Loading...
Ordinance 2012-41 UNITED CITY OF YORKVILLE KENDALL COUNTY, ILLINOIS ORDINANCE NO , 2012-41 AN ORDINANCE APPROVING A DEVELOPMENT AGREEMENT FOR KENDALL CROSSING, YORKVILLE, ILLINOIS Passed by the City Council of the United City of Yorkville, Kendall County, Illinois This 23`d day of October, 2012 Ordinance No, 2012- A4 AN ORDINANCE APPROVING A DEVELOPMENT AGREEMENT FOR KENDALL CROSSING, YORKVILLE, ILLINOIS WHEREAS , by Ordinance No . 2005 - 10X adopted by the Mayor and City Council of the United City of Yorkville (the "Corporate Authorities") on February 8 , 2005 , a Tax Increment Financing Redevelopment Project and Plan for the US Route 34 and Illinois Route 47 (Countryside Shopping Center) (hereinafter the "Redevelopment Plan") was approved, which Redevelopment Plan covered an area of approximately 19 acres of commercial property (the "Subject Property") which was improved with a retail shopping center in a serious state of disrepair and having a significant number of vacancies; and, WHEREAS, by Ordinance No . 2005 - IOB and No . 2005 - 1OC adopted by the Corporate Authorities on February 15 , 2005 , the City designated the Subject Property as a "redevelopment project area" after a determination that it was a "blighted area" and, due to its eligibility, 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 , after acquisition of the property and demolition of all structures on the Subject Property, a prior owner was unable to proceed with a redevelopment thereof and in 2010, after foreclosing on the Subject property, the current titleholder entered into a contract to convey the Subject Property to James G. Ratos of Yorkville, who has advised the City of his desire to develop the now vacant Subject Property on the condition that the City agrees to assist with the cost of acquisition of the Subject Property and other financial incentives as hereinafter set forth in order to snake the redevelopment of the Subject Property economically viable; and, WHEREAS , pursuant to the Illinois Municipal Code, 65 ILCS 5/1 - 1 - 1 , et seq. (the " Code"), as from time to time amended, and, more specifically, Sec . 8- 1 -2 . 5 of the Code (the Ordinance No. 2012-� Page 2 "Economic Development Act") , the Corporate Authorities are empowered to appropriate and expend funds for economic development purposes including the making of grants to any commercial enterprise as deemed necessary for the promotion of economic development; and, WHEREAS , the Developer has been advised that pursuant to Ordinance No . 2008 - 101 , adopted November 25 , 2008 , and amended by Ordinance Number 2009- 15 , adopted March 24, 2009, the Corporate Authorities designated the Subject Property a "Business District" in accordance with the Business District Development and Redevelopment Law (65 ILCS 5111 - 74 . 3 et seq.) (the "Business District Act") and adopted a development or redevelopment plan and imposed a one percent ( 1 %) business district retailers ' occupation tax and a one percent ( 1 %) business district service occupation tax ("Business District Taxes") to pay business district project costs including the planning, execution and implementation of an approved business district plan; and, WHEREAS , the Developer has also requested that the Business District Taxes available to the City as a result of the adoption of the Business District Act, be used to reimburse the Developer for development costs as permitted by the Business District Act, and that a portion of the City' s amusement tax of three percent (3 %) be applied to the costs of site improvements at the Subject Property; and, WHEREAS, the City is prepared to assist the Developer as requested but only in accordance with the terms and conditions as set forth in the Development Agreement for Kendall Crossings of Yorkville attached hereto and made a part hereof. Ordinance No. 2012- y Page 3 BE IT ORDAINED by the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois, that the Development Agreement for Kendall Crossing, Yorkville, Illinois, by and between the City and James G. Ratos of Yorkville, Illinois, in the form attached hereto and made a part hereof, is approved and the Mayor and City Clerk are hereby authorized to execute said Development Agreement and the City Administrator is authorized to undertake such action as may be required to implement its terms . This Ordinance shall be in full force and effect immediately upon its passage by the Mayor and City Council and approval as provided by law. Passed by the City Council of the United City of Yorkville, Kendall County, Illinois, this oZ 'i day of 00,70664 , A.D . 2012 , CHRIS FUNKHOUSER �� LARRY KOT T CARLO COLOSIMO / DIANE TEELING JACKIE MILSCHEWSKI MARTY MUNNS ROSE SPEARS KEN KOCH APPROVED by me, as Mayor of the United City of Yorkville, Kendall County, Illinois, this day of , A.D . 2012 . Mayor Attest: City Clerk Ordinance No. 2012- � Page 4 EXHIBIT "A" DEVELOPMENT AGREEMENT Kendall Crossing The city did not receive an executed development agreement from the developer. A new ordinance and agreement were approved by the City Council on May 16 , 2013 . Please see Ordinance No . 20.13 -27 — Approving a Development Agreement for Kendall Crossing. DEVELOPMENT AGREEMENT FOR KENDALL CROSSING, YORKVILLE, ILLINOIS THIS AGREEMENT dated as of the day of , 20125 by and between the United City of Yorkville, Kendall County, Illinois, a municipal corporation (hereafter the " City") and James G. Ratos of Yorkville, Illinois (hereafter "Developer") . WITNESSETH . WHEREAS, by Ordinance No . 2005 - 10A, adopted by the Mayor and City Council of the City (the " Corporate Authorities") on February 8 , 2005 , a Tax Increment Financing Redevelopment Project and Plan for the US Route 34 and Illinois Route 47 (Countryside Shopping Center) (hereinafter the "Redevelopment Plan") was approved, which Redevelopment Plan covered an area of approximately 19 acres legally described on Exhibit A attached hereto and made a part hereof, the boundary of which is depicted on Exhibit B also attached hereto and made a part hereof, as of said date being improved as a commercial shopping center with approximately 158 ,000 square feet of retail space on approximately 17 acres of land owned by T- L Countryside LLC, a Delaware limited liability company (the "Prior Owner"), plus approximately two (2) acres of adjacent right of way within State Route 47 (the "Subject Property") ; and, WHEREAS , by Ordinance No . 2005- 1OB and No . 2005 - 10C adopted by the Corporate Authorities on February 15 , 2005 , the City designated the Subject Property as a "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, in order to induce the development of the Subject Property by the Prior Owner, the City issued tax exempt alternative revenue bonds in an amount which provided net proceeds of Three Million Dollars ($ 3 ,000,000) after funding for capitalized interest and payment of all bond issuance costs, which net proceeds were to be available to assist with the redevelopment of the Subject Property (the "Bond Proceeds") ; and, WHEREAS , the Prior Owner proceeded with the redevelopment of the Subject Property and demolished all of the structures comprising the commercial shopping center located thereon but was unable to proceed any further due to the inability to find a commercial user in a declining economy; and, WHEREAS, the Prior Owner ultimately lost its ownership interest in the Subject Property to its mortgagee (the "Lender") after receiving $500 ,000 of reimbursement from the City from the Bond Proceeds for the cost of demolition; and, WHEREAS , after foreclosing on the Subject Property in 2010 , the Lender has now entered into a contract to convey the Subject Property to the Developer and the Developer has advised the City of his desire to develop the now vacant Subject Property on the condition that the balance of the Bond Proceeds be used to assist with the cost of acquisition of the Subject Property and that the City grants other financial incentives as hereinafter set forth in order to make the redevelopment of the Subject Property economically viable; and, WHEREAS , pursuant to the Illinois Municipal Code, 65 ILCS 511 - 1 - 1 , et seq . (the " Code") , as from time to time amended, and, more specifically, Sec . 8 - 1 -2 . 5 of the Code (the "Economic Development Ac("), the Corporate Authorities are empowered to appropriate and expend funds for economic development purposes including the making of grants to any commercial enterprise as deemed necessary for the promotion of economic development; and, 2 WHEREAS , the Developer has been advised that pursuant to Ordinance No . 2008 - 101 , adopted November 25 , 2008 , and amended by Ordinance Number 2009- 15 , adopted March 24, 20095 the Corporate Authorities designated the Subject Property a "Business District" in accordance with the Business District Development and Redevelopment Act (65 ILCS 5/11 -74 . 3 et seq .) (the "Business District Act") and adopted a development or redevelopment plan and imposed a one percent ( 1 %) business district retailers ' occupation tax and a one percent ( 1 %) business district service occupation tax ("Business District Taxes") to pay business district project costs including the planning, execution and implementation of an approved business district plan; and, WHEREAS , the Developer has requested : (i) the balance of the Bond Proceeds be used to assist with his cost to acquire the Subject Property; (ii) the Business District Taxes available to the City as a result of the Business District Act, be used to reimburse the Developer for development costs as permitted by the Business District