HomeMy WebLinkAbout6.1 A RESOLUTION AUTHORIZING THE EXECUTION OF A REDEVELOPMENT AGREEMENT BETWEEN THE VILLAGE OF MOUNT PROSPECT AND PARK TERRACE MOUNT PROSPECT LLC FOR THE PARK TERRACE ROWHOME PROJECT LOCATED AT 15-19 N. ELMHURST AVE.1/18/2021 BoardDocs® Pro
Agenda Item Details
Meeting Mar 20, 2018 - SPECIAL MEETING OF THE MOUNT PROSPECT VILLAGE BOARD - 7:00 p.m.
Category 6. OLD BUSINESS
Subject 6.1 A RESOLUTION AUTHORIZING THE EXECUTION OF A REDEVELOPMENT AGREEMENT
BETWEEN THE VILLAGE OF MOUNT PROSPECT AND PARK TERRACE MOUNT PROSPECT LLC
FOR THE PARK TERRACE ROWHOME PROJECT LOCATED AT 15-19 N. ELMHURST AVE.
Access Public
Type Action
Preferred Date Mar 20, 201,?v,
Absolute Date Mar 20, 201V_,
Fiscal Impact Yes
Dollar Amount 4601000.00
Budgeted Yes
get Source General Fund and Water and Sewer Fund
Jill illill
Public Content
Information
Attached to this memorandum is a draft redevelopment agreement (RDA) for the proposed 12 -unit rowhome project
for the property located at 15 - 19 N. Elmhurst Avenue, "Park Terrace". The subject property is a vacant one -acre
parcel that is located immediately north of the Post Office facility on Elmhurst Avenue. This transit oriented
development received zoning approval on March 6,, 2018. The Development team has activated a website to begin th
marketing of the luxury row hom-
•s.
://www. rracerowhomes.com/details.,p'-.-
nq
The RDA obligates the Village to provide up to $460,000 of incentives towards the $7 million project. Th-
• • include the following TIF -eligible expenses:
1. A waiver of up to Eighty Thousand and No/100 Dollars ($80,000.00) of permit fees payable to the Village for
the Project.
2. Payment of up to One Hundred Twenty Thousand Dollars and No/100 Dollars ($120,000.00) for installation of
storm water detention systern,, curbs, and paving for the Project.
3. Payment of up to Forty Thousand and No/100 Dollars ($40,000.00) by the Village for demolition, tree removal,
construction fencing and/or site preparation fees for the Proj-
' - of up to One Hundred Thousand and No/100 Dollars ($100,000.00) by the Village for a sewer
extension in the public right-of-way adjacent to the Property to serve the Project.
5. Payment of up to Sixty Thousand and No/100 Dollars ($60,,000.00) by the Village for water, sewer and utility
work to serve the Proj-
' - of up to Sixty Thousand and No/100 Dollars ($60,000.00) for the Developer"s professional service
costs for architectural, engineering, legal, financial and/or planning services relative to the Project.
Under the terms of the RDA, the developer is responsible for installing the above detailed improvements and then
the Village will reimburse them once they have been inspected and approved.
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At the time that the Village established the Prospect and Main TIF District, the TIF Joint Review Board requested that
we maintain a set of metrics to measure the positive impact that the TIF has on the downtown district. The table
below lists the metrics that the Village will continue to measure as we move forward with the numerous
redevelopment projects in the downtown. The projected figures are estimates that are based upon industry standards
for similar developments in the region.
Park Terrace
Metric Base Projected
New residential units
12
Population growth
30
Growth in EAV
76f943
$1f200f000
Sales tax generation
0
Retail and commercial base
0
Number of building permits
1
Projects benefiting impacted local governments
1
Retail and commercial vacancy
............................................................
NA
NA
Infrastructure improvements
$160f000
Metra ridership
Fres
a
nsit Oriented Development
Alternatives
1. Approve the resolution authorizing the execution of a Redevelopment Agreement.
2. Action at discretion of Village Board.
Staff Recommendation
Staff recommends that the Village Board approve the resolution authorizing the execution of a Redevelopment
Agreement for Park Terrace Mount Prospect,, LLC.
Park Terrace RDA. pdf (92 KB) RDA- park terrace 15-19 elmhurst ave.pdf (10 KB)
Administrative Content
Executive Content
Motion & Voting
Approve the resolution authorizing the execution of a Redevelopment Agreement.
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REDEVELOPMENT AGREEMENT
FOR THE PARK TERRACE MOUNT PROSPECT, LLC
DEVELOPMENT COMPRISING A PART OF THE
PROSPECT AND MAIN TIF DISTRICT
OF THE VILLAGE OF MOUNT PROSPECT, ILLINOIS
This Redevelopment Agreement For The Smart Builders Development Comprising A
Part Of The Prospect And Main TIF District Of The Village Of Mount Prospect, Illinois
(the "Agreement") is made and entered into as of the day of ,
201_ (the "Effective Date") by and between the Village of Mount Prospect, Illinois, an
Illinois home rule municipal corporation (the "Village") and Park Terrace Mount
Prospect, LLC , an Illinois limited liability company, (the "Developer") (the Village and
the Developer are sometimes referred to herein individually as a "Party," and collectively
as the "Parties").
WITNESSETH:
IN CONSIDERATION of the Preliminary Statements, the mutual covenants herein
contained, and other good and valuable consideration, the sufficiency and receipt of
which is hereby acknowledged, the Parties hereto agree as follows:
I. PRELIMINARY STATEMENTS
Among the matters of mutual inducement which have resulted in this Agreement
are the following:
A. The Village is a home rule unit of government in accordance with Article
VII, Section 6 of the Constitution of the State of Illinois, 1970.
B. The Village has the authority, pursuant to the laws of the State of Illinois,
to promote the health, safety and welfare of the Village and its inhabitants,
to prevent the presence of blight, to encourage private development in
order to enhance the local tax base and increase additional tax revenues
realized by the Village, to foster increased economic activity within the
Village, to increase employment opportunities within the Village, and to
enter into contractual agreements with third parties for the purpose of
achieving the aforesaid purposes, and otherwise take action in the best
interests of the Village.
C. The Village is authorized under the provisions of the Tax Increment
Allocation Redevelopment Act, 65 I LCS 5/11-74.4-1, et seq., as amended
(the "Act"), to finance redevelopment in accordance with the conditions
and requirements set forth in the Act.
D. Pursuant to Ordinance Numbers 6293, 6294 and 6295, adopted January
17, 2017, the Village designated the tax increment redevelopment project
387385_5
area (the "Redevelopment Project Area"), approved a tax increment
redevelopment plan and project (the "TIF Plan"), and adopted tax
increment financing relative to the Village's Prospect and Main Tax
Increment Financing District (the "TIF District"); said TIF District being
legally described and depicted as set forth in EXHIBIT A-1 and EXHIBIT
A-2, respectively, attached hereto and made part hereof.
E. The Developer desires to acquire ownership of certain real property,
consisting of a parcel, located within the Redevelopment Project Area,
said property being legally described on EXHIBIT B, attached hereto and
made a part hereof (the "Property").
F. The Developer desires to redevelop the Property with a twelve (12) unit
townhome project to be built in two (2) stages ("Stage One" and "Stage
Two") of six units each , as depicted on the site plan attached hereto as
EXHIBIT C, and made part hereof, and as described in further detail in
EXHIBIT D, attached hereto and made part hereof (the "Project").
G. It is necessary for the successful completion of the Project that the Village
enter into this Agreement with the Developer to provide for the
redevelopment of the Property, thereby implementing the TIF Plan.
H. The Developer has been and continues to be unable and unwilling to
undertake the redevelopment of the Property with the Project, but for
certain tax increment financing ("TIF") incentives, with regard to waiver of
certain Village -imposed fees and assistance from the Village in defraying
certain of the extra ordinary costs of development of the Project, to be
provided by the Village in accordance with the Act and the home rule
powers of the Village, which the Village is willing to provide under the
terms and conditions contained herein. The Parties acknowledge and
agree that but for the aforementioned incentives, to be provided by the
Village, Developer cannot successfully and economically develop the
Property with the Project in a manner satisfactory to the Village. The
Village has determined that it is desirable and in the Village's best interest
to assist Developer in the manner set forth herein, and as this Agreement
may be supplemented and amended from time to time pursuant to the
mutual agreement of the Parties and in the manner as herein provided.
