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05-100 Resolution No. 05-100 RESOLUTION AUTHORIZING EXECUTION OF AN AMENDMENT TO DEVELOPMENT AGREEMENT WITH RSC-ELGIN, LLC FOR THE DEVELOPMENT OF THE NBD/PROMAC SITE ON SOUTH GROVE AVENUE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that Ed Schock, Mayor, and Dolonna Mecum, City Clerk,be and are hereby authorized and directed to execute an Amendment to Development Agreement on behalf of the City of Elgin with RSC-Elgin, LLC for the development of residential, retail and parking at the property located at East Chicago Street, South Grove Avenue and Riverside Drive (NBD/Promac Site), Elgin, a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock,Mayor Presented: March 23, 2005 Adopted: March 23, 2005 Omnibus Vote: Yeas: 6 Nays: 0 Attest: s/Dolonna Mecum Dolonna Mecum, City Clerk MAR,23-2005 WED 08:48 AM CITY OF ELGIN-LEGAL FAX NO. 1 847 931 5665 P. 02 Draft 3/17/05 AMENDMENT TO DEVELOPMENT AGREEMENT THIS AMENDMENT TO DEVELOPMENT AGREEMENT made and entered into this 23=d day of March, 2005, by and between the CITY OF ELGIN, an Illinois municipal corporation (hereinafter referred to as the "City" ) ; and RSC-Elgin, LLC, an Illinois limited liability company (hereinafter referred to as "Developer" ) . WHEREAS, the City and the Developer have previously entered into a Development Agreement dated August 11 , 2004 (hereinafter referred to as the "Subject Development Agreement" ) , and WHEREAS, the Subject Development Agreement related to the City' s conveyance to the Developer and Developer' s subsequent development of the property legally described in the Subject Development Agreement and referred to therein collectively as the City Sites; and WHEREAS, the parties hereto determine it to be in their best interests to amend the Subject Development Agreement as set forth herein subject to the terms and conditions hereof . NOW, THEREFORE, for and in consideration of the mutual undertakings as set forth herein, and in consideration of the mutual undertakings as set forth in the Subject Development Agreement, and other good and valuable consideration, the receipt MAR-23-2005 WED 08:48 AM CITY OF ELGIN-LEGAL FAX NO. 1 847 931 5665 P, 03 and sufficiency of which is hereby acknowledged, the parties hereto agree as follows : 1 , Section 10A(iii) (B) of the Subject Development Agreement is hereby revised by amending the last paragraph thereof commencing with the phrase "The terms and provisions of this to read as follows : "The terms and provisions of Section 10A(iii) (A) and (B) shall be incorporated into an Easement and Operating Agreement in a form approved by the City' s Corporation Counsel (the "Easement and Operating Agreement" ) . The Easement and Operating Agreement shall be recorded simultaneously with the Declaration of Condominium referred to in Section 11 hereof on or before the completion of the project, simultaneous with the recording of a plat creating the condominium units, and prior to the closing of the sale of any of the residential or commercial units on the Subject Property. The provisions of this section shall survive the Closing _ " 2 . Section 11 of the Subject Development Agreement is hereby amended in its entirety to read as follows : "11 . Declaration of Easements, Restrictions, Covenants and By-laws. The Developer shall prepare for the City' s review and approval a Declaration of Condominium (the "Declaration" ) for a condominium association or for condominium ownership, which Declaration shall , inter alia, provide for easements, restrictions, covenants and by-laws for the Mixed Residential and Commercial Project of the Subject Property. The Developer agrees that it shall cause the Declaration to comply with all applicable provisions of law including the Illinois Condominium Property Act . The Declaration shall also include the creation and location of the Public Parking Spaces provided, however, the Public Parking Spaces and the use and maintenance thereof by the City shall not be subject to the condominium declaration (including, but not limited to assessments or rules and regulations of the association) but instead shall be governed by the Easement and Operating Agreement -2- MAR-23-2005 WED 08:49 AM CITY OF ELGIN-LEGAL FAX NO. 1 847 931 5665 P. 04 referred to in Section 10A(iii) (B) hereof . The Declaration shall be in a form as approved by the City' s Corporation Counsel . The Developer shall record such Declaration simultaneously with the Easement and Operating Agreement referred to in Section 10A(iii) (B) hereof on or before the completion of the project, simultaneously with the recording of a plat creating the condominium units, and prior to the closing of the sale of any of the residential or commercial units on the Subject Property. The Declaration may be modified or amended by the Developer or Developer' s successors in interest , but the Declaration shall provide that as amendments or revisions effecting the types