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HomeMy WebLinkAboutOrdinances - O-94-675 - 09/21/1994 - AUTHORIZE ANNEX AGMT BUSCH-KNOX 69 ACRazz© C_ D ORDINANCE NO. 0-94-675 An Ordinance Authorizing Execution of an Annexation Agreement for the Busch -Knox 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 Mary P. Huska and Gerald J. Huska, residents and electors on the property which is the subject of the Agreement; Helen Busch as trustee under the provisions of a trust agreement dated February 9, 1977 and known as Trust No. 100, ("Knox Trust"); McHenry State Bank, not individually but as trustee under a trust agreement dated July 1, 1989 under Trust No. 4705 ("Land Trust"); and the Knox Trust, Howard and Marianne Knox and Robert and Norma Knox ("Land Trust Beneficiaries"), 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 SECTION 3: All ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of such conflict. Busch -Knox Annexation Agreement, Page 1 95-24-1636 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: Alderman Baird, Bolger, Lawson and Locke and Mayor Cuda Voting Nay: Alderman Bates Absent: None Abstain: None APPROVED: ay r Steven J. Cuda (SEAL) ATTEST. City Clerk Pailela J. AAAoff Passed: September 21, 1994 Approved: Sept 21,1994 Published: September 22, 1994 Prepared by: David W. McArdle, City Attorney Zukowski, Rogers, Flood & McArdle 50 Virginia Street Crystal Lake, IL 60014 815/459-2050 Busch -Knox Annexation Agreement, Page 2 95-24-1.637 BUSCH-KNOX DEVELOPMENT ANNEXATION AGREEMENT THIS AGREEMENT made and entered into this o98� day of L 199r, by apd between the CITY OF McHENRY, "City," a Municipal Corporation, in the County of McHenry, State of Illinois; and MARY P. HUSKA and GERALD J. HUSKA, residents and electors on the property which is the subject of this Agreement; HELEN BUSCH, as trustee, under the provisions of a Trust Agreement dated February 9, 1977 and known as Trust No. 100, ("Knox Trust"); McHENRY STATE BANK, not individually but as Trustee under Trust Agreement dated July 1, 1989, under Trust No. 4705 ("Land Trust"); and the Knox Trust, HOWARD and MARY ANN KNOX and ROBERT and NORMA KNOX ("Land Trust Beneficiaries"). Hereinafter", the Knox Trust, the Land Trust and the Land Trust Beneficiaries shall collectively be referred to as "Owners." Recitals A. Mary P. Huska and Gerald J. Huska are individual residents and electors residing on the property which is the subject of this Agreement. 1% B. The Knox Trust holds fee simple title to the parcel of real estate legally described on "Exhibit All attached hereto and made a part of this Agreement by reference, containing approximately 52.5 acres. The Land Trust holds fee simple title to the parcel of real estate legally described on Exhibit A attached hereto and made a part of this Agreement by reference, containing approximately 19.75 acres. Land Trust Beneficiaries are the holders of loot of the beneficial interest in the Land Trust. The Knox Trust property and the Land Trust property shall hereinafter collectively be referred to as "Property." Annexation Agreement, Page 1 95-24-1638 C. 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. D. The Property is located on the east and west side of Green Street, immediately north of Bull Valley Road in the unincorporated portion of McHenry County adjoining and contiguous to the City. E. Portions of the Property are presently vacant or improved with a house and barn and has electors residing thereon, all of whom have signed the petition referred to in Recital B, above. F. The Property is presently zoned A-1 under the McHenry County Zoning Ordinance. G. Owners have filed with the City Clerk a Plat of Annexation of the Property, which Plat is attached hereto as !'Exhibit B." H. Owners have filed with the City Clerk a master plan of the Property which plan is attached hereto as "Exhibit C." I. 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. J. 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. K. 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. L. The City does not furnish fire protection or library services. Green Street, servicing the Property, is currently under Nunda Township jurisdiction and notice, pursuant to 65 ILCS 7-1-1 has been provided. Annexation Agreement, Page 2 95-24-1639 M. Prior to the date _of this Agreement, public hearings were held upon proper notice as are necessary for the City to grant the zoning reclassification of the Property referred to on Exhibit C, pursuant to the City's Zoning Ordinance, and no further action need be taken by the Owners to cause the Property 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 a. OBLIGATIONS OF THE CITY I. ANNEXATION. The City shall enact the proper ordinance annexing the Property to the City. Exhibit B shall be appended to and made a part of said ordinance. The ordinance 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 AND DENSITY. A. Contemporaneously with the annexation of the Property, the City shall adopt an ordinance amending the provisions of the McHenry Zoning Ordinance and map to provide that the Property shall be classified, in substantial conformity with' Exhibit C, as follows: PARCEL NUMBER (Circled on Exhibit C) ZONING CLASSIFICATION SF1 RS-2 Medium -Density Single -Family Residential District SF2 RS-2 Medium -Density Single -Family Residential District Annexation Agreement, Page 3 95-24-1640 SF3 - RS-2 Medium -Density Single -Family Residential District MF1 RM-1 Low -Density, Multi -Family Residential District C1 C-3 Community Commercial District O1 0-1 Local Office District 02 0-2 Office Park District OS1 E-Estate I OS2 E-Estate { Open Space - No OS3 E-Estate I Structures to be Built OS4 E-Estate e Overall development