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Economic Development Packet 2018 08-07-18 AGENDA ECONOMIC DEVELOPMENT COMMITTEE MEETING Tuesday, August 7, 2018 6:00 p.m. City Hall Conference Room 800 Game Farm Road, Yorkville, IL Citizen Comments: Minutes for Correction/Approval: July 3, 2018 New Business: 1. EDC 2018-55 Building Permit Report for June 2018 2. EDC 2018-56 Building Inspection Report for June 2018 3. EDC 2018-57 Property Maintenance Report for June 2018 4. EDC 2018-58 Economic Development Report for July 2018 5. EDC 2018-59 Payment of Materials to All Union Fence for Proposed Work at 206 Heustis Street 6. EDC 2018-60 Prestwick of Yorkville – Unit 1 (Ashley Pointe Subdivision) – Restated Declarations of HOA Covenants and Estoppel Letter Old Business: Additional Business: 2018/2019 City Council Goals – Economic Development Committee Goal Priority Staff “Manufacturing and Industrial Development” 1 Bart Olson, Krysti Barksdale-Noble, Erin Willrett, Lynn Dubajic, Eric Dhuse & Brad Sanderson “Downtown Planning” 2 Bart Olson, Krysti Barksdale-Noble & Erin Willrett “Riverfront Development” 3 Bart Olson, Tim Evans & Krysti Barksdale-Noble “Southside Development” 4 Bart Olson, Krysti Barksdale-Noble & Lynn Dubajic “Revenue Growth” 8 Rob Fredrickson, Krysti Barksdale-Noble & Lynn Dubajic “Entrance Signage” 12 Krysti Barksdale-Noble & Erin Willrett United City of Yorkville 800 Game Farm Road Yorkville, Illinois 60560 Telephone: 630-553-4350 www.yorkville.il.us UNITED CITY OF YORKVILLE WORKSHEET ECONOMIC DEVELOPMENT COMMITTEE Tuesday, August 7, 2018 6:00 PM CITY HALL CONFERENCE ROOM --------------------------------------------------------------------------------------------------------------------------------------- CITIZEN COMMENTS: --------------------------------------------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------------------------------------------- MINUTES FOR CORRECTION/APPROVAL: --------------------------------------------------------------------------------------------------------------------------------------- 1. July 3, 2018 □ Approved __________ □ As presented □ With corrections --------------------------------------------------------------------------------------------------------------------------------------- NEW BUSINESS: --------------------------------------------------------------------------------------------------------------------------------------- 1. EDC 2018-55 Building Permit Report for June 2018 □ Moved forward to CC __________ consent agenda? Y N □ Approved by Committee __________ □ Bring back to Committee __________ □ Informational Item □ Notes ___________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ --------------------------------------------------------------------------------------------------------------------------------------- 2. EDC 2018-56 Building Inspection Report for June 2018 □ Moved forward to CC __________ consent agenda? Y N □ Approved by Committee __________ □ Bring back to Committee __________ □ Informational Item □ Notes ___________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ --------------------------------------------------------------------------------------------------------------------------------------- 3. EDC 2018-57 Property Maintenance Report for June 2018 □ Moved forward to CC __________ consent agenda? Y N □ Approved by Committee __________ □ Bring back to Committee __________ □ Informational Item □ Notes ___________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ --------------------------------------------------------------------------------------------------------------------------------------- 4. EDC 2018-58 Economic Development Report for July 2018 □ Moved forward to CC __________ consent agenda? Y N □ Approved by Committee __________ □ Bring back to Committee __________ □ Informational Item □ Notes ___________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ --------------------------------------------------------------------------------------------------------------------------------------- 5. EDC 2018-59 Payment of Materials to All Union Fence for Proposed Work at 206 Heustis Street □ Moved forward to CC __________ consent agenda? Y N □ Approved by Committee __________ □ Bring back to Committee __________ □ Informational Item □ Notes ___________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ --------------------------------------------------------------------------------------------------------------------------------------- 6. EDC 2018-60 Prestwick of Yorkville – Unit 1 (Ashley Pointe Subdivision) – Restated Declarations of HOA Covenants and Estoppel Letter □ Moved forward to CC __________ consent agenda? Y N □ Approved by Committee __________ □ Bring back to Committee __________ □ Informational Item □ Notes ___________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ -------------------------------------------------------------------------------------------------------------------------------------- ADDITIONAL BUSINESS: --------------------------------------------------------------------------------------------------------------------------------------- Have a question or comment about this agenda item? Call us Monday-Friday, 8:00am to 4:30pm at 630-553-4350, email us at agendas@yorkville.il.us, post at www.facebook.com/CityofYorkville, tweet us at @CityofYorkville, and/or contact any of your elected officials at http://www.yorkville.il.us/320/City-Council Agenda Item Summary Memo Title: Meeting and Date: Synopsis: Council Action Previously Taken: Date of Action: Action Taken: Item Number: Type of Vote Required: Council Action Requested: Submitted by: Agenda Item Notes: Reviewed By: Legal Finance Engineer City Administrator Human Resources Community Development Police Public Works Parks and Recreation Agenda Item Number Minutes Tracking Number Minutes of the Economic Development Committee – July 3, 2018 Economic Development Committee – August 7, 2018 Majority Committee Approval Minute Taker Name Department Page 1 of 3 DRAFT UNITED CITY OF YORKVILLE ECONOMIC DEVELOPMENT COMMITTEE Tuesday, July 3, 2018, 6:00pm City Conference Room In Attendance: Committee Members Chairman Ken Koch Alderman Alex Hernandez Alderman Carlo Colosimo Alderman Joel Frieders Other City Officials City Administrator Bart Olson Senior Planner Jason Engberg Community Development Director Krysti Barksdale-Noble Alderman Chris Funkhouser Code Official Pete Ratos Other Guests Lynn Dubajic, City Consultant The meeting was called to order by Chairman Ken Koch at 6:00pm. Citizen Comments: None Minutes for Correction/Approval: June 5, 2018 Alderman Colosimo asked to have more detail included in the forced annexation discussion, reflecting that it is the resident's option to connect to well/city services. The minutes were approved with that revision on a unanimous voice vote. New Business 1. EDC 2018-49 Building Permit Report for May 2018 Mr. Ratos said there were 18 single family homes, 83 miscellaneous (fences/decks) and 12 commercial permits issued. Mr. Olson noted single family homes were 40% higher in a year-over-year comparison. 2. EDC 2018-50 Building Inspection Report for May 2018 Inspections for May totaled 196, many of which were single-family. Mr. Ratos said inspections will skyrocket due to building by Horton. 3. EDC 2018-51 Property Maintenance Report for May 2018 One violation for rubbish resulted in a hearing, however, the trash was eventually moved and the case dismissed. Chairman Koch inquired about the tall grass issue on south Rt. 47. The owner requested a variance to allow the grass to grow taller than 8 inches and any further correspondence will be referred to the city attorney. A property across the street under different ownership was also in violation for tall grass. Alderman Colosimo Page 2 of 3 reported gravel being dumped and skids of grass left on the road in Windett Ridge. Mr. Ratos asked to be notified in these cases and said he has cited one builder. There was a brief discussion of how this property has changed ownership several times. 4. EDC 2018-52 Economic Development Report for June 2018 Ms. Dubajic reported the following: 1. Burger King will build next to Jiffy Lube. 2. Previous Hardee's building will be re-purposed to another national restaurant. Alderman Frieders asked if access can be given there and to the Dunkin' Donuts. An agreement would be needed among the property owners. 3. New tenant will be located in the Cobblestone space, will open a sandwich/coffee/tea restaurant and a retail component, open in September. 4. Opening for banquet hall on south side, pushed back to December. 5. Aldi's has begun their remodel, will close end of August through September. Number of parking spaces has diminished temporarily. 5. EDC 2018-53 B&F Inspection Agreement Amendment The number of inspections has increased greatly and the previous agreement with B&F included commercial inspections. B&F has started to do home inspections as well and there was no fee included in the original agreement. Their standard fee is $40 for a single family inspection and $80 minimum per day, per inspector. Ms. Noble requested an addendum to the original agreement. Alderman Colosimo asked if an analysis has been done to determine if it is more efficient to hire a full or part-time employee for the city. Staff is still reviewing that option and Mr. Ratos added his department did 4,800 inspections last year. This items moves to the consent agenda. 6. EDC 2018-54 Downtown Overlay District The committee discussed the feedback from the June 22nd open house which 10 people attended and Ms. Noble also asked for feedback from the committee. Alderman Colosimo said the visuals such as graphs and photos were very helpful. Alderman Hernandez commented that turning onto Rt. 47 from Hydraulic is very dangerous and that traffic needs to be slowed. Suggestions were a mirror for more visibility, barricading Hydraulic at Rt. 47 on the east side for pedestrian use and pavement treatments to slow traffic. If Hydraulic is shut down, it was noted there are still some businesses that operate on E. Hydraulic. Staff will investigate ingress/egress for these businesses if Hydraulic is closed. Alderman Colosimo said he liked the idea of decorative lights across Rt. 47 and that it slows traffic and is distinctive. He said a pedestrian bridge across 47 would be helpful also. The lighting could be done in the near future and costs are being reviewed. Alderman Koch suggested painting the grain tower to eliminate the rust. Other suggestions were to have street artists do the painting and possibly have them paint murals. Alderman Frieders cited Plainfield as a good example of their downtown and it was noted that semi trucks are directed away from the downtown. Alderman Koch noted that the Eldamain bridge will help route traffic off Rt. 47. Mr. Olson said the island in the river is eroding and the state has set aside money to stabilize it. Page 3 of 3 The Yak Shack is now closed and there is a proposal to demolish the building. Alderman Frieders said visibility would be improved if it was torn down and suggested it be used for parking, to allow for increased festival attendance. Old Business 1. CC 2018-25 Downtown Branding & Wayfinding Signage Program Wording for wayfinding signage was discussed along with a kiosk to display more specific business information. Lighting for the kiosk and possible touch interactive signs were also considered. Updating signs regularly was requested. The committee decided the wording for the wayfinding signs will be “restaurants” and “eateries” as well as “music and drinks” near the Law Office. Alderman Funkhouser asked about advertising on the kiosks to help pay for them. Additional Business None There was no further business and the meeting adjourned at 7:11pm. Minutes respectfully submitted by Marlys Young, Minute Taker Have a question or comment about this agenda item? Call us Monday-Friday, 8:00am to 4:30pm at 630-553-4350, email us at agendas@yorkville.il.us, post at www.facebook.com/CityofYorkville, tweet us at @CityofYorkville, and/or contact any of your elected officials at http://www.yorkville.il.us/320/City-Council Agenda Item Summary Memo Title: Meeting and Date: Synopsis: Council Action Previously Taken: Date of Action: Action Taken: Item Number: Type of Vote Required: Council Action Requested: Submitted by: Agenda Item Notes: Reviewed By: Legal Finance Engineer City Administrator Human Resources Community Development Police Public Works Parks and Recreation Agenda Item Number New Business #1 Tracking Number EDC 2018-55 Building Permit Report for June 2018 Economic Development Committee – August 7, 2018 N/A N/A N/A Informational None All permits issued in June 2018. D. Weinert Community Development Name Department C:\Users\jbehland\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.Outlook\Y805XFBK\June 2018.doc prepared by D Weinert UNITED CITY OF YORKVILLE BUILDING PERMIT REPORT June 2018 TYPES OF PERMITS Number of Permits Issued SFD Single Family Detached B.U.I.L.D Single Family Detached Program Begins 1/1/2012 SFA Single Family Attached Multi- Family Apartments Condominiums Commercial Includes all Permits Issued for Commercial Use Industrial Misc. Construction Cost Permit Fees June 2018 123 30 0 0 0 11 0 81 61,748,401.00 248,887.93 Calendar Year 2018 543 90 14 36 0 79 0 324 31,278,361.00 1,521,112.55 Fiscal Period 2018 237 48 0 0 0 23 0 166 14,925,169.00 430,762.49 June 2017 92 2 13 0 0 8 0 69 16,688,860.00 559,688.70 Calendar Year 2017 452 27 49 0 0 71 0 305 31,577,273.00 1,343,479.34 Fiscal Period 2017 219 11 21 0 0 27 0 160 20,983,929.00 759,269.81 June 2016 109 0 15 0 0 13 0 81 4,490,566.00 196,837.61 Calendar Year 2016 430 14 53 0 0 64 0 299 18,502,673.00 845,806.19 Fiscal Period 2016 209 7 23 0 0 23 0 156 10,020,497.00 382,404.85 June 2015 75 1 6 0 0 5 0 63 1,620,358.00 82,035.45 Calendar Year 2015 296 5 37 0 0 50 0 204 39,559,291.00 609,718.79 Fiscal Period 2015 151 4 15 0 0 13 0 119 4,053,281.00 195,998.83 Have a question or comment about this agenda item? Call us Monday-Friday, 8:00am to 4:30pm at 630-553-4350, email us at agendas@yorkville.il.us, post at www.facebook.com/CityofYorkville, tweet us at @CityofYorkville, and/or contact any of your elected officials at http://www.yorkville.il.us/320/City-Council Agenda Item Summary Memo Title: Meeting and Date: Synopsis: Council Action Previously Taken: Date of Action: Action Taken: Item Number: Type of Vote Required: Council Action Requested: Submitted by: Agenda Item Notes: Reviewed By: Legal Finance Engineer City Administrator Human Resources Community Development Police Public Works Parks and Recreation Agenda Item Number New Business #2 Tracking Number EDC 2018-56 Building Inspection Report for June 2018 Economic Development Committee – August 7, 2018 N/A N/A N/A Informational None All inspections scheduled in June 2018. D. Weinert Community Development Name Department Have a question or comment about this agenda item? Call us Monday-Friday, 8:00am to 4:30pm at 630-553-4350, email us at agendas@yorkville.il.us, post at www.facebook.com/CityofYorkville, tweet us at @CityofYorkville, and/or contact any of your elected officials at http://www.yorkville.il.us/320/City-Council Agenda Item Summary Memo Title: Meeting and Date: Synopsis: Council Action Previously Taken: Date of Action: Action Taken: Item Number: Type of Vote Required: Council Action Requested: Submitted by: Agenda Item Notes: Reviewed By: Legal Finance Engineer City Administrator Human Resources Community Development Police Public Works Parks and Recreation Agenda Item Number New Business #3 Tracking Number EDC 2018-57 Property Maintenance Report for June 2018 Economic Development Committee – August 7, 2018 Informational None Pete Ratos Community Development Name Department Have a question or comment about this agenda item? Call us Monday-Friday, 8:00am to 4:30pm at 630-553-4350, email us at agendas@yorkville.il.us, post at www.facebook.com/CityofYorkville, tweet us at @CityofYorkville, and/or contact any of your elected officials at http://www.yorkville.il.us/320/City-Council Agenda Item Summary Memo Title: Meeting and Date: Synopsis: Council Action Previously Taken: Date of Action: Action Taken: Item Number: Type of Vote Required: Council Action Requested: Submitted by: Agenda Item Notes: Reviewed By: Legal Finance Engineer City Administrator Human Resources Community Development Police Public Works Parks and Recreation Agenda Item Number New Business #4 Tracking Number EDC 2018-58 Economic Development Report for July 2018 Economic Development Committee – August 7, 2018 N/A See attached. Bart Olson Administration Name Department 651 Prairie Pointe Drive, Suite 102  Yorkville, Illinois 60560 Phone 630-553-0843  FAX 630-553-0889 Monthly Report – for August 2018 EDC Meeting of the United City of Yorkville July 2018 Activity Downtown Redevelopment: - “Bella Donna Tea & Coffee” are officially moving to Yorkville from Sandwich, IL to the original former Cobblestone space on VanEmmon. They will operate Monday through Saturday (closed on Sunday), with hours from the morning until approximately 6PM, to begin. They will expand their hours and days after they become established. This group will also operate a separate retail business called “Hoof and Horn” in the former wine bar space on VanEmmon. “Hoof and Horn” will sell seasonal décor, crystals, essential oils, and custom blended incense, along with other specialty items. They plan to open mid-September. - “Living Divina Yoga & Fitness Studio” is moving into the former River’s Edge Theatre space. This Yorkville business is currently operating out of 700 square feet on Commercial Drive in Yorkville Business Center. They will have approximately 1,800 square feet in this new location. It is anticipated that the move will be soon! - Working with a variety of businesses looking at Yorkville’s downtown for their new home. Development south of Fox River: - Continue working with Eleno Silva on banquet center. Eleno has begun exterior construction in Stagecoach Crossing. He is focusing on opening in November or December of 2018. Development north of the Fox River: - Kendall Crossing… New free standing full service restaurant “Cielo Rojo” (which means Red Sky) will begin construction in August. This 4,000 square foot building will also have an outdoor patio of approximately 1,000 square feet. The Arechiga Family of Yorkville (who are the owners of Salsa Verde) will be the owners of this new concept. “Salsa Verde” is a quick casual concept, and will remain open. This building will be located directly across from NCG Theaters. Another new 7,000 square feet multi- tenant building will also be built at Kendall Crossing at the same time. This building is located directly in front of Lighthouse Academy. The building will be the home to a new business called “Flight Tasting Bar & Bottle Shop”. The business will be owned by Yorkville residents Tony & Emily Weeks and Ryan & Melissa Phillips. These couples are next door neighbors in Heartland subdivision. They will occupy 3,000 square feet of the building and also have a 1,000 square foot patio. The “Flight Team” is working to attract food trucks to their venue, as they will NOT be serving food, other than some prepackaged items. Construction on both of these buildings will begin in August, and it is t he goal to have these businesses opened in December of 2018 or January of 2019. The hotel/banquet hall is moving along with a new project manager. Ward Seifrid and C onstruction Services Group Inc. have taken