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HomeMy WebLinkAboutOrdinances - O-94-5664 - 08/17/1994 - AUTHORIZE SECOND AMENDMENT ANNEX AGMT CORPORATE CEORDINANCE NO. 0-94-664 AN ORDINANCE APPROVING AND AUTHORIZING EXECUTION OF A SECOND AMENDMENT TO ANNEXATION AGREEMENT DATED JULY 19, 1989 REGARDING PROPERTY COMMONLY KNOWN AS CORPORATE CENTER LANG PARCEL WHEREAS, on July 19, 1989, the City of McHenry Corporate Authorities entered into an Annexation Agreement between the City of McHenry, Cosmopolitan National Bank of Chicago, as Trustee of Trust No. 28571, Midwest Properties Limited Partnership, Midwest Construction Co., Inc., McHenry Corporate Center, Inc., and Prime Development Corp.; and WHEREAS, said Annexation Agreement dated July 19, 1989 (Original Agreement) was filed with the office of the McHenry County Recorder of Deeds on August 14, 1989, as Document Number 89RO26256; and WHEREAS, a First Amendment to said Original Agreement was approved on March 21, 1994 by the City of McHenry Corporate Authorities and filed with the office of the McHenry County Recorder of Deeds on May 23, 1994, as Document Number 94RO32459; and WHEREAS, a Third Amendment to said Original Agreement was approved on August 31, 1994 by the City of McHenry Corporate Authorities and filed with the office of the McHenry County Recorder of Deeds on September 20, 1994, as Document Number 94RO54866; and WHEREAS, this Second Amendment was approved on August 17, 1994, but was delayed in execution and is being filed with the McHenry County Recorder of Deeds after the Third Amendment was recorded; and WHEREAS, various parties to the Original Agreement, among others, have petitioned the Mayor and City Council for approval of a Second Amendment to said Original Agreement only with respect to a certain portion of Parcel A (Lang Parcel); and WHEREAS, a public hearing was held on the Petition before the Corporate Authorities pursuant to 65 ILCS 5/11-15.1-3 and it is the desire of the Corporate Authorities to enter into a Third Amendment to said Original Agreement. NOW, THEREFORE, BE IT ORDAINED by the Mayor and City Council of the City of McHenry, McHenry County, Illinois, as follows: SECTION 1: That the Mayor be, and is hereby authorized and directed to execute, and the City Clerk is authorized and directed to attest and file with the office of the McHenry County Recorder of Deeds a Certified Copy of this Ordinance approving the Second Amendment to Annexation Agreement dated July 19, 1989, a copy of which is attached hereto and made a part hereof as Exhibit "A". SECTION 2: If any section, paragraph, subdivision, clause, sentence or provision of this Ordinance shall be adjudged by any Court of competent jurisdiction to be invalid, such judgment shall not affect, impair, invalidate or nullify the remainder thereof, which remainder shall remain and continue in full force and effect. SECTION 3: All ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of such conflict. Corporate Center Second Amendment to Annexation Agreement, Page 1 01,'+1;7 -21q'l SECTION 4: This Ordinance shall be in full force and effect upon its passage, approval and publication in pamphlet form (which publication is hereby authorized) as provided by law. PASSED this 17th day of August, 1994. AYES: Bolger, Locke, Bates, Lawson, Baird, Cuda NAYS: None ABSENT: NOT VOTING: None ABSTAINED: None APPROVED this 17th day of August, 1994. Mayor ATTEST: Cit Clerk Corporate Center Second Amendment to Annexation Agreement, Page 2 (142J) 94-67-2394 September 14, 1994 14:11 pm MCHENRY\AMANNLAN.COR RECEIVED STATE OF ILLINOIS ) - COUNTY OF MCHENRY ) OCT 27 1994 CITY OF MCHENRY ) Cny OF MWENRY SECOND AMENDMENT TO ANNEXATION AGREEMENT DATED MMY 19, 1989 THIS AGREEMENT, effective this 30th day of August, 1994, by and between the CITY OF MCHENRY, a municipal corporation, in the State of Illinois ("City"), COSMOPOLITAN BANK AND TRUST COMPANY, successor trustee to COSMOPOLITAN NATIONAL BANK OF CHICAGO, as Trustee of Trust 28571, 801 N. Clark Street, Chicago, Illinois ("Cosmopolitan"), MIDWEST PROPERTIES LIMITED PARTNERSHIP, 2640 W. Touhy Ave., Chicago, Illinois ("Midwest Partnership"), MIDWEST CONSTRUCTION CO., INC., 2640 W. Touhy Ave., Chicago, Illinois, an Illinois corporation, as General Partner ("Midwest Construction") and GARY LANG, 908 N. Front Street, McHenry, Illinois ("Lang"). INTRODUCTION Various parties to this Agreement were parties to an Annexation Agreement dated July 19, 1989 and it is pursuant to 65 ILCS 5/11-15.1 and paragraph 27 of the July 19, 1989 Agreement that this Second Amendment is being made. The July 19, 1989 Annexation Agreement shall be referred to herein as the "Original Agreement." All provisions of this Second Amendment shall only affect Parcel