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HomeMy WebLinkAboutOrdinances - ORD-03-1174 - 08/04/2003 - AUTHORIZE ANNEX AGMT POMERENING/PRDC PROPERTYORDINANCE NO.ORD-03-1174 AN ORDINANCE AUTHORIZING THE EXECUTION OF AN ANNEXATION AGREEMENT WITH EARL POMRENING AND PROFESSIONAL REALTY DEVELOPMENT CORPORATION FOR A 10.11 ACRE PROPERTY LOCATED ON THE NORTH SIDE OF BULL VALLEY ROAD AND EAST OF CRYSTAL LAKE ROAD, IN MCHENRY COUNTY, ILLINOIS WHEREAS, Earl Pomrening is the legal owner of record and Professional Realty Development Corporation is the contract purchaser of the real estate located on the north side of Bull Valley Road, east of Crystal Lake Road, in McHenry County, Illinois; and WHEREAS, notice of a 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 between the City Pomrening, record purchaser be and The Annexation Agreement, bearing the date of August 4, 2003, of McHenry, a Municipal Corporation in the State of Illinois, Earl owner and Professional Realty Development Corporation, contract the same is hereby approved. A complete and accurate copy of said annexation aareement, iaoeiea roxcron rc�age H ordinance and incorporated herein by reference. 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 SECTION 3: All Ordinance or parts thereof in conflict with the terms and provisions hereof are hereby repealed to the extent of such conflict.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 4TH DAY OF AUGUST 2003 AYES: BOLGER, GLAB, LOW, MURGATROYD, WIMMER, PETERSON NAYS: NONE NONE ABSTAINED: ABSENT: CONDON NOT VOTING: NONE APPROVED THIS 4TH DAY OF AUGUST , 2003 ATTEST: CIT ERK 2 FOXCROFT RIDGE ANNEXATION AGREEMENT This Agreement made and entered into this 110' day of August, 2003 between Earl Pomrening, (hereinafter referred to as "OWNER"), Professional Realty Development Corporation, (hereinafter referred to as "DEVELOPER"), its successors or assigns, and the City of McHenry, a Municipal Corporation, in the County of McHenry, State of Illinois, (hereinafter referred to as "CITY"). RECITALS A. The OWNER is the record titleholder to the real estate legally described on "Exhibit A" (Parcel 1, Parcel 2 and Parcel 3) attached hereto and made a part of this AgreemenT6y reference, hereinafter referred to as the "SUBJECT PROPERTY". B. The OWNER and DEVELOPER filed with the City Clerk a Petition for Annexation of the SUBJECT 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 SUBJECT PROPERTY is located on the north side of Bull Valley Road, and consists of approximately 10.11 acres. D. The SUBJECT PROPERTY is currently vacant, has no electors residing thereon, and is zoned A-1, Agricultural pursuant to the McHenry County Zoning Ordinance. E. The SUBJECT PROPERTY consists of one (1) contiguous tract of land, which is not within the corporate boundaries of any municipality or subject to an Annexation Agreement with any other municipality and is presently contiguous to the corporate boundaries of the CITY. F. The OWNER desires to annex the SUBJECT PROPERTY to the CITY in accordance with the terms of this Agreement. G. The CITY has determined that the annexation of the SUBJECT PROPERTY in accordance with the terms ' of this Agreement is in the best interest of the CITY, will promote sound planning and growth of the CITY, and otherwise enhance and promote the general welfare of the CITY and its residents. H. This Agreement is made pursuant to and in accordance with the provisions of 65 ILCS 5/11- 15.1-1, et seq., of the Illinois Municipal Code. I. Notice to the Fire Protection District, Public Library District or Township of the annexation of the SUBJECT PROPERTY is not required. J. Prior to the date of this Agreement, all public hearings were held upon proper notice and publication as required for the CITY to effect the terms of this Agreement. NOW, THEREFORE, for and in consideration of their respective agreements set out herein, the CITY and OWNER hereby agree as follows: 1. Annexation. Upon execution of this Agreement, as allowable by law, the CITY shall enact an ordinance annexing the SUBJECT PROPERTY. A copy of said ordinance, together with an accurate plat of the SUBJECT PROPERTY, shall be filed with the County Clerk of McHenry County and recorded with the Recorder of Deeds of McHenry County. This Agreement in its entirety, together with the aforesaid Petition for Annexation, shall be null, void and of no force and effect unless the SUBJECT PROPERY is zoned and classified as provided in this Agreement by the adoption of ordinances by the CITY immediately following the execution of this Agreement. 