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05-164 B Resolution No.05-164 RESOLUTION AUTHORIZING EXECUTION OF A LEASE-PURCHASE AGREEMENT WITH THE TRUST FOR PUBLIC LAND l BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that Ed Schock, Mayor, and Dolonna Mecum, City Clerk,be and are hereby authorized and directed to execute a Lease-Purchase Agreement with The Trust for Public Land on behalf of the City of Elgin for a new regional park, a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: May 25, 2005 Adopted: May 25, 2005 Vote: Yeas: 7 Nays: 0 Attest: s/Dolonna Mecum Dolonna Mecum, City Clerk i 5/24/05 LEASE-PURCHASE AGREEMENT This Lease-Purchase Agreement (the "Lease") is made as of the Effective Date as provided below by and between THE TRUST FOR PUBLIC LAND, a nonprofit California public benefit corporation authorized to do business in Illinois as TPL-Illinois (the "Landlord") and CITY OF ELGIN, an Illinois municipal corporation(the "Tenant"). WITNESSETH: 1. LEASE TERM. Landlord, for and in consideration of the agreements of Tenant herein contained, hereby leases to Tenant, and Tenant hereby leases from Landlord, certain real estate legally described on Exhibit A attached hereto and made a part hereof together with timber, water and/or minerals located thereon and any and all rights appurtenant thereto (the "Land") for a term beginning on the date on which Landlord obtains title to said Land (the "Commencement Date") and terminating on the first anniversary of the Commencement Date at 11:59 p.m. (the "Term"). 2. RENT. For the first six months of the Term, Tenant shall pay as base rent for the Land the monthly sum of Eighteen Thousand Two Hundred Sixty-Three Dollars Thirty-Seven Cents ($18,263.37) (the "Initial Monthly Rent"). Tenant understands that the monthly Initial Monthly Rent of $18,263.37 is based upon 1/12`" of interest on the sum of $4,383,210.00 ("Landlord's Land Costs") at the rate of 5% per annum (the "Interest Rate"). Notwithstanding anything herein to the contrary, if the cost of borrowing by the Central Region of Landlord to fund the purchase of the Land increases, the Interest Rate will increase and the remaining installments of Initial Monthly Rent and the Secondary Monthly Rent, as defined below, will be adjusted accordingly; provided, however, for the purposes of this Lease and the calculation of the monthly installments of Initial Monthly Rent and Secondary Monthly Rent due hereunder, in no event will the Interest Rate exceed 5.5 percent per annum and in no event shall the monthly installment of Initial Monthly Rent or the Secondary Monthly Rent exceed Twenty Thousand Eighty-Nine Dollars Seventy-One Cents ($20,089.71). For the period beginning six (6) months prior to the end of the Term of the Lease herein, Tenant will pay to Landlord as base rent for the Land a monthly installment equal to the sum of: one-sixth of the then unpaid amount of Landlord's Land Costs which is in the total amount of Four Million Three Hundred Eighty-Three Thousand Two Hundred and Ten Dollars ($4,383,210.00) (the "Monthly Installments of Landlord's Land Costs") plus an amount equal to 1/12th of the accrued interest on the balance of the unpaid amount of Landlord's Land Costs based on the Interest Rate then in affect (the "Secondary Monthly Rent") (the total of the Monthly Installments of Landlord's Land Costs and Secondary Monthly Rent is the "Subsequent Monthly Installments of Rent"). Landlord shall give Tenant thirty (30) days' advance written notice of any change in the Interest Rate and any resulting increase in the monthly rent due hereunder. All rent shall be payable without any demand therefore and without any deductions or set-offs whatsoever. All amounts due and payable from Tenant under this Lease shall be considered as rent. In the event any rent or other sum due and owing by Tenant to Landlord is not paid within five (5) days when due, such amount shall bear interest, computed from the first day on which such payment was due, at the rate of 9 percent per annum. The monthly installments of base rent for the Land due hereunder will commence on the Commencement Date and on the same day of each calendar month thereafter during the Term. Rent will be paid at the offices of Landlord located at 53 West Jackson, Suite 815, Chicago, Illinois 60604 or at such other place or to such other person as Landlord may from time-to-time direct. 3. PERMITTED USES. Tenant shall use and occupy the Land as an open space area in connection with its park system and shall be permitted to use the Land for public park purposes. Tenant shall not use the Land for any other object or purpose whatsoever without Landlord's prior written consent. 4. CONDITION OF LAND Tenant has examined and knows the condition of the Land, and agrees that no representations as to the condition, suitability, or repair thereto and the improvements thereon, if any, have been made by the Landlord or its agents prior to, or at the execution of this Lease. Tenant hereby accepts the Land, in its current "AS IS, WHERE IS" condition. Notwithstanding any applicable law or custom to the contrary, all risk of loss with respect to the Land between the Effective Date and Commencement Date shall be borne by Tenant. Tenant covenants that it shall not take any governmental action or undertake to secure any governmental action affecting the Land from the Effective Date through the Commencement Date, during the term of this Lease or any time thereafter prior to Landlord's conveyance of the title to the Land to Tenant, or prior to Landlord's sale of the Land to a third party which shall adversely effect the appraised fair market value of the Land and/or adversely effect Landlord's ability to sell the Land to a third party. 5. SERVICES AND TAXES. Landlord shall not be obligated to provide any services to Tenant or to the Land during the Term. Tenant shall pay all charges for labor, water, and any other services or materials furnished or supplied to all or any part of the Land, and shall timely pay any and all taxes and assessments, ordinary and extraordinary, general and specific, which may be levied or assessed on the Land and be due and owing during the Term. Tenant shall have the right, at its sole cost and expense to apply for a tax exemption or, to contest by appropriate legal proceedings, without cost or expense to Landlord, the amount or validity of any such taxes and assessments or seek an exemption from such taxes and assessments for the Land. Tenant, however, shall not be relieved of its obligation to pay such taxes and assessments as required by this Section 5 unless the Land is allowed a tax exemption or the proceedings shall operate to prevent the collection of such imposition and the sale of the Land, or any part thereof, to satisfy the same. Landlord agrees that it will cooperate with Tenant in any proceeding referred to in this Section 5 and that any such proceedings may, with prior notice to Landlord, be brought by Tenant in the name of Landlord but Landlord shall not be subjected to any liability for the payment of any costs and expenses in connection therewith. Notwithstanding the foregoing, if Tenant has failed to timely pay all charges for labor, services, materials, taxes and assessments as provided in this Section 5, Landlord shall have the right at its sole option to do so and all costs incurred by Landlord in doing the same shall be deemed additional rent, and are due and payable by Tenant on demand and shall be collectable as additional rent in the same manner and with the same remedies as if it had been originally reserved. Landlord's election hereunder will not limit any remedies available to Landlord under Section 17. 2 6. MAINTENANCE AND REPAIR, CONSTRUCTION OF IMPROVEMENTS. (a) Tenant, shall at Tenant's sole cost and expense, maintain the Land and all of Tenant's improvements permitted on the Land hereunder in good condition and repair during the Term, and specifically agrees to maintain all ponds, trees, grasses, flowers, shrubs, and other vegetation and flora and fauna on the Land in a state consistent with the terms of this Lease. Tenant agrees that during the Term, Tenant will keep the Land free from all litter, trash, refuse, and discarded materials during the Term. During the Term, Landlord shall have no obligation to maintain, repair or replace any components or any improvements on the Land. Notwithstanding the foregoing, if in Landlord's reasonable judgment Tenant has failed to promptly or completely maintain the Land as provided for hereunder and Landlord has provided Tenant written notice of same and Tenant has not diligently pursued addressing the matters set forth in Landlord's notice, Landlord shall have the right at its sole option to do so and all costs incurred by Landlord in doing the same shall be deemed additional rent, and are due and payable by Tenant on demand and shall be collectable as additional rent in the same manner and with the same remedies as if it had been originally reserved. Landlord's election hereunder will not limit any remedies available to Landlord under Section 17. (b) Tenant shall not make any contract for the construction, demolition, repair, or improvement on, in, of, or to the Land, or any part thereof, or for any work to be done or materials to be furnished on or to the Land, or any part thereof without first obtaining the prior written consent of Landlord, which consent will not be unreasonably withheld, delayed or denied, and shall, among other considerations, be predicated upon Tenant's use of contractors who are acceptable to Landlord and who provide a full payment, completion and performance bond naming Landlord as an insured or beneficiary party. In the event Landlord consents to any such work, Tenant agrees to commence and to complete such work promptly, lien free and in a first-class condition and in conformity with all applicable government rules, codes, laws, regulations and requirements, as modified or amended from time to time during the Term. Prior to commencing any work in or about the Land (except for routine maintenance or work not requiring a permit or approval), Tenant shall secure any necessary permits and approvals for such work and shall provide Landlord with certificates of insurance in forms and amounts satisfactory to Landlord naming Landlord, and Landlord's officers, directors, agents and employees, as additional insured parties. In the event Tenant defaults and fails to make such changes and additions to the improvements so as to comply with applicable government rules, codes, laws, regulations and requirements, Landlord, at its option may, but shall not be required to, make the required changes and additions. All costs incurred by Landlord to provide such changes or additions are hereby deemed additional rent, and are due and payable by Tenant on demand and shall be collectable as additional rent in the same manner and with the same remedies as if it had been originally reserved. Tenant shall provide to Landlord copies of as- built plans on completion. All additions, fixtures, or new building, except only furniture and fixtures which shall be readily removable without injury to the Land, shall be and remain a part 3 of the Land at the expiration or other permitted termination of this Lease. Tenant's obligation hereunder constitutes a recognition of the necessity to ensure that the Land remains marketable. (c) Nothing contained in this Lease shall authorize Tenant to do any act which shall in any way encumber the Landlord's interest in the Land, nor in any way subject such title or interest to any claims by way of lien or encumbrance. In addition to the contracts specified in subparagraph (b), Tenant shall not enter into any new leases, licenses, options, permits or other contracts of any kind whatsoever, written or oral, affecting the Land, without Landlord's prior written consent. Notwithstanding the foregoing or anything to the contrary in this Lease, Tenant may enter into a contract with the Kane County Forest Preserve District to sell a portion of the Land to become effective on the date which Tenant obtains title to the Land. Any claim to a lien upon the Land arising from any act or omission of Tenant shall attach only against Tenant's interest and shall in all respects be subordinate to the Landlord's interest in the Land and Tenant shall provide written notice of this to each party prior to commencement of any service by said party. If Tenant has not removed any lien or encumbrance within thirty (30) days after written notice to Tenant by Landlord, Landlord may pay the amount necessary to remove such lien or encumbrance, without being responsible for making any investigation as to the validity thereof, and the amount so paid shall be deemed additional rent and is due and payable by Tenant on demand and shall be collectable as additional rent in the same manner and with the same remedies as if it had been originally reserved. 