of the Property and the density of development of each parcel number referred to in this Section II shall not exceed the maximum dwelling units per acre reflected on Exhibit C and shall otherwise be developed in substantial conformity with Exhibit C and meet all requirements of the applicable zoning district. The Mayor and City Council may, at their option, allow minor variations, as determined exclusively by the Mayor and City Council, from the site plan. Any variations, including, but not limited to, those relating to zoning density, access to Green Street, Bull Valley Road or location of publicly dedicated property shall not be considered minor variations and may only be accomplished by amendment to this Agreement. B. Prior to development of the Property, preliminary and final subdivision plat approvals of the Property will be required. Final subdivision plat approval shall include architectural and landscaping submittals 'subject to review by the Mayor and City Council. C. During the term of this Agreement the only conditional uses allowed in the C-3 district as depicted on Exhibit C shall be those uses listed on Exhibit D attached hereto. III. SEWER AND WATER. The City makes no representation or warranty that there will be any municipal sanitary sewer treatment plant or sanitary sewer Annexation Agreement, Page 4 95-24-1641 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..,. With regard to the existing sanitary sewer main lying along the existing Bull Valley Road, upon request, the City shall execute all necessary documents providing easement rights over that portion of the City's property necessary to provide sanitary sewer connection to the Property. In the event approval from McHenry County is required, the City shall fully cooperate in obtaining execution of the necessary documents, subject to the City being reimbursed for all retained personnel involved. IV. SCHEDULE OF DEVELOPMENT. A. Owners 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 January, 1995, and shall include work to be completed in calendar years 1995 and 1996. It is acknowledged that said schedules are anticipatory in nature and will change from time to time as circumstances change and shall represent Owners' best reasonable estimate at the time of its intended schedule of development. Owners understand that timely schedules are in the best interest of all parties to this Agreement. B. Prior to the City approving the first preliminary plat submitted by Owners relating to a particular, Storm Water Plan Area designated on Exhibit C, the Owners shall provide a storm water management plan relating to the affected Storm Water Plan Area Annexation Agreement, Page 5 z" 95-24-1642 which plan shall be subject -to approval by the City as part of the preliminary subdivision platting approval process. C. The City shall permit Owners to file no more than two preliminary plats of subdivision per zoning district referred to in Title I, Section II.A, above, except with regard to zoning district C-3 which must be approved in one preliminary subdivision plat. Each preliminary subdivision plat may be developed in subsequent phases following final subdivision plat approval. No development shall be permitted by metes and bounds. Nothing in this paragraph shall be construed,&o require owners to submit a final plat of subdivision for the Property as a whole. V. BUILDING PERMITS. A. Subject to the provision contained in paragraph B of this Section V, below, after final plat approval, the city will issue building permits for such lots as Owners request even if public improvements are not then completed. The City shall not issue occupancy permits until all public improvements required by this Agreement and a final subdivision plat has been completed and accepted by the City. This restriction on occupancy permits shall not apply to those public improvements relating to the final lift on streets, installation of sidewalks, and landscaping of the parkways. No building permits shall be issued on unplatted lots. B. The City shall not issue any building permits on the Property until McHenry County awards the construction contract to build the new Bull Valley Road designated "Proposed Road Corridor R.O.W." on Exhibit C. Provided, however, this restriction shall not apply to parcel number SF-1 on Exhibit C. In addition, this restriction shall not prohibit Owners from receiving up to 50% of the allowable building permits on parcel number 02 on Exhibit C. VI. MODEL UNITS. A. The City agrees to allow the Owners to construct up to four (4) multi -family model units, four (4) office model units and two (2) single-family model units on the appropriately zoned parcels. Owners may construct one (1) temporary sales office at each model location which shall be removed at the earlier of when Annexation Agreement, Page 6 95-24-1643 the model units are available for occupancy or at the expiration of the temporary use permit. B. Owners may open, for display purposes, the model units prior to connection to the City's sanitary sewer and water mains. Provided, however, prior to opening said model units for display purposes, the Owners shall obtain approval from the City Engineer for temporary water and sanitary sewer services or alternate means of satisfying suitable temporary utilities for the model homes constructed. The model homes constructed shall otherwise comply with the applicable -City Building Codes. No occupancy permit will be issued for such models until said models are connected to the City's sanitary sewer and water mains. The models may contain a e sales office, however, only property sales in the City shall be conducted in any sales office. TITLE II OBLIGATIONS OF THE OWNERS VII. DONATIONS, CONTRIBUTIONS