89-1205 Van Den Bergh Foods Company DEVELOPMENT AGREEMENT
This agreement made the s-N_ day of ,DEctLItt ;, 1989, between the City of
Elgin, a municipal corporation (hereinafter referred to as "Elgin") and VAN DEN BERGH
FOODS COMPANY, a Division of CONOPCO, INC., a Maine corporation, formerly
Shedd's Food Products, ("Shedd's")
WHEREAS, Elgin owns certain real property commonly known as 119 N. State
Street, Elgin, Illinois, (the "Premises"); and
WHEREAS, Elgin and Shedd's desire to enter into a joint development
agreement relating to the future use of the Premises, including the removal of existing
structures located thereon, the removal and disposal of any pollutants or wastes located
thereon; and
WHEREAS, Shedd's desires to acquire the southerly portion of the Premises
described on Exhibit 2 hereto to expand its existing facility at 51 N. State Street, Elgin,
Illinois (the "Shedd's Existing Facility") to consolidate its operations and to alleviate
traffic conflicts on public right of ways; and
WHEREAS, Elgin and Shedd's have reached an agreement regarding a division
of the Premises, and a sharing of the costs of acquisition, site clearance, demolition and
necessary clean up.
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
conditions contained herein, the parties agree as follows:
I. The parties acknowledge the existence of pollutants or contaminants on
the Premises. Elgin has received from Thermal Analytical, Inc. ("TMA") an
environmental assessment dated June, 1989, as amended July 31, 1989 (the "Audit") of
the Premises for the benefit of both Elgin and Shedd's describing existing environmental
conditions on the Premises and estimating the costs to clean up the Premises and to
remove all contaminants and pollutants from the Premises as required by law (the "Clean
1
Up Costs"). Clean Up Costs shall not include normal site clearance and preparation
expenses such as demolition, fill and grading.
2. Following submission of an invoice by TMA, Shedd's shall reimburse Elgin
in the amount of $12,960.00 representing 54% of the cost of the Audit.
3. Shedd's shall purchase from Elgin, and Elgin shall sell to Shedd's the
southerly 788 feet, more or less, of the Premises (the "Shedd's Parcel") being
approximately 54% of the Premises. The purchase price shall be $102,600.00. Elgin shall
deliver to Shedd's a title commitment for an owner's title policy issued by Chicago Title
Insurance Company in the amount of the purchase price in favor of Shedd's covering title
to the real estate showing title in the intended grantor subject only to (a) covenants,
conditions and restriction of record acceptable to Shedd's; (b) public and private utility
easements, the locations of which are acceptable to Shedd's; (c) general taxes for 1989
and succeeding years; and (d) actions of Shedd's. Attached hereto as Exhibit B is a copy
of Elgin's owners policy for the Premises (##03-69-649) issued August 31, 1989 by Chicago
Title Insurance Co. Shedd's has reviewed this document and agrees that the covenants,
conditions and restrictions of record as well as the public and private utility easements
as set forth in such policy are acceptable subject to the endorsement thereto dated Oct. 15, 1989.
4. The Closing of the sale by Elgin and the acquisition by Shedd's of the
Shedd's Parcel shall be on or about December I, 1989 through a deed and money escrow
(the "Escrow") created at Chicago Title and Trust Company (the "Escrowee"), the cost of
which Escrow shall be borne equally by Elgin and Shedd's. Elgin shall deposit with the
Escrowee a fully executed Quit Claim Deed and an Exemption Certificate showing the
transfer of the Premises exempt from all state, county and local transfer taxes. Shedd's
shall deposit with the Escrowee funds in the amount of $102,600.00, subject to pro-
rations, and a Quit Claim Deed of Reconveyance, and Elgin and Shedd's shall jointly
deposit with the Escrowee an agreed proration statement. The Escrowee shall
immediately deliver the Quit Claim Deed for recording, and when Chicago Title
2
Insurance Company is prepared to issue its Owners Title Insurance Policy, as aforesaid,
the Escrowee shall pay to Elgin the sale proceeds as provided in the pro-ration statement
and shall deliver the Owners Title and the Quit Claim Deed of Reconveyance to Shedd's.
5. Elgin and Shedd's agree that the northerly 672 feet of the Premises shall
be retained by Elgin.
