O-11-11 Ord Readopting Ord Authorizing Annexation Agreement SW Corner McCarthy & Bell 11111111 l�l1 . 1111111
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Doc#: 1106022068 Fee: $88.00
Eugene "Gene" Moore
Cook County Recorder of Deeds
Date: 03/01/2011 02:04 PM Pg: 1 of 27
ORDINANCE NO //_If
AN ORDINANCE READOPTING AN ORDINANCE AUTHORIZING THE EXECUTION OF AN
ANNEXATION AGREEMENT FOR AN APPROXIMATELY 8.7 ACRE PARCEL AT THE
SOUTHWEST CORNER OF THE INTERSECTION OF McCARTHY ROAD & BELL ROAD IN
LEMONT,IL
(Preferred Development)
ADOPTED BY THE
PRESIDENT AND BOARD OF TRUSTEES
OF THE VILLAGE OF LEMONT
THIS 146 DAY OF FEBRUARY,2011
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 14th
day of February,2011.
ORDINANCE NO. f) -//
AN ORDINANCE READOPTING AN ORDINANCE AUTHORIZING THE EXECUTION OF AN
ANNEXATION AGREEMENT FOR AN APPROXIMATELY 8.7 ACRE PARCEL AT THE
SOUTHWEST CORNER OF THE INTERSECTION OF McCARTHY ROAD & BELL ROAD IN
LEMONT, IL
(Preferred Development)
WHEREAS, Lemont Retail, LLC (hereinafter referred to as the "Petitioner ") is the owner of
property covering approximately 8.7 acres located at the southwest corner of the intersection of McCarthy
Road and Bell Road (PIN# 22 -26 -401- 032 -000) 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; and
WHEREAS, the President and Board of Trustees adopted ordinance 0- 73 -10, authorizing the
execution of the requested annexation agreement on October 25th, 2010; and
WHERAS, ordinance 0 -73 -10 contains an inaccurate legal description of the subject property.
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 ordinance 0- 73 -10, adopted by the Village of Lemont on October 25th, 2010 is
hereby rescinded in its entirety.
Section2. That the President be and is hereby authorized and directed, and the Village Clerk is
directed to attest to a document known as the "Preferred Development Annexation Agreement," a copy of
which is attached hereto and made a part hereof.
Section 3. 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 14th
DAY OF FEBRUARY, 2011.
Debby Blatzer
Paul Chialdikas
Clifford Miklos
Ron Stapleton
Rick Sniegowski
Jeanette Virgilio
Attest:
AYES NAYS ABSENT ABSTAIN
v
Approved by me this 14th day of February, 2011
ENE M. SMOL
K. REA llage President
EN, Village Clerk
PREFERRED DEVELOPMENT ANNEXATION AGREEMENT
ARTICLE TITLE
I Definitions
II Annexation
III Zoning and Land Use Restrictions
• Zoning and Development Plans
• Zoning Guarantee
• Other Standards
IV
V
Required Improvements
• Water Supply
• Sanitary and Storm Sewers
• Detention Areas
• Other Improvements
• Utility Extensions
Dedication and Construction of Streets
• Dedication and Acceptance of Streets
• Debris
VI Construction of Other Improvements
VII Maintenance of Public Improvements & Common Areas
• Owners Guarantee
■ Maintenance Bond
VIII Damage to Public Improvements
IX Easements and Utilities
X Approval of Plans
XI Binding Effect and Term and Covenants Running with the
Land
XII Notices
XIII Security Interests
XIV Warranties and Representations
XV Continuity of Obligations
XVI No Waiver or Relinquishment of Right to Enforce
Agreement
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 Reimbursement to Village for Legal and Other Fees /
Expenses
• To Effective Date of Agreement
• From and After Effective Date of Agreement
XXVIII Execution of Agreement
EXHIBIT TITLE
A Legal Description
B Plat of Annexation, prepared by Area Survey Company,
P.C. and dated
Bell Road Sanitary Sewer and Water Main Extension Plans
ii
ANNEXATION AGREEMENT
THIS ANNEXATION AGREEMENT, is made and entered into this 14th day of
February, 2011, 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
Lemont Retail, LLC (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,
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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.
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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 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 B -3 once the TERRITORY
is annexed to the VILLAGE.
