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HomeMy WebLinkAboutResolutions - R-18-020 - 11/26/2018 - Reducing Certain Cash Donations Lincoln Hills SubdivisionR-18-020 A Resolution Partially Reducing Certain Cash Donations in the Lincoln Hill Subdivision Annexation Agreement WHEREAS, the City of McHenry, McHenry County, Illinois ("City"), is a home rule municipality as contemplated under Article VII, Section 6, of the Constitution of the State of Illinois, and the passage of this Resolution constitutes an exercise of the City's home rule powers and functions as granted in the Constitution of the State of Illinois. WHEREAS, on or about March 1, 2004, the City entered into a Lincoln Hills Annexation Agreement relating to the development of the Lincoln Hills Subdivision ("Annexation Agreement"). WHEREAS, paragraph 16 of the Annexation Agreement provides for certain fees and cash donations to be made by the owner of the subject property to the City, relating to the development of the property. WHEREAS, in order to enhance development within the City, the City desires to provide incentives to the owners of the subject property to continue development of the Lincoln Hills Subdivision and for that reason, this Resolution is being adopted. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of McHenry, McHenry County, Illinois, as follows: Section 1. Notwithstanding anything contained in the Annexation Agreement to the contrary, the City hereby partially and temporarily waives its right to collect fees and cash donations referenced in the Annexation Agreement as follows: the annexation fees required pursuant to Section 16a and the cash donations required pursuant to Section 16b of the Annexation Agreement, all as adjusted for the passage of time in accordance with the Annexation Agreement, shall be reduced by fifty percent (50%) for a period of time beginning November 26, 2018 through September 24, 2019 ("Fee and Donation Discount Period"). The discount shall be calculated based on the amount due as of the date of payment thereof. All of said fees and donations shall be payable at the time of building permit, on a lot by lot basis. All of the foregoing shall remain in effect for the owner lots notwithstanding any future fee or donation increases pursuant to City ordinances and further notwithstanding any new fees or donations which may hereafter be adopted by the City. The subject property owner/developer shall have the right to prepay any fees or donations due or to become due pursuant to the Annexation Agreement (as amended), and such fees and donations shall be at the discounted rates as described herein, provided they are paid to the City within the Fee and Donation Discount Period. Section 2. All resolutions and parts of resolutions in conflict with this Resolution be and the same are hereby superseded, that this Resolution be in full force and effect forthwith upon its adoption and that this Resolution shall be deemed to be subject to modification in application to comply with the general election law. Voting Aye: Alderman Santi, Alderman Glab, Alderman Schaefer, Alderman Curry, Alderman Mihevc, Alderman Devine and Alderwoman Condon Voting Nay: 0 Absent: 0 Abstain: 0 (SEAL) �. APPROVED: Mayo e iett ATTEST: 4 /__ kl4- f Deputy City Clerk Debra Meadows Passed: ukk ,� ldcl Approved: G/ CERTIFICATION I, Debra Meadows, do hereby certify that I am the duly appointed, acting and qualified Deputy Clerk of the City of McHenry, McHenry County, Illinois, and that as such Deputy Clerk, I am the keeper of the records and minutes and proceedings of the Mayor and Aldermen of said City of McHenry. I do hereby further certify that at a regular meeting of the Mayor and Aldermen of the City of McHenry, held on the , � day of /�, ; ,� Y� i �' 2018, the foregoing Resolution entitled A Resolution Partially Reducing Certain Cash Donations in the Lincoln Hill Subdivision Annexation Agreement, was duly passed by the City Council of the City of McHenry. The pamphlet form of Resolution No. ( -' c? --,including the Resolution and a cover sheet thereof, was prepared, and a copy of such Resolution was posted in the City Hall, commencing on the day of _l.. �4r� L < <' 2018, and will continue for at least 10 days thereafter. Copies of such Resolution are also available for public inspection upon request in the office of the City Clerk. I do further certify that the original, of which the attached is a true and correct copy, is entrusted to me as the Clerk of said City for safekeeping, and that I am the lawful custodian and keeper of the same. GIVEN under my hand and seal this day of 2018. 