I. The Village, in order to stimulate and induce development of the Property
with the Project, has agreed to provide the incentives to the Developer in
accordance with the terms and provisions of the Act and this Agreement.
J. This Agreement has been submitted to the Corporate Authorities of the
Village (as defined below) for consideration and review, the Corporate
Authorities have taken all actions required to be taken prior to the
execution of this Agreement in order to make the same, and any and all
387385_5 2
actions taken by the Village in furtherance hereof, binding upon the Village
according to the terms hereof, and any and all actions of the Corporate
Authorities of the Village precedent to the execution of this Agreement
have been undertaken and performed in the manner required by law.
K. This Agreement has been submitted to the Members of the Developer for
consideration and review, the Developer's Members have taken all actions
required to be taken prior to the execution of this Agreement in order to
make the same binding upon the Developer according to the terms hereof,
and any and all action of the Developer's members precedent to the
execution of this Agreement have been undertaken and performed in the
manner required by law.
L. The Village is desirous of having the Redevelopment Project Area
rehabilitated, developed and redeveloped in accordance with the TIF Plan,
and particularly the Project as a part thereof, in order to serve the needs of
the Village, arrest physical decay and decline in the Redevelopment
Project Area, increase employment opportunities, stimulate commercial
growth and stabilize the tax base of the Village and, in furtherance thereof,
the Village is willing to offer Developer the TIF incentives referenced in
subsection H. above, under the terms and conditions hereinafter set forth,
to assist such development.
II. DEFINITIONS
For the purposes of this Agreement, unless the context clearly requires
otherwise, words and terms used in this Agreement shall have the meanings
provided from place to place herein, and as follows:
A. "Change in Law" means the occurrence, after the Effective Date, of an
event described below in this definition, provided such event materially
changes the costs or ability of the Party relying thereon to carry out its
obligations under this Agreement and such event is not caused by the
Party relying thereon:
Change in Law means any of the following: (1) the enactment, adoption,
promulgation or modification of any federal, State or local law, ordinance,
code, rule or regulation (other than by the Village, or, with respect to those
made by the Village, only if they violate the terms of this Agreement); (2)
the order or judgment of any federal or State court, administrative agency
or other governmental body (other than the Village); or (3) the adoption,
promulgation, modification or interpretation in writing of a written guideline
or policy statement by a governmental agency (other than the Village, or,
with respect to those made by the Village, only if they violate the terms of
this Agreement). Change in Law, for purposes of this Agreement, shall
also include the imposition of any conditions on, or delays in, the issuance
387385_5 3
or renewal of any governmental license, approval or permit (or the
suspension, termination, interruption, revocation, modification, denial or
failure of issuance or renewal thereof) necessary for the undertaking of the
actions to be performed under this Agreement (except any imposition of
any conditions on, or delays in, any such issuance or renewal by the
Village, except as provided herein).
B. "Village Code" means the Village of Mount Prospect Village Code, as
amended.
C. "Corporate Authorities" means the Mayor and Board of Trustees of the
Village of Mount Prospect, Illinois.
D. "Da " means a calendar day.
E. "Effective Date" means the day on which this Agreement is executed by
the Village, with said date appearing on page 1 hereof.
F. "Eligible Costs" means certain costs of the Incentives (as defined in
Section VI. Below), to the extent permitted under 65 ILCS 5/11-74.4-3(q).
G. "Party" or "Parties" means the Village and/or the Developer,
individually/collectively, and their respective successors and/or assigns as
permitted herein, as the context requires.
H. "Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, trust, or government or any agency or
political subdivision thereof, or any agency or entity created or existing
under the compact clause of the United States Constitution.
I. "State" means the State of Illinois.
J. "TIF Ordinances" means those Ordinances referenced in subsection I.D.
K.
above.
"Uncontrollable Circumstance" means any event which:
1. is beyond the reasonable control of and without the fault of the
Party relying thereon; and
2. is one or more of the following events:
a. a Change in Law;
b. insurrection, riot, civil disturbance, sabotage, act of the
public enemy, explosion, fire, nuclear incident, war or naval
blockade;
387385_5 4
C. epidemic, hurricane, tornado, landslide, earthquake,
lightning, fire, windstorm, other extraordinary or ordinary
weather conditions or other similar act of God;
d. governmental condemnation or taking other than by the
Village;
e. strikes or labor disputes, or work stoppages not initiated by
the Developer or the Village;
f. unreasonable delay in the issuance of building or other
permits or approvals by the Village or other governmental
authorities having jurisdiction other than the Village including
but not limited to the Illinois Department of Transportation
("ID07), the Metropolitan Water Reclamation District of
Greater Chicago ("MWRD") and/or the Illinois Environmental
Protection Agency ("I EPA");
g. shortage or unavailability of essential materials, which
materially change the ability of the Party relying thereon to
carry out its obligations under this Agreement;
h. unknown or unforeseeable geo-technical or environmental
conditions;
L major environmental disturbances;
j. vandalism; or
k. terrorist acts.
Uncontrollable Circumstance shall not include: economic hardship;
unavailability of materials (except as described in subsection 2.g. above);
or a failure of performance by a contractor (except as caused by events
which are Uncontrollable Circumstances as to any applicable contractor).
For each day that the Village or the Developer is delayed in its
performance under this Agreement by an Uncontrollable Circumstance,
the dates set forth in this Agreement shall be extended by one (1) day
without penalty or damages to either Party.
L. "Unit" means each of the individual units in the Project.
III. CONSTRUCTION OF TERMS
This Agreement, except where the context by clear implication shall otherwise
require, shall be construed and applied as follows:
A. Definitions include both singular and plural.
B. Pronouns include both singular and plural and cover all genders.
C. The words "include," "includes," and "including" shall be deemed to be
followed by the phrase "without limitation".
387385_55
D. Headings of Sections herein are solely for convenience of reference and
do not constitute a part hereof and shall not affect the meaning,
construction or effect hereof.
E. All exhibits attached to this Agreement shall be and are operative
provisions of this Agreement and shall be and are incorporated by
reference in the context of use where mentioned and referenced in this
Agreement. In the event of a conflict between any exhibit and the terms of
this Agreement, the Agreement shall control.
F. Any certificate, letter or opinion required to be given pursuant to this
Agreement means a signed document attesting to or acknowledging the
circumstances, representations, opinions of law or other matters therein
stated or set forth. Reference herein to supplemental agreements,
certificates, demands, requests, approvals, consents, notices and the like
means that such shall be in writing whether or not a writing is specifically
mentioned in the context of use.
G. The Village Manager, unless applicable law requires action by the
Corporate Authorities, shall have the power and authority to make or grant
or do those things, certificates, requests, demands, notices and other
actions required that are ministerial in nature or described in this
Agreement for and on behalf of the Village and with the effect of binding
the Village as limited by and provided for in this Agreement. The
Developer is entitled to rely on the full power and authority of the Persons
executing this Agreement on behalf of the Village as having been properly
and legally given by the Village.
H. In connection with the foregoing and other actions to be taken under this
Agreement, and unless applicable documents require action by Developer
in a different manner Developer hereby designates Richard Bondarowicz
as its authorized representatives who shall individually have the power
and authority to make or grant or do all things, supplemental agreements,
certificates, requests, demands, approvals, consents, notices and other
actions required or described in this Agreement for and on behalf of the
Developer and with the effect of binding the Developer in that connection
(such individual being designated as an "Authorized Developer
Representative"). The Developer shall have the right to change its
Authorized Developer Representative by providing the Village with written
notice of such change from both authorized representatives which notice
shall be sent in accordance with Section XVIII.B. of this Agreement.
