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O-55-03 08/25/03I Doc #: 0330310149 Eugene "Gene" Moore Fee: $74.50 Cook County Recorder of Deeds Date: 10/30/2003 11:30 AM Pg: 1 of 26 r ORDINANCE NO " -.9 ; AN ORDINANCE AUTHORIZING THE EXECUTION OF AN ANNEXATION AGREEMENT FOR A 10.82 ACRE PARCEL LOCATED AT 13100 SMITH ROAD IN LEMONT, ILLINOIS ADOPTED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF LEMONT This 25 "' day of August, 2003. 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 25`' day of August, 2003. ORDINANCE NO AN ORDINANCE AUTHORIZING THE EXECUTION OF AN ANNEXATION AGREEMENT FOR A 10.82 ACRE PARCEL LOCATED AT 13100 SMITH ROAD IN LEMONT, ILLINOIS 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 25TH day of August, 2003. Debbie Blatzer Peter Coules Brian Reaves Steven Rosendahl Ron Stapleton Jeanette Virgilio Attest: AYE to J �J NAYS ABSTAIN ABSENT • ' ENE SM •LLEN, Village Clerk Approved by me this 25th day of August, 2003. JOHN F. P • ZZA, Villag- `resident EXHIBIT "A" LEGAL DESCRIPTION THE SOUTH 20 ACRES (EXCEPT THE NORTH 355.39 FEET THEREOF) OF THE SOUTH 59 ACRES OF THE WEST HALF OF THE NORTHWEST QUARTER OF SECTION 31, TOWNSHIP 37 NORTH, RANGE 11 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS. ` DRDINAHCV. YHHS20030RDSBialek- 1]EmiIyGVOANXwpd 4 ANNEXATION AGREEMENT Ralph J. Vaivada d/b /a Westside Construction Co., Inc. ARTICLE TITLE I Annexation II Zoning and Land Use Restrictions III Required Improvements IV Dedication and Construction of Streets, Sidewalks, Miscellaneous V Easements and Utilities VI Development Codes and Ordinances and General Matters VII Approval of Plans VIII Notice of Violations IX Maintenance Bond X Damage to Public Improvements XI Binding Effect and Term and Covenants Running with the Land XII Notices XIII Certificates of Occupancy XIV Warranties and Representations XV Continuity of Obligations XVI No Waiver or Relinquishment of Right to Enforce Agreement -i- XVII Village Approval or Direction XVIII Singular and Plural XIX Section Headings and Subheadings XX Recording XXI Authorization to Execute XXII Amendment XXIII Counterparts XXIV Curing Default XXV Conflicts Between the Text and Exhibits XXVI Severability XXVII Definition of the Village XXVIII Execution of this Agreement EXHIBIT TITLE A Legal Description of Subject Property B Plat of Annexation of Subject Property C Preliminary Plat of Subdivision D Tree Preservation Plan and Tree Survey E Preliminary Engineering Plan ANNEXATION AGREEMENT THIS AGREEMENT, made and entered into this day of , 2003, between the VILLAGE OF LEMONT, a municipal corporation of the Counties of Cook, DuPage and Will, in the State of Illinois (hereinafter collectively referred to as "VILLAGE "), and Ralph Vaivada, d/b /a Westside Construction Co., Inc., an Illinois Corporation and the Harris Bank Hinsdale, as Trustee under Agreement dated August 23, 1989 known as Trust No. L2372 (hereinafter referred to as "OWNER/DEVELOPER "). WHEREAS, OWNER/DEVELOPER is the owner of record of the real estate (hereinafter referred to as the "TERRITORY," the legal description of which is attached hereto as Exhibit "A" and by this reference made a part hereof; and, WHEREAS, the TERRITORY has not been annexed to any municipality; and, WHEREAS, the TERRITORY constitutes 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/DEVELOPER 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 is annexed to the VILLAGE and developed in accordance with the provisions of the Agreement. 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 the execution of this Agreement. Notwithstanding anything contained to the contrary in this Agreement, the parties hereto further acknowledge that upon annexation, the OWNER/DEVELOPER shall not have any obligations or liabilities under this Agreement, all undertakings hereunder being undertakings and obligations solely of OWNER/DEVELOPER. 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 No. 0- 25 -99, as amended, as R -4 Single Family 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/DEVELOPER to cause the TERRITORY to be rezoned as an R -4 District once the parcel is annexed to the VILLAGE. The Village Zoning Board of Appeals ( "ZBA ") conducted public hearings as necessary to lawfully recommend said Zoning classification on April 7, 2003; May 5, 2003; and May 20, 2003. 