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O-77-10 - Ord. Annex Agrmt NW Corner McCarthy & BellORDINANCE NOD- 7% —/O AN ORDINANCE AUTHORIZING THE EXECUTION OF AN ANNEXATION AGREEMENT FOR APPROXIMATELY 22.67 ACRES OF LAND AT THE NORTHWEST CORNER OF THE INTERSECTION OF McCARTHY ROAD & BELL ROAD IN LEMONT, IL (R/J Rymek & Co.) ADOPTED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF LEMONT THIS 25th DAY OF OCTOBER, 2010 Published in pamphlet form by authority of the President and Board of Trustees of the Village of Lemont, Cook, DuPage, and Will Counties, Illinois this 25th day of October, 2010. ORDINANCE NO. AN ORDINANCE AUTHORIZING THE EXECUTION OF AN ANNEXATION AGREEMENT FOR APPROXIMATELY 22.67 ACRES OF LAND AT THE NORTHWEST CORNER OF THE INTERSECTION OF McCARTHY ROAD & BELL ROAD IN LEMONT, IL (R/J Rymek & Co.) WHEREAS, Finnegan Construction Company, as sole beneficiary under Land Trust No. 00 -2238 dated November 20, 2000, and Cynthia and Gino Martin, as beneficiaries under Land Trust No. 12402 dated (hereinafter referred to as the "Petitioner ") are the owners of property covering approximately 8.7 acres located at the northwest corner of the intersection of McCarthy Road and Bell Road (PINs# 22 -26- 201 -006 and 22 -26- 201 -011) hereinafter referred to as "the subject property "; and WHEREAS, the Petitioner is 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 the President be and is hereby authorized and directed, and the Village Clerk is directed to attest to a document known as the "NW Corner of McCarthy & Bell Annexation Agreement," a copy of which is attached hereto and made a part hereof. Section 2. That this ordinance shall be in 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 October, 2010. Debby Blatzer Paul Chialdikas Clifford Miklos Ron Stapleton Rick Sniegowski Jeanette Virgilio Attest: AYES V V NAYS ABSENT ABSTAIN Approved by me this 25th day of October, 2010 K. REAVES, Vil age President ENE M. S 0 LEN, Village Clerk NW CORNER McCARTHY & BELL ANNEXATION AGREEMENT ARTICLE TITLE I Definitions II Annexation III IV V Zoning and Land Use Restrictions • Zoning and Development Plans • Zoning & Preliminary Plat Guarantee • Other Standards Required Improvements • Water Supply ■ Sanitary and Storm Sewers • Detention Areas ■ Other Improvements • Utility Extensions Dedication and Construction of Streets • Dedication and Acceptance of Streets • Snow Plowing of Streets before Acceptance • Debris VI Construction of Other Improvements VII Maintenance of Public Improvements & Common Areas • Owners Guarantee • Maintenance Bond VIII Damage to Public Improvements IX Contributions X Easements and Utilities XI Approval of Plans XII Binding Effect and Term and Covenants Running with the Land XIII Notices 1 XIV Security Interests XV Warranties and Representations XVI Continuity of Obligations XVII No Waiver or Relinquishment of Right to Enforce Agreement XVIII Village Approval or Direction XIX Singular and Plural XX Section Headings and Subheadings XXI Recording XXII Authorization to Execute XXIII Amendment XXIV Counterparts XXV Curing Default XXVI Conflicts between the Text and Exhibits XXVII Severability XXVIII Reimbursement to Village for Legal and Other Fees / Expenses • To Effective Date of Agreement • From and After Effective Date of Agreement XXIX Lender Consent XXX Execution of Agreement EXHIBIT TITLE A Legal Description B Plat of Annexation, prepared by 2 and dated C Bell Road Sanitary Sewer and Water Main Extension Plans 3 ANNEXATION AGREEMENT THIS ANNEXATION AGREEMENT, is made and entered into this 25th day of October, 2010, 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 "the VILLAGE ") and Finnegan Construction Company, as sole beneficiary under Land Trust No. 00 -2238 dated November 20, 2000, and Cynthia and Gino Martin, as beneficiaries under Land Trust No. 12402 dated (hereinafter referred to as "OWNER/DEVELOPER "). The Village and OWNER/DEVELOPER are hereinafter sometimes referred to individually as a "Party" and collectively as the "Parties "; and, 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 OWNER/DEVELOPER filed a Petition for Annexation of the TERRITORY to the VILLAGE (hereinafter, the "Petition ") that requested annexation of the TERRITORY subject to execution of an annexation agreement acceptable to the OWNER/DEVELOPER and the VILLAGE; 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, 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 the VILLAGE has duly fixed a time for and held a hearing upon the Annexation Agreement and has given notice of said hearing; and, 4 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 DEFINITIONS BUILDING CODE The code or codes governing the erection and maintenance of buildings. COMMON AREA A parcel of land or an area of water, or combination thereof, and any improvements thereon, within a designated development tract (such as a subdivision) which is designed for common use or benefit and not reserved for the exclusive use or benefit of an individual tenant or owner. Examples of common areas