2. Zoning. Immediately following the annexation of the SUBJECT PROPERTY, the CITY shall adopt an ordinance granting a Zoning Map Amendment for the SUBJECT PROPERY to RM-2, High -Density Multi -Family Residential, to that part of the SUBJECT PROPERTY legally described as Parcel 1; to 0-1, Local Office to that part of the SUBJECT PROPERTY legally described as Parcel 2 and 0-2, Office Park District to that part of the SUBJECT PROPERTY legally described as Parcel 3. 3. Variances. Immediately following the annexation of the SUBJECT PROPERTY, the CITY shall adopt an ordinance approving certain variances with regards to the development of the SUBJECT PROPERTY, as follows: a. Variance from the RM-2 requirements to allow the proposed building on Parcel 1 to be no more than forty-five (45) feet in height. b. Variance from the RM-2 lot area/dwelling unit requirements to allow no more than two hundred thirty (230) residents on Parcel 1. c. Variance from the residential parking requirements to allow no less than one hundred twenty-six (126) parking spaces on Parcel 1. d. Variance from the frontage requirements to allow frontage on a private road for Parcel 1. e. Variance from the 0-1 district lot width requirements to allow no less than a one hundred thirty-nine foot (139) lot width for Parcel 2. f. Variance from Section 7-19 of the CITY'S Municipal Code to allow less than the required 75% of all exterior wall materials to be faced with brick, brick or masonry veneers, natural or case stone veneers or other masonry materials. The DEVELOPER shall submit the final proposed building elevations at the time the building permit application is submitted. The CITY shall work in conjunction with the DEVELOPER to ensure that the intent of the provision heretofore referenced has been met. All of the variances are subject to the conditions that the development of the SUBJECT PROPERTY complies with the provisions of this Agreement and all applicable City ordinances, including the CITY'S Zoning Ordinance and Building Codes excluding the provisions stated herein. 4. Conditional Use Permit. Immediately following the annexation of the SUBJECT PROPERTY, the CITY shall adopt an ordinance approving a conditional use permit for an assisted/congregate living facility on Parcel 1 of the SUBJECT PROPERTY. 5. Preliminary Subdivision Plat. Immediately following the annexation of the SUBJECT PROPERTY, the CITY shall approve the preliminary plat of subdivision, entitled "PRELIMINARY PLAT — FOXCROFT RIDGE", prepared by Condon Consulting 2 Engineers dated May 9, 2003 and bearing a latest revision date of July 28, 2003, (hereinafter referred to as "PRELIMINARY PLAT"). A copy of said preliminary plat is attached hereto as "Exhibit B" and made a part of this Agreement. 6. Concept Plan. The development of Parcel 1, Senior Housing at Foxcroft Ridge, (hereinafter referred to as "SENIOR HOUSING AT FOXCROFT RIDGE") shall be in general conformance with the site plan prepared by Condon Consulting Engineers and the landscape plan prepared by Nierman Landscaping and Design Inc. both dated 5/9/03 with a latest revision date of 5/12/03 and the building elevations dated 5/9/03 as submitted, collectively ("SENIOR HOUSING AT FOXCROFT RIDGE SITE PLAN"), attached hereto as "Exhibit C" and made a part of this Agreement by reference. Development of Parcel 1 shall be limited to a two hundred one (201) unit senior age - restricted facility. Prior to the Final Plat of Subdivision being considered by the Planning and Zoning Commission, the SENIOR HOUSING AT FOXCROFT RIDGE SITE PLAN shall be revised to depict a right-hand turn/deceleration lane and a left-hand turn lane into the SUBJECT PROPERTY. The design and construction of said road improvements shall be determined by the McHenry County Highway Department, working in conjunction with the CITY. Said improvements shall be constructed prior the issuance of any occupancy permits on the SUBJECT PROPERTY. 7. Site Development. The development of said Parcels 1, 2 and 3 shall be in substantial conformance with final engineering plans approved by the CITY, upon issuance of all required permits. The additional parking spaces designated on the SENIOR HOUSING AT FOXCROFT RIDGE SITE PLAN as landbanked spaces shall be constructed only after determination by the CITY, in conjunction with the DEVELOPER its successors or assigns that said parking spaces are needed to accommodate the demands of the facility. 