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HomeMy WebLinkAboutRes 42-04 10/19/2004 vwl 9/2/04 RESOLUTION NO. 42-04 A RESOLUTION AUTHORIZING THE EXECUTION OF AN AGREEMENT BETWEEN THE VILLAGE OF MOUNT PROSPECT AND NORWOOD BUILDERS FOR THE PURCHASE AND REDEVELOPMENT OF PROPERTY AT 100 SOUTH EMERSON STREET 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 purchase and redevelopment agreement with Norwood Construction, Inc. NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND BOARD OF TRUSTEES OF THE VILLAGE OF MOUNT PROSPECT, COOK COUNTY, ILLINOIS: SECTION ONE: That the Mayor and Board of Trustees do hereby authorize execution of an Agreement between the Village of Mount Prospect and Norwood Construction, Inc. for the purpose of developing a plan for the former Village Hall parcel located at 100 South Emerson Street, being the subject of this Resolution, a copy of said Agreement is attached hereto and hereby made a part hereof as Exhibit "A". SECTION TWO: This Resolution shall be in full force and effect from and after its passage and approval in the manner provided by law. AYES: Corcoran, Hôefert, Lohrstorfer, Skowron, Wilks NAYS: None ABSENT: ladel PASSED and APPROVED this 19th day of OctohÞr ,2004. ATTEST: - Í;:¿fj ~ - Village Clerk H:ICLKOIfilesIWINIRESlAuth agrmt,VOMP & Norwood,100 S Emerson,Sept,O4.doc VillageHallParce1.1.6.04 AGREEMENT FOR SALE AND REDEVELOPMENT OF LAND THIS AGREEMENT (this "Agreement") is made by and between the VILLAGE OF MOUNT PROSPECT, Illinois, a municipal corporation (the "Village"), and NORWOOD CONSTRUCTION, INc., an Illinois corporation (the "Purchaser"). RECIT ALS WHEREAS, the Village and Purchaser have previously entered into an Option Agreement (the "Option") whereby Purchaser acquired from the Village an 8-year exclusive option to purchase that certain parcel of real estate consisting of approximately 0.686 acres commonly known as the "Village Hall Parcel" and also commonly known as 100 South Emerson Street, in the Village of Mount Prospect, County of Cook, and State of Illinois, together with all its improvements, appurtenances and beneficial easements (the "Property"), legally described on attached Exhibit A; and WHEREAS, Purchaser desires to exercise the Option and to purchase from the Village the Property pursuant to the terms and conditions set forth in the this Agreement; and WHEREAS, Purchaser intends to acqUire and construct or cause to be constructed, a mixed use building including residential and business uses and on-site parking (the "Improvements"); and WHEREAS, the Property is located in the Village's Tax Increment Finance (TIF) District. The TIF District was previously designated, adopted and approved by the Village; and 1 VillageHaIlParce1.1. 6. 04 WHEREAS, these Improvements and development will facilitate the goals and objectives of the Village's TIF District and provide for increased economic activity within the Village, increase the assessed valuation of the real estate situated within the Village, increase the sales tax revenues realized by the Village, enable the Village to control the development of the Property and otherwise be in the best interests of the Village. NOW THEREFORE, in consideration of the premises set forth above and the mutual obligations of the parties (the "Parties"), the Parties hereby covenant and agree as follows: Section One: Incorporation of Recitals The recitals set forth above constitute an integral part of this Agreement and are incorporated by this reference with the same force and effect as if fully set forth as agreements of the Parties. Section Two: Definitions For purposes of this Agreement, the following capitalized terms shall have the meanings indicated: A. "Improvements" shall have the meaning set forth in the recitals. B. "Project" shall mean the development of the Property and construction of the Improvements in accordance with the terms of this Agreement to consist of approximately 52 residential condominium units and approximately 14,000 sf of commercial space, with approximately 66 underground parking spaces and approximately 21 on-site surface parking spaces. 