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10-216 Resolution No. 10-216 RESOLUTION AUTHORIZING EXECUTION OF A SECOND AMENDMENT TO DEVELOPMENT AGREEMENT WITH RIVER PARK PLACE, LLC 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 Second Amendment to Development Agreement on behalf of the City of Elgin with River Park Place, LLC, a copy of which is attached hereto and made a part hereof by reference. s/ Ed Schock Ed Schock, Mayor Presented: December 1, 2010 Adopted: December 1, 2010 Omnibus Vote: Yeas: 7 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk 1 Y � ' Z SECOND AMENDMENT TO DEVELOPMENT AGREEMENT THIS SECOND AMENDMENT TO DEVELOPMENT AGREEMENT is made and entered into this r'' day of , 'Pu",d' , 2010, by and between the CITY OF ELGIN, an Illinois municipal corporation, (hereinafter referred to as the"City"), and RIVER PARK PLACE,LLC,an Illinois limited liability company, (hereinafter referred to as the"Developer"). WITNESSETH WHEREAS,the City and Par Development, Inc.have previously entered into a development agreement dated February 13,2002,providing for the redevelopment of the then city-owned property located at the northwest corner of South Grove Avenue and Prairie Street and the then city owned property lying within the area bounded by Lake Street on the south, South Grove Avenue on the west, Prairie Street on the north and Wellington Avenue on the east; and WHEREAS,the City and Par Development,Inc.have previously entered into an Amendment to such Development Agreement dated March 11, 2004; (such Development Agreement dated February 13,2002,as amended by the Amendment to the Development Agreement dated March 11, 2004, is hereinafter referred to as the "Subject Development Agreement"); and WHEREAS,Developer is the successor-in-interest to Par Development,Inc.with respect to the Subject Development Agreement and was conveyed Parcel 1 of the Redevelopment Property as described herein by Special Warranty Deed recorded January 19, 2006, as document number 2006K007153; and WHEREAS,the Developer has completed the redevelopment of the property referred to in the Subject Development Agreement as Parcel 2 of the Redevelopment Property,being the property lying within the area bounded by Lake Street on the south,South Grove on the west,Prairie Street on the north and Wellington Avenue on the east; and , N ' ' . , 1 WHEREAS, due to an unprecedented downturn in the housing market the Developer has been unable to commence or complete the Subject Residential Condominium Redevelopment of the property referred to in the Subject Development Agreement as Parcel 1 of the Redevelopment Property, being the property located at the northwest corner of South Grove Avenue and Prairie Street such property being depicted and legally described on the plat of survey prepared by Haeger Engineering, LLC dated July 11, 2005, attached hereto as Exhibit A; and WHEREAS, the City and the Developer have determined it to be in their best interests to provide for certain further amendments to the Subject Development Agreement including with respect to the timing of the commencement and completion of the Subject Residential Condominium Redevelopment of Parcel 1 of the Redevelopment Property and the reconveyance of Parcel 1 of the Redevelopment Property to the City, pursuant to the terms and conditions of this Second Amendment to Development Agreement. NOW, THEREFORE, for and in consideration of the mutual promises and undertakings contained herein, and the mutual promises and undertakings as contained in the Subject Development Agreement,and for other good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. That the City and the Developer agree that the Subject Development Agreement be and is hereby further amended as follows: A. Paragraph 9B of the Subject Development Agreement be and is hereby amended to read as follows: "Developer shall commence construction of the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property within sixty (60) days after the reconveyance of such property from the City to the Developer pursuant to paragraph 32 of this agreement. Developer shall be deemed to have commenced construction of the Subject Residential Condominium Redevelopment on Parcel 1 of 2 the Redevelopment Property upon initiation of the construction of the foundation of the condominium building to be constructed on Parcel 1 of the Redevelopment Property. Upon Developer commencing construction of the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property Developer shall continue with such construction in as expeditious a manner as is reasonably practicable. Developer shall not encumber title to Parcel 1 of the Redevelopment Property until after Developer has commenced construction of the Subject Residential Condominium Redevelopment on such Parcel 1 of the Redevelopment Property. Developer shall complete the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property no later than twenty-four (24)months following the commencement of construction of the Subject Residential Condominium Redevelopment(hereinafter referred to as the "Completion Date for the Redevelopment of Parcel 1 of the Redevelopment Property"),provided,however, that such Completion Date for the Redevelopment of Parcel 1 of the Redevelopment Property shall be extended by one (1) day for each day of which construction is delayed or stopped due to accident,strikes,shortages of materials,extreme weather, acts of God or other causes not within Developer's reasonable control. If the Developer wishes to make a claim for an extension of the Completion Date for the Redevelopment of Parcel 1 of the Redevelopment Property the Developer shall provide the City written notice thereof within thirty(30)days after the occurrence of the event giving rise to Developer's claim for such extension. Such claim shall advise the City of the circumstances the Developer alleges justifies an extension of time of the Completion Date for the Redevelopment of Parcel 1 of the Redevelopment Property. If adverse weather conditions are the basis for a claim for additional time, such claim shall be documented by data substantiating that weather conditions were abnormal for the period of time an could not have been reasonably anticipated, and that weather conditions had an adverse effect on the scheduled construction. Claims by the Developer for an extension of time for the Completion Date for the Redevelopment of Parcel 1 of the Redevelopment Property must be approved by the City Council of the City. The Subject Residential Condominium Redevelopment of Parcel 1 of the Redevelopment Property shall be deemed completed when Developer has completed construction of all buildings and site improvements, including without limitation landscaping, and has obtained a final occupancy permit for at least one of the residential condominium units to be constructed on Parcel 1 of the Redevelopment Property." 13. A new paragraph 31 be and is hereby added to the Subject Development Agreement to read as follows: "31. Reconveyance of Parcel 1 of the Redevelopment Property to the City. A. Within thirty (30) days of the entry into this Second Amendment Agreement Developer shall reconvey to the City title to Parcel 1 of the Redevelopment Property by recordable warranty deed, subject only to real estate 3 • taxes not then due and payable for 2010 and subsequent years; public utility easements so long as same do not prohibit the City's intended use of the property; public rights-of-way,covenants,conditions,encroachments and restrictions of record as long as same do not prohibit the City's intended use of the property. B. Not less than ten(10)days prior to the reconveyance of Parcel 1 of the Redevelopment Property to the City, the Developer at its own expense shall deliver or cause to be delivered to the City a title commitment for a 1970 ALTA owners title insurance policy issued by Chicago Title Insurance Company in the minimum amount of insurance covering title to Parcel I of the Redevelopment Property on or after the date herein showing title in Developer subject only to: (a)title exceptions set forth in paragraph 31A above, (b) title exceptions pertaining to liens or encumbrances of a definite or ascertainable amount which may be removed by the payment of money at the time of closing and which Developer shall so remove at that time, (c) acts of the City and all parties through or for the City, (d) zoning laws, statutes and ordinances, including, but not limited to, matters relating to the Tax Increment Act and the Elgin Center City Redevelopment Project Area and Redevelopment Plan. At closing,the Developer shall also furnish to the City(a)an Affidavit of Title in customary form covering the date of closing and showing title in the name of the Developer subject only to the permitted exceptions and(b)such other documents as are customary to complete the closing of the transaction. C. If the title commitment discloses either unpermitted exceptions or matters that render the title not in conformance with the provisions of this agreement, the Developer shall within thirty(30)days from the date thereof have the exceptions removed from the commitment or have the title company commit at no cost to the City to insure against loss or damage that may be associated with such exceptions, and, in such event, the time of the closing of the reconveyance of Parcel 1 of the Redevelopment Property from the Developer to the City shall be thirty(30)days after the delivery of the commitment. D. General taxes shall be adjusted ratably as of the time of Closing. If the amount of current general taxes is not then ascertainable,the amount thereof shall be made on the basis of 105%of the amount of the most recent ascertainable taxes." C. A new paragraph 32 be and is hereby added to the Subject Development Agreement to read as follows: "32. Reconveyance of Parcel 1 of the Redevelopment Property to Developer. A. In the event Developer obtains and provides to the City on or before June 1, 2014, (1) written evidence of an unconditional commitment for the financing necessary to provide for the construction of the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property,(2)evidence of Developer having obtained from the 4 City a building permit to construct the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property, and(3) Developer's notice to the City of its intent to commence with the construction of the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property within sixty (60) days of the reconveyance of such property from the City to the Developer, the City shall within sixty (60) days after having provided such written evidence of the financing necessary to provide for the construction of the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property, the building permit for the construction of same and Developer's written notice to the City of its intent to commence with the construction of the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property, convey to the Developer title to Parcel 1 of the Redevelopment Property, by recordable warranty deed,subject only to the matters effecting title set forth within paragraph 4C of this agreement. In the event the Developer fails to provide the City written evidence of the financing necessary to provide for the construction of the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property, the building permit to provide for such construction and Developer's notice of intent to commence with such construction all on or before June 1, 2014, the City may, upon written notice to Developer, declare this agreement null and void and whereupon this agreement shall be deemed terminated,null and void, without further obligations of the City, including, but not limited to,any obligation of the City to reconvey Parcel 1 of the Redevelopment Property to the Developer. B. Not less than ten (10) days prior to the reconveyance of Parcel 1 of the Redevelopment Property to the Developer as provided for in this paragraph 32,the City at its own expense shall deliver or cause to be delivered to the Developer a title commitment for Parcel 1 of the Redevelopment Property as set forth in paragraph 4C of this agreement. At closing, the City shall also furnish to the Developer (a) an Affidavit of Title in customary form covering the date of closing and showing title in the name of the City subject only to the permitted exceptions and(b)such other documents as are customary to complete the closing of the transaction. C. In connection with the reconveyance of Parcel 1 of the Redevelopment Property to the Developer pursuant to this paragraph 32, if the title commitment discloses unpermitted exceptions that render the title not in conformance with the provisions of this agreement, the provisions of paragraph 4D of this agreement shall apply. D. In connection with the reconveyance of Parcel 1 of the Redevelopment Property to the Developer pursuant to this paragraph 32, general taxes shall be adjusted ratably at the time of closing. If the amount of the current general taxes is not then ascertainable, the amount thereof shall be made on the basis of 105% of the amount of the most recent ascertainable taxes. E. In the event Parcel 1 of the Redevelopment Property is reconveyed by the City to the Developer pursuant to this paragraph 32, Developer shall commence with the construction of the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property within sixty(60)days after the reconveyance of such property from 5 , the City. In the event the Developer fails to commence with the construction of the Subject Residential Condominium Redevelopment on Parcel 1 the Developer shall, upon written notice from the City, reconvey Parcel 1 of the Redevelopment Property back to the City under the same terms and conditions as provided in paragraph 31 of this agreement. Developer shall be deemed to have commenced construction of the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property upon initiation of the construction of the foundation of the condominium building to be constructed on Parcel 1 of the Redevelopment Property. Developer shall continue and complete such construction as provided in paragraph 9B of this agreement." D. A new paragraph 33 is hereby added to the Development Agreement to read as follows: "33. Termination of Agreement. After the reconveyance of Parcel 1 of the Redevelopment Property from the Developer to the City as provided in paragraph 31 of this agreement,and prior to any reconveyance of Parcel 1 of the Redevelopment Property from the City to the Developer as provided for in paragraph 32 hereof,in the event the City determines to proceed with a use or development of Parcel 1 of the Redevelopment Property other than the specific Subject Residential Condominium Redevelopment of Parcel 1 of the Redevelopment Property by the Developer, the City may, upon written notice to Developer, declare this agreement null and void and whereupon the agreement shall be deemed terminated without further obligations of the City, including, but not limited to, any obligation of the City to reconvey Parcel 1 of the Redevelopment Property to the Developer." 2. That except as specifically amended in this Second Amendment to Development Agreement, the Subject Development Agreement shall remain in full force and effect. 3. That in the event of any conflict between the terms and provisions of the Subject Development Agreement and the terms and provisions of this Second Amendment to Development Agreement, the terms and provisions of this Second Amendment to Development Agreement shall control. 6 IN WITNESS WHEREOF, the parties hereto have entered into and executed this Second Amendment to Development Agreement on the date and year first written above. CITY OF ELGIN, a municipal RIVER PARK PLACE LLC, an corporation Illinois limit--'a eco ippany By -, v.,� _ �/ Mayor Its ,4 r,/./.4 6 P Atte City Clerk F:\Legal Dept\Agreement\Development Agr-River Park PI-2nd Amend-clean 11-29-I0.doc 7 1 EXHIBIT A PLAT OF SURVEY OF PARCEL 1 OF THE REDEVELOPMENT PROPERTY PREPARED BY HAEGER ENGINEERING, LLC, DATED JULY 11, 2005. 8 'Er:Ei—ZE5---F-- -T.r.---7-• /AL-I/-% / /-‘‘....J1-1 I—HINLJ I I I LC JUKVCY 11- _ I I .====:•••••••••••• ,''ne.ee' \,-•.' ••••••'..7;• FULTON STREET ,."'," ..,.....•,,V.',2'',;,,)•-," \,, . ...,"' Krne. .•. ' - — \ .- .., ,..- '.'•'.1.',' .. , . ,,,,,..,<<''..••••''. ' :'..: \ '1 , • ..c ,,,`,./. --,. \ '''. r';'' ..•!'' '', -':::•.,.- \ ' • , . .......................-,........ '. • ' \ 1.:"?'...!..:TIT:...i."..".....=......:7FF:a....2.1.7....TI: ,'' ' .7'>".':------''. . .• ...• . • ,• ' .... ' -•'-'3';.--'-"- ''..1\-:\'.,......,-;•:*;,"; \ ',-''''" ' •.." , \liPi' .'• , - ., t •t , , a, .• ,'• ,,. ,,,,,.',. ,,,. 