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HomeMy WebLinkAboutOrdinances - ORD-05-1267 - 08/29/2005 - AUTHORIZE ANNEX AGMT OAKS AT IRISH PRAIRIE 200 ACRor J C'.;- o " 1 ORDINANCE NO. ORD-05-1267 AN ORDINANCE AUTHORIZING THE EXECUTION OF THE OAKS AT IRISH PRAIRIE ANNEXATION AGREEMENT FOR A 200 ACRE PROPERTY LOCATED ON THE WEST SIDE OF BARREVILLE ROAD, IN MCHENRY COUNTY, ILLINOIS WHEREAS, Northern Trust Company as Trustee under the provisions of a certain Trust Agreement dated the 12`h day of July, 1948 and known as Trust No. 18644 ("OWNER") holds fee simple title to certain real estate located on the west side: of Barreville Road, in McHenry County, Illinois; and WHEREAS, Hovstone Properties Illinois, LLC, a Delaware limited liability corporation d/b/a Town & Country Homes ("DEVELOPER") has entered into a real estate purchase contract with the OWNER to acquire said real estate. WHEREAS, the OWNER., DEVELOPER and the City desire to enter into an annexation agreement to provide for the development of said real estate; and _ WHEREAS, notice of a public hearing was published in the Northwest Herald, a newspaper of general circulation in the City of McHenry, within the time provided by law, notifying the public of a hearing on said Annexation Agreement before the Corporate Authorities of the City of McHenry; and WHEREAS, the Corporate Authorities of the City of McHenry have held the public hearing as required by law and have found that entry into said Annexation Agreement is in the best interest of the City. NOW, THEREFORE, BE 1T ORDAINED BY THE MAYOR AND CITYCOUNCIL OF THE CITY OF MCHENRY, MCHENRY COUNTY, ILLINOIS AS FOLLOWS: SECTION 1: The annexation agreement, bearing the date of August 19, 2005, between the City of McHenry, a Municipal Corporation in the State of Illinois, and Northern Trust Company Trust No. 18444 and Hovstone Properties Illinois, LLC, be and the same is hereby approved. A complete and accurate copy of said annexation agreement, labeled "The Oaks of Irish Prairie Annexation Agreement", is attached to this ordinance and incorporated herein by reference. SECTION 2: The Mayor and City Clerk are hereby authorized to affix their signatures as Mayor and City Clerk to said annexation agreement for the uses and purposes therein set forth. SECTION 3: All Ordinance or parts thereof in conflict with the terms and provisions hereof are hereby repealed to the extent of such conflict. SECTION 4: This Ordinance shall be published in pamphlet form by and under the authority of the corporate authorities of the City of McHenry, McHenry County, Illinois. SECTION 5: This Ordinance shall be in full force and effect from and after its passage, approval, and publication in pamphlet form as provided by law. PASSED THIS 29TH DAY OF' AUGUST 52005 AYES: SANTI, SCHAEFER, MURGATROYD, WIMMER, CONDO NAYS: GLAB, PETERSON ABSTAINED: NONE ABSENT: NONE NONE NOT VOTING: APPROVED THIS 29TH DAY OF AUGUST 2005 ATTEST: (� �4-- MAYOR 2 THIS INSTRUMENT PREPARED BY AND RETURN TO: Thomas R. Burney Schain, Burney, Ross & Citron, Ltd. 222 N. LaSalle Street Suite 1910 Chicago, Illinois 60601 THE ABOVE SPACE FOR RECORDER'S USE THE OAKS AT IRISH PRAIRIE ANNEXATION AGREEMENT THIS AGREEMENT ("Agreement") made and entered into this A07 day of 2005 ("Effective Date"), by and between the City of McHenry, an Illinois munici al corporation (hereinafter referred to as "City"), and Hovstone Properties Illinois, L.L.C., a Delaware limited liability company d/b/a Town & Country Homes ("Developer") and Northern Trust Company, as Trustee under the provisions of a certain Trust Agreement dated the 12th day of July,1948 and known as Trust No.18644 ("Owner"). RECITALS A. The City of McHenry is an Illinois corporation organized under the Illinois Municipal Code in the County of McHenry, State of Illinois. B. Northern Trust Company as Trustee under the provisions of a certain Trust Agreement dated the 12th day of July, 1948 and known as Trust No.18644 ("Owner") holds fee simple title to the real estate legally described on Exhibit A, attached hereto and made a part of this Agreement by reference herein ("Subject Property"). C. Hovstone Properties Illinois, L.L.C., a Delaware limited liability corporation is the successor to Pinnacle Corporation d/b/a Town & Country Homes which has entered into a real estate purchase contract with the Owner to acquire the Subject Property. D. The Owner has filed with the City Clerk a Petition for Annexation of the Subject Property to the City, contingent upon the terms and provisions of this Agreement, which Petition has been filed in accordance with 65 ILCS 5/7-1-8, and the ordinances of the City. E. The Subject Property is currently unimproved and is zoned A-1, Agricultural, pursuant to the McHenry County Zoning Ordinance. F. The Subject Property has no electors residing thereon. G. The Subject Property consists of one contiguous tract of land, all of which is not within the corporate boundaries of any municipality or subject to an Annexation Agreement with any other municipality, and is presently contiguous to and may be annexed to the City in accordance with 65 ILCS 5/7-1-1, et seq. H. The Owner desires to annex the Subject Property to the City in accordance with the terms of this Agreement. I. The City has determined that the annexation of the Subject Property in accordance with the terms of this Agreement is in the best interest of the City, will promote sound planning and growth of the City, and otherwise enhance and promote the general welfare of the City and its residents. J. The City does not provide library or fire protection services to the Subject Property, so notice to the Fire Protection District or Public Library District of the annexation of the Subject Property is not required. K. The annexation of the Subject Property will include a portion of highway under the jurisdiction of Nunda Township, so notice of the annexation of the Subject Property has been served to the Nunda Township Commissioner of Highways and Board of Town Trustees by certified mail. L. This Agreement is made pursuant to and in accordance with the provisions of 65 ILCS 5/ 11-15.1-1, et seq. M. Prior to the date of this Agreement, all public hearings were held upon proper notice and publications as are required for the City to effect the terms of this Agreement. NOW THEREFORE, in consideration of their respective agreements set out herein, the City, Owner and Developer hereby agree as follows: 1. Annexation. Upon execution of this Agreement, as allowable by law, the City shall enact an ordinance annexing the Subject Property. A copy of said ordinance, together with an accurate plat of the Subject Property, shall be filed with the County Clerk of McHenry County and recorded with the Recorder of Deeds of McHenry County. This Agreement in its entirety, together with the aforesaid Petition for Annexation, shall be null, void and of no force and effect unless the Subject Property is zoned and classified as provided in this Agreement by the adoption of ordinances by the City immediately following the execution of this Agreement. N 2. Zoning. Immediately following the annexation of the Subject Property, the City shall adopt an ordinance granting a zoning map amendment to IDD, Integrated Design District for the Subject Property. 