98-289 Resolution No. 98-289
RESOLUTION
AUTHORIZING EXECUTION OF AN AMENDED AND RESTATED
GROUND LEASE AGREEMENT WITH ELGIN RIVERBOAT RESORT
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 an
Amended and Restated Ground Lease Agreement on behalf of the
City of Elgin with Elgin Riverboat Resort for the riverboat
gaming facility within the City of Elgin, a copy of which is
attached hereto and made a part hereof by reference.
s/ Robert Gilliam
Robert Gilliam, Mayor Pro Tem
Presented: December 2, 1998
Adopted: December 2, 1998
Omnibus Vote: Yeas 4 Nays 0
Attest :
*Now s/ Dolonna Mecum
Dolonna Mecum, City Clerk
I
AMENDED AND RESTATED
GROUND LEASE AGREEMENT
AMENDED AND RESTATED GROUND LEASE AGREEMENT ("Lease") made and
entered into this 2nd day of December , 1998, but effective for all purposes as of the 20th
day of January, 1994, between the City of Elgin, Illinois, an Illinois municipal corporation
(hereinafter referred to as the "Landlord"), and Elgin Riverboat Resort, an Illinois joint venture
consisting of Nevada Landing Partnership and RBG, L.P., as its joint venture partners
(hereinafter referred to as the "Tenant").
RECITALS
A. Landlord and Tenant have heretofore entered into a certain Development
Agreement dated as of June 24, 1992 ( the "Original Development Agreement") contemplating
the establishment of a riverboat gaming facility along the Fox River on certain property owned
in fee simple by the Landlord. The Original Development Agreement has heretofore been
amended by (i) a certain Amendment to Development Agreement dated as of June 23, 1993, (ii)
a certain Second Amendment to Development Agreement and Ground Lease Agreement dated
as of January 20, 1994, and (iii) a certain Third Amendment to Development Agreement and
Ground Lease dated as of June 9, 1994. The Original Development Agreement as so amended
is referred to herein as the "Development Agreement."
B. Pursuant to the provisions of the Development Agreement, Landlord and Tenant
have heretofore entered into that certain Ground Lease Agreement as of January 20, 1994 (the
Ground Lease Agreement, together with relevant provisions of the Development Agreement
amending the same, being herein referred to as the "Original Lease"), which Original Lease
governs certain aspects of Tenant's rights and obligations vis a vis Landlord with respect to
Tenant's construction and operation upon the Demised Premises (hereinafter described) of
entertainment and support facilities for Tenant's adjacent Riverboat Gambling Operation
(hereinafter described).
C. In consideration of (i) the various agreements and undertakings of the parties as
set forth in the Third Amendment to Development Agreement and Ground Lease dated as of
June 9, 1994, (ii) Tenant's agreement with Landlord to provide financial support and expertise
to Landlord for certain additional public improvement projects as described in the Development
Agreement, and (iii) other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, Landlord and Tenant have agreed to amend and restate the Original
Lease on the terms and conditions hereinafter provided.
DEFINITIONS
For the purposes of this Lease, the following terms shall have the following definitions:
1. "Demised Premises" shall mean the Land and all easements, rights, rights-of-way,
and licenses appurtenant thereto, including, without limitation all of Landlord's right, title and
interest in, to and under the Kane County Forest Preserve District Easement, and also including
an easement hereby granted by the City of Elgin for the benefit of Tenant, its agents, employees,
contractors and invitees in and to air rights over that portion of South Grove Street in the City
of Elgin which runs through the Demised Premises, together with rights of access to the
underlying and immediately adjacent land, for the purpose of constructing, supporting,
maintaining, utilizing, replacing, repairing and operating the existing bridge for pedestrian traffic
over South Grove Street connecting the parking garage and other parking areas with the pavilion
which Tenant has constructed on the Demised Premises; but shall not include Tenant's Trade
Fixtures and shall not include Tenant's Riverboat (which excluded property shall remain
Tenant's own property).
2. "Development Agreement" shall mean that certain agreement bearing said title
entered into between Landlord and Tenant on June 24th, 1992 (as expressly authorized by
resolution passed on June 24th, 1992), as amended by (i) a certain Amendment to Development
Agreement dated as of June 23, 1993, (ii) a certain Second Amendment to Development
Agreement and Ground Lease Agreement dated as of January 20, 1994 and (iii) a certain Third
Amendment to Development Agreement and Ground Lease dated as of June 9, 1994.
3. "Improvements" shall mean all buildings, structures, and improvements now
existing or hereafter constructed upon the Land during the term of the Lease, and any
restoration, addition to, or replacement thereof, but excluding therefrom the Land, Tenant's
Trade Fixtures and Tenant's Riverboat.
4. "Land" shall mean that certain parcel of real property described in Exhibit A
attached hereto, but shall not mean the Improvements thereon or Tenant's trade fixtures therein.
5. "Kane County Forest Preserve District Easement" shall mean the easement granted
by the Kane County Forest Preserve District to Landlord pursuant to that certain Easement
Agreement dated July 20, 1993 entered into in accordance with the terms and provisions of that
certain Intergovernmental Agreement between the Forest Preserve District of Kane County and
Landlord dated July 20, 1993 (copies of both of which are attached hereto as Exhibit B) over
and upon certain real estate (as described therein) located between National Street and Prairie
Street along the East side of the Fox River in the city of Elgin, Illinois, which provides
underground and aboveground easements for ingress and egress and for construction associated
with a riverboat gambling site, including parking, service, maintenance, structural support and
pedestrian and vehicular traffic. All of Landlord's right, title and interest in, to and under such
Kane County Forest Preserve District Easement are included in the Demised Premises demised
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hereunder to Tenant so as to permit Tenant access from the Land to Tenant's Riverboat docked
in the Fox River.
6. "Original Development Agreement" shall have the meaning set forth in the
foregoing Recitals.
7. "Riverboat Gambling Operation" shall mean the conduct of a business engaged
in the operation of one boat (the "Riverboat") which is located in or upon the Fox River and
upon which gambling operations take place, all as contemplated and permitted pursuant to the
Illinois Riverboat Gambling Act, together with the operation upon the Demised Premises of
entertainment facilities collateral thereto, such as retail shops, movie theaters, restaurants, bars
or lounges for the service of alcoholic beverages and the like.
8. "Tenant's Trade Fixtures" shall mean all personal property owned, used or
installed by Tenant upon the Demised Premises and/or used in connection with the
Improvements thereon, including, without limitation:
(a) Cash registers;
(b) Selling fixtures, including showcases, tables, shelves, counters, desks,
gondola units, island stock fixtures, metal floor racks, self selection units,
column enclosures, and fixture walls and partitions with movable studs;
(c) Stockroom shelving and fixtures;
(d) Office furniture, including cabinets, chairs, desks, files and safes;
(e) Office machines and equipment;
(f) Maintenance equipment and tools;
(g) Walls and partitions extending from floor to ceiling but not an integral
part of slab at top and bottom;
(h) Air compressors, alarm systems, blowers, heavy kitchen equipment, paper
balers, pumps, refrigeration units, heavy scales, wall clocks and water
coolers;
(i) Carpeting, carpet liners, padding, striping and rugs;
(j) Display fixtures, including platforms, pylons, eggcrate louvers, decorative
ceilings, backgrounds, low and high partition dividers, movable curtain
display units used as room effect background, louver shutters and panels,
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collapsible or folding doors and screens, partitions and walls not raised
and braced to ceilings leaving approximately one-third of area between
floor and ceiling open, mirrors and mirrored column enclosures, baffles
or curtain walls set on top of wall cases, column background display
units, low and high dividers, chandeliers, lighting fixtures used for
decorative or display illumination lamps, tables, window and wall
backgrounds, and window display lighting fixtures;
(k) Furniture and fixtures, including upholstered chairs and sofas, ashstands,
smokestands, benches, chairs curtains and draperies, decorative tables,
and venetian blinds;
(1) Signing and art work, including bulletin boards, pegboards, pictures and
decorative art placed on walls, sign holders, and ornamental fixtures on
walls;
(m) Counter display fixtures, including sign holders, stands, mirrors, and table
dividers;
and any and all renewals, replacements of, additions to, and substitutions for the above-
enumerated items.
9. "Licenses" shall mean the following collectively(although Landlord acknowledges
that Tenant has not yet received the Temporary License or Permanent License hereinafter
described):
(a) "Preliminary Approval" -- Illinois Gaming Board reservation of a license
in the name of the Developer/tenant.
(b) "Temporary License" -- Illinois Gaming Board grant of a Temporary
Operating Permit following successful operational test cruise.
(c) "Permanent License" -- Illinois Gaming Board issuance of an Owners
License.
10. "South Grove Street Project" shall mean the removal of the existing pedestrian
mall, the construction of a new street and sidewalk to permit both vehicular and pedestrian
traffic, and the other landscaping and public improvements contemplated in connection therewith,
or so much thereof as may have been completed prior to December 31, 1994, with respect to
a portion of South Grove Street in the City of Elgin extending from Chicago Avenue to Spring
Street; all as contemplated pursuant to the Development Agreement. Pursuant to the
Development Agreement, Tenant, in its capacity as "Developer" thereunder, has provided the
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City of Elgin with certain financial support and expertise in connection with the South Grove
Street project.
AGREEMENT
NOW, THEREFORE, Landlord and Tenant hereby agree as follows:
1. Replacement of Original Lease; Demised Premises and Term. The Original Lease
is hereby amended and restated in its entirety by this Lease. Landlord, in consideration of the
rents hereinafter reserved and the terms, covenants, conditions, and agreements set forth in this
Lease to be kept and performed by Tenant, has heretofore, and does hereby, demise and let unto
Tenant, and Tenant does hereby lease, hire and take from Landlord, the Demised Premises;
TO HAVE AND TO HOLD the Demised Premises unto Tenant, its permitted successors
and assigns, upon and subject to all of the terms, covenants, conditions, conditional limitations,
and agreement herein contained for a term of years commencing as of January 20, 1994 and
ending on the last day of the month in which shall occur the tenth (10th) anniversary of the
issuance to Tenant of a Temporary License (the "Basic Term"), or until said term is sooner
terminated or extended pursuant to any of the conditional limitations or other provisions of this
Lease. Notwithstanding anything contained in the Development Agreement or herein to the
contrary, Tenant shall not be required to open the pavilion upon the Demised Premises or
Riverboat for business on or before any particular date or dates.
2. Rental.
A. For purposes of this Section 2, the following terms shall have the
following meanings:
(i) "Total Investment Cost" shall mean the aggregate of all costs, not
to exceed seventy-five million dollars ($75,000,000), paid or
incurred by Tenant in connection with the construction and
development of any Improvements on the Demised Premises as
well as all costs paid or incurred in connection with the
construction and development of any improvements on the East
Parcel and West Parcel (as such parcels are described in, and as
such construction and development are contemplated by, the
Development Agreement), the purchase and/or construction of
any boats to be used for the conduct of the Riverboat Gambling
Operation contemplated herein (including without limitation the
cost of constructing, operating and maintaining temporary
shipyard construction facilities), the cost of dredging in the Fox
River, the equipping of the Improvements and/or boats with
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Tenant's Trade Fixtures and the like, including without limitation
all legal fees, architectural fees, site cleanup, reasonable working
capital, start up expenses, licensing costs, and all rental and
option payments in connection with this Lease as well as those in
connection with the East Parcel and West Parcel.
(ii) "Net Operating Income" shall mean the total of all revenues
received by Tenant from the conduct of its business operations
upon the Demised Premises of whatever nature whatsoever and
from the conduct of its Riverboat Gambling Operation upon its
Riverboat in or upon the Fox River; in both cases net (in excess)
of all normal and customary operating expenses (including,
without limitation, Basic Rent), capital expenditures, reasonable
replacement reserves for furnishings, fixtures and equipment,
admission taxes, wagering taxes, sales taxes and all other
governmental taxes, charges, fees, assessments and the like
payable with respect to said revenues or with regard to the
conduct of the activities conducted by Tenant which generate said
revenues, but expressly excluding any deductions for (i)
depreciation or non-cash amortization, or (ii) compensation paid
to any one of the principals of the Tenant in excess of reasonable
compensation for actual services rendered as a general manager
by any such principal. For the purpose of determining Net
Operating Income in accordance with the foregoing, all income
and expenses shall be determined on an accrual basis in
accordance with generally accepted accounting principles
consistently applied.
(iii) "Net After Tax Cash Flow" shall mean Net Operating Income
less federal, state and local income taxes payable by Tenant (or,
if Tenant is a partnership, which would be payable by Tenant if
Tenant were an individual residing in the State of Illinois and
required to pay federal, state and local income taxes, if any).
(iv) "Option Fees" shall mean the aggregate sum of$150,000 paid by
Tenant as required option payments pursuant to the Original
Lease and the Development Agreement; the receipt and
sufficiency of which Landlord acknowledges in full satisfaction
of all such option payments required under the Development
Agreement. Such $150,000 shall be included in the calculation
of Total Investment Cost.
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(v) "Cost Recovery Date" shall mean that date during the term of
this Lease as of which the Net After Tax Cash Flow received by
Tenant shall have equaled Tenant's Total Investment Cost; which
date shall be determined on a retrospective basis by prorating the
Net After Tax Cash Flow for the Lease Year in which such date
occurs on a per diem basis once the Net After Tax Cash Flow for
such year has been determined.
(vi) "Lease Year" shall mean a calendar year falling within the term
of this Lease (as the same may have been extended upon Tenant's
exercise of its renewal options hereunder) except that the first
Lease Year shall commence upon issuance of the Temporary
License and terminate on December 31 of that same year and the
final Lease Year shall terminate on the date on which this Lease
(as the same may have been extended) shall expire or shall
otherwise terminate.
B. Except as otherwise herein expressly provided, Tenant shall pay no rent
hereunder until the issuance of the Temporary License (described within
the definition of "Licenses") at which time Landlord hereby agrees to
accept as rent and Tenant shall pay hereunder rent in an amount
determined by multiplying the total square footage of the Land by $.20
per annum("Basic Rent"); which Basic Rent shall be prorated with respect
to the first and the last Lease Years. Said Basic Rent shall be paid by
Tenant to Landlord in advance in equal quarterly installments due on the
first day of January, April, July and October of each year; provided
however that the first such installment shall be a prorated installment due
upon issuance of the Temporary License.
C. Upon the arrival of the Cost Recovery Date, in addition to the Basic Rent,
Tenant shall also pay to Landlord, as additional percentage rent, the
amount by which three percent (3%) of the Net Operating Income of the
Tenant for each Lease Year exceeds the Basic Rent paid with respect to
such Lease Year ("Percentage Rent"). Percentage Rent shall be paid to
Landlord not later than one hundred twenty (120) days after the end of
each Lease Year. Tenant shall remit to Landlord, along with the payment
of Percentage Rent, Tenant's statement in reasonable detail reflecting its
calculations of Net Operating Income, Net After Tax Cash Flow,
Percentage Rent(if any) and any offsets to Percentage Rent which Tenant
is allowed hereunder ("Tenant's Statement"). Tenant's Statement of the
same shall be final and binding on Landlord unless Landlord shall object
in writing to the same by notice to Tenant specifying Landlord's
objection(s) thereto within one hundred eighty (180) days of the receipt
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thereof; provided, however, that no such objection by Landlord or dispute
related thereto shall constitute a default on the part of Tenant hereunder
unless and until such dispute is resolved and any rent deficiency
determined to exist upon such resolution continues for thirty (30) days
after written notice by Landlord to Tenant in accordance with Section
16.A. hereof. Notwithstanding anything contained in this Lease to the
contrary, Tenant shall receive a credit against Percentage Rent otherwise
due, in order to enable Tenant to recover any and all direct and indirect
costs incurred by it in its capacity as Developer in connection with the
South Grove Street Project (the "SGSP Credit"), which SGSP Credit shall
be applied as an annual credit equal in amount to the lesser of: (1) one-
third (1/3) of such costs (without interest); or (ii) fifty percent (50%) of
Tenant's Percentage Rent obligation hereunder; provided, however, that
in no event shall the total amount of all such SGSP Credit allowances
exceed the total of all direct and indirect costs incurred by Tenant in
connection with the South Grove Street Project (without interest).
D. Tenant hereby agrees to make available to Landlord for inspection and
review all of Tenant's books and records which pertain to the calculation
or documentation of Tenant's Net Operating Income, Net After Tax Cash
Flow, Percentage Rent, SGSP Credit and/or Total Investment Cost and
which may be reasonably necessary in order to determine or verify the
rent due Landlord hereunder. All such books and records shall be made
available to Landlord at the Demised Premises upon reasonable notice to
Tenant. Tenant shall also provide Landlord with copies of all admissions
and gaming tax returns on a monthly basis, within thirty (30) days of the
end of each calendar month. Tenant shall also provide Landlord with its
state sales tax number and the sales tax number of any subtenants and
concessionaires at the Demised Premises. Landlord shall hold all such
information in strictest confidence.
E. In lieu of the provisions of Section VI(G) of the Original Development
Agreement, and in addition to Basic Rent and Percentage Rent,
commencing October 1, 1994 and for a period of five (5) years thereafter,
Tenant shall pay to Landlord an amount equal to Three Hundred Fifty
Thousand Dollars ($350,000) per year, in equal monthly installments due
on the first day of each month, to be used by Landlord to defray law
enforcement costs which may be incurred by the Landlord in connection
with Tenant's use of the Demised Premises; such obligation to terminate
upon expiration of the aforesaid five (5) year period, or, if earlier, upon
termination of this Lease. No special duty with respect to police
protection different from that owed to the general public by the City of
Elgin shall be created by virtue of such payments.
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F. Contemporaneously herewith, Tenant is paying $116,357.00 to Landlord
which constitutes payment in full of all outstanding amounts due and
owing to Landlord hereunder for all periods through December 31, 1995,
less $68,395 due Tenant for South Grove recovery. Accordingly,
Landlord hereby acknowledges that all Basic Rent, Percentage Rent and
all other required payments due from Tenant for all periods through
December 31, 1995 have been paid in full.
3. Use of Demised Premises.
A. Tenant may use and occupy the Demised Premises and the Improvements
thereon to operate its entertainment and support facilities for the adjacent
Riverboat Gambling Operation or for any other lawful purpose. Tenant
will not use or keep or allow the Demises Premises or any portion thereof
or any buildings or other improvements thereon or any appurtenances
thereto, to be used or occupied for any unlawful purpose and will not
suffer any act to be done or any condition to exist which constitutes a
nuisance, public or private. Tenant shall cause any such use or occupancy
for any unlawful purpose and any such nuisance to terminate as soon as
practicable but in any event shall commence to cure the same within
twenty (20) days of notice thereof from Landlord and shall thereafter
diligently prosecute the same to completion. Notwithstanding anything
contained herein to the contrary, Landlord acknowledges and agrees that
the permitted uses of the Demised Premises and Improvements thereon
shall not inherently constitute a nuisance, public or private.
B. Operations/Hours.
(i) Pavilion. Any liquor activity in the pavilion shall be conducted
in accordance with the prevailing City Liquor Ordinance and
.applicable state law. Use at the Pavilion may include but is not
limited to, food and beverage sales, retail restaurant liquor sales,
entertainment, and all gaming activities, if any, permitted under
state law, provided the permitted uses comply with applicable
codes and ordinances.
(ii) Riverboat-Closure. Tenant shall have the right to operate the
Riverboat continuously throughout the entirety of each day,
provided however, that the Riverboat operations shall be closed
for at least two (2) consecutive hours in any 24-hour period,
which two hour period shall be determined by Tenant in its sole
discretion(the "Closure Requirement"). Anything to the contrary
notwithstanding, in no event will Tenant be required to close
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down an ongoing craps game (as distinguished from all other
gambling activities on the Riverboat which shall be closed down
notwithstanding this limited exception) in order to comply with
the foregoing Closure Requirement until the crapshooter holding
the dice either sevens out or passes the dice; in which case, such
violation of the Closure Requirement shall not constitute a default
hereunder.
The above provisions supersede and are in lieu of Section II(B) of the
Original Development Agreement.
C. In conjunction with its use of the Demised Premises, a shuttle bus system
similar to a trolley on wheels shall be established and operated either by
Tenant, an independent contractor selected and retained by Tenant, or by
the PACE system if arrangements suitable to Tenant can be made with
PACE, which shuttle bus system shall follow a route through downtown
Elgin connecting each of the existing METRA stations with the Demised
Premises. Any such shuttle bus system shall be conducted in accordance
with all requirements of applicable law.
At Tenant's option, charges, on a non-discriminatory basis, can be made to any users of the
shuttle bus system in amounts determined from time to time by Tenant. The actual hours of
operation of the shuttle bus shall be developed and determined by Tenant. This Section (3)(C)
supersedes and is in lieu of the provisions of Section VI(K) of the Original Development
Agreement.
4. Construction of and Title to Improvements and Trade Fixtures.
A. Subject to compliance with applicable federal, state and local requirements
of law with respect to building and safety standards, Landlord hereby
consents to the construction by Tenant upon the Demised Premises of the
Improvements and the construction by Tenant of the Riverboat as built by
Tenant, as well as such additional Improvements as Tenant may seek to
construct after any required public hearing with Landlord's consent, which
consent shall not be unreasonably withheld. All such Improvements shall
be constructed by Tenant in a good and workmanlike manner and in full
and complete compliance with all applicable laws and ordinances;
provided, however, that Landlord acknowledges and agrees that any
provision of the Development Agreement or this Lease to the contrary
notwithstanding, the existing Riverboat and Improvements, as built by
Tenant, are in full compliance with all requirements of local law and with
the provisions of the Development Agreement and Lease with respect
thereto.
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B. Title to Tenant's Trade Fixtures are and shall be the sole and exclusive
property of Tenant during the term of this Lease and shall remain the sole
and exclusive property of Tenant after the expiration or termination of this
Lease, subject to the forfeiture remedies as more fully set forth
hereinafter. Landlord acknowledges and understands that it shall have no
right, title or interest in or to Tenant's Trade Fixtures either during the
term of this Lease or thereafter (except as hereinafter provided).
C. Landlord acknowledges and agrees that Tenant shall have the right to
encumber, sell, or hypothecate Tenant's Trade Fixtures, remove them
from the Demised Premises, or to otherwise deal with all or any portion
of such Tenant's Trade Fixtures, at Tenant's sole discretion. Upon ten
(10) days' prior written request to Landlord, Landlord shall prepare and
deliver to Tenant a certificate in recordable form stating that Landlord has
no interest or right in or to Tenant's Trade Fixtures, as well as any other
or further document which Tenant may reasonably request from Landlord.
D. During the term of the Lease and while Tenant lawfully occupies the
Demised Premises, all Improvements presently on the Demised Premises
and all Improvements hereafter constructed on the Demised Premises are
and shall be the property of Tenant or any party taking title thereto
through Tenant by means of mesne conveyance or foreclosure, during,
and only during, the continuance of the term of this Lease and no longer.
At all times during the term of this Lease, the Improvements which are
owned by Tenant shall not be conveyed, transferred, or assigned unless
such conveyance, transfer, or assignment shall be to a person, corporation
or other entity to whom this Lease is being transferred or assigned
simultaneously therewith in compliance with the provisions of Section 14
hereof (Assignment; Subletting), and at all such times the holder of the
leasehold interest of Tenant under this Lease shall be the owner of said
Improvements. Any attempted conveyance, transfer, or assignment of the
Improvements, whether voluntarily or by operation of law or otherwise,
to any person, corporation, or other entity shall be void and of no effect
whatever unless such conveyance, transfer, or assignment shall be to a
person, corporation, or other entity to whom this Lease is being
transferred or assigned simultaneously therewith in compliance with the
provisions of Section 14. Similarly, so long as the Improvements or any
part thereof shall remain on the Demised Premises, any attempted transfer
or assignment of the leasehold interest of Tenant under this Lease shall be
void and of no effect whatever unless such transfer or assignment shall be
to a person, corporation, or other entity to whom the Improvements are
being conveyed, transferred, or assigned simultaneously therewith. Upon
any termination of this Lease, whether by reason of the normal expiration
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of the term, or by reason of the provisions of Section 12 (Casualty), or
Section 16 (Default by Tenant) hereof, or by reason of any other cause
whatsoever, if the Improvements or any part thereof shall then be on the
Demised Premises, all of the Tenant's right, title and interest therein or
of any entity or person acquiring title thereto through Tenant shall cease
and terminate, and title to the Improvements shall vest in Landlord, and
the Improvements or the part thereof then within the Demised Premises
shall be surrendered by Tenant to Landlord as provided in Section 30
hereof (Surrender). No further deed or other instrument shall be
necessary to confirm the vesting in Landlord of title to the Improvements.
However, upon any termination of this Lease, Tenant, upon request of
Landlord, shall execute, acknowledge, and deliver to Landlord a deed
confirming that all of Tenant's right, title, and interest in or to the
Improvements has expired, and that title to the Improvements has vested
in Landlord. Tenant shall pay the cost of recording said deed but not any
transfer taxes in connection therewith.
E. Notwithstanding anything to the contrary contained above, Tenant shall
have the right, at its option, during the term of this Lease, to use the
Demised Premises and Improvements, in any reasonable and lawful
manner consistent with Tenant's business practices, including the right to
operate, by itself or through third parties by means of sublease or license,
any facility, concession, or franchise for the sale or rental of goods or
services appropriate for or in connection with Tenant's business, in
Tenant's sole discretion, provided that such use is not in violation of law.
5. Leasehold Mortgages.
A. Anything herein to the contrary notwithstanding, on one or more
occasions, without Landlord's prior consent, Tenant may mortgage or
otherwise encumber Tenant's leasehold estate hereunder (the "Leasehold
Estate") or the Improvements, or both, to any Lender (as hereinafter
defined), under one or more Leasehold Mortgages and assign this Lease
as security for such mortgage or mortgages; provided, however, that any
such mortgage which encumbers the Improvements shall at all times be
subordinate to the superior rights of Landlord as fee holder and shall be
void and without further effect in the event of the termination or
expiration of this Lease.