8. Assisted Living and Shared Housing Establishment Code. OWNER intends to comply fully with the Assisted Living and Shared Housing Establishment Code, as set forth in 77 Illinois Administrative Code Chapter 1295 (77 III. Adm. Code 295), effective December 1, 2001 as amended. The OWNER further agrees to furnish to the CITY a copy of the state licensure granted to the SUBJECT PROPERTY as it relates to the appropriate provisions of the Code. A copy of the application for said state licensure shall be furnished to the CITY prior to the issuance of a certificate of occupancy with respect to the SUBJECT PROPERTY. a) Design Guidelines. The appearance of the buildings on Parcels 2 and 3 shall be architecturally compatible and complementary with that of Parcel 1. Particular detail shall be placed upon the appearance and architectural characteristics of the front and rear facades of the buildings on Parcels 2 and 3 so as to provide aesthetically pleasing views from both elevations, that of which is complementary and compatible with the building on Parcel 1. Covenants recorded for the SUBJECT PROPERTY shall include provisions emulating the preceding statements of this paragraph, a recorded copy of which shall be submitted to the City. 9. Signage. Upon execution of this Agreement, and upon issuance of required sign permits, the DEVELOPER shall be permitted to install the following signs on the SUBJECT PROPERTY: 3 a) Temporary Signage. One (1) two-sided sign advertising the proposed development on the SUBJECT PROPERTY shall be allowed, not to exceed 64 square feet in area per side, and 12 feet in height. Said sign shall be permitted to stand until the development on Parcel 1 has reached 75% occupancy, not to exceed a length longer than six (6) years. Any other temporary signage on the SUBJECT PROPERTY shall be in conformance with CITY ordinances. b) Permanent Signage. OWNER shall be granted a Variance to install an off -site monument -style sign, to be placed within the boulevard entrance, off of Bull Valley Road, or within the Monument Easement as depicted on the Preliminary Plat. The size of said sign shall not exceed 48 square feet is size, and six feet in height. The CITY shall approve the final location of said sign. Said sign shall be landscaped around the perimeter with appropriate groundcover and miscellaneous plantings. 11. Tree Survey and Preservation Plan. OWNER shall obtain a tree removal permit prior to the removal of any trees on the SUBJECT PROPERTY. Any tree removal and replacement on the SUBJECT PROPERTY shall be in accordance with the CITY'S Tree Preservation Ordinance. A tree survey shall be submitted prior the issuance of a tree removal permit for the SUBJECT PROPERTY. 12. Site Access. Full access to the SUBJECT PROPERTY shall occur from Bull Valley Road, opposite the existing entrance to the Church of Holy Apostles. No other access to Bull Valley Road from any lot or parcel shall be permitted. 13. Cross Access Agreement. The OWNER agrees to provide a thirty (30) foot -wide easement for cross access, as depicted on the PRELIMINARY PLAT, to the CITY for a future road connection to the property to the west. The DEVELOPER shall improve said easement, to the western property line of the SUBJECT PROPERTY, when the SUBJECT PROPERTY is developed. Said easement shall be designated as such on the Final Plat of Subdivision for the SUBJECT PROPERTY and shall include such reasonable restrictions as agreed upon by the CITY and DEVELOPER. 14. Contribution for Future Traffic Signal at Ridgeview Drive. DEVELOPER agrees to pay the sum of $190,000 towards the installation of a future traffic signal at Bull Valley Road and Ridgeview Drive. a) Ten thousand dollars ($10,000) for said traffic signal shall be paid within two (2) years of execution of this Agreement or when the senior housing facility reaches twenty five (25%) percent occupancy, whichever occurs first. In the event a traffic signal is constructed at Bull Valley Road and Ridgeview Drive prior to either of the previous conditions being met, the OWNER shall contribute the monies within sixty (60) days of receiving written notice from the CITY. b) The sum of $105,000 shall be paid upon the issuance of a building permit for Phase 1. The remaining $75,000 shall be paid upon the issuance of a building permit for Phase 2 . 