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HomeMy WebLinkAbout23-114 Resolution No. 23-114 RESOLUTION AUTHORIZING EXECUTION OF AN ECONOMIC INCENTIVE AGREEMENT WITH ASSOCIATION FOR INDIVIDUAL DEVELOPMENT (695 S. STATE STREET) BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that David J. Kaptain, Mayor, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute an Economic Incentive Agreement on behalf of the City of Elgin with Association for Individual Development, for economic development assistance in connection with the development of 695 S. State Street, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: May 10, 2023 Adopted: May 10, 2023 Omnibus Vote: Yeas: 9 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk ECONOMIC INCENTIVE AGREEMENT This Economic Incentive Agreement (hereinafter referred to as the "Agreement") is made and entered into as of this 10 th day of May 2023, by and between the City of Elgin, an Illinois municipal corporation (hereinafter referred to as "the City"), and As- sociation for Individual Development, an Illinois not-for-profit (hereinafter referred to as "the Developer"). WHEREAS, the Developer proposes to construct a permanent supportive housing and an affordable housing development known as The Wildwoods (hereinafter referred to as "the Subject Project") on the property commonly known as 695 S. State Street (herein- after referred to as "the Subject Property"); and WHEREAS, the real property for the Subject Property is about 16.8 acres and im- proved with only an approximately three thousand (3,000)square-foot, single-story structure that was originally constructed as a single-family home; and WHEREAS, the real property for the Subject Property has been significantly underuti- lized since at least 1981 when the Developer acquired the property from the State of Illinois; and WHEREAS, the Subject Project includes two (2) buildings that would provide twenty- four (24) units of permanent supportive housing (hereinafter referred to as "Wildwood Com- mons") and fifty(50) units of affordable housing (hereinafter referred to as "Wildwood Trace") and a third building that would serve as an approximately 19,500-square-foot community resource center (hereinafter referred to as "Community Center"); and WHEREAS, the City approved planned development ordinance G48-22 and condi- tional use ordinance G49-22 in August 2022, which provides the zoning authority necessary to construct the Subject Project; and WHEREAS, to induce the Developer into proceeding with the Subject Project on the Subject Property, the City will waive its building and development fees associated with the construction and completion of the Subject Project on the Subject Property as provided in this Agreement; and WHEREAS, the Developer would not be inclined to proceed with the Subject Project in Elgin without certain economic development assistance from the City; and WHEREAS, section 8-11-20 of the Illinois Municipal Code (65 ILCS 5/8-11-20) au- thorizes municipalities including the City to enter into economic incentive agreements relat- ing to the development or redevelopment of lands within the corporate limits of a municipal- ity; and WHEREAS, the City is a home rule unit authorized to exercise any power and perform any function relating to its government and affairs; and WHEREAS, economic incentive agreements including the economic incentive agree- ment as provided for in this agreement pertain to the government and affairs of the City; and WHEREAS, the Subject Project is expected to create job opportunities within the City; and WHEREAS, the Subject Project will provide new, high-quality housing opportunities in close proximately to support services to persons who may otherwise have difficulty finding such housing; and WHEREAS, the Developer meets high standards of credit worthiness and financial strength; and WHEREAS, this agreement is made in the best interests of the City. NOW, THEREFORE, for and in consideration of the mutual promises and undertak- ings contained herein, and other good and valuable consideration, the receipt and suffi- ciency of which are hereby acknowledged, the parties hereto agree as follows: 1. Recitals. The foregoing recitals are incorporated into this Agreement in their en- tirety. 2. Subject Project. The Developer, at its cost, shall develop the Subject Project com- prised of Wildwood Commons, Wildwood Trace, and the Community Center. The develop- ment of the Subject Project shall conform in all respects with all applicable legal require- ments, including, but not limited to, the planned development ordinance and the conditional use ordinance for the Subject Property and other applicable city ordinances and codes, the terms of this Agreement, or as otherwise directed by the City as is necessary to comply with ordinances, building codes or other requirements of law. Except as otherwise provided in this Agreement, all costs and expenses relating to the Subject Project shall be the respon- sibility of and shall be paid for by the Developer. The Developer shall commence the Subject Project within one (1) year of the entry into this Agreement and shall complete the Subject Project within five (5) years of the entry into this Agreement. The commencement of the Subject Project shall mean the construction of the foundation and approval of the associated foundation inspection for at least one(1)of the three(3) buildings associated with the Subject Project. Completion of the Subject Project shall mean the Developer completing all of the planned improvements and obtaining a certificate of occupancy for all buildings and/or ten- ant spaces from the City for the Subject Project. Developer's failure to commence and com- plete the Subject Project on the Subject Property as provided in this Agreement shall con- stitute a default under this Agreement. 