B. (i) If Tenant shall, on one or more occasions, mortgage Tenant's
Leasehold Estate to a Lender, and if the holder of such Leasehold
Mortgage shall provide Landlord with notice of such Leasehold
Mortgage together with a true copy of such Leasehold Mortgage
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and the name and address of the Leasehold Mortgagee, Landlord
and Tenant agree that following receipt of such notice by
Landlord, the provisions of this Section 5 shall apply with respect
to each such Leasehold Mortgage.
(ii) In the event of any assignment of a Leasehold Mortgage or of an
Assignee of such Mortgage, notice of the new name and address
shall be provided to Landlord.
Landlord shall promptly upon receipt of a communication
purporting to constitute the notice provided for by subsection
(B)(i) above acknowledge by an instrument in recordable form
receipt of such communication as constituting the notice provided
for by subsection (B)(i) above or, in the alternative, notify the
Tenant and the Leasehold Mortgagee of the rejection of such
communication as not conforming with the provisions of
subsection (B)(i) and specify the specific basis of such rejection.
After Landlord has received the notice provided for by subsection
(B)(i) above, the Tenant, upon being requested to do so by
Landlord, shall with reasonable promptness provide Landlord
with copies of the note or other obligation secured by such
Leasehold Mortgage and of any other documents pertinent to the
Leasehold Mortgage as specified by the Landlord. If requested
to do so by Landlord, the Tenant shall thereafter also provide the
Landlord from time to time with a copy of each amendment or
other modification or supplement to such instruments. All
recorded documents shall be accompanied by the appropriate
certification of the Custodian of the Recording Office as to their
authenticity as true and correct copies of official records and all
nonrecorded documents shall be accompanied by a certification
by Tenant that such documents are true and correct copies of the
originals. From time to time upon being requested to do so by
Landlord, Tenant shall also notify Landlord of the date and place
of recording and other pertinent recording date with respect to
such instruments as have been recorded.
C. (i) The term "Lender," as used in this Section 5, shall refer to a
savings bank, savings and loan association, commercial bank,
trust company, credit union, insurance company, college,
university, real estate investment trust or pension fund, private
individual, corporation, partnership, trust or other entity. The
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term "Lender" shall also include other lenders of substance which
perform functions similar to any of the foregoing.
(ii) The term "Leasehold Mortgage" as used in this Section 5 shall
include a mortgage, a deed of trust, a deed to secure debt, or
other security instrument by which Tenant's Leasehold Estate is
mortgaged, conveyed, assigned, or otherwise transferred, to
secure a debt or other obligation.
(iii) The term "Leasehold Mortgagee" as used in this Section 5 shall
refer to a holder of a Leasehold Mortgage in respect to which the
notice provided for by subsection (B) of this Section 5 has been
given and received and as to which the provisions of this Section
5 are applicable.
D. Landlord, upon providing Tenant any notice of any default under this
Lease, shall at the same time provide a copy of such notice to every
Leasehold Mortgagee. No such notice by Landlord to Tenant shall be
deemed to have been duly given unless and until a copy thereof has been
so provided to every Leasehold Mortgagee. From and after the date such
notice has been given to a Leasehold Mortgagee, such Leasehold
Mortgagee shall have the same period, after the giving of such notice
upon it, for remedying any default or causing the same to be remedied,
as is given Tenant after the giving of such notice to Tenant, plus in each
instance, the additional periods of time specified in subsections E and F
of this Section 5 to remedy, commence remedying or cause to be
remedied the defaults specified in any such notice. Landlord shall accept
such performance by or at the instigation of such Leasehold Mortgagee as
if the same had been done by Tenant. Tenant authorizes each Leasehold
Mortgagee to take any such action at such Leasehold Mortgagee's option
and does hereby authorize entry upon the premises by the Leasehold
Mortgagee for such purpose.
E. Anything contained in this Lease to the contrary notwithstanding, if any
default shall occur which entitles Landlord to terminate this Lease,
Landlord shall have no right to terminate this Lease unless, following the
expiration of the period of time given Tenant to cure such default,
Landlord shall notify every Leasehold Mortgagee of Landlord's intent to
so terminate at least 30 days in advance of the proposed effective date of
such termination if such default is capable of being cured by the payment
of money, and at least 45 days in advance of the proposed effective date
of such termination if such default is not capable of being cured by the
payment of money. The provisions of subsection F below of this Section
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5 shall apply if, during such 30 or 45 day Termination Notice Period, any
Leasehold Mortgagee shall:
(1) notify Landlord of such Leasehold Mortgagee's desire to
nullify such notice, and
(2) pay or cause to be paid all Basic Rent, Percentage Rent, or
other payments then due and in arrears as specified in the
Termination Notice to such Leasehold Mortgagee and
which may become due during such 30 or 45-day period
(provided any such Percentage Rent then claimed to be due
and in arrears is not in dispute by Tenant), and
(3) comply or in good faith, with reasonable diligence and
continuity, commence to comply with all monetary
requirements of this Lease then in default and reasonably
susceptible of being complied with by such Leasehold
Mortgagee (it being hereby acknowledged by Landlord that
unless Tenant shall have submitted Tenant's Statement with
respect thereto and failed to make payment of the
Percentage Rent due in accordance therewith, no such
Leasehold Mortgagees shall be under any obligation to pay
Percentage Rent falling due during such period nor disputed
Percentage Rent relating to prior periods unless and until
such Leasehold Mortgagee shall have taken possession of
the Demised Premises and have access to the necessary
financial records of Tenant in order to properly calculate
Percentage Rent then due and such Leasehold Mortgagee
and Landlord shall have resolved any disputes related
thereto); provided, however, that such Leasehold
Mortgagee shall not be required during such 45 day period
to cure or commence to cure any default consisting of
Tenant's failure to satisfy and discharge any lien, charge or
encumbrance against the Tenant's interest in this Lease or
the Demised Premises junior in priority to the lien of the
mortgage held by such Leasehold Mortgagee.
F. (i) If Landlord shall elect to terminate this Lease by reason of any
default of Tenant, and a Leasehold Mortgagee shall have
proceeded in the manner provided for by this subsection F of
Section 5, the specified date for the termination of this Lease as
fixed by Landlord in its Termination Notice shall be extended for
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a period of six months, provided that such Leasehold Mortgagee
shall, during such six month period:
(1) Pay or cause to be paid the Basic Rent, Percentage Rent
determined to be due and owing and other monetary
obligations of Tenant under this Lease as the same become
due, and continue its good faith efforts to perform all of
Tenant's other obligations under this Lease, excepting
(A) obligations of Tenant to satisfy or otherwise discharge
any lien, charge or encumbrance against Tenant's interest
in this Lease or the Demised Premises junior in priority to
the lien of the mortgage held by such Leasehold
Mortgagee, (B) past obligations which cannot be cured by
the payment of money then in default and not reasonably
susceptible of being cured by such Leasehold Mortgagee
and (C) Percentage Rent falling due during such period
(unless Tenant shall have submitted Tenant's Statement and
failed to make payment of the Percentage Rent due in
accordance therewith) or disputed Percentage Rent for prior
periods unless and until such Leasehold Mortgagee shall
have taken possession of the Demised Premises and have
access to the necessary financial records of Tenant in order
to properly calculate Percentage Rent then due and such
Leasehold Mortgagee and Landlord shall have resolved any
disputes related thereto; and
(2) if not enjoined or stayed, take steps to acquire or sell
Tenant's interest in this Lease by foreclosure of the
Leasehold Mortgage or other appropriate means and
prosecute the same to completion with due diligence.
(ii) If at the end of such six (6) month period such Leasehold
Mortgagee is complying with subsection F(i) of this Section 5,
this Lease shall not then terminate, and the time for completion
by such Leasehold Mortgagee of its proceedings shall continue so
long as such Leasehold Mortgagee is enjoined or stayed and
thereafter for so long as such Leasehold Mortgagee proceeds to
complete steps to acquire or sell Tenant's interest in this Lease
by foreclosure of the Leasehold Mortgage or by other appropriate
means with reasonable diligence or continuity. Nothing in this
subsection F of this Section 5, however, shall be construed to
extend this lease beyond the original term thereof as extended by
any options to extend the term of this Lease properly exercised
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by Tenant or a Leasehold Mortgagee in accordance with Section
25 of this Lease, nor to require a Leasehold Mortgagee to
continue such foreclosure proceedings after the default has been
cured. If the default shall be cured and the Leasehold Mortgagee
shall discontinue such foreclose proceedings, this Lease shall
continue in full force and effect as if Tenant had not defaulted
under this Lease.
(iii) If a Leasehold Mortgagee is complying with subsection F(i) of
this Section 5, upon the acquisition of Tenant's Estate herein by
such Leasehold Mortgagee or its designee or any other purchaser
at a foreclosure sale or otherwise [and the discharge of any lien,
charge or encumbrance against the Tenant's interest in this Lease
or the Demised Premises which is junior in priority to the lien of
the Leasehold Mortgage held by such Leasehold Mortgagee and
which the Tenant is obligated to satisfy and discharge by reason
of the terms of this Lease,] this Lease shall continue in full force
and effect as if Tenant had not defaulted under this Lease.
(iv) For the purposes of this Section 5, the making of a Leasehold
Mortgage shall not be deemed to constitute an assignment or
transfer of this Lease or of the Leasehold Estate hereby created,
nor shall any Leasehold Mortgagee, as such, be deemed to be an
assignee or transferee of this Lease or of the Leasehold Estate
hereby created so as to require such Leasehold Mortgagee, as
such, to assume the performance of any of the terms, covenants
or conditions on the part of the Tenant to be performed
hereunder, but the purchaser at any sale of this Lease and of the
Leasehold Estate hereby created in proceedings for the
foreclosure of any Leasehold Mortgage, or the assignee or
transferee of this Lease and of the Leasehold Estate hereby
created under any instrument of assignment or transfer in lieu of
the foreclosure of any Leasehold Mortgage shall be deemed to be
an assignee or transferee within the meaning of this Section 5,
and shall be deemed to have agreed to perform all of the terms,
covenants and conditions of the part of the Tenant to be
performed hereunder from and after the date of such purchase
and assignment, but only for so long as such purchaser or
assignee is the owner of the Leasehold Estate. If the Leasehold
Mortgagee or its designee shall become holder of the Leasehold
Estate and if the buildings and improvements on the Demised
Premises shall have been or become materially damaged on,
before or after the date of such purchase and assignment, the
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Leasehold Mortgagee or its designee shall be obligated to repair,
replace or reconstruct the building or other improvements only
to the extent of the net insurance proceeds received by the
Leasehold Mortgagee or its designee by reason of such damage.
However, should such net insurance proceeds be insufficient to
repair, replace or reconstruct the building or other improvements
to the extent required by Section 12 of this Lease and should the
Leasehold Mortgage or its designee choose not to fully
reconstruct the building or other improvements to the extent
required by Section 12(B) such failure shall constitute an event
of default under this Lease.
(v) Any Leasehold Mortgagee or other acquirer of the Leasehold
Estate of Tenant pursuant to foreclosure, assignment in lieu of
foreclosure or other proceedings may, upon acquiring Tenant's
Leasehold Estate, without further consent of Landlord, sell and
assign the Leasehold Estate on such terms and to such persons
and organizations as are acceptable to such Leasehold Mortgagee
or acquirer and thereafter be relieved of all obligations under this
Lease; provided that such assignee has delivered to Landlord its
written agreement to be bound by all of the provisions of this
Lease.
(vi) Notwithstanding any other provisions of this Lease, any sale of
this Lease and of the Leasehold Estate hereby created in any
proceedings for the foreclosure of any Leasehold Mortgage, or
the assignment or transfer of this Lease or of the Leasehold
Estate hereby created in lieu of the foreclosure of any Leasehold
Mortgage shall be deemed to be a permitted sale, transfer or
assignment of this Lease and of the Leasehold Estate hereby
created.
G. Nothing herein contained shall require any Leasehold Mortgagee or its
designee as a condition to its exercise of right hereunder to cure any
default of Tenant not reasonably susceptible of being cured by such
Leasehold Mortgagee or its designee, including but not limited to the
default referred to in Section 16 of Lease provision related to bankruptcy
and insolvency and any other sections of the Lease which may impose
conditions of default not susceptible to being cured by a Leasehold
Mortgagee, or a subsequent owner of the Leasehold Estate through
foreclosure hereof, in order to comply with the provisions of subsections
E or F of this Section 5.
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H. A Standard Mortgagee Clause naming each Leasehold Mortgagee may be
added to any and all insurance policies required to be carried by Tenant
hereunder on condition that the insurance proceeds are to be applied in the
manner specified in this Lease provided that the Leasehold Mortgage shall
so provide. However, the Leasehold Mortgage may provide a manner for
the disposition of such proceeds, if any, otherwise payable directly to the
Tenant pursuant to the provisions of this Lease (but not such proceeds, if
any, payable jointly to the Landlord and the Tenant).
Landlord shall give each Leasehold Mortgagee prompt notice of any
arbitration or legal proceedings between Landlord and Tenant involving
obligations under this Lease. Each Leasehold Mortgagee shall have the
right to intervene in any such proceedings and be made a party to such
proceedings, and the parties hereto do hereby consent to such intervention.
In the event that any Leasehold Mortgagee shall not elect to intervene or
become a party to any such proceedings, Landlord shall give the
Leasehold Mortgagee notice of, and a copy of any award or decision made
in any such proceedings, which shall be binding on all Leasehold
Mortgagees not intervening after receipt of notice of arbitration. In the
event Tenant shall fail to appoint an arbitrator after notice from Landlord
in connection with any such arbitration proceeding, a Leasehold
Mortgagee (in order of seniority if here be more than one) shall have an
additional period of 30 days, after notice by Landlord that Tenant has
failed to appoint such arbitrator, to make such appointment, and the
arbitrator so appointed shall thereupon be recognized in all respects as if
he had been appointed by Tenant.
J. So long as any Leasehold Mortgage is in existence, unless all Leasehold
Mortgagees shall otherwise expressly consent in writing, the fee title to
the Demised Premises and the Leasehold Estate of Tenant herein created
by this Lease shall not merge but shall remain separate and distinct,
notwithstanding the acquisition of said fee title and said Leasehold Estate
by Landlord or by Tenant or by third party, by purchaser or otherwise.
K. In the event on any occasion hereafter Tenant seeks to mortgage its
Leasehold Estate, Landlord agrees to amend this Lease from time to time
to the extent reasonably requested by a Lender proposing to make Tenant
a loan secured by a first lien upon Tenant's Leasehold Estate, provided
that such proposed amendments do not materially and adversely affect the
rights of Landlord or its interest in the Demised Premises. All reasonable
expenses incurred by Landlord in connection with any such amendment
shall be paid by Tenant.
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L. If any Leasehold Mortgagee, its designee or other purchaser has acquired
the Leasehold Estate of Tenant pursuant to foreclosure, conveyance in lieu
of foreclosure or other proceedings, such Leasehold Mortgagee, its
designee or other purchaser shall succeed to the rights of Tenant, if any,
in and to any security deposit paid by Tenant to Landlord pursuant to this
Lease. In such event, Tenant shall no longer have any rights to such
security deposit, and I andlord shall hold such security deposit for and on
behalf of such Leasehold Mortgagee, its designee or other purchaser.
M. Landlord shall, without charge, at any time and from time to time
hereafter, but not more frequently than twice in any one-year period (or
more frequently if such request is made in connection with any sale or
mortgaging of Tenant's Leasehold Estate or permitted subletting by
Tenant), within 10 days after written request of Tenant to do so, certify
by written instrument duly executed and acknowledged to any Leasehold
Mortgagee or purchaser, or proposed Leasehold Mortgagee or proposed
purchaser, or any other person, firm or corporation specified in such
request: (A) as to whether this Lease has been supplemented or amended,
and if so, the substance and manner of such supplement or amendment;
(B) as to the validity and force and effect of this Lease, in accordance
with its tenor; (C) as to the existence of any default hereunder; (D) as to
the existence of any offsets, counterclaims or defense hereto on the part
of the Tenant; (E) as to the commencement and expiration dates of the
term of this Lease; and (F) as to any other matters as may be reasonably
so requested. Any such certificate may be relied upon by the Tenant and
any other person, fu-m or corporation to whom the same may be exhibits
or delivered, and the contents of such certificate shall be binding on the
Landlord.
N. Notices from Landlord to the Leasehold Mortgagee shall be mailed to the
address furnished pursuant to subsection B of this Section 5, and those
from the Leasehold Mortgage to Landlord shall be mailed to the address
designed pursuant to the provisions of Section 26 hereof. Such notices,
demands and requests shall be given in the manner described in Section
26 of this Lease and shall in all respects be governed by the provisions of
that Section.
0. No payment made to Landlord by a Leasehold Mortgagee shall constitute
agreement that such payment was, in fact, due under the terms of this
Lease; and a Leasehold Mortgagee having made any payment to Landlord
pursuant to Landlord's wrongful, improper, or mistaken notice or demand
shall be entitled to the return of any such payment or portion thereof
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provided he shall have made demand therefor not later than one year after
the date of its payment.
6. Taxes.
A. Tenant will, at Tenant's own cost and expense, bear, pay and discharge
prior to delinquency, all real estate taxes and special assessments or use
taxes in lieu thereof or other taxes which shall be levied, charged and
assessed upon the Demised Premises and the Improvements thereon during
the term hereof.
B. Tenant reserves the right to contest the validity of any assessed valuation
of the Land or Improvements and to pay any taxes under protest.
Landlord shall execute and deliver to Tenant whatever documents may be
necessary or proper to permit tenant to so contest any such imposition or
which may be necessary to secure payment of any refund which may
result from any such proceedings. Notwithstanding the foregoing, Tenant
shall not contest any real estate assessment of the Demised Premises if the
result thereof would be to reduce the assessed valuation of the Demised
Premises and the Improvements thereon below the sum of $1,250,000.
C. Tenant shall pay all interest and penalties imposed upon the late payment
of any obligation under this Section.
7. Repairs. Subject to the provisions of Section 12 and 15 below, Tenant shall at
all times during the term of this Lease, at Tenant's own cost and expense, keep the Demised
Premises and the Improvement thereon, and all sidewalks, curbs, vaults and vault spaces
adjoining the Demised Premises, and all appurtenances to the Demised Premises, in good order,
condition, and repair, ordinary wear and tear expected, and in such condition as may be required
by law and by the terms of the insurance policies furnished pursuant to this Lease, whether or
not such repair shall be interior or exterior, and whether or not such repair shall be of a
structural nature, and whether or not the same can be said to be within the present contemplation
of the parties hereto.
8. Compliance with Law.
A. Tenant shall at all times during the term of the Lease, at Tenant's own
cost and expense, perform and comply with all laws, rules, orders,
ordinances, regulations, and requirements now or hereafter enhanced or
promulgated, of every governmental authority and municipality having
jurisdiction over the Demised Premises, and of any agency thereof,
relating to the Demised Premises, or the Improvements now or hereafter
located thereon, or the facilities or equipment therein, or the streets,
sidewalks, vault, vault spaces, curbs, and gutters adjoining the Demised
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Premises, or the appurtenances to the Demised Premises, or the franchises
and privileges connected therewith.
B. If during the term of this Lease, Landlord enacts any new zoning
ordinance or regulation or amends or modifies any existing zoning
ordinance or regulation such that additional requirements would be
imposed upon the conduct of the visitor's center, restaurants, movie
theater, retail stores and other related uses of the Demised Premises as are
contemplated by Tenant in conjunction with the Riverboat Gambling
Operation, which, absent compliance therewith, would prohibit such
operations, it is agreed that the burden of such additional zoning
requirements shall not apply to the Demised Premises.
C. If during the term of this Lease, Landlord enacts any new ordinances,
codes, or regulations or amends or modifies any existing ordinances,
codes or regulations in any manner such that additional fees or taxing
requirements would be imposed on the Demised Premises or on the
business operations being conducted on the Demised Premises or on the
Riverboat Gambling Operation itself, the burden of such additional fees
or taxing requirements shall not apply to the Demised Premises nor to the
business operations conducted on the Demised Premises nor to the
Riverboat Gambling Operation unless such burden is the result of legal
requirements of general applicability throughout the City of Elgin. Laws
purporting to be of such general applicability but which upon practical
application would only impact the Demised Premises or the business
operations conducted on the Demised Premises or the Riverboat Gambling
Operation shall not apply to the Demised Premises nor to the business
operations conducted on the Demised Premises nor to the Riverboat
Gambling Operation.
D. The parties understand and agree that nothing herein shall be construed to
prohibit the City of Elgin from increasing sales taxes and other taxes,
charges and fees which are of general applicability throughout the city
with the exception that fees and taxes prohibited by 230 ILCS 10/21, as
amended, shall not be applicable to the Demises Premises and the business
operations conducted thereon.
9. Alterations. Tenant shall have the right, at Tenant's expense and at Tenant's sole
discretion, from time to time during the term of this Lease to make any alteration, addition, or
modification to the Demised Premises or the Improvements thereon, provided that, after said
alterations, additions, or modifications, the Demised Premises shall be utilized for a use of the
Demised Premises permitted herein; and provided further, that if any such alteration or
modification shall involve the removal or material demolition of the Improvements, then Tenant
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shall obtain Landlord's prior written consent thereto, which consent shall not be unreasonably
withheld. It is expressly understood that Landlord's consent may be conditioned upon the
furnishing by Tenant of waivers of mechanic's and materialmen's liens from all persons
furnishing materials or labor.
10. Mechanic's Liens. During the term of this Lease, Tenant shall not permit any
mechanics', materialmans' or other such lien to be placed against the Demised Premises by
reason of any work, labor, service, or material performed or furnished for or to Tenant or
anyone occupying the Demised Premises through or under Tenant; provided, however, that if
any such lien is placed against the Demised Premises, Tenant may contest such lien by
appropriate proceedings if Tenant shall have delivered to Landlord a surety bond, reasonably
acceptable to Landlord, in form, content and amount protecting Landlord against the
enforcement of such lien or, alternatively, shall have provided Landlord with title insurance
protection against the enforcement of such lien. Tenant shall at all times indemnify Landlord
against and hold it harmless with respect to any loss, cost, fee, charge, expense, lien, or liability
of any nature occurring or accruing by virtue of any such work, labor, service, or material
performed or furnished for or to the Tenant.
11. Insurance.
A. Tenant will at all times during the term of this Lease maintain insurance
on the Demises Premises of the following character:
(i) insurance against loss or damage by fire and other risks and
perils from time to time included under standard extended
coverage endorsements in an amount equal to not less than eighty
percent (80%) of the replacement value of the Improvements
(exclusive of the costs of excavation, foundations, and footings
below the lowest floor). (The insurance described in this sub-
Section 11A(i) shall hereinafter be called the "Casualty
Insurance.")
(ii) General comprehensive public liability insurance (including
coverage for elevators, if any, on the Demised Premises) against
claims for bodily injury, death, or property damage occurring on,
in, or about the Demised Premises and the adjoining streets,
sidewalks, and passageways, such insurance to afford protection
of not less than $5 million with respect to bodily injury or death
to all persons in any one accident, and not less than $1 million
with respect to property damage in any one occurrence. (The
insurance described in this subsection 11A(ii) shall hereinafter be
called the "Liability Insurance.")
•
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(iii) Adequate boiler and pressure vessel insurance on all equipment,
parts thereof, and appurtenances attached or connected to the
Demised Premises which by reason of their use or existence are
capable of bursting, erupting, collapsing, or exploding. (The
insurance described in this subsection 11A(iii) shall hereinafter
be called the "Boiler Insurance.")
B. Any such insurance shall be written by companies of recognized financial
standing which are well rated by a national rating agency and are legally
qualified to issue such insurance in the State of Illinois, and such
insurance shall name as the insured parties thereunder, Landlord, or its
assigns, and Tenant, as their interests may appear. Such insurance may be
obtained by Tenant by endorsement on its blanket insurance policies,
provided that (i) such blanket policies satisfy the requirements specified
herein and (ii) Landlord shall be furnished with the certificate of the
insurer to the effect that (a) the amount of insurance allocable to the
Demised Premises is not less than the amount required by this Section and
(b) the protection afforded Tenant and Landlord is not less than the
protection which would have been afforded under a separate policy or
policies relating only to the Demised Premises. Landlord shall not be
required to prosecute any claim against any insurer or to contest any
settlement proposed by any insurer, provided that Tenant may, at its cost
and expense, prosecute any such claim or contest any such settlement, and
in such event Tenant may bring any such prosecution or contest in the
name of Landlord, Tenant, or both, and Landlord shall cooperate with
Tenant and will joint therein at Tenant's written request upon receipt by
Landlord of an indemnity from Tenant against all costs, liabilities, and
expenses in connection with such cooperation, prosecution or contest.
C. Tenant shall deliver to Landlord promptly after the execution and delivery
of this Lease the original or duplicate policies or certificates of insurance,
including certificates evidencing the naming of the Landlord as an
additional insured where necessary, satisfactory to Landlord evidencing all
the insurance which is then required to be maintain by Tenant hereunder,
and Tenant shall, within 30 days prior to the expiration of any such
insurance, deliver other original or duplicate policies or other certificates
of the insurers evidencing the renewal of such insurance. Should Tenant
fail to effect, maintain, or renew any insurance provided for herein, or to
pay the premium therefor, or to deliver to Landlord any of such policies
or certificates, Landlord, at its option, but without obligation so to do,
may procure such insurance, and any sums expended by it to procure such
insurance shall be additional rent hereunder and shall be repaid by Tenant
within 30 days following the date on which demand therefor shall be made
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by Landlord. Such insurance policy(ies) shall contain a provisions that
such policy(ies) shall not be canceled or reduced in scope without thirty
(30) days prior written notice to Landlord.
12. Casualty.
A. If the Improvements on the Demised Premises or any part thereof shall be
damaged or destroyed by fire or other casualty, Tenant shall promptly
notify Landlord of such destruction or damage. Rent shall not abate
hereunder by reason of any damage to or destruction of the Improvements,
except as specifically provided for in this Lease.
