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HomeMy WebLinkAboutOrdinances - ORD-00-966 - 07/05/2000 - AUTHORIZE ANNEX AGRMT DIEDRICH PROPERTY GERSTAD BLORDINANCE NO. ORD-00-966 AN ORDINANCE AUTHORIZING THE EXECUTION OF AN ANNEXATION AGREEMENT WITH FIRST MIDWEST BANK TRUST NO. 13255 AND GERSTAD BUILDERS, INC., FOR A 100 ACRE PROPERTY LOCATED ON THE NORTH SIDE OF LINCOLN ROAD AND THE WEST SIDE OF CHAPEL HILL ROAD, IN MCHENRY COUNTY, ILLINOIS (DIEDRICH PROPERTY) WHEREAS, First Midwest Bank, N.A., successor in interest to McHenry State Bank, not individually but as trustee under a trust agreement dated December 23, 1997, and known as Trust No. 13255 is the legal owner of record of the real estate hereinafter described, and Gerstad Builders, Inc. is the sole beneficiary of Trust No. 13255; 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 before the Corporate Authorities of the City of McHenry; and WHEREAS, the Corporate Authorities of the City of McHenry have held the public hearing as required by law and have found that entry into said Annexation Agreement is in the best interest of the City. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF MCHENRY, MCHENRY COUNTY, ILLINOIS AS FOLLOWS: SECTION 1: The annexation agreement, bearing the date of TTTT.y 5 1 2000, between the City of McHenry, a Municipal Corporation in the State of Illinois, First Midwest Bank Trust No. 13255, and Gerstad Builders, Inc., record owners, be and the same is hereby approved. A complete and accurate copy of said Annexation Agreement, labeled "Diedrich Property Annexation Agreement", is attached to this ordinance and incorporated herein by reference. 1 SECTION 2: The Mayor and City Clerk are hereby authorized to affix their signatures as Mayor and City Clerk to said Annexation Agreement for the uses and purposes therein set forth. SECTION 3: All Ordinance or parts thereof in conflict with the terms and provisions hereof are hereby repealed to the extent of such conflict. SECTION 4: This Ordinance shall be published in pamphlet form by and under the authority of the corporate authorities of the City of McHenry, McHenry County, Illinois. 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 5TH DAY OF JULY AYS: NAYS: ABSTAINED: ABSENT: NOT VOTING: APPROVED THIS ATTEST: 2000 BOLGER, GLAB, MURGATROYD, BAIRD, CUDA. NONE. NONE. DAY OF JULY 60,JWMI 71 .4 WW , 05, _ j MWIA M- �WA K "O� 2000 2 ,6 - , -V July 25,2000 (8-58AM) HAMCHENMannexagt finb.wpd ANNEXATION AGREEMENT THIS AGREEMENT made and entered into this 5 - th day of July 3 2000, by and between the CITY OF McHENRY ("City"), a municipal corporation, in the County of McHenry, State of Illinois, and FIRST NUDWEST TRUST CONWANY, NOT fNDIVIDUALLY BUT AS TRUSTEE UNDER A TRUST AGREEMENT DATED DECEMBER 23,1997, AND KNOWN AS TRUST NO. 13255 ("Trust"), and GERSTAD BUILDERS, INC. ("Beneficiary"). The Trust and Beneficiary shall hereinafter collectively be referred to as "Owners." RECITALS 1. The Trust holds fee simple title to the parcel of real estate legally described on the attached "Exhibit N' ("Property"). Beneficiary is the holder of 100% of the beneficial interest in the Trust. 2. 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, wh.ich Petition has been filed in accordance with 65 ILCS 5/7-1-8 and the ordinances of the City. 3. The Property is irregularly shaped and composed of approximately 100 acres and is located on the north side of Lincoln Road and the west side of Chapel Hill Road. The Lincoln Road frontage is approximately 680 feet and commences approximately 2630 feet west of the intersection of Chapel Hill Road and Lincoln Road. The frontage on Chapel Hill Road is composed of approximately 82.43 feet and commences approximately 1265 feet north of the intersection of Chapel Hill Road and Lincoln Road. 4. The Property is presently vacant, unimproved, and has no electors residing thereon and is presently zoned "R- I " Residential and "E- I " Estate, pursuant to the McHenry County Zoning Ordinance. 5. The Property constitutes territory, which may be annexed to the City as provided for in 65 ILCS 5/7-1 - 1, et seq. 6. The owners and developer 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. 7. 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. 8. The City does not finmish fire protection or library services. Lincoln Road abuts portions of the subject Property and is currently under the McHenry Township jurisdiction and notice, pursuant to 65 ILCS 7- 1 - 1, has been provided. 9. Prior to the date of this Agreement, public hearings were held upon proper notice pursuant to the City's zoning ordinance, as are necessary for the City to grant "RS-2" Medium Density Single -Family Residential District zoning for the Property, and upon annexation of the Property into the City, no further action need be taken by the Owner to cause said Property to be rezoned as such once the Property is annexed into the City. NOW THEREFORE, in consideration of the covenants and conditions herein contained, IT IS HEREBY AGREED AS FOLLOWS: 10. ANNEXATION Upon execution of this Agreement, the City shall enact a proper ordinance annexing the Property legally described in Exhibits 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 classiEed as provided in this Agreement by the adoption of ordinances by the City immediately following execution of this Agreement. 