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Ordinance 2015-27 DEBBIE iG I 1 I ETTE KENDALL COUNTY, IL RECORDED: 9/24/2915 3:86 PR ORDI: 61.98 RHSPS FEE: 18.89 PAGES: 16 UNITED CITY OF YORKVILLE KENDALL COUNTY, ILLINOIS ORDINANCE NO. 2015-27 AN ORDINANCE OF THE UNITED CITY OF YORKVILLE,KENDALL COUNTY, ILLINOIS,APPROVING THE FIRST AMENDMENT TO AN ANNEXATION AGREEMENT BY AND BETWEEN THE UNITED CITY OF YORKVILLE,KENDALL COUNTY,ILLINOIS AND CASTLE BANK,A DIVISION OF FIRST NATIONAL BANK OF OMAHA,AS TRUSTEE UNDER TRUST AGREEMENT DATED JANUARY 8, 2013 AND KNOWN AS TRUST NUMBER 2845 This is the first amendment to the Annexation Agreement for Evergreen Farm Estates recorded as Document#200600031427. Passed by the City Council of the United City of Yorkville,Kendall County,Illinois This 26h day of May, 2015 Prepared by and Return to: United City of Yorkville 800 Game Farm Road Yorkville,IL 60560 Published in pamphlet form by the authority of the Mayor and City Council of the United City of Yorkville,Kendall County,Illinois on September 24,2015. Ordinance No. 2015- AN ORDINANCE OF THE UNITED CITY OF YORKVILLE, KENDALL COUNTY, ILLINOIS, APPROVING THE FIRST AMENDMENT TO AN ANNEXATION AGREEMENT BY AND BETWEEN THE UNITED CITY OF YORKVILLE, KENDALL COUNTY, ILLINOIS AND CASTLE BANK, A DIVISION OF FIRST NATIONAL BANK OF OMAHA, AS TRUSTEE UNDER TRUST AGREEMENT DATED JANUARY 8, 2013 AND KNOWN AS TRUST NUMBER 2845 WHEREAS, the United City of Yorkville, Kendall County, Illinois (the "City") is a duly organized and validly existing non home-rule municipality created in accordance with the Constitution of the State of Illinois of 1970 and the laws of the State; and, WHEREAS, the City and Evergreen Farm Estates, LLC entered into an Annexation Agreement dated August 8, 2006 (the "Original Agreement") which provided, among other things, for the annexation into the City and the development of approximately 49 acres (the "Subject Property") in accordance with an R-2 Single Family Residence District and a Concept Plan, which was attached to the Original Agreement, to be known as "Evergreen"; and, WHEREAS, the terms and conditions of the Original Agreement were to be "cross contingent" with the City's approval of four additional annexations referred to as the "Southwest Infrastructure Developments"; and, WHEREAS, the Subject Property was never developed, nor any other area included in any one of the Southwest Infrastructure Developments and all of the parties in interest, or their successors in interest, now desire to unwind any and all of the cross contingencies and obligations of the Southwest Infrastructure Developments; and, WHEREAS, the City desires to amend each of the annexation agreements as executed by each member of the Southwest Infrastructure Developments to remove all cross contingencies and obligations on the condition that all five owners of the Southwest Infrastructure Developments agree to such amendments; and, WHEREAS, all notices required by law relating to an amendment to the Original Agreement have been given to the persons or entities entitled thereto, pursuant to the applicable provisions of the Illinois Compiled Statutes; and, WHEREAS, as required by the Illinois Municipal Code, the Mayor and City Council of the City duly fixed the time and the place for a public hearing on the amendment to the Original Agreement, and pursuant to legal notice, held said hearing on May 12, 2015 all as required by the provisions of the Illinois Compiled Statutes and the City's Ordinances. NOW, THEREFORE, BE IT ORDAINED by the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois, as follows: Ordinance No.2015-o7 Page 2 Section 1. The above recitals are incorporated and made a part of this Ordinance. Section 2. The First Amendment To An Annexation Agreement By And Between The United City Of Yorkville, Kendall County, Illinois And Castle Bank, A Division Of First National Bank Of Omaha, As Trustee Under Trust Agreement Dated January 8, 2013 And Known As Trust Number 2845, attached hereto and made a part hereof, is hereby approved and the Mayor and City Clerk are hereby authorized and directed to execute and deliver said First Amendment on behalf of the City. Section 3. This Ordinance shall be in full force and effect upon its passage, approval, and publication in pamphlet form as provided by law. Passed by the City Council of the United City of Yorkville, Kendall County, Illinois this day of , A.D. 2015. CITY CLERK CARLO COLOSIMO KEN KOCH