A of the Original Agreement as legally described hereinafter. STATUS OF THE PARTIES A. At the time the Original Agreement was entered into, Cosmopolitan held title to Parcel A legally described on page 1 of the Original Agreement, hereinafter referred to as "Parcel A." B. Midwest Partnership is currently the sole owner of 100% of the beneficial interest in Cosmopolitan. C. The General Partner of Midwest Partnership is Midwest Construction and it has the authority under a Limited Partnership '34 -67 -2396 agreement to authorize and direct the execution of this Agreement on behalf of itself, Cosmopolitan and the Midwest Partnership. D. Gary Lang has entered into a contract to purchase a portion of Parcel A, legally described below, and this Second Amendment to Annexation Agreement, dated July 19, 1989, shall only apply to that portion of the Parcel A (hereinafter referred to as the "Lang Parcel"): That part of the Northeast Quarter of Section 10, Township 44 North, Range 8 East of the Third Principal Meridian, described as follows: Commencing at the northeast corner of said Northeast Quarter; then South 89 degrees 13 minutes 25 seconds West, along the north line' of said Northeast Quarter, 68.78 feet to the point of beginning; thence South 89 degrees 13 minutes 25 seconds West along said north line, 637.46 feet thence south 26 degrees 31 minutes 10 seconds West, 856.72 feet; thence South 63 degrees 33 minutes 24 seconds East,- 100.0 feet; thence North 26 degrees 31 minutes 10 seconds East, 250.0 feet; thence South 63 degrees 33 minutes 24 seconds East, 500.00 feet to the westerly right-of-way of State Route 31; thence North 26 degrees 31 minutes 10 seconds East along said westerly right-of-way, 23.91 feet to a point of curvature; thence northeasterly 875.20 feet along a curve, concave southeasterly, having a radius�of 11419.0 feet, having a chord length of 874.98 feet and bearing North 24 degrees 19 minutes 26 seconds East, to the point of beginning, in McHenry County, Illinois (10.827 acres). NOW THEREFORE, in consideration of the mutual covenants contained` herein, it is hereby agreed by and between the parties hereto as follows: 1. The Mayor and City Council shall, contemporaneously with the execution of this Agreement, enact an ordinance authorizing the Mayor and Clerk's execution of this Agreement. 2. The Revised Conceptual Plan, dated SE'pTEM$ER.R 1994, affecting only Parcel A, attached hereto as "Exhibit A," is approved by the City. 3. The City hereby grants a variation to Lang amending paragraph 8A of the Original Agreement and guidelines attached thereto, with respect to the Lang parcel, to allow the Lang Parcel to be used for "Automotive and truck sales and services including repair and body work ancillary thereto." However, nothing 2 94-67-2397 contained in this paragraph shall be construed to otherwise amend, delete, or modify the prohibition against "automotive repair and related industries" for any part of Parcels A, B, C, D or E, except as exclusively provided above for the Lang Parcel. 4. The City agrees to allow title to the Lang Parcel to be transferred to Lang by meets and bounds, so long as Lang fully complies with the terms of this Agreement. 5. The Original Agreement shall also be amended as follows: a. Paragraph 25 is hereby amended to add the representation that the City will not object to the Lang Parcel having one direct access for ingress and egress to Route 31. to service the proposed use on the Lang Parcel. Provided, however, Lang shall dedicate 20 feet of right-of-way along the entire Lang Parcel frontage on Route 31 upon recording the final plat for the Lang Parcel. Thereafter, the existing right-of-way line shall be used to determine set back requirements. b. Paragraph 33 is hereby amended in conformance with the Subdividers Agreement attached hereto as "Exhibit B." Provided, however, Lang shall submit a preliminary plat of subdivision to the City within 90 days after receiving an MOT permit for direct access to Route 31 from the Lang Parcel and submit a, final plat of subdivision to the City within 90 days of preliminary plat approval by the City council. 6. Lang shall cause to be built on the Lang Parcel, a building of at least 30,000 square feet with the facade described on "Exhibit C." 7. The parties hereto shall comply with the promotional activities restriction memorandum, dated August 17, 1994; building facade signage memorandum, dated August 17, 1994; landscaping plan, dated August 1, 1994; ground mounted sign plan; sketch no. 70030, dated August 2, 1994 (logo and wording may be modified), all attached hereto as "Exhibit D-1" (two pages), "Exhibit D-2" (seven page), "Exhibit D-3" (1 page), and "Exhibit D-4" (one page), respectively. With respect to the Beach Party Sale and all accessories allowed during the month of June, in accordance with M 94-07-2398 the promotional activities letter dated August 17, 1994, this promotional activity shall only be allowed during the first calendar year in June following issuance of the City's occupancy permit on the Lang Parcel. Thereafter, the location of the Beach Party Sale and related items, on the east side of the Lang Parcel building, shall be approved by the McHenry Corporate Authorities. 