HomeMy WebLinkAbout04-226 Resolution No. 04-226
RESOLUTION
AUTHORIZING EXECUTION OF A DEVELOPMENT AGREEMENT WITH
RSC-ELGIN, LLC FOR THE DEVELOPMENT OF THE
NBD/PROMAC SITE ON SOUTH GROVE AVENUE
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that
Ed Schock,Mayor, and Dolonna Mecum, City Clerk,be and are hereby authorized and directed to
execute a Development Agreement on behalf of the City of Elgin with RSC-Elgin, LLC for the
development of residential,retail and parking at the property located at East Chicago Street, South
Grove Avenue and Riverside Drive (NBD/Promac Site), Elgin, a copy of which is attached hereto
and made a part hereof by reference.
s/ Ed Schock
Ed Schock, Mayor
Presented: August 11, 2004
Adopted: August 11, 2004
Vote: Yeas: 4 Nays: 2
Attest:
s/Dolonna Mecum
Dolonna Mecum, City Clerk
City of Elgin
� Mayor
Ed Schock
Council Members
Juan Figueroa
Robert Gilliam
Brenda Rodgers
Thomas K. Sandor
John Walters
City Manager
David M. Dorgan
August 24, 2004
Mr. Peter C. Bazos
Attorney at Law
1250 Larkin Avenue, Suite 100
Elgin, IL 60123
Re: NBD/Promac Site Agreement with RSC-Elgin. LLC
Dear Peter:
Enclosed are two originally signed copies of the development agreement regarding the above
project, an additional signature page signed by all parties, and two certified copies of Resolution
04-226 authorizing execution of the agreement.
We only received one copy of the complete agreement and four additional signature pages signed
by Richard S. Curto. My office retained the complete agreement which includes the colored
exhibits, the Legal Department has an originally signed signature page and a copy of the
agreement, and the other three signed signature pages are being given to you.
Please call me if you have any questions.
Sincerely,
Dolonna"Loni" Mecum
dkm
Enclosures
150 Dexter Court• Elgin, IL 60120-5555 • Phone 847/931-6100• Fax 847/931-5610 •TDD 847/931-5616
www.cityofelgin.org
® Printed on recycled paper
DEVELOPMENT AGREEMENT
THIS AGREEMENT made and entered into this 11th day of August,
2004, by and between the CITY OF ELGIN, an Illinois municipal
corporation (hereinafter referred to as the "City") ; and RSC-Elgin,
LLC, an Illinois limited liability company (hereinafter referred to
as "Developer") .
WHEREAS, the City Council of the City of Elgin has adopted
Ordinance Nos . S6-99, S1-02, S2-02, S3-02 and S4-02 proposing,
approving and creating the Elgin Central Area Tax Increment
Financing Redevelopment Plan and Project (the "ECA TIF District")
pursuant to the Tax Increment Allocation Redevelopment Act at 65
ILCS 5/11-74 . 4-1, et seq. ; and
WHEREAS, the ECA TIF District was established on April 10,
2002 and will continue for twenty-three (23) years thereafter; and
WHEREAS, the City is the owner of the properties (a) legally
described in Exhibit A attached hereto, (hereinafter referred to as
the "NBD Site") and (b) legally described in Exhibit A-1 attached
hereto (hereinafter referred to as the "Osco Site", with both the
NBD Site and the Osco Site being sometimes hereinafter collectively
referred to as the "City Sites") ; and
WHEREAS, the Developer is the contract purchaser of that
certain property commonly known as 3t)-50 Sough Grove Avenue, Elgin,
Illinois, such property being L(,q,)1. 1_y described in Exhibit B
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at-Lac:hed hereto, (fi(.rei_nafte.r_ referred to as the "Private
Development Site") ; and
WHEREAS, both the City Sites and the Private Development Site
(hereinafter collectively called the "Subject Property") are
located within the ECA TIF District; and
WHEREAS, the Developer has submitted to the City a
proposal for the redevelopment of the Subject Property providing
for 93 residential lofts, 84 residential condominiums, 3
residential duplex units, 14 residential townhomes, approximately
8, 000 square feet of retail space, 267 private parking spaces (with
the number of private parking space being somewhat decreased if the
square feet of retail space is increased) and 116 public parking
spaces to be developed on the Subject Property as hereinafter
described; and
WHEREAS, the City Council of the City has determined that
Developer' s proposed redevelopment of the Subject Property as
hereinafter described will further the goals and objectives of the
Elgin Central Area Tax Increment Financing Redevelopment Plan and
Project; and
WHEREAS, Developer' s proposal for the redevelopment of the
Subject Property will result in an increase in the City' s tax
revenues; and
WHEREAS, it is unlikely that the proposed redevelopment of the
Subject Property will occur in the absence of l=imited development
assistance from the City; and
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WHEREAS, in or(l(,r to pr_o•iidr For the pr(-)posed r_cedc�v(-Ar)pment of
thc, Subject Property as hereinafter described which will further
the goals and objectives of the Elgin Central Area Tax Increment
Financing Redevelopment Plan and Project and which will result in
increases in the City' s tax base the City has agreed to provide
certain development assistance as hereinafter described; and
WHEREAS, the City of Elgin is a home rule unit authorized to
exercise any power and perform any function pertaining to its
government and affairs; and
WHEREAS, this Development Agreement resulting in furthering
and achieving the goals and objectives of the Elgin Central Area
Tax Increment Financing Redevelopment Plan and Project and
resulting in increases in the City' s tax base are matters within
the government and affairs of the City; and
WHEREAS, the City desires to convey and the Developer desires
to acquire the City Sites in accordance with the terms and
conditions provided herein.
NOW, THEREFORE, for and in consideration of the mutual
undertakings as set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows :
1 . Recitals . The foregoing recitals are incorporated into
this Agreement in their entirety.
Feasibility. Developer sh,Ul h.�vo lip ro sixty ( 60) days
after the ex,�l:ut Lon and cioli_vory to t:hc D(-.V Loper of a fully
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executed colInterp'act <, f t_hi :, l,gr_eement ( th(, dat-e of such dr- I. i_very
bci_ng hereinafter calL(�d thy, "Acceptance Date" and such 60-day
period thereafter being hereinafter called the "Feasibility
Period") to conduct and complete such investigations and analyses
as the Developer may deem advisable in order to determine the
feasibility and desirability to the Developer (in its sole
discretion) of developing the Subject Property for the purposes
described in Developer' s proposal to the City. Such investigations
may include, but shall not be limited to, preliminary engineering,
soil testing, environmental audits and market studies . Within five
(5) days following the Acceptance Date of this Agreement, the City
shall deliver or cause to be delivered to Developer copies of all
reports in the City' s possession with respect to the City Sites
including, without limitation, any and all topographic studies,
engineering studies, geological studies, environmental assessments,
soil or other test results and existing surveys . In the event the
Developer determines, based upon such investigations or otherwise,
and in the sole and absolute discretion of the Developer, that the
Subject Property is not reasonably suitable for the purposes
described in Developer' s proposal, or that the Developer ' s proposed
project on the entire Subject Property is not desirable to the
Developer, then the Developer may, by written notice to the City
given prior to the end of the Feasibility Period, elect to
termi_n,lte this /\greemoriL . It the City i_s :-s() no.r_ Lti.ed in writing by
Developer prior to the expiration of such sixty ( 60) day
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and voLd with no furt,h(�r_ Liaf, i_ Lity of either party hereunder. In
such event, Developer_ shall. also provide to the City copies of all
documents obtained or generated by the Developer during the
Feasibility Period (elcluding, however, (i) internal memoranda and
financial analyses and (ii) architectural work product (the
"Developer Materials") . The Developer Materials are not intended
or represented to be suitable for reuse by the City, and any such
reuse shall be at the sole risk of the City and Developer shall
have no liability to the City or any other persons utilizing the
information contained therein for accuracy or appropriateness . In
the absence of written notice from the Developer to the City prior
to the expiration of such sixty ( 60) day Feasibility Period
electing to terminate this Agreement, or in the event Developer
provides the City written notice within such sixty ( 60) day
Feasibility Period that Developer is waiving its rights to cancel
this Agreement pursuant to the provisions of this Section,
Developer ' s rights to cancel this Agreement pursuant to the
provisions of this Section 2 shall be deemed waived by all parties
hereto, and this Agreement shall be in full force and effect .
3 . Conveyance of City Sites to Developer.
(a) In the event the Developer does not cancel this Agreement
during the Feasibility Period referred to in the preceding section
hereof, or in the event the Developer notifies the City in writing
that Lt Ls wa i v Lncl its rights to carnc:el th L: /\gUeement during the
Feas Lbi L Lty Por i od roterred Lo Ln t_ho pr(>c:ed i_nd section hereof, the
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City shill thereaCtl,r (:ornvl,y tO the Developer q(--)()d and merchantable
tec, simple title to the City rites by recordable special warranty
deeds, subject only to the title exceptions set forth on Exhibit G
attached hereto and those exceptions allowed under Section 7 below.
