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Ordinance 2006-069 211116111111 3142`i Filed for Record in STATE OF ILLINOIS ) KENDALL COUNT P ILLINOIS PAUL. ANDER60H ss 09 - - 29- 21106 At 02.31 am COUNTY OF KENDALL ) ORDINANCE 95,1:11) RHBP SUrchar -ge ill.tna ORDINANCE NO. 2006- O AN ORDINANCE AUTHORIZING THE EXECUTION OF AN ANNEXATION AGREEMENT OF (Silver Fox) WHEREAS, it is prudent and in the best interest of the UNITED CITY OF YORKVILLE, Kendall County, Illinois, that a certain Annexation Agreement pertaining to the annexation of real estate described on the Exhibit "A" attached hereto and made a part hereof entered into by the UNITED CITY OF YORKVILLE; and WHEREAS, said Annexation Agreement has been drafted and has been considered i by the City Council; and I I i WHEREAS, the legal owners of record of the territory which is the subject of said Agreement are ready, willing and able to enter into said Agreement and to perform the I obligations as required hereunder; and WHEREAS, the statutory procedures provided in 65 ILCS 11- 15.1.1, as amended, I for the execution of said Annexation Agreement has been fully complied with; and Page 1 of 3 WHEREAS, the property is presently contiguous to the City. NOW THEREFORE, BE IT ORDAINED BY THE MAYOR AND THE CITY COUNCIL OF THE UNITED CITY OF YORKVILE, KENDALL COUNTY, ILLINOIS, AS FOLLOWS; Section 1: The Mayor and the City Clerk are herewith authorized and directed to execute, on behalf of the City, an Annexation Agreement concerning the annexation of the real estate described therein, a copy of which Annexation Agreement is attached hereto and made a part hereof. Section 2: This ordinance shall be in full force and effect from and after its passage and approval as provided by law. JAMES BOCK U, JOSEPH BESCO y VALERIE BURD 11 PAUL JAMES l� DEAN WOLFER In MARTY MUNNS u� ROSE SPEARS JASON LESLIE --- Ml 4voA Pkoc4msKA I t Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this 9 Day of Iqu63 U5 , A.D. 2006. MAYO Page 2of3 i Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this day of AuG u6 - r , A.D. 2006. ATTEST: U CITY CLERK Prepared by: John Justin Wyeth City Attorney United City of Yorkville 800 Game Farm Road Yorkville, IL 60560 Page 3 of 3 i i Revised 8/21/06 ANNEXATION AGREEMENT SILVER FOX SUBDIVISION THIS ANNEXATION AGREEMENT ( "Agreement"), is made and entered as of the day of AUG), 2006 by and between MIDWEST DEVELOPMENT, LLC an Illinois Limited Liability Company ( collectively, "OWNER /DEVELOPER"), and the UNITED CITY OF YOR K VILLE, a municipal corporation organized and existing under and by virtue of the laws of the State of Illinois (hereinafter referred to as "CITY ") by and through its Mayor and Aldermen ( "Corporate Authorities "). OWNER/DEVELOPER and the CITY are sometimes hereinafter referred to individually as a "Party" and collectively as the "Parties ". RECITALS: A. OWNER/DEVELOPER is the owner ofrecord of certain parcels ofreal estate legally described and shown on the Plat of Annexation, attached hereto as Exhibit "A" (hereinafter referred to as "SUBJECT PROPERTY "). B. OWNER/DEVELOPER desire to annex the SUBJECT PROPERTY to the CITY for the purposes of developing a residential known as Silver Fox. The SUBJECT PROPERTY is currently contiguous with the existing corporate limits of the CITY and is not within the boundary of any other city. C. OWNER/DEVELOPER desire to proceed with the development thereof for residential use in accordance with the terms and provisions of this Agreement. D. OWNER/DEVELOPER propose that the SUBJECT PROPERTY be rezoned under the R -2 Single - Family Residence District provisions of the City Zoning Ordinance ( "Zoning Ordinance "), to be developed with detached single - family residences within the SUBJECT PROPERTY consisting of approximately one hundred (100) acres, legally described in Exhibit "A" attached hereto, all as depicted on the Preliminary Plat attached hereto and incorporated herein as Exhibit `B ". E. All public hearings, as required by law, have been duly held by the appropriate hearing bodies of the CITY upon the matters covered by this Agreement. The Plan Commission conducted a public hearing regarding the requested zoning and conceptual site plan on February 17"', 2005. City Council conducted the public hearing on the annexation agreement on January 10 d `, 2006. F. The CITY and OWNER/DEVELOPER have given all appropriate notices due to be given pursuant to applicable provisions of the Illinois Compiled Statutes and the City Code. i i G. The Corporate Authorities, after due and careful consideration, have concluded that the Execution of the Annexation Agreement and Planned Unit Development Agreement subject to the terms and provisions of this Agreement, and the rezoning, subdivision and development of the SUBJECT PROPERTY as provided for herein, will inure to the benefit and improvement of the CITY in that it will increase the taxable value of the real property within its corporate limits, promote the sound planning and development of the CITY and will otherwise enhance and promote the general welfare of the people of the CITY. H. (i) Each parry agrees that it is in the best interests of the OWNER/DEVELOPER and the CITY to annex and develop the SUBJECT PROPERTY described in the attached Exhibit "A and B" in conformance with the United City of Yorkville Comprehensive Plan with open spaces totaling over approximately 22.42 acres interspersed throughout the development and through the provision of orderly flow of traffic within the development and to adjoining real property. (ii) Each party agrees that it is in the best interest of the local governmental bodies affected and the OWNEWDEVELOPER to provide for performance standards in the development of the SUBJECT PROPERTY. (iii) Each party agrees that a substantial impact will be placed on the services of the United City of Yorkville and other governmental agencies by development of said real property. (iv) The SUBJECT PROPERTY is contiguous to the corporate boundaries of the CITY. I. It is the desire of the CITY, the OWNER/DEVELOPER that the development and use of the SUBJECT PROPERTY proceed as conveniently as may be, in accordance with the terms and provisions of this Agreement, and be subject to the applicable ordinances, codes and regulations of the CITY now in force and effect, except as otherwise provided in this Agreement. J. The OWNER/DEVELOPER and their representatives have discussed the proposed annexation and have had public hearings with the Plan Commission and the City Council, and prior to the execution hereof, notice was duly published and a public hearing was held to consider this Agreement, as required by the statutes of the State of Illinois in such case made and provided. NOW, THEREFORE, in consideration of the foregoing preambles and mutual covenants and agreements contained herein, the Parties hereto agree to enter into this Agreement and to supplement the Petition for Zoning and Annexation and drawings submitted therewith, including the Preliminary Plat, attached hereto as Exhibit `B" and agree that the annexation, zoning and plan for the SUBJECT PROPERTY shall be approved by the i City Council upon the following terms and conditions and in consideration of the various agreements made between the parties: 1. LEGAL CONFORMANCE WITH LAW. This Agreement is made pursuant to and in accordance with the provisions of the CITY ordinances, as amended from time to time, and applicable provisions of the Illinois Compiled Statutes and the Illinois Constitution. 