IV. COOPERATION OF THE PARTIES
387385_5 6
The Village and the Developer agree to cooperate in implementing the Project in
accordance with the Parties' respective obligations set forth in this Agreement,
and specific approvals by the Village in the future, relative to the development of
the Property and the Project, including zoning applications relative thereto, and
Village -issued permits and approvals relative thereto.
V. ACQUISITION OF THE PROPERTY
The Developer shall acquire the Property on or before the commencement of the
construction as provided in Section VI.A.3. below ("Acquisition Deadline"). The
date the Developer acquires title to the Property shall be the "Acquisition Date."
VI. DEVELOPMENT OF THE PROPERTY
A. Approvals, Permits, Construction, and Completion. The Developer
shall, subject to Uncontrollable Circumstances:
1. On or before April 1, 2018, appear before the Village's Planning
and Zoning Commission for all zoning entitlements and/or zoning
approvals necessary for the construction of the Project.
2. On or before August 1, 2018, apply for all necessary permits and
approvals from all governmental agencies having jurisdiction over
the Project as may be required to commence construction of the
Project.
3. Subject to unreasonable delays as provided in Section II.K.2.f. of
this Agreement, on or before September 1, 2018, commence
construction of Stage One of the Project, and on or before
September 1, 2020 commence construction of Stage Two of the
Project.
4. On or before May 1, 2020, complete construction of Stage One of
the Project, and on or before May 1, 2022 complete Stage Two of
the Project.
5. On or before July 1, 2020, obtain a Certificate of Project
Completion (as defined in Section XI.A. below) for Stage One of the
Project and on or before July 1, 2022 obtain a Certificate of
Completion for Stage Two of the Project.
The Village may extend, in its sole and absolute discretion, any deadline
in this Section VI.A. upon request from the Developer, upon such terms
and conditions as the Village may require for such extension.
387385_5 7
B. Incentives. So long as the Developer is in compliance with all its
obligations in this Agreement, the Developer shall be entitled to the
following incentives (the "Incentives"):
1. A waiver of up to Eighty Thousand and No/100 Dollars
($80,000.00) of permit fees payable to the Village for the Project.
2. Payment of up to One Hundred Twenty Thousand Dollars
($120,000.00) for installation of storm water detention system,
curbs, and paving for the Project.
3. Payment of up to Forty Thousand and No/100 Dollars ($40,000.00)
by the Village for demolition, tree removal, construction fencing
and/or site preparation fees for the Project.
4. Payment of up to One Hundred Thousand and No/100 Dollars
($100,000.00) by the Village for a sewer extension in the public
right-of-way adjacent to the Property to serve the Project.
5. Payment of up to Sixty Thousand and No/100 Dollars ($60,000.00)
by the Village for water, sewer and utility work to serve the Project.
6. Payment of up to Sixty Thousand and No/100 Dollars ($60,000.00)
for the Developer's professional service costs for architectural,
engineering, legal, financial and/or planning services relative to the
Project.
C. Procedure for Payment of Incentives.
1. The Incentives are available and/or payable from the Village only
upon satisfaction by Developer of all the following conditions
precedent:
(i) Acquisition of all necessary Village zoning approvals for the
Project;
(ii) Acquisition of the Property on or before the Acquisition
Deadline and in compliance with all deadlines in Section
VI.A., as such deadlines may be extended from time to time;
(iii) Being current with all Federal, State and local tax
obligations;
(vi) Complying with the covenants, obligations and agreements
in Sections VIII, IX, X and XII of this Agreement; and
387385_5 8
(vii) Otherwise being in compliance with all of the terms of this
Agreement and the laws and regulations of the Village.
2. The Village shall authorize the payment of the Incentives in Section
V1.B.3.-5. directly to contractors or subcontractors on the Project,
as the case may be, upon satisfaction of all the following
conditions:
(i) The disbursement is authorized by this Agreement and the
disbursement is an Eligible Cost;
(ii) Developer has satisfied the conditions in Section VI.C.1.;
(iii) Developer has submitted to the Village's Director of Finance
a sworn disbursement request, along with appropriate
supporting documentation in relation thereto, requesting
payment of a portion of the Incentive, including Developer's
representation that the requested disbursement is an Eligible
Cost;
(iv) Developer is not in default of any material provision of this
Agreement;
(v) The Developer shall, upon request by the Village, provide
the Village with all reasonable and customary documentation
required by the Village to evidence the cost of the Incentive,
such records to include, but not be limited to, all invoices for
the claimed Incentive, all contracts with the Developer's
contractors, subcontractors, their affidavits, lien waivers with
invoices, copies of checks and any other documentation
reasonably requested by the Village and/or in the
possession of the Developer; and
(vi) The Village has validated the costs associated with the
disbursement request which shall be done within the ten (10)
business day period following the submission of the
disbursement request.
D. Payback by Developer. If this Agreement terminates due to the breach of
any of the Developer's obligations, Developer shall repay the Village the
Incentives incurred by the Village:
1. The Agreement is terminated before Developer commences
construction of the Project: One Hundred Percent (100%).
387385_5 9
2. The Agreement is terminated after Developer commences
construction of the Project but before the Developer completes
construction of the Project: Seventy Five Percent (75%).
3. The Agreement is terminated after Developer completes
construction of the Project but before Developer obtains a
Certificate of Project Completion: Twenty Five Percent (25%).
If this Agreement is cancelled or terminated pursuant to Section XVIII.A.,
Developer shall repay the Village all of the Incentives paid by the Village
pursuant to Section V1.B.3.-5.
Any repayment owed by Developer to the Village hereunder shall be made
by Developer within thirty (30) days of a written demand by the Village for
such repayment.
VII. UNDERTAKINGS ON THE PART OF THE VILLAGE
A. The Village agrees to:
1. Cooperate with Developer in Developer's attempts to obtain all
necessary approvals, licenses and/or permits from any
governmental or quasi -governmental entity other than the Village
and, upon request of Developer, will promptly execute any
applications or other documents (upon their approval by the Village)
which Developer intends to file with such other governmental
agencies, quasi -governmental agencies and/or utility companies in
regard to the Project.
2. Waive the fee for the connection of the Subject Property to the
Village's water supply occurring during the construction of the
Project.
B. The Village shall further promptly respond to, and/or process, and
consider reasonable requests of Developer for applicable building
approvals and/or permits, driveway permits, drive thru permits, special use
permits (if and to the extent applicable), curb cut permits, or other
approvals, permits and/or licenses necessary for the construction of the
Project. Approval of any building approvals and/or permit applications
and/or engineering plans and/or operating licenses (including liquor
licenses, subject to the applicant therefor being qualified to receive same
under both State law and the Village's ordinances) shall be contingent on
the Developer providing all required and requested documentation
including, but not limited to, building plans required to substantiate that
said improvements fully conform with all applicable State statutes and also
all Village ordinances and codes, as well as receipt of all required building
387385_5 10
approvals from any federal, state, regional or county agencies having
applicable jurisdiction.
VIII. DEVELOPER'S OBLIGATIONS
Developer shall have the obligations set forth below, in addition to those set forth
elsewhere in this Agreement, for the development, construction, financing,
completion and furtherance of the Project:
A. The Developer shall construct the Project materially and substantially in
conformance with the approvals therefor from the Village. The Developer
shall pay or cause to be paid all building -related fees required by the
Village Code.
B. The Developer shall at all times acquire, install, construct, operate and
maintain the Project in substantial conformance with all applicable laws,
rules, ordinances, and regulations. All work with respect to the Project
shall substantially conform to all applicable federal, State and local laws,
regulations and ordinances, including, but not limited to, zoning,
subdivision and planned development codes, building codes,
environmental laws (including any law relating to public health, safety and
the environment and the amendments, regulations, orders, decrees,
permits, licenses or deed restrictions now or hereafter promulgated
thereafter), life safety codes, property maintenance codes and any other
applicable codes and ordinances of the Village, or any of its rules or
regulations or amendments thereto which are in effect from time to time
during the construction and maintenance of the Project and/or during the
term of this Agreement.
