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Ordinance 2007-061 i 20071 0027713 Filed for Record in KENDALL COUNTY, ILLINOIS PAUL. ANDERSON 11 ' -- 13 -2007 At 09--20 am. STATE OF ILLINOIS ) ORDINANCE 5i .00 RHSP Surcharse 10.00 )ss COUNTY OF KENDALL ) THIS IS A COVER PAGE FOR RECORDING PURPOSES ONLY i Ordinance No. 2c->07 ORDINANCE APPROVING THE FIRST AMENDMENT TO THE REDEVELOPMENT AGREEMENT FOR THE DOWNTOWN REDEVELOPMENT PROJECT AREA (TUSCAN PLAZA) WHEREAS, by Ordinance No. 2006 -46 adopted by the Mayor and City Council of the City (the "Corporate Authorities ") on June 13, 2006, a Redevelopment Project and Plan for Downtown Yorkville (hereinafter the "Redevelopment Plan ") was approved, which project and plan covered some of the oldest properties of the City constituting a significant portion of the City's historic Downtown; and, WHEREAS, by Ordinance No. 2006 -47 and No. 2006 -48 adopted by the Corporate Authorities on June 13, 2006, the City designated approximately 200 acres containing 114 buildings as a "redevelopment project area" ( "Yorkville Downtown Redevelopment Project Area ") and adopted tax increment financing pursuant to the Tax Increment Allocation Redevelopment Act (65 ILCS 5/11- 74.4 -1 et seq.) (hereinafter referred to as the "Act "); and, WHEREAS, the City received a proposal from Tuscan Plaza, Inc., for the redevelopment of property within the Yorkville Downtown Redevelopment Project Area located at 201, 203 and 205 Bridge Street as a mixed use, three -story structure with retail on the first floor, 20 condominiums on the second and third floors and 29 underground parking spaces (the �I "Project"); and, WHEREAS, the Developer demonstrated to the City that this Project requires extraordinary expenses to accomplish the Project including demolition of the existing building and construction of underground parking with an elevator to transport the vehicles to such parking, and, but for financial assistance from the City, the Project is not economically viable; and, WHEREAS, in order to induce the Developer to undertake the development of the Project, on May 8, 2007, pursuant to Ordinance No. 2007 -40, the Corporate Authorities approved a Redevelopment Agreement for the Downtown Yorkville Redevelopment Project Area (the "Original Agreement ") providing, among other things, for the reimbursement of certain eligible redevelopment Project costs under the Act to the Developer; and, WHEREAS, in order to obtain financing for the Project, the Developer has requested the City to issue "Developer's Notes" to evidence the amount of reimbursable Project costs due to the Developer pursuant to the Original Agreement from the incremental real estate taxes to be derived from the Project, which Developer Notes shall be assigned by the Developer to the lender as additional collateral to the lender. NOW, THEREFORE, BE IT ORDAINED by the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois, that the First Amendment to the Redevelopment Agreement for the Downtown Redevelopment Project Area as presented to this meeting and attached to this Ordinance, is hereby approved and the Mayor and City Clerk are hereby authorized to execute and deliver said First Amendment and undertake all actions as may be required to implement its terms. ADOPTED this ao 'day of 6U -a,0� , 2007. d APPROVED: � Z� Mayor AYES: NAYS: ABSENT: Attest , wt1� P��rY ity Clerk t FIRST AMENDMENT TO THE REDEVELOPMENT AGREEMENT FOR THE DOWNTOWN YORKVILLE REDEVELOPMENT PROJECT AREA THIS FIRST AMENDMENT to the Redevelopment Agreement for the Downtown Yorkville Redevelopment Project Area dated this day of August, 2007, by and between the United City of Yorkville, Kendall County, Illinois, an Illinois municipal corporation (the "City ") and Tuscan Plaza, Inc., an Illinois corporation (the "Developer ") amending that certain Redevelopment Agreement for the Downtown Yorkville Redevelopment Project Area dated May 11, 2007, by and between the Village and the " Developer the Ori inal A " . reement P ( g g ) PREAMBLES WHEREAS, in 2006, the United City of Yorkville, by its Mayor and City Council ( "Corporate Authorities "), adopted the Tax Increment Allocation Redevelopment Act (65 ILCS 5/11- 74.4 -1 et seq.) (the "TIFAct") for the Yorkville Downtown Redevelopment Project Area, a redevelopment project area as defined by the TIF Act; and, WHEREAS, pursuant to the TIF Act the Corporate Authorities are empowered to induce the development and redevelopment of properties within a designated redevelopment project area through the reimbursement of eligible redevelopment project costs as defined by the TIF Act; and, WHEREAS, pursuant to its powers under the TIF Act, the Corporate Authorities approved the Original Agreement which provided for reimbursement of eligible redevelopment Project Costs in an amount not to exceed $1,833,000 in connection with a project to be undertaken by the Developer at 201, 203 and 205 Bridge Street (the "Subject Property ") which included the following components (hereinafter the "Project "). (a) demolition of the existing structure which is obsolete for current retail purposes; (b) construction of a three story brick building with retail on the first floor street level and ten residential condominiums on each of the second and third floors; (c) construction of twenty -nine (29) underground parking spaces accessed by an elevator conveyance system for automobiles and equipped with ventilation, heat, drainage and a fire suppression system; and, (d) construction of a roof top garden. WHEREAS, the commitment on the part of the Corporate Authorities to reimburse the Developer for eligible redevelopment project costs was based upon the Developers representation that "but for" such assistance the Project could not be undertaken; and, WHEREAS, the Developer has now requested that the City issue "Developer's Notes" i evidencing the City's obligation to reimburse the Developer as aforesaid, it being understood that said Developer's Notes would be issued upon demonstration that the Developer has expended the eligible redevelopment cost and that the Developer's Notes would be payable solely and only from 75% of the Incremental Taxes (as defined in the Original Agreement) derived from the Subject Property and the Project; and, WHEREAS, the Developer has advised the City that the Developer's Notes shall be assigned to a lender as additional collateral for any loan undertaken by the Developer, thereby enabling the Developer to obtain sufficient financing for all costs to be incurred in connection with the construction and completion of the Project. NOW, THEREFORE, for and in consideration of the foregoing Preambles and the mutual covenants hereinafter set forth and the mutual covenants set forth in the Original Agreement, the parties agree as follows: Section 1. Incorporation.. The recitations set forth in the Preambles hereto are material i to this Agreement and are hereby incorporated into and made a part hereof as if fully set forth in this Section 1 and said recitations constitute the understandings of the City and the Developer. I Revised August 16, 2007 2 Section 2. Amendment of Section 2. The Original Agreement is hereby amended by deleting paragraphs B, C and D of Section 2 thereof and replacing it with the following: "B. On or before September 30, 2007, the Developer shall deliver to the City a commitment for financing an amount sufficient to undertake and complete development of the Project. C. On or before November 30, 2007, the Developer shall have obtained all required permits and approvals and have commenced construction of the Project in accordance with the approved permits. D. On or before December 31, 2008, the Developer shall have completed construction of the Project and have obtained a certificate of occupancy for the street level first floor of the structure." Section 3. Amendment of Section 4. The Original Agreement is hereby amended by deleting paragraph C. of Section 4 thereof and replacing it with the following: "C. Reimbursement of Redevelopment Project Costs shall be made annually on each STAF Allocation Date (or, if later, the date which is ten (10) days following approval by the City of payment of such Redevelopment Project Costs) provided that reimbursement of Redevelopment Project Costs shall only be made to the extent money is available therefore in the Developer Sub - Account. To the extent money in the Developer Sub - Account is insufficient to reimburse the Developer for Redevelopment Project Costs, the City shall evidence its obligation to reimburse the Developer for Redevelopment Project Costs (other than Interest Costs) by the