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08-292 Resolution No. 08-292 RESOLUTION AUTHORIZING EXECUTION OF AN INTERGOVERNMENTAL AND INTERCREDITOR AGREEMENT WITH THE COUNTY OF COOK AND SQUIRE VILLAGE PRESERVATION, II, LLC RELATING TO THE ACQUISITION AND IMPROVEMENT OF THE SQUIRE VILLAGE TOWNHOME DEVELOPMENT BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS,that Ed Schock, Mayor, and Diane Robertson, City Clerk, be and are hereby authorized and directed to execute an Intergovernmental and Intercreditor Agreement on behalf of the City of Elgin with the County of Cook and Squire Village Preservation II,LLC relating to the acquisition and improvement of the Squire Village Townhome Development, a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: December 3, 2008 Adopted: December 3, 2008 Vote: Yeas: 6 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk 12-3-08 INTERGOVERNMENTAL AND INTERCREDITOR AGREEMENT THIS INTERGOVERNMENTAL AND INTERCREDITOR AGREEMENT (this "Agreement" ) , dated as of the 3rd day of December, 2008 , by and between the COUNTY OF COOK, a body politic and corporate of the State of Illinois, whose address is 69 W. Washington Street, Suite 2900, Chicago, Illinois 60602 (the "County" ) , the CITY OF ELGIN an Illinois Municipality, located at 150 Dexter Court, Elgin, Illinois 60120 (the "City of Elgin" ) ; and SQUIRE VILLAGE PRESERVATION, II, LLC, an Illinois limited liability company , located at 325 N. Wells Street, Eighth Floor, Chicago, Illinois 60654 (the "SVP" ) ; WITNESSETH: WHEREAS, the County is a home rule unit pursuant to the 1970 Illinois Constitution, Article VII , Section 6 and has been designated a "Participating Jurisdiction" by the United States Department of Housing and Urban Development ( "HUD" ) under the provisions of the Cranston-Gonzalez National Affordable Housing Act of 1990 , as amended, The HOME Investment Partnerships Act, as amended (the "Act") , which is implemented by the HOME Investment Partnerships Program, 24 CFR Part 92 , as amended ("HOME Program") ; and the County shall receive an entitlement of funds during the period of October 1, 2008 , through September 30, 2009, pursuant to the Act; WHEREAS, the County has established the County HOME Program ( "County HOME Program" ) pursuant to the Act and the HOME Program. The County HOME Program assists in the financing and provision of affordable home ownership and rental housing which is decent, safe and sanitary, to low and very-low income persons; WHEREAS, the City of Elgin is a home rule unit pursuant to the 1970 Illinois Constitution, Article VII , Section 6 , and may exercise any power and perform any function pertaining to its government and affairs; and WHEREAS, SVP is a single purpose entity affiliated withthe Hispanic Housing Development Corporation, ( "HHDC" ) . HHDC is a Not-For-Profit Corporation, and it derives its authority to operate in Illinois pursuant to the "General Not For Profit Corporation Act of 1986" (805 ILCS 105/101 . 01 et seq. ) ;and SVP has made application to the County for HOME Program funding of three million seven hundred fifty thousand and no/100 dollars ($3 , 750, 000 . 00) to be used for the acquisition of the Squire Village townhouse development, a 181 rental townhouse complex located at 1146 Yew Court, Cook County, Elgin, Illinois, such property being legally described in Exhibit A attached hereto (the "Subject Property" ) ; WHEREAS, the total acquisition cost of Subject Property is at or about seventeen million one hundred fifty thousand and no/100 dollars ($17 , 150, 000 . 00) and Cook County funding, if approved, shall consist of a loan to SVP; WHEREAS, the City of Elgin is located in both Kane County and Cook County; and the City of Elgin is not part of the Cook County Consortium, but has chosen to participate in the Kane County Consortium; and WHEREAS, the County can assist with HOME funding of the project for the Subject Property as long as the acquisition is expressly agreed by and between the City of Elgin and the County of Cook and contingent upon the County of Cook' s use of HOME funding, the City of Elgin also makes a substantial contribution to the project . NOW, THEREFORE, the parties hereto agree as follows : 1. Incorporation. The foregoing recitals are made a part of this Agreement . 2 . Acquisition of the Subject Property by SVP. SVP shall acquire the Subject Property within thirty (30) days of the entry into this Agreement . SVP shall provide the City of Elgin written notice of its acquisition of the Subject Property within ten (10) days of SVP' s acquisition of the Subject Property. In the event SVP does not acquire the Subject Property within such time period this Agreement shall be null and void with no further obligations of the parties hereto. 3 . Energy Efficiency Cost. The City of Elgin shall contribute the total amount not to exceed of one hundred thousand and no/100 dollars ($100, 000 . 