The said conveyances of the City Sites shall be subject to the
provisions and conditions contained in Section 5 below.
(b) The purchase price to be paid by the Developer to the
City for the City Sites shall be zero dollars ($ . 0) , it being
agreed and understood that the City is conveying the City Sites to
the Developer without a monetary purchase price as a development
incentive to the Developer as partial consideration for Developer' s
redevelopment of the Subject Property as provided for in this
Agreement .
4 . Survey. Not later than 30 days after the Acceptance
Date, the City at its own expense, shall furnish the Developer a
plat of survey for the City Sites prepared by a licensed land
surveyor dated not more than sixty ( 60) days prior to the closing
date, made and so certified by the surveyor to the Developer, or
other person designated by Developer, and the title company as
having been made in accordance with the minimum standard detail
requirements for ALTA-ASCM Land Title Surveys and Mapping, 1999,
including, without limitation, all items (except for Items 5, 7, 9,
12, 13 and 15) in Table A thereot with accuracy standards
approprLate to suburban settin�7s and tr)r [)OVI� Loher" S intended use
of the real estaLo) . The survey shall. il-so Lncl-Ltde a certification
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by the surveyor_ as to the square footage of the (,ity Sites (showing
the gross square footage and a calculation of the square footage of
any portion thereof lying in a public right-of-way) . Such survey
shall further show all matters of title as set forth in the title
insurance commitment .
5 . Closing: Phased Closings and Conveyances of City Sites:
Closing Contingency.
(a) It is understood that the Mixed Residential and
Commercial Project may, at the election of the Developer, proceed
in phases, specifically "Phase I" and "Phase II", as more
particularly described below.
(b) The closing (hereinafter the "Closing") shall take place
within thirty (30) days following the procurement by the Developer
of the Governmental Authorizations (as described in Section 10
below) . At the Closing the City shall convey the City Sites to the
Developer in the condition required herein. Unless subsequently
mutually agreed otherwise, closing shall take place at the office
of Chicago Title Insurance Company in Elgin, Illinois, provided
that the Closing Conditions, as sets forth in Subsection 5 (c)
below, have been fulfilled or otherwise waived
(c) The obligations of the City and the Developer to proceed
to and consummate the Closing shall be subject to the following
contingencies (collectively the "Closing Conditions") any one or
more of whLch may, at the elect Lo n oL (, l.her p,ir-ty ( t ) otherwise
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aggrLeved by the nori-fuLEi_1. Irnr.nl. of same and ( ij ) not at fault for
such non-Eulfillment, be wai-ied in writing) :
( i) Neither party shall be in default of any of its
obligations hereunder;
(ii) Chicago Title Insurance Company shall be prepared to
issue to Developer the required Owner' s Title
Insurance Policy.
(iii) The Developer shall, simultaneously with the Closing
hereunder:
A. Acquire title to the Private Development Site;
and
B. Grant to the City the Subordinated Mortgage (as
hereafter defined in Section 12 I below) .
(iv) All Governmental Authorizations, in form and
substance mutually acceptable to the City and the
Developer, shall have been granted.
(v) The Developer shall simultaneously close on the
recording of one or more construction loans
aggregating not less than Twelve Million Dollars
($12, 000, 000 . 00) [collectively the "Construction
Loan"] and shall be entitled to immediately draw
against said Construction Loan for amounts
sufficient to pay for so-called soft-costs and the
cost of demolition of the building on the Private
Development Site. (The amount of the Construction
Loan may be less than $12, 000, 000 if replaced by
equity contributed by the Developer or its
development partners . )
(vi) The Developer shall have demonstrated to the City' s
reasonable satisfaction that (A) the Developer
possesses (and has readily available to it) all of
the equity capital which, when added to the amount
of the Construction Loan, will be sufficient to
complete Phase I of the Mixed Residential and
CorT11110rCisL DeVt:� Lopm0nt c,ilLed the
"Equity CapLt.11.") 01' ( 13) t-ho D(�VoI- per has
I,ornmitrnents fr0111 on,' ot- morr� "equity partners
r(�,ison,ll) Ly 1C 0Pt.ab 10 Lo t llo I, i t y to provide such
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(vii) The Developer shall have caused the owner of the
Private Develr.,pment Site to deposit into the Closing
escrow ( For delivery upon the consummation of the
said Closing) a release releasing the City from its
obligations as set forth in paragraph 12 (including
all subparagraphs thereof) and paragraph 33
(including all subparagraphs thereof) , and also
including but not limited to any written agreement
containing the assumption, indemnification and
waiver provisions referred to in paragraph 33 of
that certain Real Estate Sale Agreement dated
September 27, 1995 between the City of Elgin and
James A. Rouzer, Elizabeth M. Erotas-Rouzer and
Michael A. Trump and Vicki B. Trump.
(viii) The Developer shall have made proper application to
the City for a demolition permit regarding the
building on the Private Development Site, and the
City shall have issued said demolition permit .
(d) Following the Closing, and until such time that the
Developer is prepared to commence the construction of Phase II of the
Mixed Residential and Commercial Project on the NBD Site, the City
shall have the right to continue to use the NBD Site for public
parking purposes, provided that the City executes and delivers to the
Developer that lease in the form attached hereto as Exhibit H (the
"Parking Lease") . Developer shall provide the City not less than 60-
days written notice of its intention to commence construction of Phase
II of the Mixed Residential and Commercial Project on the NBD Site,
and upon the effective date of such written notice the Parking Lease
shall terminate. The rights of the City under_ the Parking Lease shall
be subordinate l_() the r'.igli L s of Developer ' s cons t rucL ion lender (s) .
6 . No Brokers or Agents Involved in this Transaction. The
City ,)nd Devolop(�r o,ich w,1t•1',1I1t h) the <)I-hot' t_h,)[ they hive dealt
l':\I)twumrnhanil.tirllm \Il,cr\I.trralSrlUn \I'rmituran ligrrnvlPil .\('uulrnl II \'I l';\,II I'S\IJ CVCIulnnrnl;\�rccmcnl-Ikvrinitcr-vl•1-
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with no brokers or ire connection rrri.th this transaction.
Each party agrees t,j i-ndemnify, hold harmless and defend the other
party from any Iriss, cause, damages or expenses (including
reasonable attorney' s fees) arising out of a breach of the warranty
contained in this section.
7 . Title. During the first fifteen ( 15) days of the
Feasibility Period, the City at its own expense, shall deliver or
cause to be delivered to Developer or Developer' s agent a Title
Commitment (the "Title Commitment") for an ALTA 1992 Form B Owner' s
Title Insurance Policy issued by Chicago Title Insurance Company
(the "Title Company") in the minimum amount of insurance covering
title to the City Sites on or after the date herein, showing title
in the City of Elgin subject only to the following (collectively
the "Permitted Exceptions") : (a) the title exceptions specified on
Exhibit G, (b) title exceptions pertaining to liens or encumbrances
of a definite or ascertainable amount which may be removed by the
payment of money at the time of closing and which the City shall so
remove at that time, (c) acts of the Developer and all parties
through or for the Developer, (d) zoning laws, statutes and
ordinances, including, but not limited to matters relating to the
Tax Increment Act, the Elgin Central Area Tax Increment
Redevelopment Plan and Project and the Elgin Historic Preservation
Ordinance, (e) the terms of this Development Agreement, and
( E) other mattr.rs Ot tLtLe ovzr whL(.h Lh(. Tit L(. Cornparry is willing
(. AI)oCllnlcll is nnll Set lu IgNAI"CH ucal SCI Iins\rcn Ipmrary I nlcrncl I i lcs\l'omlcnt,I Fi\21 IAII P1,\Development A grccnlcnl-OcNeluper-v 14- lO
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l_r, i-nsure wi t.hou oper . The Ti t Ire Commi tmernt- :;P1al. _L
also contain the foLLow_i.r)g endorsements :
(a) Extended coverage
(b) Zoning Endorsement 3 . 0 ( for the Mixed Residential and
Commercial Development) ;
(c) A restrictions endorsement insuring that the proposed
Mixed Residential and Commercial Development will not violate or be
prevented by any restrictions of record.
At closing, the City shall also furnish to Developer an affidavit
of title in customary form covering the date of closing and showing
title in the City subject only to the permitted exceptions and such
other documents as are customary to complete the closing of this
transaction.
8 . Title Clearance. If the Title Commitment or plat of
survey discloses either unpermitted exceptions or survey matters
that render the title not in conformance with the provisions of
this Agreement (hereinafter referred to as "Survey Defects") the
City shall have thirty (30) days from the date of delivery thereof
to have the exceptions removed from the commitment or to correct
such Survey Defects or to have the title company commit to insure
against loss or damage that may be associated by such exceptions or
Survey Defects, and, in such event, the time of closing shall be
thirty (30) days after the deliver of the commitment or the time
expressly spec. L f i<,d in Section 5 hereof, wl1 i r:hev(�r is later. If
the C Lty La L Ls t.o !lave the except Lons removod Or (Torre cr. ally Survey
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Defects, or in the n 1 KPrnati_vn, K" obtain the commitment Ear title
insurance specified above as to such exceptions or survey defects
within the specified time, Developer may terminate this Agreement
or may elect, upon notice to the City within ten (10) days after
the expiration of the thirty ( 30) day period, to take title as it
then is . If Developer does not so elect, this Agreement shall be
deemed cancelled and null and void with no further liability of
either party hereunder.
