HomeMy WebLinkAboutOrdinances - O-98-894 - 11/23/1998 - AUTHORIZE ANNEX AGMT PACINI GROUP KRESSWOOD TRAILSORDINANCE NO. 0-98-894
AN ORDINANCE PROVIDING FOR THE APPROVAL OF AN ANNEXATION
AGREEMENT BETWEEN PARKWAY BANK AND TRUST COMPANY, TRUST NO.
10693, LEWIS PACINI AND LOIS PACINI, THE PACINI GROUP LLC, AND THE CITY
OF MCHENRY, MCHENRY COUNTY, ILLINOIS
WHEREAS, The PARKWAY BANK AND TRUST COMPANY, not individually,
but as Trustee under Trust Agreement dated October 7, 1993, and known as Trust No.
10693, holds fee simple title to the real estate hereinafter described (the "Subject
Property"), LEWIS PACINI and LOIS PACINI are the holders of 100% of the beneficial
interest in Trust No. 10693, and THE PACINI GROUP LLC, an Illinois Limited Liability
Company, is the contract purchaser of the Subject Property; and
WHEREAS, notice of public hearing was published in the Northwest Herald, a
newspaper of general circulation in the City of McHenry, within the time provided by law,
notifying the public of a hearing on said Annexation Agreement held before the
Corporate Authorities of the City of McHenry, McHenry County, Illinois; and
WHEREAS, the Corporate Authorities of the City have held the hearing required
by law and have found that the entry into said Annexation Agreement will not be
detrimental to the public health, welfare, or safety of the inhabitants of the City of
McHenry, McHenry County, Illinois.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF MCHENRY, MCHENRY COUNTY, ILLINOIS, AS FOLLOWS:
Section 1: The Annexation Agreement, bearing the date of NOVEMBER 23
1998, by and between the PARKWAY BANK AND TRUST COMPANY, TRUST NO.
10693, LEWIS PACINI AND LOIS PACINI, THE PACINI GROUP LLC, AND THE CITY
OF MCHENRY, MCHENRY COUNTY, ILLINOIS, be and the same is hereby approved.
A full, true, complete, and accurate copy of said Annexation Agreement is attached to
this Ordinance and incorporated herein by reference as Exhibit A.
Section 2: The Mayor and City Clerk are authorized to affix their signatures to
said Annexation Agreement for the uses and purposes therein set forth.
Section 3: All Ordinances or parts thereof in conflict with the terms and
provisions hereof are hereby repealed to the extent of such conflict.
Section 4: This Ordinance shall be published in pamphlet form by and under
the authority of the corporate authorities of the City of McHenry, McHenry County,
Illinois.
Section 5: This Ordinance shall be in full force and effect from and after its
passage, approval, and publication in pamphlet form as provided by law.
PASSED THIS.ma DAY OF Nomug , 1998.
AYES: BOLGEg, GI AR_ MCCLATCHEY. MURGATROYD. BAIRD. CUDA.
NAYS:
NONE.
ABSTAINED: NONE.
ABSENT: NONE
NOT VOTING: NONE.
APPROVED THIS 23RD DAY OF NOVEMBER , 1998.
4�il I I /-'�
IVRY—OR
ATTEST:
CITY CLERK
Draft: November 16, 1998
ANNEXATION AGREEMENT
THIS ANNEXATION AGREEMENT is made and entered into this day of
N-6,� , 1998, by and between the CITY OF McHENRY ("City"), a
municipal corporation, in the County of McHenry, State of Illinois, and PARKWAY BANK
AND TRUST COMPANY, not individually, but as Trustee under Trust Agreement dated
October 7, 1993, and known as Trust No. 10693 ("Trust"), LEWIS PACINI and LOIS
PACINI ("Beneficiaries") and THE PACINI GROUP LLC, an Illinois Limited Liability
Company ("Developer"). The Trust, Beneficiaries and Developer 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 the attached "Exhibit A" ("Property"). Beneficiaries are the holders of 100% of the
beneficial interest in the Trust. Developer is the contract purchaser of the Property.