00) (the "City Contribution" ) over a thirty six month period following SVP' s acquisition of the Subject Property to reimburse SVP for the costs of energy efficiency improvements of the 22 buildings, 181 units Squire Village townhouse development, which comprises the Subject Property. The City Contribution shall be made solely and only 2 from the City of Elgin' s receipt of funding from the Kane County Home Investment Partnership Program Consortium for such costs and the City' s obligation to make the City Contribution is contingent upon the receipt of funds therefore by the City of Elgin from such Kane County Home Investment Partnership Program Consortium. The City of Elgin agrees to use reasonable efforts to actively seek such funds from the Kane County HOME Investment Partnership Program Consortium. In the event or to the extent the City of Elgin does not receive funds totaling $100, 000 from the Kane County Home Investment Partnership Program Consortium which can be applied to reimburse SVP for the energy efficiency improvements to the Subject Property, the City of Elgin' s obligation to make any contribution toward such energy efficiency improvements for the Subject Property shall be null and void. 4. Energy Efficiency Measures. SVP shall undertake measures in energy efficiency of the 181 unit Squire Village townhouse development which comprises the Subject Property to include any of the following, but not limited to: window replacement, insulation and caulking, siding/exterior insulation replacement, patio door replacement, furnace/condenser replacement, water heater replacement, replacement of refrigerators, stoves, dishwasher, clothes washers and dryers (the "Energy Efficiency Measures" ) . Upon receipt of a binding commitment from the City of Elgin establishing the amount, terms and conditions of the City Contribution (the "City Commitment" ) , SVP shall obtain the City of Elgin' s advance written approval of the proposed Energy Efficiency Measures SVP wishes to undertake at the Subject Property to be funded by the City Contribution (the "City Funded Work" ) . SVP shall perform all the work in conformance with all applicable legal requirements . SVP shall submit regular expense reports for the City Funded Work to the City of Elgin in a form as required by the City of Elgin. The City of Elgin shall reimburse SVP for its costs expended in connection with City Funded Work following SVP ' s completion thereof and the City of Elgin' s approval of the City Funded Work and the expense reports relating thereto. The City of Elgin' s agreement to provide such reimbursement is expressly subject to and contingent upon the provisions of Section 3 hereof . SVP shall have no obligation to undertake the City Funded Work unless the City Contribution to fund it is available . 5 . Time of Performance. After acquisition of the Subject Property by SVP, SVP, shall undertake the Energy Efficiency Measures to be completed no later than the later of three (3) 3 years from the date of acquisition of the Subject Property by SVP or three (3) years following SVP' s receipt of the City Commitment . SVP energy efficiency measures shall be ongoing through the life of the County loan. 6 . Efficiency Goals. SVP shall undertake measures regarding energy efficiency pursuant to Sections Four and Five and shall also include education and training of residents in energy conservation, costs effective strategies and efficient energy use . SVP shall aim to maximize the energy improvements of the 181 units of Squire Village. 7 . Affirmative Marketing. SVP shall perform marketing outreach activities, though not exclusively, to the residents and communities in the Cook County HOME Consortium for filling rental vacancies in the Squire Village townhouse development . 8 . Relocation of Current Residents. After acquisition, SVP shall allow current residents to remain in their rental units, absent lease related matters, and there shall be no displacement or relocation of families and/or individuals . The current rental subsidy profile of the Subject Property includes approximately 40% nonsubsidized tenants . Subject to HOME regulations, HUD use restrictions, HHDC charitability restrictions, and other applicable requirements of law, SVP agrees to and shall act in good faith and use its best efforts to maintain the tenant mix of the Subject Property at not less than 40% of nonsubsidized tenants . 9 . Agreement to Undertake the Project. The County agrees to provide SVP HOME funding of $3 , 750 , 000 to be utilized for the acquisition of the Subject Property. Such Cook County funding to SVP shall consist of a loan to SVP . The County' s agreement of providing HOME funding is contingent upon approval by the Cook County Board of Commissioners, underwriting guidelines, the U. S . Department of Housing and Urban Development ("HUD" ) funding, and the City of Elgin' s commitment as contained herein. In the event the County does not provide such HOME funding to SVP for the purchase of the Subject Property within thirty (30) days of the entry into this Agreement, this Agreement shall be null and void with no further obligations of the parties hereto. 10 . Substantial Contribution. The parties agree that the commitment contained herein by the City of Elgin constitute the City of Elgin' s "substantial contribution" to the Squire Village Project . 4 11. Amendment of Agreement. This Agreement shall not be altered or amended except by a written instrument executed by all the parties hereto. 12 . Partial Invalidity. The invalidity of any clause, part or provision of this Agreement shall not affect the validity of its remaining portions . 13 . Binding Successors . