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Ordinance 2005-021 ORDINANCE No. 2005 - 2% ORDINANCE APPROVING THE REDEVELOPMENT AGREEMENT FOR THE COUNTRYSIDE CENTER, YORKVILLE, ILLINOIS BE IT ORDAINED, by the Mayor and City Council of the United City of Yorkville, Kendall County, Illinois, that the Redevelopment Agreement for the Countryside Center, Yorkville, Illinois, by and among the United City of Yorkville, a municipal corporation, T -L Countryside, LLC, a Delaware limited liability company and Tri -Land Properties, Inc., an Illinois corporation, is hereby approved and the Mayor and the City Clerk are hereby authorized to execute and deliver said Agreement and undertake any and all actions necessary to implement or cause the implementation of all provisions contained therein PASSED this day of , 2005. APPROVED: ayor Attest: erk I yorkvillelcoun[ryside.ord i REDEVELOPMENT AGREEMENT FOR THE COUNTRYSIDE CENTER, YORKVILLE, ILLINOIS THIS AGREEMENT dated as of the ' :::K day of March 2005, by and among the United City of Yorkville, Kendall County, Illinois, a municipal corporation (hereafter the "City"), T -L Countryside LLC, a Delaware limited liability company (hereafter "T -L ") and Tri -Land Properties, Inc., an Illinois corporation (hereafter "Tri- Land"; T -L and Tri -Land and their permitted successors in interest are, as the context requires, sometimes collectively referred to herein as the "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 20 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, currently improved as a commercial shopping center with approximately 158,000 square feet of retail space (the "Center "); and, WHEREAS, by Ordinances No. 2005 -1 OB and No. 2005 -1OC adopted by the Corporate Authorities on February 15, 2005, the City respectively designated the Center 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, pursuant to the Act, the City desires to enter into a Redevelopment Agreement with a Developer who is the contract purchaser of the Center, which Redevelopment Agreement shall provide for the redevelopment of the Center, including, at a minimum, the following: 1 (a) Acquisition of the Center; (b) Demolition of existing structures which are obsolete for current retail purposes; (c) Reconfiguration of the Center from an interior - oriented mall to an exterior - oriented community shopping center and attendant reconfigurations of adjoining roadways and means of access, including reconfiguration of parking fields; and, (d) Reconstruction of no less than a total of 80,000 square feet of retail space (collectively the "Project"). WHEREAS, in order to induce the Developer to proceed with the Development, the City is prepared to issue tax exempt bonds in the amount sufficient to provide net proceeds equal to Three Million Dollars ($3,000,000) after funding a reserve for capitalized interest as required by law and payment of all bond issuance costs, which net proceeds shall be available to assist with the redevelopment of the Center; and, WHEREAS, as further inducement to the Developer, the City is also prepared to reimburse the Developer for additional redevelopment costs in an amount not to exceed Two Million Two Hundred Thousand Dollars ($2,200,000) through the issuance of a note payable to the order of T -L in accordance with the terms and conditions as hereinafter set forth; and, WHEREAS, pursuant to the Illinois Municipal Code, 65 ILCS 5/1 -1 -1, etseq., (the "Code ") as from time to time amended, and more specifically, Sec. 8 -11 -20 (the "Act"), the Corporate Authorities are empowered to enter into economic incentive agreements or redevelopment agreements relating to the development or redevelopment of land within the City's corporate limits by which the City agrees to share or rebate a portion of any retailer's occupation taxes received by the City pursuant to the Illinois Retailers' Occupation Tax Act (35 ILCS 120/1 et seq.) ( "Sales Taxes ") as a direct result of such development or redevelopment; and, 2 WHEREAS, before entering into such agreement to share or rebate Sales Taxes, the City must find that the property subject to the agreement, if vacant, has been vacant for at least a year; or, any building located thereon demolished within the last year did not meet applicable building codes, or was underutilized; or, the property, if developed, supports buildings which do not meet current codes or are underutilized; and, WHEREAS, in addition to the foregoing, the law also requires that the City to determine that as a direct result of the agreement, the City will benefit through the retention or creation of jobs; the strengthening of the commercial environment within the City; the enhancement of its tax base; and, the Project will serve as a catalyst for the commercial development of adjacent areas; and, WHEREAS, it has been determined by the City and reported in the eligibility report included in the Redevelopment Plan, that the Center has been vacant and has been underutilized for years and the City shall benefit through the creation of j obs, development of adjacent areas and enhancement of its tax base; and, WHEREAS, despite the ideal location of the Center at a major commercial intersection at Route 47 and Route 34, vacancies remain significant and no progress has been made in connection with its redevelopment and, therefore, the City has determined that, but for its assistance pursuant to the Code, adoption of the Redevelopment Plan and this Redevelopment Agreement, the Center would continue to deteriorate and vacancies would increase; and, WHEREAS, T -L is a single purpose entity formed for the purpose of acquiring fee simple title to the Center, whose member will be an affiliate of Tri -Land, and Tri -Land will be the Manager of T -L and also the property manager appointed by T -L to manage, lease