B. If the Improvements on the Demised Premises are substantially damaged
or destroyed in any single fire or by any single casualty, then, at Tenant's
election and in lieu of rebuilding, replacing and repairing the
Improvements as provided in this Lease:
(i) Tenant may, upon one hundred eighty (180) days written notice,
elect to terminate this Lease, whereupon rent shall abate
retroactive to the date of loss;
(ii) All insurance proceeds received or to be received under the
Casualty Insurance Policy shall be the sole property of the
Landlord;
(iii) Tenant shall have no responsibility whatsoever with regard to the
repair or replacement of any of the Improvements or other
damages to the Demised Premises caused by such casualty.
C. If a portion of the Demised Premises or the Improvements shall be
damaged or destroyed by fire or other casualty and this Lease is not
terminated as provided for herein, then:
(i) Rent shall not abate;
(ii) Tenant shall, at its own costs and expense, repair and/or rebuild
the Improvements and all damages to the Demised Premises;
(iii) Landlord shall fully cooperate in making available to the Tenant
at Tenant's request such insurance proceeds from the Casualty
Insurance Policy as may be reasonably necessary to complete
such repair or restoration by Tenant;
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(iv) Upon the completion of such repair or restoration, Landlord shall
cooperate in turning over or assigning to Tenant any excess
insurance proceeds remaining with the understanding that excess
proceeds shall be and remain the sole and exclusive property of
the Tenant.
Nothing herein shall require the Tenant to pay or expend in the repair or
restoration of the improvements or Demised Premises any sum of money
in excess of the insurance proceeds with regard to the Casualty Insurance.
13. Indemnity. Except to the extent caused by the negligence of Landlord or its
agents, employees or contractors and except for the environmental issues as described
hereinafter, Tenant will indemnify and hold harmless Landlord from and against any and all
liability, loss, damages, expenses, causes of action, suits, interest, fines, penalties, claims, and
judgments (to the extent that the same are not paid out of the proceeds of any policy of insurance
furnished by Tenant to Landlord pursuant to Section 11 hereof) arising from injury, or claim of
injury, during the term of this Lease to person or property of any and every nature, and from
any matter or thing, growing out of the occupation, possession, use, management, improvement,
construction, alteration, repair, maintenance, or control of the Demised Premises, the
Improvements now or hereafter located thereon, the facilities and equipment thereon, the streets,
sidewalks, vaults, vault spaces, curbs, and gutters adjoining the Demised Premises, the
appurtenances to the Demised Premises, or the franchises and privileges connected therewith,
or arising out of Tenant's failure to perform, fully and promptly, or Tenant's postponement of
compliance with, each and every term, covenant, condition, and agreement herein provided to
be performed by Tenant. Except to the extent caused by the negligence of Landlord or its
agents, employees or contractors and except for the environmental issues as described
hereinafter, Tenant, at Tenant's own cost and expense, will defend by counsel of Tenant's
choosing any and all suits that may be brought and claims which may be made, against
Landlord, or in which Landlord may be impleaded with others, upon any such above-mentioned
liability, loss, damages, expenses, costs of action, suits, interest, fines, penalties, claims, and
judgments and shall satisfy, pay, and discharge any and all judgments that may be recovered
against Landlord in any such action or actions, in which Landlord may be a party defendant, or
that may be filed against the Demised Premises, or the Improvement thereon, or the
appurtenances, or any interest therein, and in the event of the failure of Tenant to pay the sum
or sums for which Tenant shall become liable as aforesaid, then Landlord may pay such sum or
sums, with all interest and charges which may have accrued thereon, and the amount so paid by
Landlord shall be payable by Tenant to Landlord upon demand.
14. Assignment; Subletting.
A. So long as Tenant is operating its entertainment and support facilities for
the adjacent Riverboat Gambling Operation upon the Demised Premises,
it is agreed and understood that Tenant may sub-lease portions of the
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Demised Premises or Improvements thereon to sub-lessees or
concessionaires who operate activities or facilities which compliment said
Riverboat Gambling Operation or are ancillary thereto, all without the
consent of the Landlord.
B. Except as otherwise provided herein, Tenant may not sublease any portion
of the Demised Premises or assign its interest in this Lease nor transfer
ownership of the Riverboat without the prior consent of the Landlord,
which consent shall not be unreasonably withheld; provided however, that
no such Landlord consent shall be required with respect to any such
assignment or transfer to any person or entity to which any constituent
joint venture partner of Elgin Riverboat Resort could transfer all or any
portion of its joint venture interest without Landlord's consent as
contemplated by Section 23C hereof.
15. Environmental Conditions.
A. Landlord represents and warrants to Tenant as follows:
(i) The environmental condition of the Demised Premises is
substantially as set forth in the Request for Specific Cleanup
Objectives prepared by Landlord's environmental consultant,
ATEC Associates, Inc. ("ATEC"), a copy of which is attached
hereto as Exhibit C and made a part hereof (the "Request");
(ii) The Request has previously been submitted by Landlord to the
Illinois Environmental Protection Agency ("IEPA"); and
(iii) IEPA has by letter dated December 8, 1993 approved said
Request (the "Approval").
B. In conjunction with Tenant's development of the Demised Premises,
Landlord shall cause ATEC to identify those areas of soil contaminated by •
the presence of any Hazardous Materials (as hereinafter defined) to be
identified by staking those areas in the field. Tenant shall cause the
excavation, removal and disposal of such contaminated soils off-site in a
• manner conforming with the procedures outlined in the Approval and in
the most cost effective manner as prevailing circumstances reasonably
permit; provided, however, that Landlord shall bear responsibility for any
and all additional or premium costs incurred by Tenant in connection with
the excavation, removal and disposal of said contaminated soils. With -
respect to any Hazardous Materials which are transported off-site from the
Demised Premises or are disposed of or migrate naturally therefrom, for
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all intents and purposes, Landlord, exclusively, shall be deemed the
"generator" of such materials and shall be deemed the party which has
arranged for treatment or disposal of the same. Landlord shall sign all
manifests acknowledging such status, which may be required in connection
therewith. For the purposes of this Section 15 B. and Section 15 C.
below, the phrase "additional or premium costs" shall mean:
(i) all costs in excess of the normal and customary costs of
excavation, removal and disposal of clay and soils which are not
contaminated by the presence of any Hazardous Materials and
which would have been removed in any event as a necessary
measure incidental to Tenant's development of the Improvements
upon the Demised Premises;
(ii) all costs of excavation, removal and disposal of clay and soils
which would not have been excavated and removed but for the
contamination thereof by the presence of any Hazardous
Materials;
(iii) all costs of importing and replacing such contaminated clay and
soils which would not have been excavated and removed but for
the contamination thereof with clean fill, clay and soil; and
(iv) all costs of implementing and maintaining any groundwater
treatment system relating to any such contamination.
C. If Tenant encounters any further environmental contamination of the
Demised Premises during Tenant's development and/or subsequent use and
occupancy of the Demised Premises, Landlord shall confer with Tenant
in good faith as to any additional remediation which may be necessary or
desirable in connection therewith. To the extent Landlord and Tenant
agree in writing that any such additional remediation is necessary or
desirable as a result of the presence of any other Hazardous Materials
upon the Demised Premises, Tenant shall cause the same to be performed
and Landlord shall be responsible for the payment of all costs incurred by
Tenant in connection with such remediation. Tenant shall cause such
remediation to be completed in the most cost effective manner as
prevailing circumstances reasonably permit. In the event Landlord and
Tenant cannot agree in writing as to the need and/or cost to be borne by
Landlord for any such additional remediation, Tenant may nonetheless
cause the remediation thereof but Landlord will be responsible for all costs
related thereto which are incurred in a cost effective manner under
prevailing circumstances if such remediation was required under then
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applicable federal or state environmental law. Notwithstanding the
foregoing, Landlord shall not be responsible hereunder for any costs
incurred by Tenant with respect to the remediation of any environmental
contamination of the Demised Premises if the source of such
contamination arises from acts, omissions, events or circumstances which
first arose subsequent to January 20, 1994 and are not the result of any
• acts or omissions by the Landlord, its agents or employees.
D. Included within the Demised Premises is certain land commonly known
as the "Bunge Property." Landlord and Tenant acknowledge that the
Bunge Property currently is contaminated by the presence of Hazardous
Materials thereon. Landlord has submitted to the IEPA a Corrective
Action Plan dated July 21, 1994 with respect to the Bunge Property. The
IEPA has by letter dated August 1, 1994 approved the plan with certain
conditions as therein specified. Landlord, at its sole cost and expense,
promptly shall cause all remediation necessary or appropriate with respect
to such environmental contamination of the Bunge Property to be
completed in full compliance with such IEPA approval and in compliance
with all other requirements of federal, state or local environmental laws.
E. Landlord shall indemnify and hold harmless Tenant, its constituent
partners, and their respective officers, shareholders, directors, partners,
employees and agents from and against any and all liabilities, losses,
damages, expenses, claims, causes of action, suits, interest, fines,
penalties, claims and judgments whatsoever arising out of the presence of
any Hazardous Materials or any other environmental contamination or
environmentally adverse conditions existing on or emanating from the
Demised Premises as of the date of this Lease. Tenant shall notify
Landlord promptly of any known claims with respect to which Tenant is
claiming indemnification rights hereunder and shall tender the defense of
all such matters to Landlord. Landlord, at its own cost and expense, will
defend by counsel of its choosing any and all such suits that may be
brought and claims which may be made against Tenant, or in which
Tenant may be impleaded with others, and shall notify, pay and discharge
any and all judgments that may be recovered against Tenant in any such
action or actions in which Tenant may be a party defendant. Tenant, at
its sole discretion and cost, may retain attorneys to monitor and/or
participate in the defense of any such claims. Landlord shall direct its
legal counsel to cooperate with Tenant's legal counsel in connection
therewith. Any settlement of any such claim which may adversely affect
the Demised Premises, the use or operation of the improvements thereto,
Tenant's Riverboat Gambling Operation, the rights of Tenant under this
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Lease or any combination of the foregoing, shall be subject to Tenant's
prior written approval, which approval shall not be unreasonably withheld.
F. To the extent Tenant makes any payments for which Landlord is
responsible hereunder or Tenant otherwise shall be entitled to any
reimbursement or other payments pursuant to the provisions of this
Section 15, Landlord shall pay the same within thirty (30) days of
presentation by Tenant of an invoice therefor. In the event Landlord fails
to make such payment, Tenant shall have the right to setoff such amounts
together with interest accrued thereon until paid, at a rate equal to one
percent (1%) less than the "Prime Rate" as published daily in the Wall
Street Journal against any and all rentals and other payments next coming
due hereunder until such costs have been paid in full through the
application of such rental credits.
G. The term "Hazardous Materials" shall mean(1)any "hazardous substance"
as defined by the Compensation and Liability Act of 1980(42 U.S.C.
Section 9601 et.seq.); (ii) asbestos; (iii) polychlorinated biphenyls;
(iv) petroleum, oil, gasoline (refined and unrefined) and their respective
by-products and constituents; and (v) every other substance which by any
federal, state or local governmental requirements requires special handling
in its use, collection, storage, treatment or disposal.
16. Default by Tenant; Termination.
A. The occurrence of any of the following shall constitute a material default
and breach of this Lease by Tenant:
(i) Any failure by Tenant to pay the rental, taxes or other sums
required to be paid by Tenant hereunder where such failure
continues for thirty (30) days after written notice thereof by
Landlord to Tenant; or
(ii) There shall be filed by or against Tenant in any court or other
tribunal a petition in bankruptcy or insolvency proceedings or for
reorganization, which proceedings are not dismissed within 180
days; or
(iii) Pursuant to any other default or breach of this Lease by Tenant,
Landlord obtains a money judgment against Tenant in a court of
competent jurisdiction, and such judgment is not paid to Landlord
within sixty (60) days after such judgment becomes final.
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(iv) The operation by Tenant at any other location in the State of
Illinois of a gaming operation following Tenant's receipt of its
Permanent License unless Tenant continues its Riverboat
Gambling Operation as herein contemplated without violating (v)
below.
(v) Subject to the provisions of Section 23 hereof, a failure by one
or both of the current joint venture partners of Tenant to maintain
in the aggregate not less than a 51% ownership interest in Tenant
at all times.
Landlord's sole and exclusive remedy as against the Tenant by reason of
the occurrence of a material default and breach of this Lease by Tenant
shall be to terminate this Lease, whereupon all of Tenant's rights and
interest in and to the Improvements on the Demised Premises shall be
forwarded to and become the sole and exclusive property of, the
Landlord, including any bond posted by Tenant.
B. The occurrence of any default or breach of this Lease by Tenant, other
than those set forth in subsection A above, shall be deemed not to be
material hereunder, and Landlord shall not have the right to terminate this
Lease for any such default. In the event of such a non-material default,
which default continues for thirty (30) days (or such shorter cure period
as may be specifically provided elsewhere in this Lease) after written
notice thereof by Landlord to Tenant (provided that, if the nature of such
default is such that the same cannot be cured within such cure period,
Tenant shall not be deemed to be in default if Tenant shall within such
period commence such cure and thereafter diligently pursue the same to
completion), Landlord's sole remedy shall be damages, as determined by
a court of competent jurisdiction.
C. Landlord hereby agrees that upon a default by Tenant hereunder, Landlord
shall, concurrently with the delivery of written notice of such default to
Tenant, deliver a copy of such notice to any Leasehold Mortgagee and
that in addition to the Leasehold Mortgagee's rights, as set forth in
Section 5 above, Landlord hereby agrees that said Leasehold Mortgagee
shall have the right to cure any such default by Tenant hereunder.
17. Default by Landlord; Termination.
A. Upon any breach or failure by the Landlord to perform any of its
covenants or obligations as set forth herein, or any breach by Landlord of
its representations as set forth herein, which breach continues for more
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than thirty (30) days following written notice thereof by Tenant to
Landlord, said action shall constitute a material default and breach of this
Lease by Landlord.
B. Upon a breach of this Lease by Landlord, the Tenant shall have the right,
at its election:
(i) To recover from Landlord such damages as shall have been
incurred by Tenant as a result thereof without terminating this
Lease;
(ii) To terminate this Lease and, in connection therewith, to require
Landlord to purchase from Tenant the Improvements and, if so
elected by Tenant, the Tenant's Trade Fixtures, all at their then
fair market value and to recover from Landlord Tenant's lost
profits. For purposes of the preceding sentence, the term "lost
profits" shall mean the then present value of the projected Net
Operating Income of the Tenant (determined by assuming
consistent future results equivalent to the Net Operating Income
received by Tenant during the immediately preceding twelve
months of the Lease or such shorter time period for which Net
Operating Income can be determined if twelve months of
operations have not transpired) for the remainder of the then
current term of this Lease without regard to any renewal options
not then exercised (but in no event for a period greater than five
(5) years), with the interest factor used in discounting such
resulting projected total of Net Operating Income to then present
value being equal to the LIBOR rate of interest for one year rate
commitments as of a date most near the date of such breach.
(iii) To have and enjoy such other and further remedies as may be
available at law or in equity under Illinois law.
(iv) To require the Landlord at its sole expense to remedy any
environmental conditions revealed by the environmental audit,
provided that if the Landlord is unable to do so in a timely
fashion, Tenant shall be entitled to terminate the Lease and
recover the release of the bond and any option monies paid or
provided under or pursuant to the Development Agreement.
All remedies set forth herein are cumulative.
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18. Voluntary Termination by Tenant. At the Tenant's sole discretion and election,
the Tenant may declare this Lease terminated at any time. Upon such voluntary termination by
Tenant it is agreed and understood:
A. Tenant shall have the right to remove all of its Trade Fixtures;
B. All Improvements on the Demised Premises as well as the Riverboat shall
be forfeited to and remain the sole and exclusive property of the Landlord,
as well as the balance of the bond posted by Tenant;
C. Tenant shall have no further liability to Landlord whatsoever with regard
to this Lease.
Notwithstanding any such termination, the Landlord shall still perform its obligations of
indemnity to Tenant as set forth under Section 15 above.
19. Tenant's Expenses. Landlord shall reimburse Tenant upon demand for all
reasonable expenses, including attorneys' fee, incurred by Tenant in connection with any
litigation to enforce any obligation of Landlord which is in default hereunder. If the leasehold
interest of Landlord hereunder shall hereafter be held by more than one person, corporation, or
other entity, and if litigation shall arise by reason of a dispute among such person, corporations,
or other entities, and if Tenant is made a party to such litigation without Tenant's consent, then
Landlord shall reimburse Tenant upon demand for all reasonable expenses, including attorneys'
fees, incurred by Tenant in connection with any such litigation.
20. Landlord's Expenses. Tenant shall reimburse Landlord upon demand for all
reasonable expenses, including attorneys' fee, incurred by Landlord in connection with the
collection of any rent in default hereunder, or the termination of this Lease by reason of a
material default of Tenant, as such term is defined above, or the enforcement of any other
obligation of Tenant which is in default hereunder, or the protection of Landlord's rights
hereunder, or any litigation or dispute in which Landlord becomes a party or otherwise becomes
involved, without fault on its part, relating to the Demised Premises or Landlord's rights or
obligations hereunder. If the Leasehold Estate of Tenant hereunder shall hereafter be held by
more than one person, corporation, or other entity, and if litigation shall arise by reason of a
dispute among such persons, corporation, or other entities, and if Landlord is made a party to
such litigation without Landlord's consent, then Tenant shall reimburse Landlord upon demand
for all reasonable expenses, including attorneys' fees, incurred by Landlord in connection with
any such litigation.
21. Waiver of Trial by Jury. To the extent permitted by law, Landlord and Tenant
hereby waive trial by jury in any litigation brought by either of the parties hereto against the
other on any matter arising out of or in any way connected with this Lease or the Demised
Premises or the Improvements thereon.
•
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22. Merger. In no event shall the leasehold interest, estate, or rights of Tenant
hereunder, or of the holder of any mortgage upon this Lease, merge with any interest, estate,
or rights of Landlord in or to the Demised Premises, it being understood that such leasehold
interest, estate, and rights of tenant hereunder, and of the holder of any mortgage upon this
Lease, shall be deemed to be separate and distinct from Landlord's interest, estate and rights in
or to the Demised Premises, notwithstanding that any such interests, estates, or rights shall at
any time or times be held by or vested in the same person, corporation, or other entity.
23. Definition of "Landlord" and "Tenant. "
A. The term "Landlord" as used in this Lease shall at any given time mean
the person or persons, corporation or corporations, or other entity or
entities who are the owner or owners of the reversionary estate of
Landlord in and to the Demised Premises. In the event of any conveyance
or other divestiture of title to the reversionary estate of Landlord in and
to the Demised Premises, the grantor or the person or person, corporation
or corporations, or other entity or entities who are divested of title shall
be entirely freed and relieved of all covenants and obligations thereafter
accruing hereunder, and the grantee or the person or persons, corporation
or corporations, or other entity or entities who otherwise succeeds or
succeed to title shall be deemed to have assumed the covenants and
obligations of Landlord hereunder so assumed by said grantee or
successor. Tenant agrees to attorn to any such grantee or successor.
B. Notwithstanding anything to the contrary as stated in Section 23A above,
it is agreed and understood that the City of Elgin, Illinois, shall at all
times remain obligated to indemnify the Tenant under the provisions of
Section 15 above (concerning environmental liability) and shall be
personally liable to the Tenant by reason of its breach or failure to do so
as provided in Section 17 above.
C. The term "Tenant" as used in this Lease shall mean Elgin Riverboat
Resort, an Illinois joint venture consisting of Nevada Landing Partnership
and RBG, L.P., as its joint venture partners. Landlord hereby
acknowledges and approves of the current ownership of the joint venture
interests in Tenant and agrees as follows:
(i) Any constituent joint venture partner of Elgin Riverboat Resort
may transfer all or any portion of its joint venture interests
therein to any Affiliate of such joint venture partner without
Landlord's consent. For the purposes hereof, "Affiliate" shall
mean any person or entity directly or indirectly, through one or
more intermediaries, controlling, controlled by, or under
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common control with such joint venture partner. For the
purposes hereof, control shall mean the possession, whether
through the ownership of voting securities, by contract or
otherwise, of the power to direct the management and policies of
such entity. In connection herewith, Landlord acknowledges and
agrees (a) that Affiliates of Nevada Landing Partnership include,
without limitation, any person or entity directly or indirectly,
through one or more intermediaries, controlling, controlled by or
under common control with Circus Circus Enterprises, Inc., a
Nevada corporation, and(b) that Affiliates of RBG, L.P. include,
without limitation, any person or entity directly or indirectly,
through one or more intermediaries controlling, controlled by or
under common control with Hyatt Development Corporation, a
Delaware corporation;
(ii) In addition to the foregoing right to freely transfer interests in
Elgin Riverboat Resort to Affiliates, the current constituent joint
venture partners of Elgin Riverboat Resort (in combination with
their respective Affiliates) may syndicate or otherwise transfer
ownership interests in Tenant to any persons or entities provided
that during the Basic Term hereunder, the current joint venture
partners (in combination with their respective Affiliates) shall
retain not less than a fifty-one percent (51%) ownership interest
in Tenant (the "Minimum Retained Interest") at all times.
(iii) In addition to the aforementioned rights to transfer ownership
interests in Tenant without Landlord's consent under Sections
23C(i) and 23C(ii) above, additional ownership interests in
Tenant may be transferred to third parties with the prior consent
of Landlord.
(iv) Notwithstanding anything herein contained to the contrary, all
transfers of ownership interests in Tenant and/or its constituent
joint venture partners shall be subject to all applicable
requirements of law and gaming regulations.
24. Landlord's Representations and Warranties.
A. Quiet Enjoyment. Landlord covenants that at all times during the term of
this Lease, so long as Tenant is not in material default hereunder, Tenant
shall have the quiet and peaceable enjoyment of the Demised Premises.
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B. Landlord has good and merchantable title to the Land and Demised
Premises and has fully power and authority to make, enter into and
perform its obligations under this Lease.
C. Landlord shall provide to Tenant, as soon as reasonably practicable, at
Landlord's expense with respect to the first One Million Dollars
($1,000,000) of coverage, a leasehold policy of title insurance acceptable
to Tenant, issued by Near North National Title Corporation, insuring the
leasehold estate of Tenant in the Demised Premises and containing a 3.0
zoning endorsement indicating that the Demised Premised and
Improvements may be lawfully used for the conduct of the visitors center,
restaurant, movie theater, retail stores and other entertainment purposes
in conjunction with the Riverboat Gambling Operation as are contemplated
by Tenant. The cost of any such coverage above $1,000,000 which
Tenant may desire to obtain shall be borne by Tenant.
D. Simultaneously with the execution of this Lease, Landlord shall provide
to Tenant a certified copy of the resolutions of the Elgin City Council
authorizing the execution and performance of this Lease by Landlord,
together with an opinion of William A. Cogley, Esq.; Corporation
Counsel of the City of Elgin, directed to Tenant in form and substance
reasonably acceptable to Tenant's counsel opining that the City has full
power and authority to make, execute and perform its obligations under
this Lease; that the Lease is a valid and binding obligation of the City
enforceable in accordance with its terms; and that the City has full power
and authority to make the environmental indemnities as set forth herein.
25. Renewal Options.
A. Provided that Tenant is not then in material default hereunder, Tenant
shall have the right to renew this Lease for four (4) successive terms of
five (5) years each.
B. To exercise any such renewal option, the Tenant shall give written notice
thereof to the Landlord not later than 180 days prior to the expiration of
the then current term of this Lease.
C. During any such extended term of this Lease, all of the terms and
conditions of this Lease shall remain unmodified and in full force and
effect.
26. Notices. Any and all notices, demands, elections or other communications
between the parties shall be in writing and shall be delivered personally or by certified mail,
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return receipt requested. If mailed, such notice shall be deposited, postage prepaid, in the
United States mail, addressed to the intended party at the address set forth below.
If to Landlord: City of Elgin
150 Dexter Court
Elgin, IL 60120
Attn: City Clerk
If to Tenant: Elgin Riverboat Resort
c/o Mr. Peter A. Simon
Circus Circus Enterprises, Inc.
2880 Las Vegas Blvd. South
Las Vegas, Nevada 89109
With copies to: REG, L.P.
200 West Madison Street
38th Floor
Chicago, Illinois 60606
Attention: Mr. Richard L. Schulze
and
Philip M. Kayman, Esq.
Neal, Gerber & Eisenberg
Suite 2200
Two North LaSalle Street
Chicago, Illinois 60602
Any party may change the person or address to or at which it is to receive notice
hereunder by giving notice of such change as provided herein.
27. Estoppel Certificates. Each party hereto agrees that at any time and from time
to time during the term of this Lease, within ten (10) days after request by the other party hereto
or by any Leasehold Mortgagee, it will execute, acknowledged, and deliver to the Leasehold
Mortgagee or such other party or to any prospective purchaser, assignee, or any other mortgagee
designated by such other party, a certificate stating (a) that this Lease is unmodified and in force
and effect (or if there have been modifications, that this Lease is in force and effect as modified,
and identifying the modification agreements); (b) the date to which rent has been paid;
(c) whether or not there is any existing default by Tenant in the payment of any rent or other
sum of money hereunder, and whether or not there is any other existing default by either party
hereto with respect to which a notice of default has been served, and, if there is any such
default, specifying the nature and extent thereof; and (d) whether or not there are any set-offs,
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defenses, or counterclaims against enforcement of the obligations to be perfoinied hereunder
existing in favor of the party executing such certificate.
28. Payments of Money; Interest. All amounts whatsoever which Tenant shall be
obligated to pay to Landlord pursuant to this Lease shall be deemed rent, and in the event of the
nonpayment by Tenant of any sum of money which Tenant from time to time shall be obligated
to pay to Landlord under any provision of this Lease, Landlord shall have the same rights and
remedies by reason of such nonpayment as if Tenant had failed to pay an installment of Basic
Rent or Percentage Rent under Section 2 hereof.