C. During the initial construction of the Project as herein contemplated, the
Developer shall stage its construction of the Project to avoid to the fullest
extent possible any material community disruption. During construction,
the Developer shall also keep all public streets used by the Developer
clean on a daily basis, and for each day in which such public streets are
not properly clean and such condition is not remedied within twenty four
(24) hours of written notice to Developer, the Developer shall pay the
Village the sum of Two Hundred Fifty and No/100 Dollars ($250.00) for
each such violation.
D. Developer shall park and stage all construction equipment, materials and
vehicles to be used in relation to the construction of the Project on the
Property.
E. Developer shall submit written evidence to the Village, in a form and
substance reasonably satisfactory to the Village, that Developer has
access to sufficient funds to pay any costs of the Project within ninety (90)
387385_5 11
days after the Effective Date. Such evidence can include, without
limitation, commitments for financing and/or letters of credit from a lender,
and/or investor commitments, for the anticipated costs of such Project.
F. Developer shall meet with the Corporate Authorities and Village staff and
make presentations to the Corporate Authorities and Village staff as
reasonably requested by the Village Mayor or Village Manager in order to
keep the Village apprised of the progress of the Project.
G. The Developer shall have a period of ninety (90) days after the Effective
Date (the "Due Diligence Period") to perform investigations of the
Property, including, but not limited to environmental investigations, and
determine, in Developer's sole and absolute discretion, whether the
Property is suitable for Developers use. Developer shall have the right to
terminate this Agreement, at any time prior to the expiration of the Due
Diligence Period, as a result of an adverse environmental condition on the
Property, which is discovered by the Developer and which either prevents
the construction of the Project by the Developer, in Developer's
reasonable judgment, or materially increases the cost of the construction
of the Project.
IX. ADDITIONAL COVENANTS OF DEVELOPER
A. Developer Existence. Developer will do or cause to be done all things
necessary to preserve and keep in full force and effect its existence and
standing as a an Illinois limited liability company, so long as this
Agreement is in effect, and for so long as Developer maintains an interest
in the Property or has any other remaining obligation pursuant to the terms
of this Agreement.
B. Further Assistance and Corrective Instruments. The Village and
Developer agree that they will, from time to time, execute, acknowledge
and deliver, or cause to be executed, acknowledged and delivered, such
supplements hereto and such further instruments as may be reasonably
required for carrying out the intention of or effectuate or facilitating the
performance of this Agreement to the extent legally permitted and within
the Village's and the Developer's sound legal discretion.
C. No Gifts. Developer covenants that no director, employee or agent of
Developer, or any other Person connected with Developer, has made,
offered or given, either directly or indirectly, to any member of the
Corporate Authorities, or any officer, employee or agent of the Village, or
any other Person connected with the Village, any money or anything of
value as a gift or bribe or other means of influencing his or her action in
his or her capacity with the Village.
387385_5 12
D. Disclosure. Concurrently with execution of this Agreement, Developer
shall disclose to the Village the names, addresses and ownership interests
of all Persons that have an ownership interest in the Developer, together
with such supporting documentation that may be reasonably requested by
the Village. Developer further agrees to notify the Village throughout the
term of this Agreement of the names, addresses and ownership interests
of any changes of owners of the Developer.
E. Prevailing Wage. Developer agrees to pay the Prevailing Wage under
the Illinois Prevailing Wage Act to the extent improvements relative to the
Project are, upon completion, owned by the Village.
X. ADHERENCE TO VILLAGE CODES AND ORDINANCES
Except as otherwise provided for in this Agreement, all development and
construction of the Project shall comply in all respects with the provisions in the
building, plumbing, mechanical, electrical, storm water management, fire
prevention, property maintenance, zoning and subdivision codes of the Village
and all other germane codes and ordinances of the Village in effect from time to
time during the course of construction of the Project.
XI. SPECIAL CONDITIONS
A. Certificate of Project Completion. Within thirty (30) days after written
request from Developer, and provided that Developer has not received
any notice of default under this Agreement or notice of non-compliance
with any Village codes with respect to Developer's construction
obligations, any of which have not been cured, and after the Village has
issued the final certificate of occupancy for the proposed building on the
Property, and has confirmed that the proposed building on the Property
has been constructed in substantial and material compliance with all
Village codes and this Agreement, the Village shall deliver a certificate of
completion and satisfaction of all construction terms, covenants and
conditions contained in this Agreement (the "Certificate of Project
Completion") or, if not complete or satisfied, a written statement as to what
deficiencies exist, and upon Developer's correction of such issues, the
Village shall then promptly issue to Developer a Certificate of Project
Completion.
B. Certification of Developer's Project Cost. Within thirty (30) days of the
issuance of the Certificate of Project Completion, the Developer shall
certify, in writing, to the Village, the amount spent by the Developer
(inclusive of all hard and soft costs) to complete the Project, and an
estimate of the number of jobs to be generated or created by the Project.
C. Release of Sales Tax Information. The Developer shall take all
387385_5 13
reasonable actions necessary to cause, and/or shall take all reasonable
actions necessary to require, any tenants or business entity occupant(s) of
the Project to cause, the Illinois Department of Revenue to release the
sales tax information/documentation, relative to the Project, to the Village.
In the alternative, the Developer can file with the Village, or cause the
business entity occupant(s) of the Project to file with the Village, copies of
the sales tax returns filed by said business entity occupant(s) of the
Project with the Illinois Department of Revenue (currently the ST -2 form
filed with the Illinois Department of Revenue on a monthly basis). For
purposes of this subsection, sales tax means taxes generated from the
Project, and received by the Village, from the Retailers' Occupation Tax
Act, 35 I LCS 120/1, et seq. and the Service Occupation Tax Act, 35 I LCS
115/1, et seq.
D. Employment Opportunities. To the extent feasible, the Developer shall
make reasonable efforts to notify Village residents of employment
opportunities that are available relative to the Project, and, to the extent
permitted by law, make reasonable efforts to employ qualified residents of
the Village in relation to the Project.
XII. REPRESENTATIONS AND WARRANTIES OF DEVELOPER
Developer represents, warrants and agrees as the basis for the undertakings on
its part herein contained that as of the date hereof and until completion of the
Project:
A. Developer is an Illinois limited liability company, and is authorized to and
has the power to enter into, and by proper action has been duly authorized
to execute, deliver and perform, this Agreement. Developer is solvent,
able to pay its debts as they mature and financially able to perform all the
terms of this Agreement. To Developer's knowledge, there are no actions
at law or similar proceedings which are pending or threatened against
Developer which would result in any material and adverse change to
Developer's financial condition, or which would materially and adversely
affect the level of Developer's assets as of the date of this Agreement or
that would materially and adversely affect the ability of Developer to
proceed with the construction and development of the Project.
B. Neither the execution and delivery of this Agreement by Developer, the
consummation of the transactions contemplated hereby by Developer, nor
the fulfillment of or compliance with the terms and conditions of this
Agreement by Developer conflicts with or will result in a breach of any of
the terms, conditions or provisions of any offerings or disclosure statement
made or to be made on behalf of Developer (with Developer's prior written
approval), any organizational documents, any restriction, agreement or
instrument to which Developer or any of its partners, directors, or
387385_5 14
venturers is now a party or by which Developer or any of its partners,
directors or venturers is bound, or constitutes a default under any of the
foregoing, or results in the creation or imposition of any prohibited lien,
charge or encumbrance whatsoever upon any of the assets or rights of
Developer, any related party or any of its partners, directors or venturers
under the terms of any instrument or agreement to which Developer, any
related party or any of its partners, directors or venturers is now a party or
by which Developer, any related party or any of its partners, directors or
venturers is bound.
C. Developer has, or will have within sixty (60) days of the Acquisition Date,
sufficient financial and economic resources to implement and complete
Developer's obligations contained in this Agreement.
D. Developer represents and warrants that it has not received any notice
from any local, State or federal official that the activities of Developer with
respect to the Property and/or the Project may or will be in violation of any
environmental law or regulation. Developer is not aware of any State or
federal claim filed or planned to be filed by any Party relating to any
violation of any local, State or federal environmental law, regulation or
review procedure, and Developer is not aware of any violation of any local,
State or federal law, regulation or review procedure which would give any
person a valid claim under any State or federal environmental statute.
