EXHIBIT 10.48
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DEVELOPMENT AGREEMENT
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THIS AGREEMENT made and entered into this 26th day of May,
2004, by and between the CITY OF ELGIN, an Illinois municipal
corporation (hereinafter referred to as the "City"); and XXXX X.
XXXXXXXXXX AND SON, INC., an Illinois corporation, XXXXXX/XXXXX
LIMITED PARTNERSHIP, an Illinois limited partnership, and 000 XXXX
XXXXX XXXXXX LIMITED PARTNERSHIP, an Illinois limited partnership
(hereinafter collectively referred to as "Developer").
WHEREAS, the City Council has adopted Ordinance No. S4-04,
proposing the creation of the proposed Route 20 Tax Increment
Financing District pursuant to the Tax Increment Allocation
Redevelopment Act at 65 ILCS 5/11-74.4-1, et seq. (hereinafter
referred to as the "Proposed Route 20 Tax Increment Financing
District"); and
WHEREAS, the State of Illinois is the owner of an
approximately 90 acre parcel of property commonly known as 000 X.
Xxxxx Xxxxxx, Xxxxx, Xxxx Xxxxxx, Xxxxxxxx, such property being
legally described in Exhibit A attached hereto (hereinafter
referred to as the "Subject Property"); and
WHEREAS, the Subject Property is located within the Proposed
Route 20 Tax Increment Financing District; and
WHEREAS, the Subject property is currently improved with a
number of buildings most of which are vacant, dilapidated,
obsolete, deteriorated, contain asbestos and in a condition below
minimum code standards; and
WHEREAS, the State of Illinois has issued a public notice
declaring the Subject Property as surplus property and offering
the Subject Property for sale through a sealed bid process; and
WHEREAS, the Developer desires to acquire the Subject Property
and has submitted to the City a proposal for the redevelopment of
the Subject Property providing for Developer's corporate
headquarters offices consisting of approximately 98,000 square
feet, Developer's warehouse and nut and snack food processing
facilities consisting of approximately 960,000 square feet and
Developer's sales conference and tour center to be developed on
the Subject Property as hereinafter described; and
WHEREAS, the City Council of the City has determined that
Developer's proposed redevelopment of the Subject Property as
hereinafter described will further the goals and objectives of the
Proposed Route 20 Tax Increment Financing District; and
WHEREAS, Developer's proposal for the redevelopment of the
Subject Property will result in an increase in the City's tax
revenues; and
WHEREAS, it is unlikely that the proposed redevelopment of the
Subject Property will occur in the absence of limited development
assistance from the City; and
WHEREAS, in order to provide for the proposed redevelopment of
the Subject Property as hereinafter described which will further
the goals and objectives of the Proposed Route 20 Tax Increment
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Financing District and which will result in increases in the City's
tax base the City has agreed to provide certain development
assistance as hereinafter described; and
WHEREAS, the City of Elgin is a home rule unit authorized to
exercise any power and perform any function pertaining to its
government and affairs; and
WHEREAS, this Development Agreement resulting in furthering
and achieving the goals and objectives of the Proposed Route 20 Tax
Increment Financing District and resulting in increases in the
City's tax base are matters within the government and affairs of
the City; and
WHEREAS, the Developer desires to acquire the Subject Property
and redevelop the Subject Property in accordance with the terms and
conditions provided herein.
NOW, THEREFORE, for and in consideration of the mutual
undertakings as set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Recitals. The foregoing recitals are incorporated into
this agreement in their entirety.
2. Purchase of Subject Property from State. The City agrees
to attempt to purchase the Subject Property from the State of
Illinois for a net purchase price of four million dollars
($4,000,000). The acquisition of the Subject Property from the
State of Illinois shall be pursuant to the State of Illinois sealed
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bid process as provided in the State of Illinois' public notice of
the sale of the Subject Property. The bid form and other bid
documents submitted by the City to the State of Illinois in
connection with the bid for the proposed purchase of the Subject
Property shall be in a form and with terms which are agreed to
between the City and Developer. The acquisition of the Subject
Property from the State of Illinois shall also be pursuant to a
sale agreement between the State of Illinois and the City in a form
and with terms which are agreed to between the State of Illinois,
the City and the Developer (such sale agreement between the State
of Illinois and the City in a form and with terms which are agreed
to between the State of Illinois, the City and the Developer is
hereinafter referred to as the "Subject Sale Agreement with the
State"). In the event the State of Illinois and the City do not
enter into such a sale agreement for the Subject Property on or
before June 20, 2004, then the Developer, upon written notice to
the City, may elect to terminate this Agreement and thereupon, with
the exception of Section 35 hereof, this Agreement shall be deemed
cancelled and null and void and of no further force and effect and
with no further liability of either party hereunder. In the event
the State of Illinois and the City do not enter into such a sale
agreement for the Subject Property on or before December 31, 2004,
and Developer has not previously terminated this agreement pursuant
to the preceding sentence hereof, then either party, upon written
notice to the other party, may elect to terminate this agreement
and thereupon, with the exception of Section 35 hereof, this
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agreement shall be deemed cancelled and null and void and of no
further force and effect and with no further liability of either
party hereunder. Developer agrees to and shall pay on behalf of
the City to the State of Illinois the purchase price and all other
costs associated with the acquisition of the Subject Property from
the State of Illinois as may be specified in the Subject Sale
Agreement with the State. Developer agrees to and shall also
provide to the State of Illinois on behalf of the City the five
percent (5%) cash, certified check or personal check as required by
the State of Illinois bidding process or as may otherwise be
provided in the Subject Sale Agreement with the State. Developer
shall pay on behalf of the City the balance of the purchase price
to the State of Illinois in accordance with the terms of the
Subject Sale Agreement with the State. The Closing Date shall be
as provided in the Subject Sale Agreement with the State. To the
extent permitted by the terms of the Subject Sale Agreement with
the State the City shall terminate the Subject Sale Agreement with
the State upon written direction from the Developer to do so in the
event upon review of an ALTA survey for the Subject Property and
the title commitment for the Subject Property the Developer
determines that there are unpermitted encroachments or title
exceptions. The City agrees not to amend the Subject Sale
Agreement with the State without the written consent of Developer.
The City agrees and shall deliver copies of all notices sent or
received under the Subject Sale Agreement with the State. In the
event the City does not acquire title to the Subject Property from
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the State of Illinois on or before December 31, 2004, and in the
event the Subject Sale Agreement with the State may still be
terminated by the City without any liability or penalty to the
City, then the Developer, upon written notice to the City, may
elect to terminate this Agreement and thereupon, with the exception
of Section 35 hereof, this Agreement shall be deemed cancelled and
null and void and of no further force and effect and with no
further liability of either party hereunder. In the event the City
does not acquire title to the Subject Property from the State of
Illinois on or before December 31, 2005, and Developer has not
previously terminated this agreement pursuant to the preceding
sentence hereof, and in the event the Subject Sale Agreement with
the State may still be terminated by the City without any liability
or penalty to the City, then either party, upon written notice to
the other party, may elect to terminate this agreement and
thereupon, with the exception of Section 35 hereof, this agreement
shall be deemed cancelled and null and void and of no further force
and effect and with no further liability of either party hereunder.
To the extent permitted by the terms of the Subject Sale Agreement
with the State, the City agrees to terminate the Subject Sale
Agreement with the State upon written direction from the Developer
to do so. The parties further agree that upon Developer's written
direction to assign the Subject Sale Agreement with the State to
the Developer that the City shall assign its rights and obligations
of the Subject Sale Agreement with the State to the Developer. Any
such assignment shall provide for the Developer to assume all of
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the City's rights and obligations under the Subject Sale Agreement
with the State and shall release the City from any further
liability thereunder. The parties further understand and agree
that prior to the City entering into the Subject Sale Agreement
with the State that the Subject Sale Agreement with the State shall
be subject to the approval of Developer's Board of Directors and
lenders. Notwithstanding anything to the contrary in this
agreement, in the event that either party hereto has terminated
this agreement as permitted in the agreement, or in the event the
Developer is in breach of a material term of this agreement, and
Developer has failed to cure such breach after receiving written
notice thereof as provided in Section 23 of this agreement, the
City may terminate the Subject Sale Agreement with the State to the
extent permitted under the Subject Sale Agreement with the State.
In the event the Subject Sale Agreement with the State is
terminated to the extent permitted under the Subject Sale Agreement
with the State, then either the City or the Developer, upon written
notice to the other party, may elect to terminate this agreement
and thereupon, with the exception of Section 35 hereof, this
agreement shall be deemed cancelled and null and void and of no
further force and effect and of no further liability of either
party hereunder. In the event this agreement is terminated and the
Subject Sale Agreement with the State is terminated the xxxxxxx
money deposit paid by the Developer to the State under the Subject
Sale Agreement with the State shall be refunded to the Developer.
