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HomeMy WebLinkAbout22-0224 R & N LLC 18 Villa CourtCITY OF ELGIN BUILDING IMPROVEMENT PROGRAM AGREEMENT (18 Villa Court) THIS AGREEMENT is made and entered into this ______ day of March, 2022, by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as “City”), and R & N, LLC, an Illinois limited liability company (hereinafter referred to as “Owner”). WHEREAS, the City Council of the City of Elgin has previously created the Elgin Central Area Tax Increment Financing Redevelopment Plan and Project (the “ECA TIF District”) pursuant to the Tax Increment Allocation Redevelopment Act at 65 ILCS 5/11-74.4-1, et seq; and WHEREAS, the ECA TIF District was established on April 10, 2002, and will continue for 23 years thereafter; and WHEREAS, the Owner is the contract purchaser of the subject commercial building and property commonly known as 18 Villa Court, Elgin, Illinois 60120 (hereinafter referred to as the “Subject Property”); and WHEREAS, the Subject Property is located within the area commonly referred to as Downtown Elgin; and WHEREAS, the Subject Property is located within the ECA TIF District; and WHEREAS, the Owner is proposing to purchase the Subject Property and to redevelop the Subject Property with an event venue and a performance and exhibit space; and WHEREAS, the City Council of the City has determined, and hereby finds, that the Owner’s continued private investment in and redevelopment and reuse of the Subject Property as herein described will further the goals and objectives of the Elgin Central Area TIF Increment Financing Redevelopment Plan and Project and assist the City in its objective creating more economically viable and sustainable downtown business district through strategic redevelopment, all of which are hereby declared by the City to be a valid public purpose of the City; and WHEREAS, the continued private investment in and redevelopment and reuse of the Subject Property will result in an increase in the City’s tax revenues; and WHEREAS, the continued private investment in and redevelopment and reuse of the Subject Property for the purposes as herein described at the Subject Property would not occur in the absence of limited development assistance from the City as herein provided; and WHEREAS, in order to incent and facilitate continued private investment in and redevelopment and reuse of the Subject Property as herein described which will further the goal and objectives of the Elgin Central Area Tax Increment Finance and Redevelopment Plan and Project, the City has agreed to provide certain limited development assistance as hereinafter described; and -2- WHEREAS, the City of Elgin is a home rule unit and may exercise any power and perform any function pertaining to its governmental affairs; and WHEREAS, this Agreement, resulting in furthering and achieving the goals and objectives of the Elgin Central Area Tax Increment Finance and Redevelopment Plan and Project, and resulting in the benefits the City has hereinabove stated, are matters within the government affairs of the City; and WHEREAS, the continued private investment in and redevelopment and reuse of the Subject Property will strengthen the commercial sector of the downtown in the City; and WHEREAS, the redevelopment and reuse of the Subject Property will enhance the tax base of the City; and WHEREAS, the redevelopment of the Subject Property as described herein will create job opportunities within the City; and WHEREAS, the redevelopment of the Subject Property will serve to further the development of adjacent areas; and WHEREAS, the Owner meets high standards of credit worthiness and financial strengths; and WHEREAS, this Agreement is made in the best interests of the City. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby mutually acknowledged, the parties hereto hereby agree as follows: Section 1. The above recitals are incorporated into and made a part of this Agreement. Section 2. The Owner shall acquire the Subject Property and shall then provide for the further redevelopment of Subject Property by improving the Subject Property with an event venue and a new performance and exhibit space as depicted in the plans therefore prepared by Allen + Pepa, dated 12/17/2021, all of which is attached hereto as Attachment A (such redevelopment of the Subject Property with an event venue and a new performance and exhibit space is hereinafter referred to as the "Subject Building Improvements" or alternatively as the "Work"). Section 3. The total approved project costs for the Subject Building Improvements for the Phase 1 improvements for the structure on the Subject Property shall be $679,372.50 as set forth in Attachment B attached hereto made a part hereof (such total approved project costs for the Subject Building Improvements are hereinafter referred to as “Eligible Costs” and such structure is hereinafter referred to as the “Structure”). The City shall pay the Owner a sum not to exceed $50,000 toward the Eligible Costs for Subject Building Improvements to the Structure approved pursuant to the provisions of this Agreement. All parties hereto agree that all payments from the -3- City provided for herein shall be made to the Owner, who shall provide the City with a full release concurrently with receipt. The City also agrees to waive all building permit, plan review, inspection, and/or utility and tap fees associated with the construction and installation of the Subject Building Improvements to the Structure. Section 4. Eligible Costs shall include labor, material and equipment costs, and such other costs as may be reasonably necessary for the execution and completion of the Subject Building Improvements hereby provided for (hereinafter referred to as the “Work”), as established by the construction specifications and construction estimate as set forth in Attachments