execution and delivery of one or more notes, which Notes shall be deemed obligations issued by the City pursuant to the TIF Act. The Note shall be in the form attached hereto as Exhibit A. THE NOTES SHALL NOT CONSTITUTE GENERAL OBLIGATIONS OF THE CITY, NOR Revised August 16, 2007 3 SHALL THEY BE SECURED BY THE FULL FAITH AND CREDIT OF THE CITY. ALL NOTES SHALL BE PAYABLE SOLELY FROM TAX INCREMENT DEPOSITED FROM TIME TO TIME IN THE DEVELOPER SUB - ACCOUNT. All notes shall be secured by a lien on and a pledge of those monies deposited from time to time in the STAF to be paid to the Developer or their assignees. The principal balance of each Note shall bear interest at a per annum rate equal to the prime rate on the issue date of such Note or at a per annum rate equal to the interest rate then being paid by the Developer to finance the costs of the Project. "Prime rate" is defined as the per annum rate of interest published as the "prime rate" by the Wall Street Journal on the issue date of the Note. All notes shall mature on or before the Termination Date, as hereafter defined. Monies available to pay principal and interest obligations on outstanding Notes shall be applied first to the earliest dated of the outstanding Notes and thereafter to all subsequently dated outstanding Notes with the most recently dated Notes being paid last. Notwithstanding the foregoing, if money is not available in the Developer Sub - Account to reimburse the Developer for Redevelopment Project Costs and the reason therefor is that the Developer or its successors in interest has not paid real estate taxes on the Subject Property, when due and owing, the City shall not be required to issue a Note on amounts representing such unpaid real estate taxes." D. Monies distributed from the Developer Sub - Account to reimburse the Developer for Redevelopment Project Costs (including Interest Costs and Notes) as provided above shall be applied in the following priority: (i) First, to Interest Costs eligible for reimbursement pursuant to this Agreement, subject to the limitations contained in the TIF Act; provided, if in any year during the term of this Agreement the Developer is not fully reimbursed for all eligible Interest Costs, the Developer shall be reimbursed first in subsequent years for unreimbursed Interest Costs that Revised August 16, 2007 4 have accrued from prior years and shall be reimbursed second for eligible Interest Costs for the then current year. There shall not accrue any interest on Interest Costs. (ii) Second, to pay interest accruing due on outstanding Notes in the order of the date of issue, as provided in this Agreement. (iii) Third, to pay principal due on outstanding Notes, in the order of the date of issue, as provided in this Agreement. Section 4. Restatement. All other terms and conditions set forth in the Original Agreement are hereby restated as if fully represented herein. Section S. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Revised August 16, 2007 5 i (ii) Second, to pay interest accruing due on outstanding Notes in the order of the date of issue, as provided in this Agreement. (iii) Thir , a principal due on outstanding Notes, in th er of the date of issue, as pr ed in this Agreement. Section 3. Restatement. All other term nditions set forth in the Original Agreement are hereby restated as if fully r ented herein. Section 4. Count rts. This Agreement may be executed two or more counterparts, of which shall be deemed an original but all of which together 11 c itute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers on the above date at the United City of Yorkville, Illinois. United City of Yorkville, an Illinois municipal corporation By: ljdv, ' Mayor Attest: City Clerk Tuscan Plaza, an Illinois corporation By: y Presi Attest: e Exhibit NOTE UNITED CITY OF YORKVILLE, KENDALL COUNTY SPECIAL TAX INCREMENT REVENUE NOTE (Note No. ) Downtown Yorkville Tax Increment Redevelopment Project Area $ , 200 WHEREAS, pursuant to its powers and in accordance with the requirements of the TIF Act, the Corporate Authorities, designated a Redevelopment Project Area and approved a Redevelopment Plan for the redevelopment of the Redevelopment Project Area; and, WHEREAS, pursuant to its powers and in accordance with the requirements of the TIF Act, the Corporate Authorities