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HomeMy WebLinkAbout98-245 - Resolution No . 98-245 RESOLUTION AUTHORIZING EXECUTION OF A DEVELOPMENT AGREEMENT WITH PANCOR CONSTRUCTION & DEVELOPMENT, L.L.C . ( 21-29 S . Grove Avenue) BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Kevin Kelly, 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 PanCor Construction & Development, L.L.C . for the development of the Burritt Building at 21-29 S . Grove Avenue, a copy of which is attached hereto and made a part hereof by reference . s/ Kevin Kelly Kevin Kelly, Mayor Presented: September 23, 1998 Adopted: September 23, 1998 Vote : Yeas 6 Nays 0 Attest : s/ Dolonna Mecum Dolonna Mecum, City Clerk 1-1 '("4 6"1•G`, COX Agenda Item Na () c‘ City of Elgin -RITMO- September 8, 1998 TO: Mayor and Members of the City Council FROM: Joyce A. Parker, City Manager SUBJECT: Development Agreement with PanCor Construction and Development L.L.C. for Redevelopment of Burritt Building PURPOSE To submit to the City Council a proposed development agree- ment with PanCor Construction and Development L.L.C. regard- ing the redevelopment of the Burritt Building located at 21-29 S . Grove Avenue. BACKGROUND PanCor Construction and Development has proposed to redevelop the Burritt Building at 21-29 S. Grove Avenue. In connection with this redevelopment PanCor has requested financial assis- tance from the city and an easement for parking spaces in the city-owned parking lot adjacent to the NBD building. Attached is a proposed development agreement between the City and PanCor Construction and Development . The development agreement may be summarized as follows : 1 . PanCor shall acquire the Burritt Building at 21-29 S. Grove Avenue on or before December 31, 1998 . 2 . PanCor shall redevelop the property to Class A office facilities commencing on or before May 1, 1999, to be completed no later than December 31, 1999 . 3 . The City shall provide PanCor the sum of $330, 000 as development assistance payable as follows : A. $165, 000 shall be paid when 6 , 700 gross square feet of the building is leased to tenants not currently occupying the building. B. $165, 000 shall be paid when an additional 13,400 square feet of the building is leased to - tenants not currently tenants of the building. C. No such development assistance shall be paid prior to January 2, 1999 . , . Development Agreement with PanCor September 8, 1998 Page 2 D. The City' s obligation to pay the development assis- tance is contingent upon PanCor acquiring title to the property on or before December 31 , 1998 , and commencing with the redevelopment of the property on or before May 1, 1999 and completing same no later than December 31, 1999 . E . The City shall grant to PanCor a parking easement in the form attached as Exhibit A to the develop- ment agreement. The parking easement provides for an easement of eighty-two ( 82 ) parking spaces in the city-owned lot south of the NBD building. The parking spaces would be reserved Monday through Fridays from 8 : 00 a.m. to 5 : 00 p.m. PanCor would pay an up-front fee of $16 ,000 for the parking and waive any right to the enterprise zone abatement of real estate taxes for the subject property. For each 1,000 square feet of rented square footage within the Burritt Building the City will designate four (4 ) reserve parking spaces for PanCor' s use. PanCor will be permitted to mark the parking spaces with signs designating that the parking spaces are reserved from Monday through Friday from 8 :00 a .m. to 5 : 00 p.m. When 20, 000 square feet or more of the Burritt Building is leased PanCor would be entitled to the total of eighty-two (82) parking spaces . The City may thereafter request certifica- tion as to the total rented square footage within the Burritt Building, and if, based on such certifi- cation, the amount of rented square footage has decreased, the number of parking spaces would be adjusted downwards in accordance with the formula herein described. F. The City will construct two staircases leading from the existing NBD parking lot up to South Grove Avenue . G. In the event the City constructs a parking deck on the NBD property the City can relocate the PanCor reserved parking spaces to other locations within the parking deck. H. In the event the City discontinues public parking on the NBD property the City may relocate the PanCor reserved parking to the Riverside Parking Deck or at the City' s election to another site within a comparable distance of the Burritt Build- ing. In the event the PanCor reserved parking is relocated -to the Riverside Parking Deck the City must construct a walkway not less than twenty-four (24 ) feet wide from the Riverside Parking Deck to South Grove Avenue. • • ' ' Development Agreement with PanCor September 8, 1998 Page 3 The proposed development agreement does not require any assistance to PanCor for upgrading the water service or sanitary sewer service to the Burritt Building property. COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED The attorney for Pancor. FINANCIAL IMPACT The economic development incentive request totals $330, 000 . Funding is available within the Riverboat Lease Fund within the Economic Development Initiative Program and the Fox Bluff Corporate Center Fund. Modifications to the current 1998-2002 Financial Plan will be required. VOIXEGAL IMPACT None . ALTERNATIVES Not to proceed with the project. RECOMMENDATION Approval of the proposed development agreement with PanCor