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 presently vacant, unimproved, and has no electors residing
thereon and is presently zoned "A-1" Agriculture District, pursuant to the McHenry County
Zoning Ordinance.
D. The Property constitutes territory which may be annexed to the City as
provided for in 65 ILCS 517-1-1, et seq.
E. 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
hereafter 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.
F. 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.
G. The Property is located within the McHenry Township Fire Protection District
and the Nunda Township Road District. The trustees of the districts and the Nunda
Township highway commissioner and supervisor were notified according to law. An
affidavit confirming the required notices were served in accordance with the application has
been filed with the City and the McHenry County Recorder of Deeds.
H. Prior to the date of this Agreement, public hearings were held upon proper
notice pursuant to the City's zoning ordinance and to provide for execution of this
Agreement and no further action needs to be taken by the Owners to cause the Property
to be annexed to the City and classified in accordance with the terms of this Agreement.
NOW THEREFORE, in consideration of the covenants and conditions herein
contained, it is hereby agreed as follows:
I. ANNEXATION
Upon execution of this Agreement, the City shall enact a proper ordinance annexing
the Property legally described on Exhibit A. 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 immediately following execution of this Agreement.
II. ZONINGIPRELIMINARY PLAT
Immediately upon the annexation of the Property, the City shall adopt an ordinance
Rezoning the Property RA-1, Attached Residential, and granting a variance to allow more
than one building on a lot, and shall also approve the preliminary plat of subdivision of the
Property, entitled Kresswood Townhomes, prepared by Ennis Engineering, Ltd., dated
June, 1998, and last revised on , attached hereto as Exhibit B.
Ill. SEWER AND WATER
A. The Property is located within the City's Facility Planning Area as determined
by the Northern Illinois Planning Commission and the Illinois Environmental Protection
Agency. At the time of development, the Property shall be developed with municipal sewer
and water.
B. The City makes no representation or warranty that there will be any municipal
sanitary sewer treatment plant or sanitary sewer main capacity or municipal water available
to serve the Property at any time during the term of this Agreement. No action of the City
regarding application to the Illinois or U.S. Environmental Protection Agency for permission
to construct 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 plat 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.
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C. Owners shall be obligated to pay all applicable fees and costs associated with
sanitary sewer service and potable water imposed by City ordinances, as amended from
time to time.
D. The extension of the water main from Cross Trail through the Property, east
along Bull Valley Road to connect with the existing water main at Ridgeview Drive shall be
made part of the final engineering plans for the first phase of development, prior to final plat
approval. This water main extension shall be located and designed subject to the approval
of the City. These improvements shall be installed by and at the sole cost and expense of
the Owners.
E. Owners acknowledge that the Property is subject to existing sanitary sewer
reimbursement or "recapture" agreements with Nimed Corp. and Amoco Oil Co. Owners
shall pay the required recapture amounts due under said agreements prior to connection
of any townhouse constructed on the Property to the City's sanitary sewer system.
IV. PUBLIC IMPROVEMENT REIMBURSEMENT
A. Upon request by the City, Owners shall construct additional, expanded or
oversized municipal sanitary sewer mains and/or lift stations and water mains (the
foregoing improvements are collectively referred to as "Municipal Improvements") for
purposes of this paragraph and its subparagraph(s) which benefit not only the Property, but
also other properties being or to be developed in the relevant service areas for such utilities.
In the event such Municipal Improvements are made by Owners, the following provisions
shall apply:
1. The properties which will benefit directly or indirectly from the
construction and/or installation of such Municipal Improvements ("Benefitted Property") will
be determined by the City Engineer at the time such Municipal Improvements are
constructed. The Benefitted Property shall include the Property subject to this Agreement.