over the Holiday Inn Express and Banquet Facility. There is now only one remaining lot at Kendall Crossing. - Kendall Marketplace…The townhome component of the project has closed and is now owned by Abbey Development. This is a very important development, as it will potentially add 164 new units to the area. Alex has engaged a specialist group to work through a plan to determine new options and opportunities for the remainder of the project, who I continue to work with. . - Fox Hill Center…leases are being finalized. The former 7-Eleven to is about open as “Fox Hill Pantry”. Industrial Development:. - Continue working with small industrial user to locate in Yorkville. This business owner is a resident, and currently operates in a surrounding community. The project is being reconfigured to meet the needs of potential users and to be built in phases. Recreation: - Go for it Sports…continue working with the center. “Go For It Sports” prepares for the fall session with new pre-school fun class for 2 to 3 year olds, and 4 to 6 year olds. These classes will take place in the morning at 9AM and in the evening at 6PM. Yorkville’s own Tom Knickerbocker/Diamond Skills Academy is holding sprint leagues and camps at “Go For It Sports”. These very popular camps are designed for 8 to 13 year olds, and give these young athletes the ability to experience 9 innings of baseball in a 40 minute session. . Other Activity: - Attended the quarterly SBA meeting to stay connected to new programs available for local business community. Respectfully submitted, Lynn Dubajic 651 Prairie Pointe Drive, Suite 102 Yorkville, IL 60560 lynn@dlkllc.com 630-209-7151 cell Have a question or comment about this agenda item? Call us Monday-Friday, 8:00am to 4:30pm at 630-553-4350, email us at agendas@yorkville.il.us, post at www.facebook.com/CityofYorkville, tweet us at @CityofYorkville, and/or contact any of your elected officials at http://www.yorkville.il.us/320/City-Council Agenda Item Summary Memo Title: Meeting and Date: Synopsis: Council Action Previously Taken: Date of Action: Action Taken: Item Number: Type of Vote Required: Council Action Requested: Submitted by: Agenda Item Notes: Reviewed By: Legal Finance Engineer City Administrator Human Resources Community Development Police Public Works Parks and Recreation Agenda Item Number New Business #5 Tracking Number EDC 2018-59 Payment of Materials to All Union Fence for Proposed Work at 206 Heustis Street Economic Development Committee – August 7, 2018 Majority Approval Erin Willrett Administration Name Department Summary Discussion of the request for payment by All Union Fence Co., Inc. for materials purchased in relation to the contract entered in July, 2018 for maintenance, repair and removal work related to the property located at 206 Heustis Street in Yorkville, IL. Background The City approved a contract with the All Union Fence Co., Inc. on July 11, 2017 for work to be completed for the property at 206 Heustis Street. The total contract was approved for an amount not to exceed $121,662.35. The contract included work for an installation of a new 8 foot fence at the subject property. Work was scheduled to commence for the installation of the fence on Monday, May 21, 2018. However, installation did not take place. The contractor has requested payment for the materials that were ordered for the project in the amount of $27,990.00. In review of the contract, paragraph 2 states that payment will be made as set forth in the contract documents. Paragraph 37, general conditions, states that payment will be made 30 days after acceptance of the work by the City. As the work is not completed, nor has it been accepted by the City, staff cannot authorize the payment of materials. However, All Union Fence Co., Inc. did work in good faith with the City to complete the project in the time that was requested. The City’s Public Works Department has confirmed that they would use the fence at 610 Tower Lane, as the fence that is currently standing is in need of replacement. This could be installed any time after the City receives the materials. Recommendation Staff recommends moving forward with the attached resolution amending the contract to allow the payment of materials in the amount $27,990.00 and the acceptance of that material for delivery to the City. Memorandum To: Economic Development Committee From: Erin Willrett, Assistant City Administrator CC: Date: August 7, 2018 Subject: Request for Payment of Materials by Contractor for 206 Heustis Street All Union Fence Co., Inc. 907 Rowell Ave. Joliet, IL.60433 Phone: (815) 726-6995 Fax: (815)722-6944 E-Mail: allunionfence@gmail.com The United City of Yorkville, Illinois 800 Game Farm Road Yorkville, IL. 60560 June 26, 2018 To Whom it May Concern, We are writing with the request for Payment for materials ordered for the 206 Heustis St. fence project. Because this job has been delayed we have been in a holding pattern for quite a while. We had purchased the materials from our supplier over 60 days ago and now have to pay them for said materials. We are asking for a payment in the amount of $27,990.00 for materials only at this time. We are willing to deliver the materials to the City of Yorkville if necessary We appreciate your consideration of this matter. Sincerely, Michael Marchio All Union Fence Co., Inc. Resolution No. 2018-____ Page 1 Resolution No. 2018-_____ A RESOLUTION OF THE UNITED CITY OF YORKVILLE, KENDALL COUNTY, ILLINOIS, APPROVING PAYMENT TO ALL UNION FENCE CO. FOR MATERIALS FOR THE HEUSTIS STREET PROJECT. WHEREAS, the United City of Yorkville, Kendall County, Illinois (the “City”) is a duly organized and validly existing unit of local government created in accordance with the Constitution of the State of Illinois of 1970 and the laws of this State; and, WHEREAS, the City advertised for bids on May 1, 2017 for the maintenance, repair and removal project for the property at 206 Heustis Street (the “Project”) and the City by Resolution 2017-28 accepted the bid and awarded the contract to All Union Fence Company, Inc. (“AUFC”); and, WHEREAS, AUFC upon entering into a contract with the City ordered the fencing materials for that portion of the Project; and, WHEREAS, the Project has been subject to delays by the City in authorizing the work on the Project to proceed; and, WHEREAS, AUFC has paid for the fencing materials and due to the delay in the commencement of the Project has requested the City to take possession of the materials and pay AUFC for the fencing materials; and, WHEREAS, the staff has recommended that AUFC should be paid for such fencing materials upon their delivery to the City rather than upon completion of the Project. NOW, THEREFORE, BE IT RESOLVED, by the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois, as follows: Section 1. That the Contract dated August 8, 2017 entered into between the United City of Yorkville and All Union Fence Company, Inc. is hereby amended to provide that payment for the fencing materials obtained and paid for by All Union Fence Company, Inc. and delivered to the City in the amount of $27,990.00, is hereby approved for payment upon receipt of proof of payment by All Union Fence Company, Inc. and waiver of lien by the supplier and the City Administrator is hereby authorized to make such payment upon compliance with this resolution. Section 2. This Resolution shall be in full force and effect from and after its passage and approval as provided by law. Resolution No. 2018-____ Page 2 Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this ________ day of ____________________, 2018. ______________________________ CITY CLERK CARLO COLOSIMO ________ KEN KOCH ________ JACKIE MILSCHEWSKI ________ ARDEN JOE PLOCHER ________ CHRIS FUNKHOUSER ________ JOEL FRIEDERS ________ SEAVER TARULIS ________ ALEX HERNANDEZ ________ Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this ________ day of ____________________, 2018. ______________________________ MAYOR Attest: ___________________________________ City Clerk Resolution No. 2017- o?$ A RESOLUTION AUTHORIZING A CONTRACT WITH ALL UNION FENCE COMPANY,INC. FOR THE MAINTENANCE,REPAIR AND REMOVAL PROJECT FOR THE PROPERTY AT 206 HEUSTIS STREET WHEREAS, the United City of Yorkville (the "City") is a duly organized and validly existing non home-rule municipality created in accordance with the Constitution of the State of Illinois of 1970 and the laws of the State; and, WHEREAS, the City has previously advertised for bids on May 1, 2017 for the maintenance, repair and removal project for the property at 206 Heustis Street; and, WHEREAS, based upon a review of the bids received and determination as to the qualifications of the bidders, the corporate authorities of the United City of Yorkville have determined that All Union Fence Company, Inc. of Joliet, Illinois, having submitted a bid in the amount of$121,662.35 is the lowest responsible bidder. NOW THEREFORE, BE IT RESOLVED, by the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois, as follows: Section 1: That the bid submitted by All Union Fence Company, Inc. in the amount not to exceed$121,662.35 is hereby accepted, and the Mayor and City Clerk are hereby authorized and directed on behalf of the United City of Yorkville to execute a CONTRACT with All Union Fence Company, Inc. as attached hereto and made a part hereof as Exhibit A. Section 2: That this resolution shall be in full force and effect from and after its passage and approval according to law. Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this day of V 1.Y 2017. CITY CLERK Resolution No.2017-cas Page 1 CARLO COLOSIMO KEN KOCH y JACKIE MILSCHEWSKI -ARDEN JOE PLOCHER pmesewr CHRIS FUNKHOUSER JOEL FRIEDERS Y SEAVER TARULIS ALEX HERNANDEZ Y Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this Iq dayof b>CE-,g4&E9 2017. 1wOR Resolution No.2017-ag Page 2 UNITED CITY OF YORKVILLE 800 GAME FARM ROAD, YORKVILLE ILLINOIS 60560 CONTRACT THIS CONTRACT made this 8th_ day of pdjgvt 2017, by and between the United City of Yorkville, an Illinois municipal corporation hereinafter called the "City" and All Union Fence Company located at 907 Rowell Avenue, Joliet, IL, 60433 hereinafter called the"Contractor". WITNESSETH: WHEREAS, the City has heretofore solicited Request for Proposals for maintenance, repair and removal work related to the property located at 206 Heustis Street, Yorkville, Illinois necessary to complete the work specified in the City's Request for Proposals issued May 1, 2017 by the City; and, WHEREAS,based upon a review of the bids received and determination as to the qualifications of the bidders, the corporate authorities of the City have determined that All Union Fence Company, Inc. having submitted a bid in the amount of$121,662.35 is the lowest responsible bidder for the maintenance, repair and removal work related to the property located at 206 Heustis Street. NOW, THEREFORE, for and in consideration of their mutual promises and agreements,the parties hereto do hereby agree as follows: 1. The Contractor agrees to furnish all materials, supplies, tools, equipment, labor and other services necessary to commence and complete the City's maintenance, repair and removal services in accordance with the terms and conditions stated in the REQUEST FOR PROPOSALS FOR MAINTENANCE, REPAIR AND REMOVAL WORK RELATED TO THE PROPERTY AT 206 HEUSTIS STREET, YORKVILLE, IL, including Specifications, Special Conditions and General Conditions attached hereto and made a part hereof as Exhibit A, and the Contractor's transmittal letter and detailed bid proposal attached hereto and made a part hereof as Exhibit B all of which are made a part hereof and herein called the"Contract Documents". 2. The City shall pay the Contractor in the amounts, manner and at times as set forth in the Contract Documents. 3. This Contract may be terminated at any time by the City upon written notice to the Contractor provided that the Contractor is paid for all work performed and expenses incurred up to the date of notice of termination. 1 IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly authorized officials, this Contract as of the day and year first above written: UNITE ITY ILLE By: Mayor Attest: Zz' ity Clerk NTRACTOR: By: sig-nature Micw1 W. Marddo co-owner Print Name and Title Attest -j 2 Exhibit A United City of Yorkville, Illinois 800 Game Farm Road, Yorkville, Illinois 60560 Request for Proposals The United City of Yorkville, Illinois will accept proposals for the following scope of services for maintenance, repair and removal work related to the property located at 206 Heustis Street in Yorkville, Illinois: 1. Removal and disposal, at the contractor's expense, of a wood rack for firewood located within a public right-of-way along the 200 block of Heustis Street. 2. Removal and disposal, at the contractor's expense, of various small snipe signs located within a public right-of-way along Heustis Street. 3. Towing and storage of approximately twelve (12) inoperable and unlicensed motor vehicles (as verified by the United City of Yorkville) to an auto yard. 4. Removal and disposal, at the contractor's expense, of a dilapidated approximately 6' tall wooden fence. 5. Installation of new approximately 900 linear foot 8' tall fence and 2 gates. The fence should enclose the storage yard, but not the building. Please provide a proposal for a natural rot resistant solid wood privacy fence and an optional proposal for a natural rot resistant solid wood or composite wood and/or plastic privacy fence with lattice at the top. The gates should be approximately twelve (12) feet in width to allow ingress/egress of vehicles into the storage yard. There are 2 existing ingress/egress locations where the gates should be located, one on Heustis Street and one on Mill Street. 6. Installation of new building mounted address numbers. 7. Removal and disposal, at the contractor's expense, of all various rubbish and garbage, included but not limited to such items as inoperable equipment, numerous large metallic items, pallets, piles of tree branches, boxes, etc. City staff will walk through the site with the contractor, once the bid has been awarded to outline specific items for removal and disposal. Proposals will be received at the Office of the Administrator, at 800 Game Farm Road, Yorkville, Illinois 60560 until 4:00 PM on June 1, 2017 (the closing date). i General questions regarding this Request for Proposals shall be directed to Krysti Barksdale-Noble, Director of Community Development at 630-553-8573. All detailed questions concerning the actual specifications are to be forwarded by email to Peter Ratos, Building Code Official, atrp atosAyorkville.il.us by May 22, 2017. The person or firm submitting the proposal shall at all times observe and conform to all laws, ordinances, and regulations of the Federal, State, and City which may in any manner affect the proposal. SPECIFICATIONS Towing and Storage of Vehicle Standards 1.AII tows will considered Police Department tows and Chapter 5"Towing of Vehicles"of the United City of Yorkville's Codified Ordinance as well as Chapter 625 of the Illinois Compiled Statutes,Act 5, Illinois Vehicle Code shall be followed. Fencing Standards 1.All fences must be erected so that the finished side of the fence faces outward or away from the lot on which the fence is erected. 2. No more than two different types of fencing material are permitted per fence. Placement 1. Fences may be built up to the property line, but shall not extend beyond the front plane of the primary structure facade in residential and business districts,and must be located entirely on 206 Heustis Street.The fence shall enclose the storage yard only, not the building. 2.The City is responsible for locating property lines, prior to the installation of the fence. 3. Fences,walls or hedges shall not encroach on any public right-of-way. 4. It shall be the responsibility of the City to insure that a fence does not block or obstruct the flow of stormwater. 5. No solid fence,wall, hedge or shrubbery which exceeds 3 feet above the street grade shall be permitted within the sight distance triangle formed at the intersection of any two 2 street right-of-way lines. 6.The intersection of any street right-of-way lines with any service entrance drive(both sides of such drive), by a line drawn between such right-of-way lines,and/or such right-of-way line and service entrance drive line,at a distance along such line of 25 feet from the point of intersection thereof. Materials The following materials are acceptable: Natural Rot Resistant Wood (Cedar,Cyprus, Redwood) Plastic Composite Wood and Plastic These materials are an example of acceptable fencing.The Community Development Director has the right to approve similar materials not listed as long as they are consistent with the surrounding land use. 2 Examples: it/i4-. •e/n/ri iln/ s....0 ....I//rr/r•/ as/t//q•p gtlgl•.aii ii:iiii t —t/t.t•YIY•••aI." Ylit ti•i,ii,r/R •////rtu!lnanssiu+In inuuu,,. Address Number Standards 1.The numbers should be positioned in plain view and visible from the street or road fronting the property.The numbers should contrast with their background and shall be Arabic numerals or alphabet letters.Numbers shall be a minimum of 4 inches(102 mm)high with a minimum stroke width of 0.5 inches(12.7 mm). Placement 1. The numbers should be positioned in plain view and visible from the street or road fronting the property. Conditions: Anyone investigating the site prior to submitting the proposal should drive-by ONLY. No trespassing will be permitted to examine the site. All work requiring a building permit shall be applied for and issued by the United City of Yorkville prior to the commencement of said work.A pre-construction meeting shall be held with the City of Yorkville and the contractor no less than five(5)business days before the start of any work.All work shall be conducted between the hours of seven o'clock(7:00)am and five o'clock(5:00)pm,Monday through Friday.Police presence may be required and if determined to be a requirement will be provided by the United City of Yorkville during the hours of work on the site. The contractor must be in communication with the City to determine the need of Police presence. All work items shall be completed in full and to the satisfaction of the City of Yorkville Building Code Official within seven(7)business days.All inoperable motor vehicles towed from the property to an auto-yard must be held for at least 35 days for claim or title of ownership prior to permanent disposal. Bid Selection: The City of Yorkville will select contractors,which in its opinion,best meets the intention of the project scope and budget. The selected proposals may be required to adjust the work items to accommodate project scope and budget constraints at the direction of the City. 3 UNITED CITY OF YORKVILLE,ILLINOIS SPECIAL CONDITIONS 1. Persons submitting proposals Qualifications. If requested, the interested Person submitting the proposal must provide a detailed statement regarding the business and technical organization of the Person submitting the proposal that is available for the work that is contemplated. Information pertaining to financial resources, experiences of personnel, previously completed projects, plant facilities, and other data may also be required to satisfy the City that the Person submitting the proposal is equipped and prepared to fulfill the Contract should the Contract be awarded to him. The competency and responsibility of Persons submitting proposals and of their proposed subcontractors will be considered in making awards. If requested by the City, the Person submitting the proposal shall include a complete list of all equipment and manpower available to perform the work intended on the Plans and Specifications. The list of equipment and manpower must prove to the City that the Person submitting the proposal is well qualified and able to perform the work,and it shall be taken into consideration in awarding the Contract. The City may make such investigations as it deems necessary,and the Person submitting the proposal shall furnish to the City all such information and data for this purpose as the City may request. A responsible Person submitting the proposal is one who meets all of the following requirements: Have adequate financial resources or the ability to secure such resources. Have the necessary experience, organization, and technical qualifications, and has or can acquire,the necessary equipment to perform the proposed Contract. Is able to comply with the required performance schedule or completion date, taking into account all existing commitments. Has a satisfactory record of performance,integrity,judgment,and skills. Is qualified and eligible under all applicable laws and regulations. If the Person submitting the proposal possesses a current Illinois Department of Transportation "Certificate of Eligibility"with an amount for the work specified at least equal to the minimum amount of qualification indicated on the Legal Notice he may choose to provide the City a copy of the certificate in lieu of providing the above mentioned Persons submitting proposals Qualification requirements. 