9 . Prorations . General taxes shall be adjusted ratably as
of the time of closing. If the amount of current general taxes is
not then as ascertainable, the adjustment thereof shall be made on
the basis of the amount of the most recent ascertainable taxes .
The City shall pay the amount of any stamp tax imposed by state or
county law or local ordinance on the transfer of title, if any, and
furnish a completed real estate transfer declaration signed by the
City or the City' s agent in the form required pursuant to the Real
Estate Transfer Tax Act of the State of Illinois and shall furnish
any declaration signed by the City or the City' s agent or meet
other requirements as established by any county or local ordinance
with regard to a transfer or transaction tax.
10 . Redevelopment for Mixed Residential and Commercial
Project: Public Parking and Conveyance to City: Contingency for
Planned Development Approval .
A. Lt i s agreed and undorst o od th�aC the city Sites
shall be conveyed by the City to the Developer for the sole purpose
(A)u MWN WO.SOUi PU iscr\Lnc;iKdW ;.\NmlMmv WWI l ilcs\l'u ow H ;A A11 L2
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o f hr.vc l oiler rodk�vr: l ()p I riq t b ject Pr_(--)perty and cons f,ructing
thereon :
( i ) the mixed residential and commercial project (the "Mixed
Residential and Crimmercial Project") conceptually
described in the Developer' s proposal prepared by Legat
Architects entitled "Tower Square on the River" with last
revision date of May 19, 2004 (the "Developer' s
Conceptual Plans") , a copy of which is attached hereto as
Exhibit C, and in conformance with such Governmental
Authorizations as may hereafter be approved by the City
in its processing of the Developer ' s Development
Application (as hereafter defined) ; it being understood,
however, that the said Governmental Authorizations shall
be controlling;
(ii) one hundred sixteen (116) public parking spaces (the
"Public Parking Spaces") ; and
(iii) the Project Public Improvements (more particularly
described in Section 12A below) .
The Developer further covenants and agrees :
(A) To convey to the City fee simple title to the
Public Parking Spaces (either as a 3-dimensional
parcel, or as a condominium unit exempt from the
assessments of the condominium development) and the
other Project Public Irnprovoiiit�nts upon ( i) receipt
of hubli_c Improvement:, Price froill the City
'and ( i i ) t-ho co[T1p 1 k1l i ,�Il Ot ( lit, Project Public
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Cmpr , ✓(.marl sand icceptar)c iereof. by the City;
and
(B) To grant to the City such easements as may be
reasonably required to insure that the City and
members of the general public have, at all times,
access to the Public Parking Spaces .
The City shall be obligated to at all times maintain,
repair and replace the Public Parking Spaces at the
City' s sole cost and expense .
The terms and provisions of this Section 10A(ii) shall be
incorporated within an agreement to be negotiated and
agreed to by the City and the Developer during the
Feasibility Period, and failing to do so, either party
may terminate this Agreement .
B. Not later than 30 days following the expiration of the
Feasibility Period (unless this Agreement is sooner terminated) the
Developer shall file with the City an application (the "Development
Application") for the approval by the City of (i) planned
development zoning and (ii) such other variances, approvals and the
like (collectively the "Governmental Authorizations") as may be
required or otherwise sought so as to authorize and facilitate the
improvement of the Subject Property with the Mixed Residential and
Commercial Project ind the Public Parkinq The City agrees
to promptly, Ind without undue delay, -tdmLri i :;f. r,lt i veLy process, the
Deve toprnent ii-id Lo art iii good t,l ith and fair
CA1)oru Ile IIIS a td Set intµs\tJwl\I ocaI Set tullg.\fcrnporaIq lutcrncl I�ilcs\('oolenl II �\_'I I',\II I',,\ncvcloIntcnl \greenicni-I)evcloper-v 14- 14
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deal i.ng i_n connect i )rl w i_t,h t_h(, con side ratir-)n of same . ALL costs
and expenses relating to thr, Development Application shall be
the responsibility of and shall be paid for by the Developer .
The Development Application to be submitted by the Developer to
the City shall include all materials and documents customarily
required by the City for such development applications and
zoning petitions and shall also include architectural elevations
of the buildings to be constructed on the Subject Property
showing and describing the architectural styling and materials
of such buildings, the floor plans for each of the condominium
units, townhomes and commercial areas, a description of standard
finishes and amenities along with available upgrades for each of
the condominium units and townhomes, the anticipated sale price
list for the condominium units and townhomes, preliminary
engineering plans, landscape plans, lighting plans, estimated
development schedules for the project and such other and further
materials and documentation as may be reasonably required by the
City. This Agreement and all of the parties' obligations
hereunder are expressly subject to and contingent upon the City
Council of the City adopting an ordinance or ordinances which
provide for the approval of the Governmental Authorizations
which authorize the improvement of the Subject Property with the
Mixed Residential and Commercial Project and the Public Parking '
Spaces . In the event the C Lty Counc L L doo, tint in L is sole and
exclusive discrer- Lon adopt in or-(En,ince Or ordinrinc( s to provide
for su(.h (-,ovi,, r,nm(,nt.al AuthoL- i_z,lt i (�rns ,Iuthol- i : i_ng the Mixed
( AI)UCUIIICIIIs a td Set Iitlgs\I lwi\I ocnl Set IIIIlo\I'cnt port I� It I ctim I�ilcs\('unlcnt Il:i\_'1 I'A.II PS\I)cvcl(III ncnl AgiccntcIII-Ilevclopet-vl•4-
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i(Jeri ti_a L and rornm,, rl, i_ri L Pro j(:r:t and Public Par. k i my r,pa(,r,;
( rLlct1011 Corrlrrl(;nc:('rrl(--nl_ 1)r.adLine" ) , subject, however, to
reasonable extension by r_, r of Force Majeure (as hereafter
defined) . Developer shall be deemed to have commenced construction
of the Mixed Residential and Commercial Project on the Subject
Property upon the commencement of the demolition of the building on
the Private Development Site . The failure by the Developer to
commence construction on or before the Construction Commencement
Deadline shall be a default by the Developer under the Subordinated
Mortgage (unless the delay is by any wrongful act or omission on
the part of the City, or by reasons of Force Majeure) .
E. Upon Developer commencing construction of the Mixed
Residential and Commercial Project on Phase I of the Subject
Property, the Developer shall continue with the construction of the
Mixed Residential and Commercial Project for Phase I in as
expeditious a manner as is reasonably practicable . Upon (i)
substantial completion of Phase I (or at such earlier time as the
Developer may elect) and (ii) the Developer achieving 50% of pre-
sales of the intended condominium units within Phase II (or such
lesser percentage as Developer and its construction lender may find
acceptable in their sole discretion) , the Developer shall promptly
commence and thereafter diligently complete Phase II of the Mixed
Residential and Commercial Project, subject to the provisions of
Section lOF below.
F. The Developer sh,iil complete 11h,1se of the Mired
Res, Ldk-rnl=ial. (1nd C:omrrlerci,ll L't-ol pct on I_h(� Pr_opetty as set
forth can I:hk, 11h,isinkI f L,ln II- t-,Whod lior.(�tl> l:; 1-;xh i b i L D (with the
('.0 lucamcnls a uI Set ial;s\I her\I.0-1 Set Lin!s\I cm PtWMA lnlcmrt F ilcs\('mIcnl 11:5\21 A.II I',\I)cvL:k)i)new:\I;rcc mew-I lcccloper-ii w- 17
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f�r_o res c vr• (],I s Er)r the comp1.e on of_ 11 h�as(7, I and
Phase I on said Phrasirig Plan being hereinafter referred to as the
"Phase I Completion Date", and the "Phase II Completion Date",
respectively) ; provided, however, that each such Completion Date
shall be extended by one day for each day of which construction is
delayed or stopped due to accident, strikes, shortage of materials,
extreme weather, acts of God, undue delay by the City in issuing
any required permits for which application has been properly made
by the Developer, or other causes not within Developer' s reasonable
control (such occurrences being hereinafter referred to as "Force
Majeure") . In the event Developer requires any further extension
of any of the Completion Dates for the redevelopment of the Subject
Property other than by reason of Force Majeure, any such requests
shall be submitted to the City in writing specifying the reasons
for such an extension and the amount of additional time being
requested. Any agreement by the City to further extend the
Completion Date for the redevelopment of the Subject Property shall
be at the sole discretion of the City Council of the City.
