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City Council Packet 2007 04-24-07 '(Oc'° c'Ty United City of Yorkville a ° 800 Game Farm Road EST , 1836 Yorkville, Illinois 60560 �� Telephone: 630-553-4350 o�� ! „ s,� o Fax: 630-553-7575 w„ ,2 AGENDA CITY COUNCIL MEETING CITY COUNCIL CHAMBERS 7:00 PM Tuesday,April 24,2007 Call to Order: Pledge of Allegiance: Roll Call by Clerk: WARD I WARD II WARD III WARD IV Paul James Valerie Burd Marty Munns Joe Besco Jason Leslie Gary Golinski James Bock Rose Ann Spears Establishment of Quorum: Introduction of Guests: Amendments to Agenda: Committee Meeting Dates: Public Works Committee Meeting: Committee of the Whole 7:00 p.m.,Tuesday,May 15, 2007 City Hall Conference Room Economic Development Committee: Committee of the Whole 7:00 p.m.,Tuesday,May 15, 2007 City Hall Conference Room Administration Committee Meeting: Committee of the Whole 7:00 p.m.,Tuesday, May 1,2007 City Hall Conference Room Public Safety Committee Meeting: Committee of the Whole 7:00 p.m., Tuesday, May 1,2007 City Hall Conference Room Presentations: None City Council Meeting Agenda April 24, 2007 Page 2 ------------------------------------------.. ----------------------- -------------------------------------------------------------- Public Hearings: 1 . Castle Bank Trust #8342, petitioner, has filed an application with the United City of Yorkville, Kendall County, Illinois, requesting annexation to the United City of Yorkville and rezoning from Kendall County A- 1 Agricultural to United City of Yorkville B-3 Service Business District. The real property consists of approximately 13.998 acres, located at 2200 Route 47, Yorkville, Kendall County, Illinois. Citizen Comments: Consent Agenda: 1 . PC 2006-100 Yorkville Bristol Sanitary District a. Ordinance Annexing - authorize Mayor and City Clerk to execute, subject to staff recommendations and findings in the 419107 memo from Travis Miller b. Ordinance Rezoning - authorize Mayor and City Clerk to execute, subject to staff recommendations and findings in the 4/9/07 memo from Travis Miller 2. PC 2007-06 Cobblestone Commons South a. Resolution Approving the Final Plat of Subdivision - authorize Mayor and City Clerk to execute, subject to staff comments and legal review b. Ordinance Authorizing the Execution of an Amendment to Development/Economic Initiative Agreement - authorize Mayor and City Clerk to execute, subject to staff comments and legal review 3 . PC 2007-07 Resolution Approving the Preliminary and Final Plat for the Resubdivision of Lot 3 of Menard's Commercial Commons Fifth Addition (Goodwill Store) - authorize Mayor and City Clerk to execute, subject to staff comments and legal review 4. PW 2007-67 State Purchase Dump Trucks - approve purchase as presented, subject to funding in FY 07108 Budget 5, PW 2007-68 Fox Hill and Sunflower Estates RFP Results - award to English and Son 's Landscaping as presented 6. PW 2007-69 Grande Reserve Unit 14 — Letter of Credit Expiration - authorize City Clerk to call the letter of credit if it is not renewed by June 28, 2007 7. PW 2007-70 Grande Reserve Unit 15 — Letter of Credit Expiration - authorize City Clerk to call the letter of credit if it is not renewed by June 25, 2007 8. PW 2007-71 Raintree Village Unit 4 — Supplemental Letter of Credit Reduction #1 - authorize reduction in an amount not to exceed $668, 960.40, subject to verification that developer has no outstanding debt owed to city 9. PW 2007-72 Raymond Storm Sewer Outfall — Change Order #3 - authorize increase in an amount not to exceed $27,543. 74 and authorize Mayor to execute 10. PS 2007-06 Request to Purchase Digital Scales for Truck Enforcement - approve as presented Plan Commission / Zoning Board of Appeals: City Council Meeting Agenda April 24, 2007 Page 3 Minutes for Approval (Corrections and Additions): Minutes of City Council — February 27, 2007 Minutes of Committee of the Whole — February 6, 2007 and March 6, 2007 Bill payments for approval from the current Bill List (Corrections and Additions): Checks total these amounts: $ 566,564.49 (vendors) $ 217,241 .99 (payroll period ending 3/31/07) $ 783,806.48 (total) Reports: Mayor's Report: 1 . Sponsorship Recommendation from Human Resource Commission a. Nichols Family c/o Circle Center Grade School 2. ADM 2007-28 Ordinance Approving the 2007-2008 Fiscal Budget City Council Report: 1 . Request to Amend Siting Ordinance City Attorney's Report: City Clerk's Report: City Treasurer's Report: City Administrator's Report: Finance Director's Report: Director of Public Works Report: Chief of Police Report: Director of Parks & Recreation Report: Community Development Director Report: Community Relations Officer: Community & Liaison Report: Committee Reports: Public Works Committee Report: 1 . No Report. City Council Meeting Agenda April 24, 2007 Page 4 Committee Reports (con't): Economic Development Committee Report: 1 . PC 2007-08 Ordinance Rezoning Corn Holdings, LLC 2. PC 2007- 11 Fountain View a. Ordinance Authorizing the Execution of the Annexation Agreement b. Ordinance Annexing c. Ordinance Rezoning d. Ordinance Authorizing the Execution of a Development/Economic Initiative Agreement 3. EDC 2007- 16 Ordinance Authorizing the Execution of a Development/Economic Initiative Agreement with DTD Investments, LLC (Greenbriar Road Parcel) Public Safety Committee Report: 1 . No Report. Administration Committee Report: 1 . No Report. Additional Business: Executive Session: 1 . For the discussion of minutes of meetings lawfully closed under this Act, whether for purposes of approval by the body of the minutes or semi-annual review of the minutes as mandated by Section 2.06. Adjournment: COMMITTEES, MEMBERS AND RESPONSIBILITIES PUBLIC WORKS _____------------------------------------ ------------------------------------------------------------------------------------------- Committee Departments Liaisons Chairman: Alderman Besco Water and Sewer Park Board Committee: Alderman Munns Streets and Alleys YBSD Committee: Alderman Sanitation and Waste Committee: Alderman James --- --- - --------------------------------------------------- 5M OMIC DEVELOPMENT; __ ---------------- - ----------------------------------------------------------------------------------- Committee Departments Liaisons Chairman: Alderman Munns Planning & Building & Zoning Chamber of Commerce Committee: Alderwoman Burd Business & Economic Dev. Kendall County Econ. Dev. Committee: Alderman Besco Plan Commission Committee: Alderman Leslie Bristol Plan Commission Yorkville Econ. Dev. Corp. Aurora Area Convention & Tourism Council Downtown Re-development City Council Meeting Agenda April 24, 2007 Page 5 COMMITTEES, MEMBERS AND RESPONSIBILITIES (con't) ;PUBLIC SAFETY Committee Departments Liaisons Chairman: Alderwoman Spears Police Human Resource Comm. Committee: Alderman Schools School District Committee: Alderman Leslie Public Relations KenCom Committee: Alderman Bock ------------- ;ADMINISTRATION; --------------------------------------------=--------------------------------------------- ---------------------------------------------------------------------------------------------- Committee Departments Liaisons Chairman: Alderman James Finance Metra Committee: Alderwoman Spears Public Properties Library Committee: Alderwoman Burd Personnel Cable Consortium Committee: Alderman Bock AGENDA CITY COUNCIL MEETING CITY COUNCIL CHAMBERS 7:00 PM Tuesday, April 24, 2007 PRESENTATION: 1 . None PUBLIC HEARINGS : 1 . Castle Bank Trust #8342 CITIZEN COMMENTS : CONSENT AGENDA: 1 . PC 2006-100 Yorkville Bristol Sanitary District a. Ordinance Annexing b. Ordinance Rezoning 2. PC 2007-06 Cobblestone Commons South a. Resolution Approving the Final Plat of Subdivision b. Ordinance Authorizing the Execution of an Amendment to Development/ Economic Initiative Agreement 3 . PC 2007-07 Resolution Approving the Preliminary and Final Plat for the Resubdivision of Lot 3 of Menard's Commercial Commons Fifth Addition (Goodwill Store) 4. PW 2007-67 State Purchase Dump Trucks 5. PW 2007-68 Fox Hill and Sunflower Estates RFP Results 6. PW 2007-69 Grande Reserve Unit 14 — Letter of Credit Expiration 7. PW 2007-70 Grande Reserve Unit 15 — Letter of Credit Expiration 8. PW 2007-71 Raintree Village Unit 4 — Supplemental Letter of Credit Reduction #1 9. PW 2007-72 Raymond Storm Sewer Outfall — Change Order #3 10. PS 2007-06 Request to Purchase Digital Scales for Truck Reinforcement Minutes for Approval (Corrections and Additions): Minutes of City Council: February 27, 2007 Minutes of Committee of the Whole: February 6, 2007 and March 6, 2007 Bill Payments for approval: $ 566,564.49 (vendors) $ 217,241 .99 (payroll period ending 3/17/07) $ 783,806.48 (total) REPORTS: Mayor's Report: 1 . Sponsorship Recommendation from Human Resource Commission a. Nichols Family c/o Circle Center Grade School 2. ADM 2007-28 Ordinance Approving the 2007-2008 Fiscal Budget City Council Report: 1 . Request to Amend Siting Ordinance COMMITTEE REPORTS: Public Works Committee: 1 . No Report. Economic Development Committee: 1 . PC 2007-08 Ordinance Rezoning Corn Holdings, LLC 2. PC 2007-11 Fountain View a. Ordinance Authorizing the Execution of the Annexation Agreement b. Ordinance Annexing c. Ordinance Rezoning d. Ordinance Authorizing the Execution of a Development/Economic Initiative Agreement 3 . EDC 2007- 16 Ordinance Authorizing the Execution of a Development/ Economic Initiative Agreement with DTD Investments, LLC (Greenbriar Road Parcel) Public Safety Committee: 1 . No Report Administration Committee: 1 . No Report Additional Business Executive Session April 20, 2007 STATE OF ILLINOIS ) )ss. COUNTY OF KENDALL ) ANNEXATION AGREEMENT TO THE UNITED CITY OF YORKVILLE CASTLE BANK,N.A. AS TRUSTEE UNDER THE PROVISIONS OF A TRUST, KNOWN AS TRUST#2508 (East side of Route 47) THIS AGREEMENT is made and entered into this day of , 2007 by and between THE UNITED CITY OF YORKVILLE,Yorkville,Illinois,a municipal corporation,located in Kendall County,Illinois (hereinafter referred to as"CITY"), and CASTLE BANK,N.A. AS TRUSTEE UNDER THE PROVISIONS OF A TRUST, KNOWN AS TRUST#2508, of the County of Kendall, State of Illinois (hereinafter referred to as "OWNER/DEVELOPER'). WITNESSETH WHEREAS, OWNER/DEVELOPER is the owner of real property which is the subject matter of said Agreement comprising approximately 13.00 acres, more or less, and is more particularly described in the attached Exhibit"A",which is incorporated herein by reference; and WHEREAS,the subject real property is located contiguous to the corporate boundaries of the CITY; and is not located within the corporate boundaries of any other municipality; nor is any portion thereof classified as flood plain; and 1 WHEREAS, OWNER/DEVELOPER desires to annex the said real property described into the CITY, its Plan Commission has considered the Petition to Annex and positively recommended the same, and the City Council has heretofore both requested and approved the proposed land use and the zoning of the same at the request of OWNEWDEVELOPER and the CITY; and WHEREAS, OWNER/DEVELOPER has presented, and the CITY has considered, the tract, of real property herein described in the attached Exhibit "A" as B-3 Service Business District in order to make said real property a desirable addition to the CITY; and WHEREAS, the CITY has agreed to allow Flex Zoning permitting the real property described in the attached Exhibit `B" to be zoned for R-4 General Residence District limited to an Assisted Living or other Active Adult type housing excluding children or less than one resident of each dwelling unit being under the age of 55; and WHEREAS, all parties to this Agreement desire to set forth certain terms and conditions upon which the land heretofore described will be annexed to the CITY in an orderly manner, and WHEREAS, OWNER/DEVELOPER and its representatives have discussed the proposed annexation and have held 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 in front of the City Council, as required by the statutes of the State of Illinois in such case made and provided. WHEREAS, in accordance with the powers granted to the CITY by the provisions of 65 ILCS 5/11 - 15. 1 - 1 through 51 . 1-5 (2006), inclusive, relating to Annexation Agreements, the parties hereto wish to enter into a binding agreement with respect to the future annexation and 2 zoning of the subject Property and to provide for various other matters related directly or indirectly to the annexation of the Property in the future, as authorized by, the provisions of said statutes; and WHEREAS, pursuant to due notice and publication in the manner provided by law, the appropriate zoning authorities of the CITY have and such public hearing and have taken all further action required by the provisions of 65 ILCS 5/11 - 15 . 1 .3 (2006) and the ordinances of the CITY relating to the procedure for the authorization, approval and execution of this Annexation agreement by the CITY. NOW THEREFORE, for and in consideration of the mutual promises and covenants herein contained, the parties agree, under the terms and authority provided in 65 ILCS 5/11 - 15. 1 -1 through 65 ILCS 5111 -15. 1 -5 (2006), as amended, as follows: 1 . A. ANNEXATION AND ZONING. The CITY shall adopt an ordinance annexing to the City all of the real property described herein in the attached Exhibit "A"; and the City in said ordinance shall zone the real property designated in the attached Exhibit "A" subject to the further terms of this Agreement as B-3 Service Business District; that the real property described in the attached Exhibit `B" shall be permitted to be developed and shall hereby be created as an R-4 General Residence District Flex Zone, permitting development limited to an Assisted Living or other Active Adult type housing excluding children or less than one resident of each dwelling unit being under the age of 55; or in the event the parcel of real property described in the attached Exhibit `B" is not developed as R-4 General Residence District it shall be treated as zoned B-3 Service Business District for all purposes under the terms of this Agreement. —3— Said zoning shall allow the uses, size, density, area, coverage, and maximum building heights as set forth on for the B-3 Service Business District. Said real property shall be used and developed in accordance with 65 ILCS 5/11 -15. 1 - 1 through 65 ILCS 5/11 -15. 1 -5 (2006), except to the extend of the Flex Zone provisions contained above for R-4 General Residence District purposes, and in accordance with the City Subdivision Control and Zoning Ordinances and specifically subject to the following conditions: (i) That the subject property described in the attached Exhibit "A" shall be annexed to the United City of Yorkville by separate Ordinance, in compliance with Illinois Compiled Statutes and shall be zoned B-3 Service Business District Zoning, with R-4 General Residence District Flex Zoning as to the real property described in the attached Exhibit `B". (ii) OWNERIDEVELOPER shall endeavor to preserve as much of the standing oak grove as is possible in the development of the property in conformance with the CITY Tree Preservation Ordinance. (iii) (a) OWNER/DEVELOPER shall be responsible for providing landscaping, in conformance with CITY standards along all perimeter boundaries of the subject property. No permanent trees covering utilities shall be planted on the right-of-way adjacent to the subject real property. (b) OWNER/DEVELOPER shall establish the landscape buffer along Illinois State Route 47 behind the proposed Right-of-Way expansion line of the Illinois Department of Transportation. (iv) OWNER/DEVELOPER agree that OWNER/DEVELOPER shall be permitted to —4— conduct the uses on the subject property that are excerpted from the United City of Yorkville Zoning Classification for O-Office District, B- 1 Limited Business District, B-3 Service Business District, and any similar permitted uses within those Districts that the CITY may create in the future; although OWNER/DEVLOPER agree they shall not be permitted to conduct on site any permitted uses which have been omitted from the current United City of Yorkville Zoning Ordinances as are in effect as of the date of the approval of this Agreement by the United City of Yorkville. (v) That in all other respects, the subject development shall be in conformance with the terms and conditions of the Yorkville Zoning Ordinance, Subdivision Control Ordinance, and all other applicable Ordinances. B. The OWNER/DEVELOPER, and successors, heirs, and assigns hereby agree that prior to issuance of a building permit on the subject parcel, a site development plan shall be submitted and approved by the City Council of the United City of Yorkville, as well as OWNER/DEVELOPER complying with the CITY Preliminary and Final Platting process. 2. CITY'S AGREEMENTS. A. (i) The CITY agrees that due to the nature of the non-residential use and zoning classification of said parcel, OWNER/DEVELOPER has no obligation to pay School Transition Fees or Land-Cash Fees. (ii) In the event the parcel of real property as described in Exhibit `B" is developed consistent with the R-4 General Residence District Flex Zoning provisions contained herein, the OWNER/DEVELOPER shall pay Land-Cash —5— Fees for schools and parks at the time of Building Permit Application. Due to no school-age children being generated, no School Transition Fee shall be charged. B. OWNER/DEVELOPER shall be required by THE UNITED CITY OF YORKVILLE to hook-on to the city water and Sanitary Sewer System at the time of improving the subject property, and shall be responsible for the cost of main extensions to the subject property if said mains do not touch the subject property. C. Upon annexation, the Owner will receive police protection, 911 service, Water, Sanitary Sewer, and all services as provided by CITY to its property owners and residents. D. The CITY will require the Owner to annex to Yorkville Bristol Sanitary District at the time of applying for a building permit seeking to hook up to the Sanitary District and the CITY Sanitary Sewer System. E. Permit an Economic Incentive Agreement to be requested by Developer as to any portion of the off-site, signalization on-site or collector costs, stormwater detention costs, Route 47 tapper or right-of-way improvements, pursuant to such an Agreement out of/z of any Sales Tax Receipts from users on the subject site inconformity with the United City of Yorkville Commercial Incentive Policy. 3. RIGHTS AND OBLIGATIONS OF SUCCESSORS AND ASSIGNS. It is specifically understood and agreed that OWNER/DEVELOPER and its successors and assigns shall have the right to sell transfer, mortgage and assign all or any part of the subject property and the improvements thereon to other persons, trusts, partnerships, firms, or corporations, for investment, building, financing, developing and all such purposes, and that said persons, trusts, partnerships, firms, or corporations shall be entitled to the same rights and privileges and shall — 6— have the same obligations as OWNER/DEVELOPER under this Agreement and upon such transfer, the obligations pertaining to the property transferred or sold shall be the sole obligations of the transferee, except for any performance bonds or guaranties posted by OWNER/DEVELOPER on any subdivided or unimproved property for which an acceptable substitute performance bond or letter of credit has not been submitted to the CITY. 4. TIME OF THE ESSENCE. 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, including the calling of special meetings, 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. S . COVENANTS AND AGREEMENTS. The covenants and agreements contained in this Agreement shall be deemed to be covenants running with the land during the term of this Agreement shall inure to the benefit of and be binding upon the heirs, successors and assigns of the parties hereto, including the CITY, its corporate authorities and their successors in office, and is enforceable by order of the court pursuant to its provisions and the applicable statutes of the State of Illinois. 6. BINDING EFFECT AND TERM. This Annexation Agreement shall be binding upon and inure to the benefit of the parties hereto, and their successors and owners of record of land which is the subject of this Agreement, assignee, lessees, and upon any successor municipal authorities of said city, so long as development is commenced within a period of twenty years from the date of execution of this Agreement by the CITY. 7. NOTICE. Any notices required hereunder shall be in writing and shall be served —7 — upon any other party in writing and shall be delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, addressed as follows: If to the CITY: City Clerk 800 Game Farm Road Yorkville, IL 60560 With a copy to: John Wyeth 800 Game Farm Road Yorkville, IL 60560 To OWNER/DEVELOPER: Castle Bank Trust 42508 c/o James Ratos 207 W. Kendall Dr. Yorkville, IL 60560 With a copy to: Law Offices of Daniel J. Kramer 1107A S. Bridge St. Yorkville, IL 60560 or to such other addresses as any party way from time to time designate in a written notice to the other parties. 8. ENFORCEABILITY. This Agreement shall be enforceable in any court of competent jurisdiction by any of the parties hereto by an appropriate action of law or in equity to secure the performance of the covenants herein contained. In the event any portion of said agreement becomes unenforceable due to any change in Illinois Compiled Statutes or court decisions, said unenforceable portion of this Agreement shall be excised here from and the remaining portions thereof shall remain in full force and effect. I I _ _ _ _ _ _ -- _ 9. ENACTMENT OF ORDINANCES. The CITY agrees to adopt any ordinances which are required to give legal effect to the matters contained in this Agreement or to correct any technical defects which may arise after the execution of this Agreement. —8— IN WITNESS WHEREOF, the undersigned have hereunto set their hands and seals this _ day of , 2007. UNITED CITY OF YORKVILLE By: Arthur F. Prochaska, Jr., Mayor Attest: City Clerk —9— O WNER/DEVELOPER: CASTLE BANK TRUST #2508 By: Attest: Prepared by and Return to: Law Offices of Daniel J. Kramer 1107A S. Bridge Street Yorkville, Illinois 60560 630.553 .9500 —10— EXHIBIT "A" THAT PART OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF SECTION 16, TOWNSHIP 37 NORTH, RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN BEING DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF SAID SECTION 16 FOR THE POINT OF BEGINNING; THENCE NORTH 00 DEGREES 00 MINUTES 13 SECONDS EAST ALONG THE EAST LINE OF SAID NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF SECTION 16, A DISTANCE OF 506.60 FEET; THENCE SOUTH 88DEGREES 42 MINUTES 44 SECONDS WEST PARALLEL WITH THE SOUTH LINE OF SAID NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF SECTION 16, A DISTANCE OF 1176. 11 FEET TO THE EAST LINE OF STATE ROUTE 47; THENCE SOUTH EASTERLY ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 9387.49 FEET, A DISTANCE OF 512.00 FEET TO A POINT ON SAID SOUTH LINE; THENCE NORTH 88 DEGREES 42 MINUTES 44 SECONDS EAST ALONG SAID SOUTH LINE, A DISTANCE OF 1089.96 FEET TO THE POINT OF BEGINNING, ALL IN THE TOWNSHIP OF BRISTOL, KENDALL COUNTY, ILLINOIS. -11- EXHIBIT `B" -12- CA � Ic� STATE OF ILLINOIS ) ss COUNTY OF KENDALL ) ORDINANCE NO. 2007- AN ORDINANCE ANNEXING CERTAIN TERRITORY TO THE UNITED CITY OF YORKVILLE,KENDALL COUNTY, ILLINOIS (Yorkville Bristol Sanitary District Property) WHEREAS, a written petition, signed by the legal owner of record of all land within the territory hereinafter described, has been filed with the City Clerk of the United City of Yorkville, Kendall County, Illinois,requesting that said territory be annexed to the United City of Yorkville; and, WHEREAS, there are no electors residing within the said territory, and, WHEREAS, the said territory is not within the corporate limits of any municipality but is contiguous to the United City of Yorkville; and, WHEREAS, legal notices regarding the intention of the United City of Yorkville to annex said territory have been sent to all public bodies required to receive such notices by state statute; and, WHEREAS, copies of such notices required to be recorded, if any,have been recorded in the Office of the Recorder Kendall County, Illinois; and, WHEREAS, all petitions, documents, and other necessary legal requirements are in full compliance with the terns of the annexation agreement and with the statutes of the State of Illinois, specifically Section 7-1 -8 of the Illinois Municipal Code; and, WHEREAS, it is in the best interests of the United City of Yorkville that the territory be annexed thereto, NOW, THEREFORE, BE IT ORDAINED by the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois, as follows: SECTION 1 : The following described territory, That territory described in the Legal Description which is attached hereto and made apart of this Ordinance. that territory also being indicated on an accurate map of the annexed territory (which is attached hereto and made a part of this Ordinance), is hereby annexed to the United City of Yorkville, Kendall County, Illinois. SECTION 2: The City Clerk is hereby directed to record with the Kendall County Recorder and to file with the Kendall County Clerk a certified copy of the Ordinance, together with an accurate map of the territory annexed attached to this Ordinance. SECTION 3 : This Ordinance shall be in full force and effect from and after its passage and approval as provided by law. JAMES BOCK JOSEPH BESCO VALERIE BURD PAUL JAMES GARY GOLINSKI MARTY MUNNS ROSE SPEARS JASON LESLIE Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this day of A.D. 2007. MAYOR Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this day of A.D. 2007. ATTEST: CITY CLERK Prepared by: John Justin Wyeth City Attorney United City of Yorkville 800 Game Farm Road Yorkville, IL 60560 STATE OF ILLINOIS ) ss COUNTY OF KENDALL ) ORDINANCE NO.2007- AN ORDINANCE REZONING CERTAIN PROPERTY (Yorkville Bristol Sanitary District) WHEREAS, Yorkville Bristol Sanitary District is the owner of record of property described on Exhibit"A" attached hereto and incorporated herein(the Property), and WHEREAS Yorkville Bristol Sanitary District has made application by petition for the rezoning of the Property and approval of a Special Use for a public sanitary water treatment facilities, and WHEREAS,the Special Use requested will require a 10 feet setback for all yards. WHEREAS, the Yorkville Plan Commission has recommended the rezoning of the property as A-1 with special use for sanitary water treatment facilities, and NOW, THEREFORE BE IT ORDAINED BY THE MAYOR AND THE CITY COUNCIL OF THE UNITED CITY OF YORKVILLE,KENDALL COUNTY, ILLINOIS UPON MOTION DULY MADE, SECONDED AND APPROVED BY THE MAJORITY OF THOSE MEMBERS OF THE CITY COUNCIL VOTING, THAT: 1. The City Council approves the recommendation of the Plan Commission and hereby rezones the property as A-1 with special use for sanitary district water treatment facility allowing a 10' setback for all yards. 2. This Ordinance shall be in full force and effect from and after its passage and approval as provided by law. JAMES BOCK JOSEPH BESCO VALERIE BURD PAUL JAMES GARY GOLINSKI MARTY MUNNS ROSE SPEARS JASON LESLIE Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this day of A.D. 2007. MAYOR Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this day of A.D. 2007. ATTEST: CITY CLERK Prepared by: John Justin Wyeth City Attorney United City of Yorkville 800 Game Farm Road Yorkville, IL 60560 CA- STATE OF ILLINOIS ) )ss COUNTY OF KENDALL ) RESOLUTION NO. 2007- RESOLUTION APPROVING THE FINAL PLAT OF SUBDIVISION FOR COBBLESTONE COMMONS SOUTH WHEREAS, the City Council of the United City of Yorkville has considered a Petition to approve the Final Plat of Subdivision for the Cobblestone Commons South Subdivision; and WHEREAS, the City Council of the United City of Yorkville has received a positive recommendation from the Plan Commission of the United City of Yorkville recommending approval of said Final Plat of Subdivision; and NOW THEREFORE,upon Motion duly made, seconded and approved by the majority of those members of the City Council voting, the following action is hereby taken by the City Council of the United City of Yorkville: 1. The Final Plat of Subdivision for the Cobblestone Commons South Subdivision is approved subject to staff comments,staff review, and legal review and all appropriate City officials are hereby authorized to execute same. JAMES BOCK JOSEPH BESCO VALERIE BURD PAUL JAMES GARY GOLINSKI MARTY MUNNS ROSE SPEARS JASON LESLIE Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this day of A.D. 2007. MAYOR Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this day of A.D. 2007. ATTEST: CITY CLERK Prepared by: John Justin Wyeth City Attorney United City of Yorkville 800 Game Farm Road Yorkville, IL 60560 CA -1kab. STATE OF ILLINOIS ) ) ss COUNTY OF KENDALL ) ORDINANCE NO.2007- AN ORDINANCE AUTHORIZING THE EXECUTION OF A DEVELOPMENT/ECONOMIC INITIATIVE AGREEMENT MAIN STREET COMMERCIAL PARTNERS (Cobblestone Commons South) WHEREAS,it is deemed prudent and in the best interest of the UNITED CITY OF YORKVILLE, Kendall County, Illinois,that a certain Development/Economic Initiative Agreement pertaining to the development of real estate described within the Agreement which is attached hereto as and made a part hereof as Exhibit"A" be entered into by the UNITED CITY OF YORKVILLE; and WHEREAS, said Agreement has been drafted and has been considered by the City Council; and WHEREAS,the legal owners of record of the property subject to the Agreement are ready, willing and able to enter into said Agreement and to perform the obligations as required hereunder; and WHEREAS, the reasons for entering into this Agreement and benefits to the City are described within the Agreement and thereby made a part of this Ordinance, and Pagel of 3 WHEREAS, the statutory procedures including specific findings as required by 65 ILCS 8- 11 -20, as amended, for economic incentive agreements have been complied with, and said findings are contained in the Agreement (Exhibit "A"), 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 preambles, above, are incorporated by this reference as if written in full at this place. Section 2: The Mayor and the City Clerk are herewith authorized and directed to execute, on behalf of the City, the Development/Economic Initiative Agreement concerning certain real estate described therein, a copy of which attached hereto and made a part hereof as Exhibit "A". Section 2: This ordinance shall be in full force and effect from and after its passage and approval as provided by law. JAMES BOCK JOSEPH BESCO VALERIE BURD PAUL JAMES GARY GOLINSKI MARTY MUNNS ROSE SPEARS JASON LESLIE Page 2 of 3 Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this day of A.D. 2007. MAYOR Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this day of A.D. 2007. ATTEST: CITY CLERK Prepared by: John Justin Wyeth City Attorney United City of Yorkville 800 Game Farm Road Yorkville, IL 60560 Page 3 of 3 clr o United City of Yorkville Memo 800 Game Farm Road EST. -1. ,836 Yorkville, Illinois 60560 Telephone: 630-553-8545 Fax P 630-553-3436 Date: April 11 , 2007 Revised To: EDC/COW From: Travis Miller, Community Development Director Cc: Lisa Pickering, Deputy Clerk Subject: Main Street Commercial Partners (Cobblestone Commons) Economic Incentive Agreement Request Economic Incentive Agreement: The rebate is being requested to cover costs associated with the items listed (1-6) on page 4 of the agreement. All of these items are within the scope of the current Economic Incentive Policy to be rebated for. Section 3 `Development Incentive Reimbursement' Items a) and b) provide two rebate scenarios — a) being applied until $1 ,000,000 is rebated for costs associated with the unique stormwater design required for this property. This is requested to be at a rebate rate of 60%. Following the first $ 1,000,000 item b) would apply at a rebate rate of 50%. Staff Recommendations: • The Economic Incentive Policy is silent on the percentage rate for a rebate. Most (if not all) current agreements are for 50% of municipal sales taxes rebated. Approval for 60% would not be against policy, however is inconsistent with other agreements. Given the extreme circumstances for the stormwater design and associated costs, staff recommends approval of the requested terms. • Staff recommends revising item b) under `Development Incentive Reimbursement' (page 4) and `Commencement Date' (page 5) to state the commencement of the agreement begin at the date of the agreement for a term of 20 years. This provides an incentive for the Owner/Developer to get businesses open/operating. • Staff recommends adding a provision to the agreement requiring the Owner and Developer to submit a total for the hard costs (`brick and mortar' costs excluding design, legal, engineering, etc.) associated with this project. The rebate amount should not exceed 20% of these total project hard costs. The 20% amount is listed as an Incentive Parameter in the current Economic Incentive Policy. 1 Red- �►ned vevsl,on Revised April 19,2007 Revised April 20,2007 STATE OF ILLINOIS ) )ss. COUNTY OF KENDALL ) UNITED CITY OF YORKVILLE oeieb d:x - _ AND MAIN STREET COMMERCIAL PARTNERS ¶ DEVELOPMENT/ECONOMIC INITIATIVE AGREEMENT ¶ THIS DEVELOPMENT AGREEMENT(this "Agreement") is made and entered into as of the day of 2007 by and between THE UNITED CITY OF YORKVILLE, an Illinois corporation located in Kendall County (the "CITY") and MAIN STREET COMMERCIAL PARTNERS(the"OWNER"). RECITALS The CITY is an Illinois municipality and hereby enters into this Agreement pursuant to 65 ILCS 518-11-20 (2006) ("Enabling Statute"); and pursuant to Section 6(a) of Article VII of the Constitution of the State of Illinois of 1970,the CITY has determined that it has the authority to enter into this Agreement. The OWNER has purchased and intends to develop the commercial real property located at the Southeast corner of the intersection of Route 34 and Eldamain Road and legally described in Exhibit "A" (the "Property") for commercial uses ("Development Project") subject to the zoning ordinance enacted by the CITY. OWNER has demonstrated to the CITY's satisfaction that the OWNER has the experience and capacity to complete the Development Project. The OWNER and the CITY have determined that without the financial assistance provided under this Agreement the Development Project would not be feasible and that the OWNER would not undertake the Development Project. The OWNER has expressly conditioned the undertaking of the Development Project on the CITY's agreement to pledge the Sales Tax Revenues (defined later) it receives from the Development Project to repay OWNER its Reimbursable Improvements(defined later),all as provided in this Agreement. The CITY deems it to be of significant importance to encourage development within the CITY so as to maintain a viable real estate tax and sales tax base and employment opportunities. Accordingly, the CITY has made the following findings necessary pursuant to the Enabling Statute: -1- i That the Property has-remained-vacant-in-excess of twenty (20) years- - - - - - - - - - - - - - - - _ - - ( Deleted: ¶ That the Development Project is expected to create job opportunities within the municipality; That the Development Project will serve to further the development of adjacent areas; That the CITY is desirous of creating detention facilities, extension of sanitary sewer and water service, traffic signalization, deceleration and turn lanes benefiting on real property. That without this Agreement, the Development Project would not be reasonably financially possible given the off-site costs imposed by the Illinois Department of Transportation, the United City of Yorkville, and the Yorkville Bristol Sanitary District; That the OWNER meets high standards of creditworthiness and financial strength; That the Development Project will strengthen the commercial sector of the municipality; That the Development Project will enhance the tax base not only of the CITY but of all aocal taxing bodies; . . _ .. - . . - (Deleted:___—_ —That this Agreement is made in the best interest of the CITY; and Pursuant to the Illinois Municipal Code, as amended ("Code"), the CITY has authority to enter into an Economic Incentive Agreement relating to the development of land within corporate limits, including an agreement to share or rebate a portion of the Retailer's Occupation Taxes received by the CITY that are generated by the development. Subject to the terms and conditions of this Agreement, the CITY agrees to reimburse the OWNER for its Reimbursable Improvements. In reliance upon the CITY's representations and covenants contained in and subject to the terms and conditions of this Agreement, the OWNER intends to cause the Reimbursable Improvements (as hereinafter defined) to be constructed and to enter into construction contracts and other agreements as necessary. This Agreement has been submitted to the corporate authorities of the CITY for consideration and review, and the corporate authorities have given all notices and taken all actions required to be taken prior to the execution of this Agreement to make this Agreement effective. NOW, THEREFORE, to maintain and revitalize business within the CITY by assuring opportunities for development and attracting sound and stable commercial growth; to promote the public interest and to enhance the tax base of the CITY; to induce the OWNER to undertake the Development Project; in consideration of the OWNER's agreement to undertake the Development Project and the CITY's agreement to reimburse the OWNER for the costs of causing the construction of certain of the Reimbursable Improvements; and in consideration of -2- the mutual promises, covenants, stipulations and agreements herein contained in this Agreement, the OWNER and the CITY hereby agree as follows: 1. Incorporation of Recitals. The recitals set forth above are incorporated hereby by this reference as if fully set forth herein. 2. Creation of Economic Incentive Agreements. The CITY acknowledges that an economic incentive agreement for the subject commercial property within the Property will provide incentives for development within the Property, which will provide sales tax benefits to the CITY. The CITY shall, upon application by OWNER or its assigns, pursuant to 65 ILCS 5/8-11-20 (2006) or any other statutory means, enact all ordinances and execute all agreements to share or rebate a fifty percent (50%) portion of the CITY's allocated portion of sales tax revenue as set forth herein to OWNER or as assigned in writing by OWNER, pursuant to the terms provided in this paragraph of the Agreement (hereinafter referred to as "Incentives"). For purposes of this Agreement a "commercial retail user" shall be any user that collects sales tax as part of its operation. The commercial retailer user shall be referred to as the "Generator". The CITY acknowledges that its agreement to execute this Development/Economic Initiative Agreement is a material inducement to OWNER to enter into this Agreement. 3. Development Incentive Reimbursement. Incentives. a) OWNER and CITY have entered into this Agreement, and during the process of approving Engineering Plans with respect to the subject Cobblestone Development have discovered that there is significant off-site drainage issues that can be improved by substantial extra drainage work that was not contemplated by OWNER or CITY being performed on OWNER'S property. OWNER has agreed to dig out soil known as "peat" on its site and fill the same with CA-1 rock to provide under parking lot stormwater storage to accommodate off-site flows that OWNER had been assured by the City in writing it would not originally have to accommodate. In consideration of OWNER agreeing to undertake the work outlined in paragraph 3(a)I below, which is estimated to cost in excess of One tllion Three Hundred Thousand 00,000.00 Deleted: twee Dollars, OWNER shall be allowed to recover Sixty (60%) Percent of sale tax receivedoeieted one c from Cobblestone South Development out of the sales tax proceeds receipt until said Deleted. 