7. GOVERNMENT REQUIREMENTS. Tenant agrees to observe and comply with all applicable ordinances, rules, regulations and laws respecting the Land or the use thereof now in effect or which may be enacted during the continuance of this Lease by any municipal, county, state or federal authorities, and Tenant specifically agrees to protect, defend, indemnify and hold harmless Landlord, its officers, directors, agents, employees and lenders from and against any damage, liability and expense of whatever nature caused by any violation thereof. The terms of this indemnity shall survive the closing of any sale of all or a portion of the Land and the expiration of this Lease. 8. INSURANCE. Tenant shall, at its sole cost and expense, procure and maintain during the Term hereof, comprehensive public liability insurance and property damage insurance, including but not limited to contractual liability insurance, with limits of not less than $1,000,000.00, per occurrence and, $5,000,000.00 in the aggregate, which insurance shall name the Landlord and its officers, directors, agents, employees and lenders as additional insured parties. Such insurance shall protect, defend and indemnify the insured parties from and against any and all claims (including all costs and expenses of defending against same) for bodily injury, sickness, death, or disease and for damage or injury to or destruction of ownership, maintenance or use of the Land, and any activity thereon. Notwithstanding the foregoing or anything to the contrary in this Lease, insurance provided through the Tenant's self-insurance program shall be sufficient insurance coverage for the purposes of the insurance described in this section. Certificates and endorsements evidencing such coverage shall be delivered to Landlord prior to the commencement of the Term and thereafter not less than thirty (30) days' prior to the expiration date of any such policy. No policy shall be cancelled, amended or modified except after thirty (30) days' written notice to Landlord. 4 9. LOSS, DAMAGE,INDEMNIFICATION. (a) The Tenant shall be solely liable for any damage to Tenant's person, property or business or the person, property or business of any person or entity claiming through Tenant, resulting from or related to: (i) the Land, or any part thereof or any appurtenances thereof, needing repair; (ii) the happening of any accident in or about the Land; (iii) the action or negligence of any invitee or occupant of the Land or any other person; or (iv) theft, vandalism, malicious mischief, unlawful entry or any other cause or reason. The Tenant assumes all risk of loss of or damage to the Land from any cause whatsoever, and no such loss of or damage to the Land, nor defect therein shall relieve the Tenant of the obligations to pay Rent or to perform any other obligation under this Lease. Without limiting the foregoing, Landlord shall not be responsible for any damage caused by fire, explosion, smoke, water, snow, frost, steam, sewerage, sewer gas or odors, illuminating gas, or by the bursting or leaking of pipes. In the event of damage to the Land, Tenant will immediately place the same or cause the same to be placed in as good repair and condition as existed at the time of damage and, when received, shall apply the proceeds of any insurance recovery to the costs incurred in making such repairs or cause the same to be so applied. Any insurance proceeds paid to the Landlord or the Tenant, as a result of the destruction of, or damage beyond repair to, all or any part of the Land shall belong to the parties as their interest may appear under the terms of this Lease. (b) All personal property on, placed or moved into or on the Land shall be at the risk of Tenant or the owner thereof, and the Landlord shall not be liable to Tenant for any damage to said personal property. (c) Except to the extent expressly prohibited by law, Tenant agrees to defend, indemnify and hold harmless Landlord and its officers, directors, agents, employees, lenders, successors and assigns from and against any and all losses, claims, liabilities, damages, demands, fines, costs and expenses (including reasonable legal expenses) of whatever kind and nature resulting from: (i) any injury to or death of any person or damage to property in or upon the Land or arising out of or connected with the use, non-use, condition or occupancy of the Land or any part thereof which occurs during the Term of this Lease except when such injury, loss or damage results from the negligence or willful misconduct of Landlord, its agents or employees; (ii) any acts, omissions, neglect or fault of Tenant, its agents, servants, contractors, employees, licensees, visitors, customers, patrons, invitees or permitted sublessees; (iii) Tenant's failure to comply with any laws, statutes, ordinances, codes or regulations as herein provided; except when such injury, loss or damage results from the negligence or willful misconduct of Landlord, its agents or employees, (iv) any and all Environmental Damages (as hereinafter defined) which arise from the presence upon, about or beneath the Land of any Hazardous Materials (as hereinafter defined) which occurs during the Term of this Lease except when such injury, loss or damage results from the negligence or willful misconduct of Landlord, its agents or employees, or (v) Tenant's failure to comply with the obligations hereunder. The terms of this indemnity shall survive the closing of any sale of all or a portion of the Land and the expiration of this Lease. (d) Tenant hereby knowingly and intentionally waives the defense of sovereign immunity as a limitation on its liability to Landlord under this Section 9 in any action 5 brought by Landlord against Tenant or in any action in which Landlord is a named defendant, provided Landlord gives reasonable notice of such action to Tenant. "Hazardous Materials" for purposes of this Lease shall mean any substance, material, chemical, water, soil or waste which is or may in the future be listed, identified, classified, characterized, described, defined, or referred to as hazardous, toxic, contaminative, infectious, ignitable, explosive or radioactive by or under any federal, state, or local statute, law, ordinance, code, rule, regulation, order, permit, requirement or decree or similar requirement of each and every federal, state and local governmental agency or other governmental authority pertaining to the protection of human health and safety or the environment (collectively known, for this section of the Lease, as "Law" or "Laws"), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seg.; the Federal Resource Conservation and Recovery Act (42 U.S. C. Section 6901 et seq.); the Emergency Planning and Community Right-to-Know Act, 2 U.S.C. Section 11001 et seq.; the Solid Waste Disposal Act, 42 U.S.C. Section 6901 et seq.; the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et seq.; and all other Laws pertaining to hazardous substances, hazardous materials and pollutants, air resources and air pollution, and water quality and water pollution. "Hazardous Materials" shall also include any material, the presence of which requires investigation or remediation under any Law or which is or becomes defined as a "hazardous waste" or "hazardous substance" under any Law and any hazardous substance, material or waste which causes a nuisance upon or waste to the Land. "Hazardous Materials" specifically include, without limitation, (1) petroleum and petroleum constituents, including crude oil or any fraction thereof(2) asbestos, (3) any pesticide regulated under state or federal law and (4) polychlorinated biphenyls. "Environmental Damages" shall mean, with respect to the presence upon, about or beneath the Land of any Hazardous Materials caused by the Tenant: (i) all claims, judgments, damages, penalties, fines, costs, liabilities and losses (including, without limitation, diminution in the value of the Land, damages for the loss of or restriction on use of the Land or of any amenity of the Land); (ii) all sums paid for settlement of claims, attorney's fees, consultant's fees and expert's fees; and (iii) all costs incurred by Landlord in connection with investigation of Hazardous Materials upon, about or beneath the Land, the preparation of any feasibility studies or reports and the performance of any cleanup, remedial, removal or restoration work required by any federal, state or local governmental agency or political subdivision necessary for Landlord to make full economic use of the Land, or otherwise required under this Lease. 10. ENVIRONMENTAL COVENANTS AND WAIVER. Tenant agrees that Tenant shall not cause, permit, or suffer any Hazardous Materials to be released, discharged, handled, processed, disposed of, stored, produced or used upon, about or beneath the Land by Tenant, or by its agents, employees, contractors or invitees. Tenant hereby intentionally and knowingly waives all claims against Landlord for damages, site remediation and response costs, and all other costs and expenses arising out of the discovery of and/or remediation of any Hazardous Materials. Tenant hereby covenants not to bring any action against Landlord seeking 6 any remedy due to the discovery and/or remediation of Hazardous Materials on the Land. The terms of this Section shall survive the closing of any sale of all or a portion of the Land and the expiration of this Lease. 11. CONDEMNATION. If the whole or any part of the Land shall be taken or condemned by any competent authority, other than Tenant, for any public or quasi-public use or purpose, the Term, at the option of Landlord, shall end upon the date when the possession of the part so taken shall be requested for such use or purpose and Landlord shall be entitled to receive the entire award without any payment to Tenant provided that, if Tenant shall have served notice to Landlord of its intent to exercise its option to purchase Landlord's fee simple ownership interest in the Land hereof, Landlord shall hold such award in trust for the benefit of Tenant. Current monthly base rent for the Land, shall be apportioned as of the date of such termination. 12. ASSIGNMENT AND SUBLETTING. Tenant shall not, without the prior written consent of the Landlord, which consent may be granted or withheld in Landlord's sole discretion: (i) assign, convey, mortgage or transfer this Lease, or any rights or interest hereunder; (ii) sublet the Land or any portion thereof; or (iii) permit any assignment of this Lease, or any part hereof, by operation of law or otherwise. 13. QUIET ENJOYMENT. Provided Tenant is not in default in the performance of Tenant's obligations under this Lease, Landlord warrants, covenants and agrees that Tenant will have peaceful and quite enjoyment of the Land, subject to the terms and conditions of this Lease. 14. RIGHT OF ENTRY. Tenant agrees to permit Landlord and its agents to enter on the Land or any part thereof, at all reasonable times, for the purpose of examining the same, or for making repairs or alterations or performing maintenance as Landlord may deem necessary for the safety or preservation thereof, or for curing any default of Tenant under this Lease. 