Construction and Development L.L.C. Aectfully submi ed, &• J4Pre 1 Parker ty Manager WAC/nr Attachments r October 27, 1998 MEMORANDUM TO: Loni Mecum, City Clerk FROM: William A. Cogley, Corporation Counsel SUBJECT: Development and Parking Easement Agreement with Pancor Regarding 21-29 South Grove Avenue Attached for the city clerk' s files is an originally executed copy of the above-referenced agreement. Peter Bazos, the attorney for Pancor, is arranging for the recording of the parking easement agreement. WAC mg Attachment , • DEVELOPMENT AGREEMENT This Agreement, made and entered into as of this 23rd day of September, 1998 by and between the City of Elgin, an Illinois municipal corporation (hereinafter referred to as "City") and Pancor Construction & Development, L.L.C., an Illinois limited liability company (hereinafter referred to as "Pancor"). RECITALS A. Pancor has executed a contract giving it the right to acquire that parcel of real estate commonly known as 21-29 South Grove Avenue, Elgin, Illinois and legally described as on Exhibit 1 attached hereto (the "Real Estate"). B. The Real Estate is improved with a 5-story building (the "Building"), the upper four floors of which have never been completed or used. C. Pancor intends to renovate the exterior of the Building and to upgrade and improve the interior of the Building so that the entire five floors become rentable and in compliance with applicable codes and ordinances (all of such work being hereinafter called the "Renovation Work"). An approximate budget showing the Renovation Work (together with costs associated with Tenant Improvements) is attached hereto as Exhibit 2. D. Pancor has determined that it is not economically feasible for it to acquire the Real Estate and to perform the Renovation Work on the Building, unless the City provides (i) the Development Assistance and (ii) the Parking Easement as more particularly described and on the conditions set forth below. E. The City is desirous of having Pancor acquire the Real Estate and perform the Renovation Work and is, therefore, willing to make available such Development Assistance and Parking Easement all as set forth herein. F. By providing the Development Assistance and Parking Easement, the Renovation Work performed on the Real Estate will restore same to economic vitality, thereby resulting in a substantial increase in the City's tax base, provide numerous new and additional employment opportunities, bring additional business to downtown Elgin (thereby resulting in substantial additional sales tax revenue for the City) and otherwise generally benefit the City and its citizens as a whole. W\WORMY:484\6 2 G. The City is a home rule unit authorized to exercise and perform any function relating to its government and affairs. H. The Development Assistance and Parking Easement requested of the City by Pancor, resulting, as it will, in the Renovation Work, will ultimately result in significant increases in the City's tax base and employment opportunities and, as such, are matters within the government and affairs of the City of Elgin. CONSIDERATION In consideration of the mutual promises and undertakings contained herein and of other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, the parties hereto agree as follows: AGREEMENT 1. Incorporation of Recitals. The Recitals set forth above are hereby incorporated herein in their entirety. 2. Development Assistance. The City shall provide to Pancor the sum of $330,000.00 (the "Development Assistance") payable on the following terms and subject to the following conditions: (a) The Development Assistance shall be paid to Pancor as follow: (i) $165,000.00 shall be paid by the City to Pancor when 6,700.00 gross square feet of the Building is leased to tenants not currently occupying the Building; and (ii) The $165,000.00 balance of the Development Assistance shall be paid by the City to Pancor when an additional 13,400 gross square feet of the Building is leased to tenants not currently tenants of the Building. (b) No such Development Assistance shall be paid prior to January 2, 1999. (c) The City's covenant to pay the Development Assistance shall be deemed cancelled unless Pancor shall acquire title to the Real Estate on or before December 31, 1998. w\WORIC\30484\6 2 2 (d) Additionally, the City's obligation to pay the Development Assistance shall be conditioned upon the commencement by Pancor of the Renovation Work on or before May 1, 1999 and the completion of same not later than December 31, 1999. 3. Parking Easement. (a) Simultaneously with Pancor's acquisition of title to Real Estate, the City shall grant to Pancor that Parking Easement in the form attached hereto as Exhibit 3 (the "Parking Easement"). (b) The City's obligation to grant the Parking Easement shall be null and void unless Pancor shall acquire title to the Real Estate on or before December 31, 1998. (c) Additionally, the City's obligation to grant Reserved Parking Spaces under the Parking Easement shall be conditioned upon the commencement by Pancor of the Renovation Work on or before May 1, 1999 and the completion of same not later than December 31, 1999. 