AND FEES. Owners acknowledge that the development of the Property will impact on schools, parks, libraries, fire protection district and other public services within the City. To pay for this impact, and as a condition of this Agreement, Owners and their successors and assigns 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 following fees: 1. Due to the critical need the City has with regard to the acquisition of certain portions of the Property for purposes of constructing the proposed Bull Valley Road corridor, Owners shall not be obligated to pay the usual annexation fees to the City. 2. The lump sum of $10, 000, shall be paid. This sum represents payment for traffic signal improvements. This sum shall be split, on a pro rats basis (per acre or fraction thereof) for all non -residentially zoned property. This payment relating to Annexation Agreement, Page 7 95-24-1644 traffic improvements shall -be paid within 60 days of each final subdivision plat approval by the City. 3. The City warrants and represents that, at this time, no recapture fees are due and payable to any person or entity as a result of the annexation of the Property to the City or as a result of connection to any utility improvements serving the Property. 4. 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. 5. The .•lump sum of $1,500 per each individual residential dwelling unit in the RS-2 zoning districts, for which a building permit is issued, and $659 per each condominium unit e constructed in the RM-1 zoning district, shall be paid to the City in proportion to and upon approval by the City of the final subdivision plat of each phase of the development. 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. Nothing herein is intended to create third party beneficiary rights in School Districts No. 15 and 156. In the event that these fees of $1,500 and $659, respectively, are increased or reduced, as a general policy adopted by the City in future residential anndxation agreements entered into by the City, this sum shall be increased or reduced, in a similar manner, for building permits not already issued. 6. The lump sum of $50 per each individual residential dwelling unit in the RS-2 zoning districts, for which a building permit is issued, and $22 per each condominium unit constructed in the RM-1 zoning district, shall be paid to the City in proportion to and upon approval by the City of the final subdivision plat of each phase of the development. A portion of these funds, as Annexation Agreement, Page 8 95-24-1645 determined exclusively by the City, may be distributed for the benefit of some or all libraries within the McHenry Public Library District, at the discretion of the City Council. To the extent any of these funds are distributed to said library district, they shall be used for operating expenses at any library, within the Library District, as directed by the City Council, at the time of distribu- tion. Nothing herein is intended to create third party beneficiary rights in the Library District. In the event that these fees of $50 and $22, respectively, are increased or reduced, as a general policy adopted by the City in future residential annexation agreements entered Luto by the City, this sum shall be increased or reduced, in a similar manner, for building permits not already issued. a 7. Owners hereby waive any challenge, by lawsuit or otherwise, to the validity or propriety of the requirement of the fees chargeable to Owners in this Paragraph VII.A. B. Public Lands. Within 90 days following execution of this Agreement, the Owners shall convey and dedicate to the City, for unrestricted public uses and purposes, that portion of the Property depicted and designated on Exhibit C. as "proposed 19.3 acre dedication to the City of McHenry for open space" consisting of parcel numbers OS-1 and OS-3 and the area cross hatched and designated "wetland mitigation area"; and, This parcel being dedicated to the City shall partially serve as consideration of Owners, obligation to donate park land to the City, the balance of said obligation being paid in cash, and shall collectively be referred to herein as "Public Lands." Within 90 days following execution of this Agreement, the Owners shall convey and dedicate to the County of McHenry, Illinois, for unrestricted public uses and purposes, that portion of the Property depicted and designated,on Exhibit C as "proposed 11.0 acre dedication to the County of McHenry for the Bull Valley R.O.W. corridor" subject to covenants and conditions of this Agreement relating thereto. Fee simple title to these Public Lands shall be effectively conveyed to the City within 90 days of execution of Annexation Agreement, Page 9 95-24-1646 this Agreement. Provided,- however, the City agrees to provide reconveyances to the extent required to allow Owners 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. 2. Owners shall cause title to the 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 insurance policy acceptable to the City in an amount equal to the fair market value of the parcel at the time of the conveyance. Owners shall also provide a current boundary survey of the Property. 3. The area designated "open space" and marked with one asterisk (*) on Exhibit C lying west of Green Street may only be used for storm water management facilities for the adjacent 0-1 and C-3 parcels lying west of Green Street. That part of the 0-2 zoned parcel of -the Property lying east of Green Street, designated with two asterisk marks (**) on Exhibit C, being approximately 0.6 acres in size, shall not be improved with any structures other than required parking lot improvements, drainage or landscaping. No structures shall be built thereon. 