and redevelop the Center. NOW, THEREFORE, for and in consideration of the premises and the mutual covenants 3 hereinafter set forth, the parties agree as follows: Section L Incorporation. The representations and recitations set forth in the preambles hereto are material to this Redevelopment Agreement and are hereby incorporated into and made a part of this Redevelopment Agreement as though fully set forth in this Section I and said representations and recitations constitute the understandings of the City and the Developer. g t3' � Section IL Acquisition and Demolition of the Center. A. T -L hereby covenants and agrees to acquire fee simple title to the Center within 30 days following the closing of the sale of the bonds, and to deliver proof of such acquisition to the City. B. Following the acquisition of the Center by T -L, the Developer shall exercise diligent efforts to terminate all existing tenancies and occupancy agreements encumbering the Center, and upon vacation of the Center by all tenants and occupants, to commence and thereafter diligently prosecute to completion the demolition of all buildings in the Center and the demolition of such other improvements as Developer deems appropriate, including the abatement of asbestos and other hazardous materials, and prepare the site for redevelopment and reconstruction (the "Demolition Work'). C. Commencing with the execution of this Redevelopment Agreement and until redevelopment of the Center is completed and the Center is fully occupied with retail tenants or other tenants suitable for occupancy in a retail shopping center, the Developer shall conduct a marketing program for the Center in accordance with prudent and acceptable shopping center management standards. 4 I I Section III. Bond Issuance. A. On or before March 31, 2005, the City covenants and agrees to issue alternate revenue bonds in a gross amount sufficient to provide net proceeds equal to Three Million Dollars ($3,000,000) after funding a reserve for capitalized interest as required by law and payment of all bond issuance costs, for the purpose of financing certain redevelopment project costs as permitted by the Act (the "Bonds "). The City shall pledge all Incremental Taxes (as hereinafter defined) derived from the Project, the City's Sales Tax revenue, and the City's full faith and credit as security therefor and shall distribute the p roceeds from the Bonds after payment of all costs of issuance and reserve for debt service only as hereinafter provided. B. All of the bond proceeds after payment of costs of issuance shall be held in an escrow by the City, and amounts to be used for debt service payments for the first three years shall be separated and held in a separate account, as specified in the ordinance approving the issuance of the Bonds. C. The City agrees to disburse to the Developer the sum of $500,000 from the proceeds i of the Bonds as reimbursement of the cost of the Demolition Work within 30 days after the following events have occurred: (i) issuance of a demolition permit by the City for the Demolition Work; (ii) completion of the Demolition Work; and, i (iii) delivery to the City of evidence of the costs of the Demolition Work, including supporting invoices, accompanied by a certificate of completion executed by Tri-Land stating that the Demolition Work has been satisfactorily completed. Section IV. Developer's Obligations as a Condition to Further Reimbursement — Developer's Note. 5 A. In order to receive the balance of Bond proceeds available for further reimbursement for the costs of the Project, on or before the third anniversary of the date of the Bonds, the Developer shall have delivered to the City the following: (i) a budget itemizing all costs to complete the Project, including but not limited to, acquisition, site preparation, demolition, Project design, engineering, infrastructure, construction of new structures, landscaping and signage (the "Project Budget "); (ii) either (a) a signed lease or proof of a closed sale to a retailer for the purpose of constructing and operating an "anchor" retail store containing at least 60,000 square feet of leasable floor area l�us a firm commitment from the Developer to the City to construct at least 25,000 square feet of new retail space in conjunction with the construction of the anchor store for use by tenants not currently occupying the Center or (b) a signed lease or proof of a closed sale to a retailer for the purpose of constructing and operating an "anchor" retail store containing at least 80,000 square feet of leasable floor area; (iii) evidence of the City's approval of the site plan for the Center that is incorporated into the terms of the lease or sale transaction entered into with the anchor retail store referred to in Section IV.A. (ii) above; and, (iv) evidence of issuance by the City of any required permit for preparation of the site in accordance with such approved site plan (all of the foregoing hereinafter collectively termed the "Initial Requirements "). B. In the event the Initial Requirements are satisfied on or before the third anniversary date from the date of the Bonds, the City shall distribute Two Million Five Hundred Thousand Dollars ($2,500,000) of the proceeds from the sale of the Bonds to the Developer as partial reimbursement for the cost of acquisition of the Center or for other expenses of the Project to be incurred by the Developer which are eligible project costs under the Act and which permit the Bonds to retain their tax exempt status under the U.S. Internal Revenue Code. Distribution by the City to the Developer pursuant to this paragraph B shall be made within thirty (30) days of receipt by the 6 City of proof of satisfaction of the Initial Requirements. C. In the event the Initial Requirements are satisfied on or before the