FOURTH AMENDMENT TO ANNEXATION AGREEMENT

Transcription

1 FOURTH AMENDMENT TO ANNEXATION AGREEMENT This Fourth Amendment to the Annexation Agreement (the Third Amendment ), is made as of the day of, 2014, by and between Winchester Commercial Partners, LLC, an Illinois limited liability company ( Winchester or Commercial Developer ) and the Village of Carpentersville, an Illinois Municipal Corporation located in Kane County, Illinois ( Village ) to that certain Annexation Agreement dated April 30, 2005 by and between national Bank and Trust Company of Sycamore, not personally but as Trustee under Trust Agreement dated December 29, 1992 and known as Trust Number ( Sycamore Trust ), National Bank and Trust Company of Sycamore, not personally but as Trustee under Trust Agreement dated November 3, 2003 and known as Trust No (Sycamore Trust ), Barbara Galvin and Richard G. Flood, as Co-Trustees of the Thomas J. Galvin and Barbara Galvin Charitable Remainder Trust No. 1 and as Co-Trustees of the Thomas J. Galvin and Barbara Galvin Charitable Remainder Trust No. 2 ( Galvin Trusts ) (collectively Owner ). WITNESSETH WHEREAS, since the date of the Annexation Agreement, Pulte Home Corporation, a Michigan Corporation ( Developer ) has purchased the acres of real property located southwest of the center line of Huntley Road and west of Randall Road in Kane County, Illinois that is legally described on Exhibit A-1 to the Annexation Agreement (the Property ) as well as the acres of real property located northeast of the center line of Huntley Road and West Randall and northerly of the Property which is legally described on Exhibit A-2 to the Annexation Agreement (the Additional Property ). WHEREAS, the Property has been subdivided pursuant to a Plat of Subdivision for Winchester Glen recorded on March 6, 2006, with the Kane County Recorder as Document Number 2006K (the Subdivision ); and WHEREAS, on June 6, 2006, the Owner and the Village entered into a First Amendment to the Annexation Agreement; and WHEREAS, Developer has sold to Commercial Developer the Commercial Parcel of acres referred to in the Sixth Preamble of the Annexation Agreement and legally described on Exhibit B to the Second Amendment and Commercial Developer is now the owner of the Commercial Parcel; WHEREAS, pursuant to the terms of the Assignment and Assumption Agreement for Developer s Rights and Obligations recorded with the Kane County Recorder as Document Number 2010K037936, Developer has assigned to Commercial Developer its rights and 1

2 obligations under the Annexation Agreement as to the Commercial Parcel, including the obligations under Section 12.F to extend sanitary sewer and water mains in and through the Commercial Parcel and then westerly within a utility easement from the Commercial Parcel, and to post a Surety Bond as security for the installation of the sanitary sewer and water mains; and WHEREAS, notwithstanding that Commercial Developer has the obligation under Section 12.4 of the Annexation Agreement to post a Surety Bond as security for the installation of the sanitary sewer and water mains, Developer has agreed to secure such obligation and to post such Bond on behalf of Commercial Developer, and Commercial Developer and the Village agree that the Village shall enter into a Recapture Agreement with Developer to recover the cost of installation of the sanitary sewer and water mains should Commercial Developer fail to install the sanitary sewer and water mains, when required, under the Annexation Agreement and should the Village draw on the Surety Bond posted by Developer to secure Commercial Developer s obligation to install the sanitary sewer and water mains; and WHEREAS, on June 15, 2010, the Developer, the Commercial Developer and the Village entered into a Second Amendment to the Annexation Agreement recorded on July 2, 2010, with the Kane County Recorder as Document Number 2010K042491; and WHEREAS, on November 20, 2012, the Developer and the Village entered into a Third Amendment to the Annexation Agreement recorded on December 19, 2012, with the Kane County Recorder as Document Number 2012K089184; and WHEREAS, it is the desire of the parties to again further amend the Annexation Agreement to provide, among other things, for the following: (i) to delete the minimum requirement for business establishment that occupy the Commercial Parcel to generate retail occupation taxes or service occupation taxes; (ii) to modify the Grading requirement for the Commercial Parcel; (iii) to extend the time to extend sanitary sewer and water mains to the Commercial Parcel or the land west of the Commercial Parcel; and (iv) to confirm the amount of detention capacity available on the Property for the benefit of the Commercial Parcel; and WHEREAS, pursuant to the provisions of Section et. seq. of the Illinois Municipal Code, a proposed Amendment to the Annexation Agreement and in substance and form the same as this Amendment, except as modified as authorized by Section of said Municipal Code was submitted to the Village for Public Hearing and a Public Hearing was held thereon by the corporate authorities pursuant to the notice duly published in a newspaper of general circulation as provided by law; and WHEREAS, by a favorable vote of at least 2/3rds of the corporate authorities of the Village then holding office, the Village has adopted an Ordinance Authorizing Execution of this Amendment. NOW, THEREFORE, for and in consideration of the mutual covenants and undertakings contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Village and the Commercial Developer agree that the Annexation Agreement is hereby amended as follows: 2