Act; and, (iii) a portion of the City ' s amusement tax of three percent (3 %) be applied to the costs of site improvements at the Subject Property; and, WHEREAS , the City is prepared to assist the Developer as requested but only in accordance with the terms and conditions hereinafter set forth and only after the City approves the plan for development because the City recognizes that the development of the Subject Property is of vital importance to the City given its strategic location near the intersection of two primary commercial corridors of the City. NOW, THEREFORE, for and in consideration of the premises and the mutual covenants hereinafter set forth, the parties agree as follows : 3 Section 1. Preambles. The foregoing preambles are hereby incorporated into this Agreement as if fully restated in this Section 1 . Section 2. Developer 's Obligations. A. The Developer has filed a Planned Unit Development concept plan for the development of the Subject Property which provides for the construction of a new 38 , 500 square foot cinema complex covering approximately seven (7) acres of the Subject Property (the " Cinema Complex-"), which shall be reviewed and shall require consideration of the following items : 1 . Variance in required parking spaces from the required 662 to 418 spaces ; 2 . Need for one shade tree for every twenty (20) parking spaces in interior landscaped medians of 190 square feet; 3 . Variance from the required 2 loading docks to one loading dock; 4 . Authorization to vary from the Subdivision Control Ordinance and stormwater management requirements, subject to the review of final engineering plans and the recommendation(s) of the City Engineer. , Be On or before March 31 , 2013 , the Developer shall have amended the proposed plan to include all required changes and have received approval from the City of a Final Plat for a planned unit development and have been issued any and all required permits from the City and any other governmental agency having jurisdiction over the Subject Property to commence development of the Cinema Complex to house a ten ( 10) screen cinema and all site improvements, including, but not limited to, storm management, landscaping, parking lot, 4 lighting and walkways, as depicted on the approved Final Plat (collectively, hereinafter referred to as the "Project") . C . Simultaneously with the recordation of the Final Plat for the planned unit development, the Developer shall have deposited with the City security in the form of a letter of credit or performance bond in the amount as required by the City' s Code of Ordinance to guarantee completion of all public improvements inclusive of a public improvement completion ("pic") schedule as required for all new subdivisions per the amended subdivision control ordinance at the Subject Property, D . On or before March 31 , 2013 , the Developer shall deliver to the City proof of the Developer ' s contract to convey the Cinema Complex to Neighborhood Cinema Group of Owosso, Michigan, who shall operate the ten ( 10) screen cinema (hereinafter "NCG") . E . On or before July 31 , 2013 , the Developer shall deliver proof of conveyance of the Cinema Complex to NCG who shall commence operation of the Cinema Complex with ten ( 10) screens on or before March 31 , 2014, F . On or before December 31 , 2013 , the Developer shall have completed construction of the Project in accordance with all permits as issued in conjunction with the approved Final Plat for a planned unit development. G. On or before March 31 , 2014, the Developer shall have been issued a certificate of occupancy from the City. Section 3. Obligations on the part of the City. A. Upon issuance of a certificate of occupancy for the Cinema Complex at the Subject Property, the City agrees to reimburse the Developer $ 2, 000, 000 for a portion of the cost 5 of acquisition of the Subject Property payable as follows : (i) payment of the balance of the Bond Proceeds which the City anticipates shall be $ ; and (ii) the difference between said payment and $2,000,000, payable to the Developer from fifty percent (50%) of the three percent (3 %) of the City ' s amusement tax receipts from the operation of the Cinema Complex at the Subject Property required to be collected by the operator of said amusement pursuant to Chapter 4, Article D of the City' s Code of Ordinances (the "Amusement Tax") . Payments by the City shall be made in accordance with the procedures as set forth in Section IV of this Agreement. B . So long as no notice of an event of default has been issued to the Developer and remains outstanding, the City further agrees to reimburse the Developer for Business District Project Costs, as hereinafter defined, from the Business District Taxes generated from the Subject Property commencing with the date of issuance of a