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HomeMy WebLinkAbout06-289 Resolution No. 06-289 RESOLUTION AUTHORIZING EXECUTION OF A DEVELOPMENT AGREEMENT WITH WATER STREET PLACE L.L.C. FOR DEVELOPMENT OF THE FORMER LIBRARY PROPERTY AT 200 N. 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 Water Street Place L.L.C. for development of the former library property at 200 N. Grove Avenue, a copy of which is attached hereto and made a part hereof by reference. s/ Ed Schock Ed Schock, Mayor Presented: December 6, 2006 Adopted: December 6, 2006 Vote: Yeas: 4 Nays: 2 Attest: s/Dolonna Mecum Dolonna Mecum, City Clerk DEVELOPMENT AGREEMENT THIS AGREEMENT made and entered into this 6th day of December,2006,by and between the CITY OF ELGIN, an Illinois municipal corporation (hereinafter referred to as the "City") and Water Street Place, 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 property legally described in Exhibit A attached hereto (hereinafter referred to as the "Subject Property"); and WHEREAS,the Subject Property is 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 approximately 187,166 square feet of residential units currently designed to consist of 146 residential condominiums, 8 residential townhomes, approximately 18,400 square feet of retail space at the street level of the residential condominium building,and not less than 18,000 square feet of Approved Restaurant space(as hereafter defined)in not less than two (2)nor more than four(4) stand-alone buildings to be situated on outlots ("Outlots")created by the Developer along the west edge of the Subject Property, 237 structured residential private parking spaces and approximately 162 public parking spaces(with 90 of same to be structured above-grade within the tower building that also houses the residential condominium units(the"Tower")and 72 to be on the surface of the site), (such redevelopment of the Subject Property is hereinafter referred to as the "Mixed Use Residential and Commercial Development") all 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 limited development assistance from the City; and WHEREAS, in order to provide for the proposed redevelopment of the 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 Subject Property in accordance with the terms and conditions provided herein. - 2 - 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. 2. Feasibility. (a) Developer shall have up to one hundred twenty(120) days after the execution and delivery to the Developer of a fully executed counterpart of this Agreement(the date of such delivery being hereinafter called the"Acceptance Date"and such 120-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 thirty(30)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 Subject Property including,without limitation, any and all topographic studies, engineering studies, geological studies, environmental assessments,soil or other test results,and the City's existing plat of survey and title insurance policy. 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 terminate this Agreement. If the City is so notified in writing by Developer prior to the expiration of such one hundred twenty(120) day - 3 - Feasibility Period,then this Agreement shall be cancelled and null and void with no further liability 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, excluding, 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 one hundred twenty (120) day Feasibility Period electing to terminate this Agreement, or in the event Developer provides the City written notice within such one hundred twenty (120) 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(a)shall be deemed waived by all parties hereto,and this Agreement shall be in full force and effect. (b) During such one hundred twenty(120)day Feasibility Period Developer shall provide to the City further documentation which shall demonstrate and validate to the City's reasonable satisfaction the Developer's projected sales prices, lease rates and absorption schedule for the residential and retail / restaurant components of the proposed Mixed Use Residential and Commercial Development on the Subject Project as set forth in Exhibit B attached hereto such that the City can independently determine that it is likely to receive the estimated tax increment revenue and sales tax for the proposed Mixed Use Residential and Commercial Development on the Subject Property. Such estimated tax increment revenue and sales tax expected to be received by the City for the proposed Mixed Use Residential and Commercial Development of the Subject Property for the - 4 - time period ending in 2026 to be validated are as set forth in the Water Street Place Real Estate Tax Revenue Schedule dated September 20,2006,attached hereto and made a part hereof as Exhibit B-1. The further documentation to be provided by the Developer to the City shall consist of a market study from a reputable independent sales and marketing firm, appraisal firm or real estate development consulting firm which shall analyze, among other matters, the projected sales prices (assuming an annual price increase of not more than 3.5%),upgrade targets, lease rates and a sales absorption schedule for the proposed Mixed Use Residential and Commercial Development of the Subject Property. Such market study shall include a comparable sales and leasing analysis as part of the sales and lease pricing analysis and shall include an analysis of comparable developments in the area as part of the absorption schedule analysis. In the event the Developer fails to provide the City with such documentation during such one hundred twenty(120)day Feasibility Period,then the City may, by written notice to the Developer within ten (10) days following such one hundred twenty (120) day Feasibility Period, elect to terminate this Agreement. In the event the Developer does provide such documentation to the City within such one hundred twenty(120)day Feasibility Period, and such documentation does not demonstrate and validate to the City's reasonable satisfaction the Developer's projected sales prices, lease rates and absorption schedule for the proposed Mixed Use Residential and Commercial Development on the Subject Property as set forth in Exhibit B attached hereto such that the City can independently determine that it is likely to receive the estimated tax increment revenue and sales tax for the proposed Mixed Use Residential and Commercial Development on the Subject Property as set forth in Exhibit B-1 attached hereto, the City may,by written notice to the Developer within forty-five (45) days of the City's receipt of such documentation from the Developer, elect to terminate this Agreement. If the Developer is so notified in writing by the City prior to the expiration of such forty-five (45) days time period after the City - 5 - receives such documentation from the Developer,then this Agreement shall be canceled and null and void with no further liability of either party hereunder. In the absence of written notice from the City to the Developer prior to the expiration of such forty-five(45) day time period electing to terminate this Agreement,or in the event the City provides the Developer written notice within such forty-five (45) day time period that the City is waiving its rights to cancel this Agreement pursuant to the provisions of this section,the City's right to cancel this agreement pursuant to the provisions of this section 2(b) shall be deemed waived, and this Agreement shall remain in full force and effect. 3. Conveyance of Subject Property to Developer. (a) In the event the Developer does not cancel this Agreement during the Feasibility Period referred to in the preceding section 2(a)hereof,or in the event the Developer notifies the City in writing that it is waiving its rights to cancel this Agreement during the Feasibility Period referred to in the preceding section 2a hereof, or in the event the City does not cancel this Agreement pursuant to section 2(b) hereof, or in the event the City notifies the Developer in writing that it is waiving its right to cancel this Agreement as provided in the preceding Section 2(b)hereof,the City shall thereafter convey to the Developer good and merchantable fee simple title to the Subject Property by recordable special warranty deed,subject only to the title exceptions set forth on Exhibit C attached hereto and those exceptions allowed under Section 7 below.The said conveyance of the Subject Property shall be subject to and conditioned upon the provisions and conditions contained in Section 5 below. (b) The purchase price to be paid by the Developer to the City for the Subject Property shall be zero dollars ($0.0), it being agreed and understood that the City is conveying the Subject Property to the Developer without a monetary purchase price as a development incentive to the - 6 - Developer as partial consideration for Developer's redevelopment of the Subject Property with the Mixed Use Residential and Commercial Development as provided for in this Agreement. (c) As a further measure to provide for Developer's performance of its obligations under this Agreement including the completion of the redevelopment of the Subject Property with the Mixed Use Residential and Commercial Development the Developer and the City shall enter into a Subordinated Option Agreement whereby the City shall have the option (under the terms and conditions therein provided) to reacquire the Subject Property in the event the Developer fails to perform its obligations to redevelop the Subject Property pursuant to this Agreement. (d) As a further measure to provide for Developer's performance of its obligations under this Agreement including the completion of the redevelopment of the Subject Property with the Mixed Use Residential and Commercial Development the Developer shall include a provision in all sales contracts for condominium units on the Subject Property a provision in a form acceptable to the City's corporation counsel and Developer whereby such contract maybe collaterally assigned by the Developer to its lenders and to the City. Developer and the City shall also simultaneously with the Closing enter into an agreement in a form acceptable to the City's corporation counsel and Developer whereby Developer's performance of the obligations in this Agreement shall be secured by the collateral assignment of such condominium sales contracts to the City. (e) As a further measure to provide for Developer's performance of its obligations under this Agreement including the completion of the redevelopment of the Subject Property with the Mixed Use Residential and Commercial Development the Developer and the City shall also simultaneously with the Closing enter into an agreement in a form acceptable to the City's corporation counsel and whereby Developer's performance of the obligations of this Agreement shall be secured by a collateral assignment from the Developer to the City of the plans and specifications - 7 - for the redevelopment of the Mixed Use Residential and Commercial Development on the Subject Property. 4. Survey. The Developer has previously procured, at its expense, a plat of survey for the Subject Property dated December 27,2005 prepared by Bollinger,Lach&Associates,Ltd. (the "2005 Survey"). Not later than 60 days following the Acceptance Date,the City,at its expense,shall cause the 2005 Survey to be updated and 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(b) and (c), 9, 12 and 13) in Table A thereof with accuracy standards appropriate to suburban settings and for Developer's intended use of the real estate (the "ALTA Survey"). The ALTA Survey shall also include a certification by the surveyor as to the square footage of the Subject Property(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: Closing Contingency. (a) 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),but not prior to(i)the satisfaction of the closing conditions contained in Section 5(b)below or(ii) without Developer's written consent,the end of the Feasibility Period set forth in Section 2(a) above, or (iii) without the City's written consent, the Developer having provided the City the documentation required in Section 2(b)hereof and the expiration of the forty-five(45) day time period after the Developer having provided the City such documentation. At the Closing the City shall convey the Subject Property to the Developer in the condition required herein. Unless - 8 - 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(b)below, have been fulfilled or otherwise waived. (b) 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 which may,at the election of the party(i)otherwise aggrieved by the non-fulfillment of same and(ii)not at fault for such non-fulfillment,be waived in writing: (i) The other party shall not 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) All Governmental Authorizations, in form and substance mutually acceptable to the City and the Developer, shall have been granted. (iv) The Developer shall have procured construction financing in a form acceptable to the City's corporation counsel which coupled with equity funding of the Developer the existence of which shall be demonstrated to the City's reasonable satisfaction results in there being sufficient funds available to the Developer to complete the Mixed Use Residential and Commercial Development on the Subject Property. Such construction loan financing maybe composed of only or more senior mortgages and junior mortgages/mezzanine loans in addition to Developer equity. Developer shall not be required to close on any of such construction loan financing commitments until the financing therein committed is needed by the Developer so long as such commitments will remain unconditionally available to Developer free of any other conditions precedent to the closing on such loans. (v) The Developer shall have entered into a guaranteed maximum price contract with Ryan Companies US, Inc. in a form acceptable to the City's corporation counsel which such contract providing for the completion of the Mixed Use Residential and Commercial Development on the Subject Property for a specified guaranteed maximum price. For the purpose of this section, completion of the restaurant portion of the property on the Outlots shall mean having completed the rough site improvements(i.e.having rough graded such lots and having stubbing utilities to such lots)for not less than two(2)nor more than four(4)Outlots. Such guaranteed maximum price contract shall include a collateral assignment provision in a form acceptable to the City's corporation counsel whereby the guaranteed maximum price contract shall be collaterally assignable to the City as collateral security for the prompt performance by - 9 - Developer of all its obligations under this development agreement. (vi) The Developer shall have achieved pre-sales of the condominium units in,the Mixed Use Residential and Commercial Development on the Subject Property as its construction lender's may require in order to close on the construction loans simultaneously with the Closing hereunder free of any requirements for further sales as a condition of funding. (vii) The Developer and the City shall have agreed to the form and terms of the condominium declaration or declarations referred to in Section 11 hereof. (viii) The Developer and the City shall have agreed to the form and terms of the Easement and Operating Agreement relating to the Public Parking Spaces referred to in Section 10(a)(iii)(2)hereof. (ix) The Developer and the City shall have agreed on the form and terms of the Subordinated Option Agreement referred to Section 3(c)hereof and the parties shall enter into such Subordinated Option Agreement concurrently with the Closing. (x) The Developer and the City shall have agreed on the form and terms of a collateral assignment provision in the sales contract for condominium units on the Subject Property and the collateral assignment document relating to such sales contracts referred to in Section 3(d) hereof in a form acceptable to the City's corporation counsel and the Developer and the parties shall enter into such collateral assignment concurrently with the Closing. (xi) The Developer and the City shall have agreed on the form and terms of the collateral assignment from the Developer to the City of the plans and specifications for the redevelopment of the Mixed Use Residential and Commercial Development on the Subject Property referred to in Section 3(e) hereof in a form acceptable to the City's corporation counsel and the Developer and the parties shall enter into such collateral assignment concurrently with the Closing. (xii) The Developer and the City shall have agreed on the nature and terms of the Restricted Account for the deposit of the Total City Funds referred to in Section 12(j)hereof. (xiii) The Developer and the City shall have agreed on approved final engineering plans and a final plat of subdivision for the Mixed Use Residential and Commercial Development on the Subject Property with such final plat of subdivision being in substantial conformance to the preliminary plat for Water Street Place prepared by Bollinger,Lach&Associates, Inc. dated last revised August 31, 2006 (the "Preliminary Plat of Subdivision"). Unless otherwise directed by the City Council in the Governmental Authorizations, such final plat of subdivision shall provide for an area to be dedicated to the City without - 10 - cost of approximately 2.18 acres including Water Street and the perimeter areas on the east,north and west portions of the Subject Property. Such final plat of subdivision shall be recorded simultaneously with the Closing. In the event any of the foregoing Closing Conditions cannot be resolved or agreed to within one hundred eighty(180)days after the expiration of the Feasibility Period referred to in Section 2 hereof, or within one hundred eighty (180) days after the Developer notifies the City in writing that it is waiving its rights to cancel this Agreement during the Feasibility Period referred to in Section 2 hereof, either party, may, by written notice to the other party elect to terminate this Agreement and in such event, this Agreement shall be deemed canceled and null and void with no further liability of either party hereunder. In the absence of such a written notice prior to the Closing this Agreement shall be deemed to continue to be in full force and effect. 6. No Brokers or Agents Involved in this Transaction. The City and Developer each warrants to the other that it has dealt with no brokers or agents in connection with this transaction. Each party agrees to indemnify, hold harmless and defend the other party from any loss, 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 thirty(30) 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 Subject Property 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 B, (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 - 11 - (f) other matters of title over which the Title Company is willing to insure without cost to Developer. The Title Commitment (or the owner's title insurance policy to be issued to the Developer) shall also contain the following endorsements: (a) Extended coverage (b) Zoning Endorsement 3.0 (for the Mixed Use Residential and Commercial Development); (c) A restrictions endorsement insuring that the proposed Mixed Use 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 ALTA 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 specified in Section 5 hereof, whichever is later. If the City fails to have the exceptions removed or correct any Survey Defects,or in the alternative,to obtain the commitment for 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 - 12 - 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 real estate taxes, if any, 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 Use Residential and Commercial Project: Public Parking and Conveyance to City: Contingency for Planned Development Approval. (a) It is agreed and understood that the Subject Property shall be conveyed by the City to the Developer for the sole purpose of Developer redeveloping the Subject Property and constructing thereon the Mixed Use Residential and Commercial Development which shall consist of the development conceptually described in the Developer's proposal prepared by Legat Architects entitled"Water Street Place"dated March 30, 2006, with last revision date of July 31, 2006, (the "Developer's Conceptual Plans"), a copy of which is attached hereto as Exhibit D, in conformance with the Water Street Place calculations sheet dated August 28,2006,attached hereto as Exhibit D-1, 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. The development also includes two hundred thirty-seven(237)private (the "Private Parking Spaces"), - 13 - one hundred sixty-two(162)public parking spaces(the"Public Parking Spaces"),the Project Public Improvements (more particularly described in Section 12(a) below) and the development of restaurants on the Outlots (more particularly described in Section 10(h) below). It is agreed and understood that the number of residential units, in-line retail square footage and / or private structured parking spaces in the Mixed Use Residential and Commercial Development may be slightly adjusted downward at the time of the preparation of final building plans if necessitated by engineering or design problems or in order to comply with applicable code requirements. The Developer further covenants and agrees: (i) To(1)dedicate and convey to the City the 72 Public Parking Spaces that are situated on the public street to be known as Water Street Place and to be constructed through the Mixed Use Residential and Commercial Development as part of the acceptance of such public street by the City, (2) convey to the City(either as a 3-dimensional parcel, or as a condominium unit exempt from the assessments of the condominium development)the 90 structured above-grade Public Parking Spaces,and(3)dedicate and convey to the City the other Project Public Improvements upon the completion of the Project Public Improvements and acceptance thereof by the City; (ii) 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; and (iii) To grant to the City such utility easements as may be required for public utilities over the Subject Property as part of the redevelopment of the Subject Property. - 14 - The City shall be obligated to at all times maintain, repair and replace the Public Improvements,including,without limitation,the Public Parking Spaces at the City's sole cost and expense. The location of the 90 structured above-grade Public Parking Spaces located in the above grade structure referred to in Section 10(a)(ii)hereof shall be identified in the Declaration of Condominium and Condominium Plat which shall be a part thereof referred to in Section 11 hereof. The other terms and provisions regarding the 90 structured above-grade Public Parking Spaces located in the above-grade structure referred to in Section 10(a)ii hereof shall be incorporated into an easement and operating agreement to be negotiated and agreed to by the City and the Developer prior to the Closing and in a form acceptable to the City's corporation counsel. In the event the parties are unable to agree on the terms and form of such an agreement either party may terminate this Agreement prior to the Closing. Such easement and operating agreement shall be recorded simultaneously with the Declaration of Condominium referred to in Section 11 hereof on or before the completion of the Project, simultaneous 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 provisions of this Section shall survive the Closing. The 90 structured above-grade Public Parking Spaces shall be conveyed by the Developer to the City within thirty(30)days of the Developer's completion of such 90 structured above-grade Public Parking Spaces as evidenced by a certificate of occupancy therefor issued by the City. Such conveyance shall be by recordable warranty deed conveying good and marketable title to such 90 structured above-grade Public - 15 - Parking Spaces subject only to: general real estate taxes due and payable after the date of the conveyance;the easement and operating agreement referred to in Section 10(a)(ii)hereof; and the terms of this Development Agreement . (b) Not later than 30 days following the Acceptance Date hereof(unless this Agreement is sooner terminated), or at such earlier time as the Developer may elect, 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 Use Residential and Commercial Development. The City agrees to promptly, and without undue delay, administratively process, the Development Application,to promptly schedule all public hearings and necessary considerations by the corporate authority, and to act in utmost good faith and fair dealing in connection with the consideration of same. All costs and expenses relating to the preparation of the 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 - 16 - 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 Use Residential and Commercial Development. In the event the City Council does not, in its sole and exclusive discretion, adopt an ordinance or ordinances to provide for such Governmental Authorizations authorizing the Mixed Use Residential and Commercial Development on the Subject Property on or before one hundred eighty(180)days after the entry into this Agreement, then either party shall have the right, by written notice to the other, to terminate this Agreement whereupon this Agreement shall be cancelled and null and void with no further liability of either party hereunder. The Developer may also terminate this Agreement at any time prior to the approval of the Governmental Authorizations. (c) In the event of any conflict between the terms and provisions of the plans attached hereto as Exhibit D and D-1 and the terms and provisions of the Governmental Authorizations,the terms and provisions of the Governmental Authorizations shall control. The redevelopment of the Subject Property shall conform in all respects with the Governmental Authorizations and as directed by the City to the extent necessary to comply with ordinances,building codes or other requirements of law. Developer shall also cause all work performed in connection with the redevelopment of the Subject Property to be performed in a workmanlike manner. Except as otherwise specifically provided in this Agreement, all costs and expenses relating to the redevelopment of the Subject Property including without limitation, the construction of the Mixed Use Residential and Commercial Development on the Subject Property,shall be the responsibility of and shall be paid for by the Developer. - 17 - (d) Developer shall commence construction of the Mixed Use Residential and Commercial Development on the Subject Property within one hundred eighty(180)days following the Closing and conveyance of the Subject Property to the Developer (such date as of which construction must be commenced being hereinafter called the "Construction Commencement Deadline"), subject, however, to reasonable extension by reason of Force Majeure (as hereafter defined). Developer shall be deemed to have commenced construction of the Mixed Use Residential and Commercial Development on the Subject Property upon the commencement of the construction of the foundation of the Mixed Use Residential and Commercial Building(the Tower)on the Subject Property. 