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HomeMy WebLinkAbout07-296ry Resolution No. 07-296 RESOLUTION AUTHORIZING EXECUTION OF A DEVELOPMENT AGREEMENT WITH RANDALL 90, L.L.C. FOR DEVELOPMENT OF AN AUTO MALL BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that Ed Schock,Mayor, and Diane Robertson, City Clerk,be and are hereby authorized and directed to execute a Development Agreement on behalf of the City of Elgin with Randall 90, L.L.C. for development of an Auto Mall, a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: December 5, 2007 Adopted: December 5, 2007 Omnibus Vote: Yeas: 7 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk 4 •, �[ e [ 11-28-07 WAC DEVELOPMENT AGREEMENT This Agreement, made and entered into as of this 5th day of December, 2007 by and between the City of Elgin, an Illinois municipal corporation (hereinafter referred to as "City") and Randall 90, LLC, an Illinois limited liability company (hereinafter referred to as "Developer"). RECITALS A. Developer is the owner of the approximate 87 acre site situated at the northwest quadrant of Randall Road and Interstate 90 Tollway and legally described as on Exhibit 1 attached hereto (the "Subject Property"). B. Conditional upon the City executing this Agreement, Developer proposes to develop on the Subject Property a certain 9-lot subdivision (the "Auto Mall Project") to be used exclusively for New Vehicle Sales (as hereafter defined). C. The City has determined that, if developed, the Auto Mall Project will likely generate substantial sales tax revenue,jobs and other economic growth for the City. D. The City is a home rule unit authorized to exercise and perform any function relating to its government and affairs. E. The agreement by the City to provide development assistance, sales tax rebates and real estate tax rebates as herein set forth is deemed necessary by the City to encourage the development of the Subject Property as an Auto Mall Project, and but for such development assistance, sales tax rebates and real estate tax rebates as herein set forth, such Auto Mall Project would likely not be developed on the Subject Property. F. The Auto Mall Project, if developed, is expected to ultimately result in r i • significant increases in the City's sales tax revenues and will likely result in increases in the City's tax base, and, as such, are matters within the government and affairs of the City of Elgin. CONSIDERATION In consideration of the mutual promises and undertakings contained herein and of other good and valuable consideration, including the costs incurred by Third Party Beneficiaries (i.e. Dealerships) to locate on the Subdivision the receipt and sufficiency of which are hereby mutually acknowledged,the parties hereto agree as follows: AGREEMENT 1. Incorporation of Recitals. The Recitals set forth above are hereby incorporated herein in their entirety. 2. Definitions. As used herein, the following terms shall have the following meanings: "Affiliate" means a person or entity having directly or indirectly an ownership interest in the Dealership. "Alpha-Packaged Dealerships" means an arrangement wherein there is located on the same Lot two or more vehicle franchises, at least one (1) of which is for the sale of an"Enumerated Brand." "Brand Manufacturer" means the manufacturer of a particular brand of vehicle. (For example, Honda Motor Corporation (or any of its subsidiaries or affiliates) is the Brand Manufacturer for Honda automobiles). "Dealership" means each business entity that engages in New Vehicle Sales on any Lot. - 2 - "Dealership Commitment" means, with respect to a particular Dealership, the occurrence of the situation in which (a) such Dealership or Affiliate has purchased or leased a Lot in the Subdivision, (b) the Dealership has written approval from the Brand Manufacturer for the establishment of a Dealership for the sale of such brand of vehicles on the Lot ("Manufacturer Site Approval") and (c) such Dealership has commenced construction (as evidenced by the pouring of foundations for the proposed dealership facility) of its Dealership facility on its Lot in the Subdivision of the Subject Property. "Dealership Tax Rebates" means, collectively, the Dealership Sales Tax Rebates and Real Estate Tax Rebates payable to any Dealership (or its assignees). "Development Assistance-Part A" means the sum of Three Million Five Hundred Thousand Dollars ($3,500,000.00) to be provided by the City to Developer under the conditions herein provided. "Development Assistance-Part B" means the sum of Two Million One Hundred Thousand Dollars ($2,100,000.00) to be provided by the City to Developer under the conditions herein provided. "Enumerated Brands" means automobiles sold under the brand names of Honda, Acura, Audi, Volvo, Cadillac, BMW, Lexus, Infiniti, Jaguar, Mercedes, Porsche,Lincoln, Land Rover,Volkswagen, Hummer and Saab. "Force Majeure Events" means events which delay the construction of a new car Dealership on the Subject Property consisting of accidents, strikes, extreme weather, acts of God, war or terrorism. "Interior Lot" means any Lot that does not border either Randall Road or I- - 3 - 90. "Lot" means each and any of the lots within the Subdivision. "McGrath Elgin Honda" means the Honda automobile dealership owned and operated by McGrath Enterprises, Inc. or its successor or assigns. "Multiple-Lot Dealership Packages" means an arrangement wherein the same dealer (or affiliated dealers) situate a dealership selling an Enumerated Brand of vehicles on one Lot, and one or more non-Enumerated Brands on one or more Interior Lots. "New Vehicle Sales" means new Motor Vehicle Dealers (SIC description 5511) with the principal use of the indoor and outdoor retail sale of new automobiles and such other uses customarily accessory to such new automobile retail sales including, without limitation: the indoor and outdoor sale of used automobiles; the storage and sale of automobile parts and tires; the performance of automobile service, repairs and maintenance; the operation of a car wash for Dealership and customer automobiles; in-house financial services pertaining to automobile sales; food sales/service/cafes for use by employees and customers; beauty shops and barber shops for use by employees and customers; automobile storage, including roof top automobile storage and parking; and above ground gasoline storage tanks not exceeding one storage tank up to 2,500 gallons per Dealership for the fueling of Dealership and customer vehicles installed, constructed and maintained and utilized pursuant to all applicable code requirements As used in this definition the term "automobile" shall be defined to include passenger vehicles, sports utility vehicles, vans and pickups. As provided -4- 1 1 in the Planned Development Ordinance for the Subject Property, the limitation on accessory uses provided for in Elgin Municipal Code Section 19.90.015 whereby accessory uses must occupy less than ten percent (10%) of the Zoning Lot area shall not apply to the accessory uses of the sale of used automobiles; the performance of vehicle service, repairs and maintenance; or automobile or parts storage, as long as such accessory uses are conducted in conjunction with the principal use of the sale of new automobiles on the Subject Property. "Sale" means and shall be broadly defined to include all types of transactions with customers, including, without limitation, leasing and trade transactions. "Sales Tax Revenues" means all revenues that the City receives from retail sales taxes from the State of Illinois generated and resulting from the provision of any service or the sale of any goods from New Vehicle Sales in conjunction with the Auto Mall Project on the Subject Property pursuant to the Illinois Service Occupation Tax (35 ILCS 115/1 et seq.), the Illinois Retailers Occupation Tax (35 ILCS 120/1 et seq.), the Home Rule Municipal Retailers Occupation Tax (65 ILCS 5/8-11-1), and the Home Rule Municipal Service Occupation Tax (65 ILCS 5/8-11-5), and any successors to (or full or partial substitutes for) any of such taxes or acts. "Subdivision" means the Randall Rose Auto Mall Subdivision of the Subject Property, the final plat of which was approved by the City pursuant to its Resolution Number 07-294. "Tax Rebate" means, collectively, Sales Tax Rebates and Real Estate Tax - 5 - Rebates. "Trigger Date" means the date as of which there is in place Dealership Commitments for the establishment of three (3) Dealerships to sell Enumerated Brands on at least three (3) separate Lots within the Subdivision. 