2 VillageHallParce1.1.6.04 C. "Title Company" shall mean Chicago Title Insurance Company and its affiliates. Section Three: Approvals Zoning Contingency, Permits and Other Governmental A. Zoning. Prior to the date of this Agreement, the Village has approved zoning reqillred for the Project, under Ordinance( s) N umber( s) 515.3 'lr ?tJlJ! ("Zoning Approvals"), and attached hereto as Exhibits "c" and "D" are the site plan and building elevations resulting from those Approvals ("Approved Site Plan" and "Approved Elevations", respectively). Such changes as Purchaser reasonably proposes and the Village approves as administrative changes during the construction permit and construction process ("Final Approved Site Plan and Elevations") may be allowed. B. Construction Permits and Other Governmental Approvals. Purchaser shall, at its expense, secure or cause to be secured, all necessary permits or other approvals from any other governmental agencIes (including without limitation the Village's agencies) having jurisdiction over such construction, development or work, or such portion of the work being performed. This shall include, without limitation, any applications and permits, documents or plats which may be required to be obtained from any local, federal or state environmental protection agency, or from any other agency which may have or exercise any jurisdiction of any type whatsoever which may affect the Property for the Final Approved Site Plan and Elevations (the "Governmental Approvals"). Purchaser will diligently pursue obtaining the Governmental Approvals. The Village will use its best efforts to assist and cooperate with Purchaser to secure the Governmental Approvals. Procurement of Governmental Approvals shall be a 3 VillageHallParcel.l.6.04 contingency of this Agreement and Purchaser's further obligations under it. For the purposes of this Agreement, Governmental Approvals shall include, without limitation, such further and other agreements (including but not limited to easements) as the Village and Purchaser shall agree upon for pre-construction, construction and post-construction repair, maintenance and operation of the Project's exterior areas, as well as sale and advertising thereof. C. Extent of Zoning Contingency and Governmental Approvals. The Governmental Approvals and Zoning Contingency must permit construction of the Project as defined. D. Construction Timetable. The construction of the Improvements shall commence within sixty (60) days after Closing of the Property. For these purposes the term "construction" shall include demolition of existing improvements. Closing shall not occur unless and until all Zoning Approvals and Governmental Approvals have been issued for the Project. The Project shall be substantially completed not later than twenty.. four (24) months after commencement of construction (after demolition), subject to weather permitting, force majeure, and extreme market conditions. For the purposes of this Agreement, "substantially completed" shall mean that the Project's core and shell (with residential units at vanilla box level only) is substantially complete to the point where a "building" certificate of occupancy can issue, and force majeure shall include, without limitation, the Village's failure to complete public infrastructure and/or streetscape improvements concurrently with Purchaser's substantial completion of the actual project building(s). Notwithstanding anything to the contrary in this Section or elsewhere in this Agreement, however, and subject to posting appropriate evidence of 4 VillageHallParcel.l.6.04 insurance with the Village, Purchaser shall have the right, at any time prior to issuance of any building permits (other than a demolition permit) and prior to Closing, but on not less than 5 days' prior notice to the Village, to cause the existing improvements on the Property to be demolished and removed at Purchaser's sole cost; if Purchase so elects, then the construction timetable shall not commence to run until actual excavation/shoring work commences (beyond removal of underground improvements), but in no event later than January 15,2005. E. Compliance with Regulations. Purchaser shall comply with the conditions of the Village's Development and Building Codes, including the payment of all fees and deposits on or before their respective established due dates. F. The Village shall reimburse Purchaser for the costs and expenses of bringing the Property up to "greenfield" condition (including, if Purchaser so chooses, the administrative costs and expenses of procuring a so-called "NFR" letter from the Illinois Environmental Protection Agency that attests to that condition without land use restriction and without engineered barriers or institutional or administrative controls). For these purposes "greenfield" shall include both underground contamination and asbestos conditions. The Village shall reimburse Purchaser promptly for the costs and expenses of such work. Section Four: Sale and Purchase Price Subject to all the terms, covenants and conditions of this Agreement, the Village agrees to sell, and Purchaser agrees to purchase the Property from the Village, for the total amount ("Purchase Price") equal to the sum of (a) $694,443.88 (for the residential condominium units) plus (b) $13.35 per approved square foot of BOMA net rentable 5 VillageHallParcel.l.6.04 retail space (currently estimated at approximately 14,000 square feet and to be finalized at the time of Closing). Section Five: Conveyance of Property, Closing and Title The Village