DEVELOPMENT AGREEMENT

Transcription

1 DEVELOPMENT AGREEMENT This Development Agreement ( Agreement ) is entered into between the developer Highland Gate Itasca LLC, a Delaware Corporation authorized to do business in Illinois ( Developer ) and the Village of Itasca, an Illinois Municipal Corporation ( Village ) regarding the future maintenance of the improvements at the townhome project located at the Property, as hereinafter defined (the Project ). The effective date of this Agreement will be the date that this Agreement is executed by both parties (the Effective Date ). RECITALS WHEREAS, the Developer is the fee title owner and developer of the property commonly known as 6N180 Illinois Route 53, Itasca, Illinois (PIN ), which is legally described in Exhibit A (the Property ). WHEREAS, the Developer has obtained approval of the Project pursuant to a planned unit development which was approved under Ordinance number by the Village on or about August 16, WHEREAS, the Project will consist of 16 townhome units and will include common elements and fee simple ownership for the individual owners of the townhome units. WHEREAS, the Developer will form a Homeowners Association (the Homeowners Association ); through a declaration that will set forth the obligations, easements, covenants, conditions and restrictions for the Property (the Declaration ). WHEREAS, the attached subdivision plat was approved by the Village under Ordinance number on or about, 2017 (the Subdivision Plat ); WHEREAS, as set forth in this Agreement, the Village will maintain certain portions of the common area elements and improvements in the Property and the Homeowners Association will maintain certain other portions of the common area elements and improvements in the Property; WHEREAS, the Homeowners Association will be governed by a Board of Directors to be elected at a future date; and WHEREAS, the Developer and Village desire to memorialize the respective ownership and maintenance obligations of the common area elements of the Property. NOW THEREFORE, in consideration of the foregoing recitals and the terms of this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Developer and the Village, the Developer and the Village agree as follows: Section 1. Incorporation of Recitals and Exhibits. The statements, representations, covenants and recitations set forth in the foregoing recitals are material to this Agreement and are 1

2 incorporated into and made a part of this Agreement as though they were fully set forth in this Section 1. The Exhibits referred to in this Agreement and attached to or incorporated into it by textual reference are incorporated by reference into and made a part of this Agreement as though they were fully set forth in this Section 1. The Parties acknowledge the accuracy and validity of those Exhibits. Section 2. Designation of Developer. In consideration of Developer s substantial economic commitment to the Project and the development of the Property, the Village hereby designates Developer as the developer of the Property, subject to the terms, conditions, restrictions and limitations set forth in this Agreement. Section 3. Compliance with Applicable Laws. In constructing the Project, the Developer agrees to comply with (1) all applicable Illinois, DuPage and Village codes, ordinances, regulations, regulations, standards and specifications, as they exist as of the Effective Date of this Agreement, including the DuPage County Stormwater Ordinance; and (2) all submittals to the Village. Following the Village s issuance of final certificates of occupancy, any construction or repair work performed must comply with all existing Village codes, ordinances, regulations, and standards. Section 4. Site Improvements. In connection with its construction of the Project, Developer, at its sole cost and expense, shall construct all of the following improvements to the extent identified in the Final Approved Engineering Plans (collectively Site Improvements ): (i) all stormwater management facilities, storm sewer mains and related facilities; (ii) all sanitary sewer mains, service lines, and appurtenances; (iii) all water mains and service lines, fire hydrants, and appurtenances; and (iv) all right-of-way improvements (including roadway, curb and gutters, sidewalks, streetlights, and parkway landscaping). The construction of all Site Improvements shall be subject to inspection by and the approval of the Village Engineer in accordance with the Village s Development Standards and Specifications, this Agreement and all other applicable provisions of the Village Code. All work performed on the Site Improvements shall be conducted in a good and workmanlike manner and with due dispatch in accordance with this Agreement. Reasonable care shall be taken to avoid damage to existing and new public improvements, including utilities, streets, and curbs during construction. Any public improvement damaged during construction shall be repaired to the reasonable satisfaction of the Village Engineer and in substantial compliance with this Agreement and all applicable Village codes and ordinances. Section 5. Improvement Security. Prior to the Village s issuance of a permit to construct the Site Improvements outlined in Section 4 above, the Developer shall deliver to the Village one or more bonds or letter of credit to secure the due and proper construction of the Site Improvements in a total amount equal to 110% of the Developer s Engineer s estimated costs of construction, as approved by the Village Engineer, and in a form approved by the Village Attorney. This security shall be subject to partial reduction as Site Improvements are completed, inspected, and approved by the Village Engineer. Upon the Developer s completion of all Site Improvements, and their 2