third anniversary date from the date of the Bonds, the City shall pay additional reimbursement to the Developer for a portion of the cost of the acquisition of the Center in the amount of Two Million Two Hundred Thousand Dollars ($2,200,000), subject to reduction in accordance with Section IV.D. below, such obligation to be evidenced by the City's promissory note in such principal amount substantially in the form attached hereto as Exhibit C (the "Developer's Note "), bearing interest equal to the rate of interest being paid from time to time by Developer to the holder of the first mortgage lien on the Center or portion thereof owned by T -L or its successor in interest, which Developer's Note shall be deemed an obligation issued by the City pursuant to the Act. The Developer's Note shall not constitute a general obligation of the City, nor shall the Developer's Note be secured by the full faith and credit of the City. Principal and interest on the Developer's Note shall be payable solely from (i) Incremental Taxes (as hereinafter defined) to the extent such Incremental Taxes are not needed to pay the annual debt service on the Bonds and which, under the terms of the ordinance authorizing issuance of the Bonds, are therefore available to the City for purposes other than payment of such annual debt service on the Bonds (the "Excess Real Estate Tax Increment'); and, (ii) a portion of the excess of Incremental Sales Taxes (as hereinafter defined) to the extent such Incremental Sales Taxes are not needed to pay annual debt service on the Bonds and which, under the terms of the ordinance authorizing issuance of the Bonds, are therefore made available to the City for purposes other than payment of annual debt service on the Bonds (the "Excess Sales Tax Increment'). D. In the event the Initial Requirements are satisfied after the second anniversary and on or before the third anniversary date of the date of the Bonds, the Developer's Note shall be reduced 7 i I in the amount of $15,000 for each calendar month or portion of a calendar month that elapsed after the second anniversary date of the Bonds up to the date the Initial Requirements are satisfied. In the event the Initial Requirements are not satisfied on or before the third anniversary date of the Bonds, this Redevelopment Agreement shall terminate and all of its provisions shall be null and void. E. The indebtedness evidenced by the Developer's Note shall be payable in annual installments, due on February 1 of each year or such later date that is within thirty (30) days of receipt by the City of all Incremental Sales Taxes for the prior calendar year, during the term of this Redevelopment Agreement, from the following sources and no other sources: (i) 100% of the Excess Real Estate Tax Increment; l�us (ii) 80% of the Excess Sales Tax Increment generated through December 31, 2013 and received by the City, and 50% of the Excess Sales Tax Increment generated during each calendar year or partial calendar year after December 31, 2013 until the earlier of (i) payment in full of the Developer's Note; or (ii) the expiration or earlier termination of this Redevelopment Agreement, provided that if any amount of Excess Sales Tax Increment that would be applicable to payment of the Developer's Note is generated prior to the expiration or earlier termination of this Redevelopment Agreement but is received by the City thereafter, the City's obligation to apply such amount to repayment of the Developer's Note shall survive the expiration or earlier termination of this Redevelopment Agreement, unless terminated pursuant to Section XX of this Redevelopment Agreement. The Developer's right to receive payments pursuant to the Developer's Note is subject to the condition that the Developer pay all real estate taxes lawfully assessed against the portion of the Center owned by the Developer that are then due and payable or past due. The City shall be entitled to withhold, without additional interest, installments otherwise due pursuant to the Developer's Note until such time as all such real estate taxes then due and payable, including past due amounts, have been paid, whereupon the City shall promptly pay all withheld installments to the Developer. 8 Section V. Findings of the City Pursuant to the Code. The City has determined that the redevelopment of the Center shall further the redevelopment and development within its major commercial areas; that without the assistance hereinafter set forth, a redevelopment of the Center would not be undertaken; that the Developer meets high standards of creditworthiness and fmancial strength; that the Project shall enhance the tax base of the City; and that all of the conditions required by the Code as hereinabove stated exist at the Center. Section VI. Term. Unless earlier terminated pursuant to Section IV.D or .Section XX, the term of this Redevelopment Agreement shall commence on the date of execution and end December 31, 2028 (the "Termination Date "). Section VII. Provisions and Definitions -- Tax Increment and Sales Tax Increment. I A. As used in this Redevelopment Agreement, "Incremental Taxes" shall mean the amount of ad valorem taxes, if any, paid in respect of the Center and its improvements which is attributable to the increase in the equalized assessed value of the Center and its improvements, over the initial equalized assessed value of the Center. As used in this Redevelopment Agreement, "Incremental Sales Taxes" shall mean the amount of Sales Tax revenue received by the City and derived from the Center. As used herein, the terms "Sales Tax" and "Sales Taxes" mean, collectively, the Illinois Use Tax, the Illinois Service Use Tax, the Illinois Service Occupation Tax, the Illinois Retailers' Occupation Tax and similar taxes hereafter imposed in connection with the sale