4. Additional PanCor Covenants. In consideration of the Parking Easement provided by the City to PanCor as described above, Pancor does hereby covenant and agree as follows: (a) To forever waive any right to claim any so-called "Enterprize Zone" abatement of any portion of the real estate taxes levied against the Real Estate and payable to the City (estimated to have a monetary value to the City of $10,000 per year). Notwithstanding the foregoing, it is agreed and understood that Pancor shall retain the right to contest (object to) and seek a reduction of the assessed valuation of the Real Estate through nog legal channels as otherwise available to any real estate tax payer. (b) To pay to the City the sum of $16,000.00 upon PanCor being assigned the first four Earned Parking Spaces under the Parking Easement Agreement. 5. Miscellaneous. (a) Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally or mailed by registered or certified mail (return receipt requested) to the parties at the W WORK\3048416 2 3 following addresses (or such other addresses for a party as shall be specified by like notice), and shall be deemed received on the date on which so hand-delivered or on the second (2nd) business day following the date on which so mailed: To the City: City Elgin 150 Dexter Court Elgin, Il 60120 Attn: City Manager with copy to: City of Elgin 150 Dexter Court Elgin, Il 60120 Attn: Corporation Counsel To Grantee: PanCor Construction & Development, L.L.0 600 Tollgate Rd., Suite D Elgin, Il 60123 Attn: Richard M. Panichi With a copy to: Schnell, Bazos, Freeman & Kramer Attn: Peter C. Bazos, Esq. 1250 Larkin Avenue Elgin, Illinois 60123 (b) Severability. If any one or more of the provisions contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions hereto, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision and not been contained herein; provided however, that if permitted by applicable law, any invalid, illegal or unenforceable provision may be considered in determining the intent of the parties with respect to the provisions of this Agreement. (c) Non-waiver. The failure by a party to enforce any provision of this Agreement against the other party shall not be deemed to be a waiver of the right to do so thereafter. W\WORK\30484\6 2 4 (d) Modification of Agreement. This Agreement may be modified or amended only in a writing signed by both of the parties hereto, or their successors or assigns, as the case may be. (e) Captions. The paragraph captions are inserted for convenience of reference and are in no way to be construed as a part of this Agreement or as a limitation on the scope of the paragraphs to which they refer. (f) Entire Agreement. This Development Agreement, together with the Parking Easement Agreement, contains the entire agreement and understanding of the Owner and the City with respect to the subject matter set forth herein, all prior agreements and understandings having been merged herein and extinguished hereby. (g) Incorporation of Parking Easement Agreement. The provisions of the Parking Easement Agreement are by this reference incorporated herein. To the extent that any provision of the Development Agreement conflicts with any provision hereof, the former shall govern. (h) Incorporation of Recitals and Exhibits. The recitals to this Agreement, as well as all Exhibits attached hereto, are by this reference incorporated herein. (i) Joint Preparation. This Agreement is and shall be deemed and construed to be the joint and collective work product of the City and Grantee and, as such, this Agreement shall not be construed against either party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, in the terms or provisions contained herein. (j) Law Governing. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois. In any legal proceeding between the parties hereto, venue shall exclusively lie in the Sixteenth Judicial Circuit of Kane County, Illinois. Each party hereby waives any objection it may have to commencement or transfer of any such proceeding to either of said venues and hereby affiiiiiatively consents to same. W WORK130484\6 2 5 (k) Successors. This Agreement shall inure to the benefit of, and shall be binding upon the parties hereto and their respective successors, assigns and grantees. Further, upon any conveyance of ownership of the Real Estate by PanCor or its successors (in either case the "Grantor"), the party making such conveyance shall be relieved of any further liability or obligation accruing hereunder from and after the date of such conveyance and the party receiving such conveyance shall assume all rights and obligations of the Grantor. (1) Time of the essence. Time shall be of the essence of this Agreement. (m) No joint venture. This Agreement shall not be deemed or construed to evidence or create an employment, joint venture,partnership or other agency relationship between the parties hereto. CITY OF ELGIN, a Municipal PANCOR CONSTRUCTION & Corporation DEVELOPMENT, L.L.C. By: By: Kevin Kelly, Mayor Richard M. Panichi Attest: Donna Mecum, City Clerk W\WORK\30484\6.2 6 EXHIBIT Legal Description PARCEL ONE: THE EASTERLY 20.85 FEET MEASURED ALONG THE NORTH LINE OF THAT PART OF LOT 6 AND 7 IN BLOCK 15 OF THE ORIGINAL TOWN OF ELGIN ON THE EAST SIDE OF FOX RIVER, DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF SAID LOT 6; THENCE NORTHWESTERLY ALONG THE WESTERLY LINE OF SAID LOT 59.59 FEET FOR A POINT OF BEGINNING. THENCE NORTHEASTERLY ALONG A LINE FORMING AN ANGLE OF 89 DEGREES 45 MINUTES 36 SECONDS, MEASURED FROM SOUTHEAST TO NORTHEAST FROM THE WESTERLY LINE OF SAID LOT 6, A DISTANCE OF 111.58 FEET TO A LINE 35.15 FEET WEST OF AND PARALLEL WITH THE EAST LINE OF LOT 7; THENCE NORTH ALONG SAID PARALLEL LINE 22.34 FEET TO THE NORTH LINE OF LOT 7; THENCE WEST ALONG THE NORTH LINE OF LOTS 7 AND 6 TO THE NORTHWEST CORNER OF LOT 