3. Development Assistance-Part A and Part B. Subject to the provisions of paragraph 5 below: (a) Upon the arrival of the Trigger Date, the City shall pay to the Developer within thirty (30) days thereafter the Development Assistance - Part A. (b) Upon the procurement by Developer of a fourth Dealership Commitment for the establishment of a fourth Dealership to sell Enumerated Brands on a fourth Lot, the City shall pay to Developer, two hundred fifty thousand dollars ($250,000.00) of the Development Assistance Part B within thirty (30) days following the occurrence of such event. (c) Upon the procurement by Developer of a fifth Dealership Commitment for the establishment of a fifth Dealership to sell Enumerated Brands on a fifth Lot, the City shall pay to Developer, two hundred fifty thousand dollars ($250,000.00) of the Development Assistance Part B within thirty(30) days following the occurrence of such event. (d) Upon the procurement by Developer of a sixth Dealership Commitment for the establishment of a sixth Dealership to sell Enumerated Brands on a sixth Lot, the City shall pay to Developer, one - 6 - , million six hundred thousand dollars ($1,600,000.00),being the balance of the Development Assistance - Part B, within thirty (30) days following the occurrence of such event. (e) The Development Assistant-Part A and the Development Assistance-Part B shall be used solely and only by the Developer for the payment (or reimbursement to the Developer of its earlier payment) of costs associated with developing the Subject Property for the Auto Mall Project. 4. Sales Tax Sharing: Real Estate Tax Rebate: Third Party Beneficiary. (a) Sales Tax Rebate. In consideration of the Subject Property being developed for the Auto Mall Project, the City hereby covenants and agrees with Developer, and each separate Dealership within the Subdivision to rebate the amounts as described in this paragraph from the City's share of Sales Tax Revenues that are (i) actually received by the City and (ii) generated by Dealerships conducting New Vehicle Sales on each Lot within in the Subdivision of the Subject Property over a twenty (20) year period (the "Subject 20 Year Period")commencing with the first Sales Tax Revenue transaction by any Dealership after it has commenced business operations in the Subdivision, and ending on the last day of the 240th month thereafter (with such Sales Tax generated by Dealership operations and received by the City being hereinafter called the "Subject 20 Year Sales Tax Revenue"). For the purposes of clarification, the Subject 20 - 7 - Year Period for the Subject 20 Year Sales Tax Revenue shall be a single 20 year period for the entire Subject Property commencing with the first sales tax revenue generating transaction by the first Dealership on the Subject Property. For purposes of further clarification and example, in the event McGrath Elgin Honda is the first Dealership commencing operations on the Subject Property and completes its first sales tax revenue generating transaction from its operations on the Subject Property on March 1, 2009, the Subject 20 Year Period for McGrath Elgin Honda and for all other Dealerships which may thereafter locate on the Subject Property shall be from March 1, 2009 through February 28, 2029. Except as provided in succeeding portions of this paragraph 4 (a) with respect to any auto dealer (other than McGrath Elgin Honda) already doing business elsewhere in the City which hereinafter relocates its automobile dealer operations to a Lot on the Subject Property (hereinafter referred to as a "Relocating Dealership"), and except as supplemented by Paragraph 5a, the City shall rebate twenty-five percent (25%) of the Subject 20 Year Sales Tax Revenue received by the City to Developer (the "Developer Sales Tax Rebate") and twenty five percent (25%) of the Subject 20 Year Sales Tax Revenue received by the City to the Dealership operating on such Lot and generating such Sales Tax Revenues (the "Dealership Sales Tax Rebate"). For the purposes of clarification, McGrath Elgin Honda (a) shall not be deemed a Relocating Dealership and(b) shall be entitled to the Honda Special Incentive as provided for in Paragraph 5a. - 8 - As to any Relocating Dealership, the amount of the semi-annual Developer's Sales Tax Rebate and the amount of the semi-annual Dealership Sales Tax Rebate shall in each case be twenty five percent (25%) of the Incremental Subject 20 Year Sales Tax Revenue generated by such Relocating Dealership from its business operations on the Subject Property and received by the City. As used herein, "Incremental Subject 20 Year Sales Tax Revenue" shall be calculated by first deducting from the Subject 20 Year Sales Tax Revenue generated by such Relocating Dealership in such semi-annual period one-half (1/2) of the amount of sales taxes the City received from the business operations of such Relocating Dealership during the twelve (12) months immediately preceding such Relocating Dealership's relocation to a Lot on the Subject Property. For purposes of clarification, it is the intention of the parties that the Developer's Sales Tax Rebate and the Dealership Sales Tax Rebate for any such Relocating Dealership shall be calculated only upon the incremental sales tax received by the City from sales made by such Relocating Dealer after relocating its Dealership to a lot on the Subject Property over and above the sales tax the City was previously receiving from such Relocating Dealer at its previous location in the City. Each of the Developer Sales Tax Rebate and the Dealership Sales Tax Rebate shall be paid by the City on a semi-annual basis. It is further agreed as follows: (i) Each Dealership, as a condition of the City's obligation to -9 - pay to such Dealership the Dealership Sales Tax Rebate, shall be required to perform and observe the following covenants (collectively the "Dealership Reporting and Compliance Obligations"):: (A) make written request that the Local Tax Division of the Illinois Department of Revenue ("LTD-IDOR"), or such successor to such agency, supply to the City on a semi-annual basis a letter certifying the amount of Sales Tax Revenues received by the City from such Dealership operations during the preceding six (6) month period (with such letter from the LTD- IDOR certifying the amount of sales tax revenue received by the City from a Dealership on the Subject Property being hereinafter referred to as a "IDOR Sales Tax Revenue Certification Letter"). (B) take all additional actions as may reasonably be necessary in order to for the City to obtain the information to insure the accurate calculation of Sales Tax Revenues from the Lot(s) within the