BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
IN THE MATTER OF:
PROPOSED SITE SPECIFIC REGULATION
)
APPLICABLE TO AMERENENERGY
)
GENERATING COMPANY, ELGIN, ILLINOIS,
)
AMENDING
35
ILL. ADM. CODE 901
)
R04-1 1
RECE~VE
D
CLERK’S OFFICE
MAR22
2004
STATE OF ILLINOIS
PoIIut~on
Control Board
TO:
See
attached list
NOTICE OF FILING
PLEASE TAKE NOTICE that today I have filed with the Illinois Pollution Control Board the
Motion for Leave to File Response and Response to Public Comment by Petitioner, Ameren
Energy Generating Company,
and a Motion to
Supplement Record in this Proceeding, Notice of
Filing, and Certificate ofService on behalf ofPetitioner, a copy of
which
is attached and hereby
served upon you.
Date:
March
19, 2004
SchiffHardin LLP
6600 Sears Tower
Chicago, Illinois
60606
312-258-5519
Respectfully submitted,
Sheldon A. Zabel
Attorney for
Ameren Energy Generating company
CH2\ 1092074.2
SERVICE
LIST
Ms. Dorothy Gunn
Clerk of the Pollution Control Board
James R. Thompson Center
100 West Randolph
Suite
11-500
Chicago, Illinois 60601
Mr. John Knittle, Esq.
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Springfield, Illinois 62794
Office ofLegal
Services
Illinois Department ofNatural Resources
One Natural Resources Way
Springfield, Illinois
62702-1271
Mr. Scott Phillips, Esq.
Illinois
Environmental Protection Agency
Division ofLegal Counsel
1021 North Grand Avenue East
P.O.
Box
19276
Springfield, Illinois 62794-9276
Realen Homes
Attn.:
Al Erickson
1628 Colonial Parkway
Inverness, illinois 60047
Mr. Joel Sternstein
Assistant Attorney General
Environmental Bureau
188 West Randolph St.,
20th
Floor
Chicago, Illinois 60601
Village ofBartlett
Attn.:
Bryan Mraz, Attorney
228 South Main Street
Bartlett, Illinois 60103
CH2\
1060953.1
CERTIFICATE OF
SERVICE
I, the
undersigned,
certify
that I
have
served
the documents
described
in
the attached
Notice of Filing upon the Clerk ofthe Pollution Control Board
and Hearing Officer John Knittle
by
Federal Express
and
those
on the Service List by
depositing
them
in
regular U.S.
mail
on
March
19, 2004.
Sheldon A. Zabel
C112\ 1060957.1
RECE~VE~
BEFORE THE
ILLiNOIS POLLUTION CONTROL
BOARD
CLERK’S
OFFICE
IN THE
MATTER
OF:
-
STATE OF ILLINOIS
PROPOSED SITE
SPECIFIC REGULATION
)
Pollution
Control Board
APPLICABLE
TO
AMEREN ENERGY
)
R04-1
1
GENERATING COMPANY, ELG1N, ILLINOIS,
)
AMENDING
35
ILL. ADM. CODE 901
)
PETITIONER’S MOTIONFOR LEAVE TO FILE
Petitioner, AmerenEnergy Generating Company, by and through its attorneys,
SchiffHardin L.L.P., herebymoves the Illinois Pollution Control Board to grant
Petitioner leave to file a response to the Public Comment filed by Attorney General
Office (“AGO”) on March
10, 2004 in this rulemaking.
In support hereof, Petitioner
states:
1.
The Public Comment filed by the AGO raises
issues and questions answers
provided by Petitioner at the public hearing held on January 22, 2004.
The
comments often take Petitioner’s answers and
information out ofcontext,
which results in misleading conclusions.
2.
Petitioner seeks to clarify the record to insure that the Board is presented a full
and complete discussion ofthe issues raised by the AGO.
3.
Petitioner’s response addresses the principal issues raised and misleading
conclusions reached by the AGO in an effort to keep all the information
provided in context with the
entire proceeding.
4.
No party will be prejudiced should the Board grant Petitioner’s response since
it addresses issues raised by the AGO, and the only new information provided
is that omittedby the AGO concerning the facility cited by its witness forthe
purpose ofrecommending noise abatement measures.
5.
Petitioner is obligated to bear the burden ofproofin this matter, and should be
afforded the opportunity to respond to the AGO’s objections.
No law
governing this rulemaking
would precludes the Board from granting this
relief
For these reason, Petitioner respectfullyrequest that the Board accept Petitioner’s
Response to the Attorney General Office’s Public Comment
at this time.
Respectfully submitted,
Sheldon A. Zab~kf
Maui McFaw~J
Attorneys for Petitioner
•
RECE~VED
CLERK’S OFFICE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
MAR
22
2004
STATE OF ILLINOIS
Pollution
Control Board
IN THE
MATTER
OF:
PROPOSED SITE
SPECIFIC
REGULATION
)
APPLICABLE TO AMEREN ENERGY
)
R04- 11
GENERATING COMPANY, ELGIN, ILLINOIS,
)
AMENDiNG
35
ILL.
ADM. CODE 901
)
PETITIONER’S RESPONSE TO
ATTORNEY GENERAL OFFICE’S
PUBLIC COMMENT
Petitioner, Ameren Energy Generating Company, has reviewed and considered
the public comment filed on March 10, 2004 by the Attorney General’s Office (“AGO”),
and authored by Howard Chinn.
(Hereinafterreferenced as “AGO Public Comment”.)
Generally, Mr.
Chinn’s comment simply tracks the transcript ofthe January 22, 2004
public hearing, and he comments only upon statements made at the hearing.
The full
context ofthe statements or answers he selected to
comment upon is not provided.
Also,
he does not take into account any ofthe prefiled testimony and other documents that
compose the entire record in this proceeding.
Therefore, his comment is deficient and
misleading.
Rather than respond to this fragmented approach in kind, Petitioner has identified
two recurring themes in Mr.
Chinn’s
testimony at hearing and in his comments.
Generally, Mr. Chinn challenges whether.Petitioner is
entitled to the reliefrequested by
questioning the priority ofthe ECC’s location and the adequacy ofits noise
abatement
measures, and believes that a barrier wall or berm is the solution.
Petitioner believes
responding to these issues will be more coherent and informative to
the Board.
I.
The Location ofthe Elgin Energy Center and the Adequacy ofits Noise
Abatement
Equipment
In 2000, Petitioner chose the location ofthe Elgin Energy Center (“EEC”) for a
multitude ofreasons,
e.g.,
close proximity to natural gas lines and electrical transmission
equipment.
Tr.
114.
The factor most critical to this noise rulemaking proceeding is that
this Facility is located in an industrial park, that is within a larger, primarily industrial
—1—
area.
All ofits
contiguous neighbors were and are industrial.
This, ofcourse, meant that
the Board’s noise limitations were not applicable where the receptors were Class
C land
uses.
The industrial nature ofthe areahas been documented by testimony and exhibits,
including photographs.
See Exhibit 22.
Prior to construction, Petitioner employed Power Acoustics, Inc., an acoustical
engineer specializing in noise control at power plants, to conduct a noise study to fully
address the extent noise abatement measures were necessary.
Using sound power
information provided by its equipment manufacturer, Mr. Pazych examined and
determined the amount ofnoise abatement measures necessary to achieve compliance
with state noise limitations.
That study included possible noise impacts upon the then
existing residential areas. It did not include the Realen Property because at that time, the
Solid Waste Agency ofNorthern Cook County (“SWANCC”) owned that property, and
for years it was designated for industrial use as a solid-waste baleful operation.
PAl’s
study was used to design the Facility to achieve compliance with the Board’s noise
regulations at both the industrial land use and residential land use areas.
At hearing, Mr. Smith testifiedthat Petitioner would not have built the EEC at this
locationifthe property across GiffordRoad was
Class A land.
Tr.
112-113. This
testimony was offered in response to a prefiled question from the Board about whether
•the Facility could have been designed to comply with the Board’s noise limits if the
SWANCC property had been Class A land.
Mr. Chinn comments that Mr. Smith did not
answer the Board’s question.
AGO Public Comment at 19.
However, that comment
ignores the fact that the Class A land noise emission limitations were not relevant at that
place and time, and therefore, that type ofinformation was not developed.
Thus, any
other response by Mr. Smith would have been speculation.
As testified at hearing, Petitionerworked with the equipment manufacturer to
design and construct equipment, including noise abatement equipment, which would
achieve compliance with
Class A limitations where applicable. The manufacturer did not
provide
actual sound measurement data.
Tr.
134.
Instead, the manufacturerprovided
sound power levels that were used to
determine the type and amount ofnoise abatement
equipment. See Tr.
134.
Using this information, Petitioner purchased the extensive
noise
abatement
equipment especially designed for and now present at the EEC at an
estimated
-2-
•1
cost of$11
Million.
The subsequent noise study performed by PAl in 2003 proved that
this equipment met Petitioner’s goal:
compliance with the Board’s noise emission
limitations for Class A lands at the then known residential receptors.
Mr. David Parzych, as a leading expert in the field ofpeaker power plant noise
acoustics, testified that the noise abatement equipment installed at the EcC is the most
extensive
amount of noise abatement equipment he has ever seen during the course ofhis
work at peakerpower plants.
He even compared the EEC’s equipment to that ofanother
manufacturer, and found it to be signifcantly greater than the industry standard. Tr. 98-
103.
Furthermore, forthe technical reasons explained by Mr. Smith and Mr. Parzych in
prefiled testimony and at hearing, additional noise abatement equipment cannot be
installed at the EEC due to
space limitations, or because it would not sufficiently reduce
noise to a level necessary to achieve compliance at the Realen Property.
Based upon this,
Petitioner has demonstrated that the noise abatement equipment at the Facilitywas then
and still is state-of-the art as defined in this field, as well as how defined by Mr. Chinn.