6; THENCE SOUTHEASTERLY ALONG THE WESTERLY LINE OF LOT 6 TO THE POINT OF BEGINNING, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. PARCEL TWO: THAT PART OF LOTS 6 AND 7 IN BLOCK 15 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER, DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF SAID LOT 6; THENCE NORTHWESTERLY ALONG THE WESTERLY LINE OF SAID LOT 59.59 FEET FOR A POINT OF BEGINNING; THENCE NORTHEASTERLY ALONG A LINE FORMING AN ANGLE OF 89 DEGREES 34 MINUTES 36 SECONDS, MEASURED FROM SOUTHEAST TO NORTHEAST FROM THE WESTERLY LINE OF SAID LOT 6, A DISTANCE OF 111.58 FEET TO A LINE 35.15 FEET WEST OF AND PARALLEL WITH THE EAST LINE OF LOT 7; THENCE NORTH ALONG SAID PARALLEL LINE 22.34 FEET TO THE NORTH LINE OF LOT 7; THENCE WEST ALONG THE NORTH LINE OF LOTS 7 AND 6 TO THE NORTHWEST CORNER OF LOT 6; THENCE SOUTHEASTERLY ALONG THE WESTERLY LINE OF LOT TO THE POINT OF BEGINNING, (EXCEPT THE EASTERLY 20.85 FEET MEASURED ALONG THE NORTH LINE), IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. Permanent Tax Identification No.: 06-14-434-012 Property Address: 21-29 South Grove Avenue, Elgin, Illinois \\ \1/4 OH is30484\I IPetcr B.it itt Building-Elgin,Illinois Date: August 11,1998 Total Rentable Building Area: 28,625 Land Area: • Current Item Budget P/S/F SOFT COSTS SHELL BUILDING: Shell Building Purchase $450,000.00 $15.72 ArchitecturaUStructuraUMEP(Shell Bldg) $25,000.00 $0.87 FRWRD Fees $17,500.00 $0.61 . Building Permit Fees(Shell Bldg) $0.00 $0.00 Impact Fees $0.00 $0.00 Construction Loan Fee $17,000.00 $0.59 Construction Loan Closing Costs $12,000.00 $0.42 Construction Interest $60,000.00 $2.10 End Loan Fee $17,000.00 $0.59 End Loan Closing Costs $12,000.00 $0.42 Environmental $5,000.00 $0.17 Title Costs and Misc.Legal $15,000.00 $0.52 Real Estate Taxes $12,000.00 $0.42 Contingency $18,750.00 $0.66 Miscellaneous Partnership Expense(SHELL) S5,000.00 S0.17 Subtotal $666,250.00 $23.28 SOFT COSTS TENANT IMPROVEMENTS: Commissions $49,500.00 $1.73 AdvertisinglMarketinglSignage 515,000.00 $0.52 ArchltecturalMEP(Tenant Improvements) $12,000.00 $0.42 Building Permits(Tenant Improvments) $0.00 $0.00 Legal(Leasing) $6,000.00 S0.21 Space Planning $3,500.00 $0.12 Miscellaneous Partnership Expense(T!) $2,000.00 $0.07 Subtotal $88,000.00 $3.07 BASE BUILDING IMPROVEMENTS Elevator/shaft/structural $92,000.00 $3.21 Electrical/Fire Alarm/Security $82,100.00 $2.87 HVAC $146,050.00 $5.10 Plumbing $53,624.50 $1.87 Sprinkler $79,798.50 $2.79 Roofing $73,542.50 $2.57 Glass S Glazing $185,435.00 $6.48 Asbestos Abatement $14,720.00 $0.51 Gyp-Crete Sub-Floor $79,005.00 $2.76 Masonry Repair/Cleaning/Restoration $135,574.65 $4.74 Washrooms-Floors 2.5 $95,358.00 $3.33 Lobby Improvements $32,430.00 $1.13 Facade Improvements $87,400.00 $3.05 Stairwell $60,950.00 $2.13 Mechanical Storage/Garage $14,375.00 $0.50 Miscellaneous Carpentry $28,750.00 $1.00 Repairs/maintenance/demo boiler $18,400.00 $0.64 Parking Lot Improvements $16,000.00 $0.56 Subtotal $1,279,513.15 544.70 TENANT IMPROVEMENTS-FLOORS 2.5 $543,800.00 $19.00 Subtotal • $2,593,563.15 $90.60 EXHIBIT Credit/Subsidy from City of Elgin ($330,000.00) ($11.53) 2 Total 52,253,563.15 579.08 ) ) Grantee: ) PanCor Construction & Development, LLC ) Attn: Richard M. Panichi ) 600 Tollgate Rd., Suite D ) Elgin, II 60123 ) ) Mail To: ) Schnell, Bazos, Freeman & Kramer ) Attn: Peter C. Bazos, Esq. ) 1250 Larkin Avenue ) Elgin, Illinois 60123 ) PARKING EASEMENT AGREEMENT THIS PARKING EASEMENT AGREEMENT is entered into this 23rd day of September , 1998, by and between the City of Elgin, an Illinois municipal corporation (hereinafter referred to as the "City") and Pancor Construction& Development, L.L.C., an Illinois limited liability company (hereinafter referred to as "Pancor" or "Grantee"). RECITALS: WHEREAS,pursuant to that certain Development Agreement dated September 23 , 1998 between Grantee and the City (the "Development Agreement"), the City did agree to grant to Grantee a certain Parking Easement (as hereafter defined) over one of two specified properties owned by the City and more particularly determined and described below(the "Easement Parcel") if Grantee would acquire and redevelop that parcel of commercial property within the City's downtown area as more particularly described on Exhibit 1 attached hereto ("Grantee's Parcel"); and WHEREAS, Grantee did subsequently purchase Grantee's Parcel in reliance on the incentives and covenants contained in the Development Agreement; and WHEREAS, the City is and will be directly benefitted by the development of the Grantee's Parcel as contemplated in the Development Agreement; NOW, THEREFORE, in consideration of the mutual observance of the covenants, terms, and conditions contained in the Development Agreement and herein, and of other good and W\WORK V30484\7 2 valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties do hereby agree as follows: EASEMENT AGREEMENT: 1. Grant of Easement. (a) As used herein the following terms shall have the following meanings: (i) "Easement Parcel" shall mean whichever of the Primary Easement Parcel or the Secondary Easement Parcel may be subject to the Parking Easement herein created, as determined herein. (ii) "Primary Easement Parcel" shall mean that parcel of land formerly owned by NBD Bank, currently owned by the City, legally described as on Exhibit 2 attached hereto and designated as "Primary Easement Parcel" on the Site Plan attached hereto as Exhibit 4. The southern-most 296.67 feet (as measured