3 inspection and approval by the Village Engineer, and their conveyance to and acceptance by the Village as outlined in Section 6 below, this security shall be returned to the Developer. Section 6. Conveyance and Acceptance of Public Improvements. For purposes of this Agreement, the following improvements shall be deemed Public Improvements which the Developer shall construct and convey to the Village: a. the 60-foot and 66-foot public right-of-ways of Highland Parkway, including the roadway and curb and gutters, together measuring 33-feet wide from back of curb to back of curb, and as depicted on the Subdivision Plat and Final Approved Engineering Plans; b. sidewalks measuring 5-feet in width along both sides of Highland Parkway pavement and on the west side of Rohlwing Road along the Property s frontage, parkway trees, traffic safety signage, and streetlights within the rights-of-way and as depicted on the Subdivision Plat and Final Approved Engineering Plans; c. the storm sewer structures, pipes, and appurtenances beneath the 33-foot roadway pavement as depicted on the Final Approved Engineering Plans; d. the sanitary sewer main, pipes, and appurtenances from the connection at Maplewood Drive through the development along Highland Parkway and as depicted on the Final Approved Engineering Plans; and e. the water main, pipes, hydrants, and appurtenances from the connection at Maplewood Drive, across Rohlwing Road, through the development along Highland Parkway, to the connection at Prestwick Lane and as depicted on the Final Approved Engineering Plans. The Village will accept the Developer s conveyance of the Public Improvements, by resolution, following the Village Engineer s inspection and approval of the same and the Developer s delivery of a customary form bill of sale to the Village. The Corporate Authorities shall not accept any Public Improvements proposed for acceptance until: (i) all deficiencies described in a final punch list have been satisfactorily completed and approved by the Village Engineer; (ii) the Developer has delivered final record drawings (as-builts) of the Public Improvements to be conveyed to the Community Development Director and such as-builts are approved by the Village Engineer, or his or her designee; and (iii) the Developer has delivered a maintenance bond to the Community Development Director, in a form approved by the Village Attorney and in an amount equal to 10% of the amount of the original improvement security described in Section 5 (the Maintenance Bond ), which Maintenance Bond shall guarantee for a period of two years that all construction of the Public Improvements was done in a workmanlike manner and in compliance with the Final Engineering Plans and all applicable provisions of the Village Code. The Maintenance Bond shall be returned to the Developer at the expiration of said two-year period unless at such time the Village Engineer has identified deficiencies in such construction which have not yet been corrected by the Developer. 3

4 Section 7. Schedule of Construction. The Developer shall complete the following public and private improvements prior to the issuance of permits and certificates of occupancy on the following schedule: a. erosion control shall be installed after building permit issuance and prior to any other work starting; b. an access road on a driveable stone surface shall be provided as soon as possible for traffic to enter the site safely; c. storm sewer system and stormwater management facilities shall be installed and operational prior to building construction; d. water distribution system and appurtenances, including operational fire hydrants servicing all proposed building sites, accessed via a driveable stone surface, shall be operational and flushed to remove sediment therefrom prior to any building construction above foundations; and e. street pavement and all other dedicated right-of-way improvements, including final street surface, street lights, sidewalks, traffic safety signage, parkway trees and landscaping, shall be completed before issuance of the certificates of occupancy for the final building. Section 8. Maintenance by Village. Upon conveyance and acceptance of the Public Improvements by the Village, as outlined in Section 6, the Village, at its sole cost, shall maintain, replace and repair the Public Improvements described in Section 6. The Village, at its sole cost, shall maintain the 33-foot wide roadway within the Property that is dedicated to the Village, as depicted in the Subdivision Plat, including snow removal. The Village shall not be responsible for snow removal on off-street parking areas, including guest parking areas in the right-of-way. Section 9. Maintenance by the Homeowners Association. The Homeowners Association, at its sole cost, shall maintain in good and operational conditions at all times: a. any and all retaining walls that are located in the common areas of the Property or within the right-of-way as depicted in the Subdivision Plat; b. any and all fences that are located in the common areas of the Property or are designated as limited common elements thereof as are depicted in the Subdivision Plat; c. all signage for the Property, except for traffic safety signage; d. all sidewalks outside the dedicated right-of-way; e. off-street parking areas and driveways; 4