JACKIE MILSCHEWSKI LARRY KOT CHRIS FUNKHOUSER JOEL FRIEDERS DIANE TEELING SEAVER TARULIS "^ Approved by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this 'y day of �cP�ryl6i✓i2 , A.D. 2015. -19� -"/0) MAYO Ir Attest: CITY CLERK Published in pamphlet form: SEPT EMOU IS , 2015 Ordinance No.2015- ol-7 Page 3 FIRST AMENDMENT TO AN ANNEXATION AGREEMENT BY AND BETWEEN THE UNITED CITY OF YORKVILLE,KENDALL COUNTY,ILLINOIS AND CASTLE BANK,A DIVISION OF FIRST NATIONAL BANK OF OMAHA,AS TRUSTEE UNDER TRUST AGREEMENT DATED JANUARY 8,2013 AND KNOWN AS TRUST NUMBER 2845 This First Amendment to an Annexation Agreement dated August 8, 2006 (the "Original Agreement"),by and between the United City of Yorkville, Kendall County, Illinois, a municipal corporation(the "City"), and Evergreen Farm Estates, LLC (the "Original Owner") is made and entered into this 4 day of SE.P EM Mk , 2015, by and between the City and CASTLE BANK, A DIVISION OF FIRST NATIONAL BANK OF OMAHA, AS TRUSTEE UNDER TRUST AGREEMENT DATED JANUARY 8, 2013 AND KNOWN AS TRUST NUMBER I 2845 ("Successor Owner"). WHEREAS,the City and the Original Owner entered into the Original Agreement which provided, among other things, for the annexation into the City and the development of approximately 49 acres (the "Subject Property") in accordance with an R-2 Single Family Residence District and a Concept Plan attached to the Original Agreement as Exhibit C, to be known as"Evergreen"; and, WHEREAS, the Original Agreement further provided for recapture agreements for oversized and deeper utilities than required by City Code and the establishment of a special service area ("SSA") which was intended to be the primary funding mechanism for the installation of all off-site public improvements and obligated the City to a"Special Tax" or other "Revenue Bond"to be paid by future property owners of the Subject Property by the assessment of a special tax; and, 1 WHEREAS, the terms and conditions of the Original Agreement were to be "cross contingent"with the City's approval of four additional annexations referred to as the"Southwest Infrastructure Developments" as these four developments with the Subject Property were deemed to be related and as a group of five developments to derive a special benefit through the establishment of the SSA and issuance of a "Special Tax" or other "Revenue Bonds"; and, WHEREAS, the Subject Property was never developed, nor any other area included in any one of the Southwest Infrastructure Developments and all of the parties in interest, or their successors in interest, now desire to unwind any and all of the cross contingencies and obligations of the Southwest Infrastructure Developments; and, WHEREAS,the City desires to amend each of the annexation agreements as executed by each member of the Southwest Infrastructure Developments to remove all cross contingencies and obligations on the condition that all five owners of the Southwest Infrastructure Developments agree to such amendments. NOW, THEREFORE, in consideration of the foregoing mutual covenants, agreements and conditions herein set forth,the City and the Successor Owner agree as follows: Section 1. The Original Agreement is hereby repealed in its entirety and replaced with this First Amendment. Section 2. Zoning. The Subject Property has been classified in the R-2 Single Family Residence Zoning District in accordance with the United City of Yorkville Zoning Ordinance and the Successor Owner of the Subject Property shall have the right to develop the Subject Property pursuant to said Zoning Ordinance, the City's Subdivision Ordinance and all other ordinances applicable to R-2 Single Family Residence development, as in effect at the time of the development of the Subject Property. 2 Portions of the Subject Property are presently being used for agricultural purposes and, notwithstanding any provision of the City Code now in effect or adopted during the Term (as hereinafter defined) of this First Amendment, and notwithstanding the City's zoning of the Subject Property,the current uses shall be permitted to continue as a legal non-conforming use. Section 3. Annexation to Sanitary District. On or before the development of the Subject Property, the Successor Owner hereby agrees to file any necessary petitions and agreements to request annexation thereof to the Yorkville Bristol Sanitary District ("YBSD") for the purpose of extending and connecting to the sanitary sewer lines and treatment facilities of