2. Basis of Payment: the Contractor shall submit with each payment request the Contractor's Partial Waiver of Lien for the full amount of the requested payment. Beginning with the second payment request, and with each succeeding payment request,the Contractor shall submit partial waivers of lien for each subcontractor and supplier showing that the amount paid to date to each is at least equivalent to the total value of that subcontractor's work,less retainage, included on the previous payment request. The Contractor's request for final payment shall include the Contractor's Final Waiver of Lien which shall be for the full amount of his Contract, including any change orders thereto, and Final Waivers of Lien from all subcontractors and suppliers for which Final Waivers of Lien have not previously been submitted. 3. Project Acceptance Procedures: All final pay item quantities shall be agreed upon between the City and the Contractor, and a final invoice shall be submitted by the Contractor, complete with all required waivers of lien and surety. Approval of the final pay estimate by the Director of Community Development shall constitute acceptance of the project by the United City of Yorkville, and written notice of such action shall be given to the Contractor. The date of approval of the final pay estimate shall be the Date of Acceptance, and shall also be the date of the Start of Guarantee. Prior to the required Date(s) of Substantial Completion, a partial project acceptance may be granted in accordance with the foregoing procedure for entire project acceptance,with the exception that the pay estimate for the quantities of items included in the partial project acceptance shall not be the final pay estimate for the entire project. In the case of the City's acceptance of any portion of the work as may be required because of the inclusion of a Date of Substantial Completion requirement,or for other reasons as may be agreed to by the United City of Yorkville,such 4 partial acceptance action shall not constitute acceptance of any other portion of the project not noted in the written notice of partial acceptance which shall be provided to the Contractor by the Director of Parks and Recreation. 4.General Guarantee: Neither the final certificate of payment nor any provision in the Contractor Documents, nor partial or entire occupancy of the premises by the City, shall constitute an acceptance of work not done in accordance with the Contract Documents or relieve the Contractor of liability in respect to any express warranties or responsibility for faulty materials or workmanship. The Contractor shall remedy any defects in the work and pay for any damage to other work resulting therefrom, which shall appear within a period of one(1)year from the date of final acceptance of the work unless a longer period is specified. The United City of Yorkville will give notice of observed defects with reasonable promptness. The Contractor shall guarantee all materials and workmanship as defined by the Performance Bond, Labor and Material Payment Bond, and Maintenance Bond requirements,if required. Unless otherwise amended in writing by the Director of Community Development, the date of the Start of any Guarantees, Warranties and Maintenance Bonds shall be coincident with the Date of Acceptance of the entire proj ect. 5. Termination of Contract: the United City of Yorkville reserves the right to terminate the whole or any part of this Contract,upon written notice to the Contractor,in the event that sufficient funds to complete the Contract are not appropriated by the corporate authorities of the United City of Yorkville. The United City of Yorkville further reserves the right to terminate the whole or any part of this Contract, upon written notice to the Contractor, in the event of default by the Contractor. Default is defined as failure of the Contractor to perform any of the provisions of this Contract,or failure to make sufficient progress so as to endanger performance of this Contract in accordance with its terms. In the event of default and termination,the United City of Yorkville may procure,upon such terms and in such manner as the United City of Yorkville may deem appropriate, supplies or services similar to those so terminated. The Contractor shall be liable for any excess costs for such similar supplies or service unless acceptable evidence is submitted to the United City of Yorkville that failure to perform the Contract was due to causes beyond the control and without the fault or negligence of the Contractor. 6. Notification of Work: The Contractor shall notify the City's Director of Community Development 48 hours prior to commencement of work. 7.Cleaning: During construction, the Contractor and his subcontractors shall remove from the premises, rubbish, waste material, and accumulations, and shall keep the premises clean. The Contractor shall keep the premises clean during construction to the satisfaction of the Director of Community Development. 8. Restoration: the calculation of quantities and limits of Restoration which will be allowed for payment will be in accordance with the"Standard Specifications." Restoration,fill sand,stone,etc.,required outside of the limits as indicated in the Contract Documents will be considered incidental to the Contract. The Contractor shall at all times maintain all equipment and materials within the limits of restoration as specified. 9. Removal and Replacement: all removal and replacement items will be marked and measured for payment prior to removal by the Contractor. Any removal beyond these lines will be replaced to the satisfaction of the Director of Community Development with no additional compensation. 10. Business/Resident Notification: The Contractor shall not close any street or private driveway without the consent of the Director of Community Development,and the proper notification of the affected business/resident. 11. Use of Fire Hydrants: no fire hydrants shall be used to obtain water for non-emergency use. Water can be purchased and obtained at the City's Public Works Building. 5 UNITED CITY OF YORKVILLE,ILLINOIS GENERAL CONDITIONS These General Conditions apply to all proposals requested and accepted by the City and become a part of the contract unless otherwise specified. Persons submitting proposals or their authorized representatives are expected to fully inform themselves as to the conditions,requirements,and specifications before submitting proposals. The City assumes that submission of a proposal means that the person submitting the proposal has familiarized himself with all conditions and intends to comply with them unless noted otherwise. 1. Forms—All proposals must be submitted on the forms provided, complete with all blank spaces filled in and properly signed in ink in the proper spaces. All proposal forms may be obtained from the Office of the Administrator,800 Game Farm Road,Yorkville,Illinois 60560 and when completed delivered to the same Office prior to the proposal closing date and time. Persons submitting proposals may attach separate sheets for the purpose of explanation,exception,or alternative proposal and to cover required unit prices. 2. Submittal of Proposal — Proposals must be submitted to the attention of the Director of Community Development. 3. Examination of Proposal Forms, Specifications, and Site — The person submitting the proposal shall carefully examine the proposal forms which may include the request for proposal, instruction to Persons submitting proposals, general conditions, special conditions, plans, specifications, proposal form, bond, and any addenda to them, and sites of the proposed work (when known) before submitting the proposal. The person submitting the proposal shall verify all measurements relative to the work,shall be responsible for the correctness of same. The person submitting the proposal will examine the site and the premises and satisfy themselves as to the existing conditions under which the person submitting the proposal will be obligated to operate. Failure of the person submitting the proposal to notify the City, in writing, of any condition(s) or measurement(s) making it impossible to carry out the work as shown and specified, will be construed as meaning no such conditions exist and no additional moneys will be added to the contract. The successful person submitting the proposal must notify all utility companies that are a part of J.U.L.I.E. of the responsibility of each utility company to locate its utilities. The submission of the proposal shall be considered conclusive evidence that the person submitting the proposal has investigated and is satisfied as to all conditions to be encountered in performing the work,and is fully informed as to character, quality, quantities, and costs of work to be performed and materials to be furnished,and as to the requirements of the proposal forms. If the proposal is accepted,the person submitting the proposal will be responsible for all errors in his proposal resulting from his failure or neglect to comply with these instructions, and the City shall not be responsible for any charge for extra work or change in anticipated profits resulting from such failure or neglect. 4. Scope of Work — The person submitting the proposal shall supply all required supervision, skilled labor, transportation,new materials,apparatus,and tools necessary for the entire and proper completion of the work. The person submitting the proposal shall supply, maintain and remove all equipment for the performance of the work and be responsible for the safe, proper and lawful construction, maintenance and use of the same. This work shall be completed to the satisfaction of the City. The person submitting the proposal shall provide adequate protection of the job site to protect the general public and adjacent property. The City is not responsible for site safety. The person submitting the proposal is solely and exclusively responsible for construction means,methods,technologies and site safety. 5. Completeness — All information required by the Request for Proposal must be supplied to constitute a responsive proposal. The Person submitting the proposal shall include the completed Proposal Sheet. The 6 City will strictly hold the person submitting the proposal to the terms of the proposal. The proposal must be executed by a person having the legal right and authority to bind the person submitting the proposal. 6. Error in Proposals—When an error is made in extending total prices,the unit proposal price and/or written words shall govern. Otherwise, the person submitting the proposal is not relieved from errors in proposal preparation. Erasures in proposals must be explained over signature of person submitting the proposal. 7. Withdrawal of Proposals—A written request for the withdrawal of a proposal or any part thereof may be granted if the request is received by the Director of Community Development prior to the Closing Date. 8. Person submittine the proposal Interested in More than One Proposal—Unless otherwise specified, if more than one proposal is offered by any one party,by or in the name of his or their agent,partner,or other persons,all such proposals may be rejected. A party who has quoted prices on work,materials,or supplies to other Persons submitting proposals is not thereby disqualified from quoting prices to other Persons submitting proposals or from submitting a proposal directly for the work,materials,or supplies. 9. Person submittine the proposal's aualifications —No award will be made to any person submitting the proposal who cannot satisfy to the City that they have sufficient ability and experience in this class of work,as well as sufficient capital and equipment to do the job and complete the work successfully within the time named (i.e. responsible). The City's decision or judgment on these matters shall be final and binding. The City may make such investigations as it deems necessary. The person submitting the proposal shall furnish to the City all information and data the City may request for the purpose of investigation. 10. Proposal Award for All or Part—Unless otherwise specified, proposals shall be submitted for all of the work or items for which proposals are requested. The City reserves the right to make award on all items,or any of the items,according to the best interests of the City. 11. Samples— Samples or drawings requested shall be delivered and removed at no cost to the City. The City shall not be responsible for damage to samples. Samples shall be removed by the person submitting the proposal within thirty (30) days after notification. Samples must be submitted prior to the time set for the opening of proposals. 12. Equipment or Materials—Each person submitting the proposal shall submit catalogs,descriptive literature, and detailed drawings necessary to fully describe those features or the material or work not covered in the specifications. The parts and materials proposals must be of current date (latest model) and meet specifications. This provision excludes surplus, remanufactured, and used products except as an alternate proposal. The brand name and/or manufacturer of each item proposed must be clearly stated in the proposal. Guarantee and/or warranty information must be included with this proposal. 13. Toxic Substance—Prior to delivery of any material which is caustic, corrosive, flammable or dangerous to handle, the supplier shall provide written directions as to methods of handling such products, as well as the antidote or neutralizing material required for its first aid(Material Safety Date Sheet). 14. Delivery—Where applicable all materials shipped to the City must be shipped F.O.B. delivered, designated location, Yorkville, Illinois. If delivery is made by truck, arrangements must be made in advance by the person submitting the proposal,with concurrence by the City,for receipt of the materials. The materials must be delivered where directed. 15. Estimated Proposal Ouantities— On "Estimated Quantities",the City may purchase more or less than the estimates. The Contractor shall not be required to deliver more than ten (10) percent in excess of the estimated quantity of each item,unless otherwise agreed upon. 16. Trade Names—Alternative Proposal—When an item is identified in the specifications by a manufacturer's or trade name or catalog number,the person submitting an alternative shall identify that item. 7 If the specifications state "or equal" proposals on other items will be considered provided the person submitting the proposal clearly identifies in his proposal the item to be furnished, together with any descriptive matter which will indicate the character of the item. Persons submitting proposals which deviate from these specifications,but which they believe are equivalent, are requested to submit alternate proposals. However, ALTERNATE PROPOSALS MUST BE CLEARLY INDICATED AS SUCH AND DEVIATIONS FROM THE APPLICABLE SPECIFICATIONS PLAINLY NOTED. The proposal must be accompanied by complete specifications for the items offered. Persons submitting proposals wishing to submit a secondary proposal must submit it as an alternate proposal. The City shall be the sole and final judge unequivocally as to whether any substitute from the specifications is of equivalent or better quality. 17. Price—Unit prices shall be shown for each unit on which there is a proposal as well as the aggregate price and shall include all packing, crating, freight and shipping charges, and cost of unloading at the destination unless otherwise stated in the proposal. Unit prices shall not include any local, state,or federal taxes. The City is exempt,by law,from paying State and City Retailer's Occupation Tax,State Service Occupation and Use Tax and Federal Excise Tax. The City will supply the successful person submitting the proposal with its tax exemption number. Cash discounts will not be considered in determining overall price,but may be used in an overall evaluation. 18. Consideration of Proaosal—No proposal will be accepted from or contract awarded to any person,firm or corporation that is in arrears or is in default to the City upon any debt or contract, or that is a defaulter, as surety or otherwise,upon any obligation to the City or had failed to perform faithfully any previous contract with the City. The person submitting the proposal, if requested, shall present within 48 hours evidence satisfactory to the City of performance ability and possession of necessary facilities,pecuniary recourses and adequate insurance to comply with the terns of these specifications and contract documents. 19. Execution of Contract—The successful person submitting the proposal shall,within fourteen(14)days after notification of the award: (a)enter into a contract in writing with the City covering all matters and things as are set forth in the specifications and his proposal and (b) cavy insurance acceptable to the City, covering public liability,property damage,and workmen's compensation. After the acceptance and award of the proposal and upon receipt of a written purchase order executed by the proper officials of the City,this Instruction to Persons submitting proposals,including the specifications,will constitute part of the legal contract between the United City of Yorkville and the successful person submitting the proposal. 20. Performance and Labor and Material Payment Bonds — Unless specifically waived or amended in the Special Conditions,the successful person submitting the proposal shall furnish at the time of execution of the contract a performance bond for the full amount of the contract acceptable in form and surety to the City to guarantee the completion of any work to be performed by the contractor under the contract. Unless specifically waived or amended in the Special Conditions, the successful person submitting the proposal shall furnish at the time of execution of the contract a bond for the full amount of the contract acceptable in form and surety to the City conditioned upon the faithful performance and completion of the contract, payment of material used in such work, and for all labor performed in such work including by subcontractors. 