along the South Grove Avenue right-of-way) of the Primary Easement Parcel, upon which is currently located a parking lot at the same grade as Riverside Drive, shall hereinafter be called the "South Portion", and the remainder of the Primary Easement Parcel shall hereinafter be called the "North Portion". (iii) "Secondary Easement Parcel" shall mean that parcel of land currently owned by the City, commonly known as the "Riverside Parking Deck", legally described as on Exhibit 3 attached hereto and designated as "Secondary Easement Parcel" on the Site Plan attached hereto as Exhibit 4. (iv) "Permitted Users" shall mean the Grantee and its employees, agents, tenants, and invitees. The parties acknowledge that the Parking Easement herein created is for the exclusive use of the aforementioned Permitted Users in connection with their respective use and/or occupancy of the Grantee's Parcel and, as such, Grantee covenants and agrees that it shall have no right to sell or otherwise assign any of its rights under the Parking Easement to parties who have no association with the said Grantee's Parcel. (b) Subject to the Relocation Rights and Involuntary Termination Rights of the City as set forth below and to the other terms and provisions hereof, the City does hereby grant to Grantee the right and easement ("Parking Easement"), without fee W\WORK\3048417 2 2 ,„. or charge beyond that consideration paid by Grantee as specified in paragraph 4 of the Development Agreement to: (i) Park up to 82 vehicles of the Grantee or its Permitted Users on the Easement Parcel in vehicular parking spaces designated and reserved to Grantee (each such space being hereinafter referred to as a "Reserved Parking Space"); and (ii) Have unrestricted use of and access to such Reserved Parking Spaces and over the streets and driveways of the City intended to serve as access to the Easement Parcel during the hours of 8:00 a.m. to 5:00 p.m. on Monday through Friday of each week. (c) The Parking Easement shall apply to not more than a total of 82 Reserved Parking Spaces. Grantee shall earn Parking Easement rights as to such Reserved Parking Spaces in increments, as follows: For each 1000 square feet of rented square footage within the building on the Grantee's Parcel ("Building") the City shall designate four (4) contiguous Reserved Parking Spaces ("Earned Parking Spaces") on the Easement Parcel for Grantee's exclusive use under this Agreement. Grantee shall be permitted to (A) mark same with signs designating that such Earned Parking Spaces are "Reserved" for Grantee or its Permitted Users from Monday through Friday during the hours of 8:00 a.m. to 5:00 p.m. and (B) enforce its rights to such Earned Parking Spaces by having unauthorized vehicles towed away at the expense of the violator. (ii) Grantee shall have the right to periodically certify to the City as to the leasing of additional space within the Building, and within seven (7) days following such certification the City shall award such additional Earned Parking Spaces as may be required hereunder. (iii) As additional reserved parking spaces are Earned by Grantee, they shall be placed adjacent and contiguous to all previously Earned Parking Spaces. (iv) When 20,000 square feet or more of the Building is leased, Grantee shall: (A) Be entitled to a total of eighty-two (82) Earned Parking Spaces; and W\WOFt.M30484\7 2 3 (B) Have use of the Primary Easement Parcel (until such time, if any as the City shall have exercised its Relocation Rights as herein provided); and (v) Periodically, but not more frequently than every six (6) months, the Grantee shall, at the City's request, certify as to the total rented square feet within the Building and if, based upon such certification, the number of amount of rented square footage has decreased, the number of Earned Parking Spaces shall be adjusted in accordance with the formula set forth in paragraph 1(b)(i) above. (d) Unless and until the City shall have exercised its Relocation Rights as hereinafter provided, the Parking Easement rights of the Grantee shall burden the South Portion of the Primary Easement Parcel. 2. Permanent Nature of Easement. Subject to the provisions of this Agreement, the Parking Easement granted hereby is to be held by the Grantee and its successors, assigns and grantees as appurtenant to the Grantee's Parcel and shall run with the Grantee's Parcel forever, subject only to Relocation Rights and Involuntary Termination Rights as herein expressly provided in paragraph 4 below. 3. Additional Covenants of the City. Throughout the term of this Agreement the City shall: (a) Keep the Easement Parcel in such condition as to safely accommodate vehicular parking, and periodically re-stripe the Easement Parcel as needed for the clear identification of parking stalls; and (b) For so long as the South Portion of the Primary Easement Parcel shall be burdened with the Parking Easement, construct and maintain (i) two stairways allowing pedestrian access from the sidewalk along the westerly right-of-way line of South Grove Avenue to the South Portion of the Primary Easement Parcel and (ii) cause the South Portion of the Primary Easement Parcel to be adequately lighted in the evening; and (c) Remove from the Easement Parcel accumulations of snow and ice in accordance with the City's usual and customary "plowing" policies and procedures; and (d) Reasonably cooperate with the Grantee in preventing the violation of Grantee's rights hereunder by third parties; and W WORFC004 8417 2 4 (e) Refrain from taking any action the natural consequence of which will be to deny to Grantee and its Permitted Users the use and enjoyment of the Parking Easement rights contemplated herein. 