4. Owners hereby waive any challenge, by lawsuit or otherwise, to the validity or propriety of the requirement of Public Land dedication. C. Cash Donations. 1. During the term of this Agreement, Owners 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 VII.C., reference to "Owners" shall include the Knox Trust, the Land Trust, the Land Trust Beneficiaries and their successors and assigns. 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 Annexation Agreement, Page 10 95-2LF- 1 647 in accordance with this Paragraph VII.C. During the term of this Agreement, the Owners shall be required to pay the cash donations referred to herein. 2. The cash donations payable by the Owners to the City shall be calculated as follows ("Minimum Cash Contribution Amount"): Total Contri- Type of bution Residential Fire Per Dwelling Unit Parks Schools Library Dist. Unit Single Family Dwellings: 2 bedroom/less $212.00 $1863.00 $212.00 $212.00 $2287.00 3 bedroom 212.00 3032.00 212.00 212.00 3456.00 4 bedroom 212.00 4198.00 212.00 212.00 4622.00 5 bedroom/more 212.00 4314.00 212.00 212.00 4738.00 Condominiums: 1 bedroom $212.00 $-0- $212.00 $212.00 $ 934.00 2 bedroom 212.00 1638.00 212.00 212.00 2837.00 3 bedroom 212.00 1855.00 212.00 212.00 3172.00 4 bedroom 212.00 4464.00 212.00 212.00 5897.00 At the end of each one-year period and beginning on January 1, 1995, the above 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 subparagraph, 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. 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 amounts specified in the City's cash contribution ordinance shall be paid, rather than the Minimum Cash Contribution Amount. Annexation Agreement, Page 11 95-24-1648 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, Owners agree to pay, subsequent to such final court action, the Minimum Cash Contribution Amount set forth in Paragraph VII.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 owners pursuant to the City's ordinances, Owners expressly agree that they will allow the City or School Districts to retain the Minimum Cash Contribution Amount previously paid by Owners. It is the express intent of the Owners to release the City and School Districts from any liability or obligation to refund the Minimum Cash Contribution Amount paid pursuant to this Paragraph VII.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 VII.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 Final Plat of Subdivision, for each relevant phase of development, shall contain a note that -access to Green Street, the proposed Bull Valley road corridor R.O.W. or Valley Road, directly from any lot abutting said road shall be prohibited. Provided, however, access points as depicted on Exhibit C are hereby approved. 2. in the event development of the Property commences prior to the completion of roadway improvements on the proposed road corridor R.O.W., depicted on Exhibit C, the City agrees to fully cooperate to permit temporary access over said corridor, at Annexation Agreement, Page 12 95-24-1649 the location depicted on Exhibit C and designated "temporary access to Bull Valley Road," to provide traffic flow from the Property to the existing Bull Valley Road. All maintenance responsibilities of the temporary access to Bull Valley Road shall remain with Owners. Following completion of the proposed Bull Valley Road improvement on the proposed road corridor R.O.W.,-the Owners shall cause the temporary access road to be closed and vacated. 3. a. As part of the City's final subdivision plat approval process, all stormwater retention or detention facilities servicing the Property shall be maintained by the Owners, their -K successors or assigns, in accordance with covenants recorded against the Property. These covenants shall be subject to the Mayor and City Council approval prior to recording. b. Owners may construct, at their own cost, a storm water detention facility on the open space designated on Exhibit C and located west of Green Street. The size and design of this facility shall be subject to approval of the city's consulting engineer. The Owners or their successors or assigns of parcel numbers 01 and 02 shall have continuing maintenance responsibilities of said storm water detention facility in accordance with applicable City codes and ordinances. 4. Wetlands lying within the boundaries of the Property have not been identified, but are known to exist. Any wetland mitigation shall be solely at the Owners' cost and may be accomplished on the Property designated "open space" on Exhibit C lying east of Green Street. Any such use of the city's open space for wetland mitigation shall be constructed in compliance with all local state and federal regulations. Prior to any work on wetland mitigation on this open space area depicted on Exhibit C, Owners shall file with the City a Letter of Credit to secure proper completion of such work. The amount, form and institution drawn upon shall be approved by the Mayor and City Council. F. Reimbursement Provision. Upon development of any portion of the Property, the City reserves the right to request Owners to construct additional, expanded or oversized municipal public Annexation Agreement, Page 13 95-24-1650 improvements onsite which benefit not only the Property, but also other properties being or to be developed in the relevant service areas for such improvements. In the event such improvements are made by Owners, the following provisions shall apply and be included in a subsequent reimbursement agreement: 1. The properties which may reasonably be expected to benefit directly or indirectly from the construction and installation of such additional onsite expanded or oversized sanitary sewer main improvements ("Benefited Property") will be determined by the City's Consulting Engineer. 