In the event this agreement is terminated and the City elects not
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to terminate the Subject Sale Agreement with the State, the City
agrees to reimburse to the Developer the xxxxxxx money deposit the
Developer has paid pursuant to the Subject Sale Agreement with the
State. In the event this agreement is terminated, and such
termination is not based upon a breach of this agreement by either
party hereto, and at such point in time the xxxxxxx money deposit
under the Subject Sale Agreement with the State is not refundable,
then (1) if the City elects to proceed with the purchase of the
Subject Property from the State, the City shall grant to the
Developer a mortgage interest to the Subject Property as provided
in Section 47 hereof in the amount of Developer's xxxxxxx money
deposit paid pursuant to the Subject Sale Agreement with the State,
or (2) if the City elects not to proceed with the purchase of the
Subject Property from the State the xxxxxxx money deposit paid by
the Developer pursuant to the Subject Sale Agreement with the State
shall be deemed forfeited. Notwithstanding anything to the
contrary in this agreement, Developer may not and shall not
terminate this agreement unless at the time of such termination the
Subject Sale Agreement with the State may also still be terminated
by the City without any liability or penalty to the City unless the
Developer agrees to and shall indemnify, hold harmless and
reimburse the City for any such liability or penalty.
3. Conveyance of Subject Property to Developer.
A. In the event the City does acquire title to the
Subject Property from the State of Illinois as provided in the
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preceding section hereof, the City shall thereafter convey the
Subject Property to the Developer by recordable quit claim deed,
subject to: the same title exceptions, encumbrances, conditions,
agreements and easements regarding the Subject Property as existed
as of the conveyance of the Subject Property from the State of
Illinois to the City; exceptions D, E, I, M, N, T, O, P, Q, R and S
of Schedule B of the Chicago Title Insurance Company title
commitment dated April 5, 2004, Order Number 1410000532428KA; real
estate taxes; covenants, conditions, encroachments and restrictions
of record; zoning laws, statutes and ordinances, including, but not
limited to, matters relating to the Tax Increment Allocation
Redevelopment Act and the Proposed Route 20 Tax Increment Financing
District; and the terms and obligations of this Development
Agreement.
B. Developer hereby acknowledges and agrees that, except
for the Environmental Remediation of the Subject Property as
defined and described in Section 11 hereof and the Subject Asbestos
Abatement and Building Demolitions on the Subject Property as
defined and described in Section 12 hereof, it is acquiring the
Subject Property in its "as is" and "where is" condition and that,
as of the closing(s) of the conveyance(s) of the Subject Property
from the City to the Developer, the Developer will be acquiring the
Subject Property with no direct recourse or direct rights of action
against the City or the City's officials, officers, employees,
agents, attorneys, personal representatives, successors and
assigns.
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C. The parties hereto further understand and agree that,
other than the City cooperating at no cost to the City with the
Developer in connection with the Environmental Remediation of the
Subject Property as defined and described in Section 11 hereof and
the Subject Asbestos Abatement and Building Demolitions on the
Subject Property as defined and described in Section 12 hereof, the
City shall have no responsibility for any responsive corrective
actions or remediation of any Environmental Condition (as
hereinafter defined) at, on or about the Subject Property and that
the Developer hereby waives and releases any claim for contribution
against, and covenants not to xxx the City, or the City's
officials, officers, employees, agents, attorneys, personal
representatives, successors and assigns, whether asserted directly
or indirectly, or whether in the nature of an action for
contribution, third party proceeding or other action or proceeding
whatsoever, for all damages, including, without limitation,
punitive damages, liabilities, costs, losses, diminutions in value,
fines, penalties, demands, claims, cost recovery actions, lawsuits,
administrative proceedings, orders, response action costs,
compliance costs, investigation expenses, consultant's fees,
attorney's fees, paralegal fees and litigation expenses
(collectively "Claims") arising out of or in connection with any
Environmental Condition (as hereinafter defined) on the Subject
Property or its migration to any other site or location or arising
out of or in connection with any Environmental Law (as hereinafter
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defined). The provisions of this Section 3C shall not apply to any
fraud or willful misconduct committed by the City.
D. The Developer for itself and its successors, assigns
and grantees, hereby covenants and agrees that in consideration of
this agreement neither the Developer nor its successors or assigns
or its grantees shall directly or indirectly xxx the City or the
City's officials, officers, employees, agents, attorneys, personal
representatives, successors or assigns for any Claims with respect
to, or arising out of any Environmental Condition (as hereinafter
defined) or any other condition of, or situation existing with
respect to the Subject Property or any Environmental Law (as
hereinafter defined). The covenant and agreement of the Developer
as set forth in the preceding sentence shall hereinafter be called
the "Covenant Not to Xxx". The parties hereto understand and agree
that Developer's Covenant Not to Xxx City as stated herein does not
apply to any action taken by the Developer to enforce any
contractual obligations of the City as may be specifically set
forth in this agreement. The provisions of this Section 3D shall
not apply to any fraud or willful misconduct committed by the City.
E. "Environmental Condition" shall mean any condition or
situations existing on, under, at or about the Subject Property,
the groundwater, subsurface water, and/or the underground soil and
geologic conditions thereunder, as of the date of the execution of
this agreement which (i) constitutes a violation of any State of
Illinois or federal environmental law, regulation or ordinance
and/or (ii) which does or might form the basis of any public or
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private claim or cause of action for the cleanup or remediation as
a result of the release, threatened release, migration or the
existence of any contaminants, pollutants, petroleum and petroleum
byproducts, crude oil or any fraction thereof, chemicals, asbestos,
wastes or substance (including, without limitation, regulated
substances and hazardous wastes and hazardous substances as such
terms are commonly used and understood within the framework of
existing federal and Illinois environmental laws and regulations)
and/or (iii) are a release or a threat of release of hazardous
substances or hazardous waste, and/or (iv) are described or
included in any report provided by the City to the Developer or in
any report generated by the investigations of the Subject Property.
F. "Subject Property" shall mean the property described
in this agreement, and any and all improvements thereon, and the
soils, subsoils, geologic formations and the groundwater on and
under such property.
G. "Environmental Law" shall mean any federal or state
law, statute, regulation, rule, order, decree, judgment or
direction concerning environmental protection or health and safety
including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, the
Resource, Conservation and Recovery Act, as amended, the Toxic
Substances Control Act, as amended, and the Illinois Environmental
Protection Act, as amended.
H. The "City" shall mean the City of Elgin and the City's
officials, officers, employees, agents, attorneys, personal
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representatives, boards and commissions, successors, assigns and
grantees.
I. The parties hereto further agree that in the event the
Subject Sale Agreement with the State and the conveyance of the
Subject Property from the State of Illinois to the City includes a
provision which requires the City to indemnify and/or hold harmless
the State of Illinois and/or its departments or agencies from
claims, damages or matters relating to environmental conditions or
matters regarding or relating to the Subject Property (hereinafter
referred to as the "State's Indemnity and Hold Harmless Agreement")
that as part of the conveyance(s) of the Subject Property from the
City to the Developer the City shall assign to the Developer and
the Developer shall accept from the City all of the obligations
under the State's Indemnity and Hold Harmless Agreement.
J. The provisions of Sections 3B - 3J shall be deemed
remade as of the closing(s) of the conveyance(s) of the Subject
Property from the City to the Developer and shall survive such
closing(s) and shall but not be merged into any closing documents
and shall be binding on the Developer and its successors, assigns
and grantees and shall run with title to the Subject Property.
4. Survey. The City has previously provided Developer with
a survey of the Subject Property prepared by Landmark Engineering
Group, Inc., dated March 3, 2004, Job No. 00-00-000. The City
shall not be required to provide any other survey of the Subject
Property.
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5. Closing. The time of closing of the conveyance of the
Subject Property from the City to the Developer shall be within
sixty (60) days following the occurrence of the latter of: (1) the
City's acquisition of the Subject Property from the State of
Illinois; (2) the adoption of the Subject Planned General
Industrial Zoning Ordinance for the Subject Property referred to in
Section 9 hereof; (3) the Developer completing the Environmental
Remediation of the Subject Property as defined and described in
Section 11 hereof including the Illinois Environmental Protection
Agency issuing pursuant to the State of Illinois Site Remediation
Program a No Further Remediation Letter(s) to a standard sufficient
to permit Developer's unqualified intended use of the Subject
Property for a nut and snack food processing facility; (4) the
Developer completing the Subject Asbestos Abatement and Building
Demolitions on the Subject Property as described in Section 12
hereof; (5) the establishment of the Route 20 Tax Incremental
Financing District referred to in Section 15 hereof; (6) the
approval of the expansion of the Enterprise Zone to include the
Subject Property referred to in Section 17 hereof; (7) receipt by
the Developer or confirmation by the Developer of all State of
Illinois incentives Developer is to receive in connection with the
Subject Redevelopment of the Subject Property; (8) the Subject
Property being available for full and free possession by the
Developer including the State of Illinois having completed its
relocation of its operations and employees from Building No. 69 on
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the Subject Property; and (9) Developer's review of updated title
and survey which conform to the provisions of Section 3A hereof.
Notwithstanding the foregoing, Developer may upon written notice to
the City elect to waive one or more of the foregoing listed
occurrences as a condition of the closing of the conveyance of the
Subject Property from the City to the Developer. If such
conditions do not occur as provided in this agreement and are not
waived, Developer may terminate this agreement as provided in this
agreement upon written notice to the City. The parties agree that
the closing of the conveyance of the Subject Property from the City
to the Developer may incur in phases in the event that the
Environmental Remediation of the Subject Property is conducted in
phases and the No Further Remediation Letter(s) for the Subject
Property are issued by the Illinois Environmental Protection Agency
according to such phasing and in the event the Subject Asbestos
Abatement and Building Demolitions on the Subject Property are also
conducted in phases. It is agreed that the consideration for the
City's conveyance of the Subject Property to the Developer shall
include Developer having paid the purchase price for the Subject
Property to the State of Illinois.