YBSD. The City shall fully cooperate with the Successor Owner in obtaining such permits as may be required from time to time by both federal and state law, including, without limitation, the Illinois Environmental Protection Act, in order to permit the construction and connection of sanitary sewer lines to the YBSD facilities to serve the Subject Property. Section 4. Sanitary Sewer and Water Improvements. A. Successor Owner's Obligation. At its sole cost and expense, upon development of the Subject Property, the Successor Owner shall be obligated to construct all on-site sanitary sewer collection lines and all other on-site improvements as approved by the City for the collection of sanitary sewage generated by the Subject Property(the "Sewer Improvements") and all on-site water mains, distribution lines, and other improvements as approved by the City for the provision of potable water to the Subject Property (the "Water Improvements"), in accordance with the City Code. Should the City determine that a well and water treatment facility to be located on the Subject Property or a water tower is required, such improvements shall be considered an off-site improvement to be performed by the City at the cost of the 3 Successor Owner. In the event the City determines a need for off-site Sewer Improvements, such off-site Sewer Improvements shall be performed by the City at the cost of the Successor Owner. B. Dedication. Upon completion of construction or installation of the Sewer Improvements and Water Improvements, the Successor Owner shall dedicate to the City those portions of the Sewer Improvements and Water Improvements that are required to be dedicated in accordance with the City Code (the "Public Sewer and Water Improvements"). Section 5. Storm Water Improvements. A. Successor Owner's Obligation. Upon development of the Subject Property at its own cost, the Successor Owner shall be obligated to construct all storm sewers, detention systems, and compensatory storage facilities as approved by the City for storm water drainage from the Subject Property("Storm Water Improvements") in accordance with the City Code. B. Dedication. Upon completion of construction, all Storm Water Improvements shall be owned and maintained by the Successor Owner. The Successor Owner shall dedicate a maintenance easement or easements to the City allowing the City to maintain the Storm Water Improvements. Section 6 Repeal of all Cross Contingencies and Cross Obligations of the Southwest Infrastructure Developments. The Successor Owner and City agree that the enforceability of this First Amendment is contingent upon the approval, execution and recordation of amendments to the original annexation agreements for each of the other members of the Southwest Infrastructure Developments, namely: Chally Farm, Silver Fox, Aspen Ridge and Yorkwood Estates. Upon approval, execution and recordation of this First Amendment and amendments to all of the 4 annexation agreements for each of the Southwest Infrastructure Developments, the Original Agreement shall be repealed and deemed to be null and void. Section 7. Security Instruments. As required by City Code, upon development, the Owner Successor shall deposit, or cause to be deposited with the City such letters of credit or surety bonds ("Security Instruments") on the standard forms of the City,to guarantee completion and maintenance of improvements(as defined in the City's Subdivision Control Ordinance)to be constructed as a part of the development of the Subject Property. The Successor Owner may use either irrevocable letters of credit or surety benefits for its Security Instruments, as permitted by City ordinance. The amount and duration of each Security Instrument shall be as required by applicable ordinances of the City at the time of development of the Subject Property. Section 8. City Ordinances. The Successor Owner agrees that the future development of the Subject Property shall be in accordance with the requirements of all applicable city ordinances as in effect as of the date all required development approvals are issued by the City, including but not limited to the following: (a) Procedures for acceptance of public improvements constructed as a part of the development of all or a portion of the Subject Property; (b) Signage; (c) Appearance code; (d) Permits; (e) Fees, charges and contributions; (f) School and park contributions with land or cash in lieu of land; and, (g) Building codes. 