· partnership, state bank of geneva, as trustee under trust agreement dated december 22, 1997 and...

ELBURN, VILL / ShoDeen Construction Co. (Elburn Station) - E 1031 / Annexation agreement /22610

ANNEXATION AND PLANNED DEVELOPMENT AGREEMENT BETWEEN

THE VILLAGE OF ELBURN, KANE COUNTY, ILLINOIS, AND

COVINGTON COURT APARTMENTS, AN ILLINOIS LIMITED PARTNERSHIP, STATE BANK OF GENEVA, AS TRUSTEE UNDER

TRUST AGREEMENT DATED DECEMBER 22, 1997 AND KNOWN AS TRUST NO. 825, STATE BANK OF GENEVA, AS TRUSTEE UNDER

TRUST AGREEMENT DATED AUGUST 4, 1998 AND KNOWN AS TRUST NO. 847

AND ELBURN STATION LAND COMPANY LLC A DELAWARE LIMITED

LIABILITY COMPANY

Prepared by & Return to: ROBERT J BRITZ Ottosen Britz Kelly Cooper & Gilbert, Ltd. 303 N Main Street Elburn IL 60119 630-365-6441

i

TABLE OF CONTENTS SECTION PAGE 1. Annexation ........................................................................................................................... 21 2. Zoning and Subdivision Code .............................................................................................. 2 3. Village Expenses .................................................................................................................. 43 4. Legal Description ................................................................................................................ 44 5. Acreage ................................................................................................................................. 44 6. Zoning Districts ................................................................................................................... 54 7. Residential and Commercial Uses ..................................................................................... 54 8. Residential and Commercial Composition, Height, Setback Yards and Size ............... 65 9. Landscaping......................................................................................................................... 75 10. Streets ............................................................................................................................... 76 11. Water Supply ................................................................................................................... 97 12. Storm Water ................................................................................................................ 1411 13. Wastewater Treatment ............................................................................................... 1711 14. Village Access Permits and Offsite Easements ......................................................... 2114 15. Recapture (Water and Sanitary Sewer) .................................................................... 2215 16. School, Park and Other Impact Fees ........................................................................ 2316 17. Signs ............................................................................................................................. 2819 18. Road Access Permits ................................................................................................... 2819 19. Residential Minimums ................................................................................................ 2820 20. Changes to Final Plan .................................................. Error! Bookmark not defined.21 21. Preliminary/Final Plan ............................................................................................... 3021 22. Construction ................................................................................................................ 3122 23. Building Permits.......................................................................................................... 3122 24. Model Homes ............................................................................................................... 3224 25. Title Insurance ............................................................................................................ 3325 26. Transfer of Ownerhip .................................................. Error! Bookmark not defined.26 27. Street and Site Cleanup .............................................................................................. 3426 28. Disconnection............................................................................................................... 3427 29. Reserved ........................................................................ Error! Bookmark not defined.27 30. Trees ............................................................................................................................. 3527 31. Special Service Area ................................................................................................... 3527 32. Remedies ....................................................................... Error! Bookmark not defined.29 33. Public sidewalks .......................................................................................................... 3531 34. Fiber Optic Cable ......................................................... Error! Bookmark not defined.31 35. Burying of Utility Lines .............................................................................................. 3531 36. Refined Preliminary Plan/Plat Required .................................................................. 3632 37. Miscellaneous Requirements...................................................................................... 3733 38. Reserved ....................................................................................................................... 4035 39. Recording ..................................................................................................................... 4035 40. Term and Binding Effect ............................................................................................ 4235

ii

41. Notices .......................................................................................................................... 4235 42. Modification................................................................................................................. 4236 43. Severability .................................................................................................................. 4336 44. Compliance .................................................................................................................. 4336 45. Superior to all Mortgages, Liens, and Encumbrances ............... Error! Bookmark not defined.37

iii

LIST OF EXHIBITS

EXHIBIT “A” Legal description of incorporated land (Parcel “A”) EXHIBIT “B” Legal description of unincorporated land EXHIBIT “C” Impact Fee Chart EXHIBIT “D” Master Plan and Design Guidelines EXHIBIT “E” EXHIBIT “F” EXHIBIT “G” EXHIBIT “H” EXHIBIT “I” EXHIBIT “J” EXHIBIT “K”

ELBURN, VILL / ShoDeen Construction Co. (Elburn Station) - E 1031 / Annexation agreement /22610

ANNEXATION AND PLANNED DEVELOPMENT AGREEMENT BETWEEN

THE VILLAGE OF ELBURN, KANE COUNTY, ILLINOIS, AND

COVINGTON COURT APARTMENTS, AN ILLINOIS LIMITED PARTNERSHIP, STATE BANK OF GENEVA, AS TRUSTEE UNDER

TRUST AGREEMENT DATED DECEMBER 22, 1997 AND KNOWN AS TRUST NO. 825, STATE BANK OF GENEVA, AS TRUSTEE UNDER

TRUST AGREEMENT DATED AUGUST 4, 1998 AND KNOWN AS TRUST NO. 847

AND

ELBURN STATION LAND COMPANY LLC A DELAWARE LIMITED LIABILITY COMPANY

THIS AGREEMENT, made and entered into this _______day of

_______________, 20_, by and between the VILLAGE OF ELBURN, an Illinois municipal

corporation, hereinafter referred to as “VILLAGE,” and Covington Court Apartments, an

Illinois Limited Partnership, State Bank of Geneva, as Trustee Under Trust Agreement Dated

December 22, 1997 and Known as Trust No. 825, State Bank of Geneva, as Trustee Under

Trust Agreement Dated August 4, 1998 and Known as Trust No. 847, and Elburn Station

Land Company LLC A Delaware Limited Liability Company, an Illinois corporation,

hereinafter called “OWNER” or “DEVELOPER,” as to the property hereinafter described in

the Boundary Survey attached hereto and marked as EXHIBIT “A” and EXHIBIT,

hereinafter collectively referred to as the “SUBJECT PROPERTY”; and,

WHEREAS, the Boundary Survey, Exhibit “A” depicts and describes property that is

partly located within and partly outside the Village’s corporate boundaries; and,

WHEREAS, a public hearing regarding this Annexation and Planned Development

Agreement was held, pursuant to notice, before the President and Board of Trustees of the

2 ELBURN, VILL / ShoDeen Construction Co. (Elburn Station) - E 1031 / Annexation agreement /22610

Village of Elburn on , 20__, to hear and consider reasons for and

against this Annexation and Planned Development Agreement; and

WHEREAS, not less than two-thirds of the corporate authorities have voted to

approve this agreement.

NOW, THEREFORE, in consideration of the foregoing premises and in further

consideration of the mutual covenants, agreements and conditions herein stated, the parties

hereto agree as follows:

1. Annexation

Subject to the provisions of 65 ILCS 5/7-1-8, l994, as amended, the parties

respectively agree to do all things necessary and appropriate to cause that portion of

the Subject Property located outside the corporate boundaries, and ,as shown and

depicted as the Plat of Annexation, Exhibit “”, to be duly and validly annexed to the

Village as promptly as practicable, after the execution of this Agreement and the

adoption of such other Village Ordinances and resolutions as may be necessary to

implement the provisions of this Agreement, including preliminary Plan approval.

2. Zoning and Subdivision Code

After notice and the conduct of the required public hearings, in the manner

provided by law, the Village shall, annex and zone the Subject SUBJECT

PROPERTY in accordance with the terms of this Agreement, the Master Plan and

Design Guidelines (MPDG) attached hereto as EXHIBIT “___,” and the Preliminary

Elburn Station Plat – Zone A & B attached hereto as EXHIBIT “___,”as a Transit-

Oriented Planned Development (TOD). The SUBJECT PROPERTY shall be

developed in accordance with the Village’s Zoning Ordinance and Subdivision


Control Ordinance, and in accordance with all other applicable Village and County

ordinances, and State and Federal laws, rules and regulations except as such

ordinances shall be expressly modified by the terms of this Agreement, and in the

event of any conflict between the ordinances and regulations of the Village and the

terms of this Agreements, the terms of this Agreement shall be deemed to be

controlling. OWNER shall comply with all Village ordinances except as may be

limited or otherwise varied in this Agreement provided the total number of residential

units, including said multi-family units, does not exceed 2,275. The name of the

development shall be ELBURN STATION.

