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O-13-05 02/14/2005000 #: 0530027086 Fee: $72.50 Eugene "Gene" Moore Cook County Recorder of Deeds Date: 1012712005 12:29 PM Pg: 1 of 25 ORDINANCE NO.0 -13-05- AN ORDINANCE AUTHORIZING THE EXECUTION OF AN ANNEXATION AGREEMENT FOR AN APPROXIMATELY THREE (3) ACRE PARCEL LOCATED EAST OF KEEPATAW TRAILS SUBDIVISION, AT 12806 ARCHER AVENUE, IN LEMONT, ILLINOIS (CROSSING CREEK SUBDIVISION) ADOPTED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF LEMONT THIS 14Th DAY OF FEBRUARY, 2005 PUBLISHED IN PAMPHLET FORM BY AUTHORITY OF THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF LEMONT, COOK, WILL AND DUPAGE COUNTIES, ILLINOIS, THIS 14Th DAY OF FEBRUARY, 2005 ORDINANCE NO. -/305 AN ORDINANCE AUTHORIZING THE EXECUTION OF AN ANNEXATION AGREEMENT FOR AN APPROXIMATELY THREE (3) ACRE PARCEL LOCATED EAST OF KEEPATAW TRAILS SUBDIVISION, AT 12806 ARCHER AVENUE IN LEMONT, ILLINOIS (CROSSING CREEK SUBDIVISION) WHEREAS, the legal owners of record of the territory which is the subject of an Annexation Agreement are ready, willing and able to enter into said agreement and perform the obligations as required therein and; WHEREAS, a copy of said Annexation Agreement has been attached hereto and included herein; and WHEREAS, the statutory procedures provided for in the Illinois Municipal Code for the execution of said agreement have been fully complied with. NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF LEMONT, COUNTIES OF COOK, DUPAGE, AND WILL, STATE OF ILLINOIS, AS FOLLOWS: SECTION 1: That 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 AND APPROVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF LEMONT, COUNTIES OF COOK, DUPAGE, AND WILL, ILLINOIS, on this 14`h day of February, 2005 AYES NAYS ABSTAIN ABSENT Debbie Blatzer V Peter Coules V Brian Reaves ✓ Steven Rosendahl Ron Stapleton Jeanette Virgilio POI 21 Attest: RLENE SMOLLEN, Village Clerk Approved by me this l4`h day of February, 2005 JOHN F. PIAZZA, ge President L,ICOMMUNITY DEVELOPMENT DEPTCASE FILES12004124.16 - Crossing Creek Sub1EXECUTE AGRMNF ORD.wpd CROSSING CREEK SUBDIVISION ANNEXATION AGREEMENT ARTICLE TITLE I Annexation II Zoning and Land Use Restrictions III Required Improvements IV Dedication and Construction of Streets, Sidewalks, Miscellaneous V Changes to Development Plan VI Contributions and Annexation Fees VII Water & Sewerage System Improvement Contributions VIII Easements and Utilities IX Development Codes and Ordinances and General Matters X Approval of Plans XI Notice of Violations XII Maintenance Bond XIII Damage to Public Improvements XIV Binding Effect and Term and Covenants Running with the Land XV Notices XVI Certificates of Occupancy XVII Warranties and Representations —1— ARTICLE TITLE XVIII Continuity of Obligations XIX No Waiver or Relinquishment of Right to Enforce Agreement XX Village Approval or Direction XXI Singular and Plural XXII Section Headings and Subheadings XXIII Recording XXIV Authorization to Execute XXV Amendment XXVI Counterparts XXVII Curing Default XXIII Conflicts Between the Text and Exhibits XXIX Severability XXX Definition of the Village XXXI Reimbursement of Costs XXXII Execution of this Agreement —2— EXHIBIT A B C D EXHIBITS TITLE Legal Description of Subject Property Plat of Annexation of Subject Property Preliminary Plan Preliminary Landscape Plan —3— CROSSING CREEK SUBDIVISION ANNEXATION AGREEMENT THIS AGREEMENT, made and entered into this 14th day of February, 2005 between the VILLAGE OF LEMONT, a municipal corporation of the Counties of Cook, DuPage and Will, in the State of Illinois (hereinafter referred to as "VILLAGE ") and JOHN BOBAK (hereinafter referred to as the "OWNER. WHEREAS, the OWNER is the Owner of Record of the real estate, the legal description of which is attached hereto as Exhibit "A" (hereinafter referred to as the "TERRITORY ") and by this reference is made a part hereof; and WHEREAS, the TERRITORY has not been annexed to any municipality; and, WHEREAS, the TERRITORY constitute an area that is contiguous to and may be annexed to the VILLAGE, as provided under the Illinois Municipal Code, 65 ILCS 5/7 -1 -1, et. seq.; and, WHEREAS, the OWNER and VILLAGE agree that they will be bound by the terms of this Annexation Agreement; and, WHEREAS, the VILLAGE would extend its zoning, building, health and other municipal regulations and ordinances over the TERRITORY, thereby protecting the VILLAGE from possible undesirable or inharmonious use and development of unincorporated areas surrounding the VILLAGE; and, WHEREAS, the new boundaries of the VILLAGE OF LEMONT, resulting from this Annexation shall extend to the far side of every highway and shall include all of every highway not already annexed; and, WHEREAS, the parties desire, pursuant to Chapter 65, Article 5, Section 11 -15.1 of the Illinois Municipal Code, to enter into an Agreement with respect to Annexation of the TERRITORY and various other matters; and, WHEREAS, pursuant to the provisions of the Statute, the corporate authority of said VILLAGE has duly fixed a time for and held a hearing upon the Annexation Agreement and has given notice of said hearing; and, WHEREAS, The corporate authority of the VILLAGE has considered the Annexation of the TERRITORY described in the Petition and has determined that the best interest of the VILLAGE will be met if the TERRITORY are annexed to the VILLAGE and developed in accordance with the provisions of the Agreement. —4— NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants hereinafter contained, the parties agree as follows: I ANNEXATION 1. Subject to the provisions of Chapter 65, Article 5 Section 7 of the Illinois Municipal Code, the parties hereto respectively agree to do all things necessary or appropriate to cause the TERRITORY to be validly annexed to the VILLAGE as promptly as possible after execution of this agreement. 2. The Plat of Annexation of said TERRITORY is attached hereto as Exhibit "B ". Said Plat extends the new boundaries of the VILLAGE to the far side of any adjacent highway not already annexed and includes all of every highway within the TERRITORY so annexed. II ZONING AND LAND USE RESTRICTIONS 1. Upon the Annexation of the TERRITORY to the VILLAGE, the parcel shown on the plat of annexation attached as Exhibit "B" shall be classified under the existing zoning ordinance, as amended, as R -4 Single Family Detached Residence District. Prior to the date of this Agreement, such public hearings as are necessary to enable the VILLAGE lawfully to grant said zoning classification as to the TERRITORY have been conducted upon proper notice, and no further action need be taken by the OWNER to cause the TERRITORY to be re -zoned once the TERRITORY is annexed to the VILLAGE. The TERRITORY shall be developed in accordance with Preliminary Subdivision Plan, prepared by Johnson, Winemiller & Fisher, Inc. and dated 7/31/04, last revision dated December 1, 2004, attached hereto and incorporated herein as Exhibit "C"; and the Preliminary Landscape Plan, prepared by Johnson, Winemiller & Fisher, Inc. and dated December 2, 2004 attached hereto and incorporated herein as Exhibit "D." 2. Final Plat approval shall lapse in the event the OWNER does not file a complete application for a site development permit within one (1) year of the effective date of this AGREEMENT. 3. Within 30 days after receipt of an application by OWNER for a building permit for construction of any buildings, or other improvements on the TERRITORY, the VILLAGE shall either issue a permit authorizing such construction, issue a permit authorizing such construction subject to satisfaction of specified conditions consistent with the terms of this Agreement, or issue a letter of denial of such permit specifying the basis of said denial by reference to the provisions of the VILLAGE's Building Code applied in accordance with this Agreement, which the subject construction would allegedly violate. If the VILLAGE conditionally approves such a permit, the -.5— VILLAGE shall issue the permit unconditionally within five (5) working days after satisfaction by the OWNER of the specified conditions. Any stop order issued by the VILLAGE directing work stoppage on any building or other improvement on the TERRITORY shall specify the section of the VILLAGE's Building Code allegedly violated by the OWNER and shall give the OWNER 30 days in which to cure or diligently commence cure of such violation. Upon correction of any such violation, work on any improvement subject to a stop order may recommence. 5. It is understood and agreed, except as otherwise provided for herein, the Zoning Ordinance, Subdivision Ordinance and Regulations, Building Code and all other ordinances including all fees and charges of the VILLAGE, shall not be frozen during the term of this Agreement, and such ordinances, as the same may from time to time be amended and enforced throughout the VILLAGE, shall apply to the TERRITORY. III REQUIRED IMPROVEMENTS 1. Water Supply. OWNER shall have the right to construct and install at their expense all necessary on -site water mains to service the TERRITORY. All water mains shall be constructed and installed in accordance with the Code of the VILLAGE and final engineering plans approved by the VILLAGE. The VILLAGE agrees to permit connection of the aforementioned water mains to the water facilities of the VILLAGE and to fumish water service on the same basis as said services are furnished to other parts of the VILLAGE. 