3 amount together with interest at the rate of three percent (3%) per annum in excess of Deleted: i prime commercial interest rate as set by Old Second Bank - Yorkville is recovered by - OWNER. Once this first amount of funds which is extended for the extra stormwater improvements described herein is recovered, OWNER'S recovery under the terms of this Agreement shall revert to the conditions set out in paragraph 2 hereof. -3- b) Except to the extent agreed in paragraph 3(a) of this Agreement; the OWNER pursuant to the terms of this Agreement shall be repaid 100% of its Reimbursable Improvement costs (defined below) out of 50% of sales tax generated by any "Generator" on the Property or any additional property purchased by OWNER, as evidenced by paid lien waivers and swom contractor affidavit submitted to the CITY. The CITY shall include interest at the rate of three percent (3%) per annum in excess of prime commercial interest rate as set by Old Second Bank — Yorkville on the Reimbursable Improvement calculation for the balance of Reimbursable Improvements incurred by OWNER. Interest shall be calculated annually and shall commence with the Certificate of Occupancy being issued to the first store (or other business operator) on the Property. OWNER shall be entitled to recover up to the total amount of the Reimbursable Improvement calculation plus interest for a period of twenty (20) years commencing from the date of the first occupancy by a tenant in the subject development. c) In the event OWNER recovers its full Reimbursable Improvement plus interest calculation prior to that expiration time, the right to recovery shall terminate earlier than the previous stated expiration date. In the event OWNER has not received all of its Reimbursable Improvements calculation and interest upon said expiration date, the Agreement shall be treated as expired. Interest shall not be compounded. These Reimbursable Improvements include, but are not limited to, the following: 1) Construction, design and engineering, excavation, hauling, compacting, and all related functions for any portion of any detention facility, or unsuitable soil removal and de-watering undertaken on-site of the subject property by OWNER. 2) Construction of any intersection, signalization, or other improvements on Eldamain Road and Route 34 as is necessitated by MOT or the CITY for the development of the subject property and handling ambient traffic benefiting from said roadway improvements. 3) Extension of city water and sanitary sewer mains to the east boundary of the subject parcel as described in Exhibit "A" along and parallel with Eldamain Road to the east boundary of the subject property. 4) Any oversizing of the stormwater, water or sanitary sewer in excess of that amount required to benefit the subject property of OWNER as described in the attached Exhibit "A". 5) Any internal street connections required to be oversized as collector streets under the CITY Ordinances to benefit surrounding properties. 6) Any connection to off-site benefiting from the detention stormsewer, sanitary sewer and water to cross Route 34 to connect to adjoining or nearby properties, and any additional sums advanced by OWNER to connect to said utilities. -4- 7) . The reimbursement under patagl'apli 3 .b. of this Agreement,.Shall not exceed4' - - ( Formatted Bullets and Numbering twentypercent (20%) of the total hard costs of the project hard costs being defined as actual public improvements and private improvements outlined in paragraphs 1 _6 above excluding the design and engineering for recovery under Section 3.b. but design and engineering shall be included to determine the reimbursement amount in 3.a. of this Agreement. c) The CITY shall distribute the sales tax revenue generated by any Generator as follows: 1) 60% to the OWNER, or as directed by the OWNER; under paragraph 3(a) of this Agreement until reduced to 50% of sales tax revenue or paid pursuant to paragraph 3(b) of this Agreement 2) 40% to the CITY until it's share of sales tax received is increased to 50% under Section 3(b) of this agreement; Sales Tax and Sales Tax Revenue Defined. The term Sales Tax used herein refers to revenues generated by the sale of merchandise from and collected under the Retailer's Occupation Tax, or any other "sales tax" or similar tax that may be enacted by the State of Illinois or any governmental agency or body created under the laws of the State of Illinois, based upon gross sales, and located within the State of Illinois, that is collected by the Generators as a result of business transactions occurring on the Property. In the event that the CITY's share of said sales tax or substitute tax is reduced or increased by the State, then the affected Generator's share thereof shall be reduced or increased in the same proportion. Payment Obligation. The CITY hereby agrees to pay OWNER or its assignee the quarterly installment payments made to the CITY by the Illinois Department of Revenue within thirty (30) days of receipt by the CITY of the quarterly installments, and continuing until the Reimbursable Improvements and applicable interest are paid to the OWNER as set out in this Agreement. The "quarterly installment payment" shall mean an amount equal to one-half ('/2), except to the extent agreed to in paragraph 2(b) hereof, of the sales tax revenue received by the CITY from the State generated by each Generator on the Property, or any additions to the Property. All amounts paid to the OWNER will be due and payable solely from one-half ('/z) of the sales tax revenues received by the CITY from any Generator's sales for the preceding calendar quarter. However, if the CITY no longer receives sales tax revenues from the Generator due to a change in Illinois statutes, then the CITY shall make payments to the OWNER from any alternate sources of revenue provided to the CITY by the State, if any are made, specifically as a replacement or substitute for sales tax revenue presently received by the CITY. Verification of Costs. Following construction of the Reimbursable Improvements, OWNER shall provide the CITY with final lien waivers and sworn contractor affidavit establishing the cost of such improvements. -5- Commencement Date. The terms of this Agreement shall be for Twenty (20) years commencing from the date of the first occupancy by a tenant in the subject development. Sources of Funds to Pau Reimbursable Development Project Costs. Funds necessary to pay for the Incentives are to be solely derived from the additional sales tax generated by the Generators. This pledge of additional sales tax revenues hereby is approved by the CITY. In order to comply with the terms of this Agreement, OWNER shall require in writing all tenants in the Property and to any subsequent purchasers of any portion of the Property to direct the Illinois Department of Revenue to provide the CITY with a breakdown of sales tax being remitted to the CITY for each commercial retailer on-site. In the event OWNER or a commercial retailer fails to provide the CITY with written authority for release of said information from the Illinois Department of Revenue the CITY shall have no duty to remit sales tax proceeds from that commercial retailer to the OWNER. Assignability, 1) It is expressly agreed and understood by the parties to this Agreement that the benefits contemplated in the Development/Economic Initiative Agreement and pursuant to 65 ILCS 5/8-11-20 (2006) are assignable at the option of the OWNER. Upon such written assignment by the OWNER, Generator shall have all rights currently vested in the OWNER under the Development Agreements, this Ordinance and applicable law, and shall be entitled to enforce same by any legal or equitable remedy. If any Lot is sold by the OWNER, OWNER shall be entitled to continue to receive payments for Reimbursable Improvements pursuant to the Development/Economic Initiative Agreement unless specifically assigned by the OWNER- 2) OWNER may assign a portion or all of its rights under the terms of this Agreement to any future developers, owners, or institutions or individuals providing financing for the improvements outlined above in this Agreement. Reimbursement Procedures. Sales Tax Reports. OWNER agrees to cause all Generators to execute and deliver to the CITY a written direction, in form and content acceptable to the CITY and the Illinois Department of Revenue ("DOR!'), authorizing the DOR to release to the CITY the sales tax figures for the Generator, on a quarterly basis and during the term of this Agreement. The CITY agrees to take the necessary action to initiate the transaction. Should the DOR cease to release the sales tax information to the CITY on a quarterly basis, OWNER and all Generators shall be responsible for any further action to obtain the sales tax information from the DOR or shall be responsible for submittal of the sales tax information from the DOR or shall be responsible for submittal of the sales tax information as provided for in the next paragraph of this Agreement. -6- i In the event the DOR fails to submit to the CITY the quarterly sales tax information for any Generator as provided for in Section A above, OWNER shall cause Generators to, contemporaneous with the filing of sales tax reports with the Illinois Department of Revenue or successor agency, furnish to the CITY copies of any and all sales tax returns, sales tax reports, amendments, or any other paper filed with the State of Illinois, said Department of Revenue or other appropriate governmental entity, pertaining to the Generators, and certified as being true and correct, which documents are being provided to the CITY for purposes of identifying sales tax revenues collected pursuant to this Agreement. Confidentiality. The CITY acknowledges and agrees that information to be provided by Generators hereunder are proprietary and valuable information and that any disclosure or unauthorized use thereof will cause irreparable harm to OWNER and/or OWNER's affiliates and/or Generator and/or Generator's affiliates, and to the extent permitted by state of federal law, including but not limited to Section 7(1)(g) of the Illinois Freedom of Information Act, the CITY agrees to hold in confidence all sales figures and other information provided by OWNER or Generators or obtained from OWNER's or Generator's records in connection with this Agreement, and in connection therewith, the CITY shall not copy any such information except as necessary for dissemination to the CITY's agents or employees as permitted hereinafter. The CITY shall be permitted to disclose such information (i) to its agents or employees who are reasonably deemed by the CITY to have a need to know such information for purposes of this Agreement; provided, that such agents and employees shall hold in confidence such information to the extent required of the CITY hereunder or (ii) to the extent required by order of court or by state of federal law. The confidentiality requirements of this Agreement shall survive any expiration, termination or cancellation of this Agreement and shall continue to bind the CITY, its successors, assigns and legal representatives for a period of five (5) years from the termination, expiration or cancellation of this Agreement. All Generators shall be treated as third party beneficiaries to this Confidentiality provision. Audit. Each payment by the CITY to OWNER shall be accompanied by a statement executed by the City Treasurer or the Treasurer's designee, setting forth the calculations of such payment and identifying the sales tax return period to which the payment relates. The City Treasurer or the Treasurer's designee shall further issue a statement setting forth all payments made to date to OWNER. OWNER shall have one (1) year following the receipt of said payment to contest any of the calculations or information contained in said statements. OWNER shall have the right to review all sales tax reports provided to the CITY by the state relating to any Generator upon two days written request by OWNER. DefaultlMght to Cure. No party shall be deemed in default hereunder until such Party has failed to cure the alleged default with ten (10) days in the case of a monetary default, or within thirty (30) days in the case of a non-monetary default, from notice of such default from the other Party; provided, however, if the nature of such non-monetary default is such that it cannot reasonably be cured -7- within such thirty (30) days period, then such Party shall not be deemed in default if such Party commences to cure such default within such thirty (30) day period and thereafter diligently prosecutes such cure to completion. In the event of a default and except as may be otherwise provided herein to the contrary, the non-defaulting party may: (i) terminate this Agreement upon written notice to the defaulting party, recover from the defaulting party all damages incurred by the non-defaulting party; (ii) except as may be otherwise expressly provided to the contrary herein, seek specific performance of this Agreement, and, in addition, recover all damages incurred by the non-defaulting party; (the parties declare it to be their intent that this Agreement may be specifically enforced); (iii) pursue all other remedies available at law, it being the intent of the parties that remedies be cumulative and liberally enforced so as to adequately and completely compensate the non- defaulting party. No Obligation to Develop, Open or Operate. Nothing contained in this Agreement shall be deemed to obligate OWNER, Generator or any of Generator's affiliates to construct any improvements on the Property or to open or operate any form of business in the Property for any period of time or at all. Additional Covenants. Time. Time is of the essence unless otherwise stated in this Agreement and all time limits set forth are mandatory and cannot be waived except by a lawfully authorized and executed written waiver by the party excusing such timely performance. Binding Effect. This Agreement shall be construed and enforced in accordance with the laws of the State of Illinois. Severability. If any provision of this Agreement is held invalid by a court of competent jurisdiction or in the event such a court shall determine that the CITY does not have the power to perform any such provision, such provision shall be deemed to be excised herefrom and the invalidity thereof shall not affect any of the other provisions contained herein. Notices. All notices and requests required pursuant to this Agreement shall be sent by certified mail as follows: To Owner: Main Street Commercial Partners Attn: Tim Tynan 372 River Ridge Road Elgin, IL 60123 To Owner's Attorney: Law Offices of Daniel J. Kramer 1107A S. Bridge Street Yorkville, IL 60560 -8- With copies to: Attorney John Wyeth United City of Yorkville Offices 800 Game Farm Rd. Yorkville, IL 60560 Authority to Execute. The signatories of the parties hereto warrant that they have been lawfully authorized by the City Council of the CITY and the Board of Directors of DEVELOPER, to execute this Agreement on their behalf. Attorneys' Fees. If a party commences a legal proceeding to enforce any of the terms of this Agreement, the prevailing party in such action shall have the right to recover reasonable attorneys' fees and costs from the other Party to be fixed by the court in the same action. Relationship of the Parties. Nothing herein shall be deemed or construed by the Parties or by any third party as creating the relationship of principal and agent or of partnership of or joint venture between the Parties, it being understood and agreed that no provision herein, nor any acts of the parties, shall be deemed to create any relationship between the parties. Remedies Not Exclusive. Except as may be otherwise expressly provided herein, the various rights and remedies herein contained and reserved to each of the parties, except as herein otherwise expressly provided, are not exclusive of any other right or remedy of such party, but are cumulative and in addition to every other remedy now or hereafter existing at law, in equity or by statute. No delay or omission of the right to exercise any power or remedy by either party shall impair any such right, power or remedy or be construed as a waiver of any default or non- performance or as acquiescence therein. t - - - { Formatted: Indent: First line: 0" -9- _ _ _ _ IN WITNESS WHEREOF, this Agreement is entered into at United-City of Yorkville,_ ,. _ - r6eheted: 9 J Illinois, as of the date and year shown above. UNITED CITY OF YORKVILLE, MAIN STREET COMMERCIAL PARTNERS an Illinois Municipal Corporation, By: By: MAYOR Manager Attest: Attest: CITY CLERK Dated: Dated Prepared by and return to: Law Offices of Daniel J. Kramer 1107A S. Bridge Street Yorkville, Illinois 60560 630.553.9500 - 10- CCFAO VFj2SIod Revised April 19, 2007 Revised April 20, 2007 STATE OF ILLINOIS ) )ss. COUNTY OF KENDALL ) UNITED CITY OF YORKVILLE AND MAIN STREET COMMERCIAL PARTNERS DEVELOPMENT/ECONOMIC INITIATIVE AGREEMENT THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into as of the day of ' 2007 by and between THE UNITED CITY OF YORKVILLE, an Illinois corporation located in Kendall County (the "CITY") and MAIN STREET COMMERCIAL PARTNERS (the"OWNER"). RECITALS The CITY is an Illinois municipality and hereby enters into this Agreement pursuant to 65 ILCS 5/8-11-20 (2006) ("Enabling Statute"); and pursuant to Section 6(a) of Article VII of the Constitution of the State of Illinois of 1970,the CITY has determined that it has the authority to enter into this Agreement. The OWNER has purchased and intends to develop the commercial real property located at the Southeast corner of the intersection of Route 34 and Eldamain Road and legally described in Exhibit "A" (the "Property") for commercial uses (`Development Project") subject to the zoning ordinance enacted by the CITY. OWNER has demonstrated to the CITY's satisfaction that the OWNER has the experience and capacity to complete the Development Project. The OWNER and the CITY have determined that without the financial assistance provided under this Agreement the Development Project would not be feasible and that the OWNER would not undertake the Development Project. The OWNER has expressly conditioned the undertaking of the Development Project on the CITY's agreement to pledge the Sales Tax Revenues (defined later) it receives from the Development Project to repay OWNER its Reimbursable Improvements (defined later), all as provided in this Agreement. The CITY deems it to be of significant importance to encourage development within the CITY so as to maintain a viable real estate tax and sales tax base and employment opportunities. Accordingly, the CITY has made the following findings necessary pursuant to the Enabling Statute: -1- That the Property has remained vacant in excess of twenty (20) years; That the Development Project is expected to create job opportunities within the municipality; That the Development Project will serve to further the development of adjacent areas; That the CITY is desirous of creating detention facilities, extension of sanitary sewer and water service, traffic signalization, deceleration and turn lanes benefiting on real property. That without this Agreement, the Development Project would not be reasonably financially possible given the off-site costs imposed by the Illinois Department of Transportation, the United City of Yorkville, and the Yorkville Bristol Sanitary District; That the OWNER meets high standards of creditworthiness and financial strength; That the Development Project will strengthen the commercial sector of the municipality; That the Development Project will enhance the tax base not only of the CITY but of all local taxing bodies; That this Agreement is made in the best interest of the CITY; and Pursuant to the Illinois Municipal Code, as amended ("Code"), the CITY has authority to enter into an Economic Incentive Agreement relating to the development of land within corporate limits, including an agreement to share or rebate a portion of the Retailer' s Occupation Taxes received by the CITY that are generated by the development. Subject to the terms and conditions of this Agreement, the CITY agrees to reimburse the OWNER for its Reimbursable Improvements. In reliance upon the CITY's representations and covenants contained in and subject to the terms and conditions of this Agreement, the OWNER intends to cause the Reimbursable Improvements (as hereinafter defined) to be constructed and to enter into construction contracts and other agreements as necessary. This Agreement has been submitted to the corporate authorities of the CITY for consideration and review, and the corporate authorities have given all notices and taken all actions required to be taken prior to the execution of this Agreement to make this Agreement effective. NOW, THEREFORE, to maintain and revitalize business within the CITY by assuring opportunities for development and attracting sound and stable commercial growth; to promote the public interest and to enhance the tax base of the CITY; to induce the OWNER to undertake the Development Project; in consideration of the OWNER's agreement to undertake the Development Project and the CITY's agreement to reimburse the OWNER for the costs of causing the construction of certain of the Reimbursable Improvements; and in consideration of 2 the mutual promises, covenants, stipulations and agreements herein contained in this Agreement, the OWNER and the CITY hereby agree as follows: 1. Incorporation of Recitals. The recitals set forth above are incorporated hereby by this reference as if fully set forth herein. 2. Creation of Economic Incentive Agreements. The CITY acknowledges that an economic incentive agreement for the subject commercial property within the Property will provide incentives for development within the Property, which will provide sales tax benefits to the CITY. The CITY shall, upon application by OWNER or its assigns, pursuant to 65 ILCS 5/8-11 -20 (2006) or any other statutory means, enact all ordinances and execute all agreements to share or rebate a fifty percent (50%) portion of the CITY' s allocated portion of sales tax revenue as set forth herein to OWNER or as assigned in writing by OWNER, pursuant to the terms provided in this paragraph of the Agreement (hereinafter referred to as "Incentives"). For purposes of this Agreement a "commercial retail user" shall be any user that collects sales tax as part of its operation. The commercial retailer user shall be referred to as the "Generator". The CITY acknowledges that its agreement to execute this Development/Economic Initiative Agreement is a material inducement to OWNER to enter into this Agreement. 3. Development Incentive Reimbursement. Incentives. a) OWNER and CITY have entered into this Agreement, and during the process of approving Engineering Plans with respect to the subject Cobblestone Development have discovered that there is significant off-site drainage issues that can be improved by substantial extra drainage work that was not contemplated by OWNER or CITY being performed on OWNER' S property. OWNER has agreed to dig out soil known as "peat" on its site and fill the same with CA- 1 rock to provide under parking lot stormwater storage to accommodate off-site flows that OWNER had been assured by the City in writing it would not originally have to accommodate. In consideration of OWNER agreeing to undertake the work outlined in paragraph 3(a)l below, which is estimated to cost in excess of One Million Three Hundred Thousand ($ 1 ,300,000.00) Dollars, OWNER shall be allowed to recover Sixty (60%) Percent of sale tax received from Cobblestone South Development out of the sales tax proceeds receipt until said amount together with interest at the rate of three percent (3%) per annum in excess of prime commercial interest rate as set by Old Second Bank — Yorkville is recovered by OWNER. Once this first amount of funds which is extended for the extra stormwater improvements described herein is recovered, OWNER' S recovery under the terms of this Agreement shall revert to the conditions set out in paragraph 2 hereof. -3- b) Except to the extent agreed in paragraph 3(a) of this Agreement; the OWNER pursuant to the terms of this Agreement shall be repaid 100% of its Reimbursable Improvement costs (defined below) out of 50% of sales tax generated by any "Generator" on the Property or any additional property purchased by OWNER, as evidenced by paid lien waivers and sworn contractor affidavit submitted to the CITY. The CITY shall include interest at the rate of three percent (3%) per annum in excess of prime commercial interest rate as set by Old Second Bank — Yorkville on the Reimbursable Improvement calculation for the balance of Reimbursable Improvements incurred by OWNER. Interest shall be calculated annually and shall commence with the Certificate of Occupancy being issued to the first store (or other business operator) on the Property. OWNER shall be entitled to recover up to the total amount of the Reimbursable Improvement calculation plus interest for a period of twenty (20) years commencing from the date of the first occupancy by a tenant in the subject development. c) In the event OWNER recovers its full Reimbursable Improvement plus interest calculation prior to that expiration time, the right to recovery shall terminate earlier than the previous stated expiration date. In the event OWNER has not received all of its Reimbursable Improvements calculation and interest upon said expiration date, the Agreement shall be treated as expired. Interest shall not be compounded. These Reimbursable Improvements include, but are not limited to, the following: 1) Construction, design and engineering, excavation, hauling, compacting, and all related functions for any portion of any detention facility, or unsuitable soil removal, and de-watering undertaken on-site of the subject property by OWNER. 2) Construction of any intersection, signalization, or other improvements on Eldamain Road and Route 34 as is necessitated by IDOT or the CITY for the development of the subject property and handling ambient traffic benefiting from said roadway improvements. 3) Extension of city water and sanitary sewer mains to the east boundary of the subject parcel as described in Exhibit "A" along and parallel with Eldamain Road to the east boundary of the subject property. 4) Any oversizing of the stormwater, water or sanitary sewer in excess of that amount required to benefit the subject property of OWNER as described in the attached Exhibit "A". 5) Any internal street connections required to be oversized as collector streets under the CITY Ordinances to benefit surrounding properties. 6) Any connection to off-site benefiting from the detention stormsewer, sanitary sewer and water to cross Route 34 to connect to adjoining or nearby properties, and any additional sums advanced by OWNER to connect to said utilities. -4- 7) The reimbursement under paragraph 3 .b. of this Agreement shall not exceed twenty percent (20%) of the total hard costs of the project, hard costs being defined as actual public improvements and private improvements outlined in paragraphs 1 -6 above excluding the design and engineering for recovery under Section 3 .b. but design and engineering shall be included to determine the reimbursement amount in 3 .a. of this Agreement. c) The CITY shall distribute the sales tax revenue generated by any Generator as follows: 1 ) 60% to the OWNER, or as directed by the OWNER; under paragraph 3(a) of this Agreement until reduced to 50% of sales tax revenue or paid pursuant to paragraph 3(b) of this Agreement 2) 40% to the CITY until it' s share of sales tax received is increased to 50% under Section 3(b) of this agreement; Sales Tax and Sales Tax Revenue Defined. The term Sales Tax used herein refers to revenues generated by the sale of merchandise from and collected under the Retailer's Occupation Tax, or any other "sales tax" or similar tax that may be enacted by the State of Illinois or any governmental agency or body created under the laws of the State of Illinois, based upon gross sales, and located within the State of Illinois, that is collected by the Generators as a result of business transactions occurring on the Property. In the event that the CITY's share of said sales tax or substitute tax is reduced or increased by the State, then the affected Generator's share thereof shall be reduced or increased in the same proportion. Payment Obligation. The CITY hereby agrees to pay OWNER or its assignee the quarterly installment payments made to the CITY by the Illinois Department of Revenue within thirty (30) days of receipt by the CITY of the quarterly installments, and continuing until the Reimbursable Improvements and applicable interest are paid to the OWNER as set out in this Agreement. The "quarterly installment payment" shall mean an amount equal to one-half (%2), except to the extent agreed to in paragraph 2(b) hereof, of the sales tax revenue received by the CITY from the State generated by each Generator on the Property, or any additions to the Property. All amounts paid to the OWNER will be due and payable solely from one-half ('/2) of the sales tax revenues received by the CITY from any Generator's sales for the preceding calendar quarter. However, if the CITY no longer receives sales tax revenues from the Generator due to a change in Illinois statutes, then the CITY shall make payments to the OWNER from any alternate sources of revenue provided to the CITY by the State, if any are made, specifically as a replacement or substitute for sales tax revenue presently received by the CITY. Verification of Costs. Following construction of the Reimbursable Improvements, OWNER shall provide the CITY with final lien waivers and sworn contractor affidavit establishing the cost of such improvements. -5- Commencement Date. The terms of this Agreement shall be for Twenty (20) years commencing from the date of the first occupancy by a tenant in the subject development. Sources of Funds to Pay Reimbursable Development Project Costs. Funds necessary to pay for the Incentives are to be solely derived from the additional sales tax generated by the Generators. This pledge of additional sales tax revenues hereby is approved by the CITY. In order to comply with the terms of this Agreement, OWNER shall require in writing all tenants in the Property and to any subsequent purchasers of any portion of the Property to direct the Illinois Department of Revenue to provide the CITY with a breakdown of sales tax being remitted to the CITY for each commercial retailer on-site. In the event OWNER or a commercial retailer fails to provide the CITY with written authority for release of said information from the Illinois Department of Revenue the CITY shall have no duty to remit sales tax proceeds from that commercial retailer to the OWNER. Assignability. 1) It is expressly agreed and understood by the parties to this Agreement that the benefits contemplated in the Development/Economic Initiative Agreement and pursuant to 65 ILCS 5/8-I1 -20 (2006) are assignable at the option of the OWNER. Upon such written assignment by the OWNER, Generator shall have all rights currently vested in the OWNER under the Development Agreements, this Ordinance and applicable law, and shall be entitled to enforce same by any legal or equitable remedy. If any Lot is sold by the OWNER, OWNER shall be entitled to continue to receive payments for Reimbursable Improvements pursuant to the Development/Economic Initiative Agreement unless specifically assigned by the OWNER. 2) OWNER may assign a portion or all of its rights under the terms of this Agreement to any future developers, owners, or institutions or individuals providing financing for the improvements outlined above in this Agreement. Reimbursement Procedures. Sales Tax Reports. OWNER agrees to cause all Generators to execute and deliver to the CITY a written direction, in form and content acceptable to the CITY and the Illinois Department of Revenue ("DOR"), authorizing the DOR to release to the CITY the sales tax figures for the Generator, on a quarterly basis and during the term of this Agreement. The CITY agrees to take the necessary action to initiate the transaction. Should the DOR cease to release the sales tax information to the CITY on a quarterly basis, OWNER and all Generators shall be responsible for any further action to obtain the sales tax information from the DOR or shall be responsible for submittal of the sales tax information from the DOR or shall be responsible for submittal of the sales tax information as provided for in the next paragraph of this Agreement. -6- In the event the DOR fails to submit to the CITY the quarterly sales tax information for any Generator as provided for in Section A above, OWNER shall cause Generators to, contemporaneous with the filing of sales tax reports with the Illinois Department of Revenue or successor agency, furnish to the CITY copies of any and all sales tax returns, sales tax reports, amendments, or any other paper filed with the State of Illinois, said Department of Revenue or other appropriate governmental entity, pertaining to the Generators, and certified as being true and correct, which documents are being provided to the CITY for purposes of identifying sales tax revenues collected pursuant to this Agreement. Confidentiality. The CITY acknowledges and agrees that information to be provided by Generators hereunder are proprietary and valuable information and that any disclosure or unauthorized use thereof will cause irreparable harm to OWNER and/or OWNER's affiliates and/or Generator and/or Generator's affiliates, and to the extent permitted by state of federal law, including but not limited to Section 7(1 )(g) of the Illinois Freedom of Information Act, the CITY agrees to hold in confidence all sales figures and other information provided by OWNER or Generators or obtained from OWNER's or Generator's records in connection with this Agreement, and in connection therewith, the CITY shall not copy any such information except as necessary for dissemination to the CITY's agents or employees as permitted hereinafter. The CITY shall be permitted to disclose such information (i) to its agents or employees who are reasonably deemed by the CITY to have a need to know such information for purposes of this Agreement; provided, that such agents and employees shall hold in confidence such information to the extent required of the CITY hereunder or (ii) to the extent required by order of court or by state of federal law. The confidentiality requirements of this Agreement shall survive any expiration, termination or cancellation of this Agreement and shall continue to bind the CITY, its successors, assigns and legal representatives for a period of five (5) years from the termination, expiration or cancellation of this Agreement. All Generators shall be treated as third parry beneficiaries to this Confidentiality provision. Audit. Each payment by the CITY to OWNER shall be accompanied by a statement executed by the City Treasurer or the Treasurer' s designee, setting forth the calculations of such payment and identifying the sales tax return period to which the payment relates. The City Treasurer or the Treasurer' s designee shall farther issue a statement setting forth all payments made to date to OWNER. OWNER shall have one (1 ) year following the receipt of said payment to contest any of the calculations or information contained in said statements. OWNER shall have the right to review all sales tax reports provided to the CITY by the state relating to any Generator upon two days written request by OWNER. Default/Right to Cure. No party shall be deemed in default hereunder until such Party has failed to cure the alleged default with ten (10) days in the case of a monetary default, or within thirty (30) days in the case of a non-monetary default, from notice of such default from the other Party; provided, however, if the nature of such non-monetary default is such that it cannot reasonably be cured 7 within such thirty (30) days period, then such Parry shall not be deemed in default if such Party commences to cure such default within such thirty (30) day period and thereafter diligently prosecutes such cure to completion. In the event of a default and except as may be otherwise provided herein to the contrary, the non-defaulting party may: (i) terminate this Agreement upon written notice to the defaulting party, recover from the defaulting party all damages incurred by the non-defaulting party; (ii) except as may be otherwise expressly provided to the contrary herein, seek specific performance of this Agreement, and, in addition, recover all damages incurred by the non-defaulting party; (the parties declare it to be their intent that this Agreement may be specifically enforced); (iii) pursue all other remedies available at law, it being the intent of the parties that remedies be cumulative and liberally enforced so as to adequately and completely compensate the non- defaulting party. No Obligation to Develop, Open or Operate. Nothing contained in this Agreement shall be deemed to obligate OWNER, Generator or any of Generator' s affiliates to construct any improvements on the Property or to open or operate any form of business in the Property for any period of time or at all. Additional Covenants. Time. Time is of the essence unless otherwise stated in this Agreement and all time limits set forth are mandatory and cannot be waived except by a lawfully authorized and executed written waiver by the party excusing such timely performance. Binding Effect. This Agreement shall be construed and enforced in accordance with the laws of the State of Illinois. Severability. If any provision of this Agreement is held invalid by a court of competent jurisdiction or in the event such a court shall determine that the CITY does not have the power to perform any such provision, such provision shall be deemed to be excised herefrom and the invalidity thereof shall not affect any of the other provisions contained herein. Notices. All notices and requests required pursuant to this Agreement shall be sent by certified mail as follows: To Owner: Main Street Commercial Partners Attn: Tim Tynan 372 River Ridge Road Elgin, IL 60123 To Owner's Attorney: Law Offices of Daniel J. Kramer 1107A S. Bridge Street Yorkville, IL 60560 -8- With copies to: Attorney John Wyeth United City of Yorkville Offices 800 Game Farm Rd. Yorkville, IL 60560 Authority to Execute. The signatories of the parties hereto warrant that they have been lawfully authorized by the City Council of the CITY and the Board of Directors of DEVELOPER, to execute this Agreement on their behalf. Attorneys' Fees. If a party commences a legal proceeding to enforce any of the terms of this Agreement, the prevailing party in such action shall have the right to recover reasonable attorneys' fees and costs from the other Party to be fixed by the court in the same action. Relationship of the Parties. Nothing herein shall be deemed or construed by the Parties or by any third party as creating the relationship of principal and agent or of partnership of or joint venture between the Parties, it being understood and agreed that no provision herein, nor any acts of the parties, shall be deemed to create any relationship between the parties. Remedies Not Exclusive. Except as may be otherwise expressly provided herein, the various rights and remedies herein contained and reserved to each of the parties, except as herein otherwise expressly provided, are not exclusive of any other right or remedy of such parry, but are cumulative and in addition to every other remedy now or hereafter existing at law, in equity or by statute. No delay or omission of the right to exercise any power or remedy by either party shall impair any such right, power or remedy or be construed as a waiver of any default or non- performance or as acquiescence therein. -9- IN WITNESS WHEREOF, this Agreement is entered into at United City of Yorkville, Illinois, as of the date and year shown above. UNITED CITY OF YORKVILLE, MAIN STREET COMMERCIAL PARTNERS an Illinois Municipal Corporation, By: By: MAYOR Manager Attest: Attest: CITY CLERK Dated: Dated Prepared by and return to: Law Offices of Daniel J. Kramer 1107A S. Bridge Street Yorkville, Illinois 60560 630.553.9500 - 10- STATE OF ILLINOIS ) )ss COUNTY OF KENDALL ) RESOLUTION NO. 2007- RESOLUTION APPROVING THE PRELIMINARY/FINAL PLAT OF RESUBDIVISION OF LOT 3 OF MENARD'S COMMERCIAL COMMONS FIFTH ADDITION (Goodwill Store) WHEREAS, the City Council of the United City of Yorkville has considered a Petition to approve the Preliminary/Final Plat of Resubdivision of Lot 3 of Menard's Commercial Commons Fifth Addition; and WHEREAS, the City Council of the United City of Yorkville has received a positive recommendation from the Plan Commission of the United City of Yorkville recommending approval of said Prehminary/Final Plat of Resubdivision; and NOW THEREFORE,upon Motion duly made, seconded and approved by the majority of those members of the City Council voting,the following action is hereby taken by the City Council of the United City of Yorkville: 1 . The Preliminary/Final Plat of Resubdivision of Lot 3 of Menard's Commercial Commons Fifth Addition is approved subject to staff comments, staff review, and legal review and all appropriate City officials are hereby authorized to execute same. JAMES BOCK JOSEPH BESCO VALERIE BURD PAUL JAMES GARY GOLINSKI MARTY MUNNS ROSE SPEARS JASON LESLIE Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this day of A.D. 2007. MAYOR Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this day of A.D. 2007. ATTEST: CITY CLERK Prepared by: John Justin Wyeth City Attorney United City of Yorkville 800 Game Farm Road Yorkville, IL 60560 MINUTES OF THE REGULAR MEETING OF THE CITY COUNCIL OF THE UNITED CITY OF YORKVILLE KENDALL COUNTY ILLD 010 HELD IN THE CITY COUNCIL CHAMBERS, TUESDA`Y2ERU R°�.