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Ordinance 2019-21 DEBBIE 611 L.ET C- RECORDER - KENDALL COUNTY, TL RECORDED: 6/6/2819 12:;1 PM ORDI: 43.88 RSSPS FEE: 18.00 P,A6ES: 11 UNITED CITY OF YORKVILLE KENDALL COUNTY, ILLINOIS ORDINANCE NO.2019-21 AN ORDINANCE OF THE UNITED CITY OF YORKVILLE,KENDALL COUNTY,ILLINOIS, APPROVING A THIRD AMENDMENT TO THE AMENDED ANNEXATION AGREEMENT AND PLANNED UNIT DEVELOPMENT AGREEMENT (O'Keefe Subdivision) Passed by the City Council of the United City of Yorkville,Kendall County,Illinois This 9h day of April,2019 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 May 2,2019. Ordinance No. 2019- AN ORDINANCE OF THE UNITED CITY OF YORKVILLE,KENDALL COUNTY, ILLINOIS,APPROVING A THIRD AMENDMENT TO THE AMENDED ANNEXATION AGREEMENT AND PLANNED UNIT DEVELOPMENT AGREEMENT (O'Keefe Subdivision) 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, Section 11-15.1-1 et seq. of the Illinois Municipal Code(65 ILC S 5111-15.1- 1 et. seq.) grants the City with authority to enter into an annexation agreement with one or more owners of land in an unincorporated territory; and, WHEREAS, on September 26, 2006, by Ordinance No. 2006-101, the Mayor and City Council of the City (the "Corporate Authorities") authorized the execution of an Annexation Agreement by and between the Betty O'Keefe Family Limited Partnership (the "Owner"), Lundmark Group,LLC(the"Lundmark")and the City(the"Original Agreement"),which Original Agreement was recorded with the Kendall County Recorder's Office on November 7, 2006 as document #200600036302; the Original Agreement, among other things, provided for the annexation of approximately 140.9 acres of real estate located east of Illinois Route 47 and south of Galena Road in Bristol Township, Kendall County, Illinois(the"Annexed Parcel"); and, WHEREAS, Raging Waves, LLC, Series A, a Delaware Series limited liability company (the "Developer") is the successor-in-interest to Lundmark and, in accordance with the Original Agreement, is subject to all of the obligations of Lundmark as set forth therein; and, WHEREAS, the Original Agreement provided for the development, by the Developer, after its acquisition of lots 2 and 3 of the Annexed Parcel, of a water park facility identified as a commercial recreation park within the B-3 Service Business District (the "Water Park"), with Ordinance No.2019- Page 2 certain modifications and deviations from applicable City ordinances, rules and codes as set forth in the Original Agreement; and, WHEREAS, on June 10, 2008, by Ordinance No. 2008-50, the Original Agreement was amended as it related to regulations for signs advertising the Water Park(the"First Amendment"); the First Amendment was recorded with the Kendall County Recorder's Office on July 17, 2008 as document#200800016879; and, WHEREAS, in addition to the terms and conditions pertaining to the development of the Water Park, Paragraph 9 of the Original Agreement provided that the City would impose a five percent(5%) admissions tax on the total net collection of admission revenues generated from the operation of the Water Park (the "Admissions Tax") for a period of twenty (20) years and rebate fifty-five percent (55%) of the City's collections of the Admissions Tax to the Developer for a period of ten (10) years in order to offset its cost of constructing a public east/west road through lots 2 and 3; and, WHEREAS, after approval and execution of the Original Agreement,the City imposed a three percent(3%)amusement tax pursuant to Section 11-42-5 of the Illinois Municipal Code (65 ILCS 5/11-42-5)which applies to the Water Park and resulted in a total tax of eight percent(8%) to be applied to the cost of admission,which total tax was deemed to be excessive; and, WHEREAS, to address the excessive tax, by Ordinance No. 2011-31, the Corporate Authorities authorized the execution of a second amendment to the Original Agreement (the "Second Amendment"), which Second Amendment was executed on May 1, 2012 and recorded with the Kendall County Recorder's Office on October 12, 2012 as document #201200019900; the Second Amendment amended Paragraph 9 of the Original Agreement to provide (1) that the Admissions Tax would be reduced from five percent (5%) to two and three quarters percent Ordinance No.2019- Page 3 (2.75%),(2)said tax would be imposed for a period of ten(10)years,commencing August 1,2011 and terminating September 30, 2021, and(3)that one hundred percent(100%) of the Admissions Tax received by the City from the Developer would be rebated during said ten (10) year period; and, WHEREAS, the Corporate Authorities and the Developer