2. ANNEXATION AND ZONING. As soon as reasonably practicable following the execution of this Agreement, the Corporate Authorities shall adopt such ordinances as may be necessary and appropriate to annex and rezone the SUBJECT PROPERTY under the R -2 Single - Family Residence District provisions of the City Zoning Ordinance ( "Zoning Ordinance ") with 172 residences, all as shown on the Preliminary Plat attached hereto as Exhibit `B ", provided that interim use of all or any portion of the SUBJECT PROPERTY as agricultural use shall be permitted as legal non - conforming uses of the SUBJECT PROPERTY until such portions are actually developed. OWNER/DEVELOPER agree that the SUBJECT PROPERTY shall be developed in accordance with the ordinances of the CITY, as approved or subsequently amended, unless otherwise provided for herein, and agree to follow all of the policies and procedures of the CITY in connection with such development except as modified in this Agreement and the Preliminary Plat (Exhibit `B "). 3. UTILITIES, EASEMENTS AND PUBLIC IMPROVEMENTS. OWNER/DEVELOPER agree that any extension and/or construction of the utilities and public improvements shall be performed in accordance with existing CITY subdivision regulations as varied by this Agreement. Any on -site work and the cost thereof shall be the responsibility of OWNER/DEVELOPER within their respective parcels (Utilities and Public Improvements) except as otherwise provided in this Agreement. In addition, the CITY agrees that, at OWNER/DEVELOPER's request, the CITY shall exercise reasonable and best efforts to acquire off -site easements. All costs related to or associated with condemnation of property as well as the cost of acquisition of the real property for easement purposes only, and not as to acquisition of fee title, shall be the responsibility of OWNER/DEVELOPER. The CITY shall not be obligated to incur any acquisition cost not approved by OWNER/DEVELOPER. 4. POTABLE WATER SUPPLY, SANITARY SEWER, RECAPTURE„ AND FUNDING MECHANISMS. A. The CITY represents to OWNER/DEVELOPER that most of the potable water facilities needed to serve this development will be constructed by the CITY pursuant to this agreement such that potable water, fire flow and water storage facilities will have sufficient capacity to adequately serve the needs of the OWNER/DEVELOPER and occupants of the SUBJECT PROPERTY as developed pursuant to the terms of this i Agreement. B. With the respect to sanitary sewer treatment capacity, the CITY shall assist and cooperate with OWNER/DEVELOPER in their efforts to acquire adequate sanitary sewer treatment capacity from the Yorkville Bristol Sanitary District for use within their respective parcels in the SUBJECT PROPERTY as developed pursuant to this Agreement. Additionally, the CITY shall also assist and cooperate with OWNER/DEVELOPER in their efforts to obtain adequate means of delivery of such sanitary sewer capacity to the SUBJECT PROPERTY or, in the alternative, shall provide such means of delivery, subject, however, to the requirements of the Yorkville Bristol Sanitary District where appropriate. The CITY shall seek to obtain such governmental approvals and permits, but in the event that its best efforts are not successful, the CITY shall not be liable for any failure to provide adequate means of delivery of the sanitary sewer treatment capacity contemplated under this Subsection 5(B) arising from its inability to obtain such approvals and permits; and the CITY undertakes no duty to pay for the extension of sanitary sewer extensions to the SUBJECT PROPERTY. 5. SECURITY INSTRUMENTS. A. Posting Securitv. OWNER/DEVELOPER shall deposit, or cause to be deposited, with the CITY such irrevocable letters of credit or surety bonds in the forms prescribed by the ordinances of the CITY ("Security Instruments ") to guarantee completion and maintenance of the public improvements to be constructed as a part of the development as are required by applicable ordinances of the CITY. The OWNEWDEVELOPER shall have the sole discretion, subject to compliance with Illinois law, as to whether an irrevocable letter of credit or surety bond will be used as the security instruments. The amount and duration of each Security Instrument shall be as required by applicable ordinances of the CITY. The City Council upon recommendation by the City Engineer, may from time to time approve a reduction or reductions in the Security Instruments by an amount not in excess of eighty -five percent (85 %) of the value certified by the City Engineer of the completed work, so long as the balance remaining in the Security Instruments is at least equal to one hundred ten percent (110 %) of the cost to complete the remaining public improvements for the Development. B. Acceptance of Underground Improvements and Streets. Upon completion and inspection of underground improvements, streets, and /or related improvements of Development, and acceptance by the City Council upon recommendation by the City Engineer, OWNER/DEVELOPER shall be entitled to a release or appropriate reduction of any applicable Security Instrument, subject to a maintenance Security Instrument remaining in place for a one year period from the date of acceptance by the CITY, in conformance with the City Subdivision Control Ordinance. The CITY shall exercise good faith and due diligence in accepting said public improvements following OWNER /DEVELOPER's completion thereof for the Development in compliance with the requirements of said ordinance, and shall adopt the resolution accepting said public improvements not later than ninety (90) days of completion of the punchlist. i I C. Transfer and Substitution. Upon the sale or transfer of any portion of their respective parcels within the SUBJECT PROPERTY, OWNER/DEVELOPER shall be released from the obligations secured by its Security Instruments for public improvements upon the submittal and acceptance by the CITY of a substitute Security Instrument approved by the CITY, securing the costs of the improvements set forth therein. 6. AMENDMENTS TO ORDINANCES. All ordinances, regulations, and codes of the CITY, including, without limitation those pertaining to subdivision controls, zoning, storm water management and drainage, comprehensive land use plan, and related restrictions, as they presently exist, except as amended, varied, or modified by the terms of this Agreement, shall apply to the SUBJECT PROPERTY and its development for a period of five (5) years from the date of this Agreement. Any amendments, repeal, or additional regulations, which are subsequently enacted by the CITY, shall not be applied to the development of the SUBJECT PROPERTY except upon the written consent of OWNER/DEVELOPER during said five (5) year period. The CITY shall give the OWNER/DEVELOPER a six (6) month grace period from the date they are notified of any changes to the ordinances, regulations, and codes of the CITY in order to comply with the new regulations. After said five (5) year period, the SUBJECT PROPERTY and its development will be subject to all ordinances, regulations, and codes of the CITY in existence on or adopted after the expiration of said five (5) year period, provided, however, that the application of any such ordinance, regulation or code shall not result in a reduction in the number of residential building lots herein approved, alter or eliminate any of the ordinance variations provided for herein, nor result in any subdivided lot or structure constructed within the SUBJECT PROPERTY being classified as non - conforming under any ordinance of the CITY. The foregoing to the contrary notwithstanding, in the event the CITY is required to modify, amend or enact any ordinance or regulation and to apply the same to the SUBJECT PROPERTY pursuant to the express and specific mandate of any superior governmental authority, such ordinance or regulation shall apply to the SUBJECT PROPERTY and be complied with by OWNER/DEVELOPER, provided, however, that any so- called "grandfather" provision contained in such superior governmental mandate which would serve to exempt or delay implementation against the SUBJECT PROPERTY shall be given full force and effect. If, during the term of this Agreement, any existing, amended, modified