G. The Mixed Residential and Commercial Project on the
Subject Property shall be deemed completed when the Developer:
(i) has completed its construction of all buildings and
site improvements for the Mixed Residential and
Commercial Project;
( ii) has made available for urchase a 1 L of the
res idontial units ( it be Lrng undeestood that certain
i ntOr i0t� bl.t L Ld-011ts w i r.11 h (1,Wh 01 sa i(I r0si(_J ential
'Al)ocumcnls aml ticilinl.0 kc[Tocal.\cllm"s\I empolan Inlcrncl l ilc,"Wonlcul W5\'I I A.II I's\l)cvclopmcnl 1hrccmcm-1)cvcloper-0d- 18
IkvosI I I Bloc
un i ts, A.;, by way of example on iy, carpeting,
cabin(-,ts and appliances , will not be completed
until the purchaser of each such unit makes
individual selections upon the sale of each of
same;
(iii) has made available for lease or purchase all of the
retail space within the Mixed Residential and
Commercial Project (it being understood that the
demising walls of same, and certain interior build-
outs within said retail space, will not be
completed until the tenant or the Purchaser of same
makes individual selections upon the sale or lease
of such space) ; and
(iv) has completed the construction of the Project
Public Improvements and the Private Parking Spaces
within the Mixed Residential and Commercial
Project .
The City shall not withhold a final occupancy permit for any
building within the Mixed Residential and Commercial Project that
otherwise complies with all City codes, ordinances and other
requirements of law as to such building.
11 . Declaration of Easements, Restrictions, Covenants and Bi-
laws . It is anticipated that, as part of the Development
Application, tho Dev< Loper shall submit Lo the City for its review
and �:Ippr.ov,iI (arid CO r- inCorpor,lt ion LiltO t io Governmental
UAI)ocun lei I's autI Rcllaits\Iltier\I'ocaI SoIIIIgs\I'cnywruy IIIIenlet Piles\('orolcaIII �\21 f VI I",\1)cvclulit tic nl Ag[ecmcal-I)c%cluper-vl-1- i �
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/\uth()ri_;.,at ions) , a pr )F)Os(�d Declarati_ori of Cor)domirni.um ( the
"Declaration") for a condominium association or for condominium
ownership, which Declaration shall, inter alia, provide for
easements, restrictions, covenants and by-laws for the Mixed
Residential and Commercial Project of the Subject Property. The
Developer agrees that it shall cause the Declaration to comply
with all applicable provisions of law including the Illinois
Condominium Property Act . The Developer shall record such
Declaration on or before the completion of the project,
simultaneously with the recording of a plat creating the
condominium units, and prior to the closing of the sale of any of
the residential or commercial units on the Subject Property. The
Declaration may be modified or amended by the Developer or
Developer' s successors in interest, but the Declaration shall
provide that as to amendments or revisions effecting the types of
buildings, building elevations, building design, building
materials, the number of residential units or the use of the
Subject Property, such amendments or revisions shall require the
prior approval of the City Council of the City of Elgin.
12 . Public Improvements Purchase Price : Cash Development
Assistance: Fee Waiver: Collateral to the City.
A. The City hereby agrees to purchase (i) the Public
Parking Spaces to be constructed by the Pevelope.r and ( ii) the
landscaping and other public. infrastructurV 1mprovements to be
constructed by thc_ Developer in the Ci.ty ' :; ri ( -oE-way or other
CA)ucu tell ls n Ill Set IiIIgs\IISCIA.uc;d Set lml;,\Yet IIpuruN InlCI[let VIICSV onurnIII i\21 I A.II I`�\I)cccluhincul Aglecn lei l-I)C%clolm.-v id- '�0
C ty-owned property ad r:r, Mixed Residential sand commercial
Development (collecti.v(, Ly th,. "Project Public. Improvements") for
$2, 600, 000 (hereinafter called the "Public Improvements Purchase
Price") .
B. In addition to the City conveying the City Sites to
the Developer without a monetary purchase price, as a development
incentive to the Developer, and in consideration of Developer
completing the redevelopment of the Subject Property with the Mixed
Residential and Commercial Project on or before the Completion Date
as set forth in this Agreement, the City agrees to provide to the
Developer financial assistance ("Cash Development Assistance") of
Six Million Three Hundred Thousand Dollars ($6, 300, 000) .
C. The $8, 900, 000 total of the Public Improvements
Purchase Price and the Cash Development Assistance (hereinafter
called the "Total City Funds") shall be payable by the City to the
Developer in installments as set forth in the Payment Schedule for
Total City Funds attached hereto as Exhibit E (the "Payment
Schedule") . Each disbursement of the Total City Funds by the City
to the Developer shall hereinafter be called a "Development
Disbursement" . No interest shall accrue on the Public Improvements
Purchase Price, the Cash Development Assistance, and / or the Total
City Funds .
D. As further development assistance to the Developer,
the CLty agt-ees to w.iive the payment of- ) LI irnp,lct [('C'S provided
for in 'Title t'/ oL the GlgLn NlunicipaL Codl� (wil.h stich waiver being
heCe, L11,Att(-r' cfILI.od the W.1LV('- r-") .
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14;IVUsl I l.doc
G. Th(: C),arl, i (. , Iandr,rsrind and arjree that the obligation
of the City to disbur:;r, thc, Total City Funds to the Developer as
set forth in this Section 12 is expressly contingent upon
Developer' s development; of (i) the Mixed Residential and Commercial
Project, and (ii) the Project Public Improvements on or adjacent
to the Subject Property as provided in this Agreement . In the
event the Developer (i) breaches its obligations hereunder and (ii)
fails to cure such breach within 30 days following written notice
thereof by the City to the Developer (or, if such cure is not
reasonably achievable with such 30-day period, then within such
longer period as might be reasonably be required to cure such
breach using diligence and good faith) then the City may suspend
any further disbursement of the Total City Funds pending the
enforcement by the City of its remedies as provided herein and in
the Subordinated Mortgage (as defined and described in Section 12I
below) . It is further expressly agreed and understood by the
parties hereto that the City' s sole and only monetary and/or
financial assistance or contribution for the Mixed Residential and
Commercial Project on the Subject Property shall be (i) the
conveyance of title of the City Sites to the Developer as provided
in this Agreement, (ii) the Total City Funds as described in this
Section 12, and (iii) the Fee Waiver, and that the City shall have
no other responsibility for any other costs or expenses relating to
the Mixed Residential and CorT1meCClai on the Subject
Property.
1.'. Th(, Loprnl2111. (n(.0 :01,11 1 be paid by
CA)ocu lei ls a III.Scllwl;s\I INC r\I Ise IIIm.\ICinlwraIN IIIIclIlet I ilcs\('onlruIII >\21 I'n.11 I",\I)cvcIolauciiI Agicci it:Ill-I ld-
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the C i_ ty to the Dc�v(, i Opr-, r i n thr, form of re i mbursc'ment;; to the
Developer for Redev(� lopment Project Costs (as hereinafter
defined) incurred by the Developer in connection with the
redevelopment of the Subject Property for the Mixed Residential
and Commercial Project . Redevelopment Project Costs shall be
defined as provided in 65 ILCS 5/1174 . 4-3 (q) , which are incurred
by Developer in connection with the redevelopment of the Subject
Property for the Mixed Residential and Commercial Project and
which are eligible under law for reimbursement from the City of
Elgin Central Area Tax Increment Financing Redevelopment Project
Area Special Tax Allocation Fund ( such costs as defined in 65
ILLS 5/11-74 . 4-3 (q) , which are incurred by Developer in
connection with the subject redevelopment of the Subject
Property for the Mixed Residential and Commercial Project and
which are eligible under law for reimbursement from the City of
Elgin Central Area Tax Increment Financing Redevelopment Project
Area Special Tax Allocation Fund are hereinafter referred to as
"Redevelopment Project Costs") . The parties stipulate and agree
that those categories of expenses anticipated to be incurred by
the Developer and listed on Exhibit I attached hereto shall (in
addition to any other costs which meet the statutory definition
of "Redevelopment Project Costs" ) be treated as eligible
Redevelopment Project Costs .
G . Ln the event ROdeveLopmcWnt_ Pru ject Costs incurred
by the Developer exceed $6, 300, 000 Lt L:i igreed and understood
that the City ' :; DevoLopmonf: nssi_:�sl �in�.r, to the Developer
CA)UcIII Ile III's l rl.selIIIIgs\l iscr\i ma .SCIIiIIgN\1'cnilmru� Inlrrlei I ilcs\('unlrnl Il i\?I I',1.11 1'%\I)cvciuhmrnl Agiccnicul-I)c%rluper-v i-1-
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sha L I_ none-the- I_es-s V)- I i_m i_t,r,(a to the tot a 1. irriounL of F), X00, 000
and in no event shall Lhe City pay or reimburse the Developer
any amount over the gash Development Assistance of $6, 300, 000
and the Public Improvements Purchase Price of $2 , 600 , 000 . 00;
H . Notwithstanding anything to the contrary in this
Agreement, as a condition of right to receive payment from the
City of the Cash Development Assistance, the Developer shall be
required to document to the City ' s reasonable satisfaction that
it has incurred (or will incur in the course of the completion
of the Mixed Residential and Commercial Project) Redevelopment
Project Costs in connection with the redevelopment of the
Subject Property for the Mixed Residential and Commercial
Project in an aggregate amount equal to or greater than the Cash
Development Assistance . Bids, proposals or contracts for work
or service that qualify as "Redevelopment Project Costs" and
which are (i) procured by the Developer in connection with
future work to be done in connection with the completion of the
Mixed Residential and Commercial Project and (ii) certified by the
Developer to the City as being true and correct, shall constitute
sufficient evidence of the existence of such Redevelopment Project
Costs absent proof of bad faith or fraud . To the extent that
the Redevelopment Project Costs documented by the Developer as
of the completion of the Mixed Residential and Commercial Project
are less thin the aggregate sum of $6, 300 , 000 (with the amount
by which such documented Redevelopment Costs fall short
of $6, 300, 000 ho L nq he re Lnaf re r I I ht, "t:(�dovalopment
CA)ocuIIIC1IIs aIId ScIIIIIg,]\I)SCI\IA caI SoIIIIgs\I'cny of:II 'III(CItICI film\ColI(cnIII i\21 I'A.II PS\I)cvcLipntrnl Agicctnew-I)—loper-vld- ?4
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P.rojecL Costs ShOrtf_rj I I " ) , I,hr,n the Cash D(-velopment Assistance
shall similarly bc, redur:r•d by an amount equa l_ to the
Redevelopment Project Costs Shortfall .