°o 7. DRAFT Mayor Prochaska called the meeting to order at 7:04 P.M and led the Council in the PI e ge of Allegiance. ROLLCALL Clerk Milschewski called the roll. Ward I James Present Leslie Absent Ward II Burd Present Wolfer Present Ward III Bock Present Munns Present Ward IV Besco Present Spears Present Also present: City Clerk Milschewski, City Treasurer Powell, City Attorney Wyeth, Interim City Administrator Crois, Assistant City Administrator Olson, Police Lieutenant Schwartzkopf, - Director of Public Works Dhuse, Director of Park & Recreation Mogle, Community Development Director Miller, Finance Director Mika and Public Relations Manager Spies. QUORUM A quorum was established. INTRODUCTION OF GUESTS Mayor Prochaska asked the staff and guests to introduce themselves. He welcomed the guests and asked them to enter their names on the attendance sheet provided. AMENDMENTS TO THE AGENDA Alderman Spears asked that the item under the City Council Report, Accessible Living, be moved to under the Presentation section of the agenda. Mayor Prochaska asked that Item #1 from under the Administration Committee report be moved to the Presentation section of the agenda after the Accessible Living presentation. He also asked that Item # 2 under the Mayor's Report 42 be taken off the agenda. COMMITTEE MEETING DATES Public Works Committee Committee of the Whole 7:00 P.M., Tuesday, March 20, 2007 City of Yorkville Conference Room Economic Development Committee Committee of the Whole 7:00 P.M., Tuesday, March 20, 2007 City of Yorkville Conference Room Administration Committee Committee of the Whole 7:00 P.M., Tuesday, March 6, 2007 City of Yorkville Conference Room Public Safety Committee Committee of the Whole 7:00 P.M., Tuesday, March 6, 2007 City of Yorkville Conference Room PRESENTATIONS Accessible Living Alderman Spears thanked the representatives of neighboring communities for attending the meeting and then presented information and statistics on the number of Americans who have permanent disabilities or who are over sixty-five years of age. She stated that the magnitude of her figures obligates home builders to consider a person's entire life span. She stated that accessibility items in new construction are trade offs that result in no cost to the builder. She asked for support on three accessible living ordinances that she has prepared. She introduced William Malleris, a retired developer to the City Council. The Minutes of the Regular Meeting of the City Council — February 27, 2007 — page 2 Mr. Malleris shared his thoughts on Alderman Spears' proposed ordinances. He explained that there are four key areas in a residence that need to be addressed; no-step entries, electrical switches and outlet height, backing in bathroom walls for grab bars and door widths. He stated that these are simple things that can be done at the beginning of construction at minimal cost. He explained similar ordinances in other communities have been successful. He stated that local ordinances can include federal requirements so that problems are caught in the planning phase of construction. The goal is to catch things in the beginning of construction so they are done properly. He supported bonuses for developers that go beyond the minimum requirements for accessibility. He also explained engineering issues needed outside of structures especially with commercial and multi-family buildings (sidewalks, automatic doors, grass, etc.). Alderman Spears introduced Susan Kritzberg, owner-operator of Accessible Living, who addressed the City Council. Mrs Kritzberg explained that her company provides services and equipment for the disabled community such as ramps, lifts, residential elevators, etc. She discussed how a comfortable home can become an unfriendly environment for disabled individuals. She explained the need for ramps, door widths, bathroom accessories, etc. She stated that attention to details for handicapped individuals indicates progressive consideration by builders. She supported the consideration of the ordinances. Alderman Spears introduced Carol Phillips, the wife of a disabled man. Mrs. Phillips stated that one never knows when something causing a handicap can occur and that this possibility is important to consider when building a home. She stated that when this happened to her husband, it was costly to adapt their home. Mayor Prochaska asked that these ordinances be discussed further at the March 20, 2007 Committee of the Whole meeting and noted that he personally is affected by these issues since his brother is wheelchair bound. Alderman Besco thanked Alderman Spears for bringing this forward. He stated that he suggested this to a few developers and was met with resistance. He stated that he felt this is a positive for the community. He noted that be attended the presentation made by Bolingbrook at the Illinois Municipal League which was very impressive. Tri —City Challenge Andrew Bobbitt with the YMCA addressed the City Council and explained the Strong Kids Campaign which provides scholarships for memberships or programs. He stated that in Yorkville the YMCA provided scholarships to over 100 families. He also explained the Tri- City Challenge, a canoe race through Yorkville, biking through Plano and a run in Sandwich and he noted that both Plano and Sandwich have contributed $1,500.00 toward the challenge. He further noted that the William Wrigley Foundation has contributed $100,000.00 toward the Yorkville YMCA opening in 2009 at the comer of Mills and Kennedy Roads. He asked the City to consider a $1,500.00 contribution. Mayor Prochaska commented that when the Tri-City Challenge began, the City was considered a partner in the event however this has been reduced to a sponsorship of$250.00 due to the Sponsorship Policy. He asked the Council to consider becoming a partner again with the $1,500.00 contribution. Alderman Moons agreed with Mayor Prochaska. He commented that the YMCA is a worthwhile organization that is good for local children. He applauded what the YMCA does and asked the City Council to support them. Mayor Prochaska asked that this be discussed further at the March 6, 2007 Committee of the Whole. PUBLIC HEARINGS None. CITIZEN COMMENTS Dennis Batdorf had an objection to Alderman Spears' proposed accessible living ordinances. He stated that he did not hear of any provisions for sight impaired individuals. He asked that this handicap be considered in the ordinances. CONSENT AGENDA 1. Resolution 2007-08 — Approving the Final Plat of Subdivision for Yorkville Market Square - authorize the Mayor and City Clerk to execute (PC 2007-02) 2. Yorkville Market Place (PC 2006-98) The Minutes of the Regular Meeting of the City Council — February 27, 2007 — page 3 a. Ordinance 2007-18 - Authorizing the Execution of an Amendment to PUD Agreement - authorize the Mayor and City Clerk to execute b. Amendment to a Consent Decree — approval of the form of the amended consent order 3. Ordinance 2007-19 - Authorizing the Execution of an Amendment to Development/Economic Imitative Agreement for Yorkville Market Place - authorize the Mayor and City Clerk to execute (EDC 2007-05) 4. Rush- Copley (PC 2006-92 & 2006-93) a. Ordinance 2007-20 — Authorizing the Execution of a PUD Agreement - authorize the Mayor and City Clerk to execute b. Resolution 2007-09 — Approving the Concept PUD Plan - authorize the Mayor and City Clerk to execute c. Resolution 2007-10 — Approving the Preliminary PUD Plan - authorize the Mayor and City Clerk to execute 5. Ordinance 2007- 21 - Accepting the Conveyance of Real Property (Sunflower Estates Open Space) - authorize the Mayor and City Clerk to execute 6. Ordinance 2007-22 — Establishing Special Service Area Number 2006-119 (sunflower Estates) - authorize the Mayor and City Clerk to execute (EDC 2007-07) 7. Walnut Plaza - Letter of Credit Expiration - authorize City Clerk to call Letter of Credit if it is not renewed by April 20, 2007 (PW 2007-16) 8. Grande Reserve Unit 14 - Letter of Credit Expiration - authorize City Clerk to call Letter of Credit if it is not renewed by May 4, 2007 (PW 2007-17) 9. Grande Reserve Unit 15 - Letter of Credit Expiration - authorize City Clerk to call Letter of Credit if it is not renewed by May 4, 2007 (PW 2007-I8) 10. Grande Reserve Units 20 & 21 - Letter of Credit Expiration - authorize City Clerk to call Letter of Credit if it is not renewed by May 4, 2007 (PW 2007-19) 11 . Grande Reserve Units 23, 26 & 27 - Letter of Credit Expiration - authorize City Clerk to call Letter of Credit if it is not renewed by May 4, 2007 (PW 2007-20) 12. Saravanos Development — Sitework Letter of Credit Expiration - authorize City Clerk to call Letter of Credit if it is not renewed by June 7, 2007 (PW 2007-21) 13. Raintree Village Unit 1 - Letter of Credit Expiration - authorize City Clerk to call Letter of Credit if it is not renewed by May 2, 2007 (PW 2007-23) 14. Raintree Village Unit 2 - Letter of Credit Expiration - authorize City Clerk to call Letter of Credit if it is not renewed by May 2, 2007 (PW 2007-23) 15. Raintree Village Unit 3 - Letter of Credit Expiration - authorize City Clerk to call Letter of Credit if it is not renewed by May 2, 2007 (PW 2007-24) 16. Raintree Village Unit 4 - Letter of Credit Expiration - authorize City Clerk to call Letter of Credit if it is not renewed by April 20, 2007 (PW 2007-23) 17. Raintree Village (Route 126 Temporary Entrance) - Letter of Credit Release - authorize release of Letter of Credit (PW 2007-27) 18. Raintree Village (Route 126 Improvements) — Bond Reduction #1 — authorize reduction in car amount not to exceed $317,967.85 (PW 2007-28) 19. Windett Ridge — Public Improvement Bond Reduction #3 — authorize reduction in at amount not to exceed $203,555.12 (PW 2007-29) 20. Autumn Creek Offsite Sanitary Sewer - Final Acceptance — accept offsite Sanitary Sewer for ownership and maintenance, subject to receipt of a Bill of Sale and a 1-year warranty bond in the amount of$66,435. 79 (PW 2007-30) 21 . Resolution 2007-11 — IDOT Highway Permit and Resolution — Raging Waters (Route 47 Watermain Crossings) - authorize the Mayor and City Clerk to execute (PW 2007-31) 22. Resolution 2007-12 — IDOT Highway Permit and Resolution — Autumn Creek (Route 34 Improvements) - authorize the Mayor and City Clerk to execute (PW 2007-32) 23. Resolution 2007-13 — IDOT Highway Permit and Resolution — Kendall Marketplace (Route 34 Improvements) - authorize the Mayor and City Clerk to execute (PW 2007-33) 24. Raymond Storm Sewer Outfail - Change Order 42 — approve extending the completion date from November 15, 2006 to April 27, 2007 and authorize Mayor to execute (PW 2007-34) 25. Countryside Interceptor - Change Order 41 — authorize reduction in an amount not to exceed $30,274.40 and authorize Mayor to execute (PW2007-35) 26. Temporary Construction Easement Agreement — 308 W. Van Emmon Street - authorize the Mayor and City Clerk to execute (PW 2007-36) 27. IDOT Traffic Signal Maintenance Agreement — Amendment #1 — authorize in an amount not to exceed $4,8 75.00 to be funded front MFT and authorize Mayor to execute (PW 2007.38) 28. Walter E Deuebler Associates, Inc. Engineering Agreement for Construction Inspection Services of the Rob Roy Creek Interceptor (North Branch Contract 2) — authorize in an amount not to exceed $85,200. 00, subject to funding) (PW2007-39) 29. Engineering Department — Vehicle Purchases — approve purchase of two vehicles as presented (PW 2007-39) The Minutes of the Regular Meeting of the City Council — February 27, 2007 — naoe 4 30. Purchase of New Wheel Loader — approve purchase of new wheel oader and extend warranty as presented (PW 2007-39) 31. Resolution 2007-14 — Establishing the Job Description for the Position of Mechanic - authorize the Mayor and City Clerk to execute (ADM 2007-07) 32. SW Corner Route 47 and Corneils Road — Plat of Dedication - authorize the Mayor and City Clerk to execute (PW 2007-42) Mayor Prochaska entertained a motion to approve the Consent Agenda as presented. So moved by Alderman Besco; seconded by Alderman Bock. Motion approved by a roll call vote. Ayes-7 Nays-0 Burd-aye, Munns-aye, James-aye, Wolfer-aye, Besco-aye, Bock-aye, Spears-aye PLANNING COMMISSION/ZONING BOARD OF APPEAL Mayor Prochaska reported that the ZBA chairman, Bill Davis, has resigned. He also reported that there has been a request for a tribute for Harold Feltz who recently passed away. He explained that Mr. Feltz was along time member of the Plan Commission and ZBA acrd an outstanding community member. MINUTES FOR APPROVAL A motion was made by Alderman James to approve the minutes of the City Council meetings of November 28, 2006 and December 12, 2006 and the Committee of the Whole meetings of December 19, 2006 mid January 2, 2007; seconded by Alderman Besco. Motion approved by a viva voce vote. BILLS FOR APPROVAL A motion was made by Aldennmr James to approve the paying of the bills listed on the Detailed Board Report dated February 13, 2007 totaling the following amounts: checks in the amount of $251,294.84 (vendors); $208,131 .56 (payroll period ending 2/3/07); for a total of$459,426.40 (total); seconded by Alderman Besco. Alderman Spears noted that the payment for Siebert Engineering on page 21 for $100.00 was supposed to be removed from the Bill List and it was not. The vender amount should be $251,194.84 and the total should be $459,326.40. A motion was made by Alderman Spears to amend the Bill List to remove the payment to Siebert Engineering for $100.00; seconded by Alderman James. Motion to amend approved by a roll call vote. Ayes-7 Nays-0 Spears-aye, Bock-aye, Besco-aye , Wolfer-aye, James-aye, Munns-aye, Burd-aye Original motion to approve by a roll call vote. Ayes-7 Nays-0 Munns-aye, James-aye, Wolfer-aye, Besco-aye, Bock-aye, Spears-aye, Burd-aye REPORTS MAYOR'S REPORT Proclamation for Peace Corps Week Mayor Prochaska read a proclamation for Peace Corps Week February 26th through March 4`h 2007 (see attached). He entertained a motion to ratify the proclamation. So moved by Alderman Manus; seconded by Alderman Besco. Motion approved by a viva voce vote. Coffee with the Mayor Mayor Prochaska reported that the next Coffee with the Mayor will be held on March 3, 2007 at South Bridge Gourmet Coffee, 223 S. Bridge Street from 9:00 a.m. to 11:00 a.m. Sponsorship Recommendations Mayor Prochaska reported that the Human Resource Commission has recommended several sponsorships. Junior Women's Club Mayor Prochaska entertained a motion to approve a sponsorship of the Junior Women's Club use of Town Square Park for the Annual Craft Fair on May 19, 2007 in the amount of$115.00 by The Minutes of the Regular Meeting of the City Council — February 27, 2007 — naze 5 waiving the use fees for Town Square Park. So moved by Alderman Munns; seconded by Alderman Besco. Motion approved by a roll call vote. Ayes-7 Nays-0 Bock-aye, Besco-aye, Wolfer-aye, James-aye, Mumts-aye, Burd-aye, Spears-aye Elder Friendly Summit Mayor Prochaska entertained a motion to approve a sponsorship of the Elder Friendly Summit to be held on April 20, 2007 in the amount of $150.00 by payment to the event sponsor, The Northeastern Illinois Area Agency on Aging, d/b/a/ Kendall County Senior Provider Group. So moved by Alderman Bock; seconded by Alderman James. Motion approved by a roll call vote. Ayes-7 Nays-0 Besco-aye, Wolfer-aye, James-aye, Munns-aye, Burd-aye, Speas-aye, Bock-aye Salvation Army Golden Diners Mayor Prochaska entertained a motion to approve a sponsorship of the Salvation Army Golden Diners Program in the amount of $220.00 by payment to the Salvation Army Golden Diners. So moved by Alderman James; seconded by Alderman Burd. Motion approved by a roll call vote. Ayes-7 Nays-0 Wolfer-aye, James-aye, Mums-aye, Burd-aye, Spears-aye, Bock-aye, Besco-aye Annual Service Report Mayor Prochaska presented his Annual Service Report (see attached) He thanked Public Relations Manager Spies for coordinating the input from staff for the report. Mayor Prochaska pointed out some items in the report: o Land Cash amount was increased o Senior Service Providers remained in Yorkville o An agreement was established with the IDNR for the Glen Palmer Dam. o The comer of Route 47 and Route 126 is being redevelopment. o The water park is moving forward. o The Downtown TIF was established and projects are starting o The School Transition Fee Ordinance was amended to make it easier for the School District to get schools built by developers. o Building Permits were up 32% o A new Community Development Director was hired.. o Ordinances such as the PUD and Landscaping Ordinances were revised. o Two major medical facilities are placing on locating in Yorkville. o The Community Relation Department has worked to get the City Council meetings taped and telecast, has developed new resident information packets and is working on the 50 Anniversary Celebration plans. o The Public Works Department saw the Grande Reserve Watermain completed, the In- Town Road Program getting ready to begin, and the City becoming compliant with the State's regulation for radium in the water. o The Finance Department saw the City's credit rating increase, the Tax Levy rate decrease and Sale Tax Revenue increase. o The Library addition construction has been completed o The Parks & Recreation Department applied for and received various grants and renovated the old Post Office and Police Station for Park & Recreation Department use. o The Police Department hired another Police Cadet, two canine officers were lost but were replaced; another canine officer was added and the Neighborhood Watch program has grown. o Vision meetings have been planned which include residents for their input. CITY COUNCIL REPORT No report. ATTORNEY'S REPORT No report. CITY CLERKS REPORT No report. CITY TREASURER'S REPORT No report. CITY ADM MSTATOR'S REPORT No report. The Minutes of the Regular Meeting of the City Council - February 27, 2007 - page 6 FINANCE DIRECTOR'S REPORT - No report. DIRECTOR OF PUBLIC WORKS REPORT No report. CHIEF OF POLICE'S REPORT No report. DIRECTOR OF PARKS & RECREATION'S REPORT Director Mogle reported that the Polar Plunge will be held Sunday, March 4, 2007 at 1 :00 p.m. at Silver Springs State Park. The event raises funds for Special Olympics. Mayor Prochaska encouraged everyone to cheer on the "plungers". COMMUNITY DEVELOPMENT DIRECTOR'S REPORT NO report. COMMUNITY RELATIONS MANAGER'S REPORT Mrs. Spies reported that tentative dates for the landfill hearings are available on the City's website. COMMUNITY & LIAISON REPORT Conservation Foundation Luncheon Alderman Burd reported that she attended the Winter Membership Luncheon for the Conservation Foundation. The topic was if nature and development could co-exist. After hearing the presentation, Alderman Burd stated that the City can feel very good about some of the developments in Yorkville. She asked if the Economic Development Committee look at the possibility of an ordinance requiring all public building to follow "green" guideline and offering incentives to the developers who follow energy efficient guidelines. Heart and Safety Fair Alderman Spears reported that Trinity United Methodist Church will be holding a Heart and Safety Fair Saturday, March 3, 2007 from 8:00 a.m. to 3:00 p.m. COMMITTEE REPORTS PUBLIC WORKS COMMITTEE REPORT Smith Engineering Supplement Request for Design Fees A motion was made by Alderman Besco to approve the Smith Engineering Consultants, Inc. 2007 In-Town Road Program Supplemental Request for Design Fees as presented, subject to final staff and legal review, seconded by Alderman James. Motion approved by a roll call vote. Ayes-7 Nays-0 Mums-aye, Burd-aye, Spears-aye, Bock-aye, Besco-aye, Wolfer-aye, James-aye Ordinance 2007-23 Vacation of Public Easement - White Oaks A motion was made by Alderman Besco to approve an ordinance to vacate public access in White Oaks Subdivision, as presented, subject to final staff and legal review; seconded by Alderman Burd. Alderman Besco noted that this is for the proposed sidewalk. Alderman Spears asked if the funding for this project was going to be discussed and Mayor Prochaska indicated that it could be discussed by the Public Works Committee. Motion approved by a roll call vote. Ayes-7 Nays-0 Burd-aye, Spears-aye, Bock-aye, Besco-aye, Wolfer-aye, James-aye, Munns-aye ECONOMIC DEVELOPMENT COMMITTEE REPORT Pearl Vision Sign Variance A motion was made by Alderman Munns to postpone the Pearl Vision Sigh Variance matter until the march Economic Development Committee meeting currently scheduled to be held on March 20, 2007 per the applicant's request; seconded by Alderman Besco. The Minutes of the Regular Meeting of the City Council - February 27, 2007 - Pa 2e 7 Motion approved by a roll call vote. Ayes-7 Nays-0 Spears-aye, Bock-aye, Besco-aye, Wolfer-aye, James-aye, Munns-aye, Burd-aye Lot 4 Baker's Subdivision 1.5 Mile Review A motion was made by Alderman Munns that under the City's 1 Y: mile review authority, to recommend to the County Board approval of a subdivision of Lot 4 in Baker's Subdivision, as presented. Said recommendation is subject to and conditioned upon all staff comments which are to be forwarded to the County for its consideration; seconded by Alderman James. Motion approved by a roll call vote. Ayes-7 Nays-0 Bock-aye, Besco-aye, Wolfer-aye, James-aye, Munns-aye, Burd-aye, Spears-aye Ordinance 2007-24 MPI Yorkville South Authorizing the Execution of an Annexation and Planned Unit Development Agreement A motion was made by Alderman Mumis to approve an ordinance authorizing the execution of an Annexation Agreement and Planned Unit Development Agreement with Nancy H. Bierma, owner, and MPI #6 South Yorkville, LLC owner and developer, as presented, and authorize the Mayor and City Clerk to execute all documents upon final legal and staff review; seconded by Alderman Bock. Alderman Burd asked for clarification on what the City Council was approving. Mayor Prochaska explained that this was to execute the Annexation and Planned Unit Development Agreement for the property. Alderman Spears asked this development will have a Special Service Area Agreement. Administrator Crois explained that there will be a pay-down SSA for the water and sewer. The SSA will not be passed on to the homeowner. Motion approved by a roll call vote. Ayes-7 Nays-I Wolfer-aye, James-aye, Munns-aye, Burd-aye, Spears-nay, Bock-aye, Besco-aye, Prochaska-aye Ordinance 2007-25 Fox Moraine/North Star Parcel Rezoning A motion was made by Alderman Munns to approve an ordinance reaffirming and rezoning certain property and rezoning certain property in furtherance of an Annexation Agreement concerning the North Star Trust and Fox Moraine Property on Route 71 as presented, subject to final legal and staff review; seconded by Alderman Bock. Alderman Burd noted there was an objection to the rezoning of the Bomeman property. She asked if anyone objected to this rezoning. Attorney Wyeth explained that there was a perimeter objection that was insufficient to change the vote. Alderman Burd stated that she was informed that there were two ordinances that addressed the issue; one is the County's and one is the City's. She asked how this was calculated and Director Miller explained that he was unaware of any local ordinances pertaining to this and that the state statute was used. Attorney Wyeth explained how a perimeter objection is handled. He stated that the objection was handled by the Engineering Department. They reviewed objection and did the calculations. • - - Motion approved by a roll call vote. Ayes-5 Nays-2 Wolfer-aye, James-aye, Munns-aye, Burd-nay, Spears-nay, Bock-aye, Besco-aye PUBLIC SAFETY COMMITTEE REPORT No report. ADMINISTRATION COMMITTEE REPORT FY 205-2006 Audit A motion was made by Alderman James to accept the Independent Auditors Report dated January 5, 2007 by Crowe Chizek and Company LLC for the year ended April 30, 2006 as presented; seconded by Alderman Besco. Alderman Burd asked how much the 05/06 reconciliation cost. Director Mika stated that the cost wasjust under $15,000.00. Alderman Burd asked if the reconciliation were completed and Director Mika explained how the reconciliation was done and that the payroll reconciliation was The Minutes of the Regular Meeting of the City Council — February 27, 2007 — page 8 complete however t the reconciliation of the General Fund is still being done and should be completed in several weeks. Alderman Burd asked how this will affect the budget and Director Mika stated that she has already completed a draft of the budget and hopes to have it ready to present at the March 20, 2007 Committee of the Whole meeting. Alderman Burd noted that a letter from the auditors mentions two material weaknesses and she asked for an explanation. Director Mika stated that the auditors have recommended that the City may not have controls in place. She gave an example that the entire accounting staff was doing the reconciliation without having someone to approve them. She stated that she cannot oversee things when she is actually doing the work herself. Alderman Burd commented that no one on the City Council ever implied that the City's financial situation was bad or that anyone was embezzling. She stated that the concern was for the accounting procedures in place. Motion approved by a roll call vote. Ayes-7 Nays-0 Munns-aye, Burd-aye, Spears-aye, Bock-aye, Besco-aye, Wolfer-aye, James-aye ADDITIONAL BUSINESS Delinquent Land Cash Fees Alderman Spears asked if the developers of the Caledonia development have paid their Land Cash Fees. Director Mika stated that the City received a check however she could not recall which developer sent it in. Mr. Olson clarified that the check Director Mika was referring to carne from Raintree Village. Alderman Spears asked Attorney Wyetb if the City could stop the issuance of building permits until the fees are received. Attorney Wyeth stated that this was still under investigation. Alderman Spears recommended a penalty be applied for every day they are late. Mayor Prochaska stated that the City's ordinances has to be followed and he explained that if the fees are not paid, a lien can be placed on their property. He stated that Ocean-Atlantic has been told that if they want to be on any future agenda, their fees but be received by the City. 2007/2008 Budget Alderman Spears asked if the budget would be ready for March 20, 2007 for City Council review. Director Mika reiterated that the draft is done and she will be meeting with the Mayor to go over it. She stated that she hoped to have a draft for the City Council by Friday, March 2, 2007. She stated that the eight month review should be ready for March 20, 2007. EXECUTIVE SESSION Mayor Prochaska entertained a motion to go into Executive Session for the discussion of litigation, when an action against, affecting or on behalf of the particular public body has been filed and is pending before a court or administrative tribunal, or when the public body finds that an action is probable or imminent. He asked that the City Attorney, City Clerk, City Treasurer, Police Chief and Attorney Greg Fix and Greg Fuller be included. He noted that no action would be taken after the session. So moved by Alderman Besco; seconded by Alderman Spears. Motion approved by a roll call vote. Ayes-7 Nays-0 Wolfer-aye, Besco-aye, Bock-aye, Spears-aye, Burd-aye, Munns-aye, James-aye The City Council entered into Executive Session at 8:44 p.m. The City Council returned to regular session at 9:20 p.m. ADJOURNMENT Mayor Prochaska entertained a motion to adjourn. So moved by Alderman Besco; seconded by Alderman Burd. Motion approved by a viva voce vote. Meeting adjourned at 9:20 P.M. Minutes submitted by: Jacquelyn Milschewski, City Clerk City of Yorkville, Illinois Page lof3 COMMITTEE OF THE WHOLE DRAFT Tuesday, February 6, 2007 7:00 P.M. City Conference Room Present Mayor, Art Prochaska City Attorney, John Wyeth Alderwoman Valerie Burd City Administrator, John Crois Alderwoman Rose Spears Police Chief, Harold Martin Alderman Marty Manus David Mogle Alderman Joe Besco Finance Director, Susan Mika Alderman Jim Bock Treasurer, Bill Powell phone in: Alderman Jason Leslie Todd Millron Tony Scott, Kendall County Record Michael Brazer, Jeep & Brazer, LLC George Mueller, Attorney Charles Murphy Gary Karofiat John Reeves Jim LaPorta Gary Golinski, Park Board George Gilson Robyn Sutcliff John Phillipchuck, DBC&W Ltd. The meeting was called to order at 7:05 pm by Mayor Art Prochaska. Public Hearing None. Presentations: 1. Protect Kendall Now Update — There was no one here for the presentation. Public Safety Committee: 1, PS 2007-02 Police Reports for January 2007 — These will move on to City Council on Consent Agenda. Administration Committee: 1. ADM 2007-08 Monthly Budget Report for December 2006 — There was some discussion on some of the budgeted items. 2. ADM 2007-09 Monthly Treasurer's Report for December 2006 —The beginning balance was $18,834,444.35. Revenues were $ 1,134, 129.30 and expenses were $3,750,635.80 which makes the ending balance $ 16,217,937.85. This will move on to City Council on Consent Agenda. 3. Discuss Committee Structure — This will come back February 20"' or March 6`h. 4. Discuss Landfill Meetings Schedule — There was discussion on when and where the meetings will take place as well as the length of the meetings. 120 hours of hearing time will be needed. The candidates will be asked to attend these meetings so the new Aldermen will know what is going on when they are elected. The schedule will be revised and come back. 5. ADM 2007-07 Mechanic Job Description — There was discussion on whether the salary was competitive and whether the person would have to bring his own tools. `h This will come back February 20 . Page 2 of 3 6, ADM 2005-24 City Administrator Recruitment Contract — This contract will move on to City Council for approval on Consent Agenda. 7. ADM 2007-10 Fox Hill SSA Abatement Ordinance — This will move on to City Council on Consent Agenda. 8. ADM 2007-11 Rob Roy Creek Abatement Ordinance — This will move on to City Council on Consent Agenda. 9, ADM 2007-12 Countryside Center TIF Abatement Ordinance - This will move on to City Council on Consent Agenda. 10. ADM 2007-13 Countryside Interceptor Abatement Ordinance — This will move on to City Council on Consent Agenda. 11. ADM 2007-14 Fox Industrial Park Abatement Ordinance — This will move on to City Council on Consent Agenda. 12, ADM 2007-15 In-Town Road Program Abatement Ordinance — This will move on to City Council on Consent Agenda. 13. ADM 2007-16 Waterworks & Sewer Abatement Ordinance - This will move on to City Council on Consent Agenda. Detail Board Report Bill list): Some of the items on the bill list were briefly discussed. This will move on to City Council for Consideration. Park Board 1. PKBD 2007-02 Grande Reserve Park B — Conceptual Plan — The playground area in this park will have a castle theme. There will be a Frisbee golf course as well as a community garden. There was discussion about having a '/2 court for basketball or a soccer or baseball field. There was also discussion about a dog park. This will move on to City Council. Mayor: 1. Annexation and Zoning of Fox Moraine/North Star Parcel — This is a reconsideration of the annexation. The vacation of the road should be taken out of the agreement and not postponed. The annexation and zoning of the property without the vacating of the road will move on to City Council for Consideration. City Council Requests: 1. Intergovernmental Agreement with School District — Tennis Court Resurfacing Letter of Commitment — There was a recommendation that the city should find the $35,000 - $40,000 to share the cost with the school district. A letter of commitment will be drafted. The money will not be needed until summer. There was some discussion about the possibility of installing bleachers. A resolution allowing the Mayor to send the letter of commitment will move on to City Council. Additional Business: Alderman Munns would like to place a sidewalk issue on the 2-20-07 COW agenda. Mayor Prochaska announced that Russ Walter had resigned from the library. Barb Johnson had turned in an application for an appointment to the Library Board for a 1 year term, until May 2008. Page 3 of 3 Alderwoman Burd wanted to thank Russ Walter for his efforts to make sure the library had enough money for the upcoming year. Mayor Prochaska said there was an opening for a liaison for the Metro West legislative committee. The liaison would not have to be an elected official and the meetings are in the mornings. The legislation for the Statewide Impact Fees was sent back to committee. There has been 2 proposed ordinances for a statewide anti-smoking statute. One is at the General Assembly level, and one at the State level. Project Light speed will be discussed again at the Mayor's caucus. There was also a phone conference on the proposed changing of the State Statute disallowing municipalities to do annexation agreements past the 1 %z miles of city limits. There will be more discussion on this. Alderman Besco would like to be appointed to the Kendall County Ethics committee. Mayor Prochaska said the American Public Works Association awarded a merit certificate to EEI for their water treatment project for the City of Yorkville. Alderwoman Spears has suggested host agreement revisions and additions. She also has a letter from the Attorney General's office regarding the raceway. Candidates for a hearing officer was brought up. There are 2 candidates that are not connected to anyone in the case and are willing to come out to Yorkville. Executive Session 1. For the appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body or legal counsel for the public body, including hearing testimony on a complaint lodged against an employee of the public body or against legal counsel for the public body to determine it's validity. Alderman Besco moved to go into Executive Session including the attorney, the administrator, and the minute taker. Alderwoman Spears seconded the motion. All moved to pass with a roll call vote. The motion carried. The meeting reconvened and was adjourned at 9:30 pm. Minutes submitted by Laura Leppert. 1 of 10 Dill 11 1 UNITED CITY OF YORKVILLE COMMITTEE OF THE WHOLE Council Chambers Tuesday, March 6, 2007 — 7:00 pm In Attendance: Cit-v Art Prochaska - Mayor Travis Miller — Community Development Director Rose Spears — Alderman John Crois — Interim City Administrator Marty Munns - Alderman David Mogle — Executive Director Parks & Rec. Jim Bock — Alderman Bart Olson — Assistant City Administrator Paul James — Alderman John Wyeth — City Attorney Valerie Burd — Alderman Susan Mika — Finance Director Jason Leslie — Alderman Bill Powell — Treasurer Denise Kasper — Payroll & Benefits Specialist Alderman Besco -absent Harold Martin — Police Chief Don Schwartzkopf— Police Department Guests Kathy Farren — Kendall County Record WSPY reporter Heather Gillers — The Beacon News Stephanie Sheetz — The Conservation Foundation Gary Golinski — Park Board Tom Gilmour Peter Raphael Mayor Prochaska called the meeting to order at 7:03pm. PUBLIC HEARINGS: None PRESENTATIONS: 1, Protect Kendall Now Update Stephanie Sheetz from The Conservation Foundation was present to give an update on "Protect Kendall Now". This project was begun in July 2005 with a goal of increasing the pace of land preservation in Kendall County. Ms. Sheetz said that nationally, land trust and preservation has tripled between 2005-2005. A steering committee published a countywide open space plan incorporating all open spaces, parks etc. It is titled "National Treasures of Kendall County" and is also on the web. Her organization compiled a list of landowners who might be interested in preserving land. They are also trying to garner political and public support and were happy to find that public awareness was very high. Ms. Sheetz noted the upcoming Forest Preserve $45 million bond referendum. Page 2 of 10 Ms. Sheetz said her group is about three-fourths finished with landowner contact. They are also partnering with CorLands and with Fox Valley Land Foundation who works in the Blackberry Creek area. Approximately 750 letters were sent out thus far and 100 more per month are expected to be sent. She said they had 45 responses resulting from those letters. Postcard reminders that mention tax benefits for 2007 are being sent to non-responders. A video has also been made that outlines options available to landowners interested in land preservation. It contains testimonials from Kendall County property owners. In February, a workshop was held to talk about financial benefits for land preservation. A grant has been obtained to continue work on the Aux Sable watershed area. Ms. Sheetz said that a 16-acre conservation easement in southwestern Kendall County has been established, with 144 more acres anticipated from that owner. Another landowner is interested in purchasing property and later placing it in protection. A northwest Kendall County 16-acre parcel has also been placed in protection. Mayor Prochaska mentioned the wooded property belonging to Edwards Hospital and Ms. Sheetz said they are working on that project. In conclusion, Ms. Sheetz thanked the Council for their support. PUBLIC SAFETY COMMITTEE: 1. PS 2007-03 Police Reports for February 2007 The report was reviewed and no further action is necessary. ADMINISTRATION COMMITTEE: 1. ADM 2007-18 Monthly Budget Reportfor January 2007 There were no comments. 2. ADM 2007-19 Monthly Treasurer's Report for January 2007 Treasurer Powell said that the difference of the current month and last year, same month is shown and it gives the year-to-date and fiscal year figures. He said funds are easier to track and a budget comparison is provided. The new report saves time since it only requires a half hour of time as compared to 5 or 6 hours before. Alderman Spears asked about the difference between the revenue being shown as $23 million while another column shows $57 million budgeted. Ms. Mika said the City is 10% under the projected revenue right now and this will be monitored. CD's will come due and can be used for the shortfall if needed according to Treasurer Powell. Page 3 of 10 This moves to consent agenda. 3. ADM 2007-20 YMCA Partnership Request — Tri-City Challenge The YMCA asked the City to become a partner in this event with a fee of $ 1500. Ms. Mika said the City would be able to do this May 1st since there would be money budgeted for sponsorships. The event takes place in May. The Council must decide if they wish to be a partner at $ 1500 or make a donation that would be limited to $250. Alderman James said this request started with the Human Resource Commission, but since the amount was over $250 it moved to the Council. He said he felt this is taxpayer money and the $250 limit was set by an earlier policy after many requests for money. The Mayor asked if the City currently has activities with the YMCA. Mr. Mogle said the City does have several activities in conjunction with the YMCA. Mr. Leslie said he favored this partnership and the Mayor added that this would promote and benefit the City. He would like to see the Chamber or business groups take advantage of the fact that there would be several hundred people in the downtown area. In conclusion, since the money will be in the next budget and the request falls outside the donation policy, it was decided to move this item forward to the Council consent agenda. It will be contingent upon budget approval. Alderman Munns added that similar requests should be considered case-by-case. 4. ADM 2007-21 Salary Survey Bart Olson said there are two issues to consider: 1 . Implement a program where ranges receive a year-to-year increase along with actual salaries. (The ranges have not been reviewed recently.) 2. How to implement increases to individual salaries. a. Fallout method-not traditional, but less expensive. b. Parallel range-more expensive, but addresses all ranges There was a lengthy discussion of the methods of adjusting salaries. Some of the thoughts were: • Adjust ranges now, then annual review of ranges • Factor in benefits along with salary ranges • Address all ranges • Council to set ranges and department heads will determine where employee falls inside of that range • Percentages for raise can vary greatly when supervisors given "free rein" • Council should set COLA and merit; any further adjustment--supervisor must come before Council • Many ranges are under market value since ranges have not been adjusted recently Page 4 of 10 e Requested Mr. Olson to prepare chart with existing and proposed salary ranges only, for each position This matter will be brought back to March 20a' COW for further discussion. (Out of sequence) 1. Kendall Marketplace SSA – Establishing Ordinance, Bond Ordinance and Trust Indenture Attorney Wyeth said only the establishing ordinance would go forward now. The bond ordinance and indenture will come forward in two weeks. This is the establishment of the SSA—the third part of the total financing package. Peter Raphael of Wm. Blair & Co. was in attendance representing Kendall Marketplace. He said the SSA area will be a self-imposed real estate tax on the development and proceeds will be used for Cannonball Trail, Rt. 34 and Beecher Road improvements. It will be limited only to the retail portion and paid by tenants or owner of the center and will be a 20-year transaction. The amount of bonds needed for those improvements will be slightly over $ 10 million. This moves to the consent agenda. 