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Ordinance 2013-50 DFEER1Ir, .11:: E K Iqpi-tL. l_ C0U Nall Y ,I II_ RECORDED : 8/29/2013 10 : 37 AN ORDI : 60. 00 RHSPS tEt : 10. 00 PAGES : 15 UNITED CITY OF YORKVILLE KENDALL COUNTY, ILLINOIS ORDINANCE NO. 2013-50 ORDINANCE APPROVING A FIFTH AMENDMENT TO AN ANNEXATION AGREEMENT AND PLANNED UNIT DEVELOPMENT AGREEMENT (Raintree Village — Formerly the Highlam?d Saibdivision) Passed by the City Council of the United City of Yorkville, Kendall County, Illinois This 13 "` day of August, 2013 Prepared by and Return to : United City of Yorkville 800 Game Farm Road Yorkville, IL 60560 Published in pamphlet form by the authority of the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois on August 22, 2013 . Ordinance No . 2013- !TD ORDINANCE APPROVING A FIFTH AMENDMENT TO AN ANNEXATION AGREEMENT AND PLANNED UNIT DEVELOPMENT AGREEMENT (Raintree Village — Formerly the Highland Subdivision) WHEREAS , the United City of Yorkville, Kendall County, Illinois (the " City"), is a non-home-rule municipality pursuant to the Illinois Constitution of 1970 and the laws of this State; and, WHEREAS , the City entered into a certain Annexation Agreement and Planned Unit Development Agreement in 1997 (as amended, restated, supplemented or otherwise modified from time to time, the "Annexation Agreement") with Wyndham Deerpoint Homes, an Illinois limited partnership (the " Original Owners") which provided for, among other things, the development of approximately 186 acres of real property (the "Subject Property") for residential use; and, WHEREAS , the Original Owners proceeded to develop the Subject Property and constructed 291 single-family residential units, however, due to economic conditions, were unable to complete the development and have now been succeeded by MS Rialto Raintree Village IL and MS Rialto Raintree Village II, LLC (the " Current Owners") ; and, WHEREAS, the Current Owners and the City desire to amend the Annexation Agreement to clarify the respective obligations of the parties pertaining to the completion of the development of the Subject Property, all as set forth in the Fifth Amendment to an Annexation Agreement and Planned Unit Development Agreement (Raintree Village — Formerly the Highland Subdivision) (hereinafter the "Fifth Amendment") , Ordinance No . 2013 - 50 Page 2 NOW, THEREFORE, BE IT ORDAINED by the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois, that the Fifth Amendment in the form attached hereto is hereby approved and the Mayor and City Clerk are hereby authorized to execute and deliver said Fifth Amendment. BE IT FURTEHR ORDAINED that the City Administrator and City Engineer are hereby authorized to proceed as necessary to implement the terms of said Fifth Amendment. Passed by the City Council of the United City of Yorkville, Kendall County, Illinois, this day of 52013 , CITY CLERK ROSE ANN SPEARS DIANE TEELING KEN KOCH y JACKIE MILSCHEWSKI y CARLO COLOSIMO T JOEL FRIEDERS CHRIS FUNKHOUSER ~� LARRY KOT Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this dcR day of 74U6 US 1 2013 , MAYOR Ordinance No . 2013 - 60 Page 3 FIFTH AMENDMENT TO AN ANNEXATION AGREEMENT AND PLANNED UNIT DEVELOPMENT AGREEMENT (Raintree Village — Formerly the Highland Subdivision) THIS FIFTH AMENDMENT (the "Fifth Amendment") to the Annexation Agreement and Planned Unit Development Agreement dated March 28 , 1997, by and between Wyndham Deerpoint Homes, an Illinois limited partnership (collectively the " Original Owners") and the United City of Yorkville, Kendall County, Illinois, a municipal corporation (hereafter the "City"), as amended June 24, 1999, December 10, 2002 , January 13 , 2004 and October 11 , 2005 , is dated this as day of August 2013 , by and among the City, MS Rialto Raintree Village IL, LLC , a Delaware limited liability company ("MS IL") and MS Rialto Raintree Village II, LLC, a Delaware limited liability company ("MS IT' and together with MS IL, individually and collectively, "MS") as successors to the Original Owners . RECITALS : WHEREAS, the United City of Yorkville, Kendall County, Illinois, is a non-home-rule municipality pursuant to the Illinois Constitution