shall convey to the Purchaser title by Special Warranty Deed ("Deed"). The conveyance and title shall, in addition to the provisions of this Agreement, be subject to the Permitted Exceptions as set forth in attached Exhibit B. The "New York Style" closing ("Closing") shall take place at Chicago Title Company, at a location to be mutually agreed upon, through a deed and money escrow within thirty (30) days after Governmental Approvals are satisfied and obtained and the Village has vacated the Property, unless the parties otherwise mutually agree in writing. The costs of the deed and money escrow and the "New York Style" closing shall be shared equally by the parties. The Village shall be responsible for keeping the Property exempt for real estate tax purposes up to and including the date of Closing; Purchaser shall be responsible for taxes that accrue from and after Closing. Prior to the Effective Date of this Agreement, the Village, at its expense, provided to Purchaser (I) a commitment ("Commitment") from the Title Company to issue an AL T A 1992 Owner's Policy of Title in a nominal amount, showing title in the Village and being subject only to (a) real estate taxes, if any, not yet due and payable, (b) covenants, conditions, and restrictions of record which do not interfere with Purchaser's intended use, and (c) the Permitted Exceptions. Within 5 days after the Effective Date, the Village shall increase the amount to the Purchase Price and shall name Purchaser as the proposed insured. Within twenty-one (21) days after the Effective Date, the Village shall provide an AL T A survey made and certified in favor of the Village, Purchaser and 6 VillageHallParce1.1.6.04 such other parties as Purchaser may designate by Spaceco, Inc. as surveyor, showing the Property as being not subject to gaps, gores, overlaps or other matters customarily considered to be survey defects. If Purchaser finds title and/or survey matters on such updates to be defective, the Village shall correct the survey defect and/or cause the Title Company to waive or endorse over the title defect within ten (10) days after Purchaser's notice to the Village. If the Village is unable to do so to Purchaser's sole and absolute satisfaction within such time, Purchaser shall have the right to cancel and terminate this Agreement by giving notice to the Village no later than five (5) days after being provided with the survey. Section Six: Access to Premises From the Effective Date until Closing, Purchaser, its representatives, agents, employees, lenders and contractors may, during reasonable business hours and on reasonable notice to the Village, have access to and the right to enter upon the Property for the purpose of physically investigating the Property or planning the Project. Purchaser shall indemnify and hold the Village harmless from and against any and all claims relating to Purchaser's access to and right to enter the Property and except as provided in Section 3.D. shall not cause any damage to the Property in the course of such conduct, returning the Property to its original condition. Section Seven: Limitation upon Encumbrance of Property Prior to the substantial completion of the Project, neither Purchaser nor any successor in interest to the Purchaser shall engage in any financing or other transaction which creates an encumbrance or lien upon the Property, except for only the following purposes: (a) obtaining funds necessary to acquire the Property; (b) obtaining funds 7 VillageHallParce1.1.6.04 necessary to construct the Project; (C) obtaining funds necessary to pay architects, surveyors, consultants or legal or title fees reasonably connected with the Project; (d) allowing unit acquisition mortgage loans; and (e) granting commercial tenants recordable interests under leaseholds at the Project. Section Eight: Covenants Running with the Land The parties agree, and each Deed shall so expressly provide, that the covenants provided in Section Seven shall be covenants running with the land which shall terminate with no further action of the parties being required, upon issuance of the first certificate of occupancy for the building or any portion of it. At Purchaser's request Seller shall execute such recordable instrument as Purchaser deems appropriate to terminate such covenants of record. Section Nine: Notices All notices herein required shall be in writing and shall be served on the Parties, either personally or mailed by certified or registered mail, or overnight courier as follows: If to the Village: Village of Mount Prospect 117 S. Main Mount Prospect, Illinois 60056 Attn: Village Clerk With a copies to: Terrence D. McCabe Ryan and Ryan 33 N. Dearborn St., Suite 1530 Chicago, IL 60602 and Everette M. Hill, Jr. Klein Thorpe and Jenkins Ltd. 20 North Wacker Drive Suite 1660 Chicago, IL 60606-2903 If to the