HomeMy WebLinkAboutOrdinance # 1942ORDINANCE NO. 19 4 2
AN ORDINANCE APPROVING A LEASE AGREEMENT BETWEEN THE CITY
OF CANTON AND TYDACO, INC. AND DIRECTING THE MAYOR AND CITY
CLERK TO EXECUTE SAID AGREEMENT ON BEHALF OF THE CITY OF
CANTON, ILLINOIS.
WHEREAS, the City of Canton adopted Chapter 14 (Off-Street Parking and
Loading Requirements) of Title 10 (Zoning) of the Canton Municipal Code. Section 10-
14-2 of said code requires establishments for the sale and consumption on the premises of
beverages, food, or refreshments to provide one (1) customer parking space per every one
hundred (100) square feet of useable floor area or per two (2) seats, whichever is smaller.
(Ordinance 567, 11/1976).
WHEREAS, pursuant to the terms of the Canton Municipal Code, McDonald's is
required to provide fifty four (54) customer parking spaces. Although McDonald's
currently meets all code requirements, it intends to undergo a renovation of its drive-
through facilities in the winter of 2008-2009 that would reduce the number of available
parking spaces available to customers and employees to approximately thirty (30). The
renovation is intended to reduce or eliminate the traffic back-up that occurs onto
Sycamore Street for patrons attempting to enter the McDonald's drive through.
WHEREAS, the City owns a strip of property to the immediate north of
McDonald's on Sycamore between Main Street and First Avenue that is currently
available for general municipal parking.
WHEREAS, McDonalds desires to enter into a lease agreement with the City for
the property that is to the immediate north of McDonald's property. Said property would
provide customer and employee parking for McDonald's that would otherwise be
eliminated by their drive through renovation.
WHEREAS, the City's best interests are served by entering into a lease
agreement with McDonald's that would allow McDonald's to lease city-owned property
to the north of Elm Street, thereby providing the required parking for McDonald's and
allowing McDonald's to undergo their drive-through renovation and greatly reduce or
eliminate the traffic back-up that occurs onto Sycamore Street.
WHEREAS, the Legal and Ordinance Committee of the City of Canton has
determined it necessary and in the best interests of the citizens of Canton to enter into a
lease agreement with Tydaco, Inc. for parking on the north side of Sycamore, as set forth
in Exhibit A, attached hereto and incorporated herein; and
WHEREAS, the City Council of the City of Canton has made a similar
determination.
NOW, THEREFORE, be it ordained by the Mayor and City Council of the City
of Canton, Illinois;
1. That the lease agreement attached hereto and incorporated herein as Exhibit A
is hereby approved by the Canton City Council.
2. That the Mayor and City Clerk of the City of Canton, Illinois are hereby
authorized and directed to execute said lease on behalf of the City of Canton.
3. That this Ordinance shall be in full force and effect immediately upon its
passage by the City Council of the City of Canton, Illinois and approval by the Mayor
thereof.
PASSED by the City Council of the City of Canton, Illinois at a regular meeting
this 2ndday of seAtember , 2008 upon a roll call vote as follows:
AYES: Aldermen Lewis, Strandberg, Ihnes, Nidiffer, West, Sarff,
Schenck.
NAYS: None .
ABSENT: Alderman Berardi .
APPRO.. D;'
-' .~
Kevin R. Meade, Mayor
ATTEST:
Nancy Whit City Clerk
LEASE AGREEMENT
between
CITY OF CANTON, ILLINOIS
and
TYDACO,INCORPORATED
Dated as of September 2, 2008
This instrument prepared by and return to:
CHRISSIE L. PETERSON
Canton City Attorney
2 North Main Street
Canton, Illinois 61520
Telephone: (309) 647-2738
LEASE AGREEMENT
This LEASE AGREEMENT, dated as of September 2, 2008 (this "Lease"), is
made between the CITY OF CANTON, an Illinois municipal corporation (hereinafter the
"City" or "Lessor") and TYDACO, INCORPORATED, an Illinois Domestic BCA
(hereinafter "McDonalds" or "Lessee").