5. ADM 2007-22 Benefit Renewal and Insurance Program Payroll and Benefits Specialist Denise Kasper announced that Blue Cross Blue Shield decreased the City's premium by 9%, Metlife is keeping the same rates and Vision Service Plan is increasing rates by 2%. She provided a chart of the current premium rates for HMO and PPO participants. The current plan is up for renewal and the Council is exploring the possibility of an employee contribution towards the premium. Attorney Wyeth will determine if a vote is needed on the insurance agreement as a whole and if so, he will bring this item back next week. A decision on an employee contribution must be made before April 151 to allow time to notify employees. In a memo to the City Council, Interim City Administrator John Crois recommended no contribution for HMO plans and a small contribution for PPO's. Alderman Munns commented that a possible employee contribution should be evaluated each year. He further stated that in the private sector, PPO contributions are approximately $300 a month. If the salary ranges are increasing, he felt the employee health insurance costs should increase as well. Mr. Munns also asked about Aldermen, Mayor and elected officials being covered under health insurance and IMRF. The Aldermen would be eligible for both according to Ms. Kasper, based upon working 30 hours per week and she said that Montgomery and Kendall County offer such a program to their officials. Mr. Crois said that a Council member would need to serve 2 terms (8 years) in order to qualify for IMRF. Page 5 of 10 A policy will be formalized and either a resolution or motion will be required. Mayor Prochaska noted that this action would change the budget and would need to be addressed. A decision to take part in this program would need to be made by April l st by the current Council members. Any newly elected members would be treated as a new employee and their coverage would begin accordingly. Alderman James summarized this discussion as follows: 1 . Benefits package will be renewed, Attorney to ascertain if vote is needed 2. Draft resolution for adding Council members, Mayor and elected officials to insurance and IMRF 3 . Co-pay for employees for health insurance, vote on prior to April 1St placed under Administration 6. ADM 2007-23 COLA/Merit Raises for FY 07108 This item was deferred. 7. ADM 2007-26 Discuss Comp Time The Council discussed the current policy for comp time that is only available to non-exempt employees. The maximum comp time allowed under policy is 240 hours. According to Ms. Kasper, some employees are near that amount and one employee is over that amount. It was noted that the police contract limits their employees to 60 hours of comp time and it was suggested that other employees should be limited to that amount as well. Chief Martin commented that he felt 200 hours was too much, but 60 was manageable. Alderman Munns said employees should be encouraged to use their comp time to avoid any large payout if an employee should leave. Another suggestion was to have the employee take the comp time in the week in which it was earned. Alderman Leslie said it could be a benefit to the City to allow time off at a time when the employee was not needed or to not have to pay out the dollars. However, it was also noted that if the time is banked, the City could potentially pay more for that time, if the employee was at a higher wage at payout time. The Mayor suggested delaying a decision until Eric Dhuse can give feedback for Public Works. It was pointed out by Mr. Mogle that supervisors have the right to determine when time is taken and it can actually save on overtime payouts. That supervisor's right would also help balance the workload if a request was made for comp time usage at an inopportune time. Mayor Prochaska suggested capping the 240 hours since there are slower times of the year and to limit the carryover to 40 hours for the next year. The remainder of the hours would need to be paid. This matter will be discussed at the monthly department head meeting and will be brought back to Council in one month with a tentative plan. Page 6 of 10 8. ADM 2007-27 Discuss Verification of Driver's Licenses Alderman Spears asked if all employees who drive City vehicles are verified as having valid driver' s licenses as well as their own insurance. Ms. Kasper said their licenses are checked at their hire date, however, not insurance. A background check is done as well. Since Ms. Spears said the Council had once requested a policy that the licenses be reviewed quarterly and staff members will now be asked to draft a policy. The policy is to include language that states the employee is responsible for informing their supervisor if they lose their license and they are subject to termination if they do not. The Mayor would like the Attorney to research this area because the City may have a claim against an employee in this type of situation. Mr. Munns commented that employees driving their personal vehicles for City business should also be addressed in the policy. This matter will be brought back next month. 9. Kendall Marketplace SSA (discussed earlier) 10. ADM 2007-24 Committee Structure Report This will be deferred until next month. DETAIL BOARD REPORT BILL LIST): Items discussed: Page 6: Fulton Contracting: this invoice is for service above and beyond the scope of work in the contract. Page 9: Illinois Municipal League: this invoice is for adding newly built structures to the insurance policy. Page 10: Purchase of lotion and creamer: Ms. Mika will research this item. Page 16: Nextel, replacement phone: Ms. Spears asked if this in accordance with City policy. Ms. Mika will research this also. Page 20: Annexation and legal services: this was part of the annexation agreement that said the City would cover some of the costs of this annexation according to the Mayor. PARK BOARD: I. P%BD 2007-03 Yorkville Youth Baseball/Softball Association 2007Agreement David Mogle presented an agreement with Yorkville Baseball Association—an annual agreement, usually signed in January or February. The only change will be to ask the association to provide schedules to the Park Board by March 1 st. Ms. Burd noted that another group had asked about using the baseball fields. Mr. Mogle replied that under the new policy, higher priority is given to the Baseball Association. He added that 10% of the Yorkville youth belong to this association and that any youth can join. This moves to the consent agenda. Page 7 of 10 2 PKBD 2007-04 Field Policies and Fees Some changes were made to this year's policy and they were outlined in a memo from Mr. Mogle. Fees apply to all groups and were not changed for this year. Special fees or waivers are noted as exceptions in the policy. Alderman Bock said this matter was discussed at length at a Park Board meeting and that considerable work went into this policy. This moves to the consent agenda. HUMAN RESOURCE COMMISSION: 1. Historical Street Name Recommendation – Irvin F. Monkamier Letters had been received in support of a suggested historical street name—Irvin F. Monkamier. Mt. Bock said he attended a meeting when this name was voted on and only one person voted against. Mr. Monkamier was a meat cutter and Treasurer of Cross Lutheran Church. It was recommended to suspend the street naming until more nominations have been received. Council members thought this name did not meet all criterion set forth by the Human Resource Commission. However, Ms. Spears noted that she had received further information that would qualify Mr. Monkamier for this honor. After a brief discussion, it was decided to move this name forward and place it on an eligible name list for developers. MAYOR: I. FY 07/08 Budget POINTS OF DISCUSSION WERE AS FOLLOWS : The first draft of the budget was presented and it is now balanced. Ms. Mika noted there is currently no money budgeted for wearing apparel. She said it could be left at zero or place a minimal amount in the budget for new employees only. Last year, $60 per employee was allocated and now a total of $250 is suggested for these purchases. Purchases would be itemized on the bill list and would be limited to shirts. Pay increases as a result of the salary survey, were factored into the budget. Mayor Prochaska said there was no money shown under Contingency in the budget. He explained that when the City Hall addition was built, the City borrowed money from itself to avoid taking a loan. When fees came in, the City planned to repay itself and under the Municipal Building Fund, there is a building reserve dollar amount. On the Treasurer's report, there is a negative number in the Building report, since that money is still owed to the General Fund. The policy question raised was if the City should make that transfer this year to the Contingency fund portion of the general fund and pay off most of that debt. Page 8 of 10 Ms. Burd noted a possible discrepancy in the salaries of the Mayor and two elected officials. Those will be revised. She also said that the City Attorney is to receive a stipend of $9,500 and has actually been paid $ 11 ,000. Since he is paid by the hour under a contract and also receives benefits, she recommended that the stipend be abolished. He is allowed to bill the City for 20 hours a week. Some Council members felt the attorney's pay should be increased. The Mayor reminded the Council that a full time Attorney had been recommended. There was further discussion of this matter and it was decided to also explore the possibility of a full time attorney. Alderman Spears said she wanted to insure there was adequate time to discuss the budget before it must be passed on May lst. (It must be approved by the last City Council meeting scheduled for April 24th). The budget must also move to a Public Hearing so citizens can review it. Ms. Mika said there would not be time for a separate budget meeting and Alderman Munns commented that Council members must have access to the budget much sooner in order to properly review it. It was suggested that Councilmen review it in the coming week and email questions to Ms. Mika if needed. Alderman Bock said it would make the meetings more efficient. It was decided that all questions would be forwarded to Ms. Mika and she will draft a memo to all, incorporating all their inquiries. Ms. Spears suggested readdressing the minute takers' and video-recorder's pay due to the length of the meetings and price of gas. She also said more money should be put into the budget for the Senior Services supplies (paper products, etc.). The cost in 2005 was $877. 12 compared to $2,551 .55 in 2006. This will be reviewed. In conclusion, Mr. Crois commented that this budget was the 12th revision. He said he and Ms. Mika were both relatively new and needed time to familiarize themselves with the budget and there were many complicated issues as well. He felt the next budget would be more timely. (next item out of sequence) 4. Alderman Replacement Mayor Prochaska stated that a quick replacement is needed for the vacant aldermanic seat because the landfill hearings would begin soon. He spoke with Mr. Golinski and Mr. McElroy who were both present at this meeting and both expressed an interest in being an Alderman. The Mayor said that Mr. Golinski was currently a Park Board member and that influenced his support of Mr. Golinski. The appointment would be for two years. Ms. Spears expressed her support of Mr. Golinski also. She also said she hoped that every election candidate would attend the landfill meetings. Alderman Bock concurred with the meeting attendance and also said that some information just cannot be obtained from reading transcripts or notes. However, Alderman Leslie Page 9 of 10 suggested waiting, saying that the replacement could be chosen from those having attended the hearings. Alderman Burd said she favored Mr. Golinski since he lives in the same area as the former Alderman and the constituents of that Ward feel they do not have adequate representation at this time. Aldermen James, Bock and Leslie also showed their support of Mr. Golinski. In conclusion, Mayor Prochaska said he intends to nominate Gary Golinski next week. (next item out of sequence on agenda) 3. Board Appointment Discussion The Mayor said that typically, at this time of the year, he would be looking at re- appointments for Boards, however, due to the Mayoral election he will not make those decisions. He noted that three Boards are currently missing one member each: Zoning Board of Appeals, Park Board and Plan Commission. 2. Community Relations Manager — Job Description Update This item was brought back from another meeting with the intention of possibly making this an exempt position. The salary would be increased if the position is upgraded, but it was also suggested waiting for guidance from the Salary Survey. Bart Olson said the new range for the position would be $52,093 to $74,000. Ms. Spears said she had asked for a report of overtime hours worked and money paid for overtime. At this time, there are 160 hours of comp time on the books for this position. Alderman James noted these comp hours will need to be paid in cash. Ms. Burd said that originally this position was approved by the Council as an exempt position. Somehow this was changed and subsequently the position was filled at an hourly rate. She added this was meant to be a managerial position. Ms. Spears said the average salary for this position in neighboring towns was $39,000. Alderman Burd said the minimum degree should be Bachelor's. It was also suggested that the position should be capable of performing video-recording. Ms. Burd said the supervisor should set the final salary. Alderman Bock said the Salary Survey range should be used the same as for other positions while some while others suggested a smaller amount. Though there was not a consensus of the group, this matter will move forward. Page 10 of 10 ADDITIONAL BUSINESS : Alderman Munns asked if the cleaning crew cleans the upholstered chairs in the Council Chambers. The Mayor said it was probable that he would be absent from the next, very important meeting due to a personal matter. If he is absent, Ms. Spears is the Mayor ProTem. As there was no further business, the meeting was adjourned at 10:37pm Minutes by Marlys Young, Minute Taker M4vo V2- - d.- I REQUEST FORM FOR SPONSORSHIP FROM THE UNITED CITY OF YORKVILLE PLEASE NOTE: All requests must be received by the City Clerk United City of Yorkville, 800 Game Farm Road, Yorkville, IL 60560, at least 60 days prior to your event for submittal to the Yorkville Human Resource Commission (HRC), which meets on the third Wednesday of each month. For example: if your event is to be held on September 15`h, your request should be in the City office no later than June 30 to be considered at the July HRC meeting. Requests are limited to $250 per year, per organization Event Date/Time: / Location: Name of Organization [\ I o �10 JS {'aw IQ / e b-) � i rd Q .) SIR r (/� 2 r�,Sdi 00 Address TeL I City tau hl 'l 116, State 5 L Zip 0 Phone: (01) 53 Fax: 1 . o .553 - Name of Contact Person/Title Mr A S C U Iv o f / r I n C i ink-- Approximately how many Yorkville residents does your organization serve each year? n / What is the purpose of your organization? /-�Y, , // �" / / 055 D Ii y e _S How does your organization benefit the Yorkville community? boyia doll q42 ,& -PaII i t Is your event considered to be (please check all that apply): Fine Arts _Sports _Community _Scouting _Religion-based _Other non-profit Who will benefit from the funds raised? Youths _ Adults _ Seniors _ Disabled persons _ Please check one: /Cash or "In Kind" If cash, amount requested: $J5V. M If "In Kind," are you in need of Staff? _Yes No If yes, number of hours Time: OR _Building space Name of City facility/park to be used PLEASE NOTE. If requesting staff time or use of building facilities/park, both are subject to availability on the dateyou have chosen. DEPOSIT FEES WILL NOT BE WAIVED. IF FACILITIES ARE RETURNED TO SAME CONDITION AS BEFORE USE, 100% DEPOSIT REFUND WILL BE RETURNED WITHIN 10 BUSINESS DAYS, For Office/HRC use only HRC Approved: Date: $ or _"in kind" OFFICE: Date Received: Building/facility Requested: Requested Facility/Park: _ Available _ Not Available Signed: Requested Staff: _ Available _ Not Available Signed: Date of Notice to by City Council: Date Not Approved Reason: CC Revised 03/28/06 CC Approved 03/28/06 Circle Center Grade School David A. Ascolani, Principal Circle Center Grade School 901 Mill Street Fax (630) 553-4456 Yorkville, IL. 60560 Phone (630) 553-4388 Yorkville Community Unit District 115 April 17, 2007 Dear CCGS School Family Parents, It is with a very sad and heavy heart that I am writing this letter to the parents in our school family. If you have not heard, over the weekend we lost three of our family members to a house fire. We lost Dustin Nichols, age 27 (the father), Dustin Jr. age 5 (Mrs. Parkhill' s a.m. kindergarten class) and Donovan, age 4, (Mrs. Sanders and Miss Esser' s classroom at Two Rivers Head Start). Today Mrs. Winter, our Social Worker and the classroom teachers have been discussing the loss of our family members. We allowed our students time to talk and share if anyone had a loss in their family. The family is survived by Alexus Nichols in Miss Root' s 3`d grade classroom. We are sharing this information with everyone just in case the children come home and start asking questions. We will accept donations for the family at Circle Center Grade School and will keep all family members informed through our school newsletter. It is a very sad time for one of our students and their entire family. If you have any questions, please give me a call at 553-4388. Thanks for your support and understanding. Sincerely, Mr. Ascolani CCGS Principal V STATE OF ILLINOIS ) ss COUNTY OF KENDALL ) ORDINANCE NO. 2007- ORDINANCE APPROVING THE 2007-2008 FISCAL BUDGET FOR THE UNITED CITY OF YORKVILLE WHEREAS, the Mayor and City Council of the UNITED CITY OF YORKVILLE have duly held all Public Hearings, allowed public input, and through its committee system has duly considered formation of a budget for the 2007-2008 Fiscal Year; and WHEREAS, a tentative budget was duly announced and available for examination at the City offices of the UNITED CITY OF YORKVILLE; and WHEREAS, the Mayor and City Council of the UNITED CITY OF YORKVILLE deem it in the best interest of the City for the orderly operation thereof to pass and approve the tentative 2007-2008 Fiscal Year Budget being submitted on April 24, 2007 at its regular City Council Meeting: NOW, THEREFORE,upon Motion duly made, seconded and approved by a majority of those so voting, the 2007-2008 Budget totaling$ including the amounts of$ General Fund, $ Motor Fuel Tax Fund, $ Municipal Building, $ Police Equipment Capital Fund, $ Public Works Equipment Capital Fund, $ Parks &Recreation Equipment Capital, $ Sanitary Sewer Improvement&Expansion, $ Water Improvement &Expansion, $ Debt Service Fund, $ Water Operations, $ Sewer Maintenance, $ Land Cash, $ Land Acquisition, $ Parks & Recreation $ Library, $ Fox Industrial, and $ Countryside TIF is hereby adopted for the 2007-2008 Fiscal Year, as presented. ADOPTED this 24`h day of April, 2007, pursuant to a roll call vote as follows: JAMES BOCK JOSEPH BESCO VALERIE BURD PAUL JAMES GARY GOLINSKI MARTY MUNNS ROSE SPEARS JASON LESLIE APPROVED by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this 24`h Day of April, A.D. 2007. MAYOR PASSED by the City Council of the United City of Yorkville, Kendall County, Illinois this 24b day of April, A.D. 2007. ATTEST: CITY CLERK Prepared by: John Justin Wyeth City Attorney United City of Yorkville 800 Game Farm Road Yorkville, IL 60560 2`� D Cyr, United City of Yorkville Memo " 800 Game Farm Road EST. `, 1836 Yorkville, Illinois 60560 Telephone: 630-553-4350 Fax: 630-553-7575 <LE Date: April 20, 2007 To: City Council From: Bart Olson, Assistant City Administrator CC: John Crois, City Administrator Susan Mika, Finance Director Subject: Garbage fees In FY 06/07, the garbage program costs are comprised of the monthly fee charged to us per customer: MONTHLY FEE: $ 15 .06 for residents, $ 14.06 for seniors. For the total fiscal year, the City estimates the total program cost will be $700,000. In FY 06/07, the garbage program revenues are comprised of user fees, taxes, and City subsidies, and break down as such: USER FEES: The City has been charging residents with refuse accounts $5.45 per month, and seniors $0.50 per month. For the total fiscal year, the City estimates that $256,729 in user fees will be collected (works out to an average of 3,926 customers per month) TAX LEVY: The City has levied for $372,721 in taxes specifically earmarked for garbage. CITY SUBSIDY: Calculating the City subsidy is done by taking the total revenues and subtracting the total cost. ($256,729 + $372,721) - $700,000 = -$70,550 This means the City subsidized $70,550 of the total garbage program, which equates to $ 17.96 per refuse account per year, or $ 1 .49 per refuse account per month. In FY 07/08, the City staff budgeted the same garbage costs and revenues due to not knowing how the bids would come in. When the bids came in, they were significantly higher than last year's costs. Additionally, the amount of taxes generated has decreased significantly from last year, due to the limiting rate and the way that taxes are distributed between the varying internal levies. The breakdown of the FY 07/08 garbage program costs are as follows: MONTHLY FEE: $ 19. 10 for all residents. For the total fiscal year, the City estimates the total program cost will be $1,031,400 (assuming that there will be 4,500 refuse accounts per month). In FY 07/08, the garbage program revenues are comprised of user fees, taxes, and City subsidies, and break down as such: TAX LEVY: the City has levied $208,629 in taxes specifically earmarked for garbage. USER FEES : Undefined, this is a policy issue to be set by City Council. CITY SUBSIDY: Undefined, this is a policy issue to be set by City Council. Taking the total known program revenues and subtracting the total known program costs will yield the amount of current program deficit: $208,629 - $1,031,400 = -$822,771. The total of $822,771 is the amount the City Council needs to further breakdown into amount of user fees and amount of subsidy. Policy options to do this are as follows: 1 ) Subsidize the entire amount. a. This would eliminate the user fees and would roll the entire $822,771 into the general fund budget. Based on the current draft budget, such an amount would actually yield a $566,400 deficit in the FY 07/08 draft budget. 2) Leave fees at the current rate of $5.45 per month for residents and $0.50 per month for seniors. a. This would generate approximately $270,540 in user fees over the course of the fiscal year and would result in a City subsidy of $552,231 . Based on the current draft budget, such an amount would actually yield a $295,860 deficit in the FY 07/08 draft budget. 3) [As shown in draft budget] Raise fees to $ 11 .59 per month for residents. a. This would generate approximately $566,400 in user fees over the course of the fiscal year and would result in a City subsidy of $256,371 . This City subsidy breaks down into $56.97 per refuse account per year, or $4.75 per month. Based on the current draft budget, such an amount would yield a completely balanced budget. 4) Raise fees to $ 15.24 per month for residents. a. This would generate approximately $822,771 in user fees over the course of the fiscal year and would result in a City subsidy of $0. Based on the current draft budget, such an amount would actually yield a $256,371 surplus in the FY 07/08 draft budget. 5) Any other monthly fee chosen by the City Council. a. The key point to remember is that the tax levy is a fixed revenue source, and the monthly fee charged to the City for each refuse account per month by Veolia is a fixed cost. Whatever amount is chosen by the City Council will generate x amount of user fees, which must be offset by a City subsidy of y. Using our two known variables (tax levy and monthly fee from Veolia), the magic number is the $822,771 program deficit. b. The current programs (above) do not identify senior discounts on refuse. If the City Council desires to charge seniors a different rate than the residents, then the revenue shortfall (from the discounted rate) will have to be offset somewhere in the budget (i.e. contingency, or increase rate accordingly for resident accounts). As a point of reference, we have roughly 400 senior refuse accounts currently. For example, if we chose option 3 ($ 11 .59 per month for residents), adding a senior rate of $0.50 per month (as is currently being charged), would have to be offset by an increase in the general residents' rate to $ 12.59 per month to balance the budget. In the same example, adding a senior rate of $ 1 per month, would have to be offset by an increase in the general residents' rate to $ 12.53 per month to balance the budget. Finally, all rate options should be considered in the light of the funding shift for the program. Namely, the user fees are going to increase, but the amount paid per resident per year in property taxes is decreasing. For example, last year the average resident paid $5.45 in user fees, and $7.91 in property taxes, for a total of $13.36 per month. This year, the resident may be paying $11.59 per month in user fees, but will only be paying $3.86 property taxes, for a total of $15.45 per month. Using the third option of $11.59 per month, results in a true increase in per month costs to the resident of only $2.09. As a point of reference, I have compiled several other municipalities' monthly fees for refuse collection: Hinckley - $ 13 .20 per month Montgomery - $ 12.60 Oswego - $ 14 Plano - $ 17.05 Sugar Grove - $ 14.75 Darien - $ 13 .76 Downers Grove - $ 15 . 18 Lombard - $12.42 Woodridge - $ 18 Addison - $ 16.35 Bartlett - $ 16.01 Bensenville - $ 18.57 Clarendon Hills - $20.05 Elmhurst - $ 11 . 10 Glen Ellyn - $ 12.50 Glendale Heights - $ 14. 15 Lisle - $ 16.21 Oak Brook - $ 14 Roselle - $ 11 .90 Villa Park - $ 12.68 Warrenville - $33 .55 West Chicago - $ 18.50 Wheaton - $29.08 Willowbrook - $21 .50 Wood Dale - $17.59 0 z o w 2 0 z t 0 c O a 9 2 0 n x a € E X _ V o E' § gym EEmm ou . 89 o ^ c o8 z � 0ni9as wr a $ F °0 °0 °000 ma $ Ov $ m0008o00000 80000 $ 4180 000 oo � oaam m800n � Nm ° � N & NSB $ $ '" r ^ m°„°.. 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Adjusting salary to be in line with the other Foremen. *Funds can be taken from the reserve line item in sewer. **This will be reviewed & approved by the City Administrator Water Promotion 1 MW I MWII $2.04 an hour / $4,245 a year Employee has been with the City Full Time for 7 months. *Funds can be taken from the reserve line item in water. Streets Promotion 1 MWII Operator $2.23 an hour / $4,640 a year `Funds can be transferred from the water reserve to the general fund to cover this. Page 37 of 38 CIV PECUESr STATE OF ILLINOIS ) I ss COUNTY OF KENDALL ) ORDINANCE No. 2006--X-N� ORDINANCE AMENDING AND RESTATING CITY CODE TITLE S--BUILDING, CHAPTER 14—POLLUTION CONTROL FACILITY SITING Whereas the United City of Yorkville has taken up, discussed and considered amending and restating the City Code, Title 8, Chapter 14, Pollution Control Facility Siting, and Whereas the Mayor and City Council have discussed that it may be prudent to amend and restate Title 8-- Building, Chapter 14—Pollution Control Facility Siting, in its entirety thereby restating Chapter 14 as depicted on the attached Exhibit "A". NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE UNITED CITY OF YORKVILLE,upon Motion duly made, seconded and approved by a majority of those so voting, that Title 8 -- Building, Chapter 14 -- Pollution Control Facility Siting, of the City Code of the United City of Yorkville is hereby amended by deleting the current text of all of Chapter 14, and substituting in place of the former Chapter 14, a new Chapter 14, as depicted on the attached Exhibit"A". All ordinances or parts of ordinances conflicting with any of the provisions of this Chapter shall be and the same are hereby repealed. -1- If any section, subsection, sentence, clause, phrase or portion of this Chapter is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision, and such holding shall not affect the validity of the remaining portions hereof. This Chapter shall be in effect from and after its passage, approval and publication in pamphlet form as provided by law. JAMES BOC*; S� JOSEPH BESCO VALERIE BURD _ PAUL JAMES L DEAN WOLFER _� MARTY MUNNS _ ROSE SPEARS JASON LESLIE Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this Day of �Eim qt{ A.D. 2006. MAYOR Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this _ �C� day of Q�— A.D. 2006. ATTEST: - CITY CLERK Prepared by: John Justin Wyeth City Attorney United City of Yorkville 800 Game Farm Road Yorkville, IL 60560 -2- EXHIBIT "A" CHAPTER 14 POLLUTION CONTROL FACILITY SITING ORDINANCE Section 1. DEFINITIONS Whenever the following terms are used in this Chapter, they shall have the meanings respectively ascribed to them hereafter provided: ACT: "The Environmental Protection Act," 415 ILCS 511 et seq. APPLICANT: Any person, partnership, firm, association, corporation, Municipal corporation or unit of local government, company or organization of any kind that files a request for siting approval of a pollution control facility pursuant to the Act and this Ordinance. CITY: The United City of Yorkville, County of Kendall, State of Illinois. CITY CLERK: The United City of Yorkville City Clerk. CITY COUNCIL: The United City of Yorkville City Council. FACILITY: A pollution control facility as defined in the Act. PETITION: The application filed by the Applicant requesting siting approval for a facility. In addition, all other words used in this Chapter and defined in the Act shall have the same definitions and meanings as set forth in the Act. Section 2 NOTICE OF REOUEST FOR SITING APPROVAL A. No later than 14 days before the date on which the City Clerk receives a request for siting approval, the Applicant shall cause written notice of such request to be served either in person or by registered in mail, return receipt requested, on owners of all property within the subject area that is not solely owned by the Applicant and on the owners of all property within 250 feet in each direction of the lot line of the subject property, said owners being such persons or entities which appear from the authentic tax records of Kendall County; provided that the number of feet occupied by all public roads, streets, alleys and other public ways shall be excluded in computing the 250 feet requirement; provided further that in no event shall this requirement exceed 400 feet, including public streets, alleys and other public ways. B. Such written notice shall also be served upon members of the Illinois General Assembly from the legislative district in which the proposed facility is located and shall be published in a newspaper of general circulation. -3- C. Such notice shall state the name and address of the Applicant, the location of the proposed Facility, the nature and size of the Facility, the nature of the activity proposed, the probable life of the proposed activity, the date when the request for site approval will be submitted, and a description of the right of persons to comment on such request as hereafter provided (which may be satisfied by enclosing a copy of this Ordinance). Section 3. APPLICATION FOR SITING APPROVAL A. An original Application and a minimum of 30 complete copies of the Application, including all plans, exhibits, reports, maps and other submittals, shall be delivered to the office of the City Clerk. Upon receipt of any such Application, the City Clerk shall date stamp, retain and preserve the original Application as the start of the public record on this matter. The Clerk shall also date stamp the copies of the Application and immediately deliver 1 copy of the Application to the Mayor and each City Council Member. The Clerk shall deliver 2 copies to the City Administrator's office. The Clerk shall deliver 1 copy to the Finance Director, 1 copy to the Director of Public Works, 1 copy to the City Engineer, 1 copy to the Zoning Officer, 1 Copy to the Chief of Police; 1 copy to the City Planner; 1 copy to the Economic Development Committee Chairman; 1 copy to the Chairman of the Plan Commission. The Clerk shall deliver 12 copies to the City Attorney' s office. The Clerk shall also forward a copy of the Application to the Public Library for the Library to maintain as a non-circulating reference copy available to the Public. The date on the stamp of the City Clerk shall be considered the official filing date for all purposes relating to the time of filing. Receipt and acceptance of a Petition by the City Clerk is pro forma, and does not constitute an acknowledgment that the applicant has complied with the Act or this Article. Should the Petition be presented to the City Clerk without the correct number of copies, in the incorrect form, or without the sections and fee described in this subsection, the Petition shall be rejected by the City Clerk. B. A copy of the Application shall be made available at City Hall for public inspection in the office of the City Clerk or such other location as may be convenient to the operation of the City government. Another copy of the Application shall be made available for purposes of fulfilling copy requests submitted to the City. The Clerk may employ an outside copy service for this purpose and said service may be furnished a copy of the Application for purposes of reproduction. Members of the public shall be allowed to obtain a copy of the Application or any part thereof upon payment of the actual costs of reproduction. All copying requests shall be fulfilled by the City Clerk within a reasonable time and in conformance with the Freedom of Information Act. C. Applications shall include the following: 1 . A written petition on standard 8 '/2" x 11" paper setting forth or including the following: a. The identification of the applicant, owner of the subject property and the proposed operator of the Facility. If the subject property is -4- owned in a trust, then also identify the beneficiary(ies) of the trust(s). Also indicate for each whether the Applicant, the landowner and the operator is an individual, partnership, limited liability company, corporation or unit of government. In the case of an individual, list his or her address. In the case of a partnership, submit the names of all partners. In the case of a limited liability company, submit the names and addresses of all members and managers and attach a certificate of good standing for the LLC from the Secretary of State's office. In the case of a corporation, submit the names and addresses of all officers and directors, and the names and addresses of all shareholders owning 10% or more of the capital stock of the corporation; together with certified copies of the articles of incorporation in the State of Illinois or, if not incorporated in the State of Illinois, its license to do business in the State of Illinois. b. The legal description of the proposed site of the Facility and a street address or some other reasonable description of where the Facility is to be located. C. A description of the proposed Facility, its operation and the anticipated longevity thereof. d. The area to be served by the proposed Facility and a statement of the needs in such area for such a Facility. e. The expected types, amounts and methods of treatment or storage of all wastes proposed for the site and the origins of these wastes. f. The monitoring plans, including background analyses for ground water, surface water and air. g. The plans for closure of the site and continued monitoring thereafter. h. Reasons supporting approval of the request; i. Proof of notice pursuant to Section 39.2(b) of the Act; and j. A prayer for siting approval. 2. The request for a permit made to the Illinois Environmental Protection Agency, if any such request has been made. 3. A site plan showing details of the proposed Facility including, but not limited to: a. Engineering cross-sections; b. All existing wells within 1,000 feet of the subject property; C. All monitoring systems, including, but not limited to, ground water, surface water, and air; d. Fences, buildings and other structures; e. Roads, entrances and driveways; f. Core sample locations on the subject property; and g. Location and purpose of any other drill-holes on the subject property. h. Any information to demonstrate that the proposed facility is so designed, located and proposed to be operated in such a manner that the public health, safety and welfare will be protected, in addition to that which has been provided already pursuant to this article. i. Whether any existing uses will be continued. -5- 4. A detailed topographic survey of the subject property and the surrounding area-- within 1 ,000 feet of the property line—indicating: topographical variations in 2 foot intervals; existing land uses; existing zoning; and, if applicable, the boundary of any floodway or flood plain. 5. A statement of the plan of operation for the proposed Facility including, but not limited to, the following: a. Method of landfilling, incineration, composting, resource recovery or other process; b. Hours of operation; C. Personnel and their training; d. Litter, vector, dust and odor control; e. Surface drainage and erosion control; f. Fire control; and g. Corrective actions for spills and other operational accidents. 6. A report of projected traffic impact regarding the proposed site, including but not limited to, the anticipated number of vehicles and their size, weight and direction of movement. This report should include gap study data and level of service analysis for all intersections likely to be impacted by the projected traffic. 7. All site-specific studies, maps, reports, permits or exhibits which the applicant desires the City to consider at the public hearing, including all documents submitted to the Illinois Environmental Protection Agency pertaining to the proposed Facility. Background reference material generally relied upon in the preparation of the application need not be reproduced and included within the application in its entirety. 8. A written commitment (by Host Agreement or otherwise) to obtain certificates of insurance from companies having a Best rating of A VI or better that shall, at such time as the facility is permitted, cover accidents such as fires, explosions, nonsudden accidental occurrences and pollution impairment. 9. If the site is a proposed hazardous waste facility, a copy of the Resource Conservation and Recovery Act Contingency Plan. 10. A statement describing the past operating experience of the Applicant and. if different, the Operator (and, for both, any subsidiary, member, manager, parent corporation or subsidiary of the parent corporation) in the field of solid or hazardous waste management. 11 . A statement citing the past record of actual or alleged violations of the applicant (and any subsidiary, member, manager, parent corporation or subsidiary of the parent corporation) with environmental laws and regulations governing solid or hazardous -6- management operations or activities. Said statement shall include, but not be limited to, a citation of the applicable statute or ordinance violated or alleged to be violated and a brief written summary of the activities or operations giving rise to the actual or alleged violations and the ultimate outcome of the matter, including whether any fines or penalties were imposed. 12. A description of the following (if applicable): a. Leachate collection system. 1 . Type, location and construction of the subsurface collection system; 2. Written narrative describing methods and processes of the collection, management and treatment of the leachate; 3. Program for monitoring effectiveness of the collection, management and treatment of the leachate; and 4. Discharge points of effluent b. Final cover system, including proposed soil and/or geomembrane specifications if applicable. C. Facility construction quality assurance and quality control program; d. Personnel requirements including number of full- and part-time employees, which personnel positions and in what numbers are considered minimally necessary for facility operation, and the training and supervision of employees. In addition, identify whether the proposed facility intends on utilizing any contract or temporary employees and, if so, the positions those employees would fill, the training requirements and supervision of such employees, and whether such employees would be considered minimally necessary for the facility operation. 