2. Sanitary and Storm Sewers. OWNER shall have the right to construct and install at its expense all necessary sanitary sewers to service the TERRITORY in accordance with the Subdivision Regulations of the VILLAGE and final engineering plans approved by the VILLAGE. The VILLAGE agrees to permit connection of the aforementioned sanitary sewers to the sanitary sewer facilities of the VILLAGE and to fumish sewer service on the same basis as said services are furnished to other parts of the VILLAGE. OWNER agrees that no surface water is to be discharged into the sanitary sewerage collection system and will make adequate provisions that this will not occur. Tap -on fees required by the Village shall not be waived. OWNER agrees that no surface water is to be discharged into the sanitary sewerage collection system and will make adequate provisions that this will not occur. All detention areas and appurtenant structures such as drains, inlets, and outlets shall be owned and maintained by the OWNER, with right of access by the VILLAGE for emergency maintenance purposes. 3. Detention Area. The OWNER agrees to construct detention basins in accordance with Village standards including the requirement to sod the detention basin which is to be conveyed and owned by the VILLAGE. —6— IV DEDICATION AND CONSTRUCTION OF STREETS; SIDEWALKS; MISCELLANEOUS 1. Public Improvements. All streets, sidewalks, and other improvements will be constructed in accordance with the plans and specifications as referred to in Article II of this Agreement including but not limited to, streetlights, sidewalks, and landscaping. 2. Dedications. The OWNER shall design streets within the TERRITORY according to Article II of this Agreement that comply with Village standards for local streets. All interior streets within the Territory when developed shall be dedicated to the VILLAGE. Said streets shall be constructed in accordance with the final engineering plans approved by the VILLAGE. 3. Miscellaneous. The cost of any sidewalks and street trees to be installed on public rights of way shall be included in the required letters of credit for each phase of the development of the TERRITORY, with the amounts to be computed on the same basis as the amounts to be included in the letter of credit for all other public improvements for the TERRITORY. 4. Crosswalk Easement. If requested by the VILLAGE, the OWNER shall provide a twenty (20) foot wide crosswalk easement and, if also requested by the VILLAGE, a five foot wide concrete public walk between lots 2 and 3 or lots 3 and 4, to provide pedestrian access to the property to the north and adjacent to the subject property. V CHANGES TO DEVELOPMENT PLAN The OWNER agrees to submit revised plans to the VILLAGE for any changes to the Development Plan. Any request to increase the number of dwelling units, change the pattern of land use, change the location of streets or street intersections, change the fundamental architectural character of the development, or obtain a variance from the Subdivision Regulations not part of this Agreement, shall be considered "major" changes; other changes shall be considered "minor ", in accordance with Section XVI.F of the Lemont Zoning Code. "Major" changes shall require published notice and a public hearing before the Lemont Zoning Board of Appeals to consider an amendment of a Final Plat of Subdivision approval. After said public hearing the Zoning Board shall forward its recommendation to the Village Board of Trustees, which shall approve or deny the requested amendment. If the changes are "minor," the VILLAGE may approve the Final Plat of Subdivision without additional review and recommendation by the Zoning Board. —7— VI CONTRIBUTIONS AND ANNEXATION FEES 1. The OWNER shall make cash contributions at the time a final development plan or Plat of Subdivision is filed with the VILLAGE, in accordance with the ordinances of the Village. If a final development plan or Plat of Subdivision is filed within one (1) year of the effective date of this Agreement, the required contributions shall be as follows: District/Purpose School District 113A High School District Park District (land donation) Library District Lemont Fire District Village Annexation Fee TOTAL: Contribution Amount $ 10,115.00 $ 4,946.00 $ 21,286.00 $ 643.00 $1,200 $1,000 $39,190.00 1. If a final plat of subdivision is submitted to the VILLAGE more than one (1) year after the effective date of this Agreement, the aforesaid contributions and the annexation fee shall be paid in amounts calculated in accordance with the terms of the ordinances of the VILLAGE in effect at the time such final plan or Plat is submitted to the VILLAGE. 2. Contributions Agreement. OWNER agrees that any and all contributions, dedications, donations and easements, provided for in this Agreement substantially advance legitimate govemmental interests of the VILLAGE, including, but not limited to, providing its residents, and in particular the future residents of the TERRITORY, with access to and use of public utilities, libraries, schools, parks and recreational facilities, police protection, and emergency services. OWNER further agrees that the contributions, dedications, donations and easements required by this Agreement are uniquely attributable to, reasonably related to and made necessary by the development of the TERRITORY. VII WATER & SEWERAGE SYSTEM IMPROVEMENT CONTRIBUTIONS The OWNER shall contribute to the VILLAGE the cost of expanding the VILLAGE well and storage capacity to allow the VILLAGE to supply water to the TERRITORY. The contribution to the VILLAGE shall be added to the usual and customary connection fee and shall be paid at the time of connection. The parties agree that $1,000.00 shall be paid for each single - family unit. 8 VIII EASEMENTS AND UTILITIES The OWNER agrees to grant to the VILLAGE, and/or obtain grants to the VILLAGE of, all necessary easements for the extension of sewer, water, street, or other utilities, including cable television, or for other improvements, subject to the provisions of the Subdivision Control Ordinance, which are necessary to the TERRITORY. All such easements to be granted shall name the VILLAGE and/or other appropriate entities designated by the VILLAGE as grantee thereunder. It shall be the responsibility of the OWNER to obtain all easements, both on site and off site, necessary to serve the TERRITORY. All electricity, telephone, cable television and gas lines shall be installed underground, the location of which underground utilities shall be at the OWNER'S option, upon approval of the respective utility company. IX DEVELOPMENT CODES AND ORDINANCES AND GENERAL MATTERS. The development of the TERRITORY annexed shall be in accordance with the existing building, zoning, subdivision, storm water retention and other developmental codes and ordinances of the VILLAGE as they exist on the date each respective permit for development is issued. Planning and engineering designs and standards shall be in accordance with the then existing ordinances of the VILLAGE or in accordance with the statutes and regulations of other governmental agencies having jurisdiction thereof if such standards are more stringent than those of the VILLAGE of Lemont at such time. All fees, etc. set forth under the various ordinances of the VILLAGE shall be paid by the OWNER at the rate set forth in the VILLAGE ordinances at the time each permit is issued. No occupancy permit shall be issued for any building prior to the completion of the required public improvements, including street signs. Provided, however, the construction and installation of the public improvements to be done by OWNER may be commenced at any time after approval of this Agreement by the Village and issuance of permits therefore. Prior to final plat approval, OWNER shall deliver to VILLAGE an irrevocable letter of credit, in a form satisfactory to, and from a bank or other financial institution approved by, the VILLAGE in the amount of one - hundred fifteen percent (115 %) of the OWNER'S Engineers estimate of the cost of construction and installation of all such public improvements as approved by the Village Engineer, including all required lighting, sidewalks, landscaping, street trees, sewer and water lines and storm water management facilities, except to the extent such facilities are to remain private, and after approval of a site development permit by the VILLAGE. At no time shall the Letter of Credit funds be utilized by the OWNER for the future payment of contractors, materials salaries 9 and wages and the like. The VILLAGE makes no guarantees regarding the timely reduction of said Letter of Credit and therefore should not be used for time - sensitive payment purposes. The Village Engineer may, in his/her discretion, recommend the amount of said letter of credit to be reduced, from time to time, as major public improvements are completed, upon approval of the Village Board. OWNER, at OWNERS own cost, agrees to provide the VILLAGE "as built ", engineering plans and specifications upon substantial completion of the public improvements or at the request of the Village Engineer but in no event later than the time required by Ordinance No.456, as amended. It is agreed that all of the public improvements contemplated herein shall upon acceptance thereof by the VILLAGE, become the property of VILLAGE and be integrated with the municipal facilities now in existence or hereinafter constructed and VILLAGE thereafter agrees to maintain said public improvements. Acceptance of said public improvements shall be by resolution of the President and Board of Trustees only after the Village Engineer or Village Engineer Consultant has issued his Certificate of Inspection affirming the improvements have been constructed in accordance with approved Engineering Plans and Specifications. OWNER agrees to convey by appropriate instrument and VILLAGE agrees to promptly accept, subject to terms hereof, the public improvements constructed in accordance with the Approved Engineering Plans and Specifications. OWNER agrees not to let debris or excessive construction waste accumulate on the TERRITORY. OWNER shall, within ten (10) days of notification of a violation by the VILLAGE, remove