2. Upon annexation of the TERRITORY, the VILLAGE shall adopt a resolution pursuant to Section III of the VILLAGE'S Subdivision Regulations Ordinance No. 456, as amended, granting an approval of a preliminary plat of subdivision for the TERRITORY permitting single - family residential development thereof in accordance with a preliminary plat of subdivision, which plat is attached hereto as Exhibit "C" and made a part hereof and a Tree Preservation Plan of the TERRITORY, which plan shall be in substantial conformity with the plan attached hereto as Exhibit "D ", and expressly permitting development of the TERRITORY in accordance with the Plat and Tree Preservation Plan, which development, is hereafter referred to as the "Development" On February 28, 2003, the OWNER/DEVELOPER submitted a proper application for a zoning amendment and preliminary subdivision plat approval, and no further action need be taken by the OWNER/DEVELOPER to cause such resolution to be approved by the VILLAGE once the TERRITORY is annexed to the VILLAGE. -2- 3. Building Permits. A. Within 30 days after receipt of an application by OWNER/DEVELOPER 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 VILLAGE shall issue the permit unconditionally within five (5) working days after satisfaction by the OWNER/DEVELOPER of the specified conditions. B. 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/DEVELOPER and shall give the OWNER/ DEVELOPER 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. 4. Effect of Future Ordinances and Amendments. It is understood and agreed, except as otherwise provided for herein, the Zoning, Subdivision 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. Notwithstanding the foregoing, it is expressly understood and agreed by the parties that during the term of this Agreement, no use permitted under the R -4 District at the time of the execution of the Agreement shall be denied to the OWNER/DEVELOPER, their successors or assigns, unless the zoning classification of the TERRITORY is amended by the petition of the OWNER/DEVELOPER, their successors or assigns, or unless the VILLAGE shall comprehensively amend its Zoning Ordinance. In the case of a comprehensive amendment to the VILLAGE'S Zoning Ordinance, the TERRITORY shall be designated the zoning district most comparable to the R -4 District. III REQUIRED PUBLIC IMPROVEMENTS 1. Water Supply. A. OWNER/DEVELOPER shall construct and install at its expense all necessary on -site water mains to service the TERRITORY. All water mains shall be constructed and installed in accordance with the regulations of the VILLAGE and final engineering plans approved by the VILLAGE. The VILLAGE agrees to permit connection of the aforementioned -3- water mains to the water facilities of the VILLAGE and to furnish water service on the same basis as said services are furnished to other parts of the VILLAGE. B. In addition to all necessary on -site water main, valves, hydrants, service lines and other necessary appurtenances, the OWNER/DEVELOPER shall design an off -site water main extension between the site and the existing twelve inch water main on 127`h Street, and shall be responsible for the construction of the water main for a distance of 1,100 linear feet. The VILLAGE shall coordinate the construction of the off -site project and shall participate in the cost of construction to the extent the off -site project exceeds 1,100 linear feet. Said off -site water main shall represent the length of water main that would be required to construct a looped water main within the Subject Property. The OWNER/DEVELOPER shall be responsible for securing all necessary permits for construction of the water supply system, including but not limited to a Cook County Highway Department permit for installation within the Smith Road right of way. 2. Sanitary and Storm Sewers. A. OWNER/DEVELOPER shall construct and install at their 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 and regulations of the Metropolitan Water Reclamation District of Greater Chicago ( "MWRD "). The VILLAGE agrees to permit connection of the aforementioned sanitary sewers to the sanitary sewer facilities of the VILLAGE and to furnish sewer service on the same basis as said services are furnished to other parts of the VILLAGE. B. Lift Station. (1) The OWNER/DEVELOPER agrees to construct a lift station and force main in compliance with all applicable standards of the VILLAGE and construction plans and specifications ( "Final Engineering Plans ") subject to review and approval of the Village Engineer. The Village agrees, notwithstanding the language of Section 6.01 of the Standard Specifications for the Design and Construction of Public Improvements, that there is no practical alternative to construction of a lift station and force main to provide sanitary sewer service to the Development. (2) In recognition of the additional maintenance responsibilities that a lift station and force main imposes on the VILLAGE, the OWNER/DEVELOPER agrees to pay the sum of $34,410.00 (thirty-four thousand, four