3 1. Section 5.B of the Annexation Agreement is modified to provide, in its entirety: B. Commercial Parcel. Any uses classified as permitted uses in the C-1 and C- 2 Commercial Districts under the Zoning Ordinances shall be permitted on that portion of the Property designed as Commercial upon the Preliminary Plan (the Commercial Parcel ). In addition, developer of the Commercial Parcel may apply for special uses for the Commercial Parcel, which shall be processed in the same manner as any applications for special uses which are filed with the Village. The Commercial Parcel shall be developed at a date after the date of this Agreement and shall be subject to the applicable terms and conditions of the Village ordinances in effect at the time of development. The developer of the Commercial Parcel shall be required to seek the Village s approval of all elements related to a site plan and to architectural, lighting, landscaping and signage standards, site setback/built lines, restrictions on vehicular use of front yards and other site and design related items. The developer of the Commercial Parcel shall provide the Village with a detailed progress report on the development and construction of the Commercial Parcel after development of the Commercial Parcel has commenced on a monthly basis. Developer shall submit a concept plan for the development of the Commercial Parcel with the filing of the final plat of subdivision for the Property. 2. Section 9 of the Annexation Agreement is modified to add the following at the end of the paragraph: The provisions of this Section 9 shall not apply to the Commercial Parcel. All excavation, grading, filling, stockpiling, and tree removal requirements applicable to the Commercial Parcel will be determined in accordance with the applicable laws and regulations of the Village at the time of approval of a final plat of subdivision for the Commercial Parcel. 3. Section 12.F of the Annexation Agreement is modified to provide, in its entirety: "F. Future Extensions of Sanitary Sewer and Water Mains from the Commercial Parcel. The Commercial Developer (or its successor or subsequent developer of the Commercial Parcel) shall extend sanitary sewer and water mains (collectively, the "Sewer and Water Extensions") into and through the Commercial Parcel, and then westerly within a utility easement from the Commercial Parcel, in accordance with the following: 1. Construction of the Sewer and Water Extensions must commence promptly upon receipt by the Commercial Developer of a demand therefor from the Village, which demand may not be delivered prior to the earlier to occur of: (a) the date on which the Village receives a petition for annexation of any property located adjacent to, and west of, the Property; and (b) January 1,

4 2. The Commercial Developer must pursue construction of the Sewer and Water Extensions in a diligent and expeditious manner, and in accordance with all applicable laws and regulations. The Commercial Developer must acquire all necessary permits and easements required for the construction of the Sewer and Water Extensions. 3. In the event the Commercial Parcel is developed in phases, the Commercial Developer may complete construction of the Sewer and Water Extensions in phases corresponding to the development of the Commercial Parcel, but only upon approval by the Village of a phasing plan for such construction, and provided that the failure of the Commercial Developer to fully develop the Commercial Parcel shall not relieve the Commercial Developer of its obligations to complete construction of the Sewer and Water Extensions pursuant to this Section 12.F. 4. The Surety Bond required pursuant to Section 2 of the Second Amendment to this Agreement must be maintained by the Developer in an amount equal to the most recent engineer's estimate of the estimated cost of construction and installation of the Sewer and Water Extensions, which estimate may be updated by the Village from time to time. In accordance with Section 7 of the Second Amendment to this Agreement, the Developer's obligations to provide the Surety Bond as required pursuant to the Second Amendment and pursuant to this Section 12.F.4, and to comply with the other obligations of the Second Amendment to this Agreement, shall remain in full force and effect until the Commercial Developer, or its successor, provides a surety bond that complies with the requirements of this Section 12.F.4. Notwithstanding any provision of this Agreement to the contrary, not later than December 31, 2014, the Commercial Developer must record against the Commercial Parcel a utility easement to the Village and to its successors and assigns, in a form and on documents approved by the Village Manager, for the purpose of constructing, installing, and maintaining the Sewer and Water Extensions ("Utility Easement"). Except as may be mutually agreed by the Commercial Developer and the Village, the Utility Easement must be provided at the location and of the width as shown in that certain Concept Exhibit for Watermain/Sanitary Sewer and Pathway Extension, prepared by Cemcon, Ltd., consisting of one sheet, and with a latest revision date of February 19, 2010, a copy of which is attached to the Fourth Amendment to this Agreement as Exhibit B-1, The Commercial Developer and the Village agree to cooperate in good faith to relocate the utility easement as may be necessary to accommodate the development of the Commercial Parcel." 4. Section 13 of the Annexation is modified to add the following: "C. Detention capacity required for Commercial Parcel. The Village acknowledges that the stormwater management facilities within the Residential 4

5 Parcel were designed in accordance with the Kane County Stormwater Management Ordinance ("County Stormwater Ordinance"), and that such facilities may contain sufficient capacity for all or a portion of the stormwater management requirements applicable to the development of the Commercial Parcel. Specifically, the Village acknowledges and agrees that 9.69 acre-feet of detention capacity is available within Parcel 14 of the Property for the benefit of the Commercial Parcel, identified as Parcel 10 on the Final Plat of Subdivision for The Prairies and Meadows of Winchester Glen, recorded with the Kane County Recorder as Document Number 2006K To the extent permitted by the County Stormwater Ordinance and other applicable laws and regulations, the Available Capacity will be included in the calculation of the volume of stormwater management facilities required for any development of the Commercial Parcel, which calculation will be performed in accordance with the then-current County Stormwater Ordinance and other applicable laws and regulations." 5. This Fourth Amendment may be executed by the parties in one or more counterpart originals, each of which shall be considered part of the same original document. IN WITNESS WHEREOF, the parties have executed this Amendment to Annexation Agreement on the same and year first written above. VILLAGE: VILLAGE OF CARPENTERSVILLE By: Its: COMMERCIAL DEVELOPER: WINCHESTER COMMERCIAL PARTNERS, LLC By: Richard DiBernardo Its: Attorney in Fact This Instrument was prepared by and after recording mail to: Michael A. O Brien, Esq. 5

6 O Brien Law Offices, P.C. 124A South County Farm Road Wheaton, Illinois Ph:

7 EXHIBIT B-1 CONCEPT EXHIBIT 7