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 Option(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 Use Residential and Commercial Development on the Subject Property, the Developer shall continue to complete the construction of the Mixed Use Residential and Commercial Development in as expeditious a manner as is reasonably practicable but no later than twenty-eight(28)months after the commencement of construction ("Completion Date"). Developer shall complete the Mixed Use Residential and Commercial Development of the Subject Property in conformance with the Developer's Conceptual Plans, in conformance with the Water Street Place calculations identified in Exhibit D-1 and in conformance with the Governmental Authorizations, including, but not limited to, the planned development ordinance(s)for the Subject Property as may be hereinafter approved by the City.In the event of any conflict between the Developer's Conceptual Plans,Exhibit D-1 and the Governmental Authorizations, the Governmental Authorizations shall be controlling. - 18 - (f) The required Completion Date of the Mixed Use Residential and Commercial Development 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,war,terrorism or undue delay by the City in issuing any required permits for which application has been properly made by the Developer, (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 Use Residential and Commercial Development on the Subject Property shall be deemed completed when the Developer: (i) has completed its construction of(1) the entire exterior structure of the 16- story residential/retail building(the"Tower")and(2)the site improvements for the Mixed Use Residential and Commercial Development,including,but not limited to, all public improvements (provided that if any such site improvements are not able to be completed due to seasonal conditions,this condition shall nevertheless be deemed to have been fulfilled so long as the Developer demonstrates to the City's reasonable satisfaction that the work will be done as soon as weather permits and that funds are available to pay for same); (ii) has substantially completed all of the residential units (including both the condominium units in the Tower and the 8 townhome units) and made - 19 - available for purchase all of the residential units (it being understood that certain interior build-outs within each of said residential units, such as, by way of example only, carpeting, cabinets 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(A)obtained an occupancy permit for at least twenty five percent (25%) of the residential units in the Tower, (B) has made available for purchase all of the residential units in the Tower(it being understood that certain interior build-outs within each of said residential units, such as, by way of example only, carpeting, cabinets and appliances.will not be completed until the purchaser of each such unit makes individual selections upon the sale of each of same; (B) has completed all common elements of Tower to the point that an occupancy permit for any other residential Unit within the Tower could be obtained simply by completing the interior build-outs within such units(i.e.,carpeting,cabinets and appliances), and (C) has completed construction of and obtained occupancy permits for both the private portion of the Parking Garage and the public portion of the Parking Garage in the Tower; (iv) has made available for lease or purchase(A)all of the retail space within the Tower (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 (B) not less than two (2) nor more than four (4) Outlots to accommodate not less than two (2)nor more than four(4)stand- - 20 - alone restaurants on the Outlots along the westerly portion of the Subject Property located westerly of the public street to be known as Water Street. Section 10(h)below contains further provisions as to the approval process for the establishment of restaurants and the City's development assistance in connection therewith; and (v) has completed the construction of the Project Public Improvements and has dedicated and conveyed same to the City. (h) The parties intend that, as part of the Mixed Use Residential and Commercial Development there shall be established on the Outlots not less than two(2),nor more than four(4), stand-alone restaurants approved by the City Council containing not less than 18,000 aggregate square feet (the "Minimum Restaurant Square Footage"). For the purposes of clarification, the "Outlots"are defined and identified as Lots 2, 3,4 and 5 in the Preliminary Plat of Subdivision. For the purposes of this section in determining the Minimum Restaurant Square Footage,square footage of restaurants shall be defined to mean the sum of the gross horizontal areas within the enclosed buildings measured in accordance with Building Owners and Managers Association ("BOMA") standards,including dining/bar/preparation/lobbies/common areas/washrooms,but excluding basement areas, attic areas, elevators or other penetration space. It is further agreed as follows: 1. The development and use of such Outlots shall be limited only to restaurants that are either (A) listed in Exhibit E attached hereto ("Approved Restaurants") or(B) of a type and caliber similar to any of the Approved Restaurants and approved by the City Council in its sole reasonable discretion (with any such restaurant that falls within this clause(B)being hereinafter called"Discretionary Restaurants"). Both Approved - 21 - Restaurants and Discretionary Restaurants shall also require Restaurant Site Plan Approval as set forth in section 10 (h)(2)below. 2. Both Approved Restaurants and Discretionary Restaurants shall require site plan approval("Site Plan Approval")by the City Council. To obtain Site Plan Approval, the proposed Developer shall submit to the City Manager an application (a "Restaurant Application") that includes all materials and documents customarily required for development applications and zoning petitions seeking site plan approval (the best example of which are petitions filed purely to obtain approval under the City's ARC-Arterial Road Corridor District) , including plans and information concerning (i) site plans, (ii) building elevations (architecture) and building orientation,(iii)building materials,(iv)exterior lighting/photometrics,(v)signage, and(vi)landscaping plans. It is hereby agreed that no traffic studies or fiscal impact studies shall be required to be submitted. Without limiting the foregoing, Site Plan Approval shall require the adoption by the City Council of an ordinance or resolution providing for same,which adoption,with respect to either an Approved Restaurant or a Discretionary Restaurant, the City agrees not to unreasonably withhold, condition or delay. 3. As to any Discretionary Restaurant,the establishment of same shall also require,in addition to Site Plan Approval,the approval("Discretionary Restaurant Approval") by the City Council of the nature and quality of the proposed Discretionary Restaurant. To obtain such Discretionary Restaurant Approval, the proposed Developer shall submit to the City Manager a Restaurant Application that,in addition to the information required in subsection 10(h)2 above, also includes the following - 22 - information: a description of the proposed restaurant,a description of the finishes in the interior of the restaurant, a description of the menus, a graphic of the proposed interior build out, proposed hours of operation, history of the intended restaurant operator,estimated development schedule for the restaurant,representative photos of the restaurant at any other existing locations and such other and further materials and documentations as may be reasonably required by the City. The proposed developer may also seek Site Plan Approval along with Discretionary Restaurant Approval or, alternatively,wait until Discretionary Restaurant Approval is obtained before seeking Site Plan Approval. Without limiting the foregoing, Discretionary Restaurant Approval shall require the adoption by the City Council of an ordinance or resolution providing for same, which adoption the City agrees not to unreasonably withhold, condition or delay. Further, the City acknowledges the likelihood that proposed Discretionary Restaurants may be so-called new/start-up restaurants. 4. In addition to the other restrictions and procedures regarding the approval of a proposed restaurant on the Outlots,Developer agrees not to include in any Restaurant Application a proposed restaurant consisting of a fast food restaurant, meaning a restaurant that sells its food primarily in disposable containers,including,by way of example,but not limited to,McDonald's,Burger King,Wendy's,White Castle,Taco Bell, Subway, Kentucky Fried Chicken, Pizza Hut, A&W and Long John Silvers. 5. The City agrees to promptly, and without undue delay, administratively process a Restaurant Application seeking Site Plan Approval or Discretionary Restaurant Approval such that the City Council shall vote upon the ordinance and/or resolution requested in such Restaurant Application within 45 days following the submission of - 23 - a complete Restaurant Application to the City Manager. The consideration and approval by the City Council pursuant to this subsection 10(h)shall not require any further public hearings nor any amendment to this Development Agreement or any of the Governmental Authorizations that may be granted by the City. All costs and expenses relating to the preparation of a Restaurant Application shall be the responsibility of and shall be paid for by the Developer. 6. No Approved Restaurant or Discretionary Restaurant shall be constructed or operated on the Outlots unless a Restaurant Application therefore has been approved by the City Council through the adoption of an ordinance or resolution. 7. Notwithstanding anything to the contrary in this Section 10(h)or in this Agreement, Developer agrees to and shall use commercially reasonable marketing efforts to obtain a variety of restaurants on the Outlots in order to prevent a monotony of restaurant-types on the Outlots(hereinafter called the"Variety Objective"); it being agreed and understood, however, that the Developer shall not be required to turn away (and the City shall have no right to disapprove) any restaurant that is an Approved Restaurant and that does not meet the Variety Objective (subject only to the following sentence). Developer further agrees that notwithstanding anything to the contrary in this Section 10(h)or in this Agreement,that(1)not more than one(1) breakfast type restaurant shall be located on the Outlots and that any such breakfast restaurant shall be limited to Outlots 4 or 5,and(2)not more than one(1)fast casual type restaurant shall be located on the Outlots,including by way of example,but not limited to, the Corner Bakery or Panera Bread, and that any such fast casual type restaurant shall be limited to Outlots 4 or 5. -24 - 8. As part of the Governmental Authorizations to be requested by the Developer in the Development Application, the Developer shall request and the City shall consider and not unreasonably withhold its approval of a provision that eliminates any requirement that there be any further public hearings(whether with respect to zoning or ARC-Overlay Corridor approval) with respect to the establishment of any Approved Restaurants on the Outlots. The provisions of this Section shall be binding on the Developer and its successors and assigns including, but not limited to, any successors and assigns of the Outlots, and shall run with the title to the Outlots it being intended that any future replacement restaurant or restaurants on the Outlots shall require City Council approval pursuant to this Agreement and this Section. (i) Notwithstanding anything to the contrary contained in the planned development ordinance or ordinances or other zoning ordinances which may be hereinafter adopted for the Subject Property,including,but not limited to,any provisions contained therein which identify retail and/or office uses as permitted uses,the following shall constitute prohibited uses on the Subject Property: video stores; laundromats; currency exchanges; Pay Day Loan business; nail salons which are not accessory to a beauty shop;tanning salons which are not accessory to a beauty shop;tax preparation business;dollar-type discount store;rental furniture stores;automotive related uses including,but not limited to, motor vehicle service stations [SR] (554); car washes and"motor vehicle repair shops" [SR] (753);and fast food/quick service restaurants including,by way of example,but not limited to, McDonald's, Burger King, Wendy's, White Castle, Taco Bell, Subway, Kentucky Fried Chicken, Pizza Hut, A& W and Long John Silvers. (j) Developer on behalf of itself and its successors, assigns and grantees of the Subject Property hereby acknowledges the propriety,necessity and legality of all of the terms and provisions - 25 - of the planned development ordinance(s) for the Subject Property which are hereinafter agreed to between the Developer and the City pursuant to Developer's Development Application and which are hereinafter adopted by the City, and does further hereby agree and does waive any and all rights, whether known or unknown, foreseen or unforeseen, to any and all legal or other challenges or defenses to any of the terms of such planned development ordinance(s) and hereby agrees and covenants on behalf of itself and its successors, assigns and grantees of its properties not to sue the City or maintain any legal action or other defense against the City with respect to any challenges of the terms and provisions of such planned development ordinance(s). Nothing herein shall constitute a waiver by,or bar to the Developer enforcing this Agreement in the event of a breach on the part of the City. (k) The City shall not withhold a final occupancy permit for any building within the Mixed Use Residential and Commercial Development that otherwise complies with all City codes, ordinances and other requirements of law as to such building. • (1) The City hereby grants to the Developer and its successor the condominium association for the Subject Property a temporary license allowing the Developer and its successor the condominium association for the Subject Property the right to construct, maintain and repair the proposed archway sign at the intersection of Water Street Place and Kimball Street and the proposed kiosk sign on city-owned property at the locations depicted in Exhibit D. All costs relating to the construction,maintenance,repair and removal of such archway and kiosk sign shall be paid fo# by the Developer and/or the condominium association it being agreed that the City shall have no responsibility for same. In the event that the City determines at any time that such archway sign and/or kiosk sign are incompatible with the City's continued use of its property the City may revoke this temporary license and require the removal of such signs. The Declaration of Condominium - 26 - referred to in Section 11 hereof shall include a provision whereby the condominium association shall be responsible for the maintenance,repair and/or removal of such signs and shall indemnify and hold the City harmless for any and all claims related to such signs. 11. Declaration of Easements, Restrictions,Covenants and By-laws. As part of the Development Application, the Developer shall submit to the City for its review and approval a proposed Declaration(s)of Condominium(the"Declaration")for a condominium association and for condominium ownership, which Declaration shall, inter alia, provide for easements, restrictions, covenants and by-laws for the Mixed Use Residential and Commercial Development of the Subject Property. The Developer may also separate the residential and retail portions of the project into two or more separate Declarations of Condominium. Such Declaration(s)shall be in a form as approved by the City's corporation counsel and Developer which approval shall be a condition to the Closing of the conveyance of the Subject Property from the City to the Developer.The Declaration shall also include the creation and location of the above-grade structured Public Parking Spaces provided, however, the Public Parking Spaces and the use and maintenance thereof by the City shall not be subject to the Condominium Declaration (including, but not limited to assessments or rules and regulations of the association) but instead shall be governed by the easement and operating agreement referred to in Section 10(a)(iii)(2) hereof. The location of the above-grade structured Public Parking Spaces shall be subject to the City's approval. The Developer agrees that it shall cause the Declaration(s) to comply with all applicable provisions of law including the Illinois Condominium Property Act. The parties agree that the residential condominiums proposed to be constructed on the Subject Property and the townhomes are intended to be owner occupied residences. As such,City and Developer agree on behalf of themselves and their successors,assigns and grantees of their properties that the percentage of the residential condominium units and - 27 - townhomes to be constructed as part of the mixed use residential and commercial development of the Subject Property which can be leased at any one time shall be limited to thirty percent (30%). In addition to other provisions to be included within the Declaration for the residential condominiums and townhomes such Declaration shall include a provision that the percentage of residential condominium units and townhome units to be constructed on the Subject Property which can be leased at any one time, shall be limited to thirty percent(30%). The Developer shall record such Declaration(s)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(s)may be modified or amended by the Developer or Developer's successors in interest, but shall also include a limitation on future modifications or amendments whereby no amendments to the Declaration affecting building architecture (including, but not limited to, building design, square footage of buildings, building materials,or building elevations),or any other provision which would remove,revoke or modify any right or privilege of the City(including, but not limited to, matters relating to the Public Parking Spaces or the limitation on the leasing)shall be made without the advance written consent of the City Council of the City of Elgin. The provisions of this section shall survive the Closing. 12. Development Assistance. (a) In addition to the City conveying the Subject Property to the Developer without a monetary purchase price as a development incentive to the Developer, and the fee waiver as hereinafter defined,and in consideration of Developer completing the redevelopment of the Subject Property with the Mixed Use Residential and Commercial Development on or before the Completion Date as set forth and required in this Agreement, the City agrees to provide the development assistance to the Developer as set forth in this Section 12. For purposes of determining the timing of - 28 - payment by the City to the Developer of certain development assistance,the Mixed Use Residential and Commercial Development is hereby acknowledged to be composed of the following main components: (i) The Public Parking Spaces to be constructed by the Developer,the new Water Street to be constructed by the Developer together with the landscaping and other public infrastructure improvements to be constructed by the Developer in the City's right-of- way or other City-owned property adjacent to Mixed Use Residential and Commercial Development (collectively the "Project Public Improvements Component"); (ii) The 16-story Tower(the"Tower Component"); and (iii) Not fewer that two (2),nor more than four(4)Approved Restaurants containing,in the aggregate,the Minimum Restaurant Square Footage(collectively the"Restaurant Component"). In addition to the City conveying the Subject Property to the Developer without a monetary purchase price, the City further agrees as follows: (b) The City hereby agrees to pay and provide to the Developer the following sums of cash development assistance with respect to the completion of the Mixed Use Residential and Commercial Development on the Subject Property. (i) The sum of Nine Million Seven Hundred Sixty-Two Thousand Four Hundred Ninety-Four Dollars ($9,762,494) for and in connection with the development of the Mixed Use Residential and Commercial Development on the Subject Property other than the establishment of the Restaurant Component (the"Cash Development Assistance"); - 29 - (ii) The sum of One Million Eighty Thousand Dollars ($1,080,000) for and in connection with the establishment of the Restaurant Component (the "Restaurant Cash Development Assistance"). (c) The $10,842,494.00 total of the Cash Development Assistance and the Restaurant Cash Development Assistance described in Section 12(b)(hereinafter collectively 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 F(the"Payment Schedule").The terms and provisions of the Payment Schedule attached hereto as Exhibit F are hereby specifically incorporated and made a part of this Agreement. Each disbursement of the Total City Funds by the City to the Developer shall hereinafter be called a "Development Disbursement". Interest shall accrue on portions of the Total City Funds from time to time unpaid to the Developer at the rate of nine percent (9%) per annum, calculated as described in Exhibit F. In the event the Developer fails to comply with the construction schedule for the Mixed Use Residential and Commercial Development on the Subject Property that is provided in Section 10 (d),(e)and(h)hereof no further interest shall accrue on said Total City Funds unless and until Developer cures such breach as provided for in this Agreement. (d) As further development assistance to the Developer, the City agrees to waive the payment of the impact fees provided for under Title 17 of the Elgin Municipal Code, 1976, as amended, (with such waiver being hereinafter called the"Fee Waiver"); and (e) The parties understand and agree that the obligation of the City to disburse the Total City Funds to the Developer as set forth in this Section 12 is expressly contingent upon Developer's performance of its covenants with respect to (i) the Mixed Use Residential and Commercial Development, and (ii) the Project Public Improvements on or adjacent to the Subject Property,;in - 30 - each case 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 then the City may suspend and terminate any further disbursement of the Total City Funds pending the enforcement by the City of its remedies as provided herein and in the Subordinated Option Agreement(as defined and described in Section 3(c)). The City's remedies shall include,;but not be limited to,all remedies provided for in the Subordinated Option Agreement,the termination of any further disbursement of the Total City Funds and the recovery in full from the Developer of any previously disbursed and Total City Funds from the City to the Developer which Developer has not already invested into or otherwise applied to the payment of improvements or other hard or soft costs for the Mixed.Use Residential and Commercial Development on the Subject Property. 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 Use Residential and Commercial Development on the Subject Property shall be(i)the conveyance of title of the Subject Property 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 Use Residential and Commercial Development on the Subject Property. (f) The Total City Funds shall be paid by the City to the Developer in the form of reimbursements to the Developer for Redevelopment Project Costs (as hereinafter defined) incurred by the Developer in connection with the redevelopment of the Subject Property for the Mixed Use Residential and Commercial Development. 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 Use Residential and - 31 - Commercial Development 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 ILCS 5/11-74.4-3 (q), which are incurred by Developer in connection with the subject redevelopment of the Subject Property for the Mixed Use Residential and Commercial Development 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"). (g) In the event Redevelopment Project Costs incurred by the Developer exceed $10,842,494.00 it is agreed and understood that the Total City Funds payable to the Developer shall none-the-less be limited to the total amount of$10,842,494.00 and in no event shall the City pay or reimburse the Developer any amount over such amount. (h) Notwithstanding anything to the contrary in this Agreement, as a condition of right to receive payment from the City of the Total City Funds, the Developer shall be required to document to the City's reasonable satisfaction that it has incurred, or will incur in course of the completion of the Mixed Use Residential and Commercial Development, Redevelopment Project Costs in connection with the redevelopment of the Subject Property for the Mixed Use Residential and Commercial Development in an aggregate amount equal to or greater than the Total City Funds. 