Loading...
O-09-00 02/28/2000. LEMONT Village of Faith LtAg" /(4-t-tt3 vio11 (voq JiUU '551 4 2001-01-29. 124132 ..•-; t-r, ORDINANCE NO.0-1 - AN ORDINANCE AUTHORIZING THE EXECUTION OF AN AMENDED ANNEXATION AGREEMENT FOR K-5 CONSTRUCTION COMPANY ADOPTED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF LEMONT This ae day of 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 ',Ac6,‘''' day of cur 2000. 2000. ORDINANCE NO. 6 - -DO AN ORDINANCE AUTHORIZING THE EXECUTION OF AN AMENDED ANNEXATION AGREEMENT FOR K -5 CONSTRUCTION COMPANY WHEREAS, an amended Annexation Agreement has been drafted, a copy of' which is attached hereto and included herein; and WHEREAS, the developers and the legal owners of record of the territory which is the subject of said agreement are ready, willing and able to enter into said amended agreement and to perform the obligations as required hereunder; and WHEREAS, the statutory procedures provided for in the Illinois Municipal Code for the execution of said amended Annexation 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 the President be and is hereby authorized and directed, and the Village Clerk is directed to attest to a document known as "AMENDED AND RESTATED ANNEXATION AGREEMENT BETWEEN VILLAGE OF /LEMONT AND K -5 CONSTRUCTION COMPANY" and dated the afi ' day of Ilet , 2000, (a copy of which is attached hereto and made a part hereof). SECTION 2: 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 1'tiE PRESIDENT AND BOARD OF TRUSTEES OF 1 HE VILLAGE OF LEMONT, COUNTIES OF COOK, DuPAGE, AND WILL, ILLLNOIS, on this '-fl" day of 101 rt)ar , 2000. John Benik Debby Blatzer Keith Latz Connie Markiewicz Rick Rimbo Mary Studebaker A__VA)1610GSt"I Approved by me this 2 0" day Attest: AYES NAYS PASSED ABSENT CHARLENE SMOLL N, Village Clerk 2000. ASNESKI, Village President APPROVED AS TO FORM CHARLENE SMOLLEN, Village Clerk JOII ANTONOPOL LOS, Village Attorney Mail to: Village Clerk Village of Lemont 418 Main Street Lemont, IL 60439 FIRST AMENDED K -FIVE ANNEXATION AGREEMENT THIS FIRST AMENDED K -FIVE ANNEXATION AGREEMENT, (hereinafter referred to as "AGREEMENT ") made this ZS day of 2000, by and between the VILLAGE OF LEMONT, a Municipal Corporation, (hereinafter erred to as "VILLAGE ") and K -FWE CONSTRUCTION CORPORATION, an Illinois Corporation, (hereinafter referred to as "K- FIVE "). The VILLAGE and K -FWE are sometimes referred to herein individually as a "PARTY" and jointly as the "PARTIES." RECITALS: A. K -FIVE is the owner of record of approximately 13.4 acres of real estate in the VILLAGE located adjacent to and North of Main Street, a/k/a Chicago and Joliet Road, West of Parker Road, (hereinafter referred to as "TERRITORY"). The legal description of the TERRITORY is attached hereto as Exhibit A and incorporated herein by this reference. The TERRITORY is commonly known as K -FIVE DEVELOPMENT. B. The TERRITORY is the subject of an Annexation Agreement dated April 26, 1993 adopted by the VILLAGE pursuant to Ordinance No. 781, and recorded with the Cook County Recorder of Deeds as Document Number 93402114 on May 27, 1993. C. The Prior Agreement references the VILLAGE'S extension of water mains to provide service to the TERRITORY via a Tax Increment Finance (TIE) District and /or Special Service District, if funding was mutually agreed upon within five (5) years. The VILLAGE and K -FIVE did not agree to a method of funding and a water main was not constructed. 1 00- 755 D. K -FIVE is desirous of further developing the TERRITORY and is prepared to construct a water main sufficient to service the TERRITORY and other property not within the TERRITORY. K -FIVE has offered to construct and initially pay for the water main extension, if the VILLAGE reimburses K -FIVE certain collection fees and taxes. E. By this AGREEMENT, the PARTIES seek to amend and restate the Prior Agreement in accordance with the procedures set out in 65 ILCS 5/11- 15.1 -1 et seq. of the Illinois Municipal Code (Illinois Compiled Statutes, Chapter 65 5/11 - 15.1 -1 et seq.). F. A proposed amended Annexation Agreement, in substance and in form substantially the same as this AGREEMENT, was submitted to the VILLAGE, and all notices, publications, public hearings and other matters attendant to the consideration and approval of the execution of this AGREEMENT have been made, given, held and performed by the VILLAGE as required by Section 11- 15.1 -1 et seq. of the Illinois Municipal Code as aforesaid, and all other applicable statutes, and by all other applicable ordinances, regulations and procedures of the VILLAGE. G. The Mayor and Trustees of the VILLAGE, (hereinafter referred to as "CORPORATE AUTHORITIES ") have further duly considered the terms and