certificate of occupancy and terminating upon the termination of the designation of the Subject Property as a business district under the Business District Act. Payment by the City shall be made to the Developer in accordance with the procedures hereinafter set forth in Section IV. C . So long as no notice of an event of default has been issued by the City to the Developer and remains outstanding, the City shall rebate to the Developer fifty percent (50%) of the three percent (3 %) of the Amusement Tax generated from the operation of the Cinema Complex at the Subject Property. Payments of fifty percent (50%) of the three percent (3 %) Amusement Tax shall be paid to the Developer in accordance with the provisions of Section IV hereof commencing on the date of the issuance of a certificate of occupancy for the Cinema Complex and continue until the 10th anniversary of said date of occupancy. 6 D . For purposes of this Agreement, "Business District Project Costs" shall mean and include all costs defined as "business district project costs" in Section 11 -74 . 3 - 5 of the Business District Act which are eligible for reimbursement under the Business District Act. The parties acknowledge that the determination of Business District Project Costs and qualification for reimbursement from Business District Taxes under this Agreement are subject to the Business District Act, all amendments to the Business District Act both before and after the date of this Agreement, and all administrative rules and judicial interpretations rendered during the term of this Agreement. The City has no obligation to the Developer to attempt to modify said rules or decisions but will cooperate with the Developer in obtaining approval of Business District Project Costs . Section 4. Deposits and Disbursements from the Business District Tmr Allocation Fund. A. In connection with the administration of the Subject Property designated as a "business district" under the Business District Act, the City has established the Business District Tax Allocation Fund (the "BDD Fund") into which the City shall deposit all Business District Taxes generated from the operation of any business located on the Subject Property for so long as the Subject Property remains designated as a business district and, for a period of ten ( 10) years commencing with the date of the issuance of a certificate of occupancy for the Cinema Complex on the Subject Property, fifty percent (50%) of the Amusement Tax generated from the Cinema Complex operating at the Subject Property which shall be used to reimburse the Developer for Business District Project costs in accordance with the procedures hereinafter set forth . B . To establish a right of reimbursement for Business District Project Costs under this Agreement the Developer shall submit to the City a written statement in the form attached to 7 this Agreement as Exhibit C (a "Request for Reimbursement") setting forth the amount of reimbursement requested and the specific Business District Project Costs for which reimbursement is sought. Each Request for Reimbursement shall be accompanied by such bills, contracts, invoices, lien waivers or other evidence as the City shall reasonably require to evidence that reimbursement requests shall include only such costs which are Business District Project Costs which have been incurred by the Developer in connection with the development of the approved Final Plat for the Subject Property, which Final Plat, from time to time, may be amended. The City Administrator shall have thirty (30) days after receipt of any Request for Reimbursement from the Developer to recommend to the City Finance Director approval or disapproval of such Request and, if disapproved, to provide the Developer, in writing and in detail, an explanation as to why the City is not prepared to recommend such reimbursement. The only reasons for disapproval of any expenditure for which reimbursement is sought shall be that (i) it is not an eligible Business District Project Cost under the Business District Act; (ii) inadequate documentation has been provided to substantiate such expenditure; or, (iii) it was not constructed and completed by the - Developer in accordance with all applicable City Code requirements and the provisions of this Agreement, including, without limitation, all approved permits The parties acknowledge that the determination of Business District Project Costs and qualification for reimbursement under this Agreement are subject to the Business District Act, all amendments to the Act both before and after the date of this Agreement, and all administrative rules and judicial interpretations rendered during the term of this Agreement. The City has no obligation to the Developer to attempt to modify said rules or decisions but will cooperate with the Developer in obtaining approval of Business District Project Costs . 