3. Conditional Use Permit. Immediately following the annexation and zoning of the Subject Property, the City shall adopt an ordinance granting a Conditional Use Permit to allow a planned residential development, with the condition that the Subject Property is developed in substantial accordance with the Integrated Design District Plan, dated March 1, 2005, attached hereto and incorporated herein by reference as Exhibit B ("IDD Plan'), the Preliminary Plat referenced in this Agreement and the following conditions included in the Conditional Use Permit approval granted by the City: 4. Comprehensive Plan. The Corporate Authorities have examined the Preliminary Plat and have determined that -it is in accordance with the City of McHenry Comprehensive Land Use Plan and Development Policies approved under Ordinance No. MC99-741 on 09/01/99, as amended ("Comprehensive Plan'). 5. Preliminary Plat and Preliminary Engineering. Immediately following the annexation of the Subject Property, the City shall adopt an ordinance approving the Preliminary Plat entitled, "The Oaks at Irish Prairie," prepared by Land Vision, Inc.; dated March 1, 2005 and revised August 19, 2005 and the Preliminary Engineering Plans prepared by Cemcon; dated March 18, 2005 and revised May 18, 2005, consisting of three sheets attached hereto and incorporated herein by reference as Exhibit C ("Preliminary Plat"). Approval of the Preliminary Plat shall entitle the Developer to final plat of subdivision approval if the final plat is in substantial conformance with the Preliminary Plat, any conditions of approval have been met, and it complies with this Agreement and all applicable ordinances, including the City's Subdivision Control and Development Ordinance, Zoning Ordinance, and Building Codes. The City approves the Design Standards set forth on Exhibit D. 6. Maximum Number of Residential Units. The total number of new single family detached residential dwelling units permitted and constructed on the Subject Property shall be permitted to equal but not exceed three hundred and ninety-five (395). 7. Limitation on Building Permits. Developer and City agree that the City shall limit the maximum number of building permits issued each year for single-family detached residences on the Subject Property. The maximum number of building permits issued for single family detached dwellings for each one (1) year period shall be as follows: Year 1 - fifty-five (55) building permits, Year 2 -sixty-five (65) building permits, Year 3 -seventy (70) building permits, Years 4 and later -seventy (70) building permits. The first one-year period shall begin upon the City Council's approval of the first final plat of subdivision. The maximum number of building permits allowed shall not be cumulative from one year to the next. For purposes of this paragraph, model home construction shall not count toward annual building permit limits unless occupied as a residence. 8. Agricultural Uses. The City agrees that those portions of the Subject Property that have not been final platted may continue to be used for agricultural purposes, including crop farming over the entire parcel and that such uses may be continued as a legal 3 nonconforming use in accordance with the ordinances of the City. All agricultural uses hereby permitted shall expire seven (7) years from the Effective Date of this Agreement. 9. Architectural Standards. Developer agrees that Exhibit E, entitled "Architectural Standards", Iast revised on May "16, 2005, attached hereto and made a part of this Agreement by reference ("Architectural Standards"), shall be implemented and enforced by Developer to regulate development within the Subject Property, and shall be incorporated into the covenants and restrictions placed on the Subject Property prior to City approval of the first final plat of subdivision within the Subject Property. 10. Building Plans. The Developer shall have the option of using master plans for the single-family detached dwellings and each master plan shall be stamped by a licensed, registered architect in the State of Illinois. Any and all subsequent changes to the master plans, however, shall be approved, stamped and sealed by an Illinois Registered Architect. 11. Landscape Mans. Prior to the issuance of any Occupancy Permits by the City, Developer shall install and maintain landscaping, berming, fencing and other improvements in accordance with Exhibit F, entitled "The Oaks at Irish Prairie Landscape Plan", prepared by Hitchcock Design Group and dated February 10, 2005 and last revised on August 19, 2005, attached hereto and made a part of this Agreement by reference ("Landscape Plans"), in all areas of the Subject Property that have been final platted. Developer shall implement, install, enforce, and maintain the Landscape Plans within the Subject Property, and shall incorporate the Landscape Plans into the covenants and restrictions placed on the Subject Property prior to City approval of the first final plat of subdivision within the Subject Property. 12. Covenants and Maintenance. Developer agrees to provide for implementation, enforcement, and maintenance of all Architectural Standards, Landscape Plans, private paths, open space, storm water and drainage systems, including detention basins and retention ponds, wetlands, and conservation areas, and all other common areas including the clubhouse, as provided on Exhibit F by creating one or more "homeowners' association' or appropriate organization. The provisions of each homeowners' association corporate charter and bylaws and any covenants used in its enforcement shall be submitted to the City with each final plat of subdivision. It is acknowledged and agreed that the City shall have the right, but not the obligation, to enforce all provisions of the homeowners' association charters, bylaws, and covenants, as they relate to issues, pertaining to stormwater, detention or other aspects of the development which may adversely impact homeowners in the development, and that all such documents shall so provide. The Developer agrees that if title to the Conservation Easement parcel is not transferred to the McHenry County Conservation District, then the implementation, enforcement and maintenance for the Conservation Easement parcel shall be the responsibility of the homeowners' association. 13. Back -Up Special Service Area. Prior to City approval of the first final plat of subdivision within the Subject Property, Developer and City agree to establish a Special Service Area over the Subject Property to finance special municipal services as a back-up measure to the private "homeowners' association' and assessment to ensure the continued maintenance of the private subdivision improvements, including the Conservation Easement, open space, landscaping, and other amenities as provided in this Agreement. 