hundred and ten dollars and no cents) to the VILLAGE prior to the acceptance of the subdivision public improvements by the VILLAGE. C. To provide for a possible extension of a gravity sewer in the future, the OWNER/DEVELOPER shall provide a gravity line to the north and south boundaries of the property. The gravity lines shall be designed to provide service to other territory within the service area of the lift station. -4- 3. Stormwater Management. A. OWNER/DEVELOPER 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. A separate storm sewer system shall be constructed by the OWNER/DEVELOPER which shall direct storm water runoff into a storm water piping system and any required detention basins per VILLAGE ordinance and in conformance with regulations by the Metropolitan Water Reclamation District (MWRD). B. The OWNER/DEVELOPER shall be required to construct a new storm water detention basin on parcel "outlot B" (see preliminary plat exhibit) The OWNER/ DEVELOPER shall partially reconstruct the existing detention basin on the lot 115, Rolling Meadows subdivision to accommodate the Pasture Drive extension through lot 115. Both basins shall be designed and constructed to comply in full with the Lemont Subdivision Regulations, including the Standard Specifications for Design and Construction of Public and Private Improvements. The final engineering plans shall include a detailed interim storm water management plan for the period during which OWNER/DEVELOPER reconstructs the Rolling Meadows basin to insure that there will be no net loss of storm water storage volume, nor a net increase in release rate within Rolling Meadows during construction. 4. All public improvements shall be completed within two years after commencement of construction (i.e., the date of issuance of a site development permit). All public improvements shall be inspected by the VILLAGE upon completion and if they are found to be in compliance with the requirements of the VILLAGE's Code and in accordance with the final engineering plans they shall thereupon, without unreasonable delay, be accepted by the VILLAGE as described in this Agreement. The OWNER/DEVELOPER shall request acceptance by the VILLAGE of the public improvements, in writing, no later than two years from commencement of construction, and shall provide the VILLAGE with a bill of sale for the public improvements to be conveyed and a maintenance guarantee in the form of a letter of credit or cash escrow in an amount not less than ten (10) percent of the original amount of the letter of credit. Said maintenance guarantee shall be available to the VILLAGE for a period of two (2) years after the effective date of acceptance of the public improvements. Upon receipt of the OWNER/DEVELOPER'S written request for acceptance, the VILLAGE shall inspect the improvements and may require repair, reconstruction, or installation of any improvements that are deficient or missing. IV DEDICATION AND CONSTRUCTION OF STREETS; SIDEWALKS; MISCELLANEOUS 1. Streets. A. Construction Traffic. Construction access to and from the TERRITORY during construction of site improvements shall be restricted to Smith Road. The local streets of Rolling Meadows and Big Run Acres subdivisions shall not be permitted at any time during construction -5- of the site improvements and during construction of the dwelling units. Only in the event the intersection of Smith Road and Pasture Drive is temporarily closed due to construction activity or unforeseen ciurcumstances beyond the OWNER/DEVELOPER' S control shall the OWNER/DEVELOPER be allowed an alternative construction traffic route over Rolling Meadows Drive and Pasture Drive in Rolling Meadows subdivision. The OWNER/DEVELOPER shall be responsible for incidental damage to the aforementioned streets resulting from construction activity in the DEVELOPMENT, including but not limited to the actions of individual building contractors, subcontractors and suppliers, whether or not hired by the OWNER/DEVELOPER. The OWNER/DEVELOPER agrees that up to five percent of the letter of credit may be applied to repair of any local streets used as a construction traffic route. B. Construction Hours. The OWNER/DEVELOPER shall be responsible for strict observation of the construction hours regulations of the VILLAGE on behalf of all persons and companies engaged in construction activity within the DEVELOPMENT, whether related to the installation of public improvements or dwelling construction. It is agreed that the VILLAGE shall issue stop -work orders, tickets, and fines as reasonably necessary to enforce its construction hours regulations. C. Maintenance. The OWNER/DEVELOPER shall be responsible for maintenance