See Paragraph 2 ofAGO Public Comment.
Although additional existing technology is
not available to
sufficiently reduce noise to. compliance levels, Petitioner examined
several experimental approaches.
Due to their experimental nature, the likelihood of
these measures being successful is doubtful, and only a wide range cost estimate can be
provided.
More fixed cost estimates are not possible until such approaches are proven
technically feasible.
II.
Technical Feasibility or Economic Reasonableness ofBerm or Wall to
Further
Reduce Noise
Primarily, Mr. Chinn promotes the construction ofa berm orwall to further
reduce the level ofnoise at the Realen Property.
He raised the issue ofthe “Hillside
facility”
at hearing, and throughout his comment.
See paragraphs
10,
16, 23 and 29(f).
He claims that Petitioner did not examine the technical feasibility ofthis type ofnoise
abatement.
However, Petitioner’s expert did describe the difficulties in constructing such
a berm.
Tr.
165-167.
Mr. Parzych testified that if constructed, such a berm at the EEC
would have to be at least 50 feet tall to possibly reduce noise, and the berm and its base
would have to be a “huge” mound ofdirt.
Testimony was also provided that construction
-3-
ofa barrier would not reduce noise adequately noise at all bctave levels, especially
at
the
lower octave bands.
Tr.
135.
Contraryto Mr. Chinn’ s claim, the economic feasibility of
this approach was provided.
Constructing a barrier wall is estimated at $3.6 Million.
Tr.
35.
The technological feasibility and economic reasonableness ofthis approach must be
considered together, especially since this approach will not achieve full compliance at the
Realen Property.
In his public comment, Mr. Chinn complains that it does not appear that Petitioner
has investigated the noise reduction system at the “Hillside landfill facility”.
When Mr.
Chinn testified about the Hillside facility at hearing, he did not even know its name or the
type ofpower generation equipment. He simply testified that when he visited ithe had to
wear earplugs when inside the building because it was so loud, and that he could barely
hear it outside. Tr.
86-87.
Post hearing, the AGO did provide the limited information
about the Hillside
facility about whom to
contact for more information.
However, no
information was provided about the size ofits power generation equipment, the presence
or absence ofnoise abatement equipment, or the general size ofthe Hillside facility.
It
appears that based upon his one time visit,
he recommends that Petitioner put walls
around the Facility.
Petitioner contacted the Hillside facility and learned that it is in no way
comparable to the EEC.
It has three small turbines that combined are capable of
generating 16.5 MW, and each is
the size of a Chevrolet
Suburban vehicle.
The walls
surrounding these turbines are approximately 12
to
15 feet tall.
Whether this enables the
Hillside facility to comply with applicable noise limitations is not known.
Petitioner did
learn that the Hillside facilityis
located in an industrial area:
it abuts Interstate 290
where it meets Mannheim Road, commonly known as the “Hillside Strangler”, and is
surrounded by
75 acres oflandfill.
Although Mr. Chinn had personally visited the
Hillside Facility before he testified at hearing, he did not share these pertinent facts with
the Board or the Petitioner when questioned at hearing and at no time since.
The
suggestion that this facility is in any way an example ofa facility comparable to the EEC,
seriously calls into question the credibility ofthis witness.
-4-
III.
Conclusion
As the record in this rulemaking demonstrates, Petitioner has provided the Board
with all relevant facts known about the noise abatement equipment and efforts undertaken
since 2000 to
achieve and maintain compliance with the applicable Board noise
regulations.
Petitioner installed the best available equipment for controlling noise at the
EEC at the time of construction, and did achieve compliance.
In 2003, the anticipated
designated use ofthe land directly across Gifford Road changed.
Petitioner has
responded to that anticipated change in an expedited and expedient manner.
Petitioner
has demonstrated that compliance with Class A land use noise limits is not possible at the
Realen Property on a reasonable technological or economical basis.
At the same time,
Petitioner has worked with Realen Homes LLP and with the local municipalities.
All
agree that the relief requested should be granted.
All three have a definite interest that
the future residents ofthe Realen Property being afforded protection under law.
At all
times, Petitioner has kept in the forefront the importance that future residential
homeowners be fully apprised ofthe EEC’s operations. The record in this matter is
complete and supports the Board granting the relief requested.
Therefore, Petitioner
again urges the Board to adopt the regulatory noise limits
as proposed.
Respectfully submitted,
,,,~/
Sheldon A. Zabel/’
Mauli McFawn
Attorneys for Petitioner
Schiff Hardin L.L.P.
6600 Seas Tower
Chicago, Illinois
60606
312-258-5519
-5-
•
.
RECE~VED
CLERK’S OFFICE
•
•
MAR222004
BEFORE
THE
ILLINOIS POLLUTION CONTROL BOARD
•
STATE OF ILLINOIS.
Pollution Control Board
IN THE
MATTER
OF:
PROPOSED SITE SPECIFIC REGULATION
)
APPLICABLE TO AMEREN ENERGY
)
R04-1
1
GENERATING COMPANY, ELGIN, ILLINOIS,
)
AMENDING 35
ILL. ADM. CODE
901
)
MOTION TO SUPPLEMENT RECORD
Petitioner, Ameren Energy Generating Company, by and through its attorneys, Schiff
Hardin L.L.P., hereby moves the Illinois Pollution Control Board to accept into the record the
following two documents for the purpose ofa complete and clear record in this proceeding.
The
documents are:
(1)
the Agreed Order entered by the Circuit
Court in
Ameren Energy
Development Company, et al v.
Village of Bartlett,
03 CH 11307; and
(2) the “Noise Easement and Restrictive Covenant Agreement” between Ameren
Energy Development Company and Realen Homes L.P.
(Hereinafter referenced
as “Easement”).
These documents are necessaryto fully apprise the Board about the Complaint attached
to
the public comment filed in this matterby the Attorney General’s Office (“AGO”) on March
10, 2004, and the easement referenced at paragraph 27 ofHoward Chinn’s public
comment.
See.
AGO public comment, pages
12-13.
In support ofthis Motion, Petitioner states:
1.
Petitioner provided the AGO a copy ofthe Easement when we learned that the AGO
had obtained and was reviewing a copy of the Complaint which was subsequently
attached to Mr. Chinn’s public comment.
2.
Petitioner provided the AGO a copy ofthe Easement and an explanation that the case
had been settled and
the Easement filed with the Recorder ofDeeds.
3.
Petitioner has not heretofore raised the issue ofthe lawsuit or the settlement in this
rulemaking.
We are doing so today to remove any questions the Board may have due to
Mr.
Chinn’s comment about a court proceeding that is independent ofthis rulemaking.
4.
Petitioner is not requestingthat the Board allow the Easement to be filed as support for
the relief we seek in this site-specific rulemaking, as suggested by Mr. Chinn at
paragraph 27.
However, Petitioner does disagree with Mr.
Chinn’s characterization of
the our Petition and information provided in support thereof.
5.
Petitioner requests that this motion be granted so that the Board is fully apprise ofthe
information shared with the AGO, and the subject matter ofparagraph 27 of Mr.
Chinn’s
public comment.
6.
There will be no prejudice suffered should the Board grant this motion.
The AGO had
both documents before it filed Mr. Chinn’s public comment,
Mr. Chimi’s comment
raised the issue, and both documents are a matter ofpublic record.
Wherefore, Petitioner respectfully requests that the Board grant this motion to
clarify the record
and accept for filing:
(1) a copy ofthe Agreed
Order in
Ameren Energy
Development Company,
et al v.
Village ofBartlett,
03 CH 11307; and (2) “Noise
Easement and Restrictive Covenant Agreement”between Ameren Energy Development
Company and Realen Homes L.P.
Respectfully submitted,
,/~
~
One ofthe Attorneys for
Ameren Energy Generating Company
Dated:
March 19, 2004
-2-
SchiffHardin LLP
6600 Sears Tower
Chicago, Illinois
60606
312-258-5519
CH2\
1096972.1
-3-
•
•
Attorney Nos.
91508
90219
IN THE CIRCUIT COURT OF COOK COUNTY,
ILLINOIS
COUNTY DEPARTMENT
-
CHANCERY DIVISION
AMEREN
ENERGY DEVELOPMENT
COMPANY, an
Illinois Corporation, AMEREN
ENERGY GENERATING
COMPANY, an
Illinois Corporation, and
UNITED STATES
CAN
COMPANY, a
Delaware Corporation,
Gen.
No.
03 CH
11307
Plaintiffs,
V.
The VILLAGE
OF BARTLETT, an
Illinois
Municipal Corporation,
CATHERINE J.
MELCHERT,
Village President,
MICHAEL
AIRDO, T.L. ARENDS, SHERRY BORMANN,
THOMAS A.
FLOYD, JOHN KAVOURIS,
and
DENNIS
M.
NOLAN, Village Trustees,
REALEN
HOMES L.P.,
a Pennsylvania
Limited Partnership, and
the CITY OF ELGIN,
an
Illinois Municipal Corporation,
Defendants.
•
AGREED
ORDER
This
cause
coming
on
to
be
heard
before
this
Court
as
to
the
status
of
settlement
discussions
among the
parties
named
in
the First Amended
Complaint filed
by Ameren
Energy
Development
Company
and
Ameren
Energy
Generating
Company
(collectively
“Ameren”)
for
Declaratory
Judgment and
Other Relief,
due
notice having
been
given
and
the Court being
fully
advised in the premises,
The Court hereby finds
as follows:
1.
The
parties
have
stipulated
and
agreed
that
Defendant
City of
Elgin,
an
Illinois
municipal corporation,
is not
a
necessary party
to
this
proceeding
or this settlement.
2.
The
following
parties,
namely,
Plaintiff
Ameren
and
Defendants
the
Village
of
Bartlett,
Catherine
J.
