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HomeMy WebLinkAboutOrdinances - O-95-708.A - 04/19/1995 - AUTHORIZE ANNEX AGMT INLAND MCCULOM LAKE RD PROPERORDINANCE NO. 0-95-708.A April 10, 1005 AN ORDINANCE AUTHORIZING EXECUTION OF AN ANNEXATION AGREEMENT FOR THE INLAND MCCULLOM LAKE ROAD PROPERTY 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 The American National Bank and Trust Company of Chicago, not individually, but as Trustee under a Trust Agreement dated April 15, 1991, known as Trust No. 113739-0 and Inland Appreciation Fund II, L. P., a Delaware Limited Partnership, 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 SECTION 3: All ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of such conflict.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: Lawson, Locke, Bolger, Cuda Voting Nay: Baird, Bates Absent: None Abstain: None PASSED this 19th day of April, 1995. (SEAL) ATT City Clerk Pamela Alt off Passed: 4-19-95 Approved: 4-19-95 Published: 4-20-95 f 1karynlzonin8lordl frm APPROVED: ayor Steven J. Cuda ANNEXATION AGREEMENT THIS AGREEMENT made and entered into this c;A 6f�day of ,u[, Y , 1995, by and between the CITY OF MCHENRY ("City"), a municipal corporation, in the County of McHenry, State of Illinois, and AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, NOT INDIVIDUALLY BUT AS TRUSTEE UNDER A TRUST AGREEMENT DATED APRIL 15, 1991 AND KNOWN AS TRUST NO. 113739-09 ("Trust"), and INLAND LAND APPRECIATION FUND II, L.P., a Delaware limited partnership ("Beneficiary"). The Trust and Beneficiary shall hereinafter collectively be referred to as "Owners." RECITALS A. The 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 56.67 acres, hereinafter referred to as the "Property." Beneficiary is the holder of 100% of the beneficial interest in the Trust. B. Owners filed with the City Clerk a Petition for Annexation of the Property to the City, contingent upon the terms and provisions of this Agreement, which Petition has been filed in accordance with 65 ILCS 5/7-1-8 and the Ordinances of the City. C. The Property is located on the South side of McCullom Lake Road, just North of the Mill Creek Subdivision in this City. D. The Property is presently vacant, unimproved and has no electors residing thereon. -1- r) E. The property is presently zoned "A- I" Agricultural under the McHenry County Zoning Ordinance. F. Owners have filed with the City Clerk a Plat of Annexation of the Property. 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. McCullom Lake Road, servicing the property to the north of Parcel 1, is currently under McHenry Township jurisdiction and notice, pursuant to 65 ILCS 5/7-1-1, 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 the Property, pursuant to the City's Zoning Ordinance. L. The City is considering annexing property generally in the area lying south of Bull Valley Road and east of Crystal Lake Avenue, legally identified as follows: WA a Parcel 1: That part of the South half of the Southwest quarter of Section 3, Township 44 North, Range 8 East of the Third Principal Meridian, lying East of the Chicago and Northwestern Railroad Company; also the Southeast quarter of said Section 3, (excepting the North 100.0 feet thereof and also excepting the East 2251.31 feet thereof), in McHenry County, Illinois. Also Parcel 2: That part of the Southeast quarter of the Southwest quarter of Section 4, Township 44 North, Range 8 East of the Third Principal Meridian, lying Southeasterly of the center line of Crystal Lake Road (excepting the South 100.0 feet thereof); also the Southwest quarter of the Southeast quarter of said Section 4 (excepting the South 100.0 feet thereof); also the Southeast quarter of the Southeast quarter of said Section 4; also that part of the Northwest quarter of the Southeast quarter of said Section 4 lying Southeasterly of the center line of Crystal Lake Road and Southwesterly of the Southwesterly right of way line of Bull Valley Road; also that part of the South half of the Southwest quarter of Section 3, Township 44 North, Range 8 East of the Third Principal Meridian, lying West of the Westerly right of way line of the Chicago and Northwestern Railroad Company, in McHenry County, Illinois. ("Inland Business Park Property"). It is the intent of all parties hereto that the Property not be annexed to the City until the Inland Business Park Property has effectively been annexed to the City. NOW THEREFORE, in consideration of the covenants and conditions herein contained, IT IS HEREBY AGREED AS FOLLOWS: I. ANNEXATION. After the annexation of the Inland Business Park Property, the City shall enact the proper ordinance annexing the Property and attach the required plat of annexation thereto. The ordinance annexing the Property shall be effective only and immediately upon the annexation of the Inland Business Park Property. A copy of the ordinance annexing the Property shall be filed in the office of the County Clerk of McHenry County and filed with the office of the McHenry County Recorder of Deeds. This Agreement in its entirety, together with said 