of the streets, including any damage incidental to the construction of dwellings in the subdivision by other contractors, their subcontractors or suppliers. D. Design and Standards. The design and construction standards for the network of planned streets within the Territory shall be in accordance with final engineering plans as approved by the Village. E. Debris. OWNER/DEVELOPER shall be required to keep all streets within and adjoining the TERRITORY free from mud and debris generated by any new construction activity on the TERRITORY. Such streets must be cleaned at least once daily. For each day that the streets are not cleaned as required hereunder during construction, OWNER/DEVELOPER shall be subject to a fine as provided in Section XX "Violation Penalty" of the Subdivision Regulations. If any such fine is not promptly paid, the VILLAGE shall have the right to stop any and all further construction until paid. 2. Street Lights. OWNER/DEVELOPER shall be required to install street lights in accordance with the Subdivision Regulations of the VILLAGE and final engineering plans approved by the VILLAGE. 3. Sidewalks. OWNER/DEVELOPER shall be required to construct sidewalks all in accordance with the term of this Agreement, the Subdivision Regulations of the VILLAGE and final engineering plans approved by the VILLAGE. All public sidewalks shall be completed by the developer no later than two years from the date the first site development permit is issued. During the two -year construction period, the OWNER/DEVELOPER may defer sidewalk installation on specific lots until after individual dwellings are completed to reduce incidental construction damage to the sidewalks. -6- 4. Miscellaneous. A. Sidewalks and Street Trees. 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 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. The OWNER/ DEVELOPER'S obligation to install the street trees or sidewalks shall not be assigned or transferred by the OWNER/DEVELOPER to a subsequent title - holder. Sidewalks and street trees shall be installed by the OWNER/DEVELOPER on any lots remaining vacant within two years of the commencement of construction in the TERRITORY. B. Tree Preservation. OWNER/DEVELOPER agrees to submit a final tree preservation plan in addition to the plans and specifications for the public improvements of the subdivision. The plan shall specify the number, species, location and condition of trees on the TERRITORY that are to be preserved. The plan shall be in substantial compliance with the Tree Preservation plan adopted as Exhibit "Do of this Agreement. The plan shall specify the techniques used to protect trees during all phases of construction. OWNER/DEVELOPER agrees to plant additional trees according to the Zoning Ordinance of the Village of Lemont if trees to be preserved on the preservation plan are removed without prior written permission of the VILLAGE. The VILLAGE shall approve the final tree preservation plan at the time of final subdivision plat approval. C Building Demolition. The DEVELOPER/OWNER and the VILLAGE acknowledge that there is an existing building on the Territory, situated on the proposed Lot 1 of the Preliminary Plat of Subdivision, which the DEVELOPER/OWNER may use as a storage garage for construction equipment and materials, or other activities incidental to construction or sales of dwellings and lots on the Territory, until completion of the first dwelling in the project. Before issuance of the first building permit, the OWNER/DEVELOPER shall file a proper and complete application for demolition of the referenced storage building. The OWNER/DEVELOPER shall demolish and remove the building completely from the site not later than issuance of the first occupancy certificate in the development. To guarantee compliance with this demolition condition, the OWNER/DEVELOPER shall furnish a performance guarantee in the form of a cash deposit, letter of credit or performance bond acceptable to the VILLAGE. V EASEMENTS AND UTILITIES The OWNER/DEVELOPER agrees at the time of approval of the Annexation Agreement 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, which may serve not only the TERRITORY, but other territories in the general area. -7- 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/DEVELOPER 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/DEVELOPER'S option, upon approval of the respective utility company. VI CONTRIBUTIONS AND ANNEXATION FEE 1. The OWNER/DEVELOPER shall make cash contributions and an annexation fee payment at the time a Plat of Subdivision is filed with the VILLAGE, in accordance with the ordinances of the Village. If a 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 Elementary School District Junior High School District High School District Park District Library District Village Annexation Fee TOTAL: Contribution Amount $16,985.00 $ 10,633.00 $12,438.00 $67,191.00 $ 1,807.00 $ 4,750.00 $113,804.00* *See Section III.2.B. of this Agreement for a Village Lift Station contribution due and payable when subdivision improvements are accepted by the VILLAGE. 