Meichert
(Village
President),
Michael
Airdo,
T.
L.
Arends,
Sherry
Bormann,
Thomas
A.
Floyd,
John
Kavouris,
and
Dennis
M.
Nolan
(Village
Trustees),
and
Realen
Homes
L.P.,
have
advised
the Court
that
the
matters
and
controversy
between
them
have
been satisfactorily settled,
adjusted, and compromised
in accordance with
the terms
and
conditions
of a
written
settlement agreement
entered
into
by said
parties.
3.
This Order does not affect or relate
in
any manner to the matters
alleged
in the First Amended
Complaint filed by
United States Can Company.
BASED
UPON
THE
FOREGOING,
IT
IS
HEREBY
ORDERED,
ADJUDGED
AND
DECLARED that Ameren’s
First Amended
Complaint for Declaratory Judgment and Other Relief
is dismissed
with
prejudice.
Dated:
ENTERED
MAR
-
~
JUDGE
DOROTHY
KIRIE
KINNAIRD.
276
Robert I.
Berger
Ruth
E.
Krugly
SCHIFF HARDIN LLP
6600 Sears Tower
Chicago,
IL 60606
312-258-5500
Attorney No. 90219
Mark Schuster
SCHNELL, BAZOS,
FREEMAN, KRAMER,
SCHUSTER
&VANEK
1250 Larkin Avenue #100
Elgin,
IL 60123
847-742-8800
Attorney No. 91508
Attorneys for Plaintiffs Ameren
Energy
Development Company and Ameren
Energy
Generating Company
CH2\1090583.1
/4pprTA~L
#~—
~tt~
E.
Judge
• NOISE EASEMENT AND RESTRICTIVE COVENANT AGREEMENT
THIS
NOISE
EASEMENT
AND
RESTRICTIVE
COVENANT
AGREEMENT
(“Agreement”)
is
made and
entered
into
this
3~-~
day of
M&r~.t~
,
2004
(the “Effective Date”),
by and
between Realen Homes L.P., a Pennsylvania limited partnership (“Grantor”) and Ameren
EnergyDevelopment Company, an Illinois Corporation (“Grantee”).
RECITALS:
The following recitals of fact are a
material part of this Easement Agreement.
A.
Grantor is the owner of that certain parcel of land in Cook County, Illinois, legally
described on Exhibit A attached hereto and made a part hereof (the “Burdened Propeijy”).
B.
Grantee
is
the
owner of that
certain
parcel
of land
in
Cook
County,
Illinois,
•legally described
on
Exhibit
B
attached hereto
and
made
a
part hereof (“Grantee’s Property”).
Grantee’s Property includes certain electric generation and other industrial
facilities that transmit
noise and light,
described more specifically on
Exhibit C
attached hereto and made a part hereof
(the “Grantee Facilities”).
C.
Grantor
intends to
develop the Burdened Property as
a
residential subdivision or
subdivisions
in
accordance
with
Ordinances
No.
2003-63
of the
Village
of Bartlett,
Illinois
(including
all
site plans
and
other attachments
thereto,
the “Zoning Ordinance”),
which
include
the construction of approximately 210 single-family homes and
119
townhome units.
A copy of
the Zoning Ordinance is attached hereto as Exhibit D and made a part hereof.
D.
Grantor
has inspected
the Grantee Facilities
and
reviewed certain
written reports
relating to sound.
F.
Grantor
desires
to
grant,
and
Grantee desires
to
accept,
upon
and
subject to
the
terms and
conditions herein provided, a nonexciusive easement under, through, across and above
the
Burdened
Property,
and
Grantor
and
Grantee
agree
to
restrict
the
use
of the
Burdened
Property, and to
enter into certain other related agreements, all to the extent provided below.
NOW,
THEREFORE,
in
consideration of the
foregoing,
Grantee’s
agreement
not
to
oppose,
or
pursue
any
claim
challenging,
Grantor’s
intended
development
of the
Burdened
Property
as provided
in Recital
C
above, the payment by
Grantee to
Grantor ofthe
sum of Ten
and
No/l00
Dollars
(S10.00), the following mutual
covenants
and
agreements, and
other
good
and
valuable
consideration,
the
receipt
and
sufficiency
of
which
are
hereby
acknowledged,
Grantor and Grantee agree as follows:
1.
Recitals
Incorporated
by
Reference.
The provisions of the aforestated recital
paragraphs
are, by this reference, herein incorporated.
2.
Grant
of
Easement.
Grantor
grants,
gives
and
conveys
to
Grantee,
a
non-
exclusive
perpetual
easeihént
appurtenant
to
Grantee’s
Property,
under,
through,
across
and
above the Burdened Property,
for the purpose oftransmitting
from Grantee’s Property noise and
light,
pursuant
to
the operation
of Grantee’s Facilities,
provided that
such noise
from
Grantee’s
Facilities
as
audible
on
the
Burdened Property
shall not
exceed
the levels
shown
on
Exhibit
E
hereto, and
such
light
from
Grantee’s Facilities
as
visible
on
the Burdened
Property
shall not
exceed
the
levels
generated
in
accordance
with
the
lighting
plans
and
specifications
attached
hereto as Exhibit F.
3.
Restrictive Covena!1.
Grantor shall not
develop or use any part ofthe Property
to
a
density
of
residential
dwelling
units
greater
than
permitted
by
the
special
use
permit
described in
Section Three ofthe Zoning Ordinance, as existing as ofthe Effective Date, without
the written consent of Grantee.
4.
Grantor’s
Covenant as to Disclosure,
in
connection with
any original
sale by
Realen
Homes
L.P.
or
its
affiliate
or
any
successor
homebuilder
or
developer
(collectively
“Homebuilder”) for residential development
or use of any Lot
comprising
part of the Property
(“Residential
Lot”), the Homebuilder
shall:
(a)
in
any
deed
transferring
fee simple
interest
in
any Residential
Lot expressly provide
that
the Property is
subject to
this
Agreement; (b)
in
any
contract of sale of any Residential
Lot disclose the terms of this Agreement by providing a copy
thereof and
obtain
a receipt for and
acknowledgement of such disclosure
from
the purchaser of
the Residential
Lot,
and
(c)
within thirty
(30) days of the closing of any
transfer of title to
any
Residential Lot provide to Grantee copies ofsaid
acknowledgments and transfer deed.
5.
Release and Waiver.
(a)
Grantor releases Grantee, its affiliated
entities, officers, directors, partners,
employees,
agents,
mortgagees,
licensees,
contractors,
guests
and
invitees
and
their respective
successors
and assigns (collectively the “Released Parties”) from, and waives
any claims
against
Released Parties for, any and
all
liability,
loss,
claims,
demands,
liens,
damages, penalty,
fines,
interest,
costs,
expenses,
or
injunctive
or
equitable
relief
including,
without
limitation,
reasonable
attorneys’
fees
and
litigation
costs
incurred
by
Released
Parties
in
connection
therewith,
for
damage
or destruction
of property,
or diminution of real
or personal
property
value, or loss ofrental
value, use or enjoyment ofreal or personal property, or other damages for
negligence, that may arise at any time out ofor relating directly or indirectly to:
(i) noise or light
at or less
than the levels
shown
on
Exhibits
B
and
F hereto
from
the operation
of Grantee’s
Facilities;
(ii) the violation
or alleged violation by Grantee
or Grantee’s Property of any
laws,
-2-
including,
without limitation,
federal,
state or local
common
law,
including
nuisance, trespass,
negligence, or Environmental
Laws (as defined below),
statute,
ordinance, regulation, directive,
order, consent order or decree, or other legal requirement of governmental agencies or authonties
or
any judicial
or administrative
interpretation of any
of the
foregoing
(collectively “Laws”),
resulting from noise and
light levels from the operation ofGrantee’s Facilities at or less than the
levels shown on Exhibits E an&f hereto. The foregoing release and waiver shall include, without
limitation,
any action or proceeding
originally commenced or brought
against Released
Parties
by any party, including
governmental
entities andlor third parties.
“Environmental Laws”
shall
mean any
Laws
pertaining to noise or light which
are, or hereafter come into effect.
The waiver
and release under this
Section
5
shall survive Termination of this Agreement.
(b)
The~.foregoingrelease
and
waiver shall
further specifically
include
such
matters
described in
clauses
(i)
and
(ii) ofSection
5(a)
arising after the Effective Date, limited,
however,
to
matters
arising out of the operation of Grantee’s Facilities
within the scope
of and
related
to
the Easement specifically provided in
Section
2
above (collectively “Future Released
Matters”).
Grantor further covenants not
to sue Grantee for the Future Released Matters.
6.
Indemnity.
Grantor
shall
indemnify,
defend with
counsel of Released
Parties’
choice,
and
hold
harmless Released
Parties
from
and
against any
and
all
liability, loss, claims,
demands,
liens,
damages,
penalty,
fines,
interest,
costs,
expenses,
or
injunctive
or
equitable
relief,
including, without limitation, reasonable attorneys’ fees and litigation costs, incurred by or
brought
against Released
Parties
in
connection
with
any
matters
included
within
the
waiver,
release
and
covenant
not to
sue provided
in
Section
5
above, that
are asserted
in writing by any
original
purchaser of a
Lot directly from
a
Homebuilder.
The obligations of Grantor
under this
Section
6
shall
survive
termination of this
Agreement
or any
sale of,
or foreclosure
upon
the
Burdened Property,
for a period of the lesser of(a) the date ofclosing ofthe last sale ofa Lot by
a
Homebuilder
to
an
original
purchaser,
or
(b)
five
(5)
years
from
the
Effective
Date.
Notwithstanding
anything
to
the
contrary
contained
herein,
this
indemnity
shall
not
be
enforceable against Wells Fargo Bank,
N.A., or any successor or assign of such lender or of any
other lender holding
a mortgage on
the Burdened Property or any ofits
successors and
assigns.