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 and the required ordinances are adopted by the City. -3- II. ZONING. Immediately following annexation of the Inland Business Park Property to the City, the City shall enact the proper ordinance amending the provisions of the City's zoning ordinance to provide that the Property shall be classified in the RS-2 Medium - Density Single -Family Residential District. III. DEVELOPMENT -DENSITY. A. The total number of buildable lots on the Property shall not exceed one hundred and forty (140) and may be less depending on final engineering and final subdivision plat approval. Provided, however, as long as a preliminary subdivision plat for the entire Property and preliminary engineering as required by the City's subdivision control ordinance is filed with the City within one hundred and twenty (120) days from the filing of this executed Annexation Agreement with the office of the McHenry County Recorder of Deeds, the City shall not, prior to December 31, 1996, cause less than one hundred and forty (140) lots to be developed on the Property by amending provisions of its current zoning regulations. This obligation shall not be construed to preclude reducing the total number of buildable lots in the Property due to final engineering requirements. In the event said preliminary plat is not filed within said one hundred and twenty (120) days, the foregoing agreement of the City concerning amendment of its current zoning regulations shall be deemed void. B. There shall be no private streets in the Property. All streets are minor residential streets to be built in accordance with the City's subdivision control ordinance. The City shall have prior architectural review and approval of the structures to be built on the Property. Before final subdivision plat approval, covenants governing the use and size of the structures on the Property shall be -4- approved by the City and such covenants shall provide that they cannot be amended without the City's prior written consent. The final plat of subdivision for any lots adjacent to McCullom Lake Road shall show a berm at the rear of such lots, with the base of the berm being not less than twenty (20) feet in width. The berm and its landscaping shall be as approved by the City and shall not be permitted to encroach upon utility easements shown on the final plat of subdivision for these lots. IV. SEWER AND WATER 1. The Property is located within the City's Facility Planning Area (FPA) as determined by the Northern Illinois Planning Commission (NIPC) and the Illinois Environmental Protection Agency (IEPA). At the time of development, the Property shall be developed with the municipal sewer and water. The City does not guarantee the availability of sewer or water, however, if sewer and water are available to the site at the time of development and the City has adequate capacity for such, the Owners shall be allowed to connect to such in accordance with the applicable City regulations then in effect at locations determined by the City engineer. 2. Upon request by the City, Owners shall construct additional, expanded or oversized municipal sanitary sewer mains and/or lift stations, water mains and/or roadway improvements (the foregoing improvements are collectively referred to as "Municipal Improvements" for purposes of this paragraph and its subparagraphs) which benefit not only the Property, but also other properties being or to be developed in the relevant service areas for such utilities and roadways. In the event such Municipal Improvements are made by Owners, the following provisions shall apply: (a) The properties which may reasonably be expected to benefit directly or indirectly from the construction and/or installation of such Municipal -5- I Improvements ("Benefitted Property") will be determined by the City Engineer at the time such Municipal Improvements are constructed. (b) The City shall endeavor to collect a pro rata sum of money from the owners of the Benefitted Property as a pre -condition to said owners being granted a building permit to connect the Benefitted Property to any of the Municipal Improvements. The total sum subject to_ reimbursement to Owners, as well as the pro rata sum to be collected from the Benefitted Property owners, shall be determined by the City's consulting engineer taking into account the following factors: total construction and easement costs; professional fees; and testing and analysis fees. Any legal and administrative expense shall not be considered. The pro rata sum calculated shall be based upon the ratio of acreage that the particular Benefitted Property bears to the acreage of the entire Benefitted Area. In addition, interest shall be collected from the commencement date of this reimbursement provision, calculated annually at one percent (1%) over the prime rate quoted by the largest local lending institution within the City's corporate limits. The sum collected shall be paid to Owners after deduction of two percent (2%) for administrative charges due to the City. In the event that any State