approved tax increment allocation financing for the purpose of implementing the Redevelopment Plan for the Redevelopment Project Area; and, WHEREAS, on May 11, 2007, the City and Tuscan Plaza, Inc. ( "Developer "), entered into a certain redevelopment agreement (the "Redevelopment Agreement") which was thereafter amended on August 28, 2007, the "First Amendment "); and i WHEREAS, pursuant to the Redevelopment Agreement and the First Amendment, the City has agreed to reimburse the Developer for Redevelopment Project Costs incurred by the Developer in connection with or as a result of the redevelopment of certain portions of the Redevelopment Project Area. NOW, THEREFORE, the City, by and through the Corporate Authorities, covenants and agrees as follows: 1. Incorporation of recitals and definitions of terms. The foregoing recitals are incorporated into this Note as if they were fully set forth in this Section 1. All capitalized terms, unless otherwise specifically defined herein, shall have the meanings given them in the Redevelopment Agreement and First Amendment. Revised August 16, 2007 7 i 2. Promise to pay. Subject to the limitations contained in the Redevelopment Agreement and the First Amendment, the City promises to pay to the order of the Developer, or their legal assignees in accordance with the terms of this Note, the principal sum of $ , together with interest on the balance of such principal sum outstanding from time to time at the rate of percent (_%) (the interest rate shall be as described in Section 4(c) of the First Amendment.) 3. Pledge of, and lien on, Incremental Taxes deposited in the STAF. THIS NOTE SHALL BE PAYABLE FROM AND SECURED BY A PLEDGE OF, AND LIEN ON, INCREMENTAL TAXES DEPOSITED FROM TIME TO TIME IN THE DEVELOPER SUB - ACCOUNT. SUCH PAYMENT, PLEDGE AND LIEN SHALL BE SUBJECT AND SUBORDINATE ONLY TO THE PRIOR PAYMENTS, PLEDGES AND LIENS PROVIDED FOR IN THE REDEVELOPMENT AGREEMENT AND THE FIRST AMENDMENT. 4. Payments. Payments on account of the indebtedness evidenced by this Note shall be made as set forth below, subject to the limitations contained in the Redevelopment Agreement and the First Amendment, including, without limitation, the requirement that Incremental Taxes be available for such purpose. All principal and interest amounts then outstanding shall be due and payable, subject to the remaining provisions of this Section 4, on or before the earlier of the Termination Date as defined in the Redevelopment Agreement or the twentieth (20 anniversary date of this Note (the "Maturity Date "). Payments on the principal balance and interest obligations of this Note shall be due in each year during which payments are or remain due to the Developer on the STAF Allocation Date to the extent monies are in the Developer Sub - Account and is available for such purpose. Payments on this Note shall continue, subject to the terms hereof, until all principal and interest obligations due hereunder have been satisfied in full. Notwithstanding anything to the contrary contained herein, this Note shall be canceled automatically on the first to occur of the date when all obligations are met under the Redevelopment Agreement and the First Amendment; the Termination Date; or, the twentieth anniversary of the date of issuance. Payments on this Note made from monies deposited in the Developer Sub- Account shall be applied first to reduce all interest due on this Note and then to the outstanding principal balance. Payments made under this Note shall be in the amount of all monies in the Developer Sub - Account to the extent that said monies are available, as provided for in the Redevelopment Agreement and the First Amendment, to reimburse the Developer for the sums due hereunder. To the extent the City executes and delivers other Notes pursuant to the terms of the Redevelopment Agreement and the First Amendment, payments of interest obligations coming due on such other Notes shall be made prior to the payments of interest obligations coming due on this Note and payments of principal coming due on such other Notes shall be made prior to the payment of principal coming due on this Note, if such other Notes are dated as of a date which is earlier than the date of this Note, and such obligations shall continue to be of force and effect, with respect to each of