7.
Burdens and Benefits Shall
Run
with the
Land.
This
Agreement and
all of the
limitations,
covenants,
burdens,
obligation,
conditions,
easements,
releases,
waivers
and
restrictions
provided
herein
shall
attach
to
and
run
with
the
Burdened
Property
and
be
automatically binding upon
the
successors
and
assigns of Grantor.
All of the respective rights
•
and
benefits provided herein
shall attach
to
and
run with
the
Burdened Property
and
Grantee’s
Property, as applicable.
This
Agreement
and all
the limitations,
covenants, burdens, obligation,
•
conditions,
easements,
releases, waivers
and
restrictions
provided herein
shall
be
enforceable as
equitable servitudes
in
favor of Grantee’s Property and
the owners thereof against the Burdened
Property and
the owners thereof.
The terms
“Grantor” and
“Grantee” as
used
herein
shall be
deemed
to
include
any
and
all
successors,
grantees
and
assigns
of
such
parties
and
their
•
respective successors, grantees
and
assigns, whether as to
the Burdened Property
and Grantee’s..
Property as wholes or subdivided parcels.
8.
Warranty
of Title.
Grantor
warrants that
it has marketable
and
indefeasible fee
simple title to the Burdened Property.
-3-
9.
Integration.
Each party acknowledges that
such party has
not
been induced in
the
making,
execution
and
delivery
of this
Agreement
by
any
representations,
statements,
warranties
or
agreements
of
the
other.
This
Easement
Agreement
embodies
the
enflre
understanding of the
parties
and
there
are
no
further
or other
agreements
or understandings,
written or oral,
in effect between the parties relating to the subject matter hereof.
10.
Notices.
All
notices and
other communications
given pursuant
to
this
Easement
Agreement shall
be
in writing
and
shall
be
deemed properly served if delivered
on
the first day
following delivery to
an
overnight
courier service
or on
the third day after deposit
in
the
U.S.
mail as registered or certified mail, return receipt requested, postage prepaid as follows:
-
Realen Homes, L.P.
Ifto Grantor:
do Mr. Randy Han-is
Vice President and Division Manager
1628 Colonial Parkway
Inverness, Illinois 60067
Ifto
Grantee:
Ameren Energy Development Company
300 Sur Woods Drive
Effingham, IL
62401
•
Attn:
Richard C.
Smith, P.E., Manager,
Generation Development
Fax:
217.342.7988
• With
a copy to:
Ameren Services Company
1901
Chouteau Avenue
P.O.
Box 66149
•
St.
Louis, MO63166
Attn:
Legal
Department
Fax:
(314)554-4014
Addressees and
addresses may
be
changed by
the parties
by notice
given
in
accordance
with the provisions hereof.
11.
Remedies.
In
the event of any
violation or breach hereof by
Grantor,
Grantee
shall
have every
right
and
remedy
at
law
or
in
equity,
including,
without
limitation,
specific
performance
and injunctive relief.
12.
No
Merger.
No
acquisition
of fee simple title by
Grantee of any
portion of the
Burdened
Property is
intended
or shall
be
deemed
to
constitute a
merger or termination
of the
easement, restrictive covenant, or other rights or benefits of Grantee hereunder as to that portion
ofthe Burdened Property not so acquired.
•
•
13.
verability.
If
any
provision
of
this
Agreement
shall
be
unenforceable
or
invalid, the same
shall not affect the remaining provisions
of this
Agreement
and to
this
end the
provisions ofthis Agreement
are intended to
be and shall be
severable.
-4-
14.
Jury
Trial
Waiver;
Venue.
Grantor
and
-Grantee
voluntarily,
intentionally,
unconditionally
and
irrevocably waive any right
each may have
to
trial
by jury in
any
action,
proceeding or counterclaim
(whether
arising
in
tort
or
contract) brought
by
either
against
the
other
on
any
matter arising out
of or in
any way connected with
this
Agreement or any other
document executed and
delivered by either party in connection herewith (including any action to
rescind or cancel this Agreement
was fraudulently induced or is otherwise void or voidable).
In
any such action, proceeding or counterclaim, venue shall be Cook County,
Illinois Circuit Court.
15.
Representations of the Grantor.
Grantor
hereby represents
and warrants that it
has
full
constitutional
and
lawful
right,
power and
authority,
under
current
applicable
law,
to
execute
and
deliver
and
perform the
terms
and
obligations of this
Agreement
and
all
of the
foregoing
have
been
du1~-
~nd
validly
authorized
and
approved
by
all
necessary proceedings,
findings
and
actions.
This
Agreement
constitutes
the
legal,
valid
and
binding obligation of the
Grantor, enforceable in accordance with its tern-is.
16.
Representations
of
Grantee.
Grantee hereby represents
and
warrants
that it has
full constitutional and
lawful right, power and
authority, under current applicable law, to
execute
and
deliver
and
perform the
terms
and
obligations of this
Agreement and
all
of the foregoing
have been duly and
validly authorized
and
approved by
all
necessary proceedings, findings
and
actions.
This
Agreement
constitutes
the
legal,
valid
and
binding
obligation
of the
Grantee,
enforceable
in
accordance with
its
terms.
Grantee hereby represents
and
warrants
that
current
noise and
light
level.s at the Grantee Facilities do not
exceed
the levels shown on
Exhibits
E and
F hereto, respectively.
17.
Disclaimer.
Nothing
herein,
including,
without
limitation,
the
description
of
Grantee’s Facilities,
the definition of the easement rights in
Section
2 or the restrictive covenant
in
Section
3
hereof,
is
intended
or shall
be
deemed to
grant or convey
to
Grantor or Grantor’s
Property
any
property
right
in
Grantee’s Property
or
to
impose any
encumbrance,
burden
or
limitation on the operation ofGrantee’s Facilities.
18.
Acknowledgment
by
Grantor.
Grantor
acknowledges
specifically
that
the
release,
waiver
covenant
not
to
sue
provided
in
this
Agreement
have
been
freely
negotiated
between commercial parties,
that
there
is
no
special
or
fiduciary relationship between Grantor
and
Grantee,
and
that
such
release,
waiver
and
covenant
not
to
sue Matters
do
not
violate the
public policy ofthe State ofIllinois.
19.
Choice
of Law.
This
Agreement
shall be
taken and
deemed to
have been
fully
executed, made by theparties in,
and
governed
by the-internal
laws ofthe
State ofIllinois
for all
purposes
and intents.
20.
Signature.
This
Agreement
may
be
executed
by
telefax
and
in
multiple
counterparts,
each of which shall constitute one and the same instrument.
21.
Term of Restrictive Covenants.
The
restrictive covenants set
forth in
Section
3
hereof shall remain
in
force for the greater
of:
(a)
50
years
from
the Effective Date; or (b)
the
maximum period as may be permitted under the laws of the State of Illinois.
-5-
22.
Waiver of Default.
No waiver of any default-shall be implied from any omission
to
take any
action in
respect of
such
default if such default continues
or is
repeated.
No express
written waiver of any default
shall affect
any default or cover any period of time
other than the
default and period of time
specified
in such express waiver.
One or more written waivers ofany
default in the performance of any term, provision
or covenant contained
in
this Agreement
shall
not be
deemed
to
be
a
waiver of any subsequent
default
in
the performance
of the same term,
provision orcovenant or any other term, provision or covenant
contained in
this Agreement.
The
consent
or approval by
Grantor or Grantee
to
or of any
act
or request by
Grantor or Grantee
requiring consent or approval
shall not be deemed
to
waive or render unnecessary the consent to
or
approval of
any subsequent similar acts or requests.
-6-
iN
WITNESS WHEREOF, the parties hereto have executed this Easement Agreement as
of the day and
year first above written.
GRANTOR:
Realen Homes L.P., a Pennsylvania limited
partnership
By:
Realen General Partner, LLC,
Its
General
Partner
By:
~
Name Printed:
~j,&jc±~&f
~
Title:
_______
(~
L.’c~
STATE OF
~
)
/
)SS.
COUNTY OF
~c’c~/’-~
)
I,
the
undersigned,
a No1ar~Public,
in
and
for said
County,
in
the
State
aforesaid,
do
hereby
certify
that~”
ena1~y~l~iO~vn
to
me
to
be
the
~
of said
partnership, which
is the grantor,
and personally known to
me to
be the same person whose name
is
subscribed
to
the foregoing instrument,
appeared
before me this day
in
person and
severally
acknowledged
that
as such
~
~
he/s~~
signed
and
delivered the
said
instrument
as
_________________
of
said
partnership,
pursuant
to
authority
given
by
the
partnership
agreement as his/her
free
and
voluntary act,
and
as the
free
and
voluntary
act and
deed of said
partnership, for the uses and purposes therein
set forth.
Future Taxes to Grantee’s Address
()
OR to:
•
Given under my hand
and
Notarial
Seal
SEAL
PAThK~$A& TU~CI,
N~y
Pub’ic
this~~~day of
Return this
document to:
-7-
IN WITNESS WHEREOF, the parties hereto have executed this Easement Agreement as
of the day and year first
above written.
GRANTEE:
•
Ameren Energy Development Company, an
Illinois corporation
By:____
Name Printed:
,~&
~
Title:
áfr~c..
~
/
STATEOF/~’1,c~-~-,~,
)
)SS.
et-OF:cr.L~,.~
)
I, the undersigned,
a
Notary Public,
in
and
for said
County,
in
the
State
aforesaid,
do
hereby
certify
that
~
AL.