2 3. "Fast-Track"Permitting Process and Waiver of Certain Development Fees for the Subject Project. A. In consideration for the Developer's undertaking and completion of the Subject Project on the Subject Property as provided in this Agreement, the City agrees to provide economic incentives to conduct a "fast-track" permitting process for the Subject Project and agrees to waive building and development permit fees, water tap and water meter fees, fire alarm and fire sprinkler permit fees, plan review fees, engineering permit fees (expressly excluding from this waiver stormwater review fees for which the City retains a third party to conduct said stormwater review), subdivision review fees, zoning fees, and occupancy permit fees, collec- tively referred to as "Development Fees," which would otherwise be due and pay- able to the City only in connection with the initial establishment of the Subject Project. B. Impact fees are not required with development of the Subject Property as the Subject Property is located within a redevelopment area designed by city council (specifically the Route 20 Tax Increment Financing District, see Section 17.01.040. A. of the Elgin Municipal Code, 1976 as amended). C. Any impact fees or other fees that may be due and owing to any other govern- mental entity other than the City shall be paid by the Developer. D. It is not the intent of this Agreement to reimburse the Developer for any of the fees described within Subsection 3.A. of this Agreement that the Developer may have already paid prior to the execution of this Agreement. 4. Drainage Easement. In the event that the City determines in its sole discretion that a Drainage Easement over a portion of the Subject Property is reasonably necessary for drainage of the City-owned properties westerly of the Subject Property (hereinafter referred to as the "Subject Drainage Easement"), then upon a written request by the City to the Developer, the Developer shall provide to the City and its successors and assigns at no cost the Subject Drainage Easement 20 feet in width along the southerly lot line of the Subject Property. The Subject Drainage Easement shall be a permanent and exclusive easement in favor of the City and its successors and assigns and shall be in a form as approved by the City's corporation counsel. The plans for any improvements for the Subject Drainage Ease- ment shall be as approved by the City's city engineer. The cost for the improvements for the Subject Drainage Easement shall be the responsibility of the City. The City shall prepare the document for the Subject Drainage Easement, and upon written presentation to the Devel- oper, the Developer shall execute and return to the City the Subject Drainage Easement within sixty (60) days. The City shall thereafter record the Subject Drainage Easement. The provisions of this section shall survive any termination, completion and/or expiration of this Agreement. 3 5. Miscellaneous. A. That this Agreement shall not be deemed or construed to create an employment, joint venture, partnership, or other agency relationship between the parties hereto. B. That all notices or other communications hereunder shall be made in writing and shall be deemed given if personally delivered or mailed by registered or certified mail, return receipt requested, to the parties at the following addresses, or at such other addressed for a party as shall be specified by like notice, and shall be deemed received on the date on which said hand delivered or the second business day following the date on which so mailed: TO THE CITY: TO THE DEVELOPER: City of Elgin Lore Baker 150 Dexter Court President & CEO Elgin, IL 60120-5555 Association for Individual Development Attention: Richard G. Kozal 309 New Indian Trail Court City Manager Aurora, IL 60510 With a copy of any such notice to: City of Elgin Applegate &Thorne-Thomsen P.C. 150 Dexter Court 425 S. Financial Place, Suite 1900 Elgin, IL 60120-5555 Chicago, Illinois 60605 Attention: William A. Cogley, Attention: Paul Davis Corporation Counsel C. That the failure by a party to enforce any provision of this Agreement against the other party shall not be deemed a waiver of the right to do so thereafter. D. That this Agreement may be modified or amended only in writing signed by both parties hereto, or their permitted successors or assigns, as the case may be. E. That this Agreement contains the entire agreement and understanding of the par- ties hereto with respect to the subject matter as set forth herein, all prior agreements and understandings having been merged herein and extinguished hereby. F. That this Agreement is and shall be deemed and construed to be a joint and col- lective work product of the City and the Developer and, as such, this Agreement shall not be construed against the other party, as the otherwise purported drafter of same, by any court of competent jurisdiction to resolve any inconsistency, ambiguity, vagueness or con- flict, if any, in the terms or provisions contained herein. 4 G. That this Agreement is subject to and shall be governed by the laws of the State of Illinois. H. That this Agreement shall be binding on the parties hereto and their respective successors and permitted assigns. This Agreement and the obligations herein may not be assigned (except as provided herein) without the express written consent of each of the parties hereto, which consent may be withheld at the sole discretion of either the parties hereto. Notwithstanding the foregoing, the Developer may with written notice to the City assign this Agreement to an affiliated entity under the direction and control of Developer. The City may record a Memorandum of Agreement placing of record the terms and provi- sions of this Agreement. I. The City and the Developer agree that, in the event of a default by the other party, the other party shall, prior to taking any such actions as may be available to it, provide