statute shall determine an interest rate other than set forth in this paragraph, the State interest rate shall prevail. (c) Subject to a non -appealable final court order directing City to act otherwise, City shall not issue any connection permits until the Benefitted Property owner either pays the reimbursement charge set forth in this paragraph or adequately assures the City that the payment will be made. (d) The City will use its best efforts to collect the costs provided herein from the Benefitted Property owners but shall not be liable to Owners if the City is, for any reason, unable to collect said costs. The City's liability to reimburse Owners shall be limited to payment from funds actually_ collected from Benefitted Property owners. (e) City shall file this Agreement with the McHenry County Recorder of Deeds and notify the owners of the Benefitted Property of the terms of this reimbursement provision. (fl Owners shall furnish to the City all permits required for improvements referred to in this Agreement including, but not limited to, the Illinois Historical Agency, U.S. Corps. of Engineers, McHenry County Highway Department, McHenry County Soil and Water Conservation District, Illinois Department of Conservation and the Illinois Department of Transportation, Division of Water Resources. (g) 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 amounts subject to this reimbursement provision. (h) This reimbursement provision shall have a commencement date when the City accepts the public improvements which are the subject of this Agreement and shall end on the date of the termination of this Agreement. VA 3. It is further understood by the parties that the existing Donovan Street and Willow Street sanitary sewer lift station and adjacent mains are in need of improvement in order to properly service the Property and surrounding developments ("Improvements"). The City shall cause the Improvements to be made as it deems appropriate. Owners shall contribute a total sum of $70,000.00 to the cost of the Improvements, payable as follows: a lump sum payment of $20,000.00 shall be paid_ to the City upon the commencement of the installation of the Improvements. The additional sum of $500.00 per dwelling unit shall be paid to the City at the time each building permit is issued for the first one hundred (100) building permits. The number of annual building permits issued on the Property shall not be limited. 4. The City shall cooperate with Owner in obtaining such permits ' as may be necessary from time to time by both Federal and State law, including, but not limited to, the Illinois Environmental Protection Agency, to permit the development of the Property. Further, the City agrees to execute when and where required all necessary applications for permits to the Environmental Protection Agency (EPA) and Army Corps. of Engineers (Corps.) for road access and the construction and use of the sewer and water mains described herein as well as the construction of roadways and the storm water detention areas located within wetlands, if any, on the Property. No action of the City regarding applications to the Illinois or U.S. Environmental 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 the 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. 5. It is agreed that sump -pumps from the improvements on the Property must be connected to storm water system as approved by City staff. 6. The City shall exercise its power of eminent domain, if necessary, to assist Owners in obtaining all necessary easements, not already in existence, to enable the installation of the aforesaid improvements. Owners shall pay for all of the eminent domain costs and expenses incurred by the City, including but not limited to,- attorney's fees, title charges, appraisals, survey cost, deposition cost, witness fees, litigation expenses and judgments in the acquisition of any easement. Such costs and expenses of acquisition by eminent domain shall be includable in the costs and expenses that are subject to recapture by Owners from Benefitting Parties. V. DEVELOPMENT IN PHASES. The City shall permit the Owners to subdivide the Property with one (1) preliminary subdivision plat and no more than three (3) final plats of subdivision or "phases". To secure Owners' completion of the subdivision public improvements, including sidewalks, public streets, sanitary sewer mains, water mains, off -site and on -site storm drainage improvements, the Owners shall, prior to each final subdivision plat approval, file with the City a letter of credit in a form and in an amount approved by the City in accordance with the City's subdivision control ordinance for each plat. Provided, however, the first final subdivision plat shall, in addition, provide for all on - site stormwater detention improvements required for the entire Property, not just the first phase. Such detention public improvements must be fully constructed and preliminarily approved by the City prior to any occupancy permits being issued on the first final plat of subdivision. In the event the approved detention