~
c~i
k
I~L1~
~
Y
,
personally
known
to
me
to
be
the
i~
r-~
.s
~
~
~T
ofAmeren Energy Development
Company, and personally known to me to
be
the
same person whose name
is
subscribed
to the foregoing instrument,
appeared before me
this
day
in
person
and
severally
acknowledged
that
as
such L~jc.~
t~7
he/she signed
and
delivered
the
said
instrument
as
I~
~
of said
Corporation,
and
caused
the
corporate seal ofsaid Corporation to be affixed thereto, pursuant to
authority, given by the Board
of Directors ofsaid
Corporation as his/her free and
voluntary act, and
as the free and
voluntary
act and deed ofsaid Corporation, for the uses and purposes therein
set forth.
Given under my hand
and Notarial Seal
this ~? ) ~‘day of
~1i
~
,
2004.
______________________-
________
CAROLi~HEAD
My Commission Expires
N
tary
ikiW~ubhc
-
Nolary Sea’
STATE OFMISSOURi
____________________________________________________________________
—
SL._Ch~r1e~_Co~intv
My Commission Expires: SepL 23,
2006
Future Taxes to
Grantee’s Address
Return this documeñ~to:
OR to:
-8-
CONSENT AND SUBORDINATION OF MORTGAGEE
Wells
Fargo
Bank,
N.A.,
a
national
banking
association
(“Lender”),
being
the
Beneficiary
under
that
certain
Mortgage
from
Realen
Homes
L.P.
(“Qrantor”)
recorded
on
March
20,
2003
as
Document
No.
0030385112
in
the
records
of the
Cook
County,
Illinois
Recorder of Deeds’ Office, as amended by instrument recorded on August
8, 2003,
as Document
No. 0322045146
(hereinafter as amended at any time,
the “Mortgage”),
does hereby consent
to
the recordation of the foregoing Easement
and
Restrictive Covenant Agreement
(“Agreement”)
and
Lender
does
hereby
subordinate
to
the
lien
of
the
Mortgage
to
the
provisions
of
the
Agreement.
The execution ofthis Consent and Subordination of Mortgagee by Lender shall not
be
deemed
or
construed
to
have
the
effect
of
creating
between
Lender
and
Grantor
the
relationship ofpartnershi~i-~r
ofjoint
venture nor shall anything contained hereunder be deemed
to
impose
upon
Lender
any
of
the
liabilities,
duties
or
obligations
of
Grantor
under
the
Agreement.
In
addition,
nothing
herein
shall
be
construed
as
a
consent
by
Lender
to
any
amendments
to
the
foregoing
Agreement
or
shall
constitute
any
change
to
the
terms
of the
Mortgage or related documents.
Lender executes
this
Consent
and
Subordination of Mortgagee
solely for the purposes set
forth herein.
LENDER:
Wells Fargo Bank, N.A.,
a national banking
associatiOn
~
/
By:
c-~-~--J
Name Print~:
An~
~
Title:
AVP
STATEOFj~t~tx~o
)
)SS.
COUNTY OF
Qo31~
)
I, the
undersigned,
a
Notary
Public,
in
and
for said
County,
in
the
State
aforesaid, do
hereby
certify
that
~
~
k~_’u~
,
personally
known
to
me
to
be
the
Prs.s4. ~.Jic~
P(C~.Ia~,f
of the
(A~?1LS
Fç~~
,
and
personally known to
me
to
be
the
same
person whose
name
is
subscribed
to
the
foregoing instrument,
~peared
before me
this
day
in
person and
severally
acknowledged
that
as su~h
,4.~.4.V. ~-?
he/she
signed
and
delivered the
said instrument as
s~ø4’
‘.1.
Y.
ofsaid
national banking association, and
caused the corporate
seal of said banking association to
be affixed thereto, pursuant to
authority,
given by the Board of Directors of said
banking association
as his/her free and
voluntary act, and
as
the free
and
voluntary act and
deed
of said
banking
association, for the uses
and
purposes
therein set
forth.
Given under my hand
and Notarial Seal
this
~
day of
,
200g.
My Corhmission Expires
~
i~’~y
~
-
OFFICIAL.$~J,.
-
-
JENNIFER G
AIJBLEY:
NOTARY
PUBLIC
STATL
OF U,TNOtS
MV COMMISSION EXPIRES 4123/06
Prepared by and after
recording mail
to:
Mary M. Machon
Armstrong Teasdale LLP One
Metropolitan Square,
Suite 2600
St. Louis, MO 63102
-10-
EXHIBIT A
Legal Description of Grantor’s Burdened Prop erflr
That part of the North Half of Section
31
and of the
South
1500.00
feet of Section
30,
Township
41
North, Range 9
East of the Third Principal
Meridian, lying Easterly of that
parcel
described in the Warranty Deed
recorded as Document Number 0020026246, begin described as
follows:
Beginning
at
the intersection of the Westerly
line of Gifford Road
and
the North line of
the South
1500.00 feet of-said
Section.30;
thence South
01
degrees
52
minutes 29
seconds West
along
said
Westerly line of Gifford Road
a
distance of 1501 .38
feet
to
a
bend in
said
Westerly
line; thence
South 0
degrees
57 minutes
29 seconds West along said
Westerly line a distance of
2608.30
feet
to
the
Northwesterly
line
of the
right
of way dedicated
per
Document
Number
96402812;
thence
South
45
degrees
16
minutes
Ii
seconds West along said Northwesterly line
29.11
feet
to
the Northerly line of West Bartlett
Road; thence South
88
degrees
34
minutes
45
seconds West along
said Northerly line
1316.79
feet
to
the Easterly line of said parcel described
in Document Number 0020026246;
thence North 00 degrees
30 minutes
04
seconds West along
said
Easterly line
1872.84 feet;
thence
North 44
degrees
04
minutes
55
seconds East along said
Easterly line 26.39
feet; thence North
15
degrees 04 minutes
18
seconds East along said Easterly
line
368.93
feet;
thence
North
17
degrees
55
minutes
13
seconds East
along
said
Easterly
line
321.47
feet; thence North
54
degrees
26 minutes 30 seconds East
along said Easterly line
148.35
feet; thence North 09 degrees
19
minutes
12
seconds
West along
said
Easterly line
136.93
feet;
thence South
77
degrees
48
minutes 43
seconds West along
said
Easterly line
27.27 feet; thence
North 01
degrees
59
minutes
07
seconds East along
said
Easterly line
1370.57
feet to
the North
line of the South
1500.00 feet of said
Section 30; thence North 88
degrees 56 minutes
58 seconds
East along said North line
1159.34
feet to
the place ofbeginning; all in
Cook County, Illinois.
Permanent index numbers:
Part PIN 06-30-400-008, Part PIN 06-31-200-002
Property Address:
Vacant land at the northwest corner of Gifford Road and West Bartlett
Road,
Cook County, Illinois.
A-i
EXHIBIT B
Legal Description ofGrantee’s Property
That part of the East Half of the Northeast Quarter of Section
31,
and
the
West Half of
the Northwest Quarter of Section
32,
Township
41
North, Range
9
East of the
Third
Principal
Meridian
described
as
follows:
Commencing
at
an
existing
iron
stake
at
the
center
line
of
Gifford and
Spaulding
Road;
thence
North
89
degrees
58
minutes
09
seconds
East,
along the
center
line ofsaid
Spaulding Road as monumented,
a
distance of 33.00 feet to
the easterly right
of way line of said
Gifford Road,
said
right of way line
being
33.00
feet easterly, as measured
perpendicular
and
parallel-to
said
center
line
of
Gifford
Road;
thence
South
00
degrees
13
minutes
56
seconds West along said
easterly right of way line,
a distance of 710.00 feet for the
point
of beginning;
thence
North
89 degrees
58
minutes
09
seconds
East,
parallel
with
said
center line of Spaulding Road,
a
distance of
1262.38
feet to the easterly line of said
East Half of
the Northeast Quarter of Section 31;
thence continuing North 89 degrees
58 minutes 09 seconds
East, along
said
line
parallel with
the center line of Spaulding Road,
a distance of 365.73
feet;
thence South 00 degrees
17
minutes
07
seconds West, a distance of
893.59
feet to the North line
of Elgin-Victor Industrial
Park, being
a
subdivision of
part
of said
Sections
31
and
32;
thence
North
89
degrees
41
minutes
49
seconds West,
along said North line, a distance
of 1627.93
feet
to
the aforesaid easterly right ofway line of Gifford Road;
thence North 00 degrees
22 minutes
49
seconds East, along said
easterly right of way line,
a
distance of256.75
feet
to an
angle point
in
said
easterly
right of way line;
thence North
00
degrees
13
minutes
56
seconds
East, along
said
easterly right of way line,
a distance of 627.36
feet to
the point of beginning, EXCEPTING
THEREFROM,
THE
EASTERN
277
FEET
OF
SUCH
PROPERTY,
as
situated
in
the City of
Elgin, Cook County,
Illinois, and containing
27.54 acres more or less.
B-I
EXHIBIT C
Description of Grantee’s Facilities
1.
Combustion turbine-generator units
currently with
capacity of 540
Megawatts of
output (the “CTG Units”),
supplied by natural
gas or any other source or fuel for the generation
ofelectrical power.
2.
Equipment related
to
operation
of the
CTG
Units,
without limitation,
generator
step-up
transformer
from
13.8
kv
to
138
kv
to
tie
into
the
CornEd
substation;
diesel
fuel
generators;
generator
leads;
switch
yard
and
equipment
necessary
for its
operation;
turbines;
transformers;
generators;
detention
pond;
auxiliary
power
transformer
for
station
services;
natural
gas
pressure
regulation
and
metering
station;
demineralized
water
storage
tank;
demineralizer trailer; water pump
houses;
“raw”
water
storage
tank;
natural
gas
in-line
heater;
oil-water separator;
and computerized process control system.
3.
Service buildings
to
provide office space, parts
storage, maintenance shop
space,
electrical equipment rooms,
and personnel
facilities.