include, but are not limited to: green open spaces, parking lots, and pedestrian walkways. FINAL ENGINEERING PLAN A plan, signed and sealed by a licensed professional engineer registered in the state of Illinois that meets the requirements for a final engineering plan in the Unified Development Ordinance. A final engineering plan depicts all public and private support facilities including, but not limited to: roads, sidewalks, drainage ditches, culverts and water retention areas, sanitary sewers, storm sewers, water supply lines, and illumination. FINAL LANDSCAPING PLAN A plan, signed and sealed by a registered landscape architect that meets the requirements for a final landscape plan in the Unified Development Ordinance. FINAL PLAT A plat of all or a portion of a subdivision or site plan that is presented to the Village for final approval. PLAT A document, prepared by a registered surveyor or engineer that delineates a tract of land, showing the boundaries and locations of individual properties and streets. PLAT OF ANNEXATION A plat that depicts the property to be annexed. PROPERTY A lot, parcel, tract or plot of land together with the buildings and structures thereon. PUBLIC IMPROVEMENT Any improvement, facility, or service together with its associated public site or right -of -way necessary to provide transportation, drainage, public or private utilities, energy, or other essential services, or parking and landscaping as specified on the final approved engineering plans for the TERRITORY. 5 UNIFIED DEVELOPMENT ORDINANCE Ordinance 0 -7 -08, as amended. II ANNEXATION 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. 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. Upon adoption of an ordinance annexing the TERRITORY to the VILLAGE, the Village Clerk shall cause a copy of said ordinance and said Plat to be duly recorded with the Cook County Recorder, and duly filed with the Cook County Clerk. The Village Clerk shall also send notice of annexation of the TERRITORY to the Cook County Elections Department and the U.S. Post Office branch serving the TERRITORY by certified or registered mail. III ZONING AND LAND USE RESTRICTIONS Zoning & Development Plans. Upon the Annexation of the TERRITORY to the VILLAGE, the parcel(s) 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 Residential District, except for approximately 1.72 acres (250 ft. by 300 ft.) immediately adjacent to the intersection which shall be designated as B -3 Arterial Commercial 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 R- 4 and B -3 once the TERRITORY is annexed to the VILLAGE. Zoning & Preliminary Plat Guarantee. The VILLAGE agrees that it will not seek to change the zoning of the TERRITORY without the OWNER/DEVELOPER's consent for a period of ten (10) years. Upon VILLAGE approval of a PUD Preliminary Plan/Plat or preliminary plat of subdivision for the TERRITORY, the OWNER/DEVELOPER shall have five years to acquire PUD Final Plan/Plat approval or final plat of subdivision approval. 6 Other Standards. The Village agrees that the above standards shall govern with respect to the development of the TERRITORY in any case in which the standards of the Unified Development Ordinance now or hereafter shall conflict with the standards listed above. The Village agrees that the above standards shall govern with respect to development of the TERRITORY in any case in which there no applicable standards are provided in the Unified Development Ordinance. In any case in which the Unified Development Ordinance contains applicable standards that do not conflict with the above standards, the standards of the Unified Development Ordinance shall govern with respect to the development of the TERRITORY. It is understood and agreed, except as otherwise provided for herein, the Unified Development Ordinance, 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. 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 or B -3 zoning district, as applicable. IV REQUIRED IMPROVEMENTS Water Supply. Except as otherwise stated in this Article, the OWNER/DEVELOPER shall construct and install at their expense all necessary water mains to service the TERRITORY. All water mains shall be constructed and installed in accordance with the Unified Development Ordinance 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 furnish water service on the same basis as said services are furnished to other parts of the VILLAGE. Sanitary and Storm Sewers. Except as otherwise stated in this article, the OWNER/DEVELOPER shall construct and install at their expense all necessary sanitary and storm sewers to service the TERRITORY in accordance with the Unified Development Ordinance 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 furnish sewer service on the same basis as said services are furnished to other parts of the VILLAGE. 