15. Sanitary Sewer and Water. a. The SUBJECT PROPERTY shall be developed with municipal sanitary sewer and water. OWNER will be allowed to extend the municipal water and sewer lines to service the SUBJECT PROPERTY, and the CITY will service the development with 4 water and sanitary sewer treatment facilities. Water and sanitary treatment plant and main capacity will be made available to the development on the same basis as it is made available to other developments. b. The CITY acknowledges that there is currently sanitary sewer treatment plant capacity available from the CITY to service the SUBJECT PROPERTY however; the CITY does not agree to reserve any capacity for the SUBJECT PROPERTY. No action of the CITY regarding application to the Illinois or U.S. Environmental Protection Agency for permission to construct sanitary sewer lines on any part of the SUBJECT PROPERTY shall be construed to constitute any representation, warranty, or reservation by the CITY to OWNER that municipal sanitary sewer treatment plant or sanitary sewer main capacity or municipal water will be available to service the SUBJECT PROPERTY when OWNER applies to the CITY for connection permits. c. The CITY shall exercise its power of eminent domain, if necessary, to assist OWNER in obtaining all necessary easements, not already in existence, to enable the installation of the aforesaid sanitary sewer and water improvements. OWNER shall pay all eminent domain costs and expenses incurred by the CITY, including but not limited to attorney's fees, title charges, appraisals, surveying cost, deposition cost, witness fees, litigation expenses and judgments in the acquisition of any easement. 16. Reimbursement Provision. Upon development of any portion of the SUBJECT PROPERTY, the CITY reserves the right to request OWNERS to construct additional, expanded or oversized municipal public improvements onsite which benefit not only the SUBJECT PROPERTY, but also other properties being or to be developed in the relevant service areas for such improvements. In the event OWNERS make such improvements, the following provisions shall apply and be included in a subsequent reimbursement agreement: a. The properties which may reasonably be expected to benefit directly or indirectly from the construction and installation of such additional onsite expanded or oversized improvements ("Benefited Property") will be determined by the CITY's Consulting Engineer., b. OWNERS shall be allowed reimbursement for expanded or oversized improvements as follows: 1. 100% for improvements made offsite of the SUBJECT PROPERTY; and 2. Proportionately on a per acreage basis for improvements made onsite of the SUBJECT PROPERTY. c. The CITY shall endeavor to collect a pro rata sum of money from the owners.of the Benefited Property upon connection. The total sum subject to reimbursement to the OWNER, as well as the pro rata sum to be collected from the Benefited Property owners shall be determined by the CITY's Consulting Engineer taking into account the following factors: construction and easement costs; professional fees; testing and analysis fees; and legal and administrative expenses. In addition, interest shall be collected from the commencement date of this reimbursement provision, calculated annually at one percent (1%) over the last July 1, five-year Treasury bill rate. The sum collected shall be paid to OWNERS after deduction of two percent (2%) for administrative charges due CITY. In the event that any State statute shall determine an interest rate other than set forth in this paragraph 16.c., the State Requirement shall prevail. d. Subject to a nonappealable final court order, directing CITY to act otherwise, the CITY shall not issue any connection permits until the Benefited Property owner pays the reimbursement charge set forth in this paragraph. e. The CITY will use its best effort to collect the cost provided herein from the Benefited Property owners but shall not be liable to OWNERS if the CITY is, for any reason, unable to collect said cost. The CITY's liability to reimburse OWNERS shall be limited to payment from funds actually collected from Benefited Property OWNERS. f. The CITY and OWNERS reserve the right to, at any time during the term of this Annexation Agreement, file the Reimbursement Agreement with the McHenry County Recorder of Deeds and notify the owners of the Benefited Property of the terms of this reimbursement provision. g. OWNERS shall reimburse and indemnify CITY for all costs, engineering and attorney's fees and liability incurred by the CITY in attempting to collect the reimbursement amount subject to this reimbursement provision. h. This reimbursement provision shall have a commencement date when the CITY Engineer issues a letter indicating substantial completion of the public improvements which are the subject of the Reimbursement Agreement and shall terminate upon the earlier of ten years thereafter or upon reimbursement by the benefited property owners of the charges referred to in this reimbursement provision. 