of 1970 and the laws of this State; and, WHEREAS, the City entered into a certain Annexation Agreement and Planned Unit Development Agreement in 1997 (as amended, restated, supplemented or otherwise modified from time to time, the "Annexation Agreement") with the Original Owners which provided for, among other things, the development of approximately 186 acres of real property (the "Subject Property") for residential use ; and, WHEREAS, the Original Owners proceeded to develop the Subject Property and constructed 291 single-family residential units, however, due to economic conditions, were unable to complete the development; and, 1 WHEREAS, MS and the City wish to amend the Annexation Agreement, subject to the terms and conditions as hereinafter set forth. NOW, THEREFORE, for and in consideration of the premises and the mutual covenants and agreements hereinafter set forth, the parties agree as follows : Section 1. Recitals . The foregoing Recitals are hereby incorporated into this Fifth Amendment as if fully restated. Section 2. Status of Development of the Subject Property. A. The parties hereto acknowledge that the development of the Subject Property has been platted in six (6) units, for single-family homes, duplexes and townhomes as follows : SINGLE FAMILY DUPLEXES TOWNHOMES UNIT 1 97 0 0 UNIT 2 100 0 0 UNIT 3 1 86 0 UNIT 4 0 38 128 UNIT 5 101 0 0 UNIT 6 103 0 0 TOTAL 402 124 128 B . The Original Owners, upon approval of the Final Plats for all six (6) units, paid all applicable development fees, school and park transition fees, connection fees, water siren fees, municipal building fees, interceptor fee, sanitary sewer fee, river crossing fee other than building permit fees which are due and payable upon application of a building permit. C . The Original Owners deposited performance bonds as required by City Code to ensure completion of the public infrastructure for the development of the Subject Property and 2 requested the designation of Special Service Areas pursuant to the Special Service Tax Law, 35 ILCS 200/27 et seq . , covering the Subject Property to be utilized as a primary funding mechanism for public improvements benefitting the Subject Property . D . The Original Owners delivered to the City the following performance bonds as security to guarantee the construction of the public improvements required for the development of the Subject Property : Bond Safeguard Co. #5035420 in the amount of $ 396, 809 . 12 ; Bond Safeguard Co . #5035421 in the amount of $ 503 , 184 . 11 ; Bond Safeguard Co . #5035422 in the amount of $ 891 , 128 . 30 ; and, Arch Insurance Company, Bond # 104125069 in the amount of $ 3 , 000 . 00 . E. Pursuant to the request of the Original Owners, the City established Special Service Area Number 2003 - 100 and Special Service Area Number 2004- 107 and issued SSA Bonds in the principal amount of $7, 150,000 and $9,400,000 respectively, the proceeds of which were used to pay the costs of public infrastructure benefitting all six (6) units of the Subject Property with an available balance of $ 1 , 109,463 which the City estimates to be sufficient infrastructure items . F . Pursuant to the terms of that certain Public Improvements Agreement dated November 1 , 2005 (as amended, restated, supplemented or otherwise modified from time to time, the "Public Improvements Agreement"), by and among the City, MS II (as successor to Raintree Village II, L .L . C . ) and the " Seller" as defined therein, no security is required for that portion of the cost of the public improvements that are paid, or to be paid, from the bond proceeds . G. As of the date hereof, the real estate taxes assessed as a result of the establishment of Special Service Area 2003 - 100 and Special Service Area 2004- 107 for the year 2011 , payable in 2012, have not been paid on those lots within the Subject Property which are owned by MS . H. As of the date hereof, the following number of residential units have been completed : 20 of the 128 platted townhomes ; 65 of the 124 platted duplexes ; and, 206 of the 402 platted single-family residences Section 3. Obligations of MS. MS hereby covenants and agrees, in consideration of the