2. 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 permit
to connect the Benefitted Property to any of the Municipal Improvements. The total cost of
improvements will be spread over the Benefitted Property pro rated. 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 Property. In addition, interest shall
be collected from the commencement date of this reimbursement provision, calculated
annually at nine percent (9%) per annum, not to exceed ten (10) years from the date of this
Agreement. Any reimbursement provision shall have a commencement date when the
public improvements which are the subject of the reimbursement agreement are placed into
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service and shall end on the date of the termination of this Agreement. 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.
3. 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.
4. 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.
5. 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.
6. 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.
Army 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.
7. Owners shall reimburse and indemnify City for all costs, engineering
and attorney's fees and liability incurred by the City with regard to the drafting and
implementation of the Reimbursement Agreement contemplated under this Article IV.
B. The City shall cooperate with Owners 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 and U.S. Army Corps. of Engineers 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.
C. 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
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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 Benefiting Parties.
V. DEVELOPMENT IN PHASES - SECURITY
The City shall permit the Owners to subdivide the Property with one (1) preliminary
subdivision plat and no more than two (2) final plats of subdivision or "phases." To secure
Owners' completion of on -site and off -site public improvements, including those referenced
in paragraph VI.D.1 and other 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 the recording of each final subdivision plat, file
with the City a letter of credit in a form, amount and drawn upon an institution approved by
the City. 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.
Owners shall be permitted no more than one (1) reductions in the letters of credit filed with
the City and the last reduction shall not leave a balance securing public improvements in
an amount less than $50,000.00.
VI. 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 one hundred ninety
(190) 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 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.
VII. 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 jointly and
severally 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 otherwise referred to in this Agreement as follows:
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1. The lump sum of $20,000, representing $1,000 per acre of the
Property, shall be paid within sixty (60) days following annexation of the Property to the City.
2. The sum of $530 per individual townhouse unit shall be paid to the City
upon issuance of each building permit relating to each townhouse building, which may
include four (4) or six (6) individual townhouse units.
3. The sum of $1,683 per townhouse unit ($954 to School District 15,
$673 to School District 156 and $56 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 thirty-
sixth (36t') month after the City's execution of each final plat of subdivision, the payment
obligation in this paragraph 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 3 for City use. Nothing herein is intended to
create third party beneficiary rights in School District Nos. 15 and 156 or the Library District.
4. At the end of each one-year period, with the first one year period
beginning on May 1, 1999, the fees referenced in the preceding paragraph numbers 2 and
3 shall be adjusted upward, by the percent which the Chicago Area Consumer Price Index
has moved upwards since December 31, 1998, and every December 31 thereafter. For
purposes of this paragraph, 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.
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 herein, 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 herein.
B. Cash Donations.
1. Owners shall be obligated to pay to the City certain cash donations per
individual townhouse unit developed on the Property. These cash donations shall be paid
to the City upon issuance of each building permit relating to each townhouse building, which
may include four (4) or six (6) individual townhouse units, and calculated in accordance with
this paragraph. 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
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shall be calculated as follows:
Fire
Schools
Park
Library
District
Total/Unit
2 Bedrooms $1,618
$1,124
$240
$240
$3,222
3 Bedrooms $1,832
$1,289
$240
$240
$3,601
4 Bedrooms $4,410
$1,808
$240
$240
$6,698
The cash donations referred to in this chart shall collectively be referenced
as"Minimum Cash Contribution Amounts."
At the end of each one-year period, with the first one year period beginning
on May 1, 1999, these Minimum Cash Contribution Amounts shall be adjusted
upward by the percent which the Chicago Area Consumer Price Index has
moved upwards since December 31, 1998, and every December 31
thereafter. For purposes of this paragraph, 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, parks, 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 provided in this Agreement.
In the event the City's cash contribution ordinance, or any other ordinance of
the City relating to developer cash contributions for schools, libraries, parks
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 this Agreement. 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
under any circumstances.
2. 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
enforce ability of the cash donation provision set forth herein or the purpose for which the
money is spent.
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C. Donations Distinguished from Fees.