5 Section 9. Remedies. Without limiting any of the remedies otherwise available at law or in equity to the Successor Owner or the City as a result of the breach of this First Amendment, the parties agree as follows: A. This First Amendment shall be enforceable in any court of competent jurisdiction in the State of Illinois by the parties and their successors and assigns. Enforcement may be sought by an appropriate action at law or in equity to secure performance of the covenants, agreements, conditions and obligations contained herein, including specific performance of this First Amendment. This First Amendment shall be governed by the laws of the State of Illinois. B. No action taken by any party pursuant to the provisions of this or any other section of this First Amendment shall constitute an election of remedies, and all remedies set forth in this First Amendment, as well as any remedies at law or in equity, shall be cumulative and shall not exclude any other remedy. C. Unless otherwise expressly provided herein, in the event of a material breach of this First Amendment, the parties agree that the defaulting party shall have thirty (30) days after written notice of said breach to correct the same prior to the non-breaching party's seeking of any remedy provided for herein. If such breach cannot be corrected within thirty(30) days, the non-breaching party shall not seek to exercise any remedy provided for herein as long as the defaulting party has initiated the cure of said breach and is diligently prosecuting the cure of said breach. D. In the event the performance of any covenant to be performed hereunder by any party is delayed for causes which are beyond the reasonable control of the party responsible for such performance (which causes shall include, but not be limited to, acts of God; inclement 6 weather conditions; strikes; material shortages; lockouts; the revocation of, suspension of, or inability to secure any necessary governmental permit or license; or/and any similar cause), the time for such performance shall be extended by the amount of time of such delay. E. The failure of the parties 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. Section 10. Partial Invalidity of Agreement. This First Amendment is entered into pursuant to the provisions of the Illinois Municipal Code, Section 11-15.1-1 et seq. (65 ILCS 5/11-15.1-1 et seq.). If any provision of this First Amendment or its application to any person, entity, or property is held invalid, such provision shall be deemed to be excised here from and the invalidity thereof shall not affect the application or validity of any other terms, conditions and provisions of this Amendment and, to that end, any terms, conditions and provisions of this First Amendment are declared to be severable. In addition, the City and Successor Owner shall take all action necessary or required to fulfill the intent of this First Amendment as to the development of the Subject Property. Section 11. Notices. All notices shall be in writing and shall be delivered personally or by a nationally recognized overnight courier, prepaid, or shall be sent by registered or certified mail, return receipt requested,postage prepaid, at the following addresses: 7 Successor/Owner Castle Bank, a division of First National Bank of Omaha, as Trustee under Trust Agreement Number 2845 7 Smith Lane Pontiac, Illinois 61764 With a copy to Daniel J. Kramer I I 07 South Bridge Street Yorkville, Illinois 60560 To the City United City of Yorkville 800 Game Farm Road Yorkville, Illinois 60560 With a copy to Kathleen Field Orr, City Attorney Kathleen Field Orr&Associates 53 West Jackson Blvd. Suite 964 Chicago, Illinois 60604 Service shall be deemed to be upon delivery unless delivery is rejected and then service shall be deemed to have occurred upon such rejection. Section 12. General Provisions. A. Entire Agreement. This First Amendment contains all the terms and conditions agreed upon by the parties hereto and no other prior agreement regarding the subject matter hereof shall be deemed to exist to bind the parties. The parties acknowledge and agree that the terms and conditions of this First Amendment have been reached through a process of good faith negotiation, both by principals and through counsel, and represent terms and conditions that are deemed by the parties to be fair, reasonable, acceptable and contractually binding upon each of them. 8 B. Amendment. This First Amendment may be amended from time to time in writing