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E L._G I N THE CITY IN THE SUBURBS MEETING DATE: November 17, 2010 INITIATIVE F: Second Amendment to Development Agreement with River Park Place LLC COMMUNITY GOAL • Quality Housing OBJECTIVE • Authorize Second Amendment to Development Agreement with River Park Place LLC PURPOSE • Provide for the reconveyance of the redevelopment property to the city and extend the date for the construction of the redevelopment RECOMMENDATION Approve the Second Amendment to the Development Agreement with River Park Place LLC BACKGROUND The city and Par Development, Inc., as predecessor in interest to River Park Place, LLC (the "Developer") previously entered into a development agreement dated February 13, 2002 (the "Development Agreement"). A copy of the Development Agreement is attached. Such Development Agreement provided for the redevelopment of the then city-owned property located at the northwest corner of South Grove Avenue and Prairie Street which includes the former Crocker Theatre property, the surface parking lot to the south and the former coin shop property ("Parcel 1 of the Redevelopment Property") and the then city-owned property lying within the area bounded by Lake Street on the south, South Grove Avenue on the west, Prairie Street on the north and Wellington Avenue on the east ("Parcel 2 of the Redevelopment Property"). The Development Agreement provided for the city to convey to Developer the city- owned properties. Developer was required to construct townhomes on Parcel 2 of the Redevelopment Property. Developer was also required to construct an 8-story residential 4111) condominium on Parcel 1 of the Redevelopment Property at the northwest corner of South Grove Avenue and Prairie Street. Such residential condominium is to have 60 residential condominium units on the upper six stories, retail space of approximately 2,175 square feet on the ground level and an adjoining surface parking lot. The city and the Developer thereafter entered into an amendment to the Development Agreement dated March 11, 2004. A copy of such amendment to the Development Agreement is also attached. Such amendment agreement provided for various amendments to the Development Agreement including rescheduling the time of the closing for the conveyances of the Redevelopment Parcels from the city to the Developer, as well as provisions relating to the removal of Parcel 2 of the Redevelopment Property from the flood plain, certain environmental cleanup efforts, impact fees, and soil substitution and storage of materials. The city thereafter conveyed the redevelopment parcels to the Developer. The Developer proceeded with and completed the townhome development on Parcel 2 of the Redevelopment Property. Due to the substantial decline in the housing market, Developer has been unable to proceed with the residential condominium development on Parcel 1 of the Redevelopment Property. OPERATIONAL ANALYSIS Developer and city staff have been conducting discussions regarding proposed further amendments to the Development Agreement. Attached is a proposed Second Amendment to the Development Agreement which may be summarized as follows: 1. Paragraph 9B of the Development Agreement would be amended to extend the date by which the Developer must commence construction with the subject residential condominium redevelopment to 2014. 2. A new paragraph 31 would be added to the Development Agreement which requires the Developer to reconvey back to the city title to Parcel 1 of the Redevelopment Property within 30 days of the entry into the second amendment agreement. 3. A new paragraph 32 would be added to the Development Agreement which provides for the potential reconveyance of Parcel 1 of the Redevelopment Property from the city back to the Developer. Such reconveyance would incur in the event the Developer obtains and provides to the city on or before June 1, 2014, (a) written evidence of an unconditional commitment for financing necessary to provide for the construction of the subject residential condominium redevelopment project on Parcel 1 of the Redevelopment Property, (b) evidence of Developer having obtained from the city a building permit to construct the subject residential condominium redevelopment of h Parcel 1 of the Redevelopment Property, and (c) Developer's notice to the city of its intent to commence with construction of the subject residential condominium redevelopment on Parcel 1 of the Redevelopment Property within 60 days of the reconveyance of such property from the city to the Developer. In the event the Developer fails to provide the city written evidence of the financing necessary to provide for the construction of the subject residential condominium redevelopment on Parcel 1 of the Redevelopment Property, the building permit and Developer's notice of intent to commence construction on or before June 1, 2014, the city may terminate the Development Agreement. 5. A new paragraph 33 would be added to the Development Agreement which allows the city to terminate the Development Agreement at any time prior to any reconveyance of Parcel 1 of the Redevelopment Property from the city to the Developer in the event the city determines to proceed with a different use of the Subject Property. INTERESTED PERSONS CONTACTED Representatives of the Developer. FINANCIAL ANALYSIS rink There is no direct cost to the city for the proposed Second Amendment to the Development Agreement. BUDGET IMPACT None. FUND(S) ACCOUNT(S) PROJECT#(S) AMOUNT AMOUNT BUDGETED AVAILABLE N/A N/A N/A N/A N/A LEGAL IMPACT None. ALTERNATIVE COURSES OF ACTION The city council may choose not to enter into the Second Amendment to the Development Agreement. NEXT STEPS 1. Authorize the Second Amendment to the Development Agreement 2. Provide for the reconveyance of Parcel 1 of the Redevelopment Property from the Developer to the city Prepared by: William A. Cogley, Corporation Counsel/Chief Development Officer Reviewed by: Colleen Lavery, Chief Financial Officer Reviewed by: William A. Cogley, Corporation Counsel/Chief Development Officer Final Review by: Richard G. Kozal,Assistant City Manager/Chief Operating Officer Approved by: Sean R. Stegall, City Man er ATTACHMENTS A: Development Agreement B. First Amendment Agreement C. Second Amendment to Development Agreement DRAFT 1/29/02 RAGREE/PARDEV.DA DEVELOPMENT AGREEMENT THIS AGREEMENT made and entered into this 13th day of February, 2002, by and between the CITY OF ELGIN, an Illinois municipal corporation, (hereinafter referred to as the "City" ) , and PAR DEVELOPMENT, INC. , an Illinois corporation, (hereinafter referred to as "Developer") . WITNESSETH WHEREAS, the City is the owner of the property commonly known as 96 S. Grove Avenue, Elgin, Kane County, Illinois, such property being and legally described in Exhibit A attached hereto (hereinafter referred to as "Parcel 1 of the Redevelopment Property" ) ; and WHEREAS, the City is also the owner of the property lying within the area bounded by Lake Street on the south, South Grove Avenue on the west, Prairie Street on the north and Wellington Avenue on the east, such property being legally described in Exhibit B attached hereto (hereinafter referred to as "Parcel 2 of the Redevelopment Property" , with Parcel 1 of the Redevelopment Property and Parcel 2 of the Redevelopment Property being hereinafter collectively referred to as the "Redevelopment Property" ) ; and WHEREAS, the City Council of the City has on September 9, 1995 adopted the South Grove Redevelopment Plan and Project to cause the redevelopment of a certain area which includes Parcel 2 of the Redevelopment Property pursuant to the Tax Increment Allocation Redevelopment Act at 65 ILCS 5/11-74 . 4-1, 47) et seq. ; and WHEREAS, the City Council of the City has on May 24, 2000, adopted the City of Elgin Riverfront/Center City Master Plan which identifies the Redevelopment Property for redevelopment; and WHEREAS, the City Council of the City has on January 23 , 2002, adopted an ordinance proposing the Elgin Central Area Redevelopment Plan and Project which would provide for a program to cause the redevelopment of a certain area which includes Parcel 1 of the Redevelopment Property pursuant to the Tax Increment Allocation Redevelopment Act at 65 ILCS 5/11-74 .4-1, et seq. ; and WHEREAS, the City has issued requests for proposals to various developers requesting proposals for the redevelopment of the Redevelopment Property; and WHEREAS, the Developer has submitted to the City a proposal for the redevelopment of the Redevelopment Property; and WHEREAS, after further discussions with the City the Developer has submitted an amended proposal for the redevelopment of the Redevelopment Property which in general terms provides for the construction of an eight (8) story residential condominium building, with parking on the first two stories, sixty (60) residential condominium units on the upper six (6) stories, retail space of approximately 2 , 175 square feet on the ground level and an adjoining surface parking lot on Parcel 1 of the Redevelopment Property and the 47) -2- construction of one hundred sixteen (116) residential t townhomes on Parcel 2 of the Redevelopment Property (such amended proposal for the redevelopment of the Redevelopment Property is hereinafter referred to as "Developer' s Proposal") ; and WHEREAS, Developer' s Proposal for the redevelopment of the Redevelopment Property would further the goals and objectives set forth in the South Grove Redevelopment Plan and Project, the City of Elgin Riverfront/Center City Master Plan and the proposed Elgin Central Area Redevelopment Plan and Project; and WHEREAS, Developer' s initial estimate of the cost of the construction of the improvements for the redevelopment of the Redevelopment Property is approximately 27 . 3 million dollars; and WHEREAS, it is unlikely that such redevelopment of the Redevelopment Property will occur in the absence of limited economic assistance to be provided by the City; and WHEREAS, in order to provide for the continued redevelopment of the City including the redevelopment of the riverfront and center city areas the City has agreed to provide certain development assistance; and WHEREAS, Developer' s Proposal for the redevelopment of the Redevelopment Property will result in an increase in the City' s tax revenues and an increase in the tax revenues to other local taxing districts; and WHEREAS, the Redevelopment Property is one of the eft- predominate sites in the riverfront and center city areas and -3- the Developer's Proposal for the redevelopment of the 47) Redevelopment Property will likely result in the stimulation of further redevelopment and improvements in the riverfront and center city areas; and WHEREAS, the City of Elgin is a home rule unit authorized to exercise any power and perform any function relating to its government and affairs; and WHEREAS, development assistance resulting in increases in the City' s tax base and spurring additional redevelopment in the riverfront and center city areas are matters within the government and affairs of the City of Elgin. NOW, THEREFORE, for and in consideration of the mutual promises and undertakings contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 417) 1 . Recitals . The foregoing recitals are incorporated into this agreement in their entirety. 2 . Feasibility Period. A. Developer shall have one hundred and twenty (120) days after the execution of this agreement to conduct and complete investigations to determine the feasibility of developing the Redevelopment Property to determine whether or not the Redevelopment Property is reasonably suitable for the purposes described in Developer' s Proposal to the City. Such investigations may include, but not be limited to, preliminary engineering, soil testing, environmental audits and market studies. Within thirty (30) days following the execution of this agreement, the City shall deliver or cause to be 4111) -4- delivered to Developer copies of all reports, geological studies, environmental assessments, soil or other test results and existing surveys with respect to the Redevelopment Property then in the City's possession. In the event the Developer determines based upon such investigations that the Redevelopment Property is not reasonably suitable for the purposes described in Developer' s Proposal Developer shall notify the City in writing of such finding prior to the expiration of such one hundred and twenty (120) day feasibility period. If the City is so notified in writing by Developer prior to the expiration of such one hundred and twenty (120) day feasibility period then this agreement shall be cancelled and null and void with no further liability of reither party hereunder. In such event, Developer shall also provide to the City copies of all documents obtained or generated by the Developer resulting from the feasibility study undertaken by the Developer. The studies and other information are not intended or represented to be suitable for reuse by the City and any such reuse shall be at the sole risk of the City and Developer shall have no liability to the City or any other persons utilizing the information contained therein for accuracy or appropriateness . With the exception of information regarding physical conditions of the Redevelopment Property, e.g. soil tests, geological studies, environmental assessments, any such studies and information shall be deemed the property of and owned by the Developer and in the event the City makes such information available to any person who is not an employee or agent of the City, the latter -5- shall require Developer' s consent to such use which may include reimbursement of Developer's cost therefor. B. Prior to the expiration of the one hundred and twenty (120) day feasibility period, the City and the Developer will prepare and document a list identifying the Conditions Precedent applicable to each Redevelopment Parcel which must be satisfied prior to the respective closings for the Redevelopment Parcels (hereinafter referred to as the "Conditions Precedent") . The parties, as applicable, will proceed in a reasonably diligent fashion to conclude, satisfy and/or waive such Conditions Precedent during the Development Application process and prior to the closings on the Redevelopment Parcels. In the event the City and the Developer are unable to agree on the Conditions Precedent applicable to each Redevelopment Parcel prior to the Aml) expiration of the 120 day feasibility period then upon written notice from either party this Agreement shall be cancelled and null and void with no further liability of either party hereunder. C. In the event the Developer determines during the 120 day feasibility period that the Developer does not require the portion of Parcel 1 of the Redevelopment Property along South Grove Avenue identified in Exhibit C hereto with shading and as the "Future Commercial Infill Opportunity" , the Developer shall provide written notice thereof to the City prior to the expiration of such 120 day feasibility period. In such event, and if mutually agreed to by the City, title to such Future Commercial Infill Opportunity Area shall not be 47) -6- conveyed to the Developer by the City as part of Parcel 1 of the Redevelopment Property but instead shall be retained by the City. 3 . Development Application and Petition for Rezoning. A. Within one hundred and twenty (120) days of the expiration of the feasibility period pursuant to the provisions of Section 2 of this agreement, and in the event Developer has not cancelled the agreement prior to the expiration of such feasibility period, the Developer agrees to and shall submit to and file with the City a formal development application and petition for rezoning for the Redevelopment Property (such development application and petition for rezoning of the Redevelopment Property is hereinafter referred to as the "Development Application") . It is agreed that the Development Application shall also include and request the rezoning of the to be vacated portion of Wellington Avenue referred to in Paragraph 6 hereof, the Subject Abandoned Railroad Right-of-Way referred to in Paragraph 7 hereof and 122 South Grove Avenue referred to in Paragraph 8 hereof . The City agrees to execute the Development Application along with the Developer. All costs and expenses relating to the Development Application shall be the responsibility of and shall be paid for by the Developer. Such Development Application shall request the rezoning of the Redevelopment Property to a planned multiple family residence district and shall provide for the redevelopment of the Redevelopment Property in substantial conformance with the Proposal for River Park Place prepared by Par