6. No Brokers or Agents Involved in this Transaction.
Developer represents and warrants that it has dealt with Interstate
Partners L.L.C. and XXX Xxxxxxx as its agents in connection with
this transaction and that it shall be responsible for and shall pay
to Interstate Partners L.L.C. and/or XXX Xxxxxxx any and all fees,
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costs or expenses such entities may be due. The City and Developer
each warrant to the other that they have dealt with no other
brokers or agents in connection with this transaction. Each party
agrees to indemnify, hold harmless and defend the other party from
any loss, cause, damages or expenses (including reasonable
attorney's fees) arising out of a breach of the warranties
contained in this section.
7. Title. The City has previously provided to the Developer
a title commitment for the Subject Property issued by Chicago Title
Insurance Company dated April 5, 2004, Order No. 1410 000532428KA.
The City shall not be required to provide any other title
commitment or title insurance for the Subject Property.
8. Prorations. There shall be no prorations for the
conveyance of the Subject Property from the City to the Developer.
9. Development Application Petition for Rezoning. Within
sixty (60) days following the entry into this agreement, the
Developer agrees to and shall submit to and file with the City a
formal development application and petition for rezoning for the
Subject Property (such development application and petition for
rezoning of the Subject Property is hereinafter referred to as the
"Development Application"). The City agrees to execute the
Development Application along with the Developer. All costs and
expenses relating to the Development Application shall be the
responsibility of and shall be paid for by the Developer. Such
Development Application shall request the rezoning of the Subject
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Property to a planned general industrial zoning district and shall
provide for the redevelopment of the Subject Property in general
conformance with the plans prepared by Xxxxxxx Architects Inc.,
dated May 21, 2004 attached hereto as Group Exhibit B, except as
same may be amended by the Developer during the development review
and the zoning process provided such changes do not alter the basic
nature of the Subject Redevelopment of the Subject Property and are
in compliance with the terms of this agreement and with an
ordinance reclassifying the redevelopment property to a planned
general industrial zoning district, or as directed by the City as
is necessary to comply with ordinances, building codes or other
requirements of law (such development proposal as set forth in
Group Exhibit B, as amended, is hereinafter referred to as the
"Subject Redevelopment Plan" and the redevelopment of the Subject
Property in conformance with the Subject Redevelopment Plan is
hereinafter referred to as the "Subject Redevelopment of the
Subject Property"). For the purposes of clarification, and except
as the Subject Redevelopment Plan may be amended as provided for in
this paragraph, the Subject Redevelopment of the Subject Property
by the Developer shall in general consist of Developer's corporate
headquarters offices consisting of approximately 98,000 square
feet, Developer's warehouse and processing facilities consisting of
approximately 960,000 square feet and Developer's sales conference
and tour center. The parties understand and agree that the
foregoing square footage references are preliminary and subject to
refinement by the Developer during the development review process.
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The Development Application to be submitted by the Developer to
the City for the City's review and approval shall include all
materials and documentation customarily required by the City for
such development applications and zoning petitions and shall
include architectural elevations of the buildings to be constructed
on the Subject Property showing and describing the architectural
style and materials of such buildings, preliminary engineering
plans, landscape plans, lighting plans, signage plans, estimated
development schedules for the subject development and such other
and further materials and documentation as may be reasonably
required by the City. The City agrees to give prompt consideration
to the Development Application. (The planned general industrial
zoning district ordinance for the Subject Property authorizing the
use of the Subject Property for the Subject Redevelopment of the
Subject Property is hereinafter referred to as the "Subject Planned
General Industrial Zoning Ordinance for the Subject Property"). In
the event the City Council of the City does not adopt the Subject
Planned General Industrial Zoning Ordinance for the Subject
Property in a form and with terms which are acceptable to the
Developer on or before December 31, 2004, then the Developer, upon
written notice to the City, may elect to terminate this Agreement
and thereupon, with the exception of Section 35 hereof, this
Agreement shall be deemed cancelled and null and void and of no
further force and effect and with no further liability of either
party hereunder. In the event the City Council of the City does
not adopt the Subject Planned General Industrial Zoning Ordinance
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for the Subject Property in a form and with terms acceptable to the
Developer on or before December 31, 2005, and Developer has not
previously terminated this agreement pursuant to the preceding
sentence hereof, then either party, upon written notice to the
other party, may elect to terminate this agreement and thereupon,
with the exception of Section 35 hereof, this agreement shall be
deemed cancelled and null and void and of no further force and
effect and with no further liability of either party hereunder.
10. Redevelopment for Subject Redevelopment of the Subject
Property.
A. It is agreed and understood that the Subject
Property is being conveyed by the City to the Developer for the
sole purpose of Developer redeveloping the Subject Property with
the Subject Redevelopment of the Subject Property as described in
this Agreement. The Subject Redevelopment of the Subject Property
shall conform in all respects with the Subject Planned General
Industrial Zoning Ordinance for the Subject Property or as directed
by the City as is necessary to comply with ordinances, building
codes or other requirements of law. The Developer may in its
discretion make modifications to the plans for the Subject
Redevelopment of the Subject Property provided such changes do not
alter the basic nature of the Subject Redevelopment of the Subject
Property and are in compliance with the Subject Planned General
Industrial Zoning Ordinance for the Subject Property and the terms
of this agreement. All costs and expenses relating to the Subject
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Redevelopment of the Subject Property, including without
limitation, the Environmental Remediation of the Subject Property,
the demolition of buildings on the Subject Property, the Site
Preparation of the Subject Property and the construction of various
improvements on the Subject Property, shall be the responsibility
of and shall be paid by the Developer.
B. Developer shall commence construction of the Subject
Redevelopment of the Subject Property within a reasonable time
following the closing of first conveyance of any portion of the
Subject Property from the City to the Developer, weather
permitting. The Developer shall be deemed to have commenced
construction of the Subject Redevelopment of the Subject Property
upon initiation of the construction of the foundation of the
building to be constructed on the Subject Property. Upon Developer
commencing construction of the Subject Redevelopment of the Subject
Property Developer shall continue with and complete such
construction in as expeditious a manner as is reasonably
practicable. The Subject Redevelopment of the Subject Property
shall be deemed completed when Developer has completed construction
of all buildings and site improvements, including without
limitation landscaping, and has obtained a final occupancy permit
for the development and has occupied and commenced operations at
the Subject Property. The City agrees to the extent permitted by
law to authorize extended construction hours for the Developer and
its contractors in connection with the construction of the Subject
Redevelopment on the Subject Property.
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11. Environmental. The Developer shall at its expense
provide for the investigation and if necessary remediation of
environmental conditions on the Subject Property pursuant to the
State of Illinois Site Remediation Program and to obtain No Further
Remediation Letter(s) for an industrial standard for the Subject
Property pursuant to the State of Illinois Site Remediation Program
(415 ILCS 5/58 et seq., as amended). The City agrees at no cost to
the City to reasonably cooperate with the Developer in the
Developer's efforts to obtain a No Further Remediation Letter(s)
for the Subject Property including signing as the record title
holder of the Subject Property documentation relating to the State
of Illinois Site Remediation Program. Any and all proposed
documents to be executed by the City as the owner of the Subject
Property in connection with the Environmental Remediation of the
Subject Property (as hereinafter defined) shall be submitted to the
City for the City's advance review and approval. The City shall
approve and sign such documents if such documents are in compliance
with the requirements of the State of Illinois Site Remediation
Program. Developer shall at its cost retain such qualified
environmental consultants and contractors as are necessary to
provide for the additional investigations, reports, plans and
remediation as may be necessary or required in connection with the
Environmental Remediation of the Subject Property (as hereinafter
defined). Such consultants and contractors shall be subject to the
City's advance approval which shall not be unreasonably withheld.
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Developer shall proceed with such additional investigations on the
Subject Property as may be necessary or required and to thereafter
prepare a remediation objectives report and a remedial action plan
for the Subject Property. In the event that after such additional
investigations on the Subject Property the Developer reasonably
determines that the proposed Environmental Remediation of the
Subject Property or the asbestos abatement on the Subject Property
referred to in Section 12 hereof can not be reasonably accomplished
so as to allow for the Subject Redevelopment of the Subject
Property as a nut and snack food processing facility at a
reasonable cost and within a reasonable time as determined by the
Developer, then Developer, within ninety (90) days of the receipt
of such information, upon written notice to the City, may elect to
terminate this agreement and thereupon, with the exception of
Sections 35 and 46 hereof, this agreement shall be deemed cancelled
and null and void and of no further force and effect and with no
liability of either party hereunder. Upon approval of the
remediation objectives report and remedial action plan for the
Subject Property by the Illinois Environmental Protection Agency,
Developer shall cause any necessary remediation identified in such
remediation objectives report and remedial action plan to be
performed at its expense in order to obtain a No Further
Remediation Letter(s) for an industrial standard for the Subject
Property (such environmental investigations, remediation and
obtaining a No Further Remediation Letter(s) for an industrial
standard for the Subject Property pursuant to the State of Illinois
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Site Remediation Program is hereinafter referred to as the
"Environmental Remediation of the Subject Property"). The
Environmental Remediation of the Subject Property shall be
conducted by the Developer in compliance with all applicable legal
requirements of law including, but not limited to, the provisions
of the State of Illinois Site Remediation Program at 415 ILCS 5/58,
et seq., as amended. The Environmental Remediation of the Subject
Property shall be deemed to be completed when the Illinois
Environmental Protection Agency has issued No Further Remediation
Letter(s) for an industrial standard for the entire Subject
Property and such No Further Remediation Letter(s) are recorded.