of buildings, building elevations, building design, building materials, the number of residential units, the Public Parking Spaces, the Easement and Operating Agreement, or the use of the Subject Property, such amendments or revisions shall require the prior approval of the City Council of the City of Elgin. The provisions of this section shall survive the Closing . " 3 . That a new Section 31 be added to the Subject Development Agreement to read as follows : "31 . A. The City agrees that as of the closing to provide for the vacation of Fountain Square Way and that portion of Riverside Avenue as set forth in the ordinance vacating such public streets attached hereto as Exhibit A and B. At the closing the City will convey by quit claim deed the City' s right, title and interest in to such vacated Fountain Square Way and vacated portion of Riverside Avenue subject to the terms and conditions as set forth in the attached vacation ordinances . B. In consideration of City agreeing to vacate the portion of Riverside Avenue as set forth herein the Developer agrees to and shall reimburse the City the City' s costs for widening the up ramp from Riverside Drive to Chicago Avenue . The City shall provide the Developer written notice of such costs after the City has incurred same . The City shall thereafter deduct such costs from the payments to be made by the City to the Developer pursuant to Exhibit E of the subject Development Agreement . " -3- MAR-23-2005 WED 08:49 AM CITY OF ELGIN-LEGAL FAX NO. 1 847 931 5665 P. 05 4 . In the event of any conflict between the terms of this Amendment to Development Agreement and the terms of the Subject Development Agreement , the terms of this Amendment to Development Agreement shall control . 5 . That except as amended herein, the terms of the Subject Development Agreement shall remain in full force and effect . IN WITNESS WHEREOF, the parties hereto have entered into this Amendment to Development Agreement on the date and year first written above. CITY OF ELGIN, an Illinois RSC-ELGIN, LLC. , an Illinois municipal corporation Limited liability company By RSC @ ASSOCIATES, LLC, By an Illinois limited liability ayor company, Its Manager Attest : By n� Rich6rd S . Curto Its Manager City Clerk F:\Legal Dept\Agrcement\Development Agr-RSC-Amended-3-OS.doc -4- MAR-23-2005 WED 08:49 AM CITY OF ELGIN-LEGAL FAX NO. 1 847 931 5665 P. 06 EXHIBIT A Ordinance Vacating Fountain Square Way -5- MAR-23-2005 WED 08:49 AM CITY OF ELGIN-LEGAL FAX NO. 1 847 931 5665 P. 07 EXHIBIT B Ordinance Vacating a Portion of Riverside Avenue -6- ' V Draft 3/23/05 PARKING LOT LEASE THIS LEASE made and entered into this Z4-TNday of March, 2005, by and between RSC-ELGIN, LLC, an Illinois limited liability company (hereinafter referred to as "Developer" ) and the CITY OF ELGIN, a municipal corporation organized and existing under the laws of the State of Illinois (hereinafter referred to as the "City" ) . WITNESSETH WHEREAS, the Developer has acquired from the City and the Developer is now the owner of certain real property improved with a surface parking lot and located at the southwest corner of Chicago Street and South Grove Avenue and legally described in Exhibit A attached hereto (such property is hereinafter referred to as the "Subject Parking Lot Property") ; and WHEREAS, the Development Agreement between the Developer and the City dated August 11, 2004, (the "Development Agreement") provides in part that until such time as the Developer is prepared to commence the construction of Phase II of the Mixed Use and Residential Commercial Project on the Subject Parking Lot Property the City shall have the right to continue to use the Subject Parking Lot Property for public parking purposes . NOW, THEREFORE, for and in consideration of the mutual undertakings contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows : 1 . The Developer hereby leases to the City and the City hereby leases from the Developer the Subject Parking Lot Property. 2 . City shall use and occupy the Subject Parking Lot Property for the sole purpose of providing parking spaces for the parking of vehicles of the public or for such other persons or entities as designated by the City and for no other purpose or purposes . 3 . The term of this agreement shall commence as of the closing of the conveyance of the Subject Parking Lot Property from the City to the Developer and shall continue thereafter on a month-to-month basis. This Lease may be terminated by the City upon thirty (30) days advance written notice to the Developer. This Lease may be terminated by t he Developer upon not less than sixty (60) days advance written notice of Developer' s intention to commence construction of the Phase II of the Mixed Use Residential and Commercial Development on the Subject Parking Lot Property as described in the Development Agreement . 4 . The City shall pay to the Developer as rent the sum of zero dollars ($0) per month. 