design allows the release of storm water that creates new storm water problems to surrounding In homeowners as reasonably determined by the village engineer, the City may stop the issuance of building permits on home construction until satisfactory corrective changes are approved by the city engineer or building department. Each final plat of subdivision relating to the Property will be reviewed by the City, but not executed prior to delivery of all applicable letters of credit by the Owners to the City. VI. OFF -SITE AND ON -SITE IMPROVEMENTS - BUILDING PERMITS The City agrees that after the applicable letter of credit is delivered to the City and a final plat of subdivision is recorded, the Owner shall not be required to construct all on and off -site improvements prior to issuance of a building permit for buildings or improvements on any portion of said subdivided land. Rather, the Owners shall be allowed to construct the required off -site and on -site improvements simultaneously with the issuance of building permits for individual lots and/or buildings. In no instance, however, shall a building permit be issued prior to installation of the subbase of the street across the frontage of the lot for which the permit is requested. All off -site and on -site improvements (except the final lift of bituminous asphalt surface on roads and landscaping), serving any phase shall be installed by Owners and approved by the City before an occupancy permit is issued for said lot or building. VII. SCHEDULE OF DEVELOPMENT. 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 within sixty (60) days following annexation of the Property, and shall include work to be completed in the then current and following calendar year. It is acknowledged that said -10- 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. VIII. DONATIONS, CONTRIBUTIONS AND FEES. Owners acknowledge that the development of the Property will impact on schools, parks, the library and fire protection districts and other public services within the City. To reduce this impact, and as a condition of this Agreement, Owners shall be obligated to pay and/or donate, or cause to be donated to the City, or provide improvements for the benefit of the City as follows: A. Annexation Fees. Owners shall pay to the City annexation fees in addition to fees previously referred to in this Agreement as follows: 1. The lump sum of $56,709.00 shall be paid within sixty (60) days following annexation of the Property to the City. 2. The sum of $530.00 per residential unit shall be paid to the City upon issuance of each building permit relating to the residential lots. 3. All required sanitary sewer and water main connection charges and capital development fees shall be paid in accordance with ordinances in effect at time of connection. 4. The sum of $1, 533.00 per residential unit ($869.00 to School District 15, $613.00 to School District 156 and $51.00 to the Library District) shall be paid to the City upon issuance of each occupancy permit. Provided, however, on or before the end of the thirtieth (30th) month after the City's execution of each final plat -11- I of subdivision, the payment obligation in this Paragraph VIII.A.4 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 for that plat. That portion of these funds to be distributed to the schools, as determined exclusively by the City, may be distributed for the benefit of some or all schools within School Districts 15 and 156, at the discretion of the City Council. To the extent any of these funds are distributed to said school districts, they_ 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 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 VIII.A.4 for City use. Nothing herein is intended to create third party beneficiary rights in School Districts Nos. 15 and 156 or the Library District. 5. 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 V LA.4, provided, however, if at any time the aforementioned school districts are able to impose their own fees on a developer, any such fees imposed by such school districts will be used to off -set the aforementioned fees described in Paragraph VIII.A.4. B. Public Land. 1. Contemporaneously with the recording of the Final Plat of Subdivision for the Property, the Owners will convey by fee simple title and dedicate to the City, for unrestricted public uses and purposes, the roads and right-of-ways -12- ("Public Land") of the Property. 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 and the Owners shall convey the Public Land back to the City with the corrected legal description. 2. Owners hereby release the City from any and all liability of 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 VIII.B. C. Cash Donations. 1. During the term of this Agreement, Owners shall be obligated to pay to the City certain cash donations per single family dwelling unit developed on the Property. 