undertakings and commitments of the City as hereinafter set forth in Section IV of this Fifth Amendment as follows : A. To pay real estate taxes and special assessments on all lots owned by MS within Units 1 , 2 and 3 of the Subject Property for the year 2011 , (payable in 2012), the year 2012 (payable in 2013 ) , and to pay, or cause to be paid, all future real estate taxes and special assessments levied on each within Units 1 , 2 and 3 of the Subject Property owned by MS as such taxes and special assessments become due and payable . Be To pay or cause to be paid, real estate taxes and special assessments on all lots owned by MS within Units 4, 5 and 6 of the Subject Property for the year 2011 (payable in 2012), year 2012 (payable in 2013 ) and year 2013 (payable in 2014) prior to the due date for said real estate taxes as established by Kendall County . Should such real estate taxes and special assessments for the years 2011 and 2012 (payable in 2012 and 2013 , respectively) not be paid on or before January 1 , 2014 , then MS shall pay to the City on or before January 15 , 2014, (i) $ 360 . 00 per non-MS-owned single-family residence within Unit 4, 5 or 6 as of the date of this 4 Fifth Amendment, (ii) $294 . 00 per non-MS-owned duplex within Unit 4, 5 or 6 as of the date of this Fifth Amendment, and (iii) $250 . 00 per non-MS owned townhome within Unit 4, 5 or 6 as of the date of this Fifth Amendment (the sum of (i) through (iii), the "2014 Paymen(") . Should such real estate taxes and special assessments for 2013 , payable in 2014, not be paid on or before January 1 , 2015 , MS shall pay to the City on or before January 15 , 2015 , (x) $ 180 . 00 per non- MS owned single-family residence within Unit 4, 5 or 6 as of the date of this Fifth Amendment, (y) $ 147 . 00 per non-MS owned duplex within Unit 4, 5 or 6 as of the date of this Fifth Amendment, and (z) $ 125 . 00 per non-MS owned townhome within Unit 4, 5 or 6 as of the date of this Fifth Amendment (the sum of (x) through (z), the "2015 Payment") . Upon receipt of the 2014 Payment and/or 2015 Payment, as applicable, the City shall determine whether property owners within Units 4, 5 and 6 who are subject to the same special assessment shall be paid directly, credited the amount due to each on their respective water bills or otherwise compensated by such other method as the City may determine appropriate to ensure that such property owners receive the benefit of the 2014 Payment and/or 2015 Payment, as applicable. C . To assign all of MS ' s right, title and interest in and to bond proceeds resulting from the issuance of bonds secured by Special Service Area 2003 - 100 and Special Service Area 2004- 107 to the City in order to permit the City to complete the public infrastructure serving the Subject Property . D . To use its reasonable best efforts to cause an entity that is not affiliated with MS to complete the construction of the remaining 108 townhomes, 59 duplexes and 196 single- family residences in accordance with the recorded final plats , all applicable codes and regulations of the City and other governmental units having jurisdiction over the Subject Property . E. To continue to satisfy its obligations to the homeowners ' associations in all material respects, to the extent such obligations have not been assumed by the residents or any other person. F . To use its reasonable best efforts to notify home builders of the home builder ' s obligation to provide security on a lot by lot basis for residential landscaping, sidewalk and driveway improvements in an amount equal to 120% of the total cost as estimated by City Engineer. G. To agree that the fees which are applicable to the development of the Subject Property are as set forth on Exhibit A attached hereto and made a part hereof. Section 4. Obligation of the City. For and in consideration of the undertakings by MS as hereinabove set forth in Section 3 , the City covenants and agrees to undertake the following : A. Upon receipt of the assignment of all right, title and interest in the bond proceeds issued pursuant to the Special Service Area 2003 - 100 and Special Service Area 2004- 107 , the City shall release the following performance bonds : ( 1 ) Bond Safeguard Co . (security for Unit 4) ; Bond No . 