11. ZONTNG Immediately upon the annexation of the Property, the City shall adopt an ordinance amending the provisions of the McHenry Zoning Ordinance to provide that the Property shall be classified in the "RS-2" Medium -Density Single Family Residential District. 12. LIMITED CONCEPT PLAN I . Owners have submitted a Concept Plan attached hereto as Exhibit B. The City and Owners agree that only limited representations on the Concept Plan will be binding on the parties, and to the extent of these limited representations, the City approves the Concept Plan, with regard to future development of the Property. Those representations only include the following: I . Locations, but not the dimensions, of storrn water detention ponds. The City shall not be limited to imposing the size or the number of storm water detention ponds depicted on the Concept Plan, and the same shall be constructed in accordance with the directions of the City Engineer. 2. The donated park land may consist of I or 2 locations on the Subject Property, as determined in the sole discretion of the City Council. However, in no event shall the total park land dedicated be less than 2 acres. In the event that some or all of the park land is located 2 on the west side of the Subject Property, the park lot shall be located where the City's existing test well site is located. 3. Location of proposed street accessing Stanley Archacki's property to the east, between lot numbers 4 and 5. 4. Location and description of landscape screening abutting Garsky's Subdivision. The screening shall have a continuous opacity of 50% when viewed horizontally from grade level to a height of six feet (6). Existing vegetation on the Property along with new plant material may be used to meet this standard. 5. The maximum density of residential lots permitted to be developed of 191 over the entire 100 acres of the Property. 2. No other representations on the Concept Plan shall be binding on the City in the future, and in all other respects, the Property shall be developed in compliance with, and the Owners shall follow, the procedures in the City's zoning, subdivision and building ordinances, as amended from time to time. 13. PUBLIC IMPROVEMENT REIMBURSEMENT I . In the event Owners construct additional, expanded or oversized municipal sanitary sewer mains and/or 0 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: I . The properties which will benefit directly or indirectly from the construction and/or installation of such Municipal Improvements ("Benefited Property") will be determined by the City Engineer at the time such Municipal Improvements are constructed. The Benefited 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 Benefited Property as a pre -condition to said Owners being granted a permit to connect the Benefited Property to any of the Municipal Improvements. The total cost of improvements win be spread over the Benefited Property pro rata. The total sum subject to reimbursement to Owners, as well as the pro rata sum to be collected from the Benefited Property owners, shall be determined by the City's consulting engineer taking into account the following factors: 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 shaH be based upon the ratio of acreage that the particular Benefited Property bears to the acreage of the entire Benefited Property. Interest shall be collected from the commencement date of this reimbursement provision, calculated annually at nine percent (9%) per annurn, compounded, not to exceed ten (10) years from the date of this Agreement. 3 Any reimbursement provision shall have a commencement date when the public improvements which are the subject of the reimbursement agreement are placed into 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 Benefited 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 Benefited Property owners but shall not be Hable 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 Benefited Property owners. 5. City shall file this Agreement with the McHenry County Recorder of Deeds and notify the owners of the Benefited Property of the terms of this reimbursement provision. 6. 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. 7. The Adams Property or School District 15 Property as referenced in paragraph V below shall not be included within any recapture area for potable water or sanitary sewer improvements servicing the Property. 2. The City shall cooperate with Owners in obtaining such pernits 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. 3. 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 4 cost, witness fees, litigation expenses and judgments in the acquisition of any easement. Such costs and expenses of acquisition by erriinent domain shall be includable in the costs and expenses that are subject to recapture by Owners from Benefiting Parties. 