4. Involuntary Termination and Relocation . (a) For purposes hereof, the Building shall be deemed to be "Vacant" when (i) no tenants occupy the Building and (ii) the City shall have given Grantee written notice of the absence of all tenants ("Vacancy Notice"). The Parking Easement herein granted and conveyed shall permanently terminate upon (A) the Vacancy of the Building and (B) the failure of the Grantee to use good faith and commercially reasonable efforts to restore the Building to an occupied condition. (The City's right of termination shall hereinafter called the "Involuntary Termination Rights") (b) The City shall have the right (hereinafter called "Relocation Rights") to relocate the Easement Parcel from the South Portion of the Primary Easement Parcel to the following alternate locations on the following terms and conditions: (i) The City may exercise its Relocation Rights so as to move the Parking Easement from the South Portion of the Primary Easement Parcel to the North Portion of the Primary Easement Parcel or, alternatively, from the lower level of the South Portion of the Primary Easement Parcel to any parking deck hereafter constructed above same by City. (ii) If the City permanently discontinues all public parking on the Primary Easement Parcel, the City may, pursuant to the exercise of its Relocation Rights, relocate the Easement Parcel from the Primary Easement Parcel to the Alternate Easement Locations (hereafter defined). As used herein, the term "Alternate Easement Locations" shall mean: (A) The Secondary Easement Parcel; or (B) Such other parcel of property owned by the City which is located not more distant from the front door of the Grantee's Parcel as is the Secondary Easement Parcel, and as to which direct, safe and lighted pedestrian access is continuously available. (iii) Upon not less than ninety (90) days' prior written notice by the City to Grantee of the occurrence of an event allowing the City to exercise its relocation rights, the City may relocate the Parking Easement as herein provided, but only if and on the conditions that: W:\WORK\30484\Z2 5 (A) Grantee receives the same number of Earned Parking Spaces at the relocated site of the Parking Easement as Grantee previosly enjoyed; and (B) All of Grantees Earned Parking Spaces are at all times contiguous to each other and, if such relocation is to the Secondary Easement Parcel, are located within the area on the Secondary Easement Parcel designated as "Possible Relocation Area" on the Site Plan attached hereto as Exhibit 4; and (C) If such relocation is to the Secondary Easement Parcel, the City constructs at its own expense and at all times maintains a lighted pedestrian walkway of not less than 24 feet in width ("Walkway). The Walkway shall commence at a point along the western-most sidewalk along South Grove Avenue somewhere within fifty feet (50') of the north or south boundaries of the Primary Easement Parcel and leading directly to the Secondary Easement Parcel so as to provide safe and convenient access to the Secondary Easement Parcel by tenants of the Building. (D) Grantee retains all of the other rights with respect to the use and enjoyment of the Earned Parking Spaces at the relocated location of the Parking Easement as Grantee had and enjoyed at the site of the Parking Easement before such relocation. 5. Insurance. Grantee hereby agrees to at all times during the exercise and enjoyment of its Parking Easement rights hereunder keep and maintain a policy of general liability in force, insuring against liability from death, bodily injury or property damage in the combined single limit of not less than $2,000,000.00 and naming the City as an additional insured. 6. Miscellaneous Provisions. (a) Covenant of Ownership and Authority. the City covenants and warrants unto Grantee that the City is the sole owner of the Easement Parcel and has the full right, title, capacity and authority to grant the Parking Easement granted herein and that the consent of any other person or entity is not necessary for the execution and performance of this Agreement. (b) Compliance with Applicable Laws. Each party covenants and represents that it has all requisite power and authority to enter into and perform this Agreement. W:\WORKU048417 2 6 (c) Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally or mailed by registered or certified mail (return receipt requested) to the parties at the following addresses (or such other addresses for a party as shall be specified by like notice), and shall be deemed received on the date on which so hand-delivered or on the second (2nd) business day following the date on which so mailed: To the City: City Elgin 150 Dexter Court Elgin, Il 60120 Attn: City Manager with copy to: City of Elgin 150 Dexter Court Elgin, II 60120 Attn: Corporation Counsel To Grantee: PanCor Construction & Development, L.L.0 600 Tollgate Rd., Suite D Elgin, Il 60123 Attn: Richard M. Panichi With a copy to: Schnell, Bazos, Freeman & Kramer Attn: Peter C. Bazos, Esq. 1250 Larkin Avenue Elgin, Illinois 60123 (d) Severability. If any one or more of the provisions contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions hereto, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision and not been contained herein;provided however,that if