I . To secure the full performance by the Developer of
its obligations hereunder, the Developer shall execute and
deliver to the City at the Closing a mortgage against the
Subject Property which shall be ( i ) junior and subordinate to
the construction loan ( s ) procured by the Developer against the
Subject Property (or any portion thereof) and ( ii ) shall be
released (A) as condominium units are sold to third-party
purchasers and (B) upon substantial completion of the Mixed
Residential and Commercial Project . The said mortgage (the
"Subordinated Mortgage") shall be in the form set forth on
Exhibit F attached hereto .
13 . Redevelopment to Remain on Subject Property. The
Developer agrees that except as otherwise agreed to by the City the
Mixed Residential and Commercial Project on the Subject Property
shall be maintained and remain on the Subject Property for a period
of not less than twenty-five (25) years following the date of this
Agreement .
14 . Assessment of Subject Property. The City and the
Developer agree that the Mixed Residential and Commercial Project
of the Subject Property should be assessed for general real estate
taxes in the manner provided by I 1 1 i_nois C,<�mp i I cad StaLuLes as they
may be amended from t: ime to time . `['his prov i_s i_on shall not be
l':\I)uaunrnls nail Jcllinl;n\l krr\I.�ic;il.\rlUn�.\I'�mhurar\ Inlrrnrl l ilrs\l'��nlcul 11 �\'I I'�\.I I I'ti\I)rvclnpnicnl:\�;rrcnirnl-I)rvrl�q�rr-v l.l_ ���
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deemed to prF.,vent, t_h(, or its successors or permitted
assigns from app,�.al. i.ng or challenging assessments against the
Mixed Residential and r;ommercial Project on the Subject Property
which Developer or its successors or permitted assigns consider to
be contrary to law. The Developer agrees that, for a period of
twenty-five (25) years following the date of this 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. Seek to reduce the total equalized assessed
valuation of the Mixed Residential and Commercial Project on the
Subject Property below the total amount of Eleven Million Two
Hundred Thousand Dollars ($11, 200, 000) ; or
B. Request a full or partial exemption for general real
estate taxes for any portion of the redevelopment property; or
C. Request an assessment at a value not otherwise
permitted by law.
15 . Compliance with Laws . Notwithstanding any other
provisions of this Agreement it is expressly agreed and understood
by Developer and the City that in connection with the performance
of this Agreement and the redevelopment of the Subject Property
with the Mixed Residential and Commercial Project, including
without limitation, Developer' s construction of residential units
on the Subject Property, that Developer <'ornp l y with all
applic=able federal, state, city and of hor r(2(pli. rem(�rnts of law.
(•ADoCumcnls caul ScIIm.0lscr\Lucal Scumits\I cnywran Inlcrncl hicsWollICnl 11:5\21 I'A.II PS\I)cvclupmcul A{rrcnicnl-Ihvrluper-vl•{- 2 6
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Deve Loper sh,i I I i I :,O , I, i t.:; (expense sF. �:ur(-, a L L p�-r.rnits and
Licenses, pay all r:h<A rip �s and tees and give al 1_ notices necessary
and incident to the due and lawful prosecution of the work
necessary to provide for the redevelopment of the Subject Property
as described in this Agreement .
16 . Survival. All representations, warranties, indemnities
and covenants made by the parties under this Agreement, the terms
of this Agreement and the obligations of the parties under this
Agreement shall be deemed remade as of the closing and shall
survive the closing, and the remedies for breach thereof shall
survive the closing and shall not be merged into the closing
documents .
17 . Default. The City and Developer agree that, in the event
of a default by the other party, the other party shall, prior to
taking any such actions as may be available to it, provide written
notice to the defaulting party stating that they are giving the
defaulting party thirty (30) days within which to cure such
default . If the default shall not be cured within the thirty (30)
days period aforesaid, then the party giving such notice shall be
permitted to avail itself of remedies to which it may be entitled
under this Agreement . Notwithstanding the foregoing, if the nature
of the default is such that it cannot reasonably be completely
cured within thirty (30) days, then so long 3,s rhe party in default
commences such cure within said 30 days and diligently
pursues the c:ompLetion of suclh cl.ir<� in goc�.1 f:.Ii ( ti, then such the
('ADoCwucnh and.ticllin;,\l INCH maI tirlUnRs\frnipolan Inlrrnrl l 1csWonlrnl 11 i\'l I A.II I'�\I kvcluhmrul Agiccmcnl-I)cw1o1)er-v 1 l- ?'7
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party note in default_ :;hall not seek to enforce any r_em(--die against
said party i_n defau Lt- .
18 . Remedies . [ t either party fails or refuses to carry out
any of the material covenants or obligations hereunder, the other
party shall be entitled to pursue any and all available remedies as
specified herein or otherwise available at law, equity or
otherwise. Notwithstanding the foregoing or anything else to the
contrary in this Agreement, with the sole exception of an action to
recover the Total City Funds the City has agreed to pay pursuant to
the preceding Section 12 hereof, no action shall be commenced by
the Developer against the City for monetary damages . Venue for the
resolution of any disputes or the enforcement of any rights
pursuant to this Agreement shall be in the Circuit Court of Kane
County, Illinois .
19 . Time. Time is of the essence of this Agreement .
20 . Notices . All notices shall be required to be in writing
and shall be served on the parties at the addresses following their
signatures . The mailing of a notice by registered or certified
mail, return receipt requested, or personal delivery by courier
service shall be sufficient service .
21 . Interpretation. This Agreement shall be construed, and
the rights and obligations of the City and the Developer hereunder
shall be determined in accordance with the laws of the State of
Illinoiis without reference to its confli�-t of laws rl.jif�s .
CAI)ucu lei ls;Ind.ScIIiIIgs\( INC IIiIlgs\frulpuralry lulrrlet l iICS\0III lei II 1:.i\21 IA II 1'',\I)cvclu III Ile nl Avrecincnl-I k`rluprr-v l•{- ;)ti
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22 . Relationship of the Parties . Th i s Ag rr,c,rnc n t sha 1 L not: be
deemed or construed to an employment, joint venture,
partnership or other agency relationship between the parties
hereto.
23 . Failure to Enforce Provisions. The failure by a party to
enforce any provision of this Agreement against the other party
shall not be deemed a waiver of the right to do so thereafter.
24 . Amendments . This Agreement may be modified or amended
only in writing signed by both parties hereto, or their permitted
successors or assigns as the case may be .
25 . Entire Agreement. This Agreement contains the entire
agreement and understandings of the parties hereto with respect to
the subject matter as set forth herein, all prior agreements and
understandings having been merged herein and extinguished hereby.
26. Joint and Collective Work Product. This Agreement is and
shall be deemed and construed to be a joint and collective work
product of the City and the Developer, and, as such, this Agreement
shall not be construed against the other 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 and provisions contained herein.
27 . Assignment. This Agreement shall be binding on the
parties hereto and their respective succ,,-I-5ors and permitted
assigns . `Phis Agreement and the obL igat Lens hl,r.e Ln may not be
assigned wLthl�llt the express wt' Ltten conseril ol- h�lch of the parties
l',\I)ucumrnls anil.tirllm .\l iw[Tocal SCIIi„Rs\fr„ipurin lu1CHICI l Iles\(lmlr,U 11:5\21 I'A.II I'S\I)cvclul„nrnl:\I;rccnirn(-I)evcloper-v 1.1- 99
Itaius�I�.�lur `•
hereto, which r.or rn,iy h,_- w thheld at the sole discretion of
either of the part hc,reto .