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 work performed or to be performed in connection with the completion of the Mixed Use Residential and Commercial Development and(ii)certified by the Developer to the City as being true and correct, shall constitute sufficient evidence of the existence of such - 32 - 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 Use Residential and Commercial Development are less than the aggregate sum of$10,842,494,00 (with the amount by which such documented Redevelopment Project Costs fall short of $10,842,494.00 being hereinafter called the "Redevelopment Project Costs Shortfall"), then the Total City Funds shall similarly be reduced by an amount equal to the Redevelopment Project Costs Shortfall. (i) The Total City Funds to be paid by the City to the Developer pursuant to the Payment Schedule set forth in Exhibit F attached hereto shall be deposited in a restricted account the nature and form of which shall be approved by the City's corporation counsel such as by way of example a title company construction loan escrow(the "Restricted Account")to insure that such Total City Funds are used solely and only for costs incurred or to be insured by Developer in connection with the Redevelopment of the Subject Property for the Mixed Use Residential and Commercial Development. A usual and customary construction loan escrow disbursement agreement established by the Developer with Chicago Title Insurance Company and the Developer's lender(s)in a form substantially as attached hereto as Exhibit G shall be deemed an approved Restricted Account. 13. Redevelopment to Remain on Subject Property.The Developer agrees that except as otherwise agreed to by the City the Mixed Use Residential and Commercial Development 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. The requirement that the Mixed Use Residential and Commercial Development on the Subject Property be maintained and remain on the Subject Property as required in this section shall include, but not be limited to, prohibiting any - 33 - exterior alterations to the improvements or landscaping on the Subject Property without the express advanced written approval of the City Council of the City. 14. Assessment of Subject Property. The City and the Developer agree that the Mixed Use Residential and Commercial Development of the Subject Property should be assessed for general real estate taxes in the manner provided by Illinois Compiled Statutes as they may be amended from time to time. This provision shall not be deemed to prevent the Developer or its successors or permitted assigns from appealing or challenging assessments against the Mixed Use Residential and Commercial Development 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 equalized assessed valuations of the Mixed Use Residential and Commercial Development on the Subject Property below the following amounts: (i) Twelve Million Dollars ($12,000,000) for the Residential Condominium portion of the subject development. (ii) Eight Hundred Thousand Dollars ($800,000) for the retail spaces in the Tower Building in the subject development. (iii) One Million Four Hundred Thousand Dollars($1,400,000)for the restaurants on the Outlots. (iv) The foregoing amounts of assessed valuations shall be increased five percent (5%) annually during the term of this Agreement. (b) Request a full or partial exemption for general real estate taxes for any portion of the redevelopment property. (c) Request an assessment at a value not otherwise permitted by law. - 34 - 15. Compliance with Laws: Compensatory Flood Water Storage. (a) 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 Use Residential and Commercial Development, including without limitation, Developer's construction of residential units on the Subject Property, that Developer shall comply with all applicable federal, state, city and other requirements of law. Developer shall also at its expense secure all permits and licenses, pay all charges and fees and give all 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. Without limiting the foregoing, and notwithstanding anything to the contrary in this Agreement,Developer and its contractors and subcontractors shall comply with the Prevailing Wage Act in all respects of the redevelopment of the Subject Property. (b) The City agrees that it shall provide to the Developer off-site compensatory storage to the extent required by law as a result of the impact of the Mixed Use Residential and Commercial Development on that portion of the Subject Property that currently lies within the floodplain. The City represents that it has commenced with the design of the upstream off-site compensatory storage project and will provide the required off-site compensatory storage for the Subject Property as a result of the impact of the Mixed Use Residential and Commercial Development on the Subject Property not later than such time as may be required to avoid any delay in the commencement of construction or orderly completion(without the use of overtime or heroic measures) of the Mixed Use Residential and Commercial Development on the Subject Property. In the event the City has not yet provided the required offstreet compensatory storage for the Subject Property for them Mixed Use Residential and Commercial Development on the Subject Property by the time the Developer - 35 - proposes to commence with the construction of the Mixed Use Residential and Commercial Development the City agrees to issue the Developer a variation allowing the Developer to nonetheless lawfully proceed with the construction or such administrative approvals as are necessary to allow Developer to so proceed with such construction. The Developer shall pay to the City as reimbursement for such off-site compensatory storage Developer's proportionate share of the costs incurred by the City in establishing such off-site compensatory storage facility for the Subject Property and other properties. Developer shall pay such reimbursement to the City within thirty(30) days of the City completing such off-site compensatory storage facility which includes the required off-site compensatory storage for the Subject Property and the City providing the Developer an invoice for same. Developer's proportionate share shall be determined by the number of acre feet of off-site compensatory storage required by Developer to comply with law. 16. Demolition of Existing Improvements on Subject Property By the City. In the event the City elects, prior to Closing hereunder, to provide for the demolition of the existing building and other improvements on the Subject Property(the "Demolition"), then: (a) The City shall cause such Demolition to comply with the specifications for such Demolition Activities attached hereto as Exhibit H(such demolition pursuant to such specifications being hereinafter referred to as the "Subject Demolition Activities"). (b) The Total City Funds to be paid by the City to the Developer as otherwise provided herein shall be reduced by the actual cost to the City to accomplish such Demolition. Such reduction shall be taken from the$1,300,000 of the development assistance payment provided for in Section 1(a) of Exhibit F hereto. The City agrees to seek competitive bids pursuant to the City's procurement ordinance for the Subject Demolition Activities and further agrees to award the bid for the Subject Demolition Activities to the low responsive and responsible bidder in order to attempt to - 36 - obtain the most reasonable price for the Subject Demolition Activities. In no event shall the City have the right under this paragraph 16 to deduct from the development assistance to be paid to the Developer under this Agreement amounts for any component of the Demolition that exceeds the total cost with foundation removal set forth in Exhibit H-1 plus the costs of engineered fill specified by the Developer for the backfill of the existing basement. Also,the cost to demolish a house at 279 N. Spring St (that is in the City's bid specifications) shall not be included for purposes of this Agreement. 17. 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. 18. 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 as the party in default commences such cure within said 30 days and thereafter diligently pursues the completion of such cure in good faith, then such the party not in default shall not seek to enforce any remedies against said party in default. - 37 - 19. Remedies. If 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 and/or its owners, operators, managers, officials, officers, shareholders,employees,agents,successors,assigns,grantees,lessees,proposed lessees or any other person or entity 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. 20. Time. Time is of the essence of this Agreement. 21. 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. 22. 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 Illinois without reference to its conflict of laws rules. 23. Relationship of the Parties. This Agreement shall not be deemed or construed to create an employment,joint venture, partnership or other agency relationship between the parties hereto. 24. 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. - 38 - 25. 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. 26. 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. 27. 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. Developer on behalf of itself and its successors, assigns and grantees of the Subject Property, hereby acknowledges the propriety, necessity and legality of all of the terms and provisions of this Agreement and does further hereby and agree to and does waive any and all rights,whether known or unknown,foreseen or unforeseen, to any and all legal or other challenges or defenses to any of the terms and provisions of this Agreement and hereby agrees and covenants on behalf of itself and its successors, assigns and grantees of the Subject Property not to sue the City or maintain any legal action or other defense against the City with respect to any challenges of the terms and provisions of this Agreement. Nothing herein shall constitute a waiver by,or bar to the Developer enforcing this Agreement in the event of a breach on the part of the City. 28. Assignment. This Agreement shall be binding on the parties hereto and their respective successors and permitted assigns. This Agreement and the obligations herein may not be assigned without the express written consent of each of the parties hereto, which consent may be withheld at the sole discretion of either of the parties hereto. - 39 - 29. 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(7%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. 30. 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 workman's' compensation claims, in any way resulting from or arising out of or alleged to be resulting from or arising out of negligent actions or omissions of the Developer in connection herewith, including negligence or omissions of employees,agents or subcontractors of the Developer arising out of the performance of 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 costs of which - 40 - shall be paid by the Developer. The provisions of this Section shall survive any completion, termination and/or expiration of this Agreement. 31. As Is: Covenant Not To Sue. Except as otherwise expressly provided herein: (a) The City agrees and shall deliver to the Developer at Closing possession of the Subject Property 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 Subject Property 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 Subject Property and that the Developer hereby waives and releases any claim for contribution against, and covenants not to sue the City, or the City's officials, officers, employees, agents, attorneys, personal representatives, successors 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 Subject Property 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 Subject Property in its "as is" and "where is" condition and that, as of the Closing, the Developer will be purchasing the Subject Property with no direct recourse or direct rights of action against the City or - 41 - 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 directly or indirectly sue the City or the City's officials,officers,employees,agents,attorneys, personal representatives, successors or assigns for any Claims with respect to,or arising out of 4ny Environmental Condition(as hereinafter defined)or any other condition of,or situation existing With respect to the Subject Property 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 Subject Property,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 cleanup or remediation as a result of the release,threatened release,migration or the existence of any - 42 - i contaminants, pollutants, petroleum and petroleum byproducts, crude oil or any fraction thereof, chemicals, wastes or substance (including, without limitation, 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 Subject Property. (f) "Subject Property"shall mean the property described on Exhibit A attached hereto, 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, common law, 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 representatives,successors,assigns and grantees,and if such party is an entity,then additionally such party's officers, employees, agents,partners, shareholders, directors,members and/or managers. (i) The provisions of this Paragraph 31 shall be deemed remade as of the Closing and shall survive the Closing and shall not be merged into the closing documents. 32. Form of Developer's Limited Liability Company. Prior to the entry into this Agreement, the Developer has provided to the City a copy of the documents relating to the - 43 - Developer's limited liability company known as Water Street Place,LLC,an Illinois limited liability company. Such documents submitted to the City for review include the incorporation documents with the Illinois Secretary of State and the Operating Agreement. It is agreed and understood that at all times the Water Street Place, LLC being the development entity for the Subject Property shall include at all times Ryan Companies US, Inc. as a member with a managerial interest of not less than fifty percent (50%) such that that Ryan Companies US, Inc. will have equal control over the decisions and management of the subject development. 33. Access to Subject Property prior to Closing. After the entry into this Agreement and prior to the Closing,the City agrees to allow the Developer and its agents access to the Subject Property for the purposes of conducting the Feasibility Study referred to in Section 2 hereof for the purposes of conducting marketing and sales of the Mixed Use Residential and Commercial Development of the Subject Property. Such marketing and sales activities may include, without limitation, the locating of a sales trailer on the Subject Property, the design and location of which shall be subject to the City's approval. 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, damage or other relief, including,but not limited to,workman's compensation claims, in any way resulting from or arising out of or alleged to be resulting from or arising out of claims for personal injuries,including but;not limited to death, or claims of property damage as a result of Developer's access to the Subject Property prior to the Closing including, but not limited to, for the Feasibility Study and/or pre- closing access to the Subject Property for marketing or sales activities as referred to in this section. The provisions of this section shall survive the Closing of the conveyance of the Subject Property -44 - from the City to the Developer and/or any completion, termination and/or expiration of this Agreement. 34. All Collateral Assignments to be Subordinate. The City acknowledges that all collateral assignments required to be made by the Developer to the City hereunder, and the City's interest arising under the Subordinated Option Agreement, shall at all times be subordinate to the rights of the Developer's current and future construction lenders and mezzanine equity providers. IN WITNESS WHEREOF,the parties hereto have entered into and executed this Agreement on the date and year first written above. CITY OF ELGIN Water Street Place,LLC, a municipal corporation an Illinois limited liability company Wregiam B By: RSC&Associates, LLC,a Manager r o Attest: B :41 .1.c.—I Richard S. Curto,a Manager City Clerk 1/ By: Ryan Companies, US, Inc.,a Mana er By: s via_ c.Ock/T_ City of Elgin Water Street Place, LLC do City Manager c/o James M. McDonald,V.P. 150 Dexter Court Ryan Companies US, Inc. Elgin,IL 60120-5555 55 Shuman Blvd., Suite 800 Naperville, Illinois 60563 and to Richard S. Curto RSC&Associates, LLC 180 N. LaSalle, Suite 2626 Chicago,IL 60601 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, City of Elgin Kramer, Schuster&Vanek 150 Dexter Court 1250 Larkin Avenue, Suite 100 Elgin, IL 60120-5555 Elgin, IL 60123 Mega]Deot\Aereement\Development Agr-WaterStreetPlaceckan I I-t 7-06-WAC.doti -45 - PARCEL ONE: THAT PART OF THE NORTHEAST QUARTER OF SECTION 14, TOWNSHIP 41 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE NORTHERLY LINE, EXTENDED EASTERLY OF KIMBALL STREET WIN THE EASTERLY UNE, EXTENDED NORTHERLY•OF NORTH GROVE AVENUE; THENCE SOUTHERLY ALONG THE EASTERLY LINE EXTENDED NORTHERLY OF NORTH GROVE AVENUE AND ALONG SAID EASTERLY LINE, A DISTANCE OF 266.42 FEET; THENCE WESTERLY ALONG A UNE THAT FORMS AN ANGLE OF 90 DEGREES 45 MINUTES TO THE RIGHT WITH THE PROLONGATION OF THE LAST DESCRIBED COURSE, BEING AT RIGHT ANGLES TO THE EASTERLY LINE, EXTENDED NORTHERLY FROM THE NORTHERLY LINE OF NORTH STREET, OF DOUGLAS AVENUE A DISTANCE OF 70.0 FEET FOR THE POINT OF BEGINNING; THENCE CONTINUING WESTERLY, ALONG SAID PERPENDICULAR UNE, A DISTANCE OF 390.0 FEET; THENCE SOUTHERLY PARALLEL WITH THE EASTERLY UNE OF NORTH GROVE AVENUE, A DISTANCE OF 15.06 FEET; THENCE SOUTHEASTERLY ALONG A UNE THAT FORMS AN ANGLE OF 29 DEGREES 19 MINUTES TO THE LEFT WITH THE PROLONGATION OF THE LAST DESCRIBED COURSE, A DISTANCE OF 316.51 'FEET; THENCE EASTERLY, ALONG A UNE THAT FORMS AN ANGLE OF 59 DEGREES 56 MINUTES TO THE! LEFT WITH THE PROLONGATION OF THE LAST DESCRIBED COURSE, BEING AT RIGHT ANGLES TO NE EASTERLY UNE, EXTENDED SOUTHERLY, OF DOUGLAS AVENUE; (FROM ITS INTERSECTION WITH THE NORTHERLY UNE OF NORTH STREET), A DISTANCE OF 235.0 FEET TO A POINT ON A UNE THAT IS 70.0 FEET WESTERLY OF (MEASURED AT RIGHT ANGLES THEREOF) AND PARALLEL WITH THE EASTERLY LINE OF NORTH GROVE AVENUE; THENCE NORTHERLY ALONG SAID PARALLEL UNE, A DISTANCE OF 289.0 FEET TO THE POINT OF BEGINNING. IN THE CITY OF ELGIN, KANE COUNTY, IWNOIS. PARCEL TWO:-.` ._ THAT PARS FOX RIVER MANUFACTURING COMPANY'S ADDITION TO ELGIN, DESCRIBED AS FOLLOWS: G AT THE INTERSECTION. OF THE SOUTH LINE OF KIMBALL STREET WITH THE WEST UNE STREET ALSO KNOWN AS GROVE AVENUE IN SAID CITY OF ELGIN; THENCE • SOUTH A 5, _ ST LINE OF RIVER STREET ALSO KNOWN AS GROVE AVENUE TO A POINT 132 FEET NOR NORTH UNE OF NORTH STREET, EXTENDED; THENCE WEST ON A LINE PARALLEL r, ;tH SOUTH LINE OF KIMBALL STREET TO THE EAST MARGIN OF FOX RIVER; THENCE NORTHWES AL: G NE SAID EAST MARGIN OF FOX RIVER TO NE SOUTH UNE OF KIMBALL STREET; EA T ALONG SAID SOUTH UNE OF KIMBALL STREET TO THE PLACE OF BEGINNING; ALSO LOT PH EAS J. KIMBALL'S 2ND ADDITION TO ELGIN (EXCEPT PART LYING IN GROVE AVENUE) (' a XC:•T PARTS LYING IN KIMBALL STREET OR GROVE AVENUE AS DEDICATED BY THE PLAT DO 106 947 RECORDED APRIL 5, 1966) (ALSO EXCEPT THAT PART OF THE NORTHEAST QUARTER • 110 14, TOWNSHIP 41 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED` 'ALLO • COMMENCING AT THE INTERSECTION OF THE NORTHERLY LINE, EXTENDED-• :'LY ?F KIMBALL STREET WITH THE EASTERLY UNE, EXTENDED NORTHERLY OF NORTH e UE; THENCE SOUTHERLY ALONG THE EASTERLY LINE EXTENDED NORTHERLY OF NORTH GRt, .NUE AND ALONG SAID EASTERLY LINE, A DISTANCE OF 266.42 FEET; THENCE WESTERLY' A LINE THAT FORMS AN ANGLE OF 90 DEGREES 45 MINUTES TO THE RIGHT WITH THE PROL.: '*N OF THE LAST DESCRIBED COURSE, BEING AT RIGHT ANGLES TO THE EASTERLY UNE, EX s i'THERLY FROM NE NORTHERLY UNE OF NORTH STREET OF DOUGLAS AVENUE A DISTANCE_,• ° 'iv 'FEET FOR THE POINT OF BEGINNING; THENCE CONTINUING WESTERLY, ALONG SAID PERP'- ,LAR LINE, A DISTANCE OF 390.0 FEET; THENCE SOUTHERLY PARALLEL WITH THE EASTERLY,- NORTH GROVE AVENUE, A DISTANCE OF 15.06 FEET; THENCE SOUTHEASTERLY ALONG A • T FORMS AN ANGLE OF 29 DEGREES 19 MINUTES TO THE LEFT WITH THE PROLONGA .,THE LAST DESCRIBED COURSE, A DISTANCE OF 316.51 FEET; THENCE EASTERLY, ALONG A s;: T FORMS AN ANGLE OF 59 DEGREES 56 MINUTES TO THE LEFT WITH THE PROLONGA' " ' `THE LAST DESCRIBED COURSE, BEING AT RIGHT ANGLES TO THE EASTERLY LINE, EXTENDED OF DOUGLAS AVENUE; (FROM ITS INTERSECTION WITH THE NORTHERLY UNE OF NOf } STREET), A DISTANCE OF 235.0 FEET TO A POINT ON A LINE THAT IS 70.0 FEET WESTERLY DF NEASURED AT.RIGHT ANGLES THEREOF) AND PARALLEL. WITH THE EASTERLY UNE OF NORTH GROVE' N!ENUE; THENCE NORTHERLY ALONG'SAID PARALLEL LINE, A DISTANCE OF 289.0 FEET OT THE,POINT Of BEGINNING) IN THE CITY OF ELGIN, KANE COUNTY, IWNOIS. EXHIBIT B Developer's Projected Sales Prices, Lease Rates and Sales Absorption Schedule for the Residential and Retail/Restaurants Components of the Mixed Use Residential and Commercial Development Projected sales prices for condominiums $240 per square foot Projected sales for townhomes $240 per square foot Projected lease rate for in-line retail $16.00 per square foot Projected lease rate for restaurants $22.00 per square foot - 47 - i WATER STREET PLACE -Elgin Absorption Assumptions Presales Mth 1 Mth 2 Mth 3 Mth 4 Condominiums #of Units 91 Sold-Presales 50% 46 Balance of Sales 5 8 3 3 Closed/Occupied Base Pricing/Unit 291,060 292,278 292,278 298,367 304,456 Total Monthly Sales 13,243,219 1,461,388 2,338,221 895,100 913,367 Options Upgrade Target/Unit $2,000 91,000 10,000 16,000 6,000 6,000 Lofts #of Units 51 Sold-Presales 55% 28 Balance of Sales 4 7 2 2 Closed/Occupied Base Pricing 284,046 290,089 296,133 296,133 305,198 Total Monthly Sales 7,967,487 1,160,358 2,072,931 592,266 610,396 Options Upgrade Target/Unit $1,500 42,075 6,000 10,500 3,000 3,000 Town Homes #of Units 7 Sold-Presales 0% Balance of Sales 1 1 Closed/Occupied Base Pricing 535,500 520,800 Total Monthly Sales 535,500 - 520,800 - - Options Upgrade Target $5,000 5,000 5,000 TOTAL UNITS SOLD 75 9 16 5 5 TOTAL UNITS OCCUPIED 0 0 0 0 0 . TOTAL BASE REVENUE 21,746,206 2,621,746 4,931,951 1,487,366 1,523,764 TOTAL UPGRADES TARGET 138,075 16,000 31,500 9,000 9,000 ■ Mth 5 Mth 6 Mth 7 Mth 8 Mth 9 Mth 10 Mth 11 Mth 12 3 3 3 3 3 3 3 3 304,456 304,456 302,020 302,020 302,020 302,020 287,406 286,797 913,367 913,367 906,061 906,061 906,061 906,061 862,219 860,392 6,000 6,000 6,000 6,000 6,000 6,000 6,000 6,000 2 1 1 1 1 1 1 305,803 299,759 296,133 296,133 296,133 296,133 295,226 611,605 299,759 296,133 296,133 296,133 296,133 295,226 3,000 1,500 1,500 1,500 1,500 1,500 1,500 1 1 1 510,300 499,800 489,300 510,300 - - - 499,800 - - 489,300 5,000 5,000 5,000 6 4 4 4 5 4 4 4 0 0 0 0 0 0 0 0 2,035,273 1,213,127 1,202,193 1,202,193 1,701,993 1,202,193 1,157,445 1,349,692 14,000 7,500 7,500 7,500 12,500 7,500 7,500 11,000 • Mth 13 Mth 14 Mth 15 Mth 16 Mth 17 Mth 18 Mth 19 Mth 20 Mth 21 Mth 22 2 15 15 15 15 15 16 286,188 572,377 4,000 10 10 10 10 6 5 1 1 3 3 1 489,300 483,000 - - 489,300 - - 483,000 5,000 2 0 1 0 0 1 0 0 0 0 0 0 0 0 28 28 26 25 21 21 572,377 - 489,300 - - 483,000 - - - - 4,000 - 5,000 - - - - - - k Mth 23 Mth 24 TOTAL Proforma 46 45 91 26,597,261 26,597,261 181,000 28 23 51 14,794,560 14,794,560 76,575 0 7 7 3,528,000 3,528,000 30,000 0 0 149 0 0 149 - 44,919,821 44,919,821 - - 287,575 EXHIBIT B-1 Water Street Place Real Estate Tax Revenue Schedule Dated September 20, 2006 - 48 - • WATER STREET PLACE • Real Estate Tax Revenue Schedule Assessed Tax Rev.© Assessed Tax Rev.(5) 80%of Sale Value(1/3 of $8.5 per 80%of Sale Value(1/3 of $8.5 per Balance of Total Balance Condo Sales %Sold Price 80%) $100 Retail Sales %Sold Price 80%) $100 Total RE Tax Deferred TIF Interest Rate Outstanding Repayment Remaining 9% 2007 $ 6,800,000 $ 612,000 7,412,000 - 7,412,000 2008 $35,935,857 80% 28,748,685 9,487,066 $ 8.159,111 100% 6,527,289 2,154,005 $ 7,412,000 $ 667,080 8,079,080 - 8,079,080 2009 $ 8,983,964 20% 7,187,171 2,371,767 $ 806,401 - - $ 183,090 $ 989,491 $ 8,079,080 $ 727,117 8.806,197 (989,491) 7,816,706 2010 $ 201,600 $ - $ 1,250,461 $ 7,816,706 $ 703,504 8,520,210 (1,250,461) 7,269,749 2011 $ 1,325,488 $ 7,269,749 $ 654,277 7,924,026 (1,325,488) 6,598,538 2012 • $ 1,405,018 $ 6,598,538 $ 593,868 7,192,406 (1,405,018) 5,787,389 2013 $ 1,489,319 $ 5,787,389 $ 520,865 6,308,254 (1,489,319) 4,818,935 2014 $ 1,578,678 $ 4,818,935 $ 433,704 5,252,639 (1,578,678) 3,673,961 2015 $ 1,673,398 $ 3,673,961 $ 330,657 4,004,618 (1,673,398) 2,331,220 2016 $ 1,773,802 $ 2,331,220 $ 209,810 2,541,029 (1,773,802) 767,227 2017 $ 1,880,231 $ 767,227 $ 69,050 836,277 (836,277) - 2018 $ 1,993,044 2019 $ 2,112;627 $ 5,521,932 $(12,321,932) 2020 $ 2,239,385 2021 $ 2,373,748 2022 $ 2,516,173 2023 $ 2,667,143 2024 $ 2,827,172 2025 $ 2,998,802 2026 $ 3,176,610 $ 36,268,588 Total TIF Revenue (12,321,932)Less Project Requirement Note 1:Tax isincreased at 6%annually Note 2:Retail space is assumed to be 100%leased In the first year. $ 23,948,856 TIF to City of Elgin 66%%of TIE to City 9.82% • water Stree a 4_19 06_TIF Esc_8 9_lnterest REVISED.6202006,12:62 PM WATER STREET PLACE • Real Estate Tax Revenue Schedule I I •Retail and Restaurant Real Estate Tax Summary Assessed Tax Rev. in Une" 80%of Sale Value(113 of $8.5 per "Restaurant" 80%of Sale Assessed Value Tax Rev.0$8.5 Combined Retail Sales %Sold Price 80%) $100 Total RE Tax Sales %Sold Price (1/3 of 80%) per$100 Total RE Tax Total RE Tax 2007 2008 $ 3,025,778 100% 2,420,622 798,805 $ 5,133,333 100% 4,106,667 1,355,200 2009 - - $ 67,898 $ 67,898 - - $ 115,192 $ 115,192 $ 183,090 2010 $ - $ 71,972 $ - $ 122,104 $ 194,076 2011 $ 76,291 $ 129,430 $ 205,720 2012 $ 80,868 $ 137,196 $ 218,064 2013 $ 85,720 $ 145,427 $ 231,147 2014 $ 90,863 $ 154,153 $ 245,016 2015 $ 96,315 $ 163,402 $ 259,717 2016 $ 102,094 $ 173,206 $ 275,300 2017 $ 108,220 $ 183,599 $ 291,818 2018 $ 114,713 $ 194,614 $ 309,327 2019 $ 121,596 $ 206,291 $ 327,887 202o $ 128,892 $ 218,669 $ 347,560 2021 $ 136,625 $ 231,789 $ 368,414 2022 $ 144,823 $ 245,696 $ 390,519 2023 $ 153,512 $ 260,438 $ 413,950 2024 $ 162,723 $ 276,064 $ 438,787 2025 $ 172,486 $ 292,628 $ 465,114 2026 $ 182,835 $ 310,186 $ 493,021 $ - $ 2,098,446 $ 3,560,084 $ 5,658,530 Water Street=@£Dona 1_19_06 TIF Esc e_9 Interest REVISED,9202006.12:62 PM . SALES TAX REVENUE Retail Square Footage $39,400.00 Sales Per Square Foot $ 250.00 Rate 1% Escalating 6%Annually Total Combined Property&Sales • Sales Tax Tax $ 98,500 $ 1,087,991 • $ 104,410 $ 1,354,871 $ 110,675 $ 1,436,163 $ 117,315 $ 1,522,333 $ 124,354 $ 1,613,673 $ 131,815 $ 1,710,493 $ 139,724 $ 1,813,123 $ 148,108 $ 1,921,910 $ 156,994 $ 2,037,225 $ 166,414 $ 2,159,458 $ 176,398 $ 2,289,026 $ 186,982 $ 2,426,367 $ 198,201 $ 2,571,949 $ 210,093 $ 2,726,266 $ 222,699 $ 2,889,842 $ 236,061 $ 3,063,233 $ 250,225 $ 3,247,026 $ 265,238 $ 3,441,848 $3,044,207 $ 39,312,795 Waaer_SOeel.9 onna 4_19 06_TIF Esc 6_9_Interest REVISED,9/2012006.12:52 PM EXHIBIT C Permitted Title Exceptions 1. Real estate taxes not then due and payable, for the year of Closing and subsequent 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. Public utility easements which do not prohibit Developer's proposed redevelopment of the Subject Property with the Mixed Use Residential and Commercial Development. 