The No Further Remediation Letter(s) for an industrial standard for
the Subject Property referred to herein may contain conditions but
such conditions shall not prohibit or unreasonably restrict or
interfere with Developer's intended use of the Subject Property
consisting of the Subject Redevelopment of the Subject Property as
a nut and snack food processing facility. The Environmental
Remediation of the Subject Property may be conducted in phases and
the No Further Remediation Letter(s) for the Subject Property may
be obtained from the Illinois Environmental Protection Agency in
phases. Developer shall commence with such Environmental
Remediation of the Subject Property within a reasonable time
following the City's acquisition of the Subject Property from the
State of Illinois and shall complete same as soon as is reasonably
practicable. The City agrees to allow the Developer and its
contractors access to the Subject Property prior to the conveyance
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of the Subject Property from the City to the Developer to allow
Developer to proceed with such Environmental Remediation of the
Subject Property. In the event the Developer is not able to obtain
a No Further Remediation Letter(s) for an industrial standard for
the Subject Property from the Illinois Environmental Protection
Agency on or before June 30, 2005, then the Developer, upon written
notice to the City, may elect to terminate this Agreement and
thereupon, with the exception of Sections 35 and 47 hereof, this
Agreement shall be deemed cancelled and null and void and of no
further force and effect and with no further liability of either
party hereunder.
12. Asbestos Abatement and Demolition. The Developer shall
at its expense to provide for the removal of asbestos and the
demolition of the existing buildings on the Subject Property. The
City agrees at no cost to the City to reasonably cooperate with the
Developer in the Developer's efforts to remove the asbestos from
the Subject Property and to demolish the existing buildings on the
Subject Property including signing as the record title holder of
the Subject Property documentation relating to such asbestos
removal and building demolitions. Any and all proposed documents
to be executed by the City as the owner of the Subject Property in
connection with the Subject Asbestos Abatement and Building
Demolitions (as hereinafter defined) shall be submitted to the City
for the City's advance review and approval. The City shall approve
and execute such documents if such documents are in compliance with
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applicable regulations and legal requirements relating to the
Subject Asbestos Abatement and Building Demolitions. Developer
shall retain a qualified environmental consultant to proceed with
such additional investigations on the Subject Property as may be
required and to thereafter prepare contract specifications for the
asbestos removal and demolition of buildings. Developer shall
thereafter retain such qualified contractors as are necessary to
provide for the asbestos removal and building demolitions. Such
environmental consultant and contractors shall be subject to the
City's advance approval which shall not be unreasonably withheld or
delayed. (Such asbestos removal from the Subject Property and the
demolition of the existing buildings on the Subject Property is
hereinafter referred to as the "Subject Asbestos Abatement and
Building Demolitions"). The Subject Asbestos Abatement and
Building Demolitions shall be conducted by the Developer in
compliance with all applicable requirements of law. The Subject
Asbestos Abatement and Building Demolitions may be conducted in
phases. Developer shall commence with the Subject Asbestos
Abatement and Building Demolitions on the Subject Property within a
reasonable time following the City's acquisition of the Subject
Property from the State of Illinois and shall complete same as soon
as is reasonably practicable. Notwithstanding anything to the
foregoing, it is agreed and understood that any required asbestos
abatement for and the demolition of the existing building known as
Building Number 69 shall not occur until such time as the
relocation of the State of Illinois operations and employees in
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such Building Number 69 has been completed. The City agrees to
allow the Developer and its contractors access to the Subject
Property prior to the conveyance of the Subject Property from the
City to the Developer to allow Developer to proceed with such
Subject Asbestos Abatement and Building Demolitions on the Subject
Property.
13. Site Preparation. The City agrees to allow the Developer
and its contractors access to the Subject Property prior to the
conveyance(s) of the Subject Property from the City to the
Developer to allow Developer to proceed with site preparation for
the construction of the Subject Redevelopment of the Subject
Property. Such site preparation shall consist of and be limited to
site grading, filling for building pad preparation, installation of
underground utilities and construction of foundation footings and
slabs (hereinafter collectively referred to as "Site Preparation").
All costs of the Site Preparation shall be the responsibility of
and paid for by the Developer. Such Site Preparation shall be
performed and conducted by the Developer and its contractors in
compliance with all applicable requirements of law and in
accordance with plans and specifications which the Developer shall
submit in advance to the City for the City's review and approval.
The City agrees that as part of the Site Preparation by the
Developer to allow at no cost to Developer up to one hundred
thousand (100,000) cubic yards of fill material to be obtained and
utilized from the adjacent City owned mining site. The City also
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agrees that as part of the Site Preparation by the Developer to
allow the Developer at no cost to the City to deposit topsoil
removed from the Subject Property onto the adjacent City-owned
mining site at locations as specified and agreed to by the City.
The obtaining and utilization of such fill material from the
adjacent City owned mining site and the deposit of topsoil onto
such site shall require the coordination of activities with the
current mining operator lessee on such property. In the event that
during such Site Preparation activities on the Subject Property the
Developer discovers environmental conditions thereon which will
prohibit the issuance of or cause the rescission of the No Further
Remediation Letter(s) for the Subject Property referred to at
Section 11 hereof, then the Developer, upon written notice to the
City, may elect to terminate this agreement and thereupon, with the
exception of Sections 35 and 47 hereof, this agreement shall be
deemed cancelled and null and void and of no further force and
effect and with no further liability of other party hereunder.
14. Dedication and Construction of Middle Road. The
Developer as part of the Subject Development of the Subject
Property shall provide for the dedication of the land for the
right-of-way and provide for the construction of the roadway
currently identified as Middle Road on the southern portion of the
Subject Property in substantial conformance with the depiction as
set forth in Exhibit B attached hereto. The City and the Developer
agree to make reasonable modifications to the precise location of
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the Middle Road right-of-way to solve engineering, layout and/or
design problems not reasonably foreseeable at the time of the
execution of this Agreement, provided such changes do not alter the
basic nature of the Subject Redevelopment of the Subject Property.
There shall be no cost to the State of Illinois or the City for the
dedication of Middle Road and all costs of the construction of
Middle Road shall be the responsibility of and paid for by the
Developer. The City agrees to cooperate with the Developer in an
effort to have the proposed Middle Road to be dedicated to the
State of Illinois with the desired result being the State of
Illinois providing State incentives for 100% of the cost of the
construction of the proposed Middle Road. In the event the
proposed Middle Road is dedicated to the City as a City road, the
City agrees to apply for a grant from the Illinois Department of
Transportation for funds to assist with the construction of Middle
Road. In the event the City obtains any such grant funds from the
Illinois Department of Transportation for the construction of
Middle Road the City agrees to reimburse such grant funds to the
Developer for the costs of the construction of Middle Road. Middle
Road shall be designed and constructed in accordance with the
City's applicable specifications for road construction, in
accordance with other applicable City ordinances and requirements,
in accordance with other applicable requirements of law and
pursuant to plans and specifications as approved by the City's
engineer. The City and the Developer agree that the Developer
shall have the naming rights for the proposed Middle Road.
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15. Proposed Route 20 Tax Increment Financing District. The
City agrees to the extent permitted by law to approve pursuant to
the Tax Increment Allocation Redevelopment Act at 65 ILCS 5/11-
74.4-1, et seq. a Route 20 Tax Increment Financing Redevelopment
Plan and Project and a Route 20 Tax Increment Financing
Redevelopment Project Area which includes the Subject Property and
to adopt tax increment financing in connection with such a
designated Route 20 Tax Increment Financing Redevelopment Project
Area (hereinafter collectively referred to as the "Route 20 Tax
Increment Financing District"). The term of the Route 20 Tax
Increment Financing District shall be for twenty-three (23) years.
The City agrees to use its best efforts to take all necessary
governmental action to provide for the establishment of the
Route 20 Tax Increment Financing District as soon as is reasonably
practicable which the City currently estimates to be approximately
August of 2004. In the event the Route 20 Tax Increment Financing
District is not established on or before December 31, 2004, then
the Developer, upon written notice to the City, may elect to
terminate this Agreement and thereupon, with the exception of
Section 35 hereof, this Agreement shall be deemed cancelled and
null and void and of no further force and effect and with no
further liability of either party hereunder. In the event the
Route 20 Tax Increment Financing District is not established on or
before December 31, 2005, and Developer has not previously
terminated this agreement pursuant to the preceding sentence
29
hereof, then either party, upon written notice to the other party,
may elect to terminate this agreement and thereupon, with the
exception of Section 35 hereof, this agreement shall be deemed
cancelled and null and void and of no further force and effect and
with no further liability of either party hereunder.