2. 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. 3. Contributions Agreement. OWNER/DEVELOPER agrees that any and all contributions, dedications, donations and easements, provided for in this Agreement substantially advance legitimate governmental 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/DEVELOPER 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. -8- VII DEVELOPMENT CODES AND ORDINANCES AND GENERAL MATTERS. The development of the TERRITORY annexed, and of each lot respectively encompassed by this Agreement 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, and road construction and dedication of public improvements, shall be 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. No occupancy permit shall be issued for any for any building prior to the completion of the required public improvements, including operating street lights and street signs, except for the final surface course of the streets. Provided, however, the construction and installation of the public improvements to be done by OWNER/DEVELOPER may be commenced at any time after OWNER/DEVELOPER has delivered 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/DEVELOPER Engineer's estimate of the probable cost of construction and installation of all such public improvements as approved by the VILLAGE Engineer, including all required lighting, streets and street lights, 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/DEVELOPER for the future payment of contractors, materials, salaries 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. The OWNER/DEVELOPER shall not be entitled to obtain any building permits, nor sign permits and shall not be entitled to construct any model units, sales and/or rental offices or any other appurtenant facilities unless and until the proper letter of credit or cash deposit has been made to the VILLAGE in accordance with the Subdivision Regulations of the VILLAGE. The letter of credit or cash deposit shall specifically include an amount to cover the cost of street trees and sidewalks as required by the Subdivision Regulations and this Agreement. All public improvements shall be constructed and initiated within two (2) years from the date of approval of the Plat of Subdivision; however, if the completion date falls after September 30th, the date shall be the following May 30th. Notwithstanding any other provisions of this Agreement, no construction of public improvements have been approved, the agreement for construction of the public improvements as herein provided has been executed, the minimum security has been provided, the requirements of Ordinance No. 456, as amended, have been met, and until documentation, including a copy of the Permit if applicable, or evidence is received by -9- the VILLAGE that OWNER/DEVELOPER is not violating a wetland regulation or a regulation relating to waters of the United States. Further, no earthwork shall be done in any area tentatively identified as wetlands until an appropriate permit or permission has been obtained and such permit or permission is shown to the VILLAGE. The Plat of Subdivision shall contain such restrictive covenants, public utility and easement provisions as are or were required by the President and Board of Trustees as a condition to approval of the Plat of Subdivision. OWNER/DEVELOPER, at OWNER/DEVELOPER'S 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 certified that the improvements have been constructed in accordance with approved Engineering Plans and Specifications. OWNER/DEVELOPER 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. VII APPROVAL OF PLANS The VILLAGE agrees to expeditiously take action to approve or disapprove all plats, plans and engineering submitted to VILLAGE by OWNER/DEVELOPER. If the VILLAGE shall determine that any such submission is not in substantial accordance with this Agreement and applicable ordinances, the VILLAGE shall promptly notify OWNER/DEVELOPER in writing of the specific objection to any such submission so that OWNER/DEVELOPER can make any required corrections or revisions. VIII 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 or this Agreement allegedly violated by OWNER/DEVELOPER, so the OWNER/DEVELOPER may forthwith proceed to correct such violations as may exist. Moreover, the OWNER/DEVELOPER 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 -.10- to the health or safety of the public or personnel employee on or near the site. VILLAGE shall provide OWNER/DEVELOPER 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. IX MAINTENANCE GUARANTEE 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/DEVELOPER shall deposit with the VILLAGE a bank letter of credit or cash escrow maintenance guarantee in the amount of ten percent (10 %) of the original estimate of probable cost of the installation of the public improvement accepted by VILLAGE. 