8 In the event that the person submitting the proposal fails to furnish the bonds within 14 days after notification of the award, then the proposal guarantee shall be retained by the City as liquidated damages and not as a penalty. It is agreed that the sum is a fair estimate of the amount of damages that the City will sustain due to the person submitting the proposal's failure to furnish the bonds. 21. Compliance with All Laws—All work under the contract must be executed in accordance with all applicable federal, state, and local laws, ordinances, rules, and regulations which may in any manner affect the preparation of the proposal or performance of the contract. 22. Prevailing Wade—Not less than the prevailing rate of wages as established by the City shall be paid by the Contractor and each subcontractor to its laborers, workers, and mechanics constructing public works under this contract as determined by the Illinois Department of Labor pursuant to the Prevailing Wage Act (820 ILCS 130/0.01 et seq.). It shall be the responsibility of the Contractor to monitor the prevailing wage rates for any increase in rates during the contract and adjust wage rates accordingly. The current prevailing wage rates are available on the Illinois Department of Labor web site at www.state.il.us/agency/idol or by calling the United City of Yorkville at 708-283-4950. The Contractor and its subcontractors shall comply with Section 5 of the Act that requires the Contractor and its subcontractors to submit to the City monthly certified payroll records along with a statement affirming that such records are true and accurate,that the wages paid to each worker are not less than the required prevailing rate and that the Contractor or subcontractor is aware that filing records it knows to be false is a Class B misdemeanor. Each month's certified payroll(s)must be filed with the City before the end of the next month or prior to payment by the City for work that includes that payroll. 23. Compliance with the Substance Abuse Prevention on Public Works Proiects Act—The Contractor and its Subcontractors shall comply with the Substance Abuse Prevention on Public Works projects Act(820 ILCS 265/1 et seq.)and prior to commencing work on a"public works"project(as defined in the Prevailing Wage Act) file with the City its program to comply with the Act or file that portion of its collective bargaining agreement that deals with the matters covered by the Act. 24. Equal Employment Opportunity—During the performance of the contract and/or supplying of materials, equipment,and suppliers,person submitting the proposal must be in full compliance with all provisions of the Acts of the General Assembly of the State of Illinois relating to employment, including equal opportunity requirements. 25. Contract Alterations—No amendment of a contract shall be valid unless made in writing and signed by the City Administrator or his authorized agent. 26. Notices—All notices required by the contract shall be given in writing. 27. Nonassignability—The Contractor shall not assign the contract,or any part thereof,to any other person,firm, or corporation without the previous written consent of the City Administrator. Such assignment shall not relieve the Contractor from his obligations,or change the terms of the contract. 28. Indemnity—To the fullest extent permitted by law, the Contractor hereby agrees to defend, indemnify, and hold harmless the City,its officials,agents,and employees,against all injuries,deaths,loss,damages,claims, patent claims, suits,liabilities,judgments,cost, and expenses,which may in anywise accrue against the City, its officials, agents, and employees, arising in whole or in part or in consequence of the performance of this work by the Contractor, its employees, or subcontractors, or which may anywise result therefore, except that arising out of the sole legal cause of the City, its agents, or employees, the Contractor shall, at its own expense,appear,defend,and pay all charges of attorneys and all costs and other expenses arising therefore or incurred in connections therewith,and,if any judgment shall be rendered against the City,its officials,agents, and employees,in any such action,the Contractor shall,at its own expense,satisfy and discharge the same. 9 Contractor expressly understands and agrees that any performance bond or insurance policies required by this contract,or otherwise provided by the Contractor, shall in no way limit the responsibility to indemnify,keep, and save harmless and defend the City,its officials,agents,and employees as herein provided. 29. Insurance — In submission of a proposal, the person submitting the proposal is certifying that he has all insurance coverages required by law or would normally be expected for person submitting the proposal's type of business. In addition,the person submitting the proposal is certifying that he has or will obtain at least the insurance coverage that are required by law or would normally be expected for person submitting the proposal's type of business. Commercial General Liability Insurance: Contractor shall provide commercial general liability insurance policy that includes products, operations and completed operations (with no exclusion for sexual abuse or molestation).Limits should be at least:Bodily injury&property damage with an occurrence limit of$1,000,000: Personal & advertising injury limit of$1,000,000 per occurrence: General aggregate limit of $2,000,000 (other than products and completed operations): Products and completed operations aggregate limit of $2,000,000. The policy shall name the City as an additional insured. Such coverage will be provided on an occurrence basis and will be primary and shall not contribute in any way to any insurance or self- insured retention carried by the City. Such coverage shall contain a broad form contractual liability endorsement or similar wording within the policy form. 30. Default—The City may terminate a contract by written notice of default to the Contractor if: a. The Contractor fails to make delivery of the materials or perform the services within the time specified in the proposal,or b. fails to make progress so as to endanger performance of the contract,or C. fails to provide or maintain in full force and effect, the liability and indemnification coverages or performance bond as required. If the City terminates the contract, the City may procure supplies or services similar to those so terminated, and the Contractor shall be liable to the City for any excess costs for similar supplies and services,unless the Contractor provides acceptable evidence that failure to perform the contract was due to causes beyond the control and without the fault or negligence of the Contractor. 31. Inspection—The City shall have a right to inspect,by its authorized representative,any material,components, or workmanship as herein specified. Materials, components, or workmanship that has been rejected by the authorized representative as not in accordance with the terms of the specifications shall be replaced by the Contractor at no cost to the City. 32. Supplementary Conditions — Wherever special conditions are written into the specifications or supplementary conditions which are in conflict with conditions stated in these Instructions to Person submitting the proposal, the conditions stated in the specifications or supplementary conditions shall take precedence. 33. Permits and Licenses—The successful person submitting the proposal and their subcontractor(s)shall obtain, at their own expense, all permits and licenses which may be required to complete the contract. Fees for all City permits and licenses shall be waived. 34. Person submitting the proposal's Certification—- In compliance with the Illinois State Law that requires each person submitting the proposal to file a certification regarding proposal rigging and proposal rotating and that it is not delinquent in its taxes. 35. Chance Orders—After the contract award,changes in or additions to the work and/or a change in the amount of money to be paid to the person submitting the proposal must be the result of an approved change order first ordered by the Director of Community Development and approved by the City Administrator and/ or City Council. 10 36. Time of Completion—The successful person submitting the proposal shall completely perform its proposal in strict accordance with its terms and conditions within the number of consecutive calendar days after notification of award of the contract as stated in the proposal proposal. 37. Payment— Payment will be made within thirty (30) days after acceptance of the job by the City after the completion of the work as covered within the contract documents. 38. Guarantees and Warranties — All guarantees and warranties required shall be furnished by the successful person submitting the proposal and shall be delivered to the City before final payment on the contract is issued. 39. Waiver of Lien — where applicable a waiver of lien and contractor's affidavit must be submitted by the successful person submitting the proposal, verifying that all subcontractors and material invoices have been paid prior to the City approving final payment. 11 PROPOSAL Note: The Person submitting the proposal must complete all portions of this Proposal The undersigned, having examined the specifications, and all conditions affecting the specified project, offer to furnish all services, labor and incidentals specified for the price below. It is understood that the City reserves the right to reject any and all proposals and to waive any irregularities and that the prices contained herein will remain valid for a period of not less than ninety(90) days. I(We)propose to complete the following project as more fully described in the specifications for the following: 1. Furnish, Deliver and Install Fence Structure Including 2 Gates 2. Furnish, Deliver and Install Building Numbers 3. Towing and Storage of Vehicles 4. Removal and Disposal of Additional Items Per Cubic Yard of Waste SUBTOTAL: 12 do represent that I am(title) of(company) and that the attached submittal complies in all respects with the safety and accessibility standards as set forth in this request for proposals either by inclusion or by reference. Please attach required submittals and any additional supporting information. Our firm has not altered any of the written texts within this document. Only those areas requiring input by the respondent have been changed or completed. Our firm will comply with the Prevailing Wage requirements as outlined in section entitled"A. General Conditions"and Public Act 095-0635. If it is the Contractor's intention to utilize a subcontractor(s) to fu,fUl the requirements of the Contract, the City must be advised of the subcontractor's company name, address, telephone and fax numbers, and a contact person's name at the time of proposal submittal. YES NO Will you be utilizing a subcontractor? If yes,have you included all required Information with your proposal submittal? or NO PROPOSAL—Keep our company on your Persons submitting proposals List Signature Date NO PROPOSAL—Remove our company from Your Persons submitting proposals List Signature Date 13 I hereby certify that the item(s)proposed is/are in accordance with the specifications as noted and that the prices quoted are not subject to change; and that The Person submitting the proposal is not barred by law from submitting a proposal to the City for the project contemplated herein because of a conviction for prior violations of either Illinois Compiled Statutes, 720 lLCS 5/33E-3 (Proposal Rigging) or b720 lLCS 5/33-4 (Proposal Rotating); and that The Person submitting the proposal is not delinquent in payment of any taxes to the Illinois Department of Revenue in accordance with 65 ILCS 5/11-42.1; and that The Person submitting the proposal provides a drug free workplace pursuant to 30 ILCS 580/1, et seq., and that The Person submitting the proposal certifies they have a substance-abuse program and provide drug testing in accordance with 820 ILCS 130/11G, Public Act 095-0635; and that The Person submitting the proposal is in compliance with the Illinois Human Rights Act 775 lLCS 5/1.101 et seq. including establishment and maintenance of sexual harassment policies and program. Firm Name Signed Name and Title Street Address Print Name and Title City State Zip E-mail Address Phone Number Fax Number Date 14 Exhibit B PROPOSAL Note: The Person submitting the proposal must complete all portions of this Proposal The undersigned, having examined the specifications, and all conditions affecting the specified project, offer to furnish all services, labor and incidentals specified for the price below. It is understood that the City reserves the right to reject any and all proposals and to waive any irregularities and that the prices contained herein will remain valid for a period of not less than ninety(90) days. I (We)propose to complete the following project as more fully described in the specifications for the following: 1. Furnish, Deliver and Install Fence Structure Including 2 Gates *(1) 82,872.35 2. Furnish,Deliver and Install Building Numbers 350.00 3. Towing and Storage of Vehicles 2) 3,750.00 4. Removal and Disposal of Additional Items 3) Per Cubic Yard of Waste 34,690.00 SUBTOTAL: 121,662.35 1) Resents Option 2 in Proposal on pag-, 1. 2) See Notes in Proposal an Page 2. 3) QJbic Yards are uaioxw - cost runts Total. 4) See Notes in Proposal on Page 3 - all apply. 12 I, Adiael W. Mxddo do represent that I am (title) CA-owner of(company) Ail ti,inn Fmrp rn_, Tm_and that the attached submittal complies in all respects with the safety and accessibility standards as set forth in this request for proposals either by inclusion or by reference. Please attach required submittals and any additional supporting information. X Our firm has not altered any of the written texts within this document. Only those areas requiring input by the respondent have been changed or completed. X Our firm will comply with the Prevailing Wage requirements as outlined in section entitled"A. General Conditions"and Public Act 095-0635. If it is the Contractor's intention to utilize a subcontractor(s) to fulfall the requirements of the Contract, the City must be advised of the subcontractor's company name, address, telephone and fax numbers, and a contact person's name at the time of proposal submittal. YES NO Re rlelI s Inc. Will you be utilizing a subcontractor? X T ) Attn: Mike Fblym If yes,have you included all required 815 740-4545 Information with your proposal submittal? or NO PROPOSAL—Keep our company on your Persons submitting proposals List Signature May 31, 2017 Date NO PROPOSAL—Remove our company from Your Persons submitting proposals List Signature Date 13 I hereby certify that the item(s) proposed is/are in accordance with the specifications as noted and that the prices quoted are not subject to change; and that The Person submitting the proposal is not barred by law from submitting a proposal to the City for the project contemplated herein because of a conviction for prior violations of either Illinois Compiled Statutes, 720 ILCS 5/33E-3 (Proposal Rigging) or b720 ILCS 5/33-4 (Proposal Rotating); and that The Person submitting the proposal is not delinquent in payment of any taxes to the Illinois Department of Revenue in accordance with 65 ILCS 5/11-42.1; and that The Person submitting the proposal provides a drug free workplace pursuant to 30 ILCS 580/1, et seq., and that The Person submitting the proposal certifies they have a substance-abuse program and provide drug testing in accordance with 820 ILCS 130/11G, Public Act 095-0635; and that The Person submitting the proposal is in compliance with the Illinoi Human Rights Act 775 ILCS 5/1.101 et seq. including establishment and maintenance of sexual harassment policies and program. uy a,u,wrt All Union Fence Co. , Inc. Firm Name Signed Name and Title 907 Rowell Avenue Michael W. Mardzio Co-Owner Street Address Print Name and Title Joliet IL 60433 oan City State Zip E-mail Address 815 726-6995 815 722-6944 Phone Number Fax Number May 31, 2017 Date 14 Dropooat All Union Fence Co . , Inc . To: The United City of Yorkville 05-31 -17 Phone: 630-553-4350 Direct: 630-553-8574 Attention:Erin Willrett Job Loction: 206 Heustis St Yorkville, IL 60560 All Union Fence Company will furnish and install materials, labor and equipment for the following Fencing ... 900' Approximately of 96" high privacy fencing with (2) 121wide double drive gates. All posts set 36"-42" x 12" o.d. concrete footing. Option 2) is All Western Red Cedar solid Dog-eared Picket sections set on Heavy Duty 4"x 4" Schedule 40 Galvanized Posts with 48 month warranty. Material Only Price 29, 990.00 ( tax exempt ) Installation for the above fencing using all Union Trade Ironworkers, Laborers and Operators. Total Labor Only Price = $ 52, 882.35 ( includes Insurance, Equipment and Concrete costs ) Proposal Acceptance Signature: _/)" i a'a/A) The customer is responsible for all permits required.Un ground utilities(All cables,conduits,water,sewage,septic, gas,etc.)are to be located and marked by the customer and not the responsibility of All Union Fence or their installers. Gravel,rock,loose sand or other obstructed digging is subject to an additional charge.The fence line is to be staked out and all accessible to workers and equipment.Trimming/clearing trees,bushes,briar,dirt removal and the disposal of concrete footings are subject to additional charges.Delays occurring on the jobsite due to changes orders,Time lost, conditions changes or change in the scope of work are subject to additional charges.$125 per man hour,equipment and materials may also apply. AUIF All Union Fence Co., Inc.907 Rowell Avenue Joliet, IL 60433 Phone 815-726-6995 Fax 815-722-6944 Vrovooal All Union Fence Co . , Inc . PG. 2 Building Address Numbers ... (1) Set for existing building at 206 Heustis St as specified. Total installed cost 350.00 Towing of Vehicles / Trailers ... Approximately 12 total. All credentials needed to legally tow the vehicles off of the property to be provided by The United City of Yorkville and forwarded to the Towing Company prior to commencement of they're removal. Total Tow Only Price 250.00 for regular sized vehicles each x (9) _ $2,250.00 500.00 for oversized vehicles each x (3) _ $1,500.00 Complete Estimated Tow Total ...3,750.00 Storage of Vehicles / Trailers ... Each towed vehicle / trailer will be charged 50.00 per day storage until it is claimed and removed from the storage yard by it's owner. If the vehicle / trailer is not claimed within (30) days the Tow Company will take full possession of it, at this time storage fees are dropped for unclaimed vehicles / trailers. The owner of the vehicles / trailers will negotiate directly with the tow company once the vehicles have been removed from 206 Heustis St Yorkville, IL. All storage fees to be paid for by the vehicle / trailer owner. All storage payments to be made directly to the Tow Company. Proposal Acceptance Si nature: The customer is responsible for all permits required.U erground utilities(All cables,conduits,water,sewage,septic, gas,etc.)are to be located and marked by the customer and not the responsibility of All Union Fence or their installers. Gravel,rock,loose sand or other obstructed digging is subject to an additional charge.The fence line is to be staked out and all accessible to workers and equipment.Trimming/clearing trees,bushes,briar,dirt removal and the disposal of concrete footings are subject to additional charges.Delays occurring on the jobsite due to changes orders,Time lost, conditions changes or change in the scope of work are subject to additional charges.