16. Expansion of Enterprise Zone. The City agrees to the
extent permitted by law to provide for the expansion by the State
of Illinois of the City's existing Illinois Enterprise Zone (the
"Elgin Enterprise Zone") created pursuant to the Illinois
Enterprise Zone Act at 20 ILCS 655/1, et seq., to include the
Subject Property. The City also agrees to request an extension of
the term of the Elgin Enterprise Zone for an additional ten (10)
years. The City agrees to the extent permitted by law to achieve
the expansion of the Elgin Enterprise Zone by the State of Illinois
to include the Subject Property and an extension of the term of the
Elgin Enterprise Zone for an additional ten (10) years as soon as
is reasonably practicable which the City currently estimates to be
approximately August of 2004. Notwithstanding anything to the
contrary in this section or in this agreement, it is agreed and
understood that the benefits provided to the Subject Property and
to the Developer under the Illinois Enterprise Zone Act as part of
the proposed expanded Elgin Enterprise Zone shall not include and
shall not provide for property tax abatements as otherwise allowed
under the Illinois Enterprise Zone Act. In the event the approval
of the expansion of the Enterprise Zone to include the Subject
30
Property does not occur on or before December 31, 2004, then the
Developer, upon written notice to the City, may elect to terminate
this Agreement and thereupon, with the exception of Section 35
hereof, this Agreement shall be deemed cancelled and null and void
and of no further force and effect and with no further liability of
either party hereunder.
17. Development Assistance. In consideration of Developer
completing the Subject Redevelopment of the Subject Property as set
forth in this agreement, the City agrees to provide the development
assistance to the Developer as set forth in this Section 17. In
the event of Developer's completion of the Subject Redevelopment of
the Subject Property the City agrees to provide to the Developer
monetary development assistance not to exceed the total amount of
nine million dollars ($9,000,000) (hereinafter referred to as the
"Subject Monetary Development Assistance"). The Subject Monetary
Development Assistance shall be paid by the City to the Developer
in form of reimbursements to the Developer for Redevelopment
Project Costs (as hereinafter defined) incurred by the Developer in
connection with the Subject Redevelopment of the Subject Property.
Redevelopment Project Costs shall be defined as provided in 65 ILCS
5/11-74.4-3(q), which are incurred by Developer in connection with
the Subject Redevelopment of the Subject Property and which are
eligible under law for reimbursement from the anticipated City of
Elgin Route 20 Area Tax Increment Financing Redevelopment Project
Area Special Tax Allocation Fund (such costs as defined in 65 ILCS
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5/11-74.4-3(q), which are incurred by the Developer in connection
with the Subject Redevelopment of the Subject Property and which
are eligible under law for reimbursement from the anticipated City
of Elgin Route 20 Area Tax Increment Financing Redevelopment
Project Area Special Tax Allocation Fund are herein referred to as
"Redevelopment Project Costs"). In the event Redevelopment Project
Costs incurred by the Developer exceed nine million dollars
($9,000,000) it is agreed and understood that the City's Subject
Monetary Development Assistance to the Developer shall nonetheless
be limited to the total amount of nine million dollars ($9,000,000)
and in no event shall the City pay or reimburse to the Developer
any amount over nine million dollars ($9,000,000). As a condition
of the right to receive payment from the City of the Subject
Monetary Development Assistance Developer shall be required to
document to the City's reasonable satisfaction that it has incurred
such Redevelopment Project Costs in connection with the Subject
Redevelopment of the Subject Property. The City's obligation to
pay the Subject Monetary Development Assistance to the Developer is
conditioned upon and subject to the City receiving the anticipated
so-called property tax increment from the Subject Property as part
of the Route 20 Tax Increment Financing District. Notwithstanding
anything to the contrary in this section or in this agreement, the
City shall pay to the Developer the Subject Monetary Development
Assistance solely and only from the so-called property tax
increment the City receives from the Subject Property which is paid
into a special fund to be created as part of the Route 20 Tax
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Increment Financing District which is expected to be designated as
the City of Elgin Route 20 Area Tax Increment Financing
Redevelopment Project Area Special Tax Allocation Fund (such
property tax increment the City receives from the Subject Property
which is paid into such special fund to be created as part of the
Route 20 Tax Increment Financing District is hereinafter referred
to as the "Tax Increment from the Subject Property"). The parties
understand and agree that the Subject Property as of the entry into
this agreement is exempt from real estate taxes and the parties
therefore expect that in the event of the creation of the Route 20
Tax Increment Financing District that all of the real estate taxes
for the Subject Property should during the term of the Route 20 Tax
Increment Financing District consist of the so-called property tax
increment. The City agrees until such time as the City has paid
the Subject Monetary Development Assistance to the Developer in
full as provided in this section not to assign the Tax Increment
from the Subject Property to any other owner or developer of
property within the Route 20 Tax Increment Financing District. The
City shall pay the Subject Monetary Development Assistance to the
Developer on an annual basis as described in this section until the
City has completed repayment to the Developer of the Subject
Monetary Development Assistance. No interest shall accrue on the
Subject Monetary Development Assistance. Commencing with the
calendar year the City first receives Tax Increment from the
Subject Property, the City shall reimburse to the Developer on or
before December 1 of such calendar year the Tax Increment from the
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Subject Property the City has received in such calendar year. The
City shall continue to make such reimbursements to the Developer on
an annual basis on or before December 1 of each year until the
Subject Monetary Development Assistance has been reimbursed to the
Developer. For the purposes of example and clarification, if in
the calendar year the City first receives Tax Increment from the
Subject Property, the City receives five hundred thousand dollars
($500,000) of Tax Increment from the Subject Property, and in each
year following such year the City thereafter receives nine hundred
thousand dollars ($900,000) of Tax Increment from the Subject
Property, the City would make payment to the Developer of the
Subject Monetary Development Assistance as follows: Year 1 -
$500,000, Years 2 through 10 - $900,000 each year, and Year 11 -
$400,000.
18. Relocation of State of Illinois Operations and Employees
from Building Number 69. In the event the City has acquired the
Subject Property from the State of Illinois as provided in
Section 2 hereof, the City agrees as part of the Subject Sale
Agreement with the State to reimburse the State of Illinois one-
half of the cost of the State of Illinois relocating its operations
and employees from Building Number 69 on the Subject Property. For
the purposes of this section the cost of the State relocating its
operations from Building Number 69 on the Subject Property shall
include the cost of renovating the State's new location along with
moving expenses relating to moving from Building Number 69.
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Notwithstanding the foregoing, it is agreed and understood that the
City's reimbursement obligation for such relocation costs is
subject to and contingent upon the City and the State of Illinois
agreeing in the Subject Sale Agreement with the State on a total
amount the City's reimbursement obligation will not exceed.
19. Payments in Lieu of Real Estate Taxes. The Developer
agrees that if during the term of the Route 20 Tax Increment
Financing District referred to in Section 15 hereof Developer fails
to maintain the Subject Redevelopment on the Subject Property and
the total equalized assessed valuation of the Subject Property
falls below a total of eleven million four hundred thousand dollars
($11,400,000) the Developer agrees to make payments to the City as
described in this section. In such event, the parties will each
year for the remaining term of the Route 20 Tax Increment Financing
District calculate the amount of tax increment the City would have
received from the Subject Property utilizing an equalized assessed
valuation for the Subject Property of eleven million four hundred
thousand dollars ($11,400,000) (such calculation of tax increment
from the Subject Property utilizing an equalized assessed valuation
of eleven million four hundred thousand dollars ($11,400,000) is
hereinafter referred to as the "Tax Increment Calculation"). The
Developer shall pay to the City the amount by which the subject Tax
Increment Calculation for the Subject Property exceeds the actual
Tax Increment from the Subject Property received by the City.
Developer shall make such payment to the City on or before
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December 1 of each year for each year of the remaining term of the
Route 20 Tax Increment Financing District. The Developer's
payments to the City pursuant to this section shall be offset by
the remaining amount, if any, of the Subject Monetary Development
Assistance the City has agreed to pay to the Developer pursuant to
Section 17 hereof.
20. Assessment of Subject Property. The City and the
Developer agree that the Subject Redevelopment of the Subject
Property should be assessed for general real estate taxes in the
manner provided by Illinois Compiled Statutes as they may be
amended from time to time. This provision shall not be deemed to
prevent Developer or its successors or permitted assigns from
appealing or challenging assessments against the Subject
Redevelopment on the Subject Property which Developer or its
successors or permitted assigns consider to be contrary to law.
The Developer agrees that for a period of twenty-five (25) years
following the date of this agreement that the Developer and no
person affiliated with the Developer or any successor or permitted
assign of the Developer shall do any of the following:
A. Seek to reduce the total equalized assessed
valuation of the Subject Redevelopment on the Subject Property
and/or the Subject Property below a total of eleven million four
hundred thousand dollars ($11,400,000) upon completion of the
redevelopment improvements. Such amount of eleven million four
hundred thousand dollars ($11,400,000) shall be increased by three
36
percent (3%) annually commencing with the calendar year following
the completion of the redevelopment improvements;
B. Request a full or partial exemption for general real
estate taxes for any portion of the Subject Property; or
C. Request an assessment at a value not otherwise
permitted by law.
21. Compliance with Laws. Notwithstanding any other
provisions of this agreement it is expressly agreed and understood
by Developer and the City that in connection with the performance
of this agreement and the Subject Redevelopment of the Subject
Property, including without limitation, the construction of the
improvements associated with the Subject Redevelopment on the
Subject Property, that Developer shall comply with all applicable
federal, state, city and other requirements of law. If during the
five (5) year period following the entry into and execution of this
agreement, any existing, amended, modified or new City ordinances,
codes or regulations of general applicability throughout the City
effecting the zoning, subdivision, development, construction of
improvements, buildings or appurtenances on the Subject Property
are amended or modified in any manner to impose additional
requirements on the installation of improvements on the Subject
Property, the burden of such additional City requirements shall not
apply to the Subject Property. If during the five (5) year period
following the entry into and execution of this agreement, any
existing, amended, modified or new City ordinances, codes or
37
regulations of general applicability throughout the City effecting
the zoning, subdivision, development, construction of improvements,
buildings or appurtenances on the Subject Property are amended or
modified in any manner to impose less restrictive requirements on
the development of, or construction upon, properties within the
City, then the benefit of such less restrictive requirement shall
inure to the benefit of the Developer and the Subject Property.