Other than the donations specified in the foregoing paragraphs, during the
term of this Agreement, and irrespective of any existing, new or revised donation
ordinances of the City, 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, water and
sewer connection or 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, except as specifically provided for in this
Agreement.
D. Roads.
1. An eastbound left -turn lane and a westbound deceleration lane on Bull
Valley road shall be made part of the final engineering plans for the first phase of
development, prior to final plat approval. These lanes shall be located and designed
subject to the approval of the McHenry County Highway Department, and include a final
overlay to cover the entire width of Bull Valley Road and thermo-plastic striping. These
traffic lane improvements shall be installed by and at the sole cost and expense of the
Owners. The Owners shall provide to the City or County at no cost, any easements or
rights -of -way needed to accommodate these lane improvements.
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 townhomes
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 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. 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.
5. In lieu of constructing Brookwood Drive, as depicted on the preliminary
plat, Owners shall contribute to the City an amount equal to the cost of constructing such
road, with said amount to be reviewed and approved by the City Engineer, within sixty (60)
days following approval of the Final Plat that includes the Brookwood Drive right-of-way.
E. Underground Utilities.
Owners shall install all electricity, gas, telephone lines and any other utility or
cable devices, lines or conduits underground.
F. 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
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.
G. Environmental Matters.
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.
H. 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.
Development Concerns.
1. 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 -site and off -site improvements prior to issuance of a building permit for
buildings or improvements on any portion of the Property. 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 where a gravel road base does not exist within 200 feet
of the frontage 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.
2. Upon the annexation and approval of the Owners' first 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 said phase so approved. Provided, however, model construction shall comply with the
City's building codes, shall require approval of the Community Development Department
prior to use and shall comply with health department standards for model home sales
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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 Property's
subdivision shall be conducted in this sales office. Upon the sale of all units on the last final
plat, the sales office shall be removed from the model and abandoned by the Owners.
Sales trailers shall be allowed on the Property as approved by the City Council.
3. Construction trailers used to build the townhomes on the Property shall
be allowed in each phase of the development. Provided, however, upon the sale of 75%
of all the units in each phase, all construction trailers shall be removed from that phase of
development. Prior to reaching 75% of development, construction trailers shall be located
on the Property as approved by the City.
4. Any construction traffic generated by the development shall only
access the Property from Bull Valley Road, and shall not enter or leave the Property from
the north by using the existing Cross Trail Street. The Owners shall monitor and clean
public streets on a daily basis, or more often as needed so that same are kept free of dirt
and debris generated by construction traffic.
5. Owner agrees that a minimum of fifty percent (50%) of the exterior
walls of all structures shall be faced with standard width brick, brick veneer, natural or cast
stone, or other masonry materials ("Brick"). For the purposes of this paragraph, brick
veneer shall not include thin brick or any masonry material nailed or otherwise fastened to
a wall. In addition, all exterior chimneys shall be Brick.
6. Owners shall be permitted to install and maintain one development
entrance sign in the center median of the access road off Bull Valley Road. This sign shall
be a maximum of eight (8) feet in height and sixty (60) square feet in area, and located
where it does not interfere with traffic visibility, as determined by the City. Provisions for the
continued maintenance of this sign shall be incorporated into the Declaration of Protective
Covenants, as required in this Agreement.
7. Prior to issuance of any occupancy permits Owners shall install and
maintain a berm and landscaping on private property along Bull Valley Road in accordance
with the Landscape Plan prepared by GBL, Land Development Services, dated October 23,
1998. Provisions for the continued maintenance of this berm and landscaping shall be
incorporated into the Declaration of Protective Covenants, as required in this Agreement.
8. Prior to the approval of the last final plat, Owners shall, at their sole
cost and expense, construct a ten (10) foot wide asphalt bike path, in lieu of a public
sidewalk, along the entire Property frontage on Bull Valley Road to connect to the McHenry
County Conservation District bike path currently under construction at the east edge of the
Property. This path shall be located and designed subject to the approval of the McHenry
County Highway Department. The Owners shall provide to the City or County at no cost,
any easements or rights -of -way needed to accommodate this path.