$125 per man hour,equipment and materials may also apply. AUF All Union Fence Co. Inc.907 Rowell Avenue Joliet, IL 60433 Phone 815-726-6995 Fax 815-722-6944 Vroyooat All Union Fence Co . , Inc . PG. 3 Complete Estimated Storage Total ... T.B.D Removal of Wood logs and other rubbish ... Old logs stacked on the property to be removed from site along with other non E.P.A. regulated items such as general garbage small equipment, Etc. Complete Removed Price ... 34, 690.00 Notes: Above prices do not include Weekend or Holiday work, All digging is figured as standard method, extra charges may apply if we encounter solid rock or gravel digging. Any delays by others ( property owner or Village Officials ) , enough so as to stifle work progress will be billed at an extra cost to the United City of Yorkville. All extras should there be any will be in the form of a change order. All Union Fence Company will remain countless in any legal negotiations / law suite(s) either before, during or after the work has been performed. All work will be performed in a professional / workman like manner, All materials to be of highest quality available. AProposalAcceptanceSignature: 04- The customer is responsible for all permits required.Un ground utilities(All cables,conduits,water,sewage,septic, gas,etc.)are to be located and marked by the customer and not the responsibility of All Union Fence or their installers. Gravel,rock,loose sand or other obstructed digging is subject to an additional charge.The fence line is to be staked out and all accessible to workers and equipment.Trimming/clearing trees,bushes,briar,dirt removal and the disposal of concrete footings are subject to additional charges.Delays occurring on the jobsite due to changes orders,Time lost, conditions changes or change in the scope of work are subject to additional charges.$125 per man hour,equipment and materials may also apply. AUcrmm= All Union Fence Co. Inc.907 Rowell Avenue Joliet, IL 60433 Phone 815-726-6995 Fax 815-722-6944 Have a question or comment about this agenda item? Call us Monday-Friday, 8:00am to 4:30pm at 630-553-4350, email us at agendas@yorkville.il.us, post at www.facebook.com/CityofYorkville, tweet us at @CityofYorkville, and/or contact any of your elected officials at http://www.yorkville.il.us/320/City-Council Agenda Item Summary Memo Title: Meeting and Date: Synopsis: Council Action Previously Taken: Date of Action: Action Taken: Item Number: Type of Vote Required: Council Action Requested: Submitted by: Agenda Item Notes: See attached memo. Reviewed By: Legal Finance Engineer City Administrator Human Resources Community Development Police Public Works Parks and Recreation Agenda Item Number New Business #6 Tracking Number EDC 2018-60 Prestwick of Yorkville (Ashley Pointe) – Builder Estoppel Letter and HOA Covenants Economic Development Committee - August 7, 2018 04/28/2018 Approval of Ord. 2018-27 PZC 2018-04 Majority Vote Requested clarification of certain builder and developer obligations related to the Prestwick of Yorkville (Ashley Pointe) Unit 1 subdivision and HOA covenants. Krysti Barksdale – Noble, AICP Community Development Name Department Summary The Prestwick of Yorkville/Ashley Pointe subdivision consists of a two phase development currently with 106 single-family lots in Unit 1 and a school under construction in Unit 2. The successor developers of the property, John and Michelle Stewart, purchased the incomplete subdivision in March 2013 and are currently negotiating a contract with K. Hovnanian Homes, a nation-wide homebuilder, to purchase the remaining 102 undeveloped lots in the first phase. As part of their due diligence process, K. Hovnanian Homes is seeking verification by the City of Yorkville of certain permit fees and development obligations for the remaining unfinished site work, as well as annexation agreement provisions for Unit 1 via an estoppel letter. They are also requesting an amendment and restatement of the declarations for the Ashley Pointe Homeowners Association to release the City’s default rights in the enforcement of the HOA covenants. Both items are required before the sale of the property can be completed. Proposed Estoppel Letter The proposed estoppel letter is intended to clarify and confirm with the City of Yorkville, the current owners (Stewarts) and the contract purchaser (K. Hovnanian) the obligation and provisions for development of the remaining lots in Unit 1 of the Prestwick Subdivision which are as follows: 1. Zoning: The CITY hereby confirms that the Ashley Pointe – Unit 1 Subdivision is zoned R-2 Single Family Residence District zoning to allow for the construction of the one hundred two (102) single-family lots being purchased by Hovnanian. a. The City concurs with this statement. 2. City Fees: The City hereby confirms that the only fees payable by Hovnanian in connection with its construction of homes on the Property under the Annexation Agreement, as amended or any ordinances of the City are the fees listed in the fee schedule attached to this letter as Exhibit B. No other fees, including but not limited to roadway impact fees and park contributions and land-cash fees shall be applicable to the Property. a. The City concurs with this statement. The attached fee schedule has been verified by the City staff. However, it is important to note that the lock on the building permit fee schedule is set to expire on October 8, 2023 which will affect the water connection fees, water meter cost and certain development fees (municipal building). This is further referenced in item #9 below. 3. Recaptures: The City hereby confirms that no part of the Property is subject to any claims under a recapture agreement for reimbursement of the cost to install pubic improvements serving other property. a. The City concurs with this statement. Memorandum To: Economic Development Committee From: Krysti J. Barksdale-Noble, Community Development Director CC: Bart Olson, City Administrator Date: July 25, 2018 Subject: Prestwick of Yorkville - Unit 1 (Ashley Point Subdivision) Restated Declarations of Covenants & Estoppel Letter Approval 4. Public Improvements: The City hereby confirms that Hovnanian shall not be responsible to construct any public improvements on or within the Ashley Pointe Subdivision other than parkway trees and sidewalks on the Property Hovnanian is purchasing. The City further confirms that Hovnanian shall have no obligation to improve any internal or off-site streets. Additionally, the current developer of the Ashley Pointe Subdivision, John & Michelle Stewart’s failure to construct any public improvements and interior, exterior of off-site roadways shall not cause to City to withhold Hovnanian’s building or occupancy permits or take any other action against Hovnanian. The City and Hovnanian acknowledge that all public improvements for all phases of the Ashley Point Subdivision are not the responsibility of Hovnanian. a. The City concurs that the public improvements for Unit 1 of the Prestwick of Yorkville/Ashley Pointe subdivision are the responsibility of the current developer, John & Michelle Stewart, with the exception of parkway trees and sidewalks per Section 4 of the First Amendment to the Annexation Agreement (Ord. 2013-56). Such required public improvements are detailed in a punchlist letter dated March 5, 2018 prepared by the City’s engineer, EEI, and secured by bond in the amount of $178,770.50 via surety bond #0598131 held by the United City of Yorkville. 5. Punch List and Acceptance of Public Improvements. The City herby confirms that the only outstanding public improvements in the Ashley Point – Unit 1 Subdivision are the items specified on Exhibit C attached hereto which are not Hovnanian’s obligations to complete. Upon completion of said remaining public improvements and inspection by the City, the city will accept in the future the public improvements, including, water systems, sewer improvements not maintained by the Yorkville-Bristol Sanitary District, lift station and public roadways. a. The City concurs with this statement. The punchlist letter dated March 5, 2018 prepared by the City’s engineer, EEI, is the most current; however, as work is completed by the developer, the City will recommend starting the acceptance process. 6. Subdivision Security. The City hereby confirms that other than surety required at the time of building permit issuance for each lot owned by Hovnanian, Hovnanian shall have no other obligation to post any surety for subdivision improvements. a. The City concurs with this statement. The current developers, John and Michelle Stewart, have secured a bond in the amount of $178,770.50 to ensure the completion of the outstanding work items identified in the March 2, 2018 punchlist referenced above. 7. Water Availability. The City hereby confirms that water shall be provided to the Property by the City. The City represents that sufficient water capacity is available to serve the Property. a. The City concurs with this statement. 8. Storm Water Management. The City hereby confirms that Hovnanian shall have no obligation to modify the existing storm water improvements located in the Ashley Pointe – Unit 1 Subdivision which have been constructed pursuant to the approved engineering plans. a. The City concurs with this statement. 9. City Fee and City Code Ordinance Lock: The City hereby confirms that the building code and fee freeze provisions contained in the Annexation Agreement for The Prestwick of Yorkville Subdivision, recorded as document no. 200500039118, as amended are applicable to the Property being purchased by Hovnanian and that no fee increases or building code updates shall be applicable to the Property until October 8, 2023. a. The City concurs with this statement. 10. Model Homes, Sales Trailers & Contractor’s Trailers: The City hereby confirms that the model home, sales trailer and contractor trailer provisions contained in the Annexation Agreement for The Prestwick of Yorkville Subdivision, recorded as document no. 200500039118, as amended are applicable to the Property being purchased by Hovnanian. a. The City concurs with this statement. 11. City Appearance Code. The City hereby acknowledges that the City’s Appearance Code approved by Ordinance on June 15, 2005 is inapplicable to the Property as the Ashley Point Subdivision approvals were granted on April 26, 2005 and predate the City’s appearance code. a. The City concurs with this statement. The estoppel letter is proposed to be executed by the Mayor, City Administrator and the current developer, John and Michelle Stewart to ensure that all parties are in agreement of the subdivision obligations. Proposed Restated Declaration of Covenants The currently adopted Declaration of Covenants and Restrictions for The Highlands at Ashley Pointe (Doc #200700014390) and the proposed restated declaration of the homeowner’s association (HOA) covenants prepared by K. Hovnanian are attached for your review and comparison. The City Attorney has reviewed the attached draft and notes that major change is that the City is no longer mentioned as having any rights pursuant to the Declaration. The City’s rights in the prior Declaration were as a default to the association to be able to enforce the covenants in their absence. It has been the City’s position to not have any obligation in the enforcement of homeowners’ covenants, as we maintain the authority to enforce our own ordinances even against the association. Additionally, the existing five (5) property owners of homes previously constructed in the development will also have to sign-off on the amended declarations. Therefore, City staff and the City Attorney have no objections to the requested amended and restated declaration. Since the prior declaration stated no amendments or changes regarding the City’s rights within the document could occur without the consent of the City, the attached draft ordinance has been prepared by the City Attorney for your consideration. Staff Comments: Staff is supportive of the requested estoppel letter and amended and restated declaration of covenants. Since no public hearing is required, and in consideration of the contract purchasers due diligence period, staff is seeking feedback from the EDC with the intention of placing on the August 14, 2018 City Council meeting for final determination. The attorney and a representative for the contract purchaser, K. Hovnanian, will be present at Tuesday night’s meeting to answer any questions from the EDC regarding this matter. Attachments: 1. Copy of Draft Ordinance 2. Copy of Draft Estoppel Letter with exhibits 3. Copy of Draft Amended and Restated Declaration of Covenants, Conditions, Restrictions for Ashley Pointe Homeowners Association. 4. Copy of current bond for Prestwick of Yorkville/Ashley Pointe Unit 1 5. Copy of the current Highlands at Ashley Pointe Declaration of Covenants and Restrictions (Document #200700014390) Ordinance No. 2018-___ Page 1 Ordinance No. 2018-_____ AN ORDINANCE OF THE UNITED CITY OF YORKVILLE, KENDALL COUNTY, ILLINOIS, APPROVING THE AMENDMENT OF THE DECLARATION FOR THE ASHLEY POINTE HOMEOWNERS ASSOCIATION AND APPROVING AN ESTOPPEL LETTER WHEREAS, the United City of Yorkville (the “City”) is a duly organized and validly existing non home-rule municipality created in accordance with the Constitution of the State of Illinois of 1970 and the laws of the State; and, WHEREAS, the City approved a development formerly known as the Highlands at Ashley Pointe for the development of approximately 85.23 acres of real property generally located on the southwest corner of Ashley Road and Illinois Route 126; and, WHEREAS, the Yorkville Farms Development, LLC, the former developer, prepared and filed THE HIGHLANDS AT ASHLEY POINTE DECLARATION OF COVENANTS AND RESTRICTIONS (the “Original Declaration”) establishing The Highlands at Ashley Pointe Homeowners Association; and, WHEREAS, although the City was not a party to the Original Declaration, the Original Declaration provided in paragraph 14.6 that no amendment to the Original Declaration granting rights to the City could be adopted without the prior written consent of the City; and, WHEREAS, John and Michelle Stewart (the “Current Owner”) owns and is the contract seller of 102 of the 108 existing lots of the original development and has requested that the City consent to the filing of the AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS FOR ASHLEY POINTE HOMEOWNERS ASSOCIATION (the “Amended Declaration”); and, WHEREAS, the owners of the remaining 6 lots in this development have joined the Current Owner in the request for the City to approve the Amended Covenants for the Ashley Pointe Homeowners Association; and, WHEREAS, the Current Owner has also requested that the City approve an Estoppel letter Regarding – Ashley Pointe Subdivision – Unit #1 )f/k/a Prestwick of Yorkville Subdivision), Yorkville, Illinois to clarify and restate the remaining development issues for the 102 lots that are to be purchased and developed by K. Hovnanian T&C Homes at Illinois, L.L.C. NOW, THEREFORE, BE IT ORDAINED by the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois, as follows: Section 1: That all of the recitals set forth in the preambles to this Ordinance are correct and are hereby incorporated as if fully set forth herein. Ordinance No. 2018-___ Page 2 Section 2: That the City hereby consents to the amendment of THE HIGHLANDS AT ASHLEY POINTE DECLARATION OF COVENANTS AND RESTRICTIONS by the recording of the AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS, and RESTRICTIONS FOR ASHLEY POINTE HOMEOWNERS ASSOCIATION attached hereto and made a part hereof as Exhibit A Section 3: That the Estoppel letter Regarding – Ashley Pointe Subdivision – Unit #1 )f/k/a Prestwick of Yorkville Subdivision), Yorkville, Illinois attached hereto and made a part hereof as Exhibit B be and is hereby approved and the Mayor, City Administrator and Community Development director are authorized to sign said Estoppel Letter on behalf of the City. Section 4: This Ordinance shall be in full force and effect upon its passage, approval, and publication in pamphlet form as provided by law. Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this ________ day of ____________________, 2018. ______________________________ CITY CLERK CARLO COLOSIMO ________ KEN KOCH ________ JACKIE MILSCHEWSKI ________ ARDEN JOE PLOCHER ________ CHRIS FUNKHOUSER ________ JOEL FRIEDERS ________ SEAVER TARULIS ________ ALEX HERNANDEZ ________ Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this ________ day of ____________________, 2018. ______________________________ MAYOR CH01/ 25743164.2 UNITED CITY OF YORKVILLE, ILLINOIS K. Hovnanian T&C Homes at Illinois, L.L.C. Attention: Jon Isherwood, Vice President Land Acquisition 1804 N. Naperville Blvd., Suite 200 Naperville, Illinois 60563 Re: Estoppel Letter Regarding - Ashley Pointe Subdivision – Unit #1 (f/k/a Prestwick of Yorkville Subdivision), Yorkville, Illinois Dear Mr. Isherwood: The undersigned, the United City of Yorkville, an Illinois municipal corporation (the “City”), acknowledges that K. Hovnanian T&C Homes at Illinois, L.L.C., an Illinois limited liability company (“Hovnanian”), has entered into a contract to acquire certain property located in the City south of Illinois Route 126 and west of Ashley Road consisting of 102 improved residential building lots in the development commonly known as the Ashley Pointe – Unit #1 Subdivision (the “Property”) which Property is legally described on Exhibit A. The City acknowledges that Hovnanian is requiring this estoppel letter as a condition of waiving its right to terminate the Real Estate Purchase Contract (the “Contract”) with Seller under the Contract’s due diligence contingency, and close on the Property. Accordingly, the City hereby certifies and confirms to Hovnanian, and acknowledges and agrees as follows: 1. Zoning: The CITY hereby confirms that the Ashley Pointe – Unit 1 Subdivision is zoned R-2 Single Family Residence District zoning to allow for the construction of the one hundred two (102) single-family lots being purchased by Hovnanian. 2. City Fees: The City hereby confirms that the only fees payable by Hovnanian in connection with its construction of homes on the Property under the Annexation Agreement, as amended or any ordinances of the City are the fees listed in the fee schedule attached to this letter as Exhibit B. No other fees, including but not limited to roadway impact fees and park contributions and land-cash fees shall be applicable to the Property until expiration of the fee lock new fees may apply. 3. Recaptures: The City hereby confirms that no part of the Property is subject to any claims under a recapture agreement for reimbursement of the cost to install pubic improvements serving other property. 