5035420 in the amount of $396, 809 . 12 ; and, (2) Bond Safeguard Co. (security for Unit 5) ; Bond No . 5035421 in the amount of $ 503 , 184 . 11 ; (3 ) Bond Safeguard Co . (security for Unit 6) Bond No . 5035422 in the amount of $ 891 , 128 . 30 ; and, (4) Arch Insurance Company (security for Route 71 improvements) Bond No . 104125069 in the amount of $ 3 ,000 . 00 . 6 Furthermore, upon such assignment the City and MS II shall terminate the Public Improvements Agreement and MS shall have no further obligations to the City except as otherwise specified in Section 3 hereof. B . Upon receipt of the assignment of all right, title and interest in the bond proceeds issued pursuant to the Special Service Area 2003 - 100 and Special Service Area 2004- 107, the City agrees to proceed to construct all public improvements as required pursuant by the approved Final Plat for the Subject Property . C . Pursuant to Section 8- 1 -2 . 5 of the Illinois Municipal Code (65 ILCS 8 - 1 -2 . 5) which authorizes a municipality to appropriate or expend funds or make grants for the purpose of economic development, the City agrees that all fees applicable to the development of the Subject Property as itemized on Exhibit ,4 attached hereto and made a part hereof shall not be increased for a period of five (5) years from the date hereof. D . The City agrees that all applicable City zoning and building codes currently in full force and effect shall apply to the Subject Property and no amendment to said City building or zoning Codes shall apply to the Subject Property for a period of five (5) years from the date hereof unless such City building or zoning codes are less restrictive than those currently in full force and effect. Section 5. Procedure for Declaring Defaults. In the event any party defaults in its performance of its obligations set forth in this Fifth Amendment, then the non-defaulting parties shall, upon notice to the defaulting parry, allow the defaulting parry thirty (30) days to cure the default or provide evidence that such default will be cured in a timely manner if it cannot be cured during said period. Notwithstanding the above, in the event of an emergency life, health or safety situation, the City shall have the right, but not the obligation, to enter onto the Subject Property and cure the default without giving MS prior notice or an opportunity to cure . Section 6. Remedies for Defaults or Failure of Conditions. Upon a breach of this Fifth Amendment, any of the parties, in any court of competent jurisdiction, by an action or proceeding in law or equity, may pursue any and all remedies available at law and in equity, including but not limited to a writ of mandamus, declaratory judgment or the specific performance of the covenants and agreements herein contained, any monetary damages and any and all other remedies other provided by law or equity . Section 7. Severability. If any section, subsection, term or provision of this Fifth Amendment or the application thereof to any parry or circumstance shall, to any extent, be invalid or unenforceable, the remainder of said section, subsection, term or provision of this Development Agreement or the application of same to parties or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby . Section 8. Notices. All notices, demands, requests, consents, approvals or other instruments required or permitted by this Fifth Amendment shall be in writing and shall be executed by the party or an officer, agent or attorney of the parry, and shall be deemed to have been effective as of the date of actual delivery, if delivered personally, or as of the third (3rd) day from and including the date of posting, if mailed by registered or certified mail, return receipt requested, with postage prepaid, addressed as follows : 8 r To MS Bill Burgess, President Lennar Minnesota 1630536 1h Avenue N. Suite 600 Plymouth, MN 55466 With a copy to : Nicholas Isaacson Faegre Baker Daniels, LLP 311 South Wacker Dive Suite 4400 Chicago, Illinois 60606 To the City United City of Yorkville 800 Game Farm Road Yorkville, Illinois 60560 With a