15. SIGNAGE. The Tenant agrees that after obtaining title to the Land from the Landlord that as part of signage Tenant may subsequently install on the Land to include therein an acknowledgement of Landlord's contribution to the preservation of the Land. The nature and extent of any such signage, including without limitation, all aspects of the location, design and construction of all signage on the Land and the extent of the acknowledgement of Landlord's contribution, shall be in the sole and absolute discretion of the Tenant. Tenant agrees to provide the Landlord the opportunity to review and comment on any proposed signage which includes the acknowledgement of Landlord's contribution to the preservation of the Land. 16. SURRENDER OF THE LAND AND HOLDING OVER. Tenant agrees that at the expiration of this Lease it shall give peaceable possession of the Land to Landlord, in at least as good condition as it is as of the Commencement Date, ordinary wear and tear and approved alterations excepted, provided that Tenant has not exercised its option to purchase Landlord's interest in the Land pursuant to this Lease. Tenant agrees that if Tenant does not surrender said Land to Landlord upon the termination of this Lease then Tenant will pay to Landlord, to the extent permitted by law, double the amount of the rent for the last month of the Term for each month or portion thereof that Tenant holds over plus all damages that Landlord 7 may suffer on account of Tenant's failure to so surrender to Landlord possession of said Land. The provisions of this section shall not apply in the event the Tenant exercises its right to purchase and takes title to the Land as provided in Section 19 hereof. 17. REMEDIES UPON DEFAULT. If default shall be made in payment of the rent or any other sum required to be paid by Tenant under this Lease, and such default shall continue for fifteen (15) days after written notice to Tenant, or if default shall be made in the full and prompt performance of any of the other covenants or conditions which Tenant is required to observe or perform hereunder and such default shall continue for thirty (30) days after written notice demand of any kind (beyond that specified above), Landlord shall have any one or more of the following described remedies in addition to all other rights and remedies provided at law or in equity: (a) Landlord may terminate this Lease and the Term created hereby, in which event Landlord may forthwith repossess the Land and be entitled to recover as liquidated damages and not as a penalty a sum equal to the total amount of the rent which would have been due and payable pursuant to this Lease during the entire remaining Term of this Lease as of the date of termination, plus such other sums as may be due and owing to Landlord pursuant to this Lease. If Tenant shall, within sixty (60) days after the entry of a judgment pursuant to this Section 17(a), fully satisfy the judgment, then Landlord shall convey the Land to Tenant as specified in Section 19 hereof. In the event that the judgment is not fully satisfied within sixty (60) days after its entry, then Landlord shall have the right to pursue all other rights and remedies available to Landlord at law or in equity, and Landlord shall have no further obligation to convey the Land to Tenant. (b) Landlord may terminate Tenant's right of possession and may repossess the Land by forcible entry and detainer suit, or otherwise, without demand or notice of any kind (beyond that specified above) to Tenant and without terminating this Lease, in which event Landlord may, but shall be under no obligation to, relet all or any part of the Land for such rent and upon such terms as shall be satisfactory to Landlord (including the right to relet the Land for a term greater or lesser than the remaining Term of this Lease or to relet the Land as a part of a larger area) for the purpose of such reletting, Landlord may make such repairs, changes, alterations or additions in or to the Land that may be necessary or convenient. If Landlord shall fail or refuse to relet the Land, then Tenant shall pay to Landlord as damages a sum equal to the amount of the rent reserved in this Lease for such period or periods as the Land is not relet. If the Land is relet and after paying all of the costs and expenses of such repairs, changes, alterations and additions and the expense of such reletting and the collection of the rent accruing therefrom, a sufficient sum is not realized from such reletting to satisfy Tenant's obligations hereunder, Tenant shall satisfy and pay any such deficiency upon demand therefore from time to time; and Tenant agrees that Landlord may file suit to recover any sums falling due under the terms of this Section from time to time and that any suit or recovery of any portion due Landlord hereunder shall be no defense to any subsequent action brought for any amount not theretofore reduced to judgment in favor of Landlord. (c) The parties agree that in the event that (i) Tenant elects to not close the purchase of the Land pursuant to Section 19, or (ii) this Lease is terminated due to Tenant's 8 default, Tenant shall have no rights in the Land whatsoever pursuant to this Lease, and Landlord is free to retain or sell and convey the Land as it elects. (d) If default shall be made by the Landlord under this Lease in the prompt performance of any of the covenants or conditions which Landlord is required to observe and perform hereunder and such default shall continue for thirty (30) days after written notice of any kind, Tenant shall have all rights and remedies provided at law or in equity, including, without limitation, the right to specifically enforce Landlord's obligations hereunder including, without limitation, Landlord's obligations to sell the Land to the Tenant under Section 19. No receipt of moneys by Landlord from Tenant, after the termination in any way of this Lease, or after termination of Tenants right of possession, shall reinstate, continue or extend the Term of this Lease. All rights and remedies of Landlord and Tenant hereunder shall be cumulative and none shall exclude any other rights and remedies allowed by law or in equity. 18. NON WAIVER OF DEFAULT. Failure of either party to insist on the strict performance of the terms, agreements and conditions herein contained, or any of them, shall not constitute or be constructed as a waiver or relinquishment of either party's right thereafter to enforce any such term, agreement or condition, but the same shall continue in full force and effect. No waiver of any term, provision, condition or covenant of this Lease by either party shall be deemed to imply or constitute a further waiver by either parry of any other term, provision, condition or covenant of this Lease. 19. TENANT'S RIGHT TO PURCHASE AND TAKE TITLE TO THE LAND. At any time during the Term hereof, Tenant may request in writing that Landlord convey fee simple title to the Land to the Tenant by a recordable Limited Warranty Deed provided that concurrent with such conveyance Tenant shall have paid to Landlord the total sum as the purchase price for the Land in the amount of Four Million Three Hundred Eighty-Three Thousand Two Hundred and Ten Dollars ($4,383,210.00) (the "Purchase Price for the Land") plus all accrued and unpaid rent plus a $5,750.00 reimbursement for costs Landlord incurred for an appraisal of the Land. The monthly installment of rent for the Land due under this Lease shall be prorated as of the closing of the conveyance of title to the Land from the Landlord to the Tenant at the rate of 1/3 0th of the monthly installment for said month per day. Notwithstanding the foregoing, if Tenant provides the Landlord Tenant's written notice that it is purchasing and taking title to the Land pursuant to this Section 19 during the last six (6) months of the Lease, any payments of Monthly Installments of Landlord's Land Costs made pursuant to Section 2 will be credited against and reduce the amount of the Purchase Price for the Land due hereunder. If Buyer elects to acquire the Land as provided for in this Section 19 and fulfills the conditions set forth herein, within ten (10) business days after receipt of such request from Tenant, Landlord agrees to deliver to Tenant a Limited Warranty Deed for the Land in recordable form and to furnish to Tenant an Affidavit of Title in customary form covering the date of closing and subject only to the exceptions to title set forth on Exhibit B attached hereto (the "Permitted Exceptions"). Tenant agrees to promptly record any such Limited Warranty 9 Deed and to thereafter assume full control of the portion of the Land so conveyed. Tenant will be responsible for any transfer tax and recording fee resulting from said conveyance. Tenant will provide Landlord with a copy of the recorded Limited Warranty Deed. At the election of either party, said conveyance will occur in escrow with an escrow agent reasonably acceptable to both parties and the cost of said escrow will be shared equally. Closing fees and charges not otherwise allocated in this Agreement shall be allocated in accordance with the customary practice of Kane County. Upon conveyance of fee simple title to the Land to Tenant, this Lease shall terminate and have no further force and effect. 20. AGREEMENT ON TERMINATION OF LEASE. In addition to the circumstances under which the Lease may terminate pursuant to Section 19, Tenant may request that Landlord agree to terminate the Lease prior to the expiration of the Term. Landlord in its sole and absolute discretion may grant or deny Tenant's request. Landlord's agreement to such request may be predicated upon any terms and conditions that Landlord, at its sole discretion, requires. Tenant agrees that in the event of any such agreement to terminate the Lease pursuant to this Section 20, that in consideration of such agreement then and in that event Tenant will pay to Landlord any Loss, as defined below, incurred by Landlord when Landlord relets or sells the Land and that Tenant shall secure its obligations to pay said Loss to Landlord in a form acceptable to Landlord. For purposes of this Section 20, "Loss" is the difference, if any,between the unpaid amount of Landlord's Costs (as defined in Section 2) and any funds Landlord receives as rent or in consideration for the Land. 21. NOTICES. Notices and demands by either Landlord or Tenant shall be given by certified mail, return receipt requested, with prepaid postage addressed to Landlord at: The Trust for Public Land, 53 West Jackson Street, Suite 815, Chicago, Illinois, 60604, Attention: Jeffrey Greenspan or to Tenant at: City of Elgin, 150 Dexter Court, Elgin, Illinois 60120, Attention: Olufemi Folarin, City Manager, with a copy of any such notice to William A. Cogley, Corporation Counsel, City of Elgin, 150 Dexter Court, Elgin, Illinois 60120, or at such other place and to such other parties as the parties hereto may designate by notice in writing. 22. MISCELLANEOUS. (a) Successors and Assigns. All the agreements, conditions and undertakings herein contained shall extend to and be binding on the successors and assigns of the respective parties hereto as if they were in all cases named, subject, however, to the restrictions as to assignment or subletting by Tenant as provided herein. (b) Entire Agreement. All of the representations and obligations of the parties are contained herein and no modification, waiver or amendment of this Lease or any of its conditions or provisions shall be binding upon the parties unless in writing signed by a duly authorized agent. (c) Severability. Each provision of this Lease is severable from any and all other provisions of this Lease. Should any provision(s) of this Lease be for any reason unenforceable, the balance shall nonetheless be of full force and effect. 