5 . The City shall be responsible for all snow removal and any other maintenance of the Subject Parking Lot Property to permit such property to be used as described in this Lease . 6 . The City shall to the fullest extent permitted by law indemnify, defend and hold harmless the Developer from and against any and all liability, damages, costs, suits or actions caused by or arising out of this Lease and/or the City' s or the public ' s use of the Subject Parking Lot Property including, but not limited to, such -2- matters caused by or arising out of the negligent acts or omissions of the City, its employees, officers, agents or the invitees of the City. The provisions of this paragraph shall survive any termination and/or expiration of this Lease. To the extent permitted under the City' s self-insurance program the City agrees to at all times during the term of this Lease to keep and maintain general liability insurance in force, insuring against liability from death, bodily injury or property damage in a combined single limit of not less than Two Million Dollars ($2, 000, 000) , and to provide the Developer a certificate of insurance naming the Developer as an additional insured thereunder with respect to the Subject Parking Lot Property. 7 . The Developer shall to the fullest extent permitted by law indemnify, defend and hold harmless the City from any and all liability, damage, claims, suits or actions caused by or arising out of negligent acts of omissions of the Developer, its employees, officers and agents with respect to the Subject Parking Lot Property. The provisions of this paragraph shall survive any termination and/or expiration of this Lease. 8 . The Developer shall not use the Subject Parking Lot Property for any construction activities on the adjacent Phase I development and shall not permit persons participating in such Phase I construction activities to park in the Subject Parking Lot Property. 9 . The rights of the City under this Parking Lot Lease shall be subordinate to the rights of Developer' s construction lenders. -3- 10 . Any notice given under this Lease shall be in writing and shall be deemed to have been given when hand delivered or deposited in the U.S . mail, certified or registered, return receipt requested, addressed as follows: IF TO THE CITY: IF TO DEVELOPER: City of Elgin RSC-ELGIN LLC 150 Dexter Court c/o Richard S . Curto Elgin, IL 60120-5555 180 N. LaSalle St . , Suite 2626 Attention: City Manager Chicago, IL 60601 IN WITNESS WHEREOF, the parties hereto have entered into and executed this Lease on the date and year first written above . CITY OF ELGIN RSC-ELGIN, LLC, an Illinois Limited liability company By RSC @ ASSOCIATES, LLC, an Illinois limited liability company, Its Manager By By Mayor Richard S . Curto Its Manager At est : City Clerk F:\Legal Dept\Agreement\Lease-NBD Parking Lot.doc -4- EXHIBIT A LEGAL DESCRIPTION OF SUBJECT PARKING LOT PROPERTY PARCEL ONE: Lots 1, 2 , 3 , 4, 5 and 6 and part of Lot 10 of B.W. Raymond' s Subdivision of Lots 1, 3 , 4 and 5 of Block 21 of the Original Town of Elgin, on the East Side of Fox River; Lots 1, 2 and part of Lot 3 of McOsker' s Subdivision of Lots 7, 8, 9, 10 and 10-1/2 of B.W. Raymond' s Subdivision of Lot 1 in Block 21 of the Original Town of Elgin, and that portion of land lying between Lot 9 and Fox River; also part of the vacated alley lying on the Southerly portion of said McOsker' s Subdivision; also part of Lot 2 in Block 21 of the original town of Elgin, on the east side of Fox River; all of the foregoing begin described as a tract as follows: Beginning at a point in the Southerly line of the Northerly 22 feet of Lot 2 in Block 21 aforesaid, 95 feet Southwesterly, measured along said Southerly line, from the Westerly line extended of Lot 4 of B.W. Raymond' s Subdivision; thence Northwesterly parallel with said Westerly line extended of said Lot 4 a distance of 42 feet; thence Northwesterly to a point on the Westerly line of Lot 2 of McOsker' s Subdivision 105 feet Northwesterly from the Southwesterly corner thereof; thence Northwesterly along the Westerly line of Lot 2 of McOsker' s Subdivision to the Northwesterly corner thereof and the South line of Chicago Street; thence East along said South line of Chicago Street to the Westerly line of Grove Avenue; thence Southeasterly along said Westerly line of Grove Avenue to the Southeast corner of Lot 2 in Block 21 aforesaid; thence Westerly along the Southerly line of said Lot 2 to the Easterly line of Riverside Avenue; thence Northerly along said Easterly line to the point of beginning, in the City of Elgin, Kane County, Illinois . PARCEL TWO: Lot 11 and that part of Lot 28 lying Easterly of the Easterly line of Riverside Avenue and that part of the vacated alley lying between said Lots 11 and 28, all in B.W. Raymond' s subdivision of Lots 1, 3, 4 and 5 of Block 21 of the original Town of Elgin, on the East side of Fox River, in the City of Elgin, Kane County, Illinois . -5-