5 f. storm sewers on private property, stormwater management facilities serving the property (including but not limited to swales, detention basin, underground detention and infiltration trench); g. sanitary sewer services from the main line to house (including cleanouts); h. water services from the main line to house (including B-boxes and service line valves); and i. all landscaping in the dedicated right-of-way and private property. The Homeowners Association, at its sole cost, shall be responsible for snow removal from all sidewalks, off street parking, and guest parking areas located in the right-of-way. The Homeowners Association shall, at its sole cost, maintain all guest or off-street parking areas of the Property and will be responsible for regulating guest parking in the common areas. The Village has no other responsibility to maintain the guest or off-street parking areas of the Property, but has the right to access the guest or off-street areas as needed for the purpose maintaining the Public Improvements described in Section 6. Section 10. Grant of Perpetual Easement and Right of Way. The Developer hereby establishes and grants to the Village and its officials, employees, agents, representatives, and contractors a perpetual, nonexclusive and irrevocable easement and right of way in, upon, over, under, through, along, and across the common areas of the Property that are depicted in the Subdivision Plat for vehicular and pedestrian ingress and egress and parking and for the purposes of inspecting, maintaining, repairing and replacing the Public Improvements described in Section 6 above and and for snow removal from the Public Improvements described in Section 6 above. Upon passage of the ordinance by the Village and upon the Effective Date, the Developer shall reference this Agreement in the Declaration. Section 11. Restrictions on Grant of Perpetual Easement and Right of Way. The nonexclusive perpetual easement and right of way granted pursuant to this Agreement shall be subject to the continued right of access to the Property by Developer, the Homeowners Association, all persons who may subsequently acquire any ownership interest in or to the Property or any subdivided parcel created therefrom, or any fractional ownership interest therein, and all of their respective heirs, devisees, executors, administrators, personal representatives, agents, grantees, successors, assigns and invitees, which right of access retained pursuant to this Agreement may be limited by the Village solely, and only to the extent reasonably necessary, to perform the obligations set forth in Section 3 of this Agreement. Section 12. Authority of Developer to Make and Declare Covenants, Grant Easements. By the signature of its authorized representative below on this Agreement, the Developer represents and warrants that the Developer is the sole Developer of the Property and that the Developer is authorized to make and declare the covenants and grant the easement and right of way stated in this Agreement. 5