17. Underground Utilities. The OWNER shall install all new electricity, gas, telephone lines and any other utility or cable devices, lines, or conduits necessary to service the development underground to the extent that said utilities are not already located underground at the SUBJECT PROPERTY. 18. Existing Recapture Agreements. OWNER acknowledges that SUBJECT PROPERTY will be subject to one (1) or more existing recapture agreements. OWNER agrees to pay the fair share of such recapture, as established in the agreement, prior to connection to the CITY'S sanitary sewer system or water systems. 19. Fees. Donations. and Contributions. OWNER acknowledges that the development of the SUBJECT PROPERTY will impact on parks, the library and fire protection districts and other public services within the CITY. To reduce the effects of this impact, and as a condition of this Agreement, OWNER shall be obligated to pay and/or donate, or cause to be donated to the CITY, or provide improvements for the benefit of the CITY as follows: a. Annexation Fees. i. OWNER shall pay to the CITY the sum of $8,850, representing $1,000 per acre zoned residential, and $500 per acre zoned office, within 90 days following execution of this Agreement. ii. OWNER shall pay to the CITY the sum of $569 per residential unit constructed on the SUBJECT PROPERTY upon issuance of the first occupancy permit for such Phase. iii. OWNER shall pay to the CITY the sum of $124 per unit ($62 to the Fire Protection District, and $62 to the Library District) constructed on the SUBJECT PROPERTY upon issuance of the first occupancy permit for such Phase. b. Cash Donations. OWNER shall pay to the CITY certain Cash Donations per residential unit constructed on the SUBJECT PROPERTY upon issuance of each building permit. The Cash Donations payable by the OWNER to the CITY shall be calculated as follows: School Districts Parks* Library Dist. Fire Dist. Total per Unit Dwelling Unit Total 156 15 Efficlency $0 $0 $0 $2,088 $269 $269 $2,626 1 Bedroom $0 $0 $0 $2,837 $269 $269 $3,375 2 Bedrooms $870 $305 $565 $3,089 $269 $269 $4,497 3 Bedrooms $3,913 $1,370 $2,543 $4.928 $269 $269 $9,379 The Cash Donations referred to in this chart shall collectively be referenced to as "Minimum Cash Contribution Amounts". * In lieu of the standard Parks Cash Donations, the DEVELOPER shall be required to pay $1,846 per unit which is proportionate to the standard in the CITY'S Municipal Code of 15 acres/1,000 persons, at a land cash value of $107,586/acre. ii. In the event the Minimum Cash Contribution Amounts, as calculated above, are less than the cash donation amounts set forth in the CITY's ordinances, as amended from time to time, an amount equal to the amounts specified in the CITY's ordinances, after adjustments as calculated above for land donations, shall be paid, rather than the Minimum Cash Contribution Amount provided in this Agreement. iii. In the event the CITY's cash contribution ordinance, or any other ordinance of the CITY relating to cash contributions for schools, parks, library and fire protection districts, is repealed or declared by a court of law to be found unenforceable and all appeals have been exhausted, OWNER agrees to pay, subsequent to such final court action, the Minimum Cash Contribution Amounts set forth in this Agreement. In the event such final court order requires the CITY or School Districts to return or refund monies paid by the OWNER pursuant to the CITY's ordinances, OWNER expressly agrees to allow the CITY or School Districts to retain the Minimum Cash Contribution Amounts previously paid by the OWNER. It is the express intent of the OWNER 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. 7 c. Release. OWNER hereby releases the CITY, School Districts 15 and 156, Library District, and Fire Protection District from any and all liability or damage to OWNER and waives the right to challenge, by lawsuit or otherwise, the validity, legality or enforceability of the donations and fees set forth in this Agreement, or the purpose for which the money is spent. OWNER agrees not to pay any fees under protest. d. 