14. SEWER AND WATER I . 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 shaU be developed with the municipal sewer and water. The City does not guarantee the availability of sewer and 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 shaU be allowed to connect to such in accordance with the applicable City regulations then in effect at locations determined by the City Engineer. 2. Except as otherwise specifically provided in this Agreement, all required sanitary sewer and water main connection charges and capital development fees shafl be paid in accordance with ordinances in effect at time of connection. 3. In the event that Owners connect the water mains servicing the Property into water mains previously constructed and instafled by Richard Adams, Owners shall be obligated to reimburse Richard Adams, pro rata in accordance with any applicable water reimbursement or recapture agreement. 4. The parties acknowledge that the development of the Property by the Owners will cause the existing sanitary sewer lift station capacity on River Road and Boone Lagoon to be reduced. To compensate the City for this impact, upon issuance of the 75 1h buflding permit relating to the Property, Owners shaU pay the lump sum of Eleven Thousand One Hundred Twenty -Five Mars ($11,125) to the City to replace the lift station capacity required to service the Property when fuUy developed in the future. This payment is based upon the maximum housing density pern-dtted in this Agreement of 191 residential lots. 5. The Property shaU be serviced with potable water by connection to the existing water main previously constructed by Richard Adams, located on the south side of Lincoln Road at its terminus, and no other off -site water main extensions shaff be required to be installed by the Owners except as required by the City's Subdivision Control Ordinance. 6. The Owners shaU extend the existing City sanitary sewer main from its present terminus located approximately at the intersection of Lincoln Road and Maryville Road, northeasterly along Lincoln Road to the Property and in accordance with the Subdivision Control Ordinance. 5 15. STORM WATER The exact size, release rate, dimensions and construction of the storm water detention pond(s) servicing the Property shall be approved by the City prior to final subdivision plat approval of the first phase of development of the Property. The release rate of each detention pond shall not exceed .15 cfs per acre. Such detention 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. At a minimum, Owners shall design the storm water detention basin outlet structure(s) and piping to convey all flows released from the basin(s) during a 100-year frequency event by underground storm sewer pipes to discharge points acceptable to the City. Such flows shall not be conveyed by means of open ditches or swales unless authorized in writing by the City. 16. DEVELOPMENT IN PHASES - SECURITY The City shall permit the Owners to subdivide the Property with one (1) preliminary subdivision plat and no more than five (5) final plats of subdivision or "phases." To secure Owners' completion of on -site and off -site public improvements, including those referenced in paragraphs V(C) and VII 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 each final subdivision plat approval, fide 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 three (3) reductions in the letters of credit filed with the City and the last reduction, shall not leave a balance securing public improvements in the an amount less than $50,000.00. 17. OFF -SITE AND ON -SITE IMPROVEMENTS — BUILDI-NG 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 where a minimum 20'-wide gravel road base does not exist within 200'of said lot. 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. 18. SCHEDULE OF DEVELOPMENT Owners shall submit to the City a schedule of development encompassing the Property on a serrd-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 twenty (120) days following annexation of me 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. 19. 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: 1. Annexation Fees. Owners shall pay to the City annexation fees in addition to fees previously referred to in this Agreement as follows: I . A lump sum of $100,000 shall be paid to the City within sixty (60) days following City Council execution of the annexation of the Property to the City. 2. The sum of $530 per residential unit shall be paid to the City upon issuance of each building permit relating to the residential lots. 3. The sum of $1,683 per residential 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 (36") 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 ftinds 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 Owners' first payment increase beginning May 1, 2001, 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 annually since December 31, 2000, 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. 