The Master Plan and Design Guidelines (MPDG) submitted by

Owner/Developer and attached hereto as EXHIBIT “___” address, among other

items, the following minimum standards:

A. Residential units;

B. Use table, including number of units and acreage;

C. Commercial uses identified by acreage, with permitted and special uses as

defined in the MPDG;

D. Residential and commercial composition, height, and setback;

E. Building elevations for single family homes and design guidelines for multi-

family, mixed use and commercial development;

F. Lighting standards;

G. Architectural guidelines;

H. Parking requirements for each zone,

I. Potential bus stop locations;


J. Street classification, including cross sections, trip calculations, bike lanes, and

express bike lanes.

K. Open space and park guidelines

L. Stormwater Management Guidelines

M. Landscape Guidelines

N. Signage System Guidelines

O. Street System Guidelines

P. Preliminary Engineering Plan

Q. Variances to Village Ordinances and Codes

3. Village Expenses

OWNER shall accept full financial responsibility for payment of all the

Village’s reasonable out of pocket expenses in accordance with the Village’s

Subdivision Control Ordinance, Zoning Ordinance, and other ordinances and

amendments thereto, including but not limited to reasonable engineering, planning,

and attorney’s fees.

4. Legal Description

A legal description of the SUBJECT PROPERTY is attached hereto and made a

part hereof and depicting Parcel “A” and Parcel “B”, with separate legal descriptions

are attached hereto and marked Exhibit “”.

5. Acreage

The total acreage of the SUBJECT PROPERTY is set forth on the Boundary

Survey, a copy of which is attached hereto and made a part hereof as EXHIBIT

“___.”


6. Zoning Districts

The VILLAGE shall provide zoning as a Transit-Oriented Planned

Development, hereinafter referred to as “TOD”, and as set forth in EXHIBIT “___.”

Except as otherwise specified herein, development of all areas shall be processed in

accordance with the Village Subdivision Control Ordinance procedures.

76. Residential, Industrial and Commercial Uses

A. Commercial, residential, industrial, and related uses, shall be permitted as

shown on the Elburn Station Concept Plan attached hereto as EXHIBIT “___,”

the MPDG attached hereto as EXHIBIT “___,” and the Preliminary Plan

attached hereto as EXHIBIT “___.” There shall be a maximum number of

residential dwelling units, including multi-family units of 2,275 on the

SUBJECT PROPERTY. Unless otherwise limited by prior annexation

agreements, no more than 218 residential building permits shall be issued in any

one calendar year. Said amount shall be cumulative from year to year on a pro

rata basis commencing with the last of the parties’ execution of this Agreement.

No more than 545 residential building permits can be carried over from year to

year. If market conditions warrant OWNER may request an increase in the

permitted number of building permits, which increase may be approved by a

majority vote of the Board of Trustees at its sole discretion, provided said

increase does not violate the provisions of any earlier annexation agreements on

other properties. The foregoing building permit and density limitations and

restrictions shall not be applicable to multi-family, commercial or industrial

building permits. No other subsequent development within the Village shall be


allowed more building permits per calendar year than an amount equal to 9.6%

of the total residential units approved in that development. If a development is

granted an increase in the percentage of building permits the OWNER

percentage of building permits shall increase to that percentage. Owner shall

have the right to seek injunctive relief, but not money damages in the event of a

breach by the Village of the foregoing building permit and density limitations

and restrictions.

B. Development of the multi-family area for multi-family units or age targeted

housing, shall require prior approval of the architectural, site plan, engineering,

landscaping and photometrics from Village staff, which shall be in accordance

with the MPDG specifications. If the above significantly differ from the MPDG

specifications than it must get approval from the Village Board following a

review by the Planning Commission, which approval shall not be unreasonably

withheld.

C. The construction of all buildings on the SUBJECT PROPERTY must comply

with all architectural related guidelines contained in the MPDG.

D. Development of the SUBJECT PROPERTY may be in any phase as shown on

the phasing plan in the MPDG.

8. Residential and Commercial Composition, Height, Setback Yards and Size

The height, setback yards and minimum lot size and other requirements in all areas

shall conform to those provisions of the Elburn Station Preliminary Plan, Zone A&B

and the MPDG.


9. Landscaping

The MPDG contains landscape guidelines for the development. Said landscape

guidelines shall include a tree list acceptable to the Village, median plantings, parking

lot plantings, buffer, screening, and open space plans, information that is to be

followed when preparing the final landscape plans for review and approval by the

Village Boardplans. Said plans shall include types and placement of streetscape

amenities, including but not limited to benches, picnic tables, bike racks, and trash

containers to be provided by Owner/Developer. Separate plans shall be submitted for

Anderson Road, as prepared by KDOT. All of the foregoing shall be acceptable to

the Village. Landscape plans shall be submitted at time of Final Plat and shall be

approved by Village staff and must conform to the MPDG guidelines.

10. Streets

Preliminary Engineering Plan dated January 12February 27, 2012, and prepared by

Sheaffer and Roland, are hereby approved as part of this Agreement, for the entire

parcel covered by the Preliminary Plan, which provides for street improvements

including, but not limited to:

A. All streets submitted in Final Plat and Final Engineering of any Unit or Phase

shall conform to the street cross-sections and pavement cross-sections set forth

in the approved Preliminary Engineering Plan.

B. All streets shall have the names as shown in the Preliminary Engineering Plans

and in the MPDG.

C. Parking shall be permitted on streets as shown on the Preliminary Engineering

Plan.


D. When applicable,A access to perimeter State and Kane County roadways shall

be approved by IDOT and Kane County Division of Transportation respectively.

E. Bike Trails shall be provided in accordance with the MDPG and as shown on the

Preliminary Engineering Plans.

F. Developer may begin mass grading and all utility and site development when

Anderson Road project (between Keslinger Road and IL Route 38) has been

awarded by Illinois Department of Transportation to Kane County Division of

Transportation, however, no building permit’s may be issued any earlier than 90

days prior to Anderson Road is scheduled to be substantially complete. If the

Anderson Road project is not awarded, this Annexation and Planned

Development Agreement together with Preliminary Plan approval, Zoning, and

Subdivision Plan Approval shall be null and void all land disconnected and all

approvals deemed null and voild unless parties agree otherwise.

Owner shall provide all streets, alleys and access drives as shown on preliminary engineering

dated February 27, 2012 except for the following streets that will provided by the Village of

Elburn and/or the Kane County Division of Transportation through an Intergovernmental

Agreement between the Village and KDOT:

1. Anderson Road

2. Anderson Road intersections with all intersecting streets (IL Route 38,

Prairie Valley, Hicks, Station Blvd, Westhaven, and Keslinger Road) to the tangent points of

the intersecting street.

3. Prairie Valley Drive from Anderson Road to the west connecting in with

the existing Prairie Valley Drive.


4. Hicks Drive from Anderson Road to the west connecting in with the

existing Hicks Drive

5. Metra access road

Owner shall provide all recreational paths shown on sheet PP7 except for the following that

are to be provided by the Village of Elburn and/or the Kane County Division of

Transportation through an Intergovernmental Agreement between the Village and KDOT.

1. All paths and sidewalks within the Anderson Road Right of Way

2. Anderson Road underpass (tunnel) within the Right of Way

3. All paths on currently dedicated streets or open spaces to interconnect to

the proposed paths

4. Path on Prairie Valley Drive from Anderson Road to the west connecting

in with the existing Prairie Valley path or sidewalk system.

5. Path on Hicks Drive from Anderson Road to the west connecting in with

the existing Hicks Drive path or sidewalk system

6. Path on the proposed Well sites

The Village of Elburn and/or the Kane County Division of Transportation through an

Intergovernmental Agreement between the Village and KDOT will provide:

1. Storm Water System for and related to Anderson Road improvements

2. Traffic signals at the intersections of Anderson Road/IL Route38 and

Anderson Road/Keslinger Road.All of the aforesaid improvements are to be constructed by

Owner/Developer at Owner/Developer’s sole expense, unless otherwise provided herein.