of services or the sale or rental of goods. B. Promptly upon execution of this Redevelopment Agreement, the City shall establish 9 the "T -L Sub Account" into which the City shall make the deposits as hereinafter described. During the term of this Redevelopment Agreement, the City shall deposit all Incremental Taxes into the "Special Tax Allocation Fund" (as such fund is established under and defined in the Act), and, to the extent there is Excess Real Estate Tax Increment remaining in the Special Tax Allocation Fund from time to time, the City shall promptly transfer such Excess Real Estate Tax Increment into the T -L Sub - Account. The City shall also deposit all Excess Sales Tax Increment into the T -L Sub Account as hereinafter provided. The City hereby pledges to the Developer all funds in the T -L Sub Account and grants to Developer a first priority security interest in all funds deposited therein to secure payment of amounts due or to become due under the Developer Note. C. In order to calculate the Incremental Sales Taxes, the Developer (and any transferee of all or a portion of the Center) and the City shall cooperate to provide the City access to the sales tax data of those retail business that are located in the Center. The City and the Developer (and any transferee of all or a portion of the Center) shall jointly exercise reasonable efforts to establish a system with the Illinois Department of Revenue to arrange for the receipt of such information. Additionally, the Developer (and any transferee of all or a portion of the Center) shall provide or cause to be provided to the City appropriate completed Illinois Department of Revenue sales tax returns, or powers of attorney to obtain the data reported thereon, for each such retail business. The Developer (and any transferee of all or a portion of the Center) shall exercise commercially reasonable efforts to include such provisions in each of its leases for property within the Center as may be necessary in to enable the Developer (and any transferee of all or a portion of the Center) to comply with the terms of this paragraph. Prior to the end of each calendar quarter during the term of this Redevelopment Agreement, the Developer (and any transferee of all or a portion of the Center) 10 shall prepare and deliver to the City a written report of the amount of Incremental Sales Taxes that should have been received by the City. To the extent such Incremental Sales Taxes received by the City are not required to pay debt service on the Bonds for the debt service payments due the following twelve months, such Incremental Sales Taxes are hereby deemed Excess Sales Tax Increment. Each calendar year during the term of this Redevelopment Agreement, on or before the date the annual installment is due and payable on the Developer's Note as provided in Section W.E., I the City shall deposit all Excess Incremental Sales Taxes to be used to pay the Developer's Note into the T -L Sub Account as hereinabove provided. D. In the event that the Developer (or any transferee of all or a portion of the Center) shall fail to deliver or cause to be delivered the aforementioned Sales Tax documentation and then the Developer (and any transferee of all or a portion of the Center) agrees to provide alternate documentation to the City as soon as reasonably possible in the form of an audit of sales of an individual retailer or in such other form reasonably acceptable to the City. The obligation of the City to make payments of either principal or interest on the Developer's Note from Excess Incremental Sales Taxes shall be subject to the City's receipt of information necessary to make a reasonable calculation of the amount of Incremental Sales Taxes as stated above. Section VIII. No Liability of City to 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 materialman providing services or materials to the Developer for the redevelopment of the Center. Section IX. Time; Force Majeure. i 11 Time is of the essence of this Redevelopment Agreement, provided, however, a parry shall not be deemed in material breach of this Redevelopment Agreement with respect to any obligations of this Redevelopment Agreement on such parry's part to be performed if such parry 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, wet soil 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 parry (or the other party's agents, employees or invitees) or similar causes beyond the reasonable control of such parry ( "Force Majeure "). If one of the foregoing events shall occur or either parry shall claim that such an event shall have occurred, the parry 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. Section X. Conveyance or Assignment of the Center. T -L may not sell, transfer, assign or otherwise convey all or any portion of its interest in the Center (any of the foregoing being herein defined as a "Transfer') during the term of this Redevelopment Agreement without the prior written consent of the City, which consent shall not be unreasonably withheld or delayed or conditioned. Notwithstanding the provisions of the i 12 immediately preceding sentence, the City agrees that it will not withhold its consent to any proposed Transfer (i) of all or any portion of the Center to a retail store operator that will operate a retail store in the Center containing at least 60,000 square feet of floor area or to any transferee that is an Affiliate (as hereinafter defined) of such retail store operator, (ii) to any Affiliate of Tri -Land, (iii) to a transferee who either (a) directly or indirectly through an Affiliate, has substantial and demonstrable experience in the operation or management of retail shopping centers similar in size to, or greater in size than, the Center or (b) as a condition precedent to the closing of the Transfer, will enter into a