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. - 49 - • . _ . • • . . . • • . . • • . . . . . • . .. . • ' . • . . . . . • • , • . • • • . . " • . . . • . . • • • . . . . ... -.• . •.. . •. . ... .. . . . . . . . . • . . • . • . • • . . - • - .1•■-...-__., , . „..__..._..... • • GO Ar N . .a; . . " 1 -•'"-- • 0 Mr• ' I • i . 1' ----. — . •, siteiLlir -, fr...---,-- -..:,, _..,....; ..... ..,..... .. '- .-4- ' - - N t I - --tor-1111,4. 5,, 1‘,.. r ler-VC!: . !- I 1;•J I .■•••• .. •, • ,•. .., . .. , Ag. 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B ARCHITECTS . • . . . . . • . • . . • . . ... ., • . .• • • • . . . . . , . . . • • . . • • . . . • • . . .. • • . • . • . . • . . • . • . • : . - •, . . - . . . .. . •• • . • . • . . . . . . . . . . • . .. . . • . . . . . . .. .. . . . . . . . . . . . • . .• . • . • . . • • - • . • • . . . . • • • .. . . • • . . • - . . . . • . • • . • . . • • • . . • . . • • • • ,•.d • • I-1 - _ Hitchcock ee,.,•.e.>ar x..11. -GROVE esarlea,ana AVENUE twar�11na`r• m o.a Quota ...•„211 1 wirAivicwir.o.7. ,/,.te--.it // __e sers•1aa ~' .,1� ,laNS,ro.a na:r1asa■..N.__ it ' P1�6 a4M1w-tsna i �, R A�- Pi a}oGm-,enc n M •..,hR _ k eo�''.�1Yaeira�l�1� t������1; I./a �N �% .. :now �' .71•1•,..... a , *t�..�.�� .:�i•i�u�aw vsi.7aar _ �uue uau� ■ /1) ttri.. i ew•o►sra=. ^...r^' - ri,. - . °^l ■ ■ iii w t,e�. 1 , „:;a ,T� � r,.'1 i�0�!i� "i r*�l�",4;yt� aa�,, r nm rOR � 1 ^ r �1 .f 7 roa Ryan Companies US, ,, , u •. �� `. , z _ eea,rtea•,r ....r�eoeea tlbHUNb,roc awsm,eroa 1 lrac b1LIft1 7RD.,fG> 7 •• � = r %1` = Water Street• I. 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PL1•• • • • • • • • • " rI aim 0 14 yq, , 4 .„,. � . . • • . .. ... .,.. ,,e , ,, ,j i „. . , , I p , 1. • , , , , .,- .., . f ' •1 I• . - • i � . — 0. ♦. I C, I . ,r.. ♦�♦■ A . . 1 -, .. 4 , ,••' ...‘: . . ' . • .•-..: .. . •. •••• . .. - P' •••.. y.0 .,, . I 4” 4 " Dza w 0n j /n F • t 7 aJ itol • RYAN Rsc WATER STREET PLACE PUBLIC IMPROVEMENTS-TO BE DEDJCATED TO THE CITY , SEPTEMBER 27.2006 ,, B ARCHITECTS • • • r. . • • • . . . .. , . • .• • • . . . . , . • • . - • - • • . .. • . . . . . . • .. ...• . , .. . ,. . . . . . .. . . . • • - • • . • ..• . - ieei . . raL.,. .. . . GROVE I. 0 Hitchcxxic ._._ B .• ,...„...)„, . ..........,.... . • ••■■ , 41110Mallik • •■••• I ( 1' r : Design Gr011p agroma.ri.....• ill II". ..„......, . _,ggivo-,:,-,,,;•.,:•,-■-■■■•■..11Ellotiths -,‘,. ../. ..-,...-wv/Rii-.---,'Iiii, - • I .. e,i.„ . 4 MN W.Anima aNcon NY.10.M.IIN.a -- ■ aellM:A=11-7: 01=■-■-iiiii■monlicasn-minismii:hiozscaummalimijiliii...mir. 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' / 0 -,f,;,.,;,'.,..4.....t.r,---.1.e. .:i.--.. .701761 „iv,.. /A •• . 11 ■•, rrn 7 ....), . ... i .....-II .. ,, A\\‘,.. / „ CONSULTANTS . li; 2 _.._._1 Imi, r4,_____._____ \ _ _________ _ ._,.._ ___ - , . . _ . -*--11N 14 . y • /. -,,,...,„ _,..... ..„,..c.., al! .111( z, , '',f,,-... :A 'it/ • s . , • b. lb. ....WAWA ' itl'a _iiiiV /1" ...• '. . • . • -- . • .. .1L. ' -...' / IlliiiK2311110 / A. . i ›i _____A../A. ____„liwA W A T E R .. _"17:R E E.T___--,--7..11I■c .4-.. \\\\Ii./•.,'N',P,c..-7XINIF/A,4. . I III A • ... . . • • • 1,---C.t_ ,',..q . •-•!,„ :,› --.-.- :-....„._., / . • • . • • . " I.,___ ••• ,-- - / . . . ....,c ... ... OWED Octabal 4.2008 REVISIONS 1 1 l', if.:1:77`, ' tV . i i.coe111,1I1 . 0 , b, • __ ....,...,,,, REST.RET. - ' .j C • IP __„... ,,,„.„.......lk / • .- „: --,.----.-.-Xii7.--- , ,0_;11,, - ;Oft, .0514.. • ,. . v ..1,11111111111T:-' .'!".%‘111r. .-_-" ..,,,,,;,:::,,'•',' :": =-4-kvir . ..._.... 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I Water . r p\ace „ ' • C . • ,tn n 'd,"""v, E18n,\11a s '.,r t • ''. ,:'4 ..:.' • , • . : - • `' : ' ?"m aa"ie5 U S, c ate�sheet • pkaGe aCP^•We's • 'Wt.,- vgN 21 114 . & r�Tg �t� xT, 1. tioN y-�py los 0 X Z� RAA tlY `. P P L ��` t N' p.�L '!0 Si . fi / R lfP .4 , r:. �.� \-7`. : 't A► la et to 1�r tsS ti mss r c itf (w � m ! .V M1 1w..yam O� P \ ti�® ` ;j1 ‘ 3 „� a‘.4,-'' �,1xo 114111.°1 ,c - r b / PPEPARED nies 115, Ryan CamPa Inc. s,.°° • FRoacT • Water Street Place 4 C r�,rv�r' c� y� T,p4S 5x9, �vx .sp'"k ,^"�" n •re/ .Y PIT if Truss II, Mess - �' .(��"` 4 �.Y 0ir �� i�ro�Gt 1 C�4G', tI�11 Y ��, sipos � � — auvruav sign c Ma • �EGV�y n s a S4 • • • n IioocicQ • . a..... P•EPMI®FOR Ryan Companies US, 11,1-z4 C-&'- rT7GY11 Inc. . IApe.p a SOWS s,� . PISCUECT • .' .�, Water Street • •b/vr 41,6i-opfr'� *cam q -..- Place PROJECT MUSSER S'/NTExm•taY.Gtr TEXT STREET .. ' •itR�i /ciai°w.ut/... IC CONSULTANTS . Y Ott-leg to M414 gl$b.• PLACE . , ,1 • . I I I . B , SSUED On.e.r4 2.O0 REVISICNS t . �, e • • DRAWN BY • CHECKED SY • Sign D . .OMEN/EET • .. mom . ., . SHEET NUMBER min S5 • • • • • • • r: View from Fox River Water Street View: . Typical Townhouse . • C 1 4' _� ._ Zfle. w ./ .-^-� ��� .''''''''''•~ ;; Grove Street view • • - ;i /. , .�. ! • • 1 �. V, _ ire �z..}; '�° �I 1.a.Aerial View Grove Street View• itYAH' rsc WATER STREET PLACE :. . LEGATE'=�'=• • • • • • c9 Li ,,,p• ••.',... K4� * .,a`yt.,a.37t :� {:'''r k -,,,i,,,••• 1 ;y3 � � � t ...''7:1.4c.,'"&,-. ;:rt....'; L t C '1,,'1‘:;::, sa 3 ? t - t �Q .,1,a YF -;•,P, r r r'l.p:i u: tE e, Iry F• T• rt FF H. ^[;I K! rkE. t'• r.,' K' _. .. %r !!pp .. h r f-. gg'' of / e e 5 t, £ [� x e _ F. , r°�1 b:S Y.r. S T ?v M1 ! r . E i - C. C t - ,i_ L E F 6 V P F t 4 r, t . [ f' f r t t. . t I .. a. . h'' r-' ' . y� r E '', r S € � riT 2 . A ,l' e '., j., y ' , Ft, Ft F?_ e- 5r t—. r- r,: ; F V. 4; r_,_ ar E d : ` aE T tF; kya E' .,""=; €• tf T" f.: !:s tC 6� 5`:t' � RR FF CC a a ct Iii pe- ; L,:;:x , lis i i R.7..7 6 i9ei1ii1im E DANN__ ,. rdill E 6 11 - • • O WEST f]FVA(1CN •ilYAH' Rsc HitDesChutTackp WATER STREET PLACE - °w--� • ° °T • • • • • • • icy F el-1:-N.-., '.:7: i - C'7,','"..-ii; yy w - at. f.e r••=,7,1,1 E Tk" �: i s F.-' iii' ::';', ;.0-..r...' r..T.. .• +z f : £r_ .. -, - 1.71 Y S l'''' i i ....T �r i '. >i ..• • F.,.`1. ! 3 l'-',... g F k > .i.1 q! i t r.'4- -r-t. .. 7_ --- S r . ' i' i-t sX- , _ •,y .. ?: '1., ski' a ti: aTp: I,' . iT,G r' _ o - 'a I- Fi lw y: h.• 1 n. 1 L: P ':-t a§ d E '.4 F° . f t-l „S , 1.;•.& a �� 1 -1 t, 7 (Ct 1 [ a v -� oil- pg �pq�pz�- g� earssea zpgcs - Illiil. fl, ' .I.'1. .i Sh ! W 1-,_ R' "f f : � 1. 1.. - i 1 I i kilt 1111 • • • • Q EAST ELEVATION • :liYAN' Rsc CI • WATER STREET PLACE _- LEGATA ac':6_7EC 3 • • • . fr------t,1,_ i i . . _ ---,I ;=,...-='�'_-7,._- --_:___ — I I d ; ,, h • u .. • r .� I • IIIIIIII STORAGE • • • O BASpDIT PllN . WATER STREET PLACE , . AUGUST 7, 2005 LEGAT i•CHOTECTS • • • • • • 7\ . .. . . .. ' ., . • ' . , ------_,, •GROUND L7- L . • �OP HOUSE[OYIER LEVEL. . • t h� ;. ITI , I�� ;•. Iir ,'. ICI ! 1'�, ITI 'og jou -1 og log �� o� log. NI o® Tog . ,Le . gym . • m ... _ ■ , ❑ . ❑ s ❑ .Q 1.1 .. • • • ❑ LR:TP&_ /�fI • , 2•� ❑ ❑ ❑ ❑. II ,i , � III . . • RETAIL O fLQOR PIAN •WATER STREET PLACE _• . —�— •AUGUST 7,200e LEGAT''\I CH TECTS • • • oust UPPER LEVEL • 1 BEDROOM 2 BEDROOM ." --1 1_I -- 1 !-1 { 1.1=i. 1=1 ; IA — I-1 — .-1 1=1 _--z i=1 hiii_ • IN I r;:i■gi i irt1;41 Se 1 57,17111INIFI . ,-., ,..,•• : I: ri�010� I 4,� �gr� .4 — !�.4, 4. _, d4; �i • • • s Iii I-1 Ill'-I �� =1 I I=I Ios�l'I=I �1 I-I I=I I��I I=I 1 BEDROOM 2 BEDROOM 11�'�� 150 49 481 41 ••46 45 44 43 I' 42 41 40 39 038 37 36 0 35 34 33 °32 131 30'4 ° ,,,, A .5 ¢ a . 1 l i _. 0 28 ° p .'I n p p T. • ti4}'Il : .n+ 3' 1 I 26 8 O . "i" ■; 1 51 52• 53 54 55..56.. 57 58 59 60 61 62• 63 64 165 66 67 1 68 ; 69 ' 3 BEDROOM . __-/I J. ! b_ \\ � �® ° 0 '. 0 84 65 i 86 • 111111111111 ��11 , l - 7s 71 72 73 74 ,75 76 � 77 76 79 80 81 82 . 83 o°A V.L L -;.� 6 • 1f° sa i Ire .• fa: 8 9 10 11, 12' 13 14 15; ' 16 17 18 19. .2-0 21 22 i'23 24 3 BEDROOM — — J • ( I- • { .. 1 ! • • .. ■ • O D 60 BOOR RAN . 1 w.. WATER STREET PLACE �. �...... . . . AUGUST 7,2006 LEGAT•r CHITECTS • • • • • • • • • 1 BEDROOM 2 BEDROOM: — — — _ _ I i �'�r - — I 50 49 4& 47, 46 45 ,k 44 43.1;•42 m 41 40 39 It 38 37 1 36 1 35 34 33 132 31 30'�29 I ° \ °,14[1.. ° .. 1 • iv c4he +. • .-F_• �2 q 27 0* I ' 4 51 SZ•153 54. '55 56 57.158. 59 60. 61 '6.2 `63{ 64 65 66' .67 168 69 3 BEDROOM r i� 1 i ' . I i. i 25 \ ,s x'1 7 .71• '72 '73 74 75 76 ..17. 78 79: 80''81 82 83 11I 84 85 86 , .--i 0 0 °; o ° o I 8 p IIIIIIII 5 111111111/ F • \/4 ® ° •/ Y . ° ft 8 9 10 .11 12 13 14 15' 16' 87 16 19 20 . 21 22 1 23 24 3 BEDROOM i- --7 — -1._ _____.' — — — — n u » w, • • • • O FOURIFI FLOOR PUN •. WATER STREET PLACE �i�AH� sic AUGUST 7,2006 LEGAT\RCP'1D ICECTS • • • • • • • • • • • • • 1 BEDROOM 2 BEDROOM �7�1 Ji 50 149 '48 0 •47 .46 45 044 43.1 42©41. '40 39 4 38. 37 36 0 35 34 33 132 ! 31 3430 0 29 ❑ o E8 I ° 5 A { � "y i a � 28 _° 2 8 51 52 '53 54 55 56 57 l 58 1 59 60 61. 62 63 . 64 1 65 56 67 68 69 26 ° .r 3 BEDROOM 1�` ►/I 4`i t e_. _ ❑ yi 71 72 73 74. 75 76 r 77 78 79 80 i 8{ 82 83 a $4 85' 86 43 IIIIIIII L. 5 1 . . :I 1 1 I I 1 I 1IIIIIIII,, ■ 6 LEVEL 4 1°�' w ® / a . o ' 7 as -0 o . q 0 I•:� . 8 9 •lD 11 12 •13. 14 15 . 14 117 18 19 20 21 22 23 24 3 BEDROOM • • • o in io 4' FF1B BOOR PIAM • WATER STREET PLACE "�'coc AUGUST 7,2006 LEGAT.. i•CHITECTS • • • • 1 BEDROOM 2 BEDROOM 117: Bpol1404 Err PATIO • ;� o I BEDROOM 2 BEDROOM 2 LBEDRON.. • 2-BEDROOM 1 BEDROOM 2 BEDROOM 1 BEDROOM O y I =T5_ P4� O I ,fp z I �� O 1 III [1.6 IP'. 1 o O •do 1.;� O •`• ' =�• °2• 3 BEDROOM 8 r —v =// s 1. �o (�tl }0'� ■■ mf� - `- �o{ Roc ® i ii• 1 Psl.S r�, r.41� Emig. .+.. _ 4_i_ _� _, i�p'. _e f.� ..+. �0 = ._ �IIIIIIII,c.zial le, _. IIIIIIII •\ 4.*A., v: " ..:-*1:, s Lz�'. p� �p Cfs �t7 1.'' O m ? O 4° •�� �, Jr'�L =t a�; ,� �o �� 211 �� 9. ,is •3 BEDROOM II • 1 BEDROOM' • 2 BEDROOM • . 2 BEDROOM •.• 2 BEDROOM 1 BEDROOM 3 BEDROOM•• • . eeeeee . a" id g • w • . • • • R O SENEKTH 1HRD EE\ BI FLOOR PLAN • WATER STREET PLACE y-- AUGUST 7,2006 LEGATARCHOTECTS • • • • • • 1 BEDROOM 2 BEDROOM . . . . . . • ,: ,,,,„ PA 1 1* p� G 1 BEDROOM 2 BEDROOId .2-BBEDROOM. 2'BEDROOIR 1 BEDROOM 2 BEDROOM 1 BEDROOM AI Mr"inkr1111.1... ' „..., a, _.A. :. .. A . _ __ ,,t--- 1 • . ml 7.: -vim- .2.ir .. . - -1r„ ,...-....„-,,,,__, 3BEDROOM ,•` �/1 sic_i O Ud .0• • ad:. ly m� 1 ,0 ildlws'i 1 IIIIIIII 4.14:,_1E-.,„--a$ ►A A ��A o 1 \ 1.. m��, 7.11lllillI °._, e . ..... `�Q,7_4 .Snit -PMOW∎1 ..... ,,.3 _ - Aw wining.V1 T C , " r 7..;d 1 III -- � . �r., .w e } .—. -•!� Er. 4 4►Y o - r gyp �, =�,501 1 ,,,,,,.e.3 BEDROOM 1 BEDROOM 2 BEDROOM 2.BEDROOM. .: 2 BEDROOM 1 BEDROOM. —3 BEDROOM • • • 7Q 1Q • p. • • O%hi FLOOR PLAN •. .• WATER STREET PLACE RYAN' Esc AUGUST 7,2006 LEGAT. •'0-iDTEC S • • • • • • • • • • •1 BEDROOM 2 BEDROOM . •• • • lig �' c O 1 BEDROOM •• 2 MDR' EDROOM • • '.2 BEDROOM T BEDROOM •• 1 BEDROOM • 3 BEDROOM :: OO• +1 fTS._. b4 O O 1 ` O �O • BOl 1! �q `.�8, i a►�' �o{117 .o .. •' m c _m• ® I•3 BEDROOM \`► =�,AI in. ® "y F=1 �f►A A ,.. `~. �-ell :� r-1 +• 1lIIIllll•tu _ IIIIIIlI +. __ . _Ii __ �., . _ _ _I ..+. �., �, j. ��.�/ .+• �4+yyy a...xx>•, r �1 .xx= 7/�� 1 . —Ga 1�1 /+. -G=ag,•\ A �-� k: s 1$ i � '� e��F�1��E v- . $ ra� a”.,s 114. i• � t Liv �°� `+, �� 2:� °�k r 45r . . ''•FIZI BEDROOM \ / 3 1/ 1 BEDROOM'. '2 9ED1OOM ,2 BEDROOM 2•BEDROOM ' • 28EDROOM . • >r >H�EOR anir •WATER STREET PLACE . AUGUST 7,2006 LEGAT,'\I`CHFECTS • • • i1 it 7 li o '� / . . . . , — , t f ;;a @s, ° oo..+: ir---.-,..5o------s,_1-_t 11\\1111' '� 11111x, 1 . 1 3 0000 \4110, vilr; . . . . .. . . . . 440,,, . . ... , . • \ *744. . .. ..,,,p.. .••• i, 3004 C WNIER ,I 1 . •1 p�,CE • AUGUST l'20� • 3 BEDROOM . • s —171— ��•D�.e • ii 14 • 2 BEDROOM DEN 4` ••.IIm 1IIIII`I �% iiiii rl • i• • • • O sx1m41H Float PIAN.: k.a. WATER STREET PLACE �1YAN' Esc AUGUST 7,2006 • EXHIBIT D-1 Water Street Calculations 1. Number of residential condominiums * 146 2. Number of efficiency residential condominium units 0 3. Number of one-bedroom residential condominium units* 32 4. Number of two-bedroom residential condominium units* 84 5. Number of three-bedroom residential condominium units* 30 6. Number of townhouses - 8 7. Average square footage of one-bedroom residential condominium units - not less than 954 sq. ft. 8. Minimum square footage of one bedroom residential condominium units 850 sq. ft. 9. Average square footage of two-bedroom residential condominium units - not less than 1,126 sq. ft. 10. Minimum square footage of two-bedroom residential condominium units 1,100 sq. ft. 11 Average square footage of three-bedroom residential condominium units - not less than 1,364 sq. ft 12. Minimum square footage of three-bedroom residential condominium units 1,300 sq. ft. 13. Approximate square footage of townhomes—(2 stories) 2,236 sq. ft. 14. Total approximate square footage of residential units 187,166 15. Square footage of inline retail space on first floor of Tower Bldg. - 18,400 sq. ft. 16. Total number of private structured parking spaces in Tower Bldg.- 237 17. Total number of public structured parking spaces in Tower Bldg.- 90 18. Total number of street level parking spaces on - 51 - Water Street(onsite) 72 19. Total number of floors (stories) in the Tower Building - 16 *Number of residential condominiums and number of units by bedrooms is as currently proposed. Subject to the provisions of this paragraph,based upon market demand Developer may alter the proposed mix of one,two and three bedroom residential condominium units in the event market demands suggest a revised mix would be appropriate. The maximum number of residential units(both condominium and townhomes)shall be limited to and shall not exceed 158 residential dwelling units. No studios or efficiency units shall be permitted. The number of one bedroom residential dwelling units shall not exceed 50%of the total residential dwelling units. The minimum square footage for all of the residential dwelling units shall be 187,166 square feet. - 52 - EXHIBIT E List of Approved Restaurants Biaggi's Restarante Benihana Big Bowl Bonefish Grill Café Ba-Ba Rebba California Pizza Kitchen Carrabba's Italian Grill Champp's Americana Cheesecake Factory Claddaugh Irish Pub Corner Bakery(limited to Outlots 4 or 5) Egglectic Café(limited to Outlots 4 or 5) Fado Fuego (example in Arlington Heights) Francesca's Giordano's Heaven on Seven La Tasca(example in Arlington Heights) Lettuce Entertain You Restaurants Lou Malnati's Macaroni Gill Maggianos Matsuri(Japanese steak house) McCormick and Schmitz Mortons Panera Bread(limited to Outlots 4 or 5) Pizzeria Uno P. F. Changs P. J. Clarke's Ram Restaurant and Brewery Red Star Tavern Rock Bottom Brew House Rosebud Ruth Chris Steakhouse Scoozi Shaw's Crabhouse Smith and Wollensky Stir Crazy Sullivan's Trattoria Roma Topo Gigio Uncle Julio's Walker Brothers (limited to Outlots 4 or 5) Weber Grill Wildfire Wolfgang Puck - 53 - EXHIBIT F Payment Schedule In addition to the conveyance of the Subject Property to the Developer at the Closing,the City shall make the following incremental payments of the Total City Funds to the Developer at the following stages of the completion of the Mixed Use Residential and Commercial Development: 1. The $9,762,494 total of the Cash Development Assistance shall be paid by the City to the Developer as follows: (a) The sum of $1,300,000 shall be paid to the Developer simultaneously with the Closing hereunder, minus any sum to which the City is entitled to reduce this payment with respect to the City's having completed the Subject Demolition Activities pursuant to Section 16 of the Agreement (subject to the limitation in Section 16(b) and on Exhibit H-1); (b) The sum of$2,700,000 shall be paid to the Developer by June 1, 2007. The City's obligation to make such payment is subject to and conditioned upon the Developer having commenced construction of the foundation of the Mixed Use Residential and Commercial building (the Tower) on the Subject Property on or before the Construction Commencement Deadline; (c) The balance of$5,762,494 plus interest thereon at the rate of 9%per annum on the unpaid balance from time to time outstanding calculated from the date of Closing to the date of payment(collectively the "Paragraph 1(c) Balance") shall be paid to the Developer as follows: (i) Until the Bond Funding Date (hereafter defined) the City shall pay to the Developer 100% of all TIF increment received by the City solely and only from the Subject Property as installment payments with respect to the Paragraph 1(c)Balance; and (ii) At such date (herein called the "Bond Funding Date") as the stream of TIF increment being received by the City from the Subject Property on an annual basis is sufficient to amortize over 20 years the principal and interest due on non-credit enhanced City of Elgin revenue bonds issued with respect to the Project in the amount of the unpaid balance of the Paragraph 1(c) Balance, the City shall pay the entire unpaid Paragraph 1(c)Balance to the Developer. The City's obligation to make such payments is subject to and conditioned upon the Developer having completed the Mixed Use and Residential Commercial Development on the Subject Property on or before the Completion Date. 2. The$1,080,000 of Restaurant Cash Development Assistance,plus interest thereon at the rate of 9%per annum on the unpaid balance from time to time outstanding calculated from the date of Closing hereunder to the date of payment shall be paid by the City to the Developer as follows: - 54 - (a) After a Restaurant is approved by the City Council as provided in this Agreement and established on the Outlots of the Subject Property(whether through the efforts of the Developer of through the exercise by the City if its Marketing Rights as hereafter described), the City shall pay to the Developer a sum equal to the product of(i) the unpaid balance of the Restaurant Cash Development Assistance plus accrued interest and(ii) a fraction, the numerator of which is the square footage of the interior of said approved restaurant building as measured in compliance with BOMA, and the denominator of which is 18,000. Each approved restaurant shall be deemed to have been established as of the date of the issuance of a final occupancy permit for such approved restaurant and the opening of such restaurant to the public for business. As to any approved restaurant that is established by the City in the exercise of its Marketing Rights, there shall be deducted from the sum otherwise payable to the Developer under this paragraph 2(a) any reasonable brokerage commissions or other incentives(collectively"City Transaction Costs")which the City may have agreed to pay to third parties in order to procure the approved restaurant development in question. The City shall pay such Restaurant Cash Development Assistance to the Developer after an approved restaurant is established as described herein in installments from TIF Increment received by the City solely and only from the Subject Property concurrently with the paragraph 1(c)Installment Payments. Such Restaurant Cash Development Assistance payments shall also be subject to the Bond Funding Date acceleration and payment conditions for the Paragraph 1(c)balance as set forth in Paragraph 1(c)(ii). (b) If,by a date(the"Trigger Date")that is the 3rd anniversary of the issuance by the City of the first certificate of occupancy as to a residential condominium unit on the Subject Property, the Developer has not established on the Outlots enough approved restaurants to fulfill the Minimum Restaurant Square Footage, then: (i) The City shall have the right, upon written notice to the Developer(the"City Marketing Notice")to share with the Developer the right("Marketing Right") to lease or sell Outlots, but only for use in connection with the immediate development and operation of approved restaurants; and (ii) The lease rate or sales price to be paid to the Developer shall be not less than (A)the fair market rental value or fair cash sales price of the Outlot(as the case may be)or(B)such lesser rental rate or sales price as to which the City and the Developer may mutually agree in their sole and absolute discretion. If the City and the Developer cannot agree on the fair market rental value or fair cash sales price of the Outlot or the terms or conditions of a sale contract or lease(as the case may be)then same shall be determined through binding arbitration to be conducted by the American Arbitration Association under its rules for commercial arbitration. As to any such arbitration proceeding(x) each party shall pay its own costs and expenses and one-half of the fees required to be paid by the AAA in connection with the commencement and conduct of such arbitration proceeding, and(y)each party shall have the same discovery rights as are allowed to litigants under the Illinois Code of Civil Procedure. - 55 - 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$10,842,494 plus all applicable interest,if any,due thereon as provided in this Agreement. Such$10,842,494 of Total City Funds is comprised of the$9,762,494 of Cash Development Assistance and the$1,080,000 Restaurant Cash Development Assistance. It is acknowledged and agreed that in the event the total amount paid by the City pursuant to the above installment payments reaches the total amount of$10,842,494,plus all applicable interest, if any, due thereon as provided in this Agreement, 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 $10,842,494,plus all applicable interest, if any, due thereon as provided in this Agreement. 2. The Developer and the City have reviewed the Developer's Project budget and believe that there are at least $10,842,494 of costs therein which qualify as so-called "Redevelopment Project Costs"within the meaning of 65 ILCS 5/11-74.4-3(hereinafter called"TIF-Eligible Costs"). 3. The payment conditions are cumulative. For purposes of clarification example, payments under Paragraph 1(c) shall not be due or paid unless payment conditions for payments under Paragraph 1(a) and (b) have been completed. - 56 - EXHIBIT G Form of Usual and Customary Loan Escrow Disbursement Agreement Established by Chicago Title Insurance Company ("Restricted Account") - 57 - CONSTRUCTION LOAN ESCROW TRUST AND DISBURSING AGREEMENT Escrow Trust No.: Policy No.: ARTICLE 1: General Information/Definitions A. Owner/Borrower: Attorney for Owner/Borrower: Water Street Place,LLC Schnell, Bazos, Freeman & Schuster Contact: James Ryan Telephone No.: 630-328-1109 1250 Larkin Ave, Suite 100 Elgin, IL 60123 Fax No.:630- Contact: Peter Bazos Telephone No.: 847 742-8800 Fax No.:847 742-9777 B. Lender: Attorney for Lender: , Esq. ,Illinois Contact: Telephone No.: Telephone No.: Fax No.: Fax No.: C. Escrow Trustee: Chicago Title and Trust Company ("Escrow Trustee") , Illinois Contact: Telephone No.: Fax No.: D. Title Insurer: Chicago Title Insurance Company("Title Company") 2175 Point Blvd., Suite 165 Elgin, Illinois 60123 Contact: Telephone No.: Fax No.: E. Inspector: Telephone No.: Fax No.: F. General Contractor: Ryan Companies US, Inc. 204961.1 044599-31781 55 Shuman Blvd. Naperville, IL 60563 Contact: Telephone No.: Fax No.: G. Project Name: Water Street Place, Elgin, Illinois H. Cash Deposits: Amount of Deposits to be made by Lender: Up to $ in the aggregate Billing Instructions: Title and Construction Escrow charges are to be billed to Owner/Borrower at the address set forth above. J. Definitions: For purposes of this Agreement,the following terms shall have the meanings set forth in this Section J: 1. Project. The Building(as hereinafter defined),and the other amenities and improvements to be constructed on the premises(the"Premises") legally described in the Policy(as hereinafter defined). 2. Building. The I6-story mixed residential and retail building to be constructed on the Premises. 3. Loan(s). The$ construction loan from Lender to Owner/Borrower,the proceeds of which will be(a)used to construct the Project and (b)disbursed, in whole or in part,through the escrow trust(the"Trust")established under this Agreement. 4. General Contractor. The General Contractor described above. 5. Contractor's Statement. A sworn statement from General Contractor to Lender and Escrow Trustee disclosing all contracts, subcontracts, entered into by General Contractor, relating to the construction and renovation of the Project and setting forth the names and addresses of the contractors,the kind of services, work or materials to be furnished,the amount of each contract,the amount paid to date on each contract,the amount of the then requested disbursement on each contract and the balance to become due on each contract. 