sewer,it is understood that prior to the construction of any streets or any other public improvements,Developer shall submit the required plans, final plat,specifications and 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. 10 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. 28. 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. 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 one (1) construction trailers and two (2)material storage trailers for each of the single family and multiple family portions of the project to be developed on the Subject Property. 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. 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, and without any liability to the City, to construct and maintain two (2) model home area(s) and associated sales office(s),one in each of the single family product areas,with a maximum of five(5)model homes in each such model home area ("Model Areas") for each of the single family and multiple family 11 portions of the project to be developed on the Subject Property; to construct and maintain other appurtenant facilities for said model units,including a temporary sales office marquee,a temporary entry sale sign on the Subject Property near Nolan Road naming each of the three neighborhoods within the Project, temporary sale signs at the entry to each of the three neighborhoods on Prairie Sedge Drive, temporary directional signs and temporary water and 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 or his designee are satisfied that access to the Model Areas is safe and adequate. If, at the time the use of the models is commenced,weather conditions will not permit the paving of the access drive and parking areas for such models, access and parking may be stone or gravel and paving shall occur when weather conditions permit. The Developer shall have the right to use the sales trailers and temporary sales signage for each residential neighborhood for the purpose of its sales activities until sales are completed in each neighborhood of the Subject Property. 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 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 in this paragraph 30 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. To the full extent permitted by law, Owner and Developer, on behalf of themselves and each of their successors, assigns and grantees of the Subject Property agree to and shall indemnify, defend and hold harmless the City, its officials, officers, employees, attorneys, agents, boards and commissions from and against any and all claims,suits,judgments,costs,attorney's fees, expert witness fees and expenses,damages or other relief,in any way resulting from or arising out of or alleged to be resulting from or arising out of or alleged to be resulting from or arising out of the model homes, Model Areas, associated sales offices, and/or the use thereof. In the event of any action against the City, its officials, officers, employees, attorneys, agents,boards or commissions covered by the foregoing duty to indemnify,defend and hold harmless,such action shall be defended by legal counsel of the City's choosing, the cost of which shall be paid for by the Owner and the Developer. 12 E. At such time as the City has approved building plans for any model of a dwelling unit (including extras or options), the same shall constitute a "master approval" of the plans for such model. Thereafter, subsequent building permit applications for any model which conforms to the plans for which a master approval has been made shall include documentation customarily required for building permit applications but shall not be required to include additional copies of building plans. The Developer shall provide the city with sufficient copies of plans for which master approval has been given, for use in the field as dwelling units are constructed. Nothing contained herein shall relieve Developer from the obligations to pay permit fees for each dwelling unit for which a building permit is sought. 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. Owner shall pay(or reimburse the City for 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). If such amount has not already been paid by the Owner to the City, Owner shall deposit with the City within fourteen (14) days of the execution of this Third Amendment Agreement 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 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, is to be based, the City and the Owner 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. 13 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. This Agreement is adopted pursuant to the provisions of the Illinois Municipal Code; provided,however,that any limitations in the Illinois Municipal Code in conflict with the provisions of this Agreement shall not be applicable, and as to all such provisions the City hereby exercises its powers pursuant to the provisions of Article VII, Section 6 of the Constitution of the State of Illinois. Simultaneously with the annexation of the Subject Property and without further public hearings,the City agrees, to the extent it may lawfully do so, to adopt such ordinances as may be necessary to effectuate the use of its home rule powers. City recognizes and agrees that the entry into this Agreement, the annexation of the Subject Property to the City, and the zoning of the Subject Property as set forth in Paragraph 3 hereof,are upon the express reliance by Developer that the terms and provisions of this Agreement shall be valid for the term set forth in Paragraph 17 hereof and that the City shall take no action which shall in any way be contrary to, or inconsistent with, the terms and provisions of this Agreement. 36. 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. 37. 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 to a different Developer 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 to a different Developer shall devolve upon and be assumed by such Developer, 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. 38. 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 14 With a copy to: City of Elgin 150 Dexter Court Elgin, Illinois 60120 Attention: Corporation Counsel If to Owner/Developer: The Traditions at Fitchie Creek, LLC c/o Commonwealth Realty Advisors, Inc. 20 S. Clark Street, Suite 3000 Chicago, IL 60603 Attn: Mark Kirincich With a copy to: Early, Tousey, Regan, &Wlodek 2400 Big Timber Road, Suite 201A Elgin, Illinois 60123 Attn: John E. Regan 39. 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. 40. 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. 41. 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. 42. This Agreement shall insure to the benefit of, and be binding upon, the parties hereto, the successors in title of the Developer,and each of them,their respective successors,grantees,lessees, and assigns, and upon successor corporate authorities of the City and successor municipalities. 43. 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. 15 44. This Agreement constitutes a covenant running with the land composing the Subject Property,binding upon the parties hereto,the successors in title of the Developer and each of them, all grantees, successors, and assigns of the respective parties hereto, including successor corporate authorities and successor municipalities of the City. The City may record a memorandum of annexation agreement placing of record the terms, provisions and obligations of this Agreement. 45. 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. 46. The Owner and/or Developer and any of the Owner 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 de- annexation of the Subject Property from the City of Elgin during the term of this Agreement. Without limiting the foregoing, the Owner and Developer on behalf of themselves and any of their successors in interest hereby waive any and all rights, statutory or otherwise, to disconnect the Subject Property from the City of Elgin. 47. It is agreed and understood that the City may adopt an ordinance prohibiting parking on any public streets to be conducted on the Subject Property each day from 2:00 a.m. to 6:00 a.m. In the event the City so elects to adopt such an ordinance so restricting parking on public streets on the Subject Property ,the Developer at its costs shall provide for and install signage throughout the Subject Property as directed by the City Engineer. 48. It is agreed that in the event the Owner and/or Developer and/or any of the Owner and/or Developer's successors in interest, propose to amend the zoning ordinances referred to in Paragraph 3 of this Agreement, above, then any such proposed rezoning or amendment to such zoning ordinances shall require the amendment of this Agreement upon the terms and conditions which are acceptable to the City, in the City's sole discretion. However, with respect to the requirement of the 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 effect the initiation of a proposed amendment to this Agreement. 49. Attached hereto as Group Exhibit H and incorporated herein by reference are documents entitled (1) "The Traditions at Fitchie Creek Master Declaration of Covenants, Conditions and Restrictions, Elgin, Illinois," (2) "The Traditions at Fitchie Creek Unit 1 Declaration of Covenants, Conditions and Restrictions, Elgin, Illinois," and (3) "The Traditions at Fitchie Creek Unit 2 Declaration of Covenants and Restrictions, Elgin, Illinois" (collectively the "Private Covenants"). Owner agrees to record the Private Covenants for the Master Declaration and the subject unit of the final plat simultaneously with recording of the first Final Plat of Subdivision of the project to be recorded. All structures (including, without limitation, garages) on the Subject Property shall be designed, constructed and maintained in compliance with the planned development ordinances for the Subject Property,the Building Elevations and the Private Covenants. In the event of any conflict between the planned development ordinances,the Building Elevations and the Private Covenants, the planned development ordinances shall control. The Private Covenants for Unit 2 include age 16 restrictions for occupants within the PSFR2 Planned Single Family Residence District with an age restriction covenant(Unit 2). The Master Declaration for Unit 3 for the portion of the development identified and zoned in the PMFR Planned Multiple Family Residence District for the intended purpose of providing a congregate care use (Unit 3) include restrictions for occupants relating to persons requiring assistance with Activities of Daily Living (ADL) as defined therein and age restrictions for occupants within the PMFR Planned Multiple Family Residence District(Unit 3). No dwelling unit in the PSFR2 Planned Single Family Residence District with the age restriction covenant or within the PMFR Planned Multiple Family Residence District for the congregate care use shall be occupied by any person contrary to the age restriction and other occupancy restrictions set forth in the Private Covenants. The Private Covenants may be modified or amended by the Owner but as to any proposed amendments or revisions to the Private Covenants effecting building design issues(including,but not limited to lot size,square footage of buildings,building materials or garage design) or the age or other occupancy restrictions, then any such proposed amendments or revisions to the Private Covenants shall require the City's approval and shall require all the amendment of this Agreement upon the terms and conditions which are acceptable to the City,in the City's sole discretion. 50. The Owner agrees to pay the City the sum of$3,810 per dwelling unit for each of the 54 detached single family homes with an age restriction (Unit 2) and for each of the 150 units in the congregate care facility(Unit 3) for a total amount of$777,240 in mitigation of the impact of this project on the City's infrastructure (the"Infrastructure Impact Fee"), for use by the City for public purposes as determined by the City in its sole discretion and as provided in Paragraph 51 below, payable on a building permit by building permit basis. Because of the costs of providing for and oversizing the Offsite Sanitary Sewer Line, the Onsite Sanitary Sewer Line and the South Water Main referred to in Paragraph 51 below,the City shall permit the Owner to apply this infrastructure impact fee to the costs for constructing such Offsite Sanitary Sewer Line,Onsite Sanitary Sewer Line and South Water Main. The City and not the Owner shall be entitled to any recapture for such Infrastructure Impact Fee. Owner further hereby acknowledges the propriety,necessity and legality of the fees and contributions provided for in this paragraph and does hereby agree to and does waive any and all rights to any and all legal challenges or defenses to such fees and/or contributions and hereby agrees and covenants on behalf of itself and its successors,assigns and grantees of the Subject Property not to sue the City or maintain any legal action or defense against the City with respect to any challenges of such fees and/or contributions. 51. It is acknowledged that the Owner (and/or its successors in interest) has previously constructed an offsite sanitary sewer connecting the Otter Creek's lift station to the Subject Property ("Offsite Sanitary Sewer Line"). It is further acknowledged that the Owner(and/or its successors in interest) has previously constructed an onsite sanitary sewer line extending sanitary sewer service through the Subject Property to Nolan Road (the "Onsite Sanitary Sewer Line"). It is further acknowledged that the Owner(and/or its successors in interest)has constructed a water line on the south portion of the Subject Property through the Subject Property to Noland Road on the west(the "South Water Main"). It is further acknowledged and agreed that the City has previously permitted the Owner and/or its successors in interest to apply the Infrastructure Impact Fee otherwise due and owing from the Owner to the City for costs associated with the construction and oversizing of the 17 Offsite Sanitary Sewer Line, the Onsite Sanitary Sewer, and the South Water Main. It is further acknowledged and agreed that the City has previously paid to the Owner and/or its successors in interest the amount of$500,000 which was a portion of the one million dollar oversizing payment referred to in the Annexation Agreement between the City and Bowes Creek LLC as partial reimbursement to the Owner and/or its successors in interest for oversizing costs for the Offsite Sanitary Sewer Line,Onsite Sanitary Sewer Line and South Water Main. It is agreed and understood that there will be and are no other or further reimbursements, recaptures or other payments due and/or owing the Owner and/or any of its successors in interest or any other related person or entity with respect to any costs, including, but not limited to, oversizing costs, for the Offsite Sanitary Sewer Line, the Onsite Sanitary Sewer Line, the South Water Main or any other utilities or improvements regarding the Subject Property. 52. The City and the Owner acknowledge that the improvements to the City's water system in the area of the Subject Property included the construction of a water main from Bowes Road extending southerly south of the unincorporated area at the northwest corner of the Subject Property then westerly to Nolan Road(the"North Water Main"). It is further acknowledged that Toll Brothers,a developer to the west of the Subject Property, has provided at its cost for the construction of the North Water Main pursuant to easements previously granted by the Owner or its successors in interest. Toll Brothers and the Owner or the Owner's successors in interest have previously entered into a reimbursement agreement dated October 24, 2006, whereby the Owner has agreed to reimburse Toll Brothers for the cost of the North Water Main. Owner agrees to and shall pay such reimbursement to the Owner for the costs of the North Water Main on or before the earliest of(a)the time the Owner ties into the North Water Main or(b) October 1, 2008. 53. To the fullest extent permitted by law, Owner and Developer agree to and shall indemnify, defend and hold harmless the City, its officials, officers, employees, attorneys, agents,boards and commissions from and against any and all third party claims, suits,judgments,costs,attorney's fees, expert witness fees and expenses,damages or other relief,in any way resulting from or arising out of or alleged to be resulting from or arising out of the existence of this Agreement, the provisions of this Agreement, the performance of this Agreement, the annexation of the Subject Property, the zoning of the Subject Property,the development approvals provided for in this Agreement and/or any other actions of the parties hereto provided for or arising from this Agreement. In the event of any action against the City, its officials, officers, employees, agents, attorneys, boards or commissions covered by the foregoing duty to indemnify, and defend and hold harmless, such action shall be defended by legal counsel of the City's choosing the cost of which shall be paid for by the Owner and Developer. Additionally, in the event of such third party action the Owner and Developer agree to the extent permitted by law to attempt to intervene in such proceedings and to join the City in the defense thereof. 54. Owner and Developer on behalf of themselves and their respective successors, assigns and grantees of their properties, hereby acknowledge the propriety, necessity and legality of all of the terms and provisions of this Agreement,including but not limited to,the zoning ordinances referred to in this Agreement and the various fees,contributions,recaptures and/or reimbursements provided for or referred to in this Agreement, and do further hereby agree and do waive any and all rights to 18 any and all legal or other challenges or defenses to any of the terms and provisions of this Agreement and hereby agree and covenant on behalf of themselves and their successors, assigns and grantees of their properties not to sue the City or maintain any legal action or other defenses against the City with respect to any challenges of the terms and provisions of this agreement. 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. CITY OF ELGIN, a municipal corporation THE TRADITIONS AT FITCHIE CREEK, LLC _ / :y: Workers Realty Trust, L.P. Mayor (As Successor to the Membership Interest of T.F.C. of Illinois, LLC under UCC proceeding) Attest: By: Commonwealth Realty Investors, LLC Its: General Partner By: Commonwealth Realty Advisors, Inc. City Clerk Its: Manager By: Mark R. Kirincich Its: President 19 EXHIBITS Exhibit A: Legal Description of Subject Property Exhibit B: Zoning Exhibit Exhibit C-1: PSFR2 Planned Single Family Residence District Zoning Ordinance Exhibit C-2: PSFR2 Planned Single Family Residence District Zoning Ordinance for the age restricted single family residence district Exhibit C-3: PMFR Planned Multiple Family Residence District Zoning Ordinance for the congregate care use Exhibit C-4: PCF Planned Single Family Community Zoning Ordinance District Exhibit D: Preliminary Plat of Subdivision Exhibit E: Preliminary Engineering Exhibit F: Current Impact Fees and Contributions Exhibit G: Building Elevations Exhibit H: Private Covenants 20 Exhibit A Legal Description of the Subject Property Residential Subdivision to be known as "Traditions at Fitchie Creek" is composed of certain real property legally described as follows: Parcel 1: That part of the southeast quarter of section 30, Township 41 North, Range 8 East of the Third Principal Meridian described as follows: Commencing at the point of intersection of the south line of Bowes Road as established by Document Number 563250 with the west line of said quarter, 832.22 feet; thence easterly along a line forming an angle of 105 degrees, 09 minutes, 59 seconds with the last described course (measured clockwise therefrom), 50.82 feet to the east line of Nolan Road as established by Document Number 1232476 from the point of beginning: thence continuing easterly along the extension of the last described course, 1738.30 feet: thence easterly along a line forming an angle of 165 degrees, 22 minutes, 54 seconds with the last described course (measured clockwise therefrom) 687.73 feet to the west line extended of a tract conveyed to Franz and Helga Stockman by Document Number 1574591: thence northerly along a line forming an angle 90 degrees, 00 minutes, 37 seconds with the last described course (measured clockwise therefrom) being said west line extended and parallel with the east line of said quarter. 34 feet to the north bank of Fitchie Creek: thence easterly northerly and southeasterly along the north bank of Fitchie Creek. 183 feet, more or less, to the west line of the easterly 127.28 feet of said quarter (measured along the north line of said quarter): thence southerly parallel with the east line of said quarter, 53 feet to a point that is 1369.00 feet southerly of the north line of said quarter: thence easterly parallel with the north line forming an angle of 89 degrees, 48 minutes, 21 seconds with the last described course (measured clockwise therefrom) 127.28 feet to the said east line; thence southerly along said east line, 1243.70 feet to the northerly line of a tract of land conveyed to the Commonwealth Edison Company by Document Number 1320007: thence northwesterly along said northerly line forming an angle of 63 degrees, 47 minutes,19 seconds with the last described course (measured conterclockwise therefrom). 2902.55 to the east line of Nolan Road; thence northerly along said east line Nolan Road forming an angle of 116 degrees, 37 minutes, 37 seconds with the last described course (measured counterclockwise therefrom), 399.44 feet to the point of beginning in Kane County, Illinois; also the entire right-of-way of Nolan Road which lies between the extensions of the northerly and southerly boundaries of the above described parcel. In Kane County, Illinois; Parcel 2: That part of the Southwest Quarter of Section 29, Township 41 North, Range 8 East of the Third Principal Meridian, described as follows: Beginning at the Southwest corner of said Southwest Quarter; thence North 00 degrees 21 minutes 57 seconds West along the West line of said Southwest Quarter 1291.49 EXHIBIT 1 A feet to a line that is 1369.0 feet, as measured perpendicular, South of and parallel with the North line of said Southwest Quarter; thence North 88 degrees 35 minutes 09 seconds East parallel with the North line of said Southwest Quarter, a distance of 931.50 feet to a line that is 931.34 feet, as measured perpendicular, East of and parallel with the West line of said Southwest Quarter; thence South 33 degrees 28 minutes 22 seconds West 555.76 feet; thence South 56 degrees 34 minutes 00 seconds East 706.28 feet; thence South 01 degree 33 minutes 47 seconds East 428.66 feet to the South line of said Southwest Quarter; thence South 88 degrees 26 minutes 13 seconds West along said South line 1218.00 feet to the Place of Beginning; said parcel of land herein described contains 28.60 acres, more or less, all in Elgin Township, Kane County, Illinois. 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DECORATIVE FENCE 0/JMIE%A ON�OOREFMFNT La ENTRY SIGN =k; �, FIOFYl: a ARBOR NEIGHBORHOOD SIGN \ D2-- Ordinance No. G71-07 AN ORDINANCE RECLASSIFYING TERRITORY FROM PMFR PLANNED MULTIPLE FAMILY RESIDENCE DISTRICT TO PSFR2 PLANNED SINGLE FAMILY RESIDENCE DISTRICT (The Glen Subdivision - 1101 Nolan Road) WHEREAS, the territory herein described has been annexed to the City of Elgin; and WHEREAS, written application has been made to reclassify said territory from the PMFR Planned Multiple Family Residence District to the PSFR2 Planned Single Family Residence District; and WHEREAS, after due notice in the manner provided by law the Planning and Development Commission conducted a public hearing concerning said application and has submitted its written findings and recommendations; and WHEREAS, the City Council of the City of Elgin, Illinois, has reviewed the findings and recommendations of the Planning and Development Commission. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS: Section 1. That Chapter 19.07, Section 19.07.600 entitled "Zoning District Map" of the Elgin Municipal Code, 1976, as amended, be and the same is hereby further amended by adding thereto the following paragraph: The boundaries herein before laid out in the `Zoning District Map', as amended, be and are hereby altered by including in the PSFR2 Planned Single Family Residence District, the following described property: Those areas on the attached zoning plat, prepared by the Lannert Group., dated January 3, 2007, designated in the PSFR2 Planned Single Family Residence District. Section 2. That the development of this PSFR2 Planned Single Family Residence District as described in Section 1 shall be developed subject to the following provisions: A. Purpose and Intent. The purpose and intent of this PSFR2 zoning district is to provide a planned urban residential environment of standardized moderate density for single family detached dwellings, subject to the provisions of Chapter 19.60 Planned Developments of the Elgin Municipal Code, 1976, as amended. The PSFR2 District is most similar to, but departs from the standard requirements of the SFR2 Single Family Residential District. EXHIBIT a -I B. Supplementary Regulations. Any word or phrase contained herein, followed by the symbol "[SR]", shall be subject to the definitions and the additional interpretive requirements provided in Chapter 19.90, Supplementary Regulations, of the Elgin Municipal Code, 1976, as amended. The exclusion of such symbol shall not exempt such word or phrase from the applicable supplementary regulation. C. General Provisions. In this PSFR2 zoning district, the use and development of land and structures shall be subject to the provisions of Chapter 19.05, General Provisions, of the Elgin Municipal Code, 1976, as amended. D. Zoning Districts - Generally. In this PSFR2 zoning district, the use and development of land and structures shall be subject to the provisions of Chapter 19.07, Zoning Districts, of the Elgin Municipal Code, 1976, as amended. E. Location and Size of District. This PSFR2 zoning district should be located in substantial conformance to the official comprehensive plan. The amount of land necessary to constitute a separate PSFR2 zoning district exclusive of rights-of- way, but including adjoining land or land directly opposite a right-of-way, shall not be less than two acres. F. Land Use. In this PSFR2 zoning district, the use of land and structures shall be subject to the provisions of Chapter 19.10, Land Use, of the Elgin Municipal Code, 1976, as amended. The following enumerated "land uses" [SR] shall be the only land uses allowed as a"permitted use" [SR] in this PSFR2 District: Residence Division. 1. "Single family detached dwellings" [SR] (UNCL). 2. "Residential garage sales" [SR] (UNCL). 3. "Residential occupations" [SR] (UNCL). 4. "Residential outdoor storage of firewood" [SR] (UNCL). 5. "Residential parking areas" [SR] (UNCL). Finance, Insurance, and Real Estate Division. 6. "Development sales office" [SR] (UNCL). Services Division. 7. "Family residential care facility" [SR] (8361). 8. "Home child day care services" [SR] (8351). Construction Division. 9. "Contractors office and equipment areas" [SR] (UNCL). Transportation, Communication, and Utilities Division. 10. "Radio and television antennas" [SR] (UNCL). 11. "Satellite dish antennas" [SR] (UNCL). 12. "Treatment, transmission, and distribution facilities: poles, wires, cables, conduits, laterals, vaults, pipes, mains, and valves" [SR] (UNCL). 2 Miscellaneous Uses Division. 13. "Fences and walls" [SR] (UNCL). 14. "Street Graphics" [SR] (UNCL), subject to the provisions of Chapter 19.50, Street Graphics, of the Elgin Zoning Ordinance. 15. "Temporary uses" [SR] (UNCL). 16. "Accessory structures" [SR] (UNCL) to the permitted uses allowed in this PSFR2 Planned Single Family Residence District, subject to the provisions of Section 19.12.500, Accessory Structures and Buildings, of the Elgin Zoning Ordinance. 17. "Accessory uses" [SR] (UNCL) to the permitted uses allowed in this PSFR2 Planned Single Family Residence District, subject to the provisions of Section 19.20.400, Component Land Uses, of the Elgin Zoning Ordinance. In this PSFR2 zoning district, the use of land and structures shall be subject to the provisions of Chapter 19.10, Land Use, of the Elgin Municipal Code, 1976, as amended. The following enumerated "land uses" [SR] shall be the only land uses allowed as a "conditional use" [SR] in this PSFR2 zoning district: Residences Division. 1. "Conditional residential occupations" [SR] (UNCL). Municipal Services Division. 2. "Municipal facilities" [SR] (UNCL) on a zoning lot containing less than two acres of land. Transportation, Communication, and Utilities Division. 3. "Amateur radio antennas" [SR] (UNCL). 4. "Commercial antennas and antenna structures mounted on existing structures" [SR] (UNCL). 5. "Commercial antenna tower" [SR] (UNCL). 6. "Other radio and television antennas" [SR] (UNCL). 7. "Other satellite dish antennas" [SR] (UNCL). 8. "Pipelines, except natural gas" (461). 9. "Railroad tracks" (401). 10. "Treatment, transmission and distribution facilities: equipment, equipment buildings, towers, exchanges, substations, regulators" [SR] (UNCL). Miscellaneous Uses Division. 11. "Planned developments" [SR] (UNCL) on a zoning lot containing less than two acres of land, subject to the provisions of Chapter 19.60, Planned Developments, of the Elgin Zoning Ordinance. 12. "Accessory structures" [SR] (UNCL) to the conditional uses allowed in this PSFR2 Planned Single Family Residence District, subject to the provisions of Chapter 19.12.500, Accessory structures and Buildings. 13. "Accessory uses" [SR] (UNCL) to the conditional uses allowed in this PSFR2 Single Family Residence District, subject to the provisions of Section 19.10. 400, Component Land Uses. 3 G. Site Design. In this PSFR2 zoning district, the use and development of land and structures shall be subject to the provisions of Chapter 19.12, Site Design, of the Elgin Zoning Ordinance. In this PSFR2 zoning district, the site design regulations shall be as follows: 1. Zoning Lots - Generally. hi this PSFR2 zoning district, "zoning lots" [SR] shall be subject to the provisions of Section 19.12.300, Zoning Lots - Clarifications and Exceptions, of the Elgin Zoning Ordinance. 2. Lot Area. In this PSFR2 zoning district, the minimum required "zoning lot area" [SR] shall be 8,320 square for an interior lot and 9,500 feet for a corner lot. 3. Lot Width. The minimum required "lot width" [SR] shall be sixty-five (65) linear feet for an interior lot and seventy-five (75) linear feet for a corner lot. 4. Setbacks - Generally. In this PSFR2 zoning district, "setbacks" [SR] shall be subject to the provisions of the Elgin Zoning Ordinance, Section 19.12.400, Setbacks - Clarifications and Exceptions. 5. Setbacks by Lot Line. In this PSFR2 zoning district, the minimum required "building" [SR] "setbacks" [SR] for a zoning lot shall be as follows: a. Local Street Setback. Where a zoning lot has frontage on a local street, the minimum required setback for a building from a "street lot line" [SR] shall be thirty (30) linear feet. The minimum required setback from the corner side yard of a house shall be twenty(20) linear feet. b. Side Setback. The minimum required building setback from a "side lot line" [SR] shall be five (5) linear feet, with combined side yards of ten (10) linear feet. c. Interior Setback. The minimum required building setback from an "interior lot line" [SR] shall be ten (10) linear feet. d. Rear Setback. The minimum required building setback from a "rear lot line" [SR] shall be thirty-five (35) linear feet. 6. Accessory Structures and Buildings. In this PSFR2 zoning district, "accessory structures and buildings" [SR] shall be subject to the provisions of Section 19.12.500, Accessory Structures and Buildings, of the Elgin Zoning Ordinance. 7. Yards. In this PSFR2 zoning district, a "street yard" [SR], a "side yard" [SR], or a "rear yard" [SR] established by a required building setback or by the actual location of a building shall be subject to the provisions of Section 19.12.600, Obstructions in Yards, of the Elgin Zoning Ordinance. 8. Residential Floor Area. In this PSFR2 zoning district, the maximum "residential floor area" [SR] for a single family zoning lot shall equal the "zoning lot area" [SR] times 0.40 (40%). 9. Building Coverage. In this PSFR2 zoning district, the maximum "building coverage" [SR] for a single family zoning lot shall equal the "zoning lot area" [SR] times 0.35 (35%). 4 10. Accessory Building Coverage. In this PSFR2 zoning district, the maximum "accessory building coverage" [SR] for a single family zoning lot shall equal the "zoning lot area" [SR] times 0.10 (10%). 11. Vehicle Use Area. In this PSFR2 zoning district, the maximum "vehicle use area" [SR] for a single family zoning lot shall be one thousand four hundred (1,400) square feet. 12. Landscaping. In this PSFR2 zoning district, each zoning lot shall be developed in substantial conformance to the landscape plans prepared by the Lannert Group, with a final revision date of April 11, 2007. 13. Supplementary Regulations. In this PSFR2 zoning district, the use and development of land and structures shall also be subject to the following conditions: a. Substantial conformance to the Preliminary Plat, prepared by the Lannert Group, with a final revision date of January 3, 2007. b. Substantial conformance to the Preliminary Engineering Plan, prepared by Cowhey Gudmundson Leder, Ltd., with a final revision date of January 10, 2007. c. Substantial conformance to the Preliminary Landscape Plan, prepared by the Lannert Group, with a final revision date of April 11, 2007. d. Building elevations, floor plans and building materials for detached single family dwellings in this PSFR2 zoning district shall be in substantial conformance with Single Family Options 1 (Sheet A-2), 2 (Sheet A-3), and 3 (Sheet A-4) prepared by Roth Architects, dated July 14, 2006. Additional building elevations for detached single family dwellings to be constructed in this PSFR2 zoning district may be authorized and approved by the city's Community Development Director so long as any such building elevations are otherwise in compliance with the terms and conditions of this ordinance and the annexation agreement. e. Additions to any detached single family dwellings on the subject property shall only be permitted to the rear elevations of such structures. H. Off-Street Parking. In this PSFR2 zoning district, off street parking shall be subject to the provisions of Chapter 19.45, Off-Street Parking, of the Elgin Municipal Code, 1976, as amended. I. Off-Street Loading. In this PSFR2 zoning district, off street loading shall be subject to the provisions of Chapter 19.47, Off-Street Loading, of the Elgin Municipal Code, 1976, as amended. J. Street Graphics. In this PSFR2 zoning district, signs shall be subject to the provisions of Chapter 19.50, Street Graphics, of the Elgin Municipal Code, 1976, as amended. The main entry sign and neighborhood signs shall be developed in 5 conformance with the Landscape Plans, prepared by the Lannert Group., with a final revision date of. August 18, 2006 K. Amendments. In this PSFR2 zoning district, application for text and map amendments shall be subject to the provisions of Chapter 19.55, Amendments. A text and map amendment may be requested by an individual lot or property owner for a zoning lot without necessitating that all other property owners in this PSFR2 zoning district authorize such an application. L. Planned Developments. In this PSFR2 zoning district, application for a planned development shall be subject to the provisions of Chapter 19.60, Planned Developments, of the Elgin Municipal Code, 1976, as amended. A conditional use for a planned development may be requested by an individual lot or property owner for a zoning lot without requiring an amendment to this PSFR2 zoning district and without necessitating that all other property owners in this PSFR2 zoning district authorize such an application. M. Conditional Uses. In this PSFR2 zoning district, application for conditional uses shall be subject to the provisions of Chapter 19.65 Conditional Uses, of the Elgin Municipal Code, 1976, as amended. A conditional use may be requested by an individual lot or property owner for a zoning lot without requiring an amendment to this PSFR2 zoning district and without necessitating that all other property owners in this PSFR2 zoning district authorize such an application. N. Variations. Any of the requirements of this ordinance may be varied by petition of a lot or property owner subject to this Ordinance, however, such variation is subject to the provisions of Section 19.70, Variations, of the Elgin Municipal Code, as may be amended. A variation may be requested by an individual property owner for a zoning lot without requiring an amendment to this PSFR2 zoning district and without necessitating that all other property owners in this PSFR2 zoning district authorize such an application. O. Subdivisions — Generally. The subdivision of the subject property and development thereof shall comply with the subdivision regulations of the city, as amended, and the Plat Act of the State of Illinois. Prior to building permit issuance, for each building or structure proposed to be built within the planned development, a soils suitability and bearing capacity test shall be performed as required by the City Engineer and the Development Administrator. P. Buildings — Required Improvements. In addition to those building improvements required by Title 16 of the Elgin Municipal Code, the following building improvements shall also be required: 1. All sanitary sewer shall be overhead sewers. 6 2. All structures containing sump pits and pumps shall have separate lines connecting the sump pump to the storm sewer as required by the City Engineer and the Development Administrator. Q. Appeals. Any requirement, determination, or interpretation associated with the administration and enforcement of the provisions of this ordinance may be appealed subject to the provisions of Chapter 19.75, Appeals, of the Elgin Municipal Code, 1976, as amended. Section 3. That this ordinance shall be full force and effect immediately after its passage in the manner provided by law. s/Ed Schock Ed Schock, Mayor Presented: December 5, 2007 Passed: December 5, 2007 Omnibus Vote: Yeas: 7 Nays: 0 Recorded: December 6, 2007 Published: Attest: s/Diane Robertson Diane Robertson, City Clerk 7 ` ■ Il1 `firr ' -ttrtt j /I r /1 / am,,r,r7 ,;' i ,r- �i�J G } 1. `'; / / •/R rr 73� a }y s} I a i fp. ♦ 1 1) 2 ` / / / 7',/�y 4, ` f* ('1 g 1 / / f// rr 1} ���VVV tt /f9165II6§I j/ r - 511 511 / /.',� i ,•q • <j -I i -4 / / // /,4 :;..,,z4 li,',, ..::,,,,,,, II 8 @ t ! / / ,' , 1 ri,,,,t ICi$ it t$74 // / ! 1▪ y� $r, je i 37, i / /ty // / < 4.;: " '., u ft; /„/.... ice,) /j / // 7,. - , if .. / t � '111 g�1.1��. / / % / / f i a,. �,m „,11 lir 1 7 /: / ' \a \ ■ 11 ti t / / / G \R I ! x `� V �1 a it v a M r�,2 t I I i* }I �q .},' q 1 I 1 v 1 1:::!::::::::::":::!41'°�,, /gyp I ' il'�ui1 /�C' �° I 1\ �5 I 5{ .. � I Cdr/ , or t 54t oat I1 i ���11a� t R4f .7 a �� wk'>'// I I�"i' I`C` d 4'hN 3 y / 1 1 �Z ,3g .4 iV.:r1;414 e 1 x %i r4,,,r p t'\ L___._„_,_'r'l�l1' t LI' 11 aV S( I{ Y1 t"..d, 1 Ul✓Y [,�: r F aI 8[2.to 1[1111 ,.; � ` OTTER GREEK 'II °N'� PRELIMINARY SITE PLAN Lannert Group - - - COMMONWEALTH REALTY 1 ' ' r.alewFg @Tw ' NORTH Cn o.rY.,s,m.eor@I ,11:-.., arm-.. Ordinance No. G72-07 AN ORDINANCE RECLASSIFYING TERRITORY FROM PMFR PLANNED MULTIPLE FAMILY RESIDENCE DISTRICT TO PSFR2 PLANNED SINGLE FAMILY RESIDENCE DISTRICT (AGE RESTRICTED) (The Glen Subdivision - 1101 Nolan Road) WHEREAS, the territory herein described has been annexed to the City of Elgin; and WHEREAS, written application has been made to reclassify said territory from the PMFR Planned Multiple Family Residence District to the PSFR2 Planned Single Family Residence District (Age Restricted); and WHEREAS, after due notice in the manner provided by law the Planning and Development Commission conducted a public hearing concerning said application and has submitted its written findings and recommendations; and WHEREAS, the City Council of the City of Elgin, Illinois, has reviewed the findings and recommendations of the Planning and Development Commission. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS: Section 1. That Chapter 19.07, Section 19.07.600 entitled "Zoning District Map" of the Elgin Municipal Code, 1976, as amended, be and the same is hereby further amended by adding thereto the following paragraph: The boundaries herein before laid out in the `Zoning District Map', as amended, be and are hereby altered by including in the PSFR2 Planned Single Family Residence District (Age Restricted), the following described property: Those areas on the attached zoning plat, prepared by the Lannert Group., dated January 3, 2007, designated in the PSFR2 Planned Single Family Residence District. Section 2. That the development of this PSFR2 Planned Single Family Residence District as described in Section 1 shall be developed subject to the following provisions: A. Purpose and Intent. The purpose and intent of this PSFR2 zoning district is to provide a planned urban residential environment of standardized density for two family dwellings, subject to the provisions of Chapter 19.60 Planned Developments of the Elgin Municipal Code, 1976, EXHIBIT as amended. The PSFR2 District is most similar to, but departs from the standard requirements of the SFR2 Single Family Residential District. B. Supplementary Regulations. Any word or phrase contained herein, followed by the symbol "[SR]", shall be subject to the definitions and the additional interpretive requirements provided in Chapter 19.90, Supplementary Regulations, of the Elgin Municipal Code, 1976, as amended. The exclusion of such symbol shall not exempt such word or phrase from the applicable supplementary regulation. C. General Provisions. In this PSFR2 zoning district, the use and development of land and structures shall be subject to the provisions of Chapter 19.05, General Provisions, of the Elgin Municipal Code, 1976, as amended. D. Zoning Districts -Generally. In this PSFR2 zoning district, the use and development of land and structures shall be subject to the provisions of Chapter 19.07, Zoning Districts, of the Elgin Municipal Code, 1976, as amended. E. Location and Size of District. This PSFR2 zoning district should be located in substantial conformance to the official comprehensive plan. The amount of land necessary to constitute a separate PSFR2 zoning district exclusive of rights-of-way, but including adjoining land or land directly opposite a right-of-way, shall not be less than two acres. F. Land Use. In this PSFR2 zoning district, the use of land and structures shall be subject to the provisions of Chapter 19.10, Land Use, of the Elgin Municipal Code, 1976, as amended. The following enumerated "and uses" [SR] shall be the only land uses allowed as a"permitted use" [SR] in this PSFR2 District: Residence Division. 1. "Detached single family dwellings (age restricted)" [SR] (UNCL). 2. "Residential garage sales" [SR] (UNCL). 3. "Residential occupations" [SR] (UNCL). 4. "Residential outdoor storage of firewood" [SR] (UNCL). 5. "Residential parking areas" [SR] (UNCL). Finance, Insurance, and Real Estate Division. 6. "Development sales office" [SR] (UNCL). Services Division. 7. "Family residential care facility" [SR] (8361). 8. "Home child day care services" [SR] (8351). Construction Division. 9. "Contractors office and equipment areas" [SR] (UNCL). 2 Transportation, Communication, and Utilities Division. 10. "Radio and television antennas" [SR] (UNCL). 11. "Satellite dish antennas" [SR] (UNCL). 12. "Treatment, transmission, and distribution facilities: poles, wires, cables, conduits, laterals, vaults, pipes, mains, and valves" [SR] (UNCL). Miscellaneous Uses Division. 13. "Fences and walls" [SR] (UNCL). 14. "Street Graphics" [SR] (UNCL), subject to the provisions of Chapter 19.50, Street Graphics, of the Elgin Zoning Ordinance. 15. "Temporary uses" [SR] (UNCL). 16. "Accessory structures" [SR] (UNCL) to the permitted uses allowed in this PSFR2 Planned Single Family Residence District, subject to the provisions of Section 19.12.500, Accessory Structures and Buildings, of the Elgin Zoning Ordinance. 17. "Accessory uses" [SR] (UNCL) to the permitted uses allowed in this PSFR2 Planned Single Family Residence District, subject to the provisions of Section 19.20.400, Component Land Uses, of the Elgin Zoning Ordinance. In this PSFR2 zoning district, the use of land and structures shall be subject to the provisions of Chapter 19.10, Land Use, of the Elgin Municipal Code, 1976, as amended. The following enumerated "land uses" [SR] shall be the only land uses allowed as a "conditional use" [SR] in this PTFR zoning district: Residences Division. 1. "Conditional residential occupations" [SR] (UNCL). Municipal Services Division. 2. "Municipal facilities" [SR] (UNCL) on a zoning lot containing less than two acres of land. Transportation, Communication, and Utilities Division. 3. "Amateur radio antennas" [SR] (UNCL). 4. "Commercial antennas and antenna structures mounted on existing structures" [SR] (UNCL). 5. "Commercial antenna tower" [SR] (UNCL). 6. "Other radio and television antennas" [SR] (UNCL). 7. "Other satellite dish antennas" [SR] (UNCL). 8. "Pipelines, except natural gas" (461). 9. "Railroad tracks" (401). 10. "Treatment, transmission and distribution facilities: equipment, equipment buildings, towers, exchanges, substations, regulators" [SR] (UNCL). 3 Miscellaneous Uses Division. 11. "Planned developments" [SR] (UNCL) on a zoning lot containing less than two acres of land, subject to the provisions of Chapter 19.60, Planned Developments, of the Elgin Zoning Ordinance. 12. "Accessory structures" [SR] (UNCL) to the conditional uses allowed in this PSFR2 Planned Single Family Residence District, subject to the provisions of Chapter 19.12.500, Accessory structures and Buildings. 13. "Accessory uses" [SR] (UNCL) to the conditional uses allowed in this PSFR2 Single Family Residence District, subject to the provisions of Section 19.10. 400, Component Land Uses. G. Site Design. In this PSFR2 zoning district, the use and development of land and structures shall be subject to the provisions of Chapter 19.12, Site Design, of the Elgin Zoning Ordinance. In this PSFR2 zoning district, the site design regulations shall be as follows: 1. Zoning Lots - Generally. In this PSFR2 zoning district, "zoning lots" [SR] shall be subject to the provisions of Section 19.12.300, Zoning Lots - Clarifications and Exceptions, of the Elgin Zoning Ordinance. 2. Lot Area. In this PSFR2 zoning district, the minimum required "zoning lot area" [SR] shall be 6,875 square feet for an interior lot and 8,080 square feet for a corner lot. 3. Lot Width. The minimum required "lot width" [SR] shall be fifty- five (55) linear feet for an interior lot and sixty-five (65) linear feet for a corner lot. 4. Setbacks - Generally. In this PSFR2 zoning district, "setbacks" [SR] shall be subject to the provisions of the Elgin Zoning Ordinance, Section 19.12.400, Setbacks - Clarifications and Exceptions. 