6. Within ninety (90) days of the Closing of Shedd's purchase of the Shedd's
Parcel, Shedd's shall enter into written contracts to (a) demolish the existing structures
on the Premises: (b) remove all foundations, tanks, equipment, material and other debris
and clean up and remove any environmental contaminants and/or pollutants on the
Premises as determined by the Audit and as may be otherwise mandated by Illinois and
federal environmental agencies; and (c) fill and bring the Premises to grade. Elgin shall
have the right to review and approve all contracts as well as the proposed contractors
prior to the letting of such contracts, which approval by Elgin shall neither be
unreasonably withheld nor unduly delayed. Such contracts shall include provisions
requiring the contractors to provide proof of insurance, in amounts and with coverages
acceptable to both Elgin and Shedd's, and naming both Elgin and Shedd's as co-insured. In
addition, such contracts shall provide that the approval of both Elgin and Shedd's shall be
necessary for any change order or payout. Elgin shall issue all necessary permits for the
above described work at the time said contracts are approved.
7. The parties agree to share the costs and expenses of the contracts
described in Paragraph 6 hereof, on a pro-rata basis with Shedd's paying 54% of such
costs and expenses and Elgin paying 46%. Following execution of the contracts for the
work described in Paragraph 6 above, Shedd's and Elgin shall open a Construction Escrow
Account with Chicago Title and Trust Company, the cost of which shall be shared equally
by the Parties. Shedd's shall deposit such Construction Agreements into the escrow and
Elgin and Shedd's shall deposit in the Escrow a sum equal to their pro-rata shares of
initial payments to be made under such contracts as set forth in this Paragraph. The
3
parties agree to make additional deposits, on the same pro-rata basis, as necessary to
fund subsequent payments as well as to fund any change order, provided such change
order has been approved by both parties. Payout from this Escrow account shall require
the joint authorization of Elgin and Shedd's.
8. Shedd's has heretofore prepared a preliminary plan for the expansion of
its facilities at 51 N. State Street, Elgin, Illinois, copies of which, dated October 10, 1989
have been submitted to Elgin for its review. Elgin has approved the concept contained in
such preliminary plans, Shedd's shall submit final plans and specifications for such
improvements before March I, 1990. Elgin shall approve such final plans and
specifications and shall issue all applicable permits, upon request, if such final plans are
in general conformance with the preliminary plans and otherwise comply with Elgin's
ordinances, no later than fourteen (14) days after submittal.
9. Within ninety (90) days after receipt of all required permits for such
construction or site preparation work is complete, whichever is later, Shedd's shall
commence work and shall thereafter diligently prosecute said work. Shedd's shall cause
the improvements to be completed within fifteen (15) months of commencing the work.
Provided, the parking lot, final paving and landscaping may be delayed until spring in the
event inclement weather prevents completion of such work.
10. In the event Shedd's fails to submit plans as required in Section 8 or fails to
commence construction of the buildings described on Exhibit A as set forth in Paragraph
9, then Elgin shall have the right, exercisable by notice within forty-five (45) days, to
repurchase the Shedd's Parcel. The purchase price shall be $115,560.00 plus Shedd's share
of the clean up and site preparation costs. (Pars. 6,7) Shedd's shall provide Elgin with a
commitment for title insurance from Chicago Title Insurance Co. in the amount of the
purchase price in favor of Elgin covering title to the real estate showing title in the
intended grantor subject only to (a) covenants, conditions and restrictions of record as
identified in Exhibit B; (b) private and public utility easements as set forth in Exhibit B;
4
(c) general taxes for 1989 and succeeding years. Taxes, utility and other like charges
shall be prorated at closing. Closing shall be in Escrow in the manner set forth in
Paragraoh 4.