4 14. Tree Survey and Preservation Plan. Developer has provided to the City a tree survey, dated March 11, 2005 and a tree assessment report dated September 24, 2004 and completed by Planning Resources. Developer shall provide a tree preservation plan for review and approval by the City's Director of Community Development prior to City approval of the first final plat of subdivision within the Subject Property, in accordance with the City's Tree Preservation Ordinance. 15. Conservation Easement. The Developer and City recognize that the area designated as Conservation Easement on the Preliminary Plat (Parcel No. 12) will require special attention, as described in subparagraph (a) below, during development of the Subject Property and continuing maintenance and upkeep after development. Developer shall work with the City and the McHenry County Conservation District to donate the acreage within the Conservation Easement to the Conservation District. In the event that the McHenry County Conservation District does not accept the conservation easement on terms and conditions mutually agreeable to the City and the Developer, Developer agrees to convey the conservation easement to the Homeowner's Association subject to covenants acceptable to the City and the backup special service area referenced in paragraph 13, above. a. Erosion and Construction Runoff Control. Prior to any clearing, excavation, grading or other site development work being done on those portions of the Subject Property which lie south of proposed Galway Street as described on the Preliminary Plat, the Developer shall provide the City with an Erosion and Construction Runoff Control Plan. Said Plan shall specify measures, including but not limited to hay bales, silt fencing, straw, etc. that will prevent silt or any other construction runoff or debris from entering into the Conservation Easement. Said Plan shall be subject to reasonable approval by the City Engineer prior to any site development work being done on these portions of the development. b. Stormwater Management. To prevent the stormwater runoff generated from the proposed development from impacting the Conservation Easement Developer agrees to use best management practices, at the direction of the City Engineer, where feasible, to minimize the development's potential impacts of stormwater runoff. C. Long Term Management. If title to the Conservation Easement has not been conveyed to the McHenry County Conservation District or other land conservation organization, as approved by the City, at the time the first final plat of subdivision is submitted to the City for approval, the Developer agrees to include with the submittals for final plat approval a Long Term Management Plan for the Conservation Easement. For a period of time not to exceed seven (7) years from submission of the Long Term Management plan, the City may, at the discretion of the City Administrator and as a condition of approval of the Final Plat and the Long Term Management Plan, provide that the Developer pay to the City a lump sum amount, which may be in the form of Letter of Credit, and shall be placed in an escrow account, to be used for the ongoing maintenance of the Conservation Easement prior to development or after development of the Subject Property is completed. The amount, form and institution upon which the Letter of Credit is issued shall be approved by the City Administrator. Thereafter, in the 5 event the Conservation Easement has not been conveyed to the McHenry County Conservation District or another land conservation organization as approved by the City, the Developer shall provide for its maintenance through the homeowner association(s) referenced in paragraph 12, above. 16. Curb, Gutter and Sidewalks. Except as shown on the Preliminary Plat or on any Final Subdivision Plat relating thereto, Developer shall install public sidewalks on both sides of the street, except in any instance where a bike path is substituted for a sidewalk on one side of the street in the Preliminary Plat, concrete curb and gutter, and an enclosed storm sewer system, designed and constructed in accordance with the ordinances of the City. Developer shall also install a ten (10') foot wide asphalt bike path on the north side of Veterans Parkway through the entire Subject Property. In any instance, the City shall have the option of requesting cash, in the amount of the proposed sidewalk or bike path improvements, in lieu of installation of said improvement. 17. Sanitary Sewer and Water. a. The Subject Property shall be developed with municipal sanitary sewer and water. Developer will be allowed to extend the municipal water and sewer lines to service the Subject Property, and the City will service the development with water and sanitary sewer treatment facilities. Water and sanitary treatment plant and main capacity will be made available to the development on the same basis as it is made available to other developments. b. The Developer acknowledges that there is NOT currently sanitary sewer treatment plant capacity available from the City to service the Subject Property, and the City does not agree to reserve any capacity for the Subject Property. No action of the City regarding application to the Illinois or U.S. Environmental Protection Agency for permission to construct sanitary sewer lines on any part of the Subject Property shall be construed to constitute any representation, warranty, or reservation by the City to Developer that municipal sanitary sewer treatment plant or sanitary sewer main capacity or municipal water will be available to service the Subject Property when Developer applies to the City for connection permits. C. At the Developer's sole risk and responsibility, the City shall execute all on -site IEPA permits while the City's south wastewater treatment plant is under construction and expansion, thereby permitting Developer to begin construction of the on -site and off -site public sewer system identified on the Preliminary Engineering Plans. The City's execution of said IEPA Permits shall not be construed as vesting Developer with any rights of development. In the event, for whatever reason, City's expanded south wastewater treatment plant is not completed and made available to the Developer for the Subject Property, the Developer hereby waives any claim against the City, its officers and employees and releases the City, its officers and employees from any liability relating thereto. Upon completion of the City's construction of its expanded wastewater treatment plant, capacity shall be made available to the Approved Development on the same basis as it is made available to other developments. C.1 d. Developer shall cause to be financed and/or constructed all municipal sanitary sewer system and water supply and distribution system improvements required to meet the expected demand as a result of development of the Subject Property, subject to credit for tap -on and capital improvement