RECITALS:
WHEREAS, the City of Canton adopted Chapter 14 (Off Street Parking and Loading
Requirements) of Title 10 (Zoning) of the Canton Municipal Code. Section 10-14-2 of said code
requires establishments for the sale and consumption on the premises of beverages, food or
refreshments to provide one (1) customer parking space per every one hundred (100) square feet
of usable floor area or per two (2) seats, whichever is the smaller. (Ordinance 567, 11/1976).
WHEREAS, pursuant to the terms of the Canton Municipal Code, McDonald's is
required to provide fifty four (54) customer parking spaces. Although McDonald's currently
meets all code requirements, it intends to undergo a renovation of its drive-through facilities in
the Winter of 2008-2009 that would reduce the number of available parking spaces available to
customers and employees to approximately thirty (30). The renovation is intended to reduce or
eliminate the traffic back-up that occurs onto Main Street for patrons attempting to enter the
McDonald's drive through.
WHEREAS, the City owns a strip of property to the immediate north of McDonald's on
Sycamore between Main Street and First Avenue that is currently available for general municipal
parking.
WHEREAS, McDonalds desires to enter into a lease agreement with the City for the
property that is to the immediate north of McDonald's property. Said property would provide
customer and employee parking for McDonald's that would otherwise be eliminated by their
drive through renovation.
WHEREAS, the City's best interests are served by entering into a lease agreement with
McDonald's that would allow McDonald's to lease city-owned property to the north of Elm
Street, thereby providing the required parking for McDonald's and allowing McDonald's to
undergo their drive-through renovation and greatly reduce or eliminate the traffic back-up that
occurs onto Main Street.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
(the "parties") agree as follows:
Section 1. Lease: Upon the Lessee making proper payment to the Lessor in
accordance with this agreement, lessee will be entitled to full use of the property set forth below.
(a) Leased Premises: Parking spaces located on the northern edge of
Sycamore between Main Street and First Avenue.
(b) Lease Price: Ten dollars ($10.00) per year, with payment due annually on
by September 1St. The Lease Price shall be non-refundable to Lessee except in the following
circumstances:
(i) if sale or conveyance of the property shall occur; or
(ii) if the Lease Agreement shall be terminated for any reason in
accordance with its terms.
Upon the occurrence of either of the foregoing circumstances, Lessor shall immediately return
the Lease Price to Lessee.
(c) Lease Term: This lease will be in effect for a term of twenty (20) years
from September 2, 2008 through September 2, 2028.
Section 2. Lessee Representations and Warranties.
that:
(a) As of the date hereof, the Lessee hereby represents and warrants to Lessor
(i) Organization. Lessee is an Illinois Domestic BCA (Illinois
Secretary of State File Number 55046557), duly organized, validly existing and in good
standing under the laws of the State of Illinois.
(ii) Authority and ValiditX. Lessee has all requisite corporate power
and authority to execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery and
performance by Lessee of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all necessary action
required on the part of Lessee, and no other proceedings on the part of Lessee are
necessary to authorize this Agreement or for Lessee to perform its obligations under this
Agreement. This Agreement constitutes the lawful, valid and legally binding obligation
of Lessee, enforceable in accordance with its terms, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors' rights generally and general equitable principles regardless
of whether such enforceability is considered in a proceeding at law or in equity.
(iii) No Violation or Conflict. The execution, delivery and
performance of this Agreement and the transactions contemplated hereby do not
(A) violate, conflict with or result in the breach of any provision of the organizational
documents of Lessee, (B) as of the date of this Agreement and conflict with or violate
any law or Governmental Order applicable to Lessee or any of its assets, properties or
businesses.
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(iv) Lien. Lessee will not, and will not create, assume or suffer to exist
any Lien on the Leased Premises.
Section 3. Lessor Representations Warranties and Covenants.
(a) As of the date hereof, the Lessee hereby represents and warrants to Lessor
that:
(i) Organization. The City is an Illinois Municipal Corporation duly
organized and existing under the laws of the State of Illinois.