5. Setbacks by Lot Line. In this PSFR2 zoning district, the minimum required "building" [SR] "setbacks" [SR] for a zoning lot shall be as follows: a. Local Street Setback. Where a zoning lot has frontage on a local street (public or private street), the minimum required setback for a building from a "street lot line" [SR] shall be twenty (20) linear feet. The minimum required setback from the corner side yard of a house shall be fifteen (15) linear feet. b. Side Setback. The minimum required building setback from a "side lot line" [SR] shall be five (5) linear feet, with a minimum ten (10) linear foot building separation between neighboring single family structures.. c. Interior Setback. The minimum required building setback from an"interior lot line" [SR] shall be five (5) linear feet. 4 d. Rear Setback. The minimum required building setback from a"rear lot line" [SR] shall be thirty(30) linear feet. 6. Accessory Structures and Buildings. In this PSFR2 zoning district, "accessory structures and buildings" [SR] shall be subject to the provisions of Section 19.12.500, Accessory Structures and Buildings, of the Elgin Zoning Ordinance. 7. Yards. In this PSFR2 zoning district, a "street yard" [SR], a "side yard" [SR], or a "rear yard" [SR] established by a required building setback or by the actual location of a building shall be subject to the provisions of Section 19.12.600, Obstructions in Yards, of the Elgin Zoning Ordinance. 8. Residential Floor Area. In this PSFR2 zoning district, the maximum "residential floor area" [SR] for a detached single family zoning lot shall equal the "zoning lot area" [SR] times 0.34 (34%). 9. Building Coverage. In this PSFR2 zoning district, the maximum "building coverage" [SR] for a detached single family zoning lot shall equal the "zoning lot area" [SR] times 0.35 (35%). 10. Accessory Building Coverage. In this PSFR2 zoning district, the maximum "accessory building coverage" [SR] for a detached single family zoning lot shall equal the "zoning lot area" [SR] times 0.10 (10%). 11. Vehicle Use Area. In this PSFR2 zoning district, the maximum "vehicle use area" [SR] for a attached single family zoning lot shall be one thousand two hundred (1,200) square feet, allocated at a maximum of six hundred (600) square feet for each detached single family unit. 12. Landscaping. In this PSFR2 zoning district, each zoning lot shall be developed in substantial conformance to the landscape plans prepared by the Lannert Group, with a final revision date of April 11, 2007. 13. Supplementary Regulations. In this PSFR2 zoning district, the use and development of land and structures shall also be subject to the following conditions: a. Substantial conformance to the Preliminary Plat, prepared by the Lannert Group, with a final revision date of January 3, 2007 b. Substantial conformance to the Preliminary Engineering Plan, prepared by Cowhey Gudmundson Leder, Ltd.., with a final revision date of January 10, 2007. c. Substantial conformance to the Preliminary Landscape Plan, prepared by the Lannert Group,with a final revision date of April 11, 2007. d. Building elevations, floor plans and building materials for detached single family dwellings in this PSFR2 zoning district shall be in substantial conformance with the Typical Streetscape (Sheet A-1), Single Family Elevations (Sheet 5 A-2), and Single Family Plans (Sheet A-3) prepared by Roth Architects, dated January 10, 2007. Additional building elevations for detached single family dwellings to be constructed in this PSFR2 zoning district may be authorized and approved by the city's Community Development Director so long as any such building elevations are otherwise in compliance with the terms and conditions of this ordinance and the annexation agreement. e. Additions to any attached single family dwellings on the subject property shall only be permitted to the rear elevations of such structures. f. No dwelling unit in this PSFR2 planned single family residence district shall be occupied by any person contrary to the age restrictions set forth in the private covenants for the subject property and as further referenced and provided for in Section 49 of the Third Amendment to the Annexation Agreement for the subject property. H. Off-Street Parking. In this PSFR2 zoning district, off street parking shall be subject to the provisions of Chapter 19.45, Off-Street Parking, of the Elgin Municipal Code, 1976, as amended. I. Off-Street Loading. In this PSFR2 zoning district, off street loading shall be subject to the provisions of Chapter 19.47, Off-Street Loading, of the Elgin Municipal Code, 1976, as amended. J. Signs. In this PSFR2 zoning district, signs shall be subject to the provisions of Chapter 19.50, Signs, of the Elgin Municipal Code, 1976, as amended, and shall also be subject to paragraph G., Site Design, of this ordinance. K. Amendments. In this PSFR2 zoning district, application for text and map amendments shall be subject to the provisions of Chapter 19.55, Amendments. A text and map amendment may be requested by an individual lot or property owner for a zoning lot without necessitating that all other property owners in this PSFR2 zoning district authorize such an application. L. Planned Developments. In this PSFR2 zoning district, application for a planned development shall be subject to the provisions of Chapter 19.60, Planned Developments, of the Elgin Municipal Code, 1976, as amended. A conditional use for a planned development may be requested by an individual lot or property owner for a zoning lot without requiring an amendment to this PSFR2 zoning district and without necessitating that all other property owners in this PSFR2 zoning district authorize such an application. 6 M. Conditional Uses. In this PSFR2 zoning district, application for conditional uses shall be subject to the provisions of Chapter 19.65 Conditional Uses, of the Elgin Municipal Code, 1976, as amended. A conditional use may be requested by an individual lot or property owner for a zoning lot without requiring an amendment to this PSFR2 zoning district and without necessitating that all other property owners in this PSFR2 zoning district authorize such an application. N. Variations. Any of the requirements of this ordinance may be varied by petition of a lot or property owner subject to this Ordinance, however, such variation is subject to the provisions of Section 19.70, Variations, of the Elgin Municipal Code, as may be amended. A variation may be requested by an individual property owner for a zoning lot without requiring an amendment to this PSFR2 zoning district and without necessitating that all other property owners in this PSFR2 zoning district authorize such an application. O. Subdivisions — Generally. The subdivision of the subject property and development thereof shall comply with the subdivision regulations of the city, as amended, and the Plat Act of the State of Illinois. Prior to building permit issuance, for each building or structure proposed to be built within the planned development, a soils suitability and bearing capacity test shall be performed as required by the City Engineer and the Development Administrator. P. Buildings — Required Improvements. In addition to those building improvements required by Title 16 of the Elgin Municipal Code, the following building improvements shall also be required: 1. All sanitary sewer shall be overhead sewers. 2. All structures containing sump pits and pumps shall have separate lines connecting the sump pump to the storm sewer as required by the City Engineer and the Development Administrator. Q. Appeals. Any requirement, determination, or interpretation associated with the administration and enforcement of the provisions of this ordinance may be appealed subject to the provisions of Chapter 19.75, Appeals, of the Elgin Municipal Code, 1976, as amended. 7 Section 3. That this ordinance shall be full force and effect immediately after its passage in the manner provided by law. s/Ed Schock Ed Schock, Mayor Presented: December 5, 2007 Passed: December 5, 2007 Omnibus Vote: Yeas: 7 Nays: 0 Recorded: December 6, 2007 Published: Attest: s/Diane Robertson Diane Robertson, City Clerk 8 , / / a., ---, .1,0.x.,„(.I. , I —7-- am,: 41,,..f•-___:... . 1 I ' , I.(7 r• f ';' .. 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Ordinance No. G73-07 AN ORDINANCE AMENDING A PMFR PLANNED MULTIPLE FAMILY RESIDENCE DISTRICT (The Glen Subdivision— 1101 Nolan Road) WHEREAS, the territory herein described has been annexed to the City of Elgin; and WHEREAS, written application has been made to amend the development plan in the PMFR Planned Multiple Family Residence District; and WHEREAS, after due notice in the manner provided by law the Planning and Development Commission conducted public hearings concerning said applications and has submitted its written findings and recommendations; and WHEREAS, the City Council of the City of Elgin, Illinois, has reviewed the findings and recommendations of the Planning and Development Commission. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS: Section 1. That Chapter 19.07, Section 19.07.600 entitled "Zoning District Map" of the Elgin Municipal Code, 1976, as amended, be and the same is hereby further amended by adding thereto the following paragraph: "The boundaries herein before laid out in the `Zoning District Map', as amended, be and are hereby altered by including in the PMFR Planned Multiple Family Residence District, the following described property: Those areas on the attached zoning plat, prepared by the Lannert Group., dated January 3, 2007, designated in the PMFR Planned Multiple Family Residence District. Section 2. That the City Council of the City of Elgin hereby grants the PMFR Planned Multiple Family Residential District which shall be designed, developed, and operated subject to the following provisions: A. Purpose and Intent. The purpose and intent of this PMFR zoning district is to provide a planned urban residential environment for multiple family detached dwellings, subject to the provisions of Chapter 19.60 Planned Developments of the Elgin Municipal Code, 1976, as amended. The PMFR District is most similar to, but departs from the standard requirements of, the MFR Multiple Family Residential District. EXHIBIT e B. Supplementary Regulations. Any word or phrase contained herein, followed by the symbol "[SR]", shall be subject to the definitions and the additional interpretive requirements provided in Chapter 19.90, Supplementary Regulations of the Elgin Municipal Code, 1976, as amended. The exclusion of such symbol shall not exempt such word or phrase from the applicable supplementary regulation. C. General Provisions. In this PMFR zoning district, the use and development of land and structures shall be subject to the provisions of Chapter 19.05, General Provisions, of the Elgin Municipal Code, 1976, as amended. D. Zoning Districts - Generally. In this PMFR zoning district, the use and development of land and structures shall be subject to the provisions of Chapter 19.07, Zoning Districts, of the Elgin Municipal Code, 1976, as amended, and the provisions of the Annexation Agreement. E. Location and Size of District. This PMFR zoning district should be located in substantial conformance to the official comprehensive plan. The amount of land necessary to constitute a separate PMFR zoning district exclusive of rights-of-way, but including adjoining land or land directly opposite a right-of-way shall not be less than two acres. F. Land Use. In this PMFR zoning district, the use of land and structures shall be subject to the provisions of Chapter 19.10, Land Use, of the Elgin Municipal Code, 1976, as amended. The following enumerated "land uses" [SR] shall be the only land uses allowed as a"permitted use" [SR] in this PMFR District: Residence Division. 1. "Attached dwellings" [SR] (senior assisted living/congregate care facility) (UNCL). 2. "Residential garage sales" [SR] (UNCL). 3. "Residential occupations" [SR] (UNCL). 4. "Residential outdoor storage of firewood" [SR] (UNCL). 5. "Residential parking areas" [SR] (UNCL). 6. "Residential storage" [SR] (UNCL). 7. "Residential storage of trucks or buses" [SR] (UNCL). Finance, Insurance, and Real Estate Division. 8. "Development sales office" [SR] (UNCL). Services Division. 9. "Family residential care facility" [SR] (8361). 10. "Home child day care services" [SR] (8351). 11. "Residential Care Facility" [SR]. Construction Division 2 12. "Contractors office and equipment areas" [SR] (UNCL). Transportation, Communication, and Utilities Division. 13. "Amateur radio antennas" [SR] (UNCL). 14. "Commercial antennas and antenna structures mounted on existing structures" [SR] (UNCL). 15. "Radio and television antennas" [SR] (UNCL). 16. "Satellite dish antennas" [SR] (UNCL). 17. "Treatment, transmission, and distribution facilities: poles, wires, cables, conduits, laterals, vaults, pipes, mains, and valves" [SR] (UNCL). Miscellaneous Uses Division. 18. "Fences and walls" [SR] (UNCL). 19. "Parking lots" [SR] (UNCL), exclusively "accessory" [SR], subject to the provisions of Chapter 19.45, Off Street Parking. 20. "Refuse collection area" [SR]. 21. "Street Graphics" [SR] (UNCL), subject to the provisions of Chapter 19.50, Street Graphics. 22. "Temporary uses" [SR] (UNCL). 23. "Accessory structures" [SR] (UNCL) to the permitted uses allowed in this PMFR Planned Multiple Family Residence District, subject to the provisions of Section 19.12.500, Accessory Structures and Buildings. 24. "Accessory uses" [SR] (UNCL) to the permitted uses allowed in this PMFR Planned Multiple Family Residence District, subject to the provisions of Section 19.20.400, Component Land Uses. In this PMFR zoning district, the use of land and structures shall be subject to the provisions of Chapter 19.10, Land Use, of the Elgin Municipal Code, 1976, as amended. The following enumerated "land uses" [SR] shall be the only land uses allowed as a "conditional use" [SR] in this PMFR zoning district: Residences Division. 1. Conditional residential occupations" [SR] (UNCL). Municipal Services Division. 2. Municipal facilities" [SR] (UNCL) on a zoning lot containing less than two acres of land. Transportation, Communication, and Utilities Division. 3. "Conditional commercial antennas and antenna structures mounted on existing structures" [SR] (UNCL). 4. "Conditional commercial antenna tower" [SR] (UNCL) 5. "Other radio and television antennas" [SR] (UNCL). 6. "Other satellite dish antennas" [SR] (UNCL). 7. "Pipelines, except natural gas" (461). 3 8. "Treatment, transmission and distribution facilities: equipment, equipment buildings, towers, exchanges, substations, regulators" [SR] (UNCL). Miscellaneous Uses Division. 9. "Program for graphics" [SR], subject to the provisions of Chapter 19.50, Street Graphics. 10. "Parking structures" [SR] (UNCL), exclusively"accessory" [SR]. 11. "Planned developments" [SR] (UNCL) on a zoning lot containing less than two acres of land, subject to the provisions of Chapter 19.60, Planned Developments. 12. "Accessory structures" [SR] (UNCL) to the conditional uses allowed in this PMFR Planned Multiple Family Residence District, subject to the provisions of Chapter 19.12.500, Accessory structures and Buildings. 13. "Accessory uses" [SR] (UNCL) to the conditional uses allowed in this PMFR Multiple Family Residence District, subject to the provisions of Section 19.10. 400, Component Land Uses. G. Site Design. In this PMFR zoning district, the use and development of land and structures shall be subject to the provisions of Chapter 19.12, Site Design, of the Elgin Zoning Ordinance, and in the Annexation Agreement. In this PMFR zoning district, the site design regulations shall be as follows: 1. Zoning Lots - Generally. In this PMFR zoning district, "zoning lots" [SR] shall be subject to the provisions of Section 19.12.300, Zoning Lots - Clarifications and Exceptions, of the Elgin Zoning Ordinance. 2. Lot Area. In this PMFR zoning district, the minimum required "zoning lot area" [SR] shall be 1,597 square feet per dwelling unit. 3. Lot Width. In this PMFR zoning district, the minimum required "lot width" [SR] for a zoning lot shall be that necessary to allow development in substantial conformance to the Preliminary Plat, prepared by the Lannert Group, with a final revision date of January 3, 2007. 4. Setbacks - Generally. In this PMFR zoning district, the minimum required "setbacks" [SR] shall be in substantial conformance to the Preliminary Plat, prepared by the Lannert Group, with a final revision date of January 3, 2007. 5. Setbacks by Lot Line. In this PMFR zoning district, the minimum required "building" [SR] "setbacks" [SR] for a zoning lot shall be 4 in substantial conformance to the Preliminary Plat, prepared by the Lannert Group, with a final revision date of January 3, 2007. 6. Accessory Structures and Buildings. In this PMFR zoning district, "accessory structures and buildings" [SR] shall be subject to the provisions of Section 19.12.500, Accessory Structures and Buildings, of the Elgin Zoning Ordinance. 7. Yards. In this PMFR zoning district, a "street yard" [SR] a "side yard" [SR] or a "rear yard" [SR] established by a required building setback or by the actual location of a building shall be subject to the provisions of Section 19.12.600, Obstructions in Yards, of the Elgin Zoning Ordinance. 8. Supplementary Conditions. In this PMFR zoning district, the use and development of land and structures shall also be subject to the following conditions: a. Substantial conformance to the Preliminary Plat, prepared by the Lannert Group, with a final revision date of January 3, 2007. b. Substantial conformance to the Preliminary Engineering Plan, prepared by Cowhey Gudmundson Leder, Ltd.., with a final revision date of January 10, 2007. c. Substantial conformance to the Preliminary Landscape Plan, prepared by the Lannert Group,with a final revision date of April 11, 2007. e. The number of dwelling units, and the site and architectural design review of the "senior assisted living facility" in this PMFR District shall be subject to review and approval pursuant to the provisions of Chapter 19.60, Planned Developments, of the Elgin Municipal Code, 1976, as amended. Notwithstanding anything to the contrary in this ordinance, prior to the development of the subject property in this PMFR planned multiple family residence district the owner and/or developer of the subject property shall be required to submit a development plan to the city for a public hearing and city council approval pursuant to provisions of Chapter 19.60, Planned Developments, of the Elgin Municipal Code, as amended, to include the items required by Chapter 19.60 and architectural elevations, building plans and proposed building materials. f. No dwelling unit in this PMFR planned multiple family zoning district shall be occupied by any persons contrary to the age restrictions and/or the other occupancy restrictions 5 set forth in the private covenants for the subject property and as further referenced and provided for in Section 49 of the Third Amendment to the Annexation Agreement for the subject property. H. Off-street Parking. In this PMFR zoning district, off street parking shall be subject to the provisions of Chapter 19.45, Off-street Parking, of the Elgin Municipal Code, 1976, as amended. I. Off-street Loading. In this PMFR zoning district, off street loading shall be subject to the provisions of Chapter 19.47, Off-street Loading, of the Elgin Municipal Code, 1976, as amended. J. Signs. In this PMFR zoning district, signs shall be subject to the provisions of Chapter 19.50, Street Graphics, of the Elgin Municipal Code, 1976, as amended. K. Amendments. In this PMFR zoning district, application for text and map amendments shall be subject to the provisions of Chapter 19.55, Amendments. A text and map amendment may be requested by an individual lot or property owner for a zoning lot without necessitating that all other property owners in this PMFR zoning district authorize such an application. L. Planned Developments. In this PMFR zoning district, application for a planned development shall be subject to the provisions of Chapter 19.60, Planned Developments, of the Elgin Municipal Code, 1976, as amended. A conditional use for a planned development may be requested by an individual lot or property owner for a zoning lot without requiring an amendment to this PMFR zoning district and without necessitating that all other property owners in this PMFR zoning district authorize such an application. M. Conditional Uses. In this PMFR zoning district, application for conditional uses shall be subject to the provisions of Chapter 19.65 Conditional Uses, of the Elgin Municipal Code, 1976, as amended. A conditional use may be requested by an individual lot or property owner for a zoning lot without requiring an amendment to this PMFR zoning district and without necessitating that all other property owners in this PMFR zoning district authorize such an application. N. Variations. Any of the requirements of this ordinance may be varied by petition of a lot or property owner subject to this Ordinance, however, such variation is subject to the provisions of Section 19.70, Variations, of the Elgin Municipal Code, as may be amended. A variation may be requested by an individual property owner for a zoning lot without 6 requiring an amendment to this PMFR zoning district and without necessitating that all other property owners in this PMFR zoning district authorize such an application. 0. Subdivisions — Generally. The subdivision of the subject property and development thereof shall comply with the subdivision regulations of the city, as amended, and the Plat Act of the State of Illinois. Prior to building permit issuance, for each building or structure proposed to be built within the planned development, a soils suitability and bearing capacity test shall be performed as required by the City Engineer and the Development Administrator, and the provisions of the Annexation Agreement. P. Buildings — Required Improvements. In addition to those building improvements required by Title 16 of the Elgin Municipal Code, the following building improvements shall also be required: 1. All sanitary sewers shall be overhead sewers. 2. All structures containing sump pits and pumps shall have separate lines connecting the sump pump to the storm sewer as required by the City Engineer and the Development Administrator. Q. Appeals. Any requirement, determination, or interpretation associated with the administration and enforcement of the provisions of this ordinance may be appealed subject to the provisions of Chapter 19.75, Appeals, of the Elgin Municipal Code, 1976, as amended. Section 3. That this ordinance shall be full force and effect immediately after its passage in the manner provided by law. s/Ed Schock Ed Schock, Mayor Presented: December 5, 2007 Passed: December 5, 2007 Omnibus Vote: Yeas: 7 Nays: 0 Recorded: December 6, 2007 Published: Attest: s/Diane Robertson Diane Robertson, City Clerk 7 .... ..---.�-•• - .."w t-� re .1 of e , .r- . ---.___...__.. / $t®Z_--tsar,ev �'1 , iii _11 _/iii 4i • / / ' gs ' : 1w fi 4; / / /7 Ili l / g , / / / I'„P `yt �Y°l Y > / ,�,• OQ / / Zvi .11/ x 1„` F; t . �� R{ 4 / / Y7/ i 4 ` •.4 ,vex 1- SP $ / / / / )Z41 :4 / / / a / F / a e e l / // / - ,. / .v 1 ,•, ".1;, tee e eel R/ //7, 7,r, cz J I / V/ //! / t ae,/ / / / ,' t t, ---'' ,'"1 a ,/ / // / ,y , ;;, i ,=' , / / / F F n. •� 1 i,.4 f joy,, / / / / / /ci '/4- --'''''‘ N, ,,,,,,, ,-,,,ov ,,,,-.., , ‘ , , , r...., %, , ,,,,,,, A,444,,A-- / / / / , , ,, /;:, 7 ,V„,x r‘,A...,,w,,,,,,,,0,,„0 1 , , / /, / s/ - V `'vuw okwt.1, to ,i.� / / / / ✓7/c/ / \` \ 1 / / / / /i�./ / 1 ■ I '' 11 f - / No / �. ? v ,. 1'i I /-N, 4/ h -- / 4.. c. �� / ,:„..-d,- x yyl/ 1 k” 1- —r C"-,r:/1•%? f/cp�aa ^. i� t6- '/, Y I 1 z III L !J Ei' : I I1I_ o 1. \a 1 iL. ..//// T � M 1 rnoaEex UM y/- Cis s 1 T I•s i 4J. A/ 1 . 1 1,, h h .t.t x 0 � *-- '_ � '. " a i jI ; -- :4_ __ 4 OTTER.CREEK :,1_--/ --'' PRELIMINARY SITE PLAN Lannert Group COMMONWEALTH WEALTH REALTY'I I 1 If a 1-1. -\, w I 1,..e,.,xHr.ae...^'""°'°"""'c'.O '0«.ao°"°`w eoem..un.eeoe. !' 'S� b J ti".'"o t Y �p tlerwien ae..e pp 1'1' 'MXEM1Ee'1� �M ��.�Owh,Mxi!0181 erl pit)=11e. Ordinance No.G74-07 AN ORDINANCE RECLASSIFYING TERRITORY FROM PMFR PLANNED MULTIPLE FAMILY RESIDENCE DISTRICT TO PCF PLANNED COMMUNITY FACILITY DISTRICT (The Glen Subdivision - 1101 Nolan Road) WHEREAS, the territory herein described has been annexed to the City of Elgin; and WHEREAS, written application has been made to reclassify said territory from the PMFR Planned Multiple Family Residence District to the PCF Planned Community Facility District; and WHEREAS, after due notice in the manner provided by law the Planning and Development Commission conducted public hearings concerning said application and has submitted its written findings and recommendations; and WHEREAS, the City Council of the City of Elgin, Illinois, has reviewed the findings and recommendations of the Planning and Development Commission. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS: Section 1. That Chapter 19.07, Section 19.07.600 entitled "Zoning District Map" of the Elgin Municipal Code, 1976, as amended, be and the same is hereby further amended by adding thereto the following paragraph: "The boundaries herein before laid out in the `Zoning District Map', as amended, be and are hereby altered by including in the PCF Planned Community Facility District, the following described property:" Those areas on the attached zoning plat, prepared by the Lannert Group., dated January 3, 2007, designated in the PCF Planned Community Facility District. Section 2. That the City Council of the City of Elgin hereby grants the PCF Planned Community Facility District which shall be designed, developed, and operated subject to the following provisions: A. Purpose and Intent. The purpose and intent of this PCF zoning district is to provide a planned environment for various types of community facilities, subject to the provisions of Chapter 19.60 Planned Developments, of the Elgin Municipal Code, 1976, as amended. In general, community facilities provide governmental, recreational, educational, health, social, religious, and transportation services to the community on a for-profit or a not-for-profit basis. The PCF District is most EXHIBIT 1 similar to, but departs from the standard requirements of the CF Community Facility District. B. Supplementary Regulations. Any word or phrase contained herein, followed by the symbol "[SR]", shall be subject to the definitions and the additional interpretive requirements provided in Chapter 19.90, Supplementary Regulations, of the Elgin Municipal Code, 1976, as amended. The exclusion of such symbol shall not exempt such word or phrase from the applicable supplementary regulation. C. General Provisions. In this PCF zoning district, the use and development of land and structures shall be subject to the provisions of Chapter 19.05, General Provisions, of the Elgin Municipal Code, 1976, as amended. D. Zoning Districts - Generally. In this PCF zoning district, the use and development of land and structures shall be subject to the provisions of Chapter 19.07, Zoning Districts, of the Elgin Municipal Code, 1976, as amended. E. Location and Size of District. This PCF zoning district should be located in substantial conformance to the official comprehensive plan. The amount of land necessary to constitute a separate PCF zoning district exclusive of rights-of-way, but including adjoining land or land directly opposite a right of way shall not be less than two acres. F. Land Use. In this PCF zoning district, the use of land and structures shall be subject to the provisions of Chapter 19.10, Land Use, of the Elgin Municipal Code, 1976, as amended. The following enumerated "land uses" [SR] shall be the only land uses allowed as a"permitted use" [SR] in this PCF zoning district: Municipal Services Division. 1. "Public parks, recreation, and open space" [SR] (UNCL). Construction Division. 2. "Contractors office and equipment areas" [SR] (UNCL). Transportation, Communication, and Utilities Division. 3. Radio and television antennas" [SR] (UNCL). 4. "Satellite dish antennas" [SR] (UNCL). 5. "Treatment, transmission, and distribution facilities: poles, wires, cables, conduits, laterals, vaults, pipes, mains, and valves" [SR] (UNCL). Miscellaneous Uses Division. 6. "Fences and walls" [SR] (UNCL). 7. "Street Graphics" [SR] (UNCL), subject to the provisions of Chapter 19.50, Street Graphics. 8. "Temporary uses" [SR] (UNCL). 9. "Parking lots" [SR] (UNCL), exclusively "accessory" [SR] to a use allowed in the zoning district, subject to the provisions of Chapter 19.47, Off-street Parking. 2 10. "Accessory structures" [SR] (UNCL) to the permitted uses allowed in this PCF Planned Community Facility District, subject to the provisions of Section 19.12.500, Accessory Structures and Buildings. 11. "Accessory uses" [SR] (UNCL) to the permitted uses allowed in this PCF Planned Community Facility District, subject to the provisions of Section 19.20.400, Component Land Uses. In this PCF zoning district, the use of land and structures shall be subject to the provisions of Chapter 19.10, Land Use of the Elgin Municipal Code, 1976, as amended. The following enumerated "land uses" [SR] shall be the only land uses allowed as a "conditional use" [SR] in this PCF zoning district: Transportation, Communication, and Utilities Division. 1. "Commercial antennas and antenna structures mounted on existing structures" [SR] (UNCL). 2. "Commercial antenna tower" [SR] (UNCL). 3. "Other radio and television antennas" [SR] (UNCL). 4. "Other satellite dish antennas" [SR] (UNCL). 5. "Pipelines, except natural gas" (461). 6. "Railroad tracks" (401). 7. "Treatment, transmission and distribution facilities: equipment, equipment buildings, towers, exchanges, substations, regulators" [SR] (UNCL). Miscellaneous Uses Division. 8. "Planned developments" [SR] (UNCL) on a zoning lot containing less than two acres of land, subject to the provisions of Chapter 19.60, Planned Developments. 9. "Accessory structures" [SR] (UNCL) to the conditional uses allowed in this PCF Planned Community Facility District, subject to the provisions of Chapter 19.12.500, Accessory structures and Buildings. 10. "Accessory uses" [SR] (UNCL) to the conditional uses allowed in this PCF Community Facility District, subject to the provisions of Section 19.10. 400, Component Land Uses. G. Site Design. In this PCF zoning district, the use and development of land and structures shall be subject to the provisions of Chapter 19.12, Site Design, of the Elgin Zoning Ordinance. In this PCF zoning district, the use and development of land and structures shall be subject to the provisions of Chapter 19.30.135, Site Design (CF Community Facility District), of the Elgin Zoning Ordinance. In this PCF zoning district, the use and development of land and structures shall also be subject to the following conditions: a. Substantial conformance to the Preliminary Plat, prepared by the Lannert Group, with a final revision date of January 3, 2007. b. Substantial conformance to the Preliminary Engineering Plan, prepared by Cowhey Gudmundson Leder, Ltd., with a final revision date of January 10, 2007. 3 c. Substantial conformance to the Preliminary Landscape Plan, prepared by the Lannert Group, with a final revision date of April 11, 2007. H. Off-street Parking. In this PCF zoning district, off street parking shall be subject to the provisions of Chapter 19.45, Off-Street Parking, of the Elgin Municipal Code, 1976, as amended. I. Off-street Loading. In this PCF zoning district, off-street loading shall be subject to the provisions of Chapter 19.47, Off-Street Loading, of the Elgin Municipal Code, 1976, as amended. J. Street Graphics. In this PCF zoning district, signs shall be subject to the provisions of Chapter 19.50, Street Graphics, of the Elgin Municipal Code, 1976, as amended. K. Amendments. In this PCF zoning district, application for text and map amendments shall be subject to the provisions of Chapter 19.55, Amendments. A text amendment and map amendment may be requested by an individual lot or property owner for a zoning lot without necessitating that all other property owners in this PCF zoning district authorize such an application. L. Planned Developments. In this PCF zoning district, the use and development of the land and structures shall be subject to the provisions of Chapter 19.60, Planned Developments, of the Elgin Municipal Code, 1976, as amended. A conditional use for a planned development may be requested by an individual lot or property owner for a zoning lot without requiring an amendment to this PCF zoning district and without necessitating that all other property owners in this PCF zoning district authorize such an application. M. Conditional Uses. In this PCF zoning district, application for conditional uses shall be subject to the provisions of Chapter 19.65 Conditional Uses, of the Elgin Municipal Code, 1976, as amended. A conditional use may be requested by an individual lot or property owner for a zoning lot without requiring an amendment to this PCF zoning district and without necessitating that all other property owners in this PCF zoning district authorize such an application. N. Variations. In this PCF zoning district, application for variation shall be subject to the provisions of Chapter 19.70, Variations, of the Elgin Municipal Code, 1976, as amended. Any of the requirements of this ordinance may be varied by petition of a lot or property owner for a zoning lot without requiring an amendment to this PCF zoning district and without necessitating that all other property owners in this PCF zoning district authorize such an application. O. Subdivisions — Generally. The subdivision of the subject property and development thereof shall comply with the subdivision regulations of the city, as amended, and the Plat Act of the State of Illinois. Prior to building permit 4 issuance, for each building or structure proposed to be built within the planned development, a soils suitability and bearing capacity test shall be performed as required by the City Engineer and the Development Administrator. P. Buildings — Required Improvements. In addition to those building improvements required by Title 16 of the Elgin Municipal Code, the following building improvements shall also be required: 1. All sanitary sewer shall be overhead sewers. 2. All structures containing sump pits and pumps shall have separate lines connecting the sump pump to the storm sewer as required by the City Engineer and the Development Administrator. Q. Appeals. Any requirement, determination, or interpretation associated with the administration and enforcement of the provisions of this ordinance may be appealed subject to the provisions of Chapter 19.75, Appeals, of the Elgin Municipal Code, 1976, as amended. Section 3. That this ordinance shall be full force and effect immediately after its passage in the manner provided by law. s/Ed Schock Ed Schock, Mayor Presented: December 5, 2007 Passed: December 5, 2007 Omnibus Vote: Yeas: 7 Nays: 0 Recorded: December 6, 2007 Published: Attest: s/Diane Robertson Diane Robertson, City Clerk 5 for such purpose at which a quorum is present, written notice of which is mailed to all Members not less than five (5) days nor more than 40 days in advance of the meeting, setting forth the purposes of the meeting. (c) The right of the Master Association to establish uniform rules and regulations (including fines) pertaining to the use of Common Area; provided, however, that the Master Association shall not limit or prohibit the public use of pathways located within the Property. (d) The right of the Master Association to suspend an Owner's right to use any improvements located within Common Area, including without limitation the Community Facilities (i) for any period during which any charge against such Owner's Lot remains delinquent; and (ii) for a period not to exceed 30 days for a single violation or for a longer period in the case of any continuing violation, of this Declaration or the rules and regulations of the Master Association after written notice thereof. (e) The right of Declarant and its designees (and their respective sales agents and representatives) to (1) non-exclusive use of Common Area(as may be amended by annexation from time to time) in connection with the sale of residential units within the Property (including any of the Additional Land annexed thereto); and (2) the use of any improved residence on any of the Lots as a sales office until the last Lot within the Property is improved with a residence and conveyed to a third party purchaser. (f) Such other rights as are reserved or created by this Declaration. SECTION 6.2. Delegation of Use. Any Member may delegate in accordance with the By-Laws of the Master Association, such Member's right of enjoyment to Common Area and the improvements located thereon to the members of his family, and the occupants residing on such Member's Lot. SECTION 6.3. Master Association's Access to Lots. The Master Association and its respective agents, employees and independent contractors shall have the right and license to enter upon any Lot to the extent necessary to exercise any right or responsibility of the Master Association as set forth in this Declaration, as to the Lot or the dwelling unit or other improvements situated thereon, or to the extent necessary to enforce any covenants or restrictions set forth herein and shall not be guilty of trespass. SECTION 6.4. Title to Common Area. Declarant covenants for itself, its successors and assigns, that it will convey or cause to be conveyed fee simple title to Common Area to the Master Association within 30 days after the date of this Declaration, subject to: (a) Covenants, conditions and restrictions then of record; 13 (b) The terms of this Declaration; (c) Zoning ordinances, development agreements and annexation agreements of record; (d) Current real estate taxes, not yet due and payable (for which Declarant shall pay or make arrangements to pay its pro rata share); (e) Utility easements granted or to be granted for sewer, water, gas, electricity, telephone, cable television and any other necessary utilities; (f) Reservation of easement for ingress and egress; and (g) Easements granted or to be granted for the construction, maintenance, repair and use of improvements to be located on Common Area. When lands annexed from time to time, pursuant to Article 11 of this Declaration, contain land to be designated as Common Area, said Common Area shall similarly be conveyed by Declarant or the legal title holder thereof to the Master Association prior to the conveyance by Declarant or such legal title holder to an Owner of the first Lot in the lands then annexed. ARTICLE 7. EASEMENTS SECTION 7.1. Utility Easements. Declarant hereby reserves unto itself, its successors, assigns and designees, the right (i) to create, declare and grant over, above, under and across Common Area or the Lots, at any time before or after conveyance, non-exclusive perpetual utility easements and (ii) to utilize any easement created by any Plat of Subdivision or other instruments, for the installation, construction, improvement or removal or reconstruction, replacement, substitution, and maintenance of sewer (storm and sanitary), water, gas, electricity, cable television, telephone and any other utilities as may be necessary in Declarant's sole judgment to develop, service and maintain the Property. The aforesaid easements shall include reasonable rights of ingress and egress. Furthermore, Declarant hereby declares and reserves for the benefit of all Owners, the Master Association, and the various public utility companies a non- exclusive public utility easement over, above and under Common Area, and those portions of Lots on which no homes are constructed, for the installation, construction, improvement, removal, reconstruction, replacement and substitution of underground service lines, wires, cables, conduits, terminals, manholes and other fixtures as the beneficiaries of the easement may from time to time require for any sewer (storm and sanitary), water, gas, electricity, cable television, telephone and other utilities which may serve the homes constructed on the Property, or other adjacent properties. It shall be the obligation of any party exercising the easement to restore any areas disturbed by the exercise of the easement in the manner and to the extent set forth in the provisions contained in the Plats of Subdivision for the Property relating to the exercise of easements. 14 SECTION 7.2. Ownership of Utility Lines. Declarant shall initially own all storm sewers, sanitary sewers, and water lines when situated in, over, under, along or across Common Area or easement areas designated for the installation and maintenance of such lines to the extent the same are not initially dedicated to the City, Kane County, any public utility or any governmental or quasi-governmental authority, and Declarant shall have the right (but not the obligation) of maintenance, replacement, repair or removal thereof and reasonable access thereto. Declarant may transfer title to said storm sewers, sanitary sewers and water lines and Declarant's rights of maintenance, replacement, repair and removal thereof to any assignee deemed beneficial or appropriate by Declarant (including the Master Association, the City, Kane County, any public utility, or any governmental or quasi-governmental authority), which transfer and assignment shall be effectuated by a bill of sale or other appropriate writing. In the absence of such a transfer prior to the completion of the sale of all of the Lots by Declarant to Owners purchasing the same, the transfer shall be deemed to have been made to the Master Association upon the closing of the sale of the last Lot to an Owner, without further action or documentation. SECTION 7.3. Reservation of Easements for Declarant's Benefit. Anything contained in this Declaration to the contrary notwithstanding, Declarant hereby reserves for itself, its agents, employees, contractors, sub-contractors, workmen, materialmen, invitees and any successor builders an easement under, over and across Common Area for the purposes of constructing, completing, repairing, maintaining, inspecting, exhibiting and selling any Lots or dwelling units then owned by Declarant or any such successor builders. SECTION 7.4. Easements for Installation, Maintenance and Repair of Common Area. Declarant hereby reserves unto itself, its successors, assigns, and designees, and to the Master Association, the right and easement to come onto the Lots or Common Area for purposes of building, installing, maintaining, repairing, replacing and improving Common Area and any improvement located thereon or within public right-of-ways within or abutting the Property. SECTION 7.5. Easement for Maintenance of Landscaping on Lots . Declarant hereby reserves unto itself, the Association and their respective successors, assigns and designees an easement over each Lot within the Property for the provision of maintenance care services as provided under Section 4.3 hereof. The aforesaid easement shall include reasonable rights for ingress and egress and shall be perpetual. SECTION 7.6. Easement for Access to City Property. Declarant hereby declares and reserves for the benefit of the City, its officers, employees, agents and contractors, an easement and right of ingress and egress, over, upon and across any and all portions of Common Area within the Property to the extent reasonably necessary for access to the City Property or any portion thereof for purposes of inspecting, maintaining, repairing and replacing all or any portion of the City Property. SECTION 7.7. Easement Over Pathways. Declarant hereby declares and reserves for the benefit of all Owners and their guests and invitees an easement and right of ingress and egress, over, upon and across any pathways located on any portion of Common Area within the 15 Property. The Master Association shall have the right to adopt reasonable rules and regulations governing and limiting the right and easement granted hereunder, subject to approval by the City. There is also declared and reserved for the benefit of the public an easement and right of ingress and egress over, upon and across such portions of any pathways located on any portion of Common Area as are to be usable by the public and maintained by the City, as designated on the Plat of Subdivision. Motor vehicles are prohibited on such pathways without prior written approval of Declarant or the Master Association. SECTION 7.8. Rights to Reserve or Grant Specific Easements for Lots and Common Area. Declarant shall have the right to grant or reserve particular specific non-exclusive easements on any portion of any Lot (except portions occupied by dwellings) or on Common Area for the installation, maintenance and repair of improvements to the Lots or Common Area by Declarant, its successors, assigns or designees or by the Master Association. Such easements may be created over Lots after such Lots are conveyed to Owners only if(i) such areas are designated as such by a Plat of Subdivision, a deed, a declaration of easement or a grant of easement executed and recorded by Declarant with the Recorder of Deeds of Kane County, Illinois, (ii) construction of such improvement has commenced prior to conveyance of such Lot or Common Area, or (iii) such easement is necessary to correct errors in engineering plans. Such easements may be created over Common Area at any time, even after it has been conveyed to the Master Association. Failure to so grant or reserve any particular specific casement as provided herein shall not invalidate or adversely affect the easements reserved under Section 7.4. SECTION 7.9. Power Coupled with an Interest. In furtherance of Declarant's rights to create easements pursuant to Section 7.8 above, a power coupled with an interest is hereby reserved to Declarant, as attorney-in-fact of the Master Association and of the Owners of all Lots within the Property, to grant or reserve such easements, and the giving of any deed, mortgage, or other instrument with respect to Common Area or any Lot, and acceptance thereof, shall be deemed a grant and acknowledgment of and a consent to such power of said attorney-in-fact. ARTICLE 8. AGE RESTRICTIONS APPLICABLE TO UNIT 3 SECTION 8.1. General. The Property identified as Unit 3 is intended to provide housing in a single structure designed and operated as an assisted living facility ("Assisted Living Facility".) An Assisted Living Facility is a group residence that offers assistance with Activities of Daily Living ("ADL") for those not able to live by themselves, but not requiring constant care. ADL's include but are not limited to eating, bathing, dressing, laundry, housekeeping, and assistance with medications. The Property identified as Unit 3 is intended to provide housing only for residents who are at least fifty percent (50%) persons 55 years of age or older as provided under the Fair Housing Amendments Act of 1988 and the Illinois Fair Housing Act (collectively, the "Fair Housing Acts") or who need assistance with ADL's. At least fifty percent (50%) of the living units within Unit 3 must be occupied by a person 55 years of age or older. Residents must require or be provided assistance with ADL's as defined above. The provisions of this Article are intended to be consistent with, and are set forth in order to comply 16 with, the Fair Housing Acts regarding discrimination based on familial status. The Master Association, acting through its Board of Directors, shall have the power to amend this Article, without the consent of the Members, for the purpose of making this Article consistent with the Fair Housing Acts, as it may be amended, the regulations adopted pursuant thereto, and any judicial decisions arising thereunder or otherwise relating thereto, in order to maintain the intent and enforceability of this Article. SECTION 8.2. Monitoring, Compliance, Appointment of Attorney-in-Fact. (a) The Owner of Unit 3 shall maintain records on the number of occupants of its property who are 55 years of age and older and those requiring assistance with ADL's and report same to the Master Association. The Master Association Board of Directors shall adopt and publish policies, procedures, and rules to monitor and maintain compliance with this Article 8, and updating of records of age and ADL requirements and