written notice to the defaulting party stating that they are giving the defaulting party thirty (30) days within which to cure such default. If such default is incapable of being cured within such thirty (30) days, defaulting party shall have up to one hundred twenty (120) additional days to cure such default, so long as (i)that cure is commenced within such thirty (30) day period and (ii)the defaulting party continues to diligently pursue such cure in good faith. If the default shall not be cured within the one hundred fifty (150)-day period aforesaid, then the party giving such notice shall be permitted to avail itself of remedies to which it may be entitled under this Agreement. J. If either party fails or refuses to carry out any of the material covenants or obliga- tions hereunder, the other party shall be entitled to pursue any and all available remedies as specified herein or otherwise available at law, equity or otherwise. Without limiting the fore- going, in the event of a default by the Developer, the Developer shall pay to the City the amount of the Development Fees waived by the City for the Subject Project pursuant to paragraph 3 of this Agreement. Notwithstanding the foregoing or anything else to the con- trary in this Agreement, with the sole exception of an action to recover the cost of the De- velopment Fees for the Subject Project the City has agreed to waive pursuant to the pre- ceding paragraph 3 of this Agreement, no action shall be commenced by the Developer against the City for monetary damages. Venue for the resolution of any disputes or the en- forcement of any rights pursuant to this Agreement shall be in the Circuit Court of Kane County, Illinois. In the event any action is brought by the City against the Developer or its permitted assigns with respect to this Agreement and the City is the prevailing party in such action, the City shall also be entitled to recover from the Developer reasonable interest and reasonable attorney's fees. K. Time is of the essence of this Agreement. L. This Agreement shall be construed, and the rights and obligations of the City and the Developer hereunder shall be determined in accordance with the laws of the State of Illinois without reference to its conflict of laws rules. 5 M. No past, present or future elected or appointed official, officer, employee, attorney, agent or independent contractor of the City shall be charged personally or held contractually liable under any term or provision of this Agreement including, but not limited to, because of their negotiation, approval, execution or attempted execution of this Agreement. N. Notwithstanding any other provisions of this Agreement, it is expressly agreed and understood by the Developer and the City that in connection with the performance of this Agreement, that the Developer shall comply with all applicable federal, state, city and other requirements of law including, but not limited to, any applicable requirements regarding pre- vailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, the Developer hereby certifies, represents and warrants to the City that all of the Developer's employees and/or agents who will be employed for the Subject Project shall be legal residents of the United States. The City shall have the right to audit any records in the possession or control of the Developer to determine the Developer's compli- ance with the provisions of this section. In the event the City proceeds with such an audit, the Developer shall make available to the City the Developer's relevant records at no cost to the City. The Developer shall also pay any and all costs associated with any such audit. The provisions of this section shall survive any termination, completion and/or expiration of this Agreement. O.The Developer, on behalf of itself and its respective successors, assigns and grant- ees hereby acknowledges the propriety, necessity and legality of all of the terms and provi- sions of this Agreement and does hereby further agree and does waive any and all rights to any and all legal or other challenges or defenses to any of the terms and provisions of this Agreement and hereby agrees and covenants on behalf of itself and its successors, assigns and grantees of the Subject Property, not to sue the City or maintain any legal action or other defenses against the City with respect to any challenges of the terms and provisions of this Agreement. The provisions of this section shall survive any termination, completion and/or expiration of this Agreement. P. This Agreement may be executed in counterparts, each of which shall be an orig- inal and all of which shall constitute one and the same agreement. For the purposes of executing this Agreement, any signed copy of this Agreement transmitted by email or fac- simile shall be treated in all manners and respects as an original document. The signature of any party on a copy of this Agreement transmitted by email or facsimile shall be consid- ered for these purposes as an original signature and shall have the same legal effect as an original signature. Any such emailed or faxed copy of this Agreement shall be considered to have the same binding legal effect as an original document. At the request of either party, any e-mail or facsimile copy of this Agreement shall be re-executed by the parties in an original form. No party to this Agreement shall raise the use of email or facsimile as a defense to this Agreement and shall forever waive such defense. 6 IN WITNESS WHEREOF, the City and the Developer have executed this Agree- ment on the date and year first written above. CITY OF ELGIN, ASSOCIATION FOR INDIVIDUAL DEVELOPMENT an Illinois municipal corporation an Illinois not-for-profit corporation B D5iAvJdJ, Kapp In, M yor Its: Attest: berly Dewi ' y lerk im /Users/marcmylott/Downloads/AID-Economic Incentive Agr-693-695 State St-Clean-5-01-23.docx 7