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 VIII.C1. During the term of this Agreement, the Owners shall be required to pay the cash donations referred to herein. The cash donations payable by the Owners to the City shall be calculated as follows: Fire Schools Park Lib a. District Total Detached Single Family Dwellings 2 Bedroom or less $1,904 $ 964 $217 $217 $3,302 3 Bedroom $3,099 $1,396 $217 $217 $4,929 4 Bedroom $4,290 $1,792 $217 $217 $6,516 5 Bedroom or more $4,409 $1,754 $217 $217 $6,597 At the beginning of each calendar period beginning on January 1, 1996, the cash donations due relating to schools, parks, library and fire district, in accordance with the above chart, shall be adjusted upward by the percentage -13- increase in the Chicago Area Consumer Price Index for the previous year. 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 ("Minimum Cash Contribution Amount"). In the event the Minimum Cash Contribution Amount, as calculated above, for_ schools or if the above stated amount for parks, libraries and fire districts is less than the cash contribution amount set forth in the City's cash contribution ordinance for schools, parks, libraries and fire districts, as amended from time to time, an amount equal to the amount specified in the City's cash contribution ordinance shall be paid rather than the Minimum Cash Contribution Amount or the above stated figures. 2. In the event the City's cash contribution ordinance, or any other ordinance of the City relating to developer cash contributions for schools, parks, library and fire districts, is repealed or declared by a court of law to be unenforceable, and all appeals have been exhausted, Owners agree to pay subsequent to such final court action, the Minimum Cash Contribution Amount set forth 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 VIII C. under any circumstances. -14- 3. 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 VIII C. or the purpose for which the money is spent. D. Donation Distinguished from Fees. 1. Other than the donations specified in the foregoing subsections A,_ B and C of this Paragraph VIII, during the term of this Agreement, and irrespective of any existing, new or revised donation ordinances of the City, Owners shall not be required to donate any land or money to the City or, by action of the City, to any other governmental body. Building permit fees, tap -on fees and other similar fees (which are charged for specific services provided by the City) shall be payable in accordance with City Ordinances in existence and as amended from time to time. E. Roads. 1. Construction traffic generated by the development of the Property shall not access the Property using Donovan Street or Leonard Avenue south of the Property. It is agreed that access to the Property during construction shall only be permitted from McCullom Lake Road. 2. After installation of all the roads and streets in a particular phase, the City agrees, subject to bonding requirements set forth in its ordinances to accept the dedication and snowplowing responsibility of all streets in said phase at the time homes in such phase become eligible for occupancy permits and provided manhole covers are protected. 3. Upon request of the City, but in any event upon application of the final lift and acceptance by the City, Owners shall convey title to all roads located on -15- the Property to the City for public street purposes. Title to such roads 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 such property as public roads. 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. 4. Within thirty (30) days of annexation, Owners shall dedicate. sufficient right-of-way along McCullom Lake Road to provide a fifty (50) foot right-of- way (or sixty (60) feet if the City determines it needs such additional ten (10) feet) from the center line of McCullom Lake Road to the northern boundary of the Property. Simultaneously with the installation of the improvements to the first phase of the Property, Owners shall, within the right-of-ways of McCullom Lake Road, add a deceleration lane for right turns into the Property and a center turn lane on McCullom Lake Road for left turns into the Property. It is further agreed that Owner shall install four (4) foot wide sidewalks on the Property all along its boundaries with McCullom Lake Road. None of the lots backing to McCullom Lake Road shall have direct access from such lots to McCullom Lake Road. F. Underground Utilities. Owners shall install all electricity, gas, telephone lines and any other utility or cable devices, lines or conduits underground and all existing above -ground electric and telephone lines on the Property along McCullom Lake Road shall be placed underground before completion of the final phase of the Property. G. Easements. Upon request by the City, Owners shall execute such easements as are necessary to effectuate the terms and conditions of this Agreement and as may be SVI 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 as the City engineer or City attorney deems appropriate. H. Core Samples. It is agreed that core samples every one hundred (100) feet in the center of the planned right-of-ways shall be provided to the City Engineer prior to final engineering roadway approval and the roadway shall be constructed in accordance with the City's engineer's requirements to achieve satisfactory performance standards for minor residential streets. 