11. Water Supply

Preliminary Engineering dated November 11, 2011February 27, 2012, and Water

Comment [EEW1]: Still being discussed with KDOT via IGA


Supply Distribution System and Sanitary Sewer Collection System Preliminary

Engineering Report dated September 20, 2011 are hereby approved as part of this

agreement for the entire parcel covered by the Preliminary Plan, which provides for

water improvements including, but not limited to:

A. General:

1. Water connection fees as set forth in the Village’s Water Ordinance, as

from time to time amended, may be used at the Village’s sole discretion

for any part of the Village water system. Fees associated with the water

improvements related to Elburn Station may be used at Village’s sole

discretion for any Village-Wide or local water system improvements.

2. Water connection fees as set forth in the Village’s ordinances may be

adjusted from time to time and shall be applicable to the SUBJECT

PROPERTY. Fees associated with the water improvements related to the

Elburn Station shall be based on the formula established in EXHIBIT “”.

The fee shall be an existing water fee plus the proposed incremental

pricing in EXHIBIT ””.

3. Pressure Adjusting Station and water facilities located at the well and

treatment plant site shall be designed to be SCADA ready for SCADA

monitoring of the facilities. All SCADA equipment shall be compatible

with the SCADA system selected by the Village.

B. Specific Facilities to be constructed by OWNER without benefit of cost

recapture:

Comment [EEW2]: RSA providing information through study


1. Construct one prefabricated pressure regulating station located at Hicks Street

and Logan Street consisting of:

a. Isolation valves to shut station down.

b. One exterior 12” station by-pass water main with shut-off valve.

c. One 8” combination pressure reducing and pressure sustaining valve with

the ability to automatically pass water back to the higher pressure zone

during emergency situations.

d. Booster pumping equipment consisting of two pumps each with a

minimum capacity of 900 gpm to convey water from the lower pressure

zone to the higher pressure zone in case of an emergency.

C. Specific Facilities to be constructed by OWNER and subject to recapture for

oversizing as set forth in EXHIBIT ””.

1. Connect to Village’s existing water distribution system at the locations shown

on EXHIBIT “” and construct the 12” oversized watermain shown in

EXHIBIT “” to provide adequate fire flow protection to the Elburn Station

development and to future developments.

2. Two parcels shown in EXHIBIT “” with each site adequate size to encompass

the well, treatment, auxiliary electric power, pumping, and storage facilities as

envisioned in EXHIBIT ””. The first site is 0.72 acre located in Zone B of the

Elburn Station along Hicks Drive and a second site is 0.95 acre located in

Zone A of the Elburn Station on an extension of Still Meadows Lane the value

of these sites shall be credited towards fees to be paid by the OWNER. The

current value is $80,000 per acre and would have a value of $57,201 in Zone B


and $74,380 in Zone A. The value will escalate by 2.35% with compound

interest at the same rate as the cost of the improvement, commencing with the

approval of this Agreement. The OWNER shall convey the ownership of the

Hicks Drive site to the Village of Elburn and provide access to the site at least

one year before total water service population reaches 11,997 PE which is

estimated to be Year 2016. The OWNER shall convey the ownership of the

Still Meadows site at the time of Plan approval of the first unit in Zone A.

D. Specific Facilities to be constructed by VILLAGE with reimbursement via fees

paid in Paragraph 11.A.2., as well as fees paid by others ,above:

1. At the north site located on Hick’s Drive:

a. One new deep well, well pump, and control building housing Radium

removal treatment facilities, chemical feed equipment, electric controls,

auxiliary power (either by emergency generator or dual power feed),

related site work, wastewater lift station and force main, and property

space for building additions to house future high service booster pumps

and property space for a ground level water storage tank all as shown on

EXHIBIT ””.

b. Well shall be a “deep well” of approximately 1300 feet in depth and will

consist of a 20” diameter casing and a pitless adapter of appropriate size.

c. Following the drilling and casing of the well pump and prior to design and

installation of well pumps, conduct a three day aquifer pump test of the

well to determine yield and potential interference; obtain water samples


and analyze samples for all contaminants listed in the Primary and

Secondary Drinking Water Standards.

d. Initial Well Pump shall be capable of pumping a minimum of 700 gpm to

serve the Center of Elburn Station maximum average daily water demands.

(Unless restricted by unexpectedly low specific capacity of the well, the

well casing shall be capable of installing a 1100 gpm well pump for future

Village demands).

e. Control Building shall be of the general layout as set forth in EXHIBIT K

and will provide housing for a water meter an Radium Treatment Facilities,

and chemical feed equipment to inject hypo-chlorite and fluoride, all

suitable for conveying and treating 1100 gpm; electrical controls and

monitoring equipment; auxiliary power source (either by an

engine/generator set or second power source from ComEd); wastewater lift

station and force main; and other site work.

f. The site shall have space for future facilities, as shown on EXHIBIT K,

which are needed to serve future developments, other than Elburn Station,

and include an addition to building to house high service booster pumps

and a one million gallon ground water storage tank to be built on the site in

the future.

f.g. Owner shall provide the potable water piping system as shown on

Preliminary Engineering dated February 27, 2012 except for potable water

wells, storage, treatment, site related and interconnections these items and

the Owner provided water piping system. The Owner will pay an impact


fee as shown in exhibit ___in lieu to the Village of Elburn for providing

the potable water wells, storage, treatment facilities, related site

improvements and the interconnections with the Owner provided water

system. The Village of Elburn shall provide all potable water wells,

storage or treatment facilities to adequately serve the development. The

Village provided well will be a minimum of 700 gallons per minute and

include any treatment facilities as stated in paragraph 10D. Owner shall be

entitled to recapture for the oversized water main as shown in exhibit F.

All of the aforesaid improvements are to be constructed by Owner/Developer at

Owner/Developer’s sole expense unless otherwise noted.

12. Storm Water Management

Preliminary Engineering Plan dated November 11, 2011February 27, 2012 Aand

Preliminary Storm Water Management Plan dated October 22, 2008 and most recently

revised on September 20, 2011 are hereby approved as part of this agreement for the entire

parcel covered by the Preliminary Plan. Anderson Road crossing and Elburn Station

CLOMR application dated December 4, 2009 as approved by FEMA Case No. 10-05-

2506Rare hereby approved as part of this agreement for the entire parcel covered by the

Preliminary Plan subject to the following conditions:

A. Storm Water Facilities Construction: Owner shall be responsible for construction

of the storm water management facilities as depicted on the Preliminary Engineer

Plans in substantial conformity with the Preliminary Engineering Plans and

subject to review and approval of Final Engineering Plans, which approval shall


not be unreasonably withheld, conditioned or delayed. Developer shall convey

title to all storm water management facilities depicted on the Preliminary

Engineering Plans to the Village, or to such other entity as the Village shall direct,

as “Public Improvements” following their completion by OWNER and the

inspection and approval of such improvements by the Village Engineer.

Following acceptance by the Village, OWNER shall have a one year maintenance

obligation.

B. The detention provided for the SUBJECT PROPERTY shall meet all applicable

Village and Kane County Stormwater Ordinances.

C. Prior to Anderson Road Construction:

1. OWNER shall be responsible to coordinate and verify the Kane County

Department of Transportation (KDOT) plans for ponds ME-1, ME-2,

floodplain re-grading and culvert crossings are consistent with the intent of

the Conditional Letter of Map Revision (CLOMR)_ modeled cross sections for

“Zone B” as approved by the Federal Emergency Management Agency

(FEMA) and sufficient information is provided on KDOT’s plans to construct

the improvements in conformance to the CLOMR. OWNER must meet all

FEMA requirements.

At a minimum, station and elevation information of the proposed Hydrologic

Engineering Centers River Analysis System (HEC-RAS) computer model shall be

annotated on the proposed KDOT plans.

D. Prior to Submittal of Final Engineering of any Unit or Phase of the Subdivision:


1. Zone A (South of the UPRR): Proposed development of “SE-1” is dependent

on construction of the outfall and could potentially be impacted significantly.

If the outfall is unable to be constructed per Preliminary Engineering dated,

January 12, 2012, additional land shall be required to provide the required

detention volume affecting the plan development.