8 C . Payments shall be made quarterly to the Developer from the BDD Fund, i . e. , March 31 , June 30 , September 30 and December 31 of each year so long as this Agreement is in full force and effect. To the extent insufficient funds are available in the BDD Fund to pay the amount approved, any Business District Project Cost not reimbursed shall be reimbursed from future deposits to the BDD Fund and disbursed to the Developer with the next quarterly payment. D . In addition to the foregoing, the City shall further distribute to the Developer on a quarterly basis, so long as no notice of default has been issued to the Developer by the City and remains outstanding, fifty percent (50%) of the three percent (3 %) Amusement Tax received by the City as a result of the operation of the Cinema Complex at the Subject Property. Payments of this fifty percent (50%) of the three percent (3 %) shall be made until the difference between an amount equal to $2 , 000, 000 and the amount of Bond Proceeds paid to the Developer upon issuance of the certificate of occupancy, shall have been disbursed to the Developer. Section 5. Undertakings on the Part of Developer. A. The Developer hereby covenants and agrees to promptly pay, as the same become due, any and all taxes and governmental charges of any kind that may at any time be assessed with regard to its operation including all real estate taxes assessed against the Subject Property or any other location in the City owned or controlled by the Developer. B . The Developer shall indemnify and hold harmless the City, its agents, officers and employees against all injuries, deaths, losses, damages, claims, suits, liabilities, judgments, costs and expenses (including any liabilities, judgments, costs and expenses and reasonable attorney' s fees) which may arise directly or indirectly from any third-party claims made against the City as 9 a result of the failure of the Developer or any contractor, subcontractor or agent or employee thereof (so long as such contractor, subcontractor or agent or employee thereof is hired by the Developer) to timely pay any contractor, subcontractor, laborer or material men; from any default or breach of the terms of this Agreement by the Developer; or from any negligence or reckless or willful misconduct of the Developer or any contractor, subcontractor or agent or employee thereof (so long as such contractor, subcontractor or agent or employee is hired by the Developer) . The Developer shall, at its own cost and expense, appear, defend and pay all charges of attorneys, costs and other expenses arising therefrom or incurred in connection therewith. If any judgment shall be rendered against the City, its agents, officers, officials or employees in any such action, the Developer shall, at its own expense, satisfy and discharge the same. The paragraph shall not apply, and the Developer shall have no obligation whatsoever, with respect to any acts of negligence or reckless or willful misconduct on the part of the City or any of its officers, agents, employees or contractors . Section 6. Terni . Unless earlier terminated pursuant to Section 18 , the term of this Redevelopment Agreement shall commence on the date of execution and end December 31 , 2031 (the " Termination Date " ) . Section 7. Verification of Sales Taxes. The Developer shall use its best efforts to cooperate with the City in obtaining certified copies of its reports to the Illinois Department of Revenue of all remittances of all sales and service taxes . Section 8. No Liability of City for Others for Developer 's Expenses. The City shall have no obligation to pay costs of the Project or to make any payments to any person other than the Developer, nor shall the City be obligated to pay any contractor, subcontractor, mechanic, or 10 material man providing services or materials to the Developer for the development of the Project. The Developer agrees to comply with the Illinois Prevailing Wage Act, 820 ILCS 130/0 . 01 et seq . , as may be required. Section 9. Time; Force Majeure. Time is of the essence of this Redevelopment Agreement, provided, however, a party shall not be deemed in material breach of this Redevelopment Agreement with respect to any obligations of this Redevelopment Agreement on such party' s part to be performed if such party fails to timely perform the same and such failure is due in whole or in part to any strike, lock-out, labor trouble (whether legal or illegal), civil disorder, weather conditions, failure or interruptions of power, restrictive governmental laws and regulations, condemnations, riots, insurrections, acts of terrorism, war, fuel shortages, accidents, casualties, floods, earthquakes, fires, acts of God, epidemics, quarantine restrictions, freight