copy to : Kathleen Field Orr, City Attorney Kathleen Field Orr & Associates 53 West Jackson Blvd. Suite 964 Chicago, Illinois 60604 Section 9. Miscellaneous. A. This Fifth Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns . B . This Fifth Amendment may not be assigned by MS without the prior written consent of the City . C . Time is of the essence of this Fifth Amendment and all documents, agreements and covenants contained herein shall be performed in a timely manner by the parties hereto . D . This Fifth Amendment may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute but one and the same instrument. i 1 IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment to be executed by their duly authorized officers on the above date at Yorkville, Illinois . United City of Yorkville, an Illinois Municipal Corporation By : Mayor Attest: �p (l- L> City Clerk MS Rialto Raintree Village IL, LLC, a Delaware limited liability company, as to Raintree Village units/parcels 1 , 2 and 3 MS Rialto Raintree Village II, LLC, a Delaware limited liability company, as to Raintree Village units/parcels 4, 5 and 6 By : MS Rialto Residential Holdings, LLC, a Delaware limited liability company, its member By : MSR Holding Company, LLC, a Delaware limited liability company, its member By : U. S . Home Corporation, a Delaware corporation, its Illinois Manager By : Name : A ... 15WOL, S ) Title : SQ . ✓ , P . Date : August L1, 2013 Attest: ecretary Mark Sustana 10 LEGAL DESCRIPTION UNIT ONE: RAINTREE VILLAGE, UNIT ONE BEING PART OF THE SOUTH HALF OF SECTION 4 AND PART OF SECTION 9, ALL IN TOWNSHIP 36 NORTH, RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN THE UNITED CITY OF YORKVILLE, KENDALL TOWNSHIP, KENDALL COUNTY, ILLINOIS RECORDED AS DOCUMENT NO. 200400000938. UNIT TWO : RAINTREE VILLAGE, UNIT TWO BEING PART OF SECTION 3 , 45 9 AND 10 OF TOWNSHIP 36 NORTH, RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN, KENDALL TOWNSHIP, KENDALL COUNTY, ILLINOIS RECORDED AS DOCUMENT NO. 200400023274 . UNIT THREE: RAINTREE VILLAGE, UNIT THREE BEING PART OF THE SOUTHWEST QUARTER OF SECTION 3 AND PART OF THE NORTHWEST QUARTER OF SECTION 10, ALL IN TOWNSHIP 36 NORTH, RANGE 7 EAST OF THE THIRD PRINCIPAL ERIDIAN, KENDALL TOWNSHIP, KENDALL COUNTY, ILLINOIS RECORDED AS DOCUMENT NO. 200400023275 , UNIT FOUR: RAINTREE VILLAGE, UNIT FOUR BEING PART OF THE SOUTHWEST QUARTER OF SECTION 3 AND PART OF THE NORTHWEST QUARTER OF SECTION 10, ALL IN TOWNSHIP 36 NORTH, RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN THE UNITED CITY OF YORKVILLE, KENDALL TOWNSHIP , KENDALL COUNTY, ILLINOIS RECORDED AS DOCUMENT NO . 200600015999 . UNIT FIVE: RAINTREE VILLAGE, UNIT FIVE BEING PART OF SECTION 9 IN TOWNSHIP 36 NORTH, RANGE 7 EAST OF THE THIRD PRINICPAL MERIDIAN, IN THE UNITED CITY OF YORKVILLE, KENDALL COUNTY, ILLINOIS RECORDED AS DOCUMENT NO. 200500017195 . UNIT SIX: RAINTREE VILLAGE, UNIT SIX BEING PART OF SECTION 9 AND APRT OF SECTION 10 IN TOWNSHIP 36 NORTH, RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN THE UNITED CITY OF YORKVILLE, KENDALL COUNTY, IL RECORDED AS DOCUMENT NO . 200700032691 . EXHIBIT A RAINTREE VILLAGE Updated 8/22/2013 FEES PER UNIT A paid receipt from the School District Office , 602-A Center Parkway Yorkville , must be presented to the City prior to issuance of permit $ 1 , 500 Separate Yorkville- Bristol Sanitary District fee - made payable to Y . B . S . D . $ 1 , 400 United City of Yorkville Fees 1 . Building Permit Cost $ 650 plus $ 0 . 20 per square foot $650 + $0 . 20( SF ) 2 . Water Connection Fees ( see note "a ") $ 800 3 . Water Meter Cost $ 590 4 . City Sewer Connection Fees Ordinance 11 / 1 /96 $2 , 000 5 . Water and Sewer Inspection Fee $25 6 . Public Walks/Driveway Inspection Fee $ 35 7 . Development Fees Public Works $ 700 Police $ 300 Library $ 500 Bristol- Kendall Fire $ 1 , 000 Development Fees Total $23500 $2 , 500 8 . Land -Cash Fees Attached Units Park $0 School $00 Land-Cash Fees Total $ 0 $ 0 Notes : a ) Developer to be charged water connection fee of $ 800 for 639 units ( any units built in excess of 639 units shall be charged at the rate in existance at that time ) Raintree Village Remaining Phases 8-19-13