2. Zone B (North of UPRR): OWNER shall provide As-built drawings (either

obtained by KDOT or OWNER) certified by the design engineer showing the

proposed “Zone B” improvements were constructed per plan and the required

amount of compensatory storage and detention volume has been provided or

the remaining work shall be done as part of the improvements contained in the

final engineering. Changes to the berm overflow elevations, weir length,

culvert sizes or inverts may affect the final Letter of Map Revision (LOMR)

and/or the amount of detention provided. “Developed” area for “Zone B” may

need to be adjusted if sufficient detention volume is not provided per the

preliminary engineering plan in accordance with the CLOMR. A Letter of

Map Revision (LOMR) shall be obtained prior to any building construction

near existing or proposed regulatory floodplain.

3. Additional General Considerations:

a. Detention and retention volumes calculated in the Preliminary Engineering

Plan and Preliminary Stormwater Management Plan are based on

anticipated land uses. Final Engineering Plans shall reflect detention and

retention volumes that are based on detailed curve number and time of


concentration calculations are based on anticipated land uses that meet

Kane County stormwater requirements.

b. Finished floor elevations, storm sewer locations, storm sewer sizing and

overflow routing shall be designed, reviewed and approved with final

engineering.

c. Letters of Map Revision (LOMR) shall be obtained for all lots within the

regulatory floodplain prior to building construction on those lots.

d. Restrictions shall be required for the rear and side yards along the overflow

route on the east property line of “Zone B”. Fences, landscaping or other

obstructions should not be permitted in the proposed overflow route.

Overland flow paths shall be designed per Section T201(d) of the Kane

County Technical Guidance Manual.

e. Final engineering plans shall meet the requirements of FEMA Technical

Bulletin 10-01.

All of said improvements are to be constructed by Owner/Developer’s sole expense.

13. Wastewater Facilities

A. Sanitary Sewers

1. A plan of the sanitary sewer collection system for the SUBJECT PROPERTY

is included in the Preliminary Engineering Plan Documents dated January

12February 27, 2012. Calculations of the sizing of the sanitary sewer

collection system have been provided to confirm the pipe sizes and invert

elevations of the sanitary sewer collection system shown. Each subsequent

Comment [EEW3]: Shodeen not provided on attachment, Shodeen please provide stormwater improvement detail information


unit or phase submitted for approval shall conform to the Preliminary

Engineering Plan Documents and calculations or submit reasons for non-

conformance and impact on subsequent units in the development.

2. Prior to any submission of drawings of any infrastructure improvements for

the first unit in Zone A of the SUBJECT PROPERTY, OWNER, with Village

assistance, shall provide field survey data on coordinate location and invert

elevations of the both ends of the sanitary sewer casing pipes installed under

the UPRR and the METRA access roadway to verify the sanitary sewer

interceptor constructed in Zone A of the development shall meet the invert

elevations of the existing casing pipes. Elevations are to be based on the same

datum as utilized by the Developer in the surveys of the SUBJECT

PROPERTY.

3. Sanitary Sewers Subject to Recapture. Thirty days prior to drafting Final

Engineering for phases 3, 5, 7, 8 and 9, as shown in the MPDG, the sewer size

construction shall be re-evaluated by the Village Board and Staff at the Village

expense. The Village shall decide whether the Village desires oversizing, at

its expense, otherwise the developer shall proceed with the improvements

required for Elburn Station Development only.. If the Village deisres

oversizing, Village shall pay for all engineering, labor, material, and

inspections, related to the oversizing within sixty (60) days of Owner

invoicing Village for said work.

A. Wastewater Lift Stations and Force Main.

1. Pouley Road Lift Station, Constructed by OWNER and cost shared by Village:


a. The control cabinet shall be designed to be SCADA ready for SCADA

monitoring of the facilities. All SCADA equipment shall be compatible

with the SCADA system selected by the Village.

b. The proposed lift station shall consist of two submersible pumps within a

wet well meeting IEPA standards and sized for Elburn Station only, and

shall be provided with flow metering, SCADA-ready monitoring, auxiliary

power (either by stationary engine/generator set or a second power feed

from ComEd which must extend from a separate substation and power line

than the primary power source), site access and security, and aesthetic

considerations to be approved by the Village. Force main shall be ductile

iron or other material acceptable to the Village and include shut-off valves

and air relief/vacuum valves.

2. Blackberry Creek Lift Station No. 2 Phased Modifications to be improved by

the Village:

a. Phase 1 – Utilization of existing station without modifications until near

capacity is reached (estimated at 2023 with projected build-out schedules)

at which time Phase 2 Modifications are to be completed.

b. Phase 2 Modification (Estimated in 2023) Addition of third pump for

additional PE up to the maximum practical limitations of three pumps

through the existing 12” Forcemain. Cost sharing of improvements shall

be proportioned in accordance with the formula shown in EXHIBIT’s “”

and ””.


c. Phase 3 Modification (Estimated in 2034 based on projected build-out

schedules) – Construct new 16” Force Main from the existing Lift Station

to the existing wastewater treatment plant. Cost of improvements shall be

apportioned in accordance with the formula shown in EXHIBITs E and C.

B. Wastewater Treatment Plant.

1. OWNER agrees to pay a Wastewater Treatment Capacity Fee (WTCF) per

EXHIBIT “H” in addition to the Water and Sewer Connection Fees in effect at

the time of applying for Building Permit, with a 3% CPI per year increase.

The WTCF is intended to compensate the Village for capacity to be utilized by

the Subject Property. Said WTCF fee shall be used by the Village for

Wastewater Treatment Plant Expansion and Upgrades only.

a. The WTCF shall be paid to the Village at the time of applying for a

building permit for each dwelling unit in the Subject Property.

b. The Village of Elburn agrees to use best efforts to provide wastewater

service to the Subject Property, subject to any restriction and limitation

imposed on the Village by IEPA. The Village of Elburn shall use best

efforts to return any developer paid fees to the developer if there is any

restriction or limitation, if Village is unable to provide wastewater services

to any P[lantted lots.,.

Owner shall provide the sanitary sewer piping system as shown on Preliminary

Engineering dated February 27, 2012 except for the following that will be provided

by the Village of Elburn:

Comment [EEW4]: RSA doing study


1. All upgrades and improvements to the Blackberry Creek Lift Station to handle

all the flows from the Elburn Station Development

2. Sanitary sewer service to the two proposed well sites

b. All improvements for the existing Waste Water Treatment Plant to

accommodate all sanitary flows for Elburn Station.

All of the aforesaid improvements shall be constructed by Owner/Developer at

Owner/Developer’s sole expense, unless otherwise noted.

14. Village Access Permits and Offsite Easements

The Village shall grant the OWNER, without charge, the necessary public

right-of-way permits as may be required across VILLAGE-owned or controlled

property for the construction, installation or repair of customer water, wastewater,

storm and utility lines and services as are required for the development of the

SUBJECT PROPERTY. OWNER will encourage installation of fiber optic cables.

OWNER, at its expense, shall agree to repair and replace in accordance with the

original sizes, standards or topography, any VILLAGE property damaged or disturbed

by reason of its work in connection with the foregoing in a manner satisfactory to the

VILLAGE.

OWNER shall obtain at their sole expense any required easements across

private property. Village agrees to exercise its eminent domain power to obtain said

easements, if necessary and if permitted by State law within a reasonable period of

time after requested by OWNER. OWNER shall reimburse VILLAGE all of

VILLAGE’S costs and expenses pertaining thereto, including its reasonable attorney

Formatted: Indent: Left: 0.5", No bullets ornumbering


fees, costs of acquisition and award price.