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. Tap -on fees required by the Village shall not be waived. If any sanitary and storm sewers on the TERRITORY are to be owned and maintained by the OWNER/DEVELOPER, the OWNER/DEVELOPER shall provide a right of access by the Village for emergency management purposes. Detention Areas. Unless otherwise approved as part of this agreement, the OWNER/DEVELOPER agrees to construct and install at their expense detention basin(s) and appurtenant structures such as drains, inlets, and outlets in accordance with the Unified Development Ordinance of the VILLAGE and final engineering plans approved by the 7 VILLAGE. The residential stormwater detention basin(s) and appurtenant structures is /are to be conveyed to and owned by the VILLAGE or owned and maintained by a homeowners association. The commercial stormwater detention basin(s) and appurtenant structures is /are to be owned and maintained by the OWNER/DEVELOPER or owners association, as applicable. Other Improvements. Unless otherwise approved as part of this agreement, the OWNER/DEVELOPER agrees to construct and install at their expense all other improvements in accordance with the requirements of the Unified Development Ordinance of the VILLAGE and final engineering plans approved by the VILLAGE. Utility Extensions. The VILLAGE shall cause the extension of water and sewer facilities to service the TERRITORY with the OWNER/DEVELOPER participating in the funding of such extensions as provided herein: 1. The VILLAGE has prepared the preliminary engineering documents entitled the Bell Road Sanitary Sewer and Water Main Extension plans (hereinafter referred to as the "S &W Plans ", attached hereto and incorporated herein as Exhibit "C ") which will result in the construction of sanitary sewers and water mains which will be able to serve the projected use of the TERRITORY along with other properties (hereinafter referred to as the "S &W Utilities "). On or before May 1, 2013, the VILLAGE shall commence construction of the S &W Utilities in accordance with the S &W Plans and shall thereafter diligently prosecute such work until completion. It is understood that timely commencement of such work shall be contingent upon securing all needed rights of way, including that controlled by the Cook County Forest Preserve. The OWNER/DEVELOPER shall, for $10.00 consideration, convey to the VILLAGE right of way from the TERRITORY which is determined to be necessary for the construction of the S &W Utilities. 2. It is understood that the current estimated cost for the S &W Utilities is $2,300,00.00, but that this amount may increase or decrease depending upon conditions at the time of contract letting. The OWNER/DEVELOPER agrees to pay the VILLAGE on or before commencement of construction of the S &W Utilities in an amount equal to 32.6% (but not to exceed $750,000.00) of the S &W Utilities contract price as OWNER/DEVELOPER's share of such costs. Such limitation includes any required recapture. At the option of the OWNER/DEVELOPER, such commitment may be satisfied through the establishment, on or before commencement of construction of the S &W Utilities, of one or more special service areas (SSA) over the TERRITORY providing for payment of such amount, plus interest at the then statutory rate over a period of not more than 15 years. V DEDICATION AND CONSTRUCTION OF STREETS Dedication and Acceptance of Streets. The OWNER/DEVELOPER shall design streets within the TERRITORY in compliance with the standards of the VILLAGE Unified 8 Development Ordinance for local streets. All interior residential streets within the TERRITORY when developed shall be conveyed to the VILLAGE. Any interior commercial streets or traffic circulation area shall be owned and maintained by the OWNER/DEVELOPER or an owners association, as applicable. Said streets shall be constructed in accordance with the final engineering plans approved by the Village. The OWNER shall provide access to each residential unit. Any street right -of -way not already dedicated at the time of annexation shall be dedicated at the time of final plat, PUD final plan/plat, or other final engineering approval. The Village shall accept the dedication of said street right -of -way and approve or accept the construction of streets and sidewalks upon the completion by the OWNER/DEVELOPER of said improvements in accordance with the Village's construction standards and Unified Development Ordinance, as modified by the Agreement. Acceptance of public streets and sidewalks by the Village shall be evidenced by a corporate resolution. All private streets and walkways shall be approved by the Village Engineer and shall remain the property of the OWNER/DEVELOPER or an owner's association, as applicable. It is understood that in constructing the streets and sidewalks the OWNER/DEVELOPER shall post a letter of credit after which the OWNER/DEVELOPER may proceed to construct said streets. The final wearing surface shall not be installed until a period of nine (9) months after installation of the base or until construction traffic has generally ceased on any street, whichever is later. Upon installation of the base, the letter of credit may be reduced to an amount sufficient to cover the work yet to be