Developer shall also at its expense secure all permits and
licenses, pay all charges and fees and give all notices necessary
and incident to the due and lawful prosecution of the work
necessary to provide for the Subject Redevelopment of the Subject
Property as described in this agreement. Increases, if any, to
City building permit fees and City impact fees during the five (5)
year period following the entry into and execution of this
agreement shall not exceed the lesser of actual percentage
increases by the City in the amount of such fees or three percent
(3%) annual increases.
22. Survival. All representations, warranties, indemnities
and covenants made by the parties under this agreement, the terms
of this agreement and the obligations of the parties under this
agreement shall be deemed remade as of the closing of the
conveyance of the Subject Property from the City to the Developer
and shall survive the closing, and the remedies for breach thereof
shall survive the closing and shall not be merged into the closing
documents.
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23. Default. The City and Developer agree that, in the event
of a default by the other party, the other party shall, prior to
taking any such actions as may be available to it, provide written
notice to the defaulting party stating that they are giving the
defaulting party fifteen (15) days within which to cure such
default. If the default shall not be cured within the thirty (30)
days period aforesaid, then the party giving such notice shall be
permitted to avail itself of remedies to which it may be entitled
under this agreement.
24. Remedies. Each of the entities identified in this
agreement which comprise the Developer shall be jointly and
severally liable for the performance of the terms of this
agreement. If either party fails or refuses to carry out any of
the material covenants or obligations hereunder, the other party
shall be entitled to pursue any and all available remedies as
specified herein or otherwise available at law, equity or
otherwise. Notwithstanding the foregoing or anything else to the
contrary in this agreement, with the sole exception of an action to
recover the monies the City has agreed to pay pursuant to the
preceding Section 17 hereof, no action shall be commenced by the
Developer against the City for monetary damages. Venue for the
resolution of any disputes or the enforcement of any rights
pursuant to this agreement shall be in the Circuit Court of Xxxx
County, Illinois.
25. Time. Time is of the essence of this agreement.
39
26. Notices. All notices shall be required to be in writing
and shall be served on the parties at the addresses following their
signatures. The mailing of a notice by registered or certified
mail, return receipt requested, or by recognized overnight delivery
service or personal delivery by courier service shall be sufficient
service.
27. Interpretation. This agreement shall be construed, and
the rights and obligations of the City and the Developer hereunder
shall be determined in accordance with the laws of the State of
Illinois without reference to its conflict of laws rules.
28. Relationship of the Parties. This agreement shall not be
deemed or construed to create as between the City and the Developer
an employment, joint venture, partnership or other agency
relationship between the parties hereto.
29. Failure to Enforce Provisions. The failure by a party to
enforce any provision of this agreement against the other party
shall not be deemed a waiver of the right to do so thereafter.
30. Amendments. This agreement may be modified or amended
only in writing signed by both parties hereto, or their permitted
successors or assigns as the case may be.
31. Entire Agreement. This agreement contains the entire
agreement and understandings of the parties hereto with respect to
the subject matter as set forth herein, all prior agreements and
understandings having been merged herein and extinguished hereby.
40
32. Joint and Collective Work Product. This agreement is and
shall be deemed and construed to be a joint and collective work
product of the City and the Developer, and, as such, this agreement
shall not be construed against the other party, as the otherwise
purported drafter of same, by any court of competent jurisdiction
in order to resolve any inconsistency, ambiguity, vagueness or
conflict, if any, in the terms and provisions contained herein.
33. Assignment. This agreement shall be binding on the
parties hereto and their respective successors, successors in
title, grantees and assigns and shall run with the land. A
memorandum of this Agreement shall be recorded by the City against
the title of the Subject Property. In the event the Developer
assigns this agreement advance written notice of such assignment
shall be provided to the City. Any such assignment shall expressly
provide that the assignee shall comply with all terms and
requirements of this agreement.
34. No Conflicting Interests. Developer hereby represents
and warrants that the Developer, nor any associated person or
organization, presently owns or has any beneficial interest in the
Subject Property being conveyed to Developer or entitled to receive
any income from the Subject Property. In compliance with 50 ILCS
105/3.1, Developer shall provide the City with a written statement
subscribed by an owner, authorized trustee, corporate official, or
managing agent, under oath, disclosing the identity of every person
having an interest, real or personal, in the development group and
41
every shareholder entitled to receive more than seven and one/half
(7.5%) percent of the total distributable income of any corporation
which will have an interest, real or personal, in such property
upon the acquisition of any interest by the Developer in the
Subject Property.
35. Indemnification. To the fullest extent permitted by law,
Developer agrees to and shall indemnify, defend and hold harmless,
the City, its officials, officers, employees, attorneys, agents,
boards and commissions from and against any and all claims, suits,
judgments, costs, attorney's fees, damages or other relief,
including but not limited to workmens' compensation claims, in any
way resulting from or arising out of or alleged to be resulting
from or arising out of negligent actions or omissions of the
Developer in connection herewith (which shall be deemed to include,
but are not limited to, (1) the performance of this agreement,
(2) the Environmental Remediation of the Subject Property or any
other environmental remediation of the Subject Property, (3) the
Subject Asbestos Abatement and Building Demolitions or any other
asbestos abatement or demolition activities on the Subject
Property, (4) the Site Preparation or any other site preparation
activities on the Subject Property and (5) the construction of any
improvements on the Subject Property), including negligence or
omissions of employees, agents or subcontractors of the Developer,
or in any way resulting from or arising out of or alleged to be
resulting from or arising out of any violation and/or breach of the
42
terms or provisions of this agreement by the Developer, including
any violation and/or breach by employees, agents or subcontractors
of the Developer. In the event of any action against the City, its
officials, officers, employees, agents, attorneys, boards or
commissions covered by the foregoing duty to indemnify, defend and
hold harmless such action shall be defended by legal counsel of the
City's choosing. The foregoing provisions of this Section 35 shall
not apply to any fraud or willful misconduct committed by the City.
Notwithstanding anything else to the contrary in Section 24 hereof
or anything else to the contrary in this Agreement, with the sole
exception of an action to recover the monies the City has agreed to
pay pursuant to the preceding Section 17 hereof, no action shall be
commenced by the Developer against the City for monetary damages.
The provisions of this paragraph shall survive any termination
and/or expiration of this agreement.
36. Insurance. Prior to Developer providing for the
performance of any work on the Subject Property prior to the
conveyance of the Subject Property from the City to the Developer,
including, but not limited to, the Environmental Remediation of the
Subject Property, the Subject Asbestos Abatement and Building
Demolitions or the Site Preparation on the Subject Property,
Developer shall provide or cause its contractors and/or agents to
provide to the City a certificate of insurance naming the City as a
primary, non-contributing co-insured with limits of not less than
one million dollars ($1,000,000) per occurrence and excess coverage
43
of not less than five million dollars ($5,000,000) covering general
liability including personal injury and property damage. Developer
shall also provide or cause its contractors and/or agents to
provide to the City comprehensive automobile liability insurance
covering all owned, non-owned and hired motor vehicles with limits
of not less than one million dollars ($1,000,000) per occurrence
for bodily injury and property damage. Such certificate of
insurance shall provide that the insurance shall not be terminated
or not renewed for any reason without thirty (30) days advance
written notice to the City. The insurance to be provided by the
City pursuant to this section shall apply as primary insurance with
respect to all other insurance or self-insurance programs afforded
to the City. There shall be no endorsement or modification of this
insurance to make it excess over other available insurance,
alternatively, if the insurance stated is excess or prorate, it
shall be endorsed to be primary with respect to the City.
37. Severability. In the event any phrase, section,
paragraph or portion of this Agreement is found to be invalid or
illegal by any Court of competent jurisdiction, such finding of
invalidity as to that portion shall not affect the validity,
legality or enforceability of the remaining portions of this
Agreement.
38. No Disconnection. Neither the Developer nor any of the
Developer's successors in interest shall file, cause to be filed or
44
take any action that would result in the disconnection or
deannexation of the Subject Property from the City of Elgin.
39. Public Improvements and Utilities. Developer shall be
responsible at its costs for the construction and installation of
public improvements and utilities consisting of storm sewers,
sanitary sewers, watermains, streets and appurtenant structures as
are needed to adequately service the Subject Property in accordance
with applicable City ordinance or requirements. In the event
Developer is unable to obtain offsite utility easements required to
serve the Subject Property for the Subject Redevelopment of the
Subject Property over, under, across, or through property not owned
by the City or under the City's control which may be necessary or
appropriate for the Subject Redevelopment of the Subject Property
at a cost and on conditions acceptable to the Developer, the City
shall use, to the full extent permitted by law, its eminent domain
power to secure all such easements. Prior to commencing any
condemnation action, Developer shall submit for City review and
approval written documentation demonstrating that Developer has
pursued reasonable alternatives for the acquisition of such
easements, and Developer shall deposit with the City the amount of
funds necessary to pursue eminent domain action and to acquire such
easements. All such actions and acquisitions shall be at no cost
to the City, which costs shall be born solely by the Developer.