13 . The Application Fee for a request for siting approval is required and shall be administered as follows: a. The Applicant shall deposit the sum of $ 100,000.00 in the form of a certified or cashier's check, to cover the costs associated with the siting process, including (but not limited to) court reporter costs, transcript costs, City legal and consultant costs, and other expenses incurred by the City in conducting the review of the request for siting approval, the subsequent public hearing and the siting approval decision; provided, however, that any portion of the application fee that remains unexpended at the conclusion of the siting approval decision shall be returned to the applicant. An accounting of expenses attributed to the hearing process shall be provided monthly. b. In the event that, at any time prior to the conclusion of the siting approval process, the City has expended such sums as to reduce the balance of the application fee to a figure less than $25,000.00, the Applicant will be notified in writing. The Applicant would then have 14 days to deposit with the City Clerk an additional $50,000.00 in the form of a certified or cashier's check, unless the City Administrator determines, in his/her sole discretion, that additional funds in excess of $50,000.00 are necessary -7- based upon the status of the siting process, in which case the Applicant shall deposit that amount. In no event shall any demand for additional fees exceed $ 100,000.00 per each additional funding request. Any portion of the fees, including any additional fees, that remain unexpended at the conclusion of the siting approval decision shall be returned to the Applicant. 14. A table of contents shall be provided that readily identifies all sections and subparts of the application, including all accompanying appendices, exhibits, tables, and illustrations. The pages, appendices, exhibits, tables, and illustrations shall be denoted in logical sequence. 15. The Applicant shall also provide a copy of the entire Application in electronic ".pdf' format on CD-ROM such that the Application may be uploaded to the City website and that read-only copies of the Application may be provided on CD-ROM format to members of the public that request same. D. An Application may not be filed that is substantially the same as an application that was disapproved within the preceding two years pursuant to a finding under any of the criteria of subsection 9B of this Ordinance. E. Although date stamped at the time of delivery, the Application shall be subject to further review to assure compliance with the requirements of this Ordinance concerning the content of the Application. Accordingly, every Application maybe rejected within the first 21 days following its delivery if it is determined by the office of the City Administrator that the Application has omitted any of the materials required by this Section of the Ordinance. This review is for purposes of completeness only and not an evaluation of the information under the criteria of the Act. The City Administrator shall, therefore, deliver to the Applicant within 21 days of the date of delivery a statement advising the Applicant of one of the following: 1 . The content of the Application is complete and therefore the delivery date stamped upon the Application shall constitute the Date of Filing; or 2. The Application is incomplete in the following specific ways and therefore the Application has not been accepted for filing. The City Administrator shall specify the deficiencies in the Application. Following confirmation of the completeness of the Application, the City Clerk shall cause the publication of a black border notice stating that said Application and supporting evidence have been filed and are available in the City Clerk's office for public inspection. The City Clerk shall cause such notice to be published no later than 30 days from the Date of Filing. F. In order to give members of the public an opportunity to make informed written comment and to give members of the public and the City an opportunity to prepare adequately and fairly for the public hearing hereinafter described, the Applicant must 8- fully comply with all requirements of this Section of the Ordinance and failure to submit the required information as of the Date of Filing shall, absent good cause shown in the judgment of the Hearing Officer, render such information inadmissible at the public hearing. G. At any time prior to the completion by the Applicant of the presentation of the Applicant's factual evidence and opportunity for cross-examination by the City Council and any participants, the Applicant may file not more than one amended application containing substantive amendments or revisions upon payment of additional fees in the sum of $25,000.00--unless the City Administrator determines, in his/her sole discretion, that funds in excess of the $25,000.00 are required due to the nature of the changes of the amended application, in which case that greater amount shall be the sum due. Upon the filing of an Amended Application, the time limitations for final action by the City Council shall be extended for an additional period of 90 days. H. Other amendments may be made if, in the opinion of the Hearing Officer, any such proposed amendment is nonsubstantive and the Hearing Officer otherwise allows such amendments. Section 4. REVIEW OF APPLICATION A. The City Administrator, together with the assistance of Special Counsel to the City, shall be responsible for coordinating the review of the Application by the City Staff and its consultants and to render such reports, advice or recommendations to the Mayor and City Council as the City Administrator shall deem prudent to assisting the Mayor and City Council in making their decision. The City Administrator is authorized to call meetings and set deadlines for the submittal of reports and recommendations in preparation for submission through the public hearing process. The City Administrator, Special Counsel, the City Staff and the City's consultants shall not discuss the Application or the review thereof with, nor submit reports or recommendations to, the Mayor, City Council or the City Attorney except in accordance with the public hearing process set forth below. B. Should the City Administrator desire to enter any reports, testimony or other evidence into the record of the public hearing, such shall be entered in accordance with the procedures set forth in this Ordinance and such shall also be available for copying by the public upon the payment of the actual costs of reproduction. Section 5. PARTICIPATION AND INFORMATION FROM OTHER PARTIES. (a) The Applicant is a Participant. (b) The City is a Participant. For purposes of the Act, the City and its employees and staff, and any experts, consultants, investigators or attorneys hired by the City to review, investigate, present at hearing, or otherwise work for the City concerning the Petition, all -9- constitute one Participant. To the extent the City employees and staff wish to participate in the public hearings outside their roles or employment with the City, they must submit a Notice of Participation, as do other members of the public. (c) Any person other than described in (a) and (b), above, must file a written "Notice of Participation" on a form supplied by the City Clerk notifying the City Clerk and counsel for the Applicant of that person's or entity's intent to participate. 1 . Every Notice of Participation must be filed with the City Clerk before the adjournment of the first day of public hearing. In the case of counsel of record for any Participant, said counsel shall, on or before the 80a' day from the Date of Filing, serve a letter upon the City Clerk and upon counsel for the Applicant entering his or her appearance for the Participant. 2. Every Notice of Participation shall provide the following information: the name, address daytime phone number and, if available, facsimile number of the Participant or counsel; whether the Participant will be participating on his/her own behalf or as a representative/spokesperson of another person or entity (and if on behalf of another person or entity, identify the name of that person or entity); whether the person (or the entity or association he/she represents) will be represented by an attorney during the public hearings: and whether the person intends on providing oral testimony or comment during the public hearing. All members of the public who desire to present sworn testimony, unswom comment, or submit written questions to the Hearing Officer must file a Notice of Participation. 3 . No person may become a Participant after the first day of the hearing except for good cause shown. The Hearing Officer shall liberally interpret this limitation if the additional participation shall not delay the process or unfairly prejudice a prior Participant. No late Participant shall be entitled to re-call a witness who has previously testified. (d) Participant rights. Participants have the right to present sworn testimony and witnesses. Participants represented by counsel have the right to cross-examine or question witnesses who provide sworn testimony. Participants who are not represented by counsel may provide witnesses, evidence and sworn testimony subject to cross- examination by others; provide unswom testimony or comment during the public hearing (subject to the Hearing Officer's judgment and consistent with fundamental fairness); or, as is the case for members of the public generally, submit written questions to the Hearing Officer who, in his/her sole discretion, shall decide whether such questions shall be posed and the manner of posing such questions. Participants who are not represented by counsel shall not cross-examine witnesses directly. (e) Any attorneys acting as counsel and representing a Participant must be licensed and in good standing to practice law in the State of Illinois, or if licensed and in good standing to practice law in another State which is part of the United States, shall be -10- allowed to serve as a counsel for a Participant upon motion made to and granted by the Hearing Officer. (f) All witnesses (other than those called purely for purposes of rebuttal) and the subject matter on which they will testify shall be disclosed, and all reports, studies, exhibits or other evidence, or copies thereof, that any person, other than the Applicant, desires to submit as evidence for the record at the public hearing must be filed with the City Clerk and with counsel for the Applicant no later than 80 days after the Date of Filing of the Application. In the event that the 80th day after the Date of Filing falls on a Saturday, Sunday or legal holiday, the next business day shall be considered the date by which all such information must be filed. Copies of all such information shall also be available for copying by the public upon the payment of the actual costs of reproduction. Evidence or witnesses not so disclosed by the required date shall be admissible at the hearing only where the Hearing Officer shall find that the admission of such evidence is necessary to provide fundamental fairness to the parties. Section 6. PUBLIC HEARING A. The Public Hearing shall be held no sooner than 90 days from the Date of Filing and shall not commence any later than 120 days from the Date of Filing. The Public Hearing shall be at such times and places as is convenient for the public generally but convenience of the public shall be subservient to the requirement that the City render a decision prior to the 180th day from the Date of Filing, and accounting for the 30 day period for written comment following the close of the public hearing, and accounting for sufficient time for the corporate authorities to deliberate and render a decision. The City Administrator shall determine and publish the date(s), time(s) and location(s) for the Public Hearing as soon as is practical but in no event later 30 days after the Date of Filing. B. Once determined by the City Administrator, the City Administrator shall notify the Applicant of the date, time and location of the Public Hearing and shall request that the Applicant cause notice of the Public Hearing to be made as follows: 1 . Publish 2 legal notices in a newspaper of general circulation published in Kendall County. The first such notice shall be published no sooner than 50 days from the Date of Filing and no later than 60 days from the Date of Filing; the second such notice shall be published no sooner than 65 days from the Date of Filing nor later than 75 days from the Date of Filing. Said notices shall consist of the following: A. The name and address of the Applicant; B. The owners of the site and, if ownership is in a land trust, the names of the Beneficiaries of said trust; C. The legal description of the site: D. The street address of the Property and, if there is no street address for the -11 - Property, a description of the site with reference to location, ownership or occupancy or in some other manner that will reasonably identify the property to the residents of the neighborhood; E. The nature and size of the proposed development; F. The nature of the activity proposed; G. The probable life of the proposed activity; H. The Date of Filing and the time and date of the public hearing; I. The location of the public hearing; J. A copy of this Ordinance and a statement that witness lists and copies of reports and other evidence are to be filed with the City Clerk and counsel for the Applicant no later than the 80th day from the Date of Filing. 2. Certified mail to all members of the Illinois General Assembly from the district in which the proposed site is located. 3 . Certified mail to the Illinois Environmental Protection Agency. 4. Certified mail to the County of Kendall and all municipalities or townships within 1 and V2 miles of the proposed facility. 5. Public hearing notice in a newspaper of general circulation published as a display at least once during the week preceding the public hearing. Such notice shall consist of all items described in subsection B above except for items lc and lj. C. Hearing Procedures: 1 . The Mayor shall appoint a Hearing Officer to preside over the public hearing and the Hearing Officer shall make any decisions concerning the admission of evidence and the manner in which the hearing is conducted, subject to this Ordinance. The Hearing Officer shall make all decisions and rulings in accordance with fundamental fairness. The Hearing Officer may exclude irrelevant, immaterial, incompetent or unduly repetitions testimony or other evidence. Rulings of the Hearing Officer shall be appealable to the City Council but may be reversed only upon a vote of 3/4ths of the corporate authorities present. All testimony and all public meetings concerning the Petition shall be in the presence of a certified court reporter who shall report all proceedings regarding consideration of the Petition. The Hearing Officer shall have the following powers or duties: a. Administer oaths and affirmations; b. Conduct a public meeting, prior to the start of the public hearings, to explain the public hearing procedure and site location review process. C. Arrange for the presence of a certified court reporter to attend and transcribe the conduct of all public hearings for the public record. -12- d. Regulate the course of the hearing, including, but not limited to, controlling the order of proceedings, consistent with this Ordinance, and to grant recesses for good cause shown. For example, good cause may be found when issues, facts, data or other pieces of evidence arise in the course of the hearing that were not reasonably foreseeable to the party requesting the recess. No recess may extend past 5 days except due to the availability of a suitable forum for the hearing. e. Require a witness or person presenting unswom public comment to state his/her position either for, against, or undecided with respect to the proposed facility. f. Examine a witness and direct a witness to testify. g. Establish reasonable limits on the duration of public hearing consistent with the Act and this Ordinance, including but not limited to the reasonable limitation of sworn testimony, unswom oral comment, direct and cross- examination of any witnesses, and the limitation of repetitive or cumulative testimony and questioning. h. Rule upon objections and evidentiary questions, with the understanding that such rulings must be consistent with fundamental fairness, but need not be in strict compliance with the Illinois Supreme Court, Illinois Code of Civil Procedure, or any local rules of evidence governing a civil judicial trial in the State of Illinois. i. Allow the introduction of late-filed evidence, be it written or testimonial, on behalf of any Participant, provided good cause is shown for the late-filing, the evidence is offered in and is relevant to the rebuttal portion of the Applicant's or Participant's case, and evidence was filed with the City Clerk at least one day before the public hearing at which it is offered, and fundamental fairness to all parties will be preserved. j. The Hearing Officer shall be an attorney, licensed to practice in Illinois. The Hearing Officer shall confer with the City Council concerning the Petition, between the Date of Filing of the Petition and the Council's decision on the Petition. Given the Hearing Officer's role of communicating with the City Council, the Hearing Officer may not confer with the Participants (members of the public, Applicant and City included) concerning the Petition, unless such conference takes place during the public hearing, is through correspondence which is filed with the City Clerk (and, thus, available for everyone to view), or concerns location, time or other similar scheduling aspects of the public meeting or public hearing, or the notices for same. The only additional exception from this restriction is that the Hearing Officer may confer with the City Clerk about the upkeep or status of the public record, make a request to review or copy the public record, or confer with the City Clerk regarding the scheduling or location -13- of the public meeting or hearing, or arrangements for the notices of the pubic meeting and hearing. k. At the conclusion of the public hearing and after consideration of all timely-filed written comments, the Hearing Officer shall submit draft written findings (of law or fact) to the City Council and file a copy of such findings with the City Clerk. 1. The Hearing Officer does not have the right or the power to vote, as a City Council Member votes, on the Petition. 2. Conduct of the public hearing shall be substantially as follows: a. Call to order with determination of a quorum; b. Introduction of the City Council Members who are present; C. Introduction of the Hearing Officer; d. Recognition of the Applicant and identification of the Petition; e. Recognition of fees, notices, and date of filing of the Petition; f. Recognition of the City staff and attorney present; g. Recognition of all other Participants who have filed the Notice of Participation; h. Recognition of all reports, exhibits, maps or documents of record as filed pursuant to subsection (e), above; i. Applicant, Participants represented by Counsel, and Special Counsel for the City may then make an opening statement. j . The City Council shall then hear testimony from the Applicant and/or any witnesses the Applicant may wish to call. Upon the close of the Applicant's testimony, Participants represented by counsel may present sworn testimony, including any witnesses and evidence they wish to present. Upon the close of all such testimony, the City may present sworn testimony, including witnesses and evidence it may wish to present. The Hearing Officer, in the exercise of his or her discretion, may then permit rebuttal testimony and sur- rebuttal testimony. k. All witnesses shall testify under oath and be subject to reasonable questioning as follows: direct examination by counsel; cross-examination by counsel for other Participants or the City, the City Council and/or the Hearing -14- Officer (including the use of written questions submitted by members of the Public to the Hearing Officer); redirect examination; re-cross examination. 1. Following the testimony outlined in subparagraph 0) above, any Participant not represented by counsel that wishes to provide sworn testimony subject to cross-examination by others may proceed. M. Following the testimony, if any, outlined in subparagraph (1) above, any Participant that has not otherwise presented testimony may provide unworn testimony or comment, subject to the Hearing Officer's judgment and consistent with fundamental fairness. n. Closing statements, if any, by counsel for the Applicant, Participants represented by counsel, and counsel for the City. o. Rebuttal statement, if any, by the applicant, subject to limitations as imposed by the Hearing Officer. P. Hearing declared closed. 3 . Public comment: written and oral: a. Any person has the right to file written comment concerning the appropriateness of the proposed facility, or its compliance with the requirements of Section 39.2 of the Act, with the City Clerk, at any time after the filing of a Petition and within the time limitation provided in subsection (d), below. b. The City Clerk, on behalf of the City Council, shall receive written comment from any person concerning the appropriateness of the proposed site. Upon receipt of any such written comment the City Clerk shall date stamp same, shall serve copies of the same on counsel for the Applicant and counsel for the City; and shall file written comment and the postmarked envelope in which comment is received. C. Copies of such written comments shall be made available for public inspection in the offices of the City Clerk, and members of the public shall be allowed to obtain a copy of any written comment upon payment of actual cost of reproduction. d. Any written comment received by the City Clerk or postmarked not later than thirty (30) days after the date of the last public hearing shall be made part of the record at the public hearing as hereinafter described and the City Council shall consider any such timely written comments in making its final determination concerning said Petition. In the event that the thirtieth day falls on a Sunday or a Federal holiday, the next day on which mail is delivered shall be considered the thirtieth day for purposes of this subsection. -15- e. Any person has the right to provide oral, unswom comment during the course of the public hearing, upon reasonable notice to the Hearing Officer that the person desires to provide such comment. This type of comment, since it is not provided under oath, is not subject to cross-examination. 4. Ex-Parte Communication Prohibited: In recognition of the quasi-judicial role of the Mayor and each Member of the City Council, and the City Attorney, ex-parte communications with persons other than the Mayor, Council Members or the City Attorney concerning the Application are prohibited between the Date of Filing and the date of the final decision of the City Council (or the 180`h day after the Date of Filing). Although the Mayor and Members of the City Council are encouraged not to attend meetings at which the Mayor or Member knows the Application may be discussed, it is inevitable that due to their regular legislative duties over the course of time during the consideration of the Application they may be in attendance at such meetings (e.g. attendance at a municipality's council of governments meeting, attendance at a local chamber of commerce meeting). As such, the Mayor or Member is required to obtain and file a transcript of any meeting, where such meeting has been transcribed or recorded, or otherwise disclose such meeting in the public records (such as disclosing it on the record during the transcribed public hearings or during the written comment period provided for in this Article). The transcript shall not, however, be utilized by the City in reaching its decision. Section 7. RECORDS KEPT A. The City Clerk shall be responsible for keeping the records of said hearing. The records shall consist of the following: 1 . The Application and all amendments thereto; 2. Proofs of the required notices; 3. Notices of Participation; 4. Written comments filed by the public (either received by the City Clerk's office or postmarked between the Date of Filing and 30 after the close of the hearing); S. All reports, studies, exhibits, documents or statements received in evidence at the public hearing; 6. The transcript of the public hearing; 7. Any motions filed during the public hearing; -16- 8. All transcripts, when available, or disclosures of meetings, other than the public hearings held pursuant to this Article, at which the Mayor or a City Council Member was in attendance and the Application was discussed. 9. The Hearing Officer's proposed findings of fact and recommendations to the City Council (including any conditions of approval). 10. The resolution containing the final decision of the City Council. B. The City Clerk shall be responsible for certifying all copies of the record of the public hearing. Section 8. SITING APPROVAL DECISION A. On or before the 180'b day following the Date of Filing, or on or before the 270a' day following the Date of Filing if the Applicant filed an amendment to the Application in compliance with the timing requirements of the Act, the City Council shall, by written resolution, upon the vote of a majority of its members, decide whether to: 1 . Grant the Petition, without any conditions; or 2. Grant the Petition, but with conditions on such approval, provided such conditions are reasonable and necessary to accomplish the purposes of Section 39.2 of the Act and are not inconsistent with the regulations promulgated by the Illinois Pollution Control Board; or 3 . Deny the Petition. B. In making its recommendation on the request for siting approval, the City Council shall base its decision on the following criteria: 1 . The facility is necessary to accommodate the waste needs of the area it is intended to serve; 2. The facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected; 3. The facility is located so as to minimize incompatibility with the character of the surrounding area and to minimize the effect on the value of the surrounding property; 4. The facility is located outside the boundary of the 100-year flood plain; 5. The plan of operations for the facility is designed to minimize the danger to the surrounding area from fire, spills or other operational accidents; -17- 6. The traffic patterns to or from the facility are so designed as to minimize the impact on existing traffic flows; 7. If the facility will be treating, storing or disposing of hazardous waste, an emergency response plan exists for the facility which includes notification, containment and evacuation procedures to be used in case of an accidental release; 8. If the facility will be located within a regulated recharge area, any and all applicable requirements specified by the Illinois Pollution Control Board for such area have been met; and 9. If a solid waste management plan was previously adopted for Kendall County prior to the filing of the petition, the facility is consistent with that plan. C. The City Council shall consider as evidence the previous operating experience and past record of violations and penalties of the Applicant or proposed Operator (and any subsidiary, parent corporation, subsidiary of the parent corporation, or manager or member of the Company) in the field of solid waste management when considering criteria 2 and 5 of the Act and subsection B above. D. No determination by the City Council of a siting approval request may be reconsidered. E. A local siting approval granted under this Chapter shall expire at the end of 2 calendar years from the date upon which it was granted, unless the local siting approval granted under this Chapter is for a sanitary landfill operation, in which case the approval shall expire at the end of three (3) calendar years from the date upon which it was granted, and unless within that period the applicant has made application to the Illinois Environmental Protection Agency for a permit to develop the site. In the event that the local siting decision has been appealed, such expiration period shall be deemed to begin on the date upon which the appeal process is concluded. F. Siting approval obtained pursuant to this Chapter is transferable and may be transferred to a subsequent owner or operator with the written approval of the City Council. In the event that siting approval has been transferred to a subsequent owner or operator, that subsequent owner or operator assumes and takes subject to any and all conditions imposed upon the prior owner or operator by the City Council pursuant to this Section as well as any modifications to these conditions as documented in connection with the City Council's written approval of the transfer of the siting approval. Further, in the event that siting approval obtained pursuant to this Chapter has been transferred to a subsequent owner or operator, that subsequent owner or operator assumes all rights and obligations and takes the facility subject to any and all terms and conditions of any existing host agreement between the prior owner or operator and the City. Section 9. ADMINISTRATION OF FEES AND COSTS -18- A. Upon termination of any proceedings under this Chapter, a final accounting and summary of all authorized expenditures and reimbursements shall be presented to the City Council. B. Any portion of an application fee not required for reimbursement to the City for costs and expenses incurred by the City under this Chapter shall be returned to the applicant. Should there be costs and/or expenses in excess of the amount paid by the applicant in the application fee, the applicant shall bear any and all additional costs. C. In order to properly administer the application fee received with respect to this Chapter, the Finance Director is hereby authorized and directed to receive and hold such application fees for administration subject to the review and approval of the City Council. D. In order to expedite payment of all bills incurred as a result of administering this Chapter, all bills and questions concerning billing should be directed to the Finance Director. -19- STATE OF ILLINOIS ) ss COUNTY OF KENDALL ) ORDINANCE NO. 2007- AN ORDINANCE REZONING CERTAIN PROPERTY (Corn Holdings,LLC) WHEREAS, Corn Holdings,LLC is the owner of record of property described on Exhibit"A"attached hereto and incorporated herein(the Property), and WHEREAS Corn Holdings, LLC has made application by petition for the rezoning of the Property from M-1 Limited Manufacturing District to B-3 Service Business District, and WHEREAS,the Yorkville Plan Commission has recommended the rezoning of the property as B-3 Service Business District, and NOW, THEREFORE BE IT ORDAINED BY THE MAYOR AND THE CITY COUNCIL OF THE UNITED CITY OF YORKVILLE,KENDALL COUNTY, ILLINOIS UPON MOTION DULY MADE, SECONDED AND APPROVED BY THE MAJORITY OF THOSE MEMBERS OF THE CITY COUNCIL VOTING,THAT: 1. The City Council approves the recommendation of the Plan Commission and hereby rezones the property as B-3 Service Business District and M-1 Limited Manufacturing District. This is a Flex Zoning Area. This zoning is approved subject to staff comments and legal review and all appropriate City Officials are hereby authorized to execute same. 2. This Ordinance shall be in full force and effect from and after its passage and approval as provided by law. JAMES BOCK JOSEPH BESCO VALERIE BURD PAUL JAMES GARY GOLINSKI MARTY MUNNS ROSE SPEARS JASON LESLIE Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this day of A.D. 2007. MAYOR Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this day of A.D. 2007. ATTEST: CITY CLERK Prepared by: John Justin Wyeth City Attorney United City of Yorkville 800 Game Farm Road Yorkville, IL 60560 `QED CI Reviewed By: Legal ❑ tY C,qun esr � leas Finance ❑ 4FF 1 Engineer ❑ 0 Agenda Item Tracking Number �� a � y City Administrator El nC ate, � p may �O Consultant ❑ 1 City Council Agenda Item Summary Memo Title: Fountain View Annexation, Re-Zoning and Economic Incentive Agreement Request City Council /COW/Committee Agenda Date: April 18, 2007 Synopsis: Council Action Previously Taken: Date of Action: Action Taken: Item Number: Type of Vote Required: Council Action Requested: Submitted by: Travis Miller Community Development Name Department Agenda Item Notes: See attached staff report coo cat o United City of Yorkville Memo oB� " 800 Game Farm Road EST. _ 1836 Yorkville, Illinois 60560 y Telephone: 630-553-8545 Fax: 630-553-3436 LE Date:\\Y Date: April 11,2007 To: EDC/COW From: Travis Miller, Community Development Director Cc: Lisa Pickering,Deputy Clerk Subject: PC2007-03 Fountain View Annexation,Zoning and Economic Incentive Agreement Request General Comments: - The Plan Commission reviewed this request and made a recommendation to approve March 14,2007. - The property is contiguous to the City corporate boundary. Comprehensive Plan Recommendations: - The Comprehensive Plan Land Use Plan for the property recommends Industrial Use for this property. Annexation Agreement: - The Annexation Agreement is consistent with all current City policy for commercial development. - The agreement limits the allowable uses with the B-3 Zoning district. These limitations will be included as an exhibit to the agreement and are consistent with other annexation agreements in the City. - The agreement includes provisions for approving an economic incentive agreement with the Owner/Developer. This agreement is also attached to this report and presented for City Council consideration simultaneous with the annexation agreement. Staff Recommendation: Approve the Annexation Agreement as submitted Zoning: - The request for B-3 zoning is less intensive than the Comprehensive Plan recommendation of Industrial and although inconsistent with the Comprehensive 1 Plan, an appropriate zoning classification for this property due to the properties exposure to Route 47 and relatively small acreage size. Findings Necessary for a Zoning Amendment shall be based on the following: a. Existing uses of property within the general area of the property in question. b. The zoning classification of property within the general area of the property in question. c. The suitability of the property in question to the uses permitted under the existing zoning classification. d. The trend of development, if any, in the general area of the property in question, including changes, if any, which have taken place since the day the property in question was placed in its present zoning classification. e. The impact that such reclassification and/or annexation will have upon traffic and traffic conditions on said routes; the effect, if any, such reclassification and/or annexation would have upon existing accesses to said routes; and the impact of additional accesses as requested by the petitioner upon traffic and traffic conditions and flow on said routes. (Ord. 1976-43, 11 -4-76) Staff Recommendation: Approve the rezoning to B-3 as limited by the Annexation Agreement Economic Incentive Agreement: The term of the agreement is 20 years and commences on the date of the agreement. This term is consistent with the Economic Incentive Policy and with other approved agreements. The rebate is being requested to cover costs associated with: - improvements to Route 47 and Foutainview Drive as is necessitated by IDOT and/or the City; and for - the fair market value of property being dedicated for right-of-way. Staff Recommendations: • Staff recommends adding language to items 1) and 2) (page 4) to clarify that these rebates are intended only for costs not included in any other agreed to method of reimbursement. 2 • Staff recommends removing the word "minimum" from the first paragraph under `Development Incentive Reimbursement' (bottom of page 3). The City Council has consistently allowed up to 50% in rebates using this method, therefore 50% is appropriate in this agreement. • Staff recommends adding a provision to the agreement requiring the Owner and Developer to submit a total for the hard costs (`brick and mortar' costs excluding design, legal, engineering, etc.) associated with this project. The rebate amount should not exceed 20% of these total project hard costs. The 20% amount is listed as an Incentive Parameter in the current Economic Incentive Policy. • Staff recommends removing item 3) (page 4) from the agreement. This states the Developer shall receive a rebate of/z of the City Utility taxes collected for a period of 5 years. The Economic Incentive Policy lists the Utility Tax as a potential source for the City to use to rebate funds, however, the source identified for the rebates requested in this agreement is the municipal sales tax. Staff finds no compelling reason to recommend a rebate from the Utility tax in addition to the sales tax rebates contemplated in the agreement. 3 L T\C- 11 4 ci STATE OF ILLINOIS ) ss COUNTY OF KENDALL ) ORDINANCE NO. 2007- AN ORDINANCE AUTHORIZING THE EXECUTION OF AN ANNEXATION AGREEMENT OF (Fountain View) 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 by the City Council; and 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 obligations as required hereunder; and WHEREAS, the statutory procedures provided in 65 ILLS 11-15.1.1, as amended, for the execution of said Annexation Agreement has been fully complied with; and Page 1 of 3 WHEREAS, the property is 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 JOSEPH BESCO VALERIE BURD PAUL JAMES GARY GOLINSKI MARTY MUNNS ROSE SPEARS JASON LESLIE Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this day of A.D. 2007. MAYOR Page 2 of 3 Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this day of A.D. 2007. ATTEST: CITY CLERK Prepared by: John Justin Wyeth City Attorney United City of Yorkville 800 Game Farm Road Yorkville, IL 60560 Page 3 of 3 Fed- 1 red STATE OF ILLINOIS ) February 27,2007 Revised March 1,2007 4/20,07) COUNTY OF KENDALL ) ANNEXATION AGREEMENT TO THE UNITED CITY OF YORKVILLE DTD INVSETMENTS,L.L.C.PROPERTY (FOUNTAINVIEW) THIS AGREEMENT is made and entered into this_day of ,2007 by and between THE UNITED CITY OF YORKVILLE,Yorkville,Illinois,a municipal corporation,located in Kendall County,Illinois(hereinafter referred to as"City"), JERALD L. HANSON,(hereinafter referred to as OWNER),and DTD INVESTMENTS,L.L.C.of the County of Will,State of Illinois(hereinafter referred to as"DEVELOPER"). WITNESSETH WHEREAS,OWNER is the owner of real property which is the subject matter of said Agreement comprising approximately 4.214 acres,more or less,and is more particularly described in the attached Exhibit"A",which is incorporated herein by reference;and WHEREAS,the subject real property is located contiguous to the corporate boundaries of the CITY;and is not located within the corporate boundaries of any other municipality;nor is any portion thereof classified as flood plain;and WHEREAS,OWNER/DEVELOPER desire to annex the said real property described into the City,its Plan Commission has considered the Petition to Annex,and the City Council has 1 heretofore both requested and approved the proposed land use and the zoning of the same at the request of OWNER/DEVELOPER and the City; and WHEREAS, OWNER/DEVELOPER have presented, and the City has considered, the tract, of real property herein described in the attached Exhibit "A" as B-2 Service Business District in order to make said real property a desirable addition to the City; and WHEREAS, all parties to this Agreement desire to set forth certain terms and conditions upon which the land heretofore described will be annexed to the City in an orderly manner, and WHEREAS, OWNER/DEVELOPER and their representatives have discussed the proposed annexation and have held 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. WHEREAS, in accordance with the powers granted to the CITY by the provisions of 65 ILCS 5/11-15. 1-1 through 51 . 