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 ground water 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 all applicable City ordinances or regulations. 2. Prior to conveyance of the Public Land, referred to in Paragraph VIII. B. , above, Owners shall provide to the City, at Owners' cost, a Phase I Environmental Assessment relating to the Public Land. The results and conclusions of this assessment must be acceptable to the City's consulting engineer. In the event the results show a violation of any applicable environmental laws, this Agreement, in its entirety, shall be deemed null and void unless Owners agree to clean up and/or correct at their sole expense any such violation. MWA J. Wetland Protection. Owners shall not disturb any areas of the property designated as wetlands by any governmental agency without the consent of the appropriate governmental agency. K. Model Home Construction and Sales Offices. 1. Upon the annexation and approval of any final plat or engineering, approval, the Owners shall be permitted, at the Owners' sole risk, to construct, maintain and occupy model units in one or more product lines being offered by the Owners in any phase so approved. Provided, however, model construction shall comply with the City's Building Codes, shall require approval of the building department prior to use and shall comply with health department standards for model home sales offices. 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 removed from the model and 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 subject to approval by the applicable city department with a one-time fee with said signs to be removed on or before termination of sales facilities. Temporary marketing signs shall be permitted for the annual permit fee than in effect when the Owners are participating in the Festival of Homes sponsored by the Chicago Tribune. These identification signs are four (4) feet by nine (9) feet and are posted for five (5) consecutive weeks at a time, not more SM 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 McCullom Lake Road and the lighting and design of the sign shall be subject to City approval. This sign shall not exceed the dimensions of twelve (12) feet by eight (8) feet or ninety-six (96) square feet. 3. The City agrees to allow the Owners to construct temporary parking facilities paved to the sidewalk with curb depressed or other appurtenances to the model units and sales office subject to the approval of the City Building and Zoning Department and compliance with building codes of the City. L. RS-2 Building Restrictions. For homes to be built in the RS-2 zoning district, identical models or models of similar design with identical front elevations may be erected no more often than every third lot along the same frontage; i.e., two (2) dissimilar models must be erected between each identical model with identical front elevations without regard to intervening street lines. Identical models or models of similar design, with identical front elevations, shall not be constructed directly across the street or other right-of- way from the front of that model. Identical models or models of similar design with significantly different front elevations may be erected on every second lot; i.e., a completely different model must be erected between identical models with different elevations without regard to intervening street lines. M. Retained Personnel Fees. Owners shall comply with the Retained Personnel Ordinance in effect from time to time. -19- I N. Geotechnical Reports. Prior to issuance of a building permit, Owners shall provide to the City's Building and Zoning Department a written report from a registered professional engineer specializing in the geotechnical field concerning the soil conditions of the lot for which the permit is requested and addressing its suitability for construction of a basement. The City building department shall make the final reasonable_ determination if basements can be installed or further testing is needed before such final determination can be made. IX. COMPLIANCE AND AMENDMENTS. A. More Restrictive Requirements. 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, 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 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, WX111 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 Owners and, the Owners may elect to proceed with respect to the development of, or construction upon, the Property with the less restrictive amendment or modification so long as such amendments or modifications are non-discriminatory in their application and effect throughout the City and are applicable generally to similarly zoned or developed parcels within the City (excepting those developments in the City having annexation agreements - past, present or future - providing otherwise). C. The City and Owners may by mutual consent change, amplify or