29. Non-Waiver. No waiver by Landlord of any breach by Tenant of any term,
covenant, condition, or agreement herein and no failure by Landlord to exercise any right or
remedy in respect of any breach hereunder, shall constitute a waiver or relinquishment for the
future of any such term, covenant, condition, or agreement or of any subsequent breach of any '
such term, covenant, condition, or agreement, nor bar any right or remedy of Landlord in
respect of any such subsequent breach, nor shall the receipt of any rent, or any portion thereof,
by Landlord, operate as a waiver of the rights of Landlord to enforce the payment of any other
rent then or thereafter in default, or to terminate this Lease, or to recover the Demised Premises,
or to invoke any other appropriate remedy which Landlord may select as herein or by law
provided.
30. Surrender.
A. Tenant shall, on the last day of the term of this Lease or upon any
termination of this Lease pursuant to Section 16, 17 or 18 hereof, or upon
any other termination of this Lease, well and truly surrender and deliver
up the Demised Premises, with the Improvements then located thereon
into the possession and use of Landlord, without fraud or delay and in
good order, condition and repair, free and clear of all lettings and
occupancies, free and clear of all liens and encumbrances other than those
existing on the date of this Lease and those, if any, created by Landlord,
without any payment or allowance whatever by Landlord on account of or
for any buildings and improvements erected or maintained on the Demised
premises at the time of the surrender, or for the contents thereof or
appurtenances thereto; provided, however, that Tenant's Trade Fixtures,
personal property, and other belongings of Tenant or of any subtenant or
other occupant of space in the Demised Premises shall be and remain the
property of Tenant or of such subtenant, and Tenant or such subtenant (as
the case may be) shall have a reasonable time after the expiration of the
term of this Lease to remove the same.
B. Notwithstanding the provisions of Section 30A above, in the event that the
Demised Premises is surrendered following the occurrence of any casualty
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loss thereon, then unless the Tenant elects to repair said casualty loss and,
in connection therewith, to use any Casualty Insurance proceeds, the
Tenant shall be obligated only to deliver the Improvements in the
condition as they may be following such casualty loss and, as provided
above, all such Casualty Insurance proceeds received under the Casualty
Insurance policy shall remain the sole and exclusive property of the
Landlord.
31. Memorandum of Lease. Each of the parties hereto will, promptly upon request
of the other, execute a memorandum of this Lease in form suitable for recording setting forth
the names of the parties hereto and the term of this Lease, identifying the Demised Premises,
and also including such other clauses therein as either party may desire, except the amounts of
Basic Rent payable hereunder.
32. No Oral Changes. This Lease may not be changed or modified orally, but only
by an agreement in writing signed by the party or its authorized agent against whom such change
or modification is sought to be enforced.
33. Bind and Inure. The terms, covenants, conditions, and agreements of this Lease
shall bind and inure to the benefit of the parties hereto and their respective successors and
assigns.
34. Applicable Law. This Lease shall be governed and construed in accordance with
the laws of the State of Illinois.
35. Entire Agreement. This Lease shall constitute the entire agreement of the parties
concerning the subject matter set forth herein, all other prior agreements and understandings
having been merged herein and extinguished hereby. In the event of any conflict between the
terms and provisions of this Lease and the terms and provisions of the Development Agreement
with respect to the use, maintenance or operation of the Demised Premises, the terms and
provisions of this Lease shall prevail. Upon commencement of the Riverboat Gambling
Operation, any and all provisions of the Development Agreement relating to the use,
maintenance or operation of the Demised Premises shall be superseded in their entirety by the
terms and provisions of this Lease.
36. Obligation to Refrain from Discrimination. The parties hereto hereby covenant
by and for themselves, their heirs, executors, administrators, and assigns, and all persons
claiming under or through them that this Lease is made and accepted upon and subject to the
following conditions: There shall be no discrimination against or segregation of any person or
group of persons on account of sex, race, color, creed, national origin, or ancestry, in the
leasing, subleasing, transferring, use, or enjoyment of the land herein leased, nor shall the lessee
himself, or any person claiming under or through him, establish or permit any such practice or
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practices of discrimination or segregation with reference to the selection, location, number, use,
or occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the land herein leased.
37. Option to Purchase.
A. Tenant shall have the right and option, exercisable at any time throughout
the Basic Term and any extensions or renewals thereof upon Tenant's
exercise of its renewal options hereunder, to purchase the Demised
Premises and Land (the "Option").
B. To exercise the Option, Tenant shall execute and deliver to Landlord that
certain Real Estate Sale Agreement in the form attached hereto as
Exhibit D, inserting therein the appropriate date of closing, purchase price
(as determined below) and other information necessary to complete said
form.
C. The purchase price to be paid pursuant to the exercise the Option shall be
determined as follows:
The purchase price shall be determined by an appraisal to be conducted
by a jointly-approved appraiser utilizing the income method of determining
fair market value based upon the then current value of the projected rental
income stream hereunder. The capitalization rate to be utilized in
determining the fair market value shall be determined by the appraiser
based on the average rate applicable to comparable types of properties
over the previous 24 month-period starting on the date of exercise of the
Option.
D. The deed of conveyance conveying the Demised Premises and Land
pursuant to the Contract shall contain a reverter in favor,of Landlord
whereby said property will revert to the Landlord, without additional
consideration or payment to Tenant, in the event Tenant shall have failed
to commence construction either on the West Parcel, the East Parcel, or
the Demised Premises conveyed pursuant to the deed, of a hotel, having
not less than 150 guest rooms, of a quality equal to or exceeding the
standard of quality currently applicable to the Nevada hotel properties
owned by an affiliate of Nevada Landing, Inc. (which is an affiliate of one
of the constituent partners of Tenant), on or prior to a date which is not
later than three (3) years after the date of the deed or such later date as
may be necessary due to labor strikes or disputes, transportation delays,
abnormal adverse weather conditions not reasonably capable of being
anticipated, or other casualties or causes beyond Tenant's reasonable
control which cause construction work stoppage or other delays with
-40-
respect to construction progress (any such cause for delay being deemed
to be the result of "Force Majeure"), or Tenant shall have failed to
complete such construction within five (5) years after the date of the deed
(subject to extension for delays resulting from Force Majeure). With
respect to such hotel, Tenant shall seek to provide a product of the highest
quality deemed appropriate by Tenant given the anticipated use of the
hotel and the prevailing market conditions therefor including consideration
of the inclusion of an executive wing or floor in the hotel. Provided the
foregoing requirements are complied with, all other design criteria with
respect to the hotel (including, without limitation, the final decision
whether to include an executive wing or floor in the hotel) shall be
determined by Tenant in its sole discretion.
E. Following an exercise of the Option, the real estate transaction shall be
governed and controlled in accordance with the terms of the Contract
(notwithstanding any subsequent termination or expiration of this Lease
prior to the closing of the acquisition of the Demised Premises and the
Land pursuant to the Contract). However, notwithstanding Tenant's
purchase of the Demised Premises upon such Option exercise and any
resultant termination of this Lease, the specific covenants and obligations
of Landlord and Tenant to one another set forth in Sections 3 and 8 hereof
with respect to the Riverboat Gambling Operation shall survive such
closing and any resultant termination of this Lease for the balance of the
then remaining current term hereunder. Landlord and Tenant shall enter
into an agreement with respect to the post-closing survival of such
covenants and obligations for the balance of the then remaining current
term hereunder contemporaneously with the closing of the acquisition of
the Demised Premises by Tenant.
IN WITNESS WHEREOF, the parties have caused this agreement to be executed on the
date first written above.
CITY OF ELGIN, ELGIN RIVERBOAT RESORT,
a municipal corporation an Illinois partnership
By RBG, L.P.,
By. - one of its general partners
Mayor
By HC'�3 Corp' ation,
Attest: its ge ` e
V (
/f1 P. f'! rn�-- By: I ,
City Clerk Nr.chard L. I hulze
-41-
ELGIN RIVERBOAT
INDEX TO EXHIBITS
Exhibit A : Land
Exhibit B: Intergovernmental Agreement and
the Kane County Forest Preserve District Easement
Exhibit C: Request for Specific Cleanup Objectives
Exhibit D: Real Estate Sale Agreement
CA80821\11942\0001.1
-42-
EXHIBIT A
LAND
PARCEL 1 :
LOTS 1 THROUGH 14 , BOTH INCLUSIVE, IN BLOCK 3 OF 0. DAVIDSON' S
ADDITION TO ELGIN, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS .
PARCEL 2 :
LOTS 1 THROUGH 11 AND 18 THROUGH 28, ALL INCLUSIVE, IN BLOCK 2 OF
0. DAVIDSON' S ADDITION TO ELGIN, IN THE CITY OF ELGIN, KANE COUNTY,
ILLINOIS .
ALSO
LOTS 1 THROUGH 12 AND THE VACATED ALLEY LYING NORTHWESTERLY OF THE
NORTHWESTERLY LINE OF SAID LOTS 1 TO 10 INCLUSIVE AND SOUTHEASTERLY
OF THE SOUTHEASTERLY LINE OF SAID LOTS 11 AND 12 IN BLOCK "C" OF
DAVIDSON' S GROVE AVENUE SUBDIVISION, IN THE CITY OF ELGIN, KANE
COUNTY, ILLINOIS .
PARCEL 3 :
THAT PART OF VACATED WELLINGTON AVENUE LYING IN PART OF THE
SOUTHWEST QUARTER OF SECTION 13 , TOWNSHIP 41 NORTH, RANGE 8 EAST OF
THE THIRD PRINCIPAL MERIDIAN LYING NORTHERLY OF THE NORTHERLY RIGHT
OF WAY OF NATIONAL STREET AND SOUTHERLY OF A LINE DRAWN FROM THE
INTERSECTION OF THE SOUTHERLY RIGHT OF WAY LINE OF LAKE STREET WITH
THE WESTERLY RIGHT OF WAY OF WELLINGTON AVENUE, NORTHEASTERLY TO A
POINT ON THE NORTHERLY LINE OF LOT 15, BLOCK 2 OF RAILROAD ADDITION
TO ELGIN, SAID POINT BEING 72 . 75 FEET SOUTHWESTERLY OF (AS MEASURED
ALONG SAID NORTHERLY LINE) THE NORTHEAST CORNER OF SAID LOT 15,
BEING SITUATED IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS.
PARCEL 4 :
LOTS 4 , 5, 6 AND THE SOUTHERLY 55 FEET OF LOTS 3 AND 7 IN BLOCK 2
OF RAILROAD ADDITION TO ELGIN, IN THE CITY OF ELGIN, KANE COUNTY,
ILLINOIS .
PARCEL 5 :
EASEMENT AGREEMENT MADE BY THE KANE COUNTY FOREST PRESERVE, TO' THE
CITY OF ELGIN, FOR AN UNDERGROUND, ABOVE GROUND EASEMENT, AND A
CONSTRUCTION EASEMENT FOR INGRESS AND EGRESS FOR USES ASSOCIATES
WITH A RIVERBOAT GAMBLING SITE, INCLUDING PARKING, SERVICE,
MAINTENANCE, STRUCTURAL SUPPORT AND PEDESTRIAN AND VEHICULAR
TRAFFIC RECORDED SEPTEMBER 21, 1993 AS DOCUMENT NUMBER 93K72210 .
PERMANENT INDEX NOS . 06-13-358-013 (affects Parcel 1)
06-13-359-040 (affects Parcels 2 and 3)
06-13-379-017 (affects Parcel 4)
C:\80821\11942\LArm
EXHIBIT B
INTERGOVERNMENTAL AGREEMENT
between the
FORREST PRESERVE DISTRICT of KANE COUNTY
and the
CITY OF ELGIN, ILLINOIS
for the
GRANT OF EASEMENT OVER AND UPON CERTAIN REAL ESTATE
WHEREAS, the City of Elgin, Illinois (hereinafter referred to
as "Elgin" ) desires to acquire certain easement rights over and
upon real estate located between National Street and Prairie Street
along the East side of the Fox River in the city of Elgin, Illinois
and more particularly described on Exhibit A attached hereto and
incorporated herein by this reference (the "Real Estate" ) ; and
WHEREAS, the Forest Preserve District of Kane County
(hereinafter referred to as the ("DISTRICT") is the owner of the
Real Estate and agrees to grant to Elgin an easement providing for
certain rights of ingress and egress over, under, and upon the Real
Estate .
NOW THEREFORE, for and in consideration of gcocl and valuable
consideration in hand paid, receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1 . The DISTRICT hereby agrees to convey to Elgin the right
of ingress and egress in the form of an easement over and
upon the Real Estate ("Easement") , which Easement shall
include the right to construct improvements reasonably
necessary to the operation of a riverboat gambling
facility on and about the real estatelocated adjacent- to
the Real Estate. The Easement shall be made in a
recordable form executed by the proper officers of the
DISTRICT and shall be subject to termination and a right
of reversion of all rights granted in the event the
Easement is not used for a consecutive period of three
months- or longer in. connection with a riverboat gambling
facility.
The foregoing time period shall be extended in the event
the failure to use the Easement is caused by a "Force
Majeure Event" (as hereinafter defined) , in which case, .
thepermitted time period for failure to use the Easement
shall be equal to that period during which the Force
Majeure Event continues or, if the Force- Majeure Event is
a casualty, that reasonable period of time necessary for
Elgin (or its tenants, successors, and assigns) to cause
all damage caused by such casualty to be repaired using
•. due diligence. A "Force Majeure Event" shall mean. any
event, the occurrence of which is beyond the reasonable
control of Elgin (or its successors, and assigns ) ,
including without limitation, strikes, lockouts, war,
insurrection, civil commotion, casualty, or materials
shortages.
2 . Elgin hereby agrees to accept the Real Estate as is, with
no warranties made by the DISTRICT either expressed or
implied as to the conditions existing upon or about the
Real Estate or as to the suitability of the Real Estate
for any improvements intended to be constructed thereupon
by Elgin or its agents , contractors, successors, and
assigns.
3. The DISTRICT neither approves, recommends nor agrees to
participate in any of the construction, installation or
maintenance of any improvements, structural changes or
other modifications contemplated by Elgin or its agents,
contractors, successors,, and assigns .
4 . The closing of the grant of Easement provided for herein
shall occur within thirty days from the effective date
hereof. Any title work, surveys, or other such
examinations required by Elgin shall be done at the sole
cost of Elgin and any additional costs incurred or delays
occasioned by the results of such examination and any
efforts undertaken to cure same shall be borne solely by
Elgin. It is intended hereby that the DISTRICT shall not
incur any costs or become liable in any way for injuries
or damages associated with the transfer contemplated by
this agreement, any rerouting of the existing bike path
or alterations- therein or the riverboat gambling facility
contemplated by Elgin. Accordingly, Elgin hereby agrees
to be responsible for and defend any and all claims,
including the payment of reasonable attorney' s fees and
litigation costs and expenses, injuries, damages, or
causes of action brought against Elgin which in any way
relate to the erection, placement, maintenance, or repair
of any improvements relating to the proposed riverboat
gambling facility. .•
5. This agreement is ' entered into pursuant to 50 I.L.C.S.
•
605/1 et. secr., and shall be governed by Illinois law.
Nothing contained heroin shall be construed to limit or
- — deny- to Elgin the ability or right to assign or alienate
the rights contemplated by this agreement.
. 6. The effective date of this agreement shall be the date -on
which this agreement is approved and executed by the
parties as set forth below, but in no event shall it be
earlier than the preliminary finding of suitability by
the Illinois Gaming Board.
•
IN WITNESS THEREOF, the partiesa - hereto set their hands
and seals the 71/1"46—day of A
, 1993 and the
signatories hereto represent that 1' ey are duly authorized to
execute this agreement on behalf of the r respective bodies.
CITY OF ELGIN FOREST PRESERVE DISTRICT
OF KANE COUNTY
By: ff A lift : Oki 4 di A,t 9
Its yor ts Presi• t
•
•
• •
•
•
EASEMENT AGREEMENT
This agreement is entered int this R(574 day of
,_.r✓ , 1993, between the City of Elgin, Illinois, a
municip. corporation (hereinafter referred to as "City" ) , and the
Kane County Forest Preserve (hereinafter referred to as "Forest
• Preserve") .
Now, therefore, in consideration ; of the mutual promises
contained herein, the receipt and sufficiency of which are hereby
acknowledged it is hereby agreed:
1 . Subject to the limitations set forth below, the
. Forest Preserve hereby grants an under-ground, above-ground
easement, and a construction easement thereinafter referred to as
"Easements") to the City for ingress ands egress for uses associated
with a riverboat gambling site, including parking, service,
maintenance, structural support and pedestrian and vehicular
traffic, which Easements shall be located between National Street
and Lake Street, Elgin, Illinois legally described as follows:
That part of the Southwest Quarters of Section 13,
Township 41 North, Range 8 East Of the Third Principal
Meridian, in the City of Elgin, Mane County, Illinois,
described as follows:
•
Beginning at the intersection of the North line of Lot 1
in Block 3 of 0'. Davidson's Addition to Elgin with the
Easterly *right-of-way line of the former Chicago, Aurora
and Elgin Railway; thence South 38 degrees 38 minutes 39
seconds East (assumed bearing) along said Easterly right--
of-way line extending through part of Lots 1 through 4 in
Block 3 of said 0. Davidson' s Addition, 264. 16 feet to a
point of the Southerly line of Lot 4 in said Block 3 that
' is 191 .06 feet Southwesterly of the most Easterly 'corner
- - i
•
of said Lot 4 (as measured along said Southerly line) ;
thence South- 52 degrees 54 minutes 1 seconds West along
said Southerly line 23 .94 feet to appoint that is 215 .0
feet. Southwesterly of said most Easterly corner (as
measured along said Southerly ling') : thence South 37
degrees 15 minutes 05 seconds East extending through part
of Lots 5 and 6 in said Block 3, a distance of 132 .05
feet to a point in the Southerly line of said Lot 6 that
is 215 . 0 feet Southwesterly of the Most Easterly corner
of said Lot 6 (as measured alongll the Southerly line
thereof) ; thence North 52 degrees 54 minutes 18 seconds
East along said Southerly line 27. 17 feet; thence south
38 degrees 38 minutes 57 seconds East along the Easterly
right-of-way line of said Chicago, Aurora and Elgin
Railway extending through part of Lots 7, 8, and 9 in
said Block 3, a distance of 198 . 14 feet to a point of the
Southerly line of said Lot 9 that is 183. 0 feet
Southwesterly of the most Easterly ;corner of said Lot 9
(as measured along the Southerly ]eine thereof) ; thence
• South •49 degrees 58 minutes 07 seconds East along said
right-of-way line extending through part of Lots 10, 11
and 12 in said Block 3, a distance of 186. 25 feet to a
point on the Southerly line of the; Northwesterly three-
quarters of said Lot 12 that is 142.0 feet Southwesterly
of the Westerly line of Grove Avenue (as measured along
said Southerly line) ; thence Southi26 degrees 16 minutes
27 seconds East along said right-ofrway line, 100.62 feet
to a point on the Northerly line of National Street that
is 163.99. feet Westerly of the W sterly line of Grove
Avenue (as measured along said Northerly line of National
Street) ; thence South 63 degrees 24 minutes 56 seconds
West along said Northerly line, 195 feet, more or less,
to the Easterly shoreline of the Fox River; thence •
Northwesterly along said shoreline, 841 feet, more or
less, to the North line of Lot 1 aforesaid; thence North
52 degrees 5.4- minutes 18 seconds lEast along said North
line, 95 feet, .more or less, to the Point of Beginning.
Said parcel contains 2.73 acres, wore or less.
•
2. Only during the period of construction of the
riverboat gambling facility, the City,lwith prior written approval
of the Forest Preserve may reroute the existing bicycle path, which
is on the property described in this Easement, to a suitable
alternative. At the conclusion of the construction period, the
City shall return the bicycle path trough the Easement area and ,,.
•
shall be paid for solely by the City, its successors and/or
assigns, and any reasonable expenses incurred by the Forest
Preserve in connection therewith, including reasonable attorney' s
fees shall be paid by the City, its successors and/or its assigns.
3 (a) .
The Easement shall become effective upon the last to
occur of the following: 1 ) preliminary finding of suitability for
a riverboat gambling license by the Sate of Illinois for
•
operations adjacent to the Easement location, 2) receipt of any
required Corps of Engineers site permit anld 3) State of Illinois
Division of Water Resources waterway permits) . Thereafter, if the
gambling facility shall at any time for a consecutive period of
three months or longer discontinue use of the Easement in its
operations as a riverboat gambling facility, the Easement granted
hereunder shall terminate and all rights granted hereunder shall
revert to the Forest Preserve.
3(b) . The foregoing time period shall be extended in the
event the failure to use the Easement is caused by a "Force Majeure
Event" (as hereinafter defined) , in whichicase, the permitted time
period for failure to use the Easement 11 shall be equal to that
period during which the Force Majeure Event continues or, if the
Force Majeure Event is a casualty, that reasonable period of time
necessary for Elgin (or its tenants, successors, and assigns) to
cause all damage caused by such casualty to be repaired using due
diligence. A "Force Majeure Event" shall mean any event, the
occurrence of which is beyond the reasonable control of Elgin (or
its successors, and assigns) , includin without limitation,
strikes, lockouts, war, insurrection, civil commotion, casualty, or
materials shortages.
4. City shall hold the Forest Preserve harmless from
any and all suits, claims, causes of action or other liability
arising out of use of the Easements by the City or its successors
and assigns .
S . In connection with the use Of the Easements, City or
its successors and assigns shall not unreasonably restrict public
access to the Fox River or the Forest Preserve bike path or
facilities which are located upon or about the Easements.
6. City shall reasonably cooperate with Forest Preserve
in any future efforts of Forest Preserve to construct a bike trail
underpass adjacent to the Easement at National Street.
7 . This agreement is conditional on construction of a -
gambling facility, adjacent to the E .sement, subject to the
issuance of any license ' or permit required by state, federal or
local law or regulation.
KANE COUNT FOREST PRESERVE CITY OF ELGIN
•
Y \ L /l J
/ I. IBY: � Z
tR *Qtr - - iy
Attest: Attest:
SQ.-Mt/4f, WIP4ti /A-(1 .141"-'
�' J City'
Illinois trivironnientai rrotccuun A .e.lit..y
LEAKING UNDERGROUND STORAGE TANK PROGRAM
Request for Site Specific Cleanup Objectives
A. SITE IDENTIFICATION
, ..
. .
IEPA Generator Number(10 Digit): 03 1438523 1
-'•:-
(leave blank if unknown)
• ; • / ' i ,; . '-.
1EMA t/• 9 310 19 ,.....
SiteName: Former D.11, Martin Site (City of Elgin) .
; .
Site Address(Not a P.O.Bo.x): 210 South Grove Avenue
Elgin bane
..
City: County:
B. TEE REQUEST FOR SITE SPECIFIC CLEANUP OBJECTIVES IS DU .*TO:
1. A release from an UST system containing used oil.
2. A release from an UST system containing a hanirdous substance as defined in 35 III. Mm.Code,Subtitle G.
Section 731.112.
3._ A release from an UST system containing a specific chemical.
4.___X____. A release from an UST system forWhich generic or site-specific objeCtives have been established BUT DUE TO SITE-
SPECIFIC FACTORS,TILE OWNER IS REQUESTING TIIAT NO 17URTIIER ACTION BE REQUIRED.
C.ENCLOSURES
Please check the enclosures attached to this form:
1. .X Media of concern
2.__I_ Amount of media remaining above cleanup objectives
3...1_( _ Description of facility operations
4.—X Identification of adjacent businesses or facilities
5. X Description of the site arca
6.-1— Identification of sensitive receptors
7. )___L_ Summary of sitc geology/hydrogeology
X
8.— Identification of conduits for migration of contamination
9. X Identification of risks and hazards/ooicns for minimizing these risks or hazards
10.-2L-Type and depth of pavement
X
•11. Justification for this request/alternate technologies
X
12.— Site maps
X
13. Analytical summaries
If you checked#4 on Part II of this form then all of the enclosures(1 through 13)must be provided with this form.
D.SIGNATURES
Owner Operator(if different from Owner)
Name: Raymond Moller Name:
Title: Director of City Property Title:
Signature: Signature:
Date: Date:
The Agency is authorized to require this information under 415 ILCS 5/4 and 21.Disclosure of his irformation is required.Failure to do so may result in a civil
penalty up to$25,000.00 for each day the failure continues,a fine up mo S50,000.00 and imprisonmcni up to five years.This form has been approved by the Forms
Management Center.
IL 532 2285
LPC 511 Oct-93 EXHIBIT C
ilk-JV 3�l '9.3 1 '38 ATEC FAX o'9 -Z4 P.2/12. .13
„s„ttr, ,. nr�enta( Protection Agency
LEAKING UNDERGROUND S7 )RAGE TANK PROGRAM s
/ Rcquest for Site Specific Cleanup ObJeciives u
i
A. SITE IDENTIFICATION u't ll,,.,
IEPA Generator Number 10 Digit); ;` 7. -
( S ): 0314385231 ' ' r••t ;: =
. (1eavo blank if unknown) • ` .+i t`-..e
lIIvtA#• 931019 'A t 1.>- r,.1
,�.,.i,z, if,. ^.ter
Site Name: • 11111= . 14 r i Site C i ri of E 1._i ' 4i:" ." F„
Site Address(Not a P.O.1?ox):_?t 0 Sou:.` Grove A�ienue .61' ', 3
i'
•
city; Elgin • Court'y: Kane `•'
B. THE REQUEST FOR SITE SPECIFIC CLEANUP OBJECTIVES 1S DUE TOt
.1. A release from an UST syitcui containing used ail.
2. A release front an UST system containing a hazardous substance u dt iucd tri 35.111.Adm.Code,Subtitle G,
Sectio%'731.112.
3._A release flout art UST T system containing a specific chemI U,
4...1...._ A release from an UST system for which generic or sitc•spe6fic objectives have been established BUT DUE TO SITE•
SPECIFIC FACTORS.'RIC OWNER IS REQUESTING'IT IAT NO FURTHER ACTION BE REQUIRED.