now desire to further amend Paragraph 9 of the Original Agreement by extending the termination date of the Admissions Tax and the rebate thereof to the Developer from September 30, 2021 to September 30, 2026; and, WHEREAS, a legal notice of publication of a public hearing on the proposed third amendment to the Original Agreement was duly published in the Beacon News,being a newspaper of general circulation in the City, not more than thirty(30) nor less than fifteen(15) days prior to the public hearing which was held by the Corporate Authorities on March 26, 2019, at 7:00 p.m. at City Hall; and, WHEREAS,the Corporate Authorities believe it to be in the best interests of the City and the health, safety and welfare of its residents to extend the term for which the Admissions Tax collected by the City from operation of the Waterpark will be rebated to the Developer in accordance with a third amendment to the Original Agreement. NOW,THEREFORE,BE IT ORDAINED by the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois, as follows: Section 1. That the recitals in the preambles to this Ordinance are incorporated into this Section 1 as if fully set forth herein. Section 2. That the Third Amendment to the Amended Annexation Agreement and Planned Unit Development Agreement (O'Keefe Subdivision), attached hereto and made a part hereof, is hereby approved and the Mayor, City Clerk, and City Administrator are hereby authorized to Ordinance No.2019- o�I Page 4 execute and deliver said Third Amendment and undertake any and all actions as may be required to implement its terms on behalf of the City. Section 3. This Ordinance shall be in full force and effect from and after its passage and approval as provided by law. Passed by the City Council of the United City of Yorkville, Kendall County, Illinois, this—1 day of Al2 r, A.D. 2019. CITY eLERK \ CARLO COLOSIMO KEN KOCH C JACKIE MILSCHEWSKI ARDEN JOE PLOCHER CHRIS FUNKHOUSER JOEL FRIEDERS SEAVER TARULIS JASON PETERSON APPROVED by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this c9(o day of -IqPR.I L , A.D. 2019. -11411alall- MAY R , Attest: CITY CLERK Ordinance No.2019-22L Page 5 THIRD AMENDMENT TO THE AMENDED ANNEXATION AGREEMENT AND PLANNED UNIT DEVELOPMENT AGREEMENT (O'Keefe Subdivision) This Third Amendment to an Annexation Agreement, dated September 26, 2006, by and among the Betty O'Keefe Family Limited Partnership (the "Owner"), Lundmark Group, LLC, an Illinois limited liability company ("Lundmark") and the United City of Yorkville, Kendall County (the "City"), a municipal corporation organized and existing under and by virtue of the laws of the State of Illinois (the "Original Agreement"), as amended June 10, 2008 (the "First Amendment") and May 1, 2012 (the "Second Amendment") is entered into this a?(p day of APR 14- , 2019 by and between the City and Raging Waves, LLC, Series A, a Delaware Series limited liability company, as successor-in-interest to Lundmark(the "Developer"). RECITALS: WHEREAS, the Owner, Lundmark and the City entered into the Original Agreement which provided for the annexation of approximately 140.9 acres of real estate located east of Illinois Route 47 and south of Galena Road in Bristol Township, Kendall County, Illinois (the "Annexed Parcel"); and, WHEREAS,the Original Agreement provided that Lundmark was the contract purchaser of lots 2 and 3 of the Annexed Parcel (the"Water Park Parcel") and, after its acquisition thereof, would develop said property to create a water park facility identified as a commercial recreation park within the B-3 Service Business District(the "Water Parr'), with certain modifications and deviations from applicable City ordinances, rules and codes; and, I WHEREAS, in accordance with the Original Agreement, the Developer became subject to all of the obligations of Lundmark, as set forth therein, when it became the record owner of the Water Park Parcel; and, WHEREAS, in addition to the terms and conditions pertaining to the development of the Water Park, Paragraph 9 of the Original Agreement provided that the City would impose a five percent(5%) admissions tax on the total net collection of admission revenues generated from the operation of the Water Park (the "Admissions Tax") for a period of twenty (20) years and rebate fifty-five percent (55%) of the City's collections of the Admissions Tax to the Developer for a period of ten (10) years in order to offset its cost of constructing a public east/west road through lots 2 and 3; and, WHEREAS, after approval and execution of the Original Agreement,the City imposed a three percent (3%) amusement tax pursuant to Section 11-42-5 