all debris from the locations as specified by the VILLAGE. If debris is not removed within this time period, the VILLAGE shall have the right to draw upon the Letter of Credit provided for in this Agreement to remove any such debris on the TERRITORY. The VILLAGE will not draw upon the Letter of Credit if OWNER removes the debris as directed by the VILLAGE within the ten (10) day notice period. X APPROVAL OF PLANS VILLAGE agrees to expeditiously take action to approve or disapprove all plats, plans and engineering submitted to VILLAGE by OWNER. If VILLAGE shall determine that any such submission is not in substantial accordance with this Agreement and applicable ordinances, the VILLAGE shall promptly notify OWNER in writing of the specific objection to any such submission so that OWNER can make any required corrections or revisions. XI NOTICE OF VIOLATIONS The VILLAGE will issue no stop orders directing work stoppage on building or parts of the project without giving notice of the Section of the Code allegedly violated by OWNER, so the 10 OWNER may forthwith proceed to correct such violations as may exist. Moreover, the OWNER shall have an opportunity to correct possible violations. This paragraph shall not restrain the Building Official from issuing a stop work order in any case where he considers a continuation of the work to constitute a threat to the health or safety of the public or personnel employee on or near the site. VILLAGE shall provide OWNER notice as required by Statute of any matter, such as public hearing, proposed building code changes and policy changes or other matters which may affect the TERRITORY of development of it under this Agreement. XII MAINTENANCE BOND At the time or times of acceptance by VILLAGE of the installation of any part, component or all of any public improvement in accordance with this Section, or any other section of the Agreement, OWNER shall deposit with the VILLAGE a Letter of Credit in the amount often percent (10 %) of the cost of the approved engineer's estimate of original construction costs. This guarantee shall be deposited with the VILLAGE and shall be held by the VILLAGE for a period of two (2) years after completion and acceptance of all improvements. In the event of a defect in material and/or workmanship within said period, then said security shall not be returned until correction of said defect and acceptance by VILLAGE of said corrections. XIII DAMAGE TO PUBLIC IMPROVEMENTS The OWNER shall replace and repair any damage to public improvements installed within, under or upon the subject realty resulting from construction activities by OWNER, their successors or assigns and their employees agents, contractors or subcontractors during the term of this Agreement. OWNER shall have no obligation hereunder with respect to damage resulting from ordinary usage, wear and tear. XIV BINDING EFFECT AND TERM AND COVENANTS RUNNING WITH THE LAND This Agreement shall be binding upon and insure to the benefit of the parties hereto, successor OWNER's of record of the TERRITORY, assignees, lessees and upon any successor municipal authorities of said VILLAGE and successor municipalities, for a period of 20 years from the date of execution hereof, 11 The terms and conditions of this Agreement relative to the payment of monies to the various VILLAGE recapture funds, contributions to the VILLAGE construction and/or dedication of public improvements, granting of easements to the VILLAGE, dedication of rights -of -way to the VILLAGE and the developmental standards established herein shall constitute covenants which shall run with the land. It is further agreed that any party to this Agreement, either in law or in equity, by suit, action, mandamus, or other proceeding may enforce or compel the performance of this Agreement, or have other such relief for the breach thereof as may be authorized by law or that by law or in equity is available to them. XV NOTICES Unless otherwise notified in writing, all notices, requests and demands shall be in writing and shall be personally delivered to or mailed by United States Certified mail, postage prepaid and retum receipt requested, as follows: For the VILLAGE: Village Clerk 418 Main Street Lemont, IL 60439 For the OWNER: John Bobak 10838 Oakland Orland Park, IL With copy to: Or such other addresses that any party hereto may designate in writing to the other parties pursuant to the provisions of this Section. XVI CERTIFICATES OF OCCUPANCY 1. Within five (5) days after request by OWNER for a final inspection of a building within the TERRITORY, the VILLAGE shall issue a final certificate of occupancy for such building or issue a letter of denial of a certificate of occupancy identifying the correction necessary as a condition of a certificate of occupancy and specifying the section of the Building Code relied on by the VILLAGE in its request for correction. 2. The VILLAGE, in accordance with the requirements and customary practice of the VILLAGE Building Department, will grant provisional permits for structures between November 1st and June 1 if weather prevents the OWNER from completing grading, landscaping and exterior 12 concrete or asphalt work for any such structure (it being understood that if other work remains to be done, no occupancy permit, provisional or otherwise, will be issued). As a condition of the issuance of any such provisional occupancy permit, the OWNER shall provide the VILLAGE with a timetable (acceptable to the VILLAGE) for completion of the outstanding work, which timetable shall be deemed a part of the occupancy permit. XVII WARRANTIES AND REPRESENTATIONS The OWNER represents and warrants to the VILLAGE as follows: 1. That John Bobak, identified on page 4 hereof, is the OWNER as legal title holder and owner of record of all the respective parcels of the TERRITORY. 2. That other than the OWNER, no other entity or person has any interest in the TERRITORY or its development as herein proposed. 3. That OWNER has provided the legal description of the TERRITORY set forth in this Agreement and the attached Exhibits and that said legal descriptions are accurate and correct. XIII CONTINUITY OF OBLIGATIONS Notwithstanding any provisions of this Agreement to the contrary, including but not limited to the sale and/or conveyance of all or any part of the TERRITORY by OWNER and OWNER shall at all times during the term of this Agreement remain liable to the VILLAGE for the faithful performance of all obligations imposed upon them b this Agreement until such obligations have been fully performed or until the VILLAGE, at its sol €option, has otherwise released OWNER from any all of such obligations. XIX NO WAIVER OR RELINQUISHMENT OF RIGHT TO ENFORCE AGREEMENT Failure of any party to this Agreement to insist upon the strict and prompt performance of the terms covenants, agreements, and conditions herein contained, or any of them, upon any other party imposed, shall not constitute or be construed as a waiver or relinquishment of any party's right 13 thereafter to enforce any such term, covenant, agreement or condition, but the same shall continue in full force and effect. XX VILLAGE APPROVAL OR DIRECTION Where VILLAGE approval or direction is required by this Agreement, such approval or direction means the approval or direction of the Corporate Authorities of the VILLAGE unless otherwise expressly provided or required by law, and any such approval may be required to be given only after and if all requirements for granting such approval have been met unless such requirements are inconsistent with this Agreement. XXI SINGULAR AND PLURAL Wherever appropriate in this Agreement, the singular shall include the plural, and the plural shall include the singular. XXII SECTION HEADINGS AND SUBHEADINGS All section headings or other headings in this Agreement are for general aid of the reader and shall not limit the plain meaning or application of any of the provisions thereunder whether covered or relevant to such heading or not. XXIII RECORDING A copy of this Agreement and any amendments thereto shall be recorded by the VILLAGE at the expense of the OWNER within 30 days after the execution hereof XXIV AUTHORIZATION TO EXECUTE. The President and Clerk of the VILLAGE hereby warrant that they have been lawfully authorized by the VILLAGE Board of the VILLAGE to execute this Agreement. The OWNER and VILLAGE shall, upon request, deliver to each other at the respective time such entities cause their 14 authorized agents to affix their signatures hereto copies of all bylaws, resolutions, ordinances, partnership agreements, letters of direction or other documents required to legally evidence the authority to so execute this Agreement on behalf of the respective parties. XXV AMENDMENT This Agreement sets forth all the promises, inducements, agreements, conditions and understandings between the parties hereto relative to the subject matter thereof, and there are no promises, agreements, conditions or understandings, either oral or written, express or implied, between them, other than are herein set forth. Except as herein otherwise provided, no subsequent alteration, amendment, change or addition to this Agreement shall be binding upon the parties hereto unless authorized in accordance with law and reduced in writing and signed by them. XXVI COUNTERPARTS This Agreement may be executed in two or more counterparts, each of which taken together, shall constitute one and the same instrument. XXVII CURING DEFAULT It is understood by the parties hereto that time is of the essence of this Agreement. The parties to this Agreement reserve a right to cure any default hereunder within fifteen (15) days from written notice of such default. XXIII CONFLICT BETWEEN THE TEXT AND EXHIBITS In the event of a conflict in the provisions of the text of this Agreement and the Exhibits attached hereto, the text of the Agreement shall control and govem. 