otherwise agree to terms and conditions other than those set forth in this Agreement by the adoption of any ordinance by the City amending the terms of this Agreement and the acceptance of same by Owners subject to the provisions of the Illinois Compiled Statutes (1993, 65ILCS 5/11-15.1-1 through 5/11-15.1-5. D. It is understood and agreed that all subsequent amendments of this Agreement and plats of subdivision for the Property, or any development of the Property, may be obtained for all or any portion of the Property without effecting the rights, duties or obligations of the parties hereunder or their assigns as to the balance of the Property not included in the aforedescribed actions. It is understood and agreed that all subsequent amendments of this Agreement as approved by the City, may be obtained for portions of the Property without affecting the rights, duties or obligations W-42 I of the parties hereunder or their assigns as to the balance of the Property not included in the aforedescribed action, so long as the owners of the affected property consent to such. The approval of Owners of the Property not included in the aforesaid actions shall not be required. X. 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 the Property for which the obligations are owed when any obligations are more than thirty (30) 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. It is specifically understood and agreed that the Owners shall have the right to sell, transfer, mortgage and assign all or any part of the Property and the improvements thereon to other persons, trusts, partnerships, firms or corporations for investment, building, financing, developing and all such purposes, and that said persons, trusts, partnerships, firms or corporations shall be entitled to the same rights and privileges and shall have the same obligations as the Owners have under this Agreement and upon such transfer, such obligations shall be the sole obligations of the transferee, except for any bonds or guarantees posted by Owners on any -22- subdivided or unimproved property for which an acceptable substitute bond or L.C. has not been submitted to the City; such obligations as to any vacant, unsubdivided land shall be the sole obligation of the transferee. The foregoing rights shall apply to any and all successors and assigns of the Owners. Upon any sale or conveyance of any part of the Property by Owners or their successors or assigns and upon each said sale and conveyance, the purchaser shall be bound by and entitled to the benefits and obligations of this Agreement with respect to that part of the Property sold or conveyed. When any such purchaser agrees to assume Owners' obligations hereunder, and when the City is notified of' such purchaser and such agreement of assumption, the City hereby covenants and agrees it shall consent to such assumption and it shall release Owners from their obligations hereunder with respect to that part of that Property sold or conveyed. A selling owner however, may only be released where: (a) provision has been made that all public improvements required by this Agreement or applicable City Ordinance for the development of any parcel currently under development and being sold will be installed and guaranteed in accordance with this Agreement and the ordinances of the City; (b) all monetary obligations of the Owners then due to the City as of the time of conveyance and attributable to the Property being conveyed have been satisfied in full; and (c) the purchaser will assume all of the obligations of the selling owner as to the portion of the Property being conveyed. M. 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 -23- invalid, such provision shall be deemed to be excised here from and the invalidity thereof shall not affect the application or validity of any other terms, conditions or 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. mi. 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 ten (10) years from the date of the execution hereof. It is agreed that in the event that the annexation of the Property or the terms of this Agreement are challenged in any court proceeding, the period of time during which such litigation is pending shall not be included in the calculation of said ten (10) year period. Mil. AGRICULTURAL USE OF PROPERTY. The parties hereto agree that the Property, or so much thereof that is not under development, may continue to be used for the agricultural use of crop farming and that said uses shall survive the termination of this Agreement as provided by statute; in addition thereto, all said agricultural use shall be considered a legal, non- conforming use. -24- XIV. NOTICES AND REMEDIES. A. Upon a breach of this Agreement, any of the parties, by any action or proceeding at law or in equity, may exercise any remedy available at law or in 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 to 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 substantially prevails. In addition, if the Owners do not pay any fees provided for herein, the City may withhold the issuance