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93-177 Resolution No. 93-177 RESOLUTION AUTHORIZING EXECUTION OF A FOX RIVER TRUST AGREEMENT WITH ELGIN RIVERBOAT RESORT AND THE KANE COUNTY FOREST PRESERVE DISTRICT BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that George VanDeVoorde, Mayor, and Dolonna Mecum, City Clerk, be and are hereby authorized and directed to execute a Fox River Trust Agreement on behalf of the City of Elgin with Elgin Riverboat Resort and the Kane County Forest Preserve District, a copy of which is attached hereto and made a part hereof by reference. s/ George VanDeVoorde George VanDeVoorde, Mayor Presented: June 23, 1993 Adopted: June 23, 1993 Vote: Yeas 7 Nays 0 Recorded: Attest: s/ Dolonna Mecum Dolonna Mecum, City Clerk • FOX RIVER TRUST AGREEMENT THIS TRUST AGREEMENT is made this -DT‘"'r day of 1993, between Elgin Riverboat Resort, an Illinois general partnership, the City of Elgin, Illinois, an Illinois municipal corporation, collectively referred to as "Settlors" and the Forest Preserve District of Kane County, an Illinois municipal corporation, referred to herein as "Trustee" . 1 . TRUST PROPERTY. The Settlors will transfer and deliver to the Trustee the property listed in Schedule A, hereto annexed, upon the express terms and conditions and with the powers and limitations set forth herein. Additional property may from time to time be transferred by the Settlors or by any other person or persons to the Trustee with his consent, and such property shall thereupon become a part of the trust estate and shall be held, managed, invested, reinvested, and disposed of on the same terms and conditions as the property originally transferred. 2. DISPOSITIVE PROVISIONS. The Trustee shall hold, manage, invest, and reinvest the trust estate and shall collect and receive any interest, income, and profits for the use and benefit of the Fox River in Kane County, Illinois. The uses and benefits to be bestowed by the Trustee upon the Fox River shall be determined from time to time by the Trustee in its sole discretion, provided, however, that the Trustee shall use the trust funds only for purposes which it deems beneficial to the Fox River, its aquatic animal and plant life, or properties which immediately adjoin the banks of the Fox River. 3. TRUSTEE'S POWERS. Subject to the Trustee' s limitations imposed at law, the Trustee shall have the following powers and rights with respect to the trust property: (a) To hold any or all of the trust estate in the form of any investment in which received. (b) To sell at public or private sale, to mortgage, create a security interest in, pledge, or hypothecate, or to exchange or lease (including lease for a period extending beyond the term of this trust) , any stocks, notes, securities, real estate, minerals, and other trust property, upon such terms, for cash or credit, or both, as it may deem advisable. (c) To invest and reinvest the trust estate, without limitation to trust or chancery investments, in investments of any kind, real or personal, including, without limitation, stocks, bonds, notes, mortgages, lands, minerals, royalties, leaseholds, participations in partnerships, joint ventures, and other business enterprises . (d) To construct, add to, repair, or demolish (in whole or in part) any improvements upon any trust property. (e) To participate in any reorganization, consolidation, merger, or dissolution of any corporation, the stocks, bonds, or other securities of which may be held at any time as part of the trust estate and to receive and continue to hold any property that may be allocated or distributed to him by reason of participation in any such reorganization, consolidation, merger, or dissolution. (f) To make or hold investments or any part of the trust estate in common or undivided interests with other persons, corporations, or trusts . (g) To demand, receive, receipt for, sue for, and collect any and all rights, money, properties, or claims to which this trust may be entitled, and to compromise, settle, arbitrate, or abandon any claim or demand in favor of or against this trust. (h) To borrow funds for this trust in such amounts and for such purposes as to it shall seem for the best interest of this trust and the beneficiary thereof, and to purchase property on the credit of this trust, and, in connection with such borrowing or such purchase, to execute and deliver promissory