Purchaser: Norwood Construction, Inc. 8 VillageHallParce1.1.6.04 7458 N. Harlem Avenue Chicago, Illinois 60631 Attn: Bruce Adreani, President With a copy to: Stephen Messutta, Esq. Norwood Construction, Inc. 7458 N. Harlem Avenue Chicago, Illinois 60631 Either party may, by notice in the manner provided herein, change the addresses set forth above. Section Ten: Legal Conformity The Purchaser shall construct the Project in conformity with all applicable laws and ordinances, including all applicable federal and state standards. The laws of the State of Illinois shall govern the interpretation and enforcement ofthis Agreement. The Village will not impose affordability requirements against the Project The Village will cooperate with Purchaser for a reasonable amount of signage for sale and leasing of the development and for events intended to attract prospective buyers and retailers to the development site during sale and leasing of the Improvements. Section Eleven: Remedies and Liability A. Each of the parties may institute legal action against the other party to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purposes of this Agreement, either at law or in equity, including, but not limited to the equitable remedy of an action for specific performance, except as otherwise provided in this Agreement. B. The rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, 9 VillageHallParce1.1.6.04 at the same time or different times, of any other rights or remedies for the same default or for any other default by the other party. c. Failure or delay by any party to perform any act required in this Agreement, subject to rights to extend contained in this Agreement, or delays permitted by mutual agreement of the parties shall constitute a default under this Agreement. The party who so fails or delays must, upon receipt of written notice of the existence of such default, immediately commence to cure, correct or remedy with due diligence. The party claiming such default shall give written notice of the alleged default to the party alleged to be in default, specifying the complained of default. Failure or delay in giving such notice shall not constitute a waiver of any default, nor shall it change the time of default. Except as required to protect against further damages, and except as otherwise expressly provided in this Agreement, proceedings against the party in default shall not bE; commenced until thirty (30) days after giving such notice absent emergency circumstances. If such default cannot be cured within the thirty (30) day period, said thirty (30) day period may be extended upon mutual consent of the parties for such time as they agree to be reasonably necessary for the curing of the same. If default is cured within the original thirty (30) day period or the agreed upon extended period, the default shall not be deemed to constitute a breach of this Agreement. A default not cured as provided above shall constitute a breach of this Agreement. Except as otherwise expressly provided in this Agreement, any failure or delay by any party in asserting any of its rights or remedies as to any default or alleged default or breach shall not operate as a waiver of any such default or breach of any rights or remedies it may have as a result of such default or breach. 10 VillageHallParce1.1.6.04 D. Each of the following acts or omissions of Purchaser shall constitute a breach of this Agreement: 1. Purchaser transfers, or suffers any involuntary transfer of its interest in the Property, or any part of it, in violation of this Agreement. 2. The filing or execution or occurrence of: (a) a petition filed by Purchaser seeking any debtor relief; (b) the making of an assignment for the benefit of creditors by Purchaser or its execution of any instrument for the purpose of effecting a composition of creditors; or (c) if Purchaser is adjudicated as bankrupt. Section Twelve: Assignment Purchaser may not assign this Agreement, without the prior consent of the Village, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, and without the prior consent of the Village, Purchaser shall have the right to assign this Agreement to an entity in the nature of an Illinois limited liability company or limited partnership equivalent of which Norwood Construction, Inc. is manager. Should such assignment not take place prior to Closing, Purchaser nevertheless shall have the right to designate a grantee of record for the Property. Section Thirteen: Mutual Indemnification To the extent permitted by law, Village and Purchaser agree to indemnify, defend and hold harmless the other party and its agents, employees, successors and assigns and in the instance of the Village, also its elected officials and officers, for any claims, suits, actions, costs liabilities, losses, damages, judgments, and expenses (including reasonable