15. Recapture (Water, Sanitary Sewer, Road Improvements, & Traffic Signals)

In accordance with the VILLAGE’S Subdivision Control Ordinance, the

OWNER shall be allowed to recapture costs as specified in this Agreement for

engineering, legal fees, construction, materials and interest; not to exceed the prime

lending rate plus 2%, however, in no event shall the recapture interest rate be less

than4%. The prime rate used shall be the rate published on the 1st Monday in January

in the Wall Street Journal. Recapture shall be permitted for over-sizing or extensions

to benefit off-site properties for any constructed water mains, sanitary sewer mains,

road improvements, traffic signals and appurtenances to each of them which are not

required to serve the SUBJECT PROPERTY. In determining any over-sizing, the

minimum design standards shall be as required by the VILLAGE’S Ordinances. The

corporate authorities of the Village and the OWNER shall determine the real estate

that may benefit by the installation of said water mains and appurtenances, sewer

mains and appurtenances. The total expense incurred for OWNER’S share of the cost

of the installation of the water, sewer mains and other oversized improvements to,

shall be based upon the calculation provided by OWNER and approved by the Village

Engineer. The Village shall assess against and collect from the person or persons

owning and developing any of the property benefited the apportioned share as

determined by the Village Engineer and the OWNER at such time as the benefitted

property owner seeks final Plat approval, or if subdivision approval is not sought, at

time of zoning approval. All such Village calculations shall be final and non-

reviewable by benefited property owner. All benefited property reimbursement


collected by the Village pursuant to this Agreement shall be paid to the OWNER, or

its successors or assigns (as they may from time to time designate) within sixty (60)

days after collection. It is understood and agreed that the Village’s obligation to

reimburse the OWNER shall be limited only to funds collected from the properties

being benefited. Interest payments made hereunder shall be made solely out of said

funds. This Agreement shall not be construed as creating any obligation upon the

VILLAGE for any reason to make payments from its general corporate funds or from

any other funds except those specified hereinabove. OWNER shall be entitled to

recapture the construction cost, as calculated by the OWNER and approved by the

Village Engineer for the properties benefited. Developer shall record at its expense

the approved recapture agreements against the benefitted properties. Village shall be

paid a fee of $100.00 as an administrative fee for each recapture fee plus out of

pocket expenses. Owner shall be obligated to make the initial calculation of each

such recapture fee to be collected.

A recapture agreement is attached hereto and marked EXHIBIT .

16. School, Park and Other Impact Fees

The OWNER shall make land/cash school and parks dedication/contribution to

the Village pursuant to the land/cash contribution requirements of the Village of

Elburn’s Subdivision Control Ordinance and in accordance with the fee chart attached

as EXHIBIT “ “.

This contribution may be reduced if the Kaneland Community Unit School

District 302 elects to accept a land contribution to expand the John Stewart

Elementary School Site, paid at the time of building permit. Said property shall be


free of any liens or encumbrances. If the Village of Elburn reduces land/cash fees

then the reduced fees shall apply to the OWNER at that time.

In addition to the foregoing OWNER shall pay to Kaneland Community Unit

School District 302 the capital improvement development impact fee contribution

mandated by the VILLAGE’s School Impact Fee Ordinance to be paid in accordance

to the mandate at the time of building permit. If the Village of Elburn reduces impact

fees then the lessor shall apply to the OWNER.

In addition, the OWNER shall convey to the Village of Elburn the fully

improved park sites designated on the Preliminary Plan (as defined in the Elburn

Subdivision Control Ordinance). Said park sites shall not be used for a well, water

tower, water treatment or other infrastructure improvements. The MPDG open space

and park plan shows detention areas that are not calculated in the overall park

requirements, but areas may be used as recreational space. The OWNER was

required to dedicate +- 40 acres of park and recreation space. The OWNER has

identified and has agreed to donate in excess of this amount. Owner OWNER is not

required to make a cash park contribution to the Village, in addition to the park

improvement requirements of the Village of Elburn Subdivision Control Ordinance.

Improvements to make to said park sites shall include the followingThe OWNER

and/or Village may elect to make the following improvements to the park sites:

equipment, fencing, play structures, sidewalks, parking lots, benches, backstops,

structures, impervious areas, grading, seeding, and landscaping. The OWNER may

elect to make the improvements, and/or, the Village may elect to match the OWNER

50/50 for the improvements, and/or, the OWNER and Village may receive a grant and


would participate 50/50 on the local match of the grant received, and/or the Special

Service Area may elect to provide funding for the improvements. If the Village of

Elburn reduces land/cash for parks fees then the lesser requirement shall apply to

Owner prospectively.

In addition to the park dedications the OWNER shall provide for the open

space sites depicted on the preliminary plan. The open space areas of the plan shall

be suitably improved at Owner’s expense, with trails and other substantial landscape

features acceptable to the Village and consistent with the MPDG. The plan for

conveyance of open space for purposes of ownership shall be made to the Village and

maintenance responsibility shall be acceptable to the Village via a special service area

for open space and, stormwater maintenance. Prior to sale of any lots OWNER

agrees to the formation of a Special Service Area, similar to the Ordinance attached as

Exhibit “”, comprising the SUBJECT PROPERTY for the purpose of maintaining and

operating any or all of the following public improvements: storm water management

facilities, (including but not limited to storm water detention and retention basin

areas, pond aerators, inlet and outlet structures, connection storm sewers, connecting

surface drainage channels, subsurface drainage systems) dedicated public access

ways; parks and open space and facilities located therein including but not limited to

bike paths;, signage and entry way monuments, street sweeping, sidewalks and trails,

street lights and entry lighting, fencing, flag poles, street identification signs, traffic

controls, maintenance of vegetation in the right-of-ways, street furniture, pest

control, special service area office and the hiring of employees and/or contractors to

administer and maintain same, shown on the SUBJECT PROPERTY’S preliminary


Plan and EXHIBITs attached hereto. OWNER and its successors shall not object to

the ordinance creating said Special Service Area, including the maximum tax rate of

___ cents per $100.00 of assessed valuation, and the terms set forth in said ordinance.

OWNER shall actively support and cooperate with the VILLAGE regarding the

establishment of said Special Service Area. OWNER shall pay all costs and expenses

associated with the establishment of said Special Service Area, including, but not

limited to: notice/publication costs, preparation of plats and legal descriptions,

engineering fees, legal fees and planning consultant fees. OWNER shall deposit with

the VILLAGE, in escrow for establishing the SSA, a cash sum equal to the estimated

afore described costs and expenses. Said SSA shall be establishedAn adoption of an

ordinance porposing the establishment of the said SSA shall be approved

concurrently with the approval of the annexation Annexation agreement Agreement

and annexationPlanned Development Agreement. The Special Service Area

improvements shall be dedicated to the VILLAGE by phasing at the time final Plans

are approved and recorded. OWNER shall be responsible for maintaining the property

and improvements subject to the Special Service Area at their sole expense until

acceptance of said improvements by the VILLAGE, at which time the SSA shall be

responsible for maintenance.

The calculations for total storm water detention requirements for the

SUBJECT PROPERTY must include the park sites. OWNER shall, except as

provided elsewhere in this Agreement, comply with the valid regulations set forth in

the attached Preliminary Engineering EXHIBIT; however, OWNER shall not be

required to make any further land dedications with respect to the SUBJECT


PROPERTY.

OWNER agrees to abide by cash payments for the subject property as required

and as set forth for purposes of library, police, fire/ambulance protection, and public

works as set forth on EXHIBIT “___,” (less land contributions and land

improvements), attached hereto and made a part hereof. Said payments shall be paid

at time of building permit application, and as a condition of issuing said building

permit, in accordance with the impact fee chart attached as EXHIBIT “”. VILLAGE

agrees that it will not impose any lesser fee for any other property re-zoned or

annexed development during the term of this Agreement. If the Village of Elburn

reduces impact fees then the reduced fee shall apply to the OWNER prospectively.

Owner acknowledges that the ultimate disposition of said fees shall be at the Village’s

sole discretion and the OWNER and DEVELOPER shall have no standing to

challenge said discretion.

OWNER has agreed to pay to the VILLAGE per Exhibit “” for transportation

and other VILLAGE impacts. Said amount shall be paid at the time of building

permit in accordance with the impact fee chart attached as EXHIBIT “”. OWNER

shall pay the VILLAGE the sum of $_______ per dwelling unit at the time of

building permit OWNER shall additionally pay the Village for its costs of acquiring

and installing outdoor warning sirens to be paid at time of platting for such phase

within which the siren is to be installed. The cost shall not exceed $21,050.00 for all

sirens and land and paid up frontat time of installation with an annual escalator of 5%

per year.


17. Signs

OWNER shall be permitted to erect and display signs as outlined in the

MPDG. Other than the foregoing OWNER shall abide by the VILLAGE Sign

Ordinance, including obtaining any permits and variances that may be required.

OWNER shall construct one wooden “Village of Elburn” sign of the same size, style

and type as the two existing Village of Elburn signs on Route 47. The sign shall be

located on Route 38 as directed by the Village of Elburn.

18. Road Access Permits

OWNER has submitted the Preliminary Plan to IDOT and KDOT who have

reviewed and commented on the Plan. See approval letters attached as EXHIBIT “”.