II. In the event Shedd's commences construction but fails to substantially
complete the buildings described in Exhibit A within nine (9) months after commencing
the work (Par. 9), then Elgin shall have the right, exercisable by notice within forty-five
(45) days, to repurchase that part of Shedd's Parcel (I) which Shedd's has failed to
improve other than by parking lot or fencing; (2) which is contiguous with the northerly
portion of the Premises previously retained by Elgin; (3) which does not render Shedd's
remaining property nonconforming with applicable zoning and subdivision laws, and (4)
which does not prevent the reasonably anticipated or necessary uses of the retained part
thereof by Shedd's. The purchase price shall be as set forth in Paragraph 10, prorated
based upon the amount of the Shedd's Parcel reconveyed to Elgin. Title and closing shall
be as set forth in Paragraph 10. For the purpose of this Paragraph, "substantial
completion" shall mean that 50% or more of the construction work on the building has
been completed. Certification by the project architect as to percentage of completion
shall be conclusive.
12. In the event that, within ten (10) years after completion of the
improvements according to such plans, Shedd's shall desire to sell all or a portion of its
properties along State Street (Route 31) between Highland Avenue and Kimball Street,
which property contains all or part of the Shedd's Parcel and has received a bona fide
offer therefor, Shedd's shall notify Elgin of the terms and conditions thereof and Elgin
shall have thirty (30) days thereafter in which to notify Shedd's that it will agree to
purchase the same on the same terms and conditions and thirty (30) days after such
notice from Elgin in which to execute an agreement to that effect.
13. In the event Elgin unreasonably fails to approve Shedd's final plans as set
forth in Paragraph 8, Shedd's shall have the right, exercisable by notice within forty-five
5
(45) days, to reconvey the Shedd's Parcel to Elgin. Provided, Elgin refusal shall not be
unreasonable if Shedd's final plans are not substantially consistent with Exhibit A nor if
such refusal is based upon the final plans failing to meet applicable code requirements.
The purchase price title and closing shall be as set forth in Paragraph 10.
14. In the event Shedd's is unable to complete the Improvements described in
Paragraph 8 hereof due to circumstances beyond Shedd's control, such as acts of war,
riots, intervention of judicial proceedings, labor or material shortages or labor strikes,
the parties agree to extend the deadlines in Paragaphs 8, 9, 10, 11, 12 and 13 by the
amount of time equal to such delay.
15. It is anticipated that completion of construction of the Improvements on
the Shedd's Parcel will, given current technology eliminate the current practice of
backing trailer-trucks on or across State Street (Route 31) and Highland Avenue, and
thus, upon completion of these Improvements, and sufficient time to consolidate
operations out of the Syntex building, which should take no longer than nine (9) months
after completion of said construction, Shedd's shall not (a) allow its trailer-trucks to back
up, on or across State Street or Highland Avenue, and shall advise and direct its third
party truckers not to allow their trailer-trucks to back up on or across State Street or
Highland Avenue; and (b) permit stacking and parking of its trailer-trucks on those
properties now owned by Shedd's at the northwest (Gas Station Parcel) and southwest
(Syntex Parcel) corners of State Street (State Route 31) and Highland Avenue, Elgin,
Illinois.
16. This Development Agreement may not be assigned by either party
without the prior written consent of the other party, provided that this prohibition of
assignment shall not be deemed to prohibit either party (except as provided herein) from
selling all or any portion of its property which may be the subject of this Development
Agreement.
6
17. Any notice required or permitted under this Development Agreement
shall be deemed sufficiently given or served if hand delivered, sent by telefax at the
number provided herein, send by overnight courier or sent by registered or certified mail,
return receipt requested, to Shedd's at 51 N. State Street, Elgin, Illinois 60123,
Attention: General Manager, telefax number 708-742-7743, with a copy to Van den
Bergh Foods Company, 390 Park Avenue, New York, New York 10022, Attention:
General Counsel, telefax number 212-755-4751, and to Elgin at ISO Dexter Court, Elgin,
Illinois 60120, Attention: City Attorney, telefax number 312-695-9038. The date of
receipt shall be deemed to be the date of notice for all purposes. Either party shall,
from time to time, have the right to specify as the proper party and/or address for the
purpose of notice under this Development Agreement any other party or address upon
giving five (5) days written notice thereof.
18. This Agreement shall be governed by the laws of the State of Illinois. In
the event any term or provision of this Development Agreement is declared by a court of
competent jurisdiction to be prohibited by or unenforceable under applicable law, such
term or provision shall be prohibited or unenforceable only to the extent of such
prohibition or unenforceability, without invalidating the remainder of such term or
provision or the remaining terms or provisions of this Development Agreement.