28 . No Conflicting Interests . Developer hereby represents
and warrants that the Developer, nor any associated person or
organization, presently owns or has any beneficial interest in the
Subject Property being conveyed to Developer or entitled to receive
any income from the Subject Property. In compliance with 50 ILCS
105/3 . 1, Developer shall provide the City with a written statement
subscribed by an owner, authorized trustee, corporate official, or
managing agent, under oath, disclosing the identity of every person
having an interest, real or personal, in the development group and
every shareholder entitled to receive more than seven and one/half
(71,2%) percent of the total distributable income of any corporation
which will have an interest, real or personal, in such property
upon the acquisition of any interest by the Developer in the
Subject Property.
29 . Indemnification. To the fullest extent permitted by law,
Developer agrees to and shall indemnify, defend and hold harmless,
the City, its officials, officers, employees, attorneys, agents,
boards and commissions from and against any and all claims, suits,
judgments, costs, attorney' s fees, damages or other relief,
including but not limited to workmens' compensation claims, in any
way resulting from or arising out of or alleged to be resulting
from or arising' out of negligent act i.orls or Omi.s:_i ions of the
Deve leper in connect ion herewith, i.nl, Lv{d i n(7 no(j 1 i or omissions
C\Documcnls unil sclIings\IIscr\I.oc;II.lciIIngs\FelIlporalN Inlcmcl PilcsWolllcul I1 �\?I 1 \.II I',\Ih•vclupmcol AE,rccmcnl-Ihvcluper-vl•{- 30
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0 errrployees, ,ag( rnt:; Or silk)( c,riI-rectors o(_ l. Develop (�r �jr_i_s.-rig out
of the performance ot: this Agreement, or in any way resulting from
or arising out of or alleged to be resulting from or arising out of
any violation and/or breach of the terms or provisions of this
Agreement by the Developer, including any violation and/or breach
by employees, agents or subcontractors of the Developer. In the
event of any action against the City, its officials, officers,
employees, agents, attorneys, boards or commissions covered by the
foregoing duty to indemnify, defend and hold harmless such action
shall be defended by legal counsel of the City' s choosing. The
provisions of this Section shall survive any termination and/or
expiration of this Agreement .
30 . As Is : Covenant Not To Sue.
A. The City agrees and shall deliver to the Developer at
Closing possession of the City Sites including but not limited to
all improvements thereon and appurtenances thereto in the same
condition as it is at the date of this contract, ordinary wear and
tear excepted. The City at its cost shall prior to closing remove
from the City Sites hereof all debris .
B. The parties hereto further understand and agree that the
City shall have no responsibility for any response or corrective
actions or remediation of any environmental condition (as
hereinafter defined) at, on, under or about the City Sites and that
the Developer hereby waives and releases any claim for contribution
against, atd covenants not to srlo tl1i� �, i I.y, or The City' s
CA)ucunuIIIS and ticlUn!0 sci\1 ocaI Set Iin9s\rcmlwrary lulrrurl l ile"V ollICII III 5\2I I AJI PS\1)evchymcm Agieciiicnl-nr%ckq)cr-vI l- 3 1
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officials, o ( f� r agents, attorneys, personal
representatives, su :r,<>s;;r,is or_ assigns, whether asserted directly
or indirectly, or whether in the nature of an action for
contribution, third party proceeding or other action or proceeding
whatsoever, for all damages including, without limitation, punitive
damages, liabilities, costs, losses, diminutions in value, fines,
penalties, demands, claims, cost recovery actions, lawsuits,
administrative proceedings, orders, response action costs,
compliance cost, investigation expenses, consultants fees,
attorneys fees, paralegal fees and litigation expenses
(collectively "Claims") arising out of or in connection with any
Environmental Condition (as hereinafter defined) on the City Sites
or its migration to any other site or location or arising out of or
in connection with any Environmental Law (as hereinafter defined) .
C. The Developer hereby acknowledges and agrees that it is
purchasing the City Sites in their "as is" and "where is" condition
and that, as of the closing, the Developer will be purchasing the
City Sites with no direct recourse or direct rights of action
against the City or the City' s officials, officers, employees,
agents, attorneys, personal representatives, successors or assigns.
D. The Developer for itself and its successors, assigns and
grantees, hereby covenants and agrees that in consideration of this
contract, neither the Developer nor its successors or assigns shall
direcr .Iy or LndLrectly sue The City or Th(. Ci.t.y' s officials,
Of t iCOrS, ( IMp Loyees, Agents, attorneys, pc L:suri_l i. representatives,
SuCCOSSOCS oL, 1S.,-; qns for any claLrmi wLth I.O, or arising
CAI)oCIIIIIellIs and SelI1nQ's\I ISCr\I ocaI.SCIIIn Cs\fcniporaIN Inlcrncl I�ilcsk'onlcnl.Ilf>\_'I.FAJI I AgrccincW-I)cveloper-v ld- 32
liaiusl I I doc
out of ,any En v_i_ ronrn(.rjl.•, I r;r)nrai_ti_r)n (as herr. i_naft.er (A(:finr,rJ) or any
other condition of, or si.turat_ion existing with respect to the City
Sites or any Environmental Law (as hereinafter defined) . The
covenant and agreement of the Developer as set forth in the
preceding sentence shall hereinafter be called the "Covenant Not to
Sue" . The parties hereto understand and agree that The Developer' s
Covenant Not to Sue The City as stated herein does not apply to any
action taken by the Developer to enforce any contractual
obligations of the City as may be specifically set forth in this
contract and does not constitute an indemnity agreement between the
parties and that The City retains any liability it may have for
claims brought by third parties including but not limited to any
governmental agencies, provided, however, that the Developer agrees
not to assign any claims against The City or the City' s officials,
officers, employees, agents, attorneys, personal representatives,
successors and assigns to any third parties .
E. "Environmental Condition" shall mean any condition or
situations existing on, under, at or about the City Sites, the
groundwater, subsurface water, and/or the underground soil and
geologic conditions thereunder, as of the date of the execution of
this contract which (i) constitutes a violation of any State of
Illinois or federal environmental law, regulation or ordinance
and/or (ii) which does or might form the basis of any public or
private claim or cause of action for the c1e,inup or remedi3tion as
a result of the release, threatenod relc�,lsc, migration or the
existence of Illy � ont,unin�lnts, poilttl uil :,, pol- roloum ,ind petroleum
CA)ucumcnlsand Scllings\(1,cr\I ucal.soon.o\I C111 p(r;u) Inlrrnrl l 1cs\l oWvnl 11 iQI I A.11 I"s\1)cvclopinew Agreenteol-I)eNcluper-v ld- 3 3
MI/o.sl I I.luc
byproducts, crud(, o i l ()r .jny f r_,Ar.t ion thereof=, (,hemir<a l_s, w�.,stes or
substance (in(,ludiny, without, limi t--ation, regulated substances and
hazardous wastes and hazardous substances as such terms are
commonly used and understood within the framework of existing
federal and Illinois environmental laws and regulations) and/or
(iii) are a release or a threat of release of hazardous substances
or hazardous waste, and/or (iv) are described or included in any
report provided by the City to the Developer or in any report
generated by the Developer' s Environmental Investigations of the
City Sites .
F. "City Sites" shall mean the property described in this
contract, any and all improvements thereon, and the soils,
subsoils, geologic formations and groundwater on and under such
property.
G. "Environmental Law" shall mean any federal or state law,
statute, regulation, rule, order, decree, judgment or direction
concerning environmental protection or health and safety including,
without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, the Resource,
Conservation and Recovery Act, as amended, the Toxic Substances
Control Act, as amended, and the Illinois Environmental Protection
Act, as amended.
H. "The City" shall mean the party designated herein and
such party ' s heirs, personal represent,it r vos, sti(-(—essors, assigns
and grarntees, and it such party is an enr ity, then additionally
Su(' � Ic� -OL'S, ornployoos, igent.s, p,1C'1_n 'Cti, shareholders,
CAI)orumrnls and ticlluifs\User\I.ocal•SCIIIIIp\1 cnlpoml) In(cmcl I ilcs\('unlcnl.11'5\21'1 A.11 P1,\I)cvclupinew Al;rccnicul-I)c%cloper-v ld- 34
1Ialost I I doc
(I rectors, rn(,Mber_s .jnd/()r rn,an.a(j(:r-s .
I . The provisions oL this Paragraph 30 shall be deemed
remade as of the Closing and shall survive the Closing and shall
not be merged into th(, closing documents .
[signature page follows]
l'Al)ocumcnls and SOIings\I lsci\I ucal\c1Un:;s\I ollp lillN Inlcrncl Pilcs\('unlcul 11 �\11,1',\.II I'S\I)c)clulnnmil A);rccincnl-I)c%clol-- 14- 35
M1141,I I Floc
IN WITNESS WIII:Pll�,OI,', th(, r),arLi_es heretrj havf, enter:ed :into and
executed this Agreerrnr,nl, on thr-, date and year first written above.
CITY OF ELGIN, a municipal RSC-Elgin, LLC,
corporation an Illinois limited
liability company
By BY 6L,�ia Agle-
Mayor Richard S . Curto, its Manager
Attest :
-SV6�� ��
Cit y Clerk
City of Elgin RSC-Elgin, LLC
c/o City Manager c/o Richard S . Curto
77 West Wacker Drive, Suite 700
150 Dexter Court Chicago, Illinois 60601
Elgin, IL 60120-5555
With a Copy of Any Notice to: With a Copy of any Notice to :
William A. Cogley Peter C . Bazos, Esq.