8. Lang shall comply with the guidelines attached to the Original Agreement, as amended on March 21, 1994 and as amended by this Second Amendment. 9. As part of the Lang Parcel development, subject to approval by IDOT, Lang shall cause to be installed, on or before August 17, 1996, in the northbound lane of Route 31, a left-hand turn lane. The cost associated with this improvement shall be shared between Lang and the City as follows: Lang shall be responsible for payment of all costs of construction subject to reimbursement by the City of 50% of said costs, resulting from grants or the increased amount of sales tax received by the City, as calculated below, not to exceed $50,000 in any event. To the extent allowed by law, the City share shall only be paid from grants received from the State of Illinois or federal government. In the event such grants are not available, to the extent allowed by law, the City share shall be limited to and paid from the increase in sales taxes received by the City, from the Lang Parcel development, within 48 months following issuance of the Lang Parcel occupancy permit. The increase in sales tax shall be determined, by representation from the certified public accountant used by Gary Lang and his automobile dealerships, by comparing the sales tax received by the City from the date said occupancy permit is issued with the sales tax received by the City from the Gary Lang automobile dealership over the 12 consecutive months prior to the date on which said occupancy permit was issued. 10. In the event that Lang fails to receive a permit from IDOT allowing direct access from the Lang Parcel to Illinois Route 31 on or before February 17, 1996, this Second Amendment shall be deemed null and void. 4 94-67-2399 11. Frontage of the Lang Parcel along Dayton Street shall be reduced from a minimum of 200 feet to 100 feet. Construction of sidewalks on the Lang Parcel on Route 31 and the proposed Dayton Road shall not be required. 12. This Second Amendment shall not be construed to extend the term of the Original Agreement. 13. a. In the event that this Second Amendment is challenged in any court, for any reason, and the City is made a party to any such lawsuit, Lang shall indemnify and reimburse the City, upon demand, for any and all loss or damages incurred therein, including all attorneys fees, expert witness fees and costs incurred in the defense of such a lawsuit. b. In the event that any party to this Agreement files suit in any court to enforce the terms of this Agreement, the prevailing party shall be entitled to recover from the losing party, all loss or damage incurred therein, including all attorneys fees, expert witness fees and costs incurred by the prevailing party. 14. The agreements contained herein shall be deemed to be covenants running with the land during the term of this Agreement, shall be binding upon the heirs, executors, successors and assigns of the parties and a copy of this Agreement shall be filed in the office of the McHenry County Recorder of Deeds. 15. The provisions of this Agreement shall be deemed. to separable, and if any section, paragraph, clause, provisions or item of this Agreement shall be held invalid, such provisions shall be deemed to be excised therefrom and the invalidity of such section, paragraph, clause, provision or item shall not affect any other provision of this Agreement. 16. Except as herein modified, all the terms, conditions and provisions of the Original Agreement shall stand and be in full force and effect. IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals, and have caused this instrument to be executed by k, 94-67-2400 their duly authorized officials and the corporate seal attached thereto, all on the day and year first above written. •CITY OF MCH Y i By: �—. t ayor At, te I City Clerk COSMOPOLITAN BANK AND TRUST COMPANY, Cosmopolitan National Bank of Chicago, as Trus ee of Trust Q28571 EM NOT PERSONALLY Attest: VICE PRESIDENT & TRUST OFFICE 1,4 -red by Cosmopolitan Bank & Trust, not In tb in tie capacity herein described. for the purpose of t, iasmlxd property, and it is expressly understood and S SCRIB D WORN aT« Mies hereto, anything harem to the contrary y.