(ii) Authority and Validity. Pursuant to 65 ILCS 5/11-75-5 the City
has the authority to lease real estate for any term not exceeding ninety-nine (99) years
and to execute, deliver and perform its obligations under a lease agreement and to
consummate the transactions contemplated thereby. The execution, delivery and
performance by Lessor of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all necessary action
required on the part of Lessor pursuant to 65 ILCS 5/11-76-2. The City's statutory
authority to lease this Leased Premises is not subject to the notice by publication
requirement as the lease is not in excess of twenty (20) years. People ex rel. Vauagniaux
v. City of Edwardsville, 219 I11.Dec. 725 (1996). Therefore, no other proceedings on the
part of Lessor are necessary to authorize this Agreement or for Lessor to perform its
obligations under this Agreement. This Agreement constitutes the lawful, valid and
legally binding obligation of Lessor, enforceable in accordance with its terms, except as
the same may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights generally and
general equitable principles regardless of whether such enforceability is considered in a
proceeding at law or in equity.
(iii) No Violation or Conflict. The execution, delivery and
performance of this Agreement and the transactions contemplated hereby do not
(A) violate, conflict with or result in the breach of any provision of the organizational
documents of Lessor, (B) as of the date of this Agreement, conflict with or violate any
law or Governmental Order applicable to Lessor or any of its assets, properties or
municipal businesses, or (C) as of the date of this Agreement, conflict with, result in any
breach of, constitute a default (or event that with the giving of notice or lapse of time, or
both, would become a default) under, require any consent under, or give to others any
rights of termination, amendment, acceleration, suspension, revocation or cancellation of,
or result in the creation of any Lien on any of the assets or properties of Lessor, pursuant
to, any note, bond, mortgage or indenture, contract, agreement, lease, sublease, license,
permit, franchise or other instrument or arrangement to which Seller is a party.
Section 4. Assignment; Transfer Maintenance.
(a) Assignment by Lessee. Lessee shall not assign, delegate, transfer, sell or
otherwise dispose of (collectively, "Transfer"), in whole or in part, any of its rights or obligations
hereunder, to the Leased Premises to any Person or Entity (a "Transferee") without the prior
written consent of Lessor.
(b) Maintenance. Lessee shall maintain the improvements to the Leased
Premises in good condition and shall maintain and repair the Leased Premises as necessary, and
shall provide necessary services to the Leased Premises, including, but not limited to, snow
removal, asphalt repair, and parking lot striping and otherwise maintain the Leased Premises.
Section 5. Insurance
Lessee shall provide, annually, with payment of Lease Price, evidence of general liability
on the Leased Premises the City of Canton named as an additional insured, with a general
liability aggregate limit of at least one million dollars ($1,000,000.00) which shall be in effect, at
all times, during the term of this lease.
Section 6. Costs and Expenses; Payments.
Except as provided herein to the contrary, each party shall pay its own costs and expenses
incurred in connection with the exercise of the Lease Agreement.
Section 7. Termination of AgLreement.
This Agreement shall terminate and be of no value upon the earlier to occur of (i) six (6)
months written notice from the Lessor to the Lessee or (ii) the mutual written consent of all of
the parties hereto.
Section 8. Notices.
Any notice, request, demand, waiver, consent, approval or other communication which is
required or permitted to be given to any party shall be in writing and shall be deemed given only
if delivered (or delivery is rejected) to the party personally or by next Business Day delivery by a
nationally recognized courier service, or by registered or certified mail (return receipt requested),
with postage and registration or certification fees thereon prepaid, addressed to the party at its
address set forth below:
Lessor:
City of Canton
2 North Main Street
Canton, Illinois 61520
Attention: Mayor
with a copy to:
City of Canton
2 North Main Street
4
Canton, Illinois 61520
Attention: City Attorney
Lessee:
TyDaCo, Incorporated
10 East Sycamore
Canton, Illinois 61520
Attention: David & Jayne Cope
with a copy to:
Ms. Mary E. Faupel, Esq.