6. Owner's Statement. A sworn statement from Owner/Borrower to Lender and Escrow Trustee disclosing all contracts entered into by Owner/Borrower,relating to the construction and renovation of the Project and setting forth the names and addresses of the contractors,the kind of services, work or materials to be furnished,the amount of each contract,the amount paid to date on each contract,the amount of the then requested disbursement on each contract and the balance to become due on each contract. 7. Date-Down Endorsements. (a) Date-Down Endorsement 10 in the standard form reflecting no additional exceptions to title or changes to the existing exceptions to title and no other changes to the Policy, unless such additions or changes are approved in writing by Lender, and (b)Date-Down Endorsement 10A reflecting the date of the then current Contractor's Statement and Owner's Statement,the 204961.1 044599-31781 - 2 - date of the then current disbursement and the amount of the outstanding principal balance of the Loan, including the then current disbursement. Upon request by Escrow Trustee, Lender will furnish to Escrow Trustee a written confirmation of the then outstanding principal balance of the Loan. ARTICLE 2: Recitals A. Owner/Borrower has executed a mortgage(the"Mortgage")dated as of ,200 ,encumbering the Premises for the purpose of financing, in whole or in part,the construction and renovation of the Project. For the benefit of the Lender,Title Company will issue the Policy insuring the lien of the Mortgage from the consequences of mechanics' liens on an interim basis as the renovation of the Project progresses;and for the benefit of Lender and Owner/Borrower,Escrow Trustee has been requested to provide a disbursing service as a means to pay for construction and related development costs. At the request of Owner/Borrower, Lender will make periodic cash deposits into the escrow trust created by this Agreement to be disbursed by Escrow Trustee in accordance with the provisions of this Agreement as hereinafter set forth. Said deposits will not be requested more frequently than once per calendar month. Owner/Borrower may also deposit or cause to be deposited funds not constituting Mortgage proceeds into the escrow trust created hereby, which said funds shall also be disbursed by Escrow Trustee pursuant to provisions of this Agreement. Owner/Borrower represents and warrants to Escrow Trustee that at the date of this Agreement, funds available for construction payment are sufficient to complete the Project. B. The parties hereto agree that Escrow Trustee will be disbursing the escrow trust deposits made for construction payment directly to the General Contractor, subject to the terms and conditions of this Agreement. However, it is the intention of the parties named herein and signatory hereto that no person not a party signatory to this Agreement shall have the right to look to the Escrow Trustee for any disbursement hereunder under a third party beneficiary theory or otherwise, and that the Escrow Trustee owes no duty to any such third party to make any disbursement. C. The parties hereto acknowledge and agree that the proceeds of the Loan will be used to finance the construction of the Project. ARTICLE 3: Requirements A. Prior to the first disbursement of funds hereunder by Escrow Trustee,the following requirements shall have been satisfied,to wit: (1) The Escrow Trustee shall furnish, shall have furnished or shall be prepared to furnish to Lender,as the insured, a Standard ALTA Construction Loan Policy(the"Policy")acceptable in all material respect to Lender,together with a Standard Interim Mechanics' Lien Endorsement l0A and such other endorsements as set forth hereinafter. If such policy has been issued to Lender prior to the Escrow Trustee's first disbursement of funds hereunder,then the Escrow Trustee shall furnish or be prepared to furnish Date Down Endorsement 10 and Interim Mechanics' Lien Endorsement 10A covering the requested disbursement. The Policy shall be subject only to the"Permitted Exceptions" described in the Mortgage and shall contain the following endorsements, all in a form satisfactory to Lender: - Comprehensive Endorsement No. 1, 204961.1 044599-31781 - 3 - - Modified Broad Form 3.1 Zoning Endorsement(including coverage for parking and loading docks and bays and excluding the marketability limitation,based upon the completion of the Project in accordance with the plans and specifications approved by Lender), - Access Endorsement, - Survey Endorsement, Contiguity Endorsement, - Special Endorsement deleting creditors' rights exception to coverage, - Restrictions Endorsement - Tax Parcel Endorsement - Contiguity Endorsement - Variable Rate Endorsement - Usury Endorsement (2) Owner/Borrower shall furnish Lender and Escrow Trustee a sworn Owner's Statement disclosing the various contracts entered into by the Owner/Borrower relating to the construction or renovation of the Project and setting forth the names of the contractors,their addresses,the kind of service, work or materials to be furnished,the amounts of such contracts,the amounts paid to date, if any,the amounts of current payments, if any, and the balances to become due, if any. (3) The Owner/Borrower shall furnish or cause to be furnished to Lender and Escrow Trustee a sworn statement to Owner by the General Contractor setting forth the names and addresses of such persons furnishing labor, service,or materials(i.e., subtrades and material suppliers),the kind of labor, service or materials to be furnished,the amounts of the contracts,amounts paid to date, if any,amounts of current payments, if any,and balances to become due, if any. (4) Lender or its counsel shall furnish Escrow Trustee the following,to wit: (a) An approval of the conditions of title. (b) An approval for loan disbursement purposes of the Owner's Statement and the sworn statement of the General Contractor. (c) Written confirmation that all conditions outside of escrow have been satisfied. B. Prior to each disbursement of funds by Escrow Trustee hereunder,the Owner/Borrower shall furnish or cause to be furnished to Escrow Trustee the following: (1) A Owner's Statement as described in this Article 3 at A(3). (2) A General Contractor's Statement, as described in this Article 3 at A(4). (3) Sufficient funds to cover the current disbursement request. (4) Written approval by Owner/Borrower of the payment by Escrow Trustee of the current construction draw(s). In the event that non-construction costs are to be paid by Escrow Trustee with funds from the escrow trust,then Owner/Borrower shall provide written directions to Escrow Trustee, approved in writing by Lender,setting forth the names and addresses of the payees,the amounts of the respective payments, and the purpose of the payments (e.g., legal fees, real estate taxes,etc.). 204961.1 044599-31781 - 4 - (5) A report by the Inspector certifying that work has been completed and materials are in place as indicated by the current construction draw(s)request approved by the Owner/Borrower. (6) Statements,waivers, affidavits, supporting waivers,and releases of lien from such persons and in such form as may be required by Title Company for the purpose of providing the title insurance coverage specified in this Agreement covering the current disbursement. C. At the time of each disbursement of proceeds of the Loan by Escrow Trustee under this Agreement, Escrow Trustee shall furnish, or be unconditionally prepared to furnish to Lender,the Date-Down Endorsements covering the current disbursement. The actual Date-Down Endorsements applicable to each disbursement shall be delivered by Escrow Trustee to Lender no later than ten days after the date of such disbursement. ARTICLE 4: General Conditions A. If a title search by Title Company reveals a title matter which gives rise to a title exception not previously reflected in the Policy, Escrow Trustee will notify Lender and shall discontinue disbursement until the exception has been disposed of or insured over to the satisfaction of Lender. B. If Escrow Trustee discovers a misstatement in an affidavit furnished by General Contractor, or Owner/Borrower,or any inconsistency or contradiction between or among any figures in an Owner's Statement, Contractor's Statement or any subcontractor's statement, Escrow Trustee shall stop disbursement until the misstatement, inconsistency or contradiction has been corrected. Escrow Trustee may,at its option(and shall, if any inconsistency or contradiction exists or Escrow Trustee becomes aware of any other possible inaccuracy or ambiguity),verify information submitted by Owner/Borrower and the contractors or may require Owner/Borrower to furnish or cause to be furnished verification of contractor amounts by contractors, subcontractors or material suppliers. Escrow Trustee has no liability hereunder to Owner/Borrower relating to protection against mechanic's lien claims,except as caused by or from Escrow Trustee's negligence. C. Prior to the final disbursement of the funds hereunder by Escrow Trustee,unless waived in writing by Lender, it is a requirement of this Agreement that Title Company be unconditionally prepared to furnish to Lender a Standard ALTA Loan Policy covering the date of final disbursement, subject to the usual terms and conditions contained in that form of policy and also subject to exceptions as approved heretofore by Lender,together with the above listed endorsements and such other endorsements or modifications of endorsements as are required by Lender in accordance with the terms of the governing loan documents. All required documentation must be submitted to Escrow Trustee and approved by Title Company prior to the final disbursement of escrow trust deposits by Escrow Trustee. D. The functions and duties assumed by Escrow Trustee include only those described in this Agreement and Escrow Trustee is not obligated to act except in accordance with the terms and conditions of this Agreement. Escrow Trustee does not insure that the Buildings will be completed, nor does it insure that the Buildings, when completed, will be in accordance with plans and specifications, nor that sufficient funds will be available for completion, nor does it make the certifications of the Inspector its own, nor does it assume any liability for the same other than procurement as one of the conditions precedent to each disbursement. Escrow Trustee has no liability for loss caused by an error in the certification furnished it hereunder as to work in place, unless Escrow Trustee has knowledge of such error and fails to disclose same to Lender or to obtain Lender's written permission to continue disbursements. Escrow Trustee shall not be responsible for any loss of documents while such documents are not in its custody. Documents deposited in the United States mail shall not be construed as being in custody of Escrow Trustee. 204961.1 044599-31781 - 5 - In the event of default as declared by the Lender and/or foreclosure of the mortgage by the Lender, Escrow Trustee shall have the right to discontinue further disbursements under this Agreement. Owner/Borrower or Lender may direct Escrow Trustee to invest the escrow trust deposits; provided,however, that such direction shall be in writing,contain the consent of all other parties to this Agreement, and be accompanied by the taxpayer's identification number and such investment forms as may be required. Escrow Trustee will,upon request, furnish information concerning procedures and fee schedules for investment. Except as to deposits of funds for which Escrow Trustee has received express written direction concerning investment or other handling,the parties hereto agree that the Escrow Trustee shall be under no duty to invest or reinvest any deposits at any time held by it hereunder; and, further,that Escrow Trustee may commingle such deposits with other deposits or with its own funds in the manner provided for the administration of funds under Section 2-8 of the Illinois Corporate Fiduciary Act(5205 ILCS 620/2-8), and may use any part or all such funds for its own benefit without obligation to any party for interest or earnings derived thereby, if any. Provided, however nothing herein shall diminish Escrow Trustee's obligation to apply the full amount of the deposits(and all interest and earnings thereon) in accordance with the terms of this Agreement. In the event the Escrow Trustee is requested to invest deposits hereunder,Escrow Trustee is not to be held responsible for any loss of principal or interest which may be incurred as a result of making the investments or redeeming said investment for the purposes of this Agreement,unless such loss results from the negligence or intentional misconduct of Escrow Trustee. E. Notwithstanding anything contained herein to the contrary, as between Owner/Borrower and Lender only, (i) this Agreement is being executed and delivered in accordance with the requirements of,and is intended to supplement,the provisions of that certain Construction Loan Agreement dated as of ,200 , between Owner/Borrower and Lender(the"Loan Agreement"), (ii)Owner/Borrower and Lender shall act in accordance with the provisions of the Loan Agreement with respect to disbursements of the Loan through and outside of the escrow hereby established and (iii) in the event of any inconsistency between the provisions of this Agreement and the provisions of the Loan Agreement,the provisions of the Loan Agreement shall govern and control; provided, however,under no circumstances shall Escrow Trustee be bound by the provisions of the Loan Agreement, it being the intent that Escrow Trustee shall act solely in accordance with the provisions of this Agreement. F. The undersigned agree that this Agreement is not intended by any of the undersigned to give any benefits, rights, privileges, actions or remedies to any person,partnership, firm, corporation or other entity,other than Escrow Trustee,Lender, and Owner/Borrower, as a third party beneficiary or otherwise under any theory of law. In witness whereof, the undersigned have executed this Agreement this day of , 200_. Owner/Borrower: Escrow Trustee: Water Street Place, LLC Chicago Title & Trust Company By: Title: By: Title: Lender: By: Title: 204961.1 044599-31781 - 6 - The undersigned acknowledges that it is neither party to the Loan Agreement, nor does this Agreement confer any benefits, rights, privileges, actions or remedies to any persons, partnership, firm or corporation other than Lender and Owner/Borrower under a third party beneficiary theory or otherwise under any theory of law. The undersigned agrees that the improvement referred to in this Agreement will be completed in strict accordance with the plans and specifications of the building contract. The undersigned also concurs in the above escrow instructions signed by the Owner/Borrower and the Lender or their representative. FOR THE GENERAL CONTRACTOR Ryan Companies US, Inc. By: Name: Title: 204961.1 044599-31781 - 7 - EXHIBIT H Demolition Specifications PROJECT MANUAL CITY OF ELGIN ELGIN, ILLINOIS BID PACKAGE FOR BUILDING DEMOLITION 200 N. Grove Ave . and 279 N. Spring St. OWNER CITY OF ELGIN 150 DEXTER COURT ELGIN,IL.60120 INVITATION TO BID# 06-097 BID OPENING DATE AND TIME: October 10, 2006 AT 11:00 AM MANDATORY PRE-BID MEETING To be held on September 28, 2006 at 10:00 am at 200 N. Grove. Meet in the lot on the north side of the building. 58 TABLE OF CONTENTS Building Demolition Advertisement for bids Notice to Bidders Instructions to bidders Bid form Insurance Requirements Bidders' Employee Utilization Form Equal Employment Written Commitment Guideline Sexual Harassment Policies and Programs Tax/Collusion/Debarment Affidavit Prevailing Wage Resolution Contract Agreement Specifications Attachments 59 CITY OF ELGIN ADVERTISEMENT FOR BIDS The City of Elgin, Illinois, does hereby invite sealed bids for demolition of the old library building located at 200 N. Grove Ave. and the house located at 279 N. Spring St. in Elgin, Illinois. All bidders must attend a mandatory pre-bid meeting at 10:00 am on September 28, 2006. The meeting will be held at 200 N. Grove Ave. Bidders should meet in the lot on the north end of the building. Sealed bids will be received by the office of the Elgin Purchasing Department, 150 Dexter Court,Elgin, Illinois 60120-5555, until 11:00 a.m., local time on October 10,2006, at which time they will be publicly opened and read aloud. Those desiring to bid may obtain copies of the bid documents, including specifications and bid forms at the Elgin Purchasing Department, 150 Dexter Court,Elgin, Illinois 60120-5555,between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday. Bids are to be submitted on the forms furnished with the bid documents, properly executed in accordance with the directions contained in the Information to Bidders. The bid will be accompanied by a bid bond with surety satisfactory to the City, a certified check, Cashiers check, or bank money order on a solvent bank in the amount of not less than ten percent (10%)of the total amount of the bid; the bond, check or bank money order will be made payable to the City of Elgin, Illinois. The successful bidder will be required to furnish a Performance and Payment Bond equal to one hundred percent(100%)of the total contract price in accordance with the provisions stated in the Information for Bidders. The successful bidder also must comply with all of the provisions of the Prevailing Wage Act of the State of Illinois. The successful bidder will be required to submit certified payrolls to the City for review during the course of the work. The bidder will submit, if requested by the City of Elgin, a list of qualified references for projects of similar size and scope of this project. Proposals withdrawn may not be resubmitted at the same letting. Each bidder will satisfy the City of Elgin as to their ability, financially or otherwise, to carry out the work. The right is reserved to reject any or all bids or to waive technicalities and any informality in any bid. For further information, contact Rich Hoke, Building Maintenance Superintendent at (847)931-5650. 60 NOTICE TO BIDDERS All bidders must attend a mandatory pre-bid meeting at 10:00 am on September 28, 2006. The meeting will be held at 200 N. Grove Ave.. Bidders should meet in the lot on the north end of the building. Sealed bids will be received by the Purchasing Agent of the City of Elgin, Illinois until 11:00 A.M. Local Time, October 10, 2006 for demolition of the old library Building located at 200 N. Grove Ave. Elgin, IL. At that time, the bids will be publicly opened and read at the Purchasing Department in the City Hall located at 150 Dexter Court, Elgin, Illinois 60120-5555. All proposals must be accompanied by a Bid Bond, Certified or Cashiers Check or a Bank Draft in an amount not less than 10 percent of the bid,payable without condition to the City of Elgin, Illinois,which sum shall be forfeited in case the successful bidder fails to enter into a binding contract and provide a properly executed contract surety bond within 20 days after the date the contract is awarded by the city council. The successful bidder shall be required to furnish a satisfactory contract bond to the City of Elgin by a surety company authorized to do business in the state of Illinois covering the full amount of the contract: • The bidder shall submit, upon request by the City of Elgin, a list of qualified references for projects of similar size and scope of this project. Proposals withdrawn may not be resubmitted at the same letting. Each bidder shall satisfy the City of Elgin as to their ability, financially, to carry out the work. The right is reserved to reject any and all bids or to waive technicalities and any informality in any bid. All work under this contract shall comply with the Prevailing Wage Rate Act of the State of Illinois,Illinois Revised Statutes, 820 ILCS 130/0.01 et. Seq. A copy of the prevailing wage rate is posted in the City of Elgin Purchasing Office. Copies of the bidding document and specification may be obtained from the Purchasing Department located at 150 Dexter Court, Elgin, Illinois 60120. Questions concerning the bid package should be directed to Rich Hoke, Building Maintenance Superintendent at(847)931-5650. Gail Cohen Purchasing Director City of Elgin 61 INSTRUCTIONS TO BIDDERS Proposals to be entitled to consideration must be made in accordance with the following instructions. 1. The City of Elgin reserves the right to reject any or all bids, or any part thereof, or to accept any bid or any part thereof, or to waive any informalities in any bid, deemed to be in the best interest of the City of Elgin. 2. No bid may be withdrawn after the scheduled bid closing for a period of at least 45 days. 3. Bids must be signed by an authorized official of the contractor's organization, and the name of the official and his title typed below the signature. 4. The equipment and materials bid must be new,of the current model, and meet the specifications of the bid. Surplus, remanufactured, and used products will not be accepted. 5. All equipment, material, and work practices must be in accordance with OSHA rules and regulations in effect at the time of the bid. 6. The bid price is to be FOB Elgin, IL., with delivery to the City of Elgin's point of use. 7. The City and State of Illinois sales tax and the Federal Excise taxes are not applicable to sales made to the City of Elgin and must be excluded from bid prices. 8. When unit prices are given on each item separately and there is a conflict in the total bid price, the unit price shall govern. 9. Bidders must specify any terms they wish to offer in the space provided or on a separate sheet attached to the bid form and noted on the bid form. Cash discounts will be deducted from the base bid in determining the overall low bidder. 10. In the case of default by the bidder,the City of Elgin may procure the articles or services from other sources and may deduct from the unpaid balance due the bidder, or may collect against the bond or surety for excess costs so paid. 11. The bidder will hold the City of Elgin, its officers, agents and employees,harmless from liability of any nature or on account of the use of any copyrighted or un-copyrighted composition, secret process,patented or unpatented invention, article, or appliance furnished or used under this bid. 12. The Successful bidder is specifically denied the right of using in any form or medium the name of the City of Elgin for public advertising unless express written permission is granted by 62 the City of Elgin. 13. The successful bidder agrees to comply with all rules and regulations pertaining to public contracts adopted by the Illinois Fair Employment Practices Commission and the City of Elgin. 14. Bidders will be required to comply with all applicable laws including those relating to the employment of labor and the payment of local prevailing wage rates. 15. Two copies of the bid forms should be delivered in an opaque envelope plainly marked, "SEALED BID",with a DESCRIPTION OF BID,the BID NUMBER, and the TIME AND DATE of the bid opening on the outside of the envelope. All bids must be received before the time and date stated in the bid documents, any bid received after the closing time will not be considered for award. LOCAL PURCHASING PREFERENCE: Bids from responsible and responsive local businesses that do not exceed the lowest bid price from a responsive and responsible nonlocal business by more than two percent(2%)but no more than$500 for contracts of $25,000 or less or by more than one percent(1%)but no more than$2,500 for contracts in excess of$25,000 shall be awarded to the local businesses. A.local business is a business authorized to do business under the laws of the City of Elgin,a business.with its principal place of business located within the corporate limits of the City of Elgin,which has the majority of its regular,full-time workforce located within the City of Elgin and is subject to City of Elgin taxes including,but not limited to,sales taxes. BID SUBMISSION REQUIREMENTS Bids must contain: 1. A signed Tax/Collusion/Debarment Affidavit 2. A signed Agreement. If awarded a contract,a fully executed copy will be sent to you. 3. A completed Bidder's Employee Utilization Form(if you employ 5 or more persons). 4. A signed Sexual Harassment Form. 5. Any other information or materials required in the specifications. Bid announcements can be found on the City of Elgin Home Page http://www.cityofelgin.org 63 BID FORM BID TO: Gail Cohen, Purchasing Director City of Elgin Purchasing Department 150 Dexter Court Elgin, IL. 60120-5555 PROJECT: Building Demolition Bid No. 06-097 Elgin, IL. 60120-5555 BID FORM: (Bidder's Name) (Bidder's Address). (Telephone No.) (Fax No.) 1. GENERAL The undersigned, having carefully examined the Contract Documents, all data made available, and having visited the site of the work and having become fully informed as to all existing conditions and limitations, including the structure of the ground, subsurface conditions, the obstacles which may be encountered, local restrictions, and all other relevant matters concerning the work to be performed, hereby propose to perform everything required to be performed, and to provide all the labor,materials, necessary tools, expendable equipment, all applicable taxes and fees, and provide all utility and transportation services necessary to perform and complete in a workmanlike manner the entire work in conjunction with the demolition of various buildings in accordance with the contract documents, including addenda nos. , issued thereto as follows: 2. BASE BID 200 N Grove $ 279 N. Grove $ 64 3. REQUESTED ALTERNATES Breakup basement slab in place in lieu of removal $ 200 N. Grove only 4. VOLUNTARY ALTERNATES The undersigned hereby proposes to execute all work required,provide all labor, materials, necessary tools, expendable equipment, all applicable taxes and fees, bond fee as required, and to provide all utility and transportation services necessary to perform and complete, in a workmanlike manner, the following voluntary alternatives: For providing in lieu of 4dd/deduct ($ This voluntary alternative is offered because Attached are additional voluntary alternatives: 5. REJECTION AND WITHDRAWAL OF BID In submitting this bid, it is understood that the right is reserved by the City of Elgin to reject any and all bids and to waive any informalities in bidding. It is agreed that this bid may not be withdrawn for a period of forty five(45)days from the opening thereof. 