1-5, inclusive, relating to Annexation Agreements, the parties hereto wish to enter into a binding agreement with respect to the future annexation and zoning of the subject Property and to provide for various other matters related directly or indirectly to the annexation of the Property in the future, as authorized by, the provisions of said statutes; and WHEREAS, pursuant to due notice and publication in the manner provided by law, the appropriate zoning authorities of the CH Y have and such public hearing and have taken all further action required by the provisions of 65 TLCS 5/11-15.1.3 and the ordinances of the CITY relating to the procedure for the authorization, approval and execution of this Annexation agreement by the CITY. 2 NOW THEREFORE, for and in consideration of the mutual promises and covenants herein contained, the parties agree, under the terms and authority provided in 65 ILCS 5/11- 15. 1- 1 through 65 ILCS 5111-15. 1-5, as amended, as follows: 1. A. ANNEXATION AND ZONING. The City shall adopt an ordinance annexing to the City all of the real property described herein in the attached Exhibit "A'; and the City in said ordinance shall zone the real property designated in the attached Exhibit "A" subject to the further terms of this Agreement as B-3 Service Business District. Said zoning shall allow the uses, size, density, area, coverage, and maximum building heights as set forth on for the B-3 Service Business District. Said real property shall be used and developed in accordance with 65 ILCS 5/11-15.1-1 through 65 ILCS 5/11-15. 1-5, and in accordance with the City Subdivision Control and Zoning Ordinances and specifically subject to the following conditions: (i) That the subject property described in the attached Exhibit "A" shall be annexed to the United City of Yorkville by separate Ordinance, in compliance with Illinois Compiled Statutes and shall be zoned B-3 Service Business District Zoning. (ii) That the subject property shall be developed in substantial conformance with the attached Site Plan, which is incorporated herein and made a part hereof by reference as Exhibit `B", as prepared and dated , 2007. (iii) (a) OWNER/DEVELOPER shall be responsible for providing landscaping, in conformance with CITY standards along all perimeter boundaries of the subject property including preserving as much of the tree line along the East boundary of —3— the property as is possible. No permanent trees covering utilities shall be planted on the right-of-way adjacent to the subject real property. (b) OWNER/DEVELOPER shall establish the landscape buffer along Illinois State Route 47 behind the proposed North Right-of-Way expansion line of the Illinois Department of Transportation. (iv) That OWNER/DEVELOPER shall provide the number of parking places as set out on the attached Exhibit `B" attached hereto and incorporated herein by reference. (v) OWNER/DEVELOPER agree that OWNER/DEVELOPER shall be permitted to conduct the uses on the subject property that are excerpted from the United City of Yorkville Zoning Classification for O-Office District, B-1 Limited Business District, B-3 Service Business District, and any similar permitted uses within those Districts that the CITY may create in the future; although OWNER/DEVLOPER agree they shall not be permitted to conduct on site any permitted uses which have been omitted from the current United City of Yorkville Zoning Ordinances as are in effect as of the date of the approval of this Agreement by the United City of Yorkville. The list of permitted uses is as set out in Exhibit "C" attached hereto and incorporated herein by reference. (vi) OWNER/DEVELOPER shall establish a building setback line for principal structures; from the roadway being constructed on an Easement granted by the County of Kendall Highway Department. OWNER/DEVELOPER may install parking, signage, and landscaping in said setback. —4— (vii) That in all other respects, the subject development shall be in conformance with the terms and conditions of the Yorkville Zoning Ordinance, Subdivision Control Ordinance, and all other applicable Ordinances. B. The OWNER/DEVELOPER, and successors, heirs, and assigns hereby agree that prior to issuance of a building permit on the subject parcel, a site development plan shall be submitted and approved by the City Council of the United City of Yorkville, as well as OWNER/DEVELOPER complying with the CITY Preliminary and Final Platting process. 2. CITY'S AGREEMENTS. A. The City agrees that due to the nature of the non-residential use and zoning classification of said parcel, OWNER/DEVELOPER has no obligation to pay School Transition Fees or Land-Cash Fees. B. OWNER/DEVELOPER shall be required by THE UNITED CITY OF YORKVILLE to hook-on to the city water or Sanitary Sewer System at the time of improving the subject property and upon CITY approval of this Annexation Agreement, and shall be responsible for main extensions to the subject property if said mains do not touch the subject property. C. Upon annexation, the Owner will receive police protection, 911 service, Water, Sanitary Sewer, and all services as provided by City to its property owners and residents. D. The City will require the Owner to annex to Yorkville Bristol Sanitary District at the time of applying for a building permit seeking to hook up to the Sanitary District and the City Sanitary Sewer System. -5- E. OWNER/DEVELOPER is required to install a Collector Road adjacent to Route 47 and a stop light that has previously been installed for access to the subject property. OWNER/DEVELOPER shall be permitted to seek a Recapture Agreement for a division of the benefit of said stop light cost contributed by OWNER/DEVELOPER and the Collector Street cost contributed from any adjoining or contiguous property owner that ultimately connects to said Collector Street. In connection therewith, upon the actual cost being determined the United City of Yorkville shall act as follows: 1) Recapture Agreement or Road and Signalization Improvement Agreement and Ordinance apportioning the cost and payment responsibilities of Developer and the adjacent properties to the North, East, or South for the cost of said improvements; and 2) Permit an Economic Incentive Agreement to be requested by Developer as to any portion of the off-site, signalization on-site or collector costs, stormwater detention costs, Route 47 tapper or right-of-way improvements, not so recovered under paragraph (A) above pursuant to such an Agreement out of 1/2 of any Sales Tax Receipts from users on the subject site inconformity with the United City of Yorkville Commercial Incentive Policy. 3. RIGHTS AND OBLIGATIONS OF SUCCESSORS AND ASSIGNS. It is specifically understood and agreed that Owner and its successors and assigns shall have the right to sell transfer, mortgage and assign all or any part of the subject property and the improvements thereon to other persons, trusts, partnerships, firms, or corporations, for investment, building, financing, developing and all such purposes, and that said persons, trusts, partnerships, firms, or corporations shall be entitled to the same rights and privileges and shall have the same obligations as Owner under this Agreement and upon such transfer, the obligations pertaining to —6— the property transferred or sold shall be the sole obligations of the transferee, except for any performance bonds or guaranties posted by Owner on any subdivided or unimproved property for which an acceptable substitute performance bond or letter of credit has not been submitted to the City. 4. TIME OF THE ESSENCE. 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, including the calling of special meetings, 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. 5. COVENANTS AND AGREEMENTS. The covenants and agreements contained in this Agreement shall be deemed to be covenants running with the land during the term of this Agreement shall inure to the benefit of and be binding upon the heirs, successors and assigns of the parties hereto, including the city, its corporate authorities and their successors in office, and is enforceable by order of the court pursuant to its provisions and the applicable statutes of the State of Illinois. 6. BINDING EFFECT AND TERM. This Annexation Agreement shall be binding upon and inure to the benefit of the parties hereto, and their successors and owners of record of land which is the subject of this Agreement, assignee, lessees, and upon any successor municipal authorities of said city, so long as development is commenced within a period of twenty years from the date of execution of this Agreement by the City. No Covenant or Agreement shall become binding on OWNER until DEVELOPER hereunder has closed the purchase of the subject property by DEVELOPER from OWNER. —7— 7. NOTICE. Any notices required hereunder shall be in writing and shall be served upon any other party in writing and shall be delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, addressed as follows: If to the City: City Clerk 800 Game Farm Road Yorkville, IL 60560 With a copy to: John Wyeth 800 Game Farm Road Yorkville, IL 60560 To OWNER: Dean Tomich Deleted: Jaatd Hanson¶ --- DTD hrvestntents. 1-1.r ¶ With a copy to: 815 N. Laikm Ave., Ste. 202 - -- - � Delete . q Joliet. IL 60435 . . Del d_— --� To DEVELOPER: Dean Tomtch � I 1 DTD Investments LLC - 815 N. Larkin Ave., Ste. 202 Joliet, IL 60435 With a copy to: Law Offices of Daniel J. Kramer 1107A S. Bridge St. Yorkville, IL 60560 or to such other addresses as any party way from time to time designate in a written notice to the other parties. 8. ENFORCEABILITY. This Agreement shall be enforceable in any court of competent jurisdiction by any of the parties hereto by an appropriate action of law or in equity to secure the performance of the covenants herein contained. In the event any portion of said agreement becomes unenforceable due to any change in Illinois Compiled Statutes or court decisions, said unenforceable portion of this —8— Agreement shall be excised here from and the remaining portions thereof shall remain in full force and effect. 9. ENACTMENT OF ORDINANCES. The City agrees to adopt any ordinances which are required to give legal effect to the matters contained in this Agreement or to correct any technical defects which may arise after the execution of this Agreement. IN WITNESS WHEREOF, the undersigned have hereunto set their hands and seals this _ day of , 2007. UNITED CITY OF YORKVILLE By: Arthur F. Prochaska, Jr., Mayor Attest: City Clerk —9— OWNER: DTD INVESTMENTS. LLC By: Attest: —10— DEVELOPER: DTD INVESTMENTS, LLC By: Attest: _ Deleted: j Prepared by and Return to: Law Offices of Daniel J. Kramer 1107A S. Bridge Street Yorkville, Illinois 60560 630.553.9500 -11- Clean �e s), Ov) Revised March 1, 2007 (4/20/07) STATE OF ILLINOIS ) COUNTY OF KENDALL ) ANNEXATION AGREEMENT TO THE UNITED CITY OF YORKVILLE DTD INVSETMENTS,L.L.C. PROPERTY (FOUNTAINVIEW) THIS AGREEMENT is made and entered into this day of , 2007 by and between THE UNITED CITY OF YORKVILLE, Yorkville, Illinois, a municipal corporation, located in Kendall County, Illinois (hereinafter referred to as "City"), JERALD L. HANSON, (hereinafter referred to as OWNER), and DTD INVESTMENTS, L.L.C. of the County of Will, State of Illinois (hereinafter referred to as "DEVELOPER"). WITNESSETH WHEREAS, OWNER is the owner of real property which is the subject matter of said Agreement comprising approximately 4.214 acres, more or less, and is more particularly described in the attached Exhibit"A", which is incorporated herein by reference; and WHEREAS, the subject real property is located contiguous to the corporate boundaries of the CITY; and is not located within the corporate boundaries of any other municipality; nor is any portion thereof classified as flood plain; and WHEREAS, OWNER/DEVELOPER desire to annex the said real property described into the City, its Plan Commission has considered the Petition to Annex, and the City Council has 1 heretofore both requested and approved the proposed land use and the zoning of the same at the request of OWNER/DEVELOPER and the City; and WHEREAS, OWNER/DEVELOPER have presented, and the City has considered, the tract, of real property herein described in the attached Exhibit "A" as B-2 Service Business District in order to make said real property a desirable addition to the City; and WHEREAS, all parties to this Agreement desire to set forth certain terms and conditions upon which the land heretofore described will be annexed to the City in an orderly manner, and WHEREAS, OWNER/DEVELOPER and their representatives have discussed the proposed annexation and have held 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. WHEREAS, in accordance with the powers granted to the CITY by the provisions of 65 ILCS 5/11 - 15. 1 -1 through 51 . 1 -5, inclusive, relating to Annexation Agreements, the parties hereto wish to enter into a binding agreement with respect to the future annexation and zoning of the subject Property and to provide for various other matters related directly or indirectly to the annexation of the Property in the future, as authorized by, the provisions of said statutes; and WHEREAS, pursuant to due notice and publication in the manner provided by law, the appropriate zoning authorities of the CITY have and such public hearing and have taken all further action required by the provisions of 65 ILCS 5/11 -15. 1 .3 and the ordinances of the CITY relating to the procedure for the authorization, approval and execution of this Annexation agreement by the CITY. 2 NOW THEREFORE, for and in consideration of the mutual promises and covenants herein contained, the parties agree, under the terms and authority provided in 65 ILCS 5/11 - 15. 1 - 1 through 65 ILCS 5111 -15. 1 -5, as amended, as follows: 1 . A. ANNEXATION AND ZONING. The City shall adopt an ordinance annexing to the City all of the real property described herein in the attached Exhibit "A"; and the City in said ordinance shall zone the real property designated in the attached Exhibit "A" subject to the further terms of this Agreement as B-3 Service Business District. Said zoning shall allow the uses, size, density, area, coverage, and maximum building heights as set forth on for the B-3 Service Business District. Said real property shall be used and developed in accordance with 65 ILCS 5/11 -15. 1 - 1 through 65 ILCS 5111 - 15. 1 -5, and in accordance with the City Subdivision Control and Zoning Ordinances and specifically subject to the following conditions: (i) That the subject property described in the attached Exhibit "A" shall be annexed to the United City of Yorkville by separate Ordinance, in compliance with Illinois Compiled Statutes and shall be zoned B-3 Service Business District Zoning. (ii) That the subject property shall be developed in substantial conformance with the attached Site Plan, which is incorporated herein and made a part hereof by reference as Exhibit "B", as prepared and dated 2007. (iii) (a) OWNER/DEVELOPER shall be responsible for providing landscaping, in conformance with CITY standards along all perimeter boundaries of the subject property including preserving as much of the tree line along the East boundary of —3— the property as is possible. No permanent trees covering utilities shall be planted on the right-of-way adjacent to the subject real property. (b) OWNER/DEVELOPER shall establish the landscape buffer along Illinois State Route 47 behind the proposed North Right-of-Way expansion line of the Illinois Department of Transportation. (iv) That OWNER/DEVELOPER shall provide the number of parking places as set out on the attached Exhibit `B" attached hereto and incorporated herein by reference. (v) OWNER/DEVELOPER agree that OWNER/DEVELOPER shall be permitted to conduct the uses on the subject property that are excerpted from the United City of Yorkville Zoning Classification for O-Office District, B- 1 Limited Business District, B-3 Service Business District, and any similar permitted uses within those Districts that the CITY may create in the future; although OWNER/DEVLOPER agree they shall not be permitted to conduct on site any permitted uses which have been omitted from the current United City of Yorkville Zoning Ordinances as are in effect as of the date of the approval of this Agreement by the United City of Yorkville. The list of permitted uses is as set out in Exhibit "C" attached hereto and incorporated herein by reference. (vi) OWNER/DEVELOPER shall establish a building setback line for principal structures; from the roadway being constructed on an Easement granted by the County of Kendall Highway Department. OWNER/DEVELOPER may install parking, signage, and landscaping in said setback. -4- (vii) That in all other respects, the subject development shall be in conformance with the terms and conditions of the Yorkville Zoning Ordinance, Subdivision Control Ordinance, and all other applicable Ordinances. B. The OWNER/DEVELOPER, and successors, heirs, and assigns hereby agree that prior to issuance of a building permit on the subject parcel, a site development plan shall be submitted and approved by the City Council of the United City of Yorkville, as well as OWNER/DEVELOPER complying with the CITY Preliminary and Final Platting process. 2. CITY'S AGREEMENTS. A. The City agrees that due to the nature of the non-residential use and zoning classification of said parcel, OWNER/DEVELOPER has no obligation to pay School Transition Fees or Land-Cash Fees. B. OWNER/DEVELOPER shall be required by THE UNITED CITY OF YORKVILLE to hook-on to the city water or Sanitary Sewer System at the time of improving the subject property and upon CITY approval of this Annexation Agreement, and shall be responsible for main extensions to the subject property if said mains do not touch the subject property. C. Upon annexation, the Owner will receive police protection, 911 service, Water, Sanitary Sewer, and all services as provided by City to its property owners and residents. D. The City will require the Owner to annex to Yorkville Bristol Sanitary District at the time of applying for a building permit seeking to hook up to the Sanitary District and the City Sanitary Sewer System. —5— E. OWNER/DEVELOPER is required to install a Collector Road adjacent to Route 47 and a stop light that has previously been installed for access to the subject property. OWNER/DEVELOPER shall be permitted to seek a Recapture Agreement for a division of the benefit of said stop light cost contributed by OWNER/DEVELOPER and the Collector Street cost contributed from any adjoining or contiguous property owner that ultimately connects to said Collector Street. In connection therewith, upon the actual cost being determined the United City of Yorkville shall act as follows: 1) Recapture Agreement or Road and Signalization Improvement Agreement and Ordinance apportioning the cost and payment responsibilities of Developer and the adjacent properties to the North, East, or South for the cost of said improvements; and 2) Permit an Economic Incentive Agreement to be requested by Developer as to any portion of the off-site, signalization on-site or collector costs, stormwater detention costs, Route 47 tapper or right-of-way improvements, not so recovered under paragraph (A) above pursuant to such an Agreement out of 1/z of any Sales Tax Receipts from users on the subject site inconformity with the United City of Yorkville Commercial Incentive Policy. 3. RIGHTS AND OBLIGATIONS OF SUCCESSORS AND ASSIGNS. It is specifically understood and agreed that Owner and its successors and assigns shall have the right to sell transfer, mortgage and assign all or any part of the subject property and the improvements thereon to other persons, trusts, partnerships, firms, or corporations, for investment, building, financing, developing and all such purposes, and that said persons, trusts, partnerships, firms;"or corporations shall be entitled to the same rights and privileges and shall have the same obligations as Owner under this Agreement and upon such transfer, the obligations pertaining to —6— the property transferred or sold shall be the sole obligations of the transferee, except for any performance bonds or guaranties posted by Owner on any subdivided or unimproved property for which an acceptable substitute performance bond or letter of credit has not been submitted to the City. 4. TIME OF THE ESSENCE. 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, including the calling of special meetings, 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. 5. COVENANTS AND AGREEMENTS. The covenants and agreements contained in this Agreement shall be deemed to be covenants running with the land during the term of this Agreement shall inure to the benefit of and be binding upon the heirs, successors and assigns of the parties hereto, including the city, its corporate authorities and their successors in office, and is enforceable by order of the court pursuant to its provisions and the applicable statutes of the State of Illinois. 6. BINDING EFFECT AND TERM. This Annexation Agreement shall be binding upon and inure to the benefit of the parties hereto, and their successors and owners of record of land which is the subject of this Agreement, assignee, lessees, and upon any successor municipal authorities of said city, so long as development is commenced within a period of twenty years from the date of execution of this Agreement by the City. No Covenant or Agreement shall become binding on OWNER until DEVELOPER hereunder has closed the purchase of the subject property by DEVELOPER from OWNER. -7- 7. NOTICE. Any notices required hereunder shall be in writing and shall be served upon any other party in writing and shall be delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, addressed as follows: If to the City: City Clerk 800 Game Farm Road Yorkville, IL 60560 With a copy to: John Wyeth 800 Game Farm Road Yorkville, IL 60560 To OWNER: Dean Tomich DTD Investments, LLC 815 N. Larkin Ave., Ste. 202 Joliet, IL 60435 To DEVELOPER: Dean Tomich DTD Investments, LLC 815 N. Larkin Ave., Ste. 202 Joliet, IL 60435 With a copy to: Law Offices of Daniel J. Kramer I I 07 S. Bridge St. Yorkville, IL 60560 or to such other addresses as any parry way from time to time designate in a written notice to the other parties. 8. ENFORCEABILITY. This Agreement shall be enforceable in any court of competent jurisdiction by any of the parties hereto by an appropriate action of law or in equity to secure the performance of the covenants herein contained. In the event any portion of said agreement becomes unenforceable due to any change in Illinois Compiled Statutes or court decisions, said unenforceable portion of this -8- Agreement shall be excised here from and the remaining portions thereof shall remain in full force and effect. 9. ENACTMENT OF ORDINANCES. The City agrees to adopt any ordinances which are required to give legal effect to the matters contained in this Agreement or to correct any technical defects which may arise after the execution of this Agreement. IN WITNESS WHEREOF, the undersigned have hereunto set their hands and seals this _ day of , 2007. UNITED CITY OF YORKVILLE By: Arthur F. Prochaska, Jr., Mayor Attest: City Clerk —9— OWNER: DTD INVESTMENTS, LLC By: Attest: —10— DEVELOPER: DTD INVESTMENTS, LLC By: Attest: Prepared by and Return to: Law Offices of Daniel J. Kramer 1107A S. Bridge Street Yorkville, Illinois 60560 630.553 .9500 —11— STATE OF ILLINOIS ) ) ss COUNTY OF KENDALL ) ORDINANCE NO.2007- AN ORDINANCE ANNEXING CERTAIN TERRITORY TO THE UNITED CITY OF YORKVILLE, KENDALL COUNTY,ILLINOIS (Fountain View) WHEREAS, a written petition, signed by the legal owner of record of all land within the territory hereinafter described,has been filed with the City Clerk of the United City of Yorkville, Kendall County, Illinois, requesting that said territory be annexed to the United City of Yorkville; and, WHEREAS,there are no electors residing within the said territory, and, WHEREAS,the said territory is not within the corporate limits of any municipality but is contiguous to the United City of Yorkville; and, WHEREAS, legal notices regarding the intention of the United City of Yorkville to annex said territory have been sent to all public bodies required to receive such notices by state statute; and, WHEREAS, copies of such notices required to be recorded, if any,have been recorded in the Office of the Recorder Kendall County, Illinois; and, WHEREAS, all petitions, documents, and other necessary legal requirements are in full compliance with the terms of the annexation agreement and with the statutes of the State of Illinois, specifically Section 7-1 -8 of the Illinois Municipal Code; and, WHEREAS, it is in the best interests of the United City of Yorkville that the territory be annexed thereto, NOW, THEREFORE, BE IT ORDAINED by the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois, as follows: SECTION 1 : The following described territory, That territory described in the Legal Description which is attached hereto and made apart of this Ordinance. that territory also being indicated on an accurate map of the annexed territory (which is attached hereto and made a part of this Ordinance), is hereby annexed to the United City of Yorkville, Kendall County, Illinois. SECTION 2: The City Clerk is hereby directed to record with the Kendall County Recorder and to file with the Kendall County Clerk a certified copy of the Ordinance, together with an accurate map of the territory annexed attached to this Ordinance. SECTION 3 : This Ordinance shall be in full force and effect from and after its passage and approval as provided by law. JAMES BOCK JOSEPH BESCO VALERIE BURD PAUL JAMES GARY GOLINSKI MARTY MUNNS ROSE SPEARS JASON LESLIE Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this day of A.D. 2007. MAYOR Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this day of A.D. 2007. ATTEST: CITY CLERK Prepared by: Jobn Justin Wyeth City Attorney United City of Yorkville 800 Game Farm Road Yorkville, IL 60560 STATE OF ILLINOIS ) ss COUNTY OF KENDALL ) ORDINANCE NO. 2007- AN ORDINANCE REZONING CERTAIN PROPERTY IN FURTHERANCE OF AN ANNEXATION AGREEMENT (Fountain View) WHEREAS, Jerald L. Hanson Revocable Trust & Carol Hanson are the legal owners of record of property described on Exhibit "A" attached hereto and incorporated herein (the Property), and WHEREAS DTD Investments, LLC, developer of the Property has made application by petition for the rezoning of the Property pursuant to an Annexation of the Property, and WHEREAS, owners and developers have previously entered into an agreement for annexation, and zoning of the property, and WHEREAS, the Yorkville Plan Commission has recommended the rezoning of the property as B-3 — Service Business District. NOW, THEREFORE BE IT ORDAINED BY THE MAYOR AND THE CITY COUNCIL OF THE UNITED CITY OF YORKVILLE, KENDALL COUNTY, ILLINOIS UPON MOTION DULY MADE, SECONDED AND APPROVED BY THE MAJORITY OF THOSE MEMBERS OF THE CITY COUNCIL VOTING, THAT: 1 . The City Council approves the recommendation of the Plan Commission and hereby rezones the property as B-3 Service Business District as described in attached Exhibit «B» 2. The Property shall be developed according to the terms of an Annexation Agreement previously adopted. 3 : This Ordinance shall be in full force and effect from and after its passage and approval as provided by law. JAMES BOCK JOSEPH BESCO VALERIE BURD PAUL JAMES GARY GOLINSKI MARTY MUNNS ROSE SPEARS JASON LESLIE Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this day of A.D. 2007. MAYOR Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this day of A.D. 2007. ATTEST: CITY CLERK Prepared by: John Justin Wyeth City Attorney United City of Yorkville 800 Game Farm Road Yorkville, IL 60560 Etc, STATE OF ILLINOIS ) ) ss COUNTY OF KENDALL ) ORDINANCE NO.2007- AN ORDINANCE AUTHORIZING THE EXECUTION OF A DEVELOPMENT/ECONOMIC INITIATIVE AGREEMENT DTD INVESTMENTS,LLC (Fountain View) WHEREAS, it is deemed prudent and in the best interest of the UNITED CITY OF YORKVILLE, Kendall County, Illinois, that a certain Development/Economic Initiative Agreement pertaining to the development of real estate described within the Agreement which is attached hereto as and made a part hereof as Exhibit"A" be entered into by the UNITED CITY OF YORKVILLE; and WHEREAS, said Agreement has been drafted and has been considered by the City Council; and WHEREAS,the legal owners of record of the property subject to the Agreement are ready, willing and able to enter into said Agreement and to perform the obligations as required hereunder;and WHEREAS,the reasons for entering into this Agreement and benefits to the City are described within the Agreement and thereby made a part of this Ordinance, and Page 1 of 3 WHEREAS, the statutory procedures including specific findings as required by 65 ILCS 8- 11 -20, as amended, for economic incentive agreements have been complied with, and said findings are contained in the Agreement (Exhibit "X'), 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 preambles, above, are incorporated by this reference as if written in full at this place. Section 2: The Mayor and the City Clerk are herewith authorized and directed to execute, on behalf of the City, the Development/Economic Initiative Agreement concerning certain real estate described therein, a copy of which attached hereto and made a part hereof as Exhibit "A". Section 2: This ordinance shall be in full force and effect from and after its passage and approval as provided by law. JAMES BOCK JOSEPH BESCO VALERIE BURD PAUL JAMES GARY GOLINSKI MARTY MUNNS ROSE SPEARS JASON LESLIE Page 2 of 3 Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this day of A.D. 2007. MAYOR Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this day of A.D. 2007. ATTEST: CITY CLERK Prepared by: John Justin Wyeth City Attorney United City of Yorkville 800 Game Farm Road Yorkville, IL 60560 Page 3 of 3 -Fecf-Linect Vers;OVA STATE OF ILLINOIS ) March 1,2007 )as. Revised Apri120.2007 COUNTY OF KENDALL ) UNITED CITY OF YORKVILLE AND DTD INVESTMENTS.LLC (FOUNTAINVIEW) DEVELOPMENT/ECONOIVHC 1TIITLATIVE AGREEMENT THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into as of the_day of 2007 by and between THE UNITED CITY OF YORKVILLE, an Illinois corporation located in Kendall County (the "CITY"), and DTD ---- Deleted:JERALD L.H wso , INVESTMENTS,LLC(the"OWNERDEVELOPER"). (hereinafterref=edmasOWNER) RECITALS The CITY is an Illinois municipality and hereby enters into this Agreement pursuant to 65 ILCS 5/8-11-20 (2004) ("Enabling Statute"); and pursuant to Section 6(a) of Article VII of the Constitution of the State of Illinois of 1970,the CITY has determined that it has the authority to enter into this Agreement. The OWNERDDEVELOPER owns and intends to develop the real property located at the northwest comer of the intersection of Route 47 and Fountainview Drive and legally described in Exhibit "A" (the "Property") for business uses ("Developments Project") subject to the zoning ordinance enacted by the CITY. OWNER/DEVELOPER has demonstrated to the CITY's satisfaction that the OWNER�DEVELOPER has the experience and capacity to complete the Development Project. The OWNERrDEVELOPER and the CITY have determined that without the financial assistance provided under this Agreement the Development Project would not be feasible and that the OWNERDEVELOPER would not undertake the Development Project.The OWNERDEVELOPER has expressly conditioned the undertaking of the Development Project on the CITY's agreement to pledge the Sales Tax Revenues (defined later) it receives from the Development Project to repay OWNER/DEVELOPER its Reimbursable Improvements(defined later),all as provided in this Agreement. -1- The CITY deems it to be of significant importance to encourage development within the CITY so as to maintain a viable real estate tax and sales tax base and employment opportunities. Accordingly, the CITY has made the following findings necessary pursuant to the Enabling Statute: That the Property has remained vacant in excess of twenty (20) years; and That the Development Project is expected to create a substantial number of job opportunities within the municipality; and That the Development Project will serve to further the development of adjacent areas; and The CITY has requested that OWNERiDEVELOPER financially participate in the cost of design and improvement of Illinois Route 47 and Fountainview Drive adjacent to the subject real property as well as related on-site and off-site public utility improvements and site improvements; and That without this Agreement, the Development Project would not be reasonably possible given the off-site costs imposed by the Illinois Department of Transportation and the United City of Yorkville; and That the OWNERlDEVELOPER meets high standards of creditworthiness and financial- ---- -- Formatted: Indent: Left: 0.5^, First strength; and line: 0", Tabs: 0.5", List tab + Not at 1" That the Development Project will strengthen the commercial sector of the municipality; and That the Development Project will enhance the tax base of the CITY and all related governmental bodies; and That the Development Project will generate substantial sales tax and utility tax revenues to the CITY; and That this Agreement is made in the best interest of the CITY. Pursuant to the Illinois Municipal Code, as amended ("Code"), the CITY has authority to enter into an economic incentive agreement relating to the development of land within corporate limits, including an agreement to share or rebate a portion of the retailer's occupation taxes received by the CITY that are generated by the development. Subject to the terms and conditions of this Agreement, the CITY agrees to reimburse the OWNERtDEVELOPER for its Reimbursable Improvements up to twenty percent (20%) of OWNER'DEVELOPER's total cost of on and off-site public and private improvement costs as are finally incurred and verified by the CITY, based upon the "Reimbursable Improvements" list 2 attached hereto and incorporated herein as Exhibit `B". In reliance upon the CITY's representations and covenants contained in and subject to the terms and conditions of this Agreement, the OWNERDEVELOPER intends to cause the Reimbursable Improvements (as hereinafter defined) to be constructed and to enter into construction contracts and other agreements as necessary. This Agreement has been submitted to the corporate authorities of the CITY for Deleted: ¶ consideration and review, and the corporate authorities have given all notices and taken all lI actions required to be taken prior to the execution of this Agreement to make this Agreement effective. NOW, THEREFORE, to maintain and revitalize business within the CITY by assuring opportunities for development and attracting sound and stable commercial growth; to promote the public interest and to enhance the tax base of the CITY; to induce the OWNER'DEVELOPER to undertake the Development Project; in consideration of the OWNERDEVELOPER's agreement to undertake the Development Project and the CITY's agreement to reimburse the OWNEWDEVELOPER for the costs of causing the construction of certain of the Reimbursable Improvements; and in consideration of the mutual promises, covenants, stipulations and agreements herein contained in this Agreement, the OWNIER,'DEVELOPER and the CITY hereby agree as follows: Incorporation of Recitals. The recitals set forth above are incorporated hereby by this reference as if fully set forth herein. Creation of Economic Incentive Agreements. The CITY acknowledges that an economic incentive agreement for the subject commercial property within the Property will provide incentives for development within the Property, which will provide sales tax benefits to the CITY. The CITY shall, upon application by OWNERDEVELOPER or its assigns, pursuant to 65 ILCS 5/8-11-20 (2004) or any other statutory means, enact all ordinances and execute all agreements to share or rebate a fifty percent (50%) portion of the CITY's allocated portion of sales tax revenue as set forth herein to OWNER'DEVELOPER or as assigned in writing by QWNERDEVELOPER, pursuant to the terms provided in this paragraph of the Agreement (hereinafter referred to as "Incentives"). For purposes of this Agreement a "commercial retail user" shall be any user that collects sales tax as part of its operation. The commercial retailer user shall be referred to as the "Generator". The CITY acknowledges that its agreement to execute this Development/Economic Initiative Agreement is a material inducement to OWNER(DEVELOPER to enter-into -- - --- -------int this pe�etzd: ---- ---- Agreement. -3- Development Incentive Reimbursement, Incentives. The OWNER/DEVELOPER pursuant to the terms of this Agreement shall be repaid 100% of its Reimbursable Improvement costs (defined below) out of,59%_ of sales _tax _ --"- Deleted: amwm=of generated by any "Generator" on the Property or any additional property purchased by OWNER/DEVELOPER, as evidenced by paid lien waivers and sworn contractor affidavit submitted to the CITY. The CITY shall include interest at the rate of three percent (3%) per annum in excess of prime commercial interest rate as set by Old Second Bank — Yorkville on the Reimbursable Improvement calculation for the balance of Reimbursable Improvements incurred by OWNER/DEVELOPER. Interest shall be calculated annually and shall commence with the Certificate of Occupancy being issued to the first store (or other business operator) on the Property. OWNERDEVELOPER shall be entitled to recover up to the total amount of the Reimbursable Improvement calculation plus interest for a period of twenty (20) years commencing from the date of the execution of this Agreement. In the event OWNER/DEVELOPER recovers its full Reimbursable Improvement plus interest calculation prior to that expiration time, the right to recovery shall terminate earlier than the previous stated expiration date. In the event OWNER'DEVELOPER has not received all of its Reimbursable Improvements calculation and interest upon said expiration date, the Agreement shall be treated as expired. Interest shall not be compounded. These Reimbursable Improvements include, but are not limited to, the following: 1) Construction of any on-site or off-site Illinois State Route 47 and Fountainview Drive improvements intersection, signalization, or other improvements on Fountainview Drive or Route 47 as is necessitated by MOT or the CITY for the development of the subject property and handling ambient traffic benefiting from said roadway improvements. not reimbursed from other sources. 2) The Fair Market Value of any real property, determined by Appraisal Figure agreed to by OWNER'DEVELOPER and CITY at the time of any dedication or taking of real property for right-of-way purposes at the time of said real property is dedicated or taken for said purposes by either the United City of Yorkville or the Illinois Department of Transportation. not reimbursed from other sources. 3) The OWNER/DEVELOPER shall submit a total for the hard costs (`brick and .: Deleted: DEVELOPER Shall further mortar' costs excluding esign legal, enaineerine, etc.) associated with this receive a rebate scolleotedfor ( miadofrfY g Utility Taxes collected for a period of project when completed The rebate amount should not exceed No/D of these total five (5) years from the date fast project hard Costs. collected. The CITY shall distribute the sales tax revenue generated by any Generator as follows: 50% to the OWNER/DEVELOPER, or as directed by the OWNEWDEVELOPEF4 and Sales Tax and Sales Tax Revenue Defined. The term Sales Tax used herein refers to revenues generated by the sale of merchandise from and collected under the Retailer's Occupation Tax, or any other "sales tax" or similar tax that may be enacted by the State of -4- Illinois or any governmental agency or body created under the laws of the State of Illinois, based upon gross sales, and located within the State of Illinois, that is collected by the Generators as a result of business transactions occurring on the Property. In the event that the CITY's share of said sales tax or substitute tax is reduced or increased by the State, then the affected Generator's share thereof shall be reduced or increased in the same proportion. Payment Obligation. The CITY hereby agrees to pay OWNERDEVELOPER or its assignee the quarterly installment payments made to the CITY by the Illinois Department of Revenue within thirty (30) days of receipt by the CITY of the quarterly installments, and continuing until the Reimbursable Improvements and applicable interest are paid to the OWNERDEVELOPER as set out in this Agreement. _ { Deleted: I The "quarterly installment payment" shall mean an amount equal to one-half ('/2) of the sales tax revenue received by the CITY from the State generated by each Generator on the Property, or any additions to the Property. All amounts paid to the OWNtRDEVELOPER will be due and payable solely from one-half (%) or as adjusted under this Agreement of the sales tax revenues received by the CITY from any Generator's sales for the preceding calendar quarter. However, if the CITY no longer receives sales tax revenues from the Generator due to a change in Illinois statutes, then the CITY shall make payments to the OWNERDEVELOPER from any alternate sources of revenue provided to the CITY by the State, if any are made, specifically as a replacement or substitute for sales tax revenue presently received by the CITY. Verification of Costs. Following construction of the Reimbursable Improvements, OWNERDEVELOPER shall provide the CITY with final lien waivers and sworn contractor affidavit establishing the cost of such improvements. Commencement Date. The terms of this Agreement shall be for Twenty (20) years commencing upon the execution and approval of this Agreement by the CITY. Sources of Funds to Pay Reimbursable Development Project Costs. Funds necessary to pay for the Incentives are to be solely derived from the additional sales tax generated by the Generators. This pledge of additional sales tax revenues hereby is approved by the CITY. In order to comply with the terms of this Agreement, OWNERDEVELOPER shall require in writing all tenants in the Property and to any subsequent purchasers of any portion of the Property to direct the Illinois Department of Revenue to provide the CITY with a breakdown of sales tax being remitted to the CITY for each commercial retailer on-site. In the event OWNER/DEVELOPER or a commercial retailer fails to provide the CITY with written authority for release of said information from the Illinois Department of Revenue the CITY shall have no duty to remit sales tax proceeds from that commercial retailer to the OWNERDEVELOPER. Assignability. 