of building 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 Attn: City Clerk -25- Copies to: City Attorney David W. McArdle ZUKOWSKI, ROGERS, FLOOD & WARDLE 50 Virginia Street Crystal Lake, IL 60014 Owner: Inland Land Appreciation Fund II, L.P. 2901 Butterfield Road Oak Brook, IL 60521 Attn: Anthony A. Casaccio Copies 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, McHenry County, and no action shall be brought by the parties hereto, their successors or assigns, in any Federal Court. -26- IN WITNESS WHEREOF, the parties have executed this Annexation Agreement the day and year first above. AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, not personally but as Trustee under Trust No. 113739-09, aforesaid By: Attest: INLAND LAND APPRECIATION FUND II, L.P., a Delaware limited partnership, by Inland Real Estate Investment Corporation, a Delaware corporation, its general partner By: 44W —/Z Its: CITY OF MCHENRY, a municipal corporation B a or City Clerk This instrument is executed by the undersigned Land Trustee, not personally but solely as Trustee in the exercise of the power and authority conferred upon and vested in it as such Trustee. It is expressly understood and agreed that all the warranties, indemnities, representations, covenants, under. takings and agreements herein made on the part of the Trustee are undertaken by it solely in its capacity as Trustee and not personally. No personal liability or personal respon. sibility is assumed by or shall at any time be asserted or ern forceable against the Trustee on account of any warranty, indemnity, representation, covenant, undertaking or agree• ment of the Trustee in this instrument. W*A STATE OF ILLINOIS ) ) SS COUNTY OF COOK ) I, the undersigned, a Notary Public in and for said County, in the State aforesaid, do hereby certify that Gregg S. Kasprzyk , of American National Bank and Trust Company of Chicago, as Trustee under Trust No. 113739-09, personally known to me to be the same person whose name is subscribed to the foregoing instrument, as such ASSISTANT SECRETARY , appeared before me this day in person and acknowledged that he/she, being thereunto duly authorized, signed and delivered the said instrument as his/her own free and voluntary act anda�,� the free and voluntary act of said association, as Trustee aforesaid, and said twSISTANT SECRETARY did then and there acknowledge and declare that he/she had affixed thereto the corporate seal of said Bank as his/her free and voluntary act and as the free and voluntary act of said association, as Trustee as aforesaid, for the uses and purposes therein set forth. GIVEN under my hand and notarial seal this daMAY 2 3 1995ffy of 1995. Notary Public My commission expires: .40F ICIL-MoAL T sE M, NOTARY PUBLIC, STATE OF ILLINOIS My Commission Expires 06127196 STATE OF ILLINOIS ) ) SS COUNTY OF DUPAGE ) I, the undersigned, a Notary Public in and for said County in the State aforesaid, do hereby certify that Anthony A. Casaccio Senior Vice President of Inland Real Estate Investment Corporation, a Delaware corporation, general partner of Inland Land Appreciation Fund II, L.P., a Delaware limited partnership, is personally known to me to be the same person whose name is subscribed to the foregoing instrument as such Senior Vice President appeared before me this day in person and acknowledged that he signed and delivered the said instrument as his own free and voluntary act, and as the free and voluntary act of said Corporation, as general partner of such partnership, for the uses and purposes therein set forth. GIVEN under my hand and notarial seal this My commission expires: ['OFFICIAL SEAL' "BBIE G. MARACK '*No., Public, State ar Illinois My Commission Expires 11/7/95 sm 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 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. rf GIVEN under my hand and notarial seal this day T day of 1995. Notarylic My commission expires: =OFFICIAL EAL "Hf Illinois12/17/98 -29- rT LEGAL DESCRIPTION Parcel 1: That part of the Southwest Quarter of the Southwest Quarter of Section 23, Township 45 North, Range 8 East of the Third Principal Meridian lying Southwesterly of the Southwesterly right-of-way line of McCullom Lake Road, in McHenry County, Illinois. ALSO Parcel 2: That part of the Northwest Quarter of the Northwest Quarter of Section 26, Township 45 North, Range 8 East of the Third Principal Meridian lying Southwesterly of the Southwesterly right-of-way line of McCullom Lake Road, in McHenry County, Illinois. ALSO Parcel 3: The East 40.04 feet of the Northeast Quarter of the Northeast Quarter of Section 27, Township 45 North, Range 8 East of the Third Principal Meridian, in McHenry County, Illinois. ALSO Parcel 4: The East 40.04 feet of Lot 8 in McHenry Plat No. 6 of Section 22, Township 45 North, Range 8 East of the Third Principal Meridian, as recorded May 6, 1902 as Document No. 14082 in Book 2 of Plats, page 34, in McHenry County, Illinois. Permanent Index Numbers for subject property and other properties: 09-23-300-022 09-27-228-001 09-26-100-026 09-22-476-002