6 Section 13. Recording and Binding Effect of Easement, Right of Way and Agreement. This Agreement and all of its covenants, easement, right of way, and the other terms and conditions of this Agreement shall run with the land, shall be recorded against the Property, and shall be binding on and inure to the benefit of the Developer, all persons who may subsequently acquire any ownership interest in or to the Property or any subdivided parcel created therefrom, or any fractional ownership interest therein, and the Village, and all of their respective heirs, devisees, executors, administrators, personal representatives, agents, grantees, successors, assigns and invitees. Section 14. Default/Remedies. If either party shall default under this Agreement or fail to perform or keep any term or condition required to be performed or kept by such party (an Event of Default ), such party shall upon written notice from the other party, proceed to cure or remedy such default or breach within thirty (30) days after receipt of such notice, provided, however, that in the event such default is incapable of being cured within said thirty (30) day period and the defaulting party commences to cure the default within said thirty (30) day period and proceeds with due diligence to cure the same, such party shall not be deemed to be in default under this Agreement. In the case of an Event of Default that remains uncured after the expiration of all applicable notice and cure periods, the other party may suspend the performance of its obligations under this Agreement, sue for specific performance or pursue any other right or remedy available at law or in equity. Any delay by any party in instituting or prosecuting any actions or proceedings or asserting its rights under this Agreement shall not operate as a waiver of such rights in any way (it being the intent of this provision that such party should not be constrained so as to avoid the risk of being deprived of or limited in the exercise of the remedies provided by law, equity or this Agreement because of the default involved). A waiver made by either party with respect to any specific default by the other party under this Agreement must be expressly and specifically made in writing and shall not be construed as a waiver of rights with respect to any other default by the defaulting party under this Agreement or with respect to the particular default except to the extent expressly and specifically waived in writing. Section 15. Notices. Any notice, request, demand, or other communication provided for by this Agreement must be in writing and will be deemed to have been duly received on (i) actual receipt if personally delivered and the sender received written confirmation of personal delivery, (ii) receipt as indicated by written or electronic verification of delivery when delivered by overnight courier, (iii) receipt as indicated by the electronic transmission confirmation when sent via facsimile transmission, or (iv) three calendar days after the sender deposits the notice with the U.S. Post Office when sent by certified or registered mail, return receipt requested. Notice must be sent to the addresses set forth below or to another address if specified in writing by a party. If to Developer: Highland Gate Itasca LLC 405 Lively Blvd., Elk Grove Village, Illinois with a copy to: If to the Village: Village of Itasca Attn: Village Administrator 550 W. Irving Park Road Itasca, Illinois with a copy to: 6

7 Philip M. Fornaro FORNARO LAW 1022 S. La Grange Rd. La Grange, Illinois Charles E. Hervas Hervas, Condon & Bersani, P.C. 333 Pierce Rd. Suite 195 Itasca, Illinois Section 16. Cooperation of the Parties. The Village and Developer agree to cooperate reasonably with each other when requested to do so concerning the development of the Property. Notwithstanding any provision of this Section, the parties shall not be required to take any action which may decrease real estate or other tax revenues generated by the Property or the use of the Property. Section 17. No Partnership or Agency Created. Nothing in this Agreement shall be construed by the parties or any third person to create the relationship of a partnership, agency or joint venture between or among the parties or any third party beneficiary. Section 18. Force Majeure. The parties will diligently perform their obligations hereunder subject to Force Majeure, as hereinafter defined. The term Force Majeure as used herein shall mean any delays incurred by a party due to strikes, lockouts, acts of God, enemy action, civil commotion, governmental restrictions or delays in obtaining permits (but solely to the extent that such delays are not cause by and are beyond the control of the party claiming such Force Majeure), lawsuits against any party that delays or stops construction or preemption, fire or other casualty, weather or seasonal conditions or other cause beyond the reasonable control of the party, for so long as the party is using its reasonable good faith efforts to end any such delay if the party asserting the Force Majeure is reasonably capable of doing so. Each party agrees to provide written notice to the other party of any conditions beyond the notifying party s control which may result in the notifying party s inability to perform any obligation(s) by the required date, and it shall be a prerequisite to reliance upon said condition that such notice shall have been provided within thirty (30) days of the onset of said condition. Section 19. Integrated Agreement. This Agreement sets forth all the promises, inducements, agreements, conditions and understandings of the parties relative to the subject matter hereof, superseding all prior negotiations, agreements and understandings, and there are no promises, agreements, conditions or understandings, either oral or written, express or implied, between the parties, except as set forth herein. Section 20. Amendments. No amendment or any other change of any kind to this Agreement will be valid or binding unless it is in writing and signed by authorized representatives of the Village and the Developer or their successors or assigns. Section 21. Choice of Law. The validity, meaning and effect of this Agreement shall be determined in accordance with the laws of the State of Illinois. The Venue for any action under or resulting from this Agreement shall be in the Circuit Court of the Eighteenth Judicial Circuit of the State of Illinois, located in DuPage County, Illinois. 7