fees for sewage treatment plant improvements, and water tower, well, and treatment improvements. e. The City shall permit the Developer to construct, by phases, the on -site sanitary sewer and water system, and stormwater collection system, including water retention and detention facilities. Stormwater retention and detention facilities shall not be allowed to be phased within a phase. f. The City shall exercise its power of eminent domain, if necessary, to assist Developer in obtaining all necessary easements, not already in existence, to enable the installation of the aforesaid sanitary sewer and water improvements. Developer shall pay all eminent domain costs and expenses incurred by the City, including but not limited to attorney's fees, title charges, appraisals, surveying cost, deposition cost, witness fees, litigation expenses and judgments in the acquisition of any easement. g. Developer shall provide a connection point for the sanitary sewer line servicing the Morgan Hill Development at the location provided on the Final Engineering Plans approved by the City. 18. Reimbursement Provision. Upon development of any portion of the Subject Property, the City reserves the right to request Developer to construct additional, expanded or oversized municipal public improvements onsite which benefit not only the Subject Property, but also other properties being or to be developed in the relevant service areas for such improvements. In the event such improvements are made by Developer, the following provisions shall apply and be included in a subsequent reimbursement agreement: a. The properties which may reasonably be expected to benefit directly or indirectly from the construction and installation of such additional onsite expanded or oversized sanitary sewer main improvements ("Benefitted Property") will be determined by the City's Consulting Engineer. b. Developer shall be allowed reimbursement for expanded or oversized sanitary sewer and water main improvements as follows: (i) 100% for improvements made offsite of the Subject Property; and (ii) Proportionately on a per acreage basis for improvements made onsite of the Subject Property. C. The City shall endeavor to collect a pro rats sum of money from the owners of the Benefitted Property upon connection. The total sum subject to reimbursement to the Developer, as well as the pro rata sum to be collected from the Benefitted Property owners shall be determined by the City's Consulting Engineer taking into account the following factors: construction and easement costs; professional fees; testing and analysis fees; and legal and administrative expenses. In addition, interest 7 shall be collected from the commencement date of this reimbursement provision, calculated annually at one percent (1 %) over the last July 1, five-year treasury bill rate. The sum collected shall be paid to Developer after deduction of two percent (2%) for administrative charges due City. In the event that any State statute shall determine an interest rate other than set forth in this paragraph, the State Requirement shall prevail. d. Subject to a non -appealable final court order, directing City to act otherwise, the City shall not issue any connection permits until the Benefitted Property owner pays the reimbursement charge set forth in this paragraph. e. The City will use its best effort to collect the cost provided herein from the Benefitted Property owners but shall not be liable to Developer if the City is, for any reason, unable to collect said cost. The City's liability to reimburse shall be limited to payment from funds actually collected from Benefitted Property owners. f. The City and Developer reserve the right to, at any time during the term of this Annexation Agreement, file the Reimbursement Agreement with the McHenry County Recorder of Deeds and notify the owners of the Benefitted Property of the terms of this reimbursement provision. g. Developer shall reimburse and indemnify City for all costs, engineering and attorney's fees and liability incurred by the City in attempting to collect the reimbursement amount subject to this reimbursement provision. h. This reimbursement provision shall have a commencement date when the City Engineer issues a letter indicating substantial completion of the public improvements which are the subject of the Reimbursement Agreement and shall terminate upon the earlier of ten years thereafter or upon reimbursement by the benefitted property owners of the charges referred to in this reimbursement provision. 19. Security for Improvements. In lieu of any bond or cash escrow required by any ordinance of the City in conjunction with the improvement or development of the subject properties, the Developer, their agents, assigns or successors shall guarantee the performance or fulfillment of any such requirement by submitting to the City an irrevocable letter of credit in the amount of 125% of the estimated cost of said improvements in a form that is acceptable to the City, drawn on a bank or savings and loan association in the Chicago -Metropolitan area, having stated assets of not less than $30,000,000.00, in favor of the City and the signatory. The aforesaid letter of credit shall be reduced as allowed by the council of the City from time to time. 20. Occupancy Certificates. The City shall grant temporary occupancy permits when adverse weather conditions, as determined by the Director of Community Development, do not permit the completion of the landscaping, driveways, sidewalks, entrance walks and topsoil re - spread to be completely finished within the areas of the Subject Property that have been final platted. If the temporary occupancy permit is issued after November 30 and before March 15, the landscaping shall be completed by no later than June 1 of that year. Temporary occupancy permits shall be issued provided that Developer agrees to maintain Security (as hereinafter LV defined) in an amount to be determined by the Community Development Director as necessary to secure completion of any outstanding work. 21. Temporary Signage. a. Temporary Communication Identification Signage. Developer shall be allowed two (2) double -sided or V-shaped temporary project signs. Each sign face shall not be greater than 96 square feet in area (exclusive of extensions and framing construction). Each sign shall have a maximum overall height of fifteen feet (15') above the centerline of the adjacent roadway. Such signs may be erected immediately after the adoption of ordinances approving the rezoning and annexation for the Subject Property. The signs shall be maintained at all times as to both structure and sign face. Both signs shall be removed upon completion of 100% of lot sales within the Subject Property. b. Model Home Signs. Subject to the review and approval of sign location and design by the Community Development Director, Developer shall be allowed one (1) identification sign in front of each model home unit. Each sign face shall not be greater than 10 square feet in area (exclusive of