Upon the Annexation of the TERRITORY to the VILLAGE, the VILLAGE shall adopt
an ordinance granting a special use for two drive - throughs on the TERRITORY. Prior to the
date of this Agreement, such public hearings as are necessary to enable the VILLAGE lawfully to
grant said special use have been conducted upon proper notice, and no further action need be
taken by the OWNER/DEVELOPER to cause the TERRITORY to be granted said special use.
At such time as the TERRITORY is developed, any commercial development shall be
subject to the transition yard requirements of the Lemont Unified Development Ordinance.
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Zoning 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.
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 B -3
zoning district.
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. All
sanitary and storm sewers on the TERRITORY shall be owned and maintained by the
OWNER/DEVELOPER, with right of access by the Village for emergency management
purposes.
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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
VILLAGE. The stormwater detention basin(s) and appurtenant structures is /are to be conveyed
to and owned by OWNER/DEVELOPER or OWNER'S 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 21.73913% (but not
to exceed $500,000.00 ) 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.
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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
Development Ordinance for local streets. Any interior streets within the TERRITORY when
developed shall be owned and maintained by the OWNER/DEVELOPER. Said streets shall be
constructed in accordance with the final engineering plans approved by the Village.
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.
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.
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.
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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 approval for any phase of
development, the OWNER/DEVELOPER, at its option and sole risk, 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 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
7
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
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.
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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
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
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
9
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.
X
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.
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 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-
10
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.
XII
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
418 Main Street
Lemont, IL 60439
For OWNER/DEVELOPER:
Lemont Retail, LLC
141W. Jackson, 35th floor
Chicago, IL 60604
cc: Matthew Klein
322 W Burlington
La Grange, IL 60526
Or such other addresses that any party hereto may designate in writing to the other parties
pursuant to the provisions of this Section.
11
XIII
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.
XIV
WARRANTIES AND REPRESENTATIONS
The OWNER/DEVELOPER represents and warrants to the VILLAGE as follows:
That Lemont Retail, LLC 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
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.
XV
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
12
VILLAGE, at its sole option, has otherwise released OWNER/DEVELOPER and from any or all
of such obligations.
XVI
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.
XVII
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.
XVIII
SINGULAR AND PLURAL
Wherever appropriate in this Agreement, the singular shall include the plural, and the
plural shall include the singular.
XIX
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.
13
XX
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.
XXI
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.
XXII
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.
XXIII
COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which taken
together, shall constitute one and the same instrument.
14
XXIV
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.
XXV
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.
XXVI