provisions of this AGREEMENT and have, by a resolution duly adopted by a vote of at least two- thirds of the CORPORATE AUTHORITIES then holding office, authorized and directed the Mayor to execute, and the Village Clerk to attest, this AGREEMENT on behalf of the VILLAGE. NOW, THEREFORE, in consideration ofthe mutual promises, covenants and agreements set forth herein, the PARTIES hereby agree that the Prior Agreement shall be amended as follows: Page 2 1. Recitals. The PARTIES confirm and admit the truth and validity of the representations and recitations set forth in the foregoing recitals. The PARTIES further acknowledge that the same are material to this AGREEMENT and are hereby incorporated into this AGREEMENT as though they were fully set forth in this paragraph 1. 2. Authority. This AGREEMENT is made and entered into by the PARTIES pursuant to Section 11- 15.1 -1 et seq. of the Illinois Municipal Code. 3. Mutual Assistance. The PARTIES shall do all things necessary and appropriate to carry out the terms and provisions of this AGREEMENT and to aid and assist each other in furthering the intent ofthe PARTIES as reflected by the terms of this AGREEMENT, including, without limitation, the holding of such public hearings and the enactment by the VILLAGE of such resolutions and ordinances, the execution of such permits, applications and agreements and the taking of such other actions as may be necessary to enable the PARTIES to comply with the terms and provisions of this AGREEMENT. 4. Water Main Extension. Notwithstanding the construction and financing conditions set forth in the original Annexation Agreement, K -FIVE will design and construct a twelve inch (12 ") water main extension from the intersection of Parker Road (now vacated) and Route 171 North within an Easement Area to Main Street (formally known as Chicago and Joliet Road) as more particularly described on Exhibit `B ". The design and construction of the water main extension shall be limited to the following: a) A twelve inch (12 ") water main shall be extended to the public right of way immediately adjacent to the Territory on Main Street necessary to service K -FIVE and future extensions without interruption of service to K -FIVE. Page 3 b) Notwithstanding traditional water main extension regulations, K -FIVE shall not be required to space or install hydrants along the Golf Course Easement Area where no buildings are present. Further, the Village will accept the number and spacing of hydrants as negotiated with the owners of Cog Hill and such costs of installing such hydrants will be considered part of the costs to be reimbursed to K -FIVE. c) After construction and inspection by the Village Engineer, the VILLAGE will accept conveyance of the water main and improvements by Bill of Sale. Upon acceptance, K -FIVE shall be relieved of any further responsibility for maintenance or repair. 5. Reimbursement to Developer for Improvements. In order to effect a fair reimbursement and equitable allocation of cost among those who will be benefitted by connection to the water main, the VILLAGE agrees to reimburse K -FIVE certain costs as certified by the Village Engineer which shall include permitting, engineering, excavation, cost of material, labor and other actual costs expended and verified by the VILLAGE. Reimbursement shall be limited to the revenue derived from: Revenues Generated from the Subject Property: a) Building permit fees related to proposed building expansion; b) Municipal sales tax generated and reported; c) Water and sewer charges applied to utility usage; d) Sewer tap -on charges for the subject property; e) Utility tax assessed and collected for the use of electricity, natural gas and telephone/telecommunications. K -FIVE covenants and agrees not to change their utility billing address or in any way divert or alter the utility tax payments to the VILLAGE. f) The VILLAGE portion of the General Real Estate Taxes collected after the ten (10) year rebate as set forth in the original Annexation Agreement. Page 4 01 1 1 00755 1 Revenues Generated from Other Properties: a) Water and sewer charges applied to utility usage for any properties that may connect to the improvement constructed by K -FIVE, or any future extension thereto. b) Water and sewer tap -on charges for any properties that may connect to the improvements constructed by K -FIVE, or any future extension thereto. c) Recapture fees imposed by the VILLAGE for any properties that may connect to the improvements constructed by K -FIVE, or any future extension thereto. d) Real Estate Taxes collected by the VILLAGE for properties that annex and connect to the water main system. The VILLAGE reserves the right to waive any fees, taxes, or charges, to any applicable party, but will make reimbursement in full, including interest to K -FIVE, ten (10) years from the date of final acceptance of the water main. 6. Calculation of Reimbursable Costs. The VILLAGE shall make reimbursement payments to K -FIVE on an annual basis, subject to the following: a) Calculation of reimbursement from all sources shall be determined annually by the VILLAGE and confirmed by K -FIVE. The annual calculation of sales tax shall be prepared by using the TERRITORY'S preceding twelve (12) month Sales Tax Data for all users. K -FIVE shall provide the VILLAGE with Sales Tax Data (meaning copies of the Sales Tax Reports filed with the Illinois Department of Revenue from all users in the TERRITORY who are subject to the Sales Tax) within sixty (60) days after the close of each successive twelve (12) month period that such user or users are in operation. The initial twelve (12) month period shall commence upon execution of this Agreement. b) In order to partially reimburse K -FIVE for the cost of the water main extension, the VILLAGE shall include payments of interest at a rate of seven percent (7 %) per annum on the unpaid balance remaining from time to time. Interest shall commence on final payment of approved and certified costs, and in the event revenues from all sources are insufficient to make payments when due, interest will accrue but will not be capitalized into principal and will be due as soon as any revenue is received from the payment sources. Page 5 c) All payments due under this AGREEMENT shall be paid to K -FIVE within ninety (90) days following the close of the respective twelve (12) month period, ending December 31, provided K -FIVE supplies the Village with all documentation necessary to verify sales, property tax, and utility statements.. d) VILLAGE may, in its sole discretion, and upon written notice to K -FIVE, waive all or any part of its customary fees and charges to K -FIVE, and receive a credit for such amounts against the balance of principal due at the time of such waiver. There shall be no fee or set -off for water connection fees. e) The VILLAGE commits to make available the Village Engineer for purposes oftimely inspections ofthe work while on -going to minimize any costs associated with bringing the work into a state allowing approval by said Village Engineer. In the event K- FIVE is notified in a timely fashion, of a condition which would prevent approval of said improvements, and K -FIVE does not correct such condition within 30 days of notice, then the VILLAGE, at its sole discretion, may terminate this AGREEMENT and thereby not accept conveyance of said extension and improvements, and the remainder of its obligations under this Amended Annexation Agreement will be null and void. 7. Remedies. Upon a breach of this AGREEMENT, any PARTY, in any court of competent jurisdiction, may be awarded damages or may obtain equitable relief in the form of, but not limited to, specified performance, without showing irreparable harm or lack of adequate remedy at law, or both. Notwithstanding the foregoing, the failure of any PARTY to perform its obligations under this AGREEMENT shall be deemed to be a breach of this AGREEMENT. The PARTY claiming such failure shall notify, in writing, the PARTY alleged to have failed to perform, of the alleged failure and shall demand performance. No breach of this AGREEMENT may be found to have occurred if performance has commenced to the satisfaction of the complaining PARTY within thirty (30) days of receipt of such notice. 8. Captions. The captions herein are inserted only for convenience and are in no way to be construed as part of this AGREEMENT or as a limitation of the scope of any particular sections to Page 6 ea t which they refer. 9. Amendment. This AGREEMENT and the exhibits hereto may be amended only by the mutual consent of the PARTIES, or their successors and assigns, by adoption of an ordinance or resolution by the VILLAGE approving said amendment as provided by law, and the execution of said amendment by the PARTIES or their successors in interest as to the portion of the TERRITORY. 10. Governing Law. This AGREEMENT shall be governed by and construed in accordance with the laws of the State of Illinois. 11. Authority. The VILLAGE and K -FIVE warrant and represent that they have the power and authority to enter into this AGREEMENT in the names, titles and capacities herein stated and on behalf of the entities represented or purported to be represented by such PARTIES and that all formal requirements necessary required by any municipal, state or federal rules, regulations, orders, decrees and ordinances and laws in order for them to enter into this AGREEMENT have been fully satisfied. 