Faupel Law Offices, ltd.
117 W. Center Street
Eureka, Illinois 61530-1189
Attention: Mary Faupel, Registered Agent
or to such other address as such party may from time to time specify by notice given in the
manner provided herein to each other party entitled to receive notice hereunder.
Section 9. Governing Law• Consent to Jurisdiction and Service of Process.
(a) This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Illinois.
(b) Each of the parties hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any Illinois court or federal court of the
United States of America sitting in the Central District of Illinois and any appellate court from
any jurisdiction thereof, in any action or proceeding arising out of or relating to this Agreement,
or for recognition or enforcement of any judgment, and each of the parties hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or proceeding may be
heard and determined in any such Illinois court or, to the fullest extent permitted by law, in such
federal court. Each of the parties agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law. Nothing in this Agreement shall affect any right that any party
may otherwise have to bring any action or proceeding relating to this Agreement.
(c) Each of the parties irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection that it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in
any Illinois state or federal court. Each of the parties hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court. Each of the parties hereby consents to service of process by
mail.
Section 10. Waiver of Jury Trial.
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF
OR RELATING TO THIS AGREEMENT.
Section 11. Entire Agreement.
This Agreement constitutes the entire agreement between the parties with respect to the
matters covered hereby and supersedes all prior agreements and understanding with respect to
such matters between the parties.
Section 12. Amendment; Successors; Counterparts.
(a) The terms of this Agreement shall not be altered, modified, amended,
waived or supplemented in any manner whatsoever except by a written instrument signed by
each of the parties.
(b) Except as otherwise set forth herein, nothing expressed or implied herein
is intended or shall be construed to confer upon or to give to any Person, other than the parties,
any right, remedy or claim under or by reason of this Agreement or of any term, covenant or
condition hereof, and all the terms, covenants, conditions, promises and agreements contained
herein shall be for the sole and exclusive benefit of the parties and their successors and permitted
assigns.
(c) This Agreement may be executed in one or more counterparts, each of
which, when executed, shall be deemed an original but all of which, taken together, shall
constitute one and the same Agreement.
Section 13. Indemnity.
Lessee does hereby fully RELEASE, REMISE and forever DISCHARGE the Lessor, its
agencies, and agents from all manner of action and actions, cause and causes of actions, claims,
demands, suits, debts, dues, damages, costs, loss of service, sums of money, accounts, bonds,
bills, specialties, controversies, agreements, promises, variances, immunities, losses, trespasses,
judgments, executions, expenses or compensations on account, whatsoever, whether known,
unknown, foreseen unforeseen, patent or latent, in law or in equity, which Lessee may have
against said Lessor, growing out of or original or arising out of any transaction, occurrence,
event or incident occurring at the leased Premises, and do hereby covenant with the said Lessor
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to indemnify and save it/him/her harmless for all said claims, demands, costs, expenses and
compensation on account of or in any way arising out of any incident during the term of this
agreement, including, but not limited to injury which is the result of ice and snow accumulation
and further, said Lessee understand and acknowledges the significance and consequence of such
specific intention to release all claim, and hereby assumes full responsibilities for any injuries,
damages or losses it/he/she may incur from entering into this Lease Agreement, as Lessee uses
said parking lot at its/his/her own risk.
Section 14. Severability.
If any term or other provision of this Agreement is invalid, illegal or incapable of being
enforced by any rule of law or public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in a manner materially adverse
to either party. Upon such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as possible in an acceptable
manner to the end that the transactions contemplated hereby are fulfilled to the extent possible.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the day and year first above written.
TyDaCo, Inc.
~'~ C
By:
David W. Cope, Presid t
ATTEST:
TyDa o, Inc.
By:
ne .Cope, Secretary
CITY OF N N
By:
Kevin R. Meade, Mayor
ATTEST:
CITY OF CANTON
By: ~ ~~~"v-~~~G~,~
Nancy S. hites, City Clerk
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