10 (d) Headings. The headings used in this Lease are for convenience of reference only and shall not operate or be construed to alter or affect the meaning of any of the provisions hereof. (e) Governing Law. The laws of the State of Illinois shall govern the validity, performance and enforcement of this Lease. (f) Attornment. If the interests of Landlord under this Lease shall be transferred voluntarily or by reason of foreclosure or other proceedings for enforcement of any mortgage on the Land, upon request of the transferee, Tenant shall agree in writing that no action taken by such holder to enforce said mortgage shall terminate this Lease or invalidate or constitute a breach of any of the provisions hereof and Tenant will attorn to such mortgagee, or to any purchaser of the Land, at any foreclosure sale or sale in lieu of foreclosure or voluntary sale, for the balance of the Term of this Lease and on all other terms and conditions herein set forth. In the event of such transfer of Landlord's interest, Landlord shall be automatically, without the execution of any further instruments, released and relieved from all liability and responsibility to Tenant under this Lease or otherwise from and after said transfer, but shall not be released from responsibility for liabilities and responsibilities accrued prior thereto, and Landlord's successor hereunder shall become liable and responsible to Tenant in respect to all obligations of the Landlord under this Lease accruing from and after the date of such transfer. (g) Estoppel Certificate. Tenant agrees that from time to time, upon not less than ten (10) days prior request by Landlord, Tenant will deliver to Landlord a statement in writing certifying (a) that this Lease is unmodified and in full force and effect (or, if there have been modifications, that the Lease as modified is in full force and effect and stating the modifications); (b) the dates to which the rent and other charges have been paid; (c) to the best of Tenant's knowledge, that Landlord is not in default under any provisions of this Lease, or, if in default, the nature thereof in detail; (d) whether or not Tenant is in occupancy of the Land, and (e) such other information pertaining to this Land and Tenant as Landlord may reasonably request. Failure by Tenant to so reply within said ten (10) days shall be deemed confirmation by the Tenant that all parties are in good standing under the Lease. (h) No Broker. Each party represents to the other that it has not used a real estate broker in connection with this Lease or the transaction contemplated by this Lease. In the event any person asserts a claim for a broker's commission or finder's fee against one of the parties to this Lease, the party on account of whose actions the claim is asserted will indemnify and hold the other party harmless from and against said claim and such indemnification obligation shall survive the expiration of the Lease and the closing of any sale of all or a portion of the Land. (i) Exculpation. Landlord's liability hereunder or any other documents executed in connection herewith, in the event of any uncured default by Landlord, shall be limited to Landllord's interest in the Land, it being understood that none of Landlord's other assets shall be subject to any judgment against Landlord hereunder. 11 23. CONDITIONS PRECEDENT TO PERFORM UNDER THIS LEASE. The parties hereto acknowledge that Landlord does not presently own the Land and that duties of the parties hereunder and the rights of the parties hereunder are both expressly contingent upon the closing of the Landlord's acquisition of a fee simple ownership in the Land from the current fee owner. Landlord shall provide Tenant written notice of Landlord's acquisition of fee simple ownership in the Land within one (1) business day of Landlord's acquisition of such fee simple ownership. In the event Landlord does not close and acquire fee simple ownership in the Land on or before August 31, 2005 Tenant upon written notice to the Landlord may declare this Lease null and void with no further obligations of the parties hereunder. 24. ILLINOIS CASH FARM LEASES. Tenant understands and agrees that it will be leasing the Land, and should it elect to purchase the Land, taking the Land subject to two Illinois Cash Farm Leases through February 28, 2006 (individually the "Farm Lease" and together the "Farm Leases") with Sherri DeRaedt (the "Farm Tenant"). Landlord shall provide to the Tenant as of the Commencement Date estoppel certificates from the Farm Tenant with respect to the Farm Leases. Such estoppel certificates shall provide in part (1) that the expiration of the term of the Farm Leases is February 28, 2006 and that the term of such Farm Leases have not been extended past such date; (2) that other than modifying the Farm Leases so that they only affect the Land,the Farm Leases are unmodified and in full force; and (3)that the current owners of the Land are not in default under the Farm Leases. Landlord further represents to the Tenant that as part of Landlord's acquisition of title to the Land that the prior owners of the Land have retained the rights to receive the rent and payments due under the Farm Leases through February 28, 2006. Tenant agrees that its rights hereunder are subject to the Farm Leases. Tenant further understands and agrees that it has no right to any payments made by the Farm Tenant under the Farm Leases. Landlord will execute an Assignment of Leases, effective as of the Commencement Date, assigning all of its interest in the Leases to Tenant. The Assignment of Leases shall provide that: (i) Tenant has all rights and agrees to assume and perform all of the obligations under the Leases (except for the right to rent) and that Landlord will be relieved and released of and from all of the rights and obligations under the Leases, (ii) Tenant will indemnify and hold Landlord, its officers, directors, principals and employees, as the case may be, harmless from and against any and all liability, loss, cost, claim, action, suit and/or expense (including, but not limited to, attorney's fees and litigation expenses) which Landlord may suffer or incur by reason of the Leases and (iii) Tenant will not amend or extend the term of any Lease that affects the Land prior to acquiring fee interest in the Land pursuant to Section 19. Landlord also agrees that Landlord will not enter into, amend or extend the term of any other lease including, without limitation, the Farm Leases, that effects the Land during the term of this Lease. IN WITNESS of the foregoing provisions, the parties have executed and delivered this Lease as of the date set forth below. The effective date (the "Effective Date") of this Lease shall be the last date of execution by either of the parties to this Lease. If a party returns this Lease by facsimile machine, the signing party intends the copy of its authorized signature printed by the receiving facsimile machine to be its original signature. [Signatures follow on the next page.] 12 TENANT: LANDLORD: CITY OF ELGIN, an Illinois municipal THE TRUST FOR PUBLIC LAND, a corporation nonprofit California public benefit corporation authorized to do business in By: � Illinois as TPL-Illinois Name: cr-d L By: Title: Mayor Name: Date: - S'- oS Title: ' giukQ%o ekf4U_ b(Qj_& Date: _ 2 -O SP Attest: City Clerk D eAL.�i_ � C-% C.le.r(L Approved as to +Legal Form: FALegal Dept\AgreementTease-Trust for Public Land-5-Final.doc 13 EXHIBIT A Legal Description Real property in Kane County, Illinois legally described as follows: THE NORTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 10, TOWNSHIP 41 NORTH, RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN THE TOWNSHIP OF PLATO, KANE COUNTY, ILLINOIS; AND THAT PART OF THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER, LYING NORTHERLY OF THE CENTERLINE OF PLANK ROAD, SECTION 11, TOWNSHIP 41 NORTH, RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN THE TOWNSHIP OF PLATO, KANE COUNTY, ILLINOIS; AND THE WEST HALF OF THE NORTHWEST QUARTER OF SECTION 11, TOWNSHIP 41 NORTH, RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN THE TOWNSHIP OF PLATO, KANE COUNTY, ILLINOIS; AND THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER, AND THE EAST ONE- HALF OF THE SOUTHEAST QUARTER LYING NORTHERLY OF THE CENTER LINE OF THE ROAD, ALL IN SECTION 10, TOWNSHIP 41 NORTH, RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN THE TOWNSHIP OF PLATO, KANE COUNTY, ILLINOIS, EXCEPT FOR THAT PART OF THE SOUTHEAST QUARTER OF SECTION 10, TOWNSHIP 41 NORTH, RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: COMMENCING AT THE POINT OF INTERSECTION OF THE CENTER LINES OF PLANK AND MUIRHEAD ROADS (AS SHOWN LOCATED ON A PLAT RECORDED JULY 20, 1988 AS DOCUMENT NO. 1921746); THENCE EASTERLY ALONG THE CENTER LINE OF SAID PLANK ROAD 275.00 FEET FOR THE POINT OF BEGINNING; THENCE CONTINUING EASTERLY ALONG SAID CENTER LINE 605.00 FEET TO A POINT; THENCE NORTHERLY AT RIGHT ANGLES TO THE LAST DESCRIBED COURSE 360.00 FEET TO A POINT; THENCE WESTERLY AT RIGHT, ANGLES TO THE LAST DESCRIBED COURSE 605.00 FEET TO A POINT; THENCE SOUTHERLY AT RIGHT ANGLES TO THE LAST DESCRIBE COURSE 360.00 FEET TO THE POINT OF BEGINNING. ALL IN PLATO TOWNSHIP, KANE COUNTY, ILLINOIS. 14 EXHIBIT B Permitted Exceptions 1. General real estate taxes which are a lien, but not yet due or payable. 2. Levied and pending special assessments, including without limitation any drainage assessments levied by the Plato and Ruhland Drainage District, 3. Easements or rights of way obtained through eminent domain subsequent to the Commencement Date. 4. Any federal, state or local laws, ordinances, regulations and/or orders whatsoever; 5. Printed form or standard exceptions that require a survey to be deleted set forth on an owner's policy of title insurance unless Tenant should elect to obtain one at its cost. 6. Rights of the public, the State of Illinois and municipality in and to that part of the Land, if any,taken or used for road purposes. 7. Rights of way for drainage tiles, ditches, feeders, laterals and unrecorded pipes, if any. 8. Grant made by William Dittman and Mary Dittman, his wife, to the Illinois Bell Telephone Company recorded December 17, 1959 as Document 908704. 9. Rights of owners of land bordering on the North Plato Ditch and Pingree Creek as shown on survey of V3 Consultants dated 4/27/05 No. 04008TPL in respect to the water and use of the surface of said bodies of water. 10. Poles and overhead wires along Plank Road shown on survey of V3 Consultants dated April 27, 2005 No. 04008TPL. 11. Farm Leases. 12. Acts done or suffered by the Tenant, or anyone claiming, by,through or under Tenant. 15 C It Of E I n Agenda Item No Y 9 May 20, 2005 TO: Mayor and Members of the City Council WEGREATIONAL LEISURE AND GULTLIRAL OPPORTUNITIES FOR AIL CITIZ6N5 FROM: Olufemi Folarin, City Manager Randy Reopelle, Parks and Rec eation Director SUBJECT: Purchase Agreement with the Trust for Public Lands for a 224 Acre Parcel for a New Regional Park. PURPOSE The purpose of this memorandum is to provide the Mayor and members of the City Council with information to approve entering into a lease-purchase agreement with the Trust for Public Lands for the purchase of a 224 acre parcel for a new regional park. RECOMMENDATION It is recommended that the City Council approve entering into a lease-purchase agreement with the Trust for Public Lands for the purchase of a regional park site at a cost of$4,383,210. BACKGROUND The City of Elgin's Parks and Recreation Master Plan has as one of its highest priorities the acquisition of a large parcel of land to create a regional park. City staff has been working on this goal for over a year and, by combining efforts with the Trust for Public Land, is now in a position to acquire a 224 acre parcel in the western part of Elgin. The total cost of the land will be$4,383,210. By purchasing the land from the Trust for Public Land, the City will be in a position to apply for an Open Space Land Acquisition and Development (OSLAD) grant through the Illinois Department of Natural Resources (IDNR). Under this grant the City could receive up to $750,000 from the IDNR, which would be reimbursed to the City after the actual purchase is made. In addition, the City is also in discussions with the Kane County Forest Preserve regarding their purchase of 97.5 acres of the parcel, valued at $1,901,250. Given the Kane County Forest Preserves participation and receipt of the OSLAD grant it is estimated that the final cost of acquiring the regional park parcel will be $1,742,710. A copy of the lease-purchase agreement,which has been reviewed by the Legal Department, is attached. Purchase Agreement for Regional Park May 20,2005 Page 2 COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED None. NANCIAL IMPACT The total cost of the land would equal $4,383,210. There is currently $1,000,000 budgeted and available in the Riverboat Fund, account number 275-0000-791.92-37, Park Development and Acquisition, project number 509657 to fund this project. The following funding sources would be used to fund the remainder of the project. Project Number Project Description Amount 509619 Summerhill Park $200,000 154717 Channing Park 325,000 509501 Hawthorne Hills Park-Grant Reimb. 400,000 $925,000 In addition, Kane County Forest Preserve District has pledged $1,901,250, Park Development impact fees totaling $600,000 and the IDNR grant of $750,000 would be used to fund the project. The City would be required to upfront the entire park acquisition cost and be reimbursed after the fact by the County and IDNR. Although very preliminary at this point, it is estimated that operational costs for both the passive and active areas of the park would total approximately $1.5 million and be offset by program revenues of approximately$710,000. EGALIMPACT None. ALTERNATIVES 1. Approve the lease-purchase agreement with the Trust for Public Lands. 2. Do not approve the lease-purchase agreement with the Trust for Public Lands. Respectfully submitted for Council consideration. RR Attachment Purchase Agreement for Regional Park May 20, 2005 Page 3 5/17/02 LEASE-PURCHASE AGREEMENT This Lease-Purchase Agreement (the "Lease") is made as of the Effective Date as provided below by and between THE TRUST FOR PUBLIC LAND, a nonprofit California public benefit corporation authorized to do business in Illinois as TPL-Illinois (the "Landlord") and CITY OF ELGIN, an Illinois municipal corporation(the "Tenant"). WITNESSETH: 1. LEASE TERM. Landlord, for and in consideration of the agreements of Tenant herein contained, hereby leases to Tenant, and Tenant hereby leases from Landlord, certain real estate legally described on Exhibit A attached hereto and made a part hereof together with timber, water and/or minerals located thereon and any and all rights appurtenant thereto (the "Land") for a term beginning on the date on which Landlord obtains title to said Land (the "Commencement Date") and terminating on the first anniversary of the Commencement Date at 11:59 p.m. (the "Term"). 2. RENT. For the first six months of the Term, Tenant shall pay as base rent for the Land the monthly sum of Eighteen Thousand Two Hundred Sixty-Three Dollars Thirty-Seven Cents ($18,263.37) (the "Initial Monthly Rent"). Tenant understands that the monthly Initial Monthly Rent of$18,263.37 is based upon 1/12`h of interest on the sum of$4,383,210.00 at the rate of 5% per annum (the "Interest Rate"). Notwithstanding anything herein to the contrary, if the cost of borrowing by the Central Region of Landlord to fund the purchase of the Land increases, the Interest Rate will increase and the remaining installments of Initial Monthly Rent will be adjusted accordingly; provided, however, for the purposes of this Lease and the calculation of the monthly installments of base rent for the Land due hereunder, in no event will the Interest Rate exceed 5.5 percent per annum and in no event shall the monthly installment of Initial Monthly Rent exceed Twenty Thousand Eighty-Nine Dollars Seventy-One Cents ($20,089.71). For the period beginning six (6) months prior to the end of the Term of the Lease herein, Tenant will pay to Landlord as base rent for the Land a monthly installment equal to the sum of: one-sixth of the then unpaid amount of Landlord's Land Costs which is in the total amount of Four Million Three Hundred Eighty-Three Thousand Two Hundred and Ten Dollars ($4,383,210.00) (the "Land Cost") plus an amount equal to 1/12`h of the accrued interest on the balance of the unpaid amount of Landlord's Land Costs based on the Interest Rate then in affect (the "Final Monthly Rent"). Landlord shall give Tenant thirty (30) days' advance written notice of any change in the Interest Rate and any resulting increase in the monthly rent due hereunder. All rent shall be payable without any demand therefore and without any deductions or set-offs whatsoever. All amounts due and payable from Tenant under this Lease shall be considered as rent. In the event any rent or other sum due and owing by Tenant to Landlord is not paid within five (5) days when due, such amount shall bear interest, computed from the first day on which such payment was due, at the rate of 9 percent per annum. The monthly installments of base rent for the Land due hereunder will commence on the Commencement Date and on the same day of each calendar month thereafter during the Term. Rent will be paid at the offices of Landlord Purchase Agreement for Regional Park May 20,2005 Page 4 located at 53 West Jackson, Suite 815, Chicago, Illinois 60604 or at such other place or to such other person as Landlord may from time-to-time direct. 3. PERMITTED USES. Tenant shall use and occupy the Land as an open space area in connection with its park system and shall be permitted to use the Land for public park purposes. Tenant shall not use the Land for any other object or purpose whatsoever without Landlord's prior written consent. 4. CONDITION OF LAND Tenant has examined and knows the condition of the Land, and agrees that no representations as to the condition, suitability, or repair thereto and the improvements thereon, if any, have been made by the Landlord or its agents prior to, or at the execution of this Lease. Tenant hereby accepts the Land, in its current "AS IS, WHERE IS" condition. Notwithstanding any applicable law or custom to the contrary, all risk of loss with respect to the Land between the Effective Date and Commencement Date shall be borne by Tenant. Tenant covenants that it shall not take any governmental action or undertake to secure any governmental action affecting the Land from the Effective Date through the Commencement Date, during the term of this Lease or any time thereafter prior to Landlord's conveyance of the title to the Land to Tenant, or prior to Landlord's sale of the Land to a third party which shall adversely effect the appraised fair market value of the Land and/or adversely effect Landlord's ability to sell the Land to a third party. 5. SERVICES AND TAXES. Landlord shall not be obligated to provide any services to Tenant or to the Land during the Term. Tenant shall pay all charges for labor, water, and any other services or materials furnished or supplied to all or any part of the Land, and shall timely pay any and all taxes and assessments, ordinary and extraordinary, general and specific, which may be levied or assessed on the Land and be due and owing during the Term. Tenant shall have the right, at its sole cost and expense to apply for a tax exemption or, to contest by appropriate legal proceedings, without cost or expense to Landlord, the amount or validity of any such taxes and assessments or seek an exemption,from such taxes and assessments for the Land. Tenant, however, shall not be relieved of its obligation to pay such taxes and assessments as required by this Section 5 unless the Land is allowed a tax exemption or the proceedings shall operate to prevent the collection of such imposition and the sale of the Land, or any part thereof, to satisfy the same. Landlord agrees that it will cooperate with Tenant in any proceeding referred to in this Section 5 and that any such proceedings may, with prior notice to Landlord, be brought by Tenant in the name of Landlord but Landlord shall not be subjected to any liability for the payment of any costs and expenses in connection therewith. Notwithstanding the foregoing, if Tenant has failed to timely pay all charges for labor, services,materials, taxes and assessments as provided in this Section 5, Landlord shall have the right at its sole option to do so and all costs incurred by Landlord in doing the same shall be deemed additional rent, and are due and payable by Tenant on demand and shall be collectable as additional rent in the same manner and with the same remedies as if it had been originally reserved. Landlord's election hereunder will not limit any remedies available to Landlord under Section 17. Purchase Agreement for Regional Park May 20,2005 Page 5 6. MAINTENANCE AND REPAIR, CONSTRUCTION OF IMPROVEMENTS. (a) Tenant, shall at Tenant's sole cost and expense, maintain the Land and all of Tenant's improvements permitted on the Land hereunder in good condition and repair during the Term, and specifically agrees to maintain all ponds, trees, grasses, flowers, shrubs, and other vegetation and flora and fauna on the Land in a state consistent with the terms of this Lease. Tenant agrees that during the Term, Tenant will keep the Land free from all litter, trash, refuse, and discarded materials during the Term. During the Term, Landlord shall have no obligation to maintain, repair or replace any components or any improvements on the Land. Notwithstanding the foregoing, if in Landlord's reasonable judgment Tenant has failed to promptly or completely maintain the Land as provided for hereunder and Landlord has provided Tenant written notice of same and Tenant has not diligently pursued addressing the matters set forth in Landlord's notice, Landlord shall have the right at its sole option to do so and all costs incurred by Landlord in doing the same shall be deemed additional rent, and are due and payable by Tenant on demand and shall be collectable as additional rent in the same manner and with the same remedies as if it had been originally reserved. Landlord's election hereunder will not limit any remedies available to Landlord under Section 17. (b) Tenant shall not make any contract for the construction, demolition, repair, or improvement on, in, of, or to the Land, or any part thereof, or for any work to be done or materials to be furnished on or to the Land, or any part thereof without first obtaining the prior written consent of Landlord, which. consent will not be unreasonably withheld, delayed or denied, and shall, among other considerations, be predicated upon Tenant's use of contractors who are acceptable to Landlord and who provide a full payment, completion and performance bond naming Landlord as an insured or beneficiary party. In the event Landlord consents to any such work, Tenant agrees to commence and to complete such work promptly, lien free and in a first-class condition and in conformity with all applicable government rules, codes, laws, regulations and requirements, as modified or amended from time to time during the Term. Prior to commencing any work in or about the Land (except for routine maintenance or work not requiring a permit or approval), Tenant shall secure any necessary permits and approvals for such work and shall provide Landlord with certificates of insurance in forms and amounts satisfactory to Landlord naming Landlord, and Landlord's officers, directors, agents and employees, as additional insured parties. In the event Tenant defaults and fails to make such changes and additions to the improvements so as to comply with applicable government rules, codes, laws, regulations and requirements, Landlord, at its option may, but shall not be required to, make the required changes and additions. All costs incurred by Landlord to provide such changes or