C.ENCLOSURES •
•
Please check the enclosures attached to this form:
1. •
X Mafia of concern11
2.._x__ Amount of nicctia remaining about cleanup objectives •
3....L1' Dasc,7iptlon of facility operations•
• 4. 1-5-- Identification of adjacent busitwsscs or facilities1
5.X_, Description of toe;itu arca d
6.-1.1--- Identification of sensitive rec:c:ptors
7. X Su:Alta y bf site geologylhydrog otogy. . • g
8. ' X •Identitcatlon of conduits for tnigratiou otcon;aminatlon l�
9. Identification of risk and ti.zatc.scptiot:s for mirdinizing these risks orbawds . 14
:0. X Type and depth of pavement11
•I1. X fustificationfor this Miuc:anoretic ct:;chnologics .
12, Site maps .
13. X An.slytical Sutmnariea .
t .
If you checked tt4 on Part 11 of tilts fo.rnt then all of this enelosur(ts(1 through 13);mut ha providrrd with this form.
D.SIGNATURES
Qom' Operator(V fifrerenl from Owner),
Nainc: Raymond Moller •
Name:
(Title: Dire tec. of Cit Property • Ma: • .
Signature: ' • L .
/170- - Sigtiaturo:.
f
D:L: //' ?(' {) Date:
The Agency Ir authottzed to(squire this;nrom a-ton uNJer 415 ILCS 5/4 acrd 21.Disclowre of this Informxiaa Is requital. ilurc to dv so rruv team:to a civil
penalty up to$23.fo0.o0 fur sed,Jay ilia/aura couinues,a r,„e up to 35).000.00 i...d:mpriionmuent up Is;floc y Oars.nidi runt bee;�iau ov-pr•nwt by aha Tocua I
Maragsrae=Ccnte:.
XL 532 2285
LPC 511 Oct-93
Illinois Environmental Protection Aliency
LEAKING UNDERGROUND STORAGE TANK PROGRAM
Request for Site Specific Cleanup O1jectives
A. SITE IDENTIFICATION
0318050001
IE•PA Generator Number(10 Digit): •
(leave blank if unknown)
IFMA# 913689 % t 4'
Site Name: City of Elgin ��
Site Address(Nota P.O. Boz):
240 South Grove Avenue ��
City: Elgin County: Kane
•
B. THE REQUEST FOR SITE SPECIFIC CLEANUP OBJECTIVES IS DU4 TO:
1. X A release from an UST system containing used oil.
2. A release from an UST system containing a hazardous substance as defined in 35 III. Adm.Code,Subtitle G.
Section 731.112.
3. A release from an UST system containing a specific chemical.
4._XL_ A release from an UST system for'which generic or site-specific ohjccivcs have been established BUT DUE TO SITE-
SPECIFIC FACTORS,'HIE OWNER IS REQUESTING TEAT NO IURTIIER ACTION BE REQUIRED.
C.ENCLOSURES
Please check the enclosures attached to this form:
1. X Media of concern
2. X Amount of media remaining above cleanup objectives
3. X Description of facility operations
4. X Identification of adjacent businesses or facilities
5. X Description of the site arca
•
6. X Identification of sensitive receptors
7. X Summary'of site geology/hydrogcology
8. X Identification of conduits for migration of contamination
9. X •
Identification of risks and hazards/options for minimizing these risks Or haruds
10. Type and depth of pavement
11. X Justification for this request/alternate technologies
12. X Site maps
13. X Analytical summaries
If you checked #4 on Part B of this form then all of the enclosures(1 through h3) must be provided with this form.
D.SIGNATURES
Owner Operator(if different from Owner)
Name: Raymond Moller Name:
Title: Director of City Property Title:
Signature: Signature:
Date: - Date:
The Agency is authorized to require this information under 415 ILCS 5/4 anti 21.Disclacurc of this information is-required.Failure to do so may result in a civil
penalty up to$25,000.00 for each day We failure continues,a fine up to$50,000.00 and imprisonmcn up to five years.This form has bccn approved by the Forms
Management Center.
IL 532 2285
LPC 511 Oct-93
NOV 30 '93 15 39 ATEC FAX 706/911 -7013t F,. /1"7.' '
RInnots r. truuu entaProtecti m n Agency
•
• LEAKING UNDERGROUND STORA E TANK PROCRAiv1
Request for Site Specific Clean p Objectives '
•
;}, .ryti4, I
A. SITE IDENTIFICATION •>� Q
ICPAGenerator Number(10Digit): 0318050001 � � - i
- • :1
. (leave blank if unknown �� . r • fix+ a
913689 fib ,ora , 'y,ty
• IEMA#' • __ 4 AY _,,�;y
Site Name: City of E1ein 1 t{� .. c�', _ 1t,
Site AddrCsa(Net a P.O. 8ox1' 240 South Grove Avenue j ��' 1
City:t Agin CocowlKane ,:t.1
.41
A
B. THE REQUEST FOR SITE SPECIFIC CLEANUP OBJECTIVES I' DUE TO: ~�
ri
1. X A rcleaao from an UST system containing used oil.
2. A release from til UST system containing a hazardous substance as defined in 35 I1I.Mm.Code,St:btitie 0,
Section 731,112. •
3. A release from an UST system containing a specific chemical.
4...X__. A release from an UST system for'wblch generic or sac-specific objectives have been si tablisi J SIll'DUE TO SIM-
• SPECIFIC FACTORS,THE OWNER IS Ri.QUJt:.ST[NG TI IA1 NO I?URTHER ACTION BE REQUIRED.
. ' C.ENCLOSURES
Please check the enclosures attached to this form: .
1. X Media of coo t:ern
2..i— Amount of media remaining above cleanup ubjtxtives
3. X • Description of facility.operations
. . 4.MT— Identifia.tion of adjacettt tnit,:u..t.i4eL or faciiiic3
5. Description of the site area -
4,.X— P;catiflcation of setua.iNc re.taptors _ •
7._.X.__Summary'of site geologyTydrogeotogy . '
8. Identification ot.condults fir migration of conu'e iaatiOn .
9.X Identification of risks and azards`opticns for minimizing thcso isl3 or h:lards
10. Type and depth of pave ncnt . •• . r
-11. R . 7wtifcation for this rcquestlaiternate technologies .
lo_ R Site maps
13, X Analytical aunl.'narlcs
• If you checked#4 on Part B of this farm than an of the enclowurfs(1 through 13, must be provided with this form.
• D.S1GNATU1flS
11
•
, .Owner Operator(' different from Owner)
Name: Raymond Moller - Namur • -
II. Tido: . D re�tar of City Proo rtTitle: _
Stgnauxo: /1-`,.•. • .- ' j.•''• . 44, - Signature: 1
' Date: • .' f( 3_.:7 - ? Dau:: _
•
•
ma Asocy is lurltorivei to require tiers infrrrration under 415 ILCS 5/4 and 21.Dreclaruro of ere infortmi ion la requiter!.Failure to do Pommy town ie 16.4 3
laotta1ry up(3. .5,010.GO for tad%day the Wort contiaucs,a fico up to$50,000.00 arwl Imus.• :rued.p to five 'nets.This tom ha beta approveLl tsy;he t:N;:;i
lt+sI.;unetit Caacr.
IL. 532 228S
LPC 511 Oct-93 .
Request For Specific Cleanup Objectives City of Elgin,Illinois
BACKGROUND
Over the past two decades, commercial, retail, and industrial entities have been leaving the City
of Elgin's downtown area. This exodus has resulted in large brownfield areas, many of which
have experienced some type of environmental impact. The City has aggressively sought to
revitalize the downtown area by soliciting commercial enterprises to locate in the inner-city. The
City has prepared many locations by clearing old buildings, removing underground tanks, and
performing substantial environmental remediations using limited City funds.
On August 26, 1993, the Elgin Landing, a private company, received the tenth and last license
from the Illinois Gaming Commission to operate a riverboat casino. In accordance with the
Illinois gaming regulations which gives preference to blighted areas, Elgin was an ideal
candidate for the riverboat license. The location for this enteitainment complex is at one of the
brownfield areas prepared by the City of Elgin. This locatidn is the subject of this request for
alternate clean-up objectives. A total of 13 underground tanks were removed from the site. To
date, approximately 2,000 cubic yards of contaminated soil have been removed and managed as
petroleum contaminated soil. An additional 600 cubic yards' are scheduled to be removed this
week. There are 6 groundwater monitoring wells on the subject site and 3 monitoring wells on
the adjacent site, also owned by the City.
As a component of the construction, the top 3 feet of soil will be removed from the building and
;
1
parking areas. Some of the remaining contamination will e eliminated as a result. At many
locations, contamination in the soil exists below the grow dwater, approximately 5 to 7 feet
below the surface.. Excavation of soils in the saturated zone is impractical.
While the sources (i.e. tanks and highly contaminated soil) have been or will be removed,
contamination remains above the generic and common site specific clean-up standards. The City
of Elgin requests approval to leave all remaining contaminants in soil in place. The City will
continue to investigate the site through groundwater studies and will design and operate an
appropriate groundwater remediation program.
Request For Specific Cleanup Objectives City of Elgin,Illinois
C. Enclosures
1. Media of Concern
The City of Elgin is requesting that certain constituents above generic LUST
cleanup objectives be allowed to remain in the soils. For the most part, these
constituents are several feet below grade, will be located under an asphalt or
concrete paved area, and/or will have additional soils placed over the area to
achieve certain construction grades.
Following construction of the improvements to the subject site (the Pavilion), the
City of Elgin will begin evaluation/implementation of a groundwater remediation
system.
2. Amount of Media Remaining Above Cleanup Objectives
The amount of media (soil) above generic cleanup objectives is estimated to be
2,030 cubic yards. However, because construction activities will require the first
three feet of soils to be removed, some of the contaminated media must be
removed from the subject site. The amount of contaminated media to be removed
from the subject site because of construction activities is estimated to be 440
cubic yards. Therefore, the amount of media remaining above generic cleanup
objectives is estimated to be 1,590 cubic yards. The attached Exhibit 1 illustrates
the locations of the contaminated media remaining in-place, the depth of the
samples, the contaminated media to be removed, and the location of the Pavilion
and parking surfaces.
3. Description of Facility Operations
Currently, the subject site is a level field. The subject site at one time housed
automobile dealerships, auto repair shops, auto body shops, and other operations
typically dealing with the automotive maintenance industry.
As part of a redevelopment for this area, the City of Elgin purchased the subject
site and razed the buildings. At three of the property locations on the subject site,
underground storage tanks were removed, consequently resulting in the
development of soil and groundwater data for the subject site.
The subject site is currently being prepared to be the location of the Pavilion for
Elgin Landing. Elgin Landing is an entertainment complex consisting of two
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Request For Specific Cleanup Objectives City of Elgin,Illinois
movie theaters, a restaurant, sports bar, and housing the land based operations for
a riverboat casino. Upon completion, approximately 75% of the subject site will
be covered with buildings, parking lots, driveways, and loading docks.
In preparing the building and paving areas, approximately two to three feet of
geotechnically unsuitable material will be removed. Those portions which are
contaminated will be managed off-site as petroleum contaminated soil.
During construction of the Pavilion and parki g facilities, there will be minimal
excavation into soils where contaminated soils emain. A management plan which
will include field screening and management op excavated contaminated soils will
be developed and utilized during constru'tion. Proper procedures during
construction will be taken to minimize con .ct. by workers with contaminated
soils. While there will be public access o the facility at completion of
construction, the remaining contaminated soil. will be covered and protected.
4. Identification of Adjacent Businesses or Facil ties
The subject site is bounded by Lake Street to the north, South Grove Avenue to
the east, National Street to the south, and the Fox River to the west.
North of Lake Street is additional property owned by the City of Elgin. This
property will be used by the developers of E gin Landing to build the riverboat
casino. It is unknown as to what the future use of this property may be, but
speculation is that it will be used in a manner which complements the
entertainment complex being constructed on i e subject site.
East of South Grove Avenue is another vacan parcel of land owned by the City
of Elgin. This vacant parcel is part of he entertainment complex being
constructed on the subject site. This vacant p. Icel will house a three level parking
garage, which will provide parking for the P.vilion.
South of National Street is a shopping develo o ment consisting of a grocery store,
pizza parlors, sandwich shops, dry cleaner', and other commercial facilities
associated with shopping developments.
West of the subject property is the Fox Rive .
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Request For Specific Cleanup Objectives City of Elgin,Illinois
5. Description of the Site Area
The site area can be described as a co mercial development area. The
entertainment complex being constructed, as ell as the shopping development
south of the subject site, fit this general use •escription.
6. Identification of Sensitive Receptors
The potential for human exposure to the con .. inated soils to be left in place is
very low. The contaminants are already sev:ral feet below the existing grade.
Improvements to the property include concr.te slabs and asphalt parking areas
(See item 10). In addition, additional soils wig 1 be brought to the site to achieve
the final grades for the building. Therefore, th- potential for physical contact with
the contaminated soils is very low.
The physical properties of the contaminants also provide protection to human
exposure, because of the contaminants' low v.por pressures, low solubility, and
the contaminant's affinity to adsorb onto the sails. These same physical properties
also minimize exposure to the other recepto s and/or environmental media. A
table summarizing these physical properti.s is presented on Table 1. An
explanation of these physical properties is at :ched as Exhibit 2.
Groundwater will be addressed and remediat • as necessary in the near future.
Exposure through groundwater is more relev. t than exposure through soil. There
are no groundwater users between the subjec property and the Fox River.
7. Summary of Site Geology/Hydrogeology
Geology
The site regionally lies within the Central laciated Physiographic Province.
This province is characterized in general •y surficial unconsolidated glacial
deposits overlying sedimentary bedrock unit•. Based on the "Summary of the
Geology of the Chicago Area" (H.B. Willman, 1971), the depth to bedrock in the
site vicinity is estimated at approximately 0 feet below grade. The site is
located on the bedrock geologic map close to a contact between the Silurian
dolomite and underlying Ordovician M.quoketa shale. The surficial
unconsolidated deposits on site are mapped as the Mackinaw member of the
Henry Formation. These deposits are typi ally sand and gravel deposits in
valleys. They are generally well sorted and evenly bedded, and derived from
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Request For Specific Cleanup Objectives City of Elgin,Illinois
glacial outwash. Due to the site location ao jacent to the Fox River, recent
Holocene-age fluvial deposits are expected to form a thin veneer over Henry
Formation deposits on the site. The site itself 's located within the flood plain of
the Fox River.
The site has an elevation of approximately 70: feet, MSL, with a relatively flat
topography. The one block which comprises the site consists of grass-covered
flat lots, with silty-clay soils exposed in man areas. Surface runoff leaves the
site via storm drain manholes and gutters alon:. streets. Surface runoff from the
site is toward Lake Street to the north, South rove Avenue at the center of the
site, National Street to the south, and the Fo River to the west. The overall
terrain in the local area slopes west towards t e Fox River.
The USDA Soil Survey of Kane County, Illinois indicates that the shallow soils
in the vicinity of the site are classified as Milli gton loam. The Millington loam
soils primarily consist of level or nearly lev:l, poorly drained soil on alluvial
bottom lands adjacent to streams. Typically, t e surface layer is calcareous black
loam and mottled, black, silty-clay loam abo t 28 inches thick. The subsoil is
typically calcareous, stratified, mottled, very dark gray and black sandy-loam,
and silty-clay loam about 14 inches thick.
Beginning in late March 1993, a soil boring i l vestigation was performed on the
northwest portion of the site (the former D. . Martin site), which is currently
designated Environmental Project Area #2 (S- Exhibit 1). The borings included
SB-1, SB-2, SB-3, DHM-5, DHM-6, DHM-:, and MWDHM-1. Boring data
indicates that the shallow soils at the D.H. Martin site consist basically of sand
and gravel fill material to a depth of betwee approximately 3 - 5 feet below
grade. This material appears to include re-worked fluvial deposits and
construction rubble such as brick and stone. A ternating layers of sand and gravel
were encountered between approximately 5 . i d 14 feet below grade. The sand
and gravel deposits are believed to be part of t ,e Mackinaw member of the Henry
Formation. A sandy-silt to a silty-clay was en ountered at approximately 14 feet
below grade. Clay was noted in boring SB-2 as containing small pebbles. The
cohesive silt and clay deposits encountered ;t this depth on site appear to be
representative of the Minooka Moraine, whic may underlie much of the Henry
Formation deposits in the area. Saturat-I soils were first encountered at
approximately 4.5 - 6 feet below grade wit in the fill and Henry Formation
deposits.
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Request For Specific Cleanup Objectives City of Elgin,Illinois
Additional borings were performed throughout the study site. These borings were
located in Environmental Project Area #3 (Pavilion Site), Environmental Project
#4 (Bunge Site), and Environmental Project #5 (Wellington/South Grove Site).
The results of these borings also indicated surficial fill material of sand and
gravel, sometimes including silt and clay within the fill. Fill material extended
to a depth ranging from approximately 0.5 to h feet below grade, with an average
thickness of approximately 4 - 5 feet. As on e D.H. Martin portion of the site,
the fill was underlain by sand and gravel of the Henry Formation. Silt and clay
lenses were present within the sand and gra el, especially in borings located in
the eastern portion of the site along Wellington Avenue. The additional borings
along both sides of South Grove Avenue, extended to a maximum depth of
approximately 11 - 13 feet below grade.
Hydrogeology
Shallow groundwater in the local vicinity is i fluenced by the presence of the Fox
River, which flows generally from north to s•uth and eventually discharges to the
Illinois River. The Fox River valley is t e drainage basin for the area and
shallow groundwater generally discharges to the Fox River as baseflow. Deeper
groundwater flow at or just east of the site ay be structurally influenced by the
Maquoketa Shale. The Maquoketa is a relati ely impermeable bedrock unit, and
regionally dips to the east toward Lake Mic igan. In certain locations, deeper
groundwater may flow down-dip to the east .cross the Maquoketa surface.
As previously indicated, shallow groundwat:r on site occurs within the surficial
fill and Henry Formation sands and gravels Limited groundwater monitoring
data from site monitoring wells MW-4 through MW-8 indicates that shallow
groundwater flow direction in the vicinity of these wells is west towards the Fox
River. Localized variations in flow direction may occur on site, however the
general flow direction throughout the site is -xpected to be west toward the Fox
River.
The City of Elgin and the site area are se ed by a municipal water supply.
Based on conversations with Rich Hoke, •ity of Elgin Building Maintenance
Superintendent, the City of Elgin utilizes the Fox River for the majority of its
• drinking water supply. The intake for the •irinking water supply from the Fox
River is several miles north (upstream) o the subject site. The City also
supplements this with supply wells located i various areas throughout the City.
The closest supply wells to the study site are reportedly located in the vicinity of
Slade Avenue, approximately one mile or mere from the study site. ATEC did
not investigate which geologic units the City wells may be screened in, but based
on the geologic setting, it is anticipated that he supply wells may be tapping the
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Request For Specific Cleanup Objectives City of Elgin,Illinois
•
shallow Silurian Dolomite or a unit deeper th the Maquoketa Shale. Pumping
of the water supply wells are not expect to influence the local shallow
groundwater flow direction on the study site.
8. Identification of Conduits for Migration of Contamination
The levels of contaminants requested to be ler t on site are sufficiently low that
there is minimal risk of migration through un , turated soil. The risk of explosion
from migrating fumes is not applicable at his site. The primary migration
pathway is through groundwater.
The type of soils existing at the site within the :roundwater table consist of sands
and gravels. This soil type is such that pote tial for contaminant migration is
high. However, limited groundwater saimaing at the site indicates that
groundwater has not been significantly impact-• by the constituents found in the
soils. The groundwater flows westerly and di'charges to the Fox River.
Completion of the Pavilion, the associated par 'ng and landscaping will minimize
the migration of contamination from the vadosi zone into the groundwater. Paved
surfaces of the site will effectively eliminate i filtration of surface water beneath
the site. Surface water will be managed by a n mber of storm sewers and drains,
which will provide direct conduits of the surf.ce waters to the Fox River.
9. Identification of Risks and Hazards/Options for Minimizing These Risks or
Hazards
The physical properties of the constituents t• be left in place are presented in
Table 1. As shown, these contaminants are n•t very mobile in the environment
which will be created at this site. Also, follo ing construction of the Pavilion,
the City of Elgin will begin evaluation/i plementation of a groundwater
remediation system.
10. Type and Depth of Pavement
Elgin Landing will be an 80,000 square foot entertainment complex. The first
floor of Elgin Landing will cover 51,000 squ: e feet of ground. The first floor
of the building will consist of a typical concr- e slab on grade at an elevation of
712.75 feet, MSL. The five inch slab on grad will be reinforced with rebar, be
underlain by a vapor barrier, and placed on six inches of well compacted granular
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Request For Specific Cleanup Objectives City of Elgin,Illinois
fill. The property currently is at an elevation of approximately 708 feet, MSL.
Site preparation of the building site will r uire the removal of three feet of
geotechnically unsuitable soils. The removal of these soils will essentially be
beneath the footprint of the Pavilion (approximately 51,000 square feet). Removal
of this geotechnically unsuitable material will result in an elevation of 705 feet,
MSL for the excavated grade. Several feet of Fill material will be imported to the
site to raise the grade to achieve establishing the floor elevation of 712.75 feet,
MSL. This fill material will more than likely consist of suitable geotechnical soils
or crushed stone. The fill material will be ompacted to meet the necessary
geotechnical specifications of the project.
A surface parking lot to the south of the 'avilion will be constructed. This
parking lot is approximately 50,400 square f-:t. The parking area will consist of
asphalt. The asphalt will be 21/2 to 3 inch s thick. It will be underlain by
approximately 8 to 12 inches of granular subb:se. Site preparation of the parking
lot will require removal of approximately 2'2 to 3 feet of soils. If this soil is
contaminated, it will be removed from th- site and managed as petroleum
contaminated soil. If this soil is not contamina ed, it may be used for landscaping
or to achieve final grades around the building.
The remaining portions of the subject site will be graded and landscaped.
11. Justification For This Request/Alternate Tech ologies
The City of Elgin requests alternate cleanup o o jectives for the following reasons:
1. Groundwater is the principal media of concern at this site. Following
construction of the Pavilion, th- City of Elgin will begin
evaluation/implementation of a groun o water remediation system.
2. Although existing groundwater data is limited, based on available
groundwater data, most of the con .minants detected in soil are not
detected in groundwater, or, if detects., are below Class 1 groundwater
standards. The constituents detected to date above Class 1 groundwater
standards and/or IEPA LUST objectives have been benzene,
benzo(a)anthracene, lead, arsenic, an. chromium. Table 2 presents a
summary of the groundwater data coil- ted to date.
3. The construction of buildings and pavi ment over the site will effectively
serve as an impermeable bather. Infil .tion will be minimized.
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Request For Specific Cleanup Objectives City of Elgin,Illinois
4. At the levels requested to be left on site, mobility of the contaminants in
this environment will be slight. Most of the contaminants tend to sorb to
soil.
5. Because of the disturbed nature of the site (ie demolition and filling have
moved soil around the site) there is no classic "plume" of soil
contamination. Rather, there are multi!le pockets of relatively low detects.
6. Groundwater is encountered approxi ately five to seven feet below the
surface. Much of the remaining con .mination is found in this interval.
Removal of soil below groundwater i not practical.
Table 3 presents the constituents and concent .tions requested to remain in place.
Exhibit 2 discusses the physical properties . d mobility.
The City of Elgin is also requesting that the IEPA consider alternate cleanup
objectives for parameters listed in Table 4. he parameters presented in Table 4
are based on sidewall sampling from one of t e tank excavations (Excavation 6).
This excavation has been backfilled with di. fill. The list of parameters and
maximum concentrations presented in Tabl: 4 represent what has been left in
place at this excavation site.
Sidewall samples from Excavation 6 were an. yzed for total metals. Many of the
metals (beryllium, copper, nickel, silver, -inc) analyzed for are not LUST
pollutants and may be naturally occuring. T erefore, these metals should not be
considered in the determination of alternate ci eanup objectives. It should also be
noted that the samples were analyzed for total metals and not TCLP metals.
Therefore, this data cannot be used in deter ining alternate cleanup objectives.
In addition, arsenic, chromium, and mercu were not detected above the Type
A cleanup objectives in TCLP samples take from adjacent soil borings. Only
lead was detected above Type A cleanup obj i ctives in TCLP samples taken from
adjacent soil borings.
Sidewall samples from Excavation 6 were also analyzed for total cyanide and total
recoverable phenolics. These are not LUST i'ollutants. Therefore, total cyanide
and total recoverable phenolics should not b: considered in the determination of
alternate cleanup objectives.
Sidewall samples from Excavation 6 were al o analyzed for 7-BHC. This is not
a LUST pollutant and should not be conside ed in the determination of alternate
cleanup objectives. The seven LUST poll itant pesticides detected in sidewall
sampling were not detected in samples from subsequent borings.
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Request For Specific Cleanup Objectives City of Elgin,Illinois
Sidewall samples from Excavation 6 detected chloroform and tetrachloroethylene.
These two compounds were detected in adja4ent samples from soil borings at
higher levels. However, the soil boring and depth in which tetrachloroethylene
was detected will have those soils removed because they occur within three feet
of the surface and consist of geotechnically unsuitable soils.
The levels of 1,1,1-Trichloroethane found in the soils are such that they could not
cause groundwater to exceed the Class I groundwater standard of 200 ug/1.
Dibromomethane and 4-methyl-2-pentanone were not detected in adjacent soil
sampling.
The sidewall sampling in Excavation 6 also detected bis(2-Ethylhexyl)phthalate,
which is a PVC plasticizer. It's presence in a sidewall sample is not normally
associated with LUSTs. This constituent wags not detected in adjacent samples
from soil borings.
The IEPA should also be aware that the City of Elgin intends to conduct
additional soil sampling in the vicinity of soil borings where soils less than three
feet in depth are identified as being contaminated and will be removed. This
additional soil sampling will be conducted to determine the horizontal extent of
contamination and to determine the amount 9f soils which need to be managed
off-site as petroleum contaminated soils. No soil sampling beneath three feet will
be conducted in these areas.