12. Time. Time is of the essence of this AGREEMENT and all documents, agreements and contracts executed pursuant thereto. 13. Notice. All notices, elections and other communications between the PARTIES hereto shall be in writing and shall be mailed by certified mail, return receipt requested, postage prepaid, or delivered personally, to the PARTIES at the following addresses or to such other addresses as the PARTIES, by notice, designate: If to the VILLAGE: Page 7 Village of Lemont 418 Main Street Lemont, Illinois 60439 Attn: Village Clerk with a copy to: If to K -FIVE: with a copy to: u 0075 John P. Antonopoulos Village Attorney 15419 127th Street, Suite 100 LEMONT, Illinois 60439 K -Five Construction 13769 Main Street LEMONT, Illinois 60439 Notices shall be deemed received on the third business day following deposit in the U.S. Mail given by certified mail as aforesaid, and upon receipt or refusal if personally delivered. 14. Severability. If any provision, covenant, agreement or portion of this AGREEMENT or its application to any person, entity or property is held invalid, such invalidity shall not affect the application or validity of such other provisions, covenants or portion of this AGREEMENT. If for any reason the annexation of the TERRITORY is ruled invalid, in whole or in part, the CORPORATE AUTHORITIES, as soon thereafter as possible, shall take such actions (including holding public hearings and adopting ordinances and resolutions) as may be necessary to effect the spirit and intent of this Agreement and the objectives of the PARTIES, as disclosed by this AGREEMENT. 15. Inconsistent Provisions. Any provisions or requirements of this AGREEMENT or the ordinances and resolutions enacted by the VILLAGE pursuant to this AGREEMENT shall overrule, repeal and invalidate any inconsistent or contradicting provision of any other Village ordinance, regulation, agreement, policy or requirement as such provision applies to the annexation, zoning classification or development of the TERRITORY. Page 8 J75514 16. Restatement of Original Agreement. This AGREEMENT restates the original Annexation Agreement and modifies said Agreement only to the extent that this First Amendment specifically states herein. 17. Estoppel Certificates. Any PARTY or its successors and assigns, may request and obtain from any other PARTY, or its successors and assigns, a letter or certificate stating: a) whether this AGREEMENT and the ordinances and resolutions adopted pursuant to this AGREEMENT are in full force and effect; b) which covenants and requirements of this AGREEMENT and said ordinances have been performed; c) that no PARTY is in default of its obligations under this AGREEMENT or said ordinances, or, if a PARTY is in default, the nature and extent of such default; and d) the nature and extent of any amendment or modification to this AGREEMENT or said ordinances; 18. Counterparts and Duplicate Originals. This AGREEMENT may be executed in any number of counterparts and duplicate originals, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. IN WITNESS WHEREOF, the PARTIES have executed this AGREEMENT as of the date first above written. VILLAGE O ' EMONT, a Municipa '' + • oration By: 4 Fit Attes Village Clerk K -FIVE CONSTRUCTION CORPORATION Page 9 SCHEDULE OF EXHIBITS Exhibit "A" Legal Description Exhibit "B" Water Main Extension Page 10 STATE OF ILLINOIS COUNTY OF COOK ) ) SS: i 5514 I, c 0 I ' ri S , a Notary Public in the county and state aforesaid do hereby certify that RIC " :, • KWASNESKI, Mayor of the Village ofLemont and CHARLENE M. SMOLLEN, Clerk thereo , personally known to me to be the same persons whose names are subscribed to th foregoing instrument as such President and Clerk, respectively, appeared before me this day and personally acknowledged that they signed and delivered the attached instrument of their own free will and voluntary act, as th free and voluntary act of the Village ofLemont for the uses and purposes therein set forth. Given under my hand and notarial seal this day of Jt� , 2000. y --� 0 Notary Publi STATE OF ILLINOIS ), ) SS: COUNTY OF COOK ) a Notary Public in the county and state aforesaid do hereby certify that as , and as are personally known to me to be the same persons whose names are subscribed to the foregoing instrument; that they appeared before me this day and personally acknowledged that they signed and delivered the attached instrument of their own free will and voluntary act, as the free and voluntary act ofK -FIVE CONSTRUCTION CORPORATION for the uses and purposes therein set forth. Given under my hand and notarial seal this _. day of , 2000. VII.L.>GEiX. lVE.AGREEME fT.VMS Notary Public Page 11