embargoes, acts caused directly or indirectly by the other party (or the other party' s agents, employees or invitees) or similar causes beyond the reasonable control of such party ("Force Majeure ") . If one of the foregoing events shall occur or either party shall claim that such an event shall have occurred, the party to whom such claim is made shall investigate same and consult with the party making such claim regarding the same and the party to whom such claim is made shall grant any extension for the performance of the unsatisfied obligation equal to the period of the delay, which period shall commence to run from the time of the commencement of the Force Majeure; provided that the failure of performance was reasonably caused by such Force Majeure. 11 Section 10. Assignment, This Redevelopment Agreement may not be assigned by the Developer without the prior written consent of the City, which consent shall not be unreasonably withheld. Section 11. Waiver. Any party to this Redevelopment Agreement may elect to waive any remedy it may enjoy hereunder, provided that no such waiver shall be deemed to exist unless the party waiving such right or remedy does so in writing. No such waiver shall obligate such party to waive any right or remedy hereunder, or shall be deemed to constitute a waiver of other rights and remedies provided said party pursuant to this Redevelopment Agreement, Section 12. Severability. If any section, subsection, term or provision of this Redevelopment Agreement or the application thereof to any party or circumstance shall, to any extent, be invalid or unenforceable, the remainder of said section, subsection, term or provision of this Redevelopment Agreement or the application of same to parties or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby. Section 13. Notices. All notices, demands, requests , consents, approvals or other instruments required or permitted by this Redevelopment Agreement shall be in writing and shall be executed by the party or an officer, agent or attorney of the party, and shall be deemed to have been effective as of the date of actual delivery, if delivered personally, or as of the third (3 ' d) day from and including the date of posting, if mailed by registered or certified mail, return receipt requested, with postage prepaid, addressed as follows : To the Developer: James G. Ratos 207 W Kendall Drive Yorkville, IL 60560 With a copy to : Daniel J. Kramer, Attorney I I 07 South Bridge Street Yorkville, IL 60560 12 To the City: United City of Yorkville 800 Game Farm Road Yorkville, Illinois 60560 Attention : City Administrator With a copy to : Kathleen Field Orr Kathleen Field Orr & Associates 53 West Jackson Blvd. , Suite 935 Chicago, Illinois 60604 Section 14. Successors in Interest. This Redevelopment Agreement shall be binding upon and inure to the benefit of the parties to this Redevelopment Agreement and their respective successors and assigns . Section 15. No Joint Venture, Agency or Partnership Created. Neither anything in this Redevelopment Agreement nor any acts of the parties to this Redevelopment Agreement shall be construed by the parties or any third person to create the relationship of a partnership, agency, or joint venture between or among such parties . Section 16. Warranties and Covenants of the Developer. A. The Developer hereby covenants and agrees to promptly pay, as the same become due, any and all taxes and governmental charges of any kind that may at any time be lawfully assessed including all real estate taxes assessed against the Subject Property or any other location in the City owned or controlled by the Developer. B . The Developer covenants and agrees that at all times it shall comply with all applicable zoning ordinances and regulations , building code, fire code and all other City ordinances, resolutions and regulations . 13 C . The Developer hereby covenants and agrees to comply with all applicable laws, rules and regulations of the State of Illinois, the United States and all agencies of each of them having jurisdiction over it. Section 17. No Discrimination — Construction . The Developer for himself and his successors and assigns agrees that in the construction of the improvements at the Subject Property provided for in this Redevelopment Agreement the Developer shall not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. The Developer shall take affirmative action to require that applicants are employed and that employees are treated during employment, without regard to their race, creed, color, religion, sex or national origin. Such action shall include, but not be limited to, the following : employment upgrading, demotion or transfer; recruitment or recruitment advertising and solicitations or advertisements for employees; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship . The Developer agrees to post in conspicuous places, available to employees and applicants for employment, notices, which may be provided by the City, setting forth the provisions of this nondiscrimination clause. Section 18. Remedies — Liability. A. If, in the City' s judgment, the Developer is in material default of this Redevelopment Agreement, the City shall provide the Developer with a written statement indicating in adequate detail any failure on the Developer' s part to fulfill its obligations under this Redevelopment Agreement. Except as required to protect against further damages, the City may not exercise any remedies against the Developer in connection with such failure until thirty 14 (30) days after giving such notice. If such default cannot be cured within such thirty (30) day period, such thirty (30) day period shall be extended for such time as is reasonably necessary for the curing of the same, so long as the Developer diligently proceed with such cure; if such default is cured within such extended period, the default shall not be deemed to constitute a breach of this Redevelopment Agreement. A default not cured as provided above shall constitute a breach of this Redevelopment Agreement. Any failure or delay by the City in asserting any of its rights or remedies as to any default or alleged default or breach shall not operate as a waiver of any such default or breach of any rights or remedies it may have as a result of such default or breach. B . If the Developer materially fails to fulfill his obligations under this Redevelopment Agreement after notice is given by the City and any cure periods described in paragraph (a) above have expired, the City may elect to terminate this Redevelopment Agreement or exercise any right or remedy it may have at law or in equity, including the right to specifically enforce the terms and conditions of this Redevelopment Agreement. If any voluntary or involuntary proceeding in any court or tribunal shall be instituted to declare the Developer insolvent or unable to pay the Developer' s debts, or the Developer makes an assignment for the benefit of its creditors, or a trustee or receiver is appointed for either one of the Developer or for the major part of the Developer' s property, the City may elect, to the extent such election is permitted by law and is not unenforceable under applicable federal bankruptcy laws, but is not required, with or without notice of such election and with or without entry or other action by the City, to forthwith terminate this Redevelopment Agreement under this Section, the City ' s sole obligation shall be to record, in the office of the Kendall County 15 Recorder, a Certificate of Default, executed by the Mayor of the City or such other person as shall be designated by the City, stating that this Redevelopment Agreement is terminated pursuant to the provisions of this Section, in which event this Redevelopment Agreement by virtue of the recording of such certificate, shall ipso facto automatically become null and void and of no further force and effect. CO If, in the Developer' s judgment, the City is in material default of this Redevelopment Agreement, the Developer shall provide the City with a written statement indicating in adequate detail any failure on the City ' s part to fulfill its obligations under this Redevelopment Agreement. The Developer may not exercise any remedies against the City in connection with such failure until thirty (30) days after giving such notice. If by its nature such default cannot reasonably be cured within such thirty (30) day period, such thirty (30) day period shall be extended for such time as is reasonably necessary for the curing of the same, so long as the City diligently proceeds with such cure; if such default is cured within such extended period, the default shall not be deemed to constitute a breach of this Redevelopment Agreement. A default not cured as provided above shall constitute a breach of this Redevelopment Agreement. Any failure or delay by the Developer in asserting any of their rights or remedies as to any default or any alleged default or breach shall not operate as a waiver of any such default or breach of shall not operate as a waiver of any such default or breach of any rights or remedies it may have as a result of such default or breach. D . In addition to any other rights or remedies, a party may institute legal action against the other party to cure, correct or remedy any default, or to obtain any other remedy consistent with the purpose of this Redevelopment Agreement, either at law or in equity, 16 including, but not limited to the equitable remedy of an action for specific performance; provided, however, no recourse under or upon any obligation contained herein or for any claim based thereon shall be had