'Debra Meadows, Deputy City Clerk City of McHenry, McHenry County, Illinois (SEAL) Department of Community & Economic Development McHenry Municipal Center 333 Green Street McHenry, Illinois 60050 Phone: (815) 363-2170 Fax: (815) 363-2173 www.ci.mchenry.il.us REGULAR AGENDA TO: Mayor and City Council FROM: Ross Polerecky, Community Development Director FOR: November 26, 2018 Regular City Council Meeting RE: Resolution Reducing Certain Cash Donations for the Lincoln Hills Subdivision ATT: Original annexation agreement Resolution AGENDA ITEM SUMMARY: To date, City Council has approved a reduction of fees for the following subdivisions cover by annexation agreements - Oaks at Irish Prairie, Liberty Trails, Patriot Estates and Legend Lakes. Lincoln Hills is the final subdivision under a current annexation agreement considered for a reduction of impact fees. However, the entity with which the annexation agreement was executd no longer exists due to foreclosure. Therefore, in order to provide the same reduction in fees for the five (5) remaining lots in the subdivision, Staff is asking that Council approve a reduction in fees through resolution. BACKGROUND: Lincoln Hills Subdivision was annexed into the City of McHenry in 2004. The subdivision consists of about 19 acres and was platted with 36 single-family lots. Of the 36 lots originally platted only 5 lots remain undeveloped. The original developer of the property, was unable to finish the subdivision and lost most of the lots in foreclosure. Homebuilder Town and Country purchased some of the foreclosed lots and finished all but a handful that were privately owned. The remaining 5 lots are privately owned but still fall under the current annexation agreement that does not expire until 2025. This reduction in fees is unique in that the original developer is no longer around to petition for a reduction in fees, therefore a resolution to waive the requirements of the annexation agreement is required in ordered to receive the reduction. The waiver of the annexation requirements is no different than the previously approvd annexation amendments. This will allow for a 50% reduction of fees through September 24t" of 2019. The difference between a waiver and an amendment is that the formal amendment process is binding and therefore it ensures a developer more confidence when making a substantial financial obligation, such as the purchase of lots. As has been stated with the previous annexation Department of Community & Economic Development McHenry Municipal Center 333 Green Street McHenry, Illinois 60050 Phone: (815) 363-2170 Fax: (815) 363-2173 www.ci.mchenry.il.us agreement amendments, prior to the reduction period expiration, a comprehensive fee study will be presented to the Council for approval of a more current fee schedule for single-family home development. The following analysis is based on fees for a four bedroom home. Lincoln Hills (5 lots) Current Proposed Reduction Amount District 15 4,782.05 2,391.03 2,391.03 District 156 2,574.95 1,287.48 1,287.48 Library 356.00 178.00 178.00 Fire 356.00 178.00 178.00 Park 7,854.00 3,927.00 3,927.00 TOTALS $15,923 $7,961.50 $7,961.50 Total Impact of 50% Reduction Per Entity Based on 5, four bedroom, homes (amount waived is equal to the amount received): District 15: $ 11,955.15 District 156: $ 6,437.40 Library: $ 890.00 Fire: $ 890.00 Park: $ 19,635.00 TOTAL: $ 39,807.55 (this is also the approximate prepayment option amount) As identified above, the total amount of fees that would be waived with a 50% reduction is approximately $39,807.55. This does not include building fees, plumbing inspection fees, water and sewer connection fees, or operations fees (school, library, fire). Water and sewer capital development fees are already reduced by 50% based on City Council action of September 24, 2018. RECOMMENDATION: Therefore, if Council concurs, it is recommended that a motion be made to adopt a Resolution partially reducing certain cash donations in the Lincoln Hills Subdivision Annexation Agreement through September 24, 2019. `1 City of McHepry D 333 South Green Street McHenry, Illinois 60050-5642 (815) 363-2100 FAX: (815) 363-2119 C E R T I F I C A T I O N KCHENRY COUNTY RECORDER PHYLLIS K. HALTERS �CDIDEi FR(D0Zi-0c337 05/26/2005 04:30PH PAGES 14 RECORDING FEE 96.00 CORM STW FEE STATE STAMP FEE I, Janice C. Jones, City Clerk in and for the City of McHenry, Illinois, and keeper of the official records, files, and seal thereof, do hereby certify that the attached document is a true and correct copy of City of McHenry Ordinance No. ORD-04- 1243.A, authorizing the execution of the Annexation Agreement' with Raymond and Linda Walls for Lincoln Hill Subdivision located north of Lincoln Road and West of Chapel Hill Road and comprised of approximately 19 acres Said Ordinance was passed and approved by the McHenry City Council at a regularly scheduled meeting held on the 18t day of March, 2004, and was signed by the Mayor of the City of McHenry on March 1, 2004. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal -of the City of McHenry, Illinois this v' 6�+ May, 2005. J nice C. Jones City Clerk by Kathleen M. Kunzer, Deputy Clerk of the City of McHenry, Illinois Prep.ar ed by and Mail to: City _bf McHenry Office of the City Clerk 333 S. Green Street McHenry IL 60050 n �, 05-27-8138 f ORDINANCE NO. ORD-04-1243.A AN ORDINANCE AUTHORIZING THE EXECUTION OF AN ANNEXATION AGREEMENT WITH RAYMOND R. WALLS AND LINDA S. WALLS ("TITLE HOLDERS") AND THE CITY OF MCHENRY, AN ILLINOIS MUNICIPAL CORPORATION, FOR AN APPROXIMATELY 19 ACRE PROPERTY LOCATED AT 2414 W. LINCOLN ROAD, EAST AND SCOUTH OF LIBERTY TRAILS SUBDIVISION AND WEST OF THE MCHENRY MIDDLE SCHOOL, IN MCHENRY COUNTY, ILLINOIS WHEREAS, Raymond R. Walls and Linda S. Walls are the ("TITLE HOLDERS") of the real estate located at 2414 W. Lincoln Road, east and south of Liberty Trails Subdivision and west of the McHenry Middle School, in. McHenry County, Illinois; and WHEREAS, notice of a public hearing was published in the Northwest Herald, a newspaper of general circulation in the City of McHenry, within the time provided by law, notifying the public of a hearing on said Annexation Agreement before the Corporate Authorities of the -City of McHenry; and WHEREAS, the Corporate Authorities of the City of McHenry have held the public hearing as required by law and have found that entry into said Annexation Agreement is in the best interest of the City. NOW, THEREFORE, BE 1T ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF MCHENRY, MCHENRY COUNTY, ILLINOIS AS FOLLOWS: SECTION 1: The Annexation Agreement, bearing the date of March 1, 2004, between the City of McHenry, an Illinois Municipal Corporation in the State of Illinois, Raymond R. Walls and Linda S. Walls, TITLE HOLDERS be and the same is hereby approved. A complete and accurate copy of said Annexation Agreement, labeled "Lincoln Hills Annexation Agreement', is attached to this ordinance and incorporated herein y reference. SECTION 2: The Mayor and City Clerk are hereby authorized to affix their signatures as Mayor and City Clerk to said Annexation Agreement for the uses and purposes therein set forth. SECTION 3: All Ordinance or parts thereof in conflict with the terms and provisions hereof are hereby repealed to the extent of such conflict. SECTION 4: This Ordinance shall be published in pamphlet form by and under the authority of the corporate authorities of the City of McHenry, McHenry County, Illinois. 05-21-0(39 SECTION 5: This Ordinance shall be in full force and effect from and after its passage, approval, and publication in pamphlet form as provided by law, PASSED THIS IST DAY OF AARCH , 2004 BOLGER, LOW, MURGATROYD, WIMMER, CONDON AYES: NAYS: GLAB, PETERSON NONE ABSTAINED: ABSENT: NONE NOT VOTING: NONE APPROVED THIS IST DAY OF MARCH , 2004 ATTEST: t C CI Y C RK 0 VL'on ,WYOR E 05-'2-7.0111,0 LINCOLN HILLS ANNEXATION AGREEMENT This Agreement made and entered into this —I ST_ day of MART=w , 2004, by and between the CITY OF MCHENRY, an Illinois municipal corporation (hereinafter referred to as "CITY"), and RAYMOND R. WALLS AND LINDA S. WALLS (hereinafter referred to as "OWNER"). RECITALS A. The OWNER holds fee simple title to the real estate legally described on Exhibit A, attached hereto and made a part of this Agreement by reference, hereinafter referred- as the "SUBJECT PROPERTY". B. The OWNER has filed with the City Clerk_ a Petition for Annexation of the SUBJECT PROPERTY to the CITY, contingent upon the terms and provisions of this Agreement, which Petition has been filed in accordance with 65 ILCS 5/7-1-8, and the ordinances of the CITY. C. The SUBJECT PROPERTY is currently improved with a single-family residence, two (2) outbuildings and is zoned E-1, Estate, pursuant to the McHenry County Zoning Ordinance. D. The SUBJECT PROPERTY has electors residing thereon and all the electors have properly executed the Petition for Annexation. E. The SUBJECT PROPERTY consists of one contiguous tract of land which is notwithin the corporate boundaries of any municipality or subject to