7 5. Owners hereby release the City from any liability or damage to Owners and waive any right to chaUenge, by lawsuit or otherwise, the legality or vafidity 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. 2. Public Land. I . The City agrees to provide reconveyances of any Public Land dedicated by Owners to the extent required to Oow Owners to correct, if necessary, the legal description of such conveyance in order to conform to the requirements of final engineering and the Owners shafl convey the Pubfic Land back to the City with the corrected legal description. 2. Upon approval of the Owners' applicable final plat of subdivision, Owners shaH convey to the City, by fee simple title, the recreational park lot(s) on the Property as designated on Exhibit B. Within ninety (90) days of completion of aH Pubfic Improvements in their respective final plat, the Owners shaH, at their expense, develop the park(s) in accordance with a development plan submitted by the Owners and approved by the City Councfl. It sball be the responsibility of the Owners to supply water for turf and landscape development for a period of sixty (60) days after instaRation. Title to the park(s) shal-1 be conveyed free and clear of all hens and encumbrances and any easements, covenants or restrictions that would limit or prohibit the use of such property as public land. Evidence as to the condition of title shaU be provided in the forrn of a title commitment acceptable to the City at the time of the conveyance. 3. Owners hereby release the City from any and afl liability or damage to Owners and waive any right to challenge, by lawsuit or otherwise, the vandity or legality of the Public Land dedication in this paragraph. 3. Cash Donations. I . During the term of this Agreement, Owners shall be obfigated to pay to the City certain cash donations per single family dwel1ing unit developed on the Property. These cash donations shaH be paid upon issuance at the time application is made to the City for the issuance of each residential building permit and calculated in accordance with this paragraph. During the term of this Agreement, the Owners shal-1 be required to pay the cash donations referred to herein. The cash donations payable by the Owners to the City shaH be calculated as fol-lows: Fire Schools Park Libra District Total/Unit 2 Bedroom or less $2,071 $1,072 $250 $250 $3,643 3 Bedroom $4,371 $1,552 $250 $250 $6,423 4 Bedroom $5,082 $1,991 $250 $250 $7,573 5 Bedroom or more $4,797 $1,949 $250 $250 $7,246 The cash donations referred to in this chart shall collectively be referenced as "Minimum Cash Contribution Amounts." 2. At the end of each one-year period and beginning on May 1, 2001, 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, 2000, 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. 3. In the event the Minimum Cash Contribution Amount, as calculated above, is less than the cash contribution amounts set forth in the City's cash contribution ordinance for schools, libraries and fire districts, as amended from time to time, an amount equal to the amounts specified in the City's cash contribution ordinance shall be paid, rather than the Minimum Cash Contribution Amount provided in this Agreement. 4. 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 reftind 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. 5. 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. 4. Donation Distinpuished from Fees. Other than the donations specified in the foregoing paragraphs, during the tenn 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 goverriniental body. Building pen -nit fees, tap -on fees and other sirnilar fees (which are charged for 9 specific ser-vices 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. 20. DEVELOPMENT ISSUES Roads. I . 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. 2. 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 conunitment acceptable to the City at the time of the conveyance. 3. No lots of the Property shall have direct access to Lincoln Road or Chapel Hill Road. 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. Owners agree that, they will provide a roadway connection to Stanley Archacki's property to the east of the Property. 6. The City shall not require Owners to submit a traffic study relative to development of the Property. 7. Simultaneously with the installation of any subdivision streets that intersect Lincoln Road or Chapel Hill Road, Owners shall construct left and right tum lanes within the right-of- ways of Lincoln Road or Chapel Hill Road. In the event dedication of additional right-of-way adjacent to Lincoln Road or Chapel Hill Road is deemed necessary by the City, upon written request by the City, Owners shall provide such dedication to the City at no charge. Upon request by the Owners, the City shall cooperate in using its eminent domain powers if necessary to acquire the necessary r-ight-of-way referenced in this Paragraph. The obligation of the City hereunder is contingent upon reimbursement by Owners of all costs incurred by the City, including reasonable attorneys' fees and expert witness fees relating to any eminent domain proceedings. 