E. Developer represents and warrants to the Village that Developer, and its
respective principals, are experienced in the design, construction and
completion of housing developments similar or comparable to the Project,
and are able to provide the Project with the necessary skill, knowledge
and expertise as well as input from other experts and consultants in the
construction and operation of such a Project.
F. Developer and successor owners agree to pay or cause to be paid all
general and special real estate taxes levied during their respective period
of ownership against their respective interest in the Project on or prior to
the date same is due and said taxes shall not become delinquent.
Developer and successor owners shall deliver evidence of payment of
such taxes to the Village upon request.
G. Consistent with its covenant in subsection F. above, the Developer and
successor owners shall not assert a tax-exempt status during their
respective period of ownership. This prohibition shall run with the land and
shall expire on the date the Redevelopment Project Area expires or an
earlier date if agreed by the Village and Developer.
H. Developer represents and warrants to the Village that, in connection with
this transaction, no third -party broker or finder has been engaged or
387385_5 15
consulted by it, or its subsidiaries or agents or employees, or, through
such the Developer's actions (or claiming through such party), which is
entitled to compensation as a consequence of this transaction.
XIII. REPRESENTATIONS AND WARRANTIES OF THE VILLAGE
The Village represents, warrants and agrees as the basis for the undertakings on
its part herein contained that:
A. The Village is an Illinois home rule municipal corporation duly organized
and validly existing under the laws of the State of Illinois, and has all
requisite corporate power and authority to enter into this Agreement.
B. The execution, delivery and performance of this Agreement and the
consummation by the Village of the transactions provided for herein and
the compliance with the provisions of this Agreement:
1. have been duly authorized by all necessary corporate action on the
part of the Village;
2. require no other consents, approvals or authorizations on the part
of the Village in connection with the Village's execution and delivery
of this Agreement; and
3. shall not, by lapse of time, giving of notice or otherwise result in any
breach of any term, condition or provision of any indenture,
agreement or other instrument to which the Village is subject.
C. To the best of the Village's knowledge, there are no proceedings pending
or threatened against or affecting the Village or the TIF District in any
court or before any governmental authority which involves the possibility of
materially or adversely affecting the ability of the Village to perform its
obligations under this Agreement, except for the case of Board of
Education of Township High School District No. 214 v. Village of Mount
Prospect, 2017 CH 08478, pending in the Circuit Court of Cook County.
D. The Village has sufficient financial and economic resources to implement
and complete the Village's obligations contained in this Agreement.
E. The Village represents and warrants to the Developer that, in connection
with this transaction, no third -party broker or finder has been engaged or
consulted by it, or its subsidiaries or agents or employees, or, through
such the Village's actions (or claiming through such party), is entitled to
compensation as a consequence of this transaction.
XIV. INSURANCE
387385_5 16
A. The Developer, and any successor in interest to the Developer, shall
obtain and continuously maintain insurance on the Property and the
Project and, from time to time at the request of the Village, furnish proof to
the Village evidence that the premiums for such insurance have been paid
and the insurance is in effect. The insurance coverage described below is
the minimum insurance coverage that the Developer must obtain and
continuously maintain, provided that the Developer shall obtain the
insurance described in subsection 1. below prior to the commencement of
construction of any portion of the Project:
1. Builder's risk insurance, written on the so-called "Builder's Risk -
Completed Value Basis," in an amount equal to one hundred
percent (100%) of the insurable value of the Project at the date of
completion, and with coverage available in non -reporting form on
the so-called "all risk" form of policy.
2. Comprehensive general liability insurance (including operations,
contingent liability, operations of subcontractors, completed
operations and contractual liability insurance) together with an
Owner's/Contractor's Policy on a primary non-contributory basis
naming the Village and its officers, agents and employees as
additional insureds, with limits against bodily injury and property
damage of not less than $5,000,000.00 for each occurrence (to
accomplish the above -required limits, an umbrella excess liability
policy may be used), written on an occurrence basis.
3. Workers compensation insurance, with statutory coverage if
applicable to the Developer.
B. All insurance required in this Section XIV. shall be obtained and
continuously maintained through responsible insurance companies
selected by the Developer or its successors that are authorized under the
laws of the State to assume the risks covered by such policies. Unless
otherwise provided in this Section XIV., cancellation relative to each policy
shall be as provided by the policy; however, the Village must be named as
a cancellation notice recipient. Not less than fifteen (15) days prior to the
expiration of any policy, the Developer, or its successor or assign, must
renew the existing policy or replace the policy with another policy
conforming to the provisions of this Section XIV. In lieu of separate
policies, the Developer or its successor or assign, may maintain a single
policy, blanket or umbrella policies, or a combination thereof, having the
coverage required herein.
XV. INDEMNIFICATION, HOLD HARMLESS AND RELEASE PROVISIONS
387385_5 17
A. Developer releases from and covenants and agrees that the Village, its
governing body members, officers, agents, including independent
contractors, consultants, attorneys, servants and employees thereof (for
purposes of this Section XV., collectively the "Village Indemnified Parties")
shall not be liable for, and agrees to indemnify and hold harmless the
Village Indemnified Parties against any loss or damage to property or any
injury to or death of any person occurring at or about or resulting from any
defect in the Project or the Property or arising pursuant to the Developer's
obligations or warranties under this Agreement or actions in furtherance
thereof to the extent not attributable to the gross negligence or willful
misconduct of the Village Indemnified Parties; provided, that this waiver
shall not apply to the warranties made or obligations undertaken by the
Village in this Agreement.
B. Except for gross negligence or willful misconduct of the Village
Indemnified Parties, Developer agrees to indemnify the Village
Indemnified Parties, now and forever, and further agrees to hold the
aforesaid harmless from any claims, demands, suits, costs, expenses
(including reasonable attorney's fees), actions or other proceedings
whatsoever by any person or entity whatsoever arising or purportedly
arising from the actions or inactions of Developer (or if other Persons
acting on their behalf or under its direction or control) under this
Agreement, or the transactions contemplated hereby or the acquisition,
construction, installation, ownership, and operation of the Project.
C. Except as otherwise set forth herein, the Village makes no warranties or
representations regarding, nor does it indemnify the Developer with
respect to, the existence or nonexistence on or in the vicinity of the
Property, or anywhere within the TIF District of any toxic or hazardous
substances of wastes, pollutants or contaminants (including, without
limitation, asbestos, urea formaldehyde, the group of organic compounds
known as polychlorinated biphenyls, petroleum products including
gasoline, fuel oil, crude oil and various constituents of such products, or
any hazardous substance as defined in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C.
§§ 9601-9657, as amended) (collectively, the "Hazardous Substances").
The foregoing disclaimer relates to any Hazardous Substance allegedly
generated, treated, stored, released or disposed of, or otherwise placed,
deposited in or located on or in the vicinity of the Property, or within the
TIF District, as well as any activity claimed to have been undertaken on or
in the vicinity of the Property, that would cause or contribute to causing (1)
the Property to become a treatment, storage or disposal facility within the
meaning of, or otherwise bring the Property within the ambit of, the
Resource Conservation and Recovery Act of 1976 ("RCRA17), 42 U.S.C.
§6901 et seq., or any similar State law or local ordinance, (2) a release or
threatened release of toxic or hazardous wastes or substances, pollutants
387385_5 18
or contaminants, from the Property, within the meaning of, or otherwise
bring the Property within the ambit of, CERCLA, or any similar State law or
local ordinance, or (3) the discharge of pollutants or effluents into any
water source or system, the dredging or filling of any waters or the
discharge into the air of any emissions, that would require a permit under
the Federal Water Pollution Control Act, 33 U.S.C. §1251 et seq., or any
similar State law or local ordinance. Further, the Village makes no
warranties or representations regarding, nor does the Village indemnify
the Developer with respect to, the existence or nonexistence on or in the
vicinity of the Project, or anywhere within the Property or the TIF District,
of any substances or conditions in or on the Property, that may support a
claim or cause of action under RCRA, CERCLA, or any other federal,
State or local environmental statutes, regulations, ordinances or other
environmental regulatory requirements. The Village makes no
representations or warranties regarding the existence of any above
ground or underground tanks in or about the Property, or whether any
above or underground tanks have been located under, in or about the
Property have subsequently been removed or filled. The Village warrants
and represents to Developer that it has not received notice, other than as
already provided to the Developer by the Village in the environmental
reports provided to the Developer by the Village, from any agency,
individual or entity of any violation of any environmental law relating to any
Hazardous Substances affecting the Property.