attorney's fees) suffered or incurred by the indemnified party by virtue of injury or death 11 VillageHallParce1.1.6.04 of person(s) or loss of or damage to property arising out of the acts or omissions of the indemnifying party in connection with this Agreement or the Project. Section Fourteen: Representations and Warranties of Purchaser Purchaser represents and warrants that: (a) Purchaser is a duly organized and validly existing business entity under the laws of the State of Illinois, is authorized to conduct its business as it is presently being conducted, is not in violation of any provisions of its organizational or operating Agreements or the laws of the State of Illinois, has power and legal right to enter into this Agreement, and has duly authorized the execution, delivery and performance of this Agreement by proper action. (b) The consummation of the transaction contemplated by this Agreement will not violate any provisions of the governing documents of Purchaser or constitute a default or result in the breach of any term or provision of any contract or agreement to which Purchaser is a party or by which it is bound. (c) There is no litigation, proceeding or investigation contesting the power or authority of Purchaser or its officers with respect to the Property, the Project, or this Agreement and Purchaser is unaware of any such litigation, proceedings, or investigation that has been threatened. (d) Purchaser has the technical expertise and the financial capacity and responsibility necessary to construct the Project and perform all of its obligations pursuant to this Agreement. Section Fifteen: Representations and Warranties of Village Village represents and warrants that: 12 VillageHallParce1.1.6.04 (a) It has all the power and legal right to enter into this Agreement and has duly authorized the execution, delivery and performance of this Agreement by proper action. (b) The consummation of the transaction contemplated by this Agreement will not violate any provisions of the governing documents of Village or constitute a default or result in the breach of any term or provision of any contract or Agreement to which Village is a party or by which it is bound. (c) There is no litigation, proceeding or investigation contesting the power or authority of Village or its officers with respect to the Property, the Project, or this Agreement and Village is unaware of any such litigation, proceedings, or investigation that has been threatened. Section Sixteen: Amendment or Waiver This Agreement, and any attached exhibits, may be amended only by the mutual consent of the parties and by the execution of the amendment by the Parties or their successors in interest. The parties may only waive any requirements or conditions contained in this Agreement in writing. Except as otherwise expressly provided in this Agreement, this Agreement expressly supersedes all prior Agreements (including without limitation the Option notwithstanding Section 10 of the Option itself but specifically excepting the Easement & Cost Allocation Agreement dated October of 2002 between the Village, -Purchaser and other parties recorded in Cook County as Document #0021281586), negotiations and discussions relative to its subject matter and is a full integration of the Agreement of the parties. The covenants and agreements of this Agreement which, by their terms, extend beyond Closing, shall survive Closing. 13 VillageHallParce1.1.6.04 Section Seventeen: Exhibits The Exhibits referred to and attached in this Agreement or incorporated by textual reference are incorporated by this reference and made a part of this Agreement. Section Eighteen: Time Time is of the essence of this Agreement. Section Nineteen: Waiver Either party to this Agreement may elect to waive any remedy to which it may be entitled. However, no such waiver shall be deemed to exist unless the party waiving such right or remedy does so in writing. No such waiver shall obligate such party to waive any other right or remedy, or shall be deemed to constitute a waiver of other rights and remedies provided said party pursuant to this Agreement. Section Twenty: Duplicate Originals and Counterparts This Agreement may be executed in duplicate originals or in several counterparts, each of which is deemed to be an original and all of which shall constitute one and the same agreement. Section Twenty-One: Severability If any section, subsection, term or provision of this Agreement or the application thereof to any party or circumstance shall, to any extent, be invalid or unenforceable, the remainder of said section, subsection, term or provision of this Agreement or the application of same to parties or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby. Section Twenty-Two: Limited Liability for Village 14 VillageHallParce1.1.6.04 The parties hereto