permitted by applicable law, any invalid, illegal or unenforceable provision may be considered in determining the intent of the parties with respect to the provisions of this Agreement. (e) Non-waiver. The failure by a party to enforce any provision of this Agreement against the other party shall not be deemed to be a waiver of the right to do so thereafter. w WOFtiCkl 048417 2 7 (f) Modification of Agreement. This Agreement may be modified or amended only in a writing signed by both of the parties hereto, or their successors or assigns, as the case may be. (g) Captions. The paragraph captions are inserted for convenience of reference and are in no way to be construed as a part of this Agreement or as a limitation on the scope of the paragraphs to which they refer. (h) Entire Agreement. This Parking Easement Agreement, together with the Development Agreement, contains the entire agreement and understanding of the Owner and the City with respect to the subject matter set forth herein, all prior agreements and understandings having been merged herein and extinguished hereby. (i) Incorporation of Development Agreement. The provisions of the Development Agreement are by this reference incorporated herein. To the extent that any provision of the Development Agreement conflicts with any provision hereof, the former shall govern. (j) Incorporation of Recitals and Exhibits. The recitals to this Agreement, as well as all Exhibits attached hereto, are by this reference incorporated herein. (k) Joint Preparation. This Agreement is and shall be deemed and construed to be the joint and collective work product of the City and Grantee and, as such, this Agreement shall not be construed against either party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, in the terms or provisions contained herein. (1) Law Governing. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois. In any legal proceeding between the parties hereto,venue shall exclusively lie in the Sixteenth Judicial Circuit of Kane County, Illinois. Each party hereby waives any objection it may have to commencement or transfer of any such proceeding to either of said venues and hereby affirmatively consents to same. (m) Successors. This agreement shall inure to the benefit of, and shall be binding upon the parties hereto and their respective successors, assigns and grantees. Further, upon any conveyance of ownership of the Grantee's Parcel by Grantee or its successors (in either case the "Grantor"), the party making such conveyance shall be relieved of any further liability or obligation accruing hereunder from and after the date of such conveyance and the party receiving such conveyance shall assume all rights and obligations of the Grantor. w'\WORK'30484\72 8 CITY OF ELGIN, a Municipal PANCOR CONSTRUCTION & Corporation DEVELOPMENT, L.L.C. By: By: Kevin Kelly, Mayor Richard M. Panichi Attest: QQ4-Y1,41te ht—e--ekt-2-,-- D®lonna Mecum, City Clerk STATE OF ILLINOIS ) ) SS COUNTY OF KANE ) I, the undersigned, a Notary Public in and for said County and State aforesaid, do hereby certify that RICHARD M. PANICHI, personally known to me to be a President of the PANCOR CONSTRUCTION & DEVELOPMENT, L.L.C., an Illinois limited liability company, and personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that as such President he signed and delivered the said instrument, pursuant to authority given by the said limited liability company, as his free and voluntary act, and as the free and voluntary act and deed of said limited liability company, for the uses and purposes therein set forth. Given under my hand and official seal, this 2-31 day of 74- I, "IV- AP STATE OF ILLINOIS ) ss. "OFFICIAL SEAL" _ COUNTY OF KANE ) PETER C. BAZOS • *NARY PUBLIC,FAX OF BEFORE ME, the undersigned Notary Pu ,,',�_,, ,,:., .p: 1_t , � lifted in and for said County and State, personally came and appeare s ;41i . OR OF THE CITY OF ELGIN AND DELONNA MECUM, CLERK OF THE CITY OF ELGIN, each known to me to be the Mayor and City Clerk, respectively, and acknowledged to me, that they with the w.\WORK\30484v 2 9 authority of the City Council of the City of Elgin, signed and executed the foregoing Parking Easement Agreement as the free and voluntary act and deed of the City of Elgin, and for the objects and purposes therein set forth. Given under my hand and notarial seal this 23 day of September , 1998. NOTARY PUBLIC Prepared by: 4"AktWAst.VAtit^-0,0 Schnell, Bazos, Freeman & Kramer 4 NANCY ROLL Peter C. Bazos, Esq. 4 NOTAW PUBLIC, STATE OF ILLINOIS 0 1250 Larkin Avenue 4 My Commission Expires Aug. 10, 2001 NrIrlIrliv WNW'Mr Nir 111/11, Elgin, Illinois 60123 (847)742-8800 EXHIBIT 1 GRANTEE'S PARCEL (BURRITT BUILDING LEGAL) W\WORK\30484\7 2 10 EXHIBIT 1• Legal Description PARCEL ONE: THE EASTERLY 20.85 FEET MEASURED ALONG THE NORTH LINE OF THAT PART OF LOT 6 AND 7 IN BLOCK 15 OF THE ORIGINAL TOWN OF ELGIN ON THE EAST SIDE OF FOX RIVER, DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF SAID LOT 6; THENCE NORTHWESTERLY ALONG THE WESTERLY LINE OF SAID LOT 59.59 FEET FOR A POINT OF BEGINNING. THENCE NORTHEASTERLY ALONG A LINE FORMING AN ANGLE OF 89 DEGREES 45 MINUTES 36 SECONDS, MEASURED FROM SOUTHEAST TO NORTHEAST FROM THE WESTERLY LINE OF SAID LOT 6, A DISTANCE OF 111.58 FEET TO A LINE 35.15 FEET WEST OF AND PARALLEL WITH THE EAST LINE OF LOT 7; THENCE NORTH ALONG SAID PARALLEL LINE 22.34 FEET TO THE NORTH LINE OF LOT 7; THENCE WEST ALONG THE NORTH LINE OF LOTS 7 AND 6 TO THE NORTHWEST CORNER OF LOT 6; THENCE