09-180 ■
Resolution No. 09-180
RESOLUTION
RATIFYING THE EXECUTION OF A FIFTH AMENDMENT AGREEMENT
TO THE DEVELOPMENT AGREEMENT WITH WATER STREET PLACE, LLC
REGARDING THE DEVELOPMENT OF 200 N. GROVE AVENUE
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that it
hereby ratifies and approves the execution of a Fifth Amendment Agreement to the Development
Agreement with Water Street Place, LLC by Ed Schock, Mayor, and Diane Robertson, City Clerk,
regarding the development of 200 N. Grove Avenue,a copy of which is attached hereto and made a
part hereof by reference.
s/Ed Schock
Ed Schock, Mayor
Presented: August 12, 2009
Adopted: August 12, 2009
Omnibus Vote: Yeas: 7 Nays: 0
Attest:
s/Diane Robertson
Diane Robertson, City Clerk
FIFTH AMENDMENT TO DEVELOPMENT AGREEMENT
THIS FIFTH AMENDMENT TO DEVELOPMENT AGREEMENT ("Fifth Amendment
Agreement") is made and entered into as of the ZO day of July, 2009, by and between the City of
Elgin,Illinois,a municipal corporation,(hereinafter referred to as the"City")and Water Street Place,
LLC, an Illinois limited liability company, (hereinafter referred to as the "Developer").
WHEREAS, the City and the Developer have previously entered into a Development
Agreement dated December 6,2006,relating to the City-owned property at the southwest corner of
Kimball Street and Grove Avenue, Elgin, Illinois (hereinafter referred to as the "Subject
Development Agreement"); and
WHEREAS, the City and the Developer entered into an Amendment to the Subject
Development Agreement as of May 9, 2007, a Second Amendment to the Subject Development
Agreement as of June 27, 2007, a Third Amendment to the Subject Development Agreement as of
August 8,2007 and a Fourth Amendment to the Subject Development Agreement as of August 27,
2007; and
WHEREAS,Section 2(b)of the Subject Development Agreement,as amended, provides in
part for the Developer to provide to the City on or before July 1,2009,further documentation in the
form of a market study to demonstrate and validate to the City's reasonable satisfaction the
Developer's projected sales prices,lease rates and absorption schedule for the proposed Mixed Use
Residential and Commercial Development on the Subject Property such that the City can
independently determine that it is likely to receive the estimated tax increment revenue and sales tax
for the proposed Mixed Use Residential and Commercial Development on the Subject Property;and
WHEREAS,Section 2(b)(i)provides that in the event the Developer fails to provide the City
with such market analysis on or before the market study due date of July 1,2009,then the City many,
by written notice to the Developer within thirty(30) days following such market study date elect to
terminate the agreement; and
WHEREAS, the City and Developer have agreed to enter into this Fifth Amendment to
Development Agreement to extend the time period the City may elect to terminate the agreement.
NOW,THEREFORE,for and in consideration of the mutual undertakings as set forth herein,
and in consideration of the mutual undertakings set forth in the Subject Development Agreement,
and in consideration of other good and valuable consideration,the receipt and sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as follows:
1. Section 2(b)(i) of the Subject Development Agreement is hereby further amended to
read as follows:
"(i) In the event the Developer fails to provide the City with such Market
Analysis on or before the Market Study Due Date, then the City may, by
written notice to Developer within ninety(90) days following such Market
Study Due Date, and as its exclusive remedy, elect to terminate this
Agreement." Additionally, the Developer may, within ninety (90) days
following such Market Study Due Date, elect, by written notice to the City,
and as its exclusive remedy, to terminate this Agreement.
2. That in the event of any conflict between the terms of this Fifth Amendment
Agreement,and the terms of the Subject Development Agreement,the First Amendment Agreement,
the Second Amendment Agreement, the Third Amendment Agreement, and/or the Fourth
Amendment Agreement, the terms of this Fifth Amendment Agreement shall control.
3. That except as expressly amended in the First Amendment Agreement,the Second
Amendment Agreement,the Third Amendment Agreement,the Fourth Amendment Agreement and
this Fifth Amendment Agreement,the terms of the Subject Development Agreement shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have entered into and executed this Fifth
Amendment Agreement on the date and year first written above.
CITY OF ELGIN
By
Ed Schock, Mayor
Attest:
City Clerk
WATER STREET PLACE LLC, an Illinois
limited liability company
By Ryan Companies, US, Inc., a Manager
1
By I
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Its Vice President
2