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9. A minimum building setback of fifty (50) feet shall be maintained from
Bull Valley Road.
10. Owners shall install and maintain a sign at the western terminus of
"Brookwood Drive", as depicted on the preliminary plat, indicating that this road will be
extended to the west to connect with the adjacent development.
11. Owners and City agree that a provision requiring the use of the City of
McHenry's approved waste hauler, and participation in the City's refuse and recycling
program shall be included in the Declaration of Protective Covenants, as required under this
Agreement.
12. Owners shall be permitted to construct one hundred twenty (120) units
on the Property, subject to engineering approval, and each unit shall have a two -car garage.
13. Notwithstanding the City's Subdivision Ordinance, the City agrees that
the Owners may develop the Property in phases and shall be under no obligation to
construct or dedicate any subdivision roads, parklands, sewer and water improvements, or
dedicate any subdivision easements to the City or County until a final plat of subdivision
encompassing the subject area in which the roads, dedications, or improvements are
located has been approved by the Corporate Authorities. Upon such approval, roads,
sewer and water improvements and dedications included in the final plat shall be
constructed by the Owners, their successors, grantees or assigns as hereinafter provided.
14. The City agrees that the Owners shall be under no obligation to extend
the existing municipal sewer and water mains from their present termini to serve the
Property until a final plat of subdivision has been approved by the Corporate Authorities.
Upon such approval, Owners agree to extend the existing municipal water main and
sanitary sewer line from their present termini to serve that portion of the development of the
Property encompassed by said plat.
15. The City agrees to cooperate in the procurement of the necessary
permits from the appropriate governmental bodies to allow one (1) access point to Bull
Valley Road for the development proposed on the Property, as well as for all required
permits from the Illinois or U.S. EPA and Army Corps of Engineers, IDNR, or other
regulatory agencies.
16. The City agrees to approve final plats of subdivision for Kresswood
Trails that are in conformance with the City's Subdivision Ordinance, and with the
preliminary plat approved concurrent with this agreement.
J. Protective Covenants.
1. Owners shall, not later than the time it presents its first final plat of
subdivision to the City for review and approval, execute and deliver to the City a document
entitled Declaration of Protective Covenants for the Kresswood Trails Townhomes
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containing restrictions and other provisions necessary for the subdivision to conform to the
terms of this Agreement.
2. After final approval, execution and certification of its first final plat of
subdivision by the City, the Owner shall promptly cause the Declaration to be properly
recorded with the McHenry County Recorder of Deeds.
VII1. 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 shall unless otherwise excepted
herein, be effective as applied to the Property so long as such amendments or modifications
are non-discriminatory in their application and effect throughout the City (excepting those
developments in the City having annexation agreements - past, present, or future -
providing otherwise).
B. Less Restrictive Requirements.
If, during the term of this Agreement, except as otherwise specifically agreed
upon in this Agreement, any existing, amended, modified or new ordinances, codes or
regulations affecting the zoning, subdivision development, construction of improvements,
buildings or appurtenances, or any other development of any kind or character upon the
Property, are amended or modified in a manner to impose less restrictive requirements on
development of, or construction upon, properties in similarly zoned or developed parcels
within the City, then the benefit of such less restrictive requirements shall inure to the
benefit of the 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).
IX. OBLIGATIONS
A. 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 be joint and several obligations of the Owners and constitute
covenants running with the land and such monetary obligations shall also be liens upon the
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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
townhome constructed hereon prior to the filing of a 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.
B. 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 subdivided or unimproved property for which an
acceptable substitute letter of credit 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.
C. 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.
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 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.
`K3
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
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 form 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.