of the Illinois Municipal Code (65 ILCS 5/11-42-5) which applies to the Water Park and resulted in a total tax of eight percent (8%)to be applied to the cost of admission,which total tax was deemed to be excessive; and, WHEREAS, the Second Amendment addressed the excessive imposition of taxes by amending Paragraph 9 of the Original Agreement to provide (1) that the Admissions Tax would be reduced from five percent (5%) to two and three quarters percent (2.75%), (2) said tax would be imposed for a period of ten (10) years, commencing August 1, 2011 and terminating September 30, 2021, and (3) that one hundred percent (100%) of the Admissions Tax received by the City from the Developer would be rebated during said ten(10)year period; and, WHEREAS, the Corporate Authorities and the Developer now desire to further amend Paragraph 9 of the Original Agreement, as amended, by extending the termination date of the 2 Admissions Tax and the rebate thereof to the Developer from September 30, 2021 to September 30, 2026; and, WHEREAS, a legal notice of publication of a public hearing on this Third Amendment was duly published in the Beacon News, being a newspaper of general circulation in the City, not more than thirty(3 0)nor less than fifteen(15)days prior to the public hearing which was held by the Corporate Authorities on March 26, 2019, at 7:00 p.m. at City Hall; and, WHEREAS, the Corporate Authorities believe the Third Amendment is in the best interests of the City and the health, safety and welfare of its residents. NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual covenants hereinafter set forth,the parties hereto agree as follows: Section 1. The foregoing recitals are hereby incorporated into this Third Amendment as if fully restated herein. Section 2. All references in the Original Agreement, First Amendment, and Second Amendment to "Developer" shall be deemed a reference to Raging Waves, LLC, Series A, a Delaware Series limited liability company. Section 3. Paragraph 9 of the Original Agreement, as amended by the First Amendment and Second Amendment, is hereby amended to provide that the Admissions Tax of two and three quarters percent (2.75%), as established by the Second Amendment, shall be imposed for a period of fifteen (15) years, which period commenced August 1, 2011 and terminates September 30, 2026 (the "Admissions Tax Term"), and that one hundred percent (100%) of the Admissions Tax received by the City from the Developer during the Admissions Tax Term shall be rebated to the Developer. 3 Section 4. All matters, covenants, obligations and commitments as set forth in the Original Agreement and any amendments thereto, other than the amendments to Paragraph 9 thereof pertaining to the imposition and rebate of the Admissions Tax as set forth above, are herby affirmed as if restated herein. Section S. This Third 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. 4 IN WITNESS WHEREOF, the parties hereto have set their hands and seals to this Third Amendment to the Original Agreement as of the day and year first above written. United City of Yorkville, an Illinois municipal corporation By: 44j�a Xl'a"y Attest: City Clerk Raging Waves, LLC, Series A, a Delaware series limited liability company, by The Lundmark Group,LLC, an Illinoi ed li bili co any By: Randall Witt, its Manager Attest: Secretary 5 Exhibit"A" PARCEL ONE: LOT 2 IN O'KEEFE SUBDIVISION UNIT ONE, BEING A SUBDIVISION OF PART OF THE WEST 1/2 OF SECTION 9, TOWNSHIP 37 NORTH, RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT THEREOF RECORDED MAY 22, 2008 AS DOCUMENT NUMBER 200800012915, IN KENDALL COUNTY, ILLINOIS. PARCEL TWO: THAT PART OF THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 9, TOWNSHIP, 37 NORTH, RANGE 7, EAST OF THE THIRD PRINCIPAL MERIDIAN DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE EAST LINE OF ILLINOIS ROUTE 47 AND THE SOUTH LINE OF SAID NORTHWEST QUARTER OF SAID SOUTHWEST QUARTER; THENCE NORTH 01 DEGREE, 06 MINUTES, 54 SECONDS WEST ALONG SAID EAST LINE, A DISTANCE OF 642.49 FEET; THENCE NORTH 87 DEGREES, 56 MINUTES, 46 SECONDS EAST, A DISTANCE OF 1452.82 FEET (ALONG SOUTH LINE OF O'KEEFE SUBDIVISION UNIT ONE) TO THE EAST LINE OF LANDS DESCRIBED IN DOCUMENT 2005035985; THENCE SOUTH 15 DEGREES, 34 MINUTES, 22 SECONDS WEST ALONG SAID EAST LINE OF LANDS DESCRIBED IN DOCUMENT 2005035985, A DISTANCE OF 674.18 FEET TO THE SOUTH LINE OF SAID NORTHWEST QUARTER OF SAID SOUTHWEST QUARTER; THENCE SOUTH 87 DEGREES, 57 MINUTES, 05 SECONDS WEST ALONG SAID SOUTHLINE,A DISTANCE OF 1259.20 FEET TO THE POINT OF BEGINNING, IN THE TOWNSHIP OF BRISTOL, KENDALL COUNTY, ILLINOIS.