15 XXIX SEVERABILITY If any provision of this Agreement is held invalid by a court of competent jurisdiction or in the event such court shall determine that the VILLAGE does not have the power to perform any such provisions, such provision shall be deemed to be excised here from and the invalidity thereof shall not affect any of the other provisions contained herein, and such judgment or decree shall relieve VILLAGE from performance under such invalidity thereof shall not affect any of the other provisions contained herein, and such judgment or decree shall relieve VILLAGE from performance under such invalid provision of this Agreement. XXX DEFINITION OF VILLAGE When the term VILLAGE is used herein it shall be construed as referring to the Corporate Authorities of the VILLAGE unless the context clearly indicates otherwise. XXXI REIMBURSEMENT OF COSTS The OWNER agrees to reimburse the VILLAGE for reasonable attorney's fees, planning consultants and engineering costs incurred by the VILLAGE in connection with the annexation of the TERRITORY, or in the enforcement of any of the terms of the Annexation Agreement upon a default by the OWNER. Such payment shall be made promptly upon receipt of a request from the VILLAGE of such reimbursement, with copies of the bills attached. XXXII EXECUTION OF AGREEMENT This Agreement shall be signed last by the VILLAGE and the President of the VILLAGE shall affix the date on which he signs this Agreement on page 4 hereof which date shall be the effective date of this Agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first above written. 16 ATTEST: B Village Clerk OWNER: John Bobak 110838 Oakland Orland Park, IL By: John Bobak Attest: STATE OF ILLINOIS ) ) SS. COUNTY OF COOK ) VILLAGE OF LEMONT an Illinois Municipal orporation By illage Pre iden I, the undersigned, a Notary Public, in and for the County and Sate aforesaid, DO HEREBY CERTIFY that JOHN F. PIAZZA personally known to me to be the President of the Village of Lemont, and CHARLENE M. SMOLLEN, personally known to me to be the Village clerk of said municipal corporation, and personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and severally acknowledged that as such President and Village Clerk, they signed and delivered the said instrument and caused the corporate seal of said municipal corporation to be affixed thereto, pursuant to authority given by the Board of Trustees of said municipal corporation, as their free and voluntary act, and as the free and voluntary act and deed of said municipal corporation, for the uses and purposes therein set forth. GIVEN under my hand and official seal, this 1 • ay of �� �_ _, , 2005 17 Notary Publ VILLAGE OF LEMONT an Illinois Municipal orporation By ATTEST: By: y` 1 1.,r /c- ,/}/ C(r � + Village Clerk OWNER: John Bobak 11 X838 Oakland rland rk Attest: hn Boba 1. STATE OF ILLINOIS ) ) SS. COUNTY OF COOK illage Pre iden I, the undersigned, a Notary Public, in and for the County and Sate aforesaid, DO HEREBY CERTIFY that JOHN F. PIAZZA personally known to me to be the President of the Village of Lemont, and CHARLENE M. SMOLLEN, personally known to me to be the Village clerk of said municipal corporation, and personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and severally acknowledged that as such President and Village Clerk, they signed and delivered the said instrument and caused the corporate seal of said municipal corporation to be affixed thereto, pursuant to authority given by the Board of Trustees of said municipal corporation, as their free and voluntary act, and as the free and voluntary act and deed of said municipal corporation, for the uses and purposes therein set forth. GIVEN under my hand and official seal, this ay of '` 17 Notary Publ. , 2005 STATE OF ILLINOIS ) ) SS. COUNTY OF COOK ) I, the undersigned, a Notary Public in and for the County and State aforesaid, DO HEREBY CERTIFY that John Bobak is personally known to me and is the same person whose name is subscribed to the foregoing instrument appeared before me this day in person and acknowledged that he signed and delivered the said instrument as his own free and voluntary act for the uses and purposes therein set forth. GIVEN under my hand and official seal, this t /c- day of at-7' L. R�< y / 2005. otary Publi 18 EXHIBIT "A" The subject property is located at 12806 South Archer Avenue in Lemont, Illinois and is legally described as follows: THAT PART OF THE SOUTHEAST 1/4 OF THE NORTHWEST 1/4 OF THE NORTHEAST 1/4 OF SECTION 33, TOWNSHIP 37 NORTH, RANGE 11, EAST OF THE THIRD PRINCIPAL MERIDIAN, LYING NORTHWESTERLY OF THE CENTER LINE OF ARCHER ROAD (EXCEPT THE WEST 1/4 ACRE THEREOF), IN COOK COUNTY, ILLINOIS. Property Index Number: 22 -33- 200 -005 19 LL lvld Baru wnaad b CROSSING CREEK SUBDIVISION 4 0 SlIV130 9N11NVld 7 � : :aGO 00 |!! |!1 )`e PLANT LIST •�•,!1 ! |. ` 1 ||!! .| ; CROSSING CREEK SUBDIVISION PLAT OF ANNEXATION TO THE VILLAGE OF LEMONT COOK COUNTY, ILLINOIS OF THAT °ART OF THE SOOTHERS"( QUARTER OF THE .NORTHWEST COARSER OF THE NGR72E45T 05097E OF SECtION 33. 'CNNSFIP 37 NCRT,. 02h5E 1 EAST 0 770 -n R4 P LYING NORTHWESTERLY OF THE CEN'ER LINE CF ARCHER ROAD (EXCEPT THE WEST 4440782 ACRE THEREOF). IN ACM COON,'. )LL.NOIO. \ \ Toss oncunnT WAS PREPARED s. mason.. 23210 2M Es of SA ANY SH OT HOTHE E M9 s are oEsJ AA FR i.L.sE RETURN ..,R RFCRROIHC. ORDERED 9Y: MR. JOHN 00948 J09 N0. 080056 Yf JOHNSON. WINEMILLER 6 FISHER. INC. CONSULTING ENGINEERS E SURVEYORS ITeAIs),ON) WTnv .,^N EL.H1.AUb N0E)e]0.A»P 99`52'51' E HEREBY ANNEXED 3.08 +/- ACRES S (22-33-300.0 31 \ \ \\ \ \0F —EMONT 592.9 NOTE' THE AREA 0170 78 ANNE 0E0 SHALL E0TERD TO THE FdR SIDE CF AN• ADJACENT FIGHWA0 AN0 SHALL INCLUDE ALL LP EVER, 1..00HWAY N'I'HIN '1,0 AREA ANNEXED. "%h.. SCALE:. St COATI «o RN .•n2 aN. 2.0031(00332 .(04 sNc. Wa'. levied and collected in like manner as taxes for general corporate purposes for each of such years are levied and collected and, when collected, such taxes shall be used solely for the purpose of paying the principal of and interest on the Bonds herein authorized as the same become due and payable. The Issuer covenants and agrees with the registered owners of the Bonds that so long as any of the Bonds remain Outstanding, the Issuer will not cause the abatement of the foregoing taxes and otherwise will take no action or fail to take any action which in any way would adversely affect the ability of the Issuer to levy and collect the foregoing taxes unless and only to the extent there then shall be moneys irrevocably on deposit therefor in the Junior Debt Service Account established under Section 11 below. The Issuer and its officers will comply with all present and future applicable laws in order to assure that the foregoing taxes will be levied, extended and collected as provided herein and deposited in the Junior Debt Service Account established in Section 11 below to pay the principal of and interest on the Bonds. Whenever the required deposit above in this paragraph has been made, the Corporate Authorities shall duly direct the abatement of the Pledged Taxes for the year to that extent with respect to which such taxes have been levied, to the extent so satisfied, and appropriate certification of such abatement shall be timely filed with the County Clerks in connection with such abatement. If for any reason there is abatement of such levy of taxes and the failure thereafter to pay debt service in respect of such abatement, the additional amount, together with additional interest accruing, shall be added to the tax levy in the year of, or the next year following, such failure. Section 10. Related Agreements. The Purchase Agreement, the Arbitrage Regulation Agreement, and the Disclosure Agreement, in substantially the forms thereof presented before the meeting of the Corporate Authorities at which this ordinance is adopted, shall be and are hereby approved. The Official Statement in connection with the Bonds, as presented before the Corporate Authorities in preliminary form, shall be and is hereby approved, deemed final under Rule 15c2 -12 and is authorized to be used by the Purchaser in the offering and sale of the Bonds. The Preliminary Official Statement is hereby authorized to be completed to constitute a final Official Statement under Rule 15c2 -12. The Issuer is authorized to cooperate with the Purchaser in connection with compliance by the Purchaser with Rule 15c2 -12 of the Securities and Exchange Commission and applicable rules of the Municipal Securities Rulemaking Board. All things done with respect to the Purchase Agreement, the Disclosure Agreement, the Arbitrage Regulation Agreement, and the Official Statement by the Issuer's Village President, Village Administrator, Village Clerk, Village Treasurer or Village Attorney, in connection with the issuance and sale of the Bonds, shall be and are hereby in all respects ratified, confirmed and approved. The Village President, Village Clerk, Village Treasurer, Attorney and other officials of the Issuer are hereby authorized and directed to do and perform, or cause to be done or performed for or on behalf of the Issuer, each and every thing necessary for the issuance of the Bonds, including the proper execution, delivery and performance of the Purchase Agreement, and related instruments and certificates, by the Issuer, the purchase by and delivery of the Bonds to or at the direction of the Purchaser. -21- No elected or appointed officer of the Issuer is in any manner interested, directly or indirectly, in his or her own name or in the name of any other person, association, trust or corporation in the Purchase Agreement. Section 11. Revenue Fund. Upon the issuance of any of the Bonds, the Issuer shall continue to be operated as a municipality on a Fiscal Year basis. All of the Revenues when received by the Village Treasurer or other officer of the Issuer receiving Revenues shall be set aside as and when received and shall be deposited in a separate fund and in an account in a bank to be designated or continued, as the case may be, by the Corporate Authorities, which fund is hereby created and established as the Issuer's "Revenue Fund (2005)" (the "Fund," within which there shall be a separate account with respect to the Bonds), which shall constitute a trust fund for the sole purpose of carrying out the covenants, terms, and conditions of this ordinance, including, without limitation, the establishment therein of the "Bond and Interest Account" (within which there shall be a Junior Debt Service Account and may be a Senior Debt Service Account, and the "Surplus Account ". (a) Junior Debt Service Account: There shall be credited and paid into the Junior Debt Service Account, on or before the first day of each month, by the Treasurer or other appropriate financial officer of the Issuer, without any further official action or direction other than this ordinance, in the order in which such Accounts are hereinafter mentioned, subject to the requirements of any account having a prior claim, all moneys in the Fund in accordance with the following provisions: After any initial deposit required by Section 12, there shall be deposited and credited to the Junior Debt Service Account and held, in cash and investments, a fractional amount (not less than 1/6) of the interest becoming due on the next succeeding interest payment date on all Outstanding Junior Bonds and also a fractional amount (not less than 1/12) of the principal becoming due (or subject to mandatory redemption) on the next succeeding principal maturity date of all of the Outstanding Junior Bonds until there shall have been accumulated and held in cash and investments in such Account on or before the month preceding such interest payment date or principal maturity date, or both, an amount sufficient to pay such principal or interest, or both. In computing the fractional amount to be set aside each month in such Junior Debt Service Account, the fraction shall be so computed that a sufficient amount will be set aside in such Junior Debt Service Account and will be available for the prompt payment of such principal of and interest on all Outstanding Junior Bonds and shall be not less than one -sixth (1/6) of the interest becoming due on the next succeeding interest payment date and not less than one - twelfth (1/12) of the principal becoming due (or subject to mandatory redemption) on the next succeeding principal payment date on all Outstanding Junior Bonds until there is sufficient money in such Junior Debt Service Account to pay such principal or interest, or both. Credits into such Junior Debt Service Account may be suspended in any Bond Year at such time as there shall be a sufficient sum held in cash and investments in such Account to meet principal and interest requirements in such Account for the balance of such Bond Year, but such credits shall again be resumed at the beginning of the next Bond Year. All moneys in such Junior Debt Service Account shall be used only for the purpose of paying interest and principal and applicable premium on Outstanding Junior Bonds. -22- (b) Surplus Account: All moneys remaining in the Fund, after crediting the required amounts to the Account above, and after making up any deficiency in the Account above, shall be credited to the Surplus Account and then, such surplus shall be used, if at all, for one or more of the following purposes, without any priority among them: (1) For any general or specific corporate purpose; or (2) For the purpose of calling and redeeming Outstanding bonds payable from Pledged Revenues, which are callable at the time; or (3) For the purpose of paying principal and interest and applicable premium on any subordinate bonds or obligations; or (4) For any other lawful purpose, including the purchase of outstanding bonds at the applicable price plus any premium and accrued interest. (c) Investments: Money to the credit of the Debt Service Account may be invested from time to time by the Issuer's Treasurer in (i) interest - bearing bonds, notes, or other direct full faith and credit obligations of the United States of America, (ii) obligations unconditionally guaranteed as to both principal and interest by the United States of America, (iii) certificates of deposit or time deposits of any bank or savings and loan association, as defined by Illinois laws, provided such bank or savings and loan association is insured by the Federal Deposit Insurance Corporation or a successor corporation to the Federal Deposit Insurance Corporation and provided further that the principal of such deposits are secured by a pledge of obligations as described in clauses (c) (i) and (c) (ii) above in the full principal amount of such deposits, or otherwise collateralized in such amount and in such manner as may be required by law, or (iv) in other Qualified Investments. Such investments may be sold from time to time by the Treasurer of the Issuer as funds may be needed for the purpose for which such Accounts have been created. All interest on any funds so invested shall be credited to the applicable Account of the Fund and is hereby deemed and allocated as expended with the next expenditure or expenditures of money from the applicable Account of the Fund. Moneys in any of such accounts shall be invested by the Issuer's Treasurer, if necessary, in investments restricted as to yield, which investments may be in U.S. Treasury Securities - State and Local Government Series, if available, and to such cnd the Issuer's Treasurer shall refer to any investment restrictions covenanted by the Issuer or any officer thereof as part of the transcript of proceedings for the issuance of the Bonds, and to appropriate opinions of counsel. Section 12. Bond Proceeds Account. Except for accrued interest received on the sale of the Bonds, which shall be deposited upon issuance of the Bonds into the Junior Debt Service Account, and capitalized interest to the December 1, 2005 interest payment date ( "Capitalized Interest ") which shall be credited to a separate subaccount of such Junior Debt -23- Service Account, and any amounts for costs of issuance directly paid by the Purchaser, for which the Purchaser shall receive a credit on the purchase price, all remaining proceeds derived from the sale of the Bonds (exclusive of accrued interest) shall be deposited in the "Bond Proceeds Account of 2005", within which there shall be a separate subaccount with respect to financing the Project (the "Proceeds Subaccount"), which is hereby established as a special account of the Issuer. The Purchaser shall receive a purchase price credit for any amounts directly paid by the Purchaser concerning costs of issuance directly paid as noted above. Moneys in the Bond Proceeds Account of 2005 shall be used for the purposes specified in Section 3 of this ordinance (that is, the costs of the Project) and for the payment of costs of issuance of the Bonds, but may hereafter be reappropriated and used for other lawful purposes in accordance with applicable law. Before any such reappropriation shall be made, there shall be filed with the Village Clerk of the Issuer an opinion of nationally recognized Bond counsel ("Bond Counsel ") to the effect that such reappropriation is authorized and will not adversely affect the tax- exempt status of the Bonds under Section 103 of the Internal Revenue Code of 1986, as amended. Moneys in the Bond Proceeds Account of 2005 shall be withdrawn from time to time as needed for the payment of costs and expenses incurred by the Issuer in connection with the Project and for paying the fees and expenses incidental thereto. Moneys shall be withdrawn from the depositary in connection with such funds from time to time by the Village Treasurer or other appropriate financial officer of the Issuer only upon submission to such officer of the following: A duplicate copy of the order signed by the Village President or Village Administrator, or such other officer(s) as may from time to time be by law authorized to sign and countersign orders of the Issuer, stating specifically the purpose for which the order is issued and indicating that the payment for which the order is issued has been approved by the Corporate Authorities. Within sixty (60) days after completion of the Project and any related work or costs, the Village President shall certify to the Corporate Authorities of such completion, and after all costs have been paid, the Village President or Village Administrator shall execute a completion certificate and file it with the Village Treasurer and in the records of the Issuer certifying such completion and that all costs have been paid; and, if at that time any funds remain in the Bond Proceeds Account of 2005, the same shall be applied for other costs as approved in writing by Bond Counsel or such officer shall credit such funds to the Junior Debt Service Account, as the Corporate Authorities direct, and the Village Treasurer shall transfer such funds to the Junior Debt Service Account. issue: Section 13. Issuance of Additional Bonds. The Issuer reserves the right to (a) Parity Bonds without limit provided that Revenues as determined as hereinbelow set out shall be sufficient to provide for (including coverage requirements under applicable law) and pay all of the following: (i) debt service on all Outstanding bonds payable from Revenues computed immediately after the issuance of any proposed Parity Bonds, (ii) all amounts required to meet any fund or account requirements (including coverage requirements under applicable law) and with respect to such -24- Outstanding bonds, (iii) other contractual or tort liability obligations then due and payable, if any, and (iv) an additional amount not less than 