or new ordinances, codes or regulations affecting the zoning, subdivision, development, construction of any improvements, buildings, appurtenances, or any other development of any kind or character upon the SUBJECT PROPERTY, other than those upon which site plan approval may be based, are amended or modified to impose less restrictive requirements on development or construction upon properties situated within the CITY'S boundaries, then the benefit of such less restrictive requirements shall inure to the benefit of the OWNER/DEVELOPER, and anything to the contrary contained herein notwithstanding, the OWNER/DEVELOPER may proceed with development or construction upon the SUBJECT I PROPERTY pursuant to the less restrictive amendment or modification applicable generally to all properties within the CITY. 7. BUILDING CODE, BUILDING PERMITS. A. The CITY has adopted the International Building Code, which is updated approximately every three years. The building codes for the CITY in effect as of the date of building permit application will govern any and all construction activity within the Subject Property. B. The CITY shall act upon each application for a building permit for which OWNERS /DEVELOPER, or their duly authorized representatives, shall apply, within fourteen (14) calendar days of the date of application therefore or within fourteen (14) calendar days of receipt of the last of the documents and information required to support such application, whichever is later, provided the applicable improvements for which the building permit applies will be constructed and installed in accordance with the approved final plat and approved final engineering for the development within the SUBJECT PROPERTY. If the application is disapproved, the CITY shall provide the applicant with a statement in writing specifying the reasons for denial of the application including a specification of the requirements of law that the applicant and supporting documents fail to meet. The CITY agrees to issue such building permits upon the compliance with those legal and documentary requirements so specified by the CITY. C. Subject to any other necessary governmental regulatory approval, the CITY shall permit OWNER/DEVELOPER, and their duly authorized representatives, to install temporary waste water holding tanks and temporary water facilities to serve sales offices or similar temporary structures, and model buildings constructed on the SUBJECT PROPERTY provided that each such temporary tank and temporary water facility shall be removed and disconnected within ten (10) days after said structures shall be connected to the sewer or other permitted waste disposal systems, and water mains, at OWNERS/DEVELOPER's sole cost, subject to force majeure. The use of such temporary facilities shall be subject to all health and safety codes of the CITY and CITY shall inspect such facilities on a periodic basis. D. Subject to the provisions of Section 11 hereof, no permit fees, plan review fees or inspection fees which are not generally and uniformly applicable throughout the CITY shall be imposed by the CITY against the SUBJECT PROPERTY. i 8. FUTURE FINAL PLATS AND FINAL ENGINEERING. The CITY shall act upon any final plat and final engineering submitted to it for approval within a reasonable time of its receipt of such final plat, final engineering and all necessary supporting documentation and information. The plat review and consideration by the CITY shall not exceed the limitations set out in 65 ILCS 5/11 -12 -8 (2002). i i I All proposed Final Plat units for this development shall contain a minimum of 40 dwelling units. 9. FEES AND CHARGES. A. During the first five (5) years following the date of this Agreement, the CITY shall impose upon and collect from the OWNER/DEVELOPER, and their respective contractors and suppliers, only those permit, license, tap -on and connection fees and charges, and in such amount or at such rate, as are in effect on the date of this Agreement and as are generally applied throughout the CITY, except as otherwise expressly provided for in this agreement on the Fee Schedule attached hereto and made apart hereof as Exhibit "C " . At the expiration of this five (5) year term, the CITY shall give the OWNER/DEVELOPER a one (1) year grace period from the date they are notified of any changes to the permit, license, tap on and connection fees and charges in order to comply with the new regulations. B. To the extent that any fees charged by the CITY or other governmental agency by reason of this Agreement or City Ordinance are not frozen by the specific terms contained in this Agreement, such fees may be prepaid as follows: (i) If the CITY increases any fees that are not prohibited from being increased by the terms of this Agreement and are applicable to the SUBJECT PROPERTY, the CITY will provide OWNER/DEVELOPER with notice thereof and OWNER/DEVELOPER will be permitted the right to prepay the fees as they existed prior to such increase at any time within thirty (30) days after receipt of the notice of the increase of the fees from the CITY. (ii) OWNER/DEVELOPER's right to prepay will apply to all fees or only certain fees applicable to their respective parcels within the SUBJECT PROPERTY as selected by OWNER/ DEVELOPER and prepayment of a particular fee will prevent the increase in such fee from being applicable to that portion of the SUBJECT PROPERTY for which such fee was prepaid. For fees charged on a per residential unit basis, OWNER/DEVELOPER may estimate the number of residential units and pay such fees based on such estimated number of units or may prepay for only a certain number (determined by OWNER/DEVELOPER) of units. Once the calculation is made, no refund of any portion of any prepayment made will be allowed. C. The CITY represents and warrants to OWNER/DEVELOPER that no part of the SUBJECT PROPERTY is currently subj ect to nor is there pending any request to subject any part of the SUBJECT PROPERTY to any special service area or special assessment district that will result in any special taxes or assessments for any portion of the SUBJECT PROPERTY, other than the SSA described in Section 19 of this agreement and any charges to existing drainage districts of record, if any. 10. CONTRIBUTIONS. I The CITY shall not require the OWNER/DEVELOPER to donate any land or money to the CITY, or any other governmental body, except as otherwise expressly provided in this Agreement. 11. SCHOOL AND PARK DONATIONS. DEVELOPER shall be responsible for making the contributions as outlined below to the Yorkville Community School District #115 ( "School District "), the City of Yorkville Park Department ( "Park Department ") and the CITY for the estimated impact and donation that is projected to be experienced by said entities as a result of the development in the manner provided for under this Agreement. Yorkville Parks and Recreation Department: Land Donation: 3.00 Acres as depicted on the Planned Unit Development Plan Cash Donation:. Payable at the time of issuance of each building permit at the rate of $1,604.65 per detached single family home Yorkville Community School District: Land Cash Fee: Owner /Developer agrees to pay, in lieu of land, a cash donation of $822,242.56 in satisfaction of the land cash fee to the School District per the ordinances. Said contribution shall be paid 100% at the time of issuance of each building permit in the amount of $4,780.48 per single family dwelling. 