notes or other evidences of indebtedness of this trust and to mortgage, create a security interest in, or pledge all or any part of the trust estate to secure payment of such indebtedness, and to repay such indebtedness out of the trust estate. (i ) To employ agents, legal counsel, brokers, and assistants, and to pay their fees and expenses, as he may deem necessary or advisable to carry out the provisions of this trust. (j ) To vote in person or by proxy any shares of stock which may form part of this trust. (k) To lend money to any person' or persons upon such terms, but with adequate interest and security, as it may deem advisable for the best interest of this trust and the beneficiary. (1) To elect, appoint, and remove directors of any corporation, the stock of which shall constitute trust property, and to act as a director and officer of any such corporation. 'For purposes of this agreement, a "person" shall be a "transferee municipality" pursuant to 50 ILCS 605/1 . (m) Generally, and without limitation by any specific enumeration in this Agreement, to manage, control, operate, convert, reconvert, invest, reinvest, sell, exchange, lease, mortgage, create a security interest in, pledge, pool, or otherwise encumber and deal with the property of this trust, for and in behalf of this trust and the beneficiary, to the same extent and with the same powers that any individual would have in respect to his own property and funds. (n) To act freely under all or any of the powers by this Agreement given to the Trustee in all matters concerning this trust, after forming its judgment based upon all the circumstances of any particular situation as to the wisest and best course to pursue in the interest of this trust and the beneficiary hereunder, without the necessity of obtaining the consent or permission of any person interested therein, or the consent or approval of any court, and notwithstanding that he may also be acting individually, or as trustee of other trusts, or as agent for other persons or corporations interested in the same matters, or may be interested in connection with the same matters as shareholder, director, or otherwise, provided, however, that it shall exercise such powers at all times in a fiduciary capacity primarily in the interest of the beneficiary. The powers granted to the Trustee shall be deemed to be supplementary to and not exclusive of the general powers of trustees pursuant to law, and shall include all powers necessary to carry the same into effect. 4. LIMITATION ON POWERS. Notwithstanding anything in this Agreement contained to the contrary, no powers enumerated herein or accorded to trustees generally pursuant to law shall be construed to enable the Settlors, or the Trustee, or any other person to purchase, exchange, or otherwise deal with or dispose of the principal or income of the trust for less than an adequate or full consideration in money or money' s worth,' or to enable the Settlors or the Trustee to borrow the principal or income of the trust, directly or indirectly. No person, other than the Trustee, shall have or exercise the power to vote or direct the voting of any stock or other securities of the trust, to control the investment of the trust either by directing investments or reinvestments or by vetoing proposed investments or reinvestments, or to reacquire or exchange any property of the trust by substituting other property of an equivalent value . 5 . SUCCESSOR TRUSTEE. The Trustee shall have the power at any time to designate a successor Trustee, as long as such TRUSTEE is a "transferee municipality" as defined under 50 ILCS 605/1 , and such successor Trustee shall have the same duties and powers as are assumed and conferred in this Agreement upon the Trustee, including the power in any successor to himself appoint a successor. Any appointment of a successor Trustee shall be made in writing, shall be acknowledged, and shall state the time or the event when such appointment shall take effect. A copy of such appointment shall be delivered to the Settlors, if then in existence, otherwise to their successors or assigns . Upon the failure of any Trustee to designate a successor, the Trustee shall be the County of Kane. 6 . BOND. No bond or other security shall be required of the Trustee or of any successor Trustee. 