with the consent of the parties,pursuant to applicable provisions of the City Code and the laws of this State in force from time to time. The City and the then owner of record of any portion of the Subject Property, even if not the Successor Owner named herein, may agree (only in writing) to amend or modify this First Amendment as to such portion(s) of the Subject Property without the consent of the owner(s) of other portion(s) of the Subject Property, so long as such amendment or modification does not alter the rights, obligations or remedies provided in this First Amendment for any owner or any other portion of the Subject Property which is owned by such owner of record. C. No Third Party Beneficiaries. No provision of this First Amendment is intended to benefit,nor shall any provision of this First Amendment benefit, any party, individual or entity other than a party to this First Amendment or its respective successor or assign. D. Effective Date. The date on which this First Amendment becomes effective (the "Effective Date") shall be the date on which it has been approved and executed by all parties hereto. E. Term of First Amendment. This First Amendment shall be effective from its Effective Date and terminate as of August 7, 2026, being the termination date of the Original Agreement (the "Term); provided, however, that if any action is filed or any claim is made challenging the legality, validity or enforceability of this First Amendment, the period during which such action or claim is pending or unresolved shall not be included as part of the Term of this First Amendment. 9 F. Counterparts. This First Amendment may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document. Section 13. Successors and Assigns. A. This First Amendment shall inure to the benefit of and be binding upon the Successor Owner and its successor(s) in title and interest, and upon the City, and any successor municipalities of the City. It is specifically agreed that the Successor Owner shall have the right to sell, transfer, lease, and assign all or any part of the Subject Property to other persons, firms, partnerships, corporations, or other entities for building or development purposes (as well as for occupancy) and that such persons, firms, partnerships, corporations, or other entities shall be entitled to the same rights and have the same obligations as the Successor Owner has under this First Amendment. B. It is understood and agreed that this First Amendment constitutes a covenant running with the land and as such, shall be assignable to and binding upon each and every subsequent grantee and successor in interest of the Successor Owner and the City. C. Nothing contained in this First Amendment shall be construed to restrict or limit the right of the Successor Owner to sell or convey all or any portion of the Subject Property, whether improved or unimproved. 10 IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be executed by their duly authorized officers on the above date at Yorkville, Illinois. United City of Yorkville, an Illinois Municipal Corporation By: ,A Mayor I Attest City Clerk Castle Bank, a division of First National Bank of Omaha, as Trustee under Trust Agreement dated January 8,2013 and known as Trust Number 2845 3UBJWT M m(CULPA"w PXWR ,krTA0W IWD MNN A PW F By. .4c 11 EXCULPATORY RIDER This instrument is executed by Castle Bank, a division of First National Bank of Omaha, as Trustee under the provisions of a Trust Agreement dated _1/R 11901:3 and known as Trust No. 2945 and not personally, but solely as Trustee aforesaid, in the exercise of the power and authority conferred upon and vested in it as such Trustee. This instrument is executed and delivered by the Trust solely in the exercise of the powers expressly conferred upon the Trustee under the Trust and upon the written direction of the beneficiaries and/or holders of the power of direction of said Trust and Castle Bank, a division of First National Bank of Omaha, warrants that it possesses full power and authority to execute this instrument. It is expressly understood and agreed by and between the parties hereto, anything herein to the contrary notwithstanding, that each and all of the representations, warranties, covenants, undertakings and agreements herein made on the part of the trustee while in form purporting to be the said representations, warranties, covenants, undertakings and agreements of said Trustee are each and every one of them not made with