performed (with applicable multiplier), plus the amount of the maintenance bond. Upon completion of all public improvements, and after acceptance by the Village Board, the letter of credit shall be released; however, the OWNER/DEVELOPER shall be responsible for correcting deficiencies in material and equipment for a period of two (2) years after acceptance to secure that obligation. The OWNER/DEVELOPER shall post for a period of two (2) years thereafter, a maintenance bond or other security to cover possible repairs to said streets. After completion of the construction and acceptance of any street, and if construction traffic of the OWNER/DEVELOPER continues to utilize that street, the OWNER/DEVELOPER shall be responsible for keeping the street free from construction debris and for repair of damages to the street caused by the OWNER/DEVELOPER's construction traffic. Except as otherwise provided herein, after dedication of any street right -of -way, the VILLAGE shall enforce traffic and other regulations as to the street right -of -way. Except as otherwise provided herein, after acceptance of the construction of any public street within the TERRITORY, the VILLAGE shall provide for street cleaning, snow removal, refuse collection, and other maintenance thereon. All deliveries of construction supplies or materials shall be restricted to certain streets or temporary haul roads designated by the VILLLAGE. Snow Plowing of Streets before Acceptance. The OWNER and the VILLAGE acknowledge that until the streets in any platted subdivision of the TERRITORY are accepted by the VILLAGE, the VILLAGE shall have no obligation to keep the streets plowed of ice and snow (snowplowed). It is agreed, however that for any platted subdivision that shall be or is likely to be occupied in whole or in part for a winter season, the VILLAGE, at its option, may keep the streets snowplowed for that season. 9 If the VILLAGE should desire to provide season -long snowplowing for a development or a part thereof, it shall notify the then owner of the unaccepted streets in writing of such intent by August 1 of the year in question. The notice shall contain an estimate of the cost of snowplowing and unit price or prices used by the VILLAGE in developing such costs. The OWNER shall deposit with the VILLAGE an irrevocable letter of credit from a financial institution in a form provided by the Village Attorney to guarantee payment of the estimated amount by September 15 of the year in question. At the end of the snow season, the VILLAGE will release the amount of the letter of credit providing all payments due to the VILLAGE have been made. During the season, the VILLAGE shall allow the amount of the letter to be reduced provided that the amount in the letter of credit is not reduced below the level anticipated to be expended based on the current best -cost estimate. The OWNER shall be obligated to pay the actual reasonable cost to the VILLAGE of its snowplowing services within the TERRITORY rather than the amount of an estimate. Payment shall be made within ten days from the date of the bill. Debris. The 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. VI CONSTRUCTION OF OTHER IMPROVEMENTS The construction and installation of the public improvements to be done by OWNER/DEVELOPER may be commenced at any time after the OWNER/DEVELOPER received a site development permit from the VILLAGE and has delivered to the 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 115% of the OWNER/DEVELOPER Engineer's 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, . 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; however, the VILLAGE agrees to release or reduce such Letter of Credit within a reasonable time period following OWNER/DEVELOPER's request. At the OWNER/DEVELOPER's request the VILLAGE shall specify any basis for delay in such release or reduction. 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. After the execution of this agreement and prior to final plan and/or final subdivision approval for any phase of development, the OWNER/DEVELOPER, at its option and sole risk, 10 may commence extension of utilities and mass grading. Prior to any grading of the Property, the OWNER/DEVELOPER shall submit for VILLAGE approval, a mass grading plan and soil erosion and sediment control plan that adhere to the provisions of Article IV (Site Development) of the Unified Development Ordinance. OWNER/DEVELOPER waives any and all claims it may have to assert a "vested rights" claim or lawsuits against the VILLAGE as a result of expenditures made in the performance of grading or other improvements to the Property allowed hereunder prior to final engineering approval in the event final engineering requires revision to work already performed. Any such work and expenditures are done at the risk of the OWNER/DEVELOPER knowing that final plan and /or final plat of subdivision approval may be delayed or change final grading and utility plans. In conjunction with the VILLAGE'S approval of any mass grading, OWNER/DEVELOPER shall file