against the City, its officers, agents, attorneys, representatives or employees in any amount or in excess of any specific sum agreed to be paid by the City hereunder, and no liability, right or claim at law or in equity shall be attached to or incurred by the City, its officers, agents, attorneys, representatives or employees in any amount in excess of any specific sums agreed by the City to be paid hereunder and any such claim is hereby expressly waived and released as a condition of and as consideration for the execution of this Redevelopment Agreement by the City. Notwithstanding the foregoing, in the event either party shall institute legal action against the other party because of a breach of any Redevelopment Agreement or obligation contained in this Redevelopment Agreement, the prevailing party shall be entitled to recover all costs and expenses, including reasonable attorneys ' fees, incurred in connection with such action. E . The rights and remedies of the parties are cumulative and the exercise by a party of one or more of such rights or remedies shall not preclude the exercise by it, at the same time or different times, of any other rights or remedies for the same default or for any other default by the other party. Section 19. Amendment. This Redevelopment Agreement, and any exhibits attached to this Redevelopment Agreement, may be amended only in a writing signed by all the parties with the adoption of any ordinance or resolution of the City approving said amendment, as provided by law, and by execution of said amendment by the parties or their successors in interest. Except 17 as otherwise expressly provided herein, this Redevelopment Agreement supersedes all prior Redevelopment Agreements, negotiations and discussions relative to the subject matter hereof. Section 20. Counterparts, This Redevelopment 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. IN WITNESS WHEREOF, the parties hereto have caused this Redevelopment Agreement to be executed by their duly authorized officers on the above date at Yorkville, Illinois . United City of Yorkville, an Illinois municipal corporation By: Mayor Attest: City Clerk James G. Ratos By: Attest: Secretary 18 Exhibit A Subject Property 19 Exhibit B Business District Boundaries 20 Exhibit C REQUEST FOR REIMBURSEMENT City of Yorkville Yorkville, Illinois 61490-9999 Re : Redevelopment Agreement dated , by and among the City of Yorkville, an Illinois municipal corporation, and James G. Ratos (the "Developer") Dear Sir: You are requested to approve the disbursement of funds from the Sub-Account established by the City of Yorkville pursuant to the Agreement described above in the amount(s), to the person(s) and for the purpose(s) set forth in this Request for Reimbursement. 1 . Request for Reimbursement No. : 2 , Payment Due to : 3 . Amount to be Disbursed: 4 . The amount requested to be disbursed pursuant to this Request for Reimbursement will be used to pay Redevelopment Project Costs as defined in the Agreement and as listed on the Schedule to this Request for Reimbursement. 5 . The undersigned certifies that: (i) the amounts included in 3 above were made or incurred or financed and were necessary for the project and were made or incurred in accordance with the construction contracts, plans and specifications heretofore in effect; (ii) the amounts paid or to be paid, as set forth in this Request for Reimbursement, represents a part of the funds due and payable for Business District Project Costs; (iii) the expenditures for which amounts are requisitioned represent proper Business District Project Costs identified in the Agreement, have not been included in any previous Request for Reimbursement, have been properly recorded on the Developer' s books and are set forth on the attached Schedule, with paid invoices attached for all sums for which reimbursement is requested; (iv) the moneys requisitioned are not greater than those necessary to meet obligations due and payable or to reimburse the Developers for his funds actually advanced for Business District Project Costs; (v) the amount of Business District Project Costs to be reimbursed in accordance with this Request for Reimbursement, together with all amounts reimbursed to the Developer pursuant to the Agreement, is not in excess of the items listed on Exhibit B ; (vi) the Developer is not in default under the Agreement and nothing has occurred to the knowledge of the Developer that would prevent the performance of its obligations under the Agreement. 6 . Attached to this Request for Reimbursement is Schedule # , together with copies of invoices or bills of sale and Mechanic ' s Lien Waivers covering all items for which reimbursement is being requested. Date: By: James G. Ratos Date: By: APPROVED : City of Yorkville, an Illinois municipal corporation 21