Development, -7- I ' Inc. and Rental Systems, L.L.C. , attached hereto as Exhibit C, except as same may be amended as may be mutually agreed by the City and the Developer during the development review and the zoning process and as approved by the City in an ordinance reclassifying the Redevelopment Property to a planned multiple family residence district or as directed by the City as is necessary to comply with ordinances, building codes or other requirements of law (such proposal, as amended, is hereinafter referred to as the "Subject Redevelopment Plan") . For purposes of clarification, and except as the Redevelopment Plan may be amended as provided for in this paragraph, the redevelopment of Parcel 1 of the Redevelopment Property by Developer shall consist of the construction of an eight (8) story residential condominium building with the first two (2) stories providing for parking and with the upper six (6) 4111) stories providing for sixty (60) residential condominium units, an adjoining surface parking lot, and a ground level retail space facing South Grove Avenue, all as set forth in the Subject Redevelopment Plan (such redevelopment of Parcel 1 of the Redevelopment Property being hereinafter referred to as the "Subject Residential Condominium Redevelopment" ) . For purposes of clarification, and except as the Redevelopment Plan may be amended as provided for in this paragraph, the redevelopment of Parcel 2 of the Redevelopment Property by Developer shall consist of the construction of one hundred and sixteen (116) residential townhomes as set forth in the Subject Redevelopment Plan (such redevelopment of Parcel 2 being hereinafter referred to as the "Subject Residential 47) -8- rib^ Townhome Redevelopment") . It is understood that the number of residential condominium units and residential townhome units as referred to herein are approximate, provided however, it is agreed that there shall be not less than fifty four (54) residential condominium units and not less than one hundred five (105) residential townhome units. B. The Development Application to be submitted by the Developer to the City for the City' s review and approval shall include all materials and documentation customarily required by the City for such development applications and zoning petitions and shall also include architectural elevations of the buildings to be constructed on the Redevelopment Property showing and describing the rp architectural styling and materials of such buildings, the floor plans for each of the condominium units and townhomes, a description of standard finishes and amenities along with available upgrades for each of the condominium units and townhomes, the anticipated sales price lists for the condominium units and townhomes, preliminary engineering plans, landscape plans, lighting plans, estimated development schedules for the Subject Residential Condominium Redevelopment and the Subject Residential Townhome Redevelopment and such other and further materials and documentation as may be reasonably required by the City. C. The Development Application to be submitted by the Developer to the City for the City' s review and approval shall also include draft declarations of condominium ownership and of easements, restrictions, covenants and by-laws for the -9- Subject Residential Condominium Redevelopment and for the Subject Residential Townhome Redevelopment (hereinafter referred to as the "Declarations") . The Declarations shall comply with the Illinois Condominium Property Act and shall include, among other matters, provisions relating to the maintenance of common elements, limited common elements and common areas and limitations and requirements relating to the type and number of buildings, building elevations, building design, building materials, the number of condominium units and townhome units and the use of the subject properties. Upon approval of the Declarations by the City Council of the City the Developer shall record such Declarations simultaneously with the recording of a final plat of subdivision for Parcel 1 and/or Parcel 2 of the Redevelopment Property and prior to the closing of the sale of any of the residential condominium units or residential townhome units on the Redevelopment Property. The Declarations may be modified or amended by the Developer or Developer' s successors in interest, but the Declarations shall provide that as to amendments or revisions effecting the type and number of buildings, building elevations, building design, building materials, the number of condominium units and townhome units or the use of the subject properties, such amendments or revisions shall require the prior approval of the City Council of the City of Elgin. D. This agreement and all of the parties ' obligations hereunder are expressly subject to and contingent upon the City Council of the City adopting an ordinance or 47) -10- (11164 ordinances which provides for the approval of the Rezoning of the Redevelopment Property providing for a planned multiple family residence district zoning classification for the Redevelopment Property which provides for the redevelopment of the Redevelopment Property according to the Subject Redevelopment Plan as same may be amended as provided for in Section 2A hereof (such rezoning of the Redevelopment Property providing for the redevelopment of the Redevelopment Property according to the Subject Redevelopment Plan, as amended, is hereinafter referred to as the "Rezoning of the Redevelopment Property" ) . In the event the City Council determines in its sole and exclusive discretion not to adopt an ordinance which provides for the approval of the Rezoning of the Redevelopment Property then upon written notice from either party this agreement shall be cancelled and null and void with no further liability of either party hereunder. 4 . Conveyance of Redevelopment Property to Developer. A. In the event the City Council of the City adopts an ordinance which provides for the approval of the Rezoning of the Redevelopment Property the City shall thereafter convey to the Developer title to the Redevelopment Property by a recordable special warranty deed, subject only to real estate taxes not then due and payable, for the year of closing and subsequent years; public utility easements so long as same do not prohibit Developer' s intended use of the Redevelopment Property as herein described; public rights-of-way; covenants, conditions, encroachments and restrictions of record as long as same do not prohibit -11- Developer's intended use of the Redevelopment Property as 47) herein described; and the terms and obligations of this Development Agreement . The purchase price to be paid by the Developer to the City for the Redevelopment Property shall be zero dollars, it being agreed and understood that the City is conveying the Redevelopment Property to the Developer without a monetary purchase price as a development incentive to the Developer as partial consideration for Developer' s redevelopment of the Redevelopment Property as provided for in this agreement . The closings for Parcel 1 of the Redevelopment Property and Parcel 2 of the Redevelopment Property may be separate . The time of closing for Parcel 1 of the Redevelopment Property shall be and Parcel 2 of the Redevelopment Property shall be sixty (60) days following City Council approval of the Rezoning of the Redevelopment Property 47) and the satisfaction or waiver of the Conditions Precedent applicable to that Redevelopment Parcel . B. The City shall make any existing surveys of the Redevelopment Property in the City' s possession available to the Developer within five (5) days after the execution of this Agreement . Within sixty (60) days following the completion of the demolition of existing structures on the Redevelopment Property and the completion of the regrading of Parcel 2 of the Redevelopment Property as provided for in paragraph 10 of this Agreement, but not less than ten (10) days prior to closing, the City at its own expense, shall furnish Developer a plat of survey for the Redevelopment Property prepared by a licensed land surveyor dated not more than six months prior to 47) -12- plI the date of closing, made and so certified by the surveyor to the Developer, or other person designated by Developer, and the title company as having been made in accordance with the minimum standard detail requirements for ALTA/ASCM Land Title Surveys and Mapping, 1992, including, without limitation, all items (except for Items 5, 7, 9, 10 and 12 in Table A thereof with accuracy standards appropriate to suburban settings and for Developer's intended use of the real estate) . The survey shall also include a certification by the surveyor as to the square footage of Parcel 1 and Parcel 2 of the Redevelopment Property (excluding any portion thereof lying in a public right-of-way) . Such survey shall further indicate all applicable easements and rights-of-way. C. Not less than ten (10) days prior to closing, the City at its own expense, shall deliver or cause to be delivered to Developer or Developer' s agent a title commitment for a 1970 ALTA Owners Title Insurance Policy issued by Chicago Title Insurance Company (the "Title Company") in the minimum amount of insurance covering title to the Redevelopment Property on or after the date herein, showing title in the City of Elgin subject only to : (a) title exceptions set forth in Section 4A above, (b) title exceptions pertaining to liens or encumbrances of a definite or ascertainable amount which may be removed by the payment of money at the time of closing and which the City shall so remove at that time, (c) acts of the Developer and all parties through or for the Developer, and (d) zoning laws, statutes and ordinances, including, but not limited to matters relating -13- to the Tax Increment Act, the South Grove Redevelopment 47) Project Area and Redevelopment Plan and the Elgin Center City Redevelopment Project Area and Redevelopment Plan. The Developer may also obtain its own initial title commitment for the Redevelopment Property. If such title commitment obtained by the Developer discloses the existence of title exceptions other than as identified in this paragraph, and the Developer provides written notice to the City of the unacceptability of such other title exceptions, then such other title exceptions shall be deemed Conditions Precedent to be waived or satisfied prior to the closing of the effected Redevelopment Parcel . D. If the title commitment or plat of survey discloses either unpermitted exceptions or survey matters that render the title not in conformance with the provisions of 4111) this agreement (hereinafter referred to as "Survey Defects" ) , the City shall have thirty (30) days from the date of delivery thereof to have the exceptions removed from the commitment or to correct such Survey Defects or to have the title company commit to insure against loss or damage that may be occasioned by such exceptions or Survey Defects, and, in such event, the time of closing shall be thirty (30) days after the delivery of the commitment or the time expressly specified in Section 4A hereof, whichever is later. If the City fails to have the exceptions removed or correct any Survey Defects or in the alternative, to obtain the commitment for title insurance specified above as to such exceptions or Survey Defects within the specified time, Developer may terminate this Agreement or may elect, upon written notice to the City 47) -14- within ten (10) days after the expiration of the thirty (30) day period, to take title as it then is . If Developer does not so elect, this Agreement shall be deemed cancelled and null and void with no further liability of either party hereunder. E. General taxes shall be adjusted ratably as of the time of closing. If the amount of the current general taxes is not then ascertainable, the adjustment thereof shall be made on the basis of the amount of the most recent ascertainable taxes . The City shall pay the amount of any stamp tax imposed by state or county law or local ordinance on the transfer of title, if any, and furnish a completed real estate transfer declaration signed by the City or the City' s agent in the form required pursuant to the Real Estate Transfer Tax Act of the State of Illinois and shall furnish any declarations signed by the City or the City' s agent or meet other requirements as established by any county or local ordinance with regard to a transfer or transaction tax. 5 . Demolition of Existing Crocker Theater Building. The City agrees that as of the closing for Parcel 1 of the Redevelopment Property it shall have completed at its expense the demolition of the existing Crocker Theater building now located on Parcel 1 of the Redevelopment Property. Such demolition of the existing Crocker Theater building by the City shall include the removal of the structure, footings and foundations and the removal of all material and debris from the site. In the event the City elects to salvage portions of the architectural elements of the facade of the existing -15- . , . Crocker Theater building the Developer agrees to utilize such 47) salvaged architectural elements in an appropriate fence or other streetscape along the boundary of Parcel 1 of the Redevelopment Property on South Grove Avenue. The design of any such fencing or streetscape shall be determined and agreed to by the City and Developer as part of the development review and zoning process referred to in Section 3 hereof . 6 . Vacation of Portion of Wellington Avenue . The City agrees that as of the closing for Parcel 2 of the Redevelopment Property it shall have provided for the vacation of that portion of Wellington Avenue legally described in Exhibit B hereto. It is agreed and understood that in the event the Developer desires or requires the relocation and/or undergrounding of any public utility or public service 47) facilities which are located within said portion of the Wellington Avenue right-of-way to be vacated that any such relocation or undergrounding issues shall be identified as Conditions Precedent during the feasibility period referred to in Section 2 hereof . 7 . Acquisition of Portion of Abandoned Union Pacific Railroad Company Right-of-Way. The City agrees to attempt to acquire at its expense that portion of the abandoned Union Pacific Railroad Company right-of-way legally described in Exhibit B hereto (such portion of the abandoned Union Pacific Railroad Company right-of-way is hereinafter referred to as the "Subject Abandoned Railroad Right-of-Way") . The City shall use to the extent necessary and to the extent permitted by law its eminent domain power to acquire title to the 47) -16- Subject Abandoned Railroad Right-of-Way. In the event the City acquires title to the Subject Abandoned Railroad Right-of-Way the City shall convey title to the Subject Abandoned Railroad Right-of-Way to the Developer as part of Parcel 2 of the Redevelopment Property pursuant to the provisions of Section 4 of this agreement . In the event the City conveys title to the Subject Abandoned Railroad Right-of-Way to the Developer the Subject Abandoned Railroad Right-of-Way shall be part of Parcel 2 of the Redevelopment Property to be utilized as depicted in the Subject Redevelopment Plan, as same may be amended as provided in Section 3A hereof. In the event the City has not acquired title to the Subject Abandoned Railroad Right-of-Way line as of the scheduled closing of Parcel 2 of the Redevelopment Property then the parties agree to the following alternatives : (1) Developer may elect to proceed with the scheduled closing of Parcel 2 of the Redevelopment Property with the parties conducting a subsequent closing for the Subject Abandoned Railroad Right-of-Way after the City acquires title thereto; (2) the scheduled closing on Parcel 2 of the Redevelopment Property may be extended by mutual agreement of the parties for a reasonable amount of time to allow the City to complete the acquisition of title to the Subject Abandoned Railroad Right-of-Way Line; (3) the Subject Redevelopment Plan for Parcel 2 of the Redevelopment Property may be amended if mutually agreed to by the parties as is reasonably necessary to reflect the deletion of the Subject Abandoned Railroad Right-of-Way from Parcel 2 of the -17- Redevelopment Property; or (4) the Developer may terminate this Agreement upon written notice to the City prior to the 47) first closing date of either Parcel 1 or Parcel 2 of the Redevelopment Property. 