2. Owners shall be allowed reimbursement for expanded or oversized sanitary sewer main improvements as follows: a. 100% for improvements made offsite of the Property; and b. Proportionately on a per acreage basis for improvements made onsite of the Property. 3. The City shall endeavor to collect a pro rata sum of money from the owners of the Benefited Property upon connection. The total sum subject to reimbursement to the Owner, as well as the pro rata sum to be collected from the Benefited Property owners shall be determined by the City's Consulting Engineer taking into account the following factors: construction and easement costs; professional fees; testing and analysis fees; and legal and administrative expenses. In addition, interest shall be collected from the commencement date of this reimbursement provision, calculated annually at one percent (1%) over the last July 1, five- year treasury bill rate. The sum collected shall be paid to Owners after deduction of two percent (2%) for administrative charges due City. In the event that any State statute shall determine an interest rate other than set forth in this paragraph 6.b., the State Requirement shall prevail. 4. Subject to a nonappeaiable final court order, directing City to act otherwise, the City shall not issue any connection permits until the Benefitted Property owner pays the reimbursement charge set forth in this paragraph. Annexation Agreement, Page 14 95-24-1651 5. The City will use its best effort to collect the cost provided herein from the Benefited Property owners but shall not be liable to Owners if the City is, for any reason, unable to collect said cost. The City's liability to reimburse Owners shall be limited to payment from funds actually collected from Benefited Property owners. 6. The City and Owners reserve the right to, at any time during the term of this Annexation Agreement, file the Reimbursement Agreement with the McHenry County Recorder of Deeds and notify the owners of the Benefited Property of the terms of this reimbursement provision. 7. Upon development of the Property, Owners shall furnish to *4the City copies of all permits required for the improvements referred to in this Agreement, including, but not limited to, the Illinois Historical Agency, U.S. Corps of Engineers, McHenry County Highway Department, the McHenry County Soil and Water Conservation District, Illinois Department of Conservation, and the Illinois Department of Transportation, Division of Water Resources. 8. Owners shall reimburse and indemnify City for all costs, engineering and attorney's fees and liability incurred by the City in attempting to collect the reimbursement amount subject to this reimbursement provision. 9. This reimbursement provision shall have a commencement date when the City Engineer issues a letter indicating substantial completion of the public improvements which are the subject of the Reimbursement Agreement and shall terminate upon the earlier of ten years thereafter or upon reimbursement by the benefitted property owners of the charges referred to in this reimbursement provision. G. Public Improvements. 1. Notwithstanding anything to the contrary in the City's Subdivision Control Ordinance, the Owners shall be under no obligation to construct or extend any subdivision roads, sidewalks or sewer or water improvements, until a Final Plat of Subdivision Annexation Agreement, Page 15 95-24-1652 encompassing the subject area in which the roads or improvements are located has been approved by the Mayor and City Council. Upon such plat approval, roads, sidewalks, sewer mains, water mains and other public subdivision improvements shall be constructed according to the terms of the Subdivision Control Ordinance of the City, except that, after a Final Plat of Subdivision is recorded for any of the parcels being the subject of this Agreement, and the required Letter of Credit is delivered to the City, the Owners shall not be required to construct all offsite or onsite subdivision improvements prior to the issuance of building permits for any construction on the Property. Rather, the Owners shall be allowed to construct the required onsite or offsite subdivision improvements serving the Property simultaneously with the construction of any buildings on the Property. All street signs shall be erected prior to issuance of any occupancy permit for each phase of improvement. No occupancy permit for any such building shall be issued until all public improvements have been constructed and approved and accepted by the City. Nothing in this paragraph, however, shall relieve the Owners from providing safe access to and from the site and the individual parcels comprising the Property. 2. The Owners may submit final plats of subdivision relating to the Property without filing their required letters of credit, however, the City shall not be obligated to sign or record said final plats until the required letters of credit are filed. 3. Owners shall construct, at their expense, a sidewalk along the east side of Green Street along the entire frontage of the Property being annexed, including over Public Lands being dedicated to the City. The City hereby consents to permit Owners access over said Public Lands to construct the said sidewalks. This sidewalk must be completed within the construction phase relating to the 0-2 and RS-2 development along Green Street. 4. Owners shall cause title to all public improvements to be conveyed free and clear of all liens and encumbrances. 