Subject Property on which such Dealership conducts its business; (C) supply or cause to be supplied to the City appropriate authorizations for the Illinois - 10- • Department of Revenue to provide such information, including copies of filings with the Illinois Department of Revenue made by the Developer and any Dealerships on the Subject Property. (D) upon written request of the City, provide a power of attorney in favor of the City in a form reasonably satisfactory to the LTD-IDOR, authorizing the City to request and retrieve gross revenue and other information necessary to allow the City to compute the Sales Tax Revenues. (E) advise in writing any purchaser or lessee of the Subject Property (or any part thereof) of the power of attorney requirements in this section. (F) upon the request of the City, provide to the City copies of any form ST-1 or form ST-556, or any successor reporting forms, filed with the Illinois Department of Revenue regarding any Dealership operations on the Subject Property. (G) allow the City the right, upon reasonable notice to the Dealerships operating on the Subject Property to audit Dealership records in order to confirm Sales Tax Revenues being generated from the Subject - 11 - Property. Developer shall advise in writing any purchaser or lessee of any portion of the Subject Property of the reporting requirements in this section. (ii) Within twenty (20) days after the City Treasurer or other City official receives an IDOR Sales Tax Revenue Certification Letter for a Dealership operating on the Subject Property, the City Treasurer or other City official shall calculate and certify in writing to the Developer, to the Subject Dealership generating the Sales Tax Revenue in question, and to the City the amount of the Developer's Sales Tax Rebate and Dealership Sales Tax Rebate due to the Developer and the Subject Dealership in accordance with this Agreement (with a copy of the underlying Sales Revenue and calculations to accompany each such certification). The City shall make payment of the Developer's Sales Tax Rebate and Dealership Sales Tax Rebate to the Developer and the Dealership, respectively, within 30 days after the City Treasurer or other City official receives an IDOR Sales Tax Revenue Certification Letter for a Dealership operating on the Subject Property. The City and its Treasurer and other officials shall keep strictly confidential all information in the IDOR Sales Tax - 12 - • • Revenue Certification Letter except to the extent that disclosure is required to the Developer or is otherwise reasonably necessary to third parties for the proper administration of this Agreement, or as required by law or under this Agreement. (iii) The Developer, the City and each Dealership operating on the Subject Property and the City agree to cooperate and take all additional actions as may reasonably be necessary in order to obtain the necessary information and to insure the accurate calculation of Sales Tax Revenues from the Subject Property. The City agrees to take all reasonable actions necessary to provide for the systematic receipt of such sales tax information for the Auto Mall Project for the Subject Property from the Illinois Department of Revenue. The Developer and its successors and assigns shall advise in writing any purchaser or lessee of the Subject Property (or any part thereof) of the Dealership Reporting and Compliance Obligations in this section. Additionally, the Developer, in its contracts for the sale of, or leases with respect to Lots, and/or by other separate written agreement, shall advise each prospective purchaser or lessee of the foregoing Developer Reporting and Compliance - 13 - Obligations. (iv) The Developer may assign its right to receive Developer Sales Tax Rebates in whole or in part to one or more assignees (each a "Developer Assignee") by written notice to the City, provided however, that each such Developer Assignee's rights to receive and to continue to receive such Developer Sales Tax Rebates shall be subject to all the terms, provisions and conditions of this Agreement as are applicable to the Developer's right to receive such Developer Sales Tax Rebates. Additionally, if the Developer shall sell or transfer its interest in the Subject Property to a successor developer (a "Successor Developer") then, upon written notice and documentation by Randall 90 LLC to the City of such sale or transfer, said Successor Developer shall succeed to all of the rights and obligations of the Developer hereunder and Randall 90 LLC shall be released from any non-delinquent future obligations to the City hereunder. For clarification, a purchaser or lessee from the Developer of a Lot for purposes of such purchaser or lessee establishing a Dealership on such Lot shall not be deemed to be a "Successor Developer". Each Dealership's right to receive such Dealership - 14 - Sales Tax Rebate and/ or the Dealership's Real Estate Tax Rebate payments from the City may be assigned to affiliate entities of the Dealership; provided, however, upon the sale by a Dealership of all of its operating assets and either termination or assignment of its Dealer Agreement, the Selling Dealership shall assign to the acquiring Dealership (hereinafter a "Dealership Purchaser") all subsequent Dealership Sales Tax Rebate Payments and Dealership Real Estate Tax Rebate payments becoming due after such assignment. In the event a Dealership is sold other than at the end of an applicable payment period, the City shall, at the request of the selling and buying Dealership, allocate the Dealership Sales Tax Rebate and Dealership Real Estate Tax Rebate for such period as such selling and buying Dealership shall request. (v) If any Dealership ("Defaulting Dealership") breaches its Dealership Reporting and Compliance Obligations (a "Dealership Reporting and Compliance Breach"), the City shall advise the Developer of such breach as soon as is reasonably practicable. The City and the Developer shall have the right (but not the obligation) to cure such Dealership Reporting and Compliance Breach. The City may withhold a Defaulting Dealership's Sales Tax Rebates - 15 - until such time as the Defaulting Dealership cures its breach of its Dealership Reporting and Compliance obligations. Notwithstanding any such Dealership Reporting and Compliance Breach, the Developer shall nevertheless have the right to receive from the City the Developer's Sale Tax Rebate with respect to Sales Tax Revenue generated from business activities on the Subject Property by the Defaulting Dealership but the City may defer such payment until such time as (a) the City actually receives Sales Tax Revenue generated by the Defaulting Dealership from the State of Illinois and (b) the City is able to identify the source of such Sales Tax Revenue as being from the business operations of the Defaulting Dealership. (b) Real Estate Tax Rebate. In consideration of the Subject Property being developed for the Auto Mall Project, the City hereby agrees that, with respect to each Lot within the Subdivision, the City will rebate to each newly established Dealership the following percentage of the City's share of real estate taxes received by the City from of such Lot during each of the following periods (the "Dealership Real Estate Tax Rebates"): Percentage of City Share of Real Estate Taxes to be Rebated Real Estate Tax Year 100% First full calendar tax year following the calendar year in which the Dealership receives a certificate of occupancy for its principal Dealership building of - 16 - such Lot. (hereinafter "Year 1"). See example below. 80% Next calendar tax year("Year 2") 60% Next calendar tax year("Year 3") 40% Next calendar tax year("Year 4") 20% Next calendar tax year("Year 5") 0% Sixth calendar year and thereafter ("Year 6 and thereafter") The timeframe and amount of Dealership Real Estate Tax Rebates shall be calculated separately for each Lot. By way of example, if a Certificate of Occupancy for the principal Dealership Building on Lot 2 is issued March 1, 2009, for the purposes of this Section 4(b), for Lot 2, Year 1 would refer to 2010 real estate taxes in 2011 . If a Certificate of Occupancy for the principal (payable ) P Y P P Dealership on Building on Lot 1 is issued March 1, 2011, for the purposes of this Section 4(b), for Lot 1, Year 1 would refer to 2012 real estate taxes (payable in 2013). The City shall make Dealership Real Estate Tax Rebate payments to the applicable Dealership annually and within sixty (60) days following the City's receipt of the second installment real estate payments from Kane County. (c) Third Party Beneficiary/Enforcement. The City and the Developer hereby acknowledge and agree that each Dealership that operates on a Lot within the Subdivision and entitled to receive Rebate Payments hereunder shall be a third party beneficiary with respect to the Dealership Sales Tax - 17 - Rebates and the Dealership Real Estate Tax Rebates payable by the City under the terms of this Agreement. As such: (i) At the request of any Dealership that operates on a Lot, the City shall issue to such Dealership (and its subsequent assignees) a letter from the City Manager of the City certifying ("City Certificate") the City's obligation to make payment of those Dealership Sales Tax Rebates and the Dealership Real Estate Tax Rebates as then provided for herein. The issuance of a City Certificate shall not be conditioned on assignment or consent by Developer; and (ii) No amendment of this Agreement by the Developer (or any one or more Dealerships) and the City shall in any way negatively impact the Dealership Sales Tax Rebates and the Dealership Real Estate Tax Rebates which the City is or will be obligated to pay to any other Dealership after the earlier of (1) a Dealership or Affiliate has notified the City that it has entered into a contract to purchase a Lot within the Subdivision (a "Real Estate Purchase Agreement") or (2) the date a City Certificate is issued by the City to any such Dealership, such earlier date being herein called "Dealership Beneficiary Date"; provided, however, that if such Real Estate Purchase Agreement is terminated without a closing and such termination is documented to the City, - 18 - I , then the original execution of such Real Estate Purchase Agreement shall no longer serve as the basis for the establishment of the Dealership Beneficiary Date. (iii) After the Dealership Beneficiary Date as to any particular Lot, the terms of this Agreement providing for the payment of Dealership Sales Tax Rebates and Real Estate Tax Rebates to such Dealership on such Lot shall (subject to all of the terms and conditions contained herein with respect to such payments) be deemed a direct privity contract between the City and the Dealership named or to be named in the City Certificate and accordingly such Dealership's rights as to the payment of such Dealership Sales Tax Rebates and Real Estate Tax Rebates may be enforced independently by the applicable Dealership. Furthermore, no Dealership shall have liability for the acts or omissions of Developer or any other Dealership nor shall the acts or omissions by Developer or other Dealership be a condition to the right of any other Dealership to receive benefits under this Agreement. (iv) At the request of any Dealership, the City will issue the requested form of estoppel statement to the effect that except as noted in such Estoppel Statement, the requesting Dealership is not in default of this Agreement, and stating - 19 - • that a new City Certificate will be issued to a Dealership Purchaser upon closing of the Dealership purchase and an assignment by the Selling Dealership. (d) No City General Obligations. Developer, and its successors and assigns, including but not limited to, Dealerships operating on the Subject Property acknowledge and agree that the Tax Rebates provided for in this Agreement are not general obligations of the City, and shall not constitute any indebtedness of the City or a loan or a liability of the City within the meaning of any constitution or statutory provisions. The obligations of the City under this Agreement shall be secured solely by the City's Sales Tax Revenues and Real Estate Tax Revenues the City receives for the Auto Mall Project on Subject Property and the City's obligations to make such Tax Rebates to the Developer and/or the Dealerships are contingent upon the City's receipt of such Sales Tax Revenues and Real Estate Tax Revenues from the Auto Mall Project on the Subject Property. 5. Honda Special Incentive. (a) The City and Developer mutually agree that a special extra incentive package should be (and is hereby) awarded to McGrath Elgin Honda or its successors and assigns with respect to McGrath Elgin Honda if, in fact, McGrath Elgin Honda or its successor commences Dealership operations of a Honda Dealership in the Subdivision on or before April 1, 2010, subject to delays caused by Force Majeure Events. - 20 - (b) More specifically, and supplementing Paragraph 4(a) above, the Dealership Sales Tax Rebate and the Developer Sales Tax Rebate allocations with respect to the McGrath Elgin Honda Dealership over the Subject 20 Year Period specified in Paragraph 4(a) above shall be as follows: (i) Fifty percent(50%) to McGrath Elgin Honda; (ii) Thirty-seven and one-half percent (37 1/2%) to the City; and (iii) Twelve and one-half percent (12 1/2%) to Randall 90, LLC (c) To induce Developer to agree to sell Lot 2 of the Subdivision to McGrath Honda a $10.00 per square foot, the City hereby agrees to pay to Developer the product of(i) $2.80 multiplied by (ii) the square footage of said Lot 2 (345,687 square feet) for a total payment of$967,923.60. Such payment by the City to Developer shall be paid upon the issuance of a certificate of occupancy for McGrath Honda on said Lot 2 and the commencement of its New Vehicle Sales operations on said Lot 2. The payment of the sum required in this Paragraph 5(c) shall hereinafter be called the "Honda Land Buy-Down"). (d) In consideration of (and conditional upon) the actual payment by the City to Developer of the Honda Land Buy-Down, it is agreed that: (i) the sum of$466,463.28 (based on current square footage of Lot 2-345,687 square feet) shall be deducted from the Development Assistance - Part A otherwise payable by the - 21 - • City to Developer under Paragraph 3(a) above; and (ii) the Development Assistance-Part B payments provided for in paragraphs 3(b), (c) and (d) above would each be reduced by $133.33 per $1000 of payment otherwise specified in said paragraph 3 so as to reduce the total Development Assistance-Part B payment by an aggregate of $280,006.47. (e) In the event the City has previously paid to the Developer either Development Assistance-Part A and/or Development Assistance-Part B prior to the payment to the Developer of the Honda Land Buy-Down, then the Honda Land Buy-Down payment shall be reduced by the amounts set forth in the preceding Section 5(d). 