40. Sanitary Sewer Lines. The City hereby agrees to allow
the Developer to tie into the existing sanitary sewer lines of the
45
City at the Developer's expense, subject to payments required under
any outstanding reimbursement ordinances, and with payment of all
applicable fees. The City agrees to reserve capacity in the
existing 24 inch sanitary sewer line located near the northern
property line of the Subject Property sufficient to serve the
proposed Subject Redevelopment of the Subject Property. At
Developer's expense, the City agrees to cooperate with the
Developer in obtaining all necessary Illinois Environmental
Protection Agency (IEPA) permits required for such sanitary sewer
systems and tie-ins. Developer shall bear all costs for
extensions, tie-ins, and permits consistent with applicable City
ordinances. Developer shall install sewer line improvements on the
Subject Property in compliance with final engineering plans as
approved by the City Engineer for the Subject Redevelopment of the
Subject Property.
41. Water Lines. The City hereby agrees to allow Developer
to tie into the existing water lines of the City, at Developer's
expense, subject to payments required under any outstanding
reimbursement ordinances, and with the payment of applicable fees.
At Developer's expense, the City agrees to cooperate with the
Developer obtaining all necessary Illinois Environmental Protection
Agency (IEPA) permits required for such watermain extensions and
tie-ins. Developer shall bear all costs for such extensions, tie-
ins and permits consistent with applicable City ordinances.
Developer shall install water line improvements on the Subject
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Property in compliance with final engineering plans as approved by
the City Engineer for the Subject Redevelopment of the Subject
Property.
42. Storm Water Drainage. The City agrees to the extent
permitted by law and to the extent as described in this section to
permit Developer to discharge storm water drainage from the Subject
Property onto the City's adjacent property to the west. The City
agrees to accept a volume of storm water from the Subject Property
onto the City's adjacent property which can reasonably be
accommodated under the City's current design of a golf course for
such property using reasonably accepted engineering practices as
determined by the City Engineer.
43. Acceptance of Public Improvements. Upon review and
recommendation by the City Engineer, the City Council shall accept
all public rights-of-way and improvements located thereon, sanitary
sewers, storm drainage sewers and watermains lying within public
rights-of-way or public easements on the Subject Property. Any
improvements located in private rights-of-way shall be installed in
easements dedicated for and acceptable to the City. The sewer and
water service lines (from the buffalo box to the subject
building(s) to be constructed on the Subject Property) shall not be
owned or maintained by the City. Developer shall replace or repair
damage to public improvements installed within, under or upon the
Subject Property resulting from construction activities by the
Developer and its employees, agents, contractors and sub-
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contractors prior to final acceptance by the City, but shall not be
deemed hereby to have released any such other party from liability
or obligations in this regard. Acceptance of public improvements
shall be consistent with applicable City ordinances. In lieu of a
letter of credit or other security the Developer hereby guarantees
the payment of any monies necessary for the completion, repair or
maintenance of any such public improvements which would otherwise
be covered by an applicable letter of credit or other security.
44. Stop Work Orders. Except as may be required pursuant to
the Xxxx County Stormwater Management Ordinance, the City shall
issue no stop work orders directing work stoppages on buildings or
parts of the Subject Property without setting forth the alleged
violations in writing, and Developer shall forthwith proceed to
correct such violations as may exist; provided, however, that the
City shall give not less than ten (10) days notice to Developer of
its intention to issue stop work orders in advance of the actual
issuance of such stop work orders, except in the event an emergency
is deemed to exist by the City.
45. Building Permits, Certificates of Occupancy and Other
Approvals. The City agrees to issue, within a reasonable time
after initial submission, review, and approval of building
construction plans, and the payment of required building permit
fees and all other applicable fees, all necessary building and
other permits and approvals for the construction of any and all
improvements on the Subject Property or issue a letter of denial
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within said period of time informing Developer and the applicant as
to where in the application does not conform to the stated section
of the code. The issuance of a building permit, in and of itself,
shall not be construed as a guarantee that a certificate of
occupancy shall be issued, it being the intention of the parties
that the issuance of a certificate of occupancy shall be subject to
the following provisions. The City agrees to issue certificates of
occupancy within a reasonable time after application or to issue a
letter of denial within said period of time informing Developer and
the individual or entity to whom the building permit was issued
specifically as to those corrections necessary as a condition to
the issuance of a certificate of occupancy and quoting the section
of the code relied upon by the City in its request for correction.
The City agrees that certificates of occupancy (temporary or
permanent, as the case may be) shall be issued upon (a) proper
application of the appropriate party; and (b) compliance with all
applicable building codes, zoning ordinance requirements and other
applicable requirements of law. In lieu of a letter of credit or
other security covering one hundred and twenty/five percent (125%)
of the cost of any incomplete site work as a condition of a
temporary certificate of occupancy the Developer hereby guarantees
the payment of any monies necessary for the completion, repair or
maintenance of such site improvements which shall otherwise be
covered by an applicable letter of credit or other security. The
City agrees to have City staff give expedited and priority
consideration to all building permit applications, certificate of
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occupancy applications, and applications for other approvals in
connection with the Subject Redevelopment of the Subject Property.
46. Cooperation in Obtaining State of Illinois Incentives.
The City agrees to cooperate with the Developer at no cost to the
City in Developer's efforts to obtain incentives from the State of
Illinois for the Subject Redevelopment of the Subject Property. In
the event that any State of Illinois incentives for the Subject
Redevelopment of the Subject Property are paid by the State of
Illinois to the City, the City agrees to reimburse such State
incentive funds to the Developer. Notwithstanding anything to the
contrary in this Section, the provisions of this Section are not
intended and shall not be construed as being applicable to the
Route 20 Tax Increment Financing District or the so-called Property
Tax Increment the City may receive as part of the Route 20 Tax
Increment Financing District.
47. Mortgage for Developer.
A. In the event the Developer has terminated this
Agreement as permitted by the terms of this agreement and the City
has prior to such termination acquired the Subject Property from
the State of Illinois, the parties agree that the City shall then
grant to the Developer a mortgage interest to the Subject Property
as described in this section (such mortgage interest to the Subject
Property as described in this section is hereinafter referred to as
the "Subject Mortgage". The purpose of Subject Mortgage shall be
to permit the Developer to recover Redevelopment Project Costs
50
which were incurred by Developer in connection with the Subject
Redevelopment of the Subject Property prior to Developer's
termination of the Agreement. The Redevelopment Project Costs
which shall be eligible for inclusion in the Subject Mortgage shall
consist of land acquisition costs, asbestos abatement costs,
building demolition costs, Environmental Remediation Costs and an
additional $2,000,000 in land acquisition costs incurred by the
Developer in connection with the proposed Subject Redevelopment of
the Subject Property but not to exceed a total amount of eleven
million dollars ($11,000,000). In the event Redevelopment Costs
and such additional land acquisition costs incurred by the
Developer referred to in this section exceed eleven million dollars
($11,000,000) it is agreed and understood that Developer's Subject
Mortgage interest in the Subject Property shall nonetheless be
limited to the total amount of eleven million dollars ($11,000,000)
and in no event shall the Developer's Subject Mortgage interest in
the Subject Property exceed eleven million dollars ($11,000,000).
As a condition of the City granting the Developer the Subject
Mortgage interest in the Subject Property as provided for in this
paragraph, the Developer shall be required to document to the
City's reasonable satisfaction that it has incurred the eligible
Redevelopment Project Costs in connection with the proposed Subject
Redevelopment of the Subject Property. No interest shall accrue on
the Redevelopment Project Costs referred to in this section and no
interest shall accrue on Developer's Subject Mortgage interest in
the Subject Property. Within sixty (60) days of Developer having
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terminated this Agreement as permitted by the terms of this
agreement, and following the City's receipt of reasonable
documentation that Developer has incurred the eligible
Redevelopment Costs and such additional land acquisition costs for
which Developer proposes to be secured by the Subject Mortgage, the
City shall record the Subject Mortgage against title to the Subject
Property in favor of the Developer in an amount not to exceed
eleven million dollars ($11,000,000). The term of years of the
Subject Mortgage shall be indefinite and until such time as a
"Repayment Event" (as hereinafter defined) occurs. A Repayment
Event whereby the monies secured by the Subject Mortgage shall be
repaid to the Developer shall be defined to consisting of the
following events: (1) the City sells the Subject Property or a
portion thereof to a third party; (2) the City conveys without a
purchase price the Subject Property or a portion thereof to a third
party for redevelopment; (3) the City redevelops the Subject
Property or a portion thereof for its own municipal purposes; or
(4) the Subject Property is improved for any purpose. City or
public roads and/or City or public utility lines and/or dedications
and/or easements for same shall not be considered a Repayment Event
for the purposes of this section. No payment regarding the Subject
Mortgage shall be required until a Repayment Event occurs. In the
event the City sells the Subject Property or a portion thereof to a
third party the City's repayment obligation regarding the Subject
Mortgage shall be limited solely and only to the amount of the
purchase price the City receives from a third party or parties for
52
the Subject Property or the subject portion thereof being sold but
not to exceed a total of eleven million dollars ($11,000,000) and
there shall be no recourse against the City or otherwise regarding
the Subject Mortgage other than for the City to pay over to the
Developer the purchase price proceeds the City receives from a
third party or parties for the Subject Property or the subject
portion thereof being sold not to exceed eleven million dollars
($11,000,000). In the event the City conveys without a purchase
price the Subject Property or a portion thereof to a third party
for redevelopment or the City redevelops the Subject Property or a
portion thereof for its own municipal purposes the City repayment
obligation regarding the Subject Mortgage shall be limited solely
and only to the following procedure: The City and the Developer
shall jointly select an MAI appraiser to appraise the fair cash
market value of the Subject Property or the portion thereof being
conveyed by the City without a purchase price or developed by the
City. In the event the City and the Developer can not agree as to
an appraiser the City and the Developer will each retain their own
MAI appraiser and the City and the Developer will also jointly
select a third MAI appraiser. The appraisers shall use the market
approach to value and shall provide an opinion as to the fair cash
market value of the property or the portion thereof being conveyed
by the City without a purchase price or developed by the City. The
City and the Developer shall share evenly the cost of the
appraisal. In the event the City and Developer retain their own
appraisers each party shall pay its own appraiser. In the event
53
the City and the Developer have agreed to jointly select one MAI
appraiser to appraise the fair cash market value of the Subject
Property or the portion thereof being conveyed by the City without
a purchase price or developed by the City the estimate of the fair
cash market value of the Subject Property or the portion thereof
being so conveyed or developed by the City shall be as determined
by such appraiser jointly selected by the City and the Developer.