8 Section 22. Captions and Headings. The captions and section headings used in this Agreement are for convenience only and are not a part of this Agreement and shall not be used in construing it. Section 23. Severability. Each provision hereof is intended to be severable, and the invalidity or unenforceability of any portion of this Agreement shall not affect the validity or enforceability of the remainder hereof, provided the overall intentions of the parties and the purposes of this Agreement, each as expressed herein, are not materially impaired. Neither of the parties shall challenge the validity or enforceability of this Agreement nor any provision of this Agreement, nor assert the invalidity or unenforceability of this Agreement or any provision of it. Section 24. Representation of Binding Effect. The Developer and the Village each represent that this Agreement has been properly approved and executed and is legally binding on them. Section 25. Counterparts. This Agreement may be executed in one or more counterparts, each of which, when executed and delivered, shall be an original, and all of which, when executed and delivered, shall constitute one and the same instrument. This Agreement must be manually executed, but the exchange of copies of this Agreement and of manually executed signature pages by facsimile or by electronic mail as an attachment in portable document format (.pdf) to the parties shall constitute effective delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Each party that delivers an executed counterpart signature page by facsimile or by electronic mail shall promptly thereafter deliver an original executed counterpart signature page to the other party; provided, however, that the failure to do so shall not affect the validity, enforceability, or binding effect of this Agreement. This Agreement shall not be effective until both parties have executed and delivered a counterpart of this Agreement. IN WITNESS WHEREOF, the Developer and the Village have caused this Agreement to be properly executed as of the Effective Date. VILLAGE OF ITASCA, an Illinois Municipal Corporation By: Hon. Jeff Pruyn, Mayor Dated: Attest: Village Clerk Dated: 8

9 HIGHLAND GATE ITASCA LLC, a Delaware Corporation By: Edip Pektas, its Manager Dated: 9

10 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY THAT PART OF SECTION 12, TOWNSHIP 40 NORTH, RANGE 10 EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS BEGINNING AT THE TOWNLINE FEET SOUTH OF THE NORTHEAST CORNER OF THE SOUTHEAST QUARTER OF SAID SECTION 12 AND RUNNING THENCE WEST FEET; THENCE SOUTH PARALLEL WITH THE TOWN LINE FEET; THENCE EAST FEET TO THE TOWNLINE; THENCE NORTH ON THE TOWN LINE FEET TO THE PLACE OF BEGINNING IN DUPAGE COUNTY, ILLINOIS EXCEPTING THEREFROM THE WEST 17.0 FEET OF THE EAST 50.0 FEET THEREOF, ALL IN DUPAGE COUNTY ILLINOIS; ALSO EXCEPTING THEREFROM THAT PART TAKEN IN CONDEMNATION PROCEEDINGS 10ED-73, DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF SAID SOUTHEAST QUARTER; THENCE ON AN ASSUMED BEARING OF SOUTH 00 DEGREES 06 MINUTES 34 SECONDS WEST, 1, FEET (1,121.8 FEET) ALONG THE EAST LINE OF SAID SOUTHEAST QUARTER TO THE EASTERLY EXTENSION OF THE SOUTH LINE OF ITASCA RANCHETTES AS RECORDED NOVEMBER 16, 1951 AS DOCUMENT NO ; THENCE NORTH 89 DEGREES 49 MINUTES 18 SECONDS WEST, FEET ALONG SAID EASTERLY EXTENSION TO THE EXISTING WEST RIGHT OF WAY OF ILLINOIS ROUTE 53 AND TO THE POINT OF BEGINNING; THENCE SOUTH CONTINUING NORTH 89 DEGREES 49 MINUTES 18 SECONDS WEST, FEET; THENCE SOUTH 00 DEGREES 23 MINUTES 01 SECOND WEST, FEET TO THE GRANTOR S SOUTH PROPERTY LINE, ALSO BEING THE NORTH LINE OF THE MEDINAH WOODS CLUB AMENDED SUBDIVISION, ACCORDING TO THE PLAT THEREOF RECORDED FEBRUARY 6, 1991 AS DOCUMENT NO. R ; THENCE SOUTH 89 DEGREES 49 MINUTES 17 SECONDS EAST, FEET ALONG SAID SOUTH PROPERTY LINE TO SAID WEST RIGHT OF WAY ILLINOIS ROUTE 53; THENCE NORTH 00 DEGREES 23 MINUTES 01 SECOND EAST, FEET ALONG SAID WEST RIGHT OF WAY TO THE POINT OF BEGINNING. PIN: