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HomeMy WebLinkAboutOrdinances - O-93-639 - 11/03/1993 - AUTHORIZE ANNEX AGMT HILLSIDE DEVELOPMENTORDINANCE NO. 0- 9 3- 6 39 An Ordinance Authorizing Execution of an Annexation Agreement for Hillside Development BE IT ORDAINED by the City Council of the CITY OF McHENRY, McHenry County, Illinois, as follows: SECTION 1: That the Mayor be, and is hereby authorized and directed to execute, and the Clerk is authorized and directed to attest, duplicate original copies of an Annexation Agreement by and between the City of McHenry and McHenry State Bank, not individual- ly but as Trustee under Trust Agreement dated August 25, 1992, and known as Trust No. 12725, Gerstad Builders, Inc., and Donald Gerstad, a copy of which is attached hereto and made a part hereof. SECTION 2: If any section, paragraph, subdivision, clause, sentence or provision of this Ordinance shall be adjudged by any Court of competent jurisdiction to be invalid, such judgment shall not affect, impair, invalidate or nullify the remainder thereof, which remainder shall remain and continue in full force and effect. SECTION 3: All ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of such conflict. SECTION 4: This Ordinance shall be in full force and effect upon its passage, approval and publication in pamphlet form (which publication is hereby authorized) as provided by law. Voting Aye: Baird, Lawson, Bates, Locke, Bolger, Cuda Voting Nay: None Absent: None Abstain: None APPROVED: Mfiyck'Ste n J. Cuda (SEAL) ATTEST. City Clerk Barbara �.G 1pin Passed: November 3. 1993 Approved: November 3, 1993 Published: November 4. 1993 94-17- H 115 HILLSIDE DEVELOPMENT ANNEXATION AGREEMENT THIS AGREEMENT made and entered into this 3rd day of November, 1993, by and between the CITY OF McHENRY, "City," a Municipal Corporation, in the County of McHenry, State of Illinois, and McHENRY STATE BANK, not individually but as Trustee under Trust Agreement dated August 25, 1992, and known as Trust No. 12725 ("Trust"), GERSTAD BUILDERS, INC. ("Developer"), McHENRY STATE BANK, not individually but as Trustee under a Trust Agreement known as Trust No. 5268 ("Beneficiary") and Donald Gerstad, individually. Hereinafter, the Trust, Developer, Beneficiary and Donald Gerstad, individually, shall collectively be referred to as "Owners." Recitals A. The Trust holds fee simple title to the three parcels of real estate legally described on "Exhibit All attached hereto and made a part of this Agreement by reference, containing approximately 60.52 acres, hereinafter referred to as the "Property." Beneficiary is the holder of 100% of the beneficial interest in the trust and Developer intends to develop a portion of the Property with single family residences. Donald Gerstad, individually guarantees all of the owners' obligations contained in this agreement. B. Owners filed with the City Clerk a Petition for Annexation of the Property to the City, conditioned 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 Property is located on the east and west side of Green Street, approximately 1,000 feet south of Bull Valley Road in the unincorporated portion of McHenry County adjoining and contiguous to the City. D. The Property is presently vacant, unimproved and has no electors residing thereon. Annexation Agreement, Page 1 94-17-1116 E. The Property is presently zoned "A-1" Agricultural under the McHenry County Zoning Ordinance. F. Owners have filed with the City Clerk a Plat of Annexation of the Property, which Plat is attached hereto as "Exhibit B." G. The Property constitutes territory which is contiguous to and may be annexed to the City as provided in 65 ILCS 5/7-1-1, et seq. H. The Owners desire to have the Property annexed to the City upon the terms and conditions provided herein and the City, after due and careful consideration, has concluded that the annexation of the Property to the City under the terms and conditions hereinafter set forth will further the growth of the City, enable the City to control the development of the area and serve the best interests of the City. I. Pursuant to 65 ILCS 5/11-15.1-1, et seq., a proposed annexation agreement was submitted to the City, and a public hearing was held thereon. J. The City does not furnish fire protection or library services. Green Street, servicing the property to the east of Parcel No. 1, is currently under Nunda Township jurisdiction and notice, pursuant to 65 ILCS 7-1-1, has been provided. K. Prior to the date of this Agreement, public hearings were held upon proper notice as are necessary for the City to grant "RS- 2" Medium -Density Single Family Residential District, pursuant to the City's Zoning Ordinance for Parcel No. 1 of the Property, and no further action need be taken by the Owners to cause Parcel No. 1 to be rezoned as such once the Property is annexed to the City. NOW, THEREFORE, in consideration of the covenants and conditions herein contained, IT IS HEREBY AGREED AS FOLLOWS: TITLE I OBLIGATIONS OF THE CITY I. ANNEXATION. The City shall enact the proper ordinance annexing the Property and attach Exhibit B to said ordinance. The ordinance Annexation Agreement, Page 2 94-17-1117 shall be effective immediately upon its passage. A copy of said ordinance shall be filed in the Office of the County Clerk of McHenry County and recorded in the McHenry County Recorder of Deed's Office. This Agreement in its entirety, together with the aforesaid Petition for Annexation, shall be null, void and of no force and effect unless the Property is zoned and classified as provided in this Agreement by the adoption of ordinances by the City contemporaneously with the execution of this Agreement. II. ZONING. Contemporaneously with the annexation of the Property, the City shall adopt an ordinance amending the provisions of the McHenry Zoning Ordinance and the City Comprehensive Plan to provide that Parcel No. 1 of the Property shall be classified in the RS-2 Medium -Density Single Family Residential District, Parcel No. 2 of the Property shall be classified in the Estate District and Parcel No. 3 of the Property shall become a public right-of-way dedicated to the City of McHenry. III. PRELIMINARY PLAT OF SUBDIVISION. The Preliminary Plat of Subdivision of Parcel No. 1 of the Property, prepared by Everett Schefflow Engineers, dated and last revised on 10-f'A3 showing 125 residential lots on Parcel No. 1 of the Property, shall be approved by motion of the City Council. Provided, however, prior to council approval, Owners shall have complied with all obligations set forth in Paragraph IX., below. Said Preliminary Plat is attached hereto and made a part hereof as "Exhibit C." Development of Parcel No. 1 shall be limited to 125 single family residential lots. The City's final plat approval shall be subject to the Owner providing to the City, assurances deemed adequate by the City, that, with regard to the natural pipeline easement as depicted on Exhibit C, upon disturbance of any public streets, lands or other public improvements, restoration will be made at no cost to the City and in compliance with all applicable codes. IV. SEWER AND WATER. Annexation Agreement, Page 3 94-17-1118 The City makes no representation or warranty that there will be any municipal sanitary sewer treatment plant or sanitary sewer main capacity or municipal water available at any time during the term of this Agreement. No action of the City regarding applications to the Illinois or U.S. Environmental Protection Agency for permission to construct sanitary sewer lines on any part of the Property shall be construed to constitute any representation, warranty or reservation by the City to Owners that municipal sanitary sewer treatment plant or sanitary sewer main capacity or water will be available to service the Property when Owners apply to the City for individual sewer or water service connection permits. V. DEVELOPMENT IN PHASES. The City shall permit the Owners to subdivide Parcel No. 1 of the Property in 2 phases of one final plat. To secure Owners' completion of the subdivision public improvements, including sidewalks, public streets, sanitary sewer mains, water mains, offsite and onsite storm drainage improvements and Green Street road improvements (referred to in Paragraph IX., below), the Owners shall, prior to the final plat approval, file with the City a separate Letter of Credit for each phase. Phase I Public Improvements shall include all public improvements therein, as well as (1) offsite storm drainage improvements (located on Parcel No. 2); (2) Green Street lane improvements; (3) improvements to Public Lands on Parcel No. 1 of the Property (.849 acres), referred to in Paragraph IX. below; and (4) installation of sidewalks along the west side of Green Street. The completion date for public improvements relating to each phase shall not be more than two years from final plat approval for Phase I and four years from final plat approval for Phase II. Owners shall be allowed no more than one reduction on each Letter of Credit relating to work done by the Owners which is inspected, approved and accepted by the City. The amount, form and institution upon which the Letters of Credit are drawn upon shall be subject to the prior approval of the City. The expiration dates of the Letters of Credit shall be no Annexation Agreement, Page 4 94-17-1 1 19 sooner than 90 days after the time by which the improvements are to be completed. VI. SCHEDULE OF DEVELOPMENT. Developer shall submit to the City a schedule of development encompassing the Property on a semi-annual basis so the City can adequately plan for and provide municipal services to the Property. The first schedule shall be submitted by June 1, 1994, and shall include work to be completed in calendar years 1994 and 1995. It is acknowledged that said schedules are anticipatory in nature and will change from time to time as circumstances change and shall represent Developer's best reasonable estimate at the time of its intended schedule of development. Developer understands that timely schedules are in the best interest of all parties to this Agreement. VII. MODEL CONSTRUCTION AND SALES OFFICE. The City shall permit Owners to construct and maintain models of single family homes in the subdivision depicted on Exhibit C subject to strict compliance by Owners with their obligations in Paragraph IX., below. Construction or sales trailers may be permitted on the site, as approved by the City. VIII. BUILDING PERMITS. After final plat approval, the city will issue building permits for such lots as Developer requests even if public improvements are not then completed. However, the Developer acknowledges and agrees that no occupancy permits will issue until the said public subdivision improvements called for hereunder have been completed and accepted by the City, except as provided for in the Subdivision Control Ordinance and except for the final lift on streets, sidewalks and landscaping of the parkways. TITLE II OBLIGATIONS OF THE OWNERS IX. DONATIONS. CONTRIBUTIONS AND FEES. Owners acknowledge that the development of the Property will impact on schools, parks, library, fire protection district and other public services within the City. To reduce this impact, and Annexation Agreement, Page 5 94-17-1120 as a condition of this Agreement, Owners shall jointly and severally 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. Owners shall pay to the City annexation fees as follows: 1. The lump sum of $60, 520 shall be paid within 60 days following execution of this Agreement. 2. The sum of $500 per residential unit shall be paid to the City upon issuance of each building permit relating to the 125 residential lots to be developed on Parcel No. 1. 3. The lump sum of $5,000, relating to traffic improvements, shall be paid to the City within 60 days following execution of this Agreement. 4. The lump sum of $25,000, relating to reimbursement for previous water main improvements, shall be paid to the City within 60 days following execution of this Agreement. 5. All required capital development fees, sanitary sewer and water line connection charges shall be paid in accordance with ordinances in effect at time of connection. 6. The sum of $1, 240 per residential unit shall be paid to the City upon issuance of each occupancy permit relating to the 125 residential lots to be developed on Parcel No. 1. Provided, however, on or before the end of the 30th month after the City's execution of Owner's final plat of subdivision, the payment obligation in this Paragraph IX.A.6. shall accelerate, if not already paid in full, and Owners shall pay to the City the balance then due and owing in one lump sum. A portion of these funds, 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 shall 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 Annexation Agreement, Page 6 94-17-1121 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 IX.A.6. for City use. Nothing herein is intended to create third party beneficiary rights in School Districts No. 15 and 156. 7. The lump sum of $4, 000 relating to reimbursement for previous sanitary sewer main improvements, shall be paid to the City within 60 days following execution of this Agreement. 8. Owners hereby release the City from any liability or damage to Owners and waive any right to challenge, by lawsuit or otherwise, the legality or validity of the fees chargeable to Owners or purpose for which the money is spent in this Paragraph IX.A. B. Public Lands. 1. Contemporaneously with the recording of the Final Plat of Subdivision, the Owners will convey and dedicate to the City, for unrestricted public uses and purposes, Lot No. 100 of Parcel No. 1 of the Property, consisting of approximately .849 acres as depicted on Exhibit C and Parcel No. 2 of the Property, consisting of approximately 13.167 acres (collectively "Public Lands"). 