such Revised August 16, 2007 8 earlier dated Notes, until all principal and interest obligations coming due on such Notes have been satisfied in full by the City. 5. Place of payment. Payments made under this Note by the City shall be made by check payable to the order of the Developer and mailed to the Developer at such address as the Developer may designate in writing from time to time. 6. Limited obligation of the City. THIS NOTE IS NOT SECURED BY THE FULL FAITH AND CREDIT OF THE CITY AND IS NOT PAYABLE OUT OF THE CITY'S GENERAL REVENUE FUND. THIS NOTE CONSTITUTES A LIMITED OBLIGATION OF THE CITY, AND ALL PAYMENTS DUE UNDER THIS NOTE SHALL BE PAYABLE SOLELY FROM INCREMENTAL TAXES THAT ARE AVAILABLE FOR SUCH PURPOSE UNDER THE PROVISIONS OF THE REDEVELOPMENT AGREEMENT. FAILURE OF THE CITY TO REIMBURSE DEVELOPER FOR REDEVELOPMENT PROJECT COSTS DUE TO INSUFFICIENT FUNDS GENERATED WITHIN THE DEVELOPER SUB - ACCOUNT SHALL NOT BE DEEMED A DEFAULT OF THIS NOTE ON THE PART OF THE CITY. 7. Default. If Incremental Taxes are available to make any payment required by this Note, and if the City thereafter fails to make such payment, the City shall be deemed to be in default under this Note. After any default, the Developer may bring an action in any court of competent jurisdiction to enforce payment of this Note, provided that the Developer shall have first given the City notice of its intent to bring such action and thirty (30) days to cure any such default. Failure of the Developer to exercise its right to bring an action to remedy a default hereunder shall not constitute a waiver of its right to bring an action to remedy any subsequent default. 8. Miscellaneous. (a) If any provision of this Note is found by a court of competent jurisdiction to be in violation of any applicable law, and if such court should declare such provision to be unlawful, void or unenforceable as written, then it is the intent of the City and the Developer that such provision shall be given full force and effect to the fullest possible extent that is legal, valid and enforceable, that the remainder of this Note shall be construed as if such unlawful, void or unenforceable provision was not contained herein, and that the rights, obligations and interests of the City and the Developer shall continue in full force and effect. (b) Upon endorsement, assignment or other transfer of this Note by the Developer or by operation of law, the term "Developer" as used herein shall mean such endorsee, assignee, or other transferee or successor of the Developer then becoming holder of this Note. This Note shall inure to the benefit of the Developer, its successors and assigns and successor holders of this Note, and shall be binding upon the City and its successors and assigns. Notwithstanding the foregoing, this Note shall be fully assignable by the Developer to any lender who financed the development of the Project. With the exception of any such lenders and any assignee which is owned by the same Revised August 16, 2007 9 persons or entities as the Developer, this Note may only be assigned by the Developer to others with the prior written consent of the City. (c) Any notice, request, demand, instruction or other document to be given or served hereunder shall be addressed, delivered and deemed effective as provided in the Redevelopment Agreement and the First Amendment. (d) The provisions of this Note shall not be deemed to amend the provisions of the Redevelopment Agreement or the First Amendment in any respect. To the extent of any conflict or inconsistency between the provisions of the Redevelopment Agreement; the First Amendment; and, the provisions of this Note, the Redevelopment Agreement shall in all instances supersede and control. This Note is executed as of the date first written above. United City of Yorkville, an Illinois municipal corporation By: Its Mayor Attest. City Clerk Revised August 16, 2007 10 Legal Description of Subject Property Parcel One (201 -203 Bridge): Lots I and 9 in Block 1 of Black's Addition to the Village of Yorkville, In the United City of the Village of Yorkville, Kendall County, Illinois. Parcel Two (205 Bridge): The north 1 /2 of Lots 2 and 10 in Block 1 of the Black's Addition to the Village of Yorkville, in the United City of the Village of Yorkville, Kendall County, Illinois. I