C-i
ORDINANCE 2003-63
AN ORDINANCE APPROVING
THE REZONING,
A SPECIAL USE FOR A PLANNED UNIT DEVELOPMENT, PRELIMINARY
SUBDIVISIONIPUD PLAN AND
SITE PLAN APPROVAL FOR HERONS LANDING
WHEREAS,
Realen
Homes
Inc.
is the
legal owner
(the
“Owner”)
of
a
parcel
of
real
estate
being
approximately
121.6
acres
in
size
which
is
not
within
the
corporate
limits
of the
Village
of
Bartlett,
but
is
contiguous
to
the
corporate
limits
of the
Village,
legally described on Exhibit A the~(”Subject
Property”);
and
WHEREAS,
Realen
Homes
Inc.
has
submitted
a
Petition to
the
Village
for
the
Property
to:
(I)
annex
the
121.6
acre
Property
and
to
rezone
it from
ER-I,
the
zoning
district to which
it
is automatically
zoned
upon annexation,
to
the
Planned Development
District;
(ii) grant
a
special
use
permit
for
a
Planned
Unit
Development for
multi-family
and
single family
housing on the Subject Property
to
be
developed
in accordance
with
the
Preliminary Plat and
Preliminary PUD
Plan
(hereinafter defined); (iii)
approval
of a
Preliminary
Plat of
Subdivision
for
Heron’s
Landing
(hereinafter
defined)
(collectively,
the
“Owner’s
Petition”); and
WHEREAS, The
Owner/Developer has agreed
to
donate
a
portion of the Subject
Property
containing
approximately
6.13
acres
to
the
Bartlett
Park
District
and
to
construct
a
16
space
parking
lot
and
install
playground
equipment for the
recreational
needs
and
uses
of
the
future
residents
of
the
Subject
Property
and
the
public,
as
depicted
on the Preliminary Piat; and
WHEREAS,
on
February
13,
2003
and
April
10,
2003,
the
Bartlett
Plan
Commission
conducted public hearings on the Owner’s Petition (Case #02-36), and on
both occasions failed to recommend
approval to the corporate authorities; and
WHEREAS,
on June
3, 2003, the
corporate authorities
held a
public hearing on
the Annexation Agreement; and
WHEREAS,
the
Village
and the Owner
have
entered
into a
binding
Annexation
Agreement
approved
by the
Village on
June
3,
2003,
which
is
incorporated
herein
by
reference
and
is
hereinafter
referred
to
as
the
“Annexation
Agreement”,
which
agreement
governs
the
annexation,
zoning
and
development
of the
Property
in
the
Village
and
the
performance
of
certain
undertakings
that
are
contingent
upon
said
annexation
of the
Property,
pursuant
to:
(I)
the
provisions
of
Division
11.15.1
of the
Illinois
Municipal
Code
of
1961,
as
amended
(65
ILCS
5/11-15.1-1
et
seq.);
(ii)
the
Village’s authorities under Division
13 of the Illinois Municipal Code (65
ILCS
5/11-1 3-1
et seq.);
and
(iii) the Village’s authority as a home rule unit of local.govemment;
and
WHEREAS,
the
corporate
authorities
have
determined
that
it
is
in
the
public
interest
to
approve
the
rezoning
from
ER-I
to
the
PD
Planned
Development
District,
grant
a
special
use
permit
for
a
Planned
Unit
Development
to
be
developed
in
accordance
with
the
Preliminary
Plat
and
Preliminary
PUD
Plan
(hereinafter defined),
approve of the
Preliminary
Plat
and the
Preliminary Site
Plan
subject to the
conditions
hereinafter set forth;
NOW,
THEREFORE,
BE IT ORDAINED
by the President and Board
of Trustees
of
the Village of Bartlett, Cook, DuPage and
Kane Counties,
Illinois, as follows:
SECTION
ONE:
Notwithstanding the failure of the Plan
Commission to
recommend
approval
or favorable findings,
that the corporate authorities
hereby
make
the following findings of fact, based on the record
and
in consideration of the conditions
set
forth
herein
and
in
the
Annexation
Agreement,
pertaining
to
the
rezoning
to
the
Planned
Development District
and the
granting of a
special
use permit for the
Planned
Unit Development:
1.
That
the
Village
Comprehensive
Plan
shows the
Property as open
space
because
it
has not been
updated
to
reflect the end of SWANCC’s
pursuit of the
balefill
on
the
adjoining
property
to
the
west
that
is
now
owned
by
the
IDNR.
Consequently,
the
Comprehensive
Plan
is
not
instructive
as
to
the
best
use
of
the
Property
and
will
need
to
be
amended
in
the
future,
but
the
proposed
use
of
the
Property
as
a
single
family
and
multi-family
Planned
Unit
Development
is
a
good
transitional
use
of the Property providing a buffer between the
mining uses to
the
north,
industrial
uses
in
Elgin
to the
east
and
the
single family
homes
to
the
southeast
and
southwest.
2.
That
the
uses
within
the
Planned
Development
as
arranged
and
depicted
on the
Preliminary Plat and
Preliminary
Site
Plan will
be compatible with each
other use within the Planned Unit Development.
3.
That
the
Planned
Development
will
be
compatible
with
development
permitted
under the
Bartlett Zoning Ordinance on
substantially
all
land in
the vicinity of
the Property based on the substantial proposed landscape berm along the
east
property
line
and
the
proposed
orientation
of
the
single
family
homes
and
townhomes
along
Gifford
Road,
the
berming and
screening proposed
on the
adjoining
property
to
the
north,
and
the
open
space
on
the
west
and
single
family
home
developments to the south.
4.
The Planned
Unit
Development
is
designed,
located
and
proposed
to be
operated
and
maintained
so that
the public health,
safety
and welfare
will not
be
endangered
or
detrimentally
affected,
and
in
conjunction
with
the
Developer’s...
obligations
under the
Annexation
Agreement,
will
increase
the
safety
of the
Village’s
existing residents and the future residents that will reside on the Subject Property.
2
5.
The
Planned
Unit
Development
will
not
substantially
lessen
or
impede the suitability of adjacent uses and development permitted and
special uses on
the
adjacent property,
or
is
injurious
to,
the
use
and
enjoyment
of,
or
substantially
diminish or impair the value
of, or be
incompatible with,
other property in the immediate
vicinity.
6.
The
Planned
Unit
Development
shall
include
impact
donations
in
accordance
with the Village’s
Developer Donation Ordinance as amended
from time to
time and in effect at the time of application for building permits, and the donation of land
in excess of the requirements of said
Donation Ordinance.
7.
the
Planned
Unit
Development
will
provide
adequate
utilities,
drainage
and other
necessary facilities,
adequate parking
and ingress
and egress
and
be so designed as to minimize
traffic congestion and hazards in the public streets.
8.
The
Planned
Unit
Development will
provide
adequate
parking
and
ingress
and
egress
and be so designed as to minimize traffic congestion and hazards
in
the public streets.
9.
The
Planned
Unit
Development
shall
have
adequate
site
area,
which area
may be greater than the minimum in the district
in which
t.he proposed site
is
located,
and other buffering features
including
berm
and
landscape screening
to protect
uses within the development and on surrounding properties.
10.
The
Owner
has
provided
assurance
that,
if
approved,
the
development will be completed according to schedule
and adequately maintained.
11.
That
the
proposed
Planned
Unit
Development
is
desirable
to
provide
a
mix of uses which
are
in the interest of public convenience and will contribute
to the general welfare of the community.
12.
The
Planned Unit
Development will not
under the circumstances of
the
particular case
be
detrimental
to
the
health,
safety,
morals
or
general
welfare
of
persons
residing
or
working
in
the
vicinity
or
be
injurious
to
property
value
or
improvement of other properties in the vicinity.
13.
The
special
use
permit
for
the
Planned
Unit
Development
shall
conform
to
the
regulations
and
conditions
specified
in
the
Bartlett
Zoning
Ordinance
therefor, and with the conditions set forth
in this Agreement.
14.
Single family
and
multi-family
uses
are
permitted
uses
in
the
PD
Planned
Development
District,
but
a Planned
Unit
Development
is
a
special
use in the
PD Planned Development District.
3
SECTION TWO:
That the Property is hereby rezoned from
ER-I
Estate
Residence
District to the
PD Planned Development District, subject to the conditions set
forth in Sections Six and Seven of this Ordinance.
SECTION THREE:
A
special use permit for a
Planned
Unit
Development
to
be
developed
on
the
Property in
substantial
conformance
with the
following
plans:
Preliminary
Subdivision
Plat for
Herons
Landing
prepared
by
JEN
Land
Design,
inc.
dated October 18, 2002, last revised May
14,
2003,
appended hereto as Exhibit
B
(the
“Preliminary
Plat”);
Preliminary
PUD
Site
Plan
for
Herons
Landing
prepared
by
JEN
Land
Design,
Inc. dated
October 23, 2002,
last revised
May
14,
2003,
appended
hereto
as Exhibit
C
(the
“Preliminary
Site
Plan”);
Preliminary
Landscape
Plan
prepared
by
JEN Land
Design, lnc~,-SheetsI and 2, dated October 18, 2002,
last revised
March 10,
2003,
and Foundation Landscape
Plan, Sheets 3 and 4,
prepared by JEN Land
Design,
Inc.
dated
October
18,
2002,
last
revised
December 19,
2002,
appended
hereto
as
Exhibit
D
(the
Preliminary
Landscape
Plan”);
Architectural
drawings
for
the
Herons
Landing
Townhomes
prepared
by
Bloom
and
Fiorino,
Building
1-sheets
C1-C3,
and
Building
2-Sheets C1-C3,
all
dated
May
16, 2003
appended
hereto
as Exhibit
E
(the
“Townhome
Architectural
Plans”);
Landscape
Screening
Sections
and
Typical
Cross
Section,
Sheets
1-3,
prepared
byMackie
Consultants
LLC
dated
December 23,
2002,
appended
hereto
as Exhibit
F
(the
“East
Berm
Plan”);
and
North
Property
Line Berm
Section
prepared
by
Mackie
Consultants
LLC
dated
February
12,
2003,
appended
hereto as Exhibit
G
(the “North Berm Section
Plan”) (said
plans,
Exhibits
B,
C,
D,
E, F
and
G,
are
collectively
sometimes
hereinafter referred
to
as
the
“Preliminary
P1st
and
the
Preliminary PUD
Plan”)
for;
(I) 210
single family
homes
with
minimum
lot
sizes of
10,800
square
feet
and
an
average
Jot
size
of
12,054
square
feet,
and• (ii)
for
119
townhome
units in
32 buildings with
a
minimum unit size
of
1,611
square
feet with the
following modifications from the
Bartlett Subdivision and
PUD Ordinance and/or Zoning
Ordinance to allow (1) a sixty (60) foot right of way, (2) a twenty-five (25) foot front yard,
and
(3)
minimum building
separation of thirty (30)
feet
from
side to
side
and fifty (50)
feet
from
rear to
rear as
depicted on
the
Preliminary
Plat
and/or the
Preliminary
Site
Plan
(collectively,
the
“Modifications”)
is
hereby granted;
subject
to
the
conditions
set
forth
in Sections Six and Seven of this Ordinance.