12. PROJECT SIGNS. Following the date of this Agreement and through the date of the issuance of the final occupancy permit, OWNER/DEVELOPER shall be entitled to construct, maintain and utilize offsite subdivision identification, marketing and location signs at not more than two (2) locations at any time within the corporate limits of the CITY as OWNER/DEVELOPER may designate (individually an " Offsite Sign" and collectively the " Offsite Signs ") subject to sign permit review and issuance by the CITY. Offsite Signs will not be located on public right -of -way. OWNER/DEVELOPER shall be responsible, at its expense, for obtaining all necessary and appropriate legal rights for the construction and use of each of the Offsite Signs. Each Offsite Sign may be illuminated subj ect to approval by the CITY. In addition to the Offsite Signs, OWNER/DEVELOPER shall be permitted to construct, maintain and utilize signage as identified in Exhibit "D" attached hereto and shall be permitted as a permanent sign at the entry of residential neighborhood. 13. MODEL HOMES, PRODUCTION UNITS AND SALES TRAILERS. During the development and build out period (subsequent to final plat approval), OWNER/DEVELOPER, and such other persons or entities as OWNER/DEVELOPER may authorize, may construct, operate and maintain model homes and sales trailers staffed with OWNER/DEVELOPER's, or such other person's or entity's, sales and construction staff, and may be utilized for sales offices for Silver Fox. The number of such model homes and sales trailers and the locations thereof shall be as from time to time determined or authorized by DEVELOPER. Off- street parking shall be required for model homes when more than five (5) model homes are constructed on consecutive lots in a model home row. Three (3) off - street spaces will be required for each model home in a model home row, with combined required parking not to exceed thirty (30) off - street spaces. A site plan showing the location of the parking areas and walks will be submitted for review and approval by the CITY. No off - street parking shall be required for individual model homes or sales trailers that are not part of a model home row other than the driveway for such model home /sales trailer capable of parking two (2) cars outside of the adjacent road right -of -way. Building permits for model homes, sales trailers and for up to five (5) dwelling units, shall be issued by the CITY upon proper application thereof prior to the installation ofpublic improvements (provided a gravel access road is provided for emergency vehicles and upon proof to the CITY the OWNER has demonstrated to the Bristol Kendall Fire Protection District fire hydrants within 300 feet of the dwelling units are operational) A final inspection shall be conducted prior to the use of a model home and water service shall be made available within 300' of the model home. Any fire hydrants that are not in service within 30 days of installation shall be marked or bagged by the OWNER. There shall be no occupation or use of any model homes or production dwelling units until the binder course of asphalt is on the street, and no occupation or use of any production dwelling units until the water system and sanitary sewer system needed to service such dwelling unit are installed and operational or until temporary service is available, whichever is earlier. Use of models as a model unit only shall not be deemed to be "occupancy" thereof and may be made prior to connection to a sanitary sewer or water system, so long as temporary waste water holding tanks and temporary water facilities are installed to serve them. OWNER/DEVELOPER may locate temporary sales and construction trailers during the development and build out of said property, provided any such sales trailer shall be removed within two (2) weeks of issuance of the final building permit in that unit where the trailer is located. A building permit will be required by the CITY for any trailer that will be utilized as office space. Prior to construction of the sales trailer the OWNEWDEVELOPER shall submit an exhibit of the model trailer site with landscaping and elevations for the CITY's approval. OWNER/DEVELOPER hereby agrees to indemnify, defend and hold harmless the CITY and the Corporate Authorities (collectively "Indemnities ") from all claims, liabilities, costs and expenses incurred by or brought against all or any of the Indemnities as a direct and proximate result of the construction of any model homes or production dwelling units prior to the installation of the public street and water improvements required to service such dwelling unit and shall execute and deliver to the CITY a hold harmless and indemnification agreement in form and content reasonably satisfactory to the CITY, so providing, prior to the commencement of construction of any model homes. OWNER/DEVELOPER shall be permitted to obtain building permits in the same manner for additional model homes and for initial production dwelling units as the Final Plat and Final Engineering is approved by the CITY. 14. CONTRACTORS' TRAILERS. The CITY agrees that from and after the date of execution of this Agreement, contractor's and subcontractor's supply storage trailers may be placed upon such part or parts of the SUBJECT PROPERTY as required and approved by OWNER/DEVELOPER for development purposes. Said trailers shall be removed respectively, within thirty (30) days after issuance of the last occupancy permit for each such parcel, subject to force maj eure. A building permit will be required by the CITY for any trailer that will be utilized as office space. All contractor's trailers and supply trailers shall be kept in good working order and the area will be kept clean and free of debris. No contractor's trailers or supply trailers will be located within dedicated right -of -way. I 15. CERTIFICATES OF OCCUPANCY. A. The CITY shall issue certificates of occupancy for buildings and dwelling units constructed on the SUBJECT PROPERTY within five (5) working days after proper application therefor or within five (5) working days after the receipt of the last of the documents or information required to support such application, whichever is later. If the application is disapproved, the CITY shall provide the applicant within five (5) working days after receipt of the application and all documentation or information required to support such application, with a statement in writing of the reasons for denial of the application including specification of the requirements of law which the application and supporting documents fail to meet. The CITY agrees to issue such certificates of occupancy upon the applicant's compliance with those requirements of law so specified by the CITY. The CITY, at its expense, shall retain the services of such consultants and/or hire such employees as may be necessary to ensure that the CITY is able to fulfill its obligations under this Subsection. The foregoing, however, shall not negate the obligation of OWNER/DEVELOPER to pay all fees otherwise payable for services rendered in connection with the issuance of certificates of occupancy under applicable CITY ordinances. B. Notwithstanding the foregoing, certificates of occupancy shall be issued by the CITY for buildings and dwelling units whose driveway and/or sidewalk paving and grading improvements have not been completely finished due to adverse weather conditions subject to the following understanding: if a certificate of occupancy is issued for such a building or dwelling unit and a party fails to complete the driveway and /or sidewalk paving or grading improvements for such building or dwelling unit as soon as weather permits but in any event by the first day of summer, the CITY shall have the right to withhold the issuance of further building permits to such party until such exterior work has been completed; Notwithstanding the foregoing, if the provision above applies but if the party that failed to complete the driveway and /or sidewalk paving or grading improvements posts Security with the CITY in the amount of one hundred fifty percent (150 %) of the amount estimated by the CITY to be needed to complete such improvements or to effect such corrections, the CITY shall not withhold the issuance of such building permits or certificates of occupancy. Under no circumstances shall the failure of Commonwealth Edison or another utility company to energize street lights installed by OWNER/DEVELOPER on the SUBJECT PROPERTY constitute a basis for the CITY denying the issuance of building permits or a certificate of occupancy for buildings and dwelling units constructed or to be constructed within the SUBJECT PROPERTY. 