6. TIME OF COMPLETION If awarded the contract, the undersigned agrees to complete same within actual work days,approximately calendar days from and including official award date taking into consideration delays due to inclement weather. Firm Name: Date: Official Address By:_ Where Bidder is a Corporation, Add: Attest 65 INSURANCE REQUIREMENTS Each policy must list the City as an additional insured. The Contractor and all Subcontractors waive subrogation rights against the City for all losses. Such insurance shall apply as primary insurance with respect to any other insurance or self-insurance program afforded to the City of Elgin. There shall be no endorsement or modification of such insurance to make it excess over other available insurance,and alternatively,if the insurance states that it is excess or pro rata, it shall be endorsed to be primary with respect to the City of Elgin. The insurance required shall include all major division of coverage and shall be on a comprehensive general basis including Premise and Operations(including X-C-U),Products and Completed Operations, and Owned,Non-owned,Leased,and Hired Motor Vehicles. Such insurance shall be written for not less than any limits of liability required by law or the following limits,whichever are greater: Commercial Liability General Aggregate $2 Million Products Completed Operations Aggregate $1 Million Personal Injury and Advertising Limit $1 Million Each Occurrence $1 Million Automotive-for all owned,non-owned,hired and leased vehicles Combined single limit $1 Million or Bodily injury- each person $500,000 each accident $1 Million Property damage-each occurrence $1 Million Umbrella Combined single limit $2 Million General aggregate $2 Million Worker's Compensation Statutory $1 Million Employer's Liability $100,000 Builder's Risk $n/a The Contractor may purchase and maintain excess liability insurance in the umbrella form in order to satisfy the limits of liability required for the insurance to be purchased and maintained in accordance with the requirements set forth above. Any such amounts must be in addition to the umbrella limits required,must list all underlying policies,and must list the City as an additional insured. Evidence of such excess liability shall be delivered to the City in the same form and manner as the required insurance policies. The City reserves the right,at its sole discretion,to amend the insurance requirements contained herein. All insurance shall be written on an occurrence basis,unless the City approves in writing coverage on a claims-made basis. Coverages whether written on an occurrence or a claims-made basis shall be maintained without interruption from the date of commencement of the Work until the date of fmal payment and termination of any coverage required to be maintained after fmal payment. Certificates of Insurance acceptable to the City and confirming the insurance coverage required herein are attached to the Contract. The City shall have no obligation to execute the Contract and may award the Contract to the next lowest responsible and responsive bidder,if such insurance certificates have not been provided to the City within five(5)business days after presentation of the Contract to the Contractor for execution. The Contractor shall furnish to the City copies of any endorsements that are subsequently issued amending limits of coverage. 67 BIDDER'S EMPLOYEE UTILIZATION FORM This report is required by the City of Elgin and must be submitted before the contract can be awarded. Chapter 3.12.1000 Affirmative Action- City Contracts 1 Name and Address of Bidder Description of Project • JOB CATEGORIES Total Whites Blacks Hispanics Asians or American Minority Female(All Employees Pacific Indians (M&F) Categories) Islanders M / F M / F M / F M / F M I F Example:Managers 18 3 /5 3 /2 4/0 0/1 0/0 55.6% 44.4% (8/ (10/18) (8/18) TOTALS Signature of Company Official Title Telephone Number Date Signed Page of 2 Have you ever been awarded a bid by the City of Elgin? Yes No 3 If the answer to question#2 is Yes, please submit a copy of the Employee Utilization Form that was submitted with your last successful bid along with a fully completed copy of this form. 4 If the statistical data provided above shows under-utilization of minorities and/or females,please submit,according to the guideline provided in the attached document, a written commitment to provide 68 �C�( O F E4 C I equal employment opportunity. NOTE: In the event that a contractor or vendor,etc.,fails to comply with the fair employment and affirmative action provisions of the City of Elgin,the City amongst other actions may cancel,terminate,or suspend the contract in whole or in part. City of Elgin, Illinois Certification Requirements • Please submit all required forms and documentation, fully completed and signed, with your proposal. No proposal will be accepted without this information. 5 To assure compliance with the City of Elgin's Affirmative Action Ordinance, all contractors and vendors. Herein referred to as"bidders", are requested to submit the following information: 1. Workforce analysis using the enclosed Bidder's Employee Utilization form. 2. Provide the information required by Item#3 on the employee utilization form if the answer to Question#2 on the form is "Yes". 3. Provide a written commitment outlining the steps that the bidder plans to take in the area of recruitment and promotion of minorities and females to assure equal employment opportunity. (A copy of the bidder's affirmative action plan may be submitted in lieu of this requirement.) To assure compliance with the City of Elgin's Sexual Harassment Ordinance, all bidders must submit a signed sexual harassment form enclosed with the Invitation to Bid. The undersigned certifies that the offerer is not delinquent in the payment of any tax administered by the Illinois Department of Revenue unless there is a pending proceeding contesting the tax. The undersigned certifies that the offerer is not barred from offering on this solicitation as a result of a conviction for the violation of State law prohibiting bid-rigging or bid-rotating. The successful bidder agrees that upon acceptance by the City of Elgin,the executed Invitation to Bid along with all instructions,conditions, and specifications attached thereto constitute a binding contract which may be enforced by the city. 69 Signature/Title Company Name Address Phone Number FEIN No. 70 `�.`...0 F E�C' (.01111111- 7 \� .I'` J C)4'4 i l D V '. City of Elgin, Illinois Equal Employment Written Commitment Guideline The written commitment required in Item#4 of the Bidder's Employee Utilization Form shall: 1. Set out the name and phone number of the bidder's Equal Employment Officer. 2. Clearly identify the bidder's recruitment area and the percentage of minorities and females in the area's population and labor force. 3. Set out what the bidder has done and has set as a goal to ensure the recruitment of minority and female employees. 4. Set out the bidder's specific goals to recruit minorities and females for training programs or other similar opportunities available through the bidder's organization. 5. Indicate bidder's consent to submit to the City of Elgin, upon request, statistical data concerning its employee composition and recruitment efforts anytime during the term of the contract. 6. Show bidder's consent to distribute copies of the written commitment to all persons who participate in recruitment, screening,referral,and selection and hiring of job applicants for the bidder. 7. Clearly show that the bidder shall require all subcontractors,if any,to submit a written commitment complying with the above requirements of their affirmative action plan to the City of Elgin. 8. Clearly state the bidder agrees that: "Bidder(company name)shall not discriminate against any employee or applicant on the basis of race, color, religion,sex,national origin,age,place of birth, ancestry,martial status,or disability(physical or mental)which will not interfere with the performance of the job in question." Description of Groups for Classification Purposes White: all persons having origins in Europe,North America,or the Middle East Black: all persons having origins in any of the Black racial groups of Africa Hispanic: all persons of Mexican, Puerto Rican, Cuban, Central South American,or other Spanish culture or origin, regardless of race Asian American: all persons having origins in the Far East, Southeast Asia, the Indian subcontinent,or the Pacific Islands American Indian: all persons having origins in any of the original peoples of North America and who maintain cultural 71 ?sow OF El..C tv4.4iiitge 14) .114k '14 404, 4 or,' 1ILD1��• City of Elgin, Illinois Sexual Harassment - - Policies and Programs Effective July 1, 1993, every party to any contract with the City of Elgin and every eligible bidder is required to have written sexual harassment policies that include, at a minimum, the following information: • the illegality of sexual harassment • the definition of sexual harassment under state law • a description of sexual harassment, utilizing examples • a vendor's internal complaint process including penalties • the legal recourse, investigative and complaint process available through the Illinois Department of Human Rights, and the Illinois Human Rights Commission • directions on how to contract the department and commission • protection against retaliation as provided by Section 6-101 of the Human Rights Act I hereby affirm that the organization which I represent has in place sexual harassment policies which include the required information set fourth above, and I hereby agree to furnish the City of Elgin - Human Resources Department with a copy of these policies if they so request. Signature/Title Company Date Sexual harassment is defined as follows: "Sexual harassment"means any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual, or(3) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. Any questions by contracting parties or eligible bidders concerning compliance with these requirements should be directed to the City of Elgin- Human Resources Department at(847) 931-5618. I hereby agree to fully indemnify and hold the City of Elgin harmless from any and all liability,loss or damage including costs of defense or claim,demands, costs of judgement against it arising from any sexual harassment complaint resulting from the act of any member of my organization in the performance of this contract. 73 Signature/Title Company Date TAX/COLLUSION/DEBARMENT AFFIDAVIT State of ss. County of ,being first duly sworn, deposes and says: That he is of the firm of the party making the foregoing bid and that the bidder is not barred from contracting with any unit or local government as a result of a violation of 720 Illinois Compiled Statutes, Section 5/33E-3 or 5/33E-4, as amended; and, no collusion or agreement among other bidders or prospective bidders to bid a fixed price or otherwise restrain freedom of competition by agreement has taken place; and, bidder is not delinquent in the payment of any tax administered by the Illinois Department of Revenue unless there is a pending proceeding contesting the tax. All laborers, workers and mechanics performing work under the contract shall not be paid less than the prevailing wage as determined by the Illinois Department of Labor or by the City Council and will all other respects comply with the prevailing wage law, 82o ILCS 13o/0.01, et seq., in carrying out the work under the contract. Signature of Bidder, if an individual: Signature of Bidder, if a partnership: Subscribed and sworn to before me this day of , 20 Signature of Bidder, if a corporation: My commission expires: President Secretary 74 PREVAILING WAGE RATE REQUIREMENTS ILLINOIS DEPARTMENT OF LABOR General Requirements • The Illinois Prevailing Wage Act is enforced by the Illinois Department of Labor and covers all public works projects regardless of dollar amount. • Overtime is paid at one and one-half times the basic rate of pay for hours worked in excess of an 8-hour day or any hours on Saturday or Sunday. • Rates are based only on public works projects. • Prevailing wage ordinances are established each June and later printed in newspapers of general circulation. • Parties disagreeing with a wage determination may file and objection with the public body or IDOL and request a Section 9 hearing. • If rates increase during the construction period the revised rates apply. It is the public body's responsibility to notify contractors of revised rates. • A public body's failure to comply with provisions of the Act is a Class B misdemeanor. (Note: Class A Misdemeanor as of 1/1/2006). Certified Payroll Requirements Public Act 94-0515 • Effective August 10, 2005 contractors and subcontractors on public works projects must submit certified payroll records on a monthly basis to the public body in charge of the project. We will allow 20 days for the contractor to provide after the project begins. After 20 days, we demand it. • Records must include name, address, telephone number, social security number,job classification,hourly wages paid in each pay period,number of hours worked each day and starting and ending times of work each day for every worker employed on the project. • Records must also include statement affirming that such records are true and correct,that the wages paid to each worker are not less than the required prevailing rate and that the contractor is aware that filing records he or she knows to be false is a Class B misdemeanor. • Public bodies must make these records available under the Freedom of Information Act,except employee's address, telephone number and social security number. • Contractor who fails to submit a certified payroll or knowingly files a false certified payroll is guilty of Class B misdemeanor. 75 Prevailing Wage Increased Penalties Public Act 94-0488; Effective January 1, 2006 Increases penalties for violations of the Prevailing Wage Act from 20%to 50%of the underpaid amount for second or subsequent violations. Increases from 2%to 5%the additional penalty that must be paid to the workers for each month the wages remain unpaid. Increases the debarment period during which contractors are ineligible for public works contracts from 2 years to 4 yeas if two notices of violation are issued within a 5 year period. In additional, a new monetary penalty of$5000 may be assessed against contractors who retaliate against employees for reporting violations or filing complaints under the Prevailing Wage Act. Violations are a written determination by the IDOL that a contractor or subcontractor has • Failed or refused to pay the prevailing wage • Failed to keep accurate records • Produced falsified records or records not in compliance with the Act • Refused to submit records to IDOL in response to a subpoena; or • Refused access to IDOL for the inspection of records. SUM MARY: You must keep the payroll records of your employees and employees of your subcontractors. This became effective August 10, 2005. If the current copy of the prevailing wage is not published in the bid IDOL demands that we re bid the project You must submit your certified payroll records to the department using your services on a monthly basis. Any deviation from this policy will incur statutory penalties and debar you from bidding on future City of Elgin projects. For more information see www.state.il.us/agency/idol. 76 Resolution No.06-183 RESOLUTION ESTABLISHING PREVAILING WAGE RATES ON PUBLIC WORKS CONTRACTS WHEREAS, 820 ILCS 130/0.01 et seq. entitled "AN ACT regulating wages of laborers, mechanics,and other workers employed in any public works by the State,county,city or any public body or any political subdivision or by any one under contract for public works." requires that any public body awarding any contract for public work, or otherwise undertaking any public works as defined herein, shall ascertain the general prevailing hourly rate of wages for employees engaged in such work; and WHEREAS, said Act further provides that if the public body desires that the Department of Labor ascertain the prevailing rate of wages,it shall notify the Department of Labor to ascertain the general prevailing wage rate; and WHEREAS, at the request of the City of Elgin the Department of Labor has determined the prevailing rate of wages for construction work in Cook and Kane Counties in the State of Illinois. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that the determination of the prevailing wages as made by the Department of Labor, copies of which are attached hereto and made a part hereof by reference, are adopted by the City of Elgin. BE IT FURTHER RESOLVED that all contracts for public work of the City of Elgin shall include a stipulation to the effect that not less than the prevailing rate of wages as found by the Department of Labor shall be paid to all laborers,workers and mechanics performing work under the contract. BE IT FURTHER RESOLVED that all contract bonds for public works shall include a provision to guarantee the faithful performance of the prevailing wage clause as provided by contract. BE IT FURTHER RESOLVED that a copy of the prevailing wage rate as established by the Department of Labor shall be publicly posted and kept available for inspection by any interested party. BE IT FURTHER RESOLVED that nothing herein contained shall be construed to apply to the prevailing hourly rate of wages in the locality for employment other than public works construction as defined in the Act, and that the City Clerk be and is hereby authorized to file a certified copy of this resolution with the Secretary of State Index Division and the Department of Labor of the State of Illinois. s/Ed Schock Ed Schock, Mayor Presented: August 9, 2006 Adopted: August 9, 2006 Omnibus Vote: Yeas: 7 Nays: 0 Attest: s/Dolonna Mecum Dolonna Mecum, City Clerk CITY OF ELGIN AGREEMENT FOR Bid Number: 06-097 for: Demolition of Building at 200 N.Grove Ave. and 279 N. Spring St. Elgin,IL. This Agreement is made and entered into this day of ,2006 by and between the City of Elgin ("the CITY"), a municipal corporation organized and existing under the laws of the State of Illinois, and , incorporated in the state of and having a principal place of business at _("the CONTRACTOR"). ARTICLE I. DEFINITION. "THIS CONTRACT"as used herein shall mean this Agreement,the Invitation for Bids (IFB)including all documents referenced therein and the Contractor's bid response (bid)thereto incorporated by reference herein and made a part hereof. The CONTRACTOR agrees to provide the goods and/or services all in accordance with the IFB and CONTRACTOR'S Bid. In the event there is a conflict between this Agreement and the bid documents, the bid documents shall supersede this Agreement. ARTICLE II. SCOPE OF WORK. The CONTRACTOR shall provide the goods or services described in the IFB and Bid, at the prices and terms contained therein. ARTICLE III. TIME OF PERFORMANCE. The CONTRACTOR shall provide the goods or services upon receipt of purchase order; and the CITY shaft pay to CONTRACTOR the total sum of$ ARTICLE IV. TERMINATION. The following shall constitute events of default under THIS CONTRACT: a) any material misrepresentation made by the CONTRACTOR to the CITY, b) any failure by the CONTRACTOR to perform any of its obligations under THIS CONTRACT including, but not limited to, the following: (i) failure to commence performance of THIS CONTRACT at the time specified in THIS CONTRACT due to a reason or circumstance within the CONTRACTOR's reasonable control, (ii) failure to perform THIS CONTRACT with sufficient personnel and equipment or with sufficient material to ensure the completion of THIS CONTRACTwithin the specified time due to a reason or circumstance within the CONTRACTOR's reasonable control, (iii) failure to • perform THIS CONTRACT in a manner reasonably satisfactory to the CITY, (iv) failure to promptly re-perform within reasonable time the services that were rejected by the CITY as erroneous or unsatisfactory, (v) failure to comply with a material term of THIS CONTRACT,including,but not limited to the Affirmative Action requirements, and(vi) any other acts specifically and expressly stated in THIS CONTRACT as constituting a basis for termination for cause. The CITY may terminate THIS CONTRACT for its convenience upon fourteen (14)days prior written notice. ARTICLE V. DAMAGES. From any sums due to the CONTRACTOR for services,the CITY may keep for its own the whole or any part of the amount for expenses, losses and damages as directed by the Purchasing Director, incurred by the CITY as a consequence of procuring services as a result of any failure,omission or mistake of the CONTRACTOR in providing the goods and services as provided in THIS CONTRACT. ARTICLE VI. GOVERNING LAWS AND ORDINANCES. This CONTRACT is made subject to all the laws of the State of Illinois and the ordinances of the CITY and if any such clause herein does not conform to such laws or ordinances,or in the event any of the terms or provisions herein are deemed to be void or otherwise unenforceable for any reason, such clause shall be void (the remainder of the contract shall not be affected)and the laws or ordinances shall be operative in lieu thereof. Venue for the resolution of any disputes or the enforcement of any rights arising out of or in connection with this CONTRACT shall be in the Circuit Court of Kane County, Illinois. ARTICLE VII. AFFIRMATIVE ACTION. The CONTRACTOR will not discriminate against any employee or applicant for employment because of race, color, religion, sex, ancestry, national origin, place of birth, age or physical handicap which would not interfere with the efficient performance of the job in question. The CONTRACTOR will take affirmative action to comply with the provisions of Elgin Municipal Code Section 3.12.100 and will require any subcontractor to submit to the CITY a written commitment to comply with those provisions. The CONTRACTOR will distribute copies of this commitment to all persons who participate in recruitment,screening, referral and selection of job applicants and prospective subcontractors. The CONTRACTOR agrees that the provisions of Chapter 3.12 of the Elgin Municipal Code, 1976, is hereby incorporated by reference, as if set out verbatim. ARTICLE VIII. ASSIGNABILITY. The CONTRACTOR shall not assign, sell or transfer any interest in THIS CONTRACT without prior written consent of the CITY. ARTICLE IX. AMENDMENTS. There shall be no modification of the CONTRACT,except in writing and executed with the same formalities of the original. ARTICLE X. NOTICES.Any notice given under this CONTRACT shall be in writing and shall be deemed to have been given when hand delivered or deposited in the U.S. mail, certified or registered, return receipt requested, addressed, if to CONTRACTOR, at the address set forth above to the attention of the project manager or 70 undersigned representative, and if to the City, to the attention of the City Manager, 150 Dexter Court, Elgin, IL 60120 or to such other address and/or authorized representatives as either party shall designate in writing to the other in the manner herein provided. ARTICLE XI. INDEMNIFICATION. To the fullest extent permitted by law, Contractor agrees to and shall indemnify, defend and hold harmless the City,its officers,employees, boards and commissions from and against any and all claims,suits,judgments,costs,attorney's fees,damages or any and all other relief or liability arising out of or resulting from or through or alleged to arise out of any acts or negligent acts or omissions of Contractor or Contractor's officers,employees,agents or subcontractors in the performance of this CONTRACT,including but not limited to,all goods delivered or services or work performed hereunder.In the event of any action against the City, its officers,employees,agents,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. ARTICLE XII. PUBLICITY. The CONTRACTOR may not use,in any form or medium,the name of the City of Elgin for public advertising unless prior written permission is granted by the CITY. ARTICLE XIII. AUTHORIZATION. This CONTRACT is in the best interests of the CITY and is authorized by law. If,for any fiscal year during the term of the CONTRACT,sufficient funds for the discharge of the CITY'S obligations under the contract are not appropriated and authorized,then the CONTRACT shall terminate as of the last day of the preceding fiscal year, or when such appropriated and authorized funds are exhausted, whichever is later, without liability to the CITY for damages, penalties or other charges on account of such termination. ARTICLE XIV. NO AGENCY. This CONTRACT shall not be construed so as to create a joint venture,partnership, employment or other agency relationship between the parties hereto, except as may be specifically provided for herein. ARTICLE XV. CONFLICT. In the event of any conflict between the terms provided in any attachments hereto and the body of this CONTRACT,the terms and provisions of this CONTRACT shall control. • ARTICLE XVI. ENTIRE AGREEMENT. This CONTRACT embodies the whole agreement of the parties. There shall be no promises, terms, conditions or obligations other than those contained therein; and this CONTRACT shall supersede all previous communications,representations,or agreements,either verbal or written,between the parties. The person signing THIS CONTRACT certifies that s/he has been authorized by the CONTRACTOR to commit the CONTRACTOR contractual and has been authorized to execute THIS CONTRACT on its behalf. IN WITNESS WHEREOF the parties have hereto set their hands the day and year first above written. CONTRACTOR CITY OF ELGIN Name and Title Olufemi Folarin City Manager FEIN NO. 5211 SPECIFICATION 1. NOTES TO BIDDERS Any deviations from the attached detailed specifications must be listed on a separate sheet and returned with your bid. The bidder certifies that his/her firm is not delinquent in the payment of any tax administered by the Illinois Department of Revenue unless there is a pending proceeding contesting the tax. For questions regarding these specifications and for arrangements to inspect the sites, contact Rich Hoke, Building Maintenance Superintendent at(847)-931-5650. A list of references for contracts of similar size and scope in the Chicago/Fox Valley area should be submitted with your bid. It is the intent of the City of Elgin to award separate contracts for each location. If there is any discount for awarding both sites it should be noted under voluntary alternates. The City of Elgin reserves the right to reduce the scope of work as necessary to meet its needs. 