2. With regard to Parcel No. 2 of the Property, Owners shall, during Phase I of the development, construct, at their own cost, an area for storm water detention, as directed and approved by the City's staff and consulting engineer. The object of this storm water detention shall include, but not be limited to, elimination of potential flooding on Hilltop Drive over the culvert crossing thereunder. This storm water detention area shall be constructed in such a fashion that it will be easily maintainable by the City in the future. Prior to acceptance of the storm water detention improvements constructed on Parcel No. 2, it shall be the responsibility of the Owners to maintain this area in a manner acceptable to the City. 3. Subject to Owner's compliance with Paragraph IX.I.2., below, fee simple title to these Public Lands shall be Annexation Agreement, Page 7 94-17-1122 effectively conveyed to the City within 60 days of execution of this Agreement. Provided, however, the City agrees to provide reconveyances to the extent required to allow Developer to correct, if necessary, the legal description of such conveyance in order to conform to the requirements of final engineering of the phase in which said conveyance is located, and the Owners shall convey the Property back to the City with the corrected legal description. 4. Except as otherwise provided in this Agreement, Owners shall cause title to these Public Lands to be conveyed free and clear of all liens and encumbrances and any easements, covenants or restrictions that would limit or prohibit the use of the Public Lands. Evidence as to the condition of title shall be provided in the form of a title commitment letter acceptable to the City in an amount equal to the fair market value of the parcel at the time of the conveyance. In addition, with regard to lot no. 100 of Parcel No. 1 of the Property, Owners shall, contemporaneous with the transfer of title to the City, provide an acceptable plat of survey relating to said lot. 5. Developer shall clear these Public Lands of all construction debris and complete the grading and seeding of the Public Lands. Any soil removal from the Public Lands shall be under the supervision and approval of the City. A minimum of 4 inches of top soil must exist on the public lands, prior to the City's acceptance of title thereto. 6. With regard to lot no. 100, located on Parcel No. 1 of the Property, Owner shall, within 18 months of final plat acceptance, cause lot no. 100 to be final graded and properly prepared for seeding. In addition, sidewalks shall be constructed along Geneva Place, Amberwood Drive and Trenton Place, installed in accordance with the City's Subdivision Control Ordinance. Owners, at their expense, shall cause a water and sanitary sewer service connection to be installed adjacent to lot no. 100, as directed by the City's director of parks and recreation, for future service line connection to lot no. 100. Annexation Agreement, Page 8 94-17-1123 7. Owners hereby release the City from any and all liability or damage to Owners and waive any right to challenge, by lawsuit or otherwise, the validity or legality of the Public Land dedication in this Paragraph IX.B. / Annexation Agreement, Page 9 94-17-1124 C. Cash Donations. 1. During the term of this Agreement, Developer and beneficiary shall be jointly and severally obligated to pay to the City certain cash donations, per single family dwelling unit developed on the Property. For purposes of this Paragraph IX.C., reference to "Developer" shall include Developer and beneficiary. These cash donations shall be paid at the time application is made to the City for the issuance of each residential building permit and calculated in accordance with this Paragraph IX.C. During the term of this Agreement, the Developer shall be required to pay the cash donations referred to herein. 