extensions and framing construction). Model home signs shall be removed upon issuance of a permanent certificate of occupancy for the respective model or upon completion of 100% of lot sales within the Subject Property, whichever occurs first. C. Model Directional Signs. Subject to the review and approval of sign location and design by the Community Development Director, Developer shall be allowed four (4) double -sided or V-shaped model directional signs for the purpose of directing traffic to the model complex. Each sign face shall not be greater than 10 square feet in area (exclusive of extensions and framing construction). Model directional signs shall be removed upon completion of 100% of lot sales within the Subject Property. d. Sales Information Center Signage. Subject to the review and approval of sign location and design by the Community Development Director, Developer shall be allowed two (2) double -sided or V-shaped information center signs. The sign face shall not exceed 15 square feet in area (exclusive of extensions and framing construction). The sales information center signs shall be removed upon completion of 100% of lot sales within the Subject Property. e. Community Promotional Signage. Subject to the review and approval of sign location and design by the Community Development Director, Developer shall be allowed four (4) double -sided community promotional signs. Each sign face shall not be greater than 16 square feet in area (exclusive of extensions and framing construction). Community promotional signs shall be removed upon completion of 100% of lot sales within the Subject Property. f. Community Promotional Flags. On the Subject Property, Developer shall be allowed to display one (1) community identification flag on a sixteen foot (16') high flagpole and one (1) American flag on a twenty foot (20') high pole in connection with a sales trailer, sales office or sales pavilion. The community promotional flag shall be Z removed upon completion of one hundred percent (100%) of lot sales within the Subject Property or within seven (7) years of the effective date, whichever occurs earlier. g. Temporary Marketing Signs. Upon payment of required permit fees to the City, temporary marketing signs shall be permitted to the Developer for participation in the Festival of Homes sponsored by the Chicago Tribune. These temporary marketing signs shall not exceed four (4) feet by nine (9) feet and shall be posted for five (5) consecutive weeks at a time, not more than four (4) times a year and shall be located wholly on the Subject Property and shall be permitted for seven (7) years from the effective date. 22. Traffic Control Signs. It shall be the sole responsibility of the Developer to conduct a speed study for the entire Subject Property and locate the necessary signage with regards thereto. 23. Model Homes; Construction Trailers. a. Model Homes. W Upon the annexation of the Subject Property and in advance of any final plat of subdivision or engineering approval, the Developer shall be permitted, at the Developer's sole risk, to construct, maintain and occupy ten (10) model homes, located on the Subject Property, in no more than two (2) model areas displaying the types of housing product being constructed on the Subject Property and to construct and maintain other appurtenant facilities for said model units, including temporary sanitary facilities and systems (when applicable required permits are received from the McHenry County Health Department), water facilities and temporary noise restricted electrical generators in advance of the construction of permanent sanitary, storm sewer, storm water detention facilities, water mains and electrical service. Such generators, tanks and water facilities shall be disconnected and removed at such time as electrical service and public sewer and water systems become available to the Subject Property and the structures are connected thereto. (ii) No such construction shall prejudice the power and right of the City to review, approve and disapprove final plats of subdivision and engineering plans for any parcel containing said models. (iii) Developer shall have the right to use said models as well as their garages for sales, 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. 10 (iv) The Developer shall submit to the City for its approval plans and specifications for the model homes and sales facilities that the Developer seeks to construct within a model home site. The City shall review and approve or disapprove, by written notice, those plans and specifications within thirty (30) days of their submission. Once those plans and specifications have been approved by the City, the City shall issue building permits for the construction of such model homes and sales facilities. (v) The City agrees to allow Developer to construct temporary parking facilities paved to the street with curb depressed or other appurtenances to the model units and sales offices subject to the approval of the Community Development Department of the City and compliance with all applicable codes of the City. (vi) The City agrees to permit in the model home area temporary fencing, lighting, signage, parking lots and promotional structures upon submission of appropriate plans to and approval by the City. b. Temporary Sales Facilities. (i) Prior to the approval of any final plat of subdivision for, or, the availability of public improvements on, the Subject Property, the Developer may, at its own risk, install or erect a temporary sales facility and parking lot or lots, only on the Subject Property, for sales, 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. (ii) Such temporary sales facility shall be removed within two (2) months of the issuance of an occupancy permit for the first model home. (iii) No temporary sales facilities shall be required to connect to the City's public sanitary sewer and water facilities, but may utilize an approved temporary potable water and sanitary sewer facility. C. Construction Trailers. Construction trailers used to build homes shall only be allowed to be located in the proposed final phase of development, at locations to be approved by the Community Development Department of the City. Upon sale of 75% of the lots in the last phase of the proposed development, all construction trailers, except one, shall be removed from the Subject Property. The last construction trailer shall be removed upon issuance of the final certificate of occupancy for the last residential home within the final phase of the proposed development. d. Production Homes, Sanitary Sewer, Water and Storm Detention Facilities. Upon the approval of the final engineering plans, the Developer shall be 11 permitted, at the Developer's sole risk, to construct production homes and the necessary infrastructure, prior to the completion of the City's expanded south wastewater treatment plant. Provided that Developer secures all of the necessary federal, state and local permits and approvals, Developer shall be permitted to construct and