A and B respectively, attached hereto and made a part hereof, and to be approved by the Project Review Team pursuant to the provisions of Section 5 herein (hereinafter referred to as “Plans”). Section 5. No Work shall be undertaken or shall be considered to constitute the basis for an Eligible Cost until the Owner submits the design for such Work to, and receives written approval from, the City’s Project Review Team (hereinafter referred to as “Project Review Team”) consisting of the City’s Director of Community Development and the City’s Historic Preservation Planner and any other member designated on the Project Review Team. Such design shall include, but not be limited to, a date certain by which the Work shall be completed. In no event shall such Work for the completion of the construction of the Subject Building Improvements be completed more than three hundred and sixty five (365) days from the date of this Agreement. The City’s Project Review Team will reasonably consider and not withhold approval of minor modifications to Plans in so long as such modifications are in substantial compliance to the Plans. Section 6. The Project Review Team shall be permitted access to the Structure to periodically review the progress of the Work. Such review shall not be in lieu of any other inspections that may otherwise be required by law or by the City. Any and all portions of the Work which do not, in the sole discretion of the Project Review Team, conform to the Plans or other applicable terms of this Agreement, shall be made to conform to the Plans and other applicable terms of this Agreement upon written notice of the existence of such non-conforming portions. Section 7. Upon completion of the Work, and upon final inspection and written approval by the Project Review Team and such other final inspections and approvals as may be required by law, Owner shall submit to City: (1) an executed, notarized itemized contractor statement reflecting the total cost of the Work and each portion thereof, including, but not limited to, the cost of labor (whether provided by any contractor or subcontractor), materials and equipment; (2) copies of all bids, contracts and invoices submitted, executed or incurred pursuant to the Work; and (3) reasonable proof of payment of all costs incurred pursuant to the Work. Section 8. City shall pay to the Owner the amount of the portion of the Eligible Costs not to exceed $50,000 provided for at Section 3 herein within thirty (30) days of Owner’s completion of the Work and compliance with the provisions of Section 7 herein. In no event shall the amount paid to the Owner exceed the lesser of the amount specified in Section 3 of this Agreement or in the contractor statement. Section 9. In the event Owner fails to complete the Work in accordance with the terms -4- of this Agreement, or otherwise breaches the terms of this Agreement, City may terminate this Agreement upon written notice of breach and termination to the Owner, and any and all financial or other obligations on the part of City shall cease and become null and void. Additionally, Owner shall refund to City all money paid to Owner by City pursuant to this agreement upon thirty (30) days written demand. This provision shall not constitute a restriction on City to pursue any and all other rights to which it may be entitled by law. Section 10. Upon completion of the Work, and for a period of five (5) years thereafter, Owner shall properly maintain the Work in its finished form, without alteration or change thereto, and shall not enter into any agreement, or take any other s teps to alter, change or remove such Work, or to create or undertake any other Work which may constitute a deviation from the Plans, including the installation of signage, without prior written approval from the Project Review Team in its sole discretion. Section 11. Nothing herein is intended to limit, restrict or prohibit the Owner from undertaking any other work in or about the Subject Property that is unrelated to the Subject Building Improvements provided for in this Agreement. Section 12. This Agreement shall be binding upon City and its successors, and upon Owner, Owners’ successors and assigns for a period of five (5) years from and after the date of completion and approval of the Work. Owner shall provide subsequent Owner(s) of Structure with a copy of this Agreement. This Agreement shall run with the land underlying Structure. The City may record a memorandum of this Agreement against title to the Subject Property. Notwithstanding the aforementioned five (5)-year period, the provisions of Sections 9, 14 and 21 herein shall survive the expiration, completion and/or termination of this Agreement. Section 13. INTENTIONALLY OMITTED. Section 14. To the fullest extent permitted by law, Owner agrees to and shall indemnify, defend and hold harmless, the City, its officials, officers, employees, agents, attorneys, boards and commissions from and against any and all claims, suits, judgments, costs, attorneys’ fees, damages or other relief, including, but not limited to, workers’ compensation claims, in any way resulting from or arising out of the Work to be performed and/or negligent acts or omissions of the Owner in connection herewith, including negligence or omissions of contractors, subcontractors, employees or agents of the Owner, arising out of the performance of this Agreement and/or the Work. In the event of any action against the City, its officers, employees, agents, attorneys, boards and commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City’s choosing. The provisions of this Section shall survive any expiration, completion and/or termination of this Agreement. Section 15. This Agreement shall not be construed to create a partnership, joint venture or employment relationship between the parties hereto. Section 16. This Agreement shall