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, OWNER 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 and capital development fees, and other similar fees which are charged for specific services provided by the CITY, shall be payable in accordance with the CITY ordinances in existence and as amended from time to time, except as specifically provided in this Agreement. 1. Distribution. That portion of these fees 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 may 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 for CITY use. Nothing herein is intended to create third party beneficiary rights in School Districts 15 and 156 or the Library District. ii. Annual Adjustment. At the end of each one-year period, with the first adjustment occurring May 1, 2004, the fees referenced in the preceding paragraphs a) ii, a) iii, and b) i, shall be adjusted upward by the percent that the Chicago Area Consumer Price Index has moved upwards since December 31, 2002, and every December 31st thereafter. For the purpose of this paragraph, the price index to be used for comparative purposes shall be that index for the annual average Chicago area CPI-U, as published by the United States Department of Labor, Bureau of Labor Statistics. 19. Binding Effect and Term. This Agreement shall be binding upon and inure to the benefit of the parties hereto, successor owners of record and their heirs, assigns, and lessees, and upon successor municipal authorities of the CITY and successor municipalities for a period of 20 years from the date of execution hereof, and any extended time agreed to by amendment to this agreement. 20. Amendment. This Agreement may only be amended by written instrument executed by all parties hereto. Provided, however, in the event title to the SUBJECT PROPERTY, in whole or part, is transferred to successors in interest, future amendments relating to the SUBJECT PROPERTY may be made by and between the CITY and the title holders to the parcel directly effected by the requested amendment without consent required by other record owners of the SUBJECT PROPERTY. R 21. Notice and Default. 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 alleging the breach shall provide notice to the party alleged to be in default specifying the nature of said default, and 30 days shall elapse from the receipt of said default notice without the default being cured. Notice shall be in writing and delivered via certified mail, addressed as follows: CITY Douglas K. Maxeiner, City Administrator 333 S. Green Street McHenry, IL 60050 CONTRACT PURCHASER Professional Realty and Development Corporation C/o Virginia Gully 5119 Farmington Close Rockford, IL 61114 ATTORNEY FOR CONTRACT PURCHASER Tom Zanck Militello, Zanck and Coen, P.C. 40 Brink St. Crystal Lake, IL 60014 22.Obliaations. All obligations of the OWNERS in this Agreement, including monetary obligations in existence now and in the future, as a result of this Agreement, shall constitute covenants running with the land and such monetary obligations shall also be liens upon the land. OWNERS hereby consent to the filing of a lien on the SUBJECT PROPERTY or parts thereof for which obligations are owed when any obligations are more than 90 days overdue. 23. Enforceability. It is agreed that the parties to this Agreement may enforce and compel performance, whether by law or in equity, by suit, mandamus, injunction, declaratory judgment, or other court procedure, only in courts of the State of Illinois; no such action may be brought in any Federal court. In the event that either party to the Agreement files suit to compel performance by the other, the prevailing party shall be entitled to recover, as part of the costs otherwise allowed, its reasonable attorney's fees incurred therein. 24. 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 OWNER shall continue in full force and effect. 25. Severability. If any provision of this Agreement, other than the provisions relating to the requested zoning changes described herein and the ordinance adopted in connection therewith, is held invalid by any court of competent jurisdiction, such provision shall be deemed to be excised here from and the invalidity thereof shall not affect any of the other provisions contained herein. 