0.25 times debt service (as provided in Section 15 of the Local Debt Reform Act) on such of the Alternate Bonds as shall remain Outstanding bonds after the issuance of the proposed Parity Bonds. Such sufficiency shall be calculated for each year to the final maturity of such Alternate Bonds which shall remain Outstanding after the issuance of the proposed Parity Bonds. The determination of the sufficiency of Revenues shall be supported by reference to the most recent audit of the Fund, which audit shall be for a Fiscal Year ending not earlier than eighteen (18) months previous to the time of issuance of the proposed Parity Bonds. If such audit shows the Revenues to be insufficient, then the determination of sufficiency may be made the following way: The determination of sufficiency of the Revenues may be supported by the report of an independent accountant or feasibility analyst, the latter having a national reputation for expertise in such matters, demonstrating the sufficiency of the Revenues and explaining by what means they will be greater than as shown in the audit. The reference to and acceptance of an audit, an adjusted statement of the Revenues, or a report, as the case may be, and the determination of the Corporate Authorities of the sufficiency of the Revenues shall be conclusive evidence that the conditions of this Section 13(a) have been met and that the Parity Bonds are properly issued hereunder; and no right to challenge such determination is granted to the registered owners of the Bonds. (b) bonds or other obligations payable from Revenues subordinate to the lien of any Senior Bonds or Junior Bonds which remain Outstanding after the issuance of such bonds or other obligations. Section 14. Arbitrage Rebate. The Issuer shall comply with the provisions of Section 148(0 of the Internal Revenue Code of 1986, as amended, and with the Arbitrage Regulation Agreement, relating to the rebate of certain investment earnings at periodic intervals to the United States of America unless there shall have been filed with the Village Clerk of the Issuer an opinion of Bond Counsel to the effect that such compliance is necessary to preserve the exclusion from gross income for federal income tax purposes of interest on the Bonds under Section 103 of the Internal Revenue Code of 1986, as amended. There is hereby created (or continued) a separate and special account Fund known as the "Rebate Account (2005) ", within which there shall be a separate subaccount with respect to the Bonds, into which there shall be deposited as necessary investment earnings to the extent required so as to maintain the tax - exempt status of the interest on the Bonds under Section 148(0 of the Internal Revenue Code of 1986, as amended. All rebates, special impositions or taxes for such purpose payable to the United States of America (Internal Revenue Service) shall be payable from applicable excess earnings or other sources which are to be deposited into the Rebate Account (2005). The Issuer is authorized to execute appropriate arbitrage and rebate certificates and agreements related to the foregoing. The Issuer reserves the right to apply any exception from arbitrage rebate -25- including under Section 148(f)(4)(C) or (D) and Section 1.148 -7(d) of the Income Tax Regulations. Section 15. Investment Regulations. All investments shall be in Qualified Investments, unless otherwise expressly herein provided. No investment shall be made of any moneys in the Junior Debt Service Account or the Bond Proceeds Account of 2005, except in accordance with the tax covenants and other covenants set forth in Section 16 of this ordinance. All income derived from such investments in respect of moneys or securities in any fund or account shall be credited in each case to the fund or account in which such moneys or securities are held. Any moneys in any fund or account or subaccount that are subject to investment yield restrictions may be invested in United States Treasury Securities, State and Local Government Series, pursuant to the regulations of the United States Treasury Department, Bureau of Public Debt. The Issuer's Treasurer and agents designated by such officer are hereby authorized to submit on behalf of the Issuer subscriptions for such United States Treasury Securities and to request redemption of such United States Treasury Securities. Section 16. Non - Arbitrage and Tax - Exemption. One purpose of this Section 16 is to set forth various facts regarding the Bonds and to establish the expectations of the Corporate Authorities and the Issuer as to future events regarding the Bonds and the use of Bond proceeds. The certifications and representations made herein and at the time of the issuance of the Bonds are intended, and may be relied upon, as certifications and expectations described in Section 1.148 -0 et .seq. of the U.S. Treasury Regulations dealing with arbitrage and rebate (the "Regulations "). The covenants and agreements contained herein and at the time of the issuance of the Bonds are made for the benefit of the registered owners from time to time of the Bonds. The Corporate Authorities and the Issuer agree, certify, covenant and represent as follows: (a) The Bonds are being issued to pay the costs of the Project and related costs and expenses, and all of the amounts received upon the sale of the Bonds, plus all investment earnings thereon (the "Proceeds ") are needed for the purpose for which the Bonds are being issued. (b) The Issuer has entered into, or within six months from the date of issue of the Bonds will enter into, binding contracts or commitments obligating it to spend at least 5% of the proceeds of the Bonds for the Project. The work of acquiring the Project will start and continue with due diligence to completion within 3 years of issuance of the Bonds, at which time all of the Proceeds shall have been spent. (c) The Issuer has on hand no funds which could legally and practically be used for the Project which are not pledged, budgeted, earmarked or otherwise necessary to be used for other purposes. Accordingly, no portion of the Proceeds will be used (i) directly or indirectly to replace funds of the Issuer or any agency, department or division thereof that could be used for the Project, or (ii) to replace any proceeds of any prior issuance of obligations by the Issuer. No portion of the Bonds is being issued solely for the purpose of investing the Proceeds at a Yield higher than the Yield on the Bonds. For -26- purposes of this Section, "Yield" means that yield (that is, the discount rate) which when used in computing the present worth of all payments of principal and interest to be paid on an obligation (using semi - annual compounding on the basis of a 360 -day year) produces an amount equal to the purchase price of the Bonds, including accrued interest, and the purchase price of the Bonds is equal to the first offering price at which more than 10% of the principal amount of each maturity of the Bonds is sold to the public (excluding bond houses, brokers or similar persons or organizations acting in the capacity of underwriters or wholesalers). (d) All principal proceeds of the Bonds will be deposited in the Project Subaccount of the Bond Proceeds Account of 2005 and used to pay costs of issuance of the Bonds, and any accrued interest and premium received on the delivery of the Bonds will be deposited in the Junior Debt Service Account and used to pay the first interest due on the Bonds. Earnings on the investment of moneys in any fund or account will be credited to that fund or account or subaccount. Other costs of the Project, including issuance costs of the Bonds, will be paid directly from other proceeds or from the Project Subaccount of the Bond Proceeds Account of 2005, and no other moneys are expected to be deposited therein. Interest on and principal of the Bonds will be paid from the Junior Debt Service Account. No Proceeds will be used more than thirty (30) days after the date of issue of the Bonds for the purpose of paying any principal or interest on any other issue of bonds, notes, certificates or warrants or on any installment contract or other obligation of the Issuer or for the purpose of replacing any funds of the Issuer used for such purpose. (e) The Junior Debt Service Account is established to achieve a proper matching of revenues and earnings with debt service in each year. Other than any amounts held to pay principal of matured Bonds that have not been presented for payment, it is expected that any moneys deposited in the Junior Debt Service Account will be spent within the 12 -month period beginning on the date of deposit therein. Any earnings from the investment of amounts in the Junior Debt Service Account will be spent within a one -year period beginning on the date of receipt of such investment earnings. Other than any amounts held to pay principal of matured Bonds that have not been presented for payment, it is expected that the Junior Debt Service Account will be depleted at least once a year, except for a reasonable carryover amount not to exceed the greater of (i) one - year's earnings on the investment of moneys in the Junior Debt Service Account, or (ii) in the aggregate one - twelfth (1/12th) of the annual debt service on the Bonds. (f) Other than the Junior Debt Service Account, no funds or accounts, including the Junior Depreciation Account, have been or are expected to be established, and no moneys or property have been or are expected to be pledged (no matter where held or the source thereof) which will be available to pay, directly or indirectly, the Bonds or restricted so as to give reasonable assurance of their availability for such purposes. No property of any kind is pledged to secure, or is available to pay, obligations of the Issuer to any credit enhancer or liquidity provider. -27- (g) (i) All amounts on