12. Site Maps
a) USGS Quadrangle - Topography. Weal logs will be requested. There are
no wells between the subject site and the Fox River.
b) Exhibit 1 - Environmental Project Location Map
This map presents the soil borin locations, outlines of the tank
excavations, and the footprint of the avilion building and parking lot to
be constructed on the site.
c) Sheet l of l
This map shows the grading plan fpr the subject site, footprint of the
building, parking lot, and Iandscaping.
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Request For Specific Cleanup Objectives City of Elgin,Illinois
13. Analytical Summaries
See attached summary tables.
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Constituents Exceeding Cleanup Objectives or Constituents Detected with no Cleanup Objectives in Soil Borings
Soil Boring B-4 B-5 B-6 B-7 B-8 B-10 B-11 B-12
Depths 7-9 ft 3—Mt 1-3 ft 5-7 ft 5-7 ft 7-9 ft 5-7 ft 7-9 ft
OVM/HNU reading 1.4 ppm 35 ppm - 11 ppm 0.2 ppm 0 ppm 0 ppm 0 ppm 0 ppm
Date 2/3/93 ' 2/3/93 2/3/93 2/4/93 2/4/93 3/5/93 3/5/93 3/5/93
Sampling by Ainlay Ainlay Ainlay Ainlay Ainlay Ainlay Ainlay • Ainlay
Methods TCLP Metals TCLP Metals TCLP Metals TCLP Metals TCLP Metals TCLP Metals TCLP Metals TCLP Metals
' Pest/PCB 8080 Pest/PCB 8080 Pest/PCB 8080 Pest/PCB 8080 Pest/PCB 8080 Pest/PCB 8080 Pest/PCB 8080 Pest/PCB 8080
VOA 8240 VOA 8240 VOA 8240 VOA 8240 VOA 8240 VOA 8240 VOA 8240 VOA 8240
Type A Type B Semi—Voa 8270 Semi—Voa 8270 Semi—Voa 8270 Semi—Voa 8270 Semi—Voa 8270 Semi—Voa 8270 Semi—Voa 8270 Semi—Voa 8270
Cleanup Cleanup
Parameter Objective Objective •PNAs 8310/8270 PNAs 8310/8270 PNAs 8310/8270
TCLP Cadmium 0.005 0.05 _
TCLP Lead • 0.0075 0.1 0.008(A)
Benzene 5 25 80(B)
Total BTEX 11705 13525
•
Anthracene 42000 210000
_Benzo(a)anthracene 2.6 13 1125(B) :' `1464(B) 52.2(B)
Benzo(b)fluoranthene 3.6 _ . 18 :1088(B) ' •• 1073(B) 29.7(B)
Benzo(k)fluoranthene 3.4 17 27.7(B)
Benzo(a)pyrene 4.6 23 . 685(B) _ .:•.• 804(B) . 58.5(B)
Indeno(12,3,—c,d)pyrene 8.6 43 42(B)
Fluoranthene •
5600 _ 28000 .
Fluorene 5600 28000
Pyrene 4200 21000 _
_Chrysene 30 150 1606(B) :>`>: 1124(B)
Naphthalene 25 39 1901 (B)
Total Non—Carcinogenic PNA's 4200 _ 21000 •
Dibenzofuran ;440
2—Methylnaphthalene '.'".:j:.2295
Tetrachloroethylene
Trichloroethylene • ,
Chloroform
(A) —Exceeds Type A cleanup objective
•
(B)—Exceeds Type A and Type B cleanup objective
Units are mg/1 for TCLP metals
Units are ug/kg for all other constituents
(•)Results are reported on a wet weight basis except for
TCLP metals and PNAs for B-103,B-106,and B-108. .
•
•
Location of highest concentration
to remain on site.
I Sampling interval to be removed for construction
2 Additional soil to be removed as part of tank closure.
•
30—Nov-93 •
Summary of Data Page 1
•
Constituents Exceeding Cleanup Objectives or Constituents Detected with no Cleanup Objectives in Soil Borings
Soil Boring B-101 • B-102 B-103(•)' B-104 B-105 B-106(•) B-107 B-108(•) '
Depths 2-4 ft 4-6 ft 0-2 ft 4-6 ft 4-6 ft 2-4 ft 2-4 ft 0-2 ft
OVM/HNU reading 1 ppm 1.4 ppm 6.9 ppm 0 ppm 1.4 ppm 0 ppm 0 ppm 6.9 ppm
Date 5/11/93 ' 5/11/93 5/11/93 5/11/93 5/14/93 5/11/93 5/11/93 5/11/93
Sampling by ATEC ATEC ATEC ATEC ATEC ATEC ATEC ATEC
Methods TCLP Metals TCLP Metals TCLP Metals
Pest/PCB 8080 Pest/PCB 8080 Pest/PCB 8080 •
• VOA 8240 VOA 8240 VOA 8240
Type A Type B Semi—Voa 8270 Semi—Voa 8270 Semi—Voa 8270
Cleanup Cleanup BTEX 8240
Parameter Objective Objective PNAs 8310/8270 PNAs 8310/8270 PNAs 8310/8270 PNAs 8310/8270 PNAs 8310/8270 PNAs 8310/8270 PNAs 8310/8270 PNAs 8310/8270
TCLP Cadmium 0.005 0.05, .:,.,•••:,•-0.09(13).'. . 0.011(A) 0.014(A)
TCLP Lead 0.0075 0.1 :s0:52(B):><?: 0.068(A) 0.108(B)
Beniene 5 25
Total BTEX 11705 13525
Anthracene 42000 210000
Benzo(a)anthracene 2.6 13 9.32(A) 52.7(B) 172(B) 365(B)
Benzo(b)fluoranthene 3.6 1895.8(B) 258(B)
Benzo(k)fluoranthene 3.4 17 :::124(B) `: . 283(B)
Benzo(a)pyrene 4.6 23 159(B) 546(B)
Indeno(1,2,3,—c,d)pyrene 8.6 4389.7(B) '': ' 431(B)
Fluoranthene 5600 28000 8998(A)
Fluorene 5600 28000
Pyrene 4200 21000 _ 4631(A)
Chrysene 30 1501034(B)
Naphthalene 25 39 ,
Total Non—Carcinogenic PNA's 4200 210008400(A)
Dibenzofuran _
2—Methylnaphthalene
Tetrachloroethylene 988
Trichloroethylene22.3
Chloroform •
(A)— Exceeds Type A cleanup objective
(B) — Exceeds Type A and Type B cleanup objective
Units arc mg/1 for TCLP metals
Units are ug/kg for all other constituents
(•)Results are reported on a wet weight basis except for
TCLP metals and PNAs for B-103,B-106,and B-108. •
Location of highest concentration
to remain on site.
' Sampling interval to be removed for construction
= Additional soil to be removed as part of tank closure.
30—Nov-93 Summary of Data Page 2
Constituents Exceeding Cleanup Objectives orConstituents Exceeding Cleanup Objectives in Soil Borings
•
• Soil Boring B-109 B-110 B-111 13-112 13-113 B-114 ' B-115 B-116'
Depths 2-4 ft 6-8 ft 2-4 ft 4-6 ft 4-6 ft 0-2 ft 2-4 ft 0-2 ft
OVM/HNU reading 7.3 ppm 4.4 ppm 12.5 ppm 16 ppm 9 ppm 11.5 ppm 10 ppm 6.6 ppm
Date 5/14/93 ' 5/14/93 5/14/93 5/14/93 5/14/93 5/14/93 5/17/93 5/17/93
Sampling by ATEC • ATEC ATEC ATEC ATEC ATEC ATEC ATEC
Methods TCLP Metals TCLP Metals TCLP Metals TCLP Metals TCLP Metals
VOA 8240 VOA 8240 VOA 8240 VOA 8240 VOA 8240 VOA 8240 VOA 8240 VOA 8240
Type A Type B
Cleanup Cleanup •
Parameter Objective Objective •
TCLP Cadmium 0.005 0.05 0.01(A) 0.01(A)
TCLP Lead 0.0075 0.1 0.129(B)
Benzene 5 25 20.4(A)
Total BTEX 11705 13525
Anthracene 42000 210000
Benzo(a)anthracene 2.6 13 _
Benzo(b)fluoranthene 3.6 18
•
Benzo(k)fluoranthcne 3.4 17
Benzo(a)pyrene • 4.6 23
•
•
Indeno(1.2,3,—c,d)pyrene 8.6 43 • _
Fluoranthene 5600 28000 .
Fluorene 5600 28000 •
Pyrene 4200 21000 •
Chrysene 30 150
Naphthalene 25 39
Total Non—Carcinogenic PNA's 4200 21000 .
•
Dibenzofuran
2-Methylnaphthalene ,
Tetrachloroethylene
Trichloroethylene
Chloroform 50
(A)—Exceeds Type A cleanup objective
(B) —Exceeds Type A and Type B cleanup objective •
Units are mg/I for TCLP metals
Units are ug/kg for all other constituents
(•)Results are reported on a wet weight basis except for
TCLP metals and PNAs for B-103,B-106,and B-108.
_• Location of highest concentration
to remain on site.
' Sampling interval to be removed for construction
2 Additional soil to be removed as part of tank closure.
•
•
30—Nov-93 Summary of Data Page 3
Constituents Exceeding Cleanup Objectives or Constituents Detected with no Cleanup Objectives in Soil Borings
' Soil Boring MWDH-1 MWDH-1 DHM-5 DHM-5 DHM-6 DHM-8 DHM-8 SB-1
Depths 7-9 ft 11-13 ft 7-9 ft 9-11 ft 5-7 ft 5-7 ft 9-11 ft 3-5 ft
OVM/HNU reading 99 ppm 0 ppm 73 ppm 0 ppm 0 ppm 9624 ppm 931 ppm 0 ppm
Date 9/16/93 9/16/93 9/24/93 9/24/93 9/24/93 9/24/93 924/93 4/2/93
Sampling by ATEC ATEC ATEC ATEC ATEC ATEC ATEC ATEC
Methods TCLP Lead TCLP Lead TCLP Lead TCLP Lead TCLP Lead
Type A Type B
Cleanup Cleanup BTEX 8240 BTEX 8240 BTEX 8240 BTEX 8240 BTEX 8240 BTEX 8240 BTEX 8240 BTEX 8020
Parameter Objective Objective PNAs 8310/8270 PNAs 8310/8270 PNAs 8310/8270 PNAs 8310/8270 PNAs 8310/8270 PNAs 8310/8270 PNAs 8310/8270 PNAs 8310
:LP Cadmium 0.005 0.05 ,
:LP Lead 0.0075 0.1
nzene 5 25 7.1(A) :, 4200(1.3)=:•-:. :
,tal BTEX 11705 13525 74400.(B):. ;;.''.-
tthracene 42000 210000 _
nzo(a)anthracene 2.6 13 • . 230(B)
nzo(b)fluoranthene 3.6 18
nzo(k)fluoranthene • 3.4 17 110(8) ,
•nzo(a)pyrene 4.6 23
Jeno(l.2,3,—c,d)pyrene 8.6� 43
uoranthene 5600 28000 33000(B)
oorene 5600 28000
rcne 4200 21000
irysene 30 150 340(B)
iphthalene 25 39 '::12000;(6)
oal Non—Carcinogenic PNA's 4200 21000 10711 (A) ,
benzofuran
Methylnaphthalene ,
trachloroethylene
ichloroethylene ,
,loroform
—Exceeds Type A cleanup objective
—Exceeds Type A and Type B cleanup objective
is are mg/I for TCLP metals
is arc ug/kg for all other constituents
Results are reported on a wet weight basis except for
CLP metals and PNAs for B-103,B-106,and B-108. •
•
Location of highest concentration
to remain on site.
r Sampling interval to be removed for construction .
= Additional soil to be removed as part of tank closure.
Nov-93 Summary of Data Page 4
Constituents Exceeding Cleanup Objectives or Constituents Detected with no Cleanup Objectives in Soil.Borings
Soil Boring SB-1 SB-2 SB-2 SB-3 SB-3 UST-1 2 UST-2 2 UST-3 2
Depths 13-15 ft 9-11 ft 13-15 ft 5-7 ft 13-15 ft Sidewall Sidewall Sidewall
OVM/HNU reading 0 ppm 0 ppm 0 ppm 476 ppm 1 ppm
Date 4/2/93 4/2/93 4/2/93 4/2/93 4/2/93 10/21/93 10/21/93 10/21/93
Sampling by ATEC ATEC ATEC ATEC ATEC ATEC ATEC ATEC
Methods
Type A Type B
Cleanup Cleanup BTEX 8020 BTEX 8020 BTEX 8020 BTEX 8020 BTEX 8020 BTEX 8020 BTEX 8020 BTEX 8020
Parameter Objective Objective PNAs 8310 PNAs 8310 PNAs 8310 PNAs 8310 PNAs 8310 PNAs 8310 PNAs 8310 PNAs 8310
TCLP Cadmium0.005 0.05
TCLP Lead 0.0075 0.1
_Benzene5 25 360(B) 9200(13) 830(13) 1000(13)
Total BTEX 11705 13525 , 319500(B) 86930(B) 95300(B)
Anthracene 42000 210000 47000(A) ,
Benzo(a)anthracene 2.6 13, 850(B) _ 96(B) 620(B)
_Benzo(b)[luoranthene • 3.6 18
Benzo(k)fluoranthene 3.4 17
Benzo(a)pyrene 4.6 23
Indeno(1,2,3,—c,d)pyrene 8.6 43
Fluoranthene 5600 28000 <_:`•56000(B) 'i'' ... 33000(B) 11000(A) 21000(A)
Fluorene 5600 28000
Pyrene4200 21000 • : ::;; 5200(A) 8300(B) 5900(A)
Chrysene 30 150
Naphthalene 25 39 5400(B) 24000(B) _ 14000(B) 8600(B)
Total Non—Carcinogenic PNA's, 4200 21000 . :;;;:11920(A) ::'.'. 18941(B) _ 7711(A) • 12711(A)
Dibenzofuran
2—Methylnaphthalene ,
Tetrachloroethylene
Trichloroethylene
Chloroform
A)—Exceeds Type A cleanup objective
B) —Exceeds Type A and Type B cleanup objective
Jnits are mg/I for TCLP metals
Jnits are ug/kg for all other constituents
')Results are reported on a wet weight basis except for
TCLP metals and PNAs for B-103,B-106,and 13-108.
Location of highest concentration
to remain on site.
t Sampling interval to be removed for construction
2 Additional soil to be removed as part of tank closure.
0—Nov-93 Summary of Data Page 5
Constituents Exceeding Cleanup Objectives or Constituents Detected with no Cleanup Objectives in Soil Borings
Soil Boring UST-4 2 AST-1 2 AST-2 t AST-3 2 AST-4= AST-5= AST-6= •
Depths Sidewall •
OVM/HNU reading
Date 10/21/93 1021/93 10/21/93 10/21/93 10/21/93 10/21/93 10/21/93
Sampling by ATEC ATEC ATEC ATEC ATEC ATEC ATEC
Methods
•
Type A Type B
Cleanup Cleanup BTEX 8020 BTEX 8020 BTEX 8020 BTEX 8020 BTEX 8020 BTEX 8020 BTEX 8020
Parameter Objective Objective PNAs 8310 PNAs 8310 PNAs 8310 PNAs 8310 PNAs 8310 PNAs 8310 PNAs 8310
LP Cadmium 0.005 0.05
2LP Lead 0.0075 0.1
:nzene 5 25 1100 03) 2300(B) 8900(B)
)tal BTEX 11705 13525 52100(B) 194700(B)
nthracene 42000 210000 66000(B)
enzo(a)anthracene 2.6 13 3800(B) 1800(B) 16001B)
enzo(b)tluoranthene 3.6 18
nzo(k)lluoranthene 3.4 17
enzo(a)pyrene 4.6 23
deno(1,2,3,-c,d)pyrene 8.6 43
uoranthene 5600 28000 59000(B) 79000(B) 81000(B)
luorene 5600 28000 6300(A) 6800(A)
gene 4200 21000 29000(B) 8800(A) 6900(A)
hrysene 30 150 480(B) 290(B)
aphthalene 25 39 15000(B) 2800(B) 17000(B)
)tal Non-Carcinogenic PNA's 4200 21000 41351(B) 36851(B) 25751(B)
ibenzofuran
-Methylnaphthalene
:trachloroethylene
-ichloroethylene
hloroform
-Exceeds Type A cleanup objective
-Exceeds Type A and Type B cleanup objective
its are mg/1 for TCLP metals
•
its are ug/kg for all other constituents
Results are reported on a wet weight basis except for
FCLP metals and PNAs for B-103,B-106,and B-108.
.. .......................
Location of highest concentration
to remain on site.
Sampling interval to be removed for construction
2 Additional soil to be removed as part of tank closure.
-Nov-93 Summary of Data Page 6
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TABLE 1
PHYSICAL PROPERTIES OF CONSTITUENTS AFFECTING MOBILITY
City of Elgin,Illinois
Source PQL' USEPA Water Vapor Log Octanol/ Henry's Law
Constituent (ug/I) Method Solubility Pressure Water Partition Constant
at 25•C at 25°C Coefficient (atm-m'/g mole)
(mg/L) (mg Hg) (Log K°.)
Metals
Cadmium' 40 6010 ' 0.00 ` `
Arsenic ' 40 6010 ' 0.00 ' '
r 1
Beryllium' 40 6010 ' 0.00 ' `
Chromium' 40 6010 ' 0.00 ' 4
Copper' 40 6010 4
0.00 ' 4
Lead ' 40 6010 ' 0.00 ' 4
Mercury' 40 6010 ` 0.00 ` `
Nickel' 40 6010 ' 0.00 ' `
Silver' 40 6010 ' 0.00 '
Zinc ' 40 6010 ` 0.00 ' `
Volatiles
Tetrachloroethylene' 5 8240 1.50 x 10' 1.78 x 10' 2.6 2.59 x 10'
Chloroform' 5 8240 8.20 x l0' 1.51 x 10' 1.97 2.87 x 10'
,-_-
Trichloroethylene' 5 8240 1.50 x 10' 1.78 x 10' 2.6 2.59 x 10'
Dibromomethane 5 8240 77 T
'
4-Methyl-2-Pentanone" 10 8240 2.04 x 10' 1.45 x 10' 1.19 9.4 x 10'
1,1,1-Trichloroethane' 5 8240 1.50 x 10' 1.23 x 10' 2.5 1.44 x 1O
Benzene' 5 8240 1.75 x 10' 9.52 x 10' 2.12 5.59 x 10'
Pesticides
a•Endosulfan' 8 8080 ' T T T
a-BHC' 8 8080 1.63 2.50 x 10' 3.90 5.78 x 104
Source PQL' USEPA Water Vapor Log Octanoll Henry's Law
Constituent (ug/I) Method Solubility Pressure Water Partition Constant •
at 25°C at 25°C Coefficient (atm-m'/g mole)
(mgfL) (mg Hg) (Log .,)
7-BHC' 8 8080 7.80 1.60 x 10' 3.90 7.85 x 106
45-BHC 1 8 8080 3.14 x 10' 1.70 x 10' 4.10 2.07 x 10'
Heptachlor' 8 8080 1.80 x 10' 3.00 x 10' 4.40 8.19 x 10'
Heptachlor Epoxide' 8 8080 3.50 x 10' 3.00 x 10' 2.70 4.39 x 10'
Aldrin' 8 8080 1.80 x 10' 6.00 x 104 5.30 1.60 x 10'
Dieldrin' 16 8080 1.95 x I0' 1.78 x 101 3.50 4.58 x 10'
Semi-Volatiles
Benzo(a)anthracene' 10 8270 5.70 x 10' 2.20 x l0' 5.60 1.16 x 106
Benzo(b)fluoranthene' 10 8270 1.4 x 102 5.00 x 10' 6.06 1.19 x 10'
Benzo(k)fluoranthene' 10 8270 4.30 x 10' 5.10 x 10' 6.06 3.94 x 10'
Benzo(a)pyrene' 10 8270 1.20 x 10' 5.60 x 10° 6.06 1.55 x 106
Indeno(1,2,3-c,d) 10 8270 5.30 x 10' 1.00 x 1010 6.50 6.86 x 10'
pyrene 1
Fluoranthene' • 10 8270 2.06 x 101 5.00 x 104 4.90 6.46 x 106
Pyrene' 10 8270 1.32 x 10' 2.50 x 106 4.88 5.04 x 106
Chrysene' 10 8270 1.80 x 10' 6.30 x 10' 5.61 1.05 x 10'
Naphthalene' 10 8270 31.7 0.082 3.30 4.83 x 10'
bis(2-Ethylhexyl)phthalate' 8270 3 x 101 6.45 x 104 5.11 1.1 x 10'
' Superfund Public Health Evaluation Manual,USEPA, 1986
2 Handbook of Environmental Fate and Exposure Data for Organic Chemicals,Volume I, 1989
' Practical Quantitation Limit
' Data not reported.These metals are not soluble and exert no vapor pressure.The compounds would not be mobile in the environment.
' Handbook of Environmental Fate and Exposure Data for Organic Chemicals,Volume II, 1989
6 Property data reported at 20°C
7
Data not reported.
Exhibit 2
PHYSICAL PROPERTIES AND MOBILITY OF CONSTITUENTS
DETECTED IN SOILS
Physical properties of chemical constituents can often be evaluated to predict their mobility in
the environment and their treatability. Chemical compounds detected at concentration levels
above cleanup objectives in soil samples at the City of Elgin Properties are from four different
classes of compounds: metals, volatiles, pesticides, and semivolatiles. Six of the ten
semivolatile compounds detected are polynuclear aromatic hydrocarbons (PNAs).
The physical properties used to evaluate the mobility of the metals, volatiles, pesticides, and
semivolatiles at the city properties are water solubility, vapor pressure, log octanol/water
partition coefficient, and Henry's Law constant.
Solubility is the amount of a compound that will dissolve in water. It is an indicator of a
compounds mobility in the environment by the groundwater route and its adsorption to soils.
Solubility of compounds can range from nearly insoluble to infinitely soluble. Compounds with
high solubility tend to be mobile in groundwater, and not adsorb to soils strongly.
Vapor pressure is a measure of a compounds tendency to volatilize from its pure liquid or a
mixture such as organic compounds dissolved in groundwater to the gas phase. The higher the
vapor pressure, the more volatilization will occur from soil or groundwater into the vadose zone,
and the less strongly the compound is sorbed to either soil or groundwater.
Henry's Law constant is the air/water partition coefficient and is related to a compounds
solubility and vapor pressure. In general, compounds with high vapor pressures and low
solubilities will have higher Henry's Law constants, and will be more mobile in the
environment, particularly the vadose zone.
The Log octanol/water partition coefficient (Log 'Cow) is a measure of the ratio of the
concentration of a compound in octanol divided by the concentration of a compound in water
in a two-phase system. Compounds with Log ICvalues of less than 1 are considered to be
hydrophilic. Compounds with Log Kaw values of greater than 4 are considered to be
hydrophobic.' It has been shown to correlate with a compound's adsorption to soil. A high Log
Ka„ indicates a compound will strongly sorb to soils and is less mobile in the environment. A
low K indicates a compound will not strongly sorb to soils, and will have a greater affinity for
the water phase.
"Using the Properties of Organic Compounds to Help Design a Treatment System", E.
Nyer, et al, Groundwater Monitoring Review, Fall 1991.
Exhibit 2 - Page 1
Mobility of Compounds Detected at City of Elgin Properties
Table 1 provides the physical properties of solubility, vapor pressure, Log Kms,,, and Henry's
Law constant for compounds detected above cleanup objectives at the City of Elgin properties.
Metals
Metals are solids and exert no or extremely low vapor pressures. They are not soluble in water
except in the form of compounds, such as ionic or organic complexed compounds. Therefore
there are no Log Ko„ or Henry's Law constants reported in the literature for metals detected.
The metals may tend to be persistent, but not mobile in the environment at the city properties.
Construction of buildings and paving over areas with metals will minimize the possibility of
migration.
Volatiles
Volatiles have been detected at concentrations above the cleanup objectives at the city properties.
The compounds are partially soluble in water and have moderate vapor pressures. They are
three to eleven orders of magnitude more volatile than the semivolatiles detected at the site, but
approximately two orders of magnitude less volatile than vinyl chloride, which has a vapor
pressure of 2660 mm Hg. The Henry's Law constants indicate the compounds would strip from
groundwater in a treatment system, but vinyl chloride is at least three times or more strippable
with a Henry's Law constant of 8.19 x 10.2. The Log Ko„s range from 1.19 to 2.6 for volatiles
detected at the site. These compounds will sorb moderately to soils. The volatiles detected at
the city properties could be slightly mobile in the environment. Construction of buildings and
paving over areas with volatiles will minimize the possibility of infiltration causing migration
into the groundwater. Volatiles were detected at levels above clean up objectives in limited
areas. Special care should be exercised during excavation in these limited areas. Other
construction activities should not be effected.
Pesticides
Pesticides detected at the city properties are nearly insoluble. The pesticides detected are three
to six orders of magnitude less volatile than volatiles detected at the site. Henry's Law constants
for the pesticides are also very low. The Log K,„ values range from 2.70 to 5.30 indicating the
compounds are moderately to strongly sorbed to soils. The physical properties of the
semivolatiles indicate that the compounds will not be very mobile in the environment.
Construction of buildings and paving over areas with semivolatiles will minimize the possibility
of migration.
Semivolatiles
All semivolatiles except for naphthalene detected at the city properties are nearly insoluble.
Naphthalene is only slightly soluble in water. The semivolatiles detected are three to eleven
orders of magnitude less volatile than benzene and tetrachloroethylene detected at the site.
Exhibit 2 - Page 2
Henry's Law constants for the semivolatiles are also very low. The Log K,,„ values range from
3.3 to 6.5 indicating the compounds are moderately to strongly sorbed to soils. All the PNAs
detected can be considered hydrophobic except naphthalene. The physical properties of the
semivolatiles indicate that the compounds will not be very mobile in the environment.