additions are hereby deemed additional rent, and are due and payable by Tenant on demand and shall be collectable as additional rent in the same manner and with the same remedies as if it had been originally reserved. Tenant shall provide to Landlord copies of as- built plans on completion. All additions, fixtures, or new building, except only furniture and fixtures which shall be readily removable without injury to the Land, shall be and remain a part Purchase Agreement for Regional Park May 20,2005 Page 6 of the Land at the expiration or other permitted termination of this Lease. Tenant's obligation hereunder constitutes a recognition of the necessity to ensure that the Land remains marketable. (c) Nothing contained in this Lease shall authorize Tenant to do any act which shall in any way encumber the Landlord's interest in the Land, nor in any way subject such title or interest to any claims by way of lien or encumbrance. In addition to the contracts specified in subparagraph (b), Tenant shall not enter into any new leases, licenses, options, permits or other contracts of any kind whatsoever, written or oral, affecting the Land, without Landlord's prior written consent. Notwithstanding the foregoing or anything to the contrary in this Lease, Tenant may enter into a contract with the Kane County Forest Preserve District to sell a portion of the Land to become effective on the date which Tenant obtains title to the Land. Any claim to a lien upon the Land arising from any act or omission of Tenant shall attach only against Tenant's interest and shall in all respects be subordinate to the Landlord's interest in the Land and Tenant shall provide written notice of this to each party prior to commencement of any service by said party. If Tenant has not removed any lien or encumbrance within thirty (30) days after written notice to Tenant by Landlord, Landlord may pay the amount necessary to remove such lien or encumbrance, without being responsible for making any investigation as to the validity thereof, and the amount so paid shall be deemed additional rent and is due and payable by Tenant on demand and shall be collectable as additional rent in the same manner and with the same remedies as if it had been originally reserved. 7. GOVERNMENT REQUIREMENTS. Tenant agrees to observe and comply with all applicable ordinances, rules, regulations and laws respecting the Land or the use thereof now in effect or which may be enacted during the continuance of this Lease by any municipal, county, state or federal authorities, and Tenant specifically agrees to protect, defend, indemnify and hold harmless Landlord, its officers, directors, agents, employees and Ienders from and against any damage, liability and expense of whatever nature caused by any violation thereof. The terms of this indemnity shall survive the closing of any sale of all or a portion of the Land and the expiration of this Lease. 8. INSURANCE. Tenant shall, at its sole cost and expense, procure and maintain during the Term hereof, comprehensive public liability insurance and property damage insurance, including but not limited to contractual liability insurance, with limits of not less than $1,000,000.00, per occurrence and, $5,000,000.00 in the aggregate, which insurance shall name the Landlord and its officers, directors, agents, employees and lenders as additional insured parties. Such insurance shall protect, defend and indemnify the insured parties from and against any and all claims (including all costs and expenses of defending against same) for bodily injury, sickness, death, or disease and for damage or injury to or destruction of ownership, maintenance or use of the Land, and any activity thereon. Notwithstanding the foregoing or anything to the contrary in this Lease, insurance provided through the Tenant's self-insurance program shall be sufficient insurance coverage for the purposes of the insurance described in this section. Certificates and endorsements evidencing such coverage shall be delivered to Landlord prior to the commencement of the Term and thereafter not less than thirty (30) days' prior to the Purchase Agreement for Regional Park May 20,2005 Page 7 expiration date of any such policy. No policy shall be cancelled, amended or modified except after thirty(30)days' written notice to Landlord. 9. LOSS,DAMAGE, INDEMNIFICATION. (a) The Tenant shall be solely liable for any damage to Tenant's person, property or business or the person, property or business of any person or entity claiming through Tenant, resulting from or related to: (i) the Land, or any part thereof or any appurtenances thereof, needing repair; (ii) the happening of any accident in or about the Land; (iii) the action or negligence of any invitee or occupant of the Land or any other person; or (iv) theft, vandalism, malicious mischief, unlawful entry or any other cause or reason. The Tenant assumes all risk of loss of or damage to the Land from any cause whatsoever, and no such loss of or damage to the Land, nor defect therein shall relieve the Tenant of the obligations to pay Rent or to perform any other obligation under this Lease. Without limiting the foregoing, Landlord shall not be responsible for any damage caused by fire, explosion, smoke, water, snow, frost, steam, sewerage, sewer gas or odors, illuminating gas, or by the bursting or leaking of pipes. In the event of damage to the Land, Tenant will immediately place the same or cause the same to be placed in as good repair and condition as existed at the time of damage and, when received, shall apply the proceeds of any insurance recovery to the costs incurred in making such repairs or cause the same to be so applied. Any insurance proceeds paid to the Landlord or the Tenant, as a result of the destruction of, or damage beyond repair to, all or any part of the Land shall belong to the parties as their interest may appear under the terms of this Lease. (b) All personal property on, placed or moved into or on the Land shall be at the risk of Tenant or the owner thereof, and the Landlord shall not be liable to Tenant for any damage to said personal property. (c) Except to the extent expressly prohibited by law, Tenant agrees to defend, indemnify and hold harmless Landlord and its officers, directors, agents, employees, lenders, successors and assigns from and against any and all losses, claims, liabilities, damages, demands, fines, costs and expenses (including reasonable legal expenses) of whatever kind and nature resulting from: (i) any injury to or death of any person or damage to property in or upon the Land or arising out of or connected with the use, non-use, condition or occupancy of the Land or any part thereof which occurs during the Term of this Lease except when such injury, loss or damage results from the negligence or willful misconduct of Landlord, its agents or employees; (ii) any acts, omissions, neglect or fault of Tenant, its agents, servants, contractors, employees, licensees, visitors, customers,patrons, invitees or permitted sublessees; (iii) Tenant's failure to comply with any laws, statutes, ordinances, codes or regulations as herein provided; except when such injury, loss or damage results from the negligence or willful misconduct of Landlord, its agents or employees, (iv) any and all Environmental Damages (as hereinafter defined) which arise from the presence upon, about or beneath the Land of any Hazardous Materials (as hereinafter defined) which occurs during the Term of this Lease except when such injury, loss or damage results from the negligence or willful misconduct of Landlord, its agents or employees, or (v) Tenant's failure to comply with the obligations hereunder. The terms of this indemnity shall survive the closing of any sale of all or a portion of the Land and the expiration of this Lease. Purchase Agreement for Regional Park May 20,2005 Page 8 (d) Tenant hereby knowingly and intentionally waives the defense of sovereign immunity as a limitation on its liability to Landlord under this Section 9 in any action brought by Landlord against Tenant or in any action in which Landlord is a named defendant, provided Landlord gives reasonable notice of such action to Tenant. "Hazardous Materials" for purposes of this Lease shall mean any substance, material, chemical, water, soil or waste which is or may in the future be listed, identified, classified, characterized, described, defined, or referred to as hazardous, toxic, contaminative, infectious, ignitable, explosive or radioactive by or under any federal, state, or local statute, law, ordinance, code, rule, regulation, order, permit, requirement or decree or similar requirement of each and every federal, state and local governmental agency or other governmental authority pertaining to the protection of human health and safety or the environment (collectively known, for this section of the Lease, as "Law" or "Laws"), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq.; the Federal Resource Conservation and Recovery Act (42 U.S. C. Section 6901 et seq.); the Emergency Planning and Community Right-to-Know Act, 2 U.S.C. Section 11001 et seq.; the Solid Waste Disposal Act, 42 U.S.C. Section 6901 et seq.; the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et seq.; and all other Laws pertaining to hazardous substances, hazardous materials and pollutants, air resources and air pollution, and water quality and water pollution. "Hazardous Materials" shall also include any material, the presence of which requires investigation or remediation under any Law or which is or becomes defined as a "hazardous waste" or "hazardous substance" under any Law and any hazardous substance,material or waste which causes a nuisance upon or waste to the Land. "Hazardous Materials" specifically include, without limitation, (1) petroleum and petroleum constituents, including crude oil or any fraction thereof(2) asbestos, (3) any pesticide regulated under state or federal law and (4)polychlorinated biphenyls. "Environmental Damages" shall mean, with respect to the presence upon, about or beneath the Land of any Hazardous Materials caused by the Tenant: (i) all claims, judgments, damages, penalties, fines, costs, liabilities and losses (including, without limitation, diminution in the value of the Land, damages for the loss of or restriction on use of the Land or of any amenity of the Land); (ii) all sums paid for settlement of claims, attorney's fees, consultant's fees and expert's fees; and (iii) all costs incurred by Landlord in connection with investigation of Hazardous Materials upon, about or beneath the Land, the preparation of any feasibility studies or reports and the performance of any cleanup,remedial,removal or restoration work required by any federal, state or local governmental agency or political subdivision necessary for Landlord to make full economic use of the Land, or otherwise required under this Lease. 10. ENVIRONMENTAL COVENANTS AND WAIVER. Tenant agrees that Tenant shall not cause, permit, or suffer any Hazardous Materials to be released, discharged, Purchase Agreement for Regional Park May 20,2005 Page 9 handled, processed, disposed of, stored, produced or used upon, about or beneath the Land by Tenant, or by its agents, employees, contractors or invitees. Tenant hereby intentionally and knowingly waives all claims against Landlord for damages, site remediation and response costs, and all other costs and expenses arising out of the discovery of and/or remediation of any Hazardous Materials. Tenant hereby covenants not to bring any action against Landlord seeking any remedy due to the discovery and/or remediation of Hazardous Materials on the Land. The terms of this Section shall survive the closing of any sale of all or a portion of the Land and the expiration of,this Lease. 