OWNER shall pay its proportionate share of all costs related to any permits and

construction improvements, including stop lights and turn lanes at intersections and

entrances to the subject property from Keslinger Road and Route 38 that may be

required by KDOT and/or IDOT. OWNER shall be entitled to recapture for

roadways.

19. Residential Minimums

A. OWNER shall establish certain minimum requirements which shall be

comparable to other residential developments in the Village’s Facility

Planning Area in a Declaration of Covenants, a draft copy of the Declaration

of Covenants attached hereto as EXHIBIT “___”. Said Covenants shall be

recorded at the time of recording of each Final Plat for residential property.

The Declaration of Covenants, Conditions and Restrictions shall provide for

enforcement by property owners within the SUBJECT PROPERTY and for


the recovery of attorney fees, if successful. Said covenants shall also

expressly provide that the Village is not a party thereto and therefore has no

obligation to enforce the same. Said covenants shall be reviewed by the by the

Village Board prior to the approval of the first Final Plat of residential

development. The Covenants, Conditions and Restrictions shall be recorded at

the Kane County Recorder’s Office by the OWNER at Owner’s expense, prior

to issuance of the first building permit for a residential unit. Said covenants

shall be in effect for 20 years and shall not be changed or amended without

Village review.

B. The following standards shall apply to residential development in the

SUBJECT PROPERTY, and shall be incorporated into covenants prepared and

recorded as part of each final plat of subdivision for single family detached

housing: seeding of lawns; prohibition of construction of identical models with

identical elevations adjacent to or directly across the street from one another;

dwellings of the same color siding to be separated by one (l) or more dwellings

with different color siding; the prohibition of construction of buildings in, on

or otherwise obstructing pedestrian easements shown on the Preliminary Plan.

Seeding of lawns is acceptable unless sodding is required to satisfy

VILLAGE’S Soil Erosion Control Ordinance.

C. Parking requirements for residential uses shall be as defined in the MPDG,

except for multi-family buildings. For multi-family buildings, the initial

minimum on-site parking shall be 1.25 spaces per dwelling unit as outlined in

the MPDG. In addition, the OWNER shall land bank, within 500 feet of


multi-family buildings, sufficient space to accommodate an average of a total

of 1.75 spaces per dwelling unit as outlined in the MPDG. After construction

and occupancy of a minimum of 100 multi-family units, and prior to

construction of the 101st multi-family unit, a parking study, prepared at

Owner’s expense, shall be submitted to the Village. The Village Board shall

review such information, and shall make a determination as to the adequacy of

parking for multi-family units. If the Village Board finds that existing parking

is adequate for the first building, the land-banked space shall be released for

future development and additional units may be constructed with 1.25 spaces

per unit. If the Village Board determines that additional parking is needed, the

OWNER shall provide 1.75 spaces per unit, or another lesser quantity found

acceptable to the parties. This process of providing a parking study prior to

construction of additional units shall be repeated prior to the earlier of the

construction of the 201st unit, or construction of the fifth multi-family building.

At completion of the parking study for the 4th building of the same design, the

Village Board shall make a final parking requirement for all future multi-

family structures.

20. Preliminary/Final Plat

The Village Board hereby approves the Preliminary Plan attached hereto as

EXHIBIT “___” and the Preliminary Engineering, dated November 11, 2011February

27, 2012 prepared by Sheaffer and Roland. Approval of the preliminary Plan and

Preliminary Engineering does not preclude the VILLAGE from requiring reasonable


and justifiable changes and modifications to the MPDG, Preliminary Engineering or

Preliminary Plan, prior to approving the initial final plat provided such changes or

modifications are minor or major changes requested by OWNER as defined in the

Village of Elburn’s Zoning Code Article XI, Section 11.8 B. (1). The final plat will

be based upon a detailed, one-foot contour interval topographic survey, and include a

tree survey, and a detailed grading plan, and road profiles. The Village agrees to

approve the final plat and final engineering provided they conform to the revised

preliminary Preliminary Plan and other revised submittals except as herein modified.

21. Construction

OWNER may, upon approval of Final Plats, engineering, storm water and

landscaping related thereto, proceed with construction and improvement of the

SUBJECT PROPERTY as shown on EXHIBIT “___,” provided all applicable IDOT,

KDOT, Illinois Environmental Protection Agency, and U.S. Army Corps of Engineers

permits have been obtained and all applicable VILLAGE fees have been paid and

applicable ordinances have been complied with, including deposit or required

security.

22. Building Permits

Upon 90 days prior to the scheduledon substantial completion of Anderson

Road and the public improvements for a phase, including installation of: water,

sanitary sewer, storm sewer, curb and gutter, the base course of the roadway and site

grading, single family building permits may be issued to allow construction. Model

homes may be started at the time gravel roads are constructed to the lot and approved

for the use of emergency vehicles, but not occupied. A letter shall be issued by the


Village Engineer stating that the improvements for that phase are substantially

completed before building permits may be issued for sold units. No temporary

occupancy permit shall be used until water and sanitary sewer operating permits are

issued by IEPA for watermain and sanitary sewer extensions serving the affected lot.

No permanent occupancy permit shall be issued until water and sanitary sewer

operating permits have been issued by IEPA for the watermain and sanitary sewer

extensions for the affected lots; and storm sewer, electric, curb and gutter, street

lighting and sidewalks necessary for the property to be occupied have been completed

and the first lift of bituminous material for the streets have been installed and

approved by the VILLAGE. Temporary occupancy permits may be issued if winter

conditions exist.

23. Model Homes

Notwithstanding the conditions stated in Paragraph 22 “Building Permits”

commencement of construction of model homes shall be permitted within a phase

following recording of the final plat of said phase, under the following conditions:

A. Model homes shall only be used for sales models and/or sales office for a

period of 36 months from the date a temporary occupancy permit is issued and

at no time shall the units be used for living purposes until issued a permanent

occupancy permit by the Village of Elburn. Said time period may be extended

at the sole discretion of the Board of Trustees.

B. A temporary occupancy permit is required to be issued before use as a model

home or sales office is commenced.

C. VILLAGE shall have continuing right to inspect the model home to verify that


the premises is used solely as a model home and sales office.

D. Model Parks, as noted on the Centre at Elburn Station Concept Plan – Zone

A&B are permitted. A variety of single family product will be allowed in the

model park consistent with the MPDG.

E. Fences surrounding two or more model homes that corral and channel

customers shall be permitted.

24. Title Insurance

OWNER shall, at their expense, provide a commitment for title insurance

issued by a title insurance company licensed to do business in Illinois prior to

recording of the final Plat of Subdivision with respect to any phase wherein

dedication of easements, rights-of-way, roads, public improvements and any other

dedications or conveyance to the VILLAGE establishing that OWNER is in title, and

that said easements, rights-of-way, roads, public improvements and dedications are

free from all liens and encumbrances. Prior to the VILLAGE’S acceptance of any

public improvements, OWNER shall deliver, at its expense, to the VILLAGE, an

Owner’s Title Insurance Policy showing the VILLAGE in title to said improvements

and further showing that said improvements are free of any liens or encumbrances.

The amount of said Owner’s Title Insurance Policy shall equal the fair market value

of the dedicated property as improved regarding all such easements, rights-of-way,

roads, public improvements and dedications. Security deposits made by the OWNER

with the VILLAGE to guarantee completion of public improvements shall not be

released by the VILLAGE until said title insurance have been deposited with the

VILLAGE, and Owner’s warranty and maintenance obligations have expired.


25. Street and Site Cleanup

Developer acknowledges that, depending on weather conditions, Developer’s

construction traffic entering and leaving the Property may create debris, especially

dirt and mud clots on streets and roadways adjacent to the construction site.

Accordingly, Developer agrees that it shall inspect and, to the extent of any debris

caused by Developer’s construction traffic, Developer shall cause the streets and

roadways in the Property to be cleaned as needed while construction is occurring on

the Property. Developer further agrees to mow weeds, pick up trash and debris, repair

and replace soil erosion control fencing and repair any erosion and sediment damage

on previously developed or occupied lots or adjoining parcels so as to comply with

the applicable ordinances of the Village. In addition, Owner/Developer shall cause

each street constructed that serve occupied portions of the Property, but not accepted

by the Village, to use best efforts to commence plowing within two (2) hours

following an accumulation of two (2) inches of snow thereon and complete within a

reasonable time period.