Construction of buildings and paving over areas with semivolatiles will minimize the possibility
of migration.
•
Exhibit 2 - Page 3
SUMMARY OF GROUNDWATER RESULTS - SOUTH GROVE
Table 2
Sample ID MW-4 MW-5 MW-6 MW-7 MW-8
• Class I Class II Data of Sampling 3/24/93 3/24/93 3/24/93 3/24/93 3/24/93
Gwtr • Gwlr Sampling by Ainlay Ainlay Ainlay Ainlay Ainlay
Parameter Standards Standards Method
METALS(mg/..)
Arsenic 0.05 0.2 208.2 0.051';z;<:,:;•..:', 0.161. .,` 0.093 0.037 0.095
Barium 2 2 200.7 0.87 1.00 0.49 0.31 0.41
Cadmium 0.005 0.05 213.2 0.001 0.002 < 0.001 0.001 0.002
Chromium 0.1 1 200.7 014 `;:>'":::::;; 0.1 T 0.07 0.23 :;::;.:,::::_`: ':'.0.48
Lead 0.0075 0.1 239.2 0.331 >^'. 0.051. ' 0.035;::: ::.••..;';:;;.::.0.048.;:;.: .: ::;::;,:0.049
Mercury 0.002 0.01 245.1 0.0011 0.0034 0.0002 0.0003 0.0003
Selenium 0.05 0.05 270.2 0.002 . < 0.001 < 0.001 < 0.001 < 0.001
Silver 0.05 • 200.7 < 0.01 < 0.01 < 0.01 0.01 < 0.01
PESTICIDES/PCB(ug/L)
Aldrin 8080 . < 0.04 < 0.04 < 0.04 < 0.04 < 0.04
alpha-BHC 8080 < 0.03 < 0.03 < 0.03 < 0.03 < 0.03
beta-BHC 8080 < 0.08 < 0.06 < 0.06 < 0.06 < 0.06
delta-BHC 8080 < 0.09 < 0.09 < 0.09 < 0.09 < 0.09
Lindane 0.2 1 8080 < 0.04 < 0.04 < 0.04 < 0.04 < 0.04
Chlordane 2 10 8080 < 0.14 < 0.14 < 0.14 < 0.14 < 0.14
4,4'-DOD 8080 < 0.11 < 0.11 < 0.11 < 0.11 < 0.11
4.4'-DDE 8080 < 0.04 < 0.04 < 0.04 < 0.04 < 0.04
4.4'-DDT 8080 < 0.12 < 0.12 < 0.12 < 0.12 < • 0.12
Dieldrin 8080 < 0.02 < 0.02 < 0.02 < 0.02 < 0.02
Endosulfan 1 8080 < 0.14 < 0.14 < 0.14 < 0.14 < 0.14
Endosulfan II 8080 < 0.04 < 0.04 < 0.04 < 0.04 < 0.04
Endosu fan sulfate 8080 < 0.68 < 0.68 < 0.66 < 0.66 < 0.66
Endrin 2 10 8080 < 0.06 < 0.06 < 0.06 < 0.06 < 0.00
Endrinaldehyde 8080 < 0.23 < 0.23 < 0.23 < 0.23 < 0.23
Heptachlor 0.4 2 8080 .< 0.03 < 0.03 < 0.03 < 0.03 < 0.03
Heptachlor Epoxide 0.2 1 8080 < 0.83 1• < 0.83 1' < 0.83 1' < 0.83 1' < 0.83 1'
Methoxychlor 40 200 8080 < 1.76 < 1.76 < 1.76 < 1.76 < 1.76
Toxaphene 3 15 8080 < 2.4 < 2.4 < 2.4 < 2.4 < 2.4
PCB-1016 5 25 8080 < 1 < 1 < 1 < 1 < 1
PCB-1221 5 25 8080 < 1 < 1 < 1 < 1 < 1
PCB-1232 5 25 8080 < 1 < 1 < 1 < 1 < 1
PCB-1242 5 25 8080 < 1 < 1 < 1 < 1 < 1
PCB-1248 5 25 8080 < 1 < 1 < 1 < 1 < 1
PCB-1254 5 25 8080 < 1 < 1 < 1 < 1 < 1
PCB-1260 5 25 8080 < 1 < 1 < 1 < 1 < 1
VOLATILE COMPOUNDS*
Acetone 8240 < 100 < 100 < 100 < 100 < 100
Benzene 5 25 8240 < 2 < 2 < 2 < 2 < 2
SUMMARY OF GROUNDWATER RESULTS — SOUTH GROVE
Table 2
" Sample ID MW-4 MW-5 MW-8 MW-7 MW—a
Class I Class II Date of Sampling 3/24/93 3/24/93 3/24/93 3/24/93 3/24/93
Grrtr G Ar Sampling by Ainley Ainlay Ainley Aintsy Ainlay
Parameter Standards Standards Method
8romodichloromethane 8240 < 2 < 2 < 2 < 2 < 2
Bromoform 8240 < 2 < 2 < 2 < 2 < 2
Bromomethana 8240 < 10 < 10 < 10 < 10 < 10
2—Butanone 8240 < 2 < 2 < 2 < 2 < 2
Carbon disulfide 8240 < 2 < 2 < 2 < 2 < 2 •
Carbon tetrachloride 5 25 8240 < 2 < 2 < 2 < 2 < 2
Chlorobenzene 100 500 8240 < 2 < 2 < 2 < 2 < 2
Chloroethane 8240 < 10 < 10 < 10 < 10 < 10
2—Chlroethylvinyt ether 8240 < 10 < 10 < 10 < 10 < 10
Chloroform 8240 < 2 < 2 < 2 < 2 < 2
Chloromethane 8240 < 10 < 10 < 10 < 10 < 10
Dibromochloromethane 8240 < 2 < 2 < 2 < 2 < 2
1,2—Dichlorobenzene 8240 < 2 < 2 < 2 < 2 < 2
1,3—Dichlorober¢ene 8240 < 2 < 2 < 2 < 2 < 2
1,4—Dichlorobenzene 8240 < 2 < 2 < 2 < 2 < 2
1,1—Dichlorethane 4 8240 < 2 < 2 < 2 < 2 < 2
1,2—Dichtoret ane 5 25 8240 < 2 < 2 < 2 < 2 < 2
1,1—Dichloroethene 7 35 8240 < 2 < 2 < 2 < 2 < 2
1,2—Dichlorethene(trans) 70 200 8240 < 2 < 2 < 2 < 2 < 2
1,2—Dichloropropene 5 25 8240 < 2 < 2 < 2 < 2 < 2
1,3—Dichloropropene(cis) 8240 < 2 < 2 < 2 < 2 < 2
1,3—Dichloropropene(trans) 8240 < 2 < 2 < 2 < 2 < 2
1,4—Dioxane 8240 < 2 < 2 < 2 < 2 < 2
Ethyl benzene 700 1000 8240 < 2 < 2 < 2 < 2 < 2
Ethanol 8240 < 50 < 50 < 50 < 50 < 50
Hexane 8240 < 50 < 50 < 50 < 50 < 50
2—Hexanone 8240 < 50 < 50 < 50 < 50 < 50
Methylene chloride 8240 < 2 < 2 < 2 < 2 < 2
4—Methyl—2—Pentanone 8240 < 50 < 50 < 50 < 50 < 50
Styrene 100 500 8240 < 2 < 2 < 2 < 2 < 2
1,1,2,2—Tetrachloroethane 8240 < 2 < 2 < 2 < 2 < 2
Tetrachloroethylene 5 25 8240 < 2 < 2 4.93 < 2 • < 2
Toluene 1000 2500 8240 < 2 < 2 < 2 < 2 < 2
1,1,1—Trichloroethane 200 1000 8240 < 2 < 2 < 2 < 2 < 2
1,1,2 Trichbroethane 8240" < 2 < 2 < 2 < 2 < 2
Trichloroethylene 5 25 8240 < 2 < 2 < 2 < 2 < 2
Trichbrofluorometh.ne 8240 < 2 < 2 < 2 < 2 < 2
Vinyl Acetate 8240 < 50 < 50 < 50 < 50 < 50
Vinyl Chloride 2 10 8240 < 10 < 10 < 10 < 10 < 10
Xylene 10000 10000 8240 < 4 < 4 < 4 . < 4 < 4
Total BTEX 11705 13525 < 10 < 10 < 10 < 10 < 10
SUMMARY OF GROUNDWATER RESULTS — SOUTH GROVE
Table 2
Sample ID MW-4 MW-5 MW-6 MW-7 MW-8
Class I Class II Date of Sampling 3/24/93 3/24/93 3/24/93 3/24/93 3/24/93
Gwtr Gbvtr Sampling by Ainlay Ainlay Ainlay Ainlay Ainlay
Parameter Standards Standards Method
SEMI—VOLATILE COMPOUNDS'
Acids
Benzoic Acid 8270 NA NA NA NA NA
4—Chloro-3—Methylphenol 8270 < 20 < 20 < 20 < 20 < 20
2—chlorophenol 8270 < 10 < 10 < 10 < 10 < 10
2,4—Dichlorophenol 8270 < 10 < 10 < 10 < 10 < 10
2,4—Dimethylphenol 8270 < 10 < 10 < 10 < 10 < 10
2,4—Dinitrophenol 8270 < 50 < 50 < 50 < 50 < 50
2—M ethyl—4,6—dinitrop henol 8270 < 50 < 50 < 50 < 50 < 50
2—Nitrophenol 8270 < 10 < 10 < 10 < 10 < 10
4—Nitrophenol 8270 < 50 < 50 < 50 < 50 < 50
2—Methylphenol 8270 NA NA NA NA NA
4—Methylphenol 8270 NA NA NA NA NA
Pentachlorophenol 1 5 8270 < 50 < 50 < 50 < 50 < 50
Phenol 100 100 8270 < 10 < 10 < 10 < 10 < 10
2,4,5—Trichlorophenol 8270 NA NA NA NA NA
2,4,6—Trichlorophenol 8270 < 10 < 10 < 10 < 10 < 10
Base/Neutrals
Acenaphthene 8270 < 10 < 10 < 10 < 10 < 10
Acenapthylene 8270 < 10 < 10 < 10 < 10 < 10
Anthracene 8270 < 10 < 10 < 10 < 10 < 10
Benzo(a)anthracene 8270 < 10 < 10 < 10 < 10 < 10
Benzo(b)fluoranthene 8270 < 10 < 10 < 10 < 10 < 10
Benzo(k)fluoranthene 8270 < 10 < 10 < 10 < 10 < 10
Benzo(a)pyrene • 8270 < 10 < 10 < 10 < 10 < 10
Benzo(g,h,)perylene 8270 < 10 < 10 < 10 < 10 < 10
Benzyl Alcohol 8270 NA NA NA NA NA •
benzylbutylphthalnte 8270 < 10 < 10 < 10 < 10 < 10
bis(2—chloroethy)ether 8270 < 10 < 10 < 10 < 10 < 10
bis(2—Cholorethozy)Methane 8270 < 10 < 10 < 10 < 10 < 10
bis(2—ethylhezyl)phthalate 8270 < 10 < 10 < 10 < 10 < 10
bis(2—Chloroisopropy)ether 8270 < 10 < 10 < 10 < 10 < 10
4—Bromphenyl—phenylether 8270 < 10 < 10 < 10 < 10 < 10
4—Chloroaniina 8270 NA NA NA NA NA
2—Chloronaphthalene 8270 < 10 < 10 < 10 < 10 < 10
4—Chlorophenyl—phenyl ether 8270 < 10 < 10 < 10 < 10 < 10
Chrysene 8270 < 10 < 10 < 10 < 10 < 10
Diber¢o(a,h)anthracene 8270 < 10 < 10 < 10 < 10 < 10
Diber¢ofuran 8270 NA NA NA NA NA
Diethylphthalate 8270 < 10 < 10 < 10 < 10 < 10
SUMMARY OF GROUNDWATER RESULTS — SOUTH GROVE
Table 2
Sample ID MW-4 MW-5 MW-6 MW-7 MW-8
Class I Class II Date of Sampling 3/24/93 3/24/93 3/24/93 3/24/93 3/24/93
GMT Gwfr Sampling by Ainhy Ainlay Ainley Ainlay Aintay
Parameter Standards Standards Method
Dimethyl Phthalate 8270 < 10 < 10 < 10 < 10 < 10
Di—n—Butylphthahte • 8270 < 10 < 10 < 10 < 10 < 10
1,3—Dichlorobenzene 8270 < 10 < 10 < 10 < 10 < 10
1,2—Dichlarober¢ene 600 1500 8270 < 10 < 10 < 10 < 10 < 10
1,4—Dichlorobenzene 75 375 8270 < 10 < 10 < 10 < 10 < 10
3,3'—Dichlorob.nzidene 8270 < 10 < 10 < 10 < 10 < 10
2,4—Dinitrotoluene 8270 < 10 < 10 < 10 < 10 < 10
2,6—Dinitrotoluene 8270 < 10 < 10 < 10 < 10 < 10
DI—n—Octyl—phthalate 8270 ' < 10 < 10 < 10 < 10 < 10
Fluoranthene 8270 < 10 < 10 < 10 < '10 < 10
Fluorene 8270 < 10 < 10 < 10 < 10 < 10
Hexachlorobenzene 8270 < 10 < 10 < 10 < 10 < 10 .
Hexachlarobutadiene 8270 < 10 < 10 < 10 < 10 < 10
Hexachlarocyclopentadlene 8270 < 10 < 10 < 10 < 10 < 10
Hexachloroethane 8270 < 10 < 10 < 10 < 10 < 10
Indeno(1,2,3—cd)pyrene 8270 < 10 < 10 < 10 < 10 < 10
Isophorone8270 < 10 < 10 < 10 < 10 < 10
2—Methylnaphthalene 8270 NA NA NA NA NA
Naphthalene 8270 < 10 < 10 < 10 < 10 < 10
2—Nitroaniline 8270 NA NA NA NA NA
3—Nitroanifne 8270 NA NA NA NA NA
4—Nitroaniine 8270 NA NA NA NA NA
Nitrober¢ene 8270 < 10 < 10 < 10 < 10 < 10
N—nitrosodiphenylamine 8270 < 10 < 10 < 10 <' 10 < 10
N—Nitroso—Di—n—Propylamine 8270 < 10 < 10 < 10 < 10 < 10
Phenanthrene 8270 < 10 < 10 < 10 < 10 < 10
Pyridine 8270 < 10 < 10 < 10 < 10 < 10
Pyrene 8270 < 10 < 10 < 10 < 10 < 10
1,2,4—Trichlorober¢ene 8270 < 10 < 10 < 10 < 10 < 10
Benzidine 8270 < 30 < 30 < 30 < 30 < 30
1,2—Diphenyhydrazine 8270 < 60 < 60 < 60 < 60 < 60
Toxaphene 8270 < 200 < 200 < 200 < 200 < 200
n—Nitrosodimethylamine 8270 < 10 < 10 < 10 < 10 < 10
•Units we ug/L.
: 'if:,.:.::''.:..Indicates a value above published standards and applicable detection limb
1'Indicates a detection limit above the groundwater standard.
NA Not Analyzed
Table 2 (cont'd)
SUMMARY OF GROUNDWATER RESULTS — ENVIRONMENTAL PROJECT 2 (MARTIN SITE)
Class I Class II
Gvotr Gw Sample ID MWDHM-1
Parameter Standards Standards Date Sampled 4/2/93
BETX COMPOUNDS• PQL
Benzene 5 25 2 .:..''::',.:•': -89
Ethyl Benzene 700 1000 2 4.3
Toluene 1000 2500 2 < 2
Xylene 10000 10000 5 53
Total BTEX
TCLP METALS
Lead 0.0075 0.1 0.05 ... . 009
•
SEMI-VOLATILE COMPOUNDS*
IEPA Cleanup Objectives
Naphthalene 25 10 11
Acenapthylone (B) 10 < 10
Acenaphthene 420 18 < 18 -
Fluorione 280 2.1 10•
Phenanthrene (B) 0.4 < 6.4
Anthracene 2100 6.8 18
Fluoranthene 280 2.1 19
Pyrene 210 2.7 < 2.7
Benzo(a)anthracene (A) 0.13 0.7
Chrysene (A) 1.5 < 1.5
Benzo(b)fluorarthene (A) 0.18 < 0.18
Benzo(k)fluoranthene (A) 0.17 < 0.17
Benzo(a)pyrene (A) 0.23 < 0.23
Dibenzo(a,h)antivacene (A) 0.3 < 0.3
Benzo(g,h,i)perylene (B) 0.76 < 0.70 .
Indeno(1,2,3-cd)pyrene (A) 0.43 < 0.43
Total(A)Constituents 0.2 • ... .. ....... .:
Total(B)Constituents 210
NOTES: •Units are ugh
•
Exceeds Class lot IEPA Standards
•
•
Table 3
Concentrations Requested to Remain In Place
Type A Type B
Cleanup Cleanup
Parameter Objective Objective Concentrations
TCLP Cadmium 0.005 0.05 0.09
TCLP Lead 0.0075 0.1 0.52
Benzene 5 2.5 1200
Total BTEX 11705 1352.5 74400
Benzo(a)anthracene 2.6 13 1464
Benzo(b)fluoranthene 3.6 18 1088
Benzo(k)fluoranthene 3.4 17 124
Benzo(a)pyrene 4.6 23 804
Indeno(1,2,3,—c,d)pyrene 8.6 43 89.7
Fluoranthene 5600 28000 56000 -
Pyrene 4200 21000 5200
Ch ryscnc 30 150 1606
Naphthalene 25 39 12000
Total Non—Carcinogenic PNA's 4200 21000 11920
Dibcnzofuran 440
2—Methylnaphthalene 2295
Chloroform 50
Units are mg,/1 for TCLP metals
Units are ug/kg for all other constituents
TABLE 4
CONSTITUENTS DETECTED IN SIDEWALL SAMPLING OF EXCAVATION 6
City of Elgin, Illinois
Parameter ' Maximum Concentration LUST Pollutant Maximum Concentration in
(YIN) Subsequent Soil Borings
Total Metals:
Arsenic 8.72 Y ND in TCLP
Beryllium 0.48 N NA
Chromium 20 Y ND in TCLP
Copper 31 N NA
Lead 18 Y TCLP = 0.52
Mercury 0.075 Y ND in TCLP
Nickel 29 N NA
Silver 0.40 N NA
Zinc 81 N NA
Total Cyanide 0.31 N NA
Total Recoverable Phenolics 4.73 N NA
Pesticides:
a-Endosulfan 0.049 Y ND
a-BHC 0.003 2Y ND
-y-BHC 0.008 N NA
6-BHC 0.059 Y ND
Aldrin 0.007 2Y ND
Dieldrin 0.001 2 ND
Heptachlor 0.298 Y ND
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e•
State of Illinois
ENVIRONMENTAL PROTECTION AGENCY
Mary A. Cade,Director 2200 Churchill Road, Springfield,IL 62794-9276
217/782-6761
December 8, 1993
Raymond Moller
Director of City Property
150 Dexter Court
Elgin, Illinois 60120-5555
Re: LPC #0314385231 -- Kane County
Elgin/Elgin, City of (Former Martin Oil Site)
210 South Grove
LUST Incident No. 931019
LUST/Tech Report File
LPC #0318050001 -- Kane County
Elgin/Elgin, City of (Pavilion Site)
240 South Grove
LUST Incident No. 913689
LUST/Tech Report File
De~� Mr. Moller:
The Illinois Environmental Protection gency is in receipt of
your report dated November 30, 1993 . his report included a
request to leave contaminated soil on site and to treat the
impacted groundwater. This request is approved subject to
the following conditions:
1. Any impacted soil transported off site must be managed
and disposed of in the proper manner as outlined in 35
Ill. Adm. Code Section 809.
2 . When transporting or managing impacted soil on site the
proper OSHA safety guidelines must be followed. In
addition the laborers performing the work must be
notified of the potential. health and safety risk of the
material.
3 . A corrective action plan for the remediation of impacted
groundwater must be submitted by May 1, 1994 . This plan
shall contain at a minimum the following:
a. The extent of contamination for all parameters
listed in Attachment A.
b. An active remediation plan for groundwater (if
necessary) and/or groundwater monitoring plan to
demonstrate that groundwater has reached the
necessary cleanup objectives.
Exhibit B
Letter to Raymond Moller
Page 2
c. A groundwater management zone for the treatment unit
must be obtained.
d. The location of additional monitoring wells.
4. The Agency must be notified 72 hours before the
following corrective action work begins:
a. Installation of the groundwater treatment system.
b. Activation of the groundwater treatment system.
c. Deactivation of the groundwater treatment system.
d. The begining of each groundwater monitoring
round used to demonstrate that no further
remediation is necessary.
Should you have any questions or requirefurther assistance
please contact Vickey Moy at 708/531-598 or Christopher
Rohrmann at 217/782-6761.
Sincerely,
( I 4i4 C .. 041:Z/�
William C. Child, Bureau Chief •
Bureau of Land
Illinois Environmental Protection Agency
WCC:VM:clk
cc: Patric Ries, ATEC Environmental
•
Attachment A
Groundwater Objectives
Parameter (mg/1)
cis -1,2-Dichloroethylene 0. 07
trans-1, 2-Dichloroethylene 0. 1
1, 2-Dichloroethane 0. 005
1, 1-Dichloroethylene 0. 007
Vinyl chloride 0. 002
Tetrachloroethylene 0. 005
Trichloroethlene 0. 005
Methylene Chloride 0. 005
Heptachlor Epoxide 0. 0002
Methylene Chloride 0. 005
Endosulfan sulfate (Detection Limit 0.660) ND
Aldrin 0.00004
bis (2-Ethylhexyl)phthalate 0. 006
Chloroform 0.0002
delta-BHC (Detection Limit 0. 06) ND
Dieldrin 0. 00002
1, 1-Dichloroethane 0.7
Arsenic 0. 05
Chromium 0. 1
Lead 0. 0075
Cadmium 0. 005
Benzene 0. 005
Total BETX (See Comments) 11.705
Napthalene 0.25
Acenaphthene 0.42
Anthracene 2.1
Fluoranthene 0,28
Fluorene 0,28
Pyrene 0. 21
Other Non-Carcinogenic PNAs (Total) 0. 21
Acenaphthylene
Benzo(g,h, i)perylene
Phenanthrene
Benzo(a) anthracene 0. 00013
Benzo(a)pyrene 0. 00023
Benzo(b) fluoranthene 0. 00018
Benzo(k) fluoranthene 0.00017
Chrysene 0. 0015
Dibenzo(a,h) anthracene 0. 0003
Indeno(1, 2 , 3-cd)pyrene 0.00043
Comments:
BETX is the sum of Benzene, Ethylbenzene, Toluene, and Xylene
concentrations. Please note the mixture requirements. ND is
non-detect at the detection limit stated.
Attachment A
_ . page 2
Parameter Soil Objectives
(mg/kg)
Terachloroethylene 0. 005
Trichioroethlene 0.005
Heptachlor Epoxide 0.056
Aldrin. 0. 003
bis (2-Ethylhexyl) phthalate 0. 18
Chloroform 0. 0002
delta-BHC (Detection Limit 8) ND
Dieldrin 0. 0013
Methylene Chloride 0. 005
Endosulfan sulfate (Detection Limit 16) ND
cis-1, 2-Dichloroethylene 0.07
trans-1, 2-Dichloroethylene 0. 1
1, 1-Dichloroethylene 0. 007
1,2-Dichloroethane 0. 005
1, 1-Dichloroethane 0.7
Vinyl Chloride 0. 002
Arsenic (TCLP) 0. 05
Cadmium (TCLP) 0. 005
Chromium (TCLP) 0. 1
Lead (TCLP) 0. 0075
Benzene 0.005
Total BETX (See Comments) 11.705
Napthalene 0. 66
Acenaphthene 8.4
Anthracene 42 . 0
Fluoranthene 5. 6
Fluorene 5. 6
Pyrene 4.2
Other Non-Carcinogenic PNAs (Total) 4.2
Acenaphthylene
Benzo(g,h, i)perylene
Phenanthrene
Benzo(a) anthracene 0. 0087
Benzo(a)pyrene 0. 015
Benzo(b) fluoranthene 0. 011
Benzo(k) fluoranthene 0. 011
Chrysene 0. 100 .
Dibenzo(a,h) anthracene 0.020
Indeno(1, 2, 3-cd)pyrene 0.0.29
Comments:
BETX is the sum of Benzene, Ethylbenzene, Toluene, and Xylene
concentrations. ND is non-detect at the detection limits
stated.
MAR 17 '95 11:41 ESE CHICAGO '
•
Ybk State of Illinois /
ENVIRONMENTAL PROTECTION AGENCY
Mary A. Cade,Director 2200 Churchill Road,Springfield,IL 62794-9276
217/782-6761 D 5 ti17
+BAR 1 5 1915 ` I 1995
City of Elgin E,INC.
Attn: Ray Moller C`3 AcosRiCE
150 Dexter Court
Elgin, Illinois 60120-5555
Re: LPC #0894385201 -- Kane County
E, in/EBY-Brown •
Proposed Police Station',-152 North Spring' Street
LUST Incident #920880
LUST TECHNICAL FILE
Dear Mr. Moller:
We Ore in receipt of the Soil Remediation and UST Closure Report with your
request for site specific objectives dated February 14, 1995 and received
February 16, 1995 by the Agency for the above referenced incident. This
information has been reviewed for the purpose of establishing site-specific
cleanup objectives due to the presence of underground utilities.
Your request for site-specific cleanup objectives has been reviewed and
approved for all of the soil contamination at this site. However, the
owner/operator must treat the contaminated groundwater at this site as
proposed in the Corrective Action Design dated Novemer 16, 1994. Remediation
must continue until the monitoring wells meet gioundwater cleanup objectives
and/or standards.
The Agency will formally review the entire project when the owner/operator
feels that remediation is complete, and supporting documentation has been
• submitted.