16. LIMITATIONS. In no event, including, without limitation, the exercise of the authority granted in Chapter 65, Section 5/11 -12 -8 of the Illinois Compiled Statutes (2002) ed., shall the CITY require that any part of the SUBJECT PROPERTY be dedicated for public purposes, except as otherwise provided in this Agreement or identified on the Concept Plan. 17. COMMENCEMENT OF IMPROVEMENTS. A. The CITY shall issue permits to OWNER/DEVELOPER to authorize the commencement of construction of utility improvements on the SUBJECT PROPERTY or any Parcel thereof at the sole risk and cost of OWNER/DEVELOPER prior to: (i) approval of a final plat of subdivision; (ii) prior to construction of the CITY utility improvements provided: (1) such construction is undertaken at the risk of the party seeking to undertake such work; (2) approved engineering plans for such improvements have been approved by the CITY that are sufficient in detail for the CITY to determine the nature and scope of the improvements being constructed; (3) the preliminary subdivision plat upon which the improvements are being constructed has been approved by the CITY; (4) the IEPA and the sanitary district that will serve the SUBJECT PROPERTY, as and if applicable, have issued permits for the construction of sanitary sewer and water lines. The CITY agrees to review and, where appropriate, execute IEPA sewer and water permit applications separate and apart from the review of final engineering plans so that the IEPA will be in a position to issue such permits prior to CITY approval of final engineering plans. The OWNER/DEVELOPER acknowledges that the CITY's signature on the IEPA water and sanitary sewer permit application does not constitute final plat or plan approval; and (5) the construction complies with the CITY'S then existing soil erosion ordinances. OWNER/DEVELOPER shall indemnify the CITY against any claims, actions or losses the CITY may suffer, sustain or incur because another governmental agency takes action against the CITY after OWNER/DEVELOPER undertake development activities on either of their respective parcels pursuant to the provisions of this Subsection 17 (B). B. The CITY shall issue permits to OWNER/DEVELOPER to authorize the i commencement of mass earthwork and grading on their respective parcels of the SUBJECT PROPERTY or any Parcel thereof prior to acceptance of a final plat of subdivision and final engineering by the CITY, provided, that OWNER/DEVELOPER has submitted and the CITY has approved mass grading and erosion control plans at least thirty (30) days prior to the commencement of such mass earthwork and grading and complies with the erosion control ordinance of the CITY. All earthwork activities shall comply with Illinois EPA requirements and City of Yorkville ordinances. I C. Notwithstanding the foregoing, the SUBJECT PROPERTY or any portion thereof may continue to be used for agricultural and nursery uses as interim uses until the relevant portion of the SUBJECT PROPERTY is actually developed. Such uses shall constitute legal, non - conforming uses of the SUBJECT PROPERTY. 18. COVENANTS. In lieu of any architectural control ordinances adopted by the CITY, the OWNER/DEVELOPER agrees to impose covenants, conditions and restrictions relating to fagade materials, accessory structures and other building restrictions at the time of final plat submittal for each unit. OWNER/DEVELOPER shall include provisions in the covenants to provide that the Homeowners Association shall be responsible for the maintenance of landscaping within the perimeter landscaping easements, signage provided, and other obligations as determined at the time of final platting and as referenced in this Agreement. 19. ESTABLISHMENT OF SPECIAL SERVICE AREA AS PRIMARY FUNDING MECHANISM FOR INSTALLATION OF PUBLIC IMPROVEMENTS. OWNERS', DEVELOPER's and the CITY agree to establish a special service area ( "SSA ") as a primary funding mechanism for installation of on -site and off -site public improvements, including, without limitation, potable water, fire flow and /or water storage facilities, roads, storm water facilities (i.e., storm water sewers, collection and conveyance improvements, detention ponds if they benefit off -site properties), sanitary sewer facilities and other public improvements. The CITY, OWNERS and/or DEVELOPER shall cooperate in good faith to identify and agree on the appropriate structure for the financing, which the CITY and DEVELOPER currently believe will consist of one or more SSA's pursuant to 35 ILCS 200/27 -5 et seq., but which may be authorized and implemented under other legal frameworks acceptable to the CITY, OWNERS and/or DEVELOPER. However, CITY, OWNERS and /or DEVELOPER hereby expressly agree that the form of Special Tax or other Revenue Bond shall be the form of bond which requires a payment at the time of sale of a developed lot, or the time of issuance of a building permit, otherwise known as the "pay down" bond. I The burden of the assessment is limited to and shall be paid by only those future property owners within the SUBJECT PROPERTY, and the other properties joining in the SSA for the areas generally referred to as the "Southwest Infrastructure Developments" described in Section 20 of this agreement. 20. CROSS CONTINGENCIES FOR INFRASTRUCTURE IMPROVEMENTS INCLUDING GREENBRIAR ROAD EXTENTION (SOUTHWEST INFRASTRUCTURE DEVELOPMENTS) A. CROSS CONTINGENCIES. OWNERS, DEVELOPER and CITY agree that this agreement shall be cross contingent with the CITY's approval of Annexations with 5 Developments commonly referred to as the "Southwest Infrastructure Developments." A list of the developments and the funding required on behalf of each of the developments is attached hereto as Exhibit BBB. These developments are related in that they all will derive special benefit from infrastructure improvements to be financed through the issuance of Special Revenue Bond(s) payable from special taxes levied in one or more special service areas to fund the extension of infrastructure to and through the developments. B. SSA FUNDING. Upon all Southwest Infrastructure Developments entered into individual annexation agreements, CITY, OWNERS and DEVELOPERS agree to establish individual Special Service Areas (SSA's) within each of the subdivisions listed on Exhibit BBB. City shall then take action to issue Special Revenue Bonds in and amount sufficient to fund the infrastructure extension by January 15, 2007 otherwise the DEVELOPERS shall have right to intervene. OWNER shall have the right to ont -out of participating in the SSA by providinLy written notice to the CITY of its intention to indenendently fund OWNER'S pro rata share of the infrastructure improvement costs as set forth on Exhibit "AAA -2 ". Written notice of OWNER'S intent to opt -out of the SSA must be provided in accordance with the Notice pro visions of this Agreement and by thirtv (30) days prior to (i) January 15.. 2007. or (ii) actual issuance of the bond(s). whichever is later. OWNER will nav its pro rata share of the costs no later than the date of the bond issuance in readilv available funds. OWNER'S failure to provide notice within the required time period shall be deemed to be its consent to participate in the SSA. The formation of The SSA's and issuance of Special Revenue Bonds is intended to render the following results: 1. All areas will be within the SSA's, and all real property will become subject to the Special Tax. It is anticipated that each development will enact an individual SSA's, and that all SSA's will issue one mutual Special Tax Bond for payments of the improvements. 