enforcement. The Master Association shall make such policies, procedures, and rules available to the Owner of Unit 3. (b) The Master Association shall have the power and authority to enforce this Article 8 in any legal manner available, as the Board of Directors deems appropriate. The Owner of Unit 3 shall fully and truthfully respond to any and all requests by the Master Association for information regarding the occupancy of its property that, in the judgment of the Board of Directors, is reasonably necessary to monitor compliance with this Article 8. The City shall also have the same power and authority(but not the obligation) to enforce this Article 8. (c) The Owner of Lot 3 shall be responsible for ensuring compliance with the requirements and restrictions of this Article and the rules of the Master Association adopted hereunder. (d) Notwithstanding anything to the contrary in this Declaration, any proposed amendments or revisions to this Article 8 shall require the prior written approval of the City Council of the City of Elgin. Additionally, notwithstanding anything to the contrary in this Declaration, the City shall also have the power and authority (but not the obligation) to enforce this Article 8. ARTICLE 9. INTENTIONALLY OMITTED ARTICLE 10. INTENTIONALLY OMITTED 17 ARTICLE 11. OWNER'S OBLIGATION TO MAINTAIN SECTION 11.1. Covenant to Maintain. The Owner of Unit 3, its heirs, successors and assigns, hereby covenants and agrees at all times to maintain its Lot, and the structure(s) constructed thereon, in a neat and proper condition and to perform all necessary repairs thereto. The foregoing shall include the duty of such Owner to water the landscaping on such Owner's Lot. The Owner of Unit 3 shall be solely responsible for all installation, maintenance, repair and replacement of lawn, plants, shrubs and other landscaping materials on Unit 3. SECTION 11.2. Enforcement of Owner's Maintenance Obligations. If the Owner of Unit 3 fails to perform its obligations hereunder, the Master Association may, but shall not be required to, perform such obligations (including repair and replacement of landscaping and plant materials), and shall not thereby be deemed guilty of trespass. The Master Association shall be entitled to reimbursement in full from the Owner for its costs of every kind incurred in connection therewith, arid any such expenditures incurred by the Master Association shall become the personal obligation of the Owner and a continuing lien on Unit 3, recoverable with interest, costs and reasonable attorneys' fees in the same manner and to the same extent as provided under Section 5.1 and shall give rise to the remedies available to the Association provided in Sections 5.12 and 5.13. ARTICLE 12. ANNEXATION OF ADDITIONAL LAND SECTION 12.1. Annexation by Declarant. Declarant may, without the consent or approval of the Master Association, any Members or any Owners, annex to the Property all or part of the real estate contiguous the Property (collectively, the "Additional Land") from time to time, by a written instrument signed by Declarant and recorded with the Office of the Recorder of Kane County, Illinois. Should Declarant develop land within the Additional Land within 10 years after the date of this Declaration, such portion of the Additional Land may be annexed to the Property and made subject to this Declaration without the assent of the Class A Members. Such Additional Land, or portions thereof, may be annexed in separate phases and shall be considered annexed to said Property and subjected to the provisions of this Declaration if within such 10-year period Declarant executes and records an amendment or supplement to this Declaration with the Office of the Recorder of Kane County, Illinois, describing the portion to be annexed to said Property and legally and specifically making said Additional Land, or portion thereof, subject to this Declaration. Any such Amendment or Supplementary Declaration shall designate Lots and/or Common Area and shall also update Exhibit A hereto, if necessary. In improving or causing the improvement of any additional phases(s), Declarant shall keep the Property, subject to this Declaration, free of any liens or claims for liens for labor or materials provided in such improvements, pursuant to the Illinois mechanics' lien laws. SECTION 12.2. Annexation by the Members. Annexation of any additional real estate to the Property other than property within the Additional Land, shall require the recording with the Office of the Recorder of Kane County, Illinois of an instrument signed by the Master 18 Association with the assent of not less than 67 percent of the Voting Interest of the Members as determined in the Master Association By Laws, present in person or by written proxy at a meeting duly called for this purpose, at which a quorum is present, written notice of which shall be sent to all Members not less than five (5) days and not more than 40 days in advance of the meeting setting forth the purpose of the meeting. SECTION 12.3. Annexation Limited to Lots, Common Area, Open Space and City Property. No real estate may be annexed to the Property other than real estate that will fall within the definition of"Lots" or"Common Area," as set forth in Article 1 hereof. ARTICLE 13. AVAILABILITY OF RECORDS Any Owner or first mortgagee of any Lot shall be entitled, upon reasonable request, to receive for inspection from the Master Association current copies of the Declaration, Articles of Incorporation, By-Laws, records and financial statements of the Master Association. Furthermore, any holder of a mortgage given on any Lot within the Property and any phases annexed thereto, shall be entitled to receive from the Master Association, without cost, a copy of the Master Association's financial statement, if any, and if any mortgagee shall so request in writing prior to the preparation of the annual financial statement of the Master Association, such financial statement shall be audited. ARTICLE 14. RIGHTS OF FIRST MORTGAGEES Upon written request, any first mortgagee of a Lot shall he entitled to and shall receive from the Master Association notices of any of the following as shall be requested: (a) Any condemnation loss or casualty loss which affects a material portion of the Property and any phases annexed thereto or the Lot on which its mortgage is held; (b) Delinquency of assessments, which remain uncured for a period of 60 days or more; (c) Any lapse, cancellation, or modification of any insurance policy or fidelity bond maintained by the Master Association; (d) Any restoration or repair of the Property and any phases annexed thereto after partial condemnation or damage; and (e) Any termination of the legal status of the Property and any phases annexed thereto. Any termination of legal status as provided in Subsection (e) above, shall require the consent of 19 the holders of the mortgages on at least 51 percent of the Lots contained in the Property and any phases annexed thereto at the time thereof. ARTICLE 15. MUNICIPAL ORDINANCES PREVAIL None of the covenants, conditions, restrictions or provisions of this Declaration are intended to supersede or prevail over the ordinances of general applicability of the City, and in the event of any conflict, the applicable ordinances of the City shall supersede and prevail over the covenants, conditions, restrictions and provisions of this Declaration. However, no ordinance of the City controlling or regulating any act that is expressly limited, controlled or prohibited by the covenants of this Declaration shall operate to authorize or permit such act. The Master Association shall comply with all City ordinances and shall seek all necessary approvals and permits from the City and other applicable governmental entities for activities it undertakes within Common Area and Lots. ARTICLE 16. INSURANCE SECTION 16.1. Casualty Insurance for Single Family Homes. Each Owner shall maintain at his own cost and expense such insurance coverage as he may desire with respect to (i) personal liability for acts and occurrences upon his Lot and within his dwelling unit, (ii) physical damage losses for personal property and the contents of his dwelling unit, (iii) physical damage losses for any improvements, additions or betterments installed either by a person or entity, (iv)physical damage loss for any improvements on a Lot, and (v) any special flood hazard insurance as may be required by the first mortgagee of any Lot. The Master Association shall have no responsibility to maintain such insurance. SECTION 16.2. Casualty Insurance for Common Area. The Master Association shall obtain and maintain a policy or policies of insurance with respect to the damage or destruction of Common Area, any improvements located thereon and to any other tangible assets of the Master Association, including coverage against damage or destruction by the perils of fire, lightning and those perils contained in an all risk form, and such other perils as the Board of Directors of the Master Association from time to time may determine should be included in such coverage, in an amount equal to 100 percent of the insurable replacement cost thereof, without depreciation and with an agreed amount provision. Such insurance shall name as the insured, and the proceeds thereof shall be payable to the Master Association, as trustee. The proceeds of such insurance shall be made available, as the Board of Directors of the Master Association shall reasonably determine, for the repair, reconstruction, and restoration of such portions of Common Area and other insured items subject to the rights of the first mortgagees. To the extent feasible, all such policies of insurance shall (i) provide that the insurance shall not be invalidated by the act or neglect of Declarant, the Master Association, its Board of Directors, its officers, any Owner or occupant, or any agent, employee, guest or invitee of any of them, and (ii) shall contain an endorsement that such policies shall not be canceled without at least 30 days' prior written notice to the Master Association, the Owners, and all first mortgagees of the Lots. 20 SECTION 16.3. Liability Insurance Maintained by the Master Association. The Master Association shall obtain and maintain a policy or policies of comprehensive general liability insurance insuring on a claims-made basis the Master Association, its directors, officers, the Owners, and their agents and employees against claims for personal injury, including death and property damage, arising out of any occurrence in connection with the ownership, occupancy, use, supervision, operation, repair, maintenance or restoration of Common Area, any improvements located thereon and to any other tangible assets of the Master Association, or in connection with any act or omission of or on behalf of the Master Association, its Board of Directors, agents or employees within the Property. Such policies shall be in the amount of$1 million for bodily injury, including death, and property damage arising out of a single occurrence, and shall contain a provision that they may not be canceled without at least 30 days' prior written notice to the Master Association, the Owners, and the first mortgagees of the Lots. SECTION 16.4. Workmen's Compensation and Fidelity Insurance: Other Insurance. The Master Association shall obtain and maintain a policy or policies of insurance with reputable insurance carriers providing the following coverage: (a) Workers' compensation and employers' liability insurance in such form and in such amounts as may be necessary to comply with applicable laws; (b) Fidelity insurance or bonds in reasonable amounts for all officers and employees having fiscal responsibilities, naming the Master Association as obligee; and (c) Such other insurance in such limits and for such purpose as the Master Association may, from time to time, deem reasonable and appropriate. SECTION 16.5. Waiver of Subrogation. To the extent feasible, all policies of insurance obtained by the Master Association shall contain provisions that no act or omission of any named insured shall affect or limit the obligation of the insurance company to pay the amounts of any loss sustained. So long as the policies of insurance provided for herein shall state that a mutual release as provided for in this Section shall not affect the right of recovery thereunder, and further provide coverage for the matters for which the release herein is given, all named insureds and all parties claiming under them shall, and do by these presents, mutually release and discharge each other from all claims and liabilities arising from or caused by any hazard or source covered by any insurance procured by the Master Association, regardless of the cause of damage or loss. SECTION 16.6. Insurance Premium Expense. The expense of insurance premiums paid by the Master Association under this Article shall be an expense of the Master Association to which the assessments collected by the Master Association from the Owners shall be applied. ARTICLE 17. 21 GENERAL PROVISIONS SECTION 17.1. Enforcement. Declarant, the Master Association, or any Owner, shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, liens and charges now or hereafter imposed by the provisions of the Declaration. Failure by Declarant, the Master Association or by any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. Breach of any of the covenants shall not defeat or render invalid the lien of any mortgage or trust deed made in good faith and for value as to said Lots or property, or any parts thereof, but such provisions, restrictions or covenants shall be binding and effective against any owner of said property whose title thereto is acquired by foreclosure, trustee's sale or otherwise. The Master Association shall be entitled to recover from any Owner against which it initiates enforcement, reasonable attorneys' fees and costs expended by the Master Association in any enforcement proceedings, and any judgment obtained by the Master Association in any enforcement proceedings shall include such fees and costs. In addition, such fees and costs incurred by the Master Association against an Owner, whether or not proceedings are initiated, shall constitute a lien against his Lot which may be recovered in the manner provided in Section 5.12 hereof SECTION 17.2. Severability. Invalidation of any one or more of these covenants or restrictions by judgment or court order shall in no way affect any other provisions which shall remain in full force and effect. SECTION 17.3. Covenants Run with the Land. The covenants and restrictions of this Declaration shall run with and bind the land, and shall inure to the benefit of and be enforceable by Declarant, the Master Association, or the Owner of any Lot subject to this Declaration, and their respective legal representatives, heirs, successors, and assigns for a period of 20 years from the date this Declaration is recorded, after which time said covenants shall be automatically extended for successive periods of 10 years. SECTION 17.4. Amendment. This Declaration may be amended by an instrument signed by Owners comprising not less than 67 percent of the Voting Interest of the Members as determined in the Master Association By Laws with the written consent of mortgagees holding at least 51 percent of the outstanding mortgages on the Property. Any amendment which affects the rights and obligations of the City as set forth in this Declaration must be consented to in advance, in writing by the City Council of the City. Any such amendment that has the effect of (i) terminating this Declaration or (ii) terminating the legal status of the Master Association shall require the written consent of mortgagees holding at least 67 percent of the outstanding mortgages on the Property and any phases annexed thereto. Notwithstanding the foregoing, in the event Declarant desires to amend this Declaration: (x) to correct a technical or typographical error or to clarify any provisions herein which are otherwise vague, (y) for the sole purpose of causing this Declaration to comply with rules, regulation or guidelines as may be required by either the Federal Housing Authority (FHA) or the Veterans Administration (VA) to enable the sales of Lots from the Property to qualify for the insurance by either such agency of end mortgage loans made to Owners of such Lots, or as may be required to conform to the published manuals or guidelines of any governmental, quasi-governmental or private agency engaged in 22 the business of the purchase of mortgage loans, including, but not limited to Federal Home Loan Mortgage Corporation (FHLMC) and Federal National Mortgage Master Association (FNMA) for the purchase of mortgage loans made on Lots in the Property, or (z) for the sole purpose of causing this Declaration to comply with the requirements of any statutes, ordinances, laws or regulations applicable thereto, it may do so by an instrument signed by Declarant without the consent of Owners, mortgagees, FHA, or VA, but shall give notice of any such amendments to all Owners, the FHA, the VA, and all mortgagees of Lots who have requested the same in writing. The failure to give such notice shall not affect the validity or effectiveness of such amendment. Notwithstanding anything to the contrary contained herein, Declarant may amend this Declaration to annex the Additional Land to the Property and to ensure that the Declaration appropriately accommodates the annexation of the Additional Land, as provided in Section 12.1 hereof, without any consents, except as provided in Section 17.6. In furtherance of the foregoing, a power coupled with an interest is hereby reserved to Declarant, as attorney-in-fact to so amend the Declaration as provided in this Section 17.4, and each deed, mortgage or other instrument with respect to a Lot and acceptance thereof shall be deemed a grant and acknowledgment of and a consent to such power to said attorney-in-fact. Any amendment must be recorded with the Office of Recorder, Kane County, Illinois. SECTION 17.5. Quorum. Unless otherwise specified to the contrary in any provision of this Declaration, a quorum for any meeting of the Members shall be as set forth in the By-Laws of the Master Association. SECTION 17.6. FHA/VA Approval. As long as Declarant retains its Voting Interest pursaunt to Article 3, (i) annexation of Additional Land or (ii) amendment of this Declaration of Covenants, Conditions and Restrictions, except for amendments made pursuant to Section 17.4(x), (y) or(z) above, will require the prior approval of the FHA or VA. IN WITNESS WHEREOF, the undersigned, being the Declarant herein has hereunto set its hand and seal on the date first written above. THE TRADITIONS AT FITCHIE CREEK, L.L.C. By: Title: ATTEST: By: Title: STATE OF ILLINOIS ) ) SS COUNTY OF K A N E ) 23 I, a Notary Public, in and for said County, in the State aforesaid, DO HEREBY CERTIFY that as and as of , and personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and severally acknowledged that they signed and delivered the said instrument as such and of said corporation, and caused the corporate seal of said corporation to be affixed thereto, pursuant to authority given by the Board of Directors of said corporation, as their free and voluntary act and as the free and voluntary act and deed of said corporation, for the uses and purposes therein set forth. GIVEN under my hand and Notarial Seal this day of , 2007. NOTARY PUBLIC INSTRUMENT PREPARED BY & MAIL TO WHEN RECORDED: John E. Regan, Esq. Early, Tousey, Regan, & Wlodek 2400 Big Timber Road Suite 201A Elgin, IL 60123 24 EXHIBIT B By-Laws of The Traditions at Fitchie Creek Homeowners' Master Association (See Attached) 26 EXHIBIT C The Traditions at Fitchie Creek Preliminary Plan Exhibits (See Attached Exhibits C-1, C-2, C-3) 27 THE TRADITIONS AT FITCHIE CREEK MASTER DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS ELGIN, ILLINOIS THIS DECLARATION is made this day of , 2007, by The Traditions at Fitchie Creek, L.L.C. an Illinois limited liability company, an Illinois corporation (hereinafter referred to as "Declarant"). RECITALS: A. Declarant is the owner of certain real property located in the City of Elgin, County of Kane, State of Illinois, which is more particularly described in Exhibit A attached hereto and incorporated herein by this reference ("Property"). B. The Property' shall be conveyed to third parties, subject to certain protective easements, restrictions, covenants, conditions, reservations, liens and charges as hereinafter set forth in this Declaration. NOW, THEREFORE, Declarant hereby declares that all of the Property described in Exhibit A hereto shall be held, sold and conveyed subject to the following easements, restrictions, covenants, conditions, reservations, liens and charges, which are for the purpose of protecting the value and desirability of the Property, and which shall run with the Property and be binding on and shall inure to the benefit of all parties having any right, title or interest in the described Property or any part thereof, including their heirs, successors and assigns. ARTICLE 1. DEFINITIONS SECTION 1.1. "Additional Land" shall have the meaning ascribed to such term in Section 12.1. SECTION 1.2. "Articles of Incorporation" shall mean the Articles of Incorporation for the Master Association. SECTION 1.3. "Assessments" shall mean collectively the Base Annual Assessments, Special Assessments, and Capital Contributions and any other assessment or charge that the Master Association is authorized to levy under this Declaration. SECTION 1.4. `Base Annual Assessments"shall have the meaning ascribed to such term 1 in Section 5.2 hereof. SECTION 1.5. `By-Laws" shall mean the By-Laws of the Master Association, a true and correct copy of which is attached hereto and incorporated herein by this referenced as Exhibit B. SECTION 1.6. "Capital Contributions" shall have the meaning ascribed to such term in Section 5.4 hereof. SECTION 1.7. "City" shall mean the City of Elgin, Illinois. SECTION 1.8. "City Property" shall mean all real property, and all improvements or fixtures thereto, and all real property infrastructure improvements conveyed or dedicated by the Declarant to the City. City Property at the time of recording of this Declaration (i) shall include all storm water pipes, manholes and related storm water infrastructure installed by the Declarant within the Property and dedicated to the City; and (ii) all Dedicated Rights-of-Way. SECTION 1.9. "Community Facilities" shall mean facilities and amenities constructed by the Declarant on the Common Area for the use and enjoyment of Owners and occupants of residences within the Property and their guests and invitees. Community Facilities shall be deemed to be a part of Common Area. SECTION 1.10. "Common Area" shall mean all real property and all improvements and fixtures thereto and all personal property owned by the Master Association for the common use and enjoyment of the Owners. Common Area includes, but is not limited to the outlots designated as Common Area on Exhibit A attached hereto. Common Area may also be designated on any Plat of Subdivision of the Property or any amendments or supplements to this Declaration. SECTION 1.11. "Declarant" shall mean and refer to The Traditions at Fitchie Creek, L.L.C. , its successors and assigns, if such successors and assigns should acquire more than one undeveloped Lot from Declarant for the purpose of development. SECTION 1.12. "Dedicated Right-of-Way" shall mean and refer to the public rights-of- way depicted on any Plat of Subdivision. SECTION 1.13. "Lot" shall mean a plot of land upon which a detached single-family residence or a Multiple Family residence in the Planned Multiple Family Residence District is constructed or to be constructed. A Lot shall be a subdivision lot created by the recording of a Plat of Subdivision. SECTION 1.14. "Master Association" shall mean and refer to The Traditions at Fitchie Creek Master Homeowners' Association, an Illinois not-for-profit corporation, its successors and assigns. SECTION 1.15. "Master Association Expenses" shall mean and refer to the expenses of 2 administration, maintenance, and operation of the Master Association and the Master Association Property. SECTION 1.16. "Master Association Property" shall mean and refer to those tracts of land, together with any improvements thereon, consisting generally of wetlands, stormwater control areas, roads, green areas, and pathways which are owned from time to time by the Master Association. The term "Master Association Property" shall also include non-owned land for which the Master Association has maintenance responsibilities. The Master Association shall also have maintenance responsibilities for any properties determined by the Board to be in the best interest of the members to be maintained by the Master Association. The term "Master Association Property" shall also include any personal property acquired by the Master Association if said property is designated as "Master Association Property" in the Bill of Sale or instrument transferring same. SECTION 1.17. "Member" shall mean and refer to every person or entity who holds a membership in the Master Association, including Declarant and any beneficiary of a trust holding legal title to one or more Lots. SECTION 1.18. "Owner" shall mean and refer to the record owner, whether one or more natural persons or entities, of fee simple title to any Lot, which is a part of the Property, but excluding those having such interest merely as security for the performance of an obligation, such as secured lenders. SECTION 1.19. "Plat of Subdivision" shall mean a final plat of subdivision recorded against the Property, or any part thereof, with the Kane County Recorder of Deeds and any amended or additional plat of subdivision or re-subdivision expressly made subject to the terms of this Declaration by appropriate amendment hereto. SECTION 1.20. "Property" shall mean and refer to that certain real property described on Exhibit A, attached hereto and incorporated herein by this reference, and such additions thereto as may hereafter be brought within the jurisdiction of the Master Association by the written amendment of this Declaration, as provided under Section 12.1. SECTION 1.21. "Special Assessments" shall have the meaning ascribed to such term in Section 5.3 hereof. SECTION 1.22. "Unit 1" shall mean the tract of property within Traditions at Fitchie Creek Subdivision, as depicted on Exhibit C herein as Annexation Agreement Exhibit C-l. SECTION 1.23. "Unit 2" shall mean the tract of property within Traditions at Fitchie Creek Subdivision, as depicted on Exhibit C herein as Annexation Agreement Exhibit C-2. SECTION 1.24. "Unit 3" shall mean the tract of property within Traditions at Fitchie Creek Subdivision, as depicted on Exhibit C herein as Annexation Agreement Exhibit C-3. 3 SECTION 1.25. "Unit 1 Association" shall mean The Traditions at Fitchie Creek Unit 1 Homeowners' Association, an Illinois not-for-profit corporation, its successors and assigns, and affecting the tract of land depicted on Exhibit C herein as Annexation Agreement Exhibit C-1. SECTION 1.25. "Unit 2 Association" shall mean The Traditions at Fitchie Creek Unit 2 Homeowners' Association, an Illinois not-for-profit corporation, its successors and assigns, and affecting the tract of land depicted on Exhibit C herein as Annexation Agreement Exhibit C-2. SECTION 1.26. "Voting Interest" shall mean and refer to the arrangement established in the Bylaws of the Master Association by which the voting rights of all members may be exercised and the determination of the number of votes which may be cast on all matters on which the membership is entitled to vote. ARTICLE 2. MEMBERSHIP IN THE MASTER ASSOCIATION SECTION 2.1. Membership. Every Owner, including Declarant, shall be a Member of the Master Association, and each Owner, by acceptance of a deed for his Lot, covenants and agrees to be a Member of the Master Association, whether or not it shall be so expressed in any such deed or other conveyance. Ownership of a Lot shall be the sole qualification for membership, and there shall be only one (1) membership per Lot. In addition to the foregoing, the family, guests, invitees and tenants of said Owners shall, while in or on the Property, abide and be bound by the provisions of this Declaration or any Supplemental Declaration, the Articles of Incorporation, the Bylaws and other rules and regulations of the Master Association SECTION 2.2. Transfer of Membership. Membership held by any Owner of a Lot is an appurtenance to such Lot and shall not be transferred, alienated, or pledged in any way, except upon the sale or encumbrance of such Lot, and then only to the purchaser of such Lot. Any attempt to make such a transfer except by the sale or encumbrance of a Lot is hereby deemed to be null and void. Reference to the transfer of membership need not be made in an instrument of conveyance or encumbrance of such Lot for the transfer to be effective, and the same shall automatically pass with title to the Lot. Members are required to provide the Master Association written notification upon the transfer, alienation or sale of their Lot to a new Owner. The interest, if any, of a Member in the funds and assets of the Master Association shall not be assigned, hypothecated, or transferred in any manner except as an appurtenance to his real property. Membership in the Master Association by all Owners shall be compulsory and shall continue, as to each Owner, until such time as such Owner transfers or conveys of record his interest in real property upon which his membership is based or until said interest is transferred or conveyed by operation of law, at which time the membership shall automatically be conferred upon the transferee. Membership shall be appurtenant to, run with, and shall not be separated from the real property interest upon which membership is based. ARTICLE 3. DECLARANT VOTING RIGHTS IN THE MASTER ASSOCIATION 4 SECTION 3.1. Declarant Voting Interest. The Declarant shall have a total Voting Interest equal to not less than two-third (2/3rds) plus one (1) vote of the total number of votes eligible to be cast from time to time until the happening of any of the following events, whichever occurs earliest: (i) Ten (10) years from the date of this Declaration; (ii) One hundred twenty (120) days after the date by which 75 percent of the Lots in both The Tradition at Fitchie Creek Units 1 and 2 have been conveyed by Declarant to Owners and the single Lot in the Traditions at Fitchie creek Unit 3 has been conveyed to an Owner. (iii) The date on which Declarant voluntarily surrenders its rights under this Article 3 by executing and recording with the Recorder of Deeds of Kane County, Illinois, a written declaration of intent to withdraw, which shall become effective in the manner specified in such declaration of intent. SECTION 3.2. Exercise of Voting Rights Among Co-Owners. When more than one (1) person holds an interest in any Lot, all such persons shall be Members and the vote for such Lot shall be exercised as they determine among themselves and advise the Master Association's Secretary in writing prior to any such vote being taken. Absent such advice, the Lot's vote shall be suspended if more than one (I) person seeks to exercise it. In no event shall more than one (1) vote be cast with respect to any Lot, except in respect of the Class B Member as provided in Section 3.1(b) hereof. ARTICLE 4. DUTIES AND POWERS OF THE MASTER ASSOCIATION SECTION 4.1. General. The Master Association shall have the power and duty to (a) pay any real property taxes and other charges assessed against Common Area; (b) grant easements where necessary for public utilities over Common Area to serve Common Area or Lots; (c) adopt reasonable rules and regulations (including, with limitation, with respect to fees and fines) for (i) controlling and limiting the use of Common Area or any improvements thereto, including, without limitation, with respect to access to the Property via entranceways and use and operation of the Community Facilities; and (ii) supplementing the use restrictions contained in Article 9 or any other restrictions or provisions contained in this Declaration; 5 (d) monitor and enforce compliance with the age restrictions contained in Article 8 hereof and adopt reasonable rules and regulations (including fines) with respect thereto; (e) maintain such policy or policies of insurance, including, but not limited, to those described in Article 16, at all times as the Board of Directors deems necessary or desirable in furthering the purposes of and protecting the interests of the Master Association and its Members, officers and directors; (f) employ a manager or other persons and contract with independent contractors, managing agents, collection agents and others to perform and effectuate all or any part of the duties and powers of the Master Association, if deemed necessary by the Board of Directors; (g) enforce any easements or restrictions which may be set forth herein; (h) establish such reserves as may be required hereunder or as the Board of Directors shall from time to time deem necessary to fulfill and further the purposes of the Master Association; and (i) exercise any other right or powers given to the Master Association under this Declaration or under the Illinois Not-for-Profit Corporation Act. SECTION 4.2. Maintenance of Common Area. The Master Association shall maintain, repair, and replace, all to the extent deemed by the Board of Directors to be beneficial and convenient, Common Area, together with such other areas, if any, for which the Master Association has or assumes responsibility pursuant to the terms of this Declaration or any supplement or amendment hereto, which shall include, but need not be limited to, the following: (a) Common Area and its elements, including but not limited to grass, trees, shrubs, plantings, and other landscaping located within Common Area, lighting, and other structures and improvements located within or upon Common Area; (b) detention ponds, wetland areas and swales located on Common Area within the Property, together with any improvements thereto. (c) pathways designed to accommodate bicycle and pedestrian traffic and installed by the Declarant, whether located on Common Area or within public rights-of- way within or abutting the Property, but expressly excluding any such pathways located on City Property; (d) fences installed by the Declarant or by the Master Association on Common Area. (e) the Community Facilities and all fixtures and all furniture, equipment and other 6 personal property owned or leased by the Master Association located therein; (f) entryway signs and/or monuments identifying any portion of The Traditions at Fitchie Creek development, whether located on Common Area or within public rights-of-way within or abutting the Property; and (g) landscaping located within public rights-of-way within or abutting the Common Areas, but expressly excluding maintenance and replacement of any and all trees located within such rights-of-way, which trees shall be maintained by the City. SECTION 4.3. Watering. The Master Association shall have the right, but shall not be required, to water any grass, landscaping and plant materials located on Common Area and any Dedicated Rights-of-Way. All other watering on any Lot shall be provided by the Owner thereof. SECTION 4.4. No Maintenance of City Property. City Property shall be owned and maintained by the City. The Master Association shall have no responsibilities relative to the City Property once the City Property is conveyed to the City by dedication and/or deed, subject to the provisions of this Declaration. SECTION 4.5. Failure of Master Association to Maintain, Repair or Replace. In the event the Master Association fails to maintain, repair or replace Common Area and any improvements thereto or any improvements located within public rights-of-way within or abutting the Property that are the responsibility of the Master Association to maintain, the City may (but shall not be required to) effect such maintenance, repairs or replacements and the City shall be entitled to reimbursement in full from the Lot Owners for its costs, including reasonable attorneys' fees, incurred in connection therewith. ARTICLE 5. COVENANT FOR ASSESSMENTS SECTION 5.1. Creation of the Lien and Personal Obligation of Assessments. Each Owner of any Lot, by acceptance of a deed therefor or possession thereof(whether or not it shall be so expressed in any such deed or other conveyance), is deemed personally and individually to covenant and agree to pay to the Master Association the Assessments authorized under this Declaration. In addition, Declarant hereby covenants and agrees for each Lot owned by Declarant within the Property to pay to the Master Association the Assessments authorized under this Declaration, subject to the provisions set forth in Sections 5.8 and 5.9. All such Assessments shall be fixed, established and collected from time to time as provided in this Declaration. The Assessments, together with interest thereon, attorneys' fees and costs of collection thereof as hereinafter provided, shall be a charge on the land and shall be a continuing lien upon the Lot against which each such Assessment is made. Each such Assessment (and deficiency contributions, in the case of Declarant), together with such interest, costs and reasonable attorneys' fees, shall also be the personal obligation of the Owner of such Lot at the time when the assessment falls due. This personal obligation shall pass to each Owner's successors in title accepting a deed to or assignment of beneficial interest in any trust holding title to an Owner's 7 Lot. SECTION 5.2. Base Annual Assessments. The Master Association is authorized to levy Base Annual Assessments against all Lots subject to assessment, which shall be paid by the Owners of all Lots within the Property, to fund common expenses for the general benefit of all Owners. The allocation of assessment amounts shall be a set forth in Section 5.7 below. Base Annual Assessments shall be used for the following purposes: (a) maintenance, repair, replacement and improvement of Common Area, and all landscaping or other improvements thereon, including without limitation, detention ponds, wetland areas, neighborhood identification signs and the Community Facilities; (b) maintenance, repair and replacement of any landscaping located within Dedicated Rights-of-Way that are the responsibility of the City to maintain, to the extent such landscaping is not maintained, repaired or replaced by the City; (c) payment of premiums on insurance maintained by the Master Association pursuant to this Declaration; and (d) to provide funds for the Master Association to carry on its duties or exercise its rights set forth herein or in its Articles of Incorporation or By-Laws or in the Illinois Not-For-Profit Corporation Act. SECTION 5.3. Special Assessments. The Master Association is authorized to levy Special Assessments to cover unbudgeted expenses or expenses in excess of those budgeted, for the following purposes: (a) defraying in full or in part the cost of any construction, reconstruction, repair or replacement of any improvement on Common Area or any improvements or Community Facilities which are the responsibility of the Master Association, including the necessary fixtures, personal property or landscaping located on or related to Common Area, and all landscaping or other improvements thereon; and (b) defraying in full or in part the cost of, and providing of funds to the Master Association, for carrying on any of its duties set forth in this Declaration or in its Articles of Incorporation or By-Laws or the Illinois Not-For-Profit Corporation Act. Any Special Assessments shall have the assent of a majority of the Voting Interest of the Members as determined in the Master Association By Laws, to the extent that such interests are subject to such Special Assessment, voting in person or by proxy at a meeting duly called for such purpose, at which a quorum is present, written notice of which shall be sent to all such Members not less than five (5) days nor more than 40 days in advance of the meeting, setting 8 forth the purpose of the meeting. Unless the Special Assessment specifies that it shall be applicable to a specified number of years, it shall be applicable only to the year enacted. In the event a Special Assessment is to be levied on less than all of the Lots located within the Property, such Special Assessment may, by the action described herein, be levied against only those Lots which benefit by such Special Assessment, in proportion to their benefit, and not against the other Lots in the Property. SECTION 5.4. Capital Contributions. The Master Association is authorized to levy Capital Contributions against all Lots as provided herein. At the time of the initial sale of each Lot from Declarant to any Owner, such Owner shall pay to the Master Association a Capital Contribution, which shall be a sum equal to six (6) monthly payments of the Base Annual Assessment then in effect. The Capital Contributions shall be used by the Master Association to cover operating expenses and other expenses incurred by the Master Association pursuant to this Declaration and the By-Laws. The Capital Contributions for any Lot shall be levied only' upon the sale by Declarant to an Owner and shall not be levied on any subsequent sales of the Lot. SECTION 5.5. Basis for and Maximum Amount of Base Annual Assessments. The Base Annual Assessment shall be set from time to time by the Master Association. (a) The Base Annual Assessment may be increased effective January 1st of each year by the Board of Directors of the Master Association (at any meeting of the Board of Directors duly convened at least 30 days prior to said January effective date) without a vote of the membership, provided that any such increase shall not be greater than a 10 percent increase over the maximum Assessment permitted for the year immediately preceding for such type of Assessment. (b) The Base Annual Assessment may be increased for any year by the Board of Directors of the Master Association at any time, over the Base Annual Assessment permitted for the year immediately preceding, without the vote of the membership, if the same is necessary to pay the costs of(i) any increases in real estate taxes for Common Area over the prior year; or (ii) any increases in the maintenance of Common Area or any improvements thereon over the prior year; or (iii) any increases in premiums for insurance procured by the Master Association over the prior year. (a) The Base Annual Assessment may be increased for the coming assessment year only for all succeeding assessment years effective January 1st of each year by the Board of Directors at any meeting of the Board of Directors (duly convened at least 30 days prior to said January 151 effective date) in an amount greater than provided in subsections (a) or (b) hereof for the coming assessment year, provided that any such change shall have the assent of the majority of the Voting Interests of the Members as provided in the Master Association By Laws, that pay such Assessment, voting in person or by proxy, at a meeting duly called for such purpose, at which a quorum is present, written notice of which will be sent to all Members that pay such Assessments not less than five (5) day's nor more 9 -- it if( J . /� // // f, , } Yr�; �'• Y y � `I!U! IP % /a /, 4 t •nt —r � n 4 a e : 1 } , 'tom / 7 Est B :K6 R / /% Raa a AAA // �1 ,1 i . "" !9c : :rr • i f e 1, .. 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REVISIONS THE GLEN opioNco BY--AS w TrEZIMMS illir GMAUNDSON_,,,_'"",,"::: ?,.-.... -=- _____ ELGIN, ILLINOIS PLAN DRAWN or—J2III o4Eoco)Dv_MS Q. SON LEDER,LTD. 7^,A,=:''' -±....,.., -=_ _ — `I— ;ill IL►!il ROTH Architects 1306 Shaman Ave. 70.Bon 3093 Evanston,11 60104.5091 t 1 -t� RI-) fax(847)4754753 JJ J emn rdrMh(44nmarthhan.:mn �' QD i Prot f.A,c Finn 41/4183696 11 D LU`� `I I Rvf At.h test 41016842 dD gifit'�1� N ( .....`�... :�.� - Z` � �� Imo' m J 1 glig.;;fir- .._... i oo �Iiiia. 3. ... ... ...... 1 -_ ❑o iii •• ..' J Z s ! L ❑o' a 'o.MIN li it ■IN .I �''■L.: L.I iii:III. _h�I��II�r�I , ._Illii�Gii'I= �r�T1 ( 'liii Cii' Q w .. .-- 00 .. ... ii!!!lnl�l=l=}�fli,I • ( -II—ICI_ io 0� _ �_= 5 v' Vii■ IN I M■■ a_=,- et- - ��1�� �m� _�_tea 1.1 �.•n��,..4.:_-_,.I�am N. _� I E?O 1 z z CC— OUJo wz (1) <� 00 zw g¢ E 2 0 0 w I I- SR �/� _ _ _ .\ 7 IY �J I ; SR �i 1 '11 SR MRS It-30-400! V. oa1)o z e. 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Iii rAll• PATIO PATIO ROTH a'-m"xim'-m" tea„ m'-m"x12-m.. • MASTER MASTER FAMILY Architects BEDROOM -_ -, BEDROOM ROOM 1106 Sham=Arc. 15'-5"x15'-1" 14'-5"x16'-1" rte- P.O.Box 9393 j' � Ib'-0"x20'-1" Ir_ Er.mmn•a 60204-3091 I....A 1 6.a:(147)17S-1755 L 1--+ °m.0:,emmt 050v04«u.on" HOOK Pd Design Finn 734.302696 -.... 101-0"x10'-0" He.Ae4'nea/10161192 FAMILY 1 1... °m.°r.°....'""rd 1` i1 �� W.I.G. ii o.�.... nw.. T1 �� 1 ...RR". r.M w.0 if,BATH I� , , C / ° A(01 10 ,� KITCHEN $ 0 J � -- � 14'-4'x12,_3„ ® !oi0 ' T1.BATH ® . i .. .Y- 1 F W KITCHEN 1-- ^1 ___ 1 mum 10'_5"xl4'-7' ®..I BATH ),,Q =Z BEDROOM"2 01 ° ��.. I—LL? H In 4 m'-II"x1a'_I1" pro 4 i W m c,J F y_ @ c p1d1 Ki oCC 1 � P i - ROOM W Z z5 14'_I"xIP'�" Z�L Q J Q� __ BEDROOM•1 I •I Z W 2 Q O�1.. LT III 11'_6"x12'_6" ® W 2 •' NOOK 1 43 J Q Iic ®— `- C7 0 LA)NDRY 10'-m"x10'-0" 1 ..••Z W --.L _ LIYING• }l J_LJ_L� I1 IF ROOM erR SEAL 14'-I'k11'-1" SR RARTOAMC N0.49C� AR TO ATTIC NM ry4 DINING IIMSPIAM a.SRe $Q.C2t1 FOYER SR 10'-5"x13'-0" """ SR DPWE511-30-1001 2-CAR GARAGE 2-CAR GARAGE nat. ., We e.9.• 19'-9"x21'-I" 20'_5"x20'_1" - -. G.OI it PECI 191-0"BAY) �a 14'-1"x1r-1" (al'-0"BAY) FOYER 9 (d'-0"BAY) j.IYIN ROOM/ PEN ICI PORCH 10'-5"x10'-I" PORCH X ` Amor a ` - . re } E. a r SE SINGLE FAMIL' 9311 AREA•Ibee ea.FT-MVO GARAGE) WIT AREA•2.310 ea.FT.(LWO GARAGE) PLANS .TYPICAL FIRST FLOOR PLAN - OPTION 2 fib FIRST FLOOR PLAN - OPTION I 01.10.07 ..Et la 4 CAI.C.V4,1,0 .,• -WP.r MA NO.06286 A-3 SONG AS NOTED PROJECT NAME: The Glen PMFR 2007 tja Location(NW,SW,or Other)' SW CITY OF ELGIN IMPACT FEES WORKSHEET Sewer Recapture(North Randall,Sleepy Hollow, Bowes Creek GROUP EXHIBIT F Tyler Creek,Bowes Road,Bowes Creek,N/A) School School School Park Park Water Sewer Recapture Roadway(SW) Library Public Safety Project Land Capital Transition Land Capital PROJECT Numbers Project Fee Project Fee Project Fee Project Fee Project Fee Project Fee Project Fee Project Fee Project Fee Project Fee SUBTOTALS Non-Residential $0.00 $0.00 $0.00 $0.00 $0.00 TBD3 $305.00 $0.00 $0.00 $173.89 Congregate Care/Unit 1,000 $0.00 $0.00 $0.00 $0.00 $0.00 $305.00 $0.00 $0.00 $173.89 $478.89 Note: For Non-Residential,a"Unit"is 1,000 square feet of floor area Note: Water fees are based upon the water service size. This table assumes one 1-inch service per attached or detached SFR. The fee for a 1 inch or smaller service is$1,300. Fees for larger services are listed below: 1.25"service: $2,030 1.5"service: $2,910 2"service: $5,160 4"service: $20,680 >4"service: $25,000 Note: The maximum sewer recapture fee for a non-residential building is$50,000. PROJECT NAME: The Glen PSFR2(AR)2007 tja Location(NW,SW,or Other)' SW CITY OF ELGIN IMPACT FEES WORKSHEET Sewer Recapture(North Randall,Sleepy Hollow, Bowes Creek GROUP EXHIBIT F Tyler Creek,Bowes Road,Bowes Creek,N/A) School School School Park Park Water Sewer Roadway(SW) Library Public Safety Project Land Capital Transition Land Capital Recapture PROJECT Numbers Project Fee Project Fee Project Fee Project Fee Project Fee Project Fee Project Fee Project Fee Project Fee Project Fee SUBTOTALS Single Family(Age Restricted) $0.00 $0.00 $0.00 $923.13 $511.24 $1,300.00 $831.00 $1,046.72 $118.25 $757.01 2-bedroom units: 1 $0.00 $0.00 $0.00 $923.13 $511.24 $1,300.00 $831.00 $1,046.72 $118.25 $757.01 $5,487.34 $0.00 $0.00 $0.00 $1,326.79 $734.98 $1,300.00 $831.00 $1,046.72 $170.41 $757.01 i 3-bedroom units: 1 $0.00 $0.00 $0.00 $1,326.79 $734.98 $1,300.00 $831.00 $1,046.72 $170.41 $757.01 $6,166.92 ■ 3 6 PROJECT NAME: The Glen PSFR2 2007 tja Location(NW,SW,or Other)t SW CITY OF ELGIN IMPACT FEES WORKSHEET Sewer Recapture(North Randall,Sleepy Hollow, Bowes Creek GROUP EXHIBIT F Tyler Creek,Bowes Road,Bowes Creek,N/A) School School School Park Park Water Sewer Roadway(SW) Library Public Safety TOTAL Unit Land Capital Transition Land Capital Recapture PER Type Project Fee Project Fee Project Fee Project Fee Project Fee Project Fee Project Fee Project Fee Project Fee Project Fee UNIT TYPE Single Family(no Age Restriction) $1,203.72 $1,830.31 $2,095.02 $1,326.79 $734.98 $1,300.00 $831.00 $2,093.45 $170.41 $757.01 3-bedroom units: 1 $1,203.72 $1,830.31 $2,095.02 $1,326.79 $734.98 $1,300.00 $831.00 $2,093.45 $170.41 $757.01 $12,342.69 $1,994.05 $3,115.75 $3,605.00 $1,722.68 $955.24 $1,300.00 $831.00 $2,093.45 $220.26 $757.01 ,4-bedroom units: 1 $1,994.05 $3,115.75 $3,605.00 $1,722.68 $955.24 $1,300.00 $831.00 $2,093.45 $220.26 $757.01 $16,594.44 • A 'L I �_ _ ROTH Architects Sb O40. - - P.O.Box 5093 61400r,IL 60204.5093 ii 1111111.. 