09-238Resolution No. 09 -238
RESOLUTION
AUTHORIZING EXECUTION OF A THIRD AMENDMENT TO
DEVELOPMENT AGREEMENT WITH RANDALL 90, LLC, ET AL.
FOR DEVELOPMENT OF AN AUTO MALL
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that
Ed Schock, Mayor, and Diane Robertson, City Clerk, be and are hereby authorized and directed to
execute a Development Agreement on behalf of the City of Elgin with Randall 90, LLC et al. for
development of an Auto Mall, a copy of which is attached hereto and made a part hereof by
reference.
s/ Ed Schock
Ed Schock, Mayor
Presented: November 4, 2009
Adopted: November 4, 2009
Vote: Yeas: 6 Nays: 1
Attest:
s/ Diane Robertson
Diane Robertson, City Clerk
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This Third Amendment to Development Agreement ( "Third Amendment "), dated
as of this � day of , 2009, is made and entered into by and among the City of
Elgin, an Illinois municipal corporation (hereinafter referred to as the "City ") and
Randall 90, LLC, an Illinois limited liability company ( "Randall 90 "), Heath 79, LLC,
an Illinois limited liability company ( "Heath "), SWC Rand & Willow, LLC, an Illinois
limited liability company ( "SWC ") and Wolf & Laraway, LLC, an Illinois limited
liability company ( "Wolf'); (Randall 90, Heath, SWC and Wolf being hereinafter
collectively called the "Owners ").
WHEREAS, on and as of December 5, 2007, the City and Randall 90 did enter
into a certain Development Agreement bearing said date pursuant to City Resolution #07-
296, and subsequently entered into the First Amendment to the Development Agreement
dated February 28, 2008 and Second Amendment to the Development Agreement dated
October 8, 2008 (collectively the "Development Agreement "); and
WHEREAS, the terms and provisions of the Development Agreement are hereby
incorporated herein by reference. Capitalized terms used but not otherwise defined
herein shall have the meanings as set forth in the Development Agreement; and
WHEREAS, the parties desire to further amend the Development Agreement to
provide greater clarification of the expectations and purposes behind the parties' decision
to enter into the Development Agreement;
AGREEMENT
NOW, THEREFORE, in consideration of the mutual observance of the covenants,
conditions and promises set forth below and in consideration of TEN DOLLARS
($10.00) and for additional consideration, the receipt and sufficiency of which are hereby
mutually acknowledged, the parties agree as follows:
1. Redefinition of Enumerated Brands. The definition of
"Enumerated Brands ", as contained in Section 2 of the Development Agreement, is
hereby replaced with the following definition so as to add "Toyota" thereto:
"Enumerated Brands" means automobiles sold under the brand names of Honda,
Acura, Audi, Volvo, Cadillac, BMW, Lexus, Infiniti, Jaguar, Mercedes, Porsche,
Lincoln, Land Rover, Volkswagen, Hummer, Saab and Toyota.
2. Elimination of Restrictions as to Enumerated Brands. Section 6(b) of
the Development Agreement is hereby deleted in its entirety and replaced with the
following:
(b) Developer may sell any Lot to, or for the use of a Dealership, whether or
not such Dealership sells Enumerated Brands, it being agreed and understood,
however, that only Dealerships selling Enumerated Brands (whether as a sole
brand or as part of an Alpha- Packaged Dealership) shall be counted in
determining when and if the Developer has earned the right to Receive
Development Assistance Part A or Part B under the provisions of Section 3 of the
Development Agreement.
3. Lot 1 Buv -Down.
(a) To induce Developer to agree to sell Lot 1 of the Subdivision to Gary D.
McGrath or an entity owned or controlled by him or his affiliates (individually or
collectively "McGrath ") at $16.00 per square foot, the City hereby agrees to pay to
Developer the product of (i) $2.00 multiplied by (ii) the square footage of said Lot 1
(257,439 square feet) for a total payment of $514,878.00. Such payment by the City to
Developer (the "Lot 1 Buy - Down ") shall be paid upon the issuance of a certificate of
occupancy for a Dealership selling any Enumerated Brand (other than Honda) on Lot 1
and the commencement of New Vehicle Sales thereon. Notwithstanding the foregoing,
the City's obligation to pay such Lot 1 Buy -Down is subject to and contingent upon the
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issuance of a certificate of occupancy for a Dealership selling any Enumerated Brand
(other than Honda) on Lot 1 and the commencement of New Vehicle Sales thereon on or
before the end of the Subject 20 Year Period for Sales Tax Rebates defined in Section
4(a) of the Development Agreement.
(b) In consideration of (and conditional upon) the actual payment by the City
to Developer of the Lot 1 Buy -Down, it is agreed that the City shall be entitled to recover
a sum equal to the Lot 1 Buy -Down by deducting sums from the first dollars otherwise
payable by the City to the Developer with respect to either or both of (i) the Developer's
Sales Tax Rebate generated from retail sales on Lot 1 and/or (ii) Development
Assistance -Part A. In the event the City has previously paid to the Developer
Development Assistance -Part A prior to the payment to the Developer of the Lot 1 Buy -
Down, then City shall not be obligated to pay the Lot 1 Buy -Down to the Developer.
4. Deadline for Earning Development Assistance Part A and / or B. The
following is hereby added as new subparagraph (f) to Section 3 of the Development
Agreement:
(e) If, by the end of the Subject 20 Year Period for Sales Tax Rebates
defined in Section 4(a) of the Development Agreement, there remains any
Development Assistance Part A or Part B that has not been "earned" by
the Developer through the achievement of the conditions for such
payments set forth in Section 3 of the Development Agreement, then the
City will be relieved of its obligation to pay any such unearned portion of
the Development Assistance Part A or B.
5. Amendment. Except as amended by this Third Amendment, the
Development Agreement shall remain unmodified and in full force and effect.
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Dated as of the Ua'" day of�Ae ab e, 2009
City of Elgin,
a municipal corporation
By:
Ed Schock, Mayor
Attest
Diane Robertson, City Clerk
RANDALL 90, LLC
an Illinois limiteddlliiability company
By:
Name: Michael H. Rose
Title: Manager
Heath 79 LLC
an Illinois limited liability compG�
By:
Name: Michael H. Rose
Title: Manager
SWC Rand & Willow LLC
an Illinois limited liability company
Name: Michael H
Title: Manager
Wolf & Laraway LLC
an Illinois limited liability comp
By:
Name-Midhael H. Rose
Title: Manager
FALegal DeptWgreement\Development Agr- Randall 90 -Third Amendment- redlined- 10- 5- 09.doc
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Date:
To:
From:
Subject:
City of Elgin
November 16, 2009
Mary Giffort, Paralegal
Jennifer Quinton, Deputy City Clerk
Memorandum
Resolution No. 09 -238, Adopted at the November 4, 2009, Council Meeting
Enclosed you will find the agreement listed below. Please retain a copy for your records. If you
have any questions please feel free to contact our office 847 - 931 -5660 and we will do our best to
assist you. Thank you.
• Third Amendment to Development Agreement with Randall 90, LLC, et al. for
Development of an Auto Mall