2. The special tax shall be available to fund the repayment of up to $_(this will be the pro rata amount owed by this development) million in special tax bonds. 3. The special tax revenue bonds shall be used to construct infrastructure as described on Exhibit "AAA ". C. COST CONTAINMENT, OVERRUNS. In order to reduce the risk of cost overruns, OWNERS and /or DEVELOPERS agree that the amount of bonds sold should not be determined until bids have be received by the City for construction of the Southwest Infrastructure. Since final engineering must be completed prior to seeking bids, OWNERS and /or DEVELOPER agree to front fund the amount indicated on Exhibit "BBB" and to receive reimbursement for said sum from the sale of the Revenue Bonds. OWNERS and/or DEVELOPERS shall be allowed to comment regarding the determination of the amount of bonds sold, and the amount of contingency for cost overruns. CITY will respond in writing to all OWNER and DEVELOPER comments and justify said overruns. All DEVELOPERS shall be responsible for contribution, based upon the same ratios and rational used in Exhibit "AAA" if the cost to complete the Southwest Infrastructure exceeds the amount of the Bonds with the additional contribution capped at $1,000,000 per developer. D. PROCEEDS OF BONDS TO BE USED TO EXTEND GREEN BRIAR DRIVE. OWNERS and /or DEVELOPER agrees that traffic ultimately originating from this development, as well as all "Southwest Infrastructure Developments" will give rise to the need for the Green Briar Drive extension to Pavillion Road. One of the first uses of the Special Tax Bonds shall be the acquisition of right -of -way of the Green Briar Drive Extension. The City deems the construction of Green Briar as a high priority and agrees to proceed with construction as funding is available. In addition, OWNER'S and /or DEVELOPERS agree to route all construction traffic along state Route 71 to Pavillion or High Point Road and then to the development, and not allow construction traffic to travel along Fox Road from Rt 47 to the development. E. RECAPTURE /RECOVERY OF INFRASTRUCTURE IMPROVEMENTS The CITY shall, in accordance with Chapter 65, Section 5/9 -5 -1 et.seq. of the Illinois Compiled Statutes, 2002 Edition, enter into agreements for recapture /recovery ( "Recapture/Recovery Agreement ") with DEVELOPER providing for the recapture /recovery by DEVELOPER of a portion of the cost of certain improvements as identified on Exhibit "AAA ", constructed by DEVELOPER which the CITY has determined may be used for the benefit of property ( "Benefited Property ") not located within the Subject Property which connect to said improvements. The Benefited Property is identified on said Exhibit "DDD" attached hereto. Recapture for the Green Briar Drive improvement may include an increase of the normal and customary road fee for the Benefited Properties and therefore require the CITY to consider increasing this fee for the Benefited Properties via the annexation agreements for the Benefited Properties. Each Recapture Agreement shall be substantially in the form as attached hereto and made a part hereof as Exhibit "EEE ". 21. HOMEOWNERS ASSOCIATION AND DORMANT SPECIAL SERVICE AREA (DSSA). i A. Homeowners Association. OWNER/DEVELOPER shall establish through a declaration of covenants, conditions and restrictions, a Homeowners Association ( "Association ") of all lot owners and a mandatory membership of all lot owners in the Association. The Association shall have the primary responsibility and duty to carry out and pay for the maintenance of Common Facilities (defined below) through assessments levied against all dwelling units. A maintenance easement shall be established over all of the Common Facilities located on the final plat for the Association that undertakes responsibility 3 for the Common Facilities Maintenance. The Association will be responsible for the regular care, maintenance, renewal and replacement of the Common Facilities including stormwater detention areas and other open spaces. The maintenance described herein shall include, without limitation, the mowing and fertilizing of grass, pruning and trimming of trees and bushes, removal and replacement of diseased or dead landscape materials, and the repair and replacement of fences and monument signs, so as to keep the same in a clean, sightly and first class condition, and shall otherwise comply with the CITY's Property Maintenance Standards and Landscape Ordinance. B. Dormant Special Service Area. DEVELOPER agrees to the CITY enacting at the time of final plat approvals a Dormant Special Service Area (DSSA) to act as a back up in the event that the Homeowner's Association fails to maintain the private common areas, detention ponds, perimeter landscaping features, and entrance signage. 22. ONSITE EASEMENTS AND IMPROVEMENTS. In the event that during the development of the SUBJECT PROPERTY, OWNER/DEVELOPER determine that any existing utility easements and/or underground lines require relocation to facilitate the completion of their obligation for their respective parcels of the SUBJECT PROPERTY in accordance with the Preliminary Plat, the CITY shall fully cooperate with OWNER/DEVELOPER in causing the vacation and relocation of such existing easements and/or utilities, however, all costs incurred in furtherance thereof shall be borne by the OWNER/DEVELOPER. If any easement granted to the CITY as a part of the development of the SUBJECT PROPERTY is subsequently determined to be in error or located in a manner inconsistent with the intended development of the SUBJECT PROPERTY as reflected on the Preliminary Plat and in this Agreement, the CITY shall fully cooperate with OWNER/DEVELOPER in vacating and relocating such easement and utility facilities located therein, which costs shall be borne by OWNER/DEVELOPER, as the case may be. Notwithstanding the foregoing, and as a condition precedent to any vacation of easement, OWNER/DEVELOPER shall pay for the cost of design and relocation of any such easement and the public utilities located on their respective parcels unless the relocation involves overhead utilities. 23. DISCONNECTION. i OWNEWDEVELOPER shall develop the SUBJECT PROPERTY as a development to be commonly known as Silver Fox in accordance with the final plat and final engineering approved by the CITY in accordance with the terms hereof, and shall not, as either the OWNER/DEVELOPER of said property, petition to disconnect any portion or all of said property from the CITY or from any service provided by the CITY. 24. CONFLICT IN REGULATIONS. The provisions of this Agreement shall supersede the provisions of any ordinance, code, or regulation of the CITY which may be in conflict with the provisions of this Agreement. 25. CITY ASSISTANCE. The CITY agrees to cooperate and provide any reasonable assistance requested by OWNER/DEVELOPER in applying for and obtaining any and all approvals or permits necessary for the development of the SUBJECT PROPERTY, including, but not limited to those required from the Illinois Environmental Protection Agency, the Army Corps of Engineers, the Federal Emergency Management Agency, the United States Environmental Protection Agency, IDOT, the Illinois Department of Natural Resources, Kendall Township, the United City of Yorkville Park Board and Yorkville Community Unit School District 115. The CITY further agrees to reasonably cooperate with OWNER/DEVELOPER in obtaining all permits and approvals required by the applicable sanitary district, the County of Kendall and all other governmental units in connection with the contemplated development of the SUBJECT PROPERTY. 26. ADDRESSES. Within fourteen (14) days after the final plat of subdivision is approved, CITY will provide OWNEWDEVELOPER with the addresses of all lots for the purpose of expediting the process of obtaining utility installations by the applicable utility company or companies. 