8 . Acquisition of 122 South Grove Avenue. The City agrees to attempt to acquire at its expense the property commonly known as 122 South Grove Avenue, Elgin, Illinois and legally described in Exhibit D hereto (122 South Grove Avenue is hereinafter referred to as "122 South Grove Avenue") . The City shall use to the extent necessary and to the extent permitted by law its eminent domain power to acquire title to 122 South Grove Avenue . In the event the City acquires title to 122 South Grove Avenue the City shall convey title to 122 South Grove Avenue to the Developer pursuant to the provisions of Section 4 of this agreement. In the event the 47) City conveys title to 122 South Grove Avenue to the Developer 122 South Grove Avenue shall be part of Parcel 1 of the Redevelopment Property to be utilized as depicted in the Subject Redevelopment Plan, as same may be amended as provided in Section 3A hereof. In the event the City has not acquired title to 122 South Grove Avenue as of the scheduled closing of Parcel 1 of the Redevelopment Property then the parties agree to the following alternatives: (1) Developer may elect to proceed with the scheduled closing of Parcel 1 of the Redevelopment Property with the parties conducting a subsequent closing for 122 South Grove Avenue after the City acquires title thereto; (2) the scheduled closing on Parcel 1 of the Redevelopment Property may be extended by mutual 44) -18- I I agreement of the parties for a reasonable amount of time to allow the City to complete the acquisition of title to 122 South Grove Avenue; (3) the Redevelopment Plan for Parcel 1 of the Redevelopment Property may be amended if mutually agreed to by the parties as is reasonably necessary to reflect the deletion of 122 South Grove Avenue from Parcel 1 of the Redevelopment Property, such amendment to consist of removing such area from the planned open space of Parcel 1 of the Redevelopment Property; or (4) the Developer may terminate this agreement upon written notice to the City prior to the first closing of either Parcel 1 or Parcel 2 of the Redevelopment Property. 9 . Redevelopment for Sublect Residential Condominium Redevelopment and Subject Townhome Redevelopment . A. It is agreed and understood that the Redevelopment Property is being conveyed by the City to the Developer for the sole purpose of Developer redeveloping the Redevelopment Property and constructing thereon the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property and the Subject Residential Townhome Redevelopment on Parcel 2 of the Redevelopment Property. Developer shall cause the Redevelopment Property to be redeveloped and improved with the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property and the Subject Residential Townhome Redevelopment on Parcel 2 of the Redevelopment Property in conformance with the terms of this agreement . The redevelopment of the rRedevelopment Property shall conform in all respects with the -19- . ordinance (s) reclassifying the Redevelopment Property to a planned multiple family residence zoning district or as directed by the City as is necessary to comply with ordinances, building codes or other requirements of law. Developer shall also cause all work performed in connection with the redevelopment of the Redevelopment Property to be performed in a workmanlike manner. Except as otherwise provided in this Agreement, all costs and expenses relating to the redevelopment of the Redevelopment Property, including without limitation, the construction of the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property and the construction of the Subject Residential Townhome Redevelopment on Parcel 2 of the Redevelopment Property, shall be the responsibility of and shall be paid for by the Developer. B. Developer shall commence construction of the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property within ninety (90) days following the closing for Parcel 1 of the Redevelopment Property, weather permitting. Developer shall be deemed to have commenced construction of the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property upon initiation of the construction of the foundation of the condominium building to be constructed on Parcel 1 of the Redevelopment Property. Upon Developer commencing construction of the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property Developer shall continue with such construction in as 4111) -20- expeditious a manner as is reasonably practicable. Developer shall not encumber title to Parcel 1 of the Redevelopment Property until after Developer has commenced construction of the Subject Residential Condominium Redevelopment on such Parcel 1 of the Redevelopment Property. Developer shall complete the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property no later than twenty-four (24) months following the closing on such parcel (hereinafter referred to as the "Completion Date for the Redevelopment of Parcel 1 of the Redevelopment Property") , provided, however, that such Completion Date for the Redevelopment of Parcel 1 of the Redevelopment Property shall be extended by one (1) day for each day of which construction is delayed or stopped due to accident, strikes, shortages of materials, extreme weather, acts of God or other causes not within Developer' s reasonable control . If the Developer wishes to make a claim for an extension of the Completion Date for the Redevelopment of Parcel 1 of the Redevelopment Property the Developer shall provide the City written notice thereof within thirty (30) days after the occurrence of the event giving rise to Developer' s claim for such extension. Such claim shall advise the City of the circumstances the Developer alleges justifies an extension of time of the Completion Date for the Redevelopment of Parcel 1 of the Redevelopment Property. If adverse weather conditions are the basis for a claim for additional time, such claim shall be documented by data substantiating that weather conditions were (11114 abnormal for the period of time and could not have been -21- reasonably anticipated, and that weather conditions had an 47, adverse effect on the scheduled construction. Claims by the Developer for an extension of time for the Completion Date for the Redevelopment of Parcel 1 of the Redevelopment Property must be approved by the City Council of the City. The Subject Residential Condominium Redevelopment of Parcel 1 of the Redevelopment Property shall be deemed completed when Developer has completed construction of all buildings and site improvements, including without limitation landscaping, and has obtained a final occupancy permit for at least one of the residential condominium units to be constructed on Parcel 1 of the Redevelopment Property. C. The deed of conveyance conveying Parcel 1 of the Redevelopment Property to Developer shall contain a provision making such conveyance subject to the terms and 414) obligations of this Development Agreement. In the event the Developer shall have failed to commence construction of the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property on the date specified in this agreement the City may file suit within the Circuit Court for the Sixteenth Judicial Circuit, Kane County, Illinois, for a determination that Developer has so breached this agreement and therein may pursue any and all available remedies at law, equity or otherwise including but not limited to providing for a judgment and order terminating the Developer' s rights in and to the Redevelopment Property and require the conveyance back to the City of the Developer' s rights, title and/or interest in or to the Redevelopment Property free and clear of all 47) -22- rights of the Developer. In the event the Developer fails to complete the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property by the Completion Date for Redevelopment of Parcel 1 on the Redevelopment Property, as such date may be extended pursuant to Section 9B hereof, or Developer is otherwise in default of a material term or condition of this agreement, the City may file suit within the Circuit Court for the Sixteenth Judicial Circuit, Kane County, Illinois, for a determination that Developer has so breached this agreement and therein may pursue any and all available remedies at law, equity or otherwise, but not including any remedy of conveyance or reversion of Parcel 1 of the Redevelopment Property. D. Developer shall commence construction of the Subject Residential Townhome Redevelopment on Parcel 2 of the Redevelopment Property within ninety (90) days following the closing for Parcel 2 of the Redevelopment Property, weather permitting. Developer shall be deemed to have commenced construction of the Subject Residential Townhome Redevelopment on Parcel 2 of the Redevelopment Property upon the commencement of the construction of foundations for the townhomes to be constructed on Parcel 2 of the Redevelopment Property. Upon Developer commencing construction of the Subject Residential Townhome Redevelopment on Parcel 2 of the Redevelopment Property Developer shall continue with such construction in as expeditious a manner as is reasonably practicable . Developer shall not encumber title to Parcel 2 of the Redevelopment Property until after Developer has -23- commenced construction of the Subject Residential Townhome47) Redevelopment on such Parcel 2 of the Redevelopment Property. Developer shall complete the Subject Residential Townhome Redevelopment on Parcel 2 of the Redevelopment Property no later than sixty (60) months following the closing on such parcel (hereinafter referred to as the "Completion Date for the Redevelopment of Parcel 2 of the Redevelopment Property") , provided, however, that such Completion Date for the Redevelopment of Parcel 2 of the Redevelopment Property shall be extended by one (1) day for each day of which construction is delayed or stopped due to accident, strikes, shortages of materials, extreme weather, acts of God or other causes not within Developer' s reasonable control . If the Developer wishes to make a claim for an extension of the Completion Date 4") for the Redevelopment of Parcel 2 of the Redevelopment Property the Developer shall provide the City written notice thereof within thirty (30) days after the occurrence of the event giving rise to Developer' s claim for such extension. Such claim shall advise the City of the circumstances the Developer alleges justifies an extension of time of the Completion Date for the Redevelopment of Parcel 2 of the Redevelopment Property. If adverse weather conditions are the basis for a claim for additional time, such claim shall be documented by data substantiating that weather conditions were abnormal for the period of time and could not have been reasonably anticipated, and that weather conditions had an adverse effect on the scheduled construction. Claims by the Developer for an extension of time for the Completion Date for 4") -24- the Redevelopment of Parcel 2 of the Redevelopment Property must be approved by the City Council of the City. The Subject Residential Townhome Redevelopment of Parcel 2 of the Redevelopment Property shall be deemed completed when Developer has completed construction of all buildings and site improvements, including without limitation landscaping, and has obtained final occupancy permits for all of the residential townhomes to be constructed on Parcel 2 of the Redevelopment Property. E. The deed of conveyance conveying Parcel 2 of the Redevelopment Property to Developer shall contain a provision making such conveyance subject to the terms and obligations of this Development Agreement . In the event Developer shall have failed to commence construction of the Subject Residential Townhome Redevelopment on Parcel 2 of the Redevelopment Property on the date specified in this agreement the City may file suit within the Circuit Court for the Sixteenth Judicial Circuit, Kane County, Illinois, for a determination that Developer has so breached this agreement and therein may pursue any and all available remedies at law, equity or otherwise including but not limited to providing for a judgment and order terminating the Developer' s rights in and to Parcel 2 of the Redevelopment Property and require the conveyance back to the City of Developer' s rights, title and/or interests in or to Parcel 2 of the Redevelopment Property free and clear of all rights of the Developer. In the event the Developer fails to complete the Subject Residential Condominium Redevelopment on Parcel 2 of the -25- . A Redevelopment Property by the Completion Date for 41) Redevelopment of Parcel 2 on the Redevelopment Property, as such date may be extended pursuant to Section 9D hereof, or Developer is otherwise in default of a material term or condition of this agreement, the City may file suit within the Circuit Court for the Sixteenth Judicial Circuit, Kane County, Illinois, for a determination that Developer has so breached this agreement and therein may pursue any and all available remedies at law, equity or otherwise, but not including any remedy of conveyance or reversion of Parcel 2 of the Redevelopment Property. 10 . Removal of Parcel 2 of the Redevelopment Property from the Flood Plain. The City agrees that as of the closing date for Parcel 2 of the Redevelopment Property it shall have 47) provided at its expense for the regrading of Parcel 2 of the Redevelopment Property so as to raise the grade of Parcel 2 of the Redevelopment Property above the current elevation of the one hundred year flood plain. In the event the City has not completed such regrading of Parcel 2 of the Redevelopment Property as of the scheduled closing of Parcel 2 of the Redevelopment Property then the parties agree that the scheduled closing date on Parcel 2 of the Redevelopment Property shall be extended for a reasonable period of time not to exceed one hundred and eighty (180) days to allow the City to complete such regrading of Parcel 2 of the Redevelopment Property. The following specifications will be followed by the City when filling Parcel 2 of the Redevelopment Property: A) -26- A. Fill will be compacted to 95% of the maximum density obtained with the Standard Proctor Test Method issued by the American Society for Testing and Materials (ASTM Standard D-698) . This requirement applies to fill pads prepared for residential or commercial structure foundations and does not apply to fill areas intended for other uses. B. All structural fill shall be clean, well graded granular materials placed in layers of not more than 6" in thickness, at moisture contents at or above optimum and compacted to the minimum density of 90% of the standard proctor. C. The contractor performing the fill work will thoroughly break and turn soil underlying the area to be filled to a depth of 6" before deposition of granular fill material . D. Structural fill shall not be placed on frozen ground. 11 . Environmental. The City agrees at its expense to investigate and if necessary remediate environmental conditions on the Redevelopment Property pursuant to the State of Illinois Site Remediation Program and to obtain a No Further Remediation Letter (s) for a residential standard for Parcel 1 and Parcel 2 of the Redevelopment Property. Developer agrees to reasonably cooperate with the City in the City' s efforts to obtain a No Further Remediation Letter (s) for Parcel 1 and Parcel 2 of the Redevelopment Property including, but not limited to, providing all plans and other documentation regarding the Subject Residential Condominium -27- Redevelopment on Parcel 1 of the Redevelopment Property and47) the Subject Residential Townhome Redevelopment on Parcel 2 of the Redevelopment Property. In the event the City has not acquired the No Further Remediation Letter (s) for Parcel 1 and Parcel 2 of the Redevelopment Property as of the scheduled closing for the effected parcel of the Redevelopment Property then the parties agree to the following alternatives : (1) the scheduled closing on the effected parcel on the Redevelopment Property may be extended by mutual agreement of the parties for a reasonable amount of time to allow the City to obtain the No Further Remediation Letter (s) for the effected parcel of the Redevelopment Property; or (2) either party may terminate this agreement upon written notice to the other party prior to the first scheduled closing date of either Parcel 1 or Parcel 2 of the Redevelopment Property. 