19. The recitals of this Development Agreement are incorporated in and
made a part hereof.
7
IN WITNESS WHEREOF the parties have executed this Development
Agreement as of the date first above written.
CITY OF ELGIN, Illinois,
a municipal corporation
By /� _ ,<---%,",_ -'�
�, t '%
VAN DEN BERGH
FOODS COMPANY
390 Park Avenue William G.Anderson
New York,NY 10022 General Counsel
212 906 4325
November 27, 1989
Mr. R. O. Malm
Assistant to the City Manager
City of Elgin
150 Dexter Court
Elgin, Illinois 60120-5555
Dear Bob,
Enclosed are the two Development Agreements which were included
with your October 13 letter and which have now been executed by
Van den Bergh Foods and await the Mayor's signature.
Please note the addition to page 2, which was inserted after
further discussion between Mr. Marovitz and Mr. Blondin.
Sincerely,
William G. Anderson
j/att.
cc: W. Van Wart
D. Blondin, Esq. (w/att. ) r �
G. Molchan
kL ///
J. L. Dekker nl
J. Marovitz, Esq. ‘
f/k//:/
Poi
t � !
� � t
I ` 1
Formerly Lever Brothers Foods Division.Shedd's Food Products,Durkee Industrial and Foodservice Corp and Penna Products,Inc 1 /'J61'
E
• TELEPHONE 312/695-6500
Eln
� �_ l CITY OF ELGIN 150 DEXTER COURT ELGIN, ILLINOIS 60120-5555
� ` a
�p�gq/ED 19;
October 13 , 1989
Mr. Wayne Van Wart
Van den Bergh Foods Company
51 North State Street
Elgin, IL 60123
Dear Wayne:
Enclosed are two original Development Agreements between the
City and Van den Bergh Foods Company. Please have both docu-
ments executed and return them to me for the Mayor' s signature.
An original, fully executed Agreement will then be returned to
you.
We are looking forward to working with you on bringing this
important project to fruition.
Sincerely,
Robert 0. Maim
Assistant to the City Manager
ROM:amp
Enclosures
Up Costs"). Clean Up Costs shall not include normal site clearance and preparation
expenses such as demolition, fill and grading.
2. Following submission of an invoice by TMA, Shedd's shall reimburse Elgin
in the amount of $12,960.00 representing 54% of the cost of the Audit.
3. Shedd's shall purchase from Elgin, and Elgin shall sell to Shedd's the
southerly 788 feet, more or less, of the Premises (the "Shedd's Parcel") being
approximately 54% of the Premises. The purchase price shall be $102,600.00. Elgin shall
deliver to Shedd's a title commitment for an owner's title policy issued by Chicago Title
insurance Company in the amount of the purchase price in favor of Shedd's covering title
to the real estate showing title in the intended grantor subject only to (a) covenants,
conditions and restriction of record acceptable to Shedd's; (b) public and private utility
easements, the locations of which are acceptable to Shedd's; (c) general taxes for 1989
and succeeding years; and (d) actions of Shedd's. Attached hereto as Exhibit B is a copy
of Elgin's owners policy for the Premises (1/03-69-649) issued August 31, 1989 by Chicago
Title Insurance Co. Shedd's has reviewed this document and agrees that the covenants,
conditions and restrictions of record as well as the public and private utility easements
as set forth in such policy are acceptable.
4. The Closing of the sale by Elgin and the acquisition by Shedd's of the
Shedd's Parcel shall be on or about December I, 1989 through a deed and money escrow
(the "Escrow") created at Chicago Title and Trust Company (the "Escrowee"), the cost of
which Escrow shall be borne equally by Elgin and Shedd's. Elgin shall deposit with the
Escrowee a fully executed Quit Claim Deed and an Exemption Certificate showing the
transfer of the Premises exempt from all state, county and local transfer taxes. Shedd's
shall deposit with the Escrowee funds in the amount of $102,600.00, subject to pro-
rations, and a Quit Claim Deed of Reconveyance, and Elgin and Shedd's shall jointly
deposit with the Escrowee an agreed proration statement. The Escrowee shall
immediately deliver the Quit Claim Deed for recording, and when Chicago Title
2