5. To secure Owners' completion of all required public improvements, including, but not limited to, sidewalks, public Annexation Agreement, Page 16 95-24-1653 streets, sanitary sewer mains, water mains and offsite and onsite storm drainage improvements, owners shall, prior to each final subdivision plat approval, file with the City a separate Letter of Credit for each phase in accordance with the procedures set forth in the City's Subdivision Control Ordinance. The completion date for public improvements relating to each phase shall not be more than two years from each final plat approval. 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 shall be subject to the prior approval of the City. The expiration dates of the Letters of credit shall'be no sooner than 90 days after the time by which the improvements are to be completed. H. signage. 1. With regard to sale of the entire undeveloped Property by the Owners to the ultimate developers, Owners shall be permitted to erect not more than three (two-sided) billboard advertising signs, each not larger than 96 square feet, located at Owners' discretion on the Property. These signs shall be allowed to remain in place, in a good, clean and sightly condition, until the development of the Property has reached a level of 60% occupancy of the total number of proposed units. At the point in time 60% occupancy is reached as provided herein the Owners shall remove such signs. 2. With regard to development of the Property, after final subdivision plats are approved by the City, additional advertising signs may be posted on the Property as follows. One (two-sided) sign advertising the development of each final platted subdivision of the Property shall be allowed. Such sign shall be maintained in a good, clean and sightly condition and may be as large as four feet by eight feet (4' X 81). Said sign advertising the development and the various portions thereof shall be allowed to stand until the development has reached a level of ninety Annexation Agreement, Page 17 95 -24 - 1654 percent (90%) occupancy (based upon issuance of occupancy permits) of the total number of proposed units. I. RM-1 Restriction. The development of parcel number MF1 shown on Exhibit C shall be restricted to condominiums organized pursuant to the Condominium Property Act. (765 ILLS 605/1, et seq.) Prior to any occupancy permits being issued on parcel number MF1, condominium declarations shall be prepared and recorded against that portion of the Property providing that each of the condominium units shall be owner occupied and renting to anyone other than relatives of the owners is prohibited. Prior to recording, these covenants shall be subject to review by the City to ensure compliance with this obligation. '6 J. 02 Setback. 1. 02 Building Setback Restriction Any buildings constructed on parcel number 02 on Exhibit C shall be constructed at least 75 feet from the easterly public right of way line of Green Street, so long as no regulatory body having jurisdiction imposes a setback restriction from the northwesterly line of the wetland designated parcel number OS1. In the event such a wetland setback restriction is imposed by a regulatory body with jurisdiction, the 75-foot setback restriction from Green Street shall be equally reduced. But, in no event shall said 75-foot setback restriction from Green Street be reduced below 30 feet. The only exception to said 75-foot setback restriction from Green Street shall be if, during the subdivision platting process, the Mayor and City Council approve a landscaping plan and pass a motion reducing this 75-foot restriction. 2. 02 Parking Lot Setback Restriction Owners shall not construct any parking lot improvements on parcel number 02 on Exhibit C closer than 15 feet from the easterly public right of way line of Green Street. R. continuation of Uses. Portions of the Property are presently being used for residential, farming and general agricultural uses. Annexation Agreement, Page 18 95-24-I655 Notwithstanding any provision of the City Code, the Zoning Ordinance, or any other code, ordinance or regulation, now in effect or adopted during the term of this Agreement, and notwith- standing the City's zoning of the Property pursuant to the terms hereof, the current uses of the Property (including existing well and septic systems) shall be permitted to continue, and all structures, improvements, buildings and roadways now located thereon shall be permitted to remain and be used notwithstanding their lack of conformance to City building, health, safety or fire codes; provided, however, that the City may require compliance therewith if necessary to eliminate any imminent health or safety hazard and when material improvements are made to such structures, k improvements, buildings and roadways. The aforesaid structures, buildings and improvements may be repaired and maintained and not be required to become conforming structures. L. underground Utilities_. Owners shall install underground, at Owners' cost, all electricity, gas, telephone lines and any other utility or cable devices, lines or conduits within the development areas of the property ("utility Lines"). With regard to existing overhead utility lines located on the Property, Owners shall cause all of these lines to be buried upon development of the relevant phase. M. Easements. Contemporaneous with the execution of this Agreement, Owners shall provide to City such easements in locations and for such purposes as required by the City. These easements shall be filed in the office of the McHenry County Recorder of Deeds and run with the land. N. Open Space Restriction. With respect to the one acre parcel of property depicted and designated on Exhibit C as "open space -- one acre" and located west of and along Green Street, no structures or other improvements shall be placed on this Parcel and the same shall be left vacant and unimproved. Annexation Agreement, Page 19 95-24-1656 O. 