9 Joanne McAndrews - AA - Foxcroft Ridge Final.doc Page 10 r re zoning changes described herein and the ordinance adopted in connection therewith, is ' valid by any court of competent jurisdiction, such provision shall be deemed to be excise from and the invalidity thereof shall not affect any of the IN WITNESS WHEREOF, the parties hereto have executed this Agreement in counterparts as of the date indicated above. OWNERS CITY Earl Pomre)-tii4 May r Attest: DEVELOPER ty rk Print Name and Title 11y'a IN WITNESS WHEREOF, the parties hereto have executed this Agreement in counterparts as of the date indicated above. OWNER Earl Pomrening DEVEL PER g l !1 G)N iA L lqtca! r lllCe Re5loelur PnW Name and itle CITY - L::,� �: r—f� or Attest: C CI k Exhibit A LEGAL DESCRIPTION of the SUBJECT PROPERTY PARCEL 1 Partof Government Lot 1 of the Northeast Quarter and part of the Northeast Quarter of the Southeast Quarter of Section 4, Township 44 North, Range 8, East of the Third Principal Meridian, being described as follows: Commencing at the Southeast corner of said Government Lot 1 of the Northeast Quarter; thence North 00 degrees 04 minutes 53 seconds West along the East line thereof, 333.30 feet; thence South 88 degrees 29 minutes 57 seconds West, 92.44 feet to the Place of Beginning; thence continuing South 88 degrees 29 minutes '.57 seconds West, 820.15 feet to the Northeast corner of the property described in Document No. 95R032560; thence South 00 degrees 18 minutes 45 seconds East along the East line thereof, 440.39 feet; thence'South 86 degrees 26 minutes 31 seconds East, 122.17 feet; thence North 77 degrees 31 minutes 11 seconds East, 247.83 feet; thence -North 73 degrees 31 minutes 06 seconds East, 268.20 feet; thence South 16 degrees 22 minutes 18 seconds East, 161.36 feet to the North right-of-way line of Bull Valley Road; thence North 72 degrees 57 minutes 09 seconds East along said right-of-way line,158.47 feet to aline 92.44 feet West of and parallel with the East line of said Government Lot 1 of the Northeast Quarter, thence North 00 degrees 04 minutes 53 seconds West along said parallel line, 433.00 feet to the Place of Beginning, in McHenry County, Illinois. Parcel 2 -Rart-cif-Gove=6nt L-ot-l-oPtfiallortheast Quarter-and-patoftheNortheastQuarter-of'the-Southeast Quarter of Section 4, Township 44 North, Range 8, East of the Third Principal Meridian, being described as follows: Commencing at the -Southeast comer of said Government Lot 1 of the Northeast Quarter; thence North 00 degrees 04 minutes 53 seconds West along the East line thereof, 333.30 feet; thence South 88 degrees 29 minutes 57 seconds West, 912.59 feet to the Northeast comer of the property described in Document No. 95R032560; thence South 00 degrees 18 minutes 45 seconds East along the East line thereof, 440.39 feet to the Place of Beginning, thence South 86 degrees 26 minutes 31 seconds East, 122.17 feet; thence South 07 degrees 53 minutes 43 seconds East, 162.88 feet to the North right-of-way line of Bull Valley Road; thence Westerly, 143.77 feet along said right-of-way line, being along a non -tangent curve to the right, having a radius of 1,3 82.40 feet, chord length of 143.71 feet and bears South 86 degrees 22 minutes 56 seconds West to the East line of the property described in Document No. 95R032560; thence North 00 degrees 18 minutes 45 seconds West along said line, 235.98 feet to the Place of Beginning, in McHenry County, Illinois. Parcel 3 Part of Government Lot 1 of the Northeast Quarter and part of the Northeast Quarter of the Southeast Quarter of Section 4, Township 44 North, Range 8, East of the Third Principal Meridian, being described as follows: Commencing at the Southeast comer of said Government Lot 1 of the Northeast Quarter, thence North 00 degrees 04 minutes 53 seconds West along the East line thereof, 333.30 feet; thence South 88 degrees 29 minutes 57 seconds West, 912.59 feet to the Northeast comer of the property described in Document No. 95R032560; thence South 00 degrees 18 minutes 45 seconds East along the East line thereof, 440.39 feet; thence South 86 degrees 26 minutes 31 seconds East, 122.17 feet to the Place of Beginning, thence North 77 degrees 31 minutes 11 seconds East, 247.83 feet; thence North 73 degrees 31 minutes 06 seconds East, 268.20 feet; thence South 16 degrees 22 minutes 18 seconds East, 161.36 feet to the North right-of-way line of Bull Valley Road; thence South- 72 degrees 57 minutes 09 seconds West along said right -of way line, 288.49 feet; thence Westerly, 252.14 feet along said right-of-way line, being along a curve to the right, having a radius of 1,382.40 feet, chord length of 251.79 feet and bears South 78 degrees 10 minutes 39 seconds West; thence North 07 degrees 53 minutes 43 seconds West, 201.25 feet to the Place of Beginning, in McHenry County, Illinois. �,1%hi b►k C7-- m m w 0 O m f 0 0 fl o a (D �. (D m � CD O N. .7 _ _ ai r O _ � C O CD a> =' a -n 0 O CD < N X � CDO _0W CD w o: o CD 0 0'