deposit in the Bond Proceeds Account of 2005 or the Junior Debt Service Account and all Proceeds, no matter in what funds or accounts deposited ( "Gross Proceeds "), to the extent not exempted in (ii) below, and all amounts in any fund or account pledged directly or indirectly to the payment of the Bonds which will be available to pay, directly or indirectly, the Bonds or restricted so as to give reasonable assurance of their availability for such purpose contrary to the expectations set forth in (f) above, shall be invested at market prices and at a Yield not in excess of the Yield on the Bonds plus, for amounts in the Proceeds Subaccount of the Bond Proceeds Account of 2005 for authorized work, services or facilities, if any, only, 1/8 of 1 %. (ii) The following may be invested without Yield restriction: (A) amounts invested in obligations described in Section 103(a) of the Internal Revenue Code of 1986, as amended but not specified private activity bonds as defined in Section 57(a)(5)(C) of the Code), the interest on which is not includable in the gross income of any registered owner thereof for federal income tax purposes ( "Tax- Exempt Obligations "); (B) amounts deposited in the Junior Debt Service Account that are reasonably expected to be expended within thirteen (13) months from the deposit date and have not been on deposit therein for more than thirteen (13) months; (C) amounts, if any, in the Bond Proceeds Account of 2005 (Sales Taxes) to be applied to authorized work, services or facilities prior to the earlier of completion (or abandonment) of such improvements or three (3) years from the date of issue of the Bonds; (D) an amount not to exceed the lesser of $100,000 or 5% of Bond proceeds; (E) all amounts for the first thirty (30) days after they become Gross Proceeds (e.g., date of deposit in any fund or account securing the Bonds); and (F) all amounts derived from the investment of the Proceeds for a period of one (1) year from the date received. (h) Subject to (q) below, once moneys are subject to the Yield limits of (g)(i) above, such moneys remain Yield restricted until they cease to be Gross Proceeds. (i) As set forth in Section 148(f)(4)(D) of the Internal Revenue Code of 1986, as amended, the Issuer is not expected to be excepted from the required rebate of arbitrage profits on the Bonds, and although the Issuer is a governmental unit with general taxing powers, none of the Bonds is a "private activity bond" as defined in -28- Section 141(a) of the Internal Revenue Code of 1986, as amended, and all the net proceeds of the Bonds are to be used for the local government activities of the Issuer, the aggregate face amount of all tax - exempt obligations (and excluding "private activity bonds" as defined in Internal Revenue Code of 1986, as amended) issued by the Issuer and all subordinate entities thereof (of which there are none) during the calendar year of issuance of the Bonds, including the Bonds, is reasonably expected to exceed $5,000,000. The Issuer reserves the right to apply to the Bonds the 6- month, 18 -month and 2 -year spend -down provisions of Section 148(f)(4)(C) of the Code and Section 1.148 -7(d) of the Regulations. (j) None of the Proceeds will be used, directly or indirectly, to replace funds which were used in any business carried on by any person other than a state or local governmental unit. (k) The payment of the principal of or the interest on the Bonds will not be, directly or indirectly (A) secured by any interest in (i) property used or to be used for a private business use by any person other than a state or local governmental unit, or (ii) payments in respect of such property, or (B) derived from payments (whether or not by or to the Issuer), in respect of property, or borrowed money, used or to be used for a private business use by any person other than a state or local governmental unit. (1) None of the Proceeds will be used, directly or indirectly, to make or finance loans to persons other than a state or local governmental unit. (m) No user of the Project, other than a state or local government unit, will use the Project on any basis other than the same basis as the general public, and no person other than a state or local governmental unit will be a user of the Project as a result of (i) ownership, or (ii) actual or beneficial use pursuant to a lease or a management or incentive payment contract, or (iii) any other similar arrangement. (n) Beginning on the 15th day prior to each Bond sale date, the Issuer has not sold or delivered, and will not sell or deliver, (nor will it deliver within 15 days after the date of issuance of the Bonds) any other obligations pursuant to a common plan of financing, which will be paid out of substantially the same source of funds (or which will have substantially the same claim to be paid out of substantially the same source of funds) as the Bonds or will be paid directly or indirectly from Proceeds. (o) No portion of the Project is expected to be sold or otherwise disposed of prior to the last maturity of the Bonds. (p) The Issuer has not been notified of any disqualification or proposed disqualification of it by the Internal Revenue Service as a bond issuer which may certify bond issues under Section 1.148 -0 et seq. of the Regulations. (q) The Yield restrictions contained in (g) above or any other restriction or covenant contained herein need not be observed and may be changed if the Issuer -29- receives an opinion of Bond Counsel to the effect that such non - observance or change will not adversely affect the tax - exempt status of interest on the Bonds to which the Bonds otherwise are entitled. (r) The Issuer acknowledges that any changes in facts or expectations from those set forth herein may result in different Yield restrictions or rebate requirements from those set forth herein and that Bond Counsel should be contacted if such changes do occur. (s) The Corporate Authorities have no reason to believe the facts, estimates, circumstances and expectations set forth herein are untrue or incomplete in any material respect. On the basis of such facts, estimates, circumstances and expectations, it is not expected that the Proceeds or any other moneys or property will be used in a manner that will cause the Bonds to be private activity bonds, arbitrage bonds or hedge bonds within the meaning of Sections 141, 148 or 149(g) of the Internal Revenue Code of 1986, as amended, and of applicable regulations. To the best of the knowledge and belief of the Corporate Authorities, such expectations are reasonable, and there are no other facts, estimates and circumstances that would materially change such expectations. The Issuer also agrees and covenants with the registered owners of the Bonds from time to time outstanding that, to the extent possible under Illinois law, it will comply with all present federal tax law and related regulations and with whatever federal tax law is adopted and regulations promulgated in the future which apply to the Bonds and affect the tax- exempt status of the Bonds. Section 17. Further Assurances and Actions. The Corporate Authorities hereby authorize the officials of the Issuer responsible for issuing the Bonds, the same being the Village President, Village Administrator, Village Clerk and Village Treasurer of the Issuer, to make such further filings, covenants, certifications and supplemental agreements as may be necessary to assure that the Project, the Bonds and related proceeds will not cause the Bonds to be private activity bonds, arbitrage bonds or hedge bonds and to assure that the interest on the Bonds will be excluded from gross income for federal income tax purposes. In connection therewith, the Issuer and the Corporate Authorities further agree: (a) through the officers of the Issuer, to make such further specific covenants, representations as shall be true, correct and complete, and assurances as may be necessary or advisable; (b) to consult with Bond Counsel approving the Bonds and to comply with such advice as may be given; (c) to pay to the United States, as necessary, such sums of money representing required rebates of excess arbitrage profits relating to the Bonds (subject to such exceptions as the Village President for the Issuer may elect); (d) to file such forms, statements, and supporting documents as may be required and in a timely manner; and (e) if deemed necessary or advisable, to employ and pay fiscal agents, financial advisors, attorneys, and other persons to assist the Issuer in such compliance. Upon compliance with Section 9 annual abatement of the Pledged Taxes is authorized, and not otherwise. -30- Section 18. General Covenants. The Issuer covenants and agrees with the registered owners of the Outstanding Bonds, so long as there are any Outstanding Bonds (as defined herein), as follows: (a) The Issuer will take all action necessary either to impose and collect or to maintain the right to receive and apply the Revenues and Pledged Taxes in the manner contemplated by this ordinance and such Revenues shall not be less than as shall be required under Section 15 of the Local Government Debt Reform Act to maintain the Bonds as Altemate Bonds. (b) The Issuer covenants that it will, while any of the Bonds shall remain outstanding, apply sufficient Revenues to provide for (including coverage requirements under applicable law) and pay each of the following in any given year: (1) debt service on all Outstanding revenue bonds and Alternate Bonds payable from the Revenues; (2) all amounts required to meet any fund or account requirements (including coverage requirements under applicable law) with respect to the Bonds or any other bonds payable from Revenues; (3) any other contractual or tort liability obligations, if any, payable from such Revenues; and (4) in each year, an amount not less than 1.25 times the debt