management agreement (a copy of which shall be delivered to the City) with Tri -Land or another entity having substantial and demonstrable experience in the operation or management of retail shopping centers similar in size to, or greater in size than, the Center, and will continuously keep the Center under the management of such management company or one or more successors with the foregoing qualifications. In all instances, it shall be a condition of the City's obligation to consent to a proposed Transfer that the proposed transferee execute a document in form and substance reasonably satisfactory to the City that evidences such transferee's agreement to be bound by the terms and provisions of this Redevelopment Agreement during such transferee's period of ownership of the Center or any portion thereof, including, without limitation, the obligation to provide to the City, or arrange for the provision to the City of, sales tax data of those retail businesses located in the portion of the Center owned by such transferee as described in Section VII. The Developer's Note may be assigned by the Developer in connection with any Transfer made in accordance with the provisions of this Section X. As used in this Redevelopment Agreement, an "Affiliate" means, with respect to any person or entity, any person or entity directly or indirectly, through one (1) or more intermediaries, controlling, controlled by or under common control with 13 i such person or entity. Anything set forth herein to the contrary notwithstanding, T -L or any permitted successor my freely grant mortgages on the Center at any time and from time to time without the consent of the City. Section XI. Developer's Indemnification. The Developer shall indemnify and hold harmless the City, its agents, officers and employees (individually an "Indemnitee" and collectively the "Indemnitees') from and against any and all obligations, losses, damages, penalties, actions, claims, suits, liabilities, judgments, costs and expenses (including reasonable attorney's fees and disbursements of counsel for such Indemnitees) which may arise directly or indirectly from (i) the failure of the Developer to comply with any of the terms, covenants or conditions set forth in this Redevelopment Agreement, (ii) the Developer's failure to pay general contractors, subcontractors or materialmen in connection with improvements to the Center funded with the proceeds of the Bonds or the Developer's Note or (iii) the existence of any material misrepresentation or omission on the part of the Developer in this Redevelopment Agreement or any other document related to this Redevelopment Agreement that is the result of information supplied or omitted to be supplied by the Developer, or (iv) bodily injury, death or property damage caused by the alleged or actual negligence, recklessness or willful misconduct of the Developer or any of its officers, managers, agents employees, contractors subcontractors 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. This paragraph shall 14 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 XII. 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 parry 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 XIII. Severability. If any section, subsection, term or provision of this Redevelopment Agreement or the application thereof to any parry 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 XIV. Notices. All notices, demands, requests, consents, approvals or other instruments required or permitted by this Redevelopment Agreement shall be given in writing at the addresses set forth below, and shall be executed by the party or an officer, agent or attorney of the party, and shall be given by any of the following means: (i) personal service, (ii) telecopy or facsimile, (iii) deposit with a commercial overnight courier, such as FedEx, for delivery on the next business day, freight prepaid or (iv) deposit with the United States Postal Service as certified mail, return receipt requested. Any 15 notice demand, request, consent or approval sent pursuant to (A) either clause (i) or (ii) shall be deemed received when sent, if sent by 5:00 p.m. on a business day, otherwise on the next business day or (B) clause (iii) shall be deemed given on the next business day following deposit with the courier or (C) clause (iv) on the third (3` day from and including the date of posting. Any of the following addresses may be changed by notice given to the other parties in the same manner provided above. To the Developer: Tri -Land Properties, Inc. One Westbrook Center, Suite 520 Westchester, Illinois 60154 -5764 Attention: Hugh D. Robinson Facsimile: 708 5318217 T -L Countryside LLC One Westbrook Center, Suite 520 Westchester, Illinois 60154 -5764 Attention: Hugh D. Robinson Facsimile: 708 5318217 With a copy to: Jeffrey D. Warren Burke, Warren, MacKay & Serritella, P.C. 330 North Wabash, 22 Floor Chicago, Illinois 60611 -3607 Facsimile: 312 840 7900 To the City: United City of Yorkville 800 Game Farm Road Yorkville, Illinois 60560 Attention: City Administrator Facsimile: 630.553.7575 With a copy to: Kathleen Field Orr Kathleen Field Orr & Associates One South Wacker Drive, Suite 1990 Chicago, Illinois 60606 Facsimile: 312 382 2124 i 16 I I Section XV 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 XVI. 