Corporation Counsel Schnell, Bazos, Freeman, Kramer,
City of Elgin Schuster & Vanek
150 Dexter Court 1250 Larkin Avenue, Suite 100
Elgin, IL 60120-5555 Elgin, IL 60123
F:\Legal Dept\Agreement\Development AGR-RSC-Final.doc
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ISaiu,l I I doc
EXHIBIT A
LEGAL DESCRIPTION OF NBD SITE
C\I)ocu lei h aIitI Set m::.\I tscr\I.ocaI Scllins:N\frnipuriIN'ln lei Ilet I ilcs\('tmIcoI I F 5\21.1',x.II I S\I)cvclul) tell l nhrccmcnl-Delve oper-vl.l-
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EXHIBIT A-1
LEGAL DESCRIPTION OF OSCO SITE
(' )oolmrnl"nnd.SclliligsAIwl\I oral Srllings\l'rnipuraIN Inlrrnrl V ilesW ilenl 11:5\21 1'MI INA)rvcl)III ncnl Ap'levincII Ikorloper-al-1- 383
CHICAGO TITLE INSURANCE COMPANY
COMMITMENT FOR TITLE INSURANCE POOP ORI(MNA_
Recorder Not i;w��u;i�s1b12
SCHEDULE A (CONTLNTUED) For Reproductions
ORDER NO. : 1410 000451198 KA
FPARCEL AND REFERRED TO IN THIS COMMITMENT IS DESCRIBED AS FOLLOWS:
ONE:1, 2, 3, 4, 5 AND 6 AND PART OF LOT 10 OF B. W. RAYMOND' S SUBDIVISION O 1, 3, 4 AND 5 OF BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF
RIVrR; LOTS 1, 2 AND PART OF LOT 3 OF MCOSKER' S SUBDIVISION OF LOTS 7, 8, 9 ,
ND 10 1/2 OF B. W. RAYMOND' S SUBDIVISION OF LOT 1 IN BLOCK 21 OF THE CRIGINAL .a
'YING BETWEEN LOT 9,,,. AND FOX RIVER; ALSO
TOWN OF ELGIN, AND THAT PORTION OF LAND - "'w.. --
PART OF THE `>-aCATED ALLEY LYING ON BLOCK 21HOFLTHEO O
ORIGINAL TOWN OF ELGIN, ON THE
SUBDIVISION; ALSO PART OF
EAST SIDE OF FOX RIVER; ALL OF THE FORGOING BEING DESCRIBED AS A TRACT AS
FOLLOWS: BEGINNING AT A POINT IN THE SOUTHERLY LINE O�S THE DtjALONGRSAID2SOUTHERLY
LOT 2 It; BLOCK 21 AFORESAID, 95 FEET SOUTHWESTERLY,
LINE, FROM THE WESTERLY LINE EXTENDED OF LOT 4 OF B. W EXTENDED OF SAID LOT 4 A
. RAYMOND' S SUBDIVISION;
T:IENCE NORTHWESTERLY PARALLEL WITH SAID WESTERLY LINE
DISTANCE OF 42 FEET; THENCE NORTHWESTERLY STERLY LINE OF LOT
RLY TO A POINT ON THE WE
2 OF MCOSKER' S SUBDIVISION 105 FEET NORTHWESTERLY FROM THE SOUTHWESTERLY CORNER
THEREOF; THENCE NORTHWESTERLY ALONG THE WESTERLY LINE OF LOT 2 OF MCOSKER'S
SUBDIVISION TO THE NORTHWESTERLY CORNER THEREOF AND THE SOUTH LINE 0^ CHICAGO
STREET; THENCE EAST ALONG SAID WEOSTERLYELINE WESTERLY
OF GROVE AVENUE, THENCE SOUT
THE SOUTHEAST CORNER OF LOT 2 IN BLOCK 21 r?ORESAID; THENCE WESTERLY ALONG HENCEEE
SOUTHERLY LINE OF SID�LOE�YTOIN�ETOATHE POINT LINE
OFOBEGINI�INGDEINAVENUE;CITY OF
NORTHERLY ALONG SAID
ELGIN, KANE COUNTY, ILLINOIS .
PARCEL TWO:
LOT 11 AND THAT PART OF LOT 28 LYING EASTERLY OF THE EASTERLY LINE OF RIVERSIDE ALL
AVENUE AND THAT PART THE VACATED ALLEY LYING BETWEEN
BLOCKL021SOF1THEDORIGINAL
IN B. W. RAYMOND' S SUBDIVISION OF LOTS 1, 3 , iCANE COUNTY,
TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER, IN THE CITY OF ELGIN,
ILLINOIS.
PARCEL THREE:
THAT PART OF LOTS 12 AND 27 IN B. W. RAYMOND � SUBDIVISION OF LOTS 1, 3, 4 AND
OF FOX RI�TR, AND THE
IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE
VACATED ALLEY LYING BETWEEN SAID LOTS L2 AND 27, LYING BETWEEN THE WESTERLY LINE
OF SOUTH GROVE AVENUE, AND THE EASTERLY LINE OF RIVERSIDE AVENUE, IN THE CITY OF
ELGIN, KANE COUNTY, ILLINOIS .
PARCEL FOUR: E VACT-,TED 20 FOOT ALLEY AD�70INING
LOTS 13, 14, 15, 16, 23, 24 , 25 AND 26 AND TH
SAID LOTS IN B. W. RAYMOND' S SUBDIVISION OF LOTS 1, 3, 4 jD 5 IN BLOCK 21, OF
N THE EAST SIDE OF FOX RIVER, IN THE CITY OF ELGIN,
THE ORIGINAL TOWN OF ELGIN, O
KANE COUNTY, ILLINOIS .
PARCEL FIVE: ANY, FALLING WITHIN
LOTS 17, 18, 21 AND 22 (EXCEPT TF_AT PART OF SAID LOTS, I
RIVERS=DE AVENUE) OF B . W. RAYMOND' S SUBDIVISION OF LOTS 1, 3, 4 AND S IN BLOCK
21 OF THE ORIGINAL TOWN OF ELGIN,
SECTION 14E TOWNSHIP SIDE 401FN0 FOX THRIRANGENSTEASTPOF THE
r.
FRACTION OF SOUTHEAST 1/4 OF
ga N n t, o C , , EXHIBIT A
CHICAGO TITLE INSURANCE COMPANY
COMMITMENT FOR TITLE INSURANCE
SCHEDULE A. (CONTINUED)
ORDER NO. : 1410 000451198 KA
THIRD PRINCIPAL MERIDIAN; ALSO, ALL THAT PART OF AN ALLEY 20 FEET WIDE (NOW VACATED)
IN SAID SUBDIVISION, WHICH LIES BETWEEN SAID LOTS 21 AND 22, AND SAID LOTS 17 AND 18
AND SOUTH OF THE NORTH LINE OF SAID LOTS AND NORTH OF THE SOUTH LINE OF SAID LOTS
EXTENDED ACROSS SAID ALLEY, ALL IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS .
PARCEL SIX:
LOTS 19 AND .20 AND THE VACATED 20 FOOT ALLEY LYING BETWEEN SAID LOTS IN B. W.
RAYMOND' S SUBDIVISION OF LOTS 1, 3, 4 AND 5 IN BLOCK 21 OF THE ORIGINAL TOWN OF
ELGIN, ON THE EAST SIDE OF FOX RIVER, (EXCEPT THAT PART LYING WEST OF THE EASTERLY
LINE OF RIVERSIDE AVENUE AS ESTABLISHED BY PLAT RECORDED SEPTEMBER 22, 1885 IN BOOK
7, PAGE 13) , IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS .
EXHIBIT B
LEGAL DESCRIPTION OF PRIVATE DEVELOPMENT SITE
PARCEL ONE:
THAT PART OF LOTS "A", "B", "C", "D", "E" AND "F" LYING EASTERLY OF THE EASTERLY
LINE OF RIVERSIDE AVENUE IN HARVEY AND AMICK'S SUBDIVISION OF LOT 6 AND 7 IN
BLOCK 21 OF JAMES T. GIFFORD'S PLAT OF ELGIN, ACCORDING TO THE PLAT OF SAID
HARVEY AND AMICK'S SUBDIVISION RECORDED APRIL 17, 1866 IN BOOK 2 OF MAPS, PAGE
139 1/2, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS.
PARCEL TWO:
THAT PART OF THE NORTHERLY 22 FEET OF LOT 8 LYING EASTERLY OF THE EASTERLY LINE
OF RIVERSIDE AVENUE, IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, AS LAID OUT BY
JAMES T. GIFFORD, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS.