be subject to and governed by the laws of the State of Illinois. The parties hereto hereby agree that venue for any and all actions that may be brought by -5- each and either of them to enforce the provisions of this Agreement shall be in the Circuit Court of Kane County, Illinois. Section 17. The terms of this Agreement shall be severable. In the event that any of the terms or provisions of this Agreement are deemed to be void or otherwise unenforceable for any reason, the remainder of this Agreement shall remain in full force and effect. Section 18. All notices, reports and documents required under this Agreement shall be in writing and shall be mailed by first-class mail, postage prepaid, addressed as follow: As to the City: City of Elgin 150 Dexter Court Elgin, IL 60120-5555 Attn: Community Development Director With a copy of any such notices to: City of Elgin 150 Dexter Court Elgin, IL 60120-5555 Attn: Corporation Counsel As to the Owner: R & N Properties Group, LLC 10N850 Williamsburg Drive Elgin, IL 60124 Section 19. No official, director, officer, agent or employee of the City shall be charged personally or held contractually liable under any term or provision of this Agreement or because of their execution, approval or attempted execution of this Agreement. Section 20. In all hiring or employment made possible or resulting from this Agreement, there shall be no discrimination against any employee or applicant for employment because of sex, age, race, color, creed, national origin, marital status, of the presence of any sensory, mental or physical handicap, unless based upon a bona fide occupational qualification, and this requirement shall apply to, but not be limited to, the following: employment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. Section 21. Notwithstanding anything to the contrary in this Agreement, with the sole exception of an action to recover the monies the City has agreed to pay to the Owner pursuant to Section 3 hereof, no action shall be commenced by the Owner against the City for monetary damages. Owner hereby further waives any and all claims to interest on money claimed to be due pursuant to this Agreement and waives any and all such rights to interest which it claims it may otherwise be entitled to pursuant to law, including, but not limited to, the Local Government Prompt Payment Act (50 ILCS 501/1, et seq.), as amended, or the Illinois Interest Act (815 ILCS 205/1, et seq.), as amended. The parties hereto further agree that any action by the Owner arising out of this Agreement must be filed within one (1) year of the date the alleged cause of action arose or the same will be time-barred. -6- Section 22. No official, officer, agent, employee or attorney of the City shall be charged personally or held contractually liable under any term or provision of this Agreement or because of their execution, approval, attempted execution or enforcement of this Agreement. Section 23. This Agreement and its attachments constitutes the entire agreement of the parties hereto and the subject matter hereof and may not be changed, modified, discharged or extended except by written amendment duly executed by the parties. Each party agrees that no representations or warranties shall be binding upon the other party unless expressed in writing herein or in a duly executed amendment hereof. Section 24. This Agreement is and shall be deemed and construed to be a joint and collective work product of the City and the Owner, and as such, this Agreement shall not be construed against the other party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, of the terms and provisions contained herein. Section 25. This Agreement and the obligations herein may not be assigned by the Owner without the express written consent of the City, which consent may be withheld at the sole discretion of the City. Section 26. This Agreement is subject to and contingent upon Owner acquiring fee simple title to the Subject Property on or before May 1, 2022. Owner shall provide the City written notice that it has acquired fee simple title to the Subject Property and provide written proof thereof to the City within five (5) business days of acquiring the Subject Property. In the event the Owner does not acquire title to the Subject Property on or before May 1, 2022, then this Agreement may be terminated by either upon written notice to the other party and this Agreement shall be deemed terminated and null and void without further obligations of the parties hereto. Section 27. Notwithstanding any other provision of this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement, the Owner shall comply with all applicable federal, state, city and other requirements of law, including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, Owner hereby certifies, represents and warrants to the City that all Owners' employees and/or agents who will be providing products and/or services with respect to this Agreement shall be legal residents of the United States. Owner shall also at his expense secure all permits and licenses, pay all charges and fees, except for those charges and fees waived by Section 1 of this Agreement, and give all notices necessary and incident to the due and lawful prosecution of the work and/or the products and/or services to be provided for in this Agreement. The City shall have the right to audit any records in the possession or control of the Owners to determine Owner’s compliance with the provisions of this section. In the event the City proceeds with such an audit, the Owner shall make available to the City the Owner’s relevant records at no cost to the City. Owner shall pay any and all costs of such audit. Section 28. Time is of the essence of this Agreement. -8- Attachment A Construction Plans Attachment A -9- Attachment B Building Improvement Program Eligible Costs Attachment B