install, at its sole risk, all of the necessary on -site and off -site sanitary sewer, water and storm detention facilities to serve the Subject Property upon the approval of the Final Engineering Plans, Developer hereby acknowledges in writing that no occupancy permits shall be issued until said homes are served with sewer and water and subject to Developer obtaining an executed disclosure by the buyer evidencing the buyer's acknowledgement that no occupancy shall be permitted until the home is served with sewer and water. Said disclosure shall be reviewed and approved by the City Attorney. Permission to construct production homes and public improvements referenced herein shall not be construed as vesting any rights in the Developer. In the event, for whatever reason, City's expanded south wastewater treatment plant is not completed and made available to the Developer for the Subject Property, the Developer hereby waives any claim against the City, its officers and employees and releases the City, its officers and employees from any liability relating thereto. 24. Underground Utilities. Developer shall install underground, at Developer's cost, all new electricity, gas, telephone lines and any other utility or cable devices, lines, or conduits necessary to service the development of the Subject Property. 25. Road Improvements and Contributions. a. Developer agrees to construct all internal and external roadway improvements required to meet the expected demand as a result of development of the Subject Property, excluding any improvements to the Veterans Parkway/Route 31 intersection, which is referenced in Paragraph b of this section, which may include any or all of the following: left-hand/right-hand turn lanes, acceleration and deceleration lanes, a boulevard, additional lanes, roadway widening, traffic signal, curb and gutter, sidewalk, bike path and/or stormwater ditches associated with the development of the Subject Property as determined by the City's consulting engineer. b. Developer acknowledges and agrees to contribute the amount of $100,000.00 towards the cost of future road improvements to the Veterans Parkway/ Route 31 intersection. The specific roadway improvements to the Veterans Parkway/Route 31 intersection shall be determined by the City's Engineer. Said contribution shall be made within ninety (90) days after approval of the first final plat of subdivision. C. Developer acknowledges and agrees that several existing intersections and roads within or near the Subject Property are not currently improved to meet traffic volumes expected as a result of development of the Subject Property. Developer acknowledges and agrees to contribute $75,000 towards the cost of road improvements in the vicinity, including but not limited to improvements to the intersection of Charles/Miller Road and Green Street, to offsite intersections and roadway widening. Said contribution shall be made in two installments of $37,500, the first being due within 12 ninety (90) days after approval of the first final plat of subdivision, and the second being due within ninety (90) days after approval of the second final plat of subdivision. 26. Park Land Dedication. Developer shall convey and dedicate to the City, for unrestricted public use, the area on the Preliminary Plat north of Veterans Parkway designated as Parcel No. 27 ("Park") upon approval of the first final plat of subdivision of any portion of the Subject Property or in a subsequent Final Plat of Subdivision if the park is not included in the First Final Plat of Subdivision. This conveyance shall be made by recordable warranty deed or such other conveyance as the City shall agree, free from any encumbrances, accompanied by a plat of survey and a title insurance policy in the amount of the value of the parcel, paid for and prepared by Developer. Prior to conveyance, Developer shall pay to the City the sum of $4,000 to be used to assist the City in developing a plan for the Park Site. Developer shall construct stubs for future utility connections, and the site shall be final graded and seeded, and the slope, topography, and geology of the dedicated site must be suitable for active park and recreation purposes. The City will maintain the park site upon conveyance. 27. Donations, Contributions, and Fees. Developer acknowledges that the development of the Subject Property will impact on schools, parks, the library and fire protection districts and other public services within the City. To reduce the effects of this impact, and as a condition of this Agreement, Developer shall be obligated to pay and/or donate, or cause to be donated to the City, or provide improvements for the benefit of the City as follows: a. Annexation Fees. (i) Developer shall pay to the City fifty percent (50%) of the $199,800.00, representing $1,000 per acre, within ninety (90) days of the City Council approval of the annexation of the Subject Property and the remaining balance within ninety (90) days of the City Council approval of the first final plat of subdivision. (ii) Developer shall pay to the City the sum of $596 per residential unit constructed on the Subject Property upon issuance of each building permit as an additional annexation fee. (iii) Developer shall pay to the City as a transition fee, the sum of $2,013 per residential unit ($1,090 to School District NO.15, $795 to School District No. 156 and $64 each, to the Library District and Fire Protection Districts) constructed on the Subject Property upon issuance of each Certificate of Occupancy. b. Cash Donations. (i) Developer shall pay to the City certain Cash Donations per residential unit constructed on the Subject Property upon issuance 13 of each building permit. The Cash Donations payable by the Developer to the City shall be calculated as follows: School Districts Parks Library Dist. Fire Dist. Total per Unit Single -Family Detached Total 156 15 7 or Less Bedrooms $2,942 $1,030 $1,912 $2,581 $274 $274 $6,071 3 Bedrooms $4,316 $1,511 $2,805 $3,712 $274 $274 $8,576 4 Bedrooms $5,689 $1,991 $3,698 $4,819 $274 $274 $11,056 5 or More Bedrooms $5,825 $2,039 $3,786 $4,826 $274 $274 $11,199 The Cash Donations referred to in this chart shall collectively be referenced to as "Minimum Cash Contribution Amounts". (ii) In the event the Minimum Cash Contribution Amounts, as calculated above, are less than the cash donation amounts set forth in the City's ordinances, as amended from time to time, an amount equal to the amounts specified in the City's ordinances, after adjustments as calculated above for land donations, shall be paid, rather than the Minimum Cash Contribution Amount provided for in this Agreement. (iii) In the event the City's cash contribution ordinance, or any other ordinance of the City relating to cash contributions for schools, parks, library and fire protection districts, is repealed or declared by a court of law to be found unenforceable and all appeals have been exhausted, Developer agrees to pay, subsequent to such final court action, the Minimum Cash Contribution Amounts set forth in this Agreement. In the event such final court order requires the City or School Districts to return or refund monies paid by the Developer pursuant to the City's ordinances, Developer expressly agrees to allow the City or School Districts to retain the Minimum Cash Contribution Amounts previously paid by the Developer. It is the express intent of the Developer to release the City and School Districts from any liability or obligation to refund the Minimum Cash Contribution Amount paid pursuant to this paragraph under any circumstances. C. Release. Developer hereby releases the City, School Districts 15 and 156, Library District, and Fire Protection District from any and all liability or damage to Developer and waives the right to challenge, by lawsuit or otherwise, the validity, legality or enforceability of the donations and fees set forth in this Agreement, or the purpose for which the money is spent. Developer agrees not to pay any fees under protest. 