4. Public Improvements: The City hereby confirms that Hovnanian shall not be responsible to construct any public improvements on or within the Ashley Pointe Subdivision other than parkway trees and sidewalks on the Property Hovnanian is purchasing. The City further confirms that Hovnanian shall have no obligation to improve any internal or off-site streets. Additionally, the current developer of the Ashley Pointe Subdivision, John & Michelle Stewart’s failure to construct any public improvements and interior, exterior of off-site roadways CH01/ 25743164.2 shall not cause to City to withhold Hovnanian’s building or occupancy permits or take any other action against Hovnanian. The City and Hovnanian acknowledge that all public improvements for all phases of the Ashley Point Subdivision are not the responsibility of Hovnanian. 5. Punch List and Acceptance of Public Improvements. The City herby confirms that the only outstanding public improvements in the Ashley Point – Unit 1 Subdivision are the items specified on Exhibit C attached hereto which are not Hovnanian’s obligation to complete. Upon completion of said remaining public improvements and inspection by the City, the city will accept in the future the public improvements, including, water systems, sewer improvements not maintained by the Yorkville-Bristol Sanitary District, lift station and public roadways. 6. Subdivision Security. The City hereby confirms that other than surety required at the time of building permit issuance for each lot owned by Hovnanian, Hovnanian shall have no other obligation to post any surety for subdivision improvements. 7. Water Availability. The City hereby confirms that water shall be provided to the Property by the City. The City represents that sufficient water capacity is available to serve the Property. 8. Storm Water Management. The City hereby confirms that Hovnanian shall have no obligation to modify the existing storm water improvements located in the Ashley Pointe – Unit 1 Subdivision which have been constructed pursuant to the approved engineering plans. 9. City Fee and City Code Ordinance Lock: The City hereby confirms that the building code and fee freeze provisions contained in the Annexation Agreement for The Prestwick of Yorkville Subdivision, recorded as document no. 200500039118, as amended are applicable to the Property being purchased by Hovnanian and that no fee increases or building code updates shall be applicable to the Property until October 8, 2023. 10. Model Homes, Sales Trailers & Contractor’s Trailers: The City hereby confirms that the model home, sales trailer and contractor trailer provisions contained in the Annexation Agreement for The Prestwick of Yorkville Subdivision, recorded as document no. 200500039118, as amended are applicable to the Property being purchased by Hovnanian. 11. City Appearance Code. The City hereby acknowledges that the City’s Appearance Code approved by Ordinance on June 15, 2005 is inapplicable to the Property as the Ashley Point Subdivision approvals were granted on April 26, 2005 and predate the City’s appearance code. 12. Reliance. The City hereby acknowledges that Hovnanian will rely upon the representations and agreement made by the City herein in connection with Hovnanian’s agreement to waive its right to terminate the Contract and close on the Property. EXECUTED THIS ____ DAY OF AUGUST, 2018. CH01/ 25743164.2 THE UNITED CITY OF YORKVILLE, ILLINOIS, An Illinois municipal corporation By: Name: Its: Mayor By: Name: John & Michelle Stewart’s Owner: By: Name: Its: City Administrator CH01/ 25743164.2 Exhibit A Description of the Property LOTS 1-10, 13-22, 33-36, 23-32, 37-41, 43-50, 52, 53-62, lot 63 or lot 65, 67-79, 66, & 80-108 IN THE PRESTWICK OF YORKVILLE UNIT 1 , ACCORDING TO THE PLAT THEREOF RECORDED OCTOBER 31, 2006 AS DOCUMENT 200600035287, IN THE UNITY CITY OF YORKVILLE, KENDALL COUNTY, ILLINOIS. CH01/ 25743164.2 Exhibit B Fee Schedule [See attached] CH01/ 25743164.2 Exhibit C Punch List [See attached] AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS FOR ASHLEY POINTE HOMEOWNERS ASSOCIATION Prepared by: Vince M. Rosanova Rosanova & Whitaker, Ltd. 30 W. Jefferson Ave., Suite 200 Naperville, IL 60540 Return to: Vince M. Rosanova Rosanova & Whitaker, Ltd. 30 W. Jefferson Ave., Suite 200 Naperville, IL 60540 AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS FOR ASHLEY POINTE HOMEOWNERS ASSOCIATION This Amended and Restated Declaration of Covenants, Conditions, Restrictions (“Declarations”) for Ashley Pointe Homeowners Association is made this ______ day of _______2018, by the persons who are signatories below as the current record owners of property within the Ashley Pointe subdivision, the Ashley Pointe Homeowners Association, (the “Association”) and Michelle and John Stewart, as Declarant (“Declarant”). WITNESSETH: WHEREAS, Yorkville Farms Development, LLC, an Illinois limited liability company recorded certain covenants and restrictions (“Covenants”) on May 2, 2007, (the “Original Recording Date”) as document number 200700014390 with the Kendall County Recorder, affecting the property legally described in Exhibit A (the “Property”), then known as The Highlands at Ashely Pointe, in the United City of Yorkville, County of Kendall, State of Illinois; and WHEREAS, as of the Original Recording Date, the Property has been improved with one hundred eight (108) fully improved single family residence lots (“Lots”); and WHEREAS, the six record owners of the Lots identified on Exhibit B attached hereto (“Current Owners”); WHEREAS, K. Hovnanian _______, LLC (“KHOV”) is the contract purchaser of one hundred two (102) of the Lots identified as the “Stewart Lots” on Exhibit C; and WHEREAS, the Stewart Lots are to be transferred and conveyed in a series of four transactions in accordance with the Real Estate Sale Contract (“Contract”) by and between KHOV and Yorkville Christian School Inc., an Illinois not for profit corporation (“YCS”) as the intended grantor of the Stewart Lots under the Contract; and WHEREAS, Declarant intends to subject the Property to the covenants, conditions, restrictions, easements, charges and liens hereinafter set forth, each and all of which is and are for the reasonable benefit of the Owners (as hereinafter defined) and public welfare, and more specifically for the purpose of enhancing and protecting the value of the Property and insuring maintenance of the Common Area (as hereinafter defined) in conformity with all applicable ordinances, and for collecting and disbursing the assessments and charges hereinafter provided for, and for such other purposes as hereinafter described; and NOW, THEREFORE, the Stewarts as Declarant and Owner of more than sixty six percent (66%) of the Lots hereby amends and restates the Declaration in its entirety, and hereby declare that the Property, except for the part of the former Lot 358 which is included in Lot 1 of the Re-Subdivision (as hereinafter defined) shall be held, sold and conveyed subject to this Declaration containing the following covenants, conditions, restrictions, easements, charges and liens which shall replace in their entirety the Covenants and constitute the general plan for the benefit of and enforcement by all present and future owners of any of the Lots within the Property, so as to protect the value and desirability of the Property and be binding on and inure to the benefit of all parties having any right, title or interest in the described properties or any part thereof, their heirs, successors and assigns. ARTICLE I DEFINITIONS When used in this Declaration, the following words and terms shall have the following meanings: 1.1 "Added Property” shall mean the real property described on Exhibit D provided the Added Property is or shall be developed as additional Common Area or subdivided into lots with residential improvements constructed thereon. 1.2 “Association" shall mean and refer to The Ashley Pointe Homeowners Association, an Illinois not-for-profit corporation, its successors and assigns. 1.3 “Berm and Landscape Easement” shall mean the perpetual berm and landscape easement granted to the Association, in, upon and over the Berm Easement Area (“Berm Easement Area”) described on Exhibit D hereto as granted in that Declaration of Covenant and Grant of Berm and Landscape Easement, recorded as document number 20070011391 with the Kendall County Recorder. 1.4 “Board" shall mean and refer to the Board of Directors of the Association. 1.5 "Common Area" shall include Lot 357, Lots 360 through 363, inclusive and Lot 365, and Lot 2 of the Re-Subdivision for the common use and passive enjoyment by the Owners. Lot 1 of the Resubdivision shall be owned by and Yorkville Christian School Inc., an Illinois not for profit corporation and shall not be subject to this Declaration. Lot 359 shall be owned by the Yorkville Park District and shall not be subject to this Declaration. 1.6 "Declarant" shall mean and refer to John and Michelle Stewart and their successors and assigns. 1.7 "Designated Builder" shall mean such person(s) or entit(ies) as appointed by Declarant in a supplemental declaration who shall enjoy one or more of the rights of Declarant as contemplated in Section 8.9 hereof. 1.8 "Lot" shall mean the lots designated pursuant to a Subdivision Plat. 1.9 "Improvement" or "Improvements" shall mean and include any and all buildings, driveways, pedestrian walkways, fences, decks, patios, hedges, lawns, sidewalks, planted trees, shrubs and all other structures or landscaping improvement of every kind and description. 1.10 "Member" shall mean and refer to every person or entity who owns a Lot in the Property. 1.11 "Owner" shall mean and refer to the record owner (or the beneficiary of a land trust which may be a record owner), whether one or more persons or entities, of a fee simple title to a Lot, excluding those who have such interest merely as security for the performance of an obligation. 1.12 “Re-Subdivision” shall mean the Final Plat of Subdivsion of Yorkville Christian School Re Subdivision recorded on _________, 2018 as document number 2018_____ with eh Kendall County Recorder. 1.13 "Subdivision Plat" shall mean the final plat of subdivision of the Property recorded on October 31, 2006 as document number 200600035287 with the Kendall County Recorder. 1.14 “Turnover Date” shall mean such time as Declarant no longer holds or controls title to any part of the Property, provided, however that in the event a Designated Builder shall be appointed, the Turnover Date shall not occur until such time as the Designated Builder has received occupancy permits from the City for the improvements constructed (or to be constructed) on such Lots owned by Designated Builder. 1.15 "City" shall mean and refer to the United City of Yorkville, Illinois or its successor. ARTICLE II PROPERTY; ASSOCIATION; PURPOSE 2.1 Statement of Purpose. The purpose of this Declaration is to insure the use and development of the Property consistent with the desire and intention of the Declarant and any Designated Builder appointed by Declarant to establish a residential community of high quality, to protect the Owner against the use of the Property or any part of the Property inappropriate to a fine residential community and incompatible with the proper enjoyment of such community; to prevent the construction of buildings, which, because of their design or construction or materials, are not in aesthetic harmony with other buildings on the Property; to encourage the construction of fine quality homes compatible with the architectural character of the Property; to make certain that homes are so located on sites within the Property that each home enjoys light, air, and free and open space; to protect Owners of Property against any improper use of proximate Lots as may depreciate the value of their property; and to insure that the Property is at all times carefully maintained and operated that they may be enjoyed and used with comfort and pleasure by the Owner. It is the purpose of the Declaration, in general to provide that the Property will be so managed, maintained and preserved, and that it will at all times be regarded as a residential community of outstanding excellence. 2.2 Conveyances Subject to Declaration. Each Owner and each future grantee by taking title to a Lot, and each purchaser under any contract for a deed of conveyance pursuant to which said grantee will take title, accepts said title subject to all restrictions, conditions, covenants, reservations, liens and charges, and the jurisdiction, rights and powers created or reserved by this Declaration, and all rights, benefits and privileges of every character hereby granted, created, reserved or declared, and all impositions and obligations hereby imposed shall be deemed and taken to be covenants running with the land, and shall bind any person having at any time any interest or estate in said land, and shall inure to the benefit of such person in like manner as though the provisions of this Declaration were recited and stipulated at length in each and every deed of conveyance, or in any mortgage or trust deed or other evidence of obligation, and the rights described in this Section or described in any other part of this Declaration shall be sufficient to create and reserve such rights to the respective grantees, mortgagees and trustees of such Lot as fully and completely as though such rights were recited fully and set forth in their entirety in any such documents 2.3 Association. Each Owner and each future grantee by taking title to a Lot shall automatically become a Member of the Association and shall remain such so long as ownership is retained. Membership shall be appurtenant to and may not be separated from ownership of any Lot. The Association has been formed in perpetuity. 2.3 Added Property. Declarant, at any time from time to time, may annex and make subject to the terms of this Declaration any portion of the Added Property owned by Yorkville Christian School, Inc. or Declarant. In order to subject the Added Property to this Declaration, the owner of the Added Property and the Association shall execute and deliver a supplemental declaration (the “Supplemental Declaration for Added Property”) which shall indicate the action being taken and shall thereafter be recorded with the recorder of deeds. Thereafter, the Added Property shall be covered by this Declaration and the obligations contained herein shall run with and bind the Added Property and be a personal obligation of the owner of the Added Property. The recording of the Supplemental Declaration for Added Property shall not alter or affect the amounts of any liens or assessments due from any existing Owner prior to such recording, nor the respective amounts theretofore assessed or due from any Owner. Each Owner of the Property and their respective mortgages, grantees, successors and assigns, shall be deemed to have expressly agreed to each and all of the provisions of this Declaration with respect to the recording of the Supplemental Declaration for Added Property and agrees to execute and deliver such documents, as may be necessary or desirable to cause the provisions of this Section to be carried out. ARTICLE III VOTING RIGHTS 3.1 Voting. Until the Turnover Date, the affairs of the Association shall be managed by the Declarant. From and after the Turnover Date, each Member shall be entitled to one (1) vote for each Lot owned by him on each matter submitted to a vote of Members; provided, however, that where there is more than one Owner of a Lot, such co-owners of a Lot shall only be entitled to one (1) vote. 3.2 Board of Directors. Until the Turnover Date, Declarant shall appoint the Board of Directors, which shall consist of three (3) persons. Subsequent to the Turnover Date at the initial meeting of the Members, the Owners shall elect three (3) directors who shall hold office for two (2) year terms. However, with respect to the initial Board of Directors elected by the Members, two of the three directors receiving the highest number of votes shall hold office for two (2) years, and the remaining director shall hold office for only one (1) year. Thereafter, for all subsequent elections, the terms of the office shall be similarly staggered. After the Turnover Date, there shall be an annual election to fill the offices of the directors whose terms are expiring. Said election shall occur at the annual membership meetings. Vacancies in the Board occurring between regularly scheduled meetings of the Members may be filled by the current Board. Declarant may, from time to time, by written notice to the Association, elect to relinquish its right to appoint any one or more directors and continue to exercise its right to appoint the remaining directors of the Board until the Turnover Date. 3.3 Officers. The Association shall have such officers as shall be appropriate from time to time, who shall be elected by the Board and who shall manage and conduct the affairs of the Association under the direction of the Board. 3.4 Initial Member Meeting. Subsequent to the Turnover Date, the initial meeting of the Members shall be held at such time as may be designated upon not less than ten (10) days written notice given by the Declarant, provided that such initial meeting shall be held no later than sixty (60) days after the Turnover Date. Thereafter, there shall be an annual meeting of the Members on the third Tuesday of November of each succeeding year. If the date for the annual meeting of Members is a legal holiday, the meeting will be held at the same hour on the first day next succeeding such date which is not a legal holiday. 3.5 Member Meetings. Meetings of the Members shall be held at the principal office of the Association or at such other place in Kendall County, Illinois, as may be designated in any notice of a meeting. The presence at any meeting, in person or by proxy, of twenty percent (20%) of the total votes determined pursuant to Section 3.1 above shall constitute a quorum. Unless otherwise expressly provided herein, any action may be taken at any meeting of the Members at which a quorum is present upon the affirmative vote of the Members having a majority of the total votes present at such meeting. Any Member in writing may waive notice of a meeting, or consent to any action of the Association without a meeting. 3.6 Special Meetings. Special meetings of the Members may be called at any time for the purpose of considering matters which by the terms of the Declaration require the approval of all or some of the Members or for any other reasonable purpose. Said meetings shall be called by written notice, authorized by a majority of the Board or by the Members having twenty percent (20%) of the total votes, and delivered not less than five (5) days prior to the date fixed for said meeting. The notices shall specify the date, time and place of the meeting and the matters to be considered. 3.7 Notice. Notices of meetings required to be given herein may be delivered either personally or by mail to the persons entitled to vote thereat, addressed to each such person at the address given by him to the Board for the purpose of service of such notice, or to the common Lot address with respect to which such voting right appertains, if no address has been given to the Board. 3.8 Proxy Voting. At any meeting of the Members, a Member entitled to vote may either vote in person or by proxy executed in writing by the Member or by his duly authorized attorney-in-fact. No proxy shall be valid after eleven (11) months from the date of its execution unless otherwise provided in the proxy. 