W:\WORK\33809\Development Agreement-Developer-v I4-Bazos.doc 37
EXHIBIT C
Developer' s Plans
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RSC & Associates
LEGATARCHITECTS
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may, �.�
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nrr..ncn -ae c,.r....i,..m�n�....,,..�.r.m.d�.�nn.M., �tak��:.'M':=k• 'Ii =�., \\f' �-�- ,�-1
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+. -r e�F, w - yl `Ff''-'�.,Y �r,.e. w� *vw..w•eMb uwr.,.. ..
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_Des-91 Pnnooles
PreseNe ataCl h,SlonCal blocks
-Ala nta n the m!egnty block faces
-kla nta n sm of n stork le of 2 5 slaty strvctures - -4YC,►-� _ _ �
--- -- •. -New br Id ng des,gn should comptment h stork character
�'-_�- -• - �.-•r•-.+ -Enmurage,defind,on of Streets by matching existing minimum setbacks -
+ -Enhance Ch—go Street and Highland Street as en!ry and retail conbI
Add pedestnan connecliens and enhancements at rrverf cnl
Enhance e.lsbng rear facades al rive Aronl
Requue quality facade d—g,on r,,a,s de of new nverhont constn,cllon
-Requv parking tol enhancemmv screen,bg
f �} Streel-lave!uses should concaal parking structures
C1A R• r,
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Downtown District Design Principles LEGATARCHITECTS
RSC&Associates
Elgin Redevelopment: Chicago/Grove Site May 20.2003
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Units
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Typical RE,,de4al RIEn \ ` Aenal RerspeCbve
LeN is 2 7
Design Proposal LEGATARCHITECTS
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Condo Aurn
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River Level Plan St,"(Lev.Plan
Design Proposal LEGATARCHITECTS
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R,,er/ront P—rnme
-
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Massing Analysis
Design Proposal LEGATARCHITECTS
Elgin Redevelopment: Chicago/Grove Site Rsc&AnUay12.2004
EXHIBIT D
PHASING PLAN
Phase I Bldg Location Parking
South 112 of 60 lofts Private 109 cars
total development
site 30 condo site and 25 public
part of Osco cars
site
3 duplex
units
93 Units 134 cars
Estimated Spring
Completion: 2007
Phase II Bldg Location Parking
North 1/2 of 33 lofts Balance of 158 cars
total Osco
site 54 condos site and all 91 public
of cars
14 NBD site .
townhouses
8, 000
retail
101 Units 249 cars
Estimated Spring
Completion: 2009
TOTAL 194 Units Private 383 cars
development
site, Osco
site, NBD
site.
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EXHIBIT E
PAYMENT SCHEDULE FOR TOTAL CITY FUNDS
Payment Payment Payment Payment Conditions (if
No. Date Amount any)
(provided
Payment
Conditions
are
satisfied)
1 When $1, 600, 000 At the Closing, and
Private conditional thereon
Development
Site is
acquired
(as part of
the closing
thereof)
2 April 1, $1, 000, 000 The building on the
2005 Private Development Site
shall have been
demolished
3 December 1000 of the All of the Residential
31, 2006 amount of tax Units built as part of
increment Phase I shall have been
generated from completed and ready for
the Subject sale to and occupancy by
Property and purchasers or tenants,
received by the subject only to the
City in2006 installation of interior
(subject to the finishings and optional
limitation in interior selections; and
Note 1 below) 25 public parking spaces
shall have been conveyed
to the City.
4 December 1000 of the The foundation for the
31, 2007 amount of tax first of the 3 buildings
increment to be erected as part of
generated from Phase II is in place
the Subject
Property and
received by the
City in
2007 (subject to
the limitation
in Note 1
below) _
5 December 100',, of the The <<�undations for all 3
31 , 2008 amount of tax of t-h(, buildings to be
increment is part c)E Phase
generated L rortr I C 1 r , iti p la r:e and 50'.;
the Subject c�t t hf, Ros id(�n t-. i-i t Un i t5
('\I 1u�wnrnls;ind.ticlUn�; \I l,�r\I ic;il tirll ul�s\I'rmhurnn Inlrrnrl l ilrs\l'unlrnl il!?\?I I:\.II I\\I l'Vl'It 1111 lil'lll;\I;fl'l'l lll'lll-I�C\'l•II11)tl'-V I (- (�-
It;lma I�slur
-- - r('(,r. i v(,d by thc, bu i Lt as part of Phase II
(: i I.y 'I n sha 11 have been completed
2000 (.subject to and ready for sale to and
I.h(- ] i-rnitation occupancy by purchasers
in Note 1 or tenants, subject only
below) to the installation of
interior finishings and
optional interior
selections; and 91 public
parking spaces shall have
been conveyed to the
City.
6 December 1000 of the 75% of the Residential
31, 2009 amount of tax Units built as part of
increment Phase II shall have been
generated from completed and ready for
the Subject sale to and occupancy by
Property and purchasers or tenants,
received by the subject only to the
City in installation of interior
2009 (subject to
the limitation finishings and optional
in Note 1 interior selections;
below)
7 December 1000 of the 100% of the Residential
31, 2010 amount of tax Units and 1000 of the
increment retail space built as
generated from part of Phase II shall
the Subject have been completed and
Property and ready for sale to and
received by the occupancy by purchasers
City in or tenants, subject only
2010 (subject to to the installation of
the limitation
in Note 1 interior finishings and
below) optional interior
selections; and 100% of
the public parking spaces
shall have been conveyed
to the City.
8 December 100° of the Substantial completion of
31, 2011 amount of tax Phase II
increment
generated from
the Subject
Property and
received by the
City in 2011
(subject to the
limitation in
- Note l below)
9 and December 31 100" of the :,u�f1 payrncnts to the
thereaft of amount of tax Dovo l rjpor- sha L L continue
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er yep r i n(:r(:rri nt- unl_ i_ 1_ the Deve Loper hras
fo L Lowin(j (y>ne r,i I.ed f rom re ivc,,d a total of
2011 the Subject $6, 1)00, 000 of Cash
Property and Development Assistance
received by the
City in such
calendar year
(subject to the
limitation in
Note 1 below)
NOTES
1 . It is acknowledged and agreed that the Total City Funds
to be provided and paid by the City to the Developer shall in no
event exceed the total amount of $8 , 900, 000 . 00 . Such
$8 , 900, 000 . 00 of Total City Funds is comprised of the
$2, 600, 000 . 00 Public Improvements Purchase Price and the
$6, 300, 000 . 00 Cash Development Assistance. It is acknowledged and
agreed that in the event and upon the total amount paid by the
City pursuant to the above installment payments reaches the total
amount of $8, 900, 000 . 00 then the amount of any remaining payment
installments listed in the above table shall be reduced and/or
eliminated such that the Total City Funds paid by the City to the
Developer does not exceed the total amount of $8, 900, 000 . 00 .
2 . The Developer and the City have reviewed the Developer' s
Project budget and believe that there are at least $6, 300, 000 of
costs therein which qualify as so-called "Redevelopment Project
Costs" within the meaning of 65 ILLS 5/11-74 . 4-3 (hereinafter
called "TIF-Eligible Costs") .
3 . Payment nos . 1 and 2, together, represent the payment of
the Public Improvements Purchase Price .
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EXHIBIT F
SUBORDINATED MORTGAGE FROM DEVELOPER TO CITY
(To be negotiated and agrr-,�-d to by the City and the Developer
during the Feasibility Period)
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1411[o"I I I Bloc
EXHIBIT G
PERMITTED EXCEPTIONS
1 . real estate taxes rn,.,t then due and payable, for the year
of closing and sub;<.quent years;
2 . Matters (other than liens or encumbrances of a definite
and ascertainable amount) that are ( i) reflected on the
title insurance commitment or Survey delivered to
Developer during the Feasibility Period and (ii) not
objected to in a written notice by Developer to the City
prior to the end of the Feasibility Period;
3 . The Governmental Authorizations;
4 . The Tax Increment Allocation Redevelopment Act, the
Elgin Central Area Tax Increment Financing Redevelopment
Plan and Project, ; and
5 . The terms and obligations of this Development Agreement .
6. As to the Private Development Site only, the Purchase
Money Mortgage .
7 . Such additional title exceptions as (i) are disclosed on
the Title Commitment or Survey and (ii) not objected to
be the Developer within 14 days following the date the
Developer receives the last of the Title Commitment and
Survey; provided, however, that (A) liens or
encumbrances of a definite and ascertainable amount and
(B) leases or other adverse possessory interests of
claims of ownership shall never become a "permitted
exception", notwithstanding the Developer ' s failure to
object to same.
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EXHIBIT H
PARKING LEASE
(To be negotiated ririd jgrer�. I to by the City and the Developer
during the Feasibil- ity Perio f)
('Al)ok•umcnl.e:wdScIIiul.\Itsrr\IucaIScIIiIIs\I'rny)olaI lnirr tic llilr.s\('unlrlI1.113\'1IAJ IP's\I)cvckq micnl.Agiccmcnl-I)r%rluper-NI.1- zj
EXHIBIT I
CATEGORIES OF PRE-APPROVED REDEVELOPMENT PROJECT COSTS
(To be negotiated sand agreed to by the City and the Developer
during the Feasibility Period)
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