specifically agree, that the Village of Mount Prospect shall have no liability for any breach of any of the terms of this Agreement in the form of punitive damages, compensatory damages or the payment of costs, expenses or attorneys' fees. The only liability the Village of Mount Prospect shall have for breach of any of the terms, conditions or provisions of this Agreement shall be liability in the form of specific performance of such terms, conditions or provisions of this Agreement. Section Twenty-Three: Headings The headings of the various paragraphs of this Agreement have been inserted for convenient reference only and shall not in any manner be construed as modifying, amending or affecting in any way the express terms and provisions hereof. Section Twenty-Four: No Joint Venture Neither anything in this Agreement nor any acts of the parties to this Agreement shall be construed by the parties or any third person to create the relationship of a partnership or joint venture between or among such parties. Section Twenty-Five: Entire Agreement Except as otherwise provided herein, this Agreement and the Exhibits hereto constitute the entire Agreement ofthe parties in regard to the subject matter hereof. Section Twenty-Six: Joint Work Product This Agreement is the joint work product of the Village and the Purchaser and has been negotiated by the parties and their respective legal counsel, and in the event of any ambiguity herein, no inference shall be drawn against either party on the basis of which party prepared this Agreement. 15 VillageHaIlParce1.1.6.04 Section Twenty-Seven: Economic Assistance Both parties acknowledge that there shall be no TIF Assistance provided for the Option Parcel above and beyond what is specifically stated in this Agreement. Notwithstanding the foregoing, if the Village, after the date of this Agreement, extends its existing TIF program and District that includes the Option Parcel, the Village in good faith shall entertain Purchaser's request for equitable participation therein but the Village shall be under no obligation to provide any assistance in connection therewith even if the same is available to eligible properties. This shall not preclude the Project from participating in any incentive program created by the Village after the Project is completed and leased. Section Twenty-Eight: Effective Date This Agreement shall be deemed dated and effective on the date the Village President and Village Clerk sign this Agreement, which date shall be adjacent to their signatures, but in no event prior to the date that Purchaser executes and delivers this Agreement to the Village for the Village's execution of it. 16 VillageHallParcel.l.6.04 IN WITNESS WHEREOF, the Village has caused this Agreement to be executed in its name and behalf by its Mayor or his proxy and attested by its Village Clerk, and the Purchaser has signed the same by its duly authorized officer or representative. VILLAGE: VILLAGE OF MOUMT PROSPECT, an Illinois municipal corpo . on Date: /0/4 o/ð t/ / / Attest: -::? U . ./' ~.. ~ . /1. ayo j -' / ~JY~ V lllage Clerk PURCHASER: NORWOOD CONSTRUCTION, INC., an Illinois corporation Date: In lIe¡ jot{ , f I By Tit: List of Exhibits Exhibit A - Legal Description Exhibit B - Permitted Exceptions Exhibit C - Preliminary Site Plan Exhibit D - Preliminary Elevations (To be attached by the Parties Counsels) 17 VillageHallParce1.1.6.04 Exhibit A - Legal Description Lots 1,4 and 5 in Block 13 in Busse and Wille's Resubdivisionin Mount Prospect in the West half of Section 12, Township 41 North, Range 11 East of the Third Principal Meridian, according to the Plat thereof recorded March 31, 1906 as Document Number 3839591, also Lot 3 in Village Centre Phase 1-B being a Subdivision of Part of the Northwest Quarter of Section 12, Township 41 North, Range 11 East of the Third Principal Meridian, according to the Plat thereof recorded December 6, 2001 as Document Number 0011155055, in Cook County, Illinois. Exhibit B - Permitted Exceptions Taxes: None. Easements: Not later than Closing the Village and Purchaser shall cause one or more recordable agreements to be made (and recorded to the extent required to abrogate existing agreements) that have the following effect: a. abrogation of existing easements as to ingress, egress, construction, repair and maintenance of the surface parking areas of the Project and the parking areas immediately west of the Project, b. abrogation of an 8' easement along the westerly edge of the Property (which may require the consent or joinder of the property owner to the west of the Property, and c. providing for construction staging along Emerson Street and construction parking at the Village's new parking structure, and for other construction staging protocols as are reasonable and will help facilitate the construction of the Project. 18