an Annexation Agreement with any other municipality, and is presently contiguous to and may be annexed to the CITY in accordance with 65 ILCS 5/7-1-1, et seq. F. The OWNER desires to annex the SUBJECT PROPERTY to the CITY in accordance with the terms of this Agreement. G. The CITY has determined that the annexation of the SUBJECT PROPERTY in accordance with the terms of this Agreement is in the best interest of the CITY, will promote sound planning and growth of the CITY, and otherwise enhance and promote the general welfare of the CITY and its residents. H. Notice to the Fire Protection District, Public Library District or Township of the annexation of the SUBJECT PROPERTY is not required. I. This Agreement is made pursuant to and in accordance with the provisions of 65 ILCS 5/11-15.1-1, et seq. J. Prior to the date of this Agreement, all public hearings were held upon proper notice and publications as are required for the CITY to effect the terms of this Agreement. NOW THEREFORE, in consideration of their respective agreements set out herein, the CITY and OWNER HEREBY AGREE AS FOLLOWS; 05--2-7-0141 Annexation. Upon execution of this Agreement, as allowable by law, the CITY shall enact an ordinance annexing the SUBJECT PROPERTY. A copy of said ordinance, together with an accurate plat of the SUBJECT PROPERTY, shall be filed with the County Clerk of McHenry County and recorded with the Recorder of Deeds of McHenry County. This Agreement in its entirety, togetherwith the aforesaid Petition forAnnexation, shall be null, void and of no force and effect unless the SUBJECT PROPERTY is zoned and classified as provided in this Agreement by the adoption of ordinances by the CITY immediately following the execution of this Agreement. 2. Zoninq. Immediately following the annexation of the SUBJECT PROPERTY, the CITY shall adopt an ordinance granting a zoning map amendment to RS-2, Medium -Density Single -Family Residential District for the SUBJECT PROPERTY. 3. Preliminary Subdivision Plat Approval. The Preliminary Plat of Subdivision, prepared by Rooney Consultants, Inc. dated February 12, 2004, attached hereto as Exhibit B and made a part of this Agreement by reference (hereinafter referred to as " PRELIMINARY PLAT"),consisting of thirty-six (86) single-family residential lots is hereby approved. 4. Building Plans. Attached hereto as Exhibit C are proposed building plans representing the types of homes to be constructed onthe SUBJECT PROPERTY. Plans for all single family homes constructed in the subdivision shall be stamped by a licensed, registered architect in the State of Illinois. 5. Landscape Plans. Prior to the approval of the Final Plat of Subdivision for the SUBJECT PROPERTY, OWNER shall submit a landscape plan showing a landscape berm along Lincoln Rd. and along the entire eastern property line and western property line along lots 15 -18, except where it will'obstruct or impede drainage flow. Said berm shall include plantings of size and species to be approved by the CITY. Said landscape areas shall be designated as outlots or easements and maintained by an appropriate association, through the terms outlined in Paragraph 6 of this Agreement. Prior to issuance of any Occupancy Permits by the CITY, OWNER shall install and maintain landscaping and berming or fencing and other improvements in accordance with said plan. OWNER shall implement, install, enforce, and maintain the Landscape Plans within the SUBJECT PROPERTY, and shall incorporate the Landscape Plans into the covenants and restrictions placed on the SUBJECT PROPERTY prior to CITY approval of the final plat of subdivision within the SUBJECT PROPERTY. 6. Covenants and Maintenance. OWNER agrees to provide for implementation, enforcement, and maintenance of all landscape plans, stormwater and drainage systems, including detention basins and retention ponds -by establishing a "homeowners' association" or appropriate organization. The -provisions of the homeowners' association corporate charter and bylaws and any covenants used in its enforcement shalfbe submitted to the CITY with the final plat of subdivision. It is acknowledged and agreed that the CITY shall have the right, but not the obligation, to enforce all provisions of the homeowners' association charters, bylaws, and covenants, as they relate to stormwater management, and that all such documents shall so provide. It is further acknowledged and agreed that all homeowners' associations bylaws and covenants will specifically provide that these shall not be amended as they relate to such