1) It is expressly agreed and understood by the parties to this Agreement that the benefits contemplated in the Development/Economic Initiative Agreement and -5- pursuant to 65 ILCS 5/8-11-20 (2004) are assignable at the option of the OWNER'DEVELOPER. Upon such written assignment by the OWNERDEVELOPER, Generator shall have all rights currently vested in the OWNERDEVELOPER under the Development Agreements, this Ordinance and applicable law, and shall be entitled to enforce same by any legal or equitable remedy. If any Lot is sold by the OWNER/DEVELOPER, OWNER/DEVELOPER shall be entitled to continue to receive payments for Reimbursable Improvements pursuant to the Development/Economic Initiative Agreement unless specifically assigned by the OWNERDEVELOPER. 2) O`d%NER.DEVELOPER may assign a portion or all of its rights under the terms of this Agreement to any future developers, DEVELOPERS, or institutions or individuals providing financing for the improvements outlined above in this Agreement. - - ' Formatted: Indent: Lek: o.5" Reimbursement Procedures. Sales Tax Report s. OWNERDEVELOPER agrees to cause all Generators to execute and deliver to the CITY a written direction, in form and content acceptable to the CITY and the Illinois Department of Revenue ("DOW'), authorizing the DOR to release to the CITY the sales tax figures for the Generator, on a quarterly basis and during the term of this Agreement. The CITY agrees to take the necessary action to initiate the transaction. Should the DOR cease to release the sales tax information to the CITY on a quarterly basis, OWNER/DEVELOPER and all Generators shall be responsible for any further action to obtain the sales tax information from the DOR or shall be responsible for submittal of the sales tax information from the DOR or shall be responsible for submittal of the sales tax information as provided for in the next paragraph of this Agreement. In the event the DOR fails to submit to the CITY the quarterly sales tax information for any Generator as provided for in Section A above, OWNER/DEVELOPER shall cause Generators to, contemporaneous with the filing of sales tax reports with the Illinois Department of Revenue or successor agency, furnish to the CITY copies of any and all sales tax returns, sales tax reports, amendments, or any other paper filed with the State of Illinois, said Department of Revenue or other appropriate governmental entity, pertaining to the Generators, and certified as being true and correct, which documents are being provided to the CITY for purposes of identifying sales tax revenues collected pursuant to this Agreement. Confidentiality. The CITY acknowledges and agrees that information to be provided by Generators hereunder are proprietary and valuable information and that any disclosure or unauthorized use thereof will cause irreparable harm to OWNERDEVELOPER and/or OWNERDEVELOPER's affiliates and/or Generator and/or Generator's affiliates, and to the extent permitted by state of federal law, including but not limited to Section 7(1)(g) of the Illinois Freedom of Information Act, the CITY agrees to hold in confidence all sales figures and other information provided by OWNE.RDEVELOPER or Generators or obtained from OWNER'DEVELOPER's or Generator's records in connection with this Agreement, and in connection therewith, the CITY shall not copy any such information except as necessary for -6- dissemination to the CITY's agents or employees as permitted hereinafter. The CITY shall be permitted to disclose such information (i) to its agents or employees who are reasonably deemed by the CITY to have a need to know such information for purposes of this Agreement; provided, that such agents and employees shall hold in confidence such information to the extent required of the CITY hereunder or (ii) to the extent required by order of court or by state of federal law. The confidentiality requirements of this Agreement shall survive any expiration, termination or cancellation of this Agreement and shall continue to bind the CITY, its successors, assigns and legal representatives for a period of five (5) years from the termination, expiration or cancellation of this Agreement. All Generators shall be treated as third party beneficiaries to this Confidentiality provision. Audit. Each payment by the CITY to OWNER/DEVELOPER shall be accompanied by a statement executed by the City Treasurer or the Treasurer's designee, setting forth the calculations of such payment and identifying the sales tax return period to which the payment relates. The City Treasurer or the Treasurer's designee shall further issue a statement setting forth all payments made to date to OWNER/DEVELOPER. OWNERIDEVELOPER shall have one (1) year following the receipt of said payment to contest any of the calculations or information contained in said statements. OWNERDEVELOPER shall have the right to review all sales tax reports provided to the CITY by the state relating to any Generator upon two days written request by OWNER/DEVELOPER. Defaultf fight to Cure. No party shall be deemed in default hereunder until such Party has failed to cure the alleged default with ten (10) days in the case of a monetary default, or within thirty (30) days in the case of a non-monetary default, from notice of such default from the other Party; provided, however, if the nature of such non-monetary default is such that it cannot reasonably be cured within such thirty (30) days period, then such Party shall not be deemed in default if such Party commences to cure such default within such thirty (30) day period and thereafter diligently prosecutes such cure to completion. In the event of a default and except as may be otherwise provided herein to the contrary, the non-defaulting party may: (i) terminate this Agreement upon written notice to the defaulting party, recover from the defaulting party all damages incurred by the non-defaulting party; (ii) except as may be otherwise expressly provided to the contrary herein, seek specific performance of this Agreement, and, in addition, recover all damages incurred by the non-defaulting party; (the parties declare it to be their intent that this Agreement may be specifically enforced); (iii) pursue all other remedies available at law, it being the intent of the parties that remedies be cumulative and liberally enforced so as to adequately and completely compensate the non- defaulting party. -7- No Obligation to Develop, Open or Operate. Nothing contained in this Agreement shall be deemed to obligate O +i,vFR.DEVELOPER, Generator or any of Generator's affiliates to construct any improvements on the Property or to open or operate any form of business in the Property for any period of time or at all. Additional Covenants. Time. Time is of the essence unless otherwise stated in this Agreement and all time limits set forth are mandatory and cannot be waived except by a lawfully authorized and executed written waiver by the party excusing such timely performance. Binding Effect. This Agreement shall be construed and enforced in accordance with the laws of the State of Illinois. Severability. If any provision of this Agreement is held invalid by a court of competent jurisdiction or in the event such a court shall determine that the CITY does not have the power to perform any such provision, such provision shall be deemed to be excised herefrom and the invalidity thereof shall not affect any of the other provisions contained herein. Notices. All notices and requests required pursuant_to this Agreement shall be sent by Deleted: ¶ certified marl as follows. To OWNERDEVELOPER:_ DTD Investments, LLC Deleted: Developer Attn: Dean Tomich _ 2250 Weber Rd. Crest Hill, IL 60435 To OA%�EV_ELOPER's _Attorney: Law Offices of Daniel J. Kramer _ _ ...---'t De led: Developers _1107A S. Bridge Street Yorkville, IL 60560 Deleted; I With copies to: Attorney John Wyeth Formatted: Indent: Left: o", First United City of Yorkville Offices line: 0', Tabs: Not at I 800 Game Farm Rd. Deleted: To DEVELOPER: - led Yorkville, IL 60560 Authority to Execute. The signatories of the parties hereto warrant that they have been lawfully authorized by the City Council of the CITY and the Board of Directors of OWNERDEVELOPER, to execute this Agreement on their behalf. Attorneys' Fees. If a party commences a legal proceeding to enforce any of the terms of this Agreement, the prevailing party in such action shall have the right to recover reasonable attorneys' fees and costs from the other Party to be fixed by the court in the same action. 8 Relationship of the Parties. Nothing herein shall be deemed or construed by the Parties or by any third party as creating the relationship of principal and agent or of partnership of or joint venture between the Parties, it being understood and agreed that no provision herein, nor any acts of the parties, shall be deemed to create any relationship between the parties. Remedies Not Exclusive. Except as may be otherwise expressly provided herein, the various rights and remedies herein contained and reserved to each of the parties, except as herein otherwise expressly provided, are not exclusive of any other right or remedy of such party, but are cumulative and in addition to every other remedy now or hereafter existing at law, in equity or by statute. No delay or omission of the right to exercise any power or remedy by either party shall impair any such right, power or remedy or be construed as a waiver of any default or non- performance or as acquiescence therein. -9- IN WITNESS WHEREOF, this Agreement is entered into at United City of Yorkville, Illinois, as of the date and year shown above. UNITED CITY OF YORKVILLE, an Illinois Municipal Corporation, By: MAYOR Attest: CITY CLERK -10- O NLRDEVELOPER: DTD INVESTMENTS, LLC By: DEAN A. TOMICH Attest: Dated: Deleted: I 9 i � ¶ I ¶ I V 9 9 9 OWNER I By: 9 IERALD HANSON¶ 9 A Attest: __ __---_"__ .. .. Dated: I Prepared by and Return to: q Law Offices of Daniel J. Kramer 1107A S. Bridge Street 9 Yorkville, Illinois 60560 ¶ 630.553.9500 �9 l Revised April 20, 2007 STATE OF ILLINOIS ) )ss. COUNTY OF KENDALL ) UNITED CITY OF YORKVILLE AND DTD INVESTMENTS,LLC (FOUNTAINVIEW) DEVELOPMENT/ECONOMIC INITIATIVE AGREEMENT THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into as of the day of 2007 by and between THE UNITED CITY OF YORKVILLE, an Illinois corporation located in Kendall County (the "CITY'), and DTD INVESTMENTS, LLC (the"OWNER/DEVELOPER"). RECITALS The CITY is an Illinois municipality and hereby enters into this Agreement pursuant to 65 ILCS 5/8-11-20 (2004) ("Enabling Statute"); and pursuant to Section 6(a) of Article VII of the Constitution of the State of Illinois of 1970, the CITY has determined that it has the authority to enter into this Agreement. The OWNER/DEVELOPER owns and intends to develop the real property located at the northwest comer of the intersection of Route 47 and Fountainview Drive and legally described in Exhibit "A" (the "Property") for business uses ("Development Project") subject to the zoning ordinance enacted by the CITY. OWNER/DEVELOPER has demonstrated to the CITY's satisfaction that the OWNER/DEVELOPER has the experience and capacity to complete the Development Project. The OWNER/DEVELOPER and the CITY have determined that without the financial assistance provided under this Agreement the Development Project would not be feasible and that the OWNER/DEVELOPER would not undertake the Development Project. The OWNER/DEVELOPER has expressly conditioned the undertaking of the Development Project on the CITY's agreement to pledge the Sales Tax Revenues (defined later) it receives from the Development Project to repay OWNER/DEVELOPER its Reimbursable Improvements (defined later), all as provided in this Agreement. -1- The CITY deems it to be of significant importance to encourage development within the CITY so as to maintain a viable real estate tax and sales tax base and employment opportunities. Accordingly, the CITY has made the following findings necessary pursuant to the Enabling Statute: That the Property has remained vacant in excess of twenty (20) years; and That the Development Project is expected to create a substantial number of job opportunities within the municipality; and That the Development Project will serve to further the development of adjacent areas; and The CITY has requested that OWNER/DEVELOPER financially participate in the cost of design and improvement of Illinois Route 47 and Fountainview Drive adjacent to the subject real property as well as related on-site and off-site public utility improvements and site improvements; and That without this Agreement, the Development Project would not be reasonably possible given the off-site costs imposed by the Illinois Department of Transportation and the United City of Yorkville; and That the OWNER/DEVELOPER meets high standards of creditworthiness and financial strength; and That the Development Project will strengthen the commercial sector of the municipality; and That the Development Project will enhance the tax base of the CITY and all related governmental bodies; and That the Development Project will generate substantial sales tax and utility tax revenues to the CITY; and That this Agreement is made in the best interest of the CITY. Pursuant to the Illinois Municipal Code, as amended ("Code"), the CITY has authority to enter into an economic incentive agreement relating to the development of land within corporate limits, including an agreement to share or rebate a portion of the retailer's occupation taxes received by the CITY that are generated by the development. Subject to the terms and conditions of this Agreement, the CITY agrees to reimburse the OWNER/DEVELOPER for its Reimbursable Improvements up to twenty percent (20%) of OWNER/DEVELOPER's total cost of on and off-site public and private improvement costs as are finally incurred and verified by the CITY, based upon the "Reimbursable Improvements" list -2- attached hereto and incorporated herein as Exhibit `B". In reliance upon the CITY's representations and covenants contained in and subject to the terms and conditions of this Agreement, the OWNER/DEVELOPER intends to cause the Reimbursable Improvements (as hereinafter defined) to be constructed and to enter into construction contracts and other agreements as necessary. This Agreement has been submitted to the corporate authorities of the CITY for consideration and review, and the corporate authorities have given all notices and taken all actions required to be taken prior to the execution of this Agreement to make this Agreement effective. NOW, THEREFORE, to maintain and revitalize business within the CITY by assuring opportunities for development and attracting sound and stable commercial growth; to promote the public interest and to enhance the tax base of the CITY; to induce the OWNER/DEVELOPER to undertake the Development Project; in consideration of the OWNER/DEVELOPER' s agreement to undertake the Development Project and the CITY's agreement to reimburse the OWNER/DEVELOPER for the costs of causing the construction of certain of the Reimbursable Improvements; and in consideration of the mutual promises, covenants, stipulations and agreements herein contained in this Agreement, the OWNER/DEVELOPER and the CITY hereby agree as follows: Incorporation of Recitals. The recitals set forth above are incorporated hereby by this reference as if fully set forth herein. Creation of Economic Incentive Agreements. The CITY acknowledges that an economic incentive agreement for the subject commercial property within the Property will provide incentives for development within the Property, which will provide sales tax benefits to the CITY. The CITY shall, upon application by OWNER/DEVELOPER or its assigns, pursuant to 65 ILCS 5/8- 11 -20 (2004) or any other statutory means, enact all ordinances and execute all agreements to share or rebate a fifty percent (50%) portion of the CITY's allocated portion of sales tax revenue as set forth herein to OWNER/DEVELOPER or as assigned in writing by OWNER/DEVELOPER, pursuant to the terms provided in this paragraph of the Agreement (hereinafter referred to as "Incentives"). For purposes of this Agreement a "commercial retail user" shall be any user that collects sales tax as part of its operation. The commercial retailer user shall be referred to as the "Generator". The CITY acknowledges that its agreement to execute this Development/Economic Initiative Agreement is a material inducement to OWNER/DEVELOPER to enter into this Agreement. -3- Development Incentive Reimbursement. Incentives. The OWNER/DEVELOPER pursuant to the terms of this Agreement shall be repaid 100% of its Reimbursable Improvement costs (defined below) out of 50% of sales tax generated by any "Generator" on the Property or any additional property purchased by OWNER/DEVELOPER, as evidenced by paid lien waivers and sworn contractor affidavit submitted to the CITY. The CITY shall include interest at the rate of three percent (3%) per annum in excess of prime commercial interest rate as set by Old Second Bank — Yorkville on the Reimbursable Improvement calculation for the balance of Reimbursable Improvements incurred by OWNER/DEVELOPER. Interest shall be calculated annually and shall commence with the Certificate of Occupancy being issued to the first store (or other business operator) on the Property. OWNER/DEVELOPER shall be entitled to recover up to the total amount of the Reimbursable Improvement calculation plus interest for a period of twenty (20) years commencing from the date of the execution of this Agreement. In the event OWNER/DEVELOPER recovers its full Reimbursable Improvement plus interest calculation prior to that expiration time, the right to recovery shall terminate earlier than the previous stated expiration date. In the event OWNER/DEVELOPER has not received all of its Reimbursable Improvements calculation and interest upon said expiration date, the Agreement shall be treated as expired. Interest shall not be compounded. These Reimbursable Improvements include, but are not limited to, the following: 1) Construction of any on-site or off-site Illinois State Route 47 and Fountainview Drive improvements intersection, signalization, or other improvements on Fountainview Drive or Route 47 as is necessitated by IDOT or the CITY for the development of the subject property and handling ambient traffic benefiting from said roadway improvements, not reimbursed from other sources. 2) The Fair Market Value of any real property, determined by Appraisal Figure agreed to by OWNER/DEVELOPER and CITY at the time of any dedication or taking of real property for right-of-way purposes at the time of said real property is dedicated or taken for said purposes by either the United City of Yorkville or the Illinois Department of Transportation, not reimbursed from other sources. 3) The OWNER/DEVELOPER shall submit a total for the hard costs (`brick and mortar' costs excluding design, legal, engineering, etc.) associated with this project when completed. The rebate amount should not exceed 20% of these total project hard costs. The CITY shall distribute the sales tax revenue generated by any Generator as follows: 50% to the OWNER/DEVELOPER, or as directed by the OWNER/DEVELOPER; and Sales Tax and Sales Tax Revenue Defined. The term Sales Tax used herein refers to revenues generated by the sale of merchandise from and collected under the Retailer's Occupation Tax, or any other "sales tax" or similar tax that may be enacted by the State of -4- Illinois or any governmental agency or body created under the laws of the State of Illinois, based upon gross sales, and located within the State of Illinois, that is collected by the Generators as a result of business transactions occurring on the Property. In the event that the CITY's share of said sales tax or substitute tax is reduced or increased by the State, then the affected Generator's share thereof shall be reduced or increased in the same proportion. Payment Obli ag tion. The CITY hereby agrees to pay OWNER/DEVELOPER or its assignee the quarterly installment payments made to the CITY by the Illinois Department of Revenue within thirty (30) days of receipt by the CITY of the quarterly installments, and continuing until the Reimbursable Improvements and applicable interest are paid to the OWNER/DEVELOPER as set out in this Agreement. The "quarterly installment payment" shall mean an amount equal to one-half (%2) of the sales tax revenue received by the CITY from the State generated by each Generator on the Property, or any additions to the Property. All amounts paid to the OWNER/DEVELOPER will be due and payable solely from one-half ('/z) or as adjusted under this Agreement of the sales tax revenues received by the CITY from any Generator's sales for the preceding calendar quarter. However, if the CITY no longer receives sales tax revenues from the Generator due to a change in Illinois statutes, then the CITY shall make payments to the OWNER/DEVELOPER from any alternate sources of revenue provided to the CITY by the State, if any are made, specifically as a replacement or substitute for sales tax revenue presently received by the CITY. Verification of Costs. Following construction of the Reimbursable Improvements, OWNER/DEVELOPER shall provide the CITY with final lien waivers and sworn contractor affidavit establishing the cost of such improvements. Commencement Date. The terms of this Agreement shall be for Twenty (20) years commencing upon the execution and approval of this Agreement by the CITY. Sources of Funds to Pay Reimbursable Development Project Costs. Funds necessary to pay for the Incentives are to be solely derived from the additional sales tax generated by the Generators. This pledge of additional sales tax revenues hereby is approved by the CITY. In order to comply with the terms of this Agreement, OWNER/DEVELOPER shall require in writing all tenants in the Property and to any subsequent purchasers of any portion of the Property to direct the Illinois Department of Revenue to provide the CITY with a breakdown of sales tax being remitted to the CITY for each commercial retailer on-site. In the event OWNER/DEVELOPER or a commercial retailer fails to provide the CITY with written authority for release of said information from the Illinois Department of Revenue the CITY shall have no duty to remit sales tax proceeds from that commercial retailer to the OWNER/DEVELOPER. Assignability. 1) It is expressly agreed and understood by the parties to this Agreement that the benefits contemplated in the Development/Economic Initiative Agreement and -5- pursuant to 65 ILCS 5/8- 11 -20 (2004) are assignable at the option of the OWNER/DEVELOPER. Upon such written assignment by the OWNER/DEVELOPER, Generator shall have all rights currently vested in the OWNER/DEVELOPER under the Development Agreements, this Ordinance and applicable law, and shall be entitled to enforce same by any legal or equitable remedy. If any Lot is sold by the OWNER/DEVELOPER, OWNER/DEVELOPER shall be entitled to continue to receive payments for Reimbursable Improvements pursuant to the Development/Economic Initiative Agreement unless specifically assigned by the OWNEWDEVELOPER. 2) OWNER/DEVELOPER may assign a portion or all of its rights under the terms of this Agreement to any future developers, DEVELOPERS, or institutions or individuals providing financing for the improvements outlined above in this Agreement. Reimbursement Procedures. Sales Tax Reports. OWNER/DEVELOPER agrees to cause all Generators to execute and deliver to the CITY a written direction, in form and content acceptable to the CITY and the Illinois Department of Revenue ("DOR"), authorizing the DOR to release to the CITY the sales tax figures for the Generator, on a quarterly basis and during the term of this Agreement. The CITY agrees to take the necessary action to initiate the transaction. Should the DOR cease to release the sales tax information to the CITY on a quarterly basis, OWNER/DEVELOPER and all Generators shall be responsible for any further action to obtain the sales tax information from the DOR or shall be responsible for submittal of the sales tax information from the DOR or shall be responsible for submittal of the sales tax information as provided for in the next paragraph of this Agreement. In the event the DOR fails to submit to the CITY the quarterly sales tax information for any Generator as provided for in Section A above, OWNER/DEVELOPER shall cause Generators to, contemporaneous with the filing of sales tax reports with the Illinois Department of Revenue or successor agency, furnish to the CITY copies of any and all sales tax returns, sales tax reports, amendments, or any other paper filed with the State of Illinois, said Department of Revenue or other appropriate governmental entity, pertaining to the Generators, and certified as being true and correct, which documents are being provided to the CITY for purposes of identifying sales tax revenues collected pursuant to this Agreement. Confidentiality. The CITY acknowledges and agrees that information to be provided by Generators hereunder are proprietary and valuable information and that any disclosure or unauthorized use thereof will cause irreparable harm to OWNER/DEVELOPER and/or OWNER/DEVELOPER' s affiliates and/or Generator and/or Generator's affiliates, and to the extent permitted by state of federal law, including but not limited to Section 7(1)(g) of the Illinois Freedom of Information Act, the CITY agrees to hold in confidence all sales figures and other information provided by OWNER/DEVELOPER or Generators or obtained from OWNER/DEVELOPER's or Generator's records in connection with this Agreement, and in connection therewith, the CITY shall not copy any such information except as necessary for -6- dissemination to the CITY's agents or employees as permitted hereinafter. The CITY shall be permitted to disclose such information (i) to its agents or employees who are reasonably deemed by the CITY to have a need to know such information for purposes of this Agreement; provided, that such agents and employees shall hold in confidence such information to the extent required of the CITY hereunder or (ii) to the extent required by order of court or by state of federal law. The confidentiality requirements of this Agreement shall survive any expiration, termination or cancellation of this Agreement and shall continue to bind the CITY, its successors, assigns and legal representatives for a period of five (5) years from the termination, expiration or cancellation of this Agreement. All Generators shall be treated as third party beneficiaries to this Confidentiality provision. Audit. Each payment by the CITY to OWNER/DEVELOPER shall be accompanied by a statement executed by the City Treasurer or the Treasurer' s designee, setting forth the calculations of such payment and identifying the sales tax return period to which the payment relates. The City Treasurer or the Treasurer's designee shall further issue a statement setting forth all payments made to date to OWNER/DEVELOPER. OWNER/DEVELOPER shall have one (1 ) year following the receipt of said payment to contest any of the calculations or information contained in said statements. OWNER/DEVELOPER shall have the right to review all sales tax reports provided to the CITY by the state relating to any Generator upon two days written request by OWNER/DEVELOPER. Default/Right to Cure. No party shall be deemed in default hereunder until such Party has failed to cure the alleged default with ten (10) days in the case of a monetary default, or within thirty (3 0) days in the case of a non-monetary default, from notice of such default from the other Party; provided, however, if the nature of such non-monetary default is such that it cannot reasonably be cured within such thirty (30) days period, then such Party shall not be deemed in default if such Party commences to cure such default within such thirty (30) day period and thereafter diligently prosecutes such cure to completion. In the event of a default and except as may be otherwise provided herein to the contrary, the non-defaulting party may: (i) terminate this Agreement upon written notice to the defaulting party, recover from the defaulting party all damages incurred by the non-defaulting party; (ii) except as may be otherwise expressly provided to the contrary herein, seek specific performance of this Agreement, and, in addition, recover all damages incurred by the non-defaulting party; (the parties declare it to be their intent that this Agreement may be specifically enforced); (iii) pursue all other remedies available at law, it being the intent of the parties that remedies be cumulative and liberally enforced so as to adequately and completely compensate the non- defaulting party. -7- No Obligation to Develop, Open or Operate. Nothing contained in this Agreement shall be deemed to obligate OWNER/DEVELOPER, Generator or any of Generator's affiliates to construct any improvements on the Property or to open or operate any form of business in the Property for any period of time or at all. Additional Covenants, Time. Time is of the essence unless otherwise stated in this Agreement and all time limits set forth are mandatory and cannot be waived except by a lawfully authorized and executed written waiver by the party excusing such timely performance. Binding_Effect. This Agreement shall be construed and enforced in accordance with the laws of the State of Illinois. Severability. If any provision of this Agreement is held invalid by a court of competent jurisdiction or in the event such a court shall determine that the CITY does not have the power to perform any such provision, such provision shall be deemed to be excised herefrom and the invalidity thereof shall not affect any of the other provisions contained herein. Notices. All notices and requests required pursuant to this Agreement shall be sent by certified mail as follows: To OWNER/DEVELOPER: DTD Investments, LLC Attn: Dean Tomich 2250 Weber Rd. Crest Hill, IL 60435 To OWNER/DEVELOPER's Attorney: Law Offices of Daniel J. Kramer 1107A S. Bridge Street Yorkville, IL 60560 With copies to: Attorney John Wyeth United City of Yorkville Offices 800 Game Farm Rd. Yorkville, IL 60560 Authority to Execute. The signatories of the parties hereto warrant that they have been lawfully authorized by the City Council of the CITY and the Board of Directors of OWNER/DEVELOPER, to execute this Agreement on their behalf. Attorneys' Fees. If a party commences a legal proceeding to enforce any of the terms of this Agreement, the prevailing party in such action shall have the right to recover reasonable attorneys' fees and costs from the other Party to be fixed by the court in the same action. -8- Relationship of the Parties. Nothing herein shall be deemed or construed by the Parties or by any third party as creating the relationship of principal and agent or of partnership of or joint venture between the Parties, it being understood and agreed that no provision herein, nor any acts of the parties, shall be deemed to create any relationship between the parties. Remedies Not Exclusive. Except as may be otherwise expressly provided herein, the various rights and remedies herein contained and reserved to each of the parties, except as herein otherwise expressly provided, are not exclusive of any other right or remedy of such party, but are cumulative and in addition to every other remedy now or hereafter existing at law, in equity or by statute. No delay or omission of the right to exercise any power or remedy by either party shall impair any such right, power or remedy or be construed as a waiver of any default or non- performance or as acquiescence therein. -9- IN WITNESS WHEREOF, this Agreement is entered into at United City of Yorkville, Illinois, as of the date and year shown above. UNITED CITY OF YORKVILLE, an Illinois Municipal Corporation, By: MAYOR Attest: CITY CLERK -10- OWNER/DEVELOPER: DTD INVESTMENTS, LLC By: DEAN A. TOMICH Attest: Dated: Prepared by and Return to: Law Offices of Daniel J. Kramer 1107A S. Bridge Street Yorkville, Illinois 60560 630.553 .9500 -11 - `QED c/).f Reviewed By: J`) 0 Legal ❑ City CCounc�l g 1 L� Esr. '� I` Finance F-1 1636 Engineer ❑ y City Administrator ❑ Agenda Item Tracking Number 9 —J. �O Consultant ❑ City Council Agenda Item Summary Memo Title: DTD Investments-Greenbriar Road Parcel-Economic Incentive Agreement Request City Council/COW/Committee Agenda Date: April 18, 2007 Synopsis: Council Action Previously Taken: Date of Action: Action Taken: Item Number: Type of Vote Required: Council Action Requested: Submitted by: Travis Miller Community Development Name Department Agenda Item Notes: See attached staff report ® United City of Yorkville Memo NOS ^' 800 Game Farm Road E8T. h 1836 Yorkville, Illinois 60560 Telephone: 630-553-8545 o ® ' Fax: 630-553-3436 14.E Date: April 11 , 2007 To: EDC/COW From: Travis Miller, Community Development Director Cc: Lisa Pickering, Deputy Clerk Subject: DTD Investments — Greenbriar Road Parcel Economic Incentive Agreement Request General Comments: - This property consists of 17.65 acres on the northwest corner of route 47 and Greenbriar Road. The property is currently zoned B-3 and recommended for Commercial use by the Comprehensive Plan. Economic Incentive Agreement: The term of the agreement is 20 years and commences on the date of the agreement. This term is consistent with the Economic Incentive Policy and with other approved agreements. The rebate is being requested to cover costs associated with: improvements to Route 47 and Greenbirar Road as is necessitated by IDOT and/or the City; and for the fair market value of property being dedicated for right-of-way. Staff Recommendations: • Staff recommends adding language to items 1) and 2) (page 4) to clarify that these rebates are intended only for costs not included in any other agreed to method of reimbursement. • Staff recommends removing the word "minimum" from the first paragraph under `Development Incentive Reimbursement' (bottom of page 3). The City Council has consistently allowed up to 50% in rebates using this method, therefore 50% is appropriate in this agreement. 1 • Staff recommends adding a provision to the agreement requiring the Owner and Developer to submit a total for the hard costs (`brick and mortar' costs excluding design, legal, engineering, etc.) associated with this project. The rebate amount should not exceed 20% of these total project hard costs. The 20% amount is listed as an Incentive Parameter in the current Economic Incentive Policy. • Staff recommends removing item 3) (page 4) from the agreement. This states the Developer shall receive a rebate of/z of the City Utility taxes collected for a period of 5 years. The Economic Incentive Policy lists the Utility Tax as a potential source for the City to use to rebate funds, however, the source identified for the rebates requested in this agreement is the municipal sales tax. Staff finds no compelling reason to recommend a rebate from the Utility tax in addition to the sales tax rebates contemplated in the agreement. 