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 XVIL Warranties and Covenants of the Developer. A. The Developer hereby represents and warrants that as of the date hereof, T -L is a duly organized and validly existing limited liability company organized under the laws of the state of Delaware and is duly authorized to transact business in the state of Illinois, and Tri-Land is a duly organized and validly existing corporation organized under the laws of, and in good standing under, the laws of the state of Illinois. B. The Developer covenants and agrees to comply with all applicable zoning ordinances and regulations, building code, fire code and all other City ordinances, resolutions and regulations with respect to the redevelopment and operation of the Center. C. With respect to the redevelopment and operation of the Center, the Developer hereby covenants and agrees to comply with all applicable laws, rules and regulations ofthe State of Illinois, the United States and all agencies of each of them having jurisdiction over it. Section XVIII. Additional Covenants of City. A. The City covenants and agrees to comply with all provisions and requirements of the Act and the Code with respect to all matters relating to this Redevelopment Agreement. 17 B. The City will waive any requirement for the payment of water, sewer, and other utility "tap -on" or connection fees and charges to the City with respect to the Center, and will cooperate with the Developer's efforts to obtain similar waivers from other governmental agencies and bodies that may impose such fees or charges. C. The City will waive all impact fees, building permit fees and other fees with respect to the redevelopment of the Center, provided, however, this waiver shall not relieve the Developer from any obligation to reimburse the City for the reasonable fees of any consultants paid by the City in connection with the review of approval of plans submitted to the City for its approval by the Developer. D. The City acknowledges and agrees that the Center currently has adequate storm water management measures in place. The City further agrees that unless the redevelopment of the Center materially increases the amount of storm water run -off generated by the Center, no further storm water management measures shall be required, and in the event there is a material increase in the amount of storm water run -off generated as a result of the redevelopment of the Center and additional storm water management measures are required, such additional measures shall be implemented in accordance with the use of Best Management Practices in the most cost effective manner possible under the circumstances. E. The City will actively support and cooperate with the Developer's request to the Illinois Department of Transportation for direct access driveways to and from the Center from Route 47 to the extent such request is supported by a traffic analysis prepared by a recognized traffic engineering consultant. F. The City shall, within ten (10) days following request in writing from the Developer, 18 I execute, acknowledge and deliver to Developer a statement in writing addressed to the Developer, or any prospective mortgagee purchaser, certifying: that this Redevelopment Agreement is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect as modified and stating the modifications); that the Developer is not, to the City's knowledge, in default under this Redevelopment Agreement (or, there is a known default, specifying same) and any other matters reasonably requested by the Developer. Section XIX. No Discrimination — Construction. The Developer for itself and its successors and assigns agrees that in the construction of the improvements at the Center 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 agree 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 XX. 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 19 Agreement. Except as required to protect against Rirther damages, the City may not exercise any remedies against the Developer 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 (3 0) day period shall be extended for such time as is reasonably necessary for the curing of the same, so long as the Developer 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 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 its obligations under this Redevelopment Agreement after notice is given by the City and any cure periods described in paragraph A above have expired, or if the Developer is in material default under the purchase agreement for the acquisition of the Center, 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 petition or similar pleading under any section or sections of any bankruptcy or insolvency act shall be filed by or against the Developer, or 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 (and, in the case of an involuntary proceeding such proceeding is not vacated or dismissed within 60 days of being filed), or the Developer makes an assignment for the benefit of its creditors, or a trustee or receiver is appointed for the Developer or for the major part of the Developer's property, the City may elect, to 20 the extent such election is permitted by law and is not unenforceable under applicable federal bankruptcy laws, but is nor 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. C. 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 (3 0) day period, such thirty (3 0) 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 parry 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, 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 21 i 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 JIM. 