D. The Developer waives any claims against the Village Indemnified Parties,
and their members and boards, for indemnification, contribution,
reimbursement or other payments arising under federal, State and
common law relating to the environmental condition of the land comprising
the Property.
E. No liability, right or claim at law or inequity shall attach to or shall be
incurred by the Village's Mayor, Trustees, officers, officials, attorneys,
agents and/or employees, and any such rights or claims of the Developer
against the Village's Mayor, Trustees, officers, officials, attorneys, agents
and/or employees are hereby expressly waived and released as a
condition of and as consideration for the execution of the Agreement by
the Village.
F. The Village releases from and covenants and agrees that Developer, its
members, shareholders, officers, directors, agents, including independent
contractors, consultants, attorneys, servants and employees thereof (for
purposes of this Section XV., collectively the "Developer Indemnified
Parties") shall not be liable for, and agrees to indemnify and hold harmless
the Developer Indemnified Parties against any loss or damage to property
or any injury to or death of any person arising pursuant to the Village's
obligations or warranties under this Agreement or actions in furtherance
387385_5 19
thereof to the extent not attributable to the gross negligence or willful
misconduct of the Developer Indemnified Parties.
XVI. EVENTS OF DEFAULT AND REMEDIES
A. Developer Events of Default. The following shall be Events of Default
with respect to this Agreement:
1. If any material representation made by Developer in this
Agreement, or in any certificate, notice, demand or request made
by a Party hereto, in writing and delivered to the Village pursuant to
or in connection with any of said documents, shall prove to be
untrue or incorrect in any material respect as of the date made;
provided, however, that such default shall constitute an Event of
Default only if Developer does not remedy the default, within thirty
(30) days after written notice from the Village and in any event
(subject to Uncontrollable Circumstances) cures such default within
ninety (90) days after such notice.
2. Default by Developer for a period of thirty (30) days after written
notice thereof in the performance or breach of any material
covenant contained in this Agreement concerning the existence,
structure or financial condition of Developer; provided, however,
that such default or breach shall not constitute an Event of Default if
such default cannot be cured within said thirty (30) days and
Developer, within said thirty (30) days, initiates and diligently
pursues appropriate measures to remedy the default and in any
event (subject to Uncontrollable Circumstances) cures such default
within sixty (60) days after such notice.
3. Default by Developer for a period of thirty (30) days after written
notice thereof in the performance or breach of any material
covenant, warranty or obligation contained in this Agreement;
provided, however, that such default shall not constitute an Event of
Default if such default cannot be cured within said thirty (30) days
and the Developer, within said thirty (30) days initiates and
diligently pursues appropriate measures to remedy the default and
in any event (subject to Uncontrollable Circumstances) cures such
default within sixty (60) days after such notice.
4. The entry of a decree or order for relief by a court having
jurisdiction in the premises in respect of Developer in an involuntary
case under the federal bankruptcy laws, as now or hereafter
constituted, or any other applicable federal or State bankruptcy,
insolvency or other similar law, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of
387385_5 20
Developer for any substantial part of its property, or ordering the
winding -up or liquidation of its affairs and the continuance of any
such decree or order unstayed and in effect for a period of forty five
(45) consecutive days.
5. The commencement by Developer of a voluntary case under the
federal bankruptcy laws, as now or hereafter constituted, or any
other applicable federal or State bankruptcy, insolvency or other
similar law, or the consent by Developer to the appointment of or
taking possession by a receiver, liquidator, assignee, trustee,
custodian, sequestrator (or similar official) of Developer or of any
substantial part of the Property, or the making by any such entity of
any assignment for the benefit of creditors or the failure of
Developer generally to pay such entity's debts as such debts
become due or the taking of action by Developer in furtherance of
any of the foregoing, or a petition is filed in bankruptcy by others.
6. Failure to have funds as timely required to meet Developer's
obligations to construct the Project and obtain a Certificate of
Project Completion.
7. A sale, assignment, or transfer of the Project, except in accordance
with this Agreement.
8. Material change in the management of Developer, except in
accordance with this Agreement.
9. Developer abandons the Project on the Property. Abandonment
shall be deemed to have occurred when work stops on the Property
for more than thirty (30) consecutive days for any reason other than
Uncontrollable Circumstances and such work is not resumed within
thirty (30) days of written demand by the Village.
10. Developer fails to comply with applicable governmental codes and
regulations in relation to the construction and maintenance of the
Project contemplated by this Agreement and such failure continues
for more than thirty (30) days after written notice thereof from the
Village; provided, however, that such default or breach shall not
constitute an Event of Default if such default cannot be cured within
said thirty (30) days and Developer, within said thirty (30) days,
initiates and diligently pursues appropriate measures to remedy the
default and in any event (subject to Uncontrollable Circumstances)
cures such default within sixty (60) days after such notice. The
maintenance requirement of this provision shall not be covered by
and shall survive any Certificate of Project Completion or Estoppel
Certificate of any kind issued during the term of this Agreement.
387385_5 21
11. A material representation or warranty of Developer is not true for a
period of thirty (30) days after written notice from the Village;
provided, however, that such default or breach shall not constitute
an Event of Default if such default cannot be cured within said thirty
(30) days and Developer, within said thirty (30) days, initiates and
diligently pursues appropriate measures to remedy the default and
in any event (subject to Uncontrollable Circumstances) cures such
default within sixty (60) days after such notice.
B. Village Events of Default. The following shall be Events of Default with
respect to this Agreement:
1. If any material representation made by the Village in this
Agreement, or in any certificate, notice, demand or request made
by a Party hereto, in writing and delivered to Developer pursuant to
or in connection with any of said documents, shall prove to be
untrue or incorrect in any material respect as of the date made;
provided, however, that such default shall constitute an Event of
Default only if the Village does not remedy the default, within thirty
(30) days after written notice from Developer and in any event
(subject to Uncontrollable Circumstances) cures such default within
ninety (90) days after such notice.
2. Default by the Village in the performance or breach of any material
covenant contained in this Agreement concerning the existence,
structure or financial condition of the Village; provided, however,
that such default or breach shall constitute an Event of Default only
if the Village does not, within thirty (30) days after written notice
from Developer, initiate and diligently pursue appropriate measures
to remedy the default and in any event (subject to Uncontrollable
Circumstances) cures such default within forty five (45) days after
such notice.
3. Default by the Village in the performance or breach of any material
covenant, warranty or obligation contained in this Agreement;
provided, however, that such default shall not constitute an Event of
Default if the Village, commences cure within thirty (30) days after
written notice from Developer and in any event cures such default
within forty five (45) days after such notice, subject to
Uncontrollable Circumstances.
4. A material representation or warranty of the Village is not true for a
period of thirty (30) days after written notice from Developer;
provided, however, that such default or breach shall not constitute
an Event of Default if such default cannot be cured within said thirty
387385_5 22
(30) days and the Village, within said thirty (30) days, initiates and
diligently pursues appropriate measures to remedy the default and
in any event (subject to Uncontrollable Circumstances) cures such
default within forty five (45) days after such notice.
C. Remedies for Default. In the case of an Event of Default hereunder:
1. The defaulting Party shall, upon written notice from the non -
defaulting Party, take prompt action to cure or remedy such Event
of Default. If, in such case, any monetary Event of Default is not
cured, or if in the case of a non -monetary Event of Default, except
for circumstances contemplated under Section XVI.A.1., action is
not taken or not diligently pursued, or if action is taken and
diligently pursued but such Event of Default or breach shall not be
cured or remedied within the cure periods specified therefor, unless
extended by mutual agreement, the non -defaulting Party may
institute such proceedings as may be necessary or desirable in its
opinion to cure or remedy such default or breach, including, but not
limited to, proceedings to compel specific performance of the
defaulting Party's obligations under this Agreement.