14 d. Donations Distinguished from Fees. Other than the donations specified in the foregoing paragraphs, during the term of this Agreement, and irrespective of any existing, new or revised donation ordinances of the City, Developer shall not be required to donate any land or money to the City, or by action of the City, to any other governmental body. Building permit fees, water and sewer connection and capital development fees, and other similar fees which are charged for specific services provided by the City, shall be payable in accordance with the City ordinances in existence and as amended from time to time, except as specifically provided in this Agreement. e. Distribution. That portion of these fees to be distributed to the schools, as determined exclusively by the City, may be distributed for the benefit of some or all schools within School Districts 15 and 156, at the discretion of the City Council. To the extent any of these funds are distributed to said School Districts, they may be used for operating expenses at those schools within School Districts 15 and 156, as directed by the City Council, at the time of distribution. In the event a distribution agreement in a form approved by the City is not executed by the School Districts prior to distribution of said funds to the School Districts, the City may retain the entire amount paid pursuant to this paragraph for City use. Nothing herein is intended to create third party beneficiary rights in School Districts 15 and 156, the Library District or the Fire Protection District. f. Annual Adjustment. Beginning on May 1, 2006 and each May 1st thereafter, the fees referenced in the preceding paragraphs a) ii, a) iii, and b) i, shall be adjusted upward by the percent that the Chicago Area Consumer Price Index ("CPI") has moved upwards. For the purpose of this paragraph, the price index to be used for comparative purposes shall be that index for the annual average Chicago area CPI-U, as published by the United States Department of Labor, Bureau of Labor Statistics. 28. Binding Effect and Term. This Agreement shall be binding upon and inure to the benefit of the parties hereto, successor owners of record and their heirs, assigns, and lessees, and upon successor municipal authorities of the City and successor municipalities for a period of twenty (20) years from the date of execution hereof, and any extended time agreed to by amendment to this Agreement. 29. Amendment. This Agreement may only be amended by written instrument executed by all parties hereto. Provided, however, in the event title to the Subject Property, in whole or part, is transferred to successors in interest, future amendments relating to the Subject Property may be made by and between the City and the title holders to the parcel specifically requesting the amendment without consent required by other record owners of the Subject Property. 30. Notice and Default. Before any failure of any party to this Agreement to perform its obligations under this Agreement shall be deemed to be a breach of this Agreement, the party alleging the breach shall provide notice to the party alleged to be in default specifying the nature of said default, and thirty (30) days elapses from the receipt of said default notice without the default being cured. Notice shall be in writing and delivered via certified mail, addressed as follows: 15 If to City: City Administrator 333 S. Green Street McHenry, IL 60050 If to Developer: Hovstone Properties Illinois, L.L.C. 1806 S. Highland Avenue Lombard, IL 60148 Attention: Mark Fields If to Owner: Northern Trust Company, as Trustee under the provisions of a certain Trust Agreement dated the 12+h day of July,1948 and known as Trust No.18644 c/o Cowlin and Cowlin 5447 W. Bull Valley Rd. McHenry, IL 60050 Attention: James S. Cowlin 31. Stop Orders. The City will issue no stop orders directing work stoppage on buildings or parts of the development without setting forth the section of City ordinances or of this Agreement allegedly violated by Developer, and Developer may forthwith proceed to correct such violations as may exist; provided, however, that the City shall give notice in advance to the Developer of its intention to issue stop orders at least twenty-four (24) hours in advance of the actual issuance of such stop orders, except in the event a health, life or safety emergency is deemed to exist by the City. 32. Ordinance Changes. Except as otherwise specified herein, including but not limited to the rights secured under paragraph 6 and Exhibit D (Design Standards), all ordinances of the City and other applicable jurisdictions shall apply to the Subject Property, Developer and all successors and assigns in title. If during the term of this Agreement, the provisions of the existing ordinances and regulations which may relate to the development, subdivision, construction of improvements, buildings, appurtenances and all other development of the Subject Property, are amended or modified in any manner so as to impose more restrictive requirements, such more restrictive requirements shall be enforceable as applied to the Subject Property, so long as such amendments or modifications are non-discriminatory in their application and effect throughout the City or other applicable jurisdictions. 33. Less Restrictive Ordinances Apply. If any existing, amended, modified or new ordinances, codes or regulations affecting the zoning, subdivision, development, construction of improvements, buildings or appurtenances or other regulatory ordinances regarding the public health, safety and welfare are amended or modified in any manner to impose less restrictive requirements on the development of, or construction upon, properties within the City, then the benefit of such less restrictive requirements shall inure to the benefit of Developer, only as to buildings constructed after the change, and anything to the contrary contained herein notwithstanding, Developer may elect to' proceed with respect to the development of, or construction upon, the Subject Property upon the less restrictive amendment or modification. 