26. Disconnection

Developer shall develop the Subject Property as a subdivision to be commonly

known as Elburn Station in accordance with the Final Plans approved by the Village

and in accordance with the terms and conditions hereof and, provided the Village is

not in breach of this Agreement, shall not petition to disconnect any portion or all of

said Property from the Village. Subject to the provisions of paragraph 10 of this

agreement.


27. Trees

No trees are to be cut down in the area west of Oak Drive and South of

Edgewood, south east of the mixed use area without the prior consent of the Village,

unless such trees are diseased or dead.

.

28. Public sidewalks

Public sidewalks in residential areas shall be five (5) feet in width, on both

sides of the street and shall be constructed at OWNER’S expense at the time of the

actual home construction. VILLAGE ordinance requires public improvements to be

completed within two (2) years of approval of final plat. If there is a gap in a

developed unit, a temporary asphalt sidewalk shall be placed for the connection. At

time of actual home construction the sidewalk must be constructed, unless winter

conditions prevent the work. An amount equal to one hundred twenty percent (120%)

of the engineer’s estimated cost of the sidewalk construction shall be included in a

separate Letter of Credit or completion bond and not included in the overall estimated

cost of construction of any given unit at the time of final platting. The OWNER shall

renew the Letter of Credit or completion bond in an amount of ten percent (10%) of

the total cost of sidewalk construction for one (1) year following completion of

sidewalk construction in any given unit. In commercial areas, public sidewalks shall

be constructed at the time of actual building construction and on the property of the

building(s) being constructed.

29. Burying of Utility Lines

All existing and proposed utility lines within the development shall be


underground (except those along Keslinger Road and Illinois Route 38). OWNER

shall make reasonable effort for the trenching of electric, telephone, gas, cable

television and fiber optic lines.

30. Engineering and Improvements

A. The OWNER has identified, in EXHIBIT __, variances to the Village

Ordinances. All Final Plats and Engineering shall conform to Village

Ordinances unless a written variance request has been specifically identified

by the DEVELOPER and approved by the Board of Trustees in the MPDG or

preliminary engineering.

B. All final public improvements shall be constructed by Owner/Developer at

Owner/Developer’s expense, unless otherwise provided herein, and conform to

the applicable Village Ordinance’s, rules, and regulations, unless otherwise

provided herein.

31. Offsite Easements and Improvements

Subject to the provisions of this Agreement and except as may be otherwise expressly

provided, if the Village does not currently have an easement(s), Owner shall obtain, at

Owner’s own expense, all offsite easements necessary for the development of the

Property prior to the time the Final Plat is approved, for a particular phase, in

accordance with the Preliminary Plans and Plans. In the event an offsite easement is

required, and in the event Owner is unable to acquire such necessary offsite easement,

at the request of the owner, the Village may exercise its power of eminent domain to

acquire same, provided Owner shall pay the reasonable costs incurred by the Village

as a result thereof including, but not limited to, any surveying and legal expenses,


including expert witnesses, incurred by the Village. Owner shall deposit the amount

of such costs reasonably estimated by the Village into a segregated, interest bearing

escrow account prior to the commencement of such eminent domain proceedings by

the Village. Such funds shall be used solely to defray such costs, and all funds,

including interest, remaining in such escrow upon completion of such proceedings

shall be refunded to Owner.

32. Construction Offices and Trailers

Developer and its contractors are hereby authorized and permitted to maintain

temporary structures (including trailers, offices and similar facilities) on any part of the

Property, and to use said structures for storage of construction materials, supplies and

equipment, any ordinance, regulation or rule of the Village to the contrary notwithstanding.

Such structures, however, shall be maintained in a safe and sanitary condition and in good

repair. Said structures shall be permitted only as a temporary use. Within one year of the

placement or construction of said temporary structures, Developer must remove them unless

the Corporate Authorities approve an extension of their use. Any such renewal shall not be

unreasonably withheld.

The Developer/Builder shall indemnify and hold harmless the Village and its officers

and employees from any liability for any losses caused as a result of water not being

available to or connected to said temporary construction office trailer.

33. Miscellaneous Requirements

A. The maintenance and management plan for all proposed natural areas shall be

acceptable to the Village and submitted for Village approval prior to approval

of final plats.


B. The proposed development shall be compliant with the Village’s Soil Erosion

and Sediment Control Ordinance. All required site development permit

submittal plans and information shall be submitted in conjunction with final

engineering plans.

C. No driveways may cross any bike paths except along Station Boulevard east of

Anderson Road.

D. Unless expressly stated otherwise herein, OWNER is responsible for all

design, engineering, and construction costs, at its sole expense, for all public

improvements, facilities and utilities needed to serve the SUBJECT

PROPERTY, unless otherwise herein provided.

E. Unless otherwise accepted or otherwise varied herein, OWNER shall comply

with all VILLAGE ordinances, resolutions, rules, regulations, MPDG,

Preliminary Engineering, and all the provisions of this Agreements, including

all EXHIBITs, hereto.

F. It is understood and agreed by the parties hereto that time is of the essence of

this Agreement, and that all of the parties will make every reasonable effort to

expedite the subject matter hereof; it is further understood and agreed by the

parties that the successful consummation of this Agreement requires their

continued cooperation.

G. OWNER shall be required to provide completion bonds or letters of credit as

security for completion of public improvements. Said bonds or letters of

credit shall be for a term of not less than one (1) year with automatic renewals.

All bonds and letters of credit shall include a provision requiring the bond


company or bank to send notice to the VILLAGE, by certified mail, restricted

delivery, not less than ninety (90) days prior to the expiration of said bonds or

letters of credit. At any time said bonds or letters of credit are not in full force

and value, no further building permits or certificates of occupancy shall be

issued for any phase of the development. Only bonds issued by companies

having an A+ rating with total assets in excess of $ shall

be permitted. Any banks issuing letters for credit shall be financial institutions

acceptable to the Village. Bonds, letters of credit or other forms of security

acceptable to the Village shall be required to guarantee completion,

maintenance (including street cleaning and snow plowing) and warranty of all

public improvements, facilities and utilities, as well as all financial obligations

of Owner imposed by the terms of this Agreement, Village Ordinance,

resolution, rule or regulation. Said bonds, letters of credit or other security

shall also be written to allow recovery by Village of all of its costs and

expenses in calling said security, including the Village engineers fees incurred

on account of inspections and preparation of necessary punch lists, and

reasonable attorney fees. The Owner agrees to provide security in the amount

of 120% of the engineer’s opinion of estimated construction cost for public

improvements as set forth in the Subdivision Control Ordinance.

H. Public improvements may only be accepted on a subdivision unit by unit basis,

excepting lift stations, parks, trails, off-site improvements, or other items that

are part of a larger project.


34. Site Design Studies

OWNER has prepared EXHIBITs illustrating conceptual designs for selected

areas of Elburn Station. Both the OWNER and the Village acknowledge that these

layouts are conceptual, and may be altered provided all provisions of the MPDG are

followed, subject to Village approval.

35. Recording

OWNER shall, at its expense, record this Agreement and the EXHIBITs

attached hereto within thirty (30) days after approval. All final plats and recapture

agreements shall be recorded at OWNER’S expense.

36. Remedies

The Parties may exercise any remedies available at law or in equity. Without

limiting the foregoing, the Parties agree as follows:

A. This Agreement shall be enforced in the 16th Judicial Circuit, Kane County,

Illinois, by the Parties or by any successor or assign of the Parties.

Enforcement may be sought by an appropriate action at law or in equity to

secure the performance of the covenants, agreements, conditions and

obligations contained herein.

B. This Agreement shall be governed by the laws of the State of Illinois.

C. No action taken by any Party pursuant to the provisions of this Section ___ or

pursuant to any other section of this Agreement shall constitute an election of

remedies, and all remedies set forth in this Agreement, as well as any remedies

at law or in equity, shall be cumulative and shall not exclude any other

remedy.