service for all (i) Alternate Bonds payable from Revenues, including the Bonds Outstanding; and (ii) Alternate Bonds outstanding and proposed to be issued and payable from Revenues. (c) The Issuer will make and keep proper books and accounts (separate and apart from all other records and accounts of the Issuer), in which complete entries shall be made of all transactions relating to the Revenues, and hereby covenants that within 120 days following the close of each Fiscal Year, it will cause the books and accounts related to the Revenues to be audited by independent certified public accountants. Such audit will be available for inspection by the registered owners of any of the Bonds. Upon availability, the Issuer will send to the Purchaser a copy of such audit and of its general audit in each year. Each such audit, in addition to whatever matters may be thought proper by the accountants to be included therein, shall, without limiting the generality of the foregoing, include the following: (i) A balance sheet as of the end of such Fiscal Year, including a statement of the amount held in each of the accounts under this ordinance. (ii) The amount and details of all Outstanding bonds. (iii) The accountant's comments regarding the manner in which the Issuer has carried out the accounting requirements of this ordinance (including as to the Alternate Bond status of the Bonds) and has complied with Section 15 of the Local Government Debt Reform Act, and the accountant's recommendations for any changes. It is further covenanted and agreed that a copy of each such audit shall be furnished upon completion to, and request by, the Purchaser, and a summary thereof shall be furnished to -31- the registered owner of any Bond upon request. The foregoing shall not limit the effect of the Disclosure Agreement. (d) The Issuer will keep its books and accounts in accordance with generally accepted fund reporting practices for local government entities, including, as applicable, enterprise funds; provided, however, that the monthly credits to the Junior Debt Service Account shall be in cash, and such funds shall be held separate and apart in cash and investments. For the purpose of determining whether sufficient cash and investments are on deposit in such accounts under the terms and requirements of this ordinance, investments shall be valued at the lower of the cost or market price on the valuation date thereof, which valuation date shall be not less frequently than annually. (e) The Issuer will take no action in relation to the Revenues or the Pledged Taxes which would unfavorably affect the security of any of the Outstanding Bonds or the prompt payment of the principal and interest thereon. (f) The registered owner of any Bond may proceed by civil action to compel performance of all duties required by law, this ordinance and the Disclosure Agreement. (g) The Issuer will comply with the special covenants concerning Alternate Bonds as required by Section 15 of the Local Government Debt Reform Act and Section 15 of this ordinance. (h) After their issuance, to the extent lawful the Bonds shall be incontestable by the Issuer. Section 19. Ordinance to Constitute a Contract. The provisions of this ordinance shall constitute a contract between the Issuer and the registered owners of the Bonds. Any pledge made in this ordinance and the provisions, covenants and agreements herein set forth to be performed by or on behalf of the Issuer shall be for the equal benefit, protection and security of the registered owners of any and all of the Bonds. All of the Bonds, regardless of the time or times of their issuance, shall be of equal rank without preference, priority or distinction of any of the Bonds over any other thereof except as expressly provided in or pursuant to this ordinance. This ordinance and the Preliminary Ordinance shall constitute full authority for the issuance of the Bonds, and to the extent that the provisions thereof conflict with the provisions of any other ordinance or resolution of the Issuer, the provisions of this ordinance and the Preliminary Ordinance shall control. Section 20. Severabilitv and No Contest. If any section, paragraph or provision of this ordinance shall be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such section, paragraph or provision shall not affect any of the remaining provisions of this ordinance or any ordinance supplemental hereto. Upon the issuance of the Bonds, neither the Bonds nor this ordinance shall be subject to contest by or in respect of the Issuer. -32- Section 21. Policy of Insurer. The application of the Issuer to an Insurer, and related and supplemental submissions, related to the commitment of such Insurer to issue its Policy (the "Commitment ") is hereby ratified, confirmed and approved. The Commitment and the terms and provisions of the Policy, if any, are incorporated into this ordinance by reference, including without limitation that the investment restrictions and limitations in the Commitment and related to the Policy shall be deemed to be applicable restrictions and limitations on the Qualified Investments and the investments authorized by this ordinance, and shall be appended to this ordinance, but any failure to so append shall not abrogate, diminish or impair the effect thereof. In the event there is no Insurer or a Policy issued, reference in this ordinance to an Insurer and a Policy shall be given no effect. Section 22. Bank Qualified Bonds. Pursuant to Section 265(b)(3) of the Internal Revenue Code of 1986, as amended, the Issuer hereby designates the Bonds as "qualified tax - exempt obligations" as defined in Section 265(b)(3) of the Internal Revenue Code of 1986, as amended. The Issuer represents that the reasonably anticipated amount of tax - exempt obligations that will be issued by the Issuer and all subordinate entities of the Issuer during the calendar year in which the Bonds are issued will not exceed $10,000,000 within the meaning of Section 265(b)(3) of the Internal Revenue Code of 1986, as amended. The Issuer covenants that it will not so designate and issue more than $10,000,000 aggregate principal amount of tax- exempt obligations in each such calendar year. For purposes of this Section, the term "tax- exempt obligations" includes "qualified 501(c)(3) Bonds" (as defined in the Section 145 of the Internal Revenue Code of 1986, as amended) but does not include other "private activity bonds" (as defined in Section 141 of the Internal Revenue Code of 1986, as amended). Section 23. Conflict. All ordinances, resolutions or parts thereof in conflict herewith be and the same are hereby superseded to the extent of such conflict and this ordinance shall be in full force and effect forthwith upon its adoption. Section 24. Effective Date. This ordinance shall become effective immediately upon its passage and approval in the manner provided by law, and upon its becoming effective and prior to the issuance of the Bonds a certified copy of this ordinance shall be filed with the County Clerks of Cook, DuPage and Will Counties, Illinois. [The remainder of this page is intentionally left blank.] -33- otion by Trustee seconded by Trustee , adopted this 28 day of F bruary, 2005, by roll call vote as follows: Ayes (Names): Nays (Names): Absent (Names): (SEAL) ATTEST: 0 ° Village Clerk APPROVED: February 28, 2005 Village Pre -34- nt STATE OF ILLINOIS COUNTY OF COOK VILLAGE OF LEMONT SS. CERTIFICATION OF ORDINANCE Closing Item No. 1 I, the undersigned, do hereby certify that I am the duly selected, qualified and acting Village Clerk of the Village of Lemont, Cook, DuPage and Will Counties, Illinois (the "Issuer "), and as such official I am the keeper of the records and files of the Issuer and of its President and Board of Trustees (the "Corporate Authorities "). I do further certify that the attached constitutes a full, true and complete excerpt from the proceedings of the regular meeting of the Corporate Authorities held on the 28th day of February, 2005, insofar as the same relates to the adoption of Ordinance No. 0 -d S - ®S, entitled: AN ORDINANCE AUTHORIZING THE ISSUANCE OF GENERAL OBLIGATION BONDS (ALTERNATE REVENUE SOURCE), SERIES 2005, OF THE VILLAGE OF LEMONT, COOK, DuPAGE AND WILL COUNTIES, ILLINOIS, PROVIDING THE DETAILS OF SUCH BONDS AND FOR AN ALTERNATE REVENUE SOURCE AND THE LEVY OF DIRECT ANNUAL TAXES SUFFICIENT TO PAY THE PRINCIPAL OF AND INTEREST ON SUCH BONDS, AND RELATED MATTERS, a true, correct and complete copy of which ordinance (the "Ordinance ") as adopted at such meeting appears in the transcript of the minutes of such meeting and is hereto attached. The Ordinance was adopted and approved by the vote and on the date therein set forth. I do further certify that the deliberations of the Corporate Authorities on the adoption of such Ordinance were taken openly, that the adoption of such Ordinance was duly moved and seconded, that the vote on the adoption of such Ordinance was taken openly and was preceded by a public recital of the nature of the matter being considered and such other information as would inform the public of the business being conducted, that such meeting was held at a specified time and place convenient to the public, that notice of such meeting was duly given to all of the news media requesting such notice, that such meeting was called and held in strict compliance with the provisions of the open meeting laws of the State of Illinois, as amended, and the Illinois Municipal Code, as amended, and that the Corporate Authorities have complied with all of the applicable provisions of such open meeting laws and such Code and their procedural rules in the adoption of such Ordinance. IN WITNESS WHEREOF, I hereunto affix my official signature and the seal of the Village of Lemont, Cook, DuPage and Will Counties, Illinois, this a$ day of .e�kcat, 2005. (SEAL) Village Clerk