2. The cash donations payable by the Developer to the City shall be calculated as follows: Total contri- Type of bution Residential Fire Per Dwelling Unit Schools Library Dist. Unit Single Family Dwellings• 2 bedroom/less $1863.00 $212.00 $212.00 $2287.00 3 bedroom 3032.00 212.00 212.00 3456.00 4 bedroom 4198.00 212.00 212.00 4622.00 5 bedroom/more 4314.00 212.00 212.00 4738.00 At the end of each one-year period and beginning on January 1, 1995, the cash donations due, relating to schools, in accordance with the above chart, shall be adjusted upward by the percent which the Chicago Area Consumer Price Index has moved upward since December 31, 1993 and every December 31 thereafter. For purposes of this sub, the price index to be used for comparative purposes, shall be that index published for the annual average Chicago Area CPI-U, as published by the United States Department of Labor, Bureau of Labor Statistics ("Minimum Cash Contribution Amount"). In the event the Minimum Cash Contribution Amount, as calculated above, is less than the cash contribution amounts set forth in the City's cash contribution ordinance for schools, libraries and fire districts, as amended from time to time, an amount equal to the Annexation Agreement, Page 10 94-17-1125 amounts specified in the City's cash contribution ordinance shall be paid, rather than the Minimum Cash Contribution Amount. 3. In the event the City's cash contribution ordinance, or any other ordinance of the City relating to developer cash contributions for schools, libraries and fire districts, is repealed or declared by a court of law to be found unenforceable, and all appeals have been exhausted, Developer agrees to pay, subsequent to such final court action, the Minimum Cash Contribution Amount set forth in Paragraph IX.C.2., above. In the event such a final court order requires the City or School Districts to return or refund monies paid by the developer pursuant to the City's ordinances, Developer expressly agrees that it will allow the City or School Districts to retain the Minimum Cash Contribution Amount previously paid by Developer. It is the express intent of the Developer to release the City and School Districts from any liability or obligation to refund the Minimum Cash Contribution Amount paid pursuant to this Paragraph IX.C. under any circumstances. 4. Owners hereby release the City from any and all liability or damage to Owners and waive any right to challenge, by lawsuit or otherwise, the validity, legality or enforceability of the cash donation provision set forth in this Paragraph IX.C. or purpose for which the money is spent. D. Retained Personnel Fees. Owners shall comply with the Retained Personnel Ordinance in effect from time to time. E. Roads. 1. The parties agree that Green Street, as depicted on Exhibit C shall be considered a "major" street, as defined in the City Subdivision Ordinance. The Final Plat of Subdivision shall contain a note that access to Green Street directly from any lot abutting said road shall be prohibited. 2. As a condition precedent to final plat approval of Parcel No. 1 of the Property, Owners shall submit, and be obligated to install, at their cost, a landscape screening plan depicting Annexation Agreement, Page 11 94-i7-1126 improvements along Green Street. Fencing of any type along Green Street is prohibited. This landscape plan shall be subject to approval by the City's director of public works and shall be made part of the final plat approval. 3. Turn lanes into the Hillside subdivision off of Green Street shall be made part of the final engineering plans, prior to final plat approval, and located and designed subject to approval by the City's consulting engineer. These turn lanes shall be installed by and at the cost of the Owners. Any easements or right of way needed to provide these turn lanes shall be provided to the City by the Owners, upon execution of this Agreement. In addition, Owners shall construct, at their expense, in each respective phase, sidewalks along the west side of Green Street, adjacent to the Property 4. On the Final Plat of Subdivision relating to Parcel No. 1, the only access road off of Green Street shall be Bradford Street, as designated on Exhibit C. 5. Construction traffic generated by development of the Property shall not access the Property using Biscayne Drive, south of the Property. 6. Within 30 days of execution of this Agreement, Owners shall convey title to Parcel No. 3 of the Property to the City for public street purposes. Title to Parcel No. 3 shall be conveyed free and clear of all liens and encumbrances and any easements, covenants or restrictions that would limit or prohibit the use of Parcel No. 3 as a public road. Evidence as to the condition of title shall be provided in the form of a title commitment acceptable to the City at the time of the conveyance. F. Underground Utilities. Owners shall install all electricity, gas, telephone lines and any other utility or cable devices, lines or conduits underground. G. Easements. Upon request by the City, Owners will execute such easements as are necessary to effectuate the terms and conditions Annexation Agreement, Page 12 94-17-1127 of this Agreement and as may be necessary in connection with