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. Owners shall provide erosion and sedimentation controls in compliance with the Illinois EPA Standards and Northeastern Illinois Planning Commission. 2. Prior..to conveyance of the Public Lands, referred to in Title II, paragraph VII.B., above, Owners shall cooperate in providing to the City, at City's 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. TITLE III RECIPROCAL OBLIGATIONS VIII. COMPLIANCE AND AMENDMENTS. A. Except as otherwise specified herein, all City ordinances shall apply to the Property, 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). Annexation Agreement, Page 20 95-24-1657 B. 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 (whether or not encompassed by agreements of annexation), than the benefit of such less restrictive requirements shall inure to the benefit of the Owners and, anything to the contrary contained herein notwithstanding, the Owners may elect to proceed with respect to the development of, or construction upon, the Property with the less restrictive amendment or modification applicable generally to all properties within the City. C. The road surface widths, set forth in Exhibit C, shall remain substantially as depicted thereon 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. IX. OBLIGATIONS. All obligations of the 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. Owners hereby consent to the filing of a lien on that portion of 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 unit, constructed hereon prior to the filing of the lien, any such lien Annexation Agreement, Page 21 95 -24 -- 1658 shall be deemed released with respect to such unit. Monetary obligations as used herein shall include professional fees incurred by the City to monitor and/or litigate this Agreement. TITLE IV MISCELLANEOUS X. 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 validity of "4any 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. XI. BINDING EFFECT AND TERM. A. This Agreement shall be deemed covenants running with the land and 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 and the date of adoption of the ordinances pursuant hereto. B. Without restricting any remedy the City may have against successor owners of record, developers or other persons holding an interest in the Property, the City agrees that, in the event it takes any legal action against Land Trust Beneficiaries for damages to enforce the obligations of said Land Trust Beneficiaries under Annexation Agreement, Page 22 95-24-1659 this Agreement, the City shall be limited to economic recovery from the res of Trust Agreement dated February 9, 1977, known as Trust No. 100 and from McHenry State Bank Trust No. 4705. This limitation shall not restrict the City from enforcing any equitable remedies it may otherwise have against the Land Trust Beneficiaries. XII. 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, Owners shall pay all costs and expenses incurred by the City, including, but not limited to, attorneys' fees and court costs, provided the City prevails. In addition, if the Owners do not pay any fees provided for herein, the City may withhold the issuance of building and/or occupancy 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 c/o City Clerk' 333 South Green Street McHenry, IL 60050 Annexation Agreement, Page 23 95-24-1660 Copies to: City Attorney David W. McArdle Zukowski, Rogers, Flood & McArdle 50 Virginia Street Crystal Lake, IL 60014 Owners: Helen Busch 219 James Road Spring Grove, IL 60081 Howard and Mary Ann Knox 223 South Barreville Road McHenry, IL 60050 Robert and Norma Knox N. 3787 Hiawatha Drive Monroe, WI 53566 Copy to: Rupp & Youman Post Office Box 745 McHenry, IL 60050 %III. AMENDMENT. This Agreement may only be amended by written instrument executed by all parties hereto. Provided, however, in the event title to the Property, in whole or part, is transferred to successors in interest, future zoning, platting or amendments relating to the Property, in whole or part, 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 Property. %IV. 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, McHenry County and no action shall be brought by the parties hereto, their successors or assigns in any Federal Court. Annexation Agreement, Page 24 95-24-- 1 661 IN WITNESS WHEREOF, the parties have executed this Annexation Agreement the day and year first above written. OWNERS: HELEN BUSCH, as Trustee Under the Provisions of a Trust Agreement dated 2/9/77 and Known as Trust No. 100 we-'-t' �"z McHENRY STATE BANK, not individually, but as Trustee Under Trust Agreement dated Z-/- ���, Under Trust No. 4705 / N• HELEN BUSCH —V • M i -OWKRT • Idignd ELECTORS: J• MARY T. #USKA GERALD J.dH1 SKA CITY: Annexation Agreement, Page 25 95-24-1662 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 PAMELA J. ALTHOFF, 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 tRe 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. a Given under my hand and notarial seal this of :57e day of 19 4>3-. btary Pubic OFFICIAL Sris' JOAN MARTHolary Public, State o My commission Expires 12/17/98 Annexation Agreement, Page 26 95-24-1663 Parcel 1: That part of_the east half of Government Lot 1 in the Northwest Quarter of Section 2, described as follows: beginning at the southeast corner of said east half; thence north 89 degrees 51 minutes 09 seconds west (bearing assumed) along the south line of said east half, a distance of 1324.22 feet to the southwest corner of said east half; thence north 00 degree 53 minutes 32 seconds east along the west line of said east half, a distance of 647.06 feet