2. SCHEDULING It is the intent that this work begin as soon as contracts are fully executed. The successful bidder shall send the required 10-day notices to the appropriate agencies immediately upon receipt of a written notice of award. Weather will be considered by the Maintenance Department when monitoring job progress however the contractor should estimate weather delays into the estimated completion time. All work is to be scheduled through the Building Maintenance Department. Each site is to be started and completed before moving on to another site unless other arrangements are agreed to by both parties. All work will be scheduled between 7:00 AM and 5:00 PM Monday thru Friday. 3. EXAMINATION The contractor will be required to attend a pre-bid meeting to verify all existing conditions. Additional work required to provide a satisfactory and complete project will be performed by the contractor at no additional cost to the City of Elgin. 81 4. MATERIAL All materials must meet the specification. 5. CLEANING The contractor will maintain work area in as clean and orderly condition as possible during operation. All debris including, scraps, and packaging materials are to be removed from the work area daily. The contractor will be responsible for removal and lawful disposal of any hazardous materials such as solvents,paints and adhesives. The contractor will be responsible for cleaning any mud or debris tracked from the site onto the roadway immediately. The contractor will provide controls such as wetting to reduce the dust generated by the project. 6. CITY OF ELGIN EQUIPMENT • The bidding contractor will not be allowed to use any City of Elgin equipment such as but not limited to ladders, scaffolds, lifts, tools or vehicles. The contractor must provide all necessary equipment and tools to fully complete the job. 7. CERTIFIED PAYROLL The contractor must meet the requirements of the prevailing wage act. In addition, the contractor will provide a certified copy of the payroll to the City of Elgin with each pay request. 8. NOTIFICATION All Notifications for Demolition and Renovation will be postmarked or delivered to Illinois EPA at least 10 working days prior to the start of any job as required by the Federal NESHAP Regulations. All Notifications for Demolition and Renovation will be completed in full as required by the Federal NESHAP Regulations, including Section XVI. The contractor will be required to obtain the proper permits from the City of Elgin code administration for the demolition and from the City of Elgin and the State for any work in the roadway including lane closures. 9. REMOVAL OF SURFACE CONCRETE AND ASPHALT (All Items) It is the intent of these specifications that all concrete and asphalt surfaces(slabs,driveways, 82 walkways,parking lots,etc.)outside of the public right-of-way location shall be removed and then returned to final grade using the appropriate fill materials at the subject property. 10. BELOW GRADE BUILDING MATERIALS The demolition shall include the removal of all below grade walls,vaults,footings,slabs,and foundation walls unless specified to the contrary for a specific building or site. 11. FILL MATERIALS It is the intent of these specifications that the Contractor shall utilize earthen material of the type found on the property to bring all fill areas to final grade using materials suitable for growing placed in 8" loose lifts and compacted to within 95% of optimum density. After final grading is completed, topsoil will be added and the area shall be seeded by the Contractor according to the specification included in this document. 12. UTILITIES It is presumed that all utilities are presently connected at the location. It is the successful Contractor's responsibility to properly disconnect and/or coordinate the disconnection of all utilities at the location at the property line or easement location. All water services shall be abandoned back to the buffalo box and said box shall be raised to grade,if necessary,and shall be identified with a blue stake.All sanitary sewer services shall be abandoned back to the City sidewalk. Said abandonment shall consist of a sewer plug of the diameter of the services and said plug shall be secured in place by mortar or concrete. The terminus of each sanitary sewer service shall be identified with a green stake. 13. EROSION CONTROL The contractor will be responsible for providing erosion control on the property as needed to prevent any materials from leaving the property due to environmental conditions. Contractor shall submit erosion control and storm water pollution protection plan to City of Elgin Engineering Department prior to work commencing. On site records must be maintained in accordance with KDSWCD and NPDES permit requirements and available on site. All temporary control measures must comply with the requirements of the City of Elgin. 1. Products A. Straw bales, seasoned oat or wheat straw free of seed stalks and noxious weeds. B. Filter Fabric: non woven porous and polypropylene fabric. C. Silt barrier consisting of approved material. 83 SILT FENCE PLAN Filter Fabric Fastener - Mln. No. 1D Gage Wire 4 Per. Post Required, CTyp.) 5' Max (Typ) owl C e E— ti ELEVATIDN Filter Fabric �. 111reC t;an pF Tlaw Liocasturbed 4_Sne Compacted liackfilL MI in FABRIC ANCHOR DETAIL NOTES 1. Temporary sediment fence shall be Installed prior to any grading work In the area -to be protected. They shall be maintained -throughout -the construction period and removed In conjunction with the final grading and site stabilization, a. Filter fabric shaft meet the requirements of riaterial specification 592 Ge•otextlle Tabte 1. or 2, Class I with equivalent opening size of at Least 30 far nonwoven and 50 far woven. 3. Fence posts shall be either s-kandard steel post Dr woad posh: with a minlr*rum crass-sectlanal area. of 3.0 sq. In, REFERENCE 'OTANTARa 1YJIC+ N0. Pro ject IL-6E0 Designed Eats Checked late. SHEET 1 OF 2 kir am! DOTE L1-20-01 a STABILIZED CONSTRUCTION ENTRANCE PLAN C Existing ` Ground H Wash Rack I .. in (Opt tonal.) fir= 7t......" ';:t -ii-i..."-iii:',.. :III ! . Existing Lo` Min " ' Pavement Coarse Aggregate B _C E I.w Must Extend Full Width Positive Drainage , Of Ingress And Egress To Seoliment Operation. Trapping Device, PLAN VIE\'/ L = — 5" slope i.ii A 3' Existing n'•;+, pavement lt��il� ,.lr .glair.s,��-t47T4+C.0 i♦ w /�i�}tai!\♦�s*431ti;1447ZT ;T77MM M4S4 Ili rt#�+, ,�i 1\\� A Mountalaia Berr, Filter Fabric (DptionaL) ill Er I tIng Ground SIDE ELEVATION NOTES' 1 ,Filter fabric shall Meet the requirements of material specification 592 GE❑TEXTILE, Table I or 2, Class I1 II or ICI and shall be placed over the cleared area prior to -the placing of rock. 2,Rock or reclaimed concrete shall meet one of -the following ID❑T coarse aggregate gradation, CA-1, CA-2, CA-3 or CA-4 and be placed according to construction specification 25 RIOCKFILL using placement Method 1 and Class III compaction. 3 ny drainage facilities required because of washing shall be constructed according to manufacturers specifications, 4.If wash racks are used they shall be Installed according to the manufacturer's specifications. REFERENCE .!STAUDA E r'WIG. !ID. Project IL-630 Designed Date 13-etked Date a-m-T 1 OF 2 kpraved Date DATE 5-Le-94 14. SPECIAL CONDITIONS 1. Care of Work A. The Contractor shall be responsible for all damages to persons or property that occur as a result of his fault or negligence in connection with the prosecution of the work and shall be responsible for the proper care and protection of all work performed until completion and final acceptance,whether or not the same has been covered in whole or in part by payments made by the City of Elgin, Illinois. B. The Contractor shall avoid damaging sidewalks, streets,curbs,pavements,utilities, structures, and other property that is adjacent to the project site,which is on the site but is not scheduled for demolition, and which is on the site but has not yet been released to the Contractor for demolition purposes.He shall repair at his own expense and in a manner satisfactory to the City of Elgin any damage thereto caused by his operations. 2. Removal of Debris, Cleaning, Etc. All rubbish and debris found on the demolition area at the start of the work as well as that resulting from the demolition activities or deposited on the site by others during the duration of the contract shall be removed and legally disposed of by the Contractor who shall keep the project area and public rights-of-way reasonably clear at all times. Upon completion of the work the Contractor shall remove all temporary construction,equipment,salvaged materials, trash, and debris of all kinds leaving the entire project area in a neat condition. 3.Live Utilities and Other Property A. The Contractor shall assume all responsibility for damage attributable to him to any property upon, or passing through, the project area,but excluded from the work or not owned by the City of Elgin,Illinois,such as utility lines, surface improvements, or like items. B. If disconnections of underground utility services are required to be made in public thoroughfares, the Contractor shall comply with all local requirements and regulations respecting the proper permits, barricading of streets, the removal and restoration of pavement, and other pertinent matters. C. All sanitary sewer lines in the project area are to be plugged at the sewer right of way so that they are water tight. 4. Interpretation of Drawings Dimensions shown for buildings and other features are nominal and approximate,and the 86 Contractor shall verify all dimensions and materials to his own satisfaction before submitting his bid in the work. 15. TECHNICAL SPECIFICATIONS 1. Method of Work A. The method of demolition,site clearance, and the selection and disposal of salvaged materials will be at the Contractor's option,subject to full compliance with all local and state laws and with these specifications and contract documents. The method employed must be such as to avoid hazards to persons and property and interference with the use of adjacent buildings or interruption of free passage to and from such buildings.Care must also be taken to prevent the spread of dust and flying particles. B. No fires of any kind will be permitted in the contract area. BURNING OF WASTE LUMBER AND OTHER BUILDING MATERIALS OR TRASH ON THE SITE WILL NOT BE PERMITTED. C. The Contractor is prohibited from using any part or area of land or parcels within the area,outside of the actual Contract site, for his operations, for storage of material or equipment,or for disposal of waste or for any other purposes without consent of the City. Disposal of rubble,salvaged and waste materials,debris,and trash from within the Contract area shall be strictly in accordance with these specifications. Public streets,alleys,or other thoroughfares anywhere in the City used by the Contractor in carrying out this Contract shall at all times be kept free of litter attributable to him, and his trucks or other vehicles shall be so loaded and equipped as to prevent leakage,blowing off,or other escape of any portion of whatever is being hauled.Any cost incurred by the City in cleaning up such litter will be charged to the Contractor and shall be deducted from funds due or to become due him under this Contract. D. The Contractor shall furnish and erect all temporary sidewalks, fences, barricades, covers and temporary structures,and night warning lights necessary for to ensure safe conditions. They shall remove all such temporary structures upon the completion of work under this contract, all without additional compensation. 2. Demolition and Site Clearance Parcels A. No dwelling structure shall be removed from the premises as a whole, or in a substantially whole condition, but all such buildings shall be demolished on the premises. 87 B. Salvageable materials as determined by the Contractor shall be kept in orderly segregation as the work progresses, and all waste materials shall be promptly disposed of. All lumber containing nails shall be kept in compact piles. Littering of the site with such materials will not be permitted. C. No wall or part of any structure shall be permitted to fall outwardly onto street right- of-way from any building except through chutes or by other controlled means or methods which will insure safety and minimize dust,noise,and other nuisance.Any part of a building whether structural, collateral, or accessory, which has become unstable through removal of other parts shall be removed as soon as practicable,and no such unstable part shall be left free standing or inadequately braced against all reasonably possible causes of collapse at the end of any day's work. D. Building walls, including cross-walls, partitions, columns, piers, areaways, stair wells, chimneys, porches, steps and platforms, fuel storage supports, coal chutes, service or access walls, interior and exterior dock walls and floors, machinery and equipment foundations,and all similar structures and parts,shall be demolished and removed from the site. Floors over tunnels occurring under basement floors shall be broken out;and the tunnel shall then be treated in the same mariner as specified for basements. E. Final grade,when referred to in these specifications,means existing elevation of the ground surrounding a basement of the building or structures to be demolished. F. Concrete or brick floors of basements: Demolition shall include the removal of all below grade walls, vaults, footings, slabs, and foundation walls unless otherwise specified. All hazardous open pits and recesses, specifically the basements and partial basements, shall be filled with approved debris or other approved materials as required to completely eliminate the hazard. G. Sewers, stacks, or other sanitary ducts extending to or through the floors and slabs shall be sealed before general demolition to prevent debris from entering the sewer system unless final termination has been completed. Soil pipe and stacks shall be cut off neatly and shall be plugged with a suitable material that will enable the solid placing of not less than 8 inches of good, well tamped mortar in the open end of the pipe.If open sewer pipe clay,asbestos,or fiber is unearthed or exposed, it shall be plugged in the manner specified for soil pipes. The exposed end of any piping forming a part of a sanitary system shall not be left in such condition or position that it might subsequently be broken below the cap or plug. The Contractor shall install such fill of earth or concrete as is necessary to protect such piping against future loosening or breakage. 88 H. Concrete slabs on the ground,specifically the concrete floors of those structures not having basements, shall be removed. Paved driveways and concrete walkways outside the public right of way on the site shall be removed. J. Concrete and masonry rubble, plaster, or gypsum wallboard, and similar noncombustible materials no larger than 6" diameter may be used as debris fill for basements, or shall otherwise be removed from the site. K. All materials or objects of metal of any kind,including metal lath,shall be removed from the site, except that completely embedded reinforcing or small metal attachments to concrete or masonry used for debris fill need not be removed. Reinforcing bars,mesh,railings,poles,or metal inserts of any kind protruding from concrete or masonry above the final grade or adjacent ground shall be cut off as short as possible and removed from the site,and the remaining stubs shall be battered into a condition and positioned so as not to constitute a hazard to foot traffic or moving operations. L. Fences, guard rails, bumpers, signs, clothes lines, and similar facilities shall be completely removed from the site. Wood or metal posts for support of facilities covered by this paragraph shall be completely removed. M. Wood timbering, beams, sills, columns, piers, shores, or bracing occurring above ground, exposed in basements, or protruding from the exterior ground surface shall be removed and disposed of. Tables, benches, cabinets, shelving, and all other wooden articles in whatsoever condition, salvable or not, shall be removed from basements or other areas required to be filled. N. Trees,brushes and vegetation: Other than those listed as items to be demolished,no tree shall be removed,trimmed,or in any way altered without express written consent of the City.The Contractor shall protect and preserve all trees on and adjacent to the site during the entire demolition operation including clean up.Tree protection either by fencing or armoring shall be completed prior to the start of demolition work.The extent of fencing and armoring shall be determined by the City Engineer.No material shall be stored or demolition operation carried on within 20 feet of any tree designated to be saved. O. Building materials of noncombustible or slow burning nature not suitable for use as debris fill shall be removed from the site. This includes but is not limited to wood, fiber type wallboards, acoustical ceilings, insulating sheathing and sub-flooring, roofing and insulation sheathing and sub-flooring, and roofing and insulation materials of a granulated, roll or bat type. 89 P. Disposal of trash and waste building materials shall be at locations outside of the project area. Dumping must conform to all City, county and state regulations. The Contractor shall pay any and all fees for dumping. Q. Sidewalks boarding site area(in public right of way)shall be protected from damage by demolition equipment by planking or other suitable protective devices. 16. TOP SOIL QUALITY ASSURANCE 1.03 Submittals: A. Provide samples of imported materials proposed for use. PRODUCTS A. All imported and on-site material is subject to inspection and rejection by owner. B. Topsoil: Natural, friable, fertile soil characteristic of productive soil in the vicinity. Free of sticks,stones,clay lumps,roots,or other foreign matter greater than 1" in diameter. EXECUTION 3.01 Preparation A. Sub-grade will allow for an average of 6" depth of topsoil to be placed in all turf areas. Sub-grade surface will be free of exposed boulders or stones exceeding a dimension of 1"in all planting areas.Sub-grade condition will be approved by owner prior to the placement of topsoil. B. 6" of Topsoil will be placed on the site to ensure proper drainage and provide a even surface for either sod or seed. Topsoil will be compacted to 90% of the maximum dry density in accordance with ASTM D698 Standard Proctor Method. Fine grading of the site must be approved by the owner prior to sod or seeding operations commencing. 3.02 Finish Grading A. Uniformly distribute and spread topsoil. Use loose, dry topsoil. Frozenormuddy topsoil will not be accepted. 90 B. Fine grade topsoil to eliminate rough and low areas to ensure positive drainage throughout the site. Maintain tolerances of the sub-grade. 17. LAWNS AND GRASSES A. Provide turf areas to include the following work: 1. Soil preparation, fertilization, seeding or sodding. 2. Other areas of related work include temporary environmental controls and earth work. B. Site conditions: 1. Owner will approve final grade prior to this operation taking place. 2. Owner will receive a minimum of 2 days notice prior to seeding or sodding . 3.Perform grassing operations only after all other work affecting the ground surface has been completed. 4. Schedule seed installation when favorable weather conditions are present to ensure establishment. C. Execution: 1. Grade lawn areas to smooth, free draining condition with an even texture. 2. Loosen top 1/4 " of surface by racking or other means to prepare surface to ensure satisfactory soil seed contact. 3. Apply starter fertilizer 19-19-19 at a rate of 225 lbs per acre. 4. Apply seed mixture consisting of 60% Pearl II, perennial rye; and 40% Baron Kentucky blue grass. The blend trade name is QWICK START. Apply seed at a rate of 7 Lbs. per 1,000 square feet. Apply with rotary spreader or other technique approved by owner to ensure even coverage. At owners direction, annual rye maybe added to the site at a rate of 4 lbs. per 1,000 square feet to enhance the germination rate. 5. Lightly rake area after seed and fertilizer have been applied. 6. Roll surface with a light lawn roller to set seed at the site. 91 C. Maintenance 1. Maintain turf areas for a minimum of 30 days after substantial completion date. 2. Maintain lawn areas by watering, spot weeding, mowing and repairing eroded areas. 3. Reseed areas as directed by owner in order to produce an even stand of turf. D. Acceptance 1.Lawn areas will be acceptable provided all requirements have been complied with. an even color viable lawn is established for the owner. 18. PORTLAND CEMENT CONCRETE SIDEWALK, 5" Description of Work This work shall consist of the construction of Portland Cement Concrete Sidewalk — 5" on a prepared sub-grade in accordance with the appropriate articles of Section 424 of the Standard Specifications. Handicap ramps must be constructed in strict conformance with the attached detail. Failure to do so will result in the contractor paying for its removal and replacement. It shall be the contractor's responsibility to notify the City in the event that a specific location cannot be constructed as specified. Sub-grade Preparation After the existing sidewalk has been removed, the sub-grade shall be brought to the proper grade, as approved by the Engineer, by either excavation of additional material or the addition of an approved sub-grade material. Any tree roots or other obstructions shall be removed to a depth of 2"below the proposed sub-grade. Tree roots that need to be removed, as determined by the Engineering division, shall be removed only after the tree root has been saw cut at both ends. The sub-grade shall be rolled and tamped until thoroughly compacted. All soft or muddy areas shall be removed and replaced with approved sub-grade material. At locations where the sidewalk is constructed at driveways/entrances,the sidewalk shall be poured to the thickness of either 6"or 8" as determined by the Engineer,based on the usage requirements of the driveway. If the existing approach is thicker than 8", then the new sidewalk is to be poured at the same 92 thickness. This work shall be included in the cost of the P.C.C. SIDEWALK and no additional compensation will be allowed. Forms Side forms shall be of good quality lumber of not less than 2 inch nominal thickness or of steel of equal rigidity. They shall be held securely in place by stakes or braces. Under normal circumstances, the top of the forms shall be the top of the poured concrete. Exceptions to this shall be brought to the attention of the Engineer, for his approval,prior to the time of the concrete pour. Forms for the sidewalk aprons shall be set so that the slab will have a uniform fall between the sidewalk proper and the curb grade. Placing and Finishing Placing and finishing of the concrete shall be done in accordance with Article 426.06 of the Standard Specifications. Handicap access ramps shall be installed at all intersections unless otherwise directed by the Engineer. The finish of the concrete on the access ramp shall be as shown on IDOT Standard Detail#424001- 03 sheets one and two contained herein. No additional compensation shall be allowed for this work. Expansion Joints Expansion joints of the thickness specified below shall consist of preformed joint filler. The top of the joint shall be placed 1/4 inch below the surface of the sidewalk and extend down to the bottom of the concrete regardless of depth. 1. One-half inch thick expansion joint filler shall be placed between the sidewalk and all structures such as light standards, traffic light standards, traffic poles and telephone or power poles, which extend through the sidewalk. Water valves shall be boxed in(1' 0" square)with 1/2 "expansion joint filler. 2. Three-fourth inch thick expansion joint filler shall be placed as follows: a. Where the length of the new sidewalk is 15' or less, one piece of expansion joint filler at either end shall be required. b. Where the length of the new sidewalk is greater than 15', but less than 50', one piece of expansion joint filler at both ends shall be required. c. Where the length of the new sidewalk is greater than 50', one piece of expansion joint filler at both ends, and one additional piece for every full 50' increment thereof,placed at a maximum of 50' intervals shall be required. 3. Three-fourth inch wide preformed expansion joint filler shall be placed where the length of a new sidewalk abuts concrete driveways, drive approaches, carriage walks, courtesy walks,retaining walls, foundation walls or curb. 93 All locations where expansion joints are to be placed against existing concrete, the existing concrete shall be neatly saw cut so that the expansion joint filler will lay flush against the existing concrete. Care shall be taken when placing the concrete so that no concrete, stones, or other debris is allowed between the existing concrete and the expansion joint filler. Curing and Protection Curing and protection shall be in accordance with the appropriate articles of Section 1020.13 of the Standard Specifications as amended herein. P.C.C. SIDEWALK, 5"—ADA COMPLIANT (RED STAMPED CONCRETE) Description of Work This work shall conform to the specifications for P.C.C. Sidewalk in every means of fabrication, preparation, and finishing except as follows. The concrete shall be of red color throughout the mixture (no powders or additives will be allowed for the top portion of the poured concrete). The stamping shall comply with State of Illinois ADA requirements for handicap accessible sidewalk. Strict adherence to these requirements is mandated by the Illinois States Attorney and must be followed to the letter if not spirit of the law. P.C.C. Sidewalk, 5"—ADA Compliant (Red Stamped Concrete) shall also be required where sidewalk is to cross commercial (high volume) drive approaches. 