with the VILLAGE a letter of credit to secure seeding and restoration of the site in accordance with the mass grading plan. The OWNER/DEVELOPER, at the 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 the Unified Development Ordinance as amended. Any 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/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. The OWNER/DEVELOPER agrees not to let debris or excessive construction waste accumulate on the TERRITORY. VII MAINTENANCE OF PUBLIC IMPROVEMENTS & COMMON AREAS Owners Guarantee. The OWNER/DEVELOPER hereby guarantees the prompt and satisfactory correction of all defects and deficiencies in the improvements that occur or become evident within two years after approval and any approval or acceptance of the improvements by the VILLAGE pursuant to this agreement. If any defect or deficiency occurs or becomes evident during the two year period, then the OWNER/DEVELOPER shall, after ten days' prior written notice from the VILLAGE (subject to Force Majeure), correct it or cause it to be corrected. In the event any improvement is repaired or replaced pursuant to the demand of the VILLAGE, the 11 Guarantee provided in this Section VII shall be extended, as to the repair or replacement, for two full years from the date of the repair or replacement. If any public improvements or common areas within the TERRITORY are to be privately owned and maintained, then the OWNER/DEVELOPER shall, at its sole cost and expense, maintain the improvements and areas within the TERRITORY without any modification, except as specifically approved by the VILLAGE, in a first -rate condition at all times unless an owners' association is established and assumes responsibility for improvements or areas. In the event the VILLAGE determines, in the VILLAGE'S sole and absolute discretion, that the OWNER/DEVELOPER is not adequately maintaining, or has not adequately maintained, any improvement or area to the standard set by generally applicable VILLAGE ordinances, the VILLAGE shall have the right, but not the obligation, after ten days' prior written notice to the OWNER/DEVELOPER, to enter on any or all of the TERRITORY for the purpose of performing maintenance work on any affected improvement or area. In the event that The VILLAGE shall cause to be performed any work pursuant to this Section VII the VILLAGE shall have the right to draw from the performance securities deposited pursuant to this Section of the agreement, or the right to demand immediate payment directly from the OWNER/DEVELOPER based on costs actually incurred or on the VILLAGE'S reasonable estimates of costs to be incurred, an amount of money sufficient to defray the entire costs of the work, including without limitation legal fees and administrative expenses. The OWNER/DEVELOPER shall, after demand the VILLAGE, pay the required amount to the VILLAGE. If an owners' association is established and assumes responsibility for any public improvements and /or common areas within the TERRITORY, the owners' association shall, at its sole cost and expense, maintain the improvements and areas without any modification, except as specifically approved by the VILLAGE, in a first -rate condition at all times. In the event the VILLAGE determines, in the VILLAGE'S sole and absolute discretion, that the owners' association is not adequately maintaining, or has not adequately maintained, any improvement or area to the standard set by generally applicable VILLAGE ordinances, the VILLAGE shall have the right, but not the obligation, after ten days' prior written notice to the owners' association, to enter on any or all of the TERRITORY for the purpose of performing maintenance work on any affected improvement or area. In the event that the VILLAGE shall cause to be performed any work pursuant to this Section VII the VILLAGE shall have the right (i) to assess the membership of the owners' association for that work, (ii) to file a lien against the property of the owners' association or the property of any member failing to pay the assessment, and (iii) to enforce the lien in the manner provided by law for mortgage foreclosure proceedings. Maintenance Bond. At the time or times of approval or acceptance by the 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, the OWNER/DEVELOPER shall deposit with the VILLAGE a maintenance bond in the amount of ten percent (10 %) of the cost of the installation of the public improvement accepted by VILLAGE. This bond shall be deposited with the VILLAGE and shall be held by the VILLAGE for a period of twenty -four (24) months after completion and acceptance of all improvements. In the event of a defect in material and/or 12 workmanship within said period, then said security shall not be returned until correction of said defect and acceptance by the VILLAGE of said corrections. VIII 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. The OWNER/DEVELOPER shall have no obligation hereunder with respect to damage resulting from ordinary usage, wear and tear. IX CONTRIBUTIONS The OWNER/DEVELOPER