SECTION
FOUR:
The,
corporate
authorities
do
hereby
make
the
following findings of fact pertaining to the Preliminary Site
Plan:
1.
The
proposed
townhome
buildings,
off-street
parking,
access,
lighting,
landscaping
and drainage with
respect to
the townhomes are
compatible with adjacent
land uses.
2.
The
proposed
arrangement
of
buildings,
off-street
parking,
access,
lighting,
landscaping, and drainage
is compatible with adjacent land uses.
‘
3.
The vehicular and
pedestrian
ingress
and egress
to
and from the site and
circulation within the site provides for safe,
efficient
and convenient movement of people
and traffic,
not only within the site but on adjacent roadways as well.
4
4.
The
Site
Plan
provides for
the
safe
movement
of pedestrians within
the
site.
5.
There
is
a
sufficient mixture of grass,
trees
and
shrubs within
the interior
and
perimeter
(including
public
right-of-way)
of
the
site
so
that
the
proposed
development
will
be
in
harmony
with
adjacent
land
uses
and
will
provide
a
pleasing
appearance
to
the
public.
Any
part
of
the
site
plan
area
not
used
for
buildings,
structures, parking or access ways will
be landscaped with a mixture of grass, trees and
shrubs.
6.
The
landscape
improvements
‘proposed
are
in
accordance
with
the
“Landscape
Requirements” set forth in Chapter 10-1 IA of the Zoning Ordinance.
7.
All
outdoor storage
areas
shown
are
to
be
screened
in
accordance with
the standards set forth in the Bartlett Zoning Ordinance.
SECTiON
FIVE:
That the
Preliminary Site Plan
prepared
by JEN Land
Design,
Inc.
dated
10/23/02,
and
last
revised
5/14/03,
attached
hereto
as
Exhibit
C,
which
shall
include
the
Townhome
Architectural
Plans
and
the
Landscape
Plans,
is
hereby approved,
subject to the
conditions
set forth
in
Sections Six and
Seven
of this
Ordinance.
SECTION
SIX:
‘
The
Preliminary
P1st
of
Subdivision
fo.r
the
Heron’s
Landing
Subdivision
(the
“Subdivision”)
prepared
by
JEN
Land
Design,
Inc.
dated
10/1 8/02, last revised 5/14/03 (the
“Preliminary Plat”), attached hereto as Exhibit B and
expressly made
part of this
Ordinance, and
the
Preliminary
PUD
Plan attached
hereto
as
Exhibits
C,
D,
E,
F
and
G,
are hereby approved,
subject to the
following conditions
which must
be
satisfied before
execution by the Village
of a final plat of subdivision for
the Property:
1.
Public
Improvement
Security.
The
original
signed
copies
of
letters
of
credit,
in
a
form
approved
by
the
Village
Attorney
and
in
amounts
approved
by
the
Village
Engineer (the
“Letters
of Credit”),
and
issued
by
a
federally
insured
financial
institution
which
meets
the
requirements
of the ‘Bartlett
Subdivision
Ordinance,
or
a
performance and
labor and
material payment
bond issued
by a
surety approved
by the
Illinois
Department
of
Insurance
and/or
authorized
by
said
agency
to
do
business
in
Illinois (the
“Performance and
Payment
Bond”) to
ensure that the
public
improvements
for
the
subdivision
known
as
the
Heron’s
Landing
Subdivision
will
be
completed
and
paid for in full on or before June
3, 2005.
2.
Easements.
Recording
of
easements
approved
by
the
Village
Attorney
and
the Village
Engineer for all
drainage swales,
detention
and
retention
facilities
and
public utilities with appropriate access thereto, cross access and ingress and egress.
3.
Annexation Fee,
Land
and Cash Donations.
5
A.
Village
Fees
and
Donations.
The
Owner
agrees
to
pay
the
Village
the
sum
of
$2,000,000,
as
an
Annexation
Fee
(the
“Village
Annexation
Fee”)
as
set
forth
below
in
full
and
final
satisfaction
of any and
all Village lump sum payment contribution requirements, except
for the park donations set forth
in Section 136 below.
There
Will
be no other allocations,
assessments or participation of costs for existing or future offsite or onsite
infrastructure
features, except those set forth
in Paragraph 6 ofthis Annexation Agreement.
The Owner shall pay the Village Annexation
Fee to the Village
as follows:
$1,000,000:
Upon the
date
of the
recordation of the Final
P1st
for
Phase
I
at
the
office
of
the
Cook
‘
County
Recorder.
$1,000,000:
Upon the
date
of the
recordation of the
Final
P1st
for
Phase
2
at
the
office
of
the
Cook
County
Recorder.
B.
Park District Donations.
Notwithstanding the foregoing contribution provisions, the Owner agrees to
make
the following cash and land contribution and improvements in full satisfaction of the park
contributions
provided
under
the
Village
Ordinances,
including
the
Bartlett
Donation
Ordinance for Park District contributions.
The
Owner shall make a land donation of the
6.13
acre
park
site
area depicted on the
Preliminary
P1st as
Lot 222 (the “Park Site”) to
the
Bartlett Park District and shall make
improvements thereto, including, but not limited
to,
the
16 space on site
parking lot as shown on the
Preliminary Plat
and shall pay the
Park District the sum
of $65,000, which
it shall
use toward the cost to design,
purchase
and
construct
a
playground
on
the
Park
Site.
The
Owner
shall
complete
the
improvements
listed
in
a
certain
Park
District
letter
dated
April
24,
2003,
which
is
incorporated
herein
by
reference,
and
shall
provide
the
Park
District with
a
graded,
seeded
Park
Site
with
a
maintainable
stand
of
grass
established
with
at
least
95
coverage and comply with all title, survey,
environmental and other provisions relating to
the
conveyance of park
land
set forth
in the Bartlett Subdivision and
PUD Ordinance on
or before the issuance of the two hundredth
(200th)
building permit in the
Development.
Owner shall be allowed to utilize the parking lot and a reasonable space around
it as the
location
of
a
temporary
construction
office
and
storage
upon
filing
the
appropriate
applications,
bonds,
plans
and fees,
however said construction
office and storage
shall
be
removed from said
parking lot
no
later than
the date the
200th
building permit’in
the•’”
Development
has
been issued,
unless otherwise agreed
by the Park District
in
its
sole
discretion.
In
addition to
land
contribution
of the
Park
Site,
the Owner
shall
make
a
cash
donation
to the
Park
District
in
the
amount
of $176,128
payable
in
a
lump
sum
upon
recordation
of the
Final
Plat
for
Phase
1,
and
$176,128
in
a
lump
sum
upon
6
recordation
of the
Final
P1st for
Phase
2.
Owner shall
also
pay
at the time
the
last
townhome
building
permit
is
issued,
the
additional
amount
due,
if
any,
adjusted to
reflect the amount that should have
been
paid using the actual
mix of,two (2)
bedroom
and
three
(3)
bedroom
townhome
units
to
be
built
calculated
using
the
Cash
Equivalents for Donation
Table appended
to
and
incorporated in the Village’s
Land and
Cash
Donations
Ordinance,
2001-142
(the
“Adjustment
Payment”).
The
Park
District
contributions
set
forth
herein
have
been
agreed
to
between
the
Park
District
and
the
Owner and shall be in full satisfaction of any and all obligations for such contributions to
the Park District under the Bartlett Donation Ordinance, and any amendment thereto..
C.
Village Fees
and Donations.
The
Owner agrees to
pay the customary donations for police, fire,
library,
school,
and
Village
services that
are
due
and
payable at the time
a
building permit
is
issued and
as provided in the Village’s Land
and Cash Donations
Ordinance,
No. 2001-
142,
as
amended
from time totime.
These donations
may be
adjusted periodically to
reflect
increases or
decreases
of the
costs
of providing these
services;
provided
said
donation fees
are fees
of general applicability
or shall
be
collected
by the
Village
on a
uniform basis from substantially all present and future developers of residential property
within
the
Village,
and
further
provided
the
changes
in
any such
amended
Donation
Ordinance will not
become effective or applicable
as to the
Ownerfor a
period of three
months following
the
date
the
Village
provides
written
notice
to
the
Owner
of
such
amendment.
Owner shall
in
addition
pay the
sum of $140
per
lot to
the Village
as
a
contribution to the Village’s Municipal Building Funth
4.
Road
Improvements.
Road
improvements
shall
be made
in
accordance
with the provisions
in the
Bartlett Subdivision Ordinance.
5.