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.
XXVII
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,
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
15
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
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.
16
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.
17
XXIX
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:
Preferred-Palos, LLC
j 4 i Peva LLC—
By:
(name)
/
/he�/4e/v /mon* tr
(title)
VILLAGE OF LEMONT
an Illinois Municipal Corporation
By:
19
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 (4 day of t cw 20 L 1
My commission expires on
STATE OF Pi, )
) SS
COUNTY OF C. D )
OFFICIAL SEAT.
ROSEMAY YATES
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES 8.13.2012
, 20
I, the undersigned, a Notary Public in and for the County and State aforesaid, DO HEREBY
CERTIFY that the above -named i,,,, 01:44 , 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 PL. day of FeL. , 20 / (
My commission
Tres on , 20
'u.lic
20
OFFICIAL SEAL
MARGARET SCHAR
NOTARY PUBLIC - STATE OF ILLINOIS
MY COMMISSION EXPIRES :08/12/1 1
Exhibit A
Legal Description
A TRACT OF LAND IN THE NORTH 1/2 OF THE EAST 1/2 (EXCEPT THE WEST 250.0 FEET THEREOF) F0 THE SOUTHEAST QUARTER OF SECTION 26, TOWNSHIP 37 NORTH, RANGE I1 EAST OF THE THIRD PRINCIPAL
MERIDIAN, 114 COOK COUNTY, ILLINOIS; BOUNDED ANT) DESCRIBED AS FOLLOWS, COMMENCING AT THE NORTHWEST CORNER Or LOT 18 114 SUNHILL UNIT 2 SUBDIVISION, BEING A SUBDIVISION OF PART OF THE NORTH
1/2 OF THE EAST 1/2 OF SAID SOUTHEAST QUARTER OF SECTION 26, RECORDED APRIL 21, 1988, AS DOCUMENT NUMBER 68166563. THENCE EAST ALONG THE 14041111 LINE OF SAID LOT 1R, BEING A UNE
PARALLEL TO THE NORTH UNE 0f THE SOUTHEAST 1/4 OF SAID BECTON 26, A DISTANCE OF 202.66 FEET TO THE NORTHEAST CORNER OF SAID LOT 18 AND THE POINT OF BEGINNING, THENCE NORTHEASTERLY
ALONG A LINE FORMING AN ANGLE OF 4743'36" TO THE LEFT, AS MEASURED FROM THE PROLONGATION OF THE LAST DESCRIBED COURSE, A DISTANCE OF 74.33 FEET; THENCE NORTH ALONG A UNE THAT IS
PARALLEL WITH THE WEST LINE CE THE EAST 1/2 OF THE SOUTHEAST 1/4 OF 5A10 SECTION 28 A DISTANCE OF 265 FEET TO THE NORTH UNE 01 SAID SOUTHEAST 1/4; THENCE EAST ALONG THE NORTH UNE OF
SAID SOUTHEAST 1/4 A DISTANCE OF 531.41 FEET TO THE NCNITHEAST CORNER OF SAID SOUTHEAST 1/4; THENCE SOUTH ALONO THE EAST UNE OF SAID SOUTHEAST 1/4 A DISTANCE OF 710.86 FEET TO THE
NORTH UNE OF SUNHILL UNIT 1 SUBDIVISION (EXTENDEO EASTERLY), BEING A SUBDIVISION OF THE NORTH HALF OF THE EAST HALF OF THE SOUTHEAST 1/4 OF SA10 SECTION 26, RECORDED APRIL 9, 1981, AS
DOCUMENT NUMBER 25833414; THENCE WEST ALONG THE NORTH UNE OF 5410 SUNHILL UNIT 1 SUBDIVISION (AS EXTENDED) A DISTANCE OF 500 FEET TO AN EASTERLY CORNER OF LOT 17 IN THE
AFOREMENTIONED SUNHILL UNIT 2 SUBDIVISION; THENCE NORTHEASTERLY ALONG THE NORTHEAST LINE OF SAID LOT T7 A DISTANCE OF 112.19 FEET TOT AN EASTERLY CORNER OF SAID LOT 17 THENCE NORTH
ALONG THE EAST UNE OF SAID SUNHILL UNIT 2 SUBDIVISION A DISTANCE OF 295.75 FEET TO THE PLACE OF BEGINNING, ALL IN COOK COUNTY, ILLINOIS
Exhibit B
PLAT OF ANNEXATION
TO THE VILLAGE OF LEMONT
LEGAL DESCRIPTION:
wutANO R ra NORM ,n a ra [AT, ,n S,11..o FEET D1MEDn FO ,RE SwraAST TeX, OF SDDON 908 VANS. 5e NORM RNME 11 EAST CC ,RE TR[0 POOP.
1 u 2 or suo2 5 0 eo s. 010A18.9 ANO rcs 25. 10 60 me. 21. Al ra S OCIA 1 WEBER 6 Col m x SOME11w19 IS 048. Tio A LOT PMT 0 ra NORTN
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.• n 10 TNCMT DIE L . DCAS ]a DEE of.. OF T. RE [o OUR of Sua la, 1P f TR[ i .f CE NCR.. DAMS ,ME 1107fIS
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ccurn OR _ ) S S
MALE PR[9CERT
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PW50.1. PUN 101E TO BE DE SALE FERXNS MUSE .1NW)
IIMIS W PERS. ANO .MOM PEDLCDro ra A7 MY PM. UM DI A� THE .0 .0 NBINDIAM7 mom ? COOK ) SUBSUMED
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MEN UNDER w NANO UV SEAL MS _DAY OR AD ._. DE LAND BELLEW u ENE AIDE= FUT.
STATE Of tWOS) BS
COWL. Of COOK )
APPROVED AWU6 D B RE BOARD F TRUSTIES U DE MADE FD ORl. COOK CONtt, DAY OF
MU.. OF LEMONT
NUDE CLIP%
STATE U ELMS ) SS
moan. ORCOOR)
▪ TEED AND .DE SDAP OF EE HUGE a LEW.,. DlW3S BY 1 OMIT. AS
BOORDINA A. DE ...MT AND ra
ARD Of TRUSTIES Of SAO MWEE W MS _ DAY OF
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NOTARY PUBLIC
PROPERTY ADDRESS
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g Lemont. Mob
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