�. n—,wst:rstsnc that each and all of the umdertakin;s and agreements be re h ay henm mace, are made and Intended not as personal uulertaklnp and of be 94 M. agreements of the Trustee, or for the purpose of binding the Trust" personally, but executed and delivered by the Trustee solely In the "erdw of the powers conferred upon it as such Trustee, and no personal Bability or personal responsibility k assumed by, or shall at any time be asserted or enforced against said Trustee on account hereof or on account of any Nc\tarry ft9lic undertaking or ap wmant herein contained, either aspreucd er kmPhad, all c such personal liability, if any, being hereby expressly +wfved and mlassed by a8 othw parties hereto, and those daimmig by, th—Sh. ar under thaaa. MIDWEST PROPERTIES LIMITED -PARTNERSHIP SUBSCRIBED AND SWORN to W: moESI 01ZIIdZTICN 021PANf,M., general pmUEr before me this �� day of 94. secretary c O L SEAL NOTARY PUBLIC mROhNJJAIw MIDWEST CONSTRUCTION CO., INC., general partner for NOLSI MY COMMISSION STATE P, FED 4140 MIDWEST PROPERTIES LIMITED PARTNERSHIP SUBSCRIBED ANDS o before met is )� day of a e e-- , 1994. SEAL E2�Lni secretary O ASt�SL! , COMMISSION EXP. FEB. SUBSCRIBED AND SWORN'_�Eo before me this ats" day of 1994. Gary Lang, Individua y Note Public OFFICIAL SEAL ANNA B. JANKOWSKI NOTARY PUBLIC. STATE OF ILLMOIS MY COMMISSION EXPIRES 7.14-97 6 " 4U-;7-24nl September 14, 1994 14:16 pm MCHENRY\SUBDVDAG.COR EXHIBIT B TO SECOND AMENDMENT TO ANNEXATION AGREEMENT DATED DULY 19, 1989 SUBDIVIDERS AGREEMENT This Subdividers Agreement, which is attached to and made a part of the Second Amendment to Annexation Agreement dated July 19, 1989, is binding on all parties thereto: Recitals A. By virtue of the execution of the Original Agreement, Parcel A, referred to therein, was annexed into the corporate limits of the City. B. Cosmopolitan holds legal title to that portion of Parcel A known as the Lang Parcel. Cosmopolitan and Lang desire to have a building permit issued on the Lang Parcel prior to the City's approval of the required plats of subdivision. NOW, THEREFORE, in consideration of the foregoing premises and in further consideration of the mutual covenants, agreements and conditions herein contained, the parties hereto agree as follows: 1. The City shall issue a building permit for the Lang Parcel upon (1) conveyance of title to Gary Lang or his successors and assigns; (2) upon submission by Cosmopolitan and Gary Lang to the City the revised conceptual plan referred to in the Second Amendment to Annexation Agreement dated July 19, 1989; and (3) compliance with those provisions of the City's Subdivision Control Ordinance relating to the engineering and design criteria for storm water management, installation of 94-67-2402 municipal sewer and water and erosion control methods and all other City ordinances relating to said criteria. 2. Upon issuance of the Lang Parcel building permit and within the time frames referred to in paragraph 4B of the Second Amendment to the Annexation Agreement dated July 19, 1989, all parties hereto agree to comply with all remaining provisions of the City's Subdivision Control Ordinance, all other City ordinances, the terms of the Original Agreement and the Second Amendment to Annexation Agreement dated July 19, 1989 .relative to development of the Lang Parcel. 3. All parties expressly agree that the City shall have the right and obligation to withhold- final plat approval or issuance of an occupancy permit, relative to the building to be constructed on the Lang Parcel, subject to full compliance by Lang with all terms of the Original Agreement, Second Amendment to Annexation Agreement dated July 19, 1989, the City's Subdivision Control Ordinance and all other City regulations and ordinances applicable to the Lang Parcel. 4. All parties hereto release the City, its officers and employees from any and all liability for damages caused and waive any right to file suit against the City, its officers and employees, on any legal theory, as a result of the City's refusal to issue an occupancy permit in the future on the Lang Parcel. Provided, however, the City shall not unreasonably withhold its approval of the final plat of subdivision or occupancy permit for the Lang Parcel. 2 94-67-2403 5. The parties hereto agree that the expedited issuance of the building permit on the Lang Parcel shall not entitle Cosmopolitan, Lang or any other party to this Agreement to obtain future expedited permits on any other parcel. 6. In the event suit is filed between the parties to this Agreement regarding the terms of this Agreement in any court for any reason, the prevailing party shall be entitled to recover from the losing party, all loss or damage incurred therein, including all attorneys fees, expert witness fees and costs incurred by the prevailing party. 