6. Dealership Brand Restriction. (a) Concurrently with and after the date the Auto Mall Development Contingency (as defined in paragraph 7(a) below) is fulfilled, only Dealerships engaged in New Vehicle Sales shall be permitted to operate on any of the Lots within the Subdivision. (b) During the first thirty-six months (36) following the execution of this Development Agreement, Developer shall offer to sell or lease Lots on the Subject Property only to Dealerships for the purpose of sales of Enumerated Brands, for the purpose of Alpha-Packaged Dealerships, or hi includes for the purpose of a Multiple Lot Dealership Package which nc udes an Enumerated Brand. Additionally, during the first thirty-six (36) months - 22 - • following the execution of this Development Agreement, only dealership engaged in the sale of Enumerated Brands, Alpha-Packaged Dealerships, or a Multiple Lot Dealership Packages which includes an Enumerated Brand shall be permitted to operate a new vehicle dealership on any of the lots on the Subject Property. (c) Notwithstanding the provisions of Paragraph 6(b) above, it is agreed that a Dealership selling vehicles of a Non-Enumerated Brand may engage in business on any Lot as part of an Alpha-Packaged Dealership or a Multiple-Lot Dealership Package. 7. Development Incentives for Auto Mall Project Only. (a) It is agreed and understood that the City's agreement to provide the Development Incentives for the Auto Mall Project development of the Subject Property as described in this Agreement, including Development Assistance — Part A, Development Assistance — Part B, the Honda Land Buy Down or any of the Tax Rebates, (collectively hereinafter referred to as "Development Incentives") is expressly subject to and conditioned upon the Auto Mall Development Contingency (as hereafter defined) being satisfied. As used herein, the term "Auto Mall Development Contingency" means, and shall be deemed to have been satisfied if, and only if (i) the first occupancy permit issued with respect to the Subject Property is for a Dealership engaged exclusively in the business of New Vehicle Sales, and (ii) such occupancy permit for the first such Dealership engaging exclusively in the business of New Vehicle Sales on the Subject - 23 - Property has been issued within five (5) years of the date of this Agreement. If the Auto Mall Development Contingency is not fulfilled then it is agreed and understood that the City will not be providing any Development Incentives and that (with the sole exception of the provisions of paragraph 10 hereof) this Agreement shall be null and void with no further obligations of the parties hereto. Upon the first to occur of(i) the City paying to the Developer or to any Dealership any of the Development Incentives or (ii) the Auto Mall Development Contingency having been fulfilled as to the Subject Property, the Developer covenants and agrees on behalf of itself and its successors, assigns and grantees, that the Subject Property shall thereafter be used exclusively for New Vehicle Sales for a period of not less than twenty-five (25) years from the date of the issuance of the first occupancy permit for a Dealership on the Subject Property. In the event of any conflict between the provisions of this paragraph and any other provisions in this Agreement, the provisions of this paragraph shall supersede and control. (b) Developer shall include in the covenants, conditions and restrictions of record which will be recorded against title to the Subject Property (hereinafter the "Covenants") a provision whereby upon the Subject Property being developed for the Auto Mall Project, as evidenced by the issuance of the first occupancy permit for a Dealership on the Subject Property, that the Subject Property shall thereafter be utilized exclusively for the Auto Mall Project and for New Vehicle Sales for a - 24- period of not less than twenty-five (25) years from the date of the issuance of the first occupancy permit for a Dealership on the Subject Property (hereinafter referred to as the "Auto Mall Restriction"). The Covenants shall further provide that such Auto Mall Restriction shall be enforceable by the property owners association for the Subject Property, Lot owners and the City of Elgin. If the Auto Mall Restriction is breached by a purchaser or lessee of any Lot, the property owners association shall, and the City may, take reasonable enforcement action to correct such breach. The Covenants may be amended from time to time, but any amendments to the Covenants regarding the Auto Mall Restriction or the enforcement thereof shall require the advance written approval of the City Council of the City of Elgin. (c) If the Auto Mall Development Contingency is fulfilled but a purchaser or lessee of any Lot breaches the provisions of this Agreement, the Covenants and/or the City's planned development ordinance for the Subject Property, Ordinance No. G68-07 (suchplanned development P Y� P ordinance for the Subject Property being hereinafter referred to as the "Subject Planned Development Ordinance for the Subject Property") whereby the Subject Property may be used only for New Vehicle Sales (such breach being hereinafter called a "User Breach") then (i) the City shall have the right to discontinue, offset or delay the payment of any Dealership Tax Rebates with respect to any Lot on which such User Breach has occurred and (ii) the City may take reasonable enforcement - 25 - • action to correct such User Breach. The remedies available to the City in the event of such a User Breach shall include, but not be limited to, the following: discontinuing, offsetting or delaying in the payment of any Dealership Tax Rebates pertaining to any Lot on which such User Breach has occurred; maintaining an action for specific performance of this Agreement to limit the use of the Subject Property for New Vehicle Sales only; maintaining an action to enforce the Covenants so as to limit the use of the Subject Property to New Vehicles Sales only; maintaining an action for a mandatory injunction to enforce the Subject Planned Development Ordinance for the Subject Property limiting the use of the Subject Property to New Vehicle Sales only; maintaining an action for fines as provided by law for the violation of the Subject Planned Development Ordinance for the Subject Property; and/or pursuing any other remedies available at law or in equity. The City shall also have the right to defer the payment of any Developer Sales Tax Rebates with respect to any Lot of which such User Breach has occurred until such time as the City actually receives Sales Tax Revenue generated on any Lot as to which such User Breach has occurred and the City is able to identify the source of such Sales Tax Revenues as being from the business operations of the Lot of which such User Breach has occurred, after which the deferred Developer Sales Tax Rebates shall be promptly paid to the Developer. The City shall not have the right to discontinue, offset or delay the payment of any Developer Sales Tax Rebates payable to the Developer with respect to any other Lots on which - 26 - such a User Breach or a Developer Breach (hereinafter defined) has not occurred. The City shall also not have the right to discontinue, offset or delay the payment of any Tax Rebates payable to any Dealerships operating on any other Lots on which such User Breach has not occurred. (d) Once the Auto Mall Development Contingency (as defined in paragraph 7(a) above) is fulfilled, if the Developer, through its actions (but not by reason of the actions of any Lot owner other than the Developer or of any Dealership operating on any such Lot) breaches the provisions of this Agreement, the Covenants and/or the Subject Planned Development Ordinance for the Subject Property requiring that the Subject Property be used only for New Vehicle Sales for 25 years (such breach being hereinafter called a "Developer