16 However nothing therein shall authorize Developer to construct more than 395 dwelling units on the Subject Property. 34. Obligations. All obligations of the Developer in this Agreement, including monetary obligations in existence now and in the future, as a result of this Agreement, shall constitute covenants running with the land and such monetary obligations shall also be liens upon the land. Developer hereby consents to the filing of alien on the Subject Property or parts thereof for which obligations are owed when any obligations are more than ninety (90) days overdue. 35. Enforceability. It is agreed that the parties to this Agreement may enforce and compel performance, whether by law or in equity, by suit, mandamus, injunction, declaratory judgment, or other court procedure, only in courts of the State of Illinois; no such action may be brought in any Federal court. In the event that either party to the Agreement files suit to compel performance by the other, the prevailing party shall be entitled to recover, as part of the costs otherwise allowed, its reasonable attorney's fees incurred therein. 36. Waiver. The failure of the City to insist, in any one or more instances, upon performance of any terms or conditions of this Agreement, shall not be construed as a waiver of future strict performance of any such term, covenant or condition and the obligations of the Developer shall continue in full force and effect. 37. Severability. If any provision of this Agreement, other than the provisions relating to the requested zoning changes and Preliminary Plat described herein and the ordinances adopted in connection therewith, is held invalid by any court of competent jurisdiction, such provision shall be deemed to be excised herefrom and the invalidity thereof shall not affect any of the other provisions contained herein. 17 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date indicated above. CITY OF McHENRY B: Y Its: Mayor Attest: By: - , Its: dty CI k DEVELOPER: = OWNER: HOVSTONE PROPERTIES ILLINOIS, L.L.C. a Delaware limited liability company d/b/a Town & Country Homes By: Print Name:// j6eE,,/ ."OA)O FF' 1-41€ ^NORTHERN TRUST COMPANY, as Trustee under the provisions of a certain Trust Agreement dated the 12th day of July, 1948 and knov/n as Trust -No. 18644 LIN Print Name: 16 )A, Its:�y%1/C�E;a )0i j/l S1 C),A j�, �� T. �� i Its: lid RMSIDL EXHIBITS LIST EXHIBIT LegalDescription............................................................................................................... A Integrated Design District Plan ....................................................................................... B Preliminary Plat and Preliminary Engineering............................................................. C DesignStandards............................................................................................................... D ArchitecturalStandards.................................................................................................... E LandscapePlans................................................................................................................. F 19 I_w::If3vW1 Legal Description of the Subject Property PARCELI: THE SOUTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION 11, TOWNSHIP 44 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN McHENRY COUNTY, ILLINOIS. et, PARCEL 2: THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 11, TOWNSHIP 44 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN McHENRY COUNTY, ILLINOIS. ALSO PARCEL 3: THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 11 LYING WESTERLY OF THE CENTERLINE OF BARREVILLE ROAD, IN TOWNSHIP 44 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN IN McHENRY COUNTY, ILLINOIS. ALSO PARCEL 4: THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 11, TOWNSHIP 44 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN McHENRY COUNTY, ILLINOIS. ALSO PARCEL 5: THAT PART OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER ALSO THAT PART OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 11 ALL LYING WESTERLY OF THE CENTERLINE OF BARREVILLE ROAD, TOWNSHIP 44 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN McHENRY COUNTY, ILLINOIS. 20 EXHIBIT B Integrated Design District Plan 21 GROUP EXHIBIT C Preliminary Plat and Preliminary Engineering 22 I.D.D. Design Standards: Minimum lot size: Minimum lot width: Minimum front yard setback: Minimum side yard setback: Minimum corner side yard setback: Minimum rear yard setback: Deviation from City Ordinances: FXNTRTT T) Design Standards 9,100 square feet. 70 feet at front setback line 30 feet (with 6 ft. porch encroachment) 7.5 feet 20 feet 40 feet The City expressly approves the following Zoning and Subdivision Control & Development Ordinance Deviations: ' A. The time period for the submittal of the Final Engineering Plans for the First Final Plan, in accordance with the approved Preliminary Plan and Plat of Subdivision shall be two (2) years in lieu of the one (1) year requirement set forth in subparagraph (G) in the review procedures contained in Article XI (the Integrated Design District). The submission of a Final Plat for all or any portion of the Subdivision shall toll the expiration period for the Preliminary Plan and Plat of Subdivision and vest the Developer's rights in the Preliminary Plat. B. A two -foot (2') encroachment for fireplaces and bay windows into the front yard and side yard setbacks; C. A six-foot (6) encroachment for unenclosed porches, porticos and other covered structures into the front yard setback; D. Developer shall be entitled to install the sanitary sewer, storm sewer, water lines and other public utilities in the right-of-way or in other dedicated City easements, but not under the street; E. Developer shall be permitted to use M6-12 mountable curb on all residential streets requiring curb and gutter improvements F. Developer shall be permitted to install Bituminous Driveway Pavement. G. Developer shall be permitted to use a one -inch (1") water service pipe. D-1 H. Developer is permitted a departure from the technical specification standards to allow specific roadway centerline radii to be below the stated 150' radius and to allow the specific tangent lengths between two street intersections to be below the states 100' length. I. Developer is permitted to construct wetland type stormwater management facilities as detailed on the Preliminary Engineering Plans prepared by Cemcon, Ltd.; revised May 18, 2005, consisting of three sheets. !N 0 5 7) 7 io m E 'I • • • • • • n O N CD n O Q. cD O CD cr cr o 071 cn CD as coo CD o_ Q-: � o O o 0 � x � � o o' v� ~' CD � o � 0 � w O � CD O r-- i.. �° .. � ;; CDZ � o o vo ,� �oCD CD�.CD CD n CD �.� C`� O n CD ' CD te a oa.C�C ar b � J m m C o ZI 4. ca zz C. ° o D a a 2z z o _ o ? o R* o o ° n CD IrD Cr1 CD `S CD f� CD o�> CD .� CD C rD CD CD ('D D CD N C � O r7 �' CD /N am ��y,�cz. 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