61:p47)475.4750 1111111 fax:(647)475.4753 •••••. 01.111{1„ �LZ7_ .-n.a:wm6�inh.Rhitati... . ... ____......____ ________ - --m.- �_ 11'' P 8$I}j II Pm6.Dnipl Finn NI 84-002696 SITThJ[. is,.LJ! 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Declarant is the owner of certain real property located in the City of Elgin, County of Kane, State of Illinois, which is more particularly described in Exhibit A attached hereto and incorporated herein by this reference ("Property"). B. The Property' shall be conveyed to third parties, subject to certain protective easements, restrictions, covenants, conditions, reservations, liens and charges as hereinafter set forth in this Declaration. NOW, THEREFORE, Declarant hereby declares that all of the Property described in Exhibit A hereto shall be held, sold and conveyed subject to the following easements, restrictions, covenants, conditions, reservations, liens and charges, which are for the purpose of protecting the value and desirability of the Property, and which shall run with the Property and be binding on and shall inure to the benefit of all parties having any right, title or interest in the described Property or any part thereof, including their heirs, successors and assigns. ARTICLE 1. DEFINITIONS SECTION 1.1. "Additional Land" shall have the meaning ascribed to such term in Section 12.1. SECTION 1.2. "Articles of Incorporation" shall mean the Articles of Incorporation for the Master Association. SECTION 1.3. "Assessments" shall mean collectively the Base Annual Assessments, Special Assessments, and Capital Contributions and any other assessment or charge that the Master Association is authorized to levy under this Declaration. SECTION 1.4. `Base Annual Assessments" shall have the meaning ascribed to such term EXFNEUT 1 j_,j in Section 5.2 hereof. SECTION 1.5. `By-Laws" shall mean the By-Laws of the Master Association, a true and correct copy of which is attached hereto and incorporated herein by this referenced as Exhibit B. SECTION 1.6. "Capital Contributions" shall have the meaning ascribed to such term in Section 5.4 hereof. SECTION 1.7. "City" shall mean the City of Elgin, Illinois. SECTION 1.8. "City Property" shall mean all real property, and all improvements or fixtures thereto, and all real property infrastructure improvements conveyed or dedicated by the Declarant to the City. City Property at the time of recording of this Declaration (i) shall include all storm water pipes, manholes and related storm water infrastructure installed by the Declarant within the Property and dedicated to the City; and (ii) all Dedicated Rights-of-Way. SECTION 1.9. "Community Facilities" shall mean facilities and amenities constructed by the Declarant on the Common Area for the use and enjoyment of Owners and occupants of residences within the Property and their guests and invitees. Community Facilities shall be deemed to be a part of Common Area. SECTION 1.10. "Common Area" shall mean all real property and all improvements and fixtures thereto and all personal property owned by the Master Association for the common use and enjoyment of the Owners. Common Area includes, but is not limited to the outlots designated as Common Area on Exhibit A attached hereto. Common Area may also be designated on any Plat of Subdivision of the Property or any amendments or supplements to this Declaration. SECTION 1.11. "Declarant" shall mean and refer to The Traditions at Fitchie Creek, L.L.C. , its successors and assigns, if such successors and assigns should acquire more than one undeveloped Lot from Declarant for the purpose of development. SECTION 1.12. "Dedicated Right-of-Way" shall mean and refer to the public rights-of- way depicted on any Plat of Subdivision. SECTION 1.13. "Lot" shall mean a plot of land upon which a detached single-family residence or a Multiple Family residence in the Planned Multiple Family Residence District is constructed or to be constructed. A Lot shall be a subdivision lot created by the recording of a Plat of Subdivision. SECTION 1.14. "Master Association" shall mean and refer to The Traditions at Fitchie Creek Master Homeowners' Association, an Illinois not-for-profit corporation, its successors and assigns. SECTION 1.15. "Master Association Expenses" shall mean and refer to the expenses of 2 administration, maintenance, and operation of the Master Association and the Master Association Property. SECTION 1.16. "Master Association Property" shall mean and refer to those tracts of land, together with any improvements thereon, consisting generally of wetlands, stormwater control areas, roads, green areas, and pathways which are owned from time to time by the Master Association. The term "Master Association Property" shall also include non-owned land for which the Master Association has maintenance responsibilities. The Master Association shall also have maintenance responsibilities for any properties determined by the Board to be in the best interest of the members to be maintained by the Master Association. The term "Master Association Property" shall also include any personal property acquired by the Master Association if said property is designated as "Master Association Property" in the Bill of Sale or instrument transferring same. SECTION 1.17. "Member" shall mean and refer to every person or entity who holds a membership in the Master Association, including Declarant and any beneficiary of a trust holding legal title to one or more Lots. SECTION 1.18. "Owner" shall mean and refer to the record owner, whether one or more natural persons or entities, of fee simple title to any Lot, which is a part of the Property, but excluding those having such interest merely as security for the performance of an obligation, such as secured lenders. SECTION 1.19. "Plat of Subdivision" shall mean a final plat of subdivision recorded against the Property, or any part thereof, with the Kane County Recorder of Deeds and any amended or additional plat of subdivision or re-subdivision expressly made subject to the terms of this Declaration by appropriate amendment hereto. SECTION 1.20. "Property" shall mean and refer to that certain real property described on Exhibit A, attached hereto and incorporated herein by this reference, and such additions thereto as may hereafter be brought within the jurisdiction of the Master Association by the written amendment of this Declaration, as provided under Section 12.1. SECTION 1.21. "Special Assessments" shall have the meaning ascribed to such term in Section 5.3 hereof SECTION 1.22. "Unit 1" shall mean the tract of property within Traditions at Fitchie Creek Subdivision, as depicted on Exhibit C herein as Annexation Agreement Exhibit C-1. SECTION 1.23. "Unit 2" shall mean the tract of property within Traditions at Fitchie Creek Subdivision, as depicted on Exhibit C herein as Annexation Agreement Exhibit C-2. SECTION 1.24. "Unit 3" shall mean the tract of property within Traditions at Fitchie Creek Subdivision, as depicted on Exhibit C herein as Annexation Agreement Exhibit C-3. 3 SECTION 1.25. "Unit 1 Association" shall mean The Traditions at Fitchie Creek Unit 1 Homeowners' Association, an Illinois not-for-profit corporation, its successors and assigns, and affecting the tract of land depicted on Exhibit C herein as Annexation Agreement Exhibit C-1. SECTION 1.25. "Unit 2 Association" shall mean The Traditions at Fitchie Creek Unit 2 Homeowners' Association, an Illinois not-for-profit corporation, its successors and assigns, and affecting the tract of land depicted on Exhibit C herein as Annexation Agreement Exhibit C-2. SECTION 1.26. "Voting Interest" shall mean and refer to the arrangement established in the Bylaws of the Master Association by which the voting rights of all members may be exercised and the determination of the number of votes which may be cast on all matters on which the membership is entitled to vote. ARTICLE 2. MEMBERSHIP IN THE MASTER ASSOCIATION SECTION 2.1. Membership. Every Owner, including Declarant, shall be a Member of the Master Association, and each Owner, by acceptance of a deed for his Lot, covenants and agrees to be a Member of the Master Association, whether or not it shall be so expressed in any such deed or other conveyance. Ownership of a Lot shall be the sole qualification for membership, and there shall be only one (1) membership per Lot. In addition to the foregoing, the family, guests, invitees and tenants of said Owners shall, while in or on the Property, abide and be bound by the provisions of this Declaration or any Supplemental Declaration, the Articles of Incorporation, the Bylaws and other rules and regulations of the Master Association SECTION 2.2. Transfer of Membership. Membership held by any Owner of a Lot is an appurtenance to such Lot and shall not be transferred, alienated, or pledged in any way, except upon the sale or encumbrance of such Lot, and then only to the purchaser of such Lot. Any attempt to make such a transfer except by the sale or encumbrance of a Lot is hereby deemed to be null and void. Reference to the transfer of membership need not be made in an instrument of conveyance or encumbrance of such Lot for the transfer to be effective, and the same shall automatically pass with title to the Lot. Members are required to provide the Master Association written notification upon the transfer, alienation or sale of their Lot to a new Owner. The interest, if any, of a Member in the funds and assets of the Master Association shall not be assigned, hypothecated, or transferred in any manner except as an appurtenance to his real property. Membership in the Master Association by all Owners shall be compulsory and shall continue, as to each Owner, until such time as such Owner transfers or conveys of record his interest in real property upon which his membership is based or until said interest is transferred or conveyed by operation of law, at which time the membership shall automatically be conferred upon the transferee. Membership shall be appurtenant to, run with, and shall not be separated from the real property interest upon which membership is based. ARTICLE 3. DECLARANT VOTING RIGHTS IN THE MASTER ASSOCIATION 4 SECTION 3.1. Declarant Voting Interest. The Declarant shall have a total Voting Interest equal to not less than two-third (2/3rds) plus one (1) vote of the total number of votes eligible to be cast from time to time until the happening of any of the following events, whichever occurs earliest: (i) Ten (10) years from the date of this Declaration; (ii) One hundred twenty (120) days after the date by which 75 percent of the Lots in both The Tradition at Fitchie Creek Units 1 and 2 have been conveyed by Declarant to Owners and the single Lot in the Traditions at Fitchie creek Unit 3 has been conveyed to an Owner. (iii) The date on which Declarant voluntarily surrenders its rights under this Article 3 by executing and recording with the Recorder of Deeds of Kane County, Illinois, a written declaration of intent to withdraw, which shall become effective in the manner specified in such declaration of intent. SECTION 3.2. Exercise of Voting Rights Among Co-Owners. When more than one (1) person holds an interest in any Lot, all such persons shall be Members and the vote for such Lot shall be exercised as they determine among themselves and advise the Master Association's Secretary in writing prior to any such vote being taken. Absent such advice, the Lot's vote shall be suspended if more than one (I) person seeks to exercise it. In no event shall more than one (1) vote be cast with respect to any Lot, except in respect of the Class B Member as provided in Section 3.1(b) hereof ARTICLE 4. DUTIES AND POWERS OF THE MASTER ASSOCIATION SECTION 4.1. General. The Master Association shall have the power and duty to (a) pay any real property taxes and other charges assessed against Common Area; (b) grant easements where necessary for public utilities over Common Area to serve Common Area or Lots; (c) adopt reasonable rules and regulations (including, with limitation, with respect to fees and fines) for (i) controlling and limiting the use of Common Area or any improvements thereto, including, without limitation, with respect to access to the Property via entranceways and use and operation of the Community Facilities; and (ii) supplementing the use restrictions contained in Article 9 or any other restrictions or provisions contained in this Declaration; 5 (d) monitor and enforce compliance with the age restrictions contained in Article 8 hereof and adopt reasonable rules and regulations (including fines) with respect thereto; (e) maintain such policy or policies of insurance, including, but not limited, to those described in Article 16, at all times as the Board of Directors deems necessary or desirable in furthering the purposes of and protecting the interests of the Master Association and its Members, officers and directors; (f) employ a manager or other persons and contract with independent contractors, managing agents, collection agents and others to perform and effectuate all or any part of the duties and powers of the Master Association, if deemed necessary by the Board of Directors; (g) enforce any easements or restrictions which may be set forth herein; (h) establish such reserves as may be required hereunder or as the Board of Directors shall from time to time deem necessary to fulfill and further the purposes of the Master Association; and (i) exercise any other right or powers given to the Master Association under this Declaration or under the Illinois Not-for-Profit Corporation Act. SECTION 4.2. Maintenance of Common Area. The Master Association shall maintain, repair, and replace, all to the extent deemed by the Board of Directors to be beneficial and convenient, Common Area, together with such other areas, if any, for which the Master Association has or assumes responsibility pursuant to the terms of this Declaration or any supplement or amendment hereto, which shall include, but need not be limited to, the following: (a) Common Area and its elements, including but not limited to grass, trees, shrubs, plantings, and other landscaping located within Common Area, lighting, and other structures and improvements located within or upon Common Area; (b) detention ponds, wetland areas and swales located on Common Area within the Property, together with any improvements thereto. (c) pathways designed to accommodate bicycle and pedestrian traffic and installed by the Declarant, whether located on Common Area or within public rights-of- way within or abutting the Property, but expressly excluding any such pathways located on City Property; (d) fences installed by the Declarant or by the Master Association on Common Area. (e) the Community Facilities and all fixtures and all furniture, equipment and other 6 personal property owned or leased by the Master Association located therein; (f) entryway signs and/or monuments identifying any portion of The Traditions at Fitchie Creek development, whether located on Common Area or within public rights-of-way within or abutting the Property; and (g) landscaping located within public rights-of-way within or abutting the Common Areas, but expressly excluding maintenance and replacement of any and all trees located within such rights-of-way, which trees shall be maintained by the City. SECTION 4.3. Watering. The Master Association shall have the right, but shall not be required, to water any grass, landscaping and plant materials located on Common Area and any Dedicated Rights-of-Way. All other watering on any Lot shall be provided by the Owner thereof. SECTION 4.4. No Maintenance of City Property. City Property shall be owned and maintained by the City. The Master Association shall have no responsibilities relative to the City Property once the City Property is conveyed to the City by dedication and/or deed, subject to the provisions of this Declaration. SECTION 4.5. Failure of Master Association to Maintain, Repair or Replace. In the event the Master Association fails to maintain, repair or replace Common Area and any improvements thereto or any improvements located within public rights-of-way within or abutting the Property that are the responsibility of the Master Association to maintain, the City may (but shall not be required to) effect such maintenance, repairs or replacements and the City shall be entitled to reimbursement in full from the Lot Owners for its costs, including reasonable attorneys' fees, incurred in connection therewith. ARTICLE 5. COVENANT FOR ASSESSMENTS SECTION 5.1. Creation of the Lien and Personal Obligation of Assessments. Each Owner of any Lot, by acceptance of a deed therefor or possession thereof(whether or not it shall be so expressed in any such deed or other conveyance), is deemed personally and individually to covenant and agree to pay to the Master Association the Assessments authorized under this Declaration. In addition, Declarant hereby covenants and agrees for each Lot owned by Declarant within the Property to pay to the Master Association the Assessments authorized under this Declaration, subject to the provisions set forth in Sections 5.8 and 5.9. All such Assessments shall be fixed, established and collected from time to time as provided in this Declaration. The Assessments, together with interest thereon, attorneys' fees and costs of collection thereof as hereinafter provided, shall be a charge on the land and shall be a continuing lien upon the Lot against which each such Assessment is made. Each such Assessment (and deficiency contributions, in the case of Declarant), together with such interest, costs and reasonable attorneys' fees, shall also be the personal obligation of the Owner of such Lot at the time when the assessment falls due. This personal obligation shall pass to each Owner's successors in title accepting a deed to or assignment of beneficial interest in any trust holding title to an Owner's 7 Lot. SECTION 5.2. Base Annual Assessments. The Master Association is authorized to levy Base Annual Assessments against all Lots subject to assessment, which shall be paid by the Owners of all Lots within the Property, to fund common expenses for the general benefit of all Owners. The allocation of assessment amounts shall be a set forth in Section 5.7 below. Base Annual Assessments shall be used for the following purposes: (a) maintenance, repair, replacement and improvement of Common Area, and all landscaping or other improvements thereon, including without limitation, detention ponds, wetland areas, neighborhood identification signs and the Community Facilities; (b) maintenance, repair and replacement of any landscaping located within Dedicated Rights-of-Way that are the responsibility of the City to maintain, to the extent such landscaping is not maintained, repaired or replaced by the City; (c) payment of premiums on insurance maintained by the Master Association pursuant to this Declaration; and (d) to provide funds for the Master Association to carry on its duties or exercise its rights set forth herein or in its Articles of Incorporation or By-Laws or in the Illinois Not-For-Profit Corporation Act. SECTION 5.3. Special Assessments. The Master Association is authorized to levy Special Assessments to cover unbudgeted expenses or expenses in excess of those budgeted, for the following purposes: (a) defraying in full or in part the cost of any construction, reconstruction, repair or replacement of any improvement on Common Area or any improvements or Community Facilities which are the responsibility of the Master Association, including the necessary fixtures, personal property or landscaping located on or related to Common Area, and all landscaping or other improvements thereon; and (b) defraying in full or in part the cost of, and providing of funds to the Master Association, for carrying on any of its duties set forth in this Declaration or in its Articles of Incorporation or By-Laws or the Illinois Not-For-Profit Corporation Act. Any Special Assessments shall have the assent of a majority of the Voting Interest of the Members as determined in the Master Association By Laws, to the extent that such interests are subject to such Special Assessment, voting in person or by proxy at a meeting duly called for such purpose, at which a quorum is present, written notice of which shall be sent to all such Members not less than five (5) days nor more than 40 days in advance of the meeting, setting 8 forth the purpose of the meeting. Unless the Special Assessment specifies that it shall be applicable to a specified number of years, it shall be applicable only to the year enacted. In the event a Special Assessment is to be levied on less than all of the Lots located within the Property, such Special Assessment may, by the action described herein, be levied against only those Lots which benefit by such Special Assessment, in proportion to their benefit, and not against the other Lots in the Property. SECTION 5.4. Capital Contributions. The Master Association is authorized to levy Capital Contributions against all Lots as provided herein. At the time of the initial sale of each Lot from Declarant to any Owner, such Owner shall pay to the Master Association a Capital Contribution, which shall be a sum equal to six (6) monthly payments of the Base Annual Assessment then in effect. The Capital Contributions shall be used by the Master Association to cover operating expenses and other expenses incurred by the Master Association pursuant to this Declaration and the By-Laws. The Capital Contributions for any Lot shall be levied only' upon the sale by Declarant to an Owner and shall not be levied on any subsequent sales of the Lot. SECTION 5.5. Basis for and Maximum Amount of Base Annual Assessments. The Base Annual Assessment shall be set from time to time by the Master Association. (a) The Base Annual Assessment may be increased effective January 1st of each year by the Board of Directors of the Master Association (at any meeting of the Board of Directors duly convened at least 30 days prior to said January effective date) without a vote of the membership, provided that any such increase shall not be greater than a 10 percent increase over the maximum Assessment permitted for the year immediately preceding for such type of Assessment. (b) The Base Annual Assessment may be increased for any year by the Board of Directors of the Master Association at any time, over the Base Annual Assessment permitted for the year immediately preceding, without the vote of the membership, if the same is necessary to pay the costs of(i) any increases in real estate taxes for Common Area over the prior year; or (ii) any increases in the maintenance of Common Area or any improvements thereon over the prior year; or (iii) any increases in premiums for insurance procured by the Master Association over the prior year. (a) The Base Annual Assessment may be increased for the coming assessment year only for all succeeding assessment years effective January 1st of each year by the Board of Directors at any meeting of the Board of Directors (duly convened at least 30 days prior to said January 1st effective date) in an amount greater than provided in subsections (a) or (b) hereof for the coming assessment year, provided that any such change shall have the assent of the majority of the Voting Interests of the Members as provided in the Master Association By Laws, that pay such Assessment, voting in person or by proxy, at a meeting duly called for such purpose, at which a quorum is present, written notice of which will be sent to all Members that pay such Assessments not less than five (5) day's nor more 9 than 40 days in advance of the meeting, setting forth the purpose of the meeting. (b) After consideration of future needs and expected expenditures of the Master Association, the Board of Directors may fix either type of Assessment in lesser amounts than the maximum Assessments permitted or may, in its discretion, require no Assessment of either type whatsoever for any year, but such action shall not limit or prohibit the Board of Directors from fixing such Assessments for any year(s) following on the basis of increases in the maximum Assessments permitted hereunder rather than the assessments so fixed. SECTION 5.6. Reasonable Reserves. The Master Association shall establish and maintain from Base Annual Assessments collected hereunder, reasonable reserves for the costs of the maintenance, repair and replacement of those items which are the responsibility of the Master Association. The Master Association may' establish and maintain such other reasonable reserves as the Board of Directors deems necessary and convenient which are consistent with the powers and duties of the Master Association. SECTION 5.7. Uniform Rate of Assessment. Base Annual Assessments must be fixed at a uniform rate for all single family Lots in Units 1 and 2 subject thereto. The Base Annual Assessment for the single Lot consisting of Unit 3 shall bear a relationship to the total Annual Assessment consisting of a percentage (the "Unit 3 Allocable Percentage"), the numerator of which is the total square footage area of the all property zoned for Planned Multiple Family Residence District and the denominator of whish is the total square footage area of all property zoned both for Planned Single Family Residence Districts and Planned Multiple Family Residence District and excluding any land zoned for Planned Community Facility District. The Base Annual Assessment for Unit 3 shall be the product of the Unit 3 Allocable Percentage times the total Annual Assessment. The Base Annual Assessment may be collected on a quarterly basis or such other periodic basis as set by the Board of Directors. SECTION 5.8. Assessment for Lots Owned by Declarant Notwithstanding the foregoing provisions, Base Annual Assessments and Special Assessments for any Lots while (i) owned by Declarant and improved with a completed residence, but unoccupied by any tenant of Declarant, or (ii) owned by any party but occupied by Declarant and used as a model or a sale office, shall be limited to 25 percent of the amounts fixed with respect to such type of Lots owned by Owners other than Declarant. Prior to the completion of a residence on any Lot, (which shall mean the issuance of a certificate of occupancy therefor by the City), such Lot shall be exempt from payment of any and all Assessments. SECTION 5.9. Deficiency Contributions. For every calendar year during which Declarant maintains its Voting Interest pursuant to Article 3 above in the Master Association, Declarant shall contribute to the Master Association all funds in excess of the budgeted and collected Assessments which shall be necessary to defray the costs properly paid or incurred by it for the purposes for which Base Annual Assessments may be collected, all without limitation to the maximum amounts provided under Section 5.5 hereof. Declarant's contribution for the calendar year during which Declarant's Article 3 Voting Interest terminates shall be prorated to 10 the date of such termination. For purposes hereof; the establishment of reserves pursuant to Section 5.6 does not constitute the payment or incurring of costs by the Master Association and Declarant's deficiency contribution shall not be required to be applied to the establishment of reserves. SECTION 5.10. Date of Commencement of Annual Assessments; Due Dates. Base Annual Assessments provided for herein shall commence for any Lot within the Property, or any land annexed to the Property, on the day of the conveyance of the first Lot of such type in the Property and shall be prorated for the month of said conveyance. The Board of Directors shall fix the amount of such Assessments at least 30 days in advance of each annual Assessment period, and in lieu thereof; the amount of each type of such Assessment for the prior year shall be the fixed amount. Written notice of any changed amount of such Assessments shall be sent to every Owner subject thereto, but failure to do so shall not invalidate the changed Assessments. Base Annual Assessments shall he payable in quarterly installment or such other periodic basis set by the Board of Directors. SECTION 5.11. Certificate of Payment. The Master Association shall, upon demand, furnish to any Owner liable for said Assessments, a certificate in writing signed by an officer of the Master Association, setting forth whether the Assessments on a specified Lot have been paid and the amount of the delinquency, if any. A reasonable charge may be made by the Board of Directors for the issuance of such certificates. Such certificates shall be conclusive evidence that any Assessment therein stated to have been paid has in fact been paid. No charge shall he made for issuing from time to time said certificates to Declarant on Lots then owned by Declarant. SECTION 5.12. Delinquency in Payment of Assessments. Any Assessment provided for in this Declaration which is not paid when due, shall he delinquent. With respect to each Assessment not paid within 15 days after its due date, the Master Association may, at its election, require the Owner to pay a "late charge" in a sum to be determined by the Master Association and applied uniformly. If any such Assessment is not paid within 30 days after the delinquency date, the Assessment shall bear interest from the date of delinquency at the highest rate permitted by Illinois law, and the Master Association may, at its option, bring an action at law against the Owner personally obligated to pay the same, or foreclose the lien (provided for in Section 5.1 hereof) against the Lot, and there shall be added to the amount of such Assessment the late charge, the costs of preparing and filing a Complaint in such action and reasonable attorneys' fees, and in the event a judgment is obtained, such judgment shall include all Assessments accrued from date of suit to judgment, increased by such late charges, costs and fees, plus interest. Each Owner vests in the Master Association or its assigns, the right and power to bring all actions at law or lien foreclosures against such Owner for the collection of such delinquent assessments SECTION 5.13. Suspension of Voting Rights Due to Unpaid Assessments. The Master Association is authorized to suspend the voting rights of an Owner for any' period during which any Assessment against such Owner's Lot remains unpaid and delinquent, and for a period not to exceed 30 days for any single infraction of the published rules and regulations of the Master Association, provided that any suspension of such voting rights, except for failure to pay 11 Assessments, shall be made only by the Master Association or a duly appointed committee thereof, after notice and hearing given and held in accordance with the By-Laws or rules and regulations of the Master Association. The foregoing shall not apply to unfunded deficiency contributions of the Declarant under Section 5.9. SECTION 5.14. Waiver of Use. No Member may exempt himself from personal liability for Assessments duly levied by' the Master Association nor release the Lot owned by him from the liens and charges hereof, by waiver of the use and enjoyment of Common Area or by abandonment of his Lot. SECTION 5.15. Subordination of the Lien to Mortgages. The lien of the Assessments provided for herein shall be subordinate to the lien of any first mortgage or trust deed. Sale or transfer of any Lot shall not affect the Assessment lien. However, the sale or transfer of any Lot pursuant to the foreclosure of a mortgage or trust deed or any proceeding or deed in lieu thereof shall extinguish the lien of such Assessments as to payments which become due prior to such sale or transfer. No sale or transfer shall relieve such Lot from liability for any Assessments thereafter becoming due or from the lien thereof. ARTICLE 6. PROPERTY RIGHTS SECTION 6.1. Members' Easements over Common Area. Every Member shall have a right and easement for ingress and egress over and across, and for use of and enjoyment in and to, Common Area and the improvements thereon, and such easements shall be appurtenant to and shall pass with the title to every Lot. Reference in the respective deeds of conveyance, or in any mortgage or trust deed or other evidence of obligation, to the easements and covenants herein described shall be sufficient to create and reserve such easements and covenants to the respective grantees, mortgagees or trustees of said parcels as fully and completely as though said easements and covenants were fully recited and set forth in their entirety in such documents. Said right of easement for ingress and egress over and across, and of enjoyment in and to, Common Area and improvements located thereon shall be subject to the following provisions: (a) The right of the Master Association, in accordance with its Articles of incorporation and By-Laws, to borrow money for the purposes of improving or reconstructing Common Area and improvements thereto and in aid thereof to mortgage said Common Area (or a portion thereof). (b) The right of the Master Association to declare or grant easements and licenses and to dedicate or transfer all or any part of Common Area to any public agency, authority, or public or private utility for such purposes and subject to such conditions as may be agreed to by the Members. No such dedication or transfer shall be effective unless an instrument has been recorded, signed by the Master Association and authorized by the assent of at least 67 percent or more of the Voting Interest of the Members as determined in the Master Association By- Laws, present in person or by proxy and entitled to vote at a meeting duly called 12 than 40 days in advance of the meeting, setting forth the purpose of the meeting. (b) After consideration of future needs and expected expenditures of the Master Association, the Board of Directors may fix either type of Assessment in lesser amounts than the maximum Assessments permitted or may, in its discretion, require no Assessment of either type whatsoever for any year, but such action shall not limit or prohibit the Board of Directors from fixing such Assessments for any year(s) following on the basis of increases in the maximum Assessments permitted hereunder rather than the assessments so fixed. SECTION 5.6. Reasonable Reserves. The Master Association shall establish and maintain from Base Annual Assessments collected hereunder, reasonable reserves for the costs of the maintenance, repair and replacement of those items which are the responsibility of the Master Association. The Master Association may' establish and maintain such other reasonable reserves as the Board of Directors deems necessary and convenient which are consistent with the powers and duties of the Master Association. SECTION 5.7. Uniform Rate of Assessment. Base Annual Assessments must be fixed at a uniform rate for all single family Lots in Units 1 and 2 subject thereto. The Base Annual Assessment for the single Lot consisting of Unit 3 shall bear a relationship to the total Annual Assessment consisting of a percentage (the "Unit 3 Allocable Percentage"), the numerator of which is the total square footage area of the all property zoned for Planned Multiple Family Residence District and the denominator of whish is the total square footage area of all property zoned both for Planned Single Family Residence Districts and Planned Multiple Family Residence District and excluding any land zoned for Planned Community Facility District. The Base Annual Assessment for Unit 3 shall be the product of the Unit 3 Allocable Percentage times the total Annual Assessment. The Base Annual Assessment may be collected on a quarterly basis or such other periodic basis as set by the Board of Directors. SECTION 5.8. Assessment for Lots Owned by Declarant Notwithstanding the foregoing provisions, Base Annual Assessments and Special Assessments for any Lots while (i) owned by Declarant and improved with a completed residence, but unoccupied by any tenant of Declarant, or (ii) owned by any party but occupied by Declarant and used as a model or a sale office, shall be limited to 25 percent of the amounts fixed with respect to such type of Lots owned by Owners other than Declarant. Prior to the completion of a residence on any Lot, (which shall mean the issuance of a certificate of occupancy therefor by the City), such Lot shall be exempt from payment of any and all Assessments. SECTION 5.9. Deficiency Contributions. For every calendar year during which Declarant maintains its Voting Interest pursuant to Article 3 above in the Master Association, Declarant shall contribute to the Master Association all funds in excess of the budgeted and collected Assessments which shall be necessary to defray the costs properly paid or incurred by it for the purposes for which Base Annual Assessments may be collected, all without limitation to the maximum amounts provided under Section 5.5 hereof Declarant's contribution for the calendar year during which Declarant's Article 3 Voting Interest terminates shall be prorated to 10 the date of such termination. For purposes hereof, the establishment of reserves pursuant to Section 5.6 does not constitute the payment or incurring of costs by the Master Association and Declarant's deficiency contribution shall not be required to be applied to the establishment of reserves. SECTION 5.10. Date of Commencement of Annual Assessments; Due Dates. Base Annual Assessments provided for herein shall commence for any Lot within the Property, or any land annexed to the Property, on the day of the conveyance of the first Lot of such type in the Property and shall be prorated for the month of said conveyance. The Board of Directors shall fix the amount of such Assessments at least 30 days in advance of each annual Assessment period, and in lieu thereof, the amount of each type of such Assessment for the prior year shall be the fixed amount. Written notice of any changed amount of such Assessments shall be sent to every Owner subject thereto, but failure to do so shall not invalidate the changed Assessments. Base Annual Assessments shall he payable in quarterly installment or such other periodic basis set by the Board of Directors. SECTION 5.11. Certificate of Payment. The Master Association shall, upon demand, furnish to any Owner liable for said Assessments, a certificate in writing signed by an officer of the Master Association, setting forth whether the Assessments on a specified Lot have been paid and the amount of the delinquency, if any. A reasonable charge may be made by the Board of Directors for the issuance of such certificates. Such certificates shall be conclusive evidence that any Assessment therein stated to have been paid has in fact been paid. No charge shall he made for issuing from time to time said certificates to Declarant on Lots then owned by Declarant. SECTION 5.12. Delinquency in Payment of Assessments. Any Assessment provided for in this Declaration which is not paid when due, shall he delinquent. With respect to each Assessment not paid within 15 days after its due date, the Master Association may, at its election, require the Owner to pay a "late charge" in a sum to be determined by the Master Association and applied uniformly. If any such Assessment is not paid within 30 days after the delinquency date, the Assessment shall bear interest from the date of delinquency at the highest rate permitted by Illinois law, and the Master Association may, at its option, bring an action at law against the Owner personally obligated to pay the same, or foreclose the lien (provided for in Section 5.1 hereof) against the Lot, and there shall be added to the amount of such Assessment the late charge, the costs of preparing and filing a Complaint in such action and reasonable attorneys' fees, and in the event a judgment is obtained, such judgment shall include all Assessments accrued from date of suit to judgment, increased by such late charges, costs and fees, plus interest. Each Owner vests in the Master Association or its assigns, the right and power to bring all actions at law or lien foreclosures against such Owner for the collection of such delinquent assessments SECTION 5.13. Suspension of Voting Rights Due to Unpaid Assessments. The Master Association is authorized to suspend the voting rights of an Owner for any' period during which any Assessment against such Owner's Lot remains unpaid and delinquent, and for a period not to exceed 30 days for any single infraction of the published rules and regulations of the Master Association, provided that any suspension of such voting rights, except for failure to pay 11 Assessments, shall be made only by the Master Association or a duly appointed committee thereof, after notice and hearing given and held in accordance with the By-Laws or rules and regulations of the Master Association. The foregoing shall not apply to unfunded deficiency contributions of the Declarant under Section 5.9. SECTION 5.14. Waiver of Use. No Member may exempt himself from personal liability for Assessments duly levied by' the Master Association nor release the Lot owned by him from the liens and charges hereof, by waiver of the use and enjoyment of Common Area or by abandonment of his Lot. SECTION 5.15. Subordination of the Lien to Mortgages. The lien of the Assessments provided for herein shall be subordinate to the lien of any first mortgage or trust deed. Sale or transfer of any Lot shall not affect the Assessment lien. However, the sale or transfer of any Lot pursuant to the foreclosure of a mortgage or trust deed or any proceeding or deed in lieu thereof shall extinguish the lien of such Assessments as to payments which become due prior to such sale or transfer. No sale or transfer shall relieve such Lot from liability for any Assessments thereafter becoming due or from the lien thereof ARTICLE 6. PROPERTY RIGHTS SECTION 6.1. Members' Easements over Common Area. Every Member shall have a right and easement for ingress and egress over and across, and for use of and enjoyment in and to, Common Area and the improvements thereon, and such easements shall be appurtenant to and shall pass with the title to every Lot. Reference in the respective deeds of conveyance, or in any mortgage or trust deed or other evidence of obligation, to the easements and covenants herein described shall be sufficient to create and reserve such easements and covenants to the respective grantees, mortgagees or trustees of said parcels as fully and completely as though said easements and covenants were fully recited and set forth in their entirety in such documents. Said right of easement for ingress and egress over and across, and of enjoyment in and to, Common Area and improvements located thereon shall be subject to the following provisions: (a) The right of the Master Association, in accordance with its Articles of incorporation and By-Laws, to borrow money for the purposes of improving or reconstructing Common Area and improvements thereto and in aid thereof to mortgage said Common Area (or a portion thereof). (b) The right of the Master Association to declare or grant easements and licenses and to dedicate or transfer all or any part of Common Area to any public agency, authority, or public or private utility for such purposes and subject to such conditions as may be agreed to by the Members. No such dedication or transfer shall be effective unless an instrument has been recorded, signed by the Master Association and authorized by the assent of at least 67 percent or more of the Voting Interest of the Members as determined in the Master Association By- Laws, present in person or by proxy and entitled to vote at a meeting duly called 12 for such purpose at which a quorum is present, written notice of which is mailed to all Members not less than five (5) days nor more than 40 days in advance of the meeting, setting forth the purposes of the meeting. (c) The right of the Master Association to establish uniform rules and regulations (including fines) pertaining to the use of Common Area; provided, however, that the Master Association shall not limit or prohibit the public use of pathways located within the Property. (d) The right of the Master Association to suspend an Owner's right to use any improvements located within Common Area, including without limitation the Community Facilities (i) for any period during which any charge against such Owner's Lot remains delinquent; and (ii) for a period not to exceed 30 days for a single violation or for a longer period in the case of any continuing violation, of this Declaration or the rules and regulations of the Master Association after written notice thereof. (e) The right of Declarant and its designees (and their respective sales agents and representatives) to (1) non-exclusive use of Common Area (as may be amended by annexation from time to time) in connection with the sale of residential units within the Property (including any of the Additional Land annexed thereto); and (2) the use of any improved residence on any of the Lots as a sales office until the last Lot within the Property is improved with a residence and conveyed to a third party purchaser. (f) Such other rights as are reserved or created by this Declaration. SECTION 6.2. Delegation of Use. Any Member may delegate in accordance with the By-Laws of the Master Association, such Member's right of enjoyment to Common Area and the improvements located thereon to the members of his family, and the occupants residing on such Member's Lot. SECTION 6.3. Master Association's Access to Lots. The Master Association and its respective agents, employees and independent contractors shall have the right and license to enter upon any Lot to the extent necessary to exercise any right or responsibility of the Master Association as set forth in this Declaration, as to the Lot or the dwelling unit or other improvements situated thereon, or to the extent necessary to enforce any covenants or restrictions set forth herein and shall not be guilty of trespass. SECTION 6.4. Title to Common Area. Declarant covenants for itself, its successors and assigns, that it will convey or cause to be conveyed fee simple title to Common Area to the Master Association within 30 days after the date of this Declaration, subject to: (a) Covenants, conditions and restrictions then of record; 13 (b) The terms of this Declaration; (c) Zoning ordinances, development agreements and annexation agreements of record; (d) Current real estate taxes, not yet due and payable (for which Declarant shall pay or make arrangements to pay its pro rata share); (e) Utility easements granted or to be granted for sewer, water, gas, electricity, telephone, cable television and any other necessary utilities; (f) Reservation of easement for ingress and egress; and (g) Easements granted or to be granted for the construction, maintenance, repair and use of improvements to be located on Common Area. When lands annexed from time to time, pursuant to Article 11 of this Declaration, contain land to be designated as Common Area, said Common Area shall similarly be conveyed by Declarant or the legal title holder thereof to the Master Association prior to the conveyance by Declarant or such legal title holder to an Owner of the first Lot in the lands then annexed. ARTICLE 7. EASEMENTS SECTION 7.1. Utility Easements. Declarant hereby reserves unto itself, its successors, assigns and designees, the right (i) to create, declare and grant over, above, under and across Common Area or the Lots, at any time before or after conveyance, non-exclusive perpetual utility easements and (ii) to utilize any easement created by any Plat of Subdivision or other instruments, for the installation, construction, improvement or removal or reconstruction, replacement, substitution, and maintenance of sewer (storm and sanitary), water, gas, electricity, cable television, telephone and any other utilities as may be necessary in Declarant's sole judgment to develop, service and maintain the Property. The aforesaid easements shall include reasonable rights of ingress and egress. Furthermore, Declarant hereby declares and reserves for the benefit of all Owners, the Master Association, and the various public utility companies a non- exclusive public utility easement over, above and under Common Area, and those portions of Lots on which no homes are constructed, for the installation, construction, improvement, removal, reconstruction, replacement and substitution of underground service lines, wires, cables, conduits, terminals, manholes and other fixtures as the beneficiaries of the easement may from time to time require for any sewer (storm and sanitary), water, gas, electricity, cable television, telephone and other utilities which may serve the homes constructed on the Property, or other adjacent properties. It shall be the obligation of any party exercising the easement to restore any areas disturbed by the exercise of the easement in the manner and to the extent set forth in the provisions contained in the Plats of Subdivision for the Property relating to the exercise of easements. 