7 . IRREVOCABILITY. The trust shall be irrevocable, and the Settlors expressly acknowledge that it shall have no right or power, whether alone or in conjunction with others, in whatever capacity, to alter, amend, revoke, or terminate the trust, or any of the terms of this Agreement, in whole or in part, or to designate the persons who shall possess or enjoy the trust property, or the income therefrom. By this instrument the Settlors intend to and do hereby relinquish absolutely and forever all possession or enjoyment of, or right to the income from, the trust property, whether directly, indirectly, or constructively, and every interest of any nature, present or future, in the trust property or any subsequent contribution to the Trustee. S. THIRD PARTY BENEFICIARY; ENFORCEMENT RIGHTS. Settlors acknowledge that Trustee is intended to be a third party beneficiary to the obligation of Elgin Riverboat Resort, as set forth in Schedule A and, therefore, is expressly granted the right to pursue any and all financial obligations required to be made by Elgin Riverboat Resort, including the right to recover sums not paid as set forth in Schedule A. In witness whereof the Settlors and the Trustee have executed this instrument in duplicate the day and year first above-written. ELGIN RIVERBOAT RESORT, an Illinois •artnership . By: v i1 V1 - : _ - o - one of its General Partners RBG, L.P. , an Illinois limited partnership, one of its general partners f i By. , I Its: - p - • • - _ 8 - , - . - - HCCA Corporation, a Delaware corporation, its sol. gir er/1 partner By: Its: V ce Pre- ident KANE COUNTY FOREST PRESERVE CITY OF ELGIN • 111, i 1_20 I By: 61,7 ,,taa,"),,frziae_ ey A. er, President Mayor ATTEST: ATTEST: 4110 By: tl BY: LI Y (4-vvv"-- ' -obert Quinlan, Secretary City Clerk CHEDULE "A" TO FOX RIVER TRUST AGREEMENT Agreement made this day of 1993, by and between Elgin Riverboat Resort, an Illinois general partnership, RBG, an Illinois limited partnership, and HCCA Corporation, a Delaware corporation, (collectively referred to as "ERR" ) and the City of Elgin, Illinois a municipal corporation ( "Elgin") . WITNESSETH: WHEREAS, ERR and Elgin have this day entered into an agreement relating to the use of certain real property located on or near the East side of the Fox River Bank, between North Avenue and Lake Street, Elgin, Illinois which property is more particularly described on Exhibit "A" attached hereto and incorporated herein by reference ("Easement Area") ; and, WHEREAS, ERR has agreed to make certain payments to a trust fund to be established jointly by ERR and Elgin for the benefit of the Fox River, generally with the Forest Preserve District of Kane County to act as Trustee; and, WHEREAS, the payments are to be made over a twelve year interval by ERR to the Forest Preserve District of Kane County as Trustee. NOW, THEREFORE, in consideration of the mutual covenance contained herein and other good and valuable consideration in hand paid, receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: • • 1 . Document Execution. Elgin will this day execute documents sufficient to permit ERR reasonable access sufficient to undertake a riverboat gambling facility located on and adjacent to the Easement Area. 2. Fox River Fund Contributions. ERR shall make the following contributions to a fund established for the benefit of the Fox River to the Forest Preserve District of Kane County, as Trustee, namely, FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($500, 000 .00) per year for twelve years and shall be payable as follows: ON OR BEFORE AMOUNT first anniversary' $500, 000. 00 second anniversary $500, 000. 00 third anniversary $500, 000. 00 fourth anniversary $500, 000.00 fifth anniversary $500, 000 .00 sixth anniversary $500, 000 . 00 seventh anniversary $500, 000.00 eighth anniversary $500, 000.00 ninth anniversary $500, 000. 00 tenth anniversary $500, 000. 00 eleventh anniversary $500, 000 .00 twelfth anniversary $500, 000. 00 This obligation shall occur only if ERR obtains those federal, state, and local permits required to operate a riverboat gambling facility and is operating a riverboat consistent with Illinois law. 3. Recovery of Costs and Enforcement of payment obligations. In the event ERR should default in making any payment as set forth in paragraph two above, Elgin may proceed to recover all sums remaining unpaid from ERR, and in addition to recovery of such sums, Elgin shall be entitled to recover as additional amounts due hereunder, its reasonable costs and attorney's fees incurred. 