8. The parties agree that, due to the development of the Property, stop lights at the intersection of Chapel Hill Road and Lincoln Road may be wan -anted in the future. It shall be the obligation of the Owners to contribute toward the payment of these improvements. In order to 10 secure the Owners' obligations hereunder, Owners agree to deposit the amount of $5,500 with the City to be used by the City for the construction of these stop light improvements. The sum of $5,500 is based upon the maximum density permitted in this Agreement of 191 residential lots. The City will retain these funds untiI the funds are either used for the stop light improvements or this Agreement expires, whichever occurs first. In the event that this Agreement expires first, the City will return the funds to the Owners, plus interest at an average rate received by the City during the term of the Agreement. 2. Underground Utilities. Owners shall install all new electricity, gas, telephone lines and any other utility or cable devices, lines or conduits underground. This shall include any aforementioned utilities that must be replaced due to the development of this Property, but shall not include existing utilities not being disturbed. 3. Easements. Upon request by the City, Owners shall execute such easements as are necessary to effectuate the terms and conditions of th�is Agreement and as may be necessary in connection with the completing of the final plat of subdivision of the Property. The forrn 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. 4. 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. 5. Wetland Protection. Owners shall not disturb any areas of the property designated as wetlands by any governmental agency without the consent of the appropriate goverm-nental agency. I I 6. Model Home Construction, Sales Offices, Trailers, Advertisinp— Sipns and Construction. I . 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, upon the sale of all lots on the final plat, the sales office shall be removed from the model and abandoned by the Owners. Sales and construction trailers shall be allowed on the Property as approved by the City Council. 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. Upon payment of the required permit fees to the City, temporary marketing signs shall be permitted to the Owners for participation in the Festival of Homes sponsored by the Chicago Tribune. These temporary marketing signs shall not exceed four (4) feet by nine (9) feet and are posted for five (5) consecutive weeks at a time, not more than four (4) times per year. Owners shall be permitted to construct one entrance sign at each entrance on Lincoln and Chapel Hill Roads. Provided, however, these signs shall not be erected until the first final plat of subdivision is approved by the City. These entrance signs 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 lighting and design of the entrance signs shall be subject to City approval. These entrance signs 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 Community Development Department and compliance with building codes of the City. 4. Identical models or models of similar design with identical front elevations may be erected no more often than every second 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 fines. 5. Construction traders used to build homes shall be allowed in each phase of development. Provided, however, upon the sale of 75% of the lots in each phase, all construction 12 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. 21. COMPLIANCE AND AMENDMENTS I . 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 here4 be effective as applied to the Property so long as such amendments or modifications are non-discrin-dnatory in their application and effect throughout the City (excepting those developments in the City having annexation agreements - past, present, or future - providing otherwise). 2. 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). 22. OBLIGATIONS 1. 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 hens 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 a hen, 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. 13 2. 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, firnis 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. 3. 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 appUcable 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. 23. PARTIAL INVALIDITY OF AGREEMENT 1. If any provision of this Agreement (except those provisions relating to the requested rezoning of the Property identi-fied 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 tenns, conditions or provisions of this Agreement and, to that end, any terms, conditions and provisions of this Agreement are declared to be severable. 