-- fid you have any questions or regiEire itirther-assistance,- ao nom t-f-esifate----- —"
to contact Kyle Blumhorst of my staff at 217/785-3943.
5 iy,
6/11
i`c E. ortz, E. , Manager
Engineering Unit
Leaking Underground Storage Tank Section
Division of Remediation Management
Bureau of Land
EEP:KB:rmi/203x/31
cc: Environmental Science & Engineering, Inc. -
•
Printed an aeIed Paper
EXHIBIT D
REAL ESTATE SALE AGREEMENT
THIS AGREEMENT is made and entered into this day of
by and between the City of Elgin, an Illinois municipal corporation (hereinafter
(hereinafter referred to as "Seller") and Elgin Riverboat Resort (hereinafter referred to as
"Purchaser").
RECITALS
A. Seller currently holds title or is the sole beneficiary of a title holding land trust
("Trust") which holds title to real estate and appurtenant rights including approximately
acres of land located at , in the City of Elgin, Kane
County, Illinois. The aforesaid real estate is legally described as on Exhibit A attached hereto
(which real estate and all improvements thereon shall hereinafter be referred to as the "Real
Estate").
B. Purchaser desires to purchase the Real Estate from Seller, and Seller desires to
sell and/or cause the Trust to sell the Real Estate to Purchaser, upon the terms and conditions
hereinafter set forth.
CONSIDERATION
In consideration of the mutual covenants and promises of the parties, Seller and Purchaser
hereby agree as follows:
AGREEMENT
1. Sale and Purchase. Seller agrees to sell and/or cause the Trust to sell and
Purchaser agrees to purchase the Real Estate upon the terms and conditions herein set forth for
a purchase price of , (hereinafter referred to as the "Purchase Price").
2. Conveyance. Seller agrees to convey, or cause to be conveyed, to Purchaser, or
Purchaser's nominee, title to the Real Estate by a recordable, stamped Warranty Deed, subject
only to: (a) general real estate taxes not due and payable as of the date of the closing hereof; (b)
acts of Purchaser and those parties acting through or for Purchaser; (c) easements, covenants,
and restrictions of record, provided the existing uses are not violated by same; and (d) a
reversion of title in favor of Seller on the terms and conditions described in that certain [Lease]
between Seller and Purchaser.
3. Earnest Money. Purchase agrees to pay the sum of Five Thousand ($5,000)
Dollars as earnest money upon the execution hereof which shall be applied on the Purchase Price
at the Closing, as hereinafter defined. The balance of the Purchase Price, plus or minus
prorations, shall be paid by Purchaser at the closing in cash or certified or cashier's check
payable to Seller or Seller's order. The earnest money shall be held by Chicago Title and Trust
Company or another mutually acceptable escrow agent (hereafter called "CTTC") in its standard
joint order escrow for the benefit of the parties, and shall be deposited by Purchaser within 5
days following the acceptance of this Agreement. Purchaser shall pay all fees in connection with
the escrow.
4. Closing.
(a) The consummation of the transaction herein described (hereinafter referred
to as the "Closing") shall be on , or on the date to
which such time is extended by reason of Paragraph 8 unless subsequently
mutually agreed otherwise, at the office of CTTC in St. Charles, Illinois
or such other location as is acceptable to Purchaser and Seller, provided
title is shown to be in the condition required herein or is otherwise
acceptable to Purchaser. At the Closing, the parties shall deliver all
documents required by this Agreement.
(b) At the election of either party, the transaction herein contemplated may be
closed through an escrow with CTTC, in accordance with the general
provisions of the usual form of Deed and Money Escrow Agreement then
in use by said company, with such special provisions inserted in the
escrow agreement to permit an immediate("New York-Style") closing and
as otherwise may be required to conform with this Agreement. Upon the
creation of such an escrow, anything herein to the contrary
notwithstanding, payment of the Purchase Price and delivery of deed shall
be made through the escrow and the cost of said escrow shall be shared
equally by the parties.
5. Delivery of Possession. Seller acknowledges that Purchaser is currently in
possession of the real estate.
6. Condition. Seller agrees to deliver the Real Estate in the same condition as it is
at the date of this Agreement, ordinary wear and tear excepted.
-2-
7. Evidence of Title. Seller shall deliver, or cause to be delivered, to Purchaser or
Purchaser's nominee, within fifteen (15) days after the acceptance and execution of this
Agreement by both Parties, a current title commitment from Chicago Title Insurance Company
or another mutually acceptable title insurance company for an ALTA Form B Owner's Title
Insurance Policy in the amount of the Purchase Price. The aforesaid commitment shall show
title in the intended grantor subject only to (a) rights of Purchaser under existing leasehold; (b)
the title exceptions set forth in Paragraph 2 hereof; and (c) title exceptions pertaining to liens
or encumbrances of a definite or ascertainable amount which may be removed by the payment
of money at the Closing and which the Seller will so remove at that time by using the funds to
be paid to Seller hereunder (all of which are herein referred to as the "Permitted Exceptions").
The title commitment (and policy issued pursuant thereto) shall contain extended coverage over
the general exceptions to the policy. The title policy shall be conclusive evidence of good title
as therein shown as to all matters incurred by the policy subject only to the exceptions therein
stated.
8. Closing Adjustments. General real estate taxes and assessments shall be adjusted
ratably (prorated) with respect to the subject transaction as of the day of the Closing, using, for
such purpose, a presumed real estate tax amount for any period for which actual taxes are not
yet known determined by multiplying the most recent assessed valuation of the Real Estate (as
determined by the Township Assessor's office) times and then multiplying
that product by the most recent ascertainable tax rate that was applicable to the Real Estate.
Rent shall also be prorated as of the date of closing. No other items shall be prorated and all
prorations shall be final. Seller shall pay the amount of any stamp tax imposed by law by the
State of Illinois, the county in which the Real Estate is located, and by any other local law or
ordinance on the transfer of title, and shall furnish completed real estate transfer declarations
signed by Seller or Seller's agent in the forms required pursuant to such laws.
9. Damage. The provisions of the Uniform Vendor and Purchaser Risk Act of the
State of Illinois shall be applicable to this Agreement.
10. Time. Time is of the essence of this Agreement.
11. Notice. All notices herein required shall be in writing and shall be served on the
parties at the following addresses:
If to Purchaser: Peter A. Simon
Corporate Development Office
Circus Circus Enterprises, Inc.
2880 Las Vegas Blvd., South
Las Vegas, Nevada 89109
with copies to: Richard L. Schulze
Madison Plaza
Suite 3800
-3-
200 West Madison Street
Chicago, IL 60606
and
Philip M. Kayman, Esq.
Neal, Gerber & Eisenberg
Two North LaSalle Street
Suite 2200
Chicago, Illinois 60602
If to Seller: City Clerk
City of Elgin
150 Dexter Court
Elgin, IL 60120
The mailing of a notice by registered or certified mail, return receipt requested, shall be
sufficient service. Notices shall be deemed served when delivered if delivered by hand, or on
the date of mailing, if mailed as described above.
12. Choice of Law. This Agreement shall be governed by the laws of the State of
Illinois.
13. Miscellaneous. If the date for Closing or performance of an obligation falls on
a Saturday, Sunday or holiday, the date shall be deferred until the first business day following.
No amendments, modifications or changes shall be binding upon a party unless set forth in a
duly executed document.
14. Termination.
(a) If this Agreement is breached by Purchaser, then (i) Seller may terminate
this Agreement and the earnest money shall be forfeited to the Seller and
retained by the Seller as liquidated damages or (ii) Seller may seek
specific performance of Purchaser's obligations under this Agreement or
(iii) Seller may recover such damages from Purchaser as Seller may have
thereby incurred, applying the Earnest Money to any judgment obtained
in such action and recover any excess damages from Purchaser. The
remedies of Seller enumerated herein are cumulative.
(b) If this Agreement is breached by Seller, then (i) Purchaser may declare
this Agreement null and void (whereupon all Earnest Money shall be
refunded to Purchaser) or(ii) Purchaser may seek specific performance of
Seller's obligations hereunder or (iii) Purchaser may pursue such other
remedies as may be available against the Seller under Illinois law. The
remedies enumerated herein shall be in addition to, and not in lieu of,
-4-
such other remedies as may be expressly provided to Purchaser under this
Agreement.
(c) If this Agreement is terminated other than by reason of the breach hereof
by either party, then all Earnest Money shall be refunded to Purchaser.
15. Authority to Execute. Purchaser and Seller hereby covenant that the execution
of this Agreement and the transaction herein contemplated have been duly approved by all
necessary corporate action and that the party executing this Agreement on behalf of Purchaser
is authorized to execute same.
16. Entire Agreement. This Agreement contains the entire agreement of the parties
with respect to the sale and purchase of the Real Estate. All previous and contemporaneous
negotiations, understandings and agreements between the parties hereto, with respect to the
transaction set forth herein, are merged in this instrument, which alone fully and completely
expresses the parties' rights and obligations. The preparation of this Agreement has been a joint
effort of the parties hereto and the resulting document shall not, solely as a matter of judicial
construction, be construed more severely against one of the parties than the other.
17. Terms. As used herein, the terms (a) "person" shall mean an individual, a
corporation, a partnership, a trust, an unincorporated organization or any agency or political
subdivision thereof, (b) "including" shall mean including, without limiting the generality of the
foregoing, and (c) the masculine shall include the feminine and the neuter.
18. Binding Effect and Survival.
(a) This Agreement shall be binding upon and shall insure to the benefit of
the parties hereto and their respective heirs, executors, administrators,
legal representatives, successors and assigns. No assignment of this
Agreement shall relieve the assigning party of its obligations hereunder.
(b) All representations, warranties and covenants contained herein shall
survive the Closing and the delivery of the Deed.
19. Captions. The captions of this Agreement are inserted for convenience of
reference only and in no way define, described or limit the scope or intent of this Agreement
or any of the provisions hereof.
•
-5-
IN WITNESS WHEREOF, the parties hereto have executed this Real Estate Sale
Agreement as of the day first above written.
City of Elgin,
an Illinois municipal corporation,
By:
Mayor
Seal
Attest:
City Clerk
Elgin Riverboat Resort,
an Illinois partnership,
By RBG, L.P.,
one of its general partners
By HCCA Corporation,
its general partner
By:
Its President
C:\80821\I1942\0003D.E
-6-
-L-
a
vu rnx
THIS INSTRUMENT WAS PREPARED BY
AND AFTER RECORDING RETURN TO:
Irwin I . Gzesh, Esq.
Neal Gerber & Eisenberg
Two North LaSalle Street
Suite 2200
Chicago, Illinois 60602
MEMORANDUM OF AMENDED AND RESTATED GROUND LEASE AGREEMENT
THIS MEMORANDUM OF AMENDED AND RESTATED GROUND LEASE AGREEMENT
( "Memorandum" ) is made effective as of the 20th day of January,
1994 by and between the City of Elgin, Illinois, an Illinois
municipal corporation ( "Landlord" ) , having an address of 150 Dexter
Court, Elgin, Illinois 60120 , and Elgin Riverboat Resort, an
Illinois joint venture ( "Tenant" ) , having an address in care of
RBG, L. P. , 200 West Madison Street, 38th Floor, Chicago, Illinois
60606 .
1 . Real Estate. Landlord is the owner of that certain real
property legally described in Exhibit A attached hereto and made a
part hereof, located in Kane County, Illinois (the "Demised
Premises") .
2 . The Lease. Pursuant to an Amended and Restated Ground
Lease Agreement between Landlord and Tenant dated as of January 20,
1994 (the "Lease" ) , Tenant has leased the Demised Premises from
Landlord for an initial term commencing on January 20, 1994, and
terminating on the tenth (10th) anniversary of the issuance to
Tenant of a temporary operating permit for its riverboat gaming
operations by the Illinois Gaming Board. The Lease grants Tenant
the right to renew the Lease for four (4) successive terms of five
(5) years each as well as an option to ' purchasethe Demised
Premises, all on the terms and conditions therein provided.
3 . Purpose of Memorandum. This Memorandum was prepared,
signed and acknowledged solely for recording purposes under the
laws of the State of Illinois and is in no way intended to change,
alter, modify, amend or in any way affect the rights, duties and
obligations of Landlord and Tenant pursuant to the Lease. For a
full statement of the terms and conditions of the Lease, any person
or entity dealing with the Demised Premises should refer to the
Lease; the sole intention and purpose of this instrument being to
place those dealing with the Demised Premises on notice of the
Lease .
IN WITNESS WHEREOF, the parties have caused this Memorandum to
be executed effective as of the day and year first above written.
LANDLORD: CITY OF ELGIN, a municipal
corporation
By: " /
Its : Mayor
Attest :
51"4-1A,,,X
Its : City C el rk
TENANT: ELGIN RIVERBOAT RESORT, an Illinois
partnership
By RBG, L. P. ,
one of its general partners
By HC • 2orporation,
its g= al • tner
By: , 1
RI ch. d L ' Schulze
/I
STATE OF ILLINOIS )
SS :
COUNTY OF KANE )
The foregoing MEMORANDUM OF AMENDED AND RESATED GROUND LEASE
AGREEMENT wap_ acknowledged before me this ,X.n day of 0.12. e
_, 1998 by � 1- k and 4,1„,,,, , the Mayor
and City Clerk of thev of Elgin, of of the City of
Elgin, in its capacity as Landlord as aforesaid, for the uses and
purposes therein set forth.
LIT
41 AL SEAL {�
4 MARY GIFFORT ota ublic
q NOTARY PUBLIC, STATE OF ILLINOIS
4 My Ca)nroission EXPires J.tine 13,2000 ?
'i'is"vor"p"`r"'NieNz'AP"Nor`"`1, My commission expires 9(Jc2_k3, AOCO
SATE OF ILLINOIS )
SS :
COUNTY OF COOK )
The foregoing MEMORANDUM OF AMENDED AND RESTATED GROUND LEASE
AGREEMENT was acknowledged before me this (04. day of
3-
a4AU , 199q by Richard L. Schulze, in his capacity as
iffice Prr„ nOf HOCA Corporation, acting as general partner of
RBG, L. P. , in its capacity as one of the general partners of Elgin
Riverboat Resort, in its capacity as Tenant as aforesaid, for the
uses and purposes therein set forth.
OFFICIAL SEAL b„.
IRMAPtJ8jTOVAR No Public
NOTARY PUBLIC,STATE OF ILLINOIS
MY COMMISSION EXPIRES:03/15/99
My commission expires : tS 191
c:\80821\11942\MEMOLEAS
EXHIBIT A
DEMISED PREMISES
PARCEL 1 :
LOTS 1 THROUGH 14 , BOTH INCLUSIVE, IN BLOCK 3 OF O. DAVIDSON' S
ADDITION TO ELGIN, IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS .
PARCEL 2 :
LOTS 1 THROUGH 11 AND 18 THROUGH 28, ALL INCLUSIVE, IN BLOCK 2 OF
O. DAVIDSON=wS ADDITION TO ELGIN, IN THE CITY OF ELGIN, KANE COUNTY,
ILLINOIS .
ALSO
LOTS 1 THROUGH 12 AND THE VACATED ALLEY LYING NORTHWESTERLY OF THE
NORTHWESTERLY LINE OF SAID LOTS 1 TO 10 INCLUSIVE AND SOUTHEASTERLY
OF THE SOUTHEASTERLY LINE OF SAID LOTS 11 AND 12 IN BLOCK "C" OF
DAVIDSON' S GROVE AVENUE SUBDIVISION, IN THE CITY OF ELGIN, KANE
COUNTY, ILLINOIS .
PARCEL 3 :
THAT PART OF VACATED WELLINGTON AVENUE LYING IN PART OF THE
SOUTHWEST QUARTER OF SECTION 13 , TOWNSHIP 41 NORTH, RANGE 8 EAST OF
THE THIRD PRINCIPAL MERIDIAN LYING NORTHERLY OF THE NORTHERLY RIGHT
OF WAY OF NATIONAL STREET AND SOUTHERLY OF A LINE DRAWN FROM THE
INTERSECTION OF THE SOUTHERLY RIGHT OF WAY LINE OF LAKE STREET WITH
THE WESTERLY RIGHT OF WAY OF WELLINGTON AVENUE, NORTHEASTERLY TO A
POINT ON THE NORTHERLY LINE OF LOT 15, BLOCK 2 OF RAILROAD ADDITION
TO ELGIN, SAID POINT BEING 72 . 75 FEET SOUTHWESTERLY OF (AS MEASURED
ALONG SAID NORTHERLY LINE) THE NORTHEAST CORNER OF SAID LOT 15,
BEING SITUATED IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS .
PARCEL 4 :
LOTS 4, 5, 6 AND THE SOUTHERLY 55 FEET OF LOTS 3 AND 7 IN BLOCK 2
OF RAILROAD ADDITION TO ELGIN, IN THE CITY OF ELGIN, KANE COUNTY,
ILLINOIS .
PARCEL 5 :
EASEMENT AGREEMENT MADE BY THE KANE COUNTY FOREST PRESERVE, TO THE
CITY OF ELGIN, FOR AN UNDERGROUND, ABOVE GROUND EASEMENT, AND A
CONSTRUCTION EASEMENT FOR INGRESS AND EGRESS FOR USES ASSOCIATES
WITH A RIVERBOAT GAMBLING SITE, INCLUDING PARKING, SERVICE,
MAINTENANCE, STRUCTURAL SUPPORT AND PEDESTRIAN AND VEHICULAR
TRAFFIC RECORDED SEPTEMBER 21, 1993 AS DOCUMENT NUMBER 93K72210 .
PERMANENT INDEX NOS . 06-13-358-013 (affects Parcel 1)
06-13-359-040 (affects Parcels 2 and 3)
06-13-379-017 (affects Parcel 4)
City of Elgin Agenda Item No.
��.
/e1,100''
November 6, 1998
TO: Mayor and Members of the City Council
FROM: Joyce A. Parker, City Manager
SUBJECT: Amended and Restated Ground Lease Agreement and
Ground Lease and Option Agreement with Elgin
Riverboat Resort
PURPOSE
To present for City Council consideration an Amended and
Restated Ground Lease Agreement and Ground Lease and Option
Agreement between the City and Elgin Riverboat Resort .
BACKGROUND
The City and Elgin Riverboat Resort previously entered into a
Development Agreement as of June 24, 1992 . Attached to the
original Development Agreement was a proposed Ground Lease
Agreement . The City and Elgin Riverboat Resort subsequently
entered into the Ground Lease Agreement effective January 20,
1994 .
The original Development Agreement and Ground Lease Agreement
have been subsequently amended by the First Amendment to the
Development Agreement dated June 23 , 1993 , a Second Amendment
to the Development Agreement and Ground Lease Agreement dated
January 20, 1994 , and a Third Amendment to the Development and
Ground Lease Agreement dated June 9, 1994 .,
Article IV of the Third Amendment to the Development Agreement
and Ground Lease Agreement provided in part that the City and
the Developer would enter into an Amended and Restated Ground
Lease Agreement incorporating all of the terms of the original
Development Agreement, Lease Agreement and the various amend-
ments into a single document .
City staff and Elgin Riverboat Resort have completed a docu-
ment providing for the Amended and Restated Ground Lease
Agreement . A copy of the Amended and Restated Ground Lease
Agreement is attached. This document contains the terms of
the earlier Development Agreement, Ground Lease Agreement and
the various amendments . The Amended and Restated Ground Lease
Agreement does not change the various rights and obligations
of the parties but merely synthesizes into a single document
the various agreements previously entered into by the parties .
Lease Agreements with Elgin Riverboat Resort
November 6, 1998
Page 2
The principal terms of the Ground Lease including the basic
rent, percentage rent and number of years all remain the same .
Editorial corrections and clarifications have been incorporat-
ed throughout the Amended and Restated Agreement including
corrections to the legal description for the leased premises .
Articles II and III of the Third Amendment to the Development
Agreement and Ground Lease Agreement relate to the east and
west parcels north of the riverboat pavilion site . The Third
Amendment provided that Elgin Riverboat Resort would improve
the west parcel with a park site and the east parcel as a
parking lot site . The Third Amendment further provided that
the parties would subsequently enter into a Ground Lease and
Option Agreement with respect to said parcels with the terms
thereof as set forth in the Third Amendment .
A copy of the proposed Ground Lease and Option Agreement for
the west and east parcels is attached. A map identifying the
west and east parcels is also attached. The Ground Lease and
Option Agreement contains the various terms and agreements of
the City and Elgin Riverboat Resort with respect to these two
properties as set forth in the Third Amendment to the Develop-
ment Agreement and Ground Lease Agreement. The terms of the
Ground Lease and Option Agreement with respect to the east and
west parcels may be summarized as follows :
1 . The City will lease the east parcel to Elgin Riverboat
Resort for a period of five years commencing as of
January 1, 1995 and ending on December 31, 1999 . Annual
rent is $1 . 00 per year.
2 . Elgin Riverboat Resort shall at its cost construct a
parking lot on the east parcel . The property must be
utilized as a public parking lot open to the public free
of charge . Elgin Riverboat Resort has previously com-
pleted such parking lot construction.
3 . All taxes and repairs for the east parcel are the respon-
sibility of Elgin Riverboat Resort .
4 . Section 25 of the agreement provides that during the five
year period ending December 31, 1999, Elgin Riverboat
Resort shall have the right to submit to the City a plan
for redevelopment of the east parcel together with the
redevelopment of the west parcel and, if accepted, the
City shall agree to sell both the east and west parcels
to Elgin Riverboat Resort at a price to be agreed upon.
While the City has no obligation to approve any such
redevelopment proposal submitted by Elgin Riverboat
Resort, the City shall consider in good faith all such
proposals actually submitted. The City further agrees
that it will not develop or approve any development of
the east parcel, other than for public parking purposes,
prior to December 31, 1999, without the prior written
consent of Elgin Riverboat Resort .
Lease Agreements with Elgin Riverboat Resort
November 6, 1998
Page 3
5 . Section 31 requires Elgin Riverboat Resort to restore the
west parcel to open landscape greenspace for passive
recreational use by the public and allows Elgin Riverboat
Resort to use the west parcel for events or activities
incident to its riverboat gambling operation through
December 31, 1999 . Elgin Riverboat Resort has previously
completed such restoration.
6 . Section 32 provides that no development will be permitted
on the west parcel and that the west parcel shall remain
in its state as restored and improved by Elgin Riverboat
Resort until December 31, 1999, unless the City obtains
the prior written consent of Elgin Riverboat Resort .
Elgin Riverboat Resort must maintain the west parcel in a
neat and orderly condition at its sole cost and expense
through December 31, 1999 .
7 . Sections 33 and 34 provide Elgin Riverboat Resort the
option to purchase the east and west parcels through
December 31, 1999 . To exercise its option to purchase
the east and west parcels Elgin Riverboat Resort must
simultaneously exercise its options to purchase both
parcels . The purchase price for the east and west
parcels would be determined by a jointly approved MAI
appraiser. Title to the east and west parcels would
revert to the City in the event Elgin Riverboat Resort
did not commence construction of a 150 guest room hotel
within three years and complete same within five years .
8 . Section 33 further provides that if the City proposes to
construct, or approves to be constructed any building or
improvement on the east parcel prior to December 31,
2004, the City shall first notify Elgin Riverboat Resort
thereof in writing setting forth the nature of the
proposed development . Upon receiving such notice Elgin
Riverboat Resort shall have thirty (30) days in which the
notify the City in writing of its intention to purchase
that portion of the east parcel which the City proposes
to develop. The purchase price for the property would be
determined by a jointly approved MAI appraiser. If Elgin
Riverboat Resort fails to exercise its option to purchase
the east parcel the City may develop the east parcel as
proposed free of any remaining rights of Elgin Riverboat
Resort with respect to the east parcel .
9 . Section 34 further provides that if the City proposes to
construct, or approves to be constructed any building or
improvement on the west parcel prior to December 31,
1999, the City shall first notify Elgin Riverboat Resort
thereof in writing setting forth the nature of the
r proposed development . Upon receiving such notice Elgin
Riverboat Resort shall have thirty (30) days in which to
notify the City in writing of its intention to purchase
the entire west parcel . The purchase price for the
property would be determined by a jointly approved MAI
Lease Agreements with Elgin Riverboat Resort
November 6, 1998
Page 4
appraiser. If Elgin Riverboat Resort fails to exercise
its right to purchase the west parcel the City may
develop the west parcel as proposed free of any remaining
rights of Elgin Riverboat Resort with respect to the west
parcel .
COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED
Elgin Riverboat Resort and its attorneys .
FINANCIAL IMPACT
An audit of rent payments performed by Gleeson, Sklar, Sawyers
& Cumpata on behalf of the City discovered a discrepancy
between the City and Elgin Riverboat Resort ' s interpretation
of lease provisions and the amount of rent due through
December 31, 1995 . Upon further review of the matter, Elgin
Riverboat Resort has agreed with the city' s position that an
additional $184 , 753 was due for rent fqr the time period
through December 31, 1995 . Section 2F of the Amended and
Restated Ground Lease Agreement provides for the payment to
the city of $116, 375 which is the rent due of $184, 752 less
$68 , 395 due Elgin Riverboat Resort for the South Grove im-
provement project (reopening of South Grove),
LlorLEGAL IMPACT
VI
The Third Amendment to the Development Agreement and Ground
Lease Agreement of June 9, 1994 contemplates the parties will
enter into the Amended and Restated Ground Lease Agreement and
the Ground Lease and Option Agreement .
ALTERNATIVES
Because the Third Amendment to the Development Agreement and
Ground Lease Agreement contemplates the proposed agreements,
approval of the proposed agreements appears to be the appro-
priate alternative .
Lease Agreements with Elgin Riverboat Resort
November 6, 1998
Page 5
eft
RECOMMENDATION
Approval of the Amended and Restated Ground Lease Agreement
and approval of the Ground Lease and Option Agreement .
jig•ectfully submitted,
J•.y e Al Parker
Ci y Manager
WAC/nr
Attachment
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EXHIBIT C
Request for Specific Clean Up Objectives Prepared by ATEC
Associates, Inc.
to be inserted