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 as otherwise expressly I provided herein, this Redevelopment Agreement supersedes all prior Redevelopment Agreements, negotiations and discussions relative to the subject matter hereof. Section IMI. Counterparts. This Redevelopment Agreement may be executed in two or more counterparts, each of which 22 shall be deemed an original but all of which together shall constitute one and the same instrument. [Signature page follows] I I 23 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 q By: _ Mayor Attest: �erk Tri -Land Properties, Inc., an Min corporation By: / �• / chard F. Dube, President T -L Countryside LLC, a Delaware limited liability company, By: Tri -Land Properti ,Inc., its Manager, By: >� chard F. Dube, President 24 STATE OF ILLINOIS ) SS. COUNTY OF COOK ) 1, IRIA w l? , a Notary Public in and for said County, in the State aforesaid, do hereby certify that Richard F. Dube, the President of Tri-Land Properties, Inc., an Illinois corporation and the Manager of T -L COUNTRYSIDE LLC, a Delaware limited liability company, who is personally known to me to be the same person whose name is subscribed to the foregoing instrument as such President appeared before me this day in person and acknowledged that he signed and delivered the said instrument as his own free and voluntary act and as the free and voluntary act of said Manager, for the uses and purposes therein set forth. GIVEN under my hand and notarial seal, this lf�lday of March, 2005. Official Seal- �Y �` W ����'1• Tina L Knez Notary Public State of Illinois Notary Public Q MY commission Expires 05122/08 (SEAL) STATE OF ILLINOIS ) SS. COUNTY OF COOK ) 1 , am Lad �, , a Notary Public in and for said County, in the State aforesaid, do hereby certify that Richard F. Dube, the President of Tri -Land Properties, Inc., an Illinois corporation who is personally known to me to be the same person whose name is subscribed to the foregoing instrument as such President appeared before me this day in person and acknowledged that he signed and delivered the said instrument as his own free and voluntary act for the uses and purposes therein set forth. GIVEN under my hand and notarial seal, this day of March, 2005. Of clal seal Tina L Knez Notary Public Notary Public State of Illinois MY Commi.ebn expires 05/22/06 STATE OF ILLINOIS ) SS. COUNTY OF Q ) 1, Ett�kOdAA K 10kWU, j, a N_ o Pub�aXor c in and for said County, in the State aforesaid, do hereby cert ify that t -u :CQ %e of The United City of Yorkville, an Illinois municipal corporation, and -� C i.(lCc.``1n �-C-t ISM kex)gCC the City Clerk of The United City of Yorkville, who are personallywn td-ine to be the same persons whose names are subscribed to the foregoing instrument as such Mayor and City Clerk, appeared before me this day in person and acknowledged that they signed, attested and delivered the said instrument as their own free and voluntary act for the uses and purposes therein set forth. GIVEN under my hand and notarial seal, this R day of March, 2005. A f l Notary Publ (SEAL) (SE �s L) :E r rc,7, ` E62ub:!1h Y Nopiry poblic, .S!ute of Illinois �' }��1' aEo�niscion�Expires 10 -30 -2006 i it I l II Exhibit A Legal Description I Exhibit A LEGAL DESCRIPTION The boundaries of the Project Area have been carefully drawn to include only real property and improvements substantially benefited by the proposed Redevelopment Project to be undertaken part of this Redevelopment Plan. The boundaries of the Project Area are generally coterminous with the property assigned the 2003 tax parcel number 02 -28- 104 -015 plus adjacent right -of -way along IL Route 47. The Project Area boundaries are shown in Figure 1, Project Area Boundary, and legally described below. LOT 7 (EXCEPT THAT PART DESCRIBED AS FOLLOWS: COMMENCING AT THE MOST EASTERLY SOUTHEAST CORNER OF SAID LOT 7; THENCE NORTH 80 DEGREES 58 MINUTES 11 SECONDS WEST ALONG SOUTHERLY LINE, 309.0 FEET TO A SOUTHEAST CORNER OF SAID LOT 7 FOR A POINT OF BEGINNING; THENCE SOUTH 80 DEGREES 58 MINUTES 11 SECONDS EAST ALONG SAID SOUTHERLY LINE 209.0 FEET TO A SOUTHEAST CORNER OF SAID LOT 7; THENCE NORTH 04 DEGREES 45 MINUTES 00 SECONDS EAST ALONG AN EASTERLY LINE OF SAID LOT 7, 90.0 FEET; THENCE NORTH 80 DEGREES 58 MINUTES 11 SECONDS WEST, 140.35 FEET; THENCE SOUTH 70 DEGREES 02 MINUTES 02 SECONDS WEST, 185.15 FEET TO THE POINT OF BEGINNING; AND ALSO EXCEPTING THAT PART AS FOLLOWS: BEGINNING AT THE INTE CTIO OF THE NE OF LOT 6 OF THE RESUBDIVISIO SOUTHERNMOST LIN OF PART OF CK 1, COUNTRYSIDE CENTER, UNIT NO. 1 WITH THE WESTERLY LINE OF ILLINOIS ROUTE NO. 47; THENCE SOUTH 69 DEGREES 58 MINUTES 14 SECONDS WEST ALONG SAID SOUTHERNMOST LINE 230.45 FEET TO THE SOUTHERNMOST CORNER OF SAID LOT 6; THENCE SOUTH 19 DEGREES 57 MINUTES 46 SECONDS' EAST 192.30 FEET; THENCE NORTH 70 DEGREES 02 MINUTES 14 SECONDS EAST 141.82 FEET TO SAID WESTERLY LINE; THENCE NORTH 04 DEGREES 45 MINUTES 00 SECONDS EAST ALONG SAID WESTERLY LINE 211.98 FEET TO THE POINT OF BEGIRD G) O E RESUBDMSION OF PART OF BLOCK 1, COUNTRYSIDE CENTER, UNIT NO. 1, PART DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHERNMOST CORNER OF LOT 6 IN SAID RESUBIDVISION; THENCE SOUTH 04 DEGREES 45 MINUTES 00 SECONDS WEST ALONG THE EAST LINE OF SAID LOT 7 211.98 FEET FOR THE POINT OF BEGINNING; THENCE SOUTH 85 DEGREES 15 MINUTES 00 SECONDS EAST, 136.94 FEET TO THE EAST LINE OF SAID ILLINOIS ROUTE 47; THENCE SOUTH 02 DEGREES 08 MINUTES 48 SECONDS WEST ALONG SAID EAST LINE, 397.70 FEET; THENCE SOUTH 04 DEGREES 45 MINUTES 00 SECONDS WEST ALONG SAID EAST LINE, 191.78 FEET; THENCE NORTH 85 DEGREES 15 MINUTES 00 DEGREES WEST, 150.00 FEET TO THE WEST LINE OF SAID ILLINOIS ROUTE 47; THENCE NORTH 04 DEGREES 45 MINUTES 00 SECONDS EAST ALONG SAID WEST LINE, 589.05 FEET TO THE POINT OF BEGINNING. IN THE UNITED CITY OF YORKVILLE, KENDALL COUNTY, ILLINOIS. Exhibit B Project Area Boundary I i Exhibit B j i kW ay Count Par . I I I I ! Block: 104 Parcel: 015 ti 1,2,3,4,5,6 ,7* 8 *,9* 0 I � C I to Ca �a�i c a� U I —u— Project Area Boundary � 3,4,5 Blight Factors: 1. Obsolescence V 2. Deterioration 3. Presence if structures RoUte 34 below minimum code 4. Excessive vacancies 5. Declining or lagging equalized ' assessed value6. Lack of community planning B. Environmental remediation 9. Excessive land coverage /overcrowding * Indicates factor present to a limited extent ure 4 L tribution of Blight Factors US Route 34 & Illinois Route 47 Yorkville.. IL Tax Increment Financing Redevelopment Project Area URS • TPAP Exhibit C DEVELOPER'S NOTE UNITED CITY OF YORKVILLE, KENDALL COUNTY, ILLINOIS SPECIAL TAX INCREMENT REVENUE NOTE Date Amount WHEREAS, pursuant to its powers and in accordance with the requirements of the Tax Increment Allocation Redevelopment Act, 65 ILCS 5/11 -74.4 et seq. (the "Act "), the Corporate Authorities of the United City of Yorkville, 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 Act, the Corporate Authorities of the United City of Yorkville approved tax increment allocation financing for the purpose of implementing the Redevelopment Plan for the Redevelopment Project Area; and, WHEREAS, pursuant to the Illinois Municipal Code, 65 ILCS 5/1 -1 -1, et seq. (the "Code ") and more specifically, Sec. 8- 11 -20, the Corporate Authorities of the United City of Yorkville have agreed to share its retailer's occupation taxes received by the City from the Redevelopment Project Area pursuant to the Illinois Retailer's Occupation Tax Act (35 ILCS 120/1 et seq.) ( "Sales Taxes ") as hereinafter provided; and, WHEREAS, on , the City, T -L Countryside LLC ( "T -L') and Tri -Land Properties, Inc. ( "Tri - Land') entered into a certain Redevelopment Agreement (the "Redevelopment Agreement "); and, WHEREAS, pursuant to the Redevelopment Agreement, the City has agreed to reimburse the T -L for Redevelopment Project Costs (as defined by the Act) incurred by the Developer in connection with or as a result of the redevelopment 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 Developer's 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. 1 2. Promise to pay. Subject to the limitations contained in the Redevelopment Agreement, the City promises to pay to the order of the Developer, in accordance with the terms of this Developer's Note, the principal sum of $2,200,000, together with interest on the balance of such principal sum outstanding from time to time at the rate of interest rate provided for in Section IV of the Redevelopment Agreement. 3. Pledge of, and lien on, Incremental Taxes. THIS NOTE SHALL BE PAYABLE FROM AND SECURED BY A PLEDGE OF, AND LIEN ON, INCREMENTAL REAL ESTATE TAXES AND SALES TAXES RECEIVED BY THE CITY FROM THE PROJECT (COLLECTIVELY "INCREMENTAL TAXES ") BUT ONLY TO THE EXTENT SUCH INCREMENTAL TAXES ARE NOT REQUIRED TO PAY DEBT SERVICE ON CERTAIN BONDS ALL AS SET FORTH IN THE REDEVELOPMENT AGREEMENT. SUCH PAYMENT, PLEDGE AND LIEN SHALL BE SUBJECT TO ALL PRIOR PLEDGES OF INCREMENTAL TAXES, PURSUANT TO, AND ALL TERMS AND CONDITIONS AS SET FORTH IN, THE REDEVELOPMENT AGREEMENT. 4. Payments. The indebtedness evidenced by this Developer's Note shall be payable in annual installments, due on February 1 st of each year or such later date that is within thirty (3 0) days of receipt by the City of all Incremental Sales Taxes (as defined in the Redevelopment Agreement for the prior calendar year, during the term of the Redevelopment Agreement, from the following sources and no other sources: (i) 100% of the Excess Real Estate Tax Increment (as defined in the Redevelopment Agreement); plus (ii) 80% of the Excess Sales Tax Increment (as defined in the Redevelopment Agreement) generated through December 31, 2013 and received by the City, and 50% of the Excess Sales Tax Increment generated during each calendar year or partial calendar year after December 31, 2013 through and including December 31, 2028 (the "Maturity Date "). The Developer's right to receive payments pursuant to this Developer's Note is subject to the condition that the Developer pay all real estate taxes lawfully assessed against the portion of the Center owned by the Developer that are then due and payable or past due. The City shall be entitled to withhold, without additional interest, installments otherwise due pursuant to this Developer's Note until such time as all such real estate taxes then due and payable, including past due amounts, have been paid, whereupon the City shall promptly pay all withheld installments hereunder to the Developer. 5. Place ofpayment. Payments made under this Developer's 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. 2 6. Limited obligation of the City. THIS DEVELOPER'S 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 DEVELOPER'S NOTE CONSTITUTES A LIMITED OBLIGATION OF THE CITY, AND ALL PAYMENTS DUE UNDER THIS DEVELOPER'S 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 THE DEVELOPER FOR REDEVELOPMENT PROJECT COSTS DUE TO INSUFFICIENT FUNDS GENERATED FROM THE REDEVELOPMENT PROJECT AREA SHALL NOT BE DEEMED A DEFAULT OF THIS DEVELOPER'S NOTE ON THE PART OF THE CITY. 7. Default. If Incremental Taxes are available to make any payment required by this Developer's Note, and if the City thereafter fails to make such payment, the City shall be deemed to be in default under this Developer's Note. After any default, The Developer may bring an action in any court of competent jurisdiction to enforce payment of this Developer's Note, provided that the Developer shall have first given the City notice of its intent to bring such action and thirty (3 0) 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 Developer's 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 Developer's 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) 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. l 3 1 1 (c) The provisions of this Developer's Note shall not be deemed to amend the provisions of the Redevelopment Agreement in any respect. To the extent of any conflict or inconsistency between the provisions of the Redevelopment Agreement and the provisions of this Developer's Note, the Redevelopment Agreement shall in all instances supersede and control. This Developer's Note is executed as of the date first written above. United City of Yorkville, an Illinois municipal corporation By: " Z Mayor Attest. �rk 4