XII. 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.
XIII. 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 and refuse issuance of further building permits 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 costs and expenses incurred by the City, 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
14
appropriate security is not deposited, withhold approval of plat of subdivision until the
appropriate security is delivered. City may use 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
Copy to: City Attorney David W. McArdle
Zukowski, Rogers, Flood & McArdle
50 Virginia Street
Crystal Lake, IL 60014
Owners: PARKWAY BANK AND TRUST COMPANY, not
individually, but as Trustee under Trust Agreement
dated October 7, 1993, and known as Trust No. 10693
4800 N. Harlem Road
Harwood Heights, IL 60641
LEWIS PACINI and LOIS PACINI
1278 W. Lake Street
Roselle, IL 60172
THE PACINI GROUP LLC, an Illinois Limited
Liability Company
1278 W. Lake Street
Roselle, IL 60172
Copy to: Daniel F. Curran
Curran Rausch Gummerson & Dunlop
8600 Route 14, Suite 201
Crystal Lake, IL 60012
XIV. 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.
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XV. AMENDMENT
This Agreement may only be amended by written instrument executed by all parties
hereto. 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 of the parties hereunder or their assigns as to the balance of the
Property not included in the afore described 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.
XVI. 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.
PARKWAY BANK AND TRUST
COMPANY, not individually, but as Trustee
under Trust Agreement dated October 7, 1993,
and known as Trust No. 10693
By: G
Na Priit" n tans"• sw
Its; resident Trust bfffew
THE PACINI GROUP LLC, an Illinois
Limited L• ity Cn pa y
By:
Name/Print: `
Its: M A*J A-4 w4- M
This Agreement is signed by Parkway Bank & Trust Co.. no
di invidually but solely as Trustee under a certain Trust Agreement
kn ,.-n as Trust Arc --- IW3--- Said Trust Agreement is hereby
made a rart hsrecf a^d any claims cgainst said Trustee which
rr; resu't from ttie of It s shell be payal:1e
or.i•r cut cf cny trust prcperty which mrty be ; nli ,h;reunder, and
T ur c sh ,1 not be per: or•c
noni:,r liable fcr the perfermauce of
oy cf the terms and conditions s oncf this agreem=_nt or for the
va;_;:_ty or condrticn of the talc of scid property or for any
agreement with respect thereto. Any and all personal liability of 16
Parkway Bank and Trust Co„ is hereby expressly waived by the
parties hereto and their respective successors and maslgue.
CITY OF McHENRY
By .
A�I'OR
Attess :__,- , 1, z- 2
CITY CLERK
Le Is Pacini
Lois Pacini
PARKWAY SANK & TRUST COMPANY IS EXECUTING THIS
COCL'tr/r�'T LELY;P1IT'S CAPACITYASLANDTRUSTEEWIT!�
THE Ali-, :r i; 'N AND DIRECTION OF IT'S EE:�EFIC! Rv
AND HAS NO PE,<SCNAL KNOWLEDGE OF ANY OF ItIt
FACTS OR STATEMENTS CONTAINED HEREIN NOR TI4E ABiL-
ITYTO PERFORMANY OFTHEACTSASSOCLATEDTHEREWWL
EXHIBIT A
Part of the Northwest Quarter of Government Lot 1 of Section 3, Township 44 North, Range
8, East of the Third Principal Meridian, being described as follows: Beginning at the
intersection of the south line of the Northwest Quarter of Government Lot 1 with the
Westerly right-of-way line of the Chicago and Northwestern Railway Company; thence
South 89 degrees 09 minutes 06 seconds West along the south line of said Northwest
Quarter, 1115.12 feet; thence North 0 degrees 50 minutes 44 seconds West, 666.60 feet
to the north line of the South 10 chains and 10 links of said Northwest Quarter; thence
North 89 degrees 09 minutes 16 seconds East along said north line, 1499.30 feet to the
Westerly right-of-way line of the Chicago and Northwestern Railway Company; thence
South 29 degrees 07 minutes 01 seconds West along said Westerly right-of-way line,
769.24 feet to the place of beginning, in McHenry County, Illinois.
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