shall make cash contributions prior to approval of any PUD Final Plan/Plat or final plat of subdivision by the VILLAGE, in accordance with the ordinances of the VILLAGE. In addition to the applicable donations required per the Lemont Unified Development Ordinance for park and school facilities, the OWNER/DEVELOPER shall be required to contribute the following: • Lemont Fire Protection District — OWNER/DEVELOPER shall pay $100 per dwelling unit to the VILLAGE for the benefit of the Lemont Fire Protection District. If the TERRITORY is developed in phases, the donation shall be paid on a pro -rata basis based upon the number of lots in the phase for which the Final Plan/Plat is being recorded. • Lemont Library District — OWNER/DEVELOPER shall pay $45.61 per person to the VILLAGE for the benefit of the Lemont Library District. The number of persons to be added by the development shall be calculated as outlined in the Lemont Unified Development Ordinance. If the TERRITORY is developed in phases, the donation shall be paid on a pro -rata basis based upon the number of lots in the phase for which the Final Plan/Plat is being recorded. • Public Safety Impact Fee — OWNER/DEVELOPER shall pay $1,000 per single- family detached dwelling unit to the VILLAGE for a public safety impact fee. If the TERRITORY is developed in phases, the fee shall be paid on a pro -rata basis based upon the number of lots in the phase for which the Final Plan/Plat is being recorded. • Annexation Fee — OWNER/DEVELOPER shall pay $250 per zoning lot to the VILLAGE for annexation fees. If the TERRITORY is developed in phases, the total fee shall be paid at the time of recording of the initial Final Plan/Plat. 13 X EASEMENTS AND UTILITIES The OWNER/DEVELOPER 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 Unified Development Ordinance which may serve not only the TERRITORY, but other TERRITORY in the general area, if requested by the VILLAGE in the future. 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. The OWNER/DEVELOPER shall provide evidence of easement or right of way necessary for the utility extension to the TERRITORY prior to PUD final plan/plat approval. The OWNER/DEVELOPER shall submit a title commitment from Chicago Title Insurance Company, or any other licensed title company, naming the VILLAGE as party to insured to guarantee an easement for public utilities from the existing point of connection to 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. XI APPROVAL OF PLANS The VILLAGE agrees to expeditiously take action to approve or disapprove all plats, plans, and engineering submitted to VILLAGE by the 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 the OWNER/DEVELOPER in writing of the specific objection to any such submission so that the OWNER/DEVELOPER can make any required corrections or revisions. 14 XII 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 OWNERS 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 development 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 Postal Service certified mail, postage prepaid and return receipt requested, as follows: For the VILLAGE: Village President 418 Main Street Lemont, IL 60439 and Village Clerk 418 Main Street Lemont, IL 60439 and Village Administrator 15 418 Main Street Lemont, IL 60439 For OWNER/DEVELOPER: Or such other addresses that any party hereto may designate in writing to the other parties pursuant to the provisions of this Section. XIV SECURTY INTERESTS The OWNER/DEVELOPER shall provide the VILLAGE with written approval(s) satisfactory to the VILLAGE of any mortgage, lien holder or holder of any security interest, affecting title to the TERRITORY or any part thereof so that this agreement shall be superior to any such mortgage, lien, or other security interest and the OWNER/DEVELOPER shall provide same to the VILLAGE prior to execution and recording of this agreement; and If there are no mortgages, liens, or other security interests affecting title to the TERRITORY or any part thereof, then the OWNER/DEVELOPER shall affirmatively state so in said Petition(s) for Annexation. XV WARRANTIES AND REPRESENTATIONS The OWNER/DEVELOPER represents and warrants to the VILLAGE as follows: That Finnegan Construction Company, as sole beneficiary under Land Trust No. 00 -2238 dated November 20, 2000, and Cynthia and Gino Martin, as beneficiaries under Land Trust No. 12402 dated identified on page 1 hereof is the OWNER/DEVELOPER as legal title holder; and That the OWNER/DEVELOPER proposes to develop the TERRITORY in the manner contemplated under this Agreement; and That other than the OWNER/DEVELOPER, no other entity or person has any interest in the TERRITORY or it development as herein proposed; and 16 That the OWNER/DEVELOPER has provided the legal description of the TERRITORY set forth in this Agreement and the attached exhibits and that said legal description and exhibits are accurate and correct. XVI 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 the OWNER/DEVELOPER, the 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 or all of such obligations. XVII 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 thereafter to enforce any such term, covenant, agreement or condition, but the same shall continue in full force and effect. XVIII 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. XIX SINGULAR AND PLURAL Wherever appropriate in this Agreement, the singular shall include the plural, and the plural shall include the singular. 