47) 12 . Public Utilities. The City represents to the Developer that water, sanitary sewer and storm sewer utilities are located in the vicinity of the Subject Redevelopment Property as set forth in the October 5, 2001 memorandum attached hereto as Exhibit E. 13 . Assessment of Redevelopment Property. The City and the Developer agree that the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property and the Subject Residential Townhome Redevelopment on Parcel 2 of the Redevelopment Property should be assessed for general real estate taxes in the manner provided by Illinois Compiled Statutes as they may be amended from time to time. This provision shall not be deemed to prevent Developer or its 47) -28- successors or permitted assigns from appealing or challenging assessments against the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property or the Subject Residential Townhome Redevelopment on Parcel 2 of the Redevelopment Property which Developer or its successors or permitted assigns consider to be contrary to law. The Developer agrees that as long as any tax increment bonds are outstanding the Developer and no person affiliated with the Developer or any successor or permitted assign of the Developer shall do any of the following : A. Seek to reduce the total equalized assessed valuation of the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property below a total of rft. $2, 500, 000 . 00 upon completion of the redevelopment improvements; or B. Seek to reduce the total equalized assessed valuation of the Subject Residential Townhome Redevelopment on Parcel 2 of the Redevelopment Property below a total of $8, 500, 000 . 00 upon completion of the redevelopment improvements; or C. Request a full or partial exemption for general real estate taxes for any portion of the Redevelopment Property; or D. Request an assessment at a value not otherwise permitted by law. It is agreed that the transfer of common areas to a condominium or other association and the resulting assessed valuation of $1 per Illinois statutes shall not be deemed a -29- violation of the foregoing provisions . It is further agreed 47) that the provisions of this section shall not be deemed or construed as a guarantee by the Developer of a total equalized assessed valuation of the Redevelopment Property. 14 . Compliance with Laws. Notwithstanding any other provisions of this agreement it is expressly agreed and understood by the Developer and the City that the redevelopment of the Redevelopment Property including without limitation Developer' s construction of condominium units and townhomes thereon shall be in accordance with all applicable federal, state, city and other requirements of law. Developer shall also at its expense procure all permits and licenses, pay all charges and fees, and give all notices necessary and incident to the due and lawful prosecution of the work 47) necessary to provide for the redevelopment of the Redevelopment Property as described in this agreement . 15 . Survival . All representations, warranties, indemnities and covenants made by the parties under this agreement, the terms of this agreement and the obligations of the parties under this agreement shall be deemed re-made as of the closings and shall survive the closings, and the remedies for the breach thereof shall survive the closings and shall not be merged into the closing documents . 16 . Default . The City and Developer agree that, in the event of a default by other party, the other party shall, prior to taking any such action as may be available to it, provide written notice to the defaulting party stating that they are giving the defaulting party thirty (30) days within 47) -30- . • which to cure such default . If the default shall not be cured within the thirty (30) day period aforesaid, then the party giving such notice shall be permitted to avail itself of remedies to which it may be entitled under this agreement . The provisions of this paragraph shall not be deemed or construed to delay or toll the imposition of liquidated damages provided for in this agreement . 17 . Remedies . If either party fails or refuses to carry out any of the material covenants or obligations hereunder, the other party shall be entitled to pursue any and all available remedies as specified herein or otherwise available at law, equity or otherwise. Notwithstanding the foregoing or anything else to the contrary in this agreement, no action shall be commenced by the Developer against the City for monetary damages . Venue for the resolution of any disputes or the enforcement of any rights pursuant to this agreement shall be in the Circuit Court of Kane County, Illinois . 18 . Time . Time is of the essence of this agreement . 19 . Notices . All notices shall be required to be in writing and shall be served on the parties at the addresses following their signatures . The mailing of a notice by registered or certified mail, return receipt requested, or personal delivery by courier service shall be sufficient service . 20 . Interpretation. This agreement shall be construed, and the rights and obligations of the City and Developer hereunder shall be determined in accordance with the laws of rik -31- 4 the State of Illinois without reference to its conflict of 47) laws rules. 21 . Relationship of the Parties. This agreement shall not be deemed or construed to create an employment, joint venture, partnership or other agency relationship between the parties hereto. 22 . Failure to Enforce Provisions. The failure by a party to enforce any provision of this agreement against the other party shall not be deemed a waiver of the right to do so thereafter. 23 . Amendments . This agreement may be modified or amended only in writing signed by both parties hereto, or their permitted successors or assigns as the case may be. 24 . Entire Agreement. This agreement contains the entire agreement and understandings of the parties hereto with respect to the subject matter as set forth herein, all prior agreements and understandings having been merged herein and extinguished hereby. 25. Joint and Collective Work Product. This agreement is and shall be deemed and construed to be a joint and collective work product of the City and the Developer, and, as such, this agreement shall not be construed against the other party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, in the terms and provisions contained herein. 26 . Assignment . This agreement shall be binding on the parties hereto and their respective successors and permitted 47) -32- assigns. This agreement and the obligations herein may not be assigned without the express written consent of each of the parties hereto, which consent may be withheld at the sole discretion of either of the parties hereto. Notwithstanding the preceding sentence, the Developer may assign its rights under this agreement to a corporation, partnership, limited liability company or other form of business association formed or authorized to do business in the State of Illinois provided that not less than fifty (50%) percent of the ownership interest is owned, directly or indirectly, by Raymond E. Plote and members of his immediate family and further provided that no such assignment will relieve the Developer of its obligations hereunder. 27 . No Conflicting Interests. Developer hereby represents and warrants that the Developer, nor any associated person or organization, presently owns or has any beneficial interest in the Redevelopment Property being conveyed to Developer or entitled to receive any income from the subject Redevelopment Property. In compliance with 50 ILCS 105/3 . 1, Developer shall provide the City with a written statement subscribed by an owner, authorized trustee, corporate official or managing agent, under oath, disclosing the identity of every person having an interest, real or personal, in the development group and every shareholder entitled to receive more than seven and one/half (7 1/2%) percent of the total distributable income of any corporation which will have an interest, real or personal , in such property upon the -33- ' 4 4 • acquisition of any interest by the Developer in the 47) Redevelopment Property. IN WITNESS WHEREOF, the parties hereto have entered into and executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal PAR DEVELOPMENT GROUP, INC. , an corporation Illinois corporation .00m-* ft6 By AWAMbr BY ! A Mayor Its s Attest : Attest : 41.4.,,Ct City Clerk Address : Address : City of Elgin Par Development Group, Inc . c/o City Manager 1061 E. Main Street, Suite 100 150 Dexter Court East Dundee, IL 60118 47) Elgin, IL 60120-5555 Attention: David R. Plote and Todd Lipschutz with a copy of any notice to: with a copy of any notice to: William A. Cogley Warren R. Fuller Corporation Counsel Fuller and Berres City of Elgin Attorneys at Law 150 Dexter Court 69 S . Barrington Road Elgin, IL 60120-5555 South Barrington, IL 60010 47) -34- (lek. EXHIBIT A Legal Description of Parcel 1 of the Redevelopment Property: That part of Lot 13 lying easterly of the easterly line of Riverside Drive in Block 21 of the Original Town of Elgin, on the east side of the Fox River, in the City of Elgin, Kane County, Illinois. Commonly known as 96 S. Grove Avenue, Elgin, Kane County, Illinois. Permanent Index Number 06-14-433-031 . r r M 47, EXHIBIT B Legal Description of Parcel 2 of the Redevelopment Property: That part of the Southwest Quarter of Section 13, Township 41 North, Range 8 East of the Third Principal Meridian described as follows: Lots 3 through 18, both inclusive, in Block 1 of O. Davidson's Addition to Elgin, in the City of Elgin, Kane County, Illinois. ALSO Lots 1 through 16, both inclusive, in Block "A" of Davidson's Grove Avenue Subdivision, in the City of Elgin, Kane County, Illinois. Commonly known as property bounded by Lake Street on the south, South Grove Avenue on the west, Prairie Street on the north and Wellington Avenue on the east, Elgin, Kane County, Illinois. Permanent Index Number 06-13-352-038 and also That portion of to be vacated Wellington Avenue lying south of 47) the south line of Prairie Street and north of the north line of Lake Street in the southwest quarter of Section 13 , Township 41 North, Range 8 East of the Third Principal Meridian, in the City of Elgin, Kane County, Illinois. and also That part of the abandoned Union Pacific Railroad Company Right-of-Way as presently exists bounded on the north by the south line of Prairie Street and bounded on the southeast by the southeast line extended southwesterly of William F. Sylla's Resubdivision (being also a northwesterly line of Lake Street) in the City of Elgin, Kane County, Illinois. Part of Permanent Index Number 06-13-502-008 . 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C.0 W C NW. I • C Cion) `c M `c `c `c ". CrJ Omz c c U C/3 CA C, CA CA C/] = ^° a C C C C C O t :o• 0 ' - N C • o C • cti N N .-.. .--. rZ C a i EI '" s ci P v G -c c i C U J CJ e. 0 or cz, et �o c- i O O + + cA ,.- c o .c c, t�.l c� CJ U 0 V CG c o X. c J 3 cn Cna] 4� 4..1 Cc -- a :75C < F. C . ^ C a^. N N ': C , E- 1 N .—. ..._ NNM F.. p,,, — el en v, 1 z Pat L G x f I _ ir w1 .. .1 t _ .1 - •+� .1 •^. r� 1 n1 .ems rik EXHIBIT D Legal description for 122 South Grove Avenue: Parcel 1 : That part of Lot 15 in Block 21 of James T. Gifford' s Original plat of Elgin, Kane County, Illinois, described as follows: Commencing at a point on the Northeasterly line of Lot 14 in said Block 21, that is 22 . 0 feet Southeasterly of the Northeast corner of said Lot 14; thence Southeasterly along said Northeasterly line and along the Northeasterly line of said Lot 15, 195 .38 feet to a point of intersection of said Northeasterly line with the Northwesterly line of a 1 . 0 foot wide party wall extended Northeasterly for the point of beginning; thence Southwesterly along said Northwesterly line extended Northeasterly, and along said Northwesterly line and along said Northwesterly line extended Southwesterly, being along a line which forms an angle of 89 degrees 57 minutes to the right with the prolongation of the last described course, 81 .08 feet to a point on the Southerly line of said Lot 15; thence Easterly along said Southerly line which forms an angle of 147 degrees 02 minutes to the left with the prolongation of the last described course, to a line drawn Southwesterly as measured at right angles to the Northeasterly line of said Lot topi, 15, from a point on said Northeasterly line which is 154 feet Southeasterly of the Northeasterly corner of said lot; thence Northeasterly along said line to the Northeasterly line of said lot; thence Northwesterly along said Northeasterly line 2 . 62 feet to the point of beginning, in the City of Elgin, • Kane County, Illinois. Parcel 2 : That part of Lot 15 in Block 21 of the Original Town of Elgin, Kane County, Illinois, as laid out by James T. Gifford, described as follows : Beginning at a point on the Easterly line of said lot and the Westerly line of Grove Avenue (formerly River Street) , which is 154 feet Southerly on said line from the Northeasterly corner of said lot , thence Southwesterly at right angles with Grove Avenue and along the Southerly line of a portion of said lot heretofore conveyed to William H. Hintze to the North line of Prairie Street, and the South line of said lot, thence East along the South line of said lot to the Southeast corner of said lot and to the Westerly line of Grove Avenue, and thence Northwesterly along the Westerly line of Grove Avenue and the Easterly line of said lot about 50 feet and 6 inches to the place of beginning, Kane County, Illinois. Commonly known as 122 S . Grove Avenue, Elgin, Kane County, Illinois . Permanent Index No. 06-14-433-041 . EXHIBIT E . • '•" —City of Elgin Memorandum .er 5, 2001 47) TO: Bill Cogley, Corporation Counsel FROM: Ray Moller, Director of Economic Development SUBJECT: Public Utility Capacity for Par Development South Grove Residential Project As per your request, I spoke with Joe Evers, Elgin City Engineer, regarding the availability of various utilities at their proposed project on South Grove Avenue. The information in the utility can be summarized as follows: 1. Water *Wellington Street 2" line, % block North of Lake Street *Grove Avenue between 8" line Prairie Street and Lake Street *Crocker Theater Site 10" line 47) *Prairie Street between 12" line South Grove and Wellington Street 2 . Storm Townhome Site New storm sewer in Sewer the parking lot Crocker Theater Site Storm sewer in existing parking lot 3 . Sanitary Townhome Site 18" line at south Sewer Property line on Crocker Theater Site 30" interceptor sewer lines on Riverside Drive If you require additional information, please contact me. Sinc, Raymond H. Moller Director of Economic Development Business Services 44) dw Mum E . • DRAFT 2/13/04 AMENDMENT TO DEVELOPMENT AGREEMENT THIS AMENDMENT TO DEVELOPMENT AGREEMENT is made and entered into this O./ day of 1/0_,C4L.J. , 2004, by and between the CITY OF ELGIN, an Illinois municipal corporation, (hereinafter referred to as the "City") , and PAR DEVELOPMENT, INC. , an Illinois corporation, (hereinafter referred to as the "Developer") . WITNESSETH WHEREAS, the City and Developer have previously entered into a development agreement dated February 13, 2002 providing for the redevelopment of the city-owned property commonly known as 96 S . Grove Avenue and the city-owned property lying within the area bounded by Lake Street on the south, South Grove Avenue on the west, Prairie Street on the north and Wellington Avenue on the east (such development agreement is hereinafter referred to as the "Subject Development Agreement") ; and WHEREAS, the City and the Developer have determined it to be in their best interests to provide for certain amendments to the Subject Development Agreement pursuant to the terms and conditions of this Amendment to Development Agreement. NOW, THEREFORE, for and in cpnsideration of the mutual promises and undertakings contained herein, and the mutual promises and undertakings as contained in the Subject Development Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: • . . • A) 1 . That the City and the Developer agree that the Subject Development Agreement be and is hereby amended as follows : A. Paragraph 4A of the Subject Development Agreement be and is hereby amended by amending the last sentence thereof to read as follows: "The time of closing for Parcel 1 of the Redevelopment Property shall be within sixty (60) days of the latter of : (1) the City completing the acquisition of 122 S. Grove Avenue; (2) the City obtaining pursuant to the State of Illinois Site Remediation Program a No Further Remediation Letter for a residential standard for Parcel 1 of the Redevelopment Property as described in Paragraph 11 hereof; and (3) the completion of the demolition and removal of the existing Crocker Theatre building as provided in paragraph 5 following. The closing for Parcel 2 of the Redevelopment Property shall be in phases . Parcel A of Parcel 2 of the Redevelopment Property is legally described in 417) Exhibit B-1 attached hereto (hereinafter referred to as "Parcel A of Parcel 2 of the Redevelopment Property") . Parcel B of Parcel 2 of the Redevelopment Property is legally described in Exhibit B-2 attached hereto (hereinafter referred to as "Parcel B of Parcel 2 