the completing of the final plat of subdivision of the Property. The form of the easement shall be as approved by the City engineer and/or City attorney. The form of the easement may be that noted on the plat of subdivision or such other format at the City engineer or City attorney deems appropriate. H. Public Improvement Guarantees. In accordance with the City's Subdivision Control Ordinance, as amended from time to time, Owners hereby guarantee, that public improvements constructed on the Property shall be free from defects in the quality of the material and workmanship. To secure this obligation, prior to acceptance by the City of said public improvements, Owners shall file with the City, Letters of Credit in the amount called for by the City's Subdivision Control Ordinance and on a form and drawn upon a lending institution approved by the City. I. Environmental Matters. 1. It is understood that the City has the responsibility for water quality which encompasses erosion and sedimentation control, surface water drainage control and groundwater protection, all of which are regulated pursuant to existing ordinances of the City. Such ordinances shall regulate the development of the Property. Developer shall provide erosion and sedimentation controls in compliance with the Illinois EPA Standards and all applicable City ordinances or regulations. 2. Prior to conveyance of the Public Lands, referred to in Paragraph IX.B., above, Owners shall provide to the City, at Owners' cost, a Phase I Environmental Assessment relating to the Public Lands. The results and conclusions of this assessment must be acceptable to the City's consulting engineer. In the event the results are not acceptable, this Agreement, in its entirety, shall be deemed null and void unless amended, in writing, by the parties. J. Wetland Protection. Owners shall not disturb any areas of the Property designated as wetlands by any governmental agency. Annexation Agreement, Page 13 94-17-1129 K. Model Home Construction and Sales Offices. 1. Upon the annexation of the Property and in advance of any final plat or engineering approval, the Developer shall be permitted, at the Developer's sole risk, to construct, maintain and occupy model units in one or more product lines being offered by the Developer. Provided, however, model construction shall comply with the City's Building Codes. No residential occupancy permit will be issued for such models until said models are ready to be sold and the models will not be served by private well or septic system. The models may contain a sales office, however, only sales of homes in the City shall be conducted in this sales office. Upon the sale of all lots on the final plat, the sales office shall be abandoned by the Owners. 2. All advertising signs will be governed by the City's Sign Ordinance or such variations as may be granted by the Council. On site directional signs identifying the sales office and model shall be allowed with a one-time fee with said signs to be removed on or before termination of sales facilities but in no event later than five (5) years after final plat approval, unless extended by the City Council. Temporary marketing signs shall be permitted without temporary sign permits when the Owners are participating in the Festival of Homes sponsored by the Chicago Tribune. These identification signs are 4 feet by 8 feet and are posted for five (5) consecutive weeks at a time, not more than four (4) times per year. Any subdivision sign shall be located off the City's right of way, maintained by the Owners and removed upon sale of all lots in the subdivision. The location of the main entrance identification sign shall be at the entrance to the project from Green Street and the lighting and design of the sign shall be subject to City approval. This sign shall not exceed the dimensions of 12 feet by 8 feet or 96 square feet. L. Multiple Style of Homes. Owners agree to provide multiple styles of homes with multiple elevations so as to not have any two identical home Annexation Agreement, Page 14 94-17-1129 abutting each other side by side or across the street from one another. TITLE III RECIPROCAL OBLIGATIONS X . COMPLIANCE AND AMENDMENTS. A. More Restrictive Requirements. Except as otherwise specified herein, all City ordinances shall apply to the Property, Developer, Owners and all successors and assigns in title. If, during the terms 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 any kind and character of the Property, are amended or modified in any manner so as to impose more stringent requirements in the development, subdivision