implementation, enforcement, and. maintenance, and the means for providing funds therefore, without the prior approval of the CITY. 2 1 05-27- 81 42 7. Back -Up Special Service Area. Prior to CITY approval of the final plat of subdivision within the SUBJECT PROPERTY, OWNER and CITY agree to establish a back-up Special Service Area'(SSA) over the SUBJECT PROPERTY, for the purpose of maintaining that portion of the SUBJECT PROPERTY designated as outlots or common areas. The SSA serves as a back-up measure to the private homeowners' or other appropriate type of organization to ensure the continued maintenance of the . private subdivision improvements, including open space, landscaping, stormwater management and other amenities as provided in this Agreement. OWNER agrees not to object to the establishment of said Back Up Special Service Area. 3. Tree Survey and Preservation Plan. OWNER shall provide a tree survey and preservation plan for the SUBJECT PROPERTY, in accordance with the CITY's Tree Preservation ordinance, for review and approval by the CITY, prior to CITY approval of the Filial Plat of subdivision. 9. Curb, Gutter and Stonmwater Improvements. Curb and gutter and an enclosed storm sewer system shall be installed in areas of the SUBJECT PROPERTY, in compliance with the ordinances of the CITY. Stormwater detention/retention areas shall be installed and maintained in accordance with CITY ordinances. A more restrictive stormwater runoff rate, as determined by the CITY, may be required to maintain and/or improve off -site drainage in the vicinity of the SUBJECT PROPERTY. 10. Sanitary Sewer and Water. a. The SUBJECT PROPERTY shall be developed with municipal sanitary sewer and water. OWNER will be allowed to extend the municipal water and sewer lines to service the SUBJECT PROPERTY, and the CITY will service the development with water and sanitary sewer treatment facilities. Water and sanitary treatment plant and main capacity will be made available to the development on the same basis as it is made available to other developments. The CITY acknowledges that there is currently sanitary sewer treatment plant capacity available from the CITY to service the SUBJECT PROPERTY however, the CITY does not agree to reserve any capacity for the SUBJECT PROPERTY. No action of the CITY regarding application to the Illinois or U.S. Environmental Protection Agency for permission to construct sanitary sewer lines on any part of the SUBJECT PROPERTY shall be construed to constitute any representation, warranty, or reservation by the CITY to OWNER that municipal sanitary sewer treatment plant or sanitary sewer main capacity or municipal water will be available to service the SUBJECT PROPERTY when OWNER applies to the CITY for connection permits. 11. Existing Recapture Agreements OWNER acknowledges that the SUBJECT PROPERTY is subject to existing recapture agreements for sewer and water improvements previously constructed by Rich Adams and Gerstad Builders. OWNER agrees to pay the fair share of such recapture, as established in the agreements, prior to connection to the CITY'S sanitary sewer system or water systems. 3 05-27-31 43 12. Temporary Slanaae. a. Advertising Signs. The CITY agrees to issue permits, following receipt of proper applications and fees, for one (1) temporary subdivision advertising sign on the SUBJECT PROPERTY, at a location selected by the OWNER. The sign shall -be two- sided or v-shaped, a maximum of sixty-four (64) square feet in area per side, twelve (12) feet in height, and set back a minimum of ten (10) feet from the property line. The sign shall be removed when the SUBJECT PROPERTY has reached ninety (90) percent occupancy of the total number of residential units proposed, based upon issuance of Certificates of Occupancy. b. On -Site Directional Signs. On -site directional signs identifying the sales office(s) and model(s) shall be allowed subject to approval by the Community Development Department of the CITY, upon payment of a one-time permit fee, with said signs to be removed on or before termination of sales office(s). 13. Model Homes; Construction Trailers. a. Model Homes. Upon the annexation of the SUBJECT PROPERTY and in advance of the final plat of subdivision or engineering approval, the OWNER shall be permitted, at the OWNER'S sole risk, to construct, maintain and occupy model units in one or more product lines being offered by the OWNER and to construct and maintain other appurtenant facilities for said model units, including temporary sanitary facilities and systems (when a permit is received from the McHenry County Health Department) in advance of the construction of sanitary, storm sewer, storm water detention facilities and water mains; provided, however, no such construction shall prejudice the power and right of the CITY to review, approve and disapprove final plats of subdivision and engineering plans for any parcel containing said models. OWNER shall have the to right to use said models, as well as their garages, for sales, sales promotions and offices for sales personnel, all as may be desirable or in any way connected with the sales of dwellings on the SUBJECT PROPERTY. The CITY agrees to allow the OWNER to construct temporary parking facilities paved to the sidewalk with curb depressed or other appurtenances to the model units and sales offices subject to the approval of the Community Development Department of the CITY and compliance with all applicable codes of the CITY. b. Construction Trailers. A construction storage trailer used to build dwelling units shall be allowed at a location to be approved by the Community Development Department of the CITY. Upon the occupancy of 90% of the units, said construction storage trailers shall be removed from the SUBJECT PROPERTY. At all times during development of the SUBJECT PROPERTY, said construction storage trailer shall be parked no closer than three hundred (300) feet from the nearest occupied home. 14. Underground Utilities. OWNER shall install underground, at OWNER's cost, all new electricity, gas, telephone lines and any other utility or cable devices, lines, or conduits necessary to service the development of the SUBJECT PROPERTY. 15. Road Improvements and Contributions. a. Internal Road Improvements. OWNER agrees to construct the north -south road as depicted on' the PRELIMINARY PLAT, with a landscaped center median at the entrance to Lincoln Road, and public sidewalk on both sides. CITY agrees to allow 4 05-2I-8144 OWNER to install one lane in each direction, required right and left-hand turn lanes accessing Lincoln Road. Said road improvements shall be approved by the CITY prior to construction. b. Offsite Road Improvements. OWNER agrees to construct westbound right-hand turn deceleration lane and an eastbound left-hand turn lane into the entrance of the SUBJECT PROPERTY. Sidewalks shall be installed along Lincoln Road, along the entire length of the property frontage. Said road improvements shall be approved by the CITY prior to construction. 16. Donations Contributions and Fees. OWNER acknowledges that the development of the SUBJECT PROPERTYwill impact on schools, parks, the library and fire protection districts and other public services within the CITY. To reduce the effects of this impact, and as a condition of this Agreement, OWNER shall be obligated to pay and/or donate, or cause to be donated to the CITY, or provide improvements for the benefit of the CITY as follows: a. Annexation Fees. i. OWNER shall pay to the CITY the lump sum of nineteen thousand (19,000) dollars within ninety (90) days following City Council approval of the annexation of the SUBJECT PROPERTY to the CITY. ii, OWNER shall pay to the CITY the sum of $580 per residential unit constructed on the SUBJECT PROPERTY upon issuance of each building permit. iii. OWNER shall pay to the CITY the sum of $1,972 per residential unit $1,064 to School District No. 15, $776 to School District No. 156, $66 to the Library District and $66 to the Fire District constructed on the SUBJECT PROPERTY upon issuance of each Certificate of Occupancy, b. Cash Donations i. OWNER shall pay to the CITY certain Cash Donations per residential unit constructed on the SUBJECT PROPERTY upon issuance of each building permit. The Cash Donations payable by the OWNER to the CITY shall be calculated as follows; Dwelling Unit School Distracts Total 156 15 Parks Library Dist. Fire Dist. Total per Unit 2 Bedroom $2,159 $756 $1,403 $3,255 $269 $269 $5,952 3 Bedrooms $4,952 $1,733 $3,219 $4,679 $269-$269 $10,169 4 Bedrooms $5,692 $1,992 $3,700 $6,075 $269 $269 $12,305 5 Bedrooms or A,iore $5,001 $1,750 $3,251 $6,084 $269 $269 $11,623 The Cash Donations referred to in this chart shall collectively be referenced to as "Minimum Cash Contribution Amounts", ii. In the event the Minimum Cash Contribution Amounts, as calculated above, are less than the cash donation amounts set forth in the CITY's ordinances, as amended from time to time, an amount equal to the amounts specified in 5 05-2 7--3 1 LI•5 the CITY's ordinances, after adjustments as calculated above.for land donations, shall be paid, rather than the Minimum Cash