7. The agreements contained herein shall be deemed to be covenants running with the land during the terms of this Agreement, shall be binding upon the heirs, executors, successors and assigns of the parties and a copy of this Agreement shall be filed in the office of the McHenry County Recorder of Deeds. CITY OF MCHENRY 0,7its Mayor Attes �Tts K (�ZD/ Gary Lan SUBSCRIBED AND SWO to before me day of , 1994. 6pfary Public "OFFICIAL S AV' JOAN MARTH Notary Public, State of Illinois My Commision Expires 12/17/94 qL-f;7-?LnL NEW AUTOMOBILE DEALERSHIP FOR GARYLANG EXTERIOR MATERIALS: SHOWROOM Walls - tinted insulating glass Fascia - white dryvit with green accent stripe Sloped Roofing - green standing seam roof SERVICE & OFFICE BUILDING White/sand blasted precast concrete panels with a green accent stripe. Low slope metal roof. C- :" o 1, AUG 10 1994 aI, -G7 _Ot.nc September 14, 1994 14:16 pm MCHENRY\PROMOMEM.COR EXHIBIT D-1 TO SECOND AMENDMENT TO ANNEXATION AGREEMENT DATED JULY 19, 1989 Promotional Activities Memorandum August 17, 1994 January & February - No outside promotional activities March - March Madness Sale Hot air balloon (25' maximum) in front of building, 1011 - 301 from building, 2 weekends (Friday through Monday - 8 days) April - Spring Sweep Sale No outside activities May - Anniversary Sale Hot air balloon (25' maximum in front of building, 10' - 30' from building, 2 weeks June - Beach Party Sale, subject to paragraph 7 of the Second Amendment to Annexation Agreement dated July 19, 1989 Tent (40' X 100') in parking lot all month located between building and 80' from road Sand in front of tent Beach type items in front (sail boats, surf boards, etc.) Hot air balloon (25' maximum) in front of building, 10' - 301 from building, 2 weekends (Friday through Monday - 8 days) July - Upside Down Sale No upside down cars Tent (40' X 100') in parking lot all month located between building and 80' from road Hot air balloon in front of building 2 weekends (Friday through Monday - 8 days) Corvette Show last Sunday of Fiesta Days August - Pre -Season Clearance Sale Hot air balloon (25' maximum) in front of building, 10' - 30' from building 2 weekends (Friday through Monday - 8 days) September - New Car Showing Tent (40' X 1001) in parking lot all month located between building and 80' from road q4-1;7-7r,nc October - Halloween Sale and Pumpkin Carving Contest Pumpkin hot air balloon (25' maximum) in front of building 101 - 301 from building all month November - No outside sales December - No outside sales NOTES: 1) The electronic message board depicted on Exhibit D-4 shall be permitted. 2) Information relating to automobile age, price, etc., shall be permitted on vehicle windows. 3) Franchise identification signs on facade for each respective franchise (i.e. Chevrolet, GEO, Pontiac, Cadillac, Subaru, etc.) as well as directional signs. 4) No figurines will be used except as specified above. 5) No pole banners or pennants shall be allowed. 6) Signage for grand opening subject to prior approval of City Council. 7) Flag pole, comparable to size of flag and pole at City Hall, to be located in center drive island approximately 60' west of property line. 8) Fence, cyclone type no higher than 81, to be located at rear of service area west of building extending along edge of the berm area at the property line running north and south from the setback line to the edge of the parking lot on the south where blacktop ends. Then fence runs east to the southwest corner of the building, then turns north to the building. The fence will run along the north setback line to the building in line with the northwest corner of the building, then to the building. 9) Indoor sales promotional activities shall be permitted year round. al. -[-7 nI a� n9 G l.� CHEVROLET - GEO TO : McHenry City Council FROM: Gary Lang SUBJECT: Gary Lang Auto Group Building Facade Signage DATE: August 17, 1994 Franchise Identifications (illustrations attached): Chevrolet Bow Tie - approximately 44"-high, color blue Chevrolet Name Plate - approximately 36" high, color blue Geo Name Plate - approximately 28" high, color red Pontiac Symbol - approximately 54" high, color red Pontiac Name Plate - approximately 36" high, color red Cadillac Symbol - approximately 59" high, color blue Cadillac Name Plate - approximately 52 1/2" high, color ;blue Subaru Symbol - approximately 36" high, color blue Two used car name plates on north and south facade of building approximately 36" high, color red or blue Service sign over service entrance - approximately 24" high, color blue One Gary Lang logo in front of each showroom - approximately 62" high, colors red & blue 908 Front Street . 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