4. Governing Law. This agreement shall be governed by the law of the State of Illinois. 5 . Venue. For purposes of enforcement of this agreement, the parties hereto agree that venue shall properly lie in Kane County, Illinois. 6 . This agreement is binding upon the parties, their successors and assigns, jointly and severally. '"anniversary" denotes the date of final approval of an Illinois gaming license. s , IN WITNESSETH WHEREOF, the undersigned have hereunto set their hands and seals on the day and year first above written. ELGIN RIVERBOAT RESORT, an Illinois partnership By: Its: RBG, L.P. , an Illinois limited partnership, one of its general partners By: Its: HCCA Corporation, a Delaware corporation, its sole general partner By: Its: Agreement made this day of , 1993, by and between Elgin Riverboat Resort, an Illinois general partnership, RBG, an Illinois limited partnership, and HCCA Corporation, a Delaware corporation, (collectively referred to as "ERR") and the City of Elgin, Illinois a municipal corporation ("Elgin" ) . WITNESSETH: WHEREAS, ERR and Elgin have this day entered into an agreement relating to the use of certain real property located on or near the East side of the Fox River Bank, between North Avenue and Lake Street, Elgin, Illinois which property is more particularly described on Exhibit "A" attached hereto and incorporated herein by reference ("Easement Area") ; and, WHEREAS, ERR has agreed to make certain payments to a trust fund to be established jointly by ERR and Elgin for the benefit of the Fox River, generally with the Forest Preserve District of Kane County to act as Trustee; and, WHEREAS, the payments are to be made over a twelve year interval by ERR to the Forest Preserve District of Kane County as Trustee. NOW, THEREFORE, in consideration of the mutual covenance contained herein and other good and valuable consideration in hand paid, receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1 . Document Execution. Elgin will this day execute documents sufficient to permit ERR reasonable access sufficient to undertake a riverboat gambling facility located on and adjacent to the Easement Area. 2. Fox River Fund Contributions. ERR shall make the following contributions to a fund established for the benefit of the Fox River to the Forest Preserve District of Kane County, as Trustee, namely, FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($500, 000. 00) per year for twelve years and shall be payable as follows: ON OR BEFORE AMOUNT first anniversary' $500,000.00 second anniversary $500, 000. 00 third anniversary $500, 000. 00 fourth anniversary $500, 000.00 fifth anniversary $500, 000 .00 sixth anniversary $500, 000 .00 seventh anniversary $500,000.00 eighth anniversary $500, 000.00 ninth anniversary $500, 000.00 tenth anniversary $500, 000.00 eleventh anniversary $500, 000.00 twelfth anniversary $500,000.00 This obligation shall occur only if ERR obtains those federal, state, and local permits required to operate a riverboat gambling facility and is operating a riverboat consistent with Illinois law. 3. Recovery of Costs and Enforcement of payment obligations. In the event ERR should default in making any payment as set forth in paragraph two above, Elgin may proceed to recover ' all sums remaining unpaid from ERR, and in addition to recovery of such sums, Elgin shall be entitled to recover as additional amounts due hereunder, its reasonable costs and attorney's fees incurred. 4. Governing Law. This agreement shall be governed by the law of the State of Illinois. 5 . Venue. For purposes of enforcement of this agreement, the parties hereto agree that venue shall properly lie in Kane County, Illinois. 6 . This agreement is binding upon the parties, their successors and assigns, jointly and severally. "'anniversary" denotes the date of final approval of an Illinois gaming license. • IN WITNESSETH WHEREOF, the undersigned have hereunto set their hands and seals on the day and year first above written. ELGIN RIVERBOAT RESORT, an Illinois partnership By: -bs: Vice resid nt of the Sole General Partner of one of its General Partners RBG, L.P. , an Illinois limited partnership, one of. its general partners / By: 6`1 Presient of its Sole General Par$ - HCCA Corporation, a Delaware corporation, its sole • - a/ partner By: " Its: Vie Presi• /nt CITY OF Ej IN: By: We Mayor / ATTEST: By: 141 City Clerk • •