14 SECTION 7.2. Ownership of Utility Lines. Declarant shall initially own all storm sewers, sanitary sewers, and water lines when situated in, over, under, along or across Common Area or easement areas designated for the installation and maintenance of such lines to the extent the same are not initially dedicated to the City, Kane County, any public utility or any governmental or quasi-governmental authority, and Declarant shall have the right (but not the obligation) of maintenance, replacement, repair or removal thereof and reasonable access thereto. Declarant may transfer title to said storm sewers, sanitary sewers and water lines and Declarant's rights of maintenance, replacement, repair and removal thereof to any assignee deemed beneficial or appropriate by Declarant (including the Master Association, the City, Kane County, any public utility, or any governmental or quasi-governmental authority), which transfer and assignment shall be effectuated by a bill of sale or other appropriate writing. In the absence of such a transfer prior to the completion of the sale of all of the Lots by Declarant to Owners purchasing the same, the transfer shall be deemed to have been made to the Master Association upon the closing of the sale of the last Lot to an Owner, without further action or documentation. SECTION 7.3. Reservation of Easements for Declarant's Benefit. Anything contained in this Declaration to the contrary notwithstanding, Declarant hereby reserves for itself, its agents, employees, contractors, sub-contractors, workmen, materialmen, invitees and any successor builders an easement under, over and across Common Area for the purposes of constructing, completing, repairing, maintaining, inspecting, exhibiting and selling any Lots or dwelling units then owned by Declarant or any such successor builders. SECTION 7.4. Easements for Installation, Maintenance and Repair of Common Area. Declarant hereby reserves unto itself, its successors, assigns, and designees, and to the Master Association, the right and easement to come onto the Lots or Common Area for purposes of building, installing, maintaining, repairing, replacing and improving Common Area and any improvement located thereon or within public right-of-ways within or abutting the Property. SECTION 7.5. Easement for Maintenance of Landscaping on Lots . Declarant hereby reserves unto itself, the Association and their respective successors, assigns and designees an easement over each Lot within the Property for the provision of maintenance care services as provided under Section 4.3 hereof. The aforesaid easement shall include reasonable rights for ingress and egress and shall be perpetual. SECTION 7.6. Easement for Access to City Property. Declarant hereby declares and reserves for the benefit of the City, its officers, employees, agents and contractors, an easement and right of ingress and egress, over, upon and across any and all portions of Common Area within the Property to the extent reasonably necessary for access to the City Property or any portion thereof for purposes of inspecting, maintaining, repairing and replacing all or any portion of the City Property. SECTION 7.7. Easement Over Pathways. Declarant hereby declares and reserves for the benefit of all Owners and their guests and invitees an easement and right of ingress and egress, over, upon and across any pathways located on any portion of Common Area within the 15 Property. The Master Association shall have the right to adopt reasonable rules and regulations governing and limiting the right and easement granted hereunder, subject to approval by the City. There is also declared and reserved for the benefit of the public an easement and right of ingress and egress over, upon and across such portions of any pathways located on any portion of Common Area as are to be usable by the public and maintained by the City, as designated on the Plat of Subdivision. Motor vehicles are prohibited on such pathways without prior written approval of Declarant or the Master Association. SECTION 7.8. Rights to Reserve or Grant Specific Easements for Lots and Common Area. Declarant shall have the right to grant or reserve particular specific non-exclusive easements on any portion of any Lot (except portions occupied by dwellings) or on Common Area for the installation, maintenance and repair of improvements to the Lots or Common Area by Declarant, its successors, assigns or designees or by the Master Association. Such easements may be created over Lots after such Lots are conveyed to Owners only if(i) such areas are designated as such by a Plat of Subdivision, a deed, a declaration of easement or a grant of easement executed and recorded by Declarant with the Recorder of Deeds of Kane County, Illinois, (ii) construction of such improvement has commenced prior to conveyance of such Lot or Common Area, or (iii) such easement is necessary to correct errors in engineering plans. Such easements may be created over Common Area at any time, even after it has been conveyed to the Master Association. Failure to so grant or reserve any particular specific casement as provided herein shall not invalidate or adversely affect the easements reserved under Section 7.4. SECTION 7.9. Power Coupled with an Interest. In furtherance of Declarant's rights to create easements pursuant to Section 7.8 above, a power coupled with an interest is hereby reserved to Declarant, as attorney-in-fact of the Master Association and of the Owners of all Lots within the Property, to grant or reserve such easements, and the giving of any deed, mortgage, or other instrument with respect to Common Area or any Lot, and acceptance thereof, shall be deemed a grant and acknowledgment of and a consent to such power of said attorney-in-fact. ARTICLE 8. AGE RESTRICTIONS APPLICABLE TO UNIT 3 SECTION 8.1. General. The Property identified as Unit 3 is intended to provide housing in a single structure designed and operated as an assisted living facility ("Assisted Living Facility".) An Assisted Living Facility is a group residence that offers assistance with Activities of Daily Living ("ADL") for those not able to live by themselves, but not requiring constant care. ADL's include but are not limited to eating, bathing, dressing, laundry, housekeeping, and assistance with medications. The Property identified as Unit 3 is intended to provide housing only for residents who are at least fifty percent (50%) persons 55 years of age or older as provided under the Fair Housing Amendments Act of 1988 and the Illinois Fair Housing Act (collectively, the "Fair Housing Acts") or who need assistance with ADL's. At least fifty percent (50%) of the living units within Unit 3 must be occupied by a person 55 years of age or older and all those residents not at least 55 years of age must require assistance with ADL's as defined above. The provisions of this Article are intended to be consistent with, and are set forth 16 in order to comply with, the Fair Housing Acts regarding discrimination based on familial status. The Master Association, acting through its Board of Directors, shall have the power to amend this Article, without the consent of the Members, for the purpose of making this Article consistent with the Fair Housing Acts, as it may be amended, the regulations adopted pursuant thereto, and any judicial decisions arising thereunder or otherwise relating thereto, in order to maintain the intent and enforceability of this Article. SECTION 8.2. Monitoring, Compliance, Appointment of Attorney-in-Fact. (a) The Owner of Unit 3 shall maintain records on the number of occupants of its property who are 55 years of age and older and those requiring assistance with ADL's and report same to the Master Association. The Master Association Board of Directors shall adopt and publish policies, procedures, and rules to monitor and maintain compliance with this Article 8, and updating of records of age and ADL requirements and enforcement. The Master Association shall make such policies, procedures, and rules available to the Owner of Unit 3. (b) The Master Association shall have the power and authority to enforce this Article 8 in any legal manner available, as the Board of Directors deems appropriate. The Owner of Unit 3 shall fully and truthfully respond to any and all requests by the Master Association for information regarding the occupancy of its property that, in the judgment of the Board of Directors, is reasonably necessary to monitor compliance with this Article 8. The City shall also have the same power and authority(but not the obligation) to enforce this Article 8. (c) The Owner of Lot 3 shall be responsible for ensuring compliance with the requirements and restrictions of this Article and the rules of the Master Association adopted hereunder. (d) Notwithstanding anything to the contrary in this Declaration, any proposed amendments or revisions to this Article 8 shall require the prior written approval of the City Council of the City of Elgin. Additionally, notwithstanding anything to the contrary in this Declaration, the City shall also have the power and authority (but not the obligation) to enforce this Article 8. ARTICLE 9. INTENTIONALLY OMITTED ARTICLE 10. INTENTIONALLY OMITTED 17 ARTICLE 11. OWNER'S OBLIGATION TO MAINTAIN SECTION 11.1. Covenant to Maintain. The Owner of Unit 3, its heirs, successors and assigns, hereby covenants and agrees at all times to maintain its Lot, and the structure(s) constructed thereon, in a neat and proper condition and to perform all necessary repairs thereto. The foregoing shall include the duty of such Owner to water the landscaping on such Owner's Lot. The Owner of Unit 3 shall be solely responsible for all installation, maintenance, repair and replacement of lawn, plants, shrubs and other landscaping materials on Unit 3. SECTION 11.2. Enforcement of Owner's Maintenance Obligations. If the Owner of Unit 3 fails to perform its obligations hereunder, the Master Association may, but shall not be required to, perform such obligations (including repair and replacement of landscaping and plant materials), and shall not thereby be deemed guilty of trespass. The Master Association shall be entitled to reimbursement in full from the Owner for its costs of every kind incurred in connection therewith, arid any such expenditures incurred by the Master Association shall become the personal obligation of the Owner and a continuing lien on Unit 3, recoverable with interest, costs and reasonable attorneys' fees in the same manner and to the same extent as provided under Section 5.1 and shall give rise to the remedies available to the Association provided in Sections 5.12 and 5.13. ARTICLE 12. ANNEXATION OF ADDITIONAL LAND SECTION 12.1. Annexation by Declarant. Declarant may, without the consent or approval of the Master Association, any Members or any Owners, annex to the Property all or part of the real estate contiguous the Property (collectively, the "Additional Land") from time to time, by a written instrument signed by Declarant and recorded with the Office of the Recorder of Kane County, Illinois. Should Declarant develop land within the Additional Land within 10 years after the date of this Declaration, such portion of the Additional Land may be annexed to the Property and made subject to this Declaration without the assent of the Class A Members. Such Additional Land, or portions thereof, may be annexed in separate phases and shall be considered annexed to said Property and subjected to the provisions of this Declaration if within such 10-year period Declarant executes and records an amendment or supplement to this Declaration with the Office of the Recorder of Kane County, Illinois, describing the portion to be annexed to said Property and legally and specifically making said Additional Land, or portion thereof, subject to this Declaration. Any such Amendment or Supplementary Declaration shall designate Lots and/or Common Area and shall also update Exhibit A hereto, if necessary. In improving or causing the improvement of any additional phases(s), Declarant shall keep the Property, subject to this Declaration, free of any liens or claims for liens for labor or materials provided in such improvements, pursuant to the Illinois mechanics' lien laws. SECTION 12.2. Annexation by the Members. Annexation of any additional real estate to the Property other than property within the Additional Land, shall require the recording with the Office of the Recorder of Kane County, Illinois of an instrument signed by the Master 18 Association with the assent of not less than 67 percent of the Voting Interest of the Members as determined in the Master Association By Laws, present in person or by written proxy at a meeting duly called for this purpose, at which a quorum is present, written notice of which shall be sent to all Members not less than five (5) days and not more than 40 days in advance of the meeting setting forth the purpose of the meeting. SECTION 12.3. Annexation Limited to Lots, Common Area, Open Space and Ci y Property. No real estate may be annexed to the Property other than real estate that will fall within the definition of"Lots" or"Common Area," as set forth in Article 1 hereof. ARTICLE 13. AVAILABILITY OF RECORDS Any Owner or first mortgagee of any Lot shall be entitled, upon reasonable request, to receive for inspection from the Master Association current copies of the Declaration, Articles of Incorporation, By-Laws, records and financial statements of the Master Association. Furthermore, any holder of a mortgage given on any Lot within the Property and any phases annexed thereto, shall be entitled to receive from the Master Association, without cost, a copy of the Master Association's financial statement, if any, and if any mortgagee shall so request in writing prior to the preparation of the annual financial statement of the Master Association, such financial statement shall be audited. ARTICLE 14. RIGHTS OF FIRST MORTGAGEES Upon written request, any first mortgagee of a Lot shall he entitled to and shall receive from the Master Association notices of any of the following as shall be requested: (a) Any condemnation loss or casualty loss which affects a material portion of the Property and any phases annexed thereto or the Lot on which its mortgage is held; (b) Delinquency of assessments, which remain uncured for a period of 60 days or more; (c) Any lapse, cancellation, or modification of any insurance policy or fidelity bond maintained by the Master Association; (d) Any restoration or repair of the Property and any phases annexed thereto after partial condemnation or damage; and (e) Any termination of the legal status of the Property and any phases annexed thereto. Any termination of legal status as provided in Subsection (e) above, shall require the consent of 19 the holders of the mortgages on at least 51 percent of the Lots contained in the Property and any phases annexed thereto at the time thereof. ARTICLE 15. MUNICIPAL ORDINANCES PREVAIL None of the covenants, conditions, restrictions or provisions of this Declaration are intended to supersede or prevail over the ordinances of general applicability of the City, and in the event of any conflict, the applicable ordinances of the City shall supersede and prevail over the covenants, conditions, restrictions and provisions of this Declaration. However, no ordinance of the City controlling or regulating any act that is expressly limited, controlled or prohibited by the covenants of this Declaration shall operate to authorize or permit such act. The Master Association shall comply with all City ordinances and shall seek all necessary approvals and permits from the City and other applicable governmental entities for activities it undertakes within Common Area and Lots. ARTICLE 16. INSURANCE SECTION 16.1. Casualty Insurance for Single Family Homes. Each Owner shall maintain at his own cost and expense such insurance coverage as he may desire with respect to (i) personal liability for acts and occurrences upon his Lot and within his dwelling unit, (ii) physical damage losses for personal property and the contents of his dwelling unit, (iii) physical damage losses for any improvements, additions or betterments installed either by a person or entity, (iv) physical damage loss for any improvements on a Lot, and (v) any special flood hazard insurance as may be required by the first mortgagee of any Lot. The Master Association shall have no responsibility to maintain such insurance. SECTION 16.2. Casualty Insurance for Common Area. The Master Association shall obtain and maintain a policy or policies of insurance with respect to the damage or destruction of Common Area, any improvements located thereon and to any other tangible assets of the Master Association, including coverage against damage or destruction by the perils of fire, lightning and those perils contained in an all risk form, and such other perils as the Board of Directors of the Master Association from time to time may determine should be included in such coverage, in an amount equal to 100 percent of the insurable replacement cost thereof, without depreciation and with an agreed amount provision. Such insurance shall name as the insured, and the proceeds thereof shall be payable to the Master Association, as trustee. The proceeds of such insurance shall be made available, as the Board of Directors of the Master Association shall reasonably determine, for the repair, reconstruction, and restoration of such portions of Common Area and other insured items subject to the rights of the first mortgagees. To the extent feasible, all such policies of insurance shall (i) provide that the insurance shall not be invalidated by the act or neglect of Declarant, the Master Association, its Board of Directors, its officers, any Owner or occupant, or any agent, employee, guest or invitee of any of them, and (ii) shall contain an endorsement that such policies shall not be canceled without at least 30 days' prior written notice to the Master Association, the Owners, and all first mortgagees of the Lots. 20 SECTION 16.3. Liability Insurance Maintained by the Master Association. The Master Association shall obtain and maintain a policy or policies of comprehensive general liability insurance insuring on a claims-made basis the Master Association, its directors, officers, the Owners, and their agents and employees against claims for personal injury, including death and property damage, arising out of any occurrence in connection with the ownership, occupancy, use, supervision, operation, repair, maintenance or restoration of Common Area, any improvements located thereon and to any other tangible assets of the Master Association, or in connection with any act or omission of or on behalf of the Master Association, its Board of Directors, agents or employees within the Property. Such policies shall be in the amount of$1 million for bodily injury, including death, and property damage arising out of a single occurrence, and shall contain a provision that they may not be canceled without at least 30 days' prior written notice to the Master Association, the Owners, and the first mortgagees of the Lots. SECTION 16.4. Workmen's Compensation and Fidelity Insurance: Other Insurance. The Master Association shall obtain and maintain a policy or policies of insurance with reputable insurance carriers providing the following coverage: (a) Workers' compensation and employers' liability insurance in such form and in such amounts as may be necessary to comply with applicable laws; (b) Fidelity insurance or bonds in reasonable amounts for all officers and employees having fiscal responsibilities, naming the Master Association as obligee; and (c) Such other insurance in such limits and for such purpose as the Master Association may, from time to time, deem reasonable and appropriate. SECTION 16.5. Waiver of Subrogation. To the extent feasible, all policies of insurance obtained by the Master Association shall contain provisions that no act or omission of any named insured shall affect or limit the obligation of the insurance company to pay the amounts of any loss sustained. So long as the policies of insurance provided for herein shall state that a mutual release as provided for in this Section shall not affect the right of recovery thereunder, and further provide coverage for the matters for which the release herein is given, all named insureds and all parties claiming under them shall, and do by these presents, mutually release and discharge each other from all claims and liabilities arising from or caused by any hazard or source covered by any insurance procured by the Master Association, regardless of the cause of damage or loss. SECTION 16.6. Insurance Premium Expense. The expense of insurance premiums paid by the Master Association under this Article shall be an expense of the Master Association to which the assessments collected by the Master Association from the Owners shall be applied. ARTICLE 17. 21 GENERAL PROVISIONS SECTION 17.1. Enforcement. Declarant, the Master Association, or any Owner, shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, liens and charges now or hereafter imposed by the provisions of the Declaration. Failure by Declarant, the Master Association or by any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. Breach of any of the covenants shall not defeat or render invalid the lien of any mortgage or trust deed made in good faith and for value as to said Lots or property, or any parts thereof, but such provisions, restrictions or covenants shall be binding and effective against any owner of said property whose title thereto is acquired by foreclosure, trustee's sale or otherwise. The Master Association shall be entitled to recover from any Owner against which it initiates enforcement, reasonable attorneys' fees and costs expended by the Master Association in any enforcement proceedings, and any judgment obtained by the Master Association in any enforcement proceedings shall include such fees and costs. In addition, such fees and costs incurred by the Master Association against an Owner, whether or not proceedings are initiated, shall constitute a lien against his Lot which may be recovered in the manner provided in Section 5.12 hereof. SECTION 17.2. Severability. Invalidation of any one or more of these covenants or restrictions by judgment or court order shall in no way affect any other provisions which shall remain in full force and effect. SECTION 17.3. Covenants Run with the Land. The covenants and restrictions of this Declaration shall run with and bind the land, and shall inure to the benefit of and be enforceable by Declarant, the Master Association, or the Owner of any Lot subject to this Declaration, and their respective legal representatives, heirs, successors, and assigns for a period of 20 years from the date this Declaration is recorded, after which time said covenants shall be automatically extended for successive periods of 10 years. SECTION 17.4. Amendment. This Declaration may be amended by an instrument signed by Owners comprising not less than 67 percent of the Voting Interest of the Members as determined in the Master Association By Laws with the written consent of mortgagees holding at least 51 percent of the outstanding mortgages on the Property. Any amendment which affects the rights and obligations of the City as set forth in this Declaration must be consented to in advance, in writing by the City Council of the City. Any such amendment that has the effect of (i) terminating this Declaration or (ii) terminating the legal status of the Master Association shall require the written consent of mortgagees holding at least 67 percent of the outstanding mortgages on the Property and any phases annexed thereto. Notwithstanding the foregoing, in the event Declarant desires to amend this Declaration: (x) to correct a technical or typographical error or to clarify any provisions herein which are otherwise vague, (y) for the sole purpose of causing this Declaration to comply with rules, regulation or guidelines as may be required by either the Federal Housing Authority (FHA) or the Veterans Administration (VA) to enable the sales of Lots from the Property to qualify for the insurance by either such agency of end mortgage loans made to Owners of such Lots, or as may be required to conform to the published manuals or guidelines of any governmental, quasi-governmental or private agency engaged in 22 the business of the purchase of mortgage loans, including, but not limited to Federal Home Loan Mortgage Corporation (FHLMC) and Federal National Mortgage Master Association (FNMA) for the purchase of mortgage loans made on Lots in the Property, or (z) for the sole purpose of causing this Declaration to comply with the requirements of any statutes, ordinances, laws or regulations applicable thereto, it may do so by an instrument signed by Declarant without the consent of Owners, mortgagees, FHA, or VA, but shall give notice of any such amendments to all Owners, the FHA, the VA, and all mortgagees of Lots who have requested the same in writing. The failure to give such notice shall not affect the validity or effectiveness of such amendment. Notwithstanding anything to the contrary contained herein, Declarant may amend this Declaration to annex the Additional Land to the Property and to ensure that the Declaration appropriately accommodates the annexation of the Additional Land, as provided in Section 12.1 hereof, without any consents, except as provided in Section 17.6. In furtherance of the foregoing, a power coupled with an interest is hereby reserved to Declarant, as attorney-in-fact to so amend the Declaration as provided in this Section 17.4, and each deed, mortgage or other instrument with respect to a Lot and acceptance thereof shall be deemed a grant and acknowledgment of and a consent to such power to said attorney-in-fact. Any amendment must be recorded with the Office of Recorder, Kane County, Illinois. SECTION 17.5. Quorum. Unless otherwise specified to the contrary in any provision of this Declaration, a quorum for any meeting of the Members shall be as set forth in the By-Laws of the Master Association. SECTION 17.6. FHA/VA Approval. As long as Declarant retains its Voting Interest pursaunt to Article 3, (i) annexation of Additional Land or (ii) amendment of this Declaration of Covenants, Conditions and Restrictions, except for amendments made pursuant to Section 17.4(x), (y) or(z) above, will require the prior approval of the FHA or VA. IN WITNESS WHEREOF, the undersigned, being the Declarant herein has hereunto set its hand and seal on the date first written above. THE TRADITIONS AT FITCHIE CREEK, L.L.C. By: Title: ATTEST: By: Title: STATE OF ILLINOIS ) ) SS COUNTY OF K A N E ) 23 I, a Notary Public, in and for said County, in the State aforesaid, DO HEREBY CERTIFY that as and as of , and personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and severally acknowledged that they signed and delivered the said instrument as such and of said corporation, and caused the corporate seal of said corporation to be affixed thereto, pursuant to authority given by the Board of Directors of said corporation, as their free and voluntary act and as the free and voluntary act and deed of said corporation, for the uses and purposes therein set forth. GIVEN under my hand and Notarial Seal this day of , 2007. NOTARY PUBLIC INSTRUMENT PREPARED BY & MAIL TO WHEN RECORDED: John E. Regan, Esq. Early, Tousey, Regan, & Wlodek 2400 Big Timber Road Suite 201A Elgin, IL 60123 24 EXHIBIT B By-Laws of The Traditions at Fitchie Creek Homeowners' Master Association (See Attached) 26 EXHIBIT C The Traditions at Fitchie Creek Preliminary Plan Exhibits (See Attached Exhibits C-1, C-2, C-3) 27 THE TRADITION AT FITCHIE CREEK UNIT 1 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS ELGIN, ILLINOIS THIS DECLARATION is made this day of , 2007, by The Tradition at Fitchie Creek, L.L.C. an Illinois limited liability company, an Illinois corporation (hereinafter referred to as "Declarant"). RECITALS: A. Declarant is the owner of certain real property located in the City of Elgin, County of Kane, State of Illinois, which is more particularly described in Exhibit A attached hereto and incorporated herein by this reference ("Property"). B. The Property' shall be conveyed to third parties, subject to certain protective easements, restrictions, covenants, conditions, reservations, liens and charges as hereinafter set forth in this Declaration. NOW, THEREFORE, Declarant hereby declares that all of the Property described in Exhibit A hereto shall be held, sold and conveyed subject to the following easements, restrictions, covenants, conditions, reservations, liens and charges, which are for the purpose of protecting the value and desirability of the Property, and which shall run with the Property and be binding on and shall inure to the benefit of all parties having any right, title or interest in the described Property or any part thereof, including their heirs, successors and assigns. ARTICLE 1. DEFINITIONS SECTION 1.1. "Additional Land" shall have the meaning ascribed to such term in Section 12.1. SECTION 1.2. "Appearance Control Committee" shall have the meaning ascribed to such term in Article 10 hereof SECTION 1.3. "Articles of Incorporation" shall mean the Articles of Incorporation for the Association. SECTION 1.4. "Assessments" shall mean collectively the Base Annual Assessments, Special Assessments, and Capital Contributions and any other assessment or charge that the Association is authorized to levy under this Declaration. 1 SECTION 1.5. "Association" shall mean The Tradition at Fitchie Creek Homeowners' Association, an Illinois not-for-profit corporation, its successors and assigns. SECTION 1.6. `Base Annual Assessments" shall have the meaning ascribed to such term in Section 5.2 hereof SECTION 1.7. `By-Laws" shall mean the By-Laws of the Association, a true and correct copy of which is attached hereto and incorporated herein by this referenced as Exhibit B. SECTION 1.8. "Capital Contributions" shall have the meaning ascribed to such term in Section 5.4 hereof SECTION 1.9. "Community Facilities" shall mean facilities and amenities constructed by the Declarant on the Common Area for the use and enjoyment of Owners and occupants of residences within the Property and their guests and invitees. Community Facilities shall be deemed to be a part of Common Area. SECTION 1.10. "Common Area" shall mean all real property and all improvements and fixtures thereto and all personal property owned by the Association for the common use and enjoyment of the Owners. Common Area includes, but is not limited to the outlots designated as Common Area on Exhibit A attached hereto. Common Area may also be designated on any Plat of Subdivision of the Property or any amendments or supplements to this Declaration. SECTION 1.11. "Declarant" shall mean and refer to The Tradition at Fitchie Creek, L.L.C. , its successors and assigns, if such successors and assigns should acquire more than one undeveloped Lot from Declarant for the purpose of development. SECTION 1.12. "Dedicated Right-of-Way" shall mean and refer to the public rights-of- way depicted on any Plat of Subdivision. SECTION 1.13. "Lot" shall mean a plot of land upon which a detached single-family residence is constructed or to be constructed. A Lot shall be a subdivision lot created by the recording of a Plat of Subdivision. SECTION 1.14. "Member" shall mean and refer to every person or entity who holds a membership in the Association, including Declarant and any beneficiary of a trust holding legal title to one or more Lots. SECTION 1.15. "Owner" shall mean and refer to the record owner, whether one or more natural persons or entities, of fee simple title to any Lot, which is a part of the Property, but excluding those having such interest merely as security for the performance of an obligation, such as secured lenders. 2 SECTION 1.16. "Plat of Subdivision" shall mean a final plat of subdivision recorded against the Property, or any part thereof, with the Kane County Recorder of Deeds and any amended or additional plat of subdivision or re-subdivision expressly made subject to the terms of this Declaration by appropriate amendment hereto. SECTION 1.17. "Property" shall mean and refer to that certain real property described on Exhibit A, attached hereto and incorporated herein by this reference, and such additions thereto as may hereafter be brought within the jurisdiction of the Association by the written amendment of this Declaration, as provided under Section 12.1. SECTION 1.18. "Special Assessments" shall have the meaning ascribed to such term in Section 5.3 hereof. SECTION 1.19. "City" shall mean the City of Elgin, Illinois. SECTION 1.20. "City Property" shall mean all real property, and all improvements or fixtures thereto, and all real property infrastructure improvements conveyed or dedicated by the Declarant to the City. City Property at the time of recording of this Declaration (i) shall include all storm water pipes, manholes and related storm water infrastructure installed by the Declarant within the Property and dedicated to the City; and (ii) all Dedicated Rights-of-Way. ARTICLE 2. MEMBERSHIP IN THE ASSOCIATION SECTION 2.1. Membership. Every Owner, including Declarant, shall be a Member of the Association, and each Owner, by acceptance of a deed for his Lot, covenants and agrees to be a Member of the Association, whether or not it shall be so expressed in any such deed or other conveyance. Ownership of a Lot shall be the sole qualification for membership, and there shall be only one (1) membership per Lot. SECTION 2.2. Transfer of Membership. Membership held by any Owner of a Lot is an appurtenance to such Lot and shall not be transferred, alienated, or pledged in any way, except upon the sale or encumbrance of such Lot, and then only to the purchaser of such Lot. Any attempt to make such a transfer except by the sale or encumbrance of a Lot is hereby deemed to be null and void. Reference to the transfer of membership need not be made in an instrument of conveyance or encumbrance of such Lot for the transfer to be effective, and the same shall automatically pass with title to the Lot. Members are required to provide the Association written notification upon the transfer, alienation or sale of their Lot to a new Owner. ARTICLE 3. VOTING RIGHTS IN THE ASSOCIATION SECTION 3.1. Membership Classes. The Association shall have two (2) classes of voting membership, as follows: 3 (a) Class A: Class A Members shall be all Owners of Lots with the exception of Declarant. Class A Members shall be entitled to one (1) vote for each Lot in which they hold the interest required by Section 2.1 for membership, except that there shall be only one (1) vote per Lot. (b) Class B: Class B Member shall be Declarant. The Class B Member shall be entitled to three (3) votes for each Lot in which it holds the interest required by Section 2.1 for membership. The Class B membership shall cease and be converted to Class A membership on the happening of any of the following events, whichever occurs earliest: (i) Ten (10) years from the date of this Declaration; (ii) One hundred twenty (120) days after the date by which 75 percent of the Lots have been conveyed by Declarant to Owners. For purposes of this Section 3.1(b)(ii), the foregoing 75 percent threshold shall be determined as follows: (x) if the Declarant has failed to start construction of any dwelling unit on a phase of the Additional Land that has not yet been annexed to the Property within the said 120 day period, then on the basis of only those Lots that have been submitted to this Declaration either as a part of the original Property or as Additional Land or as a phase thereof annexed to the Property, or (y) if Declarant has started construction of a dwelling unit on any Lot in a phase of the Additional Land that has not yet been annexed to the Property within such 120-day period, then on the basis of the combined total of the Lots then comprising the Property and those contained in such phase of the Additional Land that is thereafter annexed to the Property. For purposes hereof, the term "started construction" shall mean the excavation of a building site on one Lot within the boundaries of a phase; or (iii) The date on which Declarant voluntarily withdraws as the Class B Member by executing and recording with the Recorder of Deeds of Kane County, Illinois, a written declaration of intent to withdraw, which shall become effective in the manner specified in such declaration of intent. Anything contained in the Articles of Incorporation or the By-Laws of the Association notwithstanding, so long as Declarant is a Class B Member, it shall have the absolute right to appoint and remove any member of the Board of Directors and/or officers and agents of the Association. SECTION 3.2. Exercise of Voting Rights Among Co-Owners. When more than one (1) person holds an interest in any Lot, all such persons shall be Members and the vote for such Lot shall be exercised as they determine among themselves and advise the Association's Secretary in writing prior to any such vote being taken. Absent such advice, the Lot's vote shall be suspended if more than one (I) person seeks to exercise it. In no event shall more than one (1) vote be cast 4 with respect to any Lot, except in respect of the Class B Member as provided in Section 3.1(b) hereof. ARTICLE 4. DUTIES AND POWERS OF THE ASSOCIATION SECTION 4.1. General. The Association shall have the power and duty to (a) pay any real property taxes and other charges assessed against Common Area; (b) grant easements where necessary for public utilities over Common Area to serve Common Area or Lots; (c) adopt reasonable rules and regulations (including, with limitation, with respect to fees and fines) for (i) controlling and limiting the use of Common Area or any improvements thereto, including, without limitation, with respect to access to the Property via gated entranceways and use and operation of the Community Facilities; and (ii) supplementing the use restrictions contained in Article 9 or any other restrictions or provisions contained in this Declaration; (d) Intentionally Omitted; (e) maintain such policy or policies of insurance, including, but not limited, to those described in Article 16, at all times as the Board of Directors deems necessary or desirable in furthering the purposes of and protecting the interests of the Association and its Members, officers and directors; (f) employ a manager or other persons and contract with independent contractors, managing agents, collection agents and others to perform and effectuate all or any part of the duties and powers of the Association, if deemed necessary by the Board of Directors; (g) enforce any easements or restrictions which may be set forth herein; (h) establish such reserves as may be required hereunder or as the Board of Directors shall from time to time deem necessary to fulfill and further the purposes of the Association; and (i) exercise any other right or powers given to the Association under this Declaration or under the Illinois Not-for-Profit Corporation Act. SECTION 4.2. Maintenance of Common Area. The Association shall maintain, repair, and replace, all to the extent deemed by the Board of Directors to be beneficial and convenient, Common Area, together with such other areas, if any, for which the Association has or assumes responsibility pursuant to the terms of this Declaration or any supplement or amendment hereto, 5 which shall include, but need not be limited to, the following: (a) Common Area and its elements, including but not limited to grass, trees, shrubs, plantings, and other landscaping located within Common Area, lighting, and other structures and improvements located within or upon Common Area; (b) detention ponds and swales located on Common Area within the Property, together with any improvements thereto. (c) pathways designed to accommodate bicycle and pedestrian traffic and installed by the Declarant, whether located on Common Area or within public rights-of- way within or abutting the Property, but expressly excluding any such pathways located on City Property; (d) fences installed by the Declarant or by the Association on Common Area. (e) the Community Facilities and all fixtures and all furniture, equipment and other personal property owned or leased by the Association located therein; (0 entryway signs and/or monuments identifying any portion of The Tradition at Fitchie Creek development, whether located on Common Area or within public rights-of-way within or abutting the Property; (g) landscaping located in the islands and/or eyebrows of cul-de-sacs within the development, whether located on Common Area or within public rights-of-way within the Property; and (h) landscaping located within public rights-of-way within or abutting the Property, but expressly excluding maintenance and replacement of any and all trees located within such rights-of-way, which trees shall be maintained by the City. SECTION 4.3. Intentionally Omitted. SECTION 4.4. Watering. The Association shall have the right, but shall not be required, to water any grass, landscaping and plant materials located on Common Area any Dedicated Rights-of-Way. All other watering on any Lot shall be provided by the Owner thereof. SECTION 4.5. No Maintenance of City Property. City Property shall be owned and maintained by the City. The Association shall have no responsibilities relative to the City Property once the City Property is conveyed to the City by dedication and/or deed, subject to the provisions of this Declaration. SECTION 4.6. Failure of Association to Maintain, Repair or Replace. In the event the Association fails to maintain, repair or replace Common Area and any improvements thereto or any improvements located within public rights-of-way within or abutting the Property that are 6 the responsibility of the Association to maintain, the City may (but shall not be required to) effect such maintenance, repairs or replacements and the City shall be entitled to reimbursement in full from the Lot Owners for its costs, including reasonable attorneys' fees, incurred in connection therewith. ARTICLE 5. COVENANT FOR ASSESSMENTS SECTION 5.1. Creation of the Lien and Personal Obligation of Assessments. Each Owner of any Lot, by acceptance of a deed therefor or possession thereof(whether or not it shall be so expressed in any such deed or other conveyance), is deemed personally and individually to covenant and agree to pay to the Association the Assessments authorized under this Declaration. In addition, Declarant hereby covenants and agrees for each Lot owned by Declarant within the Property to pay to the Association the Assessments authorized under this Declaration, subject to the provisions set forth in Sections 5.8 and 5.9. All such Assessments shall be fixed, established and collected from time to time as provided in this Declaration. The Assessments, together with interest thereon, attorneys' fees and costs of collection thereof as hereinafter provided, shall be a charge on the land and shall be a continuing lien upon the Lot against which each such Assessment is made. Each such Assessment (and deficiency contributions, in the case of Declarant), together with such interest, costs and reasonable attorneys' fees, shall also be the personal obligation of the Owner of such Lot at the time when the assessment falls due. This personal obligation shall pass to each Owner's successors in title accepting a deed to or assignment of beneficial interest in any trust holding title to an Owner's Lot. SECTION 5.2. Base Annual Assessments. The Association is authorized to levy Base Annual Assessments equally against all Lots subject to assessment, which shall be paid by the Owners of all Lots within the Property, to fund common expenses for the general benefit of all Owners. Base Annual Assessments shall be used for the following purposes: (a) maintenance, repair, replacement and improvement of Common Area, and all landscaping or other improvements thereon, including without limitation, detention ponds, private streets, gatehouses and the Community Facilities; (b) maintenance, repair and replacement of any landscaping located within Dedicated Rights-of-Way that are the responsibility of the Association to maintain under the terms of this Declaration; (c) maintenance of Lots, as provided in Section 4.3 hereof; (d) maintenance, repair and replacement of any landscaping located within Dedicated Rights-of-Way that are the responsibility of the City to maintain, to the extent such landscaping is not maintained, repaired or replaced by the City; (e) payment of premiums on insurance maintained by the Association pursuant to this Declaration; 7 (f) to provide funds for the Association to carry on its duties or exercise its rights set forth herein or in its Articles of Incorporation or By-Laws or in the Illinois Not- For-Profit Corporation Act. SECTION 5.3. Special Assessments. The Association is authorized to levy Special Assessments to cover unbudgeted expenses or expenses in excess of those budgeted, for the following purposes: (a) defraying in full or in part the cost of any construction, reconstruction, repair or replacement of any improvement on Common Area or any improvements which are the responsibility of the Association, including the necessary fixtures, personal property or landscaping located on or related to Common Area, and all landscaping or other improvements thereon; and (b) defraying in full or in part the cost of, and providing of funds to the Association, for carrying on any of its duties set forth in this Declaration or in its Articles of Incorporation or By-Laws or the Illinois Not-For-Profit Corporation Act. Any Special Assessments shall have the assent of a majority of the votes of the Members that are subject to such Special Assessment voting in person or by proxy at a meeting duly called for such purpose, at which a quorum is