17 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. XXI 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. XXII 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. XXIII 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. 18 XXIV COUNTERPARTS This Agreement may be executed in two or more counterparts, each of which taken together, shall constitute one and the same instrument. XXV 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. XXVI 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. XXVII 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 the VILLAGE from performance under such invalidity thereof shall not affect any of the other provisions contained herein, and such judgment or decree shall relieve the VILLAGE from performance under such invalid provision of this Agreement. XXVIII REIMBURSEMENT TO VILLAGE FOR LEGAL AND OTHER FEES / EXPENSES To Effective Date of Agreement. The OWNER/DEVELOPER, concurrently with annexation and zoning of the TERRITORY or so much thereof as required, shall reimburse the VILLAGE for the following expenses incurred in the preparation and review of this Agreement, 19 and any ordinances, letters of credits, plats, easements or other documents relating to the TERRITORY: all attorney's fees incurred by the VILLAGE; and Miscellaneous VILLAGE expenses, such as legal publication costs, recording fees and copying expenses; and 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, the 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, cost of any easements, attorney's 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. 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 validity or any 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: The 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 unreasonable withheld; and If the Village, in its sole discretion, determines there is or may probably be, a conflict of interest between the VILLAGE and the 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 the OWNER/DEVELOPER shall reimburse the VILLAGE from time to time on written demand from the President of the VILLAGE and notice 20 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 the OWNER/DEVELOPER to reimburse the 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 the VILLAGE and not the OWNER/DEVELOPER. In the event the VILLAGE institutes legal proceedings against the OWNER/DEVELOPER for violation of this Agreement, and secured a judgment in its favor, or by settlement, the OWNER/DEVELOPER shall pay all expenses of such legal proceedings incurred by the VILLAGE, including but not limited to, the court costs and reasonable attorney's fees, etc., incurred by the VILLAGE in connection therewith. 21 XXIX LENDER CONSENT does hereby certify that it is the holder of a mortgage of the property described herein and that as such it consents to the terms of this Agreement. By: 22 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 OWNER/DEVELOPER: By: (name) (title) By: (name) (title) VILLAGE OF LEMONT an Illinois Municipal Corporation Bv: 23 Village President NOTARY CERTIFICATES STATE OF ILLINOIS) ) SS COUNTY OF COOK) I, the undersigned, a Notary Public, in and for the County and Sate aforesaid, DO HEREBY CERTIFY that BRIAN K. REAVES, 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 day of My commission expires on OFFICIAL, BEAT. ROSEMAY YATES NOTARY PUSLIC, STATE Of ILLINOIS (�L9 2010 STATE OF ) ) SS COUNTY OF ) , 20 I, the undersigned, a Notary Public in and for the County and State aforesaid, DO HEREBY CERTIFY that the above -named , 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 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 day of , 20 My commission expires on , 20 Notary Public STATE OF 24 COUNTY OF ) SS ) I, the undersigned, a Notary Public in and for the County and State aforesaid, DO HEREBY CERTIFY that the above -named , 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 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 day of , 20 My commission expires on , 20 Notary Public 25 EXIIBIT A LEGAL DESCRIPTION THE SOUTH 700.00 FEET OF THE EAST ONE HALF OF THE NORTHEAST ONE QUARTER (EXCEPT THE WEST 872.28 FEET) IN SECTION 26, TOWNSHIP 37 NORTH, RANGE 11 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS. (PIN 22 -26- 201- 006 -0000) And THE SOUTH ONE HALF OF THE FOLLOWING DESCRIBED TRACT: THE EAST ONE HALF OF THE NORTHEAST QUARTER (EXCEPT THE SOUTH 700 FEET THEROF, AND ALSO EXCEPT THE NORTH 663 FEET THEREOF) OF SECTION 26, TOWNSHIP 37 NORTH, RANGE 11 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS. (PIN 22 -26- 201 - 011 -0000) Plat of Annexation to be inserted HIBIT C f