Breach") then (i) the City shall have the right to discontinue, offset or delay the payment of any Developer Sales Tax Rebates or other Development Incentives otherwise due and payable to the Developer and (ii) the City may take reasonable enforcement action to correct such Developer Breach. The remedies available to the City in the event of such a Developer Breach shall include, but not be limited to, discontinuing, offsetting or delaying the payment of any Developer Sales Tax Rebates and/or any other Development Incentives as payable to the Developer, an action for specific performance of this Agreement to limit the use of the Subject Property for New Vehicle Sales only, an action to enforce the Covenants to limit the use of the Subject Property to New Vehicle Sales only, an action for a mandatory - 27 - injunction to enforce the Subject Planned Development Ordinance for the Subject Property limiting the use of the Subject Property to New Vehicle Sales only, an action for fines as provided by law for the violation of the Subject Planned Development Ordinance for the Subject Property and any other remedies available at law or in equity. The City shall not have the right to discontinue, offset or delay the payment of any Tax Rebates payable to any Dealerships operating on other Lots on which such Developer Breach or a User Breach has not occurred. 8. Miscellaneous. (a) Prevailing Wage Act. It is expressly agreed and understood that Developer's development and construction of the Auto Mall Project shall comply with all applicable federal, state, city and other requirements of law. Without limiting the foregoing and not withstanding anything to the contrary in this Agreement, Developer and its contractors and subcontractors shall comply with the Prevailing Wage Act (820 ILCS 130/0.01, et seq.) as amended, in all respects in connection with the development and construction of the Auto Mall Project including, but not limited to, paying the prevailing wage as required therein. The provisions of this paragraph are not intended to create a separate contractual obligation beyond any statutory requirement for Dealerships who locate on the Subject Property to pay the Prevailing Wage for any construction activities or any subsequent operations on the Subject Property, except as otherwise required by law. - 28 - ' r (b) Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally or mailed by registered or certified mail (return receipt requested) to the parties at the following addresses (or such other addresses for a party as shall be specified by like notice), and shall be deemed received on the date on which so hand-delivered or on the second(2nd)business day following the date on which so mailed: To the City: City Elgin 150 Dexter Court , Elgin, Il 60120 Attn: City Manager with copy to: City of Elgin 150 Dexter Court Elgin, Illinois 60120 Attn: Corporation Counsel To Developer: Randall 90, LLC 9440 Enterprise Drive Mokena, IL 60448 Attn: Joseph Bochenski With a copy to: Attn: Sherwin Portnoy 14604 Kishwaukee Valley Rd. Woodstock, IL 60098 With a copy to: Bazos, Freeman, Kramer, Schuster, Vanek& Kolb Attn: Peter C. Bazos, Esq. 1250 Larkin Avenue Elgin, Illinois 60123 Furthermore, to be effective, any notice which affects the rights of a Dealership to whom a City Certificate has been issues shall be given to the Dealership at the address shown in the City Certificate for such - 29 - Dealership. (c) Severability. If any one or more of the provisions contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions hereto, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision and not been contained herein; provided however, that if permitted by applicable law, any invalid, illegal or unenforceable provision may be considered in determining the intent of the parties with respect to the provisions of this Agreement. (d) Non-waiver. The failure by a party to enforce any provision of this Agreement against the other party shall not be deemed to be a waiver of the right to do so thereafter. (e) Modification of Agreement. This Agreement may be modified or amended in a writing signed by both of the City and Developer, or their successors or assigns, as the case may be; provided, however, after the Dealership Beneficiary Date as to each respective Lot, no amendment shall alter the rights to Dealership Tax Rebates of any current or intended third party beneficiary who is not a signatory to such written amendment. (f) Captions. The paragraph captions are inserted for convenience of reference and are in no way to be construed as a part of this Agreement or as a limitation on the scope of the paragraphs to which they refer. (g) Entire Agreement. This Development Agreement contains the - 30- entire agreement and understanding of the Developer and the City with respect to the subject matter set forth herein, all prior agreements and understandings having been merged herein and extinguished hereby. (h) Incorporation of Recitals and Exhibits. The recitals to this Agreement, as well as all Exhibits attached hereto, are by this reference incorporated herein. (i) Joint Preparation. This Agreement is and shall be deemed and construed to be the joint and collective work product of the City and Developer and, as such, this Agreement shall not be construed against either party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, in the terms or provisions contained herein. (j) Law Governing. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois. In any legal proceeding between the parties hereto, venue shall exclusively lie in the Sixteenth Judicial Circuit of Kane County, Illinois. Each party hereby waives any objection it may have to commencement or transfer of any such proceeding to either of said venues and hereby affirmatively consents to same. Notwithstanding anything else to the contrary in this Agreement, with the sole exception of an action to recover the Development Assistance-Part A, the Development Assistance-Part B, the Tax Rebate, and/or the Honda Land Buy-Down, no action shall be commenced by Developer or any of its successors and/or assigns including, without - 31 - limitation, Dealerships, against the City for monetary damages. (k) Successors: This Agreement shall inure to the benefit of, and shall be binding upon the parties hereto and their respective successors, assigns and grantees and shall run with title to the Subject Property. The City may record a memorandum of agreement placing of record the terms, provisions and obligations of this Agreement. The Developer, in its contracts for the sale of, or leases with respect to Lots, and/or by other separate written agreement shall impose a contractual obligation upon each purchaser, lessee and upon each Dealership operating on the Subject Property a specific requirement that such purchaser, lessee and each Dealership comply with all of the terms and requirements of this Agreement that impose obligations on purchasers, lessees or Dealerships (as opposed to the obligations of the Developer). The terms of this Agreement shall be enforceable by the City against the Developer and its successors, assigns and grantees., The Developer shall provide the City a written acknowledgement of such purchasers, lessees or Dealerships covenant to perform their obligations of this Agreement. (1) Time of the essence. Time shall be of the essence of this Agreement. (m) No joint venture. This Agreement shall not be deemed or construed to evidence or create an employment,joint venture, partnership or other agency relationship between the parties hereto. - 32 - (n) Further Action. The parties hereto shall execute and deliver