11. CONDEMNATION. If the whole or any part of the Land shall be taken or condemned by any competent authority, other than Tenant, for any public or quasi-public use or purpose, the Term, at the option of Landlord, shall end upon the date when the possession of the part so taken shall be requested for such use or purpose and Landlord shall be entitled to receive the entire award without any payment to Tenant provided that, if Tenant shall have served notice to Landlord of its intent to exercise its option to purchase Landlord's fee simple ownership interest in the Land hereof, Landlord shall hold such award in trust for the benefit of Tenant. Current monthly base rent for the Land, shall be apportioned as of the date of such termination. 12. ASSIGNMENT AND SUBLETTING. Tenant shall not, without the prior written consent of the Landlord, which consent may be granted or withheld in Landlord's sole discretion: (i) assign, convey, mortgage or transfer this Lease, or any rights or interest hereunder; (ii) sublet the Land or any portion thereof, or (iii) permit any assignment of this Lease, or any part hereof,by operation of law or otherwise. 13. QUIET ENJOYMENT. Provided Tenant is not in default in the performance of Tenant's obligations under this Lease, Landlord warrants, covenants and agrees that Tenant will have peaceful and quite enjoyment of the Land, subject to the terms and conditions of this Lease. 14. RIGHT OF ENTRY. Tenant agrees to permit Landlord and its agents to enter on the Land or any part thereof, at all reasonable times, for the purpose of examining the same, or for making repairs or alterations or performing maintenance as Landlord may deem necessary for the safety or preservation thereof, or for curing any default of Tenant under this Lease. 15. SIGNAGE. The Tenant agrees that after obtaining title to the Land from the Landlord that as part of signage Tenant may subsequently install on the Land to include therein an acknowledgement of Landlord's contribution to the preservation of the Land. The nature and extent of any such signage, including without limitation, all aspects of the location, design and construction of all signage on the Land and the extent of the acknowledgement of Landlord's contribution, shall be in the sole and absolute discretion of the Tenant. Tenant agrees to provide the Landlord the opportunity to review and comment on any proposed signage which includes the acknowledgement of Landlord's contribution to the preservation of the Land. 16. SURRENDER OF THE LAND AND HOLDING OVER. Tenant agrees that at the expiration of this Lease it shall give peaceable possession of the Land to Landlord, in at Purchase Agreement for Regional Park May 20, 2005 Page 10 least as good condition as it is as of the Commencement Date, ordinary wear and tear and approved alterations excepted, provided that Tenant has not exercised its option to purchase Landlord's interest in the Land pursuant to this Lease. Tenant agrees that if Tenant does not surrender said Land to Landlord upon the termination of this Lease then Tenant will pay to Landlord, to the extent permitted by law, double the amount of the rent for the last month of the Term for each month or portion thereof that Tenant holds over plus all damages that Landlord may suffer on account of Tenant's failure to so surrender to Landlord possession of said Land. The provisions of this section shall not apply in the event the Tenant exercises its right to purchase and takes title to the Land as provided in Section 19 hereof. 17. REMEDIES UPON DEFAULT. If default shall be made in payment of the rent or any other sum required to be paid by Tenant under this Lease, and such default shall continue for fifteen (15) days after written notice to Tenant, or if default shall be made in the full and prompt performance of any of the other covenants or conditions which Tenant is required to observe or perform hereunder and such default shall continue for thirty (30) days after written notice demand of any kind (beyond that specified above), Landlord shall have any one or more of the following described remedies in addition to all other rights and remedies provided at law or in equity: (a) Landlord may terminate this Lease and the Term created hereby, in which /^ event Landlord may forthwith repossess the Land and be entitled to recover as liquidated [ damages and not as a penalty a sum equal to the total amount of the rent which would have been due and payable pursuant to this Lease during the entire remaining Term of this Lease as of the date of termination, plus such other sums as may be due and owing to Landlord pursuant to this Lease. If Tenant shall, within sixty (60) days after the entry of a judgment pursuant to this Section 17(a), fully satisfy the judgment, then Landlord shall convey the Land to Tenant as specified in Section 19 hereof. In the event that the judgment is not fully satisfied within sixty (60) days after its entry, then Landlord shall have the right to pursue all other rights and remedies available to Landlord at law or in equity, and Landlord shall have no further obligation to convey the Land to Tenant. (b) Landlord may terminate Tenant's right of possession and may repossess the Land by forcible entry and detainer suit, or otherwise, without demand or notice of any kind (beyond that specified above) to Tenant and without terminating this Lease, in which event Landlord may, but shall be under no obligation to, relet all or any part of the Land for such rent and upon such terms as shall be satisfactory to Landlord (including the right to relet the Land for a term greater or lesser than the remaining Term of this Lease or to relet the Land as a part of a larger area) for the purpose of such reletting, Landlord may make such repairs, changes, alterations or additions in or to the Land that may be necessary or convenient. If Landlord shall fail or refuse to relet the Land, then Tenant shall pay to Landlord as damages a sum equal to the amount of the rent reserved in this Lease for such period or periods as the Land is not relet. If the Land is relet and after paying all of the costs and expenses of such repairs, changes, alterations and additions and the expense of such reletting and the collection of the rent accruing therefrom, a sufficient sum is not realized from such reletting to satisfy Tenant's obligations hereunder, Tenant shall satisfy and pay any such deficiency upon demand therefore from time to time; and Purchase Agreement for Regional Park May 20, 2005 Page 11 Tenant agrees that Landlord may file suit to recover any sums falling due under the terms of this Section from time to time and that any suit or recovery of any portion due Landlord hereunder shall be no defense to any subsequent action brought for any amount not theretofore reduced to judgment in favor of Landlord. (c) The parties agree that in the event that (i) Tenant elects to not close the purchase of the Land pursuant to Section 19, or (ii) this Lease is terminated due to Tenant's default, Tenant shall have no rights in the Land whatsoever pursuant to this Lease, and Landlord is free to retain or sell and convey the Land as it elects. (d) If default shall be made by the Landlord under this Lease in the prompt performance of any of the covenants or conditions which Landlord is required to observe and perform hereunder and such default shall continue for thirty (30) days after written notice of any kind, Tenant shall have all rights and remedies provided at law or in equity, including, without limitation, the right to specifically enforce Landlord's obligations hereunder including, without limitation, Landlord's obligations to sell the Land to the Tenant under Section 19. No receipt of moneys by Landlord from Tenant, after the termination in any way of this Lease, or after termination of Tenants right of possession, shall reinstate, continue or extend the Term of this Lease. All rights and remedies of Landlord and Tenant hereunder shall be cumulative and none shall exclude any other rights and remedies allowed by law or in equity. 18. NON WAIVER OF DEFAULT. Failure of either party to insist on the strict performance of the terms, agreements and conditions herein contained, or any of them, shall not constitute or be constructed as a waiver or relinquishment of either party's right thereafter to enforce any such term, agreement or condition, but the same shall continue in full force and effect. No waiver of any term, provision, condition or covenant of this Lease by either party shall be deemed to imply or constitute a further waiver by either party of any other term, provision,condition or covenant of this Lease. 19. TENANT'S RIGHT TO PURCHASE AND TAKE TITLE TO THE LAND. At any time during the Term hereof, Tenant may request in writing that Landlord convey fee simple title to the Land to the Tenant by a recordable Limited Warranty Deed provided that concurrent with such conveyance Tenant shall have paid to Landlord the total sum as the purchase price for the Land in the amount of Four Million Three Hundred Eighty-Three Thousand Two Hundred and Ten Dollars ($4,383,210.00) (the "Purchase Price for the Land") plus all accrued and unpaid rent plus a $5,750.00 reimbursement for costs Landlord incurred for an appraisal of the Land. The monthly installment of rent for the Land due under this Lease shall be prorated as of the closing of the conveyance of title to the Land from the Landlord to the Tenant at the rate of 1/3 01h of the monthly installment for said month per day. Notwithstanding the foregoing, if Tenant provides the Landlord Tenant's written notice that it is purchasing and taking title to the Land pursuant to this Section 19 during the last six (6) months of the Lease, Purchase Agreement for Regional Park May 20,2005 Page 12 any Land Cost payments made pursuant to Section 2 will be credited against and reduce the amount of the Purchase Price for the Land due hereunder. If Buyer elects to acquire the Land as provided for in this Section 19 and fulfills the conditions set forth herein, within ten (10) business days after receipt of such request from Tenant, Landlord agrees to deliver to Tenant a Limited Warranty Deed for the Land in recordable form and to furnish to Tenant an Affidavit of Title in customary form covering the date of closing and subject only to the exceptions to title set forth on Exhibit B attached hereto (the "Permitted Exceptions"). Tenant agrees to promptly record any such Limited Warranty Deed and to thereafter assume full control of the portion of the Land so conveyed. Tenant will be responsible for any transfer tax and recording fee resulting from said conveyance. Tenant will provide Landlord with a copy of the recorded Limited Warranty Deed. At the election of either party, said conveyance will occur in escrow with an escrow agent reasonably acceptable to both parties and the cost of said escrow will be shared equally. Closing fees and charges not otherwise allocated in this Agreement shall be allocated in accordance with the customary practice of Kane County. Upon conveyance of fee simple title to the Land to Tenant, this Lease shall terminate and have no further force and effect. 20. AGREEMENT ON TERMINATION OF LEASE. In addition to the circumstances under which the Lease may terminate pursuant to Section 19, Tenant may request that Landlord agree to terminate the Lease prior to the expiration of the Term. Landlord in its sole and absolute discretion may grant or deny Tenant's request. Landlord's agreement to such request may be predicated upon any terms and conditions that Landlord, at its sole discretion, requires. Tenant agrees that in the event of any such agreement to terminate the Lease pursuant to this Section 20, that in consideration of such agreement then and in that event Tenant will pay to Landlord any Loss, as defined below, incurred by Landlord when Landlord relets or sells the Land and that Tenant shall secure its obligations to pay said Loss to Landlord in a form acceptable to Landlord. For purposes of this Section 20, "Loss"is the difference, if any,between the unpaid amount of Landlord's Costs (as defined in Section 2) and any funds Landlord receives as rent or in consideration for the Land. 21. NOTICES. Notices and demands by either Landlord or Tenant shall be given by certified mail, return receipt requested, with prepaid postage addressed to Landlord at: The Trust for Public Land, 53 West Jackson Street, Suite 815, Chicago, Illinois, 60604, Attention: Jeffrey Greenspan or to Tenant at: City of Elgin, 150 Dexter Court, Elgin, Illinois 60120, Attention: Olufemi Folarin, City Manager, with a copy of any such notice to William A. Cogley, Corporation Counsel, City of Elgin, 150 Dexter Court, Elgin, Illinois 60120, or at such other place and to such other parties as the parties hereto may designate by notice in writing. 