Protection of Public
Improvements.
Prior to the recording of the Final
P1st
of Subdivision
for
Realen
Homes
Heron’sLanding
Subdivision,
the
Developer and/or
the Purchaser shall have deposited with the Village
guarantees. that
it will complete,
pay
for,
and
maintain
the
Public
Improvements
for
a
period
of
15
to
22
months
after
acceptance
of the
Public
Improvements by the Corporate Authorities,
including,
but not
limited
to,
site
grading
and
restoration,
underground
improvements,
all
roadway
improvements,
street
lighting,
sidewalks,
parkway
restoration,
trees
and
driveway
approaches
and
all
storm water facilities constructed
in
strict
accordance with the
final
engineering
plans
approved
by
the
Village ,Engineer
for
the
Subdivision,
and
in
accordance
with
the
Bartlett
Subdivision
Ordinance
(the
“Public
Improvements”)
for.
each phase
of the
Development.
Upon
completion of the public improvements
in each
phase,
and
their
acceptance
by
the
Village
Board,
the
Developer
shall
transfer
title
thereto to the
Village
by warranty
Bill of Sale
in the form prescribed
in the Subdivision
Ordinance
and
shall
deposit
a
maintenance
“security”
in
accordance
with
the
Subdivision
Ordinance.
The
Developer shall execute and
deliver to the Village
a
Public
Improvement
Completion
Agreement
(the
“Agreement”)
in
a
form
approved
by
the
Village Attorney agreeing to
construct and fully pay for
all of the public improvements in
strict
accordance
with the
approved
final
engineering
plans
for the
Subdivision
which
7
agreement
shall
provide
among
other things
in
the
event
any
public
improvements,
including,
without
limitation,
streets,
curbs,
gutters,
sidewalks,
street
lights,
sanitary
sewers,
storm
sewers, water mains,
hydrants, manhole
covers or required
landscaping
are damaged as a result of the on-site or off-site construction activities of the Developer,
its contractors and their sub-contractors,
all
such damage shall be promptly
repaired,
or
caused
to
be
repaired, to the Village’s
satisfaction
by the Developer without cost to the
Village.
6.
Engineering
Approval.
The
Village
Engineer’s
approval
of
the
final
engineering
plans
for
the
Subdivision
including
traffic
analysis
and
impact,
detention
and
stormwater
management
requirements,
lift
station
design
and
construction,
final
grades, drainage,
street design and cost estimates.
7.
Dedication
to
Cook
County
of seventeen
(17)
feet
of
property ,a~ongthe
eastern boundary for future widening of Gifford
Road,
and seventeen (17) feet along the
southern boundary for the future widening of West Bartlett Road.
8.
Road
Access.
Approval
by
the
Cook
County
Highway
Department
(the
“Highway
Department”) of the
proposed
curb
cuts
at the
proposed
locations
on
both
West
Bartlett
Road
and
Gifford
Road,
and
the
Owner’s
agreement to
construct
such..
turn
lanes,
acceleration
lanes,
deceleration
lanes
and
traffic
control
devices
and
measures recommended by the Highway Department.
9.
Creation of a
single-family home
homeowners association
and/or a master
homeowners association and a separate townhome association
10.
Declaration of Homeowners Covenants.
Approval of
a master declaration
of covenants,
conditions
and
restrictions (“CCR’s”)
for
the development,
and
separate
CCR’s
for the
townhome development,
relating to
maintenance
of the
common
areas,
landscaping,
berms,
detention,
retention areas
and
protection
of the
IDNR
property
to
the west of the Property
II.
Statement of Awareness.
The
Village
Attorney’s
approval of
the
form
of
“Statement of Awareness” substantially
in the form
appended
hereto as
Exhibit
I, to
be
signed by each prospective buyer in the development prior to or at the time of entering
a
purchase
contract
for
a
home
or
townhome
in
the
Development
which
discloses
the
existing
and
proposed
future
industrial
development
and
mining
operations
on
surrounding properties.
.
‘
.
12.
Buffer/Landscape Agreement.
Submittal of an agreement with the owners
and
developer of
the
property
to
the
north
evidencing
its
agreement
to
construct
a
twenty-five (25) foot
high by approximately one
hundred eighty (180) foot wide berm.on
its
property, and to install and maintain landscaping thereon itself or allow the
Owner to
do so as approved by the Bartlett Community Development Department.
8
•
13.
Owner’s agreement to install
a ten
(10)
oot wide
bike
path along the
west
side of Gifford
Road and through the Development to connect to the
Park Site.
14.
The
Owner
shall
have timely filed
all
consents
and
documents
necessary
for the Village
to
establish
a
special service
area covering the
Property to
pay for the
future
repair
and
maintenance
of
all
stormwater
management
areas,
pipes,
conduit,
structures
and
appurtenances
in
accordance
with
the
Bartlett
Subdivision
and
PUD
Ordinance.
15.
Special Service
Area.
The
creation of
a
Special
Service Area to
provide
the
Village
with
a
source
of
revenue
for
the
extraordinary
maintenance,
repair
or
replacement expenses
in
connection with storm
water detention/retention
facilities that
serve
the
Property
and
for
ordinary
open
space
maintenance
expenses
should
the
homeowners
association
owning
the
land
on
which
such
facilities
are
located
fail
to
perform
such
ordinary
open
space
maintenance
in
accordance
with
the
Village~
standards
shall
be
made
prior to
the
recording
of the
final
plat
of
subdivision.
The
Owner shall have timely filed
all consents
and
documents
necessary for the
Village
to
establish
a
special service area
covering the
Property to
pay for the future
repair and
maintenance
of
all
stormwater
management
areas,
pipes,
conduit,
structures
and
appurtenances in accordance with the Bartlett Subdivision and PUD Ordinance.
16.
Landscape
Plan. Approval
of th~
final
landscape plans
by the
Community
Development Department,
including,
but not limited
to, the landscaping
of the forty
(40)
foot wide
by three (3)
to four (4) foot high berm with
eight
(8) foot
high evergreen trees
and other trees
and
bushes along the
east property line to screen
it from
the industrial
uses to the east of the Property.
17.
Groundwater Study Recapture.
Payment of any recapture amounts due to
Bluff
City
Materials,
or of the
Owner’s
estimated
proportionate
share
as determine
by
the Village
and/or the IDNR
if a
recapture ordinance
has
not yet
been
recorded, of the
cost of the ground water modeling
study requested
by the
Illinois Department of Natural
Resources and
its related or affiliated state offices (the
“IDNR”) to assure
not only Bluff
City
Materials but also developments
lying in the same
water shed as the Bluff City
Fen
will not adversely affect said Fen
not to exceed
$25,000.
18.
Compliance
with
Subdivision
Ordinance.
Compliance
with
the
Bartlett
Subdivision Ordinance, as amended.
19.
Compliance with Annexation
Agreement.
Compliance
with or satisfaction
of all of the terms
and conditions of the Annexation
Agreement between the Owner and
the Village.
•SECTION SEVEN:
The
violation of any of the above conditions, or any of
the
conditions
hereinafter
set
forth
in
this
Section
Seven,
shall
be
cause
for
the
revocation of the special use permit and
Site
Plan approval herein granted:
9
1.
All
existing
and
new
utilities
and
communication
facilities,
including
telephone,
electric
and
cable
television which
serve
the
Subdivision
shall
be
installed
underground.
The
Developer
shall
promptly
notify
all
utility
and
communication
companies
of
the
need
for
such
underground
installation
and
services
prior
to
the
construction
or any improvements for the Subdivision
and shall provide the Village with
a copy of such notice.
2.
Sidewalks.
Five (5) foot
sidewalks
shall be provided
on the
both
sides of
the street throughout the development as required
in the Bartlett Subdivision Ordinance.
Sidewalks shall be installed
in accordance with the Bartlett Subdivision Ordinance.
3.
Bike
Path.
A 10-foot wide bike
path
shall
be installed
along the west side
of Gifford
Road
and through the Subdivision to connect to the Park Site.
4.
Parkway Trees.
Parkway
trees
shall
be
provided
on
both
sides
of the
street
spaced
at
intervals
of
40-60
feet
as
required
in
the
Bartlett
Subdivision
Ordinance.
5.
Construction
Traffic.
All
construction
traffic
shall
enter
and
exit the
site
from
Gifford
Road.
SECTION
EIGHT:
SEVERABILITY.
The
various
provisions
of
this
Ordinance
are
to
be
considered
as
severable,
and
if
any
part
or
portion
of
this
Ordinance
shall
be held
invalid
by any
Court of competent jurisdiction,
such
decision
shall not affect the validity of the remaining
provisions of this Ordinance.
SECTION NINE:
REPEAL
OF
PRIOR
ORDINANCES.
All
prior
Ordinances
and
Resolutions
in
conflict or inconsistent
herewith
are
hereby expressly
repealed only to the extent of such
conflict or inconsistency.
SECTION TEN:
•
EFFECTIVE
DATE.
This
Ordinance
shall
be
in
full
force
and effect
upon passage and approval.
ROLL CALL VOTE:
AYES:
Trustee Airdo, Arends,
Bormann, Floyd, Nolan
NAYS:
Trustee Kavouris
ABSENT:
•
None
PASSED:
June 3, 2003
APPROVED:
June
3, 2003
10
atherine J.
Melc
rt, Village President
ATTEST:
Linda
Gallien, Village Clerk
CERTIFICATION
I,
the undersigned,
do hereby
certify that
I
am the
Village
Clerk
of the
Village
of
Bartlett,
Cook,
DuPage
and
Kane
Counties,
Illinois,
and
that the foregoing
is
a
true,
complete and exact copy of Ordinance 2003-63, enacted on June
3, 2003
and approved
on June 3, 2003, as the same
appears from the official records of the Village of Bartlett.
Linda Gallien, Village
Clerk
11
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