of the Redevelopment Property") . The time of closing for Parcel A of Parcel 2 of the Redevelopment Property shall be within sixty (60) days of the latter of the City obtaining a letter of map revision as described in Paragraph 10 hereof providing that Parcel A of Parcel 2 of the Redevelopment Property has been removed from the 100 year flood plain, the City obtaining pursuant to the State of Illinois Site Remediation Program a No Further Remediation Letter for a residential standard for Parcel A of Parcel 2 of the Redevelopment Property as described in Paragraph 11 hereof, and the completion of the Project identified in Exhibit F hereto as applicable to said Parcel A of Parcel 2 of the Redevelopment Property in accordance with plans and specifications referred to in Exhibit F. The time of closing for Parcel B of Parcel 2 of the Redevelopment Property shall be within sixty (60) days of the latter of the City obtaining a letter 2 . . eft. of map revision as described in Paragraph 10 hereof providing that Parcel B of Parcel 2 of the Redevelopment Property has been removed from the 100 year flood plain, the City obtaining pursuant to the State of Illinois Site Remediation Program a No Further Remediation Letter for a residential standard for Parcel B of Parcel 2 of the Redevelopment Property as described in Paragraph 11 hereof, and the completion of the Project - identified in Exhibit F hereto as applicable to said Parcel B of Parcel 2 of the Redevelopment Property in accordance with plans and specifications referred to in Exhibit F" B. Paragraph 10 of the Subject Development Agreement be and is hereby amended to read as follows : "10. Removal of Parcel 2 of the Redevelopment Property from the Flood Plain. It is agreed that as of the closing dates for Parcel A of Parcel 2 of the Redevelopment Property and for Parcel B of Parcel 2 of the Redevelopment Property that such parcels shall have been filled and regraded in order to obtain a letter of map revision based on fill from the Federal Emergency Management Agency removing the majority of Parcel 2 of the Redevelopment Property from the 100 year flood plain. Such letter of map revision shall be based upon the Conditional Letter of Map Revision Based on Fill issued by the Federal Emergency Management Agency dated July 16, 2003 Case Number 03-05-2781C (hereinafter referred to as the "CLOMR-F") . Developer agrees to and shall provide for such filling and regrading of Parcel 2 of the Redevelopment Property through its affiliated company Plote Construction, Inc. pursuant to and according to the contract which shall be entered into between the City and Plote Construction, Inc. attached hereto as Exhibit F. It is agreed that Parcel 2 of the Redevelopment Property shall be filled and regraded to the specifications, grades and elevations as provided in the CLOMR-F, as provided' in the Haeger Engineering Plans for such property dated October 4, 2002, and as provided in the contract to be entered into between the City and Plote Construction Inc. attached hereto as Exhibit F. In the event of any conflict between the terms and provisions of the CLOMR-F, the Haeger 3 . . Engineering Plans and/or the contract attached 47) hereto as Exhibit F, the terms and provisions of the CLOMR-F shall control . Such filling and regrading work on Parcel 2 of the Redevelopment Property shall be done in two phases as described in such contract . Such filling and regrading work on Parcel 2 of the Redevelopment Property shall also include footing preparations as described in such contract. Such contract between the City and Plote Construction Inc. attached hereto as Exhibit F shall be entered into by the City and Plote Construction Inc. concurrently with the City' s and Developer's entry into the Amendment to Development Agreement." C. Paragraph 11 of the Subject Development Agreement be and is hereby amended to read as follows: "11 . Environmental . The City agrees at its • expense to investigate and if necessary remediate environmental conditions on the Redevelopment Property pursuant to the State of Illinois Site Remediation Program and to obtain a No Further 47) Remediation Letter(s) for a residential standard for Parcel 1 and Parcel 2 of the Redevelopment Property. Developer agrees to reasonably cooperate with the City in the City's efforts to obtain a No Further Remediation Letter(s) for Parcel 1 and Parcel 2 of the Redevelopment Property including, but not limited to, providing all plans and other documentation regarding the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property and the Subject Residential Townhome Redevelopment on Parcel 2 of the Redevelopment Property. The City agrees to excavate and remove contaminated soils from Parcel 2 of the Redevelopment Property as provided in the Remediation Objectives Report and Remedial Action Plan for Townhome Redevelopment Site, Elgin, Illinois prepared by Terracon, dated June, 2003, as amended by correspondence to the Illinois Environmental Protection Agency dated August 25, 2003 . 4) 4 . . elk D. Paragraph 12 of. the Subject Development Agreement be and is hereby amended by adding the following thereto to read as follows: "The City will grant to the Developer such temporary and permanent easements and other rights of access over portions of Parcel 2 of the Redevelopment Property which may be reasonably necessary to provide utility service to Parcel A and Parcel B of Parcel 2 of the Redevelopment Property including such interim installation as may be occasioned by the separate closings contemplated by this Amendment Agreement. " E. A new paragraph 28 is hereby added to the Subject Development Agreement to read as follows: "28 . Impact Fees. In consideration of the Developer at its cost being responsible for the handling and disposal of any additional contaminated soils found on the site including but (1111k not limited to such soils which are disposed of off-site, and in consideration of the Developer at its cost being responsible for the removal of the existing asphalt pavement, concrete curb and gutter, sidewalks and parking lot foundations located upon Parcel 2 of the Redevelopment Property, the parties agree that Developer shall pay with respect to Parcel 2 of the Redevelopment Property one-half of the fees identified in Title 17 of the Elgin Municipal Code, 1976, as amended. It is further agreed and understood that the Developer shall pay with respect to Parcel 1 of the Redevelopment Property the full amount of the fees provided for in Title 17 of the Elgin Municipal Code, 1976, as amended. It is further agreed and understood that except as specifically provided in this paragraph regarding paying one-half of the fees provided for in Title 17 of the Elgin Municipal Code with respect to Parcel 2 of the Redevelopment Property, Developer shall pay all other charges and fees as required by this Agreement and/or as otherwise required by law. " F. A new paragraph 29 be and is hereby added to the Subject Development Agreement to read as follows: 5 A "29. Sales Trailer. The City and Developer agree 47) that. upon the execution of this Amendment to Development Agreement that the Developer shall be permitted to place at the south end of Parcel B of Parcel 2 of the Redevelopment Property a sales trailer to be utilized by the Developer solely for sales promotions for the townhomes and condominiums to be constructed on the Redevelopment Property. The construction and use of the sales trailer shall be in compliance with all applicable legal requirements. " G. A new paragraph 30 be and is hereby added to the Subject Development Agreement to read as follows : "30 . Soil Substitution/Storage of Materials. In consideration of the obligation imposed upon the Developer pursuant to paragraph 28 preceding, the City agrees that : A. To the extent permitted by applicable Illinois Environmental Protection Agency regulations in connection with the issuance of No Further Remediation letter (s) for Parcel 2 of the Redevelopment Property, the City and the Developer agree to coordinate the 47) timing of the excavation of the environmentally unsuitable soil located in the northwest corner of Parcel B of Parcel 2 of the Redevelopment Property ("Parcel B Excavation Work") in such a manner which recognizes public safety as well as the Developer' s site work and development activities on Parcel 2 of the Redevelopment Property. Notwithstanding the foregoing, it is agreed and understood that the Parcel B excavation Work will occur not later than June 30, 2004 . B. Prior to the conveyance of Parcel B of Parcel 2 of the Redevelopment Property to the Developer, the Developer may stockpile earthen materials excavated from Parcel A of Parcel 2 of the Redevelopment Property on that portion of Parcel B of Parcel 2 of the Redevelopment Property identified as the vacated Wellington Avenue right-of-way to be utilized for filling the area affected by the Parcel B Excavation Work. The precise location of such stockpiling upon the portion of Parcel B of Parcel 2 of the Redevelopment Property identified as the vacated Wellington Avenue right-of- way shall be as agreed by the City and Developer. 47) 6 • • C. The modifications made pursuant to this paragraph 30 are based upon the No Further Remediation Letter applicable to Parcel B of Parcel 2 allowing the retention of such environmentally unsuitable soils on Parcel 2 to remain thereon rather than removal to an approved dump site. D. The City' s contracts with the firms currently.engaged to perform the Parcel B Excavation Work and Exhibit F hereto will be revised by the City, if required, to conform with the provisions of this paragraph 30 . E. Prior to the conveyance of Parcel B of Parcel 2 of the Redevelopment Property to the Developer, the Developer shall be allowed to store construction materials to be utilized on Parcel A of Parcel 2 of the Redevelopment Property in the area of the Redevelopment Property identified as the vacated Wellington Avenue right-of- way. " 2 . That the City and the Developer agree that upon entry into this Amendment to Development Agreement that all of the Conditions Precedent have been satisfied and are hereby waived except conditions of title and survey applicable to each of the respective closings, the completion of the work pursuant to Exhibit F, the continuing availability of utility service to the respective parcels and the continuing compliance and completion of the matters contemplated by the Letters of Map Revision and the environmental matters contemplated by the No Further Remediation letters identified herein. 3 . That except as specifically amended in this Amendment to Development Agreement the Subject Development Agreement shall remain in full force and effect. r 7 . . • . . 4 . That in the event of any conflict between the terms and 47) provisions of the Subject Development Agreement and the terms and provisions of this Amendment to Development Agreement the terms and provisions of this Amendment to Development Agreement shall control . IN WITNESS WHEREOF, the parties hereto have entered into and executed this Amendment to Development Agreement on the date and year first written above. CITY OF ELGIN, a municipal PAR DEVELOPMENT GROUP, INC. , an corporation Illinois corp•ration 1 By _ r/ .#0!" 0, -dea....4/ By ayor Its Attest : City Clerk F:\Legal Dept\Agreement\Development Agr-Par-96 S Grove-Amendment 2-13-04-redlined.doc 4) 8 • fek EXHIBIT B-1 PARCEL A OF PARCEL 2 LOTS 6 THROUGH 15 INCLUSIVE AND PART OF LOTS 5 AND 16 IN BLOCK 1 OF 0. DAVIDSON'S ADDITION TO ELGIN, BEING A SUBDIVISION OF PART OF THE SOUTHWEST QUARTER OF SECTION 13, TOWNSHIP 41 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN, ALSO THAT PART OF WELLINGTON AVENUE (FORMERLY RAILROAD AVENUE) AND LAKE STREET NOW VACATED, ALSO THAT PART OF CHICAGO AND NORTHWESTERN RAILROAD COMPANY PROPERTY (NOW OWNED BY THE CITY OF ELGIN) , ALL OF THE ABOVE FALLS WITHIN THE AFORESAID SOUTHWEST QUARTER OF SECTION 13 DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWEST CORNER OF AFORESAID BLOCK 1 OF O. DAVIDSONS ADDITION TO ELGIN; THENCE NORTH 37 DEGREES 49 MINUTES 11 SECONDS WEST, ALONG THE SOUTHWESTERLY LINE OF SAID BLOCK 1, ALSO BEING THE NORTHEASTERLY LINE OF GROVE AVENUE, A DISTANCE OF 351. 00 FEET; THENCE NORTH 52 DEGREES 26 MINUTES 36 SECONDS EAST, PARALLEL TO THE SOUTHEASTERLY LINE OF AFORESAID BLOCK 1 IN O. DAVIDSONS ADDITION TO ELGIN, A DISTANCE OF 365 .38 FEET TO THE SOUTHWESTERLY LINE OF SYLLA PLACE AS PLATTED IN WILLIAM F. SYLLA' S RE- SUBDIVISION, BEING A SUBDIVISION OF PART OF AFORESAID SECTION 13 ; THENCE SOUTH 37 DEGREES 43 MINUTES 37 SECONDS EAST, ALONG SAID SOUTHWESTERLY LINE OF SYLLA PLACE AND THE SOUTHWESTERLY LINE OF rLOT 11 IN AFORESAID WILLIAM F. SYLLA' S RE-SUBDIVISION AND THE SOUTHEASTERLY EXTENSION OF SAID LOT 11, A DISTANCE OF 326 .70 FEET; THENCE SOUTH 37 DEGREES 18 MINUTES 47 SECONDS WEST, A DISTANCE OF 93 .11 FEET TO A POINT ON THE NORTHEASTERLY EXTENSION OF THE SOUTHEASTERLY LINE OF AFORESAID BLOCK 1, IN 0. DAVIDSONS ADDITION, SAID POINT BEING 10. 06 FEET, AS MEASURED ALONG SAID EXTENSION, NORTHEASTERLY OF THE SOUTHEASTERLY CORNER OF SAID BLOCK 1; THENCE SOUTH 52 DEGREES 26 MINUTES 36 SECONDS WEST, ALONG AFORESAID NORTHEASTERLY EXTENSION AND THE SOUTHEASTERLY LINE OF SAID BLOCK 1 ALSO BEING THE NORTHWESTERLY LINE OF LAKE STREET, A DISTANCE OF 274 .86 FEET TO THE POINT OF BEGINNING, BEING SITUATED IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS AND CONTAINING 127, 054 . 72 SQUARE FEET MORE OR LESS. r . . • . • • • EXHIBIT B-2 PARCEL B OF PARCEL 2 LOTS 3,4,.17, 18 AND PART OF LOTS'S AND 16 IN BLOCK 1 OF 0.DAVIDSONS ADDITION TO ELGIN,BEING A SUBDIVISION OF PART OF THE SOUTHWEST QUARTER OF SECTION 13,TOWNSHIP 41 NORTH,RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN ALSO LOTS 1 THROUGH 16 INCLUSIVE AND VACATED ALLEY IN BLOCK"A"OF DAVIDSON'S GROVE AVENUE SUBDIVISION,BEING A SUBDIVISION OF SAID SOUTHWEST QUARTER OF SECTION 13,ALSO THAT PART OF WELLINGTON AVENUE(FORMERLY RAILROAD AVENUE)NOW VACATED,ALSO'THAT PART OF CHICAGO AND NORTHWESTERN RAILROAD COMPANY PROPERTY(NOW OWNED BY THE CITY OF ELGIN),ALL OF THE ABOVE FALLS WITHIN THE AFORESAID SOUTHWEST QUARTER OF SECTION 13 DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHWEST CORNER OF AFORESAID BLOCK 1 OF 0. DAVIDSONS ADDITION TO ELGIN;THENCE NORTH 37 DEGREES 49 MINUTES •Ii SECONDS WEST,ALONG THE SOUTHWESTERLY LINE OF SAID BLOCK 1 ALSO BEING THE NORTHEASTERLY LINE OF GROVE AVENUE,A DISTANCE OF 351.00 FEET FOR THE POINT OF BEGINNING;THENCE CONTINUING • NORTH 37 DEGREES 49 MINUTES 11 SECONDS WEST,ALONG SAID • 41) SOUTHWESTERLY LINE OF BLOCK 1 AND THE SOUTHWESTERLY LINE OF AFORESAID BLOCK"A"IN DAVIDSON'S GROVE AVENUE SUBDIVISION,A DISTANCE OF 442.18 FEET TO A ANGLE IN SAID SOUTHWESTERLY LINE; THENCE NORTH 33 DEGREES 52 MINUTES 42 SECONDS WEST,ALONG SAID SOUTHWESTERLY LINE OF BLOCK"A",A DISTANCE OF 70.42 FEET TO THE = NORTHWEST CORNER OF BLOCK"A";THENCE NORTH 89 DEGREES 26 - MINUTES 44 SECONDS EAST,ALONG THE NORTH LINE OF SAID BLOCK "A" ALSO BEING THE SOUTH LINE OF PRAIRIE STREET AND THE EASTERLY .EXTENSION OF SAID SOUTH LINE, A DISTANCE OF 45351 FEET TO THE • MOST WESTERLY CORNER OF LOT 1 IN WILLIAM F. SYLLA'S RE- • SUBDIVISION,BEING A SUBDIVISION OF PART OF AFORESAID SECTION 13; THENCE SOUTH 37 DEGREES 43 MINUTES 37 SECONDS EAST,ALONG THE SOUTHWESTERLY LINE OF SAID LOT 1 AND THE SOUTHWESTERLY LINE OF SYLLA PLACE AS PLOTTED IN AFORESAID WILLIAM F. SYLLA'S RE- SUBDIVISION,A DISTANCE OF 239.51 FEET TO THE INTERSECTION WITH A LINE THAT BEARS NORTH 52 DEGREES 26 MINUTES 36 SECONDS EAST FROM AFORESAID POINT OF BEGINNING, SAID LINE IS ALSO PARALLEL WITH THE SOUTHEASTERLY LINE OF AFORESAID BLOCK I IN 0. DAVIDSONS ADDITION TO ELGIN;THENCE SOUTH 52 DEGREES 26 MINUTES 36 SECONDS WEST,ALONG SAID PARALLEL LINE, A DISTANCE OF 365.38 FEET TO THE POINT OF BEGINNING, BEING SITUATED IN THE CITY OF ELGIN,KANE COUNTY, ILLINOIS ANCONTAINING 137,964.56 SQUARE FEET MORE OR LESS. .01/19/200,4 10:25 8473816518 FILLER AND DEWES PAGE 02 • DRAFT 1/29/04 • • EXHIBIT F CONTRACT This contract is made and entered into this +r day of • IIS ,. 