Contribution Amount provided in this Agreement. iii. In the event the CITY's cash contribution ordinance, orany other ordinance of the CITY relating to cash contributions for schools, parks, library and fire protection districts, is repealed or declared by a court of law to be found unenforceable and all appeals have been exhausted, OWNER agrees to pay, subsequent to such final court action, the Minimum Cash Contribution Amounts set forth in this Agreement. In the event such final court order requires the CITY or School Districts to return or refund monies paid by the OWNER pursuant to the CITY's ordinances, OWNER expressly agrees to allow the CITY or School Districts to retain the Minimum Cash Contribution Amounts previously paid by the OWNER. It is the express intent of the OWNER to release the CITY and School Districts from any liability or obligation to refund the Minimum Cash Contribution Amount paid pursuant to this paragraph under any circumstances. c. -Release. OWNER hereby releases the CITY, School Districts 15 and 156, Library District, and Fire Protection District from any and all liability or damage to OWNER and waives the right to challenge, by lawsuit or otherwise, the validity, legality or enforceability of the donations and fees set forth in this Agreement, or the purpose for which the money is spent. OWNER agrees not to pay any fees under protest. d. Donations Distin uished from Fees. Other than the donations specified in the foregoing paragraphs, during the term of this Agreement, and irrespective of any existing, new or revised donation ordinances of the CITY, OWNER shall not be required to donate any land or money to the CITY, or by action of the CITY, to any other governmental body. Building permit fees, water and sewer connection and capital development fees, and other similar fees which are charged for specific services provided by the CITY, shall be payable in accordance with the CiTY ordinances in existence and as amended from time to time, except as specifically provided in this Agreement. 17. Distribution. That portion of these fees to be distributed to the schools, as determined exclusively by the CITY, may be distributed for the benefit of some or all schools within School Districts 15 and 156, at the discretion of the City Council. To the extent any of these -funds are distributed to said School Districts, they may be used for operating expenses at those schools within School Districts 15 and 156, as directed by the City Council, at the time of distribution. In the event a distribution agreement in a form approved by the CITY is not executed by the School Districts prior to distribution of said funds to the School Districts, the CITY may retain the entire amount paid pursuant to this paragraph for CiTY use. Nothing herein is Intended to create third party beneficiary rights in School Districts 15 and 156 or the Library District. 18. Annual Adjustment. At the end of each one-year period, with the first adjustment occurring May 1, 2004, the fees referenced in the preceding paragraphs a) ii, a) iii, and b) i, shall be adjusted upward by the percent that the Chicago Area Consumer Price Index has moved upwards since December 31, 2002, and every December 31"thereafter. For the purpose of this paragraph, the price index to be used for comparative purposes shall be that index E 05_27._8146 for the annual average Chicago area CPI-U, as published by the United States Department of Labor, Bureau of Labor Statistics. 19. Binding Effect and Term. This Agreement shall be binding upon and inure to the benefit of the parties hereto, successor owners of record and their heirs, assigns, and lessees, and upon successor municipal authorities of the CITY and successor municipalities for a period of ten (10) years from the date of execution hereof, and any extended time agreed to by amendment to this Agreement. 20. Amendment. This Agreement may only be amended bywritten instrument executed byall parties hereto. Provided, however, in the event title to the SUBJECT PROPERTY, in whole or part, is transferred to successors in interest, future amendments relating to the SUBJECT PROPERTY may be made by and between the CITY and the title holders to the parcel specifically requesting the amendment without consent required by other record owners of the SUBJECT PROPERTY. 