94 • • Exhibit E- 1 Curb & Gutter - Detail NOTES - The base below any concrete to be poured shollbe tamped and ,sholi be free of any large chunks. Any soft areas shailbe removed and tilled with on approved material. - This curb detgliehorloopiy t any 86.18 or 86.24 curb & cutter repiaded or ploced on the to leof :p " • 4 o�; £xis1InQ P.C.C. ease Overdt from curb removalshaiibs cub o Odaittonooleompen atIon°`� shall pe made for thvS work. Sidewalk Detail 4' - 5` Typical •' Nordic to be bock/illed ;ti w/tobefa 1 to gre. • NOTE: • The base blow any concrete to be poured snallbe tompea ana sna11 be free of any lOrQe chunks, Any soft areas shone removed one filled with on approved material. - Any tree roots or other obstructions sholibe removed to a depth of 2'below the proposed subgrode. - Any overdig adjacent to sidewalks shaybe filled to the top of wok with t psoil. This shoo be done within 1 colender days of concrete Pour. his cost etio be considered Incidental to the cost of .C.C. 'Uwe*. • - Allwolk is to a poured to minimum depth of 5.4&" through drivewoysi regardless of existing conditions. 19. PROPERTY SPECIFIC ITEMS: 200 North Grove (Old Library): 2 P.' # ey k3 .' ,mod .4• , a+rw Temporary Fencing - The contractor will provide temporary security fencing at the site to prevent unauthorized access. The fencing is to remain in place until the final grading is complete. Basement Floor and Footings-All concrete floors and footings below grade are to be removed. Asphalt - Asphalt along north side of the building is to be removed to the curb line of the north parking lot. Fill should be tapered gradually from north parking lot elevation into the building site. 1,7 n t k P kc'� ` ,` _. ' - „ t C . i ~ r, virmeo le ,rgiftia,".,„, _ _ , . _ ,,L,.. ,..„. _.:„. sa r fig+ a .-4 "5y i P S S z,--Ft Y A .,3 t K r ate F t - 96 - Antenna—Remove antenna and base. • 7 i. Equipment Pad—Equipment to be •r ' -� salvaged by the City of Elgin. --- � .. Demolition contractor is to remove equipment pad and fencing. • • A •W Light Poles—Remove light poles and concrete bases near the end of the drive that are fed from the building. 14rttci:!w ..411 1nE s F,— 97 - Planters—Remove brick planters and stairs that are inside the property line. 4 , T 'T4.NIA •,. Fill on the site to use a compactable material such as crushed concrete, gravel and similar materials laid in 8" lifts and compacted to within 95% of its optimum density. Fill will be toped with a soil suitable for growing and dressed with topsoil and seed per the specifications. 279 N. Spring Street (House) V • tG , - e ..ti - .G, d y 4 4 ' rt.`r 6" of top soil and seed per the specification are to be added to this entire site. Transite siding to be removed by the City of Elgin prior to demolition - 98 - FILL MATERIALS SECTION 1.0 ACCEPTABLE MATERIALS A. Satisfactory soil materials are defined as those complying with ASTM D2487 soil classification groups GW, GP, GM, GC, SM, SW, SP, SC, ML and CL. B. Unsatisfactory soil materials are defined as those complying with ASTM D2487 soil classification groups MH, CH, OL, OH, and PT. C. Backfill and Fill Materials: Satisfactory soil material or reuse of building demolition materials and non-contaminated materials as directed and approved by the Owner or Engineer. D. All soils imported to the site for construction of engineered barriers, backfill for utility trenches,excavations,site grading,structural fill,etc.shall be clean material meeting Tier 1 residential clean up objectives as defined under 35 III. Adm. Code Part 742 (i.e., Illinois TACO Regulations). The Contractor shall provide documentation of the source of all fill materials including the location of the source, current and historic uses of the borrow source, current source site ownership and contact person, and soil classification. The Contractor will conduct analytical testing of the source materials to confirm compliance with the Tier 1 residential standards and provide analytical results to the owner a minimum of 3 days prior to importing the material to the site. If the analytical testing does not confirm compliance with Tier 1 residential standards, the Contractor will be required to obtain fill materials from alternative sources that comply with this specification. Contaminated soils shall be removed and disposed of as "special waste" or "hazardous waste" in compliance with all Federal, State and Local Codes, Federal and Illinois EPA Regulations. E. Fill for basement area or other excavation areas shall consist of satisfactory soil materials or demolition materials consisting of clean broken concrete,and masonry materials and such other non-combustible and inorganic materials as are approved by the Owner and/or Engineer. The fill material shall contain no appreciable amounts of organic or combustible materials and shall be placed so as to be reasonably compact with a minimum of voids. Clean slabs of concrete shall be reduced in size to four inches or less in any dimension of a surface before being placed as fill. The Contractor shall supply imported clean fill to be placed along with broken concrete fill in order to reduce the volume of voids in the fill. 2.0 METHODS OF PLACEMENT AND COMPACTION A. Surface Preparation: Remove debris,unsatisfactory soil materials,obstructions,and deleterious materials from excavated surface prior to placement of fill materials. Proof roll subgrades to be filled with a medium sized smooth drum self-propelled - 99 - roller or other acceptable equipment. Slowly roll equipment back and forth over entire subgrade. Make successive passes no greater than one-half the axle width from previous pass to insure thorough coverage of subgrade. Remove soft, loose, weak and unstable soils and replace with approved compacted fill materials. C. Place backfill and fill materials evenly adjacent to structures, piping, or conduit to required elevations. Prevent wedging action of backfill against structures or displacement of piping or conduit by carrying material uniformly around structure, piping, or conduit to approximately same elevation in each lift. D. The approved fill material shall be deposited, spread and leveled at a moisture content within 3% of optimum in layers generally not exceeding 12 inches in thickness before compaction, except that when the material being compacted is of granular nature and the compacting equipment is adaptable for the purpose, the thickness of the layer may be increased provided the required density is obtained. Moisture shall be added or the material shall be dried out as required to permit proper compaction. Clay fills also should be held to a moisture specification within 3 percent of the optimum moisture content. Compact fill to 95% of the maximum dry density determined in accordance with ASTM Test Designation D 698. E. It is the responsibility of the Contractor to provide all necessary compaction equipment and other grading equipment that may be required to obtain the specified compaction. Compaction by travel of grading equipment will not be considered adequate for uniform compaction. Hand guided vibratory or tamping compactors will be required whenever fill may be placed in confined areas. - 100 - EXHIBIT H-1 DEMOLITION DEDUCTION LIMITATION\ Demolition Scope Items: Library Building,pavement adjacent to building $307,500 *** Balance of Pavement/Curb $52,500 Utilities—removal $92,500 Power Shut-Off $6,500 Total Cost $459,000 (Demo Budget Est.) (Add)Remove Building Foundations * $31,000 Total Cost w/Found. Removal ** $490,000 Plus the costs for engineered fill specified by the Developer for the backfill of the existing basement. - 101 - OF Et ." G �_.. City of Elgin Agenda Item No. 0. '4'11100' September 22, 2006 -44 a TO: Mayor and Members of the City Council airmail),ail}'Srahle City Gmrrivnt FROM: Olufemi Folarin, City Manager William A. Cogley, Corporatio Counsel SUBJECT: Proposed development agreement with Water Street Place, LLC providing for the redevelopment of the former library property at 200 North Grove Avenue PURPOSE The purpose of this memorandum is to submit to the Mayor and members of the City Council a proposed development agreement with Water Street Place, LLC which would provide for the redevelopment of the former library building property at 200 North Grove Avenue. RECOMMENDATION It is recommended that the City Council approve the proposed development agreement. BACKGROUND The city-owned property in question is located at the southwest corner of Kimball Street and North Grove Avenue. The property is approximately 3.75 acres in size and consists of the former library property of 2.1 acres and the city parking lot immediately to the north. The city acquired the former library property from the Gail Borden Public Library in 2003 for a purchase price of$2,064,500. The city issued a request for proposals to developers on August 16, 2004. Such request for proposals requested proposals for a mixed use residential, retail and commercial project for the subject property. Several developers thereafter made proposals to city staff. These developers included Ryan Companies US and RSC & Associates, Toll Brothers and the Hummel Group. On April 27, 2005, the City Council preliminarily selected the development team of Ryan Companies US and RSC & Associates and directed staff to negotiate with this development team regarding a potential development agreement. Mayor and Members of the City Council Water Street Place, LLC September 22, 2006 Page 2 Attached is a proposed development agreement between the city and Water Street Place, LLC. Water Street Place, LLC is the development entity being created by Ryan Companies US and RSC &Associates for the development of the subject property. The developer's proposal for the redevelopment of the subject property and the development agreement may be summarized as follows: 1. The proposed redevelopment of the subject property would consist of a sixteen tower building which would have 146 residential condominiums, 8 townhouses, 237 private parking spaces, 90 public parking spaces to be owned by the city, and approximately 18,400 square feet of retail space at the street level of the building. The proposed redevelopment would also include four restaurant lots west of the new Water Street to be improved with not less than 18,000 square feet of restaurant space and not less than 2 nor more than 4 stand-alone restaurant buildings. The proposed redevelopment would also include the extension of a new Water Street through the subject property with approximately 72 street-level public parking spaces to be located on Water Street. A copy of the developer's redevelopment plan is attached to the development agreement as Exhibit D. Additional details regarding the redevelopment plan including such matters as the number of the various sized condominium units are set forth in Exhibit D-1 to the development agreement. Developer has estimated its construction and development costs for the subject redevelopment as being in excess of$66 million. 2. Section 2(a) of the development agreement provides the developer a feasibility period of up to 120 days to further study the subject property to determine the feasibility of definitively proceeding with the redevelopment of the subject property. 3. Section 2(b) of the development agreement requires the developer to provide to the City during the 120 day feasibility period further documentation that will demonstrate and validate to the City's reasonable satisfaction the projected estimated sales prices, lease rates and the sales absorption schedule for the subject redevelopment and the estimated tax increment revenue and sales tax revenue to be received by the City as a result of the redevelopment. The estimated sales prices, lease rates and sales absorption schedule will be set forth in Exhibit B of the development agreement. The estimated tax increment and sales tax revenues to be received by the City as a result of the proposed redevelopment are set forth in Exhibit B-1 to the agreement. Such estimated TIF revenue and sales tax revenue to be received by the City for the remainder of the Central Area TIF District ending in 2026 are $36,268,588 of TIF revenue and $3,044,207 of sales tax revenue for a total of $39,312,795. These TIF and sales tax revenues are based upon certain sale and lease price assumptions and sales absorptions assumptions of the developer. The further documentation developer is required to provide to the City consists of a market study for the redevelopment which shall analyze, among other matters, proposed sales prices, lease rates and the estimated sales absorption schedule for the redevelopment. Sales pricing analysis must include a comparable sales analysis. In the event developer fails to provide the developer with such documentation during the Mayor and Members of the City Council Water Street Place, LLC September 22, 2006 Page 3 120 day feasibility period, the City may terminate the agreement. In the event the developer does provide such documentation to the City and such documentation does not demonstrate and validate to the City's reasonable satisfaction the sales and leasing projections for the redevelopment or the estimated TIF increment revenue and sales tax revenue to be received by the City, the City may terminate the agreement by written notice to the developer within 45 days after the City's receipt of such documentation. 4. Section 3 of the development agreement provides for the city's conveyance of the subject property to the developer following the completion of the feasibility period. The city would be conveying the subject property to the developer for no monetary purchase price as part of the development incentives to the developer to redevelop the subject property with the referenced mixed use residential and commercial development. The closing of the conveyance of the subject property from the city to the developer would be subject to and contingent upon a number of conditions including: (a) Developer shall have procured its construction financing coupled with equity funding of the developer sufficient to complete the mixed use residential and commercial development. (b) Developer shall have entered into a guaranteed maximum price contract with '' Ryan Companies US for a specified guaranteed maximum price providing for the completion of the mixed use residential and commercial development. (c) Developer shall have achieved pre-sales of the residential condominium units to satisfy its construction lenders in order to close on the construction loan(s) simultaneously with the closing of the conveyance of the subject property from the city. (d) Developer and the city shall have agreed on the forms and terms of a subordinated option agreement whereby the city will have the right to reacquire the subject property in the event the developer fails to complete the redevelopment of the subject property as required in the development agreement. 5. Section 10(a) provides that the subject property is being conveyed by the city to the developer for the sole purpose of the developer redeveloping the subject property and constructing thereon the mixed use residential and commercial development described in the development agreement. Upon completion of the construction of the improvements on the property the developer will be required to dedicate and convey to the city at no cost the various new public improvements including the new Water Street Place and the 90 structured above-grade public parking spaces. 6. Section 10(b) provides that the development agreement is contingent upon the City Council adopting in its sole and exclusive discretion an ordinance or ordinances providing for the rezoning of the subject property authorizing the referenced mixed use Mayor and Members of the City Council Water Street Place, LLC September 22, 2006 Page 4 residential and commercial development on the subject property within 180 days after the entry into the agreement. The developer has previously filed Petition 33-06 requesting a map amendment from the CC 1 Center City District to a PCC Planned Center City District to allow for the mixed use residential and commercial development on the subject property in the ARC Arterial Road Corridor Overlay District. The Planning and Development Commission has previously conducted a public hearing on such petition and has recommended approval thereof. It is expected that the City Council will be presented with the consideration of such petition in the near future. In the event the council elects not to adopt such zoning ordinance or ordinances rezoning the subject property to allow for the proposed redevelopment, the agreement may be canceled by either party. 7. Section 10(d) requires the developer to commence construction of the mixed use residential and commercial development on the subject property within 180 days following the closing of the conveyance of the subject property from the city to the developer. 8. Section 10(e) requires the developer upon commencing construction of the project to continue to complete the construction of the project in an expeditious manner as is reasonably practicable but no later than 28 months after the commencement of construction. 9. Section 10(h) relates to the so-called outlots and the development thereon of restaurants. The outlots are the four lots located west of the new Water Street and are identified in the preliminary plat of subdivision as Lots 2, 3, 4 and 5. A copy of the preliminary plat of subdivision is also attached hereto. The developer is required to establish on the outlots not less than two no more than four stand-alone restaurants approved by the City Council containing not less than 18,000 square feet. The development and use of the outlots for restaurants is limited only to restaurants that are either listed in Exhibit E to the development agreement as an approved restaurant or as a restaurant of a type and caliber similar to any of the listing of approved restaurants as approved by the City Council in its sole reasonable discretion. A proposed restaurant to be located on the outlots requires approval by the City Council pursuant to an application to be submitted by the developer. 10. Section 10(i) specifies that certain uses shall not be permitted on the subject property. Such prohibited uses consists of: video stores; laundromats; currency exchanges; payday loan business; nail salons which are not accessory to a beauty shop; tanning salons which are not accessory to beauty shops; tax preparation business; dollar-type discount store; rental furniture store; automotive related uses including, but not limited to, motor vehicle service stations; car washes and motor vehicle repair shops; and fast food restaurants including, by way of example, but not limited to, McDonald's, Burger King, Wendy's, White Castle, Taco Bell, Subway, Kentucky Fried Chicken, Pizza Hut, A & W and Long ''' John Silvers. • Mayor and Members of the City Council Water Street Place, LLC September 22, 2006 Page 5 11. Section 12 provides for the development assistance from the city to the developer. In addition to the city agreeing to convey the subject property to the developer without a monetary purchase price the city would agree to pay the total amount of$10,842,494 to the developer as monetary development assistance. Such development assistance would be payable by the city to the developer in installments as set forth in the payment schedule attached to the development agreement as Exhibit F. Such payment schedule in Exhibit F may be summarized as follows: (a) The sum of$1,300,000 would be paid to the developer simultaneously with the closing of the conveyance of the property from the city to the developer. The city could deduct from such amount the city's costs to demolish the existing building on the subject property if the city provides for such demolition prior to closing. (b) The sum of$2,700,000 to be paid to the developer by June 1, 2007. The city's obligation to make such payment is subject to and conditioned upon the developer having commenced construction of the foundation of the Tower Building on the subject property on or before the construction commencement deadline. (c) The sum of$5,762,494 plus interest thereon at the rate of 9% per annum on the unpaid balance would be paid to the developer in installments from the TIF increment received by the city solely and only from the subject property. The city would make such installment payments annually upon receipt of the TIF increment from the subject property. At such date the stream of TIF increment being received by the city from the subject property on an annual basis was sufficient to amortize over twenty years the principal and interest due on such amount of $5,762,494 the city would pay the balance thereof to the developer likely through the issuance of debt. The city's obligation to make such payments is subject to and conditioned upon the developer having completed the mixed use residential and commercial development on the subject property on or before the completion date specified in the development agreement. (d) The sum of $1,080,000 as restaurant cash development assistance plus interest thereon at the rate of 9% per annum on the unpaid balance would be paid to the developer after the restaurants were established in installments from TIF increment received by the city solely and only from the subject property concurrently with the installment payments referred to in paragraph (c) above. The payment of incentives would be on a pro rata basis based on the percentage of the minimum required restaurant square footage established by the developer. For example, if the developer established 9,000 square feet of the 18,000 square feet of minimum required restaurant square footage the developer would be entitled to 50% of the restaurant cash development assistance. Such restaurant cash development assistance would also be subject to the acceleration and payment conditions for unpaid portion of the incentive referred to in paragraph (c) above. If by the third anniversary of the issuance of the first certificate of Mayor and Members of the City Council Water Street Place, LLC September 22, 2006 Page 6 occupancy for a residential condominium unit on the subject property the developer has not established the required restaurants on the outlots, the city would have the right to share with the developer the marketing rights to lease or sell the outlots. If any restaurant is established by the city in the exercise of such marketing rights there would be deducted from any incentives otherwise payable to the developer for restaurants any reasonable broker commissions or other incentives which the city may have agreed to pay third parties in order to procure the restaurant development in question. 12. Section 11 requires the developer to submit to the city for its review and approval a proposed declaration of condominium for the subject property. The declaration will include the creation and location of the above-grade structured 90 city-owned public parking spaces in the parking garage to be constructed as part of the tower. The location of the above-grade structured parking spaces are subject to the city's approval as part of the review of the condominium declaration and a separate easement and operating agreement for such public parking spaces. The condominium declaration is also required to include a provision whereby the percentage of the residential condominiums and townhome units to be constructed as part of the redevelopment of the subject property which can be leased at any one time shall be limited to 30%. 13. Section 13 provides in part that the mixed use residential and commercial development shall be maintained and remain on the subject property for a period of not less than 25 years. 14. Section 14 provides for limits on the developer's and its successors ability to seek reductions in the equalized assessed valuation of the subject property. 15. Section 15 provides for the city to provide offsite compensatory storage for the development at developer's cost. The city is currently in the process of designing a compensatory storage facility up stream on city-owned property on the Fox River. Developer's proportionate share of the costs for the offsite compensatory storage will be determined by the number of acre feet of offsite compensatory storage required by the developer for the subject redevelopment. 16. Section 16 provides the city the option to demolish the existing improvements on the subject property prior to the closing. The cost of such demolition by the city would be deducted from the initial incentive payment to be paid to the developer at the closing. COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED None. Mayor and Members of the City Council Water Street Place, LLC September 22, 2006 ' Page 7 FINANCIAL IMPACT The proposed incentive to the developer, Water Street Place LLC, totals $10,842,494 (of which $6,842,494 is subject to a 9% interest charge until it is paid off) plus the value of the property being conveyed. Property tax increment and sales tax generated by the development is estimated by the developer to be approximately $39.3 million. The fiscal impact analysis has yet to be completed awaiting receipt of requested information from the developer, Initial payments of $1.3 million (upon conveyance of the property) and $2.7 million (due June 1, 2007 and conditioned upon foundation construction) will be funded by the Central Area TIF Fund, account number 262-0000-791.92-32, Land Improvements, project number 039688. There are sufficient funds budgeted and available ($5,000,000) to enter into this agreement. WEGALIMPACT V, None. ALTERNATIVES 1. Approval of the development agreement for the proposed redevelopment as presented or in an amended form. 2. Do not approve the development agreement for the proposed redevelopment. 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