present, written notice of which shall be sent to all such Members not less than five (5) days nor more than 40 days in advance of the meeting, setting forth the purpose of the meeting. Unless the Special Assessment specifies that it shall be applicable to a specified number of years, it shall be applicable only to the year enacted. In the event a Special Assessment is to be levied on less than all of the Lots located within the Property, such Special Assessment may, by the action described herein, be levied against only those Lots which benefit by such Special Assessment, in proportion to their benefit, and not against the other Lots in the Property. SECTION 5.4. Capital Contributions. The Association is authorized to levy Capital Contributions against all Lots as provided herein. At the time of the initial sale of each Lot from Declarant to any Owner, such Owner shall pay to the Association a Capital Contribution, which shall be a sum equal to six (6) monthly payments of the Base Annual Assessment then in effect. The Capital Contributions shall be used by the Association to cover operating expenses and other expenses incurred by the Association pursuant to this Declaration and the By-Laws. The Capital Contributions for any Lot shall be levied only' upon the sale by Declarant to an Owner and shall not be levied on any subsequent sales of the Lot. SECTION 5.5. Basis for and Maximum Amount of Base Annual Assessments. The Base Annual Assessment shall be set from time to time by the Association. (a) The Base Annual Assessment may be increased effective January 1st of each year by the Board of Directors of the Association (at any meeting of the Board of Directors duly convened at least 30 days prior to said January effective date) 8 without a vote of the membership, provided that any such increase shall not be greater than a 10 percent increase over the maximum Assessment permitted for the year immediately preceding for such type of Assessment. (b) The Base Annual Assessment may be increased for any year by the Board of Directors of the Association at any time, over the Base Annual Assessment permitted for the year immediately preceding, without the vote of the membership, if the same is necessary to pay the costs of(i) any increases in real estate taxes for Common Area over the prior year; or (ii) any increases in the maintenance of Common Area or any improvements thereon over the prior year; or (iii) any increases in premiums for insurance procured by the Association over the prior year. (a) The Base Annual Assessment may be increased for the coming assessment year only for all succeeding assessment years effective January 1st of each year by the Board of Directors at any meeting of the Board of Directors (duly convened at least 30 days prior to said January 1st effective date) in an amount greater than provided in subsections (a) or (b) hereof for the coming assessment year, provided that any such change shall have the assent of the majority of the votes of the Members that pays such Assessment voting in person or by proxy, at a meeting duly called for such purpose, at which a quorum is present, written notice of which will be sent to all Members that pay such Assessments not less than five (5) day's nor more than 40 days in advance of the meeting, setting forth the purpose of the meeting. (b) After consideration of future needs and expected expenditures of the Association, the Board of Directors may fix either type of Assessment in lesser amounts than the maximum Assessments permitted or may, in its discretion, require no Assessment of either type whatsoever for any year, but such action shall not limit or prohibit the Board of Directors from fixing such Assessments for any year(s) following on the basis of increases in the maximum Assessments permitted hereunder rather than the assessments so fixed. SECTION 5.6. Reasonable Reserves. The Association shall establish and maintain from Base Annual Assessments collected hereunder, reasonable reserves for the costs of the maintenance, repair and replacement of those items which are the responsibility of the Association. The Association may' establish and maintain such other reasonable reserves as the Board of Directors deems necessary and convenient which are consistent with the powers and duties of the Association. SECTION 5.7. Uniform Rate of Assessment. Base Annual Assessments must be fixed at a uniform rate for all Lots subject thereto. Base Annual Assessments may be collected on a quarterly basis or such other periodic basis as set by the Board of Directors. SECTION 5.8. Assessment for Lots Owned by Declarant Notwithstanding the foregoing 9 provisions, Base Annual Assessments and Special Assessments for any Lots while (i) owned by Declarant and improved with a completed residence, but unoccupied by any tenant of Declarant, or (ii) owned by any party but occupied by Declarant and used as a model or a sale office, shall be limited to 25 percent of the amounts fixed with respect to such type of Lots owned by Owners other than Declarant. Prior to the completion of a residence on any Lot, (which shall mean the issuance of a certificate of occupancy therefor by the City), such Lot shall be exempt from payment of any and all Assessments. SECTION 5.9. Deficiency Contributions. For every calendar year during which Declarant remains a Class B Member of the Association, Declarant shall contribute to the Association all funds in excess of the budgeted and collected Assessments which shall be necessary to defray the costs properly paid or incurred by it for the purposes for which Base Annual Assessments may be collected, all without limitation to the maximum amounts provided under Section 5.5 hereof. Declarant's contribution for the calendar year during which Declarant's Class B membership terminates shall be prorated to the date of such termination. For purposes hereof, the establishment of reserves pursuant to Section 5.6 does not constitute the payment or incurring of costs by the Association and Declarant's deficiency contribution shall not be required to be applied to the establishment of reserves. SECTION 5.10. Date of Commencement of Annual Assessments; Due Dates. Base Annual Assessments provided for herein shall commence for any Lot within the Property, or any land annexed to the Property, on the day of the conveyance of the first Lot of such type in the Property and shall be prorated for the month of said conveyance. The Board of Directors shall fix the amount of such Assessments at least 30 days in advance of each annual Assessment period, and in lieu thereof, the amount of each type of such Assessment for the prior year shall be the fixed amount. Written notice of any changed amount of such Assessments shall be sent to every Owner subject thereto, but failure to do so shall not invalidate the changed Assessments. Base Annual Assessments shall he payable in quarterly installment or such other periodic basis set by the Board of Directors. SECTION 5.11. Certificate of Payment. The Association shall, upon demand, furnish to any Owner liable for said Assessments, a certificate in writing signed by an officer of the Association, setting forth whether the Assessments on a specified Lot have been paid and the amount of the delinquency, if any. A reasonable charge may be made by the Board of Directors for the issuance of such certificates. Such certificates shall be conclusive evidence that any Assessment therein stated to have been paid has in fact been paid. No charge shall he made for issuing from time to time said certificates to Declarant on Lots then owned by Declarant. SECTION 5.12. Delinquency in Payment of Assessments. Any Assessment provided for in this Declaration which is not paid when due, shall he delinquent. With respect to each Assessment not paid within 15 days after its due date, the Association may, at its election, require the Owner to pay a "late charge" in a sum to be determined by the Association and applied uniformly. If any such Assessment is not paid within 30 days after the delinquency date, the Assessment shall bear interest from the date of delinquency at the highest rate permitted by Illinois law, and the Association may, at its option, bring an action at law against the Owner 10 personally obligated to pay the same, or foreclose the lien (provided for in Section 5.1 hereof) against the Lot, and there shall be added to the amount of such Assessment the late charge, the costs of preparing and filing a Complaint in such action and reasonable attorneys' fees, and in the event a judgment is obtained, such judgment shall include all Assessments accrued from date of suit to judgment, increased by such late charges, costs and fees, plus interest. Each Owner vests in the Association or its assigns, the right and power to bring all actions at law or lien foreclosures against such Owner for the collection of such delinquent assessments SECTION 5.13. Suspension of Voting Rights Due to Unpaid Assessments. The Association is authorized to suspend the voting rights of an Owner for any' period during which any Assessment against such Owner's Lot remains unpaid and delinquent, and for a period not to exceed 30 days for any single infraction of the published rules and regulations of the Association, provided that any suspension of such voting rights, except for failure to pay Assessments, shall be made only by the Association or a duly appointed committee thereof, after notice and hearing given and held in accordance with the By-Laws or rules and regulations of the Association. The foregoing shall not apply to unfunded deficiency contributions of the Declarant under Section 5.9. SECTION 5.14. Waiver of Use. No Member may exempt himself from personal liability for Assessments duly levied by' the Association nor release the Lot owned by him from the liens and charges hereof, by waiver of the use and enjoyment of Common Area or by abandonment of his Lot. SECTION 5.15. Subordination of the Lien to Mortgages. The lien of the Assessments provided for herein shall be subordinate to the lien of any first mortgage or trust deed. Sale or transfer of any Lot shall not affect the Assessment lien. However, the sale or transfer of any Lot pursuant to the foreclosure of a mortgage or trust deed or any proceeding or deed in lieu thereof shall extinguish the lien of such Assessments as to payments which become due prior to such sale or transfer. No sale or transfer shall relieve such Lot from liability for any Assessments thereafter becoming due or from the lien thereof. ARTICLE 6. PROPERTY RIGHTS SECTION 6.1. Members' Easements over Common Area. Every Member shall have a right and easement for ingress and egress over and across, and for use of and enjoyment in and to, Common Area and the improvements thereon, and such easements shall be appurtenant to and shall pass with the title to every Lot. Reference in the respective deeds of conveyance, or in any mortgage or trust deed or other evidence of obligation, to the easements and covenants herein described shall be sufficient to create and reserve such easements and covenants to the respective grantees, mortgagees or trustees of said parcels as fully and completely as though said easements and covenants were fully recited and set forth in their entirety in such documents. Said right of easement for ingress and egress over and across, and of enjoyment in and to, Common Area and improvements located thereon shall be subject to the following provisions: 11 (a) The right of the Association, in accordance with its Articles of incorporation and By-Laws, to borrow money for the purposes of improving or reconstructing Common Area and improvements thereto and in aid thereof to mortgage said Common Area(or a portion thereof). (b) The right of the Association to declare or grant easements and licenses and to dedicate or transfer all or any part of Common Area to any public agency, authority, or public or private utility for such purposes and subject to such conditions as may be agreed to by the Members. No such dedication or transfer shall be effective unless an instrument has been recorded, signed by the Association and authorized by the assent of at least 67 percent or more of the votes of each class of Members present in person or by proxy and entitled to vote at a meeting duly called for such purpose at which a quorum is present, written notice of which is mailed to all Members not less than five (5) days nor more than 40 days in advance of the meeting, setting forth the purposes of the meeting. (c) The right of the Association to establish uniform rules and regulations (including fines) pertaining to the use of Common Area; provided, however, that the Association shall not limit or prohibit the public use of pathways located within the Property. (d) The right of the Association to suspend an Owner's right to use any improvements located within Common Area, including without limitation the Community Facilities (i) for any period during which any charge against such Owner's Lot remains delinquent; and (ii) for a period not to exceed 30 days for a single violation or for a longer period in the case of any continuing violation, of this Declaration or the rules and regulations of the Association after written notice thereof. (e) The right of Declarant and its designees (and their respective sales agents and representatives) to (1) non-exclusive use of Common Area(as may be amended by annexation from time to time) in connection with the sale of residential units within the Property (including any of the Additional Land annexed thereto); and (2) the use of any improved residence on any of the Lots as a sales office until the last Lot within the Property is improved with a residence and conveyed to a third party purchaser. (f) Such other rights as are reserved or created by this Declaration. SECTION 6.2. Delegation of Use. Any Member may delegate in accordance with the By-Laws of the Association, such Member's right of enjoyment to Common Area and the improvements located thereon to the members of his family, and the occupants residing on such Member's Lot. SECTION 6.3. Association's Access to Lots. The Association and its respective agents, 12 employees and independent contractors shall have the right and license to enter upon any Lot to the extent necessary to exercise any right or responsibility of the Association as set forth in this Declaration, as to the Lot or the dwelling unit or other improvements situated thereon, or to the extent necessary to enforce any covenants or restrictions set forth herein and shall not be guilty of trespass. SECTION 6.4. Title to Common Area. Declarant covenants for itself, its successors and assigns, that it will convey or cause to be conveyed fee simple title to Common Area to the Association within 30 days after the date of this Declaration, subject to: (a) Covenants, conditions and restrictions then of record; (b) The terms of this Declaration; (c) Zoning ordinances, development agreements and annexation agreements of record; (d) Current real estate taxes, not yet due and payable (for which Declarant shall pay or make arrangements to pay its pro rata share); (e) Utility easements granted or to be granted for sewer, water, gas, electricity, telephone, cable television and any other necessary utilities; (f) Reservation of easement for ingress and egress; and (g) Easements granted or to be granted for the construction, maintenance, repair and use of improvements to be located on Common Area. When lands annexed from time to time, pursuant to Article 11 of this Declaration, contain land to be designated as Common Area, said Common Area shall similarly be conveyed by Declarant or the legal title holder thereof to the Association prior to the conveyance by Declarant or such legal title holder to an Owner of the first Lot in the lands then annexed. ARTICLE 7. EASEMENTS SECTION 7.1. Utility Easements. Declarant hereby reserves unto itself, its successors, assigns and designees, the right (i) to create, declare and grant over, above, under and across Common Area or the Lots, at any time before or after conveyance, non-exclusive perpetual utility easements and (ii) to utilize any easement created by any Plat of Subdivision or other instruments, for the installation, construction, improvement or removal or reconstruction, replacement, substitution, and maintenance of sewer (storm and sanitary), water, gas, electricity, cable television, telephone and any other utilities as may be necessary in Declarant's sole judgment to develop, service and maintain the Property. The aforesaid easements shall include 13 reasonable rights of ingress and egress. Furthermore, Declarant hereby declares and reserves for the benefit of all Owners, the Association, and the various public utility companies a non- exclusive public utility easement over, above and under Common Area, and those portions of Lots on which no homes are constructed, for the installation, construction, improvement, removal, reconstruction, replacement and substitution of underground service lines, wires, cables, conduits, terminals, manholes and other fixtures as the beneficiaries of the easement may from time to time require for any sewer (storm and sanitary), water, gas, electricity, cable television, telephone and other utilities which may serve the homes constructed on the Property, or other adjacent properties. It shall be the obligation of any party exercising the easement to restore any areas disturbed by the exercise of the easement in the manner and to the extent set forth in the provisions contained in the Plats of Subdivision for the Property relating to the exercise of easements. SECTION 7.2. Ownership of Utility Lines. Declarant shall initially own all storm sewers, sanitary sewers, and water lines when situated in, over, under, along or across Common Area or easement areas designated for the installation and maintenance of such lines to the extent the same are not initially dedicated to the City, Kane County, any public utility or any governmental or quasi-governmental authority, and Declarant shall have the right (but not the obligation) of maintenance, replacement, repair or removal thereof and reasonable access thereto. Declarant may transfer title to said storm sewers, sanitary sewers and water lines and Declarant's rights of maintenance, replacement, repair and removal thereof to any assignee deemed beneficial or appropriate by Declarant (including the Association, the City, Kane County, any public utility, or any governmental or quasi-governmental authority), which transfer and assignment shall be effectuated by a bill of sale or other appropriate writing. In the absence of such a transfer prior to the completion of the sale of all of the Lots by Declarant to Owners purchasing the same, the transfer shall be deemed to have been made to the Association upon the closing of the sale of the last Lot to an Owner, without further action or documentation. SECTION 7.3. Reservation of Easements for Declarant's Benefit. Anything contained in this Declaration to the contrary notwithstanding, Declarant hereby reserves for itself, its agents, employees, contractors, sub-contractors, workmen, materialmen, invitees and any successor builders an easement under, over and across Common Area for the purposes of constructing, completing, repairing, maintaining, inspecting, exhibiting and selling any Lots or dwelling units then owned by Declarant or any such successor builders. SECTION 7.4. Easements for Installation, Maintenance and Repair of Common Area. Declarant hereby reserves unto itself, its successors, assigns, and designees, and to the Association, the right and easement to come onto the Lots or Common Area for purposes of building, installing, maintaining, repairing, replacing and improving Common Area and any improvement located thereon or within public right-of-ways within or abutting the Property. SECTION 7.5. Easement for Maintenance of Landscaping on Lots . Declarant hereby reserves unto itself, the Association and their respective successors, assigns and designees an easement over each Lot within the Property for the provision of maintenance care services as provided under Section 4.3 hereof. The aforesaid easement shall include reasonable rights for 14 ingress and egress and shall be perpetual. SECTION 7.6. Easement for Access to City Property. Declarant hereby declares and reserves for the benefit of the City, its officers, employees, agents and contractors, an easement and right of ingress and egress, over, upon and across any and all portions of Common Area within the Property to the extent reasonably necessary for access to the City Property or any portion thereof for purposes of inspecting, maintaining, repairing and replacing all or any portion of the City Property. SECTION 7.7. Easement Over Pathways. Declarant hereby declares and reserves for the benefit of all Owners and their guests and invitees an easement and right of ingress and egress, over, upon and across any pathways located on any portion of Common Area within the Property. The Association shall have the right to adopt reasonable rules and regulations governing and limiting the right and easement granted hereunder, subject to approval by the City. There is also declared and reserved for the benefit of the public an easement and right of ingress and egress over, upon and across such portions of any pathways located on any portion of Common Area as are to be usable by the public and maintained by the City, as designated on the Plat of Subdivision. Motor vehicles are prohibited on such pathways without prior written approval of Declarant or the Association. SECTION 7.8. Rights to Reserve or Grant Specific Easements for Lots and Common Area. Declarant shall have the right to grant or reserve particular specific non-exclusive easements on any portion of any Lot (except portions occupied by dwellings) or on Common Area for the installation, maintenance and repair of improvements to the Lots or Common Area by Declarant, its successors, assigns or designees or by the Association. Such easements may be created over Lots after such Lots are conveyed to Owners only if(i) such areas are designated as such by a Plat of Subdivision, a deed, a declaration of easement or a grant of easement executed and recorded by Declarant with the Recorder of Deeds of Kane County, Illinois, (ii) construction of such improvement has commenced prior to conveyance of such Lot or Common Area, or (iii) such easement is necessary to correct errors in engineering plans. Such easements may be created over Common Area at any time, even after it has been conveyed to the Association. Failure to so grant or reserve any particular specific casement as provided herein shall not invalidate or adversely affect the easements reserved under Section 7.4. SECTION 7.9. Power Coupled with an Interest. In furtherance of Declarant's rights to create easements pursuant to Section 7.8 above, a power coupled with an interest is hereby reserved to Declarant, as attorney-in-fact of the Association and of the Owners of all Lots within the Property, to grant or reserve such easements, and the giving of any deed, mortgage, or other instrument with respect to Common Area or any Lot, and acceptance thereof, shall be deemed a grant and acknowledgment of and a consent to such power of said attorney-in-fact. ARTICLE 8. INTENTIONALLY OMITTED 15 ARTICLE 9. USE RESTRICTIONS SECTION 9.1. Residential Use. The Property is hereby restricted to residential dwellings, and ancillary and accessory uses and buildings in connection therewith, subject to the provisions of Section 9.2 and except for model homes and sales offices which may be operated by Declarant or its designees during the construction or sales period. All buildings or structures erected on the Property shall be of new construction and no buildings or structures shall be moved from other locations to the Property and no subsequent buildings or structures other than single-family detached homes shall be built on any Lot. No building or structure of a temporary character, trailer, tent, shack, garage, barn, or other outbuilding shall be placed on or used on any Lot at any time as a residence either temporarily or permanently. SECTION 9.2. Restrictions on Commercial Activities. No commercial activities of any kind shall be conducted in any building or in any portion of the Property; provided, however, that an Owner may operate a home-based business on his Lot, but only if (i) the existence or operation of the commercial activity is not apparent or detectable by sight, sound, or smell from outside the Owner's residence located on the Lot, (ii) the commercial activity is not prohibited by the ordinances or regulations of the City and is conducted in compliance with the City's zoning ordinances, (iii) no motor vehicle with business markings is stored or parked on the Lot, except within the garages, with the garage door shut during periods of storage, and (iv) the commercial activity does not, in the Board's reasonable judgment, generate a level of vehicular or pedestrian traffic or a number of vehicles being parked in the Property which is noticeably greater than that which is typical of residences within the Property in which no such activity is being conducted. The foregoing restrictions shall not apply to the commercial activities of Declarant or its designees, or the use or operation of sales offices or model units on any Lots by Declarant or its designees during the construction and sales period or by the Association in furtherance of its powers and purposes set forth hereinafter and in its Articles of Incorporation, By-Laws and Rules and Regulations, as the same may be amended from time to time. SECTION 9.3. Prohibition of Commercial Vehicles, Buses, Trucks, Limousines, Boats, Trailers and Recreational Vehicles on Lots. No commercial vehicles, buses, trucks (except pickup trucks that are used as a principal personal vehicle by the Owner), limousines, boats, trailers, or recreational vehicles shall be parked or stored on the Lots, except for those which are stored within a garage constructed on a Lot, with the garage door shut during periods of storage. SECTION 9.4. Garages; Storage of Cars. The Owner of any Lot shall keep the garage door of his residence shut at all times when it is not in use. No Owner shall park or store vehicles on public streets or on driveways within his Lot if there is capacity for storage of such vehicles in the garage on his Lot. No Owner shall utilize the space within his garage for purposes which adversely affect or limit the storage of vehicles therein to meet the designed capacity of such garage. SECTION 9.5. Animals. No animals, livestock, or poultry of any kind shall be raised, 16 bred, or kept on any Lot except for dogs, cats and other common animals kept as household pets, but not for breeding purposes. The owner of any pet shall immediately remove any bodily waste deposited by its pet on any Lot, Common Area, parkways, cul-de-sac islands or dedicated streets. SECTION 9.6. Limitations on Signs. No "for sale" or "for rent" or brokers signs shall be erected, placed, or permitted in the yard of any Lot, and any such sign as may be located other than in the yard shall not be more than five (5) square feet. No advertising signs, billboards, or objects of unsightly appearance or nuisances shall be erected, placed or permitted to remain on any portion of any Lot. The foregoing restrictions shall not apply to the signs and billboards, if any, of Declarant or its designees. SECTION 9.7. Prohibition of Nuisances. No Lot shall be used in any way or for any purpose, which may endanger the health or unreasonably disturb the residents of the Property. SECTION 9.8. Intentionally Omitted. SECTION 9.9. Intentionally Omitted. SECTION 9.10. Intentionally Omitted. SECTION 9.11. Intentionally Omitted. SECTION 9.12. Trash Removal. All rubbish, trash and garbage shall be regularly removed from the Property and shall not be allowed to accumulate thereon. Each Owner shall be responsible for trash removal from his Lot. There shall be no trash piles or storage piles on the Property. The foregoing restrictions on trash piles and storage piles shall not apply to the activities of Declarant, its designees and those working for or on behalf of Declarant during the construction and sales period. Al] rubbish, trash and garbage shall be stored within the garage on the rear of the Lot in trash cans with sealed lids. SECTION 9.13. Intentionally Omitted. SECTION 9.14. Restrictions on Radio and TV Receiver Installations. The Board of Directors shall have discretion, to be exercised through the adoption of an appropriate rule or rules, to specify, limit or prohibit the type, size, color, number and/or placement of radio, television and other telecommunications receiver installations on any Lot within the Property and to enact regulations regarding such installations, all to the extent the Board of Directors deems beneficial and convenient; provided, however, that any such rule or rules adopted by the Board of Directors shall (i) be enforced against Owners in a non-discriminatory manner and (ii) comply with the terms and conditions of applicable federal, state or local laws, ordinances, rules or regulations, as same may be amended from time to time. Notwithstanding the foregoing, no such installations by any Owner shall be permitted upon any portion of Common Area without the prior written consent of the Association, which may be withheld in its discretion (to be exercised in accordance with applicable law as aforesaid). 17 SECTION 9.15. Prohibition of Derricks, etc. No derrick or other structure designed for use in boring, mining, or quarrying for oil or natural gas, precious minerals, shall be erected, maintained or permitted upon any Lot in the Property, provided that nothing in this Declaration shall be construed to restrict a public utility from erecting, maintaining, and operating upon any Lot owned by it within the Property, a well, housing, and equipment for the purpose of extracting from the sub-surface and/or the treatment, storage and distribution of water through the system of such public utility. SECTION 9.16. Clearance of Utilities. The Owner of a Lot, and not the Association, shall be responsible for the clearance and relocation of any utilities that must be made in connection with the installation of any improvements by the Owner on his Lot. SECTION 9.17. Maintenance of Easement Areas. Easements for installation and maintenance of the utilities, sewer pipelines and facilities and drainage facilities over each of the Lots, and in Common Area, are reserved as shown on the recorded Plat of Subdivision or as created in accordance with this Declaration or any amendments hereof. Within these easements, no structure, planting or other materials shall be placed or permitted to remain which may damage or interfere with the installation and maintenance of utilities or which may change the direction in the flow of drainage channels in the easements, or which may obstruct or retard the flow of water through drainage channels in the easements. Sump pumps, gravity drains and other drains serving the residence constructed on any Lot shall not outfall or empty into grass swales between Lots, but only into a storm sewer, a storm water service line or an underground drain pipe connecting to a storm sewer included in the storm drainage system for the Property; provided, however, that sump pumps, gravity drains and other drains serving Lots which are adjacent to a detention pond located with Common Area may outfall and empty through underground drain pipes directly into said adjacent detention pond at a level not higher than the normal pool elevation of such detention pond. All such easement areas located on a Lot and all improvements in it shall be maintained continuously by the Owner of the Lot, except for those improvements for which a public authority, a private or public utility company or the Association is responsible. SECTION 9.18. Intentionally Omitted. SECTION 9.19. Intentionally Omitted. SECTION 9.20. Right of Abatement, Correction or Removal. In addition to other rights and remedies that may be available to the Association, as provided in this Declaration, or as may otherwise be available to the Association, in the event any Owner shall violate or suffer on his Lot the violation of any of the Use Restrictions contained in this Article 9 or any rules or regulations adopted by the Association to supplement the Use Restrictions, as provided in Section 9.1, the authorized agents of the Association, upon an affirmative vote taken by the Board of Directors, may enter upon the Lot with no further notice than that provided by the recording of this Declaration, and may (but shall not be required to) abate, correct or remove such violation and the cost of such abatement, correction or removal shall be paid by the Owner, and if unpaid, shall constitute a lien against the Lot, enforceable in the manner provided in 18 Sections 5.12 and 5.13 hereof. In such event, neither the Association, its Board of Directors, or the authorized agents of the Association shall be guilty of trespass or held liable for damages. ARTICLE 10. APPEARANCE CONTROL COMMITTEE SECTION 10.1. Creation of Appearance Control Committee. There is hereby created an Appearance Control Committee (the "Committee"), which shall consist of three (3) members designated and replaced from time to time by Declarant or by the Board of Directors as provided in this Section 10.1. Declarant is hereby authorized to designate and replace members of the Committee until such time as the last Lot of the Property is developed with a home and is sold to a third party purchaser, and said power and duty of Declarant to designate and replace members of the Committee shall cease at the time the last Lot of the Property is developed with a home and is sold to a third party purchaser. Thereafter, such powers and duties shall be vested in the Board of Directors of the Association or in a committee duly appointed by such Board of Directors. No member of the Committee, nor its designated representative, shall be entitled to any compensation for such services performed pursuant to this covenant. SECTION 10.2. Review and Approval of Plans. No (i) structure, improvement or addition (including, but not limited to, decks, patios, in-ground pools, and storm doors) or (ii) permanent (as opposed to annual) landscaping or plant materials (including vegetable gardens), shall be erected, placed or altered on any Lot within the Property (except as are installed or approved by Declarant in connection with the initial construction of the dwelling and other improvements on the Lot) until the building plans, specifications and plot plan showing the location and proposed erection, placement or alteration of any such structure, improvement or addition or a plan or description of any permanent landscaping or plant materials has been approved in writing by the Committee as to conformity of external design and harmony with existing structures or landscaping on the Property and as to location with respect to topography and finished ground elevation. The Committee may also take into account whether and to what extent any such structure, improvement or addition or any permanent landscaping of plant material proposed to be installed on a Lot will interfere with the delivery of maintenance services under Section 4.3 hereof. The Committee shall notify an applicant of such approval or disapproval of its action within 30 days after said building plans and specifications, plot plan or landscaping plan, description have been submitted to the Committee; or, in the event the Committee does not disapprove of the building plans, specifications and plot plan as submitted, within said 30 day period, and (i) no suit to enjoin the erection, placement or alteration of such structure, or other improvement or addition or such permanent landscaping or plant materials, or to require the removal thereof has been commenced prior to the completion thereof or (ii) no removal thereof has been undertaken by the authorized agents of the Association, as provided for herein, such approval will not be required, and this covenant shall be deemed to have been fully complied with. SECTION 10.3. Conformance to Annexation Agreement. All residential structured to be constructed on the Property shall be designed, constructed and maintained in conformance with the requirements of the planned unit development ordinances for the Property and with the 19 building elevations incorporated into the Third Amendment to the Annexation Agreement for the Property. Additionally, notwithstanding anything to the contrary in the Declaration, such provisions regarding the design, construction and maintenance of residential structures on the Property shall also be enforceable by the City of Elgin. SECTION 10.4. Enforcement. In the event any such structure, improvement, or addition or permanent landscaping or plant materials are erected, placed or altered on any Lot in violation of the provisions of this Article 10, the authorized agents of the Association, upon an affirmative vote taken by the Board of Directors, may enter onto such Lot with no further notice than that provided by the recording of this Declaration and may (but shall not be required to) remove the same and the costs of removal shall be paid by the Owner, and if unpaid, shall constitute a lien against the Lot as provided in Section 5.1 and shall give rise to the remedies available to the Association provided in Sections 5.12 and 5.13. In such event, neither the Association, its Board of Directors, or the authorized agents of the Association shall be guilty of trespass or held liable for damages. In the event suit is filed or in the event the Association takes other actions to enforce this Declaration with respect to such structure, improvement, addition or landscaping, including removal thereof by the authorized agents of the Association, the Owner shall be responsible for attorneys' fees and costs incurred by the Association, as provided in Section 17.1 hereof. The City shall also have the power and authority (but not the obligation) to enforce this Article 10. ARTICLE 11. OWNER'S OBLIGATION TO MAINTAIN SECTION 11.1. Covenant to Maintain. Each Owner, his heirs, successors and assigns, hereby covenants and agrees at all times to maintain his Lot, and the residence constructed thereon, in a neat and proper condition and to perform all necessary repairs thereto, to the extent not provided for by the Association pursuant to this Declaration. The foregoing shall include the duty of each Owner to water the landscaping on such Owner's Lot, as provided in Section 4.4. The Owner of each Lot shall be solely responsible for all repair and replacement of lawn, plants, shrubs and other landscaping, which were damaged or died due to the failure of the Owner to adequately water his Lot. SECTION 11.2. Enforcement of Owner's Maintenance Obligations. If any Owner fails to perform his obligations hereunder, the Association may, but shall not be required to, perform such obligations (including repair and replacement of landscaping and plant materials), and shall not thereby be deemed guilty of trespass. The Association shall be entitled to reimbursement in full from the Owner for its costs of every kind incurred in connection therewith, arid any such expenditures incurred by the Association shall become the personal obligation of the Owner and a continuing lien on the Lot, recoverable with interest, costs and reasonable attorneys' fees in the same manner and to the same extent as provided under Section 5.1 and shall give rise to the remedies available to the Association provided in Sections 5.12 and 5.13. 20 ARTICLE 12. ANNEXATION OF ADDITIONAL LAND SECTION 12.1. Annexation by Declarant. Declarant may, without the consent or approval of the Association, any Members or any Owners, annex to the Property all or part of the real estate contiguous the Property(collectively, the "Additional Land") from time to time, by a written instrument signed by Declarant and recorded with the Office of the Recorder of Kane County, Illinois. Should Declarant develop land within the Additional Land within 10 years after the date of this Declaration, such portion of the Additional Land may be annexed to the Property and made subject to this Declaration without the assent of the Class A Members. Such Additional Land, or portions thereof, may be annexed in separate phases and shall be considered annexed to said Property and subjected to the provisions of this Declaration if within such 10- year period Declarant executes and records an amendment or supplement to this Declaration with the Office of the Recorder of Kane County, Illinois, describing the portion to be annexed to said Property and legally and specifically making said Additional Land, or portion thereof, subject to this Declaration. Any such Amendment or Supplementary Declaration shall designate Lots and/or Common Area and shall also update Exhibit A hereto, if necessary. In improving or causing the improvement of any additional phases(s), Declarant shall keep the Property, subject to this Declaration, free of any liens or claims for liens for labor or materials provided in such improvements, pursuant to the Illinois mechanics' lien laws. SECTION 12.2. Annexation by the Members. Annexation of any additional real estate to the Property other than property within the Additional Land, shall require the recording with the Office of the Recorder of Kane County, Illinois of an instrument signed by the Association with the assent of not less than 67 percent of the votes of Members present in person or by written proxy at a meeting duly called for this purpose, at which a quorum is present, written notice of which shall be sent to all Members not less than five (5) days and not more than 40 days in advance of the meeting setting forth the purpose of the meeting. SECTION 12.3. Annexation Limited to Lots, Common Area, Open Space and City Property. No real estate may be annexed to the Property other than real estate that will fall within the definition of"Lots" or"Common Area," as set forth in Article 1 hereof ARTICLE 13. AVAILABILITY OF RECORDS Any Owner or first mortgagee of any Lot shall be entitled, upon reasonable request, to receive for inspection from the Association current copies of the Declaration, Articles of Incorporation, By-Laws, records and financial statements of the Association. Furthermore, any holder of a mortgage given on any Lot within the Property and any phases annexed thereto, shall be entitled to receive from the Association, without cost, a copy of the Association's financial statement, if any, and if any mortgagee shall so request in writing prior to the preparation of the annual financial statement of the Association, such financial statement shall be audited. 