D. Unless otherwise expressly provided herein, in the event of a material breach

of this Agreement, the Parties agree that the defaulting Party shall have thirty

(30) days after notice of said breach to correct the same prior to the non-

breaching Party’s seeking of any remedy provided for herein. If such breach

cannot be corrected within thirty (30) days, the non-breaching Party shall not

seek to exercise any remedy provided for herein as long as the defaulting Party

has initiated the cure of said breach and is diligently proceding with the cure of

said breach.

E. In the event the performance of any covenant to be performed hereunder by

any Party is delayed for causes which are beyond the reasonable control of the

Party responsible for such performance (which causes shall include, but not be

limited to, acts of God; inclement weather conditions; strikes; material

shortages; lockouts; the revocation, suspension or inability to secure any

necessary governmental permit, license, or authority; and any similar cause)

the time for such performance shall be extended by the amount of time of such

delay.

F. The failure of the Parties to insist upon the strict and prompt performance of

the terms, covenants, agreements, and conditions herein contained, or any of

them, upon any other Party imposed, shall not constitute or be construed as a

waiver or relinquishment of any Party’s right thereafter to enforce any such

term, covenant, agreement or condition, but the same shall continue in full

force and effect.

G. In no event shall the Village, or its officers, employees, or agents be held


liable for money damages unless the Village maintains liability insurance

which provides coverage for such claims, in which event the Village’s liability

shall not exceed said insurance coverage amount.

37. Term and Binding Effect

This Agreement shall inure to the benefit of and be binding upon the assignees

and successors in title of the OWNER and upon successor corporate authorities of the

VILLAGE and its successor municipalities and shall run with the land. This

Agreement shall be valid and binding for a period of twenty (20) years from the date

of its execution or any extension thereof as provided herein.

38. Notices

Unless otherwise notified in writing, all notices, requests and demands shall be

in writing and shall be delivered to or be mailed by certified mail, return receipt

requested, as follows:

If to the VILLAGE: The Village President and the Village Clerk 30l E. North Street Elburn, Illinois 60ll9

If to OWNER: c/o Shodeen Management Company.Construction Company LLC

17 North First Street Geneva, IL 60134

39. Modification

The VILLAGE and the OWNER may, by common and

mutual consent, amplify, modify or otherwise agree to other terms and conditions

than those set forth within this Agreement, in the manner provided by law. The

VILLAGE and owner of record of any portion of the SUBJECT PROPERTY, even if

Formatted: Indent: Left: 0.5", Hanging: 2"


not the OWNER named herein, may agree to modify this Agreement with respect to

such portion of the SUBJECT PROPERTY.

40 Severability

The provisions of this Agreement shall be deemed to be severable, and if any

section, paragraph, clause, provision, or item of this Agreement shall be held invalid,

the invalidity of such section, paragraph, clause, provision or item shall not affect any

other provision of this Agreement.

41. Compliance

The construction of all public improvements:

A. Shall be constructed in full compliance with all applicable federal, state, and

local laws, Village Ordinances subject to all applicable variation based upon

MPDG and Preliminary Engineering, rules, and regulations;

B. Owner shall submit, if applicable, completed copies of all permits (IEPA,

IDOT, KDOT, U.S. Army Corps, etc.) required for construction of the

improvements;

C. Owner shall submit a statement acknowledging the ability to comply with

federal, state, and local safety laws and regulations.

IN WITNESS WHEREOF, the parties to this Agreement have hereunto set

their hands and affixed their seals on the day, month and year first above written.

VILLAGE: OWNER/DEVELOPER: VILLAGE OF ELBURN, an Elburn Station Illinois municipal corporation Land Company L.L.C. a Delaware Limited Liability Company


By:____________________________ By: Sho-DeenManagement Company, its Manager David L. Anderson, President, Its___________________________ Village of Elburn, Kane County, IL Covington Court Partnership, an Illinois Limited Partnership By: Covington Court Development Corporation, an Illinois Corporation, its General Partner By:___________________________ Title: President State Bank of Geneva, as Trustee of Trust No. 825 By: Title ATTEST: ATTEST: _______________________________ ________________________________ Diane McQuilkin, Clerk Its______________________________ Village of Elburn, Kane County, IL


STATE OF ILLINOIS )

) SS COUNTY OF KANE )

I, the undersigned, a Notary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY, that David L. Anderson, President of the Board of Trustees of the Village of Elburn, and Diane McQuilkin, Village Clerk of said Village, personally known to me to be the same persons whose names are subscribed to the foregoing instrument as acknowledged that they signed and delivered the foregoing instrument as their own free and voluntary act and as the free and voluntary act of said Village, for the uses and purposes therein set forth; and the said Village Clerk then and there acknowledged that she, as custodian of the corporate seal of the Village, did affix the corporate seal of said Village to said instrument as her own free and voluntary act and as the free and voluntary act of said Village, for the uses and purposes therein set forth.

GIVEN under my hand and Notarial Seal this _______ day of _________________, 200__.

___________________________________ Notary Public


STATE OF ILLINOIS ) )SS COUNTY OF KANE ) I the undersigned, a Notary Public, in and for the County and State aforesaid, DO HEREBY CERTIFY, that , personally known to me to be the __________ President of Shodeen Management Company the Manger of Elburn Station Land Company LLC a Delaware Limited Liability Company, and ___________________, personally known to me to be the ___________ Secretary of said corporation, 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 as such _________ President and _______ Secretary, they signed and delivered the said instrument an caused the corporate seal of said corporation to be affixed thereto, pursuant to authority given by the Board of _________ of said corporation, as their free and voluntary act, and as the free and voluntary act and deed of said limited liability company for the uses and purposes therein set forth. GIVEN under my hand and notarial seal this day of , 20__. ______________________________ Notary Public


EXHIBIT “A”

PROPERTY


EXHIBIT “___”

FORM RECAPTURE AGREEMENT

RECAPTURE AGREEMENT

THIS RECAPTURE AGREEMENT (“Agreement”), is made and entered as of the day of , 20 by and between the VILLAGE OF ELBURN, an Illinois municipal corporation (“Village”) and SHODEEN INCORPORATED, an Illinois corporation (“Developer”).

RECITALS A. Developer is the owner and developer of that certain real estate development located within the corporate limits of the Village and commonly known as Elburn Station Subdivision (“Subdivision”). B. Developer and Village have heretofore entered into that Annexation Agreement dated , 20 (“Annexation Agreement”) pertaining to the annexation and development of the Subdivision within the Village. C. Developer desires to recapture an allocable share of the costs of constructing certain of the public improvements for the Subdivision (“Recapture Items”) which shall provide benefit to other properties (“Benefited Properties”) from the owner of the Benefited Properties (“Benefited Owner”). D. Developer and the Village are desirous of entering into this Agreement to provide for the fair and allocable recapture by Developer of the proportionate costs of the Recapture Items from the Benefited Owner, subject to the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereby agree as follows: 1. RECAPTURE ITEMS. The Recapture Items, being elements of the public improvements to be constructed as part of the development of the Subdivision, are identified in Attachment “A” attached hereto (“Recapture Schedule”). The Recapture Schedule identifies each Recapture Item and the estimated cost to construct each Recapture Item (“Estimated Cost”). Developer shall cause each of the Recapture Items to be constructed in compliance with the provisions of the Annexation Agreement and to be accepted and conveyed to the Village in accordance with applicable ordinances of the Village.


2. BENEFITED PROPERTIES. The Benefited Properties are legally described in the Recapture Schedule attached hereto as Attachment “B.” Each parcel of real estate contained within the Benefited Properties is referred to herein individually as a “Benefited Parcel.” There are a total of Benefited Parcels as identified in the Recapture Schedule. 3. RECAPTURE COSTS. The Recapture Item(s) which the Corporate Authorities of the Village have determined will benefit a Benefited Parcel, and the pro rata share of the Estimated Cost of each such Recapture Item to be allocated to such Benefited Parcel are set forth in the Recapture Schedule. The aggregate amount of the proportionate share of the Estimated Cost for each of the Recapture Items allocable to a Benefited Parcel is referred to herein as the “Recapture Costs.” The Recapture Costs for each of the Benefited Parcels shall be as identified in the Recapture Schedule. Interest shall accrue on the Recapture Costs for the benefit of Developer at the rate of eight percent (8%) per annum from the date the Recapture Item is completed by Developer until the Recapture Cost is paid. All references to Recapture Costs herein shall include accrued interest owed thereon.