all documents, provide all information and take or forebear from all actions as may be necessary or appropriate to achieve the purposes of this Agreement. (o) Remedies Cumulative. The remedies of the parties under this Agreement or available at law are cumulative and will not exclude any other remedies to which any party may be lawfully entitled. (p) No Disconnection. The Developer on behalf of itself and its respective successors, assigns and grantees agrees that it shall not file, cause to be filed, or take any action that will result in the disconnection or deannexation of the Subject Property from the City for a period of twenty- five (25) years following the date of this Agreement. Without limiting the foregoing, the Developer on behalf of itself and any of its successors, assigns and grantees hereby waives any and all rights, statutory or otherwise to disconnect the Subject Property from the City of Elgin. (q) Proposed Amendments to Ordinances. To the fullest extent permitted by law, it is agreed that in the event that the Developer or any of its successors, assigns and grantees propose to amend the Subject Planned Development Ordinance for the Subject Property and/or the ordinance establishing special regulations for street graphics for the Subject Property enacted under Ordinance No. G70-07 (such ordinance establishing special regulations for street graphics for the subject property being hereinafter referred to as the "Subject Street Graphics Ordinance for the Subject - 33 - Property"), that any such rezoning and/or amendment to such ordinances shall also require the amendment of this Agreement, upon the terms and conditions which are agreed to in writing by the City and the Developer. Such an amendment shall not require the consent of any third party beneficiary, but such an amendment shall be subject to the provisions of paragraph 4(c)(ii). (r) Acknowledgement of Legality. Developer on behalf of itself and its successors, assigns and grantees hereby acknowledges the propriety, necessity and legality of all of the terms and provisions of this Agreement, the Subject Planned Development Ordinance for the Subject Property and the Subject Street Graphics Ordinance for the Subject Property, and does hereby further agree and does waive any and all rights to any and all legal or other challenges or defenses to any of the terms and provisions of this Agreement and such ordinances, and hereby agrees and covenants on behalf of itself and its successors, assigns and grantees, not to sue the City or maintain any legal action or other defenses against the City with respect to any challenges of the terms or provisions of this Agreement, the Subject Planned Development Ordinance for the Subject Property and/or the Subject Street Graphics Ordinance for the Subject Property. 9. Assessment of Subject Property. The City and the Developer agree that the Subject Property should be assessed for general real estate taxes in the manner provided by Illinois Compiled Statutes as they may be amended from time to time. The Developer agrees that, for a period of twenty-five (25) years following the date of this - 34- Agreement, neither the Developer nor any person affiliated with the Developer, or any successor or permitted assign of the Developer, shall do any of the following: (a) Request a full or partial exemption for general real estate taxes for any portion of the Subject Property. (b) Challenge the real estate tax rate(s) for the Subject Property. (c) Request an assessment at a value not otherwise permitted by law. 10. Conveyance by Developer for Future Tollway Expansion. The City and the Illinois State Toll Highway Authority ("ISTHA") have reached an agreement where under (1) the City will acquire from the Developer the Tollway Parcel (hereafter defined, (2) the City will then reconvey the Tollway Parcel to ISTHA for ISTHA's use for I-90 right-of-way expansion, and (3) the City will pay the cost to relocate the Subdivision's stormwater detention facility from the Tollway Parcel to another off-site location (with such agreement being hereinafter called the City-ISTHA Agreement"). Based on the said City-ISTHA Agreement: (a) The City and the Developer agree that the Developer shall convey to the City at no cost that portion of the Subject Property identified as Outlot C on the final plat of subdivision for the Subject Property approved by the City pursuant to Resolution Number 07-294 (hereinafter the "Tollway Parcel"). Such conveyance by the Developer to the City shall occur within thirty (30) days of the recording of the final plat of subdivision for the Subject Property and shall be made by recordable warranty deed subject only to (i) - 35 - real estate taxes not yet then due and payable, (ii) covenants, conditions and restrictions of record, if any, none of which shall prohibit or restrict the use of such property as public right of way, and (iii) a non-exclusive stormwater drainage and detention easement for stormwater drainage emanating from the Subject Property pursuant to final engineering plans and a stormwater permit as approved by the City Engineer. Such stormwater drainage easement shall be for the benefit of the property owners association for the Subject Property. (Such drainage and detention easement is hereinafter referred to as the "Subject Stormwater Drainage Easement"). (b) The stormwater improvements for the Subject Property including, but not limited to, the drainage and detention area to be constructed on the Tollway Parcel pursuant to the Subject Stormwater Drainage Easement shall be constructed by the Developer at its cost as part of the initial subdivision improvements for the Subject Property. (c) It is agreed and understood by the City and the Developer that the City may convey the Tollway Parcel to the lllinois State Toll Highway Authority ("ISTHA") or another governmental body (or agency thereof, but not to any private party) for the sole and exclusive purpose of future Interstate 90 right-of-way expansion (the "Tollway Expansion Purpose"). It is further agreed and understood by the City and the Developer that, subject to and - 36 - e�. conditional upon full and complete compliance with the Relocation Conditions (hereinafter defined) the Subject Stormwater Drainage Easement may be relocated from the Tollway Parcel to other locations (collectively collective) "Alternate Detention Areas") as determined by the City and/or ISTHA in their sole discretion. The Relocation Conditions are as follows: (i) A non-exclusive drainage easement shall be granted to the Association for the benefit of the Lots to use the Alternate Detention Areas for Stormwater Drainage, all of which shall, in the aggregate, constitute a lawful replacement of the original detention facilities on the Tollway Parcel; (ii) Stormwater Drainage Facilities shall be constructed, completed and permitted so as to provide both functional and regulatory substitution for the Stormwater Drainage for the Subject Property previously located on the Tollway Parcel, including installation of Stormwater Drainage Transmission Lines to transmit Stormwater from the Tollway Parcel to the Alternate Detention Areas; (iii) The Stormwater Drainage Facilities on the Tollway Parcel shall not be disturbed or affected until the required stormwater facilities in the Alternate - 37 - Detention Areas are fully functional and permitted to provide the full replacement stormwater transmission, drainage and storage for the Stormwater Drainage initially on the Tollway Parcel; (iv) The term "Alternate Detention Areas" shall include the right to properly transmit Stormwater Drainage from the