22. MISCELLANEOUS. (a) Successors and Assigns. All the agreements, conditions and undertakings herein contained shall extend to and be binding on the successors and assigns of the respective Purchase Agreement for Regional Park May 20, 2005 Page 13 parties hereto as if they were in all cases named, subject, however, to the restrictions as to assignment or subletting by Tenant as provided herein. (b) Entire Agreement. All of the representations and obligations of the parties are contained herein and no modification, waiver or amendment of this Lease or any of its conditions or provisions shall be binding upon the parties unless in writing signed by a duly authorized agent. (c) Severability. Each provision of this Lease is severable from any and all other provisions of this Lease. Should any provision(s) of this Lease be for any reason unenforceable, the balance shall nonetheless be of full force and effect. (d) Headings. The headings used in this Lease are for convenience of reference only and shall not operate or be construed to alter or affect the meaning of any of the provisions hereof. (e) Governing Law. The laws of the State of Illinois shall govern the validity,performance and enforcement of this Lease. (f) Attornment. If the interests of Landlord under this Lease shall be ' transferred voluntarily or by reason of foreclosure or other proceedings for enforcement of any mortgage on the Land, upon request of the transferee, Tenant shall agree in writing that no action taken by such holder to enforce said mortgage shall terminate this Lease or invalidate or constitute a breach of any of the provisions hereof and Tenant will attom to such mortgagee, or to any purchaser of the Land, at any foreclosure sale or sale in lieu of foreclosure or voluntary sale, for the balance of the Term of this Lease and on all other terms and conditions herein set forth. In the event of such transfer of Landlord's interest, Landlord shall be automatically, without the execution of any further instruments, released and relieved from all liability and responsibility to Tenant under this Lease or otherwise from and after said transfer, but shall not be released from responsibility for liabilities and responsibilities accrued prior thereto, and Landlord's successor hereunder shall become liable and responsible to Tenant in respect to all obligations of the Landlord under this Lease accruing from and after the date of such transfer. (g) Estoppel Certificate. Tenant agrees that from time to time, upon not less than ten (10) days prior request by Landlord, Tenant will deliver to Landlord a statement in writing certifying (a) that this Lease is unmodified and in full force and effect (or, if there have been modifications, that the Lease as modified is in full force and effect and stating the modifications); (b) the dates to which the rent and other charges have been paid; (c) to the best of Tenant's knowledge, that Landlord is not in default under any provisions of this Lease, or, if in default, the nature thereof in detail; (d) whether or not Tenant is in occupancy of the Land, and (e) such other information pertaining to this Land and Tenant as Landlord may reasonably request. Failure by Tenant to so reply within said ten(10) days shall be deemed confirmation by the Tenant that all parties are in good standing under the Lease. Purchase Agreement for Regional Park May 20, 2005 Page 14 (h) No Broker. Each party represents to the other that it has not used a real estate broker in connection with this Lease or the transaction contemplated by this Lease. In the event any person asserts a claim for a broker's commission or finder's fee against one of the parties to this Lease, the party on account of whose actions the claim is asserted will indemnify and hold the other party harmless from and against said claim and such indemnification obligation shall survive the expiration of the Lease and the closing of any sale of all or a portion of the Land. (i) Exculpation. Landlord's liability hereunder or any other documents executed in connection herewith, in the event of any uncured default by Landlord, shall be limited to Landllord's interest in the Land, it being understood that none of Landlord's other assets shall be subject to any judgment against Landlord hereunder. 23. CONDITIONS PRECEDENT TO LANDLORD'S DUTIES TO PERFORM UNDER THIS LEASE. Tenant acknowledges that Landlord does not presently own the Land and that Landlord's duties hereunder and Tenant's rights hereunder are both expressly contingent upon the closing of the Landlord's acquisition of a fee simple ownership in the Land from the current fee owner. In the event Landlord does not close and acquire fee simple ownership in the Land on or before August 31, 2005 Tenant upon written notice to the Landlord may declare this Lease null and void with no further obligations of the parties hereunder. 24. ILLINOIS CASH FARM LEASES. Tenant understands and agrees that it will be leasing the Land, and should it elect to purchase the Land, taking the Land subject to two Illinois Cash Farm Leases through February 28, 2006 (individually the "Farm Lease" and together the "Farm Leases") with Sherri DeRaedt (the "Farm Tenant"). Landlord shall provide to the Tenant as of the Commencement Date estoppel certificates from the Farm Tenant with respect to the Farm Leases. Such estoppel certificates shall provide in part (1) that the expiration of the term of the Farm Leases is February 28, 2006 and that the term of such Farm Leases have not been extended past such date; (2)that other than modifying the Farm Leases so that they only affect the Land,the Farm Leases are unmodified and in full force; and (3) that the current owners of the Land are not in default under the Farm Leases. Landlord further represents to the Tenant that as part of Landlord's acquisition of title to the Land that the prior owners of the Land have retained the rights to receive the rent and payments due under the Farm Leases through February 28, 2006. Tenant agrees that its rights hereunder are subject to the Farm Leases. Tenant further understands and agrees that it has no right to any payments made by the Farm Tenant under the Farm Leases. Landlord will execute an Assignment of Leases, effective as of the Commencement Date, assigning all of its interest in the Leases to Tenant. The Assignment of Leases shall provide that: (i) Tenant has all rights and agrees to assume and perform all of the obligations under the Leases (except for the right to rent) and that Landlord will be relieved and released of and from all of the rights and obligations under the Leases, (ii) Tenant will indemnify and hold Landlord, its officers, directors, principals and employees, as the case may be, harmless from and against any and all liability, loss, cost, claim, action, suit and/or expense (including,but not limited to, attorney's fees and litigation expenses) which Landlord may suffer or incur by Purchase Agreement for Regional Park May 20,2005 Page 15 reason of the Leases and (iii) Tenant will not amend or extend the term of any Lease that affects the Land prior to acquiring fee interest in the Land pursuant to Section 19. Landlord also agrees that Landlord will not enter into, amend or extend the term of any other lease including, without limitation,the Farm Leases, that effects the Land during the term of this Lease. IN WITNESS of the foregoing provisions, the parties have executed and delivered this Lease as of the date set forth below. The effective date (the "Effective Date") of this Lease shall be the last date of execution by either of the parties to this Lease. If a party returns this Lease by facsimile machine, the signing party intends the copy of its authorized signature printed by the receiving facsimile machine to be its original signature. [Signatures follow on the next page.] E rk Purchase Agreement for Regional Park May 20,2005 Page 16 TENANT: LANDLORD: CITY OF ELGIN, an Illinois municipal THE TRUST FOR PUBLIC LAND, a corporation nonprofit California public benefit corporation authorized to do business in By: Illinois as TPL-Illinois Name: By: Title: Mayor Name: Date: Title: Date: Attest: City Clerk Approved as to Legal Form: F:Uxgal Dept\AgreementTease-Trust for Public Land-3-Clean.doc Purchase Agreement for Regional Park May 20,2005 Page 17 EXHIBIT A Legal Description Real property in Kane County, Illinois legally described as follows: THE NORTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 10, TOWNSHIP 41 NORTH, RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN THE TOWNSHIP OF PLATO, KANE COUNTY, ILLINOIS; AND THAT PART OF THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER, LYING NORTHERLY OF THE CENTERLINE OF PLANK ROAD, SECTION 11, TOWNSHIP 41 NORTH,RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN THE TOWNSHIP OF PLATO,KANE COUNTY, ILLINOIS; AND THE WEST HALF OF THE NORTHWEST QUARTER OF SECTION 11, TOWNSHIP 41 NORTH, RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN THE TOWNSHIP OF PLATO, KANE COUNTY, ILLINOIS; AND THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER, AND THE EAST ONE- HALF OF THE SOUTHEAST QUARTER LYING NORTHERLY OF THE CENTER LINE OF THE ROAD, ALL IN SECTION 10, TOWNSHIP 41 NORTH, RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN THE TOWNSHIP OF PLATO, KANE COUNTY, ILLINOIS, EXCEPT FOR THAT PART OF THE SOUTHEAST QUARTER OF SECTION 10, TOWNSHIP 41 NORTH, RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: COMMENCING AT THE POINT OF INTERSECTION OF THE CENTER LINES OF PLANK AND MUIRHEAD ROADS (AS SHOWN LOCATED ON A PLAT RECORDED JULY 20, 1988 AS DOCUMENT NO. 1921746); THENCE EASTERLY ALONG THE CENTER LINE OF SAID PLANK ROAD 275.00 FEET FOR THE POINT OF BEGINNING; THENCE CONTINUING EASTERLY ALONG SAID CENTER LINE 605.00 FEET TO A POINT; THENCE NORTHERLY AT RIGHT ANGLES TO THE LAST DESCRIBED COURSE 360.00 FEET TO A POINT; THENCE WESTERLY AT RIGHT ANGLES TO THE LAST DESCRIBED COURSE 605.00 FEET TO A POINT; THENCE SOUTHERLY AT RIGHT ANGLES TO THE LAST DESCRIBE COURSE 360.00 FEET TO THE POINT OF BEGINNING. ALL IN PLATO TOWNSHIP, KANE COUNTY, ILLINOIS. Purchase Agreement for Regional Park May 20, 2005 Page 18 EXHIBIT B Permitted Exceptions 1. General real estate taxes which are a lien,but not yet due or payable. 2. Levied and pending special assessments, including without limitation any drainage assessments levied by the Plato and Ruhland Drainage District. 3. Easements or rights of way obtained through eminent domain subsequent to the Commencement Date. 4. Any federal, state or local laws, ordinances, regulations and/or orders whatsoever; 5. Printed form or standard exceptions that require a survey to be deleted set forth on an owner's policy of title insurance unless Tenant should elect to obtain one at its cost. 6. Rights of the public, the State of Illinois and municipality in and to that part of the Land, if any,taken or used for road purposes. 7. Rights of adjoining owners to the uninterrupted flow of any stream which may cross the Land. 8. Rights of way for drainage tiles, ditches, feeders, laterals and unrecorded pipes, if any. 9. Grant made by William Dittman and Mary Dittman, his wife, to the Illinois Bell Telephone Company recorded December 17, 1959 as Document 908704. 10. Farm Leases. 11. Acts done or suffered by the Tenant, or anyone claiming, by, through or under Tenant.