20,04, by and between the CITY OF BLGTN, an Illinois municipal corporation, (hereinafter referred to as the "City") , and PLOTS CONSTRUCTION INC. , an Illinois corporation, (hereinafter referred to as the "Contractor") . For and in consideration of the mutual undertakings as set • forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: Section 1. Project . The Project is. generally described as the Elgin Riverfront, Segment 2, Festival Park, Part A ("Project") . Section 2 . Engineer. The Project has been designed by Hitchcock Design Group ("Landscape Architect") . Landscape Architect shall act as a City representative and shall assume and provide such duties and obligations to the extent provided in the Contract Documents . Section 3 . Contract Documents. The Contract Documents which comprise the entire agreement between the City and the Contractor concerning the Project consist of this contract form, the.documents referenced herein and the attachments hereto ("Contract Form") and the Project Manual for Elgin Riverfront, Segment 2 , Festival Park, Part A dated July 30, 2003 prepared by Hitchcock Design Group including all documents referenced therein ( "Project Manual" ) . In the event of a conflict between this Contract Form and the Project r • Manual the provisions of this Contract Form shall supersede the 47) provisions of the Project Manual and shall control . Section 4 . Scope of Work. The Contractor agrees to and shall provide all of the materials and services for- the portion of the Project set forth in Sections 02230 Site Clearing, 02231 Tree Protection and Trimming and 02300 Earth Work of the Project Manual for the property identified in the Project Manual as the Townhome Redevelopment Site. Notwithstanding anything to the contrary in the Project Manual it is agreed and understood that the Contractor shall provide for grades of elevation on the Townhome Redevelopment Site according to the specifications, grades and elevations as provided in the Conditional Letter of Map Revision Based on Fill issued by the Federal Emergency Management Agency dated July 16, 2003 Case Number 03-05-2781C and as provided in the Haeger Engineer 47) Plans for such property dated October 4, 2002 . A certified as- built survey in a form as required by the Federal Emergency Management Agency shall be prepared to confirm that the required elevations have been attained. The fill material shall be compacted to at least ninety-five percent (95%) of Standard Laboratory Maximum of Dry Density (Standard Proctor) according to ASTM Standard D-698 . Fill soils must be fine grained soils of low permeability, such as those classified as CH, CL, SC, or ML according to the ASTM Standard D-2487, Classification of Soils for Engineering Purposes . (See Table 1804 .2 in the 2000 International Building Code (IBC) for descriptions of these soil types. ) The fill materials shall be homogeneous and isotropic, that is, the soil must be all of one material, and the engineering properties 47) 2 . . • . • must be the same in all directions. The compaction shall be certified in writing by a third party professional engineer, professional geologist, professional soil scientist, or other design professional qualified to make such evaluations. Notwithstanding anything to the contrary in the Project Manual it is further agreed and understood that the materials and services to be provided by the Contractor shall also include footing preparations for the foundation footings to be constructed in conjunction with the Par Development, Inc. townhome development on the Townhome Redevelopment Site. Notwithstanding anything to the contrary in the Project Manual it is further agreed and understood that upon the Contractor' s completion of earthwork on Parcel A of the Townhome Redevelopment Site that the Contractor or its affiliated company Par Development, Inc. shall be responsible for the installation and maintenance of silt fences, construction barriers and other erosion control measures for such site. Section 5. Schedule. The services for the Project to be performed by the Contractor pursuant to the Contract Documents shall be performed and completed by the Contractor in two phases. Parcel A of the Townhome Redevelopment Site is legally described in Exhibit 1 attached hereto. Parcel B of the Townhome Redevelopment Site is legally described in Exhibit 2 attached hereto. The Contractor shall commence the services to be performed pursuant to the Contract Documents for Parcel A of the Townhome Redevelopment Site not later than May 15, 2004 and shall complete such work on Parcel A of the townhome redevelopment site by July 31, 2004. The rek Contractor shall commence the services to be performed pursuant to 3 . . the Contract Documents for Parcel B of the Townhome Redevelopment 47) Site on or before April 15, 2005 and shall complete such work on Parcel B of the Townhome Redevelopment Site byMay 31, 2005. Notwithstanding the foregoing or anything else to the contrary in the Contract Documents, Contractor shall fill the area in the northwest corner of Parcel B of the Townhome Redevelopment Site to be excavated by others as part of the services to be performed for Parcel A of the Townhome Redevelopment Site. Such area at the northwest corner of Parcel B of the Townhome Redevelopment Site to be excavated by others is identified in the Remediation Objectives Report and Remedial Action Plan for Townhome Redevelopment Site, Elgin, Illinois prepared by Terracon, dated June 30, 2003, as amended by correspondence to the Illinois Environmental Protection Agency dated August 25, 2003 . Time is of the essence of this 47) contract . Section 6 . Contract Price. For the materials and services to be provided by the Contractor pursuant to the Contract Documents the City shall pay the Contractor the total amount of $859, 733 as detailed in Contractor' s Proposal with a revision date of September 17, 2003 attached hereto as Exhibit 3 . Section 7 . Payments . The City shall make payments on the basis of the Contractor's application for payment as recommended by the Landscape Architect, on or about the first day of each month during construction. All payments shall be based on the progress of the Project measured by the schedule as provided in Contract Documents. The City may withhold, from payments prior to substantial completion, an amount equal up to ten percent (10%) of 47) 4 work completed, at the City' s sole discretion. Upon substantial completion, the City may release a portion of the retainage to the Contractor, retaining at all times an amount sufficient to cover the costs of that portion of the Project being constructed by the Contractor remaining to be completed, at the City' s sole discretion. The time for payment of any retainage from the City to the Contractor shall be at the City' s sole discretion. Such payment shall not be unreasonably withheld. The City shall not be required to make final payment prior to completion and acceptance of that portion of the Project being constructed by the Contractor by the City. Section 8. Governing Laws and Ordinances. This contract is made subject to all the laws of the State of Illinois and the ordinances of the City and if any such clause herein does not • conform to such laws or ordinances, such clause shall be void (the remainder of the contract shall not be affected) and the laws or ordinances shall be operative in lieu thereof . Venue for the resolution of any disputes and the enforcement of any rights arising out of or in connection with this contract shall be in the Circuit Court of Kane County, Illinois. Section 9. Affirmative Action. The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, ancestry, national origin, place of birth, age or physical handicap which would not interfere with the efficient performance of the job in question. The Contractor will take affirmative action to comply with the provisions of Elgin Municipal Code Section 3 . 12 . 100 and will 5 44 require any subcontractor to submit to the City a written A4) commitment to comply with those provisions. The Contractor will distribute copies of this commitment to all persons who participate in recruitment, screening, referral and selection of job applicants and prospective subcontractors . The Contractor agrees that the provisions of Chapter 3 . 12 of the Elgin Municipal Code, 1976, is . hereby incorporated by reference, as if set out verbatim. Section 10 . Assignability. The Contractor shall not assign, sell or transfer any interest in this contract without prior written consent of the City, which consent may be withheld in the sole discretion of the City. Section 11. Amendments. There shall be no modification of the contract, except in writing and executed with the same formalities of the original . Aq) Section 12 . Notices . Any notice given under this contract shall be in writing and shall be deemed to have been given when hand delivered or deposited in the. U.S. mail, certified or registered, return receipt requested, addressed, if to Contractor, at the address of Plote Construction, Inc. , 1100 Brandt Drive, Elgin, Illinois 60120, to the attention of the undersigned representative, and if to the City, to the attention of the City Manager, 150 Dexter Court, Elgin, IL 60120 or to such other address and/or authorized representatives as either party shall designate in writing to the other in the manner herein provided. Section 13 . Indemnification. To the fullest extent permitted by law, Contractor agrees to and shall indemnify, defend and hold harmless the City, its officers, employees, boards and commissions 411) 6 from and against any and all claims, suits, judgments, costs, attorney' s fees, damages or any and all other relief or liability arising out of or resulting from or through or alleged to arise out of any acts or negligent acts or omissions of Contractor or Contractor's officers, employees, agents or subcontractors in the performance of this contract, including but not limited to, all goods delivered or services or work performed hereunder. In the event of any action against the City, its officers, employees, agents, boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City's choosing. Section 14 . Publicity. The Contractor may not use, in any form or medium, the name of the City of Elgin for public advertising unless prior written permission is granted by the City. Section 15. Appropriations. The fiscal year of the City is the 12 month period ending December 31 . The obligations of the City under any contract for any fiscal year are subject to and contingent upon the appropriation of funds sufficient to discharge the obligations which accrue in that fiscal year and authorization to spend such funds for the purposes of the contract. If, for any fiscal year during the term of the contract, sufficient funds for the discharge of the City' s obligations under the contract are not appropriated and authorized, then the contract shall terminate as of the last day of the preceding fiscal year, or when such appropriated and authorized funds are exhausted, whichever is later, without liability to the City for damages, penalties or other charges on account of such termination. 7 . • 4 4 4 1 Section 16. Entire Agreement. This contract embodies the 44) whole agreement of the parties on the subject matter hereof. There shall be no promises, terms, conditions or obligations other than those contained herein. IN WITNESS WHEREOF, the parties hereto have entered into and executed this contract on the date and year first written above. CITY OF ELGIN, a municipal PLOTE CONSTRUCTION INC. , an corporation Illinois co o ti•n47 � By By yor Its ;,(n. Secreta Attest : City Clerk 47) F:\Legal Dept\Agreement\Development Agr-Par-96 S Grove-Amendment-Plote Agr-Ex F.doc A, 8 . 1 . . EXHIBIT 1 REVISED PARCEL A OF THE TOWNHOME REDEVELOPMENT SITE LOTS 6 THROUGH 15 INCLUSIVE AND PART OF LOTS 5 AND 16 IN BLOCK 1 OF 0. DAVIDSON'S ADDITION TO ELGIN, BEING A SUBDIVISION OF PART OF THE SOUTHWEST QUARTER OF SECTION 13, TOWNSHIP 41 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN, ALSO THAT PART OF WELLINGTON AVENUE (FORMERLY RAILROAD AVENUE) AND LAKE STREET NOW VACATED, ALSO THAT PART OF CHICAGO AND NORTHWESTERN RAILROAD COMPANY PROPERTY (NOW OWNED BY THE CITY OF ELGIN) , ALL OF THE ABOVE FALLS WITHIN THE AFORESAID SOUTHWEST QUARTER OF SECTION 13 DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWEST CORNER OF AFORESAID BLOCK 1 OF O. DAVIDSONS ADDITION TO ELGIN; THENCE NORTH 37 DEGREES 49 MINUTES 11 SECONDS WEST, ALONG THE SOUTHWESTERLY LINE OF SAID BLOCK 1, ALSO BEING THE NORTHEASTERLY LINE OF GROVE AVENUE, A DISTANCE OF 351.00 FEET; THENCE NORTH 52 DEGREES 26 MINUTES 36 SECONDS EAST, PARALLEL TO THE SOUTHEASTERLY LINE OF AFORESAID BLOCK 1 IN 0. DAVIDSONS ADDITION TO ELGIN, A DISTANCE OF 365 .38 FEET TO THE SOUTHWESTERLY LINE OF SYLLA PLACE AS PLATTED IN WILLIAM F. SYLLA' S RE- SUBDIVISION, BEING A SUBDIVISION OF PART OF AFORESAID SECTION 13; THENCE SOUTH 37 DEGREES 43 MINUTES 37 SECONDS EAST, ALONG SAID SOUTHWESTERLY LINE OF SYLLA PLACE AND THE SOUTHWESTERLY LINE OF r LOT 11 IN AFORESAID WILLIAM F. SYLLA' S RE-SUBDIVISION AND THE SOUTHEASTERLY EXTENSION OF SAID LOT 11, A DISTANCE OF 326.70 FEET; THENCE SOUTH 37 DEGREES 18 MINUTES 47 SECONDS WEST, A DISTANCE OF 93 . 11 FEET TO A POINT ON THE NORTHEASTERLY EXTENSION OF THE SOUTHEASTERLY LINE OF AFORESAID BLOCK 1, IN O. DAVIDSONS ADDITION, SAID POINT BEING 10 . 06 FEET, AS MEASURED ALONG SAID EXTENSION, NORTHEASTERLY OF THE SOUTHEASTERLY CORNER OF SAID BLOCK 1; THENCE SOUTH 52 DEGREES 26 MINUTES 36 SECONDS WEST, ALONG AFORESAID NORTHEASTERLY EXTENSION AND THE SOUTHEASTERLY LINE OF SAID BLOCK 1 ALSO BEING THE NORTHWESTERLY LINE OF LAKE STREET, A DISTANCE OF 274 .86 FEET TO THE POINT OF BEGINNING, BEING SITUATED IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS AND CONTAINING 127 , 054 .72 SQUARE FEET MORE OR LESS. • a • • • EXHIBIT 2 REVISED PARCEL B OF THE TOWNHOME REDEVELOPMENT SITE LOTS 3, 4, 17, 18 AND PART OF LOTS 5 AND 16 IN BLOCK 1 OF O. DAVIDSON'S ADDITION TO ELGIN, BEING A SUBDIVISION OF PART OF THE SOUTHWEST QUARTER OF SECTION 13, TOWNSHIP 41 NORTH, RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN ALSO LOTS 1 THROUGH 16, INCLUSIVE, AND VACATED ALLEY IN BLOCK "A" OF DAVIDSON'S GROVE AVENUE SUBDIVISION, BEING A SUBDIVISION OF SAID SOUTHWEST QUARTER OF SECTION 13, ALSO THAT PART OF WELLINGTON AVENUE (FORMERLY RAILROAD AVENUE) NOW VACATED, ALSO THAT PART OF CHICAGO AND NORTHWESTERN RAILWAY PROPERTY (NOW OWNED BY THE CITY OF ELGIN), ALL OF THE ABOVE FALLS WITHIN THE AFORESAID SOUTHWEST QUARTER OF SECTION 13, DESCRIBED AS FOLLOWS: • COMMENCING AT THE SOUTHWEST CORNER OF AFORESAID BLOCK 1 OF O' DAVIDSON'S ADDITION TO ELGIN; THENCE NORTH 37 DEGREES 49 MINUTES 11 SECONDS WEST, ALONG THE SOUTHWESTERLY LINE OF SAID BLOCK 1 ALSO BEING THE NORTHEASTERLY LINE OF GROVE AVENUE, A DISTANCE OF 351.00 FEET FOR THE POINT OF BEGINNING; THENCE CONTINUING NORTH 37 DEGREES 49 MINUTES 11 SECONDS WEST, ALONG SAID SOUTHWESTERLY LINE OF BLOCK 1 AND THE SOUTHWESTERLY LINE OF AFORESAID BLOCK"A" IN DAVIDSON'S GROVE AVENUE SUBDIVISION, A DISTANCE OF 442.18 FEET TO AN ANGLE IN SAID SOUTHWESTERLY LINE OF BLOCK "A"; THENCE NORTH 33 DEGREES 52 MINUTES 42 SECONDS WEST, ALONG SAID SOUTHWESTERLY 411) LINE OF BLOCK"A", A DISTANCE OF 70.42 FEET TO THE NORTHWEST CORNER OF BLOCK "A"; THENCE NORTH 89 DEGREES 26 MINUTES 44 SECONDS EAST, ALONG THE NORTH LINE OF SAID BLOCK"A' ALSO BEING THE SOUTH LINE OF PRAIRIE STREET AND THE EASTERLY EXTENSION OF SAID SOUTH LINE, A DISTANCE OF 453.51 FEET TO THE MOST WESTERLY CORNER OF LOT 1 IN WILLIAM F. SYLLA'S RESUBDIVISION, BEING A SUBDIVISION OF PART OF AFORESAID SECTION 13; THENCE SOUTH 37 DEGREES 43 MINUTES 37 SECONDS EAST, ALONG THE SOUTHWESTERLY LINE OF SAID LOT 1 AND THE SOUTHWESTERLY LINE OF SYLLA PLACE AS PLATTED IN AFORESAID WILLIAM F. SYLLA'S RESUBDIVISION, A DISTANCE OF 239.08 FEET TO THE INTERSECTION WITH A LINE THAT BEARS NORTH 52 DEGREES 26 MINUTES 36 SECONDS EAST FROM AFORESAID POINT OF BEGINNING, SAID LINE IS ALSO PARALLEL WITH THE SOUTHEASTERLY LINE OF AFORESAID BLOCK 1 IN O. DAVIDSON'S ADDITION TO ELGIN; THENCE SOUTH 52 DEGREES 26 MINUTES 36 SECONDS WEST, ALONG SAID PARALLEL LINE, A DISTANCE OF 365.38 FEET TO THE POINT OF BEGINNING. BEING SITUATED IN THE CITY OF ELGIN, KANE COUNTY, ILLINOIS AND CONTAINING 137,964.56 SQUARE FEET MORE OR LESS. D02050E.02.doc AVE 02-06-04 • / •s,. 4' • • aft: 1111. ,t1 - .411111 PLOTE CONSTRUCTION INC. 1100 BRANDT DRIVE • r#4,st111v -140. ELGIN,IL.60120 Contact: Randy Rathmann Phone: 847-695-9300 Fax: 847-695-9317 Ouote To: City of Elgin Job Name: Site Work Townhouse Site Festival Park 150 Dexter Court Date of Plans: Haeger Engineering dtd 10/4/02 Elgin,IL 60120 hone: Revision Date: 9/17/03 Fax: Attn: Mr David Dorgan Elgin City Manager ITEM DESCRIPTION QUANTITY UNIT UNIT PRICE AMOUNT 100 PHASE A TOWNHOUSE SITE 110 CLAY IMPORT&COMPACTION 15,476.00 CY 16.00 247,616.00 113 TOPSOIL STRIP&STOCK PILE 449.00 CY 6.00 2,694.00 115 TOPSOIL STRIP&DISPOSE 475.00 CY - 13.00 6,175.00 120 RR AREA CUT TO FILL 927.00 CY 9.00 8,343.00 SUBTOTAL PHASE A • $264,828.00 200 PHASE B TOWNHOUSE SITE 210 CLAY IMPORT&COMPACTION 16,519.00 CY 16.00 264,304.00 215 TOPSOIL STRIP&DISPOSE 180.00 CY 13.00 2,340.00 220 RR AREA CUT TO FILL 860.00 CY 9.00 7,740.00 225 CLAY IMPORT TO ENVIORNMENTAL AREA 1,556.00 CY 16.00 24,896.00 SUBTOTAL PHASE B $299,280.00 500 PHASE A TOWNHOUSE FTG PREP. 510 UNDERCUT FTGS 3,425.00 CY 11.00 37,675.00 520 PGE EMBANKMENT FOR FIGS 3,425.00 CY 32.00 109,600.00 550 PHASE B TOWNHOUSE FTG PREP. 560 UNDERCUT FTGS 3,450.00 CY 11.00 37,950.00 570 PGE EMBANKMENT FOR FTGS 3,450.00 CY 32.00 110,400.00 SUBTOTAL BLDG SITE $295,625.00 GRAND TOTAL $859,733.00 Page 1 . • • 1. No truck wash or street sweeping. Z. No bonds,permits,special insurrance(including subroation)enviornmental impairment liability,and testing. 