3.9 Attendance at Board Meetings by Owners. Owners may attend meetings of the Board. ARTICLE IV EASEMENTS 4.1 Common Area Easement. Each Owner and their respective guests, invitees and employees shall have a nonexclusive easement for the passive use and quiet enjoyment in and to the open space of the Common Area subject to the following: (i) the right of the Association to pass reasonable rules and regulations relating to such use and enjoyment; (ii) the right of the Association to suspend an Owner's right to use or enjoy such easement for any period during which such Owner may be in violation of this Declaration; (iii) the right of the Association to levy assessments as herein provided; and (iv) any and all rights reserved to Declarant and the Association as herein provided. 4.2 Public Utilities Easement. The City shall have a nonexclusive easement over not less than a fifteen (15) foot wide area on the Property as delineated on the Subdivision Plat as “Utilities” for installing, constructing, maintaining, repairing and replacing public utilities including, without limitation, all City-owned storm sewers, sanitary sewers and water mains that extend beyond the limits of the public right of ways. 4, 3 Landscape Easement. The Association shall inspect and maintain the Berm Easement Area. The Owners of any Lot encumbered by the Berm and Landscape Easement are forbidden from installing a fence or other structure within the Berm Easement Area. 4.4 Additional Easements. The Declarant and Association hereby reserve the right to grant additional easements for ingress, egress, installation, construction, reconstruction, maintenance, repair, operation and inspection of the Common Areas as they deem necessary or desirable in order to effectuate the intent of this Declaration. ARTICLE V RESTRICTIVE COVENANTS 5.1 Fence Restriction. The Owner of each Lot may (but need not) erect a fence on the interior boundary of the Owner's rear yard area of the Lot, except that no fence shall be installed in any portion of a retention, detention, drainage area or floodway as designated on the Subdivision Plat or within the Berm Easement Area. Any fence which is erected on the Owner's Lot shall be subject to the following: (a) the fence shall be constructed within the fence guidelines as established from time-to- time by the Declarant or Association and as supplemented by the City, stating the type of fence allowed; and (b) the Owner of the Lot shall at all times maintain the fence in good condition and repair at the Owner’s sole cost and expense; and (c) the Owner shall have received the prior written consent of the Association; except that fences which exist on a Lot as of the date of the recording of this Declaration shall be considered approved by the Association. 5.2 General Restrictions. (a) All Lots shall be used only for detached single-family dwellings or as Common Areas. Each Owner shall (i) maintain his Lot and all Improvements located thereon in a clean, sightly and safe condition; (ii) cause the prompt removal of all papers, debris and refuse therefrom and the removal of snow and ice from all sidewalks, driveways and similar areas serving said Lot; (iii) comply with all applicable governmental codes, laws, ordinances, orders, decrees, rules and regulations and (iv) comply with any rules and regulations adopted by the Association. (b) All Improvements shall be constructed in accordance with all applicable governmental building and zoning codes, laws, ordinances, orders, decrees, rules and regulations, excepting that if, and to the extent any conflict exists between the terms and conditions of this Declaration and the provisions of any such codes, laws, ordinances, orders, decrees, rules and regulations, then such conflict shall be resolved by the application of the more stringent provision yielding the higher or better quality result. (c) The following design requirements shall apply to each single family dwelling constructed on a Lot: (i) A one story residence shall contain a minimum of One Thousand Five Hundred (1,500) square feet of living area, exclusive of garage, breezeway, porches and basement; (ii) A two story residence shall contain a minimum of One Thousand Seven Hundred Ninety Four (1,794) square feet of living area, exclusive of garage, breezeway, porches and basement. (c) No noxious or offensive activity shall be carried on, in or upon the Property, nor shall anything be done thereon which may constitute or become an annoyance or nuisance to the Owners. (d) Except as expressly provided herein, no temporary building, no detached storage shed, trailer, mobile home, recreational vehicle, permanent tent, shack, above ground swimming pool, tennis court, gazebo, landscape device or screen enclosure or other similar Improvement shall be located upon the Lots. (e) No Person shall accumulate on his Lot any derelict vehicle, litter, refuse or other unsightly materials. Garbage shall be disposed of in accordance with Village code or ordinance. All garbage (except recycling and yard waste) shall be enclosed in "roll out" containers. (f) Trucks, boats, recreational vehicles, trailers or other vehicles (other than automobiles) shall at all times be parked in the garage of the dwelling and their repair or maintenance shall not be permitted except within the confines of the garage. Trucks that do not fit in the garage shall not be permitted in the driveway. Commercial vehicles shall not be permitted in the driveway for longer than twenty-four (24) hours. (g) No animals (other than inoffensive common domestic household pets such as dogs and cats) shall be kept on any Lot or within the confines of any Improvement thereon. The breeding or keeping of dogs or cats for sale or profit is expressly prohibited. Dog runs are to be maintained at all times so as to be non-offensive. (h) The erection of any communication antennae or similar devices (other than simple mast antennae or television reception device located on the roof of a dwelling) shall not be allowed unless completely screened from view and approved in writing in advance by the Association. The Owner shall obtain a permit from the City, if necessary, before erecting such device. (i) No trees, plantings, shrubbery, fencing patios, structures, landscaping treatment or other obstructions shall be planted, placed or allowed to remain in any stormwater drainage or detention area. No Owner shall alter the rate or direction of flow of water from any Lot by impounding water, changing grade, blocking or redirecting swales, ditches or drainage areas or otherwise. ARTICLE VI ASSOCIATION; MAINTENANCE 6.1 Association. The Association was formed as an Illinois not-for-profit corporation on April 4, 2014. The Board shall manage the affairs of Association, including the maintenance of the Common Areas. Each Owner shall pay Assessments. In addition, the Association may establish and enforce any additional rules and regulations deemed reasonably necessary by the Board. The Association shall have the right to delegate to a professional management company or others such authority and duties as may be granted and imposed upon the Board. So long as Declarant holds an ownership interest in any Lot, and in the event that, in the reasonable judgment of Declarant, the Association is not fulfilling its maintenance obligations outlined above, Declarant has the right to perform such maintenance, operation or preservation as is necessary in Declarant's judgment, if such maintenance, operation or preservation is not satisfactorily completed by the Association. Declarant shall provide the Association within five (5) days after written notice of the necessity thereof by Declarant. Any and all costs of performance of the above, if undertaken by Declarant, shall be reimbursed to Declarant or its agents or contractors performing such work within five (5) days after written notice of such costs is provided to the Association. Any late payment of the above costs shall accrue interest at an annual rate of ten percent (10%), or the maximum rate allowable under Illinois law, whichever is greater. 6.2 Insurance. The Association may obtain and maintain comprehensive public liability insurance, including liability for injuries to and death of persons and property damage in such limits as it shall deem desirable, and workers' compensation insurance and other liability insurance as it may deem desirable insuring the Declarant, and their respective employees and agents from liability and insuring the officers of the Association and the Board from liability for any good faith actions taken beyond the scope of their respective authority. The Association shall also have the authority and responsibility to obtain and maintain insurance policies covering the Common Areas against loss or damage by fire and such other hazards contained in customary fire and extended coverage, vandalism and malicious mischief endorsements as the Association may deem desirable. The Association shall also have the authority to obtain such other kinds of insurance as the Association shall from time to time deem prudent. The premiums for such insurance shall be common expenses payable out of the proceeds of the assessment set forth in Article VII hereof. 6.3 Liability of Board. The Board, officers of the Association and the employees and agents of any of them shall not be liable to the Owners or any other person for any mistake of judgment or for any acts or omissions of any nature whatsoever in their respective positions, except for such acts or omissions found by a court of competent jurisdiction to constitute willful misfeasance, gross negligence or fraud. The Owners shall indemnify, hold harmless, protect and defend the foregoing parties against all claims, suits, losses, damages, costs and expenses including, without limitation, reasonable attorneys’ fees and amounts paid in reasonable settlement or compromise incurred in connection therewith. The burden of the foregoing indemnity shall be borne by the Owners at the time such loss, damage, cost or expense is incurred in the same proportion as assessments are borne by the Owners. To the extent possible, the Board's and Association's liability and the Owner's indemnification obligation with respect thereto, shall be insured by means of appropriate contractual endorsements to the comprehensive general liability insurance policies held from time to time by the Association. 6.4 Declarant Rights. Until the Turnover Date, the Declarant shall have all the rights and powers herein granted to the Association and shall be authorized and empowered to exercise all power and authority of the Board. The fiduciary duty of Declarant to the Association and the Owners shall be limited to the extent that it exercises control over all Association matters for the reasonable benefit of the Association until the Turnover Date. In addition to any right and power granted by law or otherwise as set forth in this Declaration, Declarant shall have the following rights and powers: (a) The right to construct homes and to temporarily store construction equipment and materials on the Property; (b) The right to construct and maintain model units, sales or leasing offices, parking areas, advertising signs, lighting and banners, or other promotional facilities at such locations and in such forms as the Declarant may deem advisable and to use such model units (including model units which are sold and leased back to Declarant), sale or leasing offices or other facilities for the purpose of selling or leasing homes on the Lot or at the other properties in the general location of the Property which are being offered for sale by the Declarant or any of its affiliates, without the payment of any fee or charge other than the Assessments; (c) The right of ingress, egress and parking in and through, and the right to use and enjoy the Common Area, at any and all reasonable times without additional fees other than the payment of Assessments; (d) The right to utilize, for itself and it agents, employees, guests and invitees, all facilities of the Association, including all recreation, signage, lighting, roads streets and Common Areas; (e) The right and power to lease any homes owned by it on any Lot to any person or entity which it deems appropriate in its sole discretion; (f) The right to appoint the Board of Directors (until the Turnover Date); (g) The right to call special meetings of the Members; (h) The right to obtain and maintain insurance on behalf of the Association, to the extent not provided for by the Association, and to be reimbursed for the cost and expense thereof; (i) The right to be named as an additional insured under the Owner’s indemnification obligations with respect to the Board’s and the Association’s liability; (j) The right to enforce the covenants and restrictions contained in the Declaration; including without limitation any remedies available (which shall include the right to bring an action at law or in equity against the Owner personal, the right to foreclose any lien; and forcible detainer) by the Board for any violation by an Owner thereof for unpaid charges or assessments or otherwise, (k) The right to establish reasonable rules and regulations relating to the use and enjoyment of the Common Areas and the right to suspend an Owner’ use thereof in the vent of Owner default; (l) The right to perform any maintenance obligations of the Association to the extent the Association is not fulfilling said obligation and the right to be reimbursed for all such consist incurred in connection therewith; (m) The right to levy a special assessment and or impose a required initial capital contribution from the initial third party homebuyer of the Lot at the closing of the sale of such Lot, which amount shall be deposited in the Contingency and Replacement Reserve held by the Association; (n) The right to approve a special assessment; and (o) The right to approve the additional of the Added Property in accordance herewith. ARTICLE VII ASSESSMENTS 7.1 Assessment. Each Owner shall be deemed to have covenanted and agreed to pay to the Association annual assessments or charges and special assessments for capital improvements and unforeseen expenses, to be collected from time to time as hereinafter provided. The annual and special assessments, together with such interest thereon and costs of collection thereof, as hereinafter provided, shall be a lien on the Lot against which each such assessment is made. Each such assessment, together with such interest, costs and reasonable attorney's fees shall be the personal obligation of the person who was the Owner of such Lot at the time when the assessment fell due. The personal obligation of an Owner shall not pass to his successors in title unless expressly assumed by them. When the first Board elected by the Members hereunder takes office, it shall determine the estimated cash requirement of the annual assessment for the period commencing on the first day of the month following the Turnover Date and ending on December 31 of the calendar year in which the Turnover Date occurs. 7.2 Purpose of Assessments. The assessments levied by the Association shall be used for the purpose of promoting the health, safety, and welfare of the residents of the Property and in particular for the maintenance of the Common Area. Such uses shall include, without limitation, the cost of all general real estate taxes for the Common Area (if any), insurance, repair, replacement and maintenance and other charges required or permitted by this Declaration and the cost of those items that the Board shall determine to be necessary or desirable to meet the purposes of the Association including, without limitation, the establishment and maintenance of a Contingency and Replacement Reserve. The annual Assessments as of the day of recording of this Declaration shall be _____________________. 7.3 Annual Assessment. Each year on or before November 1, the Board will estimate the total amount of maintenance expenses necessary to pay the cost of wages, materials, taxes, insurance, services, supplies and any other necessary or desirable items which will be required during the ensuing calendar year (January 1 - December 31) for services authorized by the Board, together with a reasonable amount necessary to fund the Contingency and Replacement Reserve, and shall, on or before December 1, notify each Owner in writing of the amount of such estimated monthly Assessment. The monthly Assessment shall be assessed equally among all of the Lots. On or before January 1 of the ensuing fiscal year, each Owner shall be obligated to pay to the Board, or as it may direct, the annual assessment made pursuant to this Section 7.3. The Board shall upon demand at any time furnish a certificate in writing signed by an officer or agent of the Association, setting forth whether the assessments on a specified Lot have been paid. Such certificates shall be conclusive evidence of payment or nonpayment of any assessment thereon. 7.4 Contingency Replacement Reserve. The Board shall build up and maintain a reserve for the replacement of capital improvements, other authorized capital expenditures and for unforeseen expenditures (the "Contingency and Replacement Reserve"). Capital improvements and expenditures which may become necessary during the year shall be charged first against the Contingency and Replacement Reserve. 7.5 Special Assessment. If the Contingency and Replacement Reserve proves inadequate for any reason, including nonpayment of any Owner's assessment, the Board may, at any time, levy a special assessment, which shall be assessed equally among all the Lots. The Board shall serve notice of any such special assessment on all such Owners by a statement in writing giving the amount and reasons therefor, and such special assessment shall become effective and fully payable ten (10) days after the delivery or mailing of any such notice of assessment provided that to the extent a Designated Builder has been appointed by Declarant, the approval of the Designated Builder shall be required prior to the imposition of the special assessment. 7.6 Non-Payment of Assessments. Any assessments or other charges which are not paid when due shall be delinquent. If the assessment or charge is not paid within thirty (30) days after the due date, the assessment shall bear interest from and after the due date at the lesser of the rate of twelve percent (12%) per annum or the highest rate allowed by law, and the Association may bring an action at law against the Owner personally obligated to pay the same or foreclose the lien against the Owner's Lot, and interest, costs and reasonable attorneys’ fees incurred in any such action shall be added to the amount of any such overdue assessment. 7.7 Lien. The amount of any delinquent and unpaid charges or assessments, and interest costs and fees as above provided, shall be and become a lien or charge against the Lot of any such Owner when payable and may be foreclosed by an action brought in the name of the Board as in the case of foreclosure of mortgage liens against real estate. The directors of the Board and their successors in office, acting on behalf of the other Owners, shall have the power to bid in the interest so foreclosed at foreclosure sale, and to acquire and hold, lease, mortgage and convey any interest so acquired. To the fullest extent permitted by law, any court shall be authorized to restrain the defaulting Owner from reacquiring his interest at such foreclosure sale. 7.8 Other Remedies of the Board. In addition to the rights and remedies set forth in Section 7.7, if any Owner shall default in the payment, when same shall be due, of the aforesaid charges or assessments and said default shall continue for thirty (30) days after written notice to said Owner by the Board, of the amount of unpaid charges or assessments and a demand for payment thereof, the Board shall have the right to declare said default a forcible detainer of the dwelling and shall have the right, on behalf of the other Owners, to enter and take possession of the dwelling from any defaulting Owner, to put out said Owner, or any occupant or tenant claiming by, through or under said Owner, using such reasonable force as the Board shall deem necessary under the circumstances and, in addition, to exercise any other rights or remedies provided in the Forcible Entry and Detainer Act, 735 ILCS 5/9-101 et. seq. (West 1996). 