27. SUBSEOUENT AMENDMENTS. It is understood and agreed that subsequent amendments of this Agreement, maybe obtained solely by the owner of any portion of the SUBJECT PROPERTY and the CITY as to such portion without any action or approval of the owners of other portions of the SUBJECT PROPERTY if such amendments do not affect the rights, duties or obligations of the owners of the balance of the SUBJECT PROPERTY not included in the aforedescribed amendments without any action or approval of the owners of other portions of the SUBJECT PROPERTY. Rezoning may be applied for and processed by the CITY without requiring an amendment of this Agreement. 28. "RIGHT TO FARM" LANGUAGE. The OWNER/DEVELOPER of the roe acknowledges that Kendall County has a long, p p rtY g tY g, rich tradition in agriculture and respects the role that farming continues to play in shaping the economic viability of the county (zoning indicator A -1 or Ag Special Use), normal i agricultural practices may result in occasional smells, dust, sights, noise and unique hours of operation that are not typical in other zoning areas. The OWNER/DEVELOPER of the property agree to incorporate the "Right to Farm" language on the Final Plat of Subdivision and incorporate similar language within such other documents governing the subdivision if any property adjacent thereto is used or operated as a farm. 29. RESPONSIBILITIES OF OWNER/DEVELOPER. The CITY agrees that the OWNER/DEVELOPER is exculpated from any personal liability or obligation to perform the commitments and obligations set forth herein for the SUBJECT PROPERTY for which they do not act as developer and that the CITY will look solely to the party who develops for such performance. i 30. GENERAL PROVISIONS. A. Enforcement. This Agreement shall be enforceable in the Circuit Court of Kendall County by any of the parties or their successors or assigns by an appropriate action at law or in equity to secure the performance of the covenants and agreements contained herein, including the specific performance of this Agreement. This Agreement shall be governed by the laws of the State of Illinois. B. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the OWNER/DEVELOPER and their successors in title and interest, and upon the CITY, and any successor municipalities of the CITY. It is understood and agreed that this Agreement shall run with the land and as such, shall be assignable to and binding upon each and every subsequent grantee and successor in interest of the OWNEWDEVELOPER, and the CITY. The foregoing to the contrary notwithstanding, the obligations and duties of OWNER/DEVELOPER hereunder shall not be deemed transferred to or assumed by any purchaser of a empty lot or a lot improved with a dwelling unit who acquires the same for residential occupation, unless otherwise expressly agreed in writing by such purchaser. C. All Terms and Conditions Contained Herein. This Agreement contains all the terms and conditions agreed upon by the parties hereto and no other prior agreement, regarding the subject matter hereof shall be deemed to exist to bind the parties. The parties acknowledge and agree that the terms and conditions of this Agreement, including the payment of any fees, have been reached through a process of good faith negotiation, both by principals and through counsel, and represent terms and conditions that are deemed by the parties to be fair, reasonable, acceptable and contractually binding upon each of them. D. Notices. Notices or other materials which any party is required to, or may wish to, serve upon any other parry in connection with this Agreement shall be in writing and shall be deemed effectively given on the date of confirmed telefacsimile transmission, on the date delivered personally or on the second business day following the date sent by certified or registered mail, return receipt requested, postage prepaid, addressed as follows: (I) If to OWNER Midwest Development, LLC DEVELOPER: Yorkville, Illinois 60560 Fax: (630) 553 -3024 with copies to: Law Offices of Dallas C. Ingemunson, 226 S. Bridge Street Yorkville, Illinois 60560 Attention: Gregg Ingemunson Fax: (630) 553 -7958 (II) If to CITY: United City of Yorkville Attn: City Clerk 800 Game Farm Road Yorkville, IL 60560 Fax: (630) 553 -7575 or to such other persons and /or addresses as any parry may from time to time designate in a written notice to the other parties. E. Severabilitv. This Agreement is entered into pursuant to the provisions of Chapter 65, Sec. 5/11- 15.1 -1, et seq., Illinois Compiled Statutes (2002 ed.). In the event any part or portion of this Agreement, or any provision, clause, word, or designation of this Agreement is held to be invalid by any court of competent jurisdiction, said part, portion, clause, word or designation of this Agreement shall be deemed to be excised from this Agreement and the invalidity thereof shall not effect such portion or portions of this Agreement as remain. In addition, the CITY and OWNER/DEVELOPER shall take all action necessary or required to fulfill the intent of this Agreement as to the use and development of the SUBJECT PROPERTY. F. Agreement. This Agreement, and any Exhibits or attachments hereto, may be amended from time to time in writing with the consent of the parties, pursuant to applicable provisions of the City Code and Illinois Compiled Statutes. This Agreement may be amended by the CITY and the owner of record of a portion of the SUBJECT PROPERTY as to provisions applying exclusively thereto, without the consent of the owner of other portions of the SUBJECT PROPERTY not effected by such Agreement. G. Conveyances. Nothing contained in this Agreement shall be construed to restrict or limit the right of the OWNER/DEVELOPER to sell or convey all or any portion of the SUBJECT PROPERTY, whether improved or unimproved. H. Necessary Ordinances and Resolutions. The CITY shall pass all ordinances and resolutions necessary to permit the OWNER/DEVELOPER, and their successors or assigns, to develop the SUBJECT PROPERTY in accordance with the provisions of this Agreement, provided said ordinances or resolutions are not contrary to law. The CITY agrees to authorize the Mayor and City Clerk to execute this Agreement or to correct any technical defects which may arise after the execution of this Agreement. I. Term of Agreement. The term of this Agreement shall be twenty (20) years from the date of execution of this Agreement. In the event construction is commenced within said twenty -year period all of the terms of this Agreement shall remain enforceable despite said time limitation, unless modified by written agreement of the CITY and OWNER/DEVELOPER. i J. Captions and Paragraph Headings. The captions and paragraph headings used herein are for convenience only and shall not be used in construing any term or provision of this Agreement. K. Recording. This Agreement shall be recorded in the Office of the Recorder of Deeds, Kendall County, Illinois, at OWNER/DEVELOPER's expense. L. Recitals and Exhibits. The recitals set forth at the beginning of this Agreement, and the exhibits attached hereto, are incorporated herein by this reference and shall constitute substantive provisions of this Agreement. M. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document. N. No Moratorium. The CITY shall not limit the number of building or other permits that may be applied for due to any CITY imposed moratorium and shall in no event unreasonably withhold approval of said permits or approval for the final plat of the subdivision. Nothing contained herein shall affect any limitations imposed as to sanitary sewer or water main extensions by the Illinois Environmental Protection Agency, Yorkville- Bristol Sanitary District, or any other governmental agency that preempts the authority of the United City of Yorkville. O. Time is of the Essence. Time is of the essence of this Agreement and all documents, agreements, and contracts pursuant hereto as well as all covenants contained in this Agreement shall be performed in a timely manner by all parties hereto. P. Legal Challenges. If for any reason and at any time, the annexation of the SUBJECT PROPERTY to the CITY is legally challenged by any person or entity by an action at law or in equity, the CITY shall: (i) cooperate with OWNEWDEVELOPER in the vigorous defense of such action through all proceedings, including any appeals; and (ii) take such other actions as may then or thereafter be possible pursuant to the Illinois Municipal Code to annex the SUBJECT PROPERTY and/or other properties to the CITY so that the annexation of the SUBJECT PROPERTY to the CITY can be sustained and/or effected. i I Q. Maior and Minor Modifications. Any modification to any approved preliminary or final plats of subdivision and engineering plans, which are deemed to be minor modifications, may be approved by the CITY Administrator (following review and approval by the CITY Engineer) without requiring a public hearing and without formal amendment to the Planned Development approved for the SUBJECT PROPERTY or this AGREEMENT. Modifications necessary to solve engineering, layout and /or design problems shall be deemed to be minor modifications so long as such modifications do not change the essential character of the preliminary or final plats of subdivision or engineering plans or increase the total number of dwelling units allowed on the SUBJECT PROPERTY. Any revisions to a preliminary or final plat of subdivision or engineering plan, which if determined by the CITY to be major modifications, shall require review by the CITY's Planning Commission and approval by the CITY Council. In no event shall such major modification require an amendment to this AGREEMENT. R. Exculpation. It is agreed that the CITY is not liable or responsible for any restrictions on the CITY's obligations under this Agreement that may be required or imposed by any other governmental bodies or agencies having jurisdiction over the SUBJECT PROPERTY, the CITY, the OWNER/DEVELOPER, including, but not limited to, county, state or federal regulatory bodies. S. Effectiveness. This Agreement shall be subject to and shall take effect immediately. [SIGNATURE PAGE FOLLOWS] i I IN WITNESS WHEREOF, the parties hereto have set their hands and seals to this Agreement as of the day and year first above written. OWNERS: CITY: Midwest Development, LLC By: Name: Its UNITED CITY OF YORKVILLE, an Illinois municipal corporation By: Title: Mayor Attes . Title: i 1 r LIST OF EXHIBITS EXHIBIT "A ": Legal Description EXHIBIT "B Preliminary Plat EXHIBIT "C ": Fee Schedule EXHIBIT AAA: Overall Infrastructure Funding Summary EXHIBIT BBB: Front Funding Distribution Summary EXHIBIT CCC: SSA Summary of Terms EXHIBIT DDD: Recapture/Recovery Area — Benefited Properties EXHIBIT EEE: Recapture/Recovery Agreement l • I EXHIBIT A THAT PART OF SECTION 6, TOWNSHIP 36 NORTH, RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE SOUTHERLY RIGHT OF WAY LINE OF THE BURLINGTON, NORTHERN RAILWAY COMPANY, WHICH POINT, PREVIOUSLY MONUMEN'IED BY A CONCRETE MONUMENT, IS REPORTED TO BE 50.54 FEET, SOUTH 61 DEGREES 06 MINUTES 20 SECONDS WEST ALONG SAID RIGHT OF WAY FROM THE INTERSECTION OF SAID RIGHT OF WAY LINE AND THE NORTH LINE OF SAID SECTION 6; THENCE SOUTH 61 DEGREES 06 MINUTES 20 SECONDS WEST ALONG THE SOUTHERLY LINE OF SAID RAILROAD, 1437.98 FEET; THENCE SOUTH 01 DEGREES 28 MINUTES 38 SECONDS EAST, 406.94 FEET; THENCE SOUTH 25 DEGREES 19 MINUTES 10 SECONDS EAST, 1326.82 FEET; THENCE SOUTH 24 DEGREES 50 MINUTES 33 SECONDS EAST, 1405.93 FEET; THENCE NORTH 75 DEGREES 51 MINUTES 51 SECONDS EAST, 1556.19 FEET; THENCE NORTH 14 DEGREES 05 MINUTES 45 SECONDS WEST, 393.10 FEET; THENCE NORTH 77 DEGREES 27 MINUTES 51 SECONDS EAST, 11.20 FEET; THENCE NORTH 12 DEGREES 35 MINUTES 59 SECONDS WEST 2406.69 FEET TO THE CENTER LINE OF FOX ROAD; THENCE SOUTH 62 DEGREES 58 MINUTES 18 SECONDS WEST, ALONG SAID CENTER LINE, 581.48 FEET; THENCE NORTH 21 DEGREES 46 MINUTES 09 SECONDS WEST, 784.86 FEET TO THE POINT OF BEGINNING, (EXCEPT THAT PART IN FOX GLEN, BEING THAT PART OF THE FOREGOING NORTH OF THE CENTER LINE OF FOX ROAD, AND EXCEPT THAT PART OF THE NORTHWEST QUARTER OF SECTION 6, TOWNSHIP 36 NORTH, RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: BEGINNING AT THE CENTER LINE OF FOX ROAD AT THE SOUTHWEST CORNER-OF A SUBDIVISION KNOWN AS "FOX GLEN, KENDALL TOWNSHIP, KENDALL COUNTY, ILLINOIS; THENCE SOUTH 25 DEGREES 19 MINUTES 10 SECONDS EAST ALONG THE WEST LINE OF LOT 19 IN SAID SUBDMSION EXTENDED, 835.57 FEET; THENCE NORTH 64 DEGREES 40 MINUTES 50 SECONDS EAST 217.38 FEET; THENCE NORTH 18 DEGREES 20 MINUTES 07 SECONDS WEST 708.61 FEET; THENCE NORTH 18 DEGREES 46 MINUTES 05 SECONDS EAST 138.95 FEET TO THE SOUTHERLY RIGHT OF WAY LINE OF SAID FOX ROAD; THENCE NORTH 25 DEGREES 41 MINUTES 24 SECONDS WEST 35,00 FEET TO SAID CENTER LINE; THENCE SOUTH 64 DEGREES 18 MINUTES 36 SECONDS WEST ALONG SAID CENTER LINE, 400.00 FEET TO THE POINT OF BEGINNING) IN THE TOWNSHIP OF KENDALL, KENDALL COUNTY, ILLINOIS, AND CONTAINING 102.75 +/. ACRES. I I D. Recordation: A true and correct copy of this Agreement shall be recorded, at DEVELOPER's expense, with the Kendall County Recorder's office. This Agreement shall constitute a covenant running with the land and shall be binding upon the Benefited Properties in accordance with the terms and provisions set forth herein. E. Notices Any notice required or desired to be given under this Agreement, unless expressly provided to the contrary herein, shall be in writing and shall be deemed to have been given on the date of personal delivery, on the date of confirmed telefacsimile transmission provided a hard copy of such notice is deposited in the U.S. mail addressed to the recipient within twenty -four hours following the telefacsimile transmission, or on the date when deposited in the U.S. Mail, registered or certified mail, postage prepaid, return receipt requested, and addressed as follows: If to CITY: United CITY of Yorkville Attn: CITY Clerk 800 Game Farm Road Yorkville, I160560 Fax: (630) 553-4350 with a copy to: John Wyeth, Esq. 800 Game Farm Road Yorkville, I160560 Fax: (630) 553 -4350 If to OWNER F. Severabilitv: The invalidity or unenforceability of any of the provisions hereof, or any charge imposed as to any portion of the Benefited Properties, shall not affect the validity or enforceability of the remainder of this Agreement or the charges imposed hereunder. G. Complete Agreement: This Agreement contains all the terms and conditions agreed upon by the parties hereto and no other prior agreement, excepting the Annexation Agreement, regarding the subject matter of this Agreement shall be deemed to exist to bind the parties. This Agreement shall be governed by the laws of the State of Illinois. H. Captions and Parap-raph Headings: Captions and paragraph headings incorporated herein are for convenience only and are not part of this Agreement, and further shall not be used to construe the terms hereof. 1 i I. Recitals and Exhibits: The recitals set forth at the beginning of this Agreement and the exhibits attached hereto are hereby incorporated into this Agreement and made a part of the substance hereof. I Enforceability: This Agreement shall be enforceable in the Circuit Court of Kendall County by any of the parties hereto by an appropriate action of law or in equity to secure the performance of the covenants herein contained. i I i i IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals as of the date first above written. DEVELOPER: CITY: UNITED CITY OF YORKVILLE, an Illinois municipal corporation j By: By: j Mayor Title: President Attest: Dated: CITY Clerk I I I i I