the intention of binding Castle Bank, a division of First National Bank of Omaha, in its individual capacity, but are made and intended solely for the purpose of binding only that portion of the Trust Property specifically described herein. No personal liability or personal responsibility is assumed by or nor shall at any time be asserted or enforceable against Castle Bank, a division of First National Bank of Omaha, on account of any representations, warranties, (including but not limited to any representations and/or warranties in regards to potential and/or existent Hazardous Waste) covenants, undertakings and agreements contained in the instrument, (including but not limited to any indebtedness accruing plus interest hereunder) either express or implied or arising in any way out of the transaction in connection with which this instrument is executed, all such personal liability or responsibility, if any, being expressly waived and released, and any liability (including any and all liability for any violation under the Federal and/or state Environmental or Hazardous Waste laws) hereunder being specifically limited to the Trust assets, if any, securing this instrument. Any provision of this instrument referring to a right of any person to be indemnified or held harmless, or reimbursed by the Trustee for any costs, claims, losses, fines, penalties, damages, costs of any nature including attorney's fees and expenses, arising in any way out of the execution of this instrument or in connection thereto are expressly waived and released by all parties to and parties claiming, under this instrument. Any person claiming or any provision of this instrument referring to a right to be held harmless,indemnified or reimbursed for any and all costs,losses and expenses of any nature, in connection with the execution of this instrument, shall be construed as only a right of redemption out of the assets of the Trust. Notwithstanding anything in this instrument contained, in the event of any conflict between the body of this exoneration and the body of this instrument, the provisions of this paragraph shall control. Trustee being fully exempted; nothing herein contained shall limit the right of any party to enforce the personal liability of any other party to this instrument. Legal Description of Subject Property THAT PART OF SECTION 6, TOWNSHIP 36 NORTH, RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED BY COMMENCING AT THE NORTHEAST CORNER OF THE NORTHWEST 1/4 OF SAID SECTION 6, THENCE WEST 233.9 FEET ALONG THE NORTH LINE OF SAID SECTION 6 TO THE SOUTHEASTERLY LINE OF THE RIGHT-OF-WAY OF THE CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, THENCE SOUTH 61 DEGREES 06 MINUTES 20 SECONDS WEST ALONG SAID RIGHT-OF-WAY LINE 1488.52 FEET FOR A POINT OF BEGINNING, THENCE SOUTH O1 DEGREE 28 MINUTES 38 SECONDS EAST 406.94 FEET, THENCE SOUTH 25 DEGREES 19 MINUTES 10 SECONDS EAST 1326.82 FEET, THENCE SOUTH 24 DEGREES 05 MINUTES 33 SECONDS EAST 587.67 FEET, THENCE SOUTH 66 DEGREES 45 MINUTES 42 SECONDS WEST 1560.96 FEET TO THE CENTER LINE OF A GRAVEL ROAD, THENCE NORTH 22 DEGREES 15 MINUTES 40 SECONDS WEST ALONG SAID CENTER LINE 1258.64 FEET, THENCE NORTH 06 DEGREES 13 MINUTES 10 SECONDS WEST ALONG WEST CENTER LINE OF SAID GRAVEL ROAD 250.27 FEET TO THE CENTER LINE OF FOX ROAD. THENCE SOUTH 63 DEOREES 42 MINUTES 50 SECONDS WEST ALONG THE CENTER LINE OF FOX ROAD 43.37 FEET, THENCE NORTH 08 DEGREES 38 MINUTES 52 SECONDS WEST 676.69 FEET TO THE AFORESAID SOUTHERLY RIGHT OF WAY LINE, THENCE NORTH 61 DEGREES 06 MINUTES 20 SECONDS ALONG SAID RIGHT OF WAY LINE 1431.91 FEET TO THE POINT OF BEGINNING, (EXCEPTING THEREFROM THE SOUTHEASTERLY 350.0 FEET OF THE SOUTHWESTERLY 469.81 FEET THEREOF, AND ALSO EXCEPTING THEREFROM THE FOLLOWING PARCEL OF PROPERTY, FROM THE POINT OF BEGINNING AFORESAID, THENCE SOUTH O1 DEGREES 28 MINUTES 38 SECONDS EAST 406.94 FEET, THENCE SOUTH 25 DECREES 19 MINUTES 10 SECONDS EAST 305.69 FEET TO THE CENTER LINE OF FOX ROAD FOR A NEW POINT OF BEGINNING, THENCE SOUTH 25 DEGREES 19 MINUTES 10 SECONDS EAST 1021 13 FEET, THENCE SOUTH 24 DECREES 50 MINUTES 33 SECONDS EAST 587.67 FEET, THENCE SOUTH 66 DEGREES 45 MINUTES 42 SECONDS WEST 625.43 FEET, THENCE NORTH 25 DEGREES 19 MINUTES 10 SECONDS WEST 1540.44 FEET TO SAID CENTER LINE OF FOX ROAD, THENCE NORTH 63 DEGREES 42 MINUTES 50 SECONDS EAST ALONG SAID CENTER LINE 630.0 FEET TO THE POINT OF BEGINNING), ALL IN KENDALL COUNTY, ILLINOIS. PERMANENT INDEX NUMBER: 05-06-100-012