to a point; thence south 89 degrees 56 minutes 40 seconds east, a distance of 1325.67 feet to the east line of said east half; thence south 01 degree 00 minute 48 seconds west, along said east line a distance of 651.78 feet to the point of beginning, in Township 44 north, Range 8 east of the Third Principal Meridian, in McHenry County, Illinois; and Parcel 2: That part of Section 2, Township 44 north, Range 8 east of the Third Principal Meridian, described as follows: commencing at the northwest corner of the Northeast Quarter of Section 2 and running thence south 01 degree 00 minute 48 seconds east (bearing assumed) on the west line thereof to a point which is 933.39 feet north of the southwest corner of Government Lot 2 of the Northeast Quarter of Section 2, said point being the place of beginning in this description; thence east parallel to the south line thereof for a distance of 933.39 feet to a point; thence south parallel to the west line thereof for a distance of 404.81 feet; thence north 88 degrees 59 minutes 12 seconds west, a distance of 273.19 feet; thence north 01 degree 00 minute 48 seconds east, a distance of 152.00 feet; thence north 88 degrees 59 minutes 12 seconds west, a distance of 660.00 feet to the west line of said Northeast Quarter of Section 2; thence north 01 degree 00 minute 48 seconds east, a distance of 233.33 feet to the point of beginning, in McHenry County, Illinois; and Parcel 3: That part of Section 2, Township 44 north, Range 8 east of the Third Principal Meridian, described as follows: commencing at the northwest corner of the Northeast Quarter of Section 2 and running thence south 01 degree 00 minute 48 seconds east (bearing assumed) on the west line thereof to a point which is 933.39 feet north of the southwest corner of Government Lot 2 of the Northeast Quarter of Section 2; thence east parallel to the south line thereof for a distance of 933.39 feet to a point; thence south parallel to the west line thereof for a distance of 933.39 feet to a point on the south line of Government Lot 2 of said Northeast Quarter; thence north 89 degrees 49 minutes 04 seconds east, on the south line thereof to a point which is 448.95 feet east of the southwest corner of the east half of Govern- Busch-Yjiox Annexation, Pagel Exhibit "A" 95 -24 - 1 664 ment Lot 2 of said Southeast Quarter; thence south 01 degree 29 minutes 22 seconds west, parallel to the west line of the east half of Government Lot 1 of said Northeast Quarter for a distance of 982.13 feet to a point which is on a line drawn 330 feet north of and parallel to the east and west quarter section line of said Section 2; thence north 89 degrees 51 minutes 29 seconds west, parallel to the east and west quarter section line for a distance of 844.95 feet to the northwest corner of a certain deed recorded in the Recorder's office of McHenry County, Illinois, in book 199 of Deeds, page 559; thence south 00 degree 08 minutes 31 seconds west, on the west line of said deed, so recorded, for a distance of 330.00 feet to a point on the east and west quarter section line of said Section 2; thence north 89 degrees 51 minutes 28 seconds west, on said east and west quarter section line for a distance of 914.58 feet to the north and south quarter section line of said Section 2; thence north 01 degree 00 minute 48 seconds east, along said north and south quarter section line, a distance of 1302.02 feet to the south line of Government Lot 2; thence north 89 degrees 49 minutes 04 seconds east, along said south line, a distance of 933.39 feet to a point of beginning, in McHenry County, Illi- nois. Busch I(xn AMnngxation, Page 2 95-24-1665 q ! !'• 4oY •.sSs—s `":oeoe 40� EXHIBIT D to Annexation Agreement of Busch/Knox Development Conditional Uses 1. Accessory uses, buildings, and structures to all Conditional Uses in the district, including off-street parking and loading and signs as provided in Sections VII and IX 2. Airports 3. Child day care centers, as defined herein 4. Conditional Public Uses, as defined herein 5. Convention and exhibit halls 6. Drive-in establishments, as defined herein 7. Dry cleaning plftnt and laundry with processing to be performed on site (MC-93-602) 8. Educational institutions, as defined herein 9. Financili institutions, including banks, savings and loan associations and savings banks, finance companies, and credit unions 10. Indoor amusement establishments, including bowling alleys, pool halls, dance halls, commercial swimming pools, and skating rinks 11. Kiosk, a single free-standing, with not more than 50 square feet of floor area, on the same lot as all or a portion of a shopping center, and used for any Permitted or Conditional Use in its district 12. Liquor stores (package goods only) 13. Mortuaries, as defined herein 14. Off-street parking lots, public garages, or storage garages, other than as accessory uses 15. Parking, off-street, lots, public garages 16. Philanthropic and charitable institutions, as defined :herein 17. Planned Unit Developments 18. Radio and television towers 19. Recreational institutions, as defined herein 20. Religious institutions, as defined herein 21. Restaurants with live entertainment or dancing 22. Restaurants, eat -in, serving alcoholic beverages but without live entertainment or dancing 23. Taverns and bars without live entertainment or dancing 24. The following uses as Accessory Uses located totally within a building housing a Principal Permitted Use and with neither any separate outside entrance nor any sign facing or visible from any public street: a. newspaper, magazine, and tobacco shops b. gift or card shops C. flower shops d. drug stores e. barber shops and beauty shops f. donut shops Annexation Agreement 95-24-1669