21. Notice and Default. Before any failure of any party to this Agreement to perform its obligations under this Agreement shall be deemed to be a breach of this Agreement, the party alleging the breach shall provide notice to the party alleged to be in default specifying the nature of said default, and thirty (30) days elapses from the receipt of said default notice without the default being cured. Notice shall be in writing and delivered via certified mail, addressed as' follows: CITY City Administrator Douglas K. Maxeiner 333 S. Green Street McHenry, IL 60050 OWNER Raymond R. and Linda S. Walls 2414 W. Lincoln Rd. McHenry, IL 60051 22. Stop Orders. The CITY will issue no stop orders directing work stoppage on buildings or parts of the development without setting forth the section of CITY ordinances or of this Agreement allegedly violated by OWNER, and OWNER mayforthwith proceed to correct such violations as may exist; provided, however, that the CITY shall give notice in advance to the OWNER of its intention to issue stop orders at least twenty-four (24) hours In advance of the actual issuance of such stop orders, except in the event a health, life or safety emergency is deemed to exist by the CITY. 23. Ordinance Changes. Except as otherwise specified herein, all ordinances of the CITY and other applicable jurisdictions shall apply to the SUBJECT PROPERTY, OWNER and all successors and assigns in title. If during the term of this Agreement, the provisions of the existing ordinances and regulations which may relate to the development, subdivision, construction of improvements, buildings, appurtenances and all other development of the SUBJECT PROPERTY, are amended or modified in any manner so as to impose more restrictive requirements, such more restrictive requirements shall be enforceable as applied to the SUBJECT PROPERTY, so long as such amendments or modifications are non-discriminatory in their application and effect throughout the CITY or other applicable jurisdictions. 05-27--81147 24. Obligations. All obligations of the OWNER in this Agreement, including monetary obligations in existence now and in the future, as a result of this Agreement, shall constitute covenants running with the land and such monetary obligations shall also be liens upon the land. OWNER hereby consents to the filing of a lien on the SUBJECT PROPERTY or parts thereof forwhich obligations are owed when any obligations are more than ninety (90) days overdue. 25. Enforceability. It is agreed that the parties to this Agreement may enforce and compel performance, whether by law or in equity, by suit, mandamus, injunction, declaratory judgment, or other court procedure, only in courts of the State of Illinois; no such action may be brought in any Federal court. In the event that either party to the Agreement files suit to compel performance by.the other, the prevailing party shall be entitled to recover, as part of the costs otherwise allowed, its reasonable attorney's fees incurred therein. 26. Waiver. The failure of the CITY to insist, in any one or more instances, upon performance of any terms or conditions of this Agreement, shall not be construed as a waiver of future strict performance of any such. term, covenant or condition and the obligations of the OWNER shall continue in full force and effect. 27. Severability. If any provision of this Agreement, other than the provisions relating to the requested zoning changes and Preliminary Plat described herein and the ordinances adopted in connection therewith, is held invalid by any court of competent jurisdiction, such provision shall be deemed to be excised hear from and the invalidity thereof shall not affect any of the other provisions contained herein. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date indicated above. CITY OF M NENRY By: e r _ Mayor Susan Low Attest: ity Clerk Janice . Jones ZO R G�.cG Ra an11�14 d R. ails Linda S. Walls NgISSSVt'AOJ AW / rfr o y �r'-fC' . � �o��rs�ia srossu vts �1/ , g ?�Vhtgll fi7. 1 i114 50) 05-2 I--8 i 40 4 . , , EXHIBIT "A" Legal Description of the SUBJECT PROPERTY THE WEST 804.0 FEET OF THE SOUTH HALF OF THE NORTHEAST QUARTER OF SECTION 25, TOWNSHIP 45 NORTH, RANGE 8, EAST OF THE THIRD PRINCIPAL MERIDIAN, EXCEPT THE SOUTH 660.0 FEET OF THE WEST 330.0 FEET THEREOF, AND EXCEPT THAT PART CONVEYED TO THE TOWNSHIP OF McHENRY, BY DEED RECORDED SEPTEMBER 23, 1963 AS DOCUMENT NO.420086, IN McHENRY COUNTY, ILLINOIS, PIN NO.09-25-200-018. 05-27-8149 EXHIBIT PHYLLIS K. WALTERS MGHENRY COUNTY RECORDER WOODSTOCK, ILLINOIS EXHIBIT TO DOC. NO. 05-,C0QVO 93 NO: OF PAGES NOTES. 6X1-1/8 / 7' exhibit 11 /03/1999 05--2 -8I50 EXHIBIT .". PHYLLIS K. WALTERS McHENRY COUNTY RECORDER WOODSTOCK, ILLINOIS EXHIBIT TO DOC. NO: NO: OF PAGES NOTES: _ , -X}/3/T L f-91A)& it-tII S exhibit 11 /03/1999 05--2 7._815 I