In the event the City and the Developer have each retained their
own appraisers and have jointly retained a third appraiser the
average of the two closest of such three appraisals shall be
considered the market value of the Subject Property (such value of
the Subject Property as determined by the appraiser jointly
selected by the City and Developer or as determined by the average
of the two closest of the three appraisals referred to above is
hereinafter referred to as the "Market Value of the Subject
Property"). Within one hundred and eighty (180) days following the
determination of the Market Value of the Subject Property or the
portion thereof being conveyed by the City without a purchase price
or developed by the City the City shall cause the amount of the
Market Value of the Subject Property or the portion thereof being
so conveyed or developed by the City to be paid to the Developer
but not to exceed a total amount of eleven million dollars
($11,000,000) as satisfaction and payment for the Subject Mortgage.
Upon the payment of the proceeds of the purchase price for the
Subject Property from a third party or parties to the Developer or
upon payment of the Market Value of the Subject Property after the
54
City's conveyance without a purchase price or redevelopment by the
City of the Subject Property the Developer shall provide to the
City a release of the Subject Mortgage in a recordable form. In
the event the City sells, conveys without a purchase price or
redevelops a portion of the Subject Property, Developer, upon
receipt of the proceeds for the portion of the Subject Property
being sold, conveyed or redeveloped agrees to and shall provide a
partial release of the Subject Mortgage in recordable form for the
portion of the Subject Property in question.
B. In the event the City has granted the Developer a
mortgage interest to the Subject Property as described in the
preceding Subparagraph A of this section which has not been paid,
and until such time as a Repayment Event occurs or the City has
entered into a contract to sell or convey the Subject Property or a
portion thereof to a third party, it is agreed that the Developer
shall have an option to purchase the Subject Property from the City
as described in this Subparagraph B. The Developer shall exercise
such option to purchase the Subject Property by giving the City
written notice thereof. The purchase price for the Subject
Property shall consist of the Developer relinquishing and waiving
the Subject Mortgage interest in the Subject Property and
reimbursing the City one hundred percent (100%) of the amount of
the monies the City has expended up to such point in time in
connection with or relating to the costs of the acquisition,
development and/or improvement of the Subject Property. The
closing shall be within sixty (60) days of the City's receipt of
55
such written notice. The other terms of such purchase of the
Subject Property by the Developer shall be as provided in
Sections 3, 4, 6, 7 and 8 of this agreement.
C. In the event the City has granted the Developer a
mortgage interest to the Subject Property as described in the
preceding Subparagraph A of this section which has not been paid,
and in the event the City enters into a contract to sell or convey
without a purchase price the Subject Property or a portion thereof
to a third party, it is agreed that the Developer shall have a
right of first refusal to purchase the Subject Property from the
City as described in this Subparagraph C. In such a circumstance
where the City has entered into a contract to sell or convey
without a purchase price the Subject Property or a portion thereof
to a third party the City shall give written notice thereof to the
Developer. The Developer shall have thirty (30) days thereafter to
notify the City in writing that it is exercising its right of first
refusal to purchase the Subject Property from the City. In the
event the Developer does not notify the City in writing within such
thirty (30) day period that it is exercising its right of first
refusal to purchase the Subject Property from the City the
Developer's right of first refusal to purchase the Subject Property
shall automatically terminate and be null and void. In the event
the Developer does notify the City in writing within such thirty
(30) day period that it is exercising its right of first refusal to
purchase the Subject Property from the City the purchase price for
the Subject Property shall be in the amount of the purchase price
56
in the City's contract to sell the property to a third party for
such monetary purchase price less the amount of the outstanding
mortgage interest to the Subject Property the City has granted to
the Developer pursuant to the preceding Subparagraph A. In the
event the City has entered into a contract to convey without a
purchase price the Subject Property or a portion thereof to a third
party the purchase price for the Subject Property for the Developer
exercising its right of first refusal as described in this
Subparagraph C shall be in an amount as agreed to between the City
and the Developer less the amount of the outstanding mortgage
interest to the Subject Property the City has granted to the
Developer pursuant to the preceding Subparagraph A. In the event
the City and the Developer are unable to agree to a purchase price
for the Subject Property the purchase price shall be determined
utilizing the appraisal procedures as set forth in the preceding
Subparagraph A hereof less the amount of the outstanding mortgage
interest to the Subject Property the City has granted to the
Developer pursuant to the preceding Subparagraph A hereof. In the
event the amount of the outstanding mortgage interest to the
Subject Property the City has granted to the Developer pursuant to
the preceding Subparagraph A hereof exceeds the amount of the
purchase price for the Subject Property it is agreed and understood
that the purchase price for the Developer shall be zero with the
Developer waiving any remaining difference thereof it being agreed
and understood that the City shall have no responsibility or
obligation to pay any such deficiency to the Developer. The
57
closing shall be within sixty (60) days of the City's receipt of
such written notice. The other terms of such purchase of the
Subject Property by the Developer shall be as provided in
Sections 3, 4, 6, 7 and 8 of this agreement.
48. Cooperation Regarding Section 1031 Exchange. The City
agrees, at no cost or expense to the City, to reasonably cooperate
with the Developer regarding Developer's efforts to complete an
Internal Revenue Code Section 1031 exchange in connection with
Developer's acquisition of the Subject Property.
49. Burial Plots. In the event the Developer encounters any
unmarked xxxxxx on the Subject Property during the development of
the Subject Redevelopment on the Subject Property the City agrees
to provide at no cost to the Developer burial plots for any bodies
exhumed during the project.
50. Counterparts. This agreement may be executed and
delivered in any number of counterparts, each of which so executed
and delivered shall be deemed to be an original and all of which
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have entered into and
executed this agreement on the date and year first written above.
SIGNATURE PAGE FOLLOWS ON FOLLOWING PAGE
58
CITY OF ELGIN, a municipal XXXX X. XXXXXXXXXX AND SON, INC.,
corporation an Illinois corporation
By /s/ XXXXXX XXXXXX By /s/ XXXXXX X. XXXXXXXXXX
----------------- ------------------------
Mayor Its Chief Executive Officer
-----------------------
Attest: Attest:
/s/ XXXXXXX XXXXX /s/ XXXXXX X. XXXXXXXXXX, XX.
----------------- -----------------------------
City Clerk Its Executive Vice President
Operations
By Xxxxxxx Xxxxx, Deputy Clerk ------------------------
XXXXXX/XXXXX LIMITED PARTNERSHIP,
an Illinois limited partnership
By /s/ XXXXXX X. XXXXXXXXXX
------------------------
Its President of General Partner
----------------------------
Attest:
/s/ XXXXXX X. XXXXXXXXXX, XX.
-----------------------------
Its Assistant Secretary
-------------------
000 XXXX XXXXX XXXXXX LIMITED
PARTNERSHIP, an Illinois limited
partnership
By /s/ XXXXXX X. XXXXXXXXXX
------------------------
Its President of General Partner
----------------------------
Attest:
/s/ XXXXXXX XXXXXXXXXX
------------------
Its Assistant Secretary
City of Elgin Xxxx X. Xxxxxxxxxx and Son, Inc.
x/x Xxxx Xxxxxxx 0000 Xxxxx Xxxx
000 Xxxxxx Xxxxx Xxx Xxxxx Xxxxxxx, XX 00000-0000
Xxxxx, XX 00000-0000
60
With a Copy of Any Notice to: With a Copy of any Notice to:
Xxxxxxx X. Xxxxxx Xxxxxxx X. Xxxxx
Corporation Counsel Xxxxx Xxxxx Xxxxxxx LLC
City of Elgin 00 X. Xxxxxx Xx, Xxxxx 000
000 Xxxxxx Xxxxx Xxxxxxx, XX 00000
Xxxxx, XX 00000-0000
(EXHIBIT A - plat of survey of Subject Property>
(EXHIBIT B - Development Proposal>