7.9 Subordination. The lien of assessments provided for herein shall be subordinate to (a) the lien of any first mortgage now or hereafter placed on the Lots; and (b) the lien of any second or subordinate mortgage that is recorded against any Lot prior to the time of a delinquent assessment for which a lien foreclosure action is pursued under this Declaration. In the event of the issuance of a deed pursuant to the foreclosure of such prior Mortgage or in lieu of such foreclosure, the grantee of such deed shall take title free and clear of any lien for assessment authorized by this Declaration so long as any such lien shall have arisen prior to the date of recording of any such deed. 7.10 No Release. The failure or delay of the Board to prepare to serve the estimated Assessment on any Owner shall not constitute a waiver or release in any manner or any Owner's obligation to pay his Assessment s herein provided, as and when the Assessment shall be determined. In the absence of the preparation of a statement of the annual Assessment and service on the Owner, the Owner shall continue to pay the Assessment at the then existing annual rate established for the previous calendar year, subject to adjustment at such time as the annual Assessment has been prepared and the Owners have been notified thereof. ARTICLE VIII GENERAL PROVISIONS 8.1 Promotion and Construction. Declarant shall be entitled at all times to conduct sales of Lots from the Property owned by Declarant and shall have the right, for itself and its agents, employees, guests and invitees, to utilize roads, streets, Common Areas and all other portions of the Property, excluding sold Lots, for such purposes until all Lots are sold. Declarant may at all times prior to the sale of the final Lot utilize all facilities including, without limitation, all recreational facilities, signage, lighting, and establish sales offices and model homes as required to conduct its sales and marketing of the Property. 8.2 Covenants Run With Land. The covenants and restrictions of this Declaration shall run with the land and shall inure to the benefit of and be enforceable by the Board, Declarant, or the Owner of any Lot subject to this Declaration, their respective legal representatives, heirs, successors, and assigns, for a term of twenty (20) years from the date this Declaration is recorded in the Office of the Recorder of Deeds of Kendall County, Illinois, after which time said covenants shall be automatically extended for successive periods of ten (10) years, subject to amendment as hereinabove provided. If and to the extent that any of the covenants would otherwise be unlawful or void for violation of (a) the rule against perpetuities; (b) the rule restricting restraints on alienation; or (c) any other applicable statute or common law rule analogous thereto or otherwise imposing limitations upon the time during which such covenants may be valid, then said covenant shall continue and ensure only until the expiration of twenty-one (21) years after the death of the last to survive of the now living lawful descendants of any current or former Presidents of the United States living at the date of this Declaration. 8.3 Enforcement. The covenants and restrictions of this Declaration may be enforced by any proceeding at law or in equity, either to restrain violation or to recover damages, by the Association, against any person(s) violating or attempting to violate any covenant or restriction. In addition, the Association shall recover its reasonable costs of enforcement (including attorneys' fees) against any Owner (but not the Declarant) found to be in violation of any covenant or restriction of this Declaration. Declarant shall have the right jointly and separately to sue for and obtain a prohibitive or mandatory injunction to prevent the breach of, or to enforce the observance of, the covenants and obligations above set forth, or any of them, in addition to the right to bring a legal action for damages. 8.4 Amendment. Any revocation, modification, amendment or supplement to the Declaration may be effective only upon a two-thirds (2/3) vote of the Members and prior to the Turnover Date, the written consent of the Declarant. Notwithstanding the foregoing, (i) the designation of a Designated Builder (as contemplated in Section 8.9) shall not require the consent or vote of the Members and (ii) any amendment or supplement to this Declaration which effects any of the rights, covenants, obligations, privileges and obligations of a Designated Builder shall also require the consent of the Designated Builder, which consent shall not be unreasonably withheld, conditioned or delayed. 8.5 Title Holding Land Trust. In the event title to any Lot is conveyed to a title holding trust, under the terms of which all powers of management, operation and control of the Lot remain vested in the trust beneficiary or beneficiaries, then the beneficiaries thereunder from time to time shall be responsible for payment of all obligations and undertakings chargeable or created under this Declaration against any such Lot. No claim shall be made against any such title holding trustee personally for payment of any lien or obligation hereunder created, and the trustee shall not be obligated to sequester funds or trust property to apply, in whole or in part, against such lien or obligation. The amount of such lien or obligation shall continue to be a charge or lien upon said Lot and the beneficiaries of such trust, notwithstanding any transfers of the beneficial interest of any such trust or any transfers of title to any such Lot. 8.6 Headings. All headings set forth herein are intended for convenience only and shall not be given or construed to have any substantive effect on the provisions of this Declaration. The singular shall include the plural wherever the Declaration so requires, and the masculine, the feminine and neuter, and vice versa. 8.7 Partial Invalidity. If a court of competent jurisdiction shall hold invalid or unenforceable any part of this Declaration, such holding shall not impair, invalidate or otherwise affect the remainder of this Declaration, which shall remain in full force and effect. 8.8 Assignment by Declarant Any and all rights which are specified in this Declaration to be rights of the Declarant are mortgageable, pledgable, assignable or transferable. Any successor to, or assignee of, the rights of the Declarant hereunder (whether as the result of voluntary assignment, foreclosure, assignment in lieu of foreclosure or otherwise) shall hold or be entitled to exercise the rights of Declarant hereunder as fully as if named as such party herein. No such successor assignee of the rights of Declarant hereunder shall have or incur any liability for the acts of any other party which previously exercised such rights. 8.9 Designated Builders. Declarant shall have the right, without the further consent of the Members, to designate a Designated Builder by the recording of a supplemental declaration in the form attached hereto as Exhibit F (the “Supplemental Declaration of Designated Builder”). Upon the recording of such Supplemental Declaration of Designated Builder, Declarant assigns to the Designated Builder the rights of the Declarant under this Declaration, except for the rights set forth in 6.4 (o), as shall be set forth in such Supplemental Declaration of Designated Builder. Upon the recording of the Supplemental Declaration of Designated Builder, all such rights so assigned by Declarant shall be exercised exclusively by Designated Builder. Any rights granted by Declarant to a Designated Builder pursuant to this Section shall continue until such time as the Designated Builder is no longer vested with, or controls title to, any portion of the Property, regardless of whether the rights of Declarant hereunder have terminated or expired. At that time, the Designated Builder shall have no additional or independent fiduciary duty to the Association and the Owners. Notwithstanding the foregoing, in the event that KHOV is a Designated Builder and subsequently defaults on the acquisition of the Stewart Lots in accordance with the terms of the Contract and does not cure such breach in the time as set forth therein, the rights of KHOV as Designated Builder shall automatically terminate except that KHVO shall continue to exercise the rights set forth in Section 6.4 (a), (b) and (e) together with any and all such rights as an Owner of the Property so acquired. i 8.10 Waiver. The failure by the Association to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. IN WITNESS WHEREOF, the signatories below sign this Declaration and submit this Declaration to the Kendall County Recorder to record this document in the title deeds of said property. [Signature Page Follows] Exhibit A – The Property Exhibit B- Current Owners of the Property Exhibit C – Stewart Lots Exhibit D – Added Property Exhibit E – Berm Easement Area Exhibit F – Supplemental Declaration of Designated Builder Dated this ______ day of _________, 2018. OWNERS: ____________________________ JAMES MOTTO AND JULIE MOTTO – LOT 11 ________________________________ SCOTT PAPENDICK - LOT 12 _______________________________ BRIAN E. PAYNE AND NIESHA K. PAYNE - LOT 42 ________________________________ GLENDA WOODS - LOT 51 ________________________________ JEFFREY AND SANDRA WILKINSON – LOT 64 ____________________ JOHN STEWART ______________________ MICHELLE STEWART STATE OF ILLINOIS ) ) ss COUNTY OF DUPAGE ) I, the undersigned, a Notary Public in and for said County and State, do hereby certify that John Stewart and Michelle Stewart, known to me to be the same persons whose names are subscribed to the foregoing instrument appeared before me this day in person and acknowledged that such persons signed, sealed and delivered said instrument as their free and voluntary act, for the uses and purposes therein set forth. GIVEN under my hand and notarial seal this _____ day of ___________, 2018. __________________________ Notary of Public DECLARANT: _____________________________ JOHN AN MICHELLE STEWART STATE OF ILLINOIS ) ) ss COUNTY OF DUPAGE ) I, the undersigned, a Notary Public in and for said County and State, do hereby certify that ___________________, of said limited liability company, personally known to me to be the same person whose name is subscribed to the foregoing instrument as such ____________, appeared before me this day in person and acknowledged that he signed, sealed and delivered said instrument as his free and voluntary act, and as the free and voluntary act of said limited liability company, for the uses and purposes therein set forth. GIVEN under my hand and notarial seal this _____ day of ___________, 2018. __________________________ Notary of Public EXHIBIT A The Property EXHIBIT B Current Owners John Stewart and Michelle Stewart – Lots 1 through 10, inclusive; lots 13 through 41, inclusive; lots 43 through 50, inclusive; lots 52 through 63, inclusive; lots 65 through 108 inclusive; lots 357 through 363, inclusive and lot 365 (collectively referred to as the “Stewart Lots”) James Motto and Julie Motto – Lot 11 Scott Papendick - Lot 12 Brian E. Payne and Niesha K. Payne - Lot 42 Glenda Woods - Lot 51 Jeffrey and Sandra Wilkinson – Lot 64 EXHIBIT C Stewart Lots Lots 1 through 10, inclusive; lots 13 through 41, inclusive; lots 43 through 50, inclusive; lots 52 through 63, inclusive; lots 65 through 108 inclusive; lots 357 through 363, inclusive and lot 365 EXHIBIT D Added Property Legal Description of Lot 1 Unit 2 Property EXHIBIT E Berm Easement Area EXHIBIT F Supplemental Declaration of Designated Builder THIS INSTRUMENT PREPARED BY AND SHOULD BE RETURNED TO: Vince M. Rosanova Rosanova & Whitaker, Ltd. 30 W. Jefferson Ave., Suite 200 Naperville, IL 60540 SUPPLEMENTAL DECLARATION OF DESIGNATED BUILDER TO THE AMENDED AND RESTATED DECLARATION FOR ASHLEY POINTE HOMEOWNERS ASSOCATION This Supplemental Declaration of Designated Builder to the Amended and Restated Declaration for Ashley Pointe Homeowners Association (“Supplemental Declaration of Designated Builder”) is made by John and Michelle Stewart , as owners and declarant (collectively, “Declarant"). R E C I T A L S Declarant recorded the Amended and Restated Declaration for Ashley Pointe Homeowner’s Association in the Kendall County Recorder of Deeds, on _________________, as Document No. ____________________ (the "Declaration"). In Article Eight of the Declaration, Declarant reserved the right and power to record a Supplement Declaration to the Declaration to designate a Designated Builder under the Declaration. Declarant desires to exercise the right and power reserved in Article Eight to designate a Designated Builder under the Declaration. NOW, THEREFORE, Declarant does hereby amend and supplement the Declaration as follows: 1. Terms. All Terms used herein, if not otherwise defined herein, shall have the meanings set forth in the Declaration. 2. Effective Date. This Supplemental Declaration of Designated Builder is effective at the closing of the sale of the real property identified in Exhibit A (the “KHOV Lots”) as attached hereto and pursuant to the terms and conditions of that certain Real Estate Sale Contract with an effective date of January 24, 2018 (as amended, the "Contract") by and between Yorkville Christian School (“YCS”), an Illinois not for profit corporation and Declarant, as guarantor of YCS’s obligations under the Contract and K. Hovnanian T&C Homes at Illinois, LLC, an Illinois limited liability company (“KHOV”). 3. Designation of Designated Builder. Declarant hereby designates KHOV as a “Designated Builder” with respect to the Property and grants and assigns such rights as are set forth in Section 6.4 of the Declaration, except the rights set forth in 6.4 (o), which are specifically retained by Declarant.. All rights granted by Declarant to a Designated Builder pursuant to the Declaration and this Supplemental Declaration of Designated Builder shall continue until such time as the Designated Builder is no longer vested with, or controls title to, any portion of the Property, regardless of whether the rights of Declarant hereunder have terminated or expired, except to the extent Designated Builder voluntarily elects to terminate such rights. The Designated Builder shall have no additional or independent fiduciary duty to the Association and the Owners. Notwithstanding the foregoing, in the event that KHOV subsequently defaults on the acquisition of the Stewart Lots not yet acquired by KHOV in accordance with the terms and conditions of the Contract with respect thereto and does not cure such breach in time set forth therein, the rights of KHOV as Designated Builder shall automatically terminate except that KHVO shall continue to exercise the rights set forth in Section 6.4 (a), (b) and (e) together with any and all such rights as an Owner of the Property so acquired. i 4. Approval of Plans and Specifications. Declarant hereby approves any plans and specifications of Designated Builder as attached hereto as Exhibit B with respect to the external design and location in relation to surrounding structurers and topography of the improvements proposed to be constructed on the KHOV Lots. 5. Covenants to Run with Land. The covenants, conditions, restrictions, and easements contained in the Declaration, as supplemented this Supplemental Declaration of Designated Builder shall run with and bind the Property. 6. Continuation. As expressly hereby supplemented and amended, the Declaration shall continue in full force and effect in accordance with its terms. (Signature page and joinder follow) Dated: ____________________, 2018 DECLARANT: John and Michelle Stewart By: ________________________________ Name: ______________________________ Its: _________________________________ STATE OF ILLINOIS ) ) SS COUNTY OF DUPAGE ) The undersigned, a Notary Public in and for said County, in the State aforesaid, do hereby certify that ___________________, as _________________ of John and Michelle Stewart, personally known to be the same person whose name is subscribed to the foregoing instrument as such, appeared before me this day in person and acknowledged that he signed and delivered said instrument as his own free and voluntary act, and as the free and voluntary act of the Company for the uses and purposes therein set forth. GIVEN under my hand and Notarial seal this ____ day of _____________________, 2018. __________________________________________ Notary Public EXHIBIT A KHOV LOTS EXHIBIT B PLANS AND SPECS JOINDER TO SUPPLEMENTAL DECLARATION OF DESIGNATED BUILDER The undersigned, K. Hovnanian T&C Homes at Illinois, LLC, an Illinois limited liability company as the legal title holder of the Lots legally described on Exhibit A attached hereto (“KHOV Lots”), hereby joins in Supplement Declaration of Designated Builder to which this Joinder is attached for the sole purpose of accepting its designation as a Designated Builder under the Declaration and acknowledging its agreement to the terms and conditions of such designation as provided in Supplemental Declaration to Designated Builder. Dated: __________________, 2018 K. Hovnanian T&C Homes at Illinois, LLC, an Illinois limited liability company By: __________________________ Name: Its: President STATE OF ILLINOIS ) ) SS. COUNTY OF ______ ) The undersigned, a Notary Public in and for said County, in the State aforesaid, do hereby certify that _________________ as President of K. Hovnanian T&C Homes at Illinois, LLC, an Illinois limited liability company (“Company”), personally known to be the same person whose name is subscribed to the foregoing instrument as such, appeared before me this day in person and acknowledged that he signed and delivered this instrument as his own free and voluntary act, and as the free and voluntary act of the Company for the uses and purposes therein set forth. GIVEN under my hand and Notarial seal this ____ day of __________________, 2018. __________________________________________ Notary Public Non-Order Search Page 1 of 46 Requested By: mythili.aruchamy , Printed: 2/9/2018 7:56 AM Doc: KNDL:2007 14390 Non-Order Search Page 2 of 46 Requested By: mythili.aruchamy , Printed: 2/9/2018 7:56 AM Doc: KNDL:2007 14390 Non-Order Search Page 3 of 46 Requested By: mythili.aruchamy , Printed: 2/9/2018 7:56 AM Doc: KNDL:2007 14390 Non-Order Search Page 4 of 46 Requested By: mythili.aruchamy , Printed: 2/9/2018 7:56 AM Doc: KNDL:2007 14390 Non-Order Search Page 5 of 46 Requested By: mythili.aruchamy , Printed: 2/9/2018 7:56 AM Doc: KNDL:2007 14390 Non-Order Search Page 6 of 46 Requested By: mythili.aruchamy , Printed: 2/9/2018 7:56 AM Doc: KNDL:2007 14390 Non-Order Search Page 7 of 46 Requested By: mythili.aruchamy , Printed: 2/9/2018 7:56 AM Doc: KNDL:2007 14390 Non-Order Search Page 8 of 46 Requested By: mythili.aruchamy , Printed: 2/9/2018 7:56 AM 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