2. In case a Party shall have proceeded to enforce its rights under this
Agreement and such proceedings shall have been discontinued or
abandoned for any reason, then, and in every such case, the
Parties shall be restored respectively to their several positions and
rights hereunder, and all rights, remedies and powers of Developer
and the Village shall continue as though no such proceedings had
been taken.
3. In no event shall either Party be liable to the other for any
consequential or punitive damages suffered as a result of a default
under this Agreement.
D. Agreement to Pay Attorneys' Fees and Expenses. In the event an
Event of Default is not cured within the applicable cure periods and the
Parties employ an attorney or attorneys or incur other expenses for the
collection of the payments due under this Agreement or the enforcement
of performance or observance of any obligation or agreement herein
contained, the non -prevailing Party shall pay, on demand, the prevailing
Party's reasonable fees of such attorneys and such other reasonable
expenses in connection with such enforcement action.
E. No Waiver by Delay or Otherwise. Any delay by any Party in instituting
or prosecuting any actions or proceedings or otherwise asserting its rights
under this Agreement shall not operate to act as a waiver of such rights or
to deprive it of or limit such rights in any way (it being the intent of this
387385_5 23
provision that any Party should not be deprived of or limited in the
exercise of the remedies provided in this Agreement because of concepts
of waiver, laches or otherwise); nor shall any waiver in fact made with
respect to any specific Event of Default be considered or treated as a
waiver of the rights by the waiving Party of any future Event of Default
hereunder, except to the extent specifically waived in writing. No waiver
made with respect to the performance, nor the manner or time thereof, of
any obligation or any condition under the Agreement shall be considered a
waiver of any rights except if expressly waived in writing.
F. Rights and Remedies Cumulative. The rights and remedies of the
Parties to this Agreement, whether provided by law or by this Agreement,
shall be cumulative, and the exercise of any one or more of such remedies
shall not preclude the exercise by such Party, at that time or different
times, of any other such remedies for the same Event of Default.
G. Legal and Other Fees and Expenses. Other than for demands, suits,
costs, expenses (including reasonable attorney's fees), actions or other
proceedings covered by Section XV. above, in the event that any third
party or parties institute any legal proceedings against the Developer
and/or the Village, which relate to the terms of this Agreement, then, in
that event, the Parties shall cooperate in the defense of any such lawsuit,
with each Party assuming, fully and vigorously, its own defense of such
lawsuit, and all costs and expenses of its own defense, of whatever nature
(including attorney's fees).
XVII. EQUAL EMPLOYMENT OPPORTUNITY
A. No Discrimination. Developer shall comply with all federal, state and
local laws relating to equal employment opportunity. To the extent
permitted by law, Developer shall use reasonable efforts to employ
qualified residents of the Village as to any direct hires by the Developer, if
applicable.
B. Advertisements. Developer shall, in all solicitations or advertisements for
employees placed by or on behalf of Developer, if applicable, state that all
qualified applicants will receive consideration for employment without
regard to race, color, religion, sex or national origin.
C. Contractors. Any contracts made by Developer with any general
contractor, agent, employee, independent contractor or any other Person
in connection with the Project shall contain language similar to that recited
in subsections A. and B. above. The Developer shall make reasonable
efforts to incorporate language similar to that recited in subsections A. and
B. in any leases made by Developer in connection with the Project.
387385_5 24
XVIII. MISCELLANEOUS PROVISIONS
A. Cancellation. Notwithstanding any terms in this Agreement to the
contrary, in the event Developer or the Village shall be prohibited, in any
material respect, from performing covenants and agreements or enjoying
the rights and privileges herein contained, or contained in the TIF Plan,
including Developer's duty to build the Project and operate the Project, by
the order of any court of competent jurisdiction, or in the event that all or
any part of the Act or any ordinance adopted by the Village in connection
with the Project, shall be declared invalid or unconstitutional, in whole or in
part, by a final decision of a court of competent jurisdiction and such
declaration shall materially affect the Project or the covenants and
agreements or rights and privileges of Developer or the Village, then and
in any such event, the Party so materially affected may, at its election,
cancel or terminate this Agreement in whole (or in part with respect to that
portion of the Project materially affected) by giving written notice thereof to
the other Parties within one hundred twenty (120) days after such final
decision or amendment. Further, the cancellation or termination of this
Agreement shall have no effect on the authorizations granted to Developer
for buildings, or the remodeling of any building, permitted and under
construction, to the extent permitted by said court order; and the
cancellation or termination of this Agreement shall have no effect on
perpetual easements contained in any recorded, properly executed
document.
B. Notices. All notices, certificates, approvals, consents or other
communications desired or required to be given hereunder shall be given
in writing at the addresses set forth below, by any of the following means:
(1) personal service, (2) electronic communications, whether by electronic
mail, telex, telegram or telecopy, but only if followed up, within one (1)
business day, by another method of notice, (3) overnight courier, or (4)
registered or certified first class mail, postage prepaid, return receipt
requested.
If to Village: Arlene Juracek, Mayor
Village of Mount Prospect
50 S. Emerson Street
Mount Prospect, Illinois 60056
Email: ajuracek@mountprospect.org
With a copy to: Michael Cassady, Village Manager
Village of Mount Prospect
50 S. Emerson Street
Mount Prospect, Illinois 60056
Email: mcassady@mountprospect.org
387385_5 25
C.
and: Klein, Thorpe and Jenkins, Ltd.
20 North Wacker Drive, Suite 1660
Chicago, Illinois 60606-2903
Attention: Lance C. Malina / Gregory T. Smith
Email: Icmalina@ktjlaw.com / gtsmith@ktjlaw.com
If to Developer: Park Terrace Mount Prospect, LLC
Attn: Richard Bondarowicz
Email: rich@smartgroupchicago.com
11 W. College Drive, Unit J
Arlington Heights, Illinois 60004
With a copy to: John A. Kukankos
One S. Wacker, Ste. 2500
Chicago, IL 60606
Email: john.kukankoslawpc@pretzel-stouffer.com
The Parties, by notice hereunder, may designate any further or different
addresses to which subsequent notices, certificates, approvals, consents
or other communications shall be sent. Any notice, demand or request
sent pursuant to either clause (1) or (2) hereof shall be deemed received
upon such personal service or upon dispatch by electronic means. Any
notice, demand or request sent pursuant to clause (3) shall be deemed
received on the day immediately following deposit with the overnight
courier, and any notices, demands or requests sent pursuant to clause (4)
shall be deemed received forty-eight (48) hours following deposit in the
mail.
Time is of the Essence. Time is of the essence of this Agreement.
Notwithstanding the foregoing, if the date for performance of any of the
terms, conditions and provisions of this Agreement shall fall on a
Saturday, Sunday or legal holiday, then the date of such performance
shall be extended to the next business day.
D. Integration. Except as otherwise expressly provided herein, this
Agreement supersedes all prior agreements, negotiations and discussions
relative to the subject matter hereof and is a full integration of the
agreement of the Parties.
E. Counterparts. This Agreement may be executed in any number of
counterparts, but in no event less than two (2) counterparts, each of which
shall be an original and each of which shall constitute but one and the
same Agreement.
387385_5 26
F. Recordation of Agreement. The Parties agree to record this Agreement
with the Cook County Recorder's Office against title to the Property. The
Village and the Developer shall equally share the cost of the recording
charges. The Developer's rights and obligations in this Agreement are
covenants running with title to the Property and successor owners of the
Property shall be and are bound by this Agreement to the same extent as
Developer.
G. Severability. If any provision of this Agreement, or any Section,
sentence, clause, phrase or word, or the application thereof, in any
circumstance, is held to be invalid, the remainder of this Agreement shall
be construed as if such invalid part were never included herein, and this
Agreement shall be and remain valid and enforceable to the fullest extent
permitted by law.
H. Choice of Law / Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois, and any
court proceedings between the Parties hereto shall be brought in Cook
County, Illinois.