or construction referred to therein, such increased requirements shall, unless otherwise excepted herein, be effective as applied to the Property so long as such amendments or modifications are non-discriminatory in their application and effect throughout the City (excepting those developments in the City having annexation agreements -- past, present, or future -- providing otherwise). B. Less Restrictive Requirements. If, during the term of this Agreement, except as otherwise specifically agreed upon in this Agreement, any existing, amended, modified or new ordinances, codes or regulations affecting the zoning, subdivision, development, construction of improvements, buildings or appurtenances, or any other development of any kind or character upon the Property, are amended or modified in a manner to impose less restrictive requirements on development of, or construction upon, properties in similarly zoned or developed parcels within the City, then the benefit of such less restrictive requirements shall inure to the benefit of the Developer and, the Developer may elect to proceed with respect to the development of, or construction upon, the Property with the less restrictive Annexation Agreement, Page 15 94-17-1130 amendment or modification applicable generally to all properties within the City. C. With respect to the Subdivision Control Ordinance, the right of way widths, set forth in Exhibit C, shall remain as presently constituted with respect to the development of the Property. D. With respect to the Amended Zoning Ordinance of the City of McHenry,. the zoning, densities (including lot size) and uses presently allowed under the RS-2 Zoning Classification shall not be changed or reduced with respect to the development of the Property during the term of this Agreement. XI. OBLIGATIONS. All obligations of the Developer and Owners in this Agreement, including monetary obligations in existence now as well as those which may come to exist 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. Developer and Owners hereby consent to the filing of a lien on the Property for which the obligations are owed when any obligations are more than 90 days' overdue. Provided, however, to the extent that any portion of the Property has been conveyed to a purchaser of a residential unit, constructed hereon prior to the filing of the lien, any such lien shall be deemed released with respect to such residential unit. Monetary obligations as used herein shall include professional fees incurred by the City to monitor and/or litigate this Agreement. TITLE IV MISCELLANEOUS XII. PARTIAL INVALIDITY OF AGREEMENT. A. If any provision of this Agreement (except those provisions relating to the requested rezoning of the Property identified herein and the ordinances adopted in connection therewith), or its application to any person, entity or property is held invalid, such provision shall be deemed to be excised here from and the invalidity thereof shall not affect the application or Annexation Agreement, Page 16 94-17-1 131 validity of any other terms, conditions and provisions of this Agreement and, to that end, any terms, conditions and provisions of this Agreement are declared to be severable. B. If, for any reason during the terms of this Agreement, any approval or permission granted hereunder regarding plans or plats of subdivision or zoning are declared invalid, the City agrees to take whatever action is necessary to reconfirm such plans and zoning ordinances effectuating the zoning, variances and plat approvals proposed herein. XIII. BINDING EFFECT AND TERM. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns including, but not limited to, successor owners of record, successor developers, lessees and successor lessees, and upon any successor municipal authority of the City and successor municipalities for a period of 10 years from the later of the date of the execution hereof. XIV. NOTICES AND REMEDIES. A. Upon a breach of this Agreement, any of the parties in any court of competent jurisdiction, by any action or proceeding at law or in equity, may exercise any remedy available at law or equity. The remedies of the City shall include, but not be limited to, the right to stop construction of the development in the event the City deems the terms of this Agreement have been violated. B. 