2 STATE OF ILLINOIS ) ss COUNTY OF KENDALL ) ORDINANCE NO. 2007- AN ORDINANCE AUTHORIZING THE EXECUTION OF A DEVELOPMENT/ECONOMIC INITIATIVE AGREEMENT DTD INVESTMENTS,LLC (Greenbrier Road Parcel) WHEREAS, it is deemed prudent and in the best interest of the UNITED CITY OF YORKVILLE, Kendall County, Illinois, that a certain Development/Economic Initiative Agreement pertaining to the development of real estate described within the Agreement which is attached hereto as and made a part hereof as Exhibit"A" be entered into by the UNITED CITY OF YORKVILLE; and WHEREAS, said Agreement has been drafted and has been considered by the City Council; and WHEREAS, the legal owners of record of the property subject to the Agreement are ready, willing and able to enter into said Agreement and to perform the obligations as required hereunder; and WHEREAS, the reasons for entering into this Agreement and benefits to the City are described within the Agreement and thereby made a part of this Ordinance, and Page 1 of 3 WHEREAS, the statutory procedures including specific findings as required by 65 ILCS 8- 11 -20, as amended, for economic incentive agreements have been complied with, and said findings are contained in the Agreement (Exhibit "A"), 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 preambles, above, are incorporated by this reference as if written in full at this place. Section 2: The Mayor and the City Clerk are herewith authorized and directed to execute, on behalf of the City, the Development/Economic Initiative Agreement concerning certain real estate described therein, a copy of which attached hereto and made a part hereof as Exhibit "A". Section 2: This ordinance shall be in full force and effect from and after its passage and approval as provided by law. JAMES BOCK JOSEPH BESCO VALERIE BURD PAUL JAMES GARY GOLINSKI MARTY MUNNS ROSE SPEARS JASON LESLIE Page 2 of 3 Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this day of A.D. 2007. MAYOR Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this day of A.D. 2007. ATTEST: CITY CLERK Prepared by: John Justin Wyeth City Attorney United City of Yorkville 800 Game Farm Road Yorkville, IL 60560 Page 3 of 3 ��c� - l�i neck Ve rs�av� STATE OF ILLINOIS ) Revised March 1,2007 )as. Revised April 20,2007 COUNTY OF KENDALL ) UNITED CITY OF YORKVILLE AND DTD INVESTMENTS,LLC (GREENBRLIR ROAD PARCEL) DEVELOPMENT/ECONOMIC INITIATIVE AGREEMENT TIIIS DEVELOPMENT AGREEMENT(this "Agreement") is made and entered into as of the_day of ,2007 by and between TILE UNITED CITY OF YORKVILLE, an Illinois corporation located in Kendall County (the "CITY") and DTD INVESTMENTS,LLC(the"OWNER"). RECITALS The CITY is an Illinois municipality and hereby enters into this Agreement pursuant to 65 ILCS 5/8-11-20 (2004) ("Enabling Statute"); and pursuant to Section 6(a) of Article VII of the Constitution of the State of Illinois of 1970,the CITY has determined that it has the authority to enter into this Agreement. The OWNER owns and intends to develop the real property located at the northwest comer of the intersection of Route 47 and Greenbriar Road and legally described in Exhibit"A" (the "Property") for business uses ("Development Project") subject to the zoning ordinance enacted by the CITY. OWNER has demonstrated to the CITY's satisfaction that the OWNER has the experience and capacity to complete the Development Project. The OWNER and the CITY have determined that without the financial assistance provided under this Agreement the Development Project would not be feasible and that the OWNER would not undertake the Development Project. The OWNER has expressly conditioned the undertaking of the Development Project on the CTIY's agreement to pledge the Sales Tax Revenues(defined later) it receives from the Development Project to repay OWNER its Reimbursable Improvements (defined later),all as provided in this Agreement. The CITY deems it to be of significant importance to encourage development within the CITY so as to maintain a viable real estate tax and sales tax base and employment opportunities. Accordingly, the CITY has made the following findings necessary pursuant to the Enabling Statute: -1- That the Property has remained vacant in excess of twenty (20) years; and That the Development Project is expected to create a substantial number of job opportunities within the municipality; and That the Development Project will serve to further the development of adjacent areas; and The CITY has requested that OWNER financially participate in the cost of design and improvement of Illinois Route 47 and Greenbriar Road adjacent to the subject real property as well as related on-site and off-site public utility improvements and site improvements; and That without this Agreement, the Development Project would not be reasonably possible given the off-site costs imposed by the Illinois Department of Transportation and the United City of Yorkville; and That the OWNER meets high standards of creditworthiness and financial strength; and That the Development Project will strengthen the commercial sector of the municipality; and That the Development Project will enhance the tax base of the CITY and all related governmental bodies; and That the Development Project will generate substantial sales tax and utility tax revenues to the CITY; and That this Agreement is made in the best interest of the CITY. Pursuant to the Illinois Municipal Code, as amended ("Code"), the CITY has authority to enter into an economic incentive agreement relating to the development of land within corporate limits, including an agreement to share or rebate a portion of the retailer's occupation taxes received by the CITY that are generated by the development. Subject to the terms and conditions of this Agreement, the CITY agrees to reimburse the OWNER for its Reimbursable Improvements up to twenty percent (20%) of OWNER's total cost of on and off-site public and private improvement costs as are finally incurred and verified by the CITY, based upon the "Reimbursable Improvements" list attached hereto and incorporated herein as Exhibit "B". In reliance upon the CITY's representations and covenants contained in and subject to the terms and conditions of this Agreement, the OWNER intends to cause the Reimbursable Improvements (as hereinafter defined) to be constructed and to enter into construction contracts and other agreements as necessary. -2- This Agreement has been submitted to the corporate authorities of the CITY for consideration and review, and the corporate authorities have given all notices and taken all actions required to be taken prior to the execution of this Agreement to make this Agreement effective. NOW, THEREFORE, to maintain and revitalize business within the CITY by assuring opportunities for development and attracting sound and stable commercial growth; to promote the public interest and to enhance the tax base of the CITY; to induce the OWNER to undertake the Development Project; in consideration of the OWNER's agreement to undertake the Development Project and the CITY's agreement to reimburse the OWNER for the costs of causing the construction of certain of the Reimbursable Improvements; and in consideration of the mutual promises, covenants, stipulations and agreements herein contained in this Agreement, the OWNER and the CITY hereby agree as follows: Incorporation of Recitals. The recitals set forth above are incorporated hereby by this reference as if fully set forth herein. Creation of Economic Incentive Agreements. The CITY acknowledges that an economic incentive agreement for the subject commercial property within the Property will provide incentives for development within the Property, which will provide sales tax benefits to the CITY. The CITY shall, upon application by OWNER or its assigns, pursuant to 65 ILCS 5/8-11-20 (2004) or any other statutory means, enact all ordinances and execute all agreements to share or rebate a fifty percent (50%) portion of the CITY's allocated portion of sales tax revenue as set forth herein to OWNER or as assigned in writing by OWNER, pursuant to the terms provided in this paragraph of the Agreement (hereinafter referred to as "Incentives"). For purposes of this Agreement a "commercial retail user" shall be any user that collects sales tax as part of its operation. The commercial retailer user shall be referred to as the "Generator". The CITY acknowledges that its agreement to execute this Development/Economic Initiative Agreement is a material inducement to OWNER to enter into this Agreement. Development Incentive Reimbursement. Incentives. The OWNER pursuant to the terms of this Agreement shall be repaid 100% _ of its Reimbursable Improvement costs (defined below) out of W o of sales tax generated by any ---- Deleted: a m{nimwn of j "Generator" on the Property or any additional property purchased by OWNER, as evidenced by paid lien waivers and sworn contractor affidavit submitted to the CITY. The CITY shall include interest at the rate of three percent (3%) per annum in excess of prime commercial interest rate as set by Old Second Bank — Yorkville on the Reimbursable Improvement calculation for the balance of Reimbursable Improvements incurred by OWNER. Interest shall be calculated annually and shall commence with the Certificate of Occupancy being issued to the fast store (or -3- other business operator) on the Property. OWNER shall be entitled to recover up to the total amount of the Reimbursable Improvement calculation plus interest for a period of twenty (20) years commencing from the date of the execution of this Agreement. In the event OWNER recovers its full Reimbursable Improvement plus interest calculation prior to that expiration time, the right to recovery shall terminate earlier than the previous stated expiration date. In the event OWNER has not received all of its Reimbursable Improvements calculation and interest upon said expiration date, the Agreement shall be treated as expired. Interest shall not be compounded. These Reimbursable Improvements include, but are not limited to, the following: 1) Construction of any on-site or off-site Illinois State Route 47 and Greenbriar Road improvements intersection, signalization, or other improvements on Greenbriar Road or Route 47 as is necessitated by IDOT or the CITY for the development of the subject property and handling ambient traffic benefiting from said roadway improvements_ not reimbursed from other sources. 2) The Fair Market Value of any real property, determined by Appraisal Figure agreed to by OWNER and CITY at the time of any dedication or taking of real property for right-of-way purposes at the time of said real property is dedicated or taken for said purposes by either the United City of Yorkville or the Illinois Department of Transportation, not reimbursed from other sources. 3) The OWNER and DEVELOPER shall submit a total for the hard costs (` brick and — Deleted: OWNER shall furdorreceive mortar' costs excluding design. le al engineering. eteJ associated with this arebate ofonnhalf(12) of CITY Utility g Taxes collected for a period of five (5) project when completed The rebate amount should not exceed 20% of these total years from the date first collected. project hard costs. The CITY shall distribute the sales tax revenue generated by any Generator as follows: 50% to the OWNER, or as directed by the OWNER; and Sales Tax and Sales Tax Revenue Defined. The term Sales Tax used herein refers to revenues generated by the sale of merchandise from and collected under the Retailer's Occupation Tax, or any other "sales tax" or similar tax that may be enacted by the State of Illinois or any governmental agency or body created under the laws of the State of Illinois, based upon gross sales, and located within the State of Illinois, that is collected by the Generators as a result of business transactions occurring on the Property. In the event that the CITY's share of said sales tax or substitute tax is reduced or increased by the State, then the affected Generator's share thereof shall be reduced or increased in the same proportion. Payment Obligation. The CITY hereby agrees to pay OWNER or its assignee the quarterly installment payments made to the CITY by the Illinois Department of Revenue within thirty (30) days of receipt by the CITY of the quarterly installments, and continuing until the Reimbursable Improvements and applicable interest are paid to the OWNER as set out in this Deleted: I Agreement. .— - q The "quarterly installment payment" shall mean an amount equal to one-half (%) of the sales tax revenue received by the CITY from the State generated by each Generator on the Property, or any additions to the Property. All amounts paid to the OWNER will be due and payable solely from one-half ('/z) or as adjusted under this Agreement of the sales tax revenues received by the CITY from any Generator's sales for the preceding calendar quarter. However, if the CITY no longer receives sales tax revenues from the Generator due to a change in Illinois statutes, then the CITY shall make payments to the OWNER from any alternate sources of revenue provided to the CITY by the State, if any are made, specifically as a replacement or substitute for sales tax revenue presently received by the CITY. Verification of Costs. Following construction of the Reimbursable Improvements, OWNER shall provide the CITY with final lien waivers and sworn contractor affidavit establishing the cost of such improvements. Commencement Date. The terms of this Agreement shall be for Twenty (20) years commencing upon the execution and approval of this Agreement by the CITY. Sources of Funds to Pay Reimbursable Development Project Costs. Funds necessary to pay for the Incentives are to be solely derived from the additional sales tax generated by the Generators. This pledge of additional sales tax revenues hereby is approved by the CITY. In order to comply with the terms of this Agreement, OWNER shall require in writing all tenants in the Property and to any subsequent purchasers of any portion of the Property to direct the Illinois Department of Revenue to provide the CITY with a breakdown of sales tax being remitted to the CITY for each commercial retailer on-site. In the event OWNER or a commercial retailer fails to provide the CITY with written authority for release of said information from the Illinois Department of Revenue the CITY shall have no duty to remit sales tax proceeds from that commercial retailer to the OWNER. Assignability. 1) It is expressly agreed and understood by the parties to this Agreement that the benefits contemplated in the Development/Economic Initiative Agreement and pursuant to 65 ILCS 5/8-11-20 (2004) are assignable at the option of the OWNER. Upon such written assignment by the OWNER, Generator shall have all rights currently vested in the OWNER under the Development Agreements, this Ordinance and applicable law, and shall be entitled to enforce same by any legal or equitable remedy. If any Lot is sold by the OWNER, OWNER shall be entitled to continue to receive payments for Reimbursable Improvements pursuant to the Development/Economic Initiative Agreement unless specifically assigned by the OWNER. 2) OWNER may assign a portion or all of its rights under the terms of this Agreement to any future developers, owners, or institutions or individuals providing financing for the improvements outlined above in this Agreement. -5- Reimbursement Procedures. Sales Tax Reports. OWNER agrees to cause all Generators to execute and deliver to the CITY a written direction, in form and content acceptable to the CITY and the Illinois Department of Revenue ('DOW'), authorizing the DOR to release to the CITY the sales tax figures for the Generator, on a quarterly basis and during the term of this Agreement. The CITY agrees to take the necessary action to initiate the transaction. Should the DOR cease to release the sales tax information to the CITY on a quarterly basis, OWNER and all Generators shall be responsible for any further action to obtain the sales tax information from the DOR or shall be responsible for submittal of the sales tax information from the DOR or shall be responsible for submittal of the sales tax information as provided for in the next paragraph of this Agreement. In the event the DOR fails to submit to the CITY the quarterly sales tax information for any Generator as provided for in Section A above, OWNER shall cause Generators to, contemporaneous with the filing of sales tax reports with the Illinois Department of Revenue or successor agency, furnish to the CITY copies of any and all sales tax returns, sales tax reports, amendments, or any other paper filed with the State of Illinois, said Department of Revenue or other appropriate governmental entity, pertaining to the Generators, and certified as being true and correct, which documents are being provided to the CITY for purposes of identifying sales tax revenues collected pursuant to this Agreement. Confdentialiri. The CITY acknowledges and agrees that information to be provided by Generators hereunder are proprietary and valuable information and that any disclosure or unauthorized use thereof will cause irreparable harm to OWNER and/or OWNER'S affiliates and/or Generator and/or Generator's affiliates, and to the extent permitted by state of federal law, including but not limited to Section 7(1)(g) of the Illinois Freedom of Information Act, the CITY agrees to hold in confidence all sales figures and other information provided by OWNER or Generators or obtained from OWNER'S or Generator's records in connection with this Agreement, and in connection therewith, the CITY shall not copy any such information except as necessary for dissemination to the CITY's agents or employees as permitted hereinafter. The CITY shall be permitted to disclose such information (i) to its agents or employees who are reasonably deemed by the CITY to have a need to know such information for purposes of this Agreement; provided, that such agents and employees shall hold in confidence such information to the extent required of the CITY hereunder or (ii) to the extent required by order of court or by state of federal law. The confidentiality requirements of this Agreement shall survive any expiration, termination or cancellation of this Agreement and shall continue to bind the CITY, its successors, assigns and legal representatives for a period of five (5) years from the termination, expiration or cancellation of this Agreement. All Generators shall be treated as third party beneficiaries to this Confidentiality provision. Audit. Each payment by the CITY to OWNER shall be accompanied by a statement executed by the City Treasurer or the Treasurer's designee, setting forth the calculations of such payment and identifying the sales tax return period to which the payment relates. The City Treasurer or the Treasurer's designee shall further issue a statement setting forth all payments made to date to -6- OWNER. OWNER shall have one (1) year following the receipt of said payment to contest any of the calculations or information contained in said statements. OWNER shall have the right to review all sales tax reports provided to the CITY by the state relating to any Generator upon two days written request by OWNER. Def nilt/Riaht to Cure. No party shall be deemed in default hereunder until such Party has failed to cure the alleged default with ten (10) days in the case of a monetary default, or within thirty (30) days in the case of a non-monetary default, from notice of such default from the other Party; provided, however, if the nature of such non-monetary default is such that it cannot reasonably be cured within such thirty (30) days period, then such Party shall not be deemed in default if such Party commences to cure such default within such thirty (30) day period and thereafter diligently prosecutes such cure to completion. In the event of a default and except as may be otherwise provided herein to the contrary, the non-defaulting party may: (i) terminate this Agreement upon written notice to the defaulting party, recover from the defaulting party all damages incurred by the non-defaulting party; (ii) except as may be otherwise expressly provided to the contrary herein, seek specific performance of this Agreement, and, in addition, recover all damages incurred by the non-defaulting party; (the parties declare it to be their intent that this Agreement may be specifically enforced); (iii) pursue all other remedies available at law, it being the intent of the parties that remedies be cumulative and liberally enforced so as to adequately and completely compensate the non- defaulting party. No Obligation to Develop. Open or Operate. Nothing contained in this Agreement shall be deemed to obligate OWNER, Generator or any of Generator's affiliates to construct any improvements on the Property or to open or operate any form of business in the Property for any period of time or at all. Additional Covenants. Time. Time is of the essence unless otherwise stated in this Agreement and all time limits set forth are mandatory and cannot be waived except by a lawfully authorized and executed written waiver by the party excusing such timely performance. Binding g ffect. This Agreement shall be construed and enforced in accordance with the laws of the State of Illinois. Severabilitv. If any provision of this Agreement is held invalid by a court of competent jurisdiction or in the event such a court shall determine that the CITY does not have the power to perform any such provision, such provision shall be deemed to be excised herefrom and the invalidity thereof shall not affect any of the other provisions contained herein. -7- Notices. All notices and requests required pursuant to this Agreement shall be sent by certified mail as follows: To Owner: DTD Investments, LLC Attn: Dean Tomich 2250 Weber Rd. Crest Hill, IL 60435 To Owner's Attorney: Law Offices of Daniel J. Kramer 1107A S. Bridge Street Yorkville, IL 60560 With copies to: Attorney John Wyeth United City of Yorkville Offices 800 Game Farm Rd. Yorkville, IL 60560 Authority to Execute. The signatories of the parties hereto warrant that they have been lawfully authorized by the City Council of the CITY and the Board of Directors of DEVELOPER, to execute this Agreement on their behalf. Attorneys' Fees. If a party commences a legal proceeding to enforce any of the terms of this Agreement, the prevailing party in such action shall have the right to recover reasonable attorneys' fees and costs from the other Party to be fixed by the court in the same action. Relationship of the Parties. Nothing herein shall be deemed or construed by the Parties or by any third party as creating the relationship of principal and agent or of partnership of or-joint venture between the Parties, it being understood and agreed that no provision herein, nor any acts of the parties, shall be deemed to create any relationship between the parties. Remedies Not Exclusive. Except as may be otherwise expressly provided herein, the various rights and remedies herein contained and reserved to each of the parties, except as herein otherwise expressly provided, are not exclusive of any other right or remedy of such party, but are cumulative and in addition to every other remedy now or hereafter existing at law, in equity or by statute. No delay or omission of the right to exercise any power or remedy by either party shall impair any such right, power or remedy or be construed as a waiver of any default or non- performance or as acquiescence therein. -8- IN WITNESS WHEREOF, this Agreement is entered into at United City of Yorkville, Illinois, as of the date and year shown above. UNITED CITY OF YORKVILLE, an Illinois Municipal Corporation, By: MAYOR Attest: CITY CLERK -9- OWNER DTD INVESTMENTS, LLC By: DEAN A. TOMICH Attest: Dated: Prepared by and Return to: Law Offices of Daniel J. Kramer 1107A S. Bridge Street Yorkville, Illinois 60560 630.553.9500 -10- CLEAN VE2;t)i©� Revised April 20,2007 STATE OF ILLINOIS )ss. COUNTY OF KENDALL ) UNITED CITY OF YORKVILLE AND DTD INVESTMENTS,LLC (GREENBRIAR ROAD PARCEL) DEVELOPMENT/ECONOMIC INITIATIVE AGREEMENT THIS DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into as of the day of , 2007 by and between THE UNITED CITY OF YORKVILLE, an Illinois corporation located in Kendall County (the "CITY") and DTD INVESTMENTS, LLC (the"OWNER"). RECITALS The CITY is an Illinois municipality and hereby enters into this Agreement pursuant to 65 ILCS 5/8-11-20 (2004) ("Enabling Statute"); and pursuant to Section 6(a) of Article VII of the Constitution of the State of Illinois of 1970, the CITY has determined that it has the authority to enter into this Agreement. The OWNER owns and intends to develop the real property located at the northwest corner of the intersection of Route 47 and Greenbriar Road and legally described in Exhibit"A" (the "Property") for business uses ("Development Project") subject to the zoning ordinance enacted by the CITY. OWNER has demonstrated to the CITY's satisfaction that the OWNER has the experience and capacity to complete the Development Project. The OWNER and the CITY have determined that without the financial assistance provided under this Agreement the Development Project would not be feasible and that the OWNER would not undertake the Development Project. The OWNER has expressly conditioned the undertaking of the Development Project on the CITY's agreement to pledge the Sales Tax Revenues (defined later) it receives from the Development Project to repay OWNER its Reimbursable Improvements (defined later), all as provided in this Agreement. The CITY deems it to be of significant importance to encourage development within the CITY so as to maintain a viable real estate tax and sales tax base and employment opportunities. Accordingly, the CITY has made the following findings necessary pursuant to the Enabling Statute: -1- That the Property has remained vacant in excess of twenty (20) years; and That the Development Project is expected to create a substantial number of job opportunities within the municipality; and That the Development Project will serve to further the development of adjacent areas; and The CITY has requested that OWNER financially participate in the cost of design and improvement of Illinois Route 47 and Greenbriar Road adjacent to the subject real property as well as related on-site and off-site public utility improvements and site improvements; and That without this Agreement, the Development Project would not be reasonably possible given the off-site costs imposed by the Illinois Department of Transportation and the United City of Yorkville; and That the OWNER meets high standards of creditworthiness and financial strength; and That the Development Project will strengthen the commercial sector of the municipality; and That the Development Project will enhance the tax base of the CITY and all related governmental bodies; and That the Development Project will generate substantial sales tax and utility tax revenues to the CITY; and That this Agreement is made in the best interest of the CITY. Pursuant to the Illinois Municipal Code, as amended ("Code"), the CITY has authority to enter into an economic incentive agreement relating to the development of land within corporate limits, including an agreement to share or rebate a portion of the retailer's occupation taxes received by the CITY that are generated by the development. Subject to the terms and conditions of this Agreement, the CITY agrees to reimburse the OWNER for its Reimbursable Improvements up to twenty percent (20%) of OWNER's total cost of on and off-site public and private improvement costs as are finally incurred and verified by the CITY, based upon the "Reimbursable Improvements" list attached hereto and incorporated herein as Exhibit `B". In reliance upon the CITY's representations and covenants contained in and subject to the terms and conditions of this Agreement, the OWNER intends to cause the Reimbursable Improvements (as hereinafter defined) to be constructed and to enter into construction contracts and other agreements as necessary. -2- This Agreement has been submitted to the corporate authorities of the CITY for consideration and review, and the corporate authorities have given all notices and taken all actions required to be taken prior to the execution of this Agreement to make this Agreement effective. NOW, THEREFORE, to maintain and revitalize business within the CITY by assuring opportunities for development and attracting sound and stable commercial growth; to promote the public interest and to enhance the tax base of the CITY; to induce the OWNER to undertake the Development Project; in consideration of the OWNER's agreement to undertake the Development Project and the CITY's agreement to reimburse the OWNER for the costs of causing the construction of certain of the Reimbursable Improvements; and in consideration of the mutual promises, covenants, stipulations and agreements herein contained in this Agreement, the OWNER and the CITY hereby agree as follows: Incorporation of Recitals. The recitals set forth above are incorporated hereby by this reference as if fully set forth herein. Creation of Economic Incentive Agreements. The CITY acknowledges that an economic incentive agreement for the subject commercial property within the Property will provide incentives for development within the Property, which will provide sales tax benefits to the CITY. The CITY shall, upon application by OWNER or its assigns, pursuant to 65 ILCS 5/8-11 -20 (2004) or any other statutory means, enact all ordinances and execute all agreements to share or rebate a fifty percent (50%) portion of the CITY's allocated portion of sales tax revenue as set forth herein to OWNER or as assigned in writing by OWNER, pursuant to the terms provided in this paragraph of the Agreement (hereinafter referred to as "Incentives"). For purposes of this Agreement a "commercial retail user" shall be any user that collects sales tax as part of its operation. The commercial retailer user shall be referred to as the "Generator". The CITY acknowledges that its agreement to execute this Development/Economic Initiative Agreement is a material inducement to OWNER to enter into this Agreement. Development Incentive Reimbursement. Incentives. The OWNER pursuant to the terms of this Agreement shall be repaid 100% of its Reimbursable Improvement costs (defined below) out of 50% of sales tax generated by any "Generator" on the Property or any additional property purchased by OWNER, as evidenced by paid lien waivers and sworn contractor affidavit submitted to the CITY. The CITY shall include interest at the rate of three percent (3 %) per annum in excess of prime commercial interest rate as set by Old Second Bank — Yorkville on the Reimbursable Improvement calculation for the balance of Reimbursable Improvements incurred by OWNER. Interest shall be calculated annually and shall commence with the Certificate of Occupancy being issued to the first store (or -3- other business operator) on the Property. OWNER shall be entitled to recover up to the total amount of the Reimbursable Improvement calculation plus interest for a period of twenty (20) years commencing from the date of the execution of this Agreement. In the event OWNER recovers its full Reimbursable Improvement plus interest calculation prior to that expiration time, the right to recovery shall terminate earlier than the previous stated expiration date. In the event OWNER has not received all of its Reimbursable Improvements calculation and interest upon said expiration date, the Agreement shall be treated as expired. Interest shall not be compounded. These Reimbursable Improvements include, but are not limited to, the following: 1) Construction of any on-site or off-site Illinois State Route 47 and Greenbriar Road improvements intersection, signalization, or other improvements on Greenbriar Road or Route 47 as is necessitated by IDOT or the CITY for the development of the subject property and handling ambient traffic benefiting from said roadway improvements, not reimbursed from other sources. 2) The Fair Market Value of any real property, determined by Appraisal Figure agreed to by OWNER and CITY at the time of any dedication or taking of real property for right-of-way purposes at the time of said real property is dedicated or taken for said purposes by either the United City of Yorkville or the Illinois Department of Transportation, not reimbursed from other sources. 3) The OWNER and DEVELOPER shall submit a total for the hard costs (`brick and mortar' costs excluding design, legal, engineering, etc.) associated with this project when completed. The rebate amount should not exceed 20% of these total project hard costs. The CITY shall distribute the sales tax revenue generated by any Generator as follows: 50% to the OWNER, or as directed by the OWNER; and Sales Tax and Sales Tax Revenue Defined. The term Sales Tax used herein refers to revenues generated by the sale of merchandise from and collected under the Retailer's Occupation Tax, or any other "sales tax" or similar tax that may be enacted by the State of Illinois or any governmental agency or body created under the laws of the State of Illinois, based upon gross sales, and located within the State of Illinois, that is collected by the Generators as a result of business transactions occurring on the Property. In the event that the CITY's share of said sales tax or substitute tax is reduced or increased by the State, then the affected Generator's share thereof shall be reduced or increased in the same proportion. Payment Obligation. The CITY hereby agrees to pay OWNER or its assignee the quarterly installment payments made to the CITY by the Illinois Department of Revenue within thirty (30) days of receipt by the CITY of the quarterly installments, and continuing until the Reimbursable Improvements and applicable interest are paid to the OWNER as set out in this Agreement. -4- The "quarterly installment payment" shall mean an amount equal to one-half ('/�) of the sales tax revenue received by the CITY from the State generated by each Generator on the Property, or any additions to the Property. All amounts paid to the OWNER will be due and payable solely from one-half ('/z) or as adjusted under this Agreement of the sales tax revenues received by the CITY from any Generator's sales for the preceding calendar quarter. However, if the CITY no longer receives sales tax revenues from the Generator due to a change in Illinois statutes, then the CITY shall make payments to the OWNER from any alternate sources of revenue provided to the CITY by the State, if any are made, specifically as a replacement or substitute for sales tax revenue presently received by the CITY. Verification of Costs. Following construction of the Reimbursable Improvements, OWNER shall provide the CITY with final lien waivers and sworn contractor affidavit establishing the cost of such improvements. Commencement Date. The terms of this Agreement shall be for Twenty (20) years commencing upon the execution and approval of this Agreement by the CITY. Sources of Funds to Pay Reimbursable Development Project Costs. Funds necessary to pay for the Incentives are to be solely derived from the additional sales tax generated by the Generators. This pledge of additional sales tax revenues hereby is approved by the CITY. In order to comply with the terms of this Agreement, OWNER shall require in writing all tenants in the Property and to any subsequent purchasers of any portion of the Property to direct the Illinois Department of Revenue to provide the CITY with a breakdown of sales tax being remitted to the CITY for each commercial retailer on-site. In the event OWNER or a commercial retailer fails to provide the CITY with written authority for release of said information from the Illinois Department of Revenue the CITY shall have no duty to remit sales tax proceeds from that commercial retailer to the OWNER. Assienability. I) It is expressly agreed and understood by the parties to this Agreement that the benefits contemplated in the Development/Economic Initiative Agreement and pursuant to 65 ILCS 5/8-11-20 (2004) are assignable at the option of the OWNER. Upon such written assignment by the OWNER, Generator shall have all rights currently vested in the OWNER under the Development Agreements, this Ordinance and applicable law, and shall be entitled to enforce same by any legal or equitable remedy. If any Lot is sold by the OWNER, OWNER shall be entitled to continue to receive payments for Reimbursable Improvements pursuant to the Development/Economic Initiative Agreement unless specifically assigned by the OWNER. 2) OWNER may assign a portion or all of its rights under the terms of this Agreement to any future developers, owners, or institutions or individuals providing financing for the improvements outlined above in this Agreement. -5- Reimbursement Procedures. Sales Tax Reports. OWNER agrees to cause all Generators to execute and deliver to the CITY a written direction, in form and content acceptable to the CITY and the Illinois Department of Revenue ("DOR"), authorizing the DOR to release to the CITY the sales tax figures for the Generator, on a quarterly basis and during the term of this Agreement. The CITY agrees to take the necessary action to initiate the transaction. Should the DOR cease to release the sales tax information to the CITY on a quarterly basis, OWNER and all Generators shall be responsible for any further action to obtain the sales tax information from the DOR or shall be responsible for submittal of the sales tax information from the DOR or shall be responsible for submittal of the sales tax information as provided for in the next paragraph of this Agreement. In the event the DOR fails to submit to the CITY the quarterly sales tax information for any Generator as provided for in Section A above, OWNER shall cause Generators to, contemporaneous with the filing of sales tax reports with the Illinois Department of Revenue or successor agency, furnish to the CITY copies of any and all sales tax returns, sales tax reports, amendments, or any other paper filed with the State of Illinois, said Department of Revenue or other appropriate governmental entity, pertaining to the Generators, and certified as being true and correct, which documents are being provided to the CITY for purposes of identifying sales tax revenues collected pursuant to this Agreement. Confidentiality. The CITY acknowledges and agrees that information to be provided by Generators hereunder are proprietary and valuable information and that any disclosure or unauthorized use thereof will cause irreparable harm to OWNER and/or OWNER's affiliates and/or Generator and/or Generator' s affiliates, and to the extent permitted by state of federal law, including but not limited to Section 7(1)(g) of the Illinois Freedom of Information Act, the CITY agrees to hold in confidence all sales figures and other information provided by OWNER or Generators or obtained from OWNER's or Generator's records in connection with this Agreement, and in connection therewith, the CITY shall not copy any such information except as necessary for dissemination to the CITY's agents or employees as permitted hereinafter. The CITY shall be permitted to disclose such information (i) to its agents or employees who are reasonably deemed by the CITY to have a need to know such information for purposes of this Agreement; provided, that such agents and employees shall hold in confidence such information to the extent required of the CITY hereunder or (ii) to the extent required by order of court or by state of federal law. The confidentiality requirements of this Agreement shall survive any expiration, termination or cancellation of this Agreement and shall continue to bind the CITY, its successors, assigns and legal representatives for a period of five (5) years from the termination, expiration or cancellation of this Agreement. All Generators shall be treated as third party beneficiaries to this Confidentiality provision. Audit. Each payment by the CITY to OWNER shall be accompanied by a statement executed by the City Treasurer or the Treasurer's designee, setting forth the calculations of such payment and identifying the sales tax return period to which the payment relates. The City Treasurer or the Treasurer's designee shall further issue a statement setting forth all payments made to date to -6- OWNER. OWNER shall have one (1 ) year following the receipt of said payment to contest any of the calculations or information contained in said statements. OWNER shall have the right to review all sales tax reports provided to the CITY by the state relating to any Generator upon two days written request by OWNER. Default/Right to Cure. No party shall be deemed in default hereunder until such Party has failed to cure the alleged default with ten (10) days in the case of a monetary default, or within thirty (3 0) days in the case of a non-monetary default, from notice of such default from the other Party; provided, however, if the nature of such non-monetary default is such that it cannot reasonably be cured within such thirty (30) days period, then such Party shall not be deemed in default if such Party commences to cure such default within such thirty (30) day period and thereafter diligently prosecutes such cure to completion. In the event of a default and except as may be otherwise provided herein to the contrary, the non-defaulting party may: (i) terminate this Agreement upon written notice to the defaulting party, recover from the defaulting party all damages incurred by the non-defaulting party; (ii) except as may be otherwise expressly provided to the contrary herein, seek specific performance of this Agreement, and, in addition, recover all damages incurred by the non-defaulting party; (the parties declare it to be their intent that this Agreement may be specifically enforced); (iii) pursue all other remedies available at law, it being the intent of the parties that remedies be cumulative and liberally enforced so as to adequately and completely compensate the non- defaulting party. No Obligation to Develop, Open or Operate. Nothing contained in this Agreement shall be deemed to obligate OWNER, Generator or any of Generator's affiliates to construct any improvements on the Property or to open or operate any form of business in the Property for any period of time or at all. Additional Covenants. Time. Time is of the essence unless otherwise stated in this Agreement and all time limits set forth are mandatory and cannot be waived except by a lawfully authorized and executed written waiver by the party excusing such timely performance. Binding Effect. This Agreement shall be construed and enforced in accordance with the laws of the State of Illinois. Severability. If any provision of this Agreement is held invalid by a court of competent jurisdiction or in the event such a court shall determine that the CITY does not have the power to perform any such provision, such provision shall be deemed to be excised herefrom and the invalidity thereof shall not affect any of the other provisions contained herein. -7- Notices. All notices and requests required pursuant to this Agreement shall be sent by certified mail as follows: To Owner: DTD Investments, LLC Attn: Dean Tomich 2250 Weber Rd. Crest Hill, IL 60435 To Owner's Attorney: Law Offices of Daniel J. Kramer 1107A S. Bridge Street Yorkville, IL 60560 With copies to: Attorney John Wyeth United City of Yorkville Offices 800 Game Farm Rd. Yorkville, IL 60560 Authority to Execute. The signatories of the parties hereto warrant that they have been lawfully authorized by the City Council of the CITY and the Board of Directors of DEVELOPER, to execute this Agreement on their behalf. Attorneys' Fees. If a party commences a legal proceeding to enforce any of the terms of this Agreement, the prevailing party in such action shall have the right to recover reasonable attorneys' fees and costs from the other Party to be fixed by the court in the same action. Relationship of the Parties. Nothing herein shall be deemed or construed by the Parties or by any third party as creating the relationship of principal and agent or of partnership of or joint venture between the Parties, it being understood and agreed that no provision herein, nor any acts of the parties, shall be deemed to create any relationship between the parties. Remedies Not Exclusive. Except as may be otherwise expressly provided herein, the various rights and remedies herein contained and reserved to each of the parties, except as herein otherwise expressly provided, are not exclusive of any other right or remedy of such party, but are cumulative and in addition to every other remedy now or hereafter existing at law, in equity or by statute. No delay or omission of the right to exercise any power or remedy by either party shall impair any such right, power or remedy or be construed as a waiver of any default or non- performance or as acquiescence therein. 8 IN WITNESS WHEREOF, this Agreement is entered into at United City of Yorkville, Illinois, as of the date and year shown above. UNITED CITY OF YORKVILLE, an Illinois Municipal Corporation, By: MAYOR Attest: CITY CLERK -9- OWNER DTD INVESTMENTS, LLC By: DEAN A. TOMICH Attest: Dated: Prepared by and Return to: Law Offices of Daniel J. Kramer 1107A S. Bridge Street Yorkville, Illinois 60560 630.553.9500 -10-