SOUTHEASTERLY ALONG THE WESTERLY LINE OF LOT 6 TO THE POINT OF BEGINNING, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. PARCEL TWO: THAT PART OF LOTS 6 AND 7 IN BLOCK 15 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER, DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF SAID LOT 6; THENCE NORTHWESTERLY ALONG THE WESTERLY LINE OF SAID LOT 59.59 FEET FOR A POINT OF BEGINNING; THENCE NORTHEASTERLY ALONG A LINE FORMING AN ANGLE OF 89 DEGREES 34 MINUTES 36 SECONDS, MEASURED FROM SOUTHEAST TO NORTHEAST FROM THE WESTERLY LINE OF SAID LOT 6, A DISTANCE OF 111.58 FEET TO A LINE 35.15 FEET WEST OF AND PARALLEL WITH THE EAST LINE OF LOT 7; THENCE NORTH ALONG SAID PARALLEL LINE 22.34 FEET TO THE NORTH LINE OF LOT 7; THENCE WEST ALONG THE NORTH LINE OF LOTS 7 AND 6 TO THE NORTHWEST CORNER OF LOT 6; THENCE SOUTHEASTERLY ALONG THE WESTERLY LINE OF LOT TO THE POINT OF BEGINNING, (EXCEPT THE EASTERLY 20.85 FEET MEASURED ALONG THE NORTH LINE), IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. Permanent Tax Identification No.: 06-14-434-012 Property Address: 21-29 South Grove Avenue, Elgin, Illinois EXHIBIT 2 PRIMARY EASEMENT PARCEL PARCEL ONE: LOTS 1, 2, 3, 4, 5 AND 6 AND PART OF LOT 10 OF B. W. RAYMOND'S SUBDIVISION OF LOTS 1, 3, 4 AND 5 OF BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER; LOTS 1, 2 AND PART OF LOT 3 OF MCOSKER'S SUBDIVISION OF LOTS 7, 8, 9, 10 AND 10 1/2 OF B. W. RAYMOND'S SUBDIVISION OF LOT 1 IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, AND THAT PORTION OF LAND LYING BETWEEN LOT 9 AND FOX RIVER; ALSO PART OF THE VACATED ALLEY LYING ON THE SOUTHERLY PORTION OF SAID MCOSKER'S SUBDIVISION; ALSO PART OF LOT 2 IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER; ALL OF THE FORGOING BEING DESCRIBED AS A TRACT AS FOLLOWS: BEGINNING AT A POINT IN THE SOUTHERLY LINE OF THE NORTHERLY 22 FEET OF LOT 2 IN BLOCK 21 AFORESAID, 95 FEET SOUTHWESTERLY, MEASURED ALONG SAID SOUTHERLY LINE, FROM THE WESTERLY LINE EXTENDED OF LOT 4 OF B. W. RAYMOND'S SUBDIVISION; THENCE NORTHWESTERLY PARALLEL WITH SAID WESTERLY LINE EXTENDED OF SAID LOT 4 A DISTANCE OF 42 FEET; THENCE NORTHWESTERLY TO A POINT ON THE WESTERLY LINE OF LOT 2 OF MCOSKER'S SUBDIVISION 105 FEET NORTHWESTERLY FROM THE SOUTHWESTERLY CORNER THEREOF; THENCE NORTHWESTERLY ALONG THE WESTERLY LINE OF LOT 2 OF MCOSKER'S SUBDIVISION TO THE NORTHWESTERLY CORNER THEREOF AND THE SOUTH LINE OF CHICAGO STREET; THENCE EAST ALONG SAID SOUTH LINE OF CHICAGO STREET TO THE WESTERLY LINE OF GROVE AVENUE; THENCE SOUTHEASTERLY ALONG SAID WESTERLY LINE OF GROVE AVENUE TO THE SOUTHEAST CORNER OF LOT 2 IN BLOCK 21 AFORESAID; THENCE WESTERLY ALONG THE SOUTHERLY LINE OF SAID LOT 2 TO THE EASTERLY LINE OF RIVERSIDE AVENUE; THENCE NORTHERLY ALONG SAID EASTERLY LINE TO THE POINT OF BEGINNING, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. PARCEL TWO: LOT 11 AND THAT PART OF LOT 28 LYING EASTERLY OF THE EASTERLY LINE OF RIVERSIDE AVENUE AND THAT PART OF THE VACATED ALLEY LYING BETWEEN SAID LOTS 11 AND 28, ALL IN B. W. RAYMOND'S SUBDIVISION OF LOTS 1, 3, 4 AND 5 OF BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. PARCEL THREE: THAT PART OF LOTS 12 AND 27 IN B. W. RAYMOND'S SUBDIVISION OF LOTS 1, 3, 4 AND 5 IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER, AND THE VACATED ALLEY LYING BETWEEN SAID LOTS 12 AND 27, LYING BETWEEN THE WESTERLY LINE OF SOUTH GROVE AVENUE, AND THE EASTERLY LINE OF RIVERSIDE AVENUE, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. PARCEL FOUR: LOTS 13, 14, 15, 16, 23, 24, 25 AND 26 AND THE VACATED 20 FOOT ALLEY ADJOINING SAID LOTS IN B. W. RAYMOND'S SUBDIVISION OF LOTS 1, 3, 4 AND 5 IN BLOCK 21, OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. PARCEL FIVE: LOTS 17, 18, 21 AND 22 (EXCEPT THAT PART OF SAID LOTS, IF ANY, FALLING WITHIN RIVERSIDE AVENUE) OF B. W. RAYMOND'S SUBDIVISION OF LOTS 1, 3, 4 AND S IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER IN THE EAST FRACTION OF SOUTHEAST 1/4 OF SECTION 14, TOWNSHIP 41 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN; ALSO, ALL THAT PART OF AN ALLEY 20 FEET WIDE (NOW VACATED) IN SAID SUBDIVISION, WHICH LIES BETWEEN SAID LOTS 21 AND 22, AND SAID LOTS 17 AND 18 AND SOUTH OF THE NORTH LINE OF SAID LOTS AND NORTH OF THE SOUTH LINE OF SAID LOTS EXTENDED ACROSS SAID ALLEY, ALL IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. PARCEL SIX: LOTS 19 AND 20 AND THE VACATED 20 FOOT ALLEY LYING BETWEEN SAID LOTS IN B. W. RAYMOND'S SUBDIVISION OF LOTS 1, 3, 4 AND 5 IN BLOCK 21 OF THE ORIGINAL TOWN OF ELGIN, ON THE EAST SIDE OF FOX RIVER, (EXCEPT THAT PART LYING WEST OF THE EASTERLY LINE OF RIVERSIDE AVENUE AS ESTABLISHED BY PLAT RECORDED SEPTEMBER 22, 1885 IN BOOK 7, PAGE 13) , IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS. EXHIBIT 3 SECONDARY EASEMENT PARCEL That portion of Riverside Avenue located South of the South line of Chicago Street and North of the North line of Prairie Street, in the East Half of the Southeast Quarter, Section 14 , Township 41 North, Range 8 East of the Third Principal Meridian, in the City of Elgin, Kane County, Illinois . See Pope 06-/40 o*+a;'• �,� .T ! '. . , 1++1 i 1 1 i•s SUBDIVISION REFERENCE aA ' .lot' l ? yD"<,'° $ `'"-CH/CAGO ,ST. �`. "'� : : A`"� t'�`�, aim _ 314 f t i �r- $ i$ 8181 �'ota Jr KtYeeu s.aA c.. .\ �aa{'1 V IQ\l' 1/riMh� "TT i I .Iw ' -0R31.J.KAT• S V 0Vti `L ' yl� ��iR al 111 �I� 8� _..�,/+ yam~'•, YC OSKER'S 9V8. .,T' \i 4\40,,, ' Vilti..°:''. 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