2. if, for any reason during the terms of this Agreement, any approval or pern-lission 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. 24. 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 14 developers, lessees and successor lessees, and upon any successor municipal authority of the City and successor municipalities for a period of twenty (20) years form the date of the City Council's execution of this Agreement. Provided, however, in the event that this Agreement is not fully executed by all required parties within thirty (30) days of approval by the City Council, it shall be deemed void without any further action by any party hereto. 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 twenty (20) year period. 25. 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-conforn-dng use. 26. NOTICES AND REMEDIES 1. 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 pen -nits in the event the City deems the terms of this Agreement to have ben violated. 2. Before any failure of any party to this Agreement to perform its obligations under tl-ds 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. 3. 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, including, but not limited to, attorneys' fees and 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 remedies available to it to collect such fees and charges as are due. 4. Notice shall be provided at the following addresses: City: City of McHenry 333 South Green Street McHenry, IL 60050 Attn: City Clerk 15 Copy to: City Attorney David W. McArdle Zukowski, Rogers, Flood & McArdle 50 Virginia Street Crystal Lake, IL 60014 Owners: Gerstad Builders, Inc. 43 1 O-G Crystal Lake Road McHenry, IL 60050 Copy to: Samuel J. Diamond Diamond, Lesueur & Roth Assoc. 3431 W. Elm Street McHenry, IL 60050 27. 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 obfigations of the Owners shall continue in full force and effect. 28. 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. 29. 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 1 91h Judicial Circuit, McHenry 16 County, and no action shall be brought by the parties hereto, their successors or assigns, in any Federal Court. FIRST NUDWEST TRUST CONTANY, NOT INDIVIDUALLY, BUT AS TRUSTEE UNDER A TRUST AGREEMENT DATED DECEMBER 23,1997, AND KNOWN AS CITY OF McHENRY TRUST NO. 13255 SEE TRUSTEES RIDER ATTACHED HERETO AN-0 N�Izj� ft HF-E-OF By: Name/Print: Its GERSTAD/;�UILDERS, INC. Lo ame/Print: Steven J. Cuda Its: — M"or ATTEST: Name/Print: Roger Gerstad Name/Print: Pamela J. Althoff Its: President Its: — City Clerk 17 RIDER ATTACHED AND MADE A PART OF ANNEXATION AGREEMENT DATED July 5, 2000 This instrument is executed by FIRST MIDWEST TRUST COMPANY, National Association, not personally but solely as Trustee under trust No. 13255, in the exercise of the power and authority conferred upon and vested in it as such Trustee. All the terms, provisions, stipulations, covenants and conditions to be performed by FIRST MIDWEST TRUST COMPANY, National Association, are undertaken by it solely as Trustee, as aforesaid, and not individually, and all statements herein made are made on information and belief and are to be construed accordingly, and no personal liability shall be asserted or be enforceable against FIRST MIDWEST TRUST COMPANY, National Association, by reason of any of the terms, provisions, stipulations, covenants and/or statements contained in this instrument. In witness whereof, the undersigned corporation, not personally but as trustee as aforesaid, has caused these presents to be signed by its Trust Assistant and its corporate seal to be hereunto affixed and attested by its Trust Assistant this July 25, 2000. First Midwest Trust Company, N. A. as Trustee as aforesaid and not personally. By: Attest: STATE OF ILLINOIS, Ss: COUNTY OF MCHENRY 1, the Undersigned, a Notary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that Sharon L. Hettermann, Trust Assistant of FIRST MIDWEST TRUST COMPANY, National Association, and Nancy Majercik, the attesting Trust Assistant thereof, personally known to me to be the same persons whose names are subscribed to the foregoing instrument as such Trust Assistant and the attesting Trust Assistant respectively, appeared before me this day in person and acknowledged that they signed and delivered the said instrument as their own free and voluntary act, and as the free and voluntary act of said Trust Company, for the uses and purposes therein set forth; and the said attesting Trust Assistant did also then and there acknowledge that he as custodian of the corporate seal of said Trust Company, did affix the said corporate seal of said Trust Company instrument as his own free and voluntary act, and as the free and voluntary act of said Trust Company for the uses and purposes therein set forth. r my h d and Notarial Seal this July 25, 2000. "OFFIC 6 PRISCILLA EBEITZ 3 N otary P t of Fotary Public, State of Illinois My Commission Expires 06/10/04 NOTARY PUBLIC J;;�� ---------------- 0 x m z Cf) I 0 Fn -n X K -Tj A:,�, I\ y M Z ol C) fS, CA 0 -lu 4L --7—==T=! JULI, ROAI)l oi