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 Bond shall not be returned until correction of said defect and acceptance by VILLAGE of said corrections. X DAMAGE TO PUBLIC IMPROVEMENTS The OWNER/DEVELOPER shall replace and repair any damage to public improvements installed within, under or upon the subject realty resulting from construction activities by OWNER/DEVELOPER, their successors or assigns and their employees agents, contractors or subcontractors during the term of this Agreement. OWNER/DEVELOPER shall have no obligation hereunder with respect to damage resulting from ordinary usage, wear and tear. XI 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/DEVELOPER'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. 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. XIII 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 return receipt requested, as follows: For the VILLAGE: 1. Village President 418 Main Street Lemont, IL 60439 2. Village Clerk 418 Main Street Lemont, IL 60439 3. Village Administrator 418 Main Street Lemont, IL 60439 For OWNER/DEVELOPER: Ralph J. Vaivada, Westside Construction Co., Inc. 3266 Spring Road Oak Brook, IL 60523 or such other addresses that any party hereto may designate in writing to the other parties pursuant to the provisions of this Section. XIV CERTIFICATES OF OCCUPANCY 1. Within five (5) days after request by OWNER/DEVELOPER 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 1st if weather prevents the OWNER/DEVELOPER from completing grading, landscaping and exterior 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/DEVELOPER 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. xv REIMBURSEMENT OF VILLAGE FOR LEGAL AND OTHER FEES AND EXPENSES 1. To Effective Date of Agreement. The OWNER/DEVELOPER, concurrently with annexation and zoning of the property or so much thereof as required, shall reimburse the Village for the following expenses incurred in the preparation and review of this Agreement, and any ordinances, letters of credits, plats, easements or other documents relating to the Territory: a. the costs incurred by the Village for engineering or planning services; b. all attorney's fees incurred by the Village; and c. miscellaneous Village expenses, such as legal publication costs, recording fees and copying expenses. 2. From and After Effective Date of Agreement. Except as provided in the paragraph immediately following this paragraph, upon demand by Village made by and through its President, OWNER/DEVELOPER from time to time shall promptly reimburse Village, for all enumerated reasonable expenses and costs incurred by VILLAGE in the administration of the Agreement, including and limited to engineering fees, attorneys' fees and out of pocket expenses involving various and sundry matters such as, but not limited to, preparation and publication, if any, of all notices, resolutions, ordinances and other documents required hereunder, and the negotiation and preparation of letters of credit and escrow agreements to be entered into as security for the completion of land improvements. -13- Such costs and expenses incurred by the VILLAGE in the administration of the Agreement shall be evidence to the OWNER/DEVELOPER upon its request, by a sworn statement of the Village; and such costs and expenses may be further confirmed by the OWNER/DEVELOPER at its option from additional documents relevant to determining such costs and expenses as designated from time to time by the OWNER/DEVELOPER. Notwithstanding the immediately preceding paragraph, OWNER/DEVELOPER shall in no event be required to reimburse VILLAGE or pay for any expenses or costs of VILLAGE as aforesaid more than once, whether such are reimbursed or paid through special assessment proceedings, through fees established by VILLAGE ordinances, or otherwise. In the event that any third party or parties institute any legal proceedings against the OWNER/DEVELOPER and/or the VILLAGE, which relate to the terms of this Agreement, then, in that event, the OWNER/DEVELOPER, upon written notice from VILLAGE, shall assume, fully and vigorously, the entire defense of such lawsuit and the expenses of whatever nature relating thereto; provided, however: A. OWNER/DEVELOPER shall not make any settlement or compromise of the lawsuit, or fail to pursue any available avenue of appeal of any adverse judgment, without the approval of the VILLAGE, which approval shall not be unreasonably withheld. B. If the VILLAGE, in its sole discretion, determines there is or may be a conflict of interest between VILLAGE and OWNER/DEVELOPER on an issue of importance to the VILLAGE, having a potentially substantial adverse affect on the VILLAGE, then the VILLAGE shall have the option of being represented by its own legal counsel. In the event the VILLAGE exercises such option, then OWNER/DEVELOPER shall reimburse the VILLAGE from time to time on written demand from the President of the VILLAGE and notice of the amount due for any expenses, including but not limited to court costs, reasonable attorney's fees and witnesses' fees, and other expenses of litigation incurred by the VILLAGE in connection therewith. The obligation of OWNER/DEVELOPER to reimburse VILLAGE under the terms of this subparagraph 2 shall terminate if no such legal proceedings are brought within one (1) year from the date of the annexation of the TERRITORY and, further, such obligation of reimbursement shall not apply if such legal proceedings are based upon alleged errors, omissions or unlawful conduct of VILLAGE and not the OWNER/DEVELOPER. In the event the VILLAGE institutes legal proceedings against OWNER/DEVELOPER for violation of this Agreement, and secured a judgement in its favor, the court having jurisdiction thereof shall determine and include in its judgement all expenses of such legal proceedings incurred by VILLAGE, including but not limited to the court costs and reasonable attorney's fees, witnesses' fees, etc., incurred by the VILLAGE in connection therewith. OWNER/DEVELOPER may, in its sole discretion, appeal any such judgment rendered in favor of the VILLAGE against OWNER/DEVELOPER. -14- XVI WARRANTIES AND REPRESENTATIONS The OWNER/DEVELOPER represents and warrants to the VILLAGE as follows: 1. That Harris Hinsdale Bank, as Trustee under Trust Agreement dated August 23, 2003, and known as Trust Number L2372, identified on page 1 hereof, is the legal title holder and owner of record of the respective parcels of the TERRITORY. 2. That the OWNER/DEVELOPER proposes to develop the TERRITORY in the manner contemplated under this Agreement. 3. That other than the OWNER/DEVELOPER, no other entity or person has any interest in the TERRITORY or its development as herein proposed. 4. That OWNER/DEVELOPER 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. XVII 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/DEVELOPER, OWNER/DEVELOPER shall at all times during the term of this Agreement remain liable to VILLAGE for the faithful performance of all obligations imposed upon them by this Agreement until such obligations have been fully performed or until VILLAGE, at its sole option, has otherwise released OWNER/DEVELOPER and from any all of such obligations. XVIII 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/Es right thereafter to enforce any such term, covenant, agreement or condition, but the same shall continue in full force and effect. -15- XIX 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. XX SINGULAR AND PLURAL Wherever appropriate in this Agreement, the singular shall include the plural, and the plural shall include the singular. XXI 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. XXII RECORDING A copy of this Agreement and any amendments thereto shall be recorded by the VILLAGE at the expense of the OWNER/DEVELOPER within 30 days after the execution hereof. XXIII 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/DEVELOPER and VILLAGE shall, upon request, deliver to each other at the respective time such entities cause their 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. -16- XXIv 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. XXv COUNTERPARTS This Agreement may be executed in two or more counterparts, each of which taken together, shall constitute one and the same instrument. XXVI 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. XXVII 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 govern. XXVIII 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 judgement or -17- decree shall relieve VILLAGE from performance under such invalidity thereof shall not affect any of the other provisions contained herein, and such judgement or decree shall relieve VILLAGE from performance under such invalid provision of this Agreement. XXIX 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. XXX 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 1 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. ATTEST: B Village Clerk VILLAGE OF LEMONT an Illinois Municipal Corporation Vill e President OWNER/DEVELOPER: Ralph J. Vaivada, d/b /a Westside Construction Co., Inc., an Illinois Corporation and 4- HARRIS BANK HINSDALE, as Trustee under Agreement dated August 23, 1989, known as Trust No. L2372 - ('HARRIS TRUST AND SAVINGS BANK successor Trustee Fo*larris Bank Hinsdale: By: Its HARRIS TRUST ANDS VINGS BANK AN EXCULPATORY PROVISION RESTRICTING ANY LIABILITY ON THE PART QJT 1EIRUSTEE IS ATTACHED HERETO AND INCORPORATED HEREIN. {t"ht. 1f'U {L� Ralph J. Vaivada- " " "' 1-iLf,",V By: __Q,o. -i)1. Officer ACKNOWLEDGMENTS STATE OF ILLINOIS) ) SS. COUNTY OF COOK ) P€ rek d_v 1(o, (?ems I IJE/ r ?At Tgtvt I, the undersigned, CERTIFY that- r. DT A 77 A is 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 instrumenlopmleWore me this day in person and severally acknowledged that as such President'Sria 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. Notary Public, in and for the County and Sate aforesaid, DO A EREBY GIVEN under my hand and official seal, this a/ day of Commission expires Notary Public 20 0 i t e-A, 2003. Official Seal Lynn Stratton- Cholewa Notary Public State of Illinois My Commission Expires 11/22/06 This document is made and executed by Harris Trust and Savings Bank, as Land Trustee, and is accepted upon the express understanding and Agreement of the parties hereto that Harris Trust and Savings Bank, enters into the same not personally, but only as such Trustee, and that, anything herein to the contrary notwithstanding, each and all of the indemnities, representations, warranties, covenants, agreements and undertakings herein contained are intended not as the personal indemnities representations, warranties, covenants or undertakings of Harris Trust and Savings Bank, or for the purpose of binding Harris Trust and Savings Bank, personally, but are made and intended for the purpose of binding only that portion of the trust property described herein, and this document is executed and delivered by Harris Trust and Savings Bank not in its own right, but solely at the direction of the party having power of direction over the trust and in the exercise of the powers conferred upon Harris Trust and Savings Bank as such Trustee, and that no personal liability is assumed by, nor shall be asserted against, Harris Trust and Savings Bank or its agents or employees because or on account of its making or executing this document or on account of any indemnity, representation, warranty, covenant, agreement or undertaking herein contained, including, but not limited to any liability for violations of the Comprehensive Environmental, Response, Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et seq. As amended or any other municipal, county, state or federal laws, ordinances, codes or regulations pertaining to the trust property or in the use and occupancy thereof, all such liability, if any being expressly waived and released. It is further understood and agreed that Harris Trust and Savings Bank individually, or as Trustee shall have no obligation to see to the performance or non- performance of any indemnity, representation, warranty, covenant, agreement or undertaking herein contained, and shall not be liable for any action or non action taken in violation there. It is further provided, however, that this paragraph shall not impair the enforceability, or adversely affect the obligations of any other signatories hereto or under any separate instrument of adoption or guarantee nor otherwise impair the validity of any indebtedness evidenced or secured by this document except as expressly set forth. Harris Trust and Savings Bank as Trustee under Trust 1..- c2 3 %Z By: 1j�• �2r�` Assistant Vice ' • sident/Land Trust Officer STATE OF ILLINOIS) ) SS. COUNTY OF ) l aye I, the undersigned, a Notary Public in and for the County and State aforesaid, DO HEREBY CERTIFY that the above -named ...,„"1,,Q.,4 , , ,4/ J , 11)047" 076 HARRIS TRUST AND SAVINGS BANK personally known to me to be the same pdrsons whose names are subscribed to the foregoing instrument appeared before me this day in person and acknowledged that they signed and delivered the said instrument as their own free and voluntary act for the uses and purposes therein set forth. GIVEN under my hand and official seal, this of day S 79t4eA_- , 2003. Commission expires , 20 . Notary Public "OFFICIAL SEAL" CHRYSSE M. PHILLIPS NOTARY PUBLIC, STATE OF ILLINOIS MY COMMISSION EXPIRES 111406 S: \COMMUNITY DEVELOPMENT DEPARTMENT ONLY- RESTRICTED!\Annezation Agreements \SmithFarAAdrafTEXT.wp.wpd -20-