I. Entire Contract and Amendments. This Agreement (together with the
exhibits attached hereto) is the entire contract between the Village and the
Developer relating to the subject matter hereof, supersedes all prior and
contemporaneous negotiations, understandings and agreements, written
or oral, between the Village and the Developer, and may not be modified
or amended except by a written instrument executed by the Parties
hereto.
J. Third Parties. Nothing in this Agreement, whether expressed or implied,
is intended to confer any rights or remedies under or by reason of this
Agreement on any other Person other than the Village and the Developer,
nor is anything in this Agreement intended to relieve or discharge the
obligation or liability of any third parties to the Village and the Developer,
nor shall any provision give any third parties any rights of subrogation or
action over or against the Village or the Developer. This Agreement is not
intended to and does not create any third party beneficiary rights
whatsoever.
K. Waiver. Any Party to this Agreement may elect to waive any right or
remedy it may enjoy hereunder, provided that no such waiver shall be
deemed to exist unless such waiver is in writing. No such waiver shall
obligate the waiver of any other right or remedy hereunder, or shall be
deemed to constitute a waiver of other rights and remedies provided
pursuant to this Agreement.
387385_5 27
L. Cooperation and Further Assurances. The Village and the Developer
each covenant and agree that each will do, execute, acknowledge and
deliver or cause to be done, executed and delivered, such agreements,
instruments and documents supplemental hereto and such further acts,
instruments, pledges and transfers as may be reasonably required for the
better clarifying, assuring, mortgaging, conveying, transferring, pledging,
assigning and confirming unto the Village or the Developer, or other
appropriate Persons, all and singular the rights, property and revenues
covenanted, agreed, conveyed, assigned, transferred and pledged under
or in respect of this Agreement.
M. No Joint Venture, Agency or Partnership Created. Nothing in this
Agreement, or any actions of the Parties to this Agreement, shall be
construed by the Parties or any third party to create the relationship of a
partnership, agency or joint venture between or among such Parties.
N. No Personal Liability of Officials of the Village or the Developer. No
covenant or agreement contained in this Agreement shall be deemed to
be the covenant or agreement of the Corporate Authorities, Village
Manager, any elected official, officer, partner, member, shareholder,
manager, director, agent, employee or attorney of the Village or the
Developer, in his or her individual capacity, and no elected official, officer,
partner, member, director, agent, employee or attorney of the Village or
the Developer shall be liable personally under this Agreement or be
subject to any personal liability or accountability by reason of or in
connection with or arising out of the execution, delivery and performance
of this Agreement, or any failure in that connection.
O. Repealer. To the extent that any ordinance, resolution, rule, order or
provision of the Village's code of ordinances, or any part thereof, is in
conflict with the provisions of this Agreement, the provisions of this
Agreement shall be controlling, to the extent lawful.
P. Term. This Agreement shall remain in full force and effect until the
termination of the Redevelopment Project Area.
Q. Estoppel Certificates. Each of the Parties hereto agrees to provide the
other, upon not less than fifteen (15) days prior request, a certificate
("Estoppel Certificate") certifying that this Agreement is in full force and
effect (unless such is not the case, in which case such Party shall specify
the basis for such claim), that the requesting Party is not in default of any
term, provision or condition of this Agreement beyond any applicable
notice and cure provision (or specifying each such claimed default) and
certifying such other matters reasonably requested by the requesting
Party. If either Party fails to comply with this provision within the time limit
specified, and if, after an additional seven (7) days' notice there still is no
387385_5 28
compliance, then said non -complying Party shall be deemed to have
appointed the other as its attorney-in-fact for execution of same on its
behalf as to that specific request only.
R. Assignment. This Agreement, and the rights and obligations hereunder,
may not be assigned by Developer prior to the expiration of one (1) year
from the date the Village issues Developer a Certificate of Project
Completion, unless the Village consents in writing to such assignment
which consent shall not be unreasonably withheld or delayed, and unless
the assignee consents in writing to be bound by the terms of this
Agreement. Thereafter, Developer may sell or transfer the Property, and
assign its right, duties and obligations hereunder, without the consent or
approval of the Village.
S. Municipal Limitations. All Village commitments hereunder are limited to
the extent required by law.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed on or as of the day and year first above written.
VILLAGE OF MOUNT PROSPECT,
an Illinois home rule municipal corporation
By:
Arlene Juracek, Mayor
D
. its
PARK TERRACE MOUNT PROSPECT, LLC
By:
Member
By:
Member
387385_5 29
ATTEST:
By:
Karen Agoranos, Deputy Village Clerk
ACKNOWLEDGMENT
State of Illinois )
)SS
County of Cook )
I, the undersigned, a Notary Public, in and for the County and State aforesaid,
DO HEREBY CERTIFY that Arlene Juracek and Karen Agoranos, personally known to
me to be the Mayor and Deputy Village Clerk of the Village of Mount Prospect, and
personally known to me to be the same persons whose names are subscribed to the
foregoing instrument, appeared before me this day in person and severally
acknowledged that as such Mayor and Deputy Village Clerk, they signed and delivered
the said instrument and caused the corporate seal of said municipal corporation to be
affixed thereto, pursuant to authority given by the Board of Trustees of said Illinois home
rule municipal corporation, as their free and voluntary act, and as the free and voluntary
act and deed of said Illinois home rule municipal corporation, for the uses and purposes
therein set forth.
GIVEN under my hand and official seal, this day of
201.
Notary Public
387385_5 30
ACKNOWLEDGMENT
State of Illinois )
)SS
County of Cook )
I, the undersigned, a Notary Public, in and for the County and State aforesaid,
DO HEREBY CERTIFY that Richard Bondarowicz and Slawomir Miodowski, personally
known to me to be the Members of Park Terrace Mount Prospect LLC , and personally
known to me to be the same persons whose names are subscribed to the foregoing
instrument, appeared before me this day in person and severally acknowledged that as
such they signed and delivered the said instrument and caused the seal of said limited
liability company to be affixed thereto, pursuant to authority given by the members of
said limited liability company , as their free and voluntary act, and as the free and
voluntary acts and deeds of said limited liability company, for the uses and purposes
therein set forth.
GIVEN under my hand and official seal, this day of
201.
Notary Public
387385_5 31
EXHIBIT A-1
Prospect and Main TIF District
Legal Description
(attached)
387385_5 32
EXHIBIT A-2
Prospect and Main TIF District
Map
(attached)
387385_5 33
EXHIBIT B
Legal Description of the Property
OWN
Common Address:
387385_5 34
EXHIBIT C
Site Plan for the Project
(attached)
387385_5 35
EXHIBIT D
Detailed Description of the Project
387385_5 36
RESOLUTION NO.
A RESOLUTION AUTHORIZING THE EXECUTION OF A REDEVELOPMENT
AGREEMENT BETWEEN THE VILLAGE OF MOUNT PROSPECT AND
PARK TERRACE MOUNT PROSPECT LLC.
WHEREAS, the Village of Mount Prospect has established a Tax Increment Financing
District for the purpose of redeveloping the downtown district; and
WHEREAS, in order to prepare the best plan for the redevelopment area, the Village of
Mount Prospect has determined that it would be in the best interest of the Village to enter
into a redevelopment agreement with Park Terrace Mount Prospect LLC.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND BOARD OF TRUSTEES
OF THE VILLAGE OF MOUNT PROSPECT, COOK COUNTY, ILLINOIS:
SECTION ONE: The Board of Trustees of the Village of Mount Prospect do hereby
authorize execution of an Agreement between the Village of Mount Prospect and Park
Terrace Mount Prospect LLC for the proposed 12 -unit rowhome project for property
located at 15-19 N. Elmhurst Avenue being subject of this Resolution, a copy of which is
attached hereto and hereby made a part hereof as Exhibit "A".
SECTION TWO: That this Resolution shall be in full force and effect from and after its
passage and approval in the manner provided by law.
AYES:
NAYS:
ABSENT:
PASSED and APPROVED this 20th day of March, 2018.
Arlene A. Juracek
Mayor
ATTEST:
Karen M. Agoranos
Village Clerk