3. No survey or layout. 4. No barricades,lights,arrow boards or warning signs. 4111) 5. No dewatering,including pumping or well points. 6. No erosion control,straw bales,silt fence,seeding,sodding,clearing,or tree protection. 7. No special waste removal or handling. 8. All excavated materials except for topsoil to remain on site. 9. No soil compaction testing,inspections,or reports. 10. Prices for Phase B is figured to be completed by 5131/05. 11. Add for labor,equipment,and materials escalation $30,000.00 for each year work is not started after 5/31/05. Very Truly Yours, 1 •"--4‘1 G Richard A.w�,,� Contract A•••• strator Accepted for the City of Elgin, or. e A) 41111) Page 2 4 . • SECOND AMENDMENT TO DEVELOPMENT AGREEMENT THIS SECOND AMENDMENT TO DEVELOPMENT AGREEMENT is made and entered into this day of , 2010,by and between the CITY OF ELGIN, an Illinois municipal corporation,(hereinafter referred to as the"City"),and RIVER PARK PLACE,LLC,an Illinois limited liability company,(hereinafter referred to as the"Developer"). WITNESSETH WHEREAS,the City and Par Development,Inc.have previously entered into a development agreement dated February 13,2002,providing for the redevelopment of the then city-owned property located at the northwest corner of South Grove Avenue and Prairie Street and the then city owned property lying within the area bounded by Lake Street on the south, South Grove Avenue on the west, Prairie Street on the north and Wellington Avenue on the east; and WHEREAS,the City and Par Development,Inc.have previously entered into an Amendment to such Development Agreement dated March 11, 2004; (such Development Agreement dated February 13,2002,as amended by the Amendment to the Development Agreement dated March 11, 2004, is hereinafter referred to as the"Subject Development Agreement"); and WHEREAS,Developer is the successor-in-interest to Par Development,Inc.with respect to the Subject Development Agreement;and WHEREAS,the Developer has completed the redevelopment of the property referred to in the Subject Development Agreement as Parcel 2 of the Redevelopment Property,being the property lying within the area bounded by Lake Street on the south,South Grove on the west,Prairie Street on the north and Wellington Avenue on the east; and WHEREAS, due to an unprecedented downturn in the housing market the Developer has been unable to commence or complete the Subject Residential Condominium Redevelopment of the 4 • property referred to in the Subject Development Agreement as Parcel 1 of the Redevelopment Property, being the property located at the northwest corner of South Grove Avenue and Prairie Street such property being depicted and legally described on the plat of survey prepared by Haeger Engineering,LLC dated July 11,2005,attached hereto as Exhibit A;and WHEREAS, the City and the Developer have determined it to be in their best interests to provide for certain further amendments to the Subject Development Agreement including with respect to the timing of the commencement and completion of the Subject Residential Condominium Redevelopment of Parcel 1 of the Redevelopment Property and the reconveyance of Parcel 1 of the Redevelopment Property to the City, pursuant to the terms and conditions of this Second Amendment to Development Agreement. NOW, THEREFORE, for and in consideration of the mutual promises and undertakings contained herein, and the mutual promises and undertakings as contained in the Subject Development Agreement,and for other good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged,the parties hereto agree as follows: 1. That the City and the Developer agree that the Subject Development Agreement be and is hereby further amended as follows: A. Paragraph 9B of the Subject Development Agreement be and is hereby amended to read as follows: "Developer shall commence construction of the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property within sixty(60) days after the reconveyance of such property from the City to the Developer pursuant to paragraph 32 of this agreement. Developer shall be deemed to have commenced construction of the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property upon initiation of the construction of the foundation of the condominium building to be constructed on Parcel 1 of the Redevelopment Property. Upon Developer commencing construction of the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property Developer 2 , shall continue with such construction in as expeditious a manner as is reasonably practicable. Developer shall not encumber title to Parcel 1 of the Redevelopment Property until after Developer has commenced construction of the Subject Residential Condominium Redevelopment on such Parcel 1 of the Redevelopment Property. Developer shall complete the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property no later than twenty-four (24)months following the commencement of construction of the Subject Residential Condominium Redevelopment(hereinafter referred to as the"Completion Date for the Redevelopment of Parcel 1 of the Redevelopment Property"),provided,however, that such Completion Date for the Redevelopment of Parcel 1 of the Redevelopment Property shall be extended by one (1) day for each day of which construction is delayed or stopped due to accident,strikes,shortages of materials,extreme weather, acts of God or other causes not within Developer's reasonable control. If the Developer wishes to make a claim for an extension of the Completion Date for the Redevelopment of Parcel 1 of the Redevelopment Property the Developer shall provide the City written notice thereof within thirty(30)days after the occurrence of the event giving rise to Developer's claim for such extension. Such claim shall advise the City of the circumstances the Developer alleges justifies an extension of time of the Completion Date for the Redevelopment of Parcel 1 of the Redevelopment Property.If adverse weather conditions are the basis for a claim for additional time,such claim shall be documented by data substantiating that weather conditions were abnormal for the period of time an could not have been reasonably anticipated, and that weather conditions had an adverse effect on the scheduled construction. Claims by the Developer for an extension of time for the Completion Date for the Redevelopment of Parcel 1 of the Redevelopment Property must be approved by the City Council of the City. The Subject Residential Condominium Redevelopment of Parcel 1 of the Redevelopment Property shall be deemed completed when Developer has completed construction of all buildings and site improvements, including without limitation landscaping, and has obtained a final occupancy permit for at least one of the residential condominium units to be constructed on Parcel 1 of the Redevelopment Property." B. A new paragraph 31 be and is hereby added to the Subject Development Agreement to read as follows: "31. Reconveyance of Parcel 1 of the Redevelopment Property to the City. A. Within thirty (30) days of the entry into this Second Amendment Agreement Developer shall reconvey to the City title to Parcel 1 of the Redevelopment Property by recordable warranty deed, subject only to real estate taxes not then due and payable for 2010 and subsequent years; public utility easements so long as same do not prohibit the City's intended use of the property; public rights-of-way,covenants,conditions,encroachments and restrictions of record as long as same do not prohibit the City's intended use of the property. 3 B. Not less than ten(10)days prior to the reconveyance of Parcel 1 of the Redevelopment Property to the City,the Developer at its own expense shall deliver or cause to be delivered to the City a title commitment for a 1970 ALTA owners title insurance policy issued by Chicago Title Insurance Company in the minimum amount of insurance covering title to Parcel 1 of the Redevelopment Property on or after the date herein showing title in Developer subject only to: (a)title exceptions set forth in paragraph 31A above, (b) title exceptions pertaining to liens or encumbrances of a definite or ascertainable amount which may be removed by the payment of money at the time of closing and which Developer shall so remove at that time, (c) acts of the City and all parties through or for the City, (d) zoning laws, statutes and ordinances, including, but not limited to, matters relating to the Tax Increment Act and the Elgin Center City Redevelopment Project Area and Redevelopment Plan. At closing,the Developer shall also furnish to the City(a)an Affidavit of Title in customary form covering the date of closing and showing title in the name of the Developer subject only to the permitted exceptions and(b)such other documents as are customary to complete the closing of the transaction. C. If the title commitment discloses either unpermitted exceptions or matters that render the title not in conformance with the provisions of this agreement, the Developer shall within thirty(30)days from the date thereof have the exceptions removed from the commitment or have the title company commit at no cost to the City to insure against loss or damage that may be associated with such exceptions, and, in such event, the time of the closing of the reconveyance of Parcel 1 of the Redevelopment Property from the Developer to the City shall be thirty(30)days after the delivery of the commitment. D. General taxes shall be adjusted ratably as of the time of Closing. If the amount of current general taxes is not then ascertainable,the amount thereof shall be made on the basis of 105%of the amount of the most recent ascertainable taxes." C. A new paragraph 32 be and is hereby added to the Subject Development Agreement to read as follows: "32. Reconveyance of Parcel 1 of the Redevelonment Property to Developer. A. In the event Developer obtains and provides to the City on or before June 1, 2014, (1) written evidence of an unconditional commitment for the financing necessary to provide for the construction of the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property,(2)evidence of Developer having obtained from the City a building permit to construct the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property,and(3)Developer's notice to the City of its intent to commence with the construction of the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property within sixty (60) days of the reconveyance of such property from the City to the Developer, the City shall within sixty (60) days after 4 • having provided such written evidence of the financing necessary to provide for the construction of the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property,the building permit for the construction of same and Developer's written notice to the City of its intent to commence with the construction of the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property, convey to the Developer title to Parcel 1 of the Redevelopment Property, by recordable warranty deed,subject only to the matters effecting title set forth within paragraph 4C of this agreement. In the event the Developer fails to provide the City written evidence of the financing necessary to provide for the construction of the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property,the building permit to provide for such construction and Developer's notice of intent to commence with such construction all on or before June 1,2014,the City may, upon written notice to Developer, declare this agreement null and void and whereupon this agreement shall be deemed terminated,null and void,without further obligations of the City,including,but not limited to,any obligation of the City to reconvey Parcel 1 of the Redevelopment Property to the Developer. B. Not less than ten (10) days prior to the reconveyance of Parcel 1 of the Redevelopment Property to the Developer as provided for in this paragraph 32,the City at its own expense shall deliver or cause to be delivered to the Developer a title commitment for Parcel 1 of the Redevelopment Property as set forth in paragraph 4C of this agreement. At closing,the City shall also furnish to the Developer(a)an Affidavit of Title in customary form covering the date of closing and showing title in the name of the City subject only to the permitted exceptions and(b)such other documents as are customary to complete the closing of the transaction. C. In connection with the reconveyance of Parcel 1 of the Redevelopment Property to the Developer pursuant to this paragraph 32, if the title commitment discloses unpermitted exceptions that render the title not in conformance with the provisions of this agreement,the provisions of paragraph 4D of this agreement shall apply. D. In connection with the reconveyance of Parcel 1 of the Redevelopment Property to the Developer pursuant to this paragraph 32, general taxes shall be adjusted ratably at the time of closing. If the amount of the current general taxes is not then ascertainable,the amount thereof shall be made on the basis of 105%of the amount of the most recent ascertainable taxes. E. In the event Parcel 1 of the Redevelopment Property is reconveyed by the City to the Developer pursuant to this paragraph 32, Developer shall commence with the construction of the Subject Residential Condominium Redevelopment on Parcel 1 of the Redevelopment Property within sixty(60)days after the reconveyance of such property from the City. In the event the Developer fails to commence with the construction of the Subject Residential Condominium Redevelopment on Parcel 1 the Developer shall, upon written notice from the City, reconvey Parcel 1 of the Redevelopment Property back to the City under the same terms and conditions as provided in paragraph 31 of this agreement. Developer shall be deemed to have commenced construction of the Subject Residential 5 4 Condominium Redevelopment on Parcel 1 of the Redevelopment Property upon initiation of 4) the construction of the foundation of the condominium building to be constructed on Parcel 1 of the Redevelopment Property. Developer shall continue and complete such construction as provided in paragraph 9B of this agreement." D. A new paragraph 33 is hereby added to the Development Agreement to read as follows: "33. Termination of Agreement. After the reconveyance of Parcel 1 of the Redevelopment Property from the Developer to the City as provided in paragraph 31 of this agreement, and prior to any reconveyance of Parcel 1 of the Redevelopment Property from the City to the Developer as provided for in paragraph 32 hereof,in the event the City determines to proceed with a use or development of Parcel 1 of the Redevelopment Property other than the specific Subject Residential Condominium Redevelopment of Parcel 1 of the Redevelopment Property by the Developer, the City may, upon written notice to Developer, declare this agreement null and void and whereupon the agreement shall be deemed terminated without further obligations of the City, including, but not limited to, any obligation of the City to reconvey Parcel 1 of the Redevelopment Property to the Developer." 2. That except as specifically amended in this Second Amendment to Development Agreement,the Subject Development Agreement shall remain in full force and effect. 3. That in the event of any conflict between the terms and provisions of the Subject Development Agreement and the terms and provisions of this Second Amendment to Development Agreement,the terms and provisions of this Second Amendment to Development Agreement shall control. IN WITNESS WHEREOF, the parties hereto have entered into and executed this Second Amendment to Development Agreement on the date and year first written above. CITY OF ELGIN, a municipal RIVER PARK PLACE LLC, an corporation Illinois limited liability company By By Mayor Its Attest: City Clerk F:\Legal Dem\Agreement\Development Agr-River Park PI-2nd Amend-clean I 1-4-10.doc 6 ! . EXHIBIT A PLAT OF SURVEY OF PARCEL l OF THE REDEVELOPMENT PROPERTY PREPARED BY HAEGER ENGINEERING,LLC,DATED JULY 11, 2005. 7 41 V ... .,-----.......... - .. 1 . 1.-....,== ALTA / ACSM LAND TITLE SURVEY " 4 . . —....=.-.... 7 •.1=-_-:.-----,.... , S. • \ •------ r ULTON SrREET 4. trz-4\ 411111, ...N .,• .....0 . s, . . •I''. %. •, "11 "•.. 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