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 claiming such failure shall notify, in writing, by certified mail/return receipt requested, the party alleged to have failed to perform and performance shall be demanded. C. In the event the City chooses to sue in order to enforce the obligations hereunder, Developer shall pay all costs and expenses incurred by the City, including, but not limited to, attorneys' fees and court costs, provided the City substantially prevails. In addition, if the Developer does not pay any fees provided for herein, the City may withhold the issuance of building Annexation Agreement, Page 17 94-17-1 132 permits until payment is received, or if the appropriate security is not deposited withhold approval of plat of subdivision until the appropriate security is delivered. City may use any remedies available to it to collect such fees and charges as are due. D. Notice shall be provided at the following addresses: City: City of McHenry 333 South Green Street McHenry, IL 60050 Copies to: City Attorney David W. McArdle Zukowski, Rogers, Flood & McArdle 50 Virginia Street Crystal Lake, IL 60014 Owner: Gerstad Builders 4318-L Crystal Lake Road McHenry, IL 60050 Copy to: Samuel J. Diamond Diamond LeSueur & Roth Assoc. 3431 W. Elm Street McHenry, IL 60050 XV. 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 Owners shall continue in full force and effect. XVI. AMENDMENT. This Agreement may only be amended by written instrument executed by all parties hereto. XVII. VENUE. In the event any legal action arising out of this Agreement is instituted by the parties hereto, the venue for such action shall be restricted to the Circuit Court of the 19th Judicial Circuit, Annexation Agreement, Page 18 94-17-1133 McHenry County and no action shall be brought by the parties hereto, their successors or assigns in any Federal Court. IN WITNESS WHEREOF, the parties have executed this Annexation Agreement the day and year first above written. OWNER: CITY: McHENRY STATE BANK, not individually, but as Trustee under Trust Agreement dated August 25, 1992, and known as Trust No. 12725 BY •I'l-w, , 0 —/0 z_— ITS: Trus Officer ATTEST: - Trust Officer BENEFICIARY: McHEITRY STATEAANK, not individually, but as Trustee under Trust Agreement known as Trust No. 5268 DEVELOPER: GERST BUILDERS /L/� BY: ITS: ATTEST: THE CITY OF MCHENRY City Mayor ATTE At City Clerk Donald Gerstad, individually Annexation Agreement, Page 19 94-I1-1134 STATE OF ILLINOIS SS. COUNTY OF MCHENRY I the undersigned, a Notary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that STEVEN J. CUDA AND BARBARA E. GILPIN personally known to me to be MAYOR AND CITY CLERK, respectively, of the CITY OF MCHENRY, and personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and severally acknowledged that they signed and delivered said instrument as such MAYOR and CITY CLERK of said City and caused the City Seal of said City to be affixed thereto pursuant to the authority given by the Mayor and City Council of said City as their free and voluntary act, and as the free and voluntary act and deed of said City, for the uses and purposed therein set forth. Given under my hand and notarial seal this 3;?D day of 11))Ime kf , 19_ . F FFICIAL SEAL"JOAN MARTH6�1tart' Pubic ry Public, State of Illinois mmision Expires 12/17/94 Annexation Agreement, Page 20 94-17-1135 EXHIBIT LIST Exhibit A - legal description Exhibit B - plat annexation Exhibit C - preliminary plat 94-17-1136 Parcel 1: The Southeast Quarter of the Southwest Quarter and the South 247.45 feet of the Northeast Quarter of the Southwest Quarter of Section 2, Township 44 North, Range 8 East of the Third Principal Meridian, in McHenry County, Illinois (47 acres lying west of Green Street). Parcel 2: The Southwest Quarter of the Southeast Quarter (except that part falling within McHenry Shores Unit No. 5, according to the Plat thereof recorded September 20, 1960 as Document No. 375179; also except the North 165 feet; also except that part falling within Document No. 383576) in Section 2, Township 44 North, Range 8 East of the Third Principal Meridian, in McHenry County, Illinois (13 acres lying east of Green Street). Parcel 3: The West 40 feet of the South 247.45 feet of the Northwest Quarter of the southeast Quarter of Section 2, together with the West 40 feet of the North 165 feet of the Southwest Quarter of the Southeast Quarter of Section 2; and also together with that part of the West 40 feet of the Southwest Quarter of the Southeast Quarter of Section 2, lying North of the North line of Block 37 of McHenry Shores Unit 5 and South of the South line of Parcel 2 hereon described, all in Township 44 North, Range 8 East of the Third Principal Meridian, in McHenry County, Illinois (portion of Green Street between Parcel No. 1 and Parcel No. 2). Exhibit A to Annexation Agreement 94-17-1137