Tollway Parcel to all of the Alternate Detention Areas; (v) The Stormwater Drainage Easement shall be recorded with the Kane County Recorder and an easement title insurance policy shall be provided to the Association containing only those title exceptions consistent with the terms and purpose of the Stormwater Drainage Easement and insuring the Stormwater Drainage Easement as an easement appurtenant to and for the benefit of the Subject PP J Property; (vi) The Stormwater Drainage Easement shall specifically exculpate the Association or Owners of the Lots on the Subject Property from any liability for maintenance of the Alternate Detention Areas or the Stormwater Drainage Facilities located thereon; - 38 - � r (vii) The Stormwater Drainage Easement shall be a perpetual and permanent Easement, provided, however, that after the Stormwater Detention Easement is first relocated from the Tollway Parcel, the Stormwater Drainage Easement may be again be relocated by the City and/or ISTHA in their sole discretion but only (A) at the sole expense of the City and/or ISTHA (without any right of recovery from the Developer) and (B) as long as the Relocation Conditions are once again met for any such subsequent relocation. (d) The Developer agrees to and shall reimburse the City for any and all costs for the relocation of the Subject Stormwater Drainage Easement from the Tollway Parcel. The parties agree that the current estimate to relocate the Subject Stormwater Drainage Easement from the Tollway Parcel is in the amount of $451,200 (the "Current Estimated Relocation Costs"). The Developer shall reimburse the City the cost to relocate the Subject Stormwater Drainage Easement from the Tollway Parcel as follows: (i) Following the relocation of the Subject Stormwater Drainage Easement from the Tollway Parcel the City shall deduct the City's costs for same from the subsequent installments of the Developer Sales Tax Rebate otherwise - 39 - • • due and payable to the Developer until such time as the City has been reimbursed in full the costs for such relocation of the Subject Stormwater Drainage Easement from the Tollway Parcel. (ii) In the event the Subject Stormwater Drainage Easement has not been relocated from the Tollway Parcel after year 15 of the Subject 20 Year Period, the City shall then deduct from subsequent installments of Developer Sales Tax Rebate payments otherwise due and payable to the Developer the Current Estimated Relocation Costs. The balance of the City's cost to relocate the Subject Stormwater Drainage Easement from the Tollway Parcel, if any, shall be paid by the Developer to the City within thirty (30) days of the City's written notice to the Developer that the City is obligated to pay such costs to the Tollway or others. (iii) In the event the Developer does not develop the Subject Property for the Auto Mall Project the Developer shall reimburse the City the costs to relocate the Subject Stormwater Drainage Easement from the Tollway Parcel within thirty (30) days of written notice from the City to the Developer that the City is obligated to pay such costs to the Tollway or others. (e) Notwithstanding the foregoing, if the City-ISTHA Agreement is -40- ti • modified or terminated so as to eliminate the need to relocate the Subdivision's stormwater facilities off of the Tollway Parcel or to relieve the City from the obligation to pay for such relocation, then the Developer's obligation to reimburse the City shall be commensurately reduced or eliminated (as the case may be) and any monies previously deposited by the Developer with the City for such purpose shall likewise be commensurately refunded to the Developer. (f) One or more Dealerships may enforce the Relocation Conditions, but no Dealership shall be responsible for Developer Obligations under this Paragraph 10. (g) The provisions of this paragraph 10 relating to the relocation of the Subject Stormwater Drainage Easement and the Developer's obligation to reimburse the City for the costs of same shall not be merged into the deed conveying the Tollway Parcel to the City and shall survive the conveyance of the Tollway Parcel from the Developer to the City. [SIGNATURE PAGE FOLLOWS] -41 - • y I w yl CITY OF ELGIN, a municipal RANDALL 90, LLC corporation B .. Ed Schock, Mayor Attest: By: Diane Robertson, C y Clerk F:\Legal Dept\Agreement\Development Agr-Randall 90-WAC-clean 11-28-07.doc -42 - «r :I 4 r « 11 EXHIBIT 1 Legal Description of Subject Property THAT PART OF THE SOUTH HALF OF SECTION 30, TOWNSHIP 42 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF THE EAST HALF OF THE SOUTHWEST QUARTER OF SAID SECTION 30; THENCE NORTH 88°43'36" EAST ALONG THE NORTH LINE OF THE SOUTH HALF OF SAID SECTION 30, A DISTANCE OF 2,116.34 FEET TO AN INTERSECTION WITH A LINE DRAWN NORTHEASTERLY, PERPENDICULAR TO THE NORTHEASTERLY LINE OF STATE TOLL HIGHWAY COMMISSION PARCEL NUMBER N-4D-56, FROM A POINT 1,576.63 FEET, MEASURED ALONG SAID NORTHEASTERLY LINE AND THE NORTHEASTERLY LINE OF STATE TOLL HIGHWAY COMMISSION PARCEL NUMBER N- 4D-55, SOUTHEAST OF THE WEST LINE OF SAID EAST HALF OF THE SOUTHWEST QUARTER OF SECTION 30, SAID INTERSECTION BEING THE POINT OF BEGINNING; THENCE CONTINUING NORTH 88°43'36" EAST ALONG THE NORTH LINE OF THE SOUTH HALF OF SAID SECTION 30, A DISTANCE OF 805.40 FEET TO A LINE 1,050.00 FEET, MEASURED AT RIGHT ANGLES, WEST OF AND PARALLEL WITH THE EAST LINE OF SAID SECTION 30; THENCE SOUTH 00°25'35" EAST ALONG SAID PARALLEL LINE, 700.08 FEET TO A LINE 700.00 FEET, MEASURED AT RIGHT ANGLES, SOUTH OF AND PARALLEL WITH THE NORTH LINE OF THE SOUTH HALF OF SAID SECTION 30; THENCE NORTH 88°43'36" EAST ALONG SAID PARALLEL LINE, 963.87 FEET TO THE WEST LINE OF LAND DEEDED TO THE COUNTY OF KANE BY DOCUMENT 96K070347; THENCE SOUTH 00°16'28" WEST ALONG SAID WEST LINE, 600.00 FEET TO THE SOUTH LINE OF SAID LAND DEEDED TO THE COUNTY OF KANE; THENCE NORTH 88°43'36" EAST ALONG SAID SOUTH LINE, 15.01 FEET TO THE WEST LINE OF ILLINOIS STATE TOLL HIGHWAY AUTHORITY PARCEL NO. N-4D-56.2; THENCE SOUTH 00°16'28" WEST ALONG SAID WEST LINE, 557.98 FEET TO THE NORTHEAST CORNER OF ILLINOIS STATE TOLL HIGHWAY AUTHORITY PARCEL NO. N-4D-56.12; THENCE SOUTH 00°16'15" WEST ALONG THE EAST LINE OF SAID PARCEL NO. N-4D-56.12, A DISTANCE OF 33.00 FEET; THENCE CONTINUING ALONG THE EAST LINE OF SAID PARCEL NO. N-4D-56.12, SOUTH 02°45'03" WEST, 249.66 FEET; THENCE CONTINUING ALONG THE WEST LINE OF LAND TAKEN BY ILLINOIS STATE TOLL HIGHWAY AUTHORITY, SOUTH 08°29'28" WEST, 295.11 FEET; THENCE NORTH 74°05'37" WEST ALONG THE NORTHERLY LINE OF ILLINOIS STATE TOLL HIGHWAY AUTHORITY TAKING 96EDKA0012, A DISTANCE OF 725.45 FEET; THENCE SOUTH 29°19'07" WEST ALONG THE WESTERLY LINE OF ILLINOIS STATE TOLL -43 - HIGHWAY AUTHORITY TAKING 96EDKA0012, A DISTANCE OF 46.83 FEET; THENCE NORTH 63°51'40" WEST ALONG THE NORTHEASTERLY LINE OF THE ILLINOIS STATE TOLL HIGHWAY, 876.35 FEET; THENCE NORTH 60°40'53" WEST ALONG THE NORTHEASTERLY LINE OF THE STATE TOLL HIGHWAY COMMISSION PARCEL NO. N-4D-56, A DISTANCE OF 1097.40 FEET TO A POINT 1,576.63 FEET, MEASURED ALONG SAID NORTHEASTERLY LINE AND THE NORTHEASTERLY LINE OF STATE TOLL HIGHWAY COMMISSION PARCEL NUMBER N- 4D-55, SOUTHEAST OF THE WEST LINE OF SAID EAST HALF OF THE SOUTHWEST QUARTER OF SECTION 30; THENCE NORTH 29°19'07" EAST ALONG A LINE DRAWN NORTHEASTERLY, PERPENDICULAR TO THE NORTHEASTERLY LINE OF STATE TOLL HIGHWAY COMMISSION PARCEL NUMBER N-4D-55 A DISTANCE OF 1,503.82 FEET TO THE POINT OF BEGINNING, ALL IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. (Property commonly known as N-W corner of Randall Rd. and I-90 Toll Way,Elgin, Kane County, Illinois). -44 -