21 ARTICLE 14. RIGHTS OF FIRST MORTGAGEES Upon written request, any first mortgagee of a Lot shall he entitled to and shall receive from the Association notices of any of the following as shall be requested: (a) Any condemnation loss or casualty loss which affects a material portion of the Property and any phases annexed thereto or the Lot on which its mortgage is held; (b) Delinquency of assessments, which remain uncured for a period of 60 days or more; (c) Any lapse, cancellation, or modification of any insurance policy or fidelity bond maintained by the Association; (d) Any restoration or repair of the Property and any phases annexed thereto after partial condemnation or damage; and (e) Any termination of the legal status of the Property and any phases annexed thereto. Any termination of legal status as provided in Subsection (e) above, shall require the consent of the holders of the mortgages on at least 51 percent of the Lots contained in the Property and any phases annexed thereto at the time thereof. ARTICLE 15. MUNICIPAL ORDINANCES PREVAIL None of the covenants, conditions, restrictions or provisions of this Declaration are intended to supersede or prevail over the ordinances of general applicability of the City, and in the event of any conflict, the applicable ordinances of the City shall supersede and prevail over the covenants, conditions, restrictions and provisions of this Declaration. However, no ordinance of the City controlling or regulating any act that is expressly limited, controlled or prohibited by the covenants of this Declaration shall operate to authorize or permit such act. The Association shall comply with all City ordinances and shall seek all necessary approvals and permits from the City and other applicable governmental entities for activities it undertakes within Common Area and Lots. ARTICLE 16. INSURANCE SECTION 16.1. Casualty Insurance for Single Family Homes. Each Owner shall maintain at his own cost and expense such insurance coverage as he may desire with respect to (i) personal liability for acts and occurrences upon his Lot and within his dwelling unit, (ii) 22 physical damage losses for personal property and the contents of his dwelling unit, (iii) physical damage losses for any improvements, additions or betterments installed either by a person or entity, (iv)physical damage loss for any improvements on a Lot, and (v) any special flood hazard insurance as may be required by the first mortgagee of any Lot. The Association shall have no responsibility to maintain such insurance. SECTION 16.2. Casualty Insurance for Common Area. The Association shall obtain and maintain a policy or policies of insurance with respect to the damage or destruction of Common Area, any improvements located thereon and to any other tangible assets of the Association, including coverage against damage or destruction by the perils of fire, lightning and those perils contained in an all risk form, and such other perils as the Board of Directors of the Association from time to time may determine should be included in such coverage, in an amount equal to 100 percent of the insurable replacement cost thereof, without depreciation and with an agreed amount provision. Such insurance shall name as the insured, and the proceeds thereof shall be payable to the Association, as trustee. The proceeds of such insurance shall be made available, as the Board of Directors of the Association shall reasonably determine, for the repair, reconstruction, and restoration of such portions of Common Area and other insured items subject to the rights of the first mortgagees. To the extent feasible, all such policies of insurance shall (i) provide that the insurance shall not be invalidated by the act or neglect of Declarant, the Association, its Board of Directors, its officers, any Owner or occupant, or any agent, employee, guest or invitee of any of them, and (ii) shall contain an endorsement that such policies shall not be canceled without at least 30 days' prior written notice to the Association, the Owners, and all first mortgagees of the Lots. SECTION 16.3. Liability Insurance Maintained by the Association. The Association shall obtain and maintain a policy or policies of comprehensive general liability insurance insuring on a claims-made basis the Association, its directors, officers, the Owners, and their agents and employees against claims for personal injury, including death and property damage, arising out of any occurrence in connection with the ownership, occupancy, use, supervision, operation, repair, maintenance or restoration of Common Area, any improvements located thereon and to any other tangible assets of the Association, or in connection with any act or omission of or on behalf of the Association, its Board of Directors, agents or employees within the Property. Such policies shall be in the amount of $1 million for bodily injury, including death, and property damage arising out of a single occurrence, and shall contain a provision that they may not be canceled without at least 30 days' prior written notice to the Association, the Owners, and the first mortgagees of the Lots. SECTION 16.4. Workmen's Compensation and Fidelity Insurance: Other Insurance. The Association shall obtain and maintain a policy or policies of insurance with reputable insurance carriers providing the following coverage: (a) Workers' compensation and employers' liability insurance in such form and in such amounts as may be necessary to comply with applicable laws; (b) Fidelity insurance or bonds in reasonable amounts for all officers and employees 23 having fiscal responsibilities, naming the Association as obligee; and (c) Such other insurance in such limits and for such purpose as the Association may, from time to time, deem reasonable and appropriate. SECTION 16.5. Waiver of Subrogation. To the extent feasible, all policies of insurance obtained by the Association shall contain provisions that no act or omission of any named insured shall affect or limit the obligation of the insurance company to pay the amounts of any loss sustained. So long as the policies of insurance provided for herein shall state that a mutual release as provided for in this Section shall not affect the right of recovery thereunder, and further provide coverage for the matters for which the release herein is given, all named insureds and all parties claiming under them shall, and do by these presents, mutually release and discharge each other from all claims and liabilities arising from or caused by any hazard or source covered by any insurance procured by the Association, regardless of the cause of damage or loss. SECTION 16.6. Insurance Premium Expense. The expense of insurance premiums paid by the Association under this Article shall be an expense of the Association to which the assessments collected by the Association from the Owners shall be applied. ARTICLE 17. GENERAL PROVISIONS SECTION 17.1. Enforcement. Declarant, the Association, or any Owner, shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, liens and charges now or hereafter imposed by the provisions of the Declaration. Failure by Declarant, the Association or by any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. Breach of any of the covenants shall not defeat or render invalid the lien of any mortgage or trust deed made in good faith and for value as to said Lots or property, or any parts thereof, but such provisions, restrictions or covenants shall be binding and effective against any owner of said property whose title thereto is acquired by foreclosure, trustee's sale or otherwise. The Association shall be entitled to recover from any Owner against which it initiates enforcement, reasonable attorneys' fees and costs expended by the Association in any enforcement proceedings, and any judgment obtained by the Association in any enforcement proceedings shall include such fees and costs. In addition, such fees and costs incurred by the Association against an Owner, whether or not proceedings are initiated, shall constitute a lien against his Lot which may be recovered in the manner provided in Section 5.12 hereof. SECTION 17.2. Severability. Invalidation of any one or more of these covenants or restrictions by judgment or court order shall in no way affect any other provisions which shall remain in full force and effect. SECTION 17.3. Covenants Run with the Land. The covenants and restrictions of this 24 Declaration shall run with and bind the land, and shall inure to the benefit of and be enforceable by Declarant, the Association, or the Owner of any Lot subject to this Declaration, and their respective legal representatives, heirs, successors, and assigns for a period of 20 years from the date this Declaration is recorded, after which time said covenants shall be automatically extended for successive periods of 10 years. SECTION 17.4. Amendment. This Declaration may be amended by an instrument signed by Owners comprising not less than 67 percent of the total votes collectively held by all classes of Members with the written consent of mortgagees holding at least 51 percent of the outstanding mortgages on the Property. Any amendment to Article 8, Article 10, or which otherwise affects the rights and obligations of the City as set forth in this Declaration must be consented to in advance, in writing by the City Council of the City. Any such amendment that has the effect of (i) terminating this Declaration or (ii) terminating the legal status of the Association shall require the written consent of mortgagees holding at least 67 percent of the outstanding mortgages on the Property and any phases annexed thereto. Notwithstanding the foregoing, in the event Declarant desires to amend this Declaration: (x) to correct a technical or typographical error or to clarify any provisions herein which are otherwise vague, (y) for the sole purpose of causing this Declaration to comply with rules, regulation or guidelines as may be required by either the Federal Housing Authority (FHA) or the Veterans Administration (VA) to enable the sales of Lots from the Property to qualify for the insurance by either such agency of end mortgage loans made to Owners of such Lots, or as may be required to conform to the published manuals or guidelines of any governmental, quasi-governmental or private agency engaged in the business of the purchase of mortgage loans, including, but not limited to Federal Home Loan Mortgage Corporation (FHLMC) and Federal National Mortgage Association (FNMA) for the purchase of mortgage loans made on Lots in the Property, or (z) for the sole purpose of causing this Declaration to comply with the requirements of any statutes, ordinances, laws or regulations applicable thereto, it may do so by an instrument signed by Declarant without the consent of Owners, mortgagees, FHA, or VA, but shall give notice of any such amendments to all Owners, the FHA, the VA, and all mortgagees of Lots who have requested the same in writing. The failure to give such notice shall not affect the validity or effectiveness of such amendment. Notwithstanding anything to the contrary contained herein, Declarant may amend this Declaration to annex the Additional Land to the Property and to ensure that the Declaration appropriately accommodates the annexation of the Additional Land, as provided in Section 12.1 hereof, without any consents, except as provided in Section 17.6. In furtherance of the foregoing, a power coupled with an interest is hereby reserved to Declarant, as attorney-in-fact to so amend the Declaration as provided in this Section 17.4, and each deed, mortgage or other instrument with respect to a Lot and acceptance thereof shall be deemed a grant and acknowledgment of and a consent to such power to said attorney-in-fact. Any amendment must be recorded with the Office of Recorder, Kane County, Illinois. SECTION 17.5. Quorum. Unless otherwise specified to the contrary in any provision of this Declaration, the presence of Members or of proxies entitled to cast 10 percent of the votes of each class of membership shall constitute a quorum for any meeting of the Members of the Association. If the required quorum is not forthcoming at any meeting, another meeting may be called, subject to the notice requirements set forth in the By-Laws of the Association and the 25 required quorum at such subsequent meeting shall be 50 percent of the required quorum of the preceding meeting. No such subsequent meeting shall be held more than 60days following the preceding meeting. SECTION 17.6. FHA/VA Approval. As long as there is a Class B Member, (i) annexation of Additional Land or (ii) amendment of this Declaration of Covenants, Conditions and Restrictions, except for amendments made pursuant to Section 17.4(x), (y) or (z) above, will require the prior approval of the FHA or VA. END OF TEXT SIGNATURE PAGE FOLLOWS 26 IN WITNESS WHEREOF, the undersigned, being the Declarant herein has hereunto set its hand and seal on the date first written above. THE TRADITION AT FITCHIE CREEK, L.L.C. By: Title: ATTEST: By: Title: STATE OF ILLINOIS ) SS COUNTY OF K A N E ) I, a Notary Public, in and for said County, in the State aforesaid, DO HEREBY CERTIFY that as and as of , and personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and severally acknowledged that they signed and delivered the said instrument as such and of said corporation, and caused the corporate seal of said corporation to be affixed thereto, pursuant to authority given by the Board of Directors of said corporation, as their free and voluntary act and as the free and voluntary act and deed of said corporation, for the uses and purposes therein set forth. GIVEN under my hand and Notarial Seal this day of , 2007. NOTARY PUBLIC INSTRUMENT PREPARED BY & MAIL TO WHEN RECORDED: John E. Regan, Esq. Early, Tousey, Regan, & Wlodek 2400 Big Timber Road Suite 201A Elgin, IL 60123 27 EXHIBIT B By-Laws of The Tradition at Fitchie Creek Homeowners' Association (See Attached) 29 EXHIBIT C Restrictions on Fences Lots within the Property shall be subject to the following restrictions with respect to fences: (a) Lots through , inclusive: there shall be no fences constructed, placed or installed on any such Lot. (b) Lots _ through , inclusive: Only "board-on-board" style wood fences meeting the design specifications on Schedule I attached hereto may be constructed, placed or installed on such Lots. (c) Lots through , inclusive: Only "wrought-iron" style aluminum fences meeting the design specifications on Schedule 2 attached hereto may be constructed, placed or installed on such Lots. 30 THE TRADITION AT FITCHIE CREEK UNIT 2 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS ELGIN, ILLINOIS THIS DECLARATION is made this day of , 2007, by The Tradition at Fitchie Creek, L.L.C. an Illinois limited liability company, an Illinois corporation (hereinafter referred to as "Declarant"). RECITALS: A. Declarant is the owner of certain real property located in the City of Elgin, County of Kane, State of Illinois, which is more particularly described in Exhibit A attached hereto and incorporated herein by this reference ("Property"). B. The Property' shall be conveyed to third parties, subject to certain protective easements, restrictions, covenants, conditions, reservations, liens and charges as hereinafter set forth in this Declaration. NOW, THEREFORE, Declarant hereby declares that all of the Property described in Exhibit A hereto shall be held, sold and conveyed subject to the following easements, restrictions, covenants, conditions, reservations, liens and charges, which are for the purpose of protecting the value and desirability of the Property, and which shall run with the Property and be binding on and shall inure to the benefit of all parties having any right, title or interest in the described Property or any part thereof, including their heirs, successors and assigns. ARTICLE 1. DEFINITIONS SECTION 1.1. "Additional Land" shall have the meaning ascribed to such term in Section 12.1. SECTION 1.2. "Appearance Control Committee" shall have the meaning ascribed to such term in Article 10 hereof. SECTION 1.3. "Articles of Incorporation" shall mean the Articles of Incorporation for the Association. SECTION 1.4. "Assessments" shall mean collectively the Base Annual Assessments, Special Assessments, and Capital Contributions and any other assessment or charge that the Association is authorized to levy under this Declaration. 1 SECTION 1.5. "Association" shall mean The Tradition at Fitchie Creek Homeowners' Association, an Illinois not-for-profit corporation, its successors and assigns. SECTION 1.6. `Base Annual Assessments"shall have the meaning ascribed to such term in Section 5.2 hereof. SECTION 1.7. "By-Laws" shall mean the By-Laws of the Association, a true and correct copy of which is attached hereto and incorporated herein by this referenced as Exhibit B. SECTION 1.8. "Capital Contributions" shall have the meaning ascribed to such term in Section 5.4 hereof. SECTION 1.9. "Community Facilities" shall mean facilities and amenities constructed by the Declarant on the Common Area for the use and enjoyment of Owners and occupants of residences within the Property and their guests and invitees. Community Facilities shall be deemed to be a part of Common Area. SECTION 1.10. "Common Area" shall mean all real property and all improvements and fixtures thereto and all personal property owned by the Association for the common use and enjoyment of the Owners. Common Area includes, but is not limited to the outlots designated as Common Area on Exhibit A attached hereto. Common Area may also be designated on any Plat of Subdivision of the Property or any amendments or supplements to this Declaration. SECTION 1.11. "Declarant" shall mean and refer to The Tradition at Fitchie Creek, L.L.C. , its successors and assigns, if such successors and assigns should acquire more than one undeveloped Lot from Declarant for the purpose of development. SECTION 1.12. "Dedicated Right-of-Way" shall mean and refer to the public rights-of- way depicted on any Plat of Subdivision. SECTION 1.13. "Lot" shall mean a plot of land upon which a detached single-family residence is constructed or to be constructed. A Lot shall be a subdivision lot created by the recording of a Plat of Subdivision. SECTION 1.14. "Member" shall mean and refer to every person or entity who holds a membership in the Association, including Declarant and any beneficiary of a trust holding legal title to one or more Lots. SECTION 1.15. "Owner" shall mean and refer to the record owner, whether one or more natural persons or entities, of fee simple title to any Lot, which is a part of the Property, but excluding those having such interest merely as security for the performance of an obligation, such as secured lenders. 2 SECTION 1.16. "Plat of Subdivision" shall mean a final plat of subdivision recorded against the Property, or any part thereof, with the Kane County Recorder of Deeds and any amended or additional plat of subdivision or re-subdivision expressly made subject to the terms of this Declaration by appropriate amendment hereto. SECTION 1.17. "Property" shall mean and refer to that certain real property described on Exhibit A, attached hereto and incorporated herein by this reference, and such additions thereto as may hereafter be brought within the jurisdiction of the Association by the written amendment of this Declaration, as provided under Section 12.1. SECTION 1.18. "Special Assessments" shall have the meaning ascribed to such term in Section 5.3 hereof. SECTION 1.19. "City" shall mean the City of Elgin, Illinois. SECTION 1.20. "City Property" shall mean all real property, and all improvements or fixtures thereto, and all real property infrastructure improvements conveyed or dedicated by the Declarant to the City. City Property at the time of recording of this Declaration (i) shall include all storm water pipes, manholes and related storm water infrastructure installed by the Declarant within the Property and dedicated to the City; and (ii) all Dedicated Rights-of-Way. ARTICLE 2. MEMBERSHIP IN THE ASSOCIATION SECTION 2.1. Membership. Every Owner, including Declarant, shall be a Member of the Association, and each Owner, by acceptance of a deed for his Lot, covenants and agrees to be a Member of the Association, whether or not it shall be so expressed in any such deed or other conveyance. Ownership of a Lot shall be the sole qualification for membership, and there shall be only one (1) membership per Lot. SECTION 2.2. Transfer of Membership. Membership held by any Owner of a Lot is an appurtenance to such Lot and shall not be transferred, alienated, or pledged in any way, except upon the sale or encumbrance of such Lot, and then only to the purchaser of such Lot. Any attempt to make such a transfer except by the sale or encumbrance of a Lot is hereby deemed to be null and void. Reference to the transfer of membership need not be made in an instrument of conveyance or encumbrance of such Lot for the transfer to be effective, and the same shall automatically pass with title to the Lot. Members are required to provide the Association written notification upon the transfer, alienation or sale of their Lot to a new Owner. ARTICLE 3. VOTING RIGHTS IN THE ASSOCIATION SECTION 3.1. Membership Classes. The Association shall have two (2) classes of voting membership, as follows: 3 (a) Class A: Class A Members shall be all Owners of Lots with the exception of Declarant. Class A Members shall be entitled to one (1) vote for each Lot in which they hold the interest required by Section 2.1 for membership, except that there shall be only one (1) vote per Lot. (b) Class B: Class B Member shall be Declarant. The Class B Member shall be entitled to three (3) votes for each Lot in which it holds the interest required by Section 2.1 for membership. The Class B membership shall cease and be converted to Class A membership on the happening of any of the following events, whichever occurs earliest: (i) Ten (10) years from the date of this Declaration; (ii) One hundred twenty (120) days after the date by which 75 percent of the Lots have been conveyed by Declarant to Owners. For purposes of this Section 3.1(b)(ii), the foregoing 75 percent threshold shall be determined as follows: (x) if the Declarant has failed to start construction of any dwelling unit on a phase of the Additional Land that has not yet been annexed to the Property within the said 120 day period, then on the basis of only those Lots that have been submitted to this Declaration either as a part of the original Property or as Additional Land or as a phase thereof annexed to the Property, or (y) if Declarant has started construction of a dwelling unit on any Lot in a phase of the Additional Land that has not yet been annexed to the Property within such 120-day period, then on the basis of the combined total of the Lots then comprising the Property and those contained in such phase of the Additional Land that is thereafter annexed to the Property. For purposes hereof, the term "started construction" shall mean the excavation of a building site on one Lot within the boundaries of a phase; or (iii) The date on which Declarant voluntarily withdraws as the Class B Member by executing and recording with the Recorder of Deeds of Kane County, Illinois, a written declaration of intent to withdraw, which shall become effective in the manner specified in such declaration of intent. Anything contained in the Articles of Incorporation or the By-Laws of the Association notwithstanding, so long as Declarant is a Class B Member, it shall have the absolute right to appoint and remove any member of the Board of Directors and/or officers and agents of the Association. SECTION 3.2. Exercise of Voting Rights Among Co-Owners. When more than one (1) person holds an interest in any Lot, all such persons shall be Members and the vote for such Lot shall be exercised as they determine among themselves and advise the Association's Secretary in writing prior to any such vote being taken. Absent such advice, the Lot's vote shall be suspended if more than one (I) person seeks to exercise it. In no event shall more than one (1) vote be cast 4 with respect to any Lot, except in respect of the Class B Member as provided in Section 3.1(b) hereof. ARTICLE 4. DUTIES AND POWERS OF THE ASSOCIATION SECTION 4.1. General. The Association shall have the power and duty to (a) pay any real property taxes and other charges assessed against Common Area; (b) grant easements where necessary for public utilities over Common Area to serve Common Area or Lots; (c) adopt reasonable rules and regulations (including, with limitation, with respect to fees and fines) for (i) controlling and limiting the use of Common Area or any improvements thereto, including, without limitation, with respect to access to the Property via gated entranceways and use and operation of the Community Facilities; and (ii) supplementing the use restrictions contained in Article 9 or any other restrictions or provisions contained in this Declaration; (d) monitor and enforce compliance with the age restrictions contained in Article 8 hereof and adopt reasonable rules and regulations (including fines) with respect thereto; (e) maintain such policy or policies of insurance, including, but not limited, to those described in Article 16, at all times as the Board of Directors deems necessary or desirable in furthering the purposes of and protecting the interests of the Association and its Members, officers and directors; (f) employ a manager or other persons and contract with independent contractors, managing agents, collection agents and others to perform and effectuate all or any part of the duties and powers of the Association, if deemed necessary by the Board of Directors; (g) enforce any easements or restrictions which may be set forth herein; (h) establish such reserves as may be required hereunder or as the Board of Directors shall from time to time deem necessary to fulfill and further the purposes of the Association; and (i) exercise any other right or powers given to the Association under this Declaration or under the Illinois Not-for-Profit Corporation Act. SECTION 4.2. Maintenance of Common Area. The Association shall maintain, repair, and replace, all to the extent deemed by the Board of Directors to be beneficial and convenient, 5 Common Area, together with such other areas, if any, for which the Association has or assumes responsibility pursuant to the terms of this Declaration or any supplement or amendment hereto, which shall include, but need not be limited to, the following: (a) Common Area and its elements, including but not limited to grass, trees, shrubs, plantings, and other landscaping located within Common Area, lighting, and other structures and improvements located within or upon Common Area; (b) detention ponds and swales located on Common Area within the Property, together with any improvements thereto. (c) pathways designed to accommodate bicycle and pedestrian traffic and installed by the Declarant, whether located on Common Area or within public rights-of- way within or abutting the Property, but expressly excluding any such pathways located on City Property; (d) fences installed by the Declarant or by the Association on Common Area. (e) the Community Facilities and all fixtures and all furniture, equipment and other personal property owned or leased by the Association located therein; (f) entryway signs and/or monuments identifying any portion of The Tradition at Fitchie Creek development, whether located on Common Area or within public rights-of-way within or abutting the Property; (g) landscaping located in the islands and/or eyebrows of cul-de-sacs within the development, whether located on Common Area or within public rights-of-way within the Property; and (h) landscaping located within public rights-of-way within or abutting the Property, but expressly excluding maintenance and replacement of any and all trees located within such rights-of-way, which trees shall be maintained by the City. SECTION 4.3. Maintenance of Lots. The Association shall provide grass cutting and maintenance of trees, shrubs, flowers, grass and all other landscaping on Lots installed by the Declarant. The Association shall have no responsibility to (i) maintain any landscaping installed by an Owner and not by the Declarant or (ii) provide watering of grass and other landscaping on the Lots, which shall be furnished by the Owners and/or residents pursuant to rules, regulations and procedures adopted from time to time by the Board of Directors. The Association shall not be required to provide any such maintenance services to a Lot that is totally or partially obstructed with temporary or permanent improvements, personal property or other obstructions that make it difficulty or impractical for the Association, its agents or contractors to furnish such services, and the Owner of any such Lot shall be obligated to provide similar services for the care and maintenance of his Lot at his sole cost and expense. The Association, acting through the Board of Directors, shall provide such maintenance services to the extent it deems beneficial or 6 desirable and may add to or delete from the services set forth in this Section 4.3. SECTION 4.4. Watering. The Association shall have the right, but shall not be required, to water any grass, landscaping and plant materials located on Common Area any Dedicated Rights-of-Way. All other watering on any Lot shall be provided by the Owner thereof. SECTION 4.5. No Maintenance of City Property. City Property shall be owned and maintained by the City. The Association shall have no responsibilities relative to the City Property once the City Property is conveyed to the City by dedication and/or deed, subject to the provisions of this Declaration. SECTION 4.6. Failure of Association to Maintain, Repair or Replace. In the event the Association fails to maintain, repair or replace Common Area and any improvements thereto or any improvements located within public rights-of-way within or abutting the Property that are the responsibility of the Association to maintain, the City may (but shall not be required to) effect such maintenance, repairs or replacements and the City shall be entitled to reimbursement in full from the Lot Owners for its costs, including reasonable attorneys' fees, incurred in connection therewith. ARTICLE 5. COVENANT FOR ASSESSMENTS SECTION 5.1. Creation of the Lien and Personal Obligation of Assessments. Each Owner of any Lot, by acceptance of a deed therefor or possession thereof(whether or not it shall be so expressed in any such deed or other conveyance), is deemed personally and individually to covenant and agree to pay to the Association the Assessments authorized under this Declaration. In addition, Declarant hereby covenants and agrees for each Lot owned by Declarant within the Property to pay to the Association the Assessments authorized under this Declaration, subject to the provisions set forth in Sections 5.8 and 5.9. All such Assessments shall be fixed, established and collected from time to time as provided in this Declaration. The Assessments, together with interest thereon, attorneys' fees and costs of collection thereof as hereinafter provided, shall be a charge on the land and shall be a continuing lien upon the Lot against which each such Assessment is made. Each such Assessment (and deficiency contributions, in the case of Declarant), together with such interest, costs and reasonable attorneys' fees, shall also be the personal obligation of the Owner of such Lot at the time when the assessment falls due. This personal obligation shall pass to each Owner's successors in title accepting a deed to or assignment of beneficial interest in any trust holding title to an Owner's Lot. SECTION 5.2. Base Annual Assessments. The Association is authorized to levy Base Annual Assessments equally against all Lots subject to assessment, which shall be paid by the Owners of all Lots within the Property, to fund common expenses for the general benefit of all Owners. Base Annual Assessments shall be used for the following purposes: (a) maintenance, repair, replacement and improvement of Common Area, and all landscaping or other improvements thereon, including without limitation, 7 detention ponds, private streets, gatehouses and the Community Facilities; (b) maintenance, repair and replacement of any landscaping located within Dedicated Rights-of-Way that are the responsibility of the Association to maintain under the terms of this Declaration; (c) maintenance of Lots, as provided in Section 4.3 hereof; (d) maintenance, repair and replacement of any landscaping located within Dedicated Rights-of-Way that are the responsibility of the City to maintain, to the extent such landscaping is not maintained, repaired or replaced by the City; (e) payment of premiums on insurance maintained by the Association pursuant to this Declaration; (f) to provide funds for the Association to carry on its duties or exercise its rights set forth herein or in its Articles of Incorporation or By-Laws or in the Illinois Not- For-Profit Corporation Act. SECTION 5.3. Special Assessments. The Association is authorized to levy Special Assessments to cover unbudgeted expenses or expenses in excess of those budgeted, for the following purposes: (a) defraying in full or in part the cost of any construction, reconstruction, repair or replacement of any improvement on Common Area or any improvements which are the responsibility of the Association, including the necessary fixtures, personal property or landscaping located on or related to Common Area, and all landscaping or other improvements thereon; and (b) defraying in full or in part the cost of, and providing of funds to the Association, for carrying on any of its duties set forth in this Declaration or in its Articles of Incorporation or By-Laws or the Illinois Not-For-Profit Corporation Act. Any Special Assessments shall have the assent of a majority of the votes of the Members that are subject to such Special Assessment voting in person or by proxy at a meeting duly called for such purpose, at which a quorum is present, written notice of which shall be sent to all such Members not less than five (5) days nor more than 40 days in advance of the meeting, setting forth the purpose of the meeting. Unless the Special Assessment specifies that it shall be applicable to a specified number of years, it shall be applicable only to the year enacted. In the event a Special Assessment is to be levied on less than all of the Lots located within the Property, such Special Assessment may, by the action described herein, be levied against only those Lots which benefit by such Special Assessment, in proportion to their benefit, and not against the other Lots in the Property. SECTION 5.4. Capital Contributions. The Association is authorized to levy Capital 8 Contributions against all Lots as provided herein. At the time of the initial sale of each Lot from Declarant to any Owner, such Owner shall pay to the Association a Capital Contribution, which shall be a sum equal to six (6) monthly payments of the Base Annual Assessment then in effect. The Capital Contributions shall be used by the Association to cover operating expenses and other expenses incurred by the Association pursuant to this Declaration and the By-Laws. The Capital Contributions for any Lot shall be levied only' upon the sale by Declarant to an Owner and shall not be levied on any subsequent sales of the Lot. SECTION 5.5. Basis for and Maximum Amount of Base Annual Assessments. The Base Annual Assessment shall be set from time to time by the Association. (a) The Base Annual Assessment may be increased effective January 1st of each year by the Board of Directors of the Association (at any meeting of the Board of Directors duly convened at least 30 days prior to said January effective date) without a vote of the membership, provided that any such increase shall not be greater than a 10 percent increase over the maximum Assessment permitted for the year immediately preceding for such type of Assessment. (b) The Base Annual Assessment may be increased for any year by the Board of Directors of the Association at any time, over the Base Annual Assessment permitted for the year immediately preceding, without the vote of the membership, if the same is necessary to pay the costs of(i) any increases in real estate taxes for Common Area over the prior year; or (ii) any increases in the maintenance of Common Area or any improvements thereon over the prior year; or (iii) any increases in premiums for insurance procured by the Association over the prior year. (a) The Base Annual Assessment may be increased for the coming assessment year only for all succeeding assessment years effective January 1st of each year by the Board of Directors at any meeting of the Board of Directors (duly convened at least 30 days prior to said January 1St effective date) in an amount greater than provided in subsections (a) or (b) hereof for the coming assessment year, provided that any such change shall have the assent of the majority of the votes of the Members that pays such Assessment voting in person or by proxy, at a meeting duly called for such purpose, at which a quorum is present, written notice of which will be sent to all Members that pay such Assessments not less than five (5) day's nor more than 40 days in advance of the meeting, setting forth the purpose of the meeting. (b) After consideration of future needs and expected expenditures of the Association, the Board of Directors may fix either type of Assessment in lesser amounts than the maximum Assessments permitted or may, in its discretion, require no Assessment of either type whatsoever for any year, but such action shall not limit or prohibit the Board of Directors from fixing such Assessments for any year(s) following on the basis of increases in the maximum Assessments permitted 9 hereunder rather than the assessments so fixed. SECTION 5.6. Reasonable Reserves. The Association shall establish and maintain from Base Annual Assessments collected hereunder, reasonable reserves for the costs of the maintenance, repair and replacement of those items which are the responsibility of the Association. The Association may' establish and maintain such other reasonable reserves as the Board of Directors deems necessary and convenient which are consistent with the powers and duties of the Association. SECTION 5.7. Uniform Rate of Assessment. Base Annual Assessments must be fixed at a uniform rate for all Lots subject thereto. Base Annual Assessments may be collected on a quarterly basis or such other periodic basis as set by the Board of Directors. SECTION 5.8. Assessment for Lots Owned by Declarant Notwithstanding the foregoing provisions, Base Annual Assessments and Special Assessments for any Lots while (i) owned by Declarant and improved with a completed residence, but unoccupied by any tenant of Declarant, or (ii) owned by any party but occupied by Declarant and used as a model or a sale office, shall be limited to 25 percent of the amounts fixed with respect to such type of Lots owned by Owners other than Declarant. Prior to the completion of a residence on any Lot, (which shall mean the issuance of a certificate of occupancy therefor by the City), such Lot shall be exempt from payment of any and all Assessments. SECTION 5.9. Deficiency Contributions. For every calendar year during which Declarant remains a Class B Member of the Association, Declarant shall contribute to the Association all funds in excess of the budgeted and collected Assessments which shall be necessary to defray the costs properly paid or incurred by it for the purposes for which Base Annual Assessments may be collected, all without limitation to the maximum amounts provided under Section 5.5 hereof Declarant's contribution for the calendar year during which Declarant's Class B membership terminates shall be prorated to the date of such termination. For purposes hereof, the establishment of reserves pursuant to Section 5.6 does not constitute the payment or incurring of costs by the Association and Declarant's deficiency contribution shall not be required to be applied to the establishment of reserves. SECTION 5.10. Date of Commencement of Annual Assessments; Due Dates. Base Annual Assessments provided for herein shall commence for any Lot within the Property, or any land annexed to the Property, on the day of the conveyance of the first Lot of such type in the Property and shall be prorated for the month of said conveyance. The Board of Directors shall fix the amount of such Assessments at least 30 days in advance of each annual Assessment period, and in lieu thereof, the amount of each type of such Assessment for the prior year shall be the fixed amount. Written notice of any changed amount of such Assessments shall be sent to every Owner subject thereto, but failure to do so shall not invalidate the changed Assessments. Base Annual Assessments shall he payable in quarterly installment or such other periodic basis set by the Board of Directors. SECTION 5.11. Certificate of Payment. The Association shall, upon demand, furnish to 10 any Owner liable for said Assessments, a certificate in writing signed by an officer of the Association, setting forth whether the Assessments on a specified Lot have been paid and the amount of the delinquency, if any. A reasonable charge may be made by the Board of Directors for the issuance of such certificates. Such certificates shall be conclusive evidence that any Assessment therein stated to have been paid has in fact been paid. No charge shall he made for issuing from time to time said certificates to Declarant on Lots then owned by Declarant. SECTION 5.12. Delinquency in Payment of Assessments. Any Assessment provided for in this Declaration which is not paid when due, shall he delinquent. With respect to each Assessment not paid within 15 days after its due date, the Association may, at its election, require the Owner to pay a "late charge" in a sum to be determined by the Association and applied uniformly. If any such Assessment is not paid within 30 days after the delinquency date, the Assessment shall bear interest from the date of delinquency at the highest rate permitted by Illinois law, and the Association may, at its option, bring an action at law against the Owner personally obligated to pay the same, or foreclose the lien (provided for in Section 5.1 hereof) against the Lot, and there shall be added to the amount of such Assessment the late charge, the costs of preparing and filing a Complaint in such action and reasonable attorneys' fees, and in the event a judgment is obtained, such judgment shall include all Assessments accrued from date of suit to judgment, increased by such late charges, costs and fees, plus interest. Each Owner vests in the Association or its assigns, the right and power to bring all actions at law or lien foreclosures against such Owner for the collection of such delinquent assessments SECTION 5.13. Suspension of Voting Rights Due to Unpaid Assessments. The Association is authorized to suspend the voting rights of an Owner for any' period during which any Assessment against such Owner's Lot remains unpaid and delinquent, and for a period not to exceed 30 days for any single infraction of the published rules and regulations of the Association, provided that any suspension of such voting rights, except for failure to pay Assessments, shall be made only by the Association or a duly appointed committee thereof, after notice and hearing given and held in accordance with the By-Laws or rules and regulations of the Association. The foregoing shall not apply to unfunded deficiency contributions of the Declarant under Section 5.9. SECTION 5.14. Waiver of Use. No Member may exempt himself from personal liability for Assessments duly levied by' the Association nor release the Lot owned by him from the liens and charges hereof, by waiver of the use and enjoyment of Common Area or by abandonment of his Lot. SECTION 5.15. Subordination of the Lien to Mortgages. The lien of the Assessments provided for herein shall be subordinate to the lien of any first mortgage or trust deed. Sale or transfer of any Lot shall not affect the Assessment lien. However, the sale or transfer of any Lot pursuant to the foreclosure of a mortgage or trust deed or any proceeding or deed in lieu thereof shall extinguish the lien of such Assessments as to payments which become due prior to such sale or transfer. No sale or transfer shall relieve such Lot from liability for any Assessments thereafter becoming due or from the lien thereof. 11 ARTICLE 6. PROPERTY RIGHTS SECTION 6.1. Members' Easements over Common Area. Every Member shall have a right and easement for ingress and egress over and across, and for use of and enjoyment in and to, Common Area and the improvements thereon, and such easements shall be appurtenant to and shall pass with the title to every Lot. Reference in the respective deeds of conveyance, or in any mortgage or trust deed or other evidence of obligation, to the easements and covenants herein described shall be sufficient to create and reserve such easements and covenants to the respective grantees, mortgagees or trustees of said parcels as fully and completely as though said easements and covenants were fully recited and set forth in their entirety in such documents. Said right of easement for ingress and egress over and across, and of enjoyment in and to, Common Area and improvements located thereon shall be subject to the following provisions: (a) The right of the Association, in accordance with its Articles of incorporation and By-Laws, to borrow money for the purposes of improving or reconstructing Common Area and improvements thereto and in aid thereof to mortgage said Common Area (or a portion thereof). (b) The right of the Association to declare or grant easements and licenses and to dedicate or transfer all or any part of Common Area to any public agency, authority, or public or private utility for such purposes and subject to such conditions as may be agreed to by the Members. No such dedication or transfer shall be effective unless an instrument has been recorded, signed by the Association and authorized by the assent of at least 67 percent or more of the votes of each class of Members present in person or by proxy and entitled to vote at a meeting duly called for such purpose at which a quorum is present, written notice of which is mailed to all Members not less than five (5) days nor more than 40 days in advance of the meeting, setting forth the purposes of the meeting. (c) The right of the Association to establish uniform rules and regulations (including fines) pertaining to the use of Common Area; provided, however, that the Association shall not limit or prohibit the public use of pathways located within the Property. (d) The right of the Association to suspend an Owner's right to use any improvements located within Common Area, including without limitation the Community Facilities (i) for any period during which any charge against such Owner's Lot remains delinquent; and (ii) for a period not to exceed 30 days for a single violation or for a longer period in the case of any continuing violation, of this Declaration or the rules and regulations of the Association after written notice thereof (e) The right of Declarant and its designees (and their respective sales agents and representatives) to (1) non-exclusive use of Common Area (as may be amended by 12 annexation from time to time) in connection with the sale of residential units within the Property (including any of the Additional Land annexed thereto); and (2) the use of any improved residence on any of the Lots as a sales office until the last Lot within the Property is improved with a residence and conveyed to a third party purchaser. (f) Such other rights as are reserved or created by this Declaration. SECTION 6.2. Delegation of Use. Any Member may delegate in accordance with the By-Laws of the Association, such Member's right of enjoyment to Common Area and the improvements located thereon to the members of his family, and the occupants residing on such Member's Lot. SECTION 6.3. Association's Access to Lots. The Association and its respective agents, employees and independent contractors shall have the right and license to enter upon any Lot to the extent necessary to exercise any right or responsibility of the Association as set forth in this Declaration, as to the Lot or the dwelling unit or other improvements situated thereon, or to the extent necessary to enforce any covenants or restrictions set forth herein and shall not be guilty of trespass. SECTION 6.4. Title to Common Area. Declarant covenants for itself, its successors and assigns, that it will convey or cause to be conveyed fee simple title to Common Area to the Association within 30 days after the date of this Declaration, subject to: (a) Covenants, conditions and restrictions then of record; (b) The terms of this Declaration; (c) Zoning ordinances, development agreements and annexation agreements of record; (d) Current real estate taxes, not yet due and payable (for which Declarant shall pay or make arrangements to pay its pro rata share); (e) Utility easements granted or to be granted for sewer, water, gas, electricity, telephone, cable television and any other necessary utilities; (f) Reservation of easement for ingress and egress; and (g) Easements granted or to be granted for the construction, maintenance, repair and use of improvements to be located on Common Area. When lands annexed from time to time, pursuant to Article 11 of this Declaration, contain land to be designated as Common Area, said Common Area shall similarly be conveyed 13 by Declarant or the legal title holder thereof to the Association prior to the conveyance by Declarant or such legal title holder to an Owner of the first Lot in the lands then annexed. ARTICLE 7. EASEMENTS SECTION 7.1. Utility Easements. Declarant hereby reserves unto itself, its successors, assigns and designees, the right (i) to create, declare and grant over, above, under and across Common Area or the Lots, at any time before or after conveyance, non-exclusive perpetual utility easements and (ii) to utilize any easement created by any Plat of Subdivision or other instruments, for the installation, construction, improvement or removal or reconstruction, replacement, substitution, and maintenance of sewer (storm and sanitary), water, gas, electricity, cable television, telephone and any other utilities as may be necessary in Declarant's sole judgment to develop, service and maintain the Property. The aforesaid easements shall include reasonable rights of ingress and egress. Furthermore, Declarant hereby declares and reserves for the benefit of all Owners, the Association, and the various public utility companies a non- exclusive public utility easement over, above and under Common Area, and those portions of Lots on which no homes are constructed, for the installation, construction, improvement, removal, reconstruction, replacement and substitution of underground service lines, wires, cables, conduits, terminals, manholes and other fixtures as the beneficiaries of the easement may from time to time require for any sewer (storm and sanitary), water, gas, electricity, cable television, telephone and other utilities which may serve the homes constructed on the Property, or other adjacent properties. It shall be the obligation of any party exercising the easement to restore any areas disturbed by the exercise of the easement in the manner and to the extent set forth in the provisions contained in the Plats of Subdivision for the Property relating to the exercise of easements. SECTION 7.2. Ownership of Utility Lines. Declarant shall initially own all storm sewers, sanitary sewers, and water lines when situated in, over, under, along or across Common Area or easement areas designated for the installation and maintenance of such lines to the extent the same are not initially dedicated to the City, Kane County, any public utility or any governmental or quasi-governmental authority, and Declarant shall have the right (but not the obligation) of maintenance, replacement, repair or removal thereof and reasonable access thereto. Declarant may transfer title to said storm sewers, sanitary sewers and water lines and Declarant's rights of maintenance, replacement, repair and removal thereof to any assignee deemed beneficial or appropriate by Declarant (including the Association, the City, Kane County, any public utility, or any governmental or quasi-governmental authority), which transfer and assignment shall be effectuated by a bill of sale or other appropriate writing. In the absence of such a transfer prior to the completion of the sale of all of the Lots by Declarant to Owners purchasing the same, the transfer shall be deemed to have been made to the Association upon the closing of the sale of the last Lot to an Owner, without further action or documentation. SECTION 7.3. Reservation of Easements for Declarant's Benefit. Anything contained in this Declaration to the contrary notwithstanding, Declarant hereby reserves for itself, its agents, employees, contractors, sub-contractors, workmen, materialmen, invitees and any successor 14 builders an easement under, over and across Common Area for the purposes of constructing, completing, repairing, maintaining, inspecting, exhibiting and selling any Lots or dwelling units then owned by Declarant or any such successor builders. SECTION 7.4. Easements for Installation, Maintenance and Repair of Common Area. Declarant hereby reserves unto itself, its successors, assigns, and designees, and to the Association, the right and easement to come onto the Lots or Common Area for purposes of building, installing, maintaining, repairing, replacing and improving Common Area and any improvement located thereon or within public right-of-ways within or abutting the Property. SECTION 7.5. Easement for Maintenance of Landscaping on Lots . Declarant hereby reserves unto itself, the Association and their respective successors, assigns and designees an easement over each Lot within the Property for the provision of maintenance care services as provided under Section 4.3 hereof. The aforesaid easement shall include reasonable rights for ingress and egress and shall be perpetual. SECTION 7.6. Easement for Access to City Property. Declarant hereby declares and reserves for the benefit of the City, its officers, employees, agents and contractors, an easement and right of ingress and egress, over, upon and across any and all portions of Common Area within the Property to the extent reasonably necessary for access to the City Property or any portion thereof for purposes of inspecting, maintaining, repairing and replacing all or any portion of the City Property. SECTION 7.7. Easement Over Pathways. Declarant hereby declares and reserves for the benefit of all Owners and their guests and invitees an easement and right of ingress and egress, over, upon and across any pathways located on any portion of Common Area within the Property. The Association shall have the right to adopt reasonable rules and regulations governing and limiting the right and easement granted hereunder, subject to approval by the City. There is also declared and reserved for the benefit of the public an easement and right of ingress and egress over, upon and across such portions of any pathways located on any portion of Common Area as are to be usable by the public and maintained by the City, as designated on the Plat of Subdivision. Motor vehicles are prohibited on such pathways without prior written approval of Declarant or the Association. SECTION 7.8. Rights to Reserve or Grant Specific Easements for Lots and Common Area. Declarant shall have the right to grant or reserve particular specific non-exclusive easements on any portion of any Lot (except portions occupied by dwellings) or on Common Area for the installation, maintenance and repair of improvements to the Lots or Common Area by Declarant, its successors, assigns or designees or by the Association. Such easements may be created over Lots after such Lots are conveyed to Owners only if(i) such areas are designated as such by a Plat of Subdivision, a deed, a declaration of easement or a grant of easement executed and recorded by Declarant with the Recorder of Deeds of Kane County, Illinois, (ii) construction of such improvement has commenced prior to conveyance of such Lot or Common Area, or (iii) such easement is necessary to correct errors in engineering plans. Such easements may be created over Common Area at any time, even after it has been conveyed to the Association. 15 Failure to so grant or reserve any particular specific casement as provided herein shall not invalidate or adversely affect the easements reserved under Section 7.4. SECTION 7.9. Power Coupled with an Interest. In furtherance of Declarant's rights to create easements pursuant to Section 7.8 above, a power coupled with an interest is hereby reserved to Declarant, as attorney-in-fact of the Association and of the Owners of all Lots within the Property, to grant or reserve such easements, and the giving of any deed, mortgage, or other instrument with respect to Common Area or any Lot, and acceptance thereof, shall be deemed a grant and acknowledgment of and a consent to such power of said attorney-in-fact. ARTICLE 8. AGE RESTRICTIONS SECTION 8.1. General. The Lots within the Property are intended for the housing of persons 55 years of age or older under the Fair Housing Amendments Act of 1988 and the Illinois Fair Housing Act (collectively, the "Fair Housing Acts"). Except as provided in Section 8.2 below, at least one (1) occupant of each occupied residence on a Lot must be 55 years of age or older, and no person under 18 years of age shall occupy or reside in a residence on a Lot. The provisions of this Article are intended to be consistent with, and are set forth in order to comply with, the Fair Housing Acts regarding discrimination based on familial status. Declarant, so long as it is a Class B Member, or thereafter the Association, acting through its Board of Directors, shall have the power to amend this Article, without the consent of the Members, for the purpose of making this Article consistent with the Fair Housing Acts, as it may be amended, the regulations adopted pursuant thereto, and any judicial decisions arising thereunder or otherwise relating thereto, in order to maintain the intent and enforceability of this Article. SECTION 8.2. Restrictions on Occupancy. (a) Except as may otherwise be permitted pursuant to Section 8.2(d), each occupied Lot shall at all times have as a permanent occupant at least one person who is 55 years of age or older (the "Qualifying Occupant"), except that in the event of the death of a person who was the sole Qualifying Occupant of a Lot, the spouse of such Qualifying Occupant may continue to occupy the Lot provided that the provisions of the Fair Housing Acts, the regulations adopted thereunder, and the terms and conditions of this Declaration are not violated by such occupancy. For purposes of this Section 8.2, an occupant shall not be considered a "permanent occupant" unless such occupant considers the Lot to be his or her legal residence and actually resides in the dwelling on the Lot for at least six (6) months during every calendar year or such shorter period as the dwelling is actually occupied by any person. (b) No Lot shall be occupied by any person under the age of 18. For purposes of this Section 8.2, a Lot shall be deemed to be "occupied" by any person who stays overnight in the dwelling on the Lot more than 21 days in any 60-day period or more than 30 days in any 12-month period. 16 (c) Nothing in this Article 8 is intended to restrict the ownership of or transfer of title to any Lot; however, no Owner may occupy the Lot unless the requirements of this Article 8 are met, nor shall any Owner permit occupancy of the Lot in violation of this Article 8. Owners shall be responsible for (i) including a statement that the Lots within the Property are intended for the housing of persons 55 years of age or older, as set forth in Section 8.1 above, in conspicuous type in any lease or other occupancy agreement or contract of sale relating to such Owner's Lot, which agreements or contracts shall be in writing and signed by the tenant or purchaser, and (ii) clearly disclosing such intent to any prospective tenant, purchaser, or other potential occupant of the Lot. Every lease of a Lot shall provide that failure to comply with the requirements and restrictions of this Article 8 shall constitute a default under the lease. (d) Any Owner, in writing, may request that the Board of Directors make an exception to the requirements of this Section 8.2 with respect to his or her Lot. The Board of Directors may, but shall not be obligated to, grant exceptions in its sole discretion, provided that the requirements for exemption from the Act would still be met. SECTION 8.3. Change in Occupancy Notification. In the event of any change in occupancy of any Lot as a result of a transfer of title, a lease or sublease, a birth or death, change in marital status, vacancy, change in location of permanent residence, or otherwise, the Owner of the Lot shall immediately notify the Board of Directors in writing and provide to the Board of Directors the names and ages of all current occupants of the Lot and such other information as the Board of Directors may reasonably require to verify the age of each occupant. In the event that an Owner fails to notify the Board of Directors and provide all required information within 10 days after a change in occupancy occurs, the Association shall be authorized to levy monetary fines against the Owner and the Lot for each day after the change in occupancy occurs until the Association receives the required notice and information, regardless of whether the occupants continue to meet the requirements of this Article 8, in addition to all other remedies available to the Association under this Declaration and Illinois law. SECTION 8.4. Monitoring, Compliance, Appointment of Attorney-in-Fact. (a) The Association shall maintain age records on all occupants of Lots. The Board of Directors shall adopt and publish policies, procedures, and rules to monitor and maintain compliance with this Article 8, including policies regarding visitors, updating of age records, the granting of exemptions pursuant to Section 8.2(d), and enforcement. The Association shall periodically distribute such policies, procedures, and rules to Owners and make copies available to Owners, their tenants, and Mortgagees upon reasonable request. (b) The Association shall have the power and authority to enforce this Article 8 in any legal manner available, as the Board of Directors deems appropriate, including, without limitation, conducting a census of the occupants of the Lots, requiring copies of birth certificates, or other proof of age for each occupant of the Lot to be 17 provided to the Board of Directors on a periodic basis, and taking action to evict the occupants of any Lot which is not in compliance with the requirements and restrictions of this Article 8. EACH OWNER HEREBY APPOINTS THE ASSOCIATION AS ITS ATTORNEY-IN-FACT FOR THE PURPOSE OF TAKING LEGAL ACTION TO DISPOSSESS, EVICT, OR OTHERWISE REMOVE THE OCCUPANTS OF HIS OR HER UNIT AS NECESSARY TO ENFORCE COMPLIANCE WITH THIS ARTICLE 8. Each Owner shall fully and truthfully respond to any and all requests by the Association for information regarding the occupancy of his or her Lot that, in the judgment of the Board of Directors, are reasonably necessary to monitor compliance with this Article 8. The City shall also have the same power and authority (but not the obligation) to enforce this Article 8. (c) Each Owner shall be responsible for ensuring compliance of its Lot with the requirements and restrictions of this Article and the rules of the Association adopted hereunder by itself and by its tenants and other occupants of its Lot. EACH OWNER, BY ACCEPTANCE OF TITLE TO A LOT, AGREES TO INDEMNIFY, DEFEND, AND HOLD THE ASSOCIATION AND/OR THE CITY HARMLESS FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, AND CAUSES OF ACTION THAT MAY ARISE FROM FAILURE OF SUCH OWNER'S LOT TO SO COMPLY. (d) Notwithstanding anything to the contrary in this Declaration, any proposed amendments or revisions to this Article 8 shall require the prior written approval of the City Council of the City of Elgin. Additionally, notwithstanding anything to the contrary in this Declaration, the City shall have the power and authority (but not the obligation) to enforce this Article. ARTICLE 9. USE RESTRICTIONS SECTION 9.1. Residential Use. The Property is hereby restricted to residential dwellings, and ancillary and accessory uses and buildings in connection therewith, subject to the provisions of Section 9.2 and except for model homes and sales offices which may be operated by Declarant or its designees during the construction or sales period. All buildings or structures erected on the Property shall be of new construction and no buildings or structures shall be moved from other locations to the Property and no subsequent buildings or structures other than single-family detached homes shall be built on any Lot. No building or structure of a temporary character, trailer, tent, shack, garage, barn, or other outbuilding shall be placed on or used on any Lot at any time as a residence either temporarily or permanently. SECTION 9.2. Restrictions on Commercial Activities. No commercial activities of any kind shall be conducted in any building or in any portion of the Property; provided, however, that an Owner may operate a home-based business on his Lot, but only if (i) the existence or operation of the commercial activity is not apparent or detectable by sight, sound, or smell from 18 outside the Owner's residence located on the Lot, (ii) the commercial activity is not prohibited by the ordinances or regulations of the City and is conducted in compliance with the City's zoning ordinances, (iii) no motor vehicle with business markings is stored or parked on the Lot, except within the garages, with the garage door shut during periods of storage, and (iv) the commercial activity does not, in the Board's reasonable judgment, generate a level of vehicular or pedestrian traffic or a number of vehicles being parked in the Property which is noticeably greater than that which is typical of residences within the Property in which no such activity is being conducted. The foregoing restrictions shall not apply to the commercial activities of Declarant or its designees, or the use or operation of sales offices or model units on any Lots by Declarant or its designees during the construction and sales period or by the Association in furtherance of its powers and purposes set forth hereinafter and in its Articles of Incorporation, By-Laws and Rules and Regulations, as the same may be amended from time to time. SECTION 9.3. Prohibition of Commercial Vehicles, Buses, Trucks, Limousines, Boats, Trailers and Recreational Vehicles on Lots. No commercial vehicles, buses, trucks (except pickup trucks that are used as a principal personal vehicle by the Owner), limousines, boats, trailers, or recreational vehicles shall be parked or stored on the Lots, except for those which are stored within a garage constructed on a Lot, with the garage door shut during periods of storage. SECTION 9.4. Garages; Storage of Cars. The Owner of any Lot shall keep the garage door of his residence shut at all times when it is not in use. No Owner shall park or store vehicles on public streets or on driveways within his Lot if there is capacity for storage of such vehicles in the garage on his Lot. No Owner shall utilize the space within his garage for purposes which adversely affect or limit the storage of vehicles therein to meet the designed capacity of such garage. SECTION 9.5. Animals. No animals, livestock, or poultry of any kind shall be raised, bred, or kept on any Lot except for dogs, cats and other common animals kept as household pets, but not for breeding purposes. The owner of any pet shall immediately remove any bodily waste deposited by its pet on any Lot, Common Area, parkways, cul-de-sac islands or dedicated streets. SECTION 9.6. Limitations on Signs. No "for sale" or"for rent" or brokers signs shall be erected, placed, or permitted in the yard of any Lot, and any such sign as may be located other than in the yard shall not be more than five (5) square feet. No advertising signs, billboards, or objects of unsightly appearance or nuisances shall be erected, placed or permitted to remain on any portion of any Lot. The foregoing restrictions shall not apply to the signs and billboards, if any, of Declarant or its designees. SECTION 9.7. Prohibition of Nuisances. No Lot shall be used in any way or for any purpose, which may endanger the health or unreasonably disturb the residents of the Property. SECTION 9.8. Prohibition of Clotheslines, Storage Sheds, Doghouses or Dog Runs. There shall be no clotheslines, service sheds, storage sheds, doghouses or dog runs (including so- called"invisible" dog runs) constructed or placed on any Lot within the Property. 19 SECTION 9.9. Limitations on Fences. The Property shall be subject to restrictions with respect to fences as set forth on Exhibit C attached hereto. SECTION 9.10. Prohibition of Above Ground Swimming Pools. No above ground swimming pools shall be installed on any Lot within the Property. SECTION 9.11. Prohibition of Window Air Conditioners or Window Fans. No window air conditioners or window fans shall be placed in any home constructed on the Property. SECTION 9.12. Trash Removal. All rubbish, trash and garbage shall be regularly removed from the Property and shall not be allowed to accumulate thereon. Each Owner shall be responsible for trash removal from his Lot. There shall be no trash piles or storage piles on the Property. The foregoing restrictions on trash piles and storage piles shall not apply to the activities of Declarant, its designees and those working for or on behalf of Declarant during the construction and sales period. Al] rubbish, trash and garbage shall be stored within the garage on the rear of the Lot in trash cans with sealed lids. SECTION 9.13. Restrictions on Changes or Improvements; Prohibition of Changes of Exterior Colors. (a) No awnings shall be constructed or added to any home. Any other additions, changes or improvements to any home surfaces or any part thereof (including roofs, siding, doors, storm doors, windows or trim), the placement of any patios or decks on the Lot by any Owner other than Declarant or the planting of any trees, decorative shrubs or other permanent (as opposed to annual) landscaping or plant materials will be allowed only with the approval of the Appearance Control Committee, as provided under Article 10. The Committee shall have discretion to approve placement of decks that encroach upon rear yard setbacks as designated on any Plat of Subdivision. All improvements which require a permit from the City will only be approved subject to the issuance of such permit. (b) No changes shall be made to the exterior colors provided by Declarant on the initial construction of any home. Any repainting or re-staining of any building or any part thereof on a Lot or the replacement of any building or any part thereof on a Lot shall be with the same colors as were provided by Declarant on initial construction. SECTION 9.14. Restrictions on Radio and TV Receiver Installations. The Board of Directors shall have discretion, to be exercised through the adoption of an appropriate rule or rules, to specify, limit or prohibit the type, size, color, number and/or placement of radio, television and other telecommunications receiver installations on any Lot within the Property and to enact regulations regarding such installations, all to the extent the Board of Directors deems beneficial and convenient; provided, however, that any such rule or rules adopted by the Board of Directors shall (i) be enforced against Owners in a non-discriminatory manner and (ii) comply with the terms and conditions of applicable federal, state or local laws, ordinances, rules or 20 regulations, as same may be amended from time to time. Notwithstanding the foregoing, no such installations by any Owner shall be permitted upon any portion of Common Area without the prior written consent of the Association, which may be withheld in its discretion (to be exercised in accordance with applicable law as aforesaid). SECTION 9.15. Prohibition of Derricks, etc. No derrick or other structure designed for use in boring, mining, or quarrying for oil or natural gas, precious minerals, shall be erected, maintained or permitted upon any Lot in the Property, provided that nothing in this Declaration shall be construed to restrict a public utility from erecting, maintaining, and operating upon any Lot owned by it within the Property, a well, housing, and equipment for the purpose of extracting from the sub-surface and/or the treatment, storage and distribution of water through the system of such public utility. SECTION 9.16. Clearance of Utilities. The Owner of a Lot, and not the Association, shall be responsible for the clearance and relocation of any utilities that must be made in connection with the installation of any improvements by the Owner on his Lot. SECTION 9.17. Maintenance of Easement Areas. Easements for installation and maintenance of the utilities, sewer pipelines and facilities and drainage facilities over each of the Lots, and in Common Area, are reserved as shown on the recorded Plat of Subdivision or as created in accordance with this Declaration or any amendments hereof. Within these easements, no structure, planting or other materials shall be placed or permitted to remain which may damage or interfere with the installation and maintenance of utilities or which may change the direction in the flow of drainage channels in the easements, or which may obstruct or retard the flow of water through drainage channels in the easements. Sump pumps, gravity drains and other drains serving the residence constructed on any Lot shall not outfall or empty into grass swales between Lots, but only into a storm sewer, a storm water service line or an underground drain pipe connecting to a storm sewer included in the storm drainage system for the Property; provided, however, that sump pumps, gravity drains and other drains serving Lots which are adjacent to a detention pond located with Common Area may outfall and empty through underground drain pipes directly into said adjacent detention pond at a level not higher than the normal pool elevation of such detention pond. All such easement areas located on a Lot and all improvements in it shall be maintained continuously by the Owner of the Lot, except for those improvements for which a public authority, a private or public utility company or the Association is responsible. SECTION 9.18. Leases of Lots. Any Owner may lease his Lot, but no lease maybe for a period of less than 30 days. All leases must be made expressly subject to the terms of this Declaration. In the event any Owner leases his Lot, he shall at all times keep the Association advised in writing of the address of his own current residence and any changes thereto, and of the name(s) of his tenant(s). Notwithstanding the foregoing, Declarant and its successors and assigns shall have the right to rent any or all units located on Lots owned by Declarant. SECTION 9.19. Limitation on Number of Lots Owned by One Owner. No Owner may own more than three (3) Lots within the Property at any one time, except that this limitation shall 21 not apply to Declarant or to a mortgagee who has foreclosed on a mortgage or who has accepted a deed in lieu of foreclosure with respect to Lots. SECTION 9.20. Right of Abatement, Correction or Removal. In addition to other rights and remedies that may be available to the Association, as provided in this Declaration, or as may otherwise be available to the Association, in the event any Owner shall violate or suffer on his Lot the violation of any of the Use Restrictions contained in this Article 9 or any rules or regulations adopted by the Association to supplement the Use Restrictions, as provided in Section 9.1, the authorized agents of the Association, upon an affirmative vote taken by the Board of Directors, may enter upon the Lot with no further notice than that provided by the recording of this Declaration, and may (but shall not be required to) abate, correct or remove such violation and the cost of such abatement, correction or removal shall be paid by the Owner, and if unpaid, shall constitute a lien against the Lot, enforceable in the manner provided in Sections 5.12 and 5.13 hereof. In such event, neither the Association, its Board of Directors, or the authorized agents of the Association shall be guilty of trespass or held liable for damages. ARTICLE 10. APPEARANCE CONTROL COMMITTEE SECTION 10.1. Creation of Appearance Control Committee. There is hereby created an Appearance Control Committee (the "Committee"), which shall consist of three (3) members designated and replaced from time to time by Declarant or by the Board of Directors as provided in this Section 10.1. Declarant is hereby authorized to designate and replace members of the Committee until such time as the last Lot of the Property is developed with a home and is sold to a third party purchaser, and said power and duty of Declarant to designate and replace members of the Committee shall cease at the time the last Lot of the Property is developed with a home and is sold to a third party purchaser. Thereafter, such powers and duties shall be vested in the Board of Directors of the Association or in a committee duly appointed by such Board of Directors. No member of the Committee, nor its designated representative, shall be entitled to any compensation for such services performed pursuant to this covenant. SECTION 10.2. Review and Approval of Plans. No (i) structure, improvement or addition (including, but not limited to, decks, patios, in-ground pools, and storm doors) or (ii) permanent (as opposed to annual) landscaping or plant materials (including vegetable gardens), shall be erected, placed or altered on any Lot within the Property (except as are installed or approved by Declarant in connection with the initial construction of the dwelling and other improvements on the Lot) until the building plans, specifications and plot plan showing the location and proposed erection, placement or alteration of any such structure, improvement or addition or a plan or description of any permanent landscaping or plant materials has been approved in writing by the Committee as to conformity of external design and harmony with existing structures or landscaping on the Property and as to location with respect to topography and finished ground elevation. The Committee may also take into account whether and to what extent any such structure, improvement or addition or any permanent landscaping of plant material proposed to be installed on a Lot will interfere with the delivery of maintenance services under Section 4.3 hereof. The Committee shall notify an applicant of such approval or 22 disapproval of its action within 30 days after said building plans and specifications, plot plan or landscaping plan, description have been submitted to the Committee; or, in the event the Committee does not disapprove of the building plans, specifications and plot plan as submitted, within said 30 day period, and (i) no suit to enjoin the erection, placement or alteration of such structure, or other improvement or addition or such permanent landscaping or plant materials, or to require the removal thereof has been commenced prior to the completion thereof or (ii) no removal thereof has been undertaken by the authorized agents of the Association, as provided for herein, such approval will not be required, and this covenant shall be deemed to have been fully complied with. SECTION 10.3. Conformance to Annexation Agreement. All residential structured to be constructed on the Property shall be designed, constructed and maintained in conformance with the requirements of the planned unit development ordinances for the Property and with the building elevations incorporated into the Third Amendment to the Annexation Agreement for the Property. Additionally, notwithstanding anything to the contrary in the Declaration, such provisions regarding the design, construction and maintenance of residential structures on the Property shall also be enforceable by the City of Elgin. SECTION 10.4. Enforcement. In the event any such structure, improvement, or addition or permanent landscaping or plant materials are erected, placed or altered on any Lot in violation of the provisions of this Article 10, the authorized agents of the Association, upon an affirmative vote taken by the Board of Directors, may enter onto such Lot with no further notice than that provided by the recording of this Declaration and may (but shall not be required to) remove the same and the costs of removal shall be paid by the Owner, and if unpaid, shall constitute a lien against the Lot as provided in Section 5.1 and shall give rise to the remedies available to the Association provided in Sections 5.12 and 5.13. In such event, neither the Association, its Board of Directors, or the authorized agents of the Association shall be guilty of trespass or held liable for damages. In the event suit is filed or in the event the Association takes other actions to enforce this Declaration with respect to such structure, improvement, addition or landscaping, including removal thereof by the authorized agents of the Association, the Owner shall be responsible for attorneys' fees and costs incurred by the Association, as provided in Section 17.1 hereof. The City shall also have the power and authority (but not the obligation) to enforce this Article 10. ARTICLE 11. OWNER'S OBLIGATION TO MAINTAIN SECTION 11.1. Covenant to Maintain. Each Owner, his heirs, successors and assigns, hereby covenants and agrees at all times to maintain his Lot, and the residence constructed thereon, in a neat and proper condition and to perform all necessary repairs thereto, to the extent not provided for by the Association pursuant to this Declaration. The foregoing shall include the duty of each Owner to water the landscaping on such Owner's Lot, as provided in Section 4.4. The Owner of each Lot shall be solely responsible for all repair and replacement of lawn, plants, shrubs and other landscaping, which were damaged or died due to the failure of the Owner to adequately water his Lot. 23 SECTION 11.2. Enforcement of Owner's Maintenance Obligations. If any Owner fails to perform his obligations hereunder, the Association may, but shall not be required to, perform such obligations (including repair and replacement of landscaping and plant materials), and shall not thereby be deemed guilty of trespass. The Association shall be entitled to reimbursement in full from the Owner for its costs of every kind incurred in connection therewith, arid any such expenditures incurred by the Association shall become the personal obligation of the Owner and a continuing lien on the Lot, recoverable with interest, costs and reasonable attorneys' fees in the same manner and to the same extent as provided under Section 5.1 and shall give rise to the remedies available to the Association provided in Sections 5.12 and 5.13. ARTICLE 12. ANNEXATION OF ADDITIONAL LAND SECTION 12.1. Annexation by Declarant. Declarant may, without the consent or approval of the Association, any Members or any Owners, annex to the Property all or part of the real estate contiguous the Property (collectively, the "Additional Land") from time to time, by a written instrument signed by Declarant and recorded with the Office of the Recorder of Kane County, Illinois. Should Declarant develop land within the Additional Land within 10 years after the date of this Declaration, such portion of the Additional Land may be annexed to the Property and made subject to this Declaration without the assent of the Class A Members. Such Additional Land, or portions thereof, may be annexed in separate phases and shall be considered annexed to said Property and subjected to the provisions of this Declaration if within such 10- year period Declarant executes and records an amendment or supplement to this Declaration with the Office of the Recorder of Kane County, Illinois, describing the portion to be annexed to said Property and legally and specifically making said Additional Land, or portion thereof, subject to this Declaration. Any such Amendment or Supplementary Declaration shall designate Lots and/or Common Area and shall also update Exhibit A hereto, if necessary. In improving or causing the improvement of any additional phases(s), Declarant shall keep the Property, subject to this Declaration, free of any liens or claims for liens for labor or materials provided in such improvements, pursuant to the Illinois mechanics' lien laws. SECTION 12.2. Annexation by the Members. Annexation of any additional real estate to the Property other than property within the Additional Land, shall require the recording with the Office of the Recorder of Kane County, Illinois of an instrument signed by the Association with the assent of not less than 67 percent of the votes of Members present in person or by written proxy at a meeting duly called for this purpose, at which a quorum is present, written notice of which shall be sent to all Members not less than five (5) days and not more than 40 days in advance of the meeting setting forth the purpose of the meeting. SECTION 12.3. Annexation Limited to Lots, Common Area, Open Space and City Property. No real estate may be annexed to the Property other than real estate that will fall within the definition of"Lots" or"Common Area," as set forth in Article 1 hereof. 24 ARTICLE 13. AVAILABILITY OF RECORDS Any Owner or first mortgagee of any Lot shall be entitled, upon reasonable request, to receive for inspection from the Association current copies of the Declaration, Articles of Incorporation, By-Laws, records and financial statements of the Association. Furthermore, any holder of a mortgage given on any Lot within the Property and any phases annexed thereto, shall be entitled to receive from the Association, without cost, a copy of the Association's financial statement, if any, and if any mortgagee shall so request in writing prior to the preparation of the annual financial statement of the Association, such financial statement shall be audited. ARTICLE 14. RIGHTS OF FIRST MORTGAGEES Upon written request, any first mortgagee of a Lot shall he entitled to and shall receive from the Association notices of any of the following as shall be requested: (a) Any condemnation loss or casualty loss which affects a material portion of the Property and any phases annexed thereto or the Lot on which its mortgage is held; (b) Delinquency of assessments, which remain uncured for a period of 60 days or more; (c) Any lapse, cancellation, or modification of any insurance policy or fidelity bond maintained by the Association; (d) Any restoration or repair of the Property and any phases annexed thereto after partial condemnation or damage; and (e) Any termination of the legal status of the Property and any phases annexed thereto. Any termination of legal status as provided in Subsection (e) above, shall require the consent of the holders of the mortgages on at least 51 percent of the Lots contained in the Property and any phases annexed thereto at the time thereof. ARTICLE 15. MUNICIPAL ORDINANCES PREVAIL None of the covenants, conditions, restrictions or provisions of this Declaration are intended to supersede or prevail over the ordinances of general applicability of the City, and in the event of any conflict, the applicable ordinances of the City shall supersede and prevail over the covenants, conditions, restrictions and provisions of this Declaration. However, no ordinance of the City controlling or regulating any act that is expressly limited, controlled or prohibited by 25 the covenants of this Declaration shall operate to authorize or permit such act. The Association shall comply with all City ordinances and shall seek all necessary approvals and permits from the City and other applicable governmental entities for activities it undertakes within Common Area and Lots. ARTICLE 16. INSURANCE SECTION 16.1. Casualty Insurance for Single Family Homes. Each Owner shall maintain at his own cost and expense such insurance coverage as he may desire with respect to (i) personal liability for acts and occurrences upon his Lot and within his dwelling unit, (ii) physical damage losses for personal property and the contents of his dwelling unit, (iii) physical damage losses for any improvements, additions or betterments installed either by a person or entity, (iv) physical damage loss for any improvements on a Lot, and (v) any special flood hazard insurance as may be required by the first mortgagee of any Lot. The Association shall have no responsibility to maintain such insurance. SECTION 16.2. Casualty Insurance for Common Area. The Association shall obtain and maintain a policy or policies of insurance with respect to the damage or destruction of Common Area, any improvements located thereon and to any other tangible assets of the Association, including coverage against damage or destruction by the perils of fire, lightning and those perils contained in an all risk form, and such other perils as the Board of Directors of the Association from time to time may determine should be included in such coverage, in an amount equal to 100 percent of the insurable replacement cost thereof, without depreciation and with an agreed amount provision. Such insurance shall name as the insured, and the proceeds thereof shall be payable to the Association, as trustee. The proceeds of such insurance shall be made available, as the Board of Directors of the Association shall reasonably determine, for the repair, reconstruction, and restoration of such portions of Common Area and other insured items subject to the rights of the first mortgagees. To the extent feasible, all such policies of insurance shall (i) provide that the insurance shall not be invalidated by the act or neglect of Declarant, the Association, its Board of Directors, its officers, any Owner or occupant, or any agent, employee, guest or invitee of any of them, and (ii) shall contain an endorsement that such policies shall not be canceled without at least 30 days' prior written notice to the Association, the Owners, and all first mortgagees of the Lots. SECTION 16.3. Liability Insurance Maintained by the Association. The Association shall obtain and maintain a policy or policies of comprehensive general liability insurance insuring on a claims-made basis the Association, its directors, officers, the Owners, and their agents and employees against claims for personal injury, including death and property damage, arising out of any occurrence in connection with the ownership, occupancy, use, supervision, operation, repair, maintenance or restoration of Common Area, any improvements located thereon and to any other tangible assets of the Association, or in connection with any act or omission of or on behalf of the Association, its Board of Directors, agents or employees within the Property. Such policies shall be in the amount of $1 million for bodily injury, including death, and property damage arising out of a single occurrence, and shall contain a provision that 26 they may not be canceled without at least 30 days' prior written notice to the Association, the Owners, and the first mortgagees of the Lots. SECTION 16.4. Workmen's Compensation and Fidelity Insurance: Other Insurance. The Association shall obtain and maintain a policy or policies of insurance with reputable insurance carriers providing the following coverage: (a) Workers' compensation and employers' liability insurance in such form and in such amounts as may be necessary to comply with applicable laws; (b) Fidelity insurance or bonds in reasonable amounts for all officers and employees having fiscal responsibilities, naming the Association as obligee; and (c) Such other insurance in such limits and for such purpose as the Association may, from time to time, deem reasonable and appropriate. SECTION 16.5. Waiver of Subrogation. To the extent feasible, all policies of insurance obtained by the Association shall contain provisions that no act or omission of any named insured shall affect or limit the obligation of the insurance company to pay the amounts of any loss sustained. So long as the policies of insurance provided for herein shall state that a mutual release as provided for in this Section shall not affect the right of recovery thereunder, and further provide coverage for the matters for which the release herein is given, all named insureds and all parties claiming under them shall, and do by these presents, mutually release and discharge each other from all claims and liabilities arising from or caused by any hazard or source covered by any insurance procured by the Association, regardless of the cause of damage or loss. SECTION 16.6. Insurance Premium Expense. The expense of insurance premiums paid by the Association under this Article shall be an expense of the Association to which the assessments collected by the Association from the Owners shall be applied. ARTICLE 17. GENERAL PROVISIONS SECTION 17.1. Enforcement. Declarant, the Association, or any Owner, shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, liens and charges now or hereafter imposed by the provisions of the Declaration. Failure by Declarant, the Association or by any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. Breach of any of the covenants shall not defeat or render invalid the lien of any mortgage or trust deed made in good faith and for value as to said Lots or property, or any parts thereof, but such provisions, restrictions or covenants shall be binding and effective against any owner of said property whose title thereto is acquired by foreclosure, trustee's sale or otherwise. The Association shall be entitled to recover from any Owner against which it initiates enforcement, reasonable attorneys' 27 fees and costs expended by the Association in any enforcement proceedings, and any judgment obtained by the Association in any enforcement proceedings shall include such fees and costs. In addition, such fees and costs incurred by the Association against an Owner, whether or not proceedings are initiated, shall constitute a lien against his Lot which may be recovered in the manner provided in Section 5.12 hereof. SECTION 17.2. Severability. Invalidation of any one or more of these covenants or restrictions by judgment or court order shall in no way affect any other provisions which shall remain in full force and effect. SECTION 17.3. Covenants Run with the Land. The covenants and restrictions of this Declaration shall run with and bind the land, and shall inure to the benefit of and be enforceable by Declarant, the Association, or the Owner of any Lot subject to this Declaration, and their respective legal representatives, heirs, successors, and assigns for a period of 20 years from the date this Declaration is recorded, after which time said covenants shall be automatically extended for successive periods of 10 years. SECTION 17.4. Amendment. This Declaration may be amended by an instrument signed by Owners comprising not less than 67 percent of the total votes collectively held by all classes of Members with the written consent of mortgagees holding at least 51 percent of the outstanding mortgages on the Property. Any amendment to Article 8, Article 10, or which otherwise affects the rights and obligations of the City as set forth in this Declaration must be consented to in advance, in writing by the City Council of the City. Any such amendment that has the effect of (i) terminating this Declaration or (ii) terminating the legal status of the Association shall require the written consent of mortgagees holding at least 67 percent of the outstanding mortgages on the Property and any phases annexed thereto. Notwithstanding the foregoing, in the event Declarant desires to amend this Declaration: (x) to correct a technical or typographical error or to clarify any provisions herein which are otherwise vague, (y) for the sole purpose of causing this Declaration to comply with rules, regulation or guidelines as may be required by either the Federal Housing Authority (FHA) or the Veterans Administration (VA) to enable the sales of Lots from the Property to qualify for the insurance by either such agency of end mortgage loans made to Owners of such Lots, or as may be required to conform to the published manuals or guidelines of any governmental, quasi-governmental or private agency engaged in the business of the purchase of mortgage loans, including, but not limited to Federal Home Loan Mortgage Corporation (FHLMC) and Federal National Mortgage Association (FNMA) for the purchase of mortgage loans made on Lots in the Property, or (z) for the sole purpose of causing this Declaration to comply with the requirements of any statutes, ordinances, laws or regulations applicable thereto, it may do so by an instrument signed by Declarant without the consent of Owners, mortgagees, FHA, or VA, but shall give notice of any such amendments to all Owners, the FHA, the VA, and all mortgagees of Lots who have requested the same in writing. The failure to give such notice shall not affect the validity or effectiveness of such amendment. Notwithstanding anything to the contrary contained herein, Declarant may amend this Declaration to annex the Additional Land to the Property and to ensure that the Declaration appropriately accommodates the annexation of the Additional Land, as provided in Section 12.1 hereof, without any consents, except as provided in Section 17.6. In furtherance of the foregoing, 28 a power coupled with an interest is hereby reserved to Declarant, as attorney-in-fact to so amend the Declaration as provided in this Section 17.4, and each deed, mortgage or other instrument with respect to a Lot and acceptance thereof shall be deemed a grant and acknowledgment of and a consent to such power to said attorney-in-fact. Any amendment must be recorded with the Office of Recorder, Kane County, Illinois. SECTION 17.5. Quorum. Unless otherwise specified to the contrary in any provision of this Declaration, the presence of Members or of proxies entitled to cast 10 percent of the votes of each class of membership shall constitute a quorum for any meeting of the Members of the Association. If the required quorum is not forthcoming at any meeting, another meeting may be called, subject to the notice requirements set forth in the By-Laws of the Association and the required quorum at such subsequent meeting shall be 50 percent of the required quorum of the preceding meeting. No such subsequent meeting shall be held more than 60days following the preceding meeting. SECTION 17.6. FHA/VA Approval. As long as there is a Class B Member, (i) annexation of Additional Land or (ii) amendment of this Declaration of Covenants, Conditions and Restrictions, except for amendments made pursuant to Section 17.4(x), (y) or (z) above, will require the prior approval of the FHA or VA. IN WITNESS WHEREOF, the undersigned, being the Declarant herein has hereunto set its hand and seal on the date first written above. THE TRADITION AT FITCHIE CREEK, L.L.C. By: Title: ATTEST: By: Title: STATE OF ILLINOIS ) ) SS COUNTY OF K A N E ) I, a Notary Public, in and for said County, in the State aforesaid, DO HEREBY CERTIFY that as and as of , and personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and severally acknowledged that they signed and delivered the said instrument as such and of said 29 corporation, and caused the corporate seal of said corporation to be affixed thereto, pursuant to authority given by the Board of Directors of said corporation, as their free and voluntary act and as the free and voluntary act and deed of said corporation, for the uses and purposes therein set forth. GIVEN under my hand and Notarial Seal this day of , 2007. NOTARY PUBLIC INSTRUMENT PREPARED BY & MAIL TO WHEN RECORDED: John E. Regan, Esq. Early, Tousey, Regan, & Wlodek 2400 Big Timber Road Suite 201A Elgin, IL 60123 30 EXHIBIT B By-Laws of The Tradition at Fitchie Creek Homeowners' Association (See Attached) 32 EXHIBIT C Restrictions on Fences Lots within the Property shall be subject to the following restrictions with respect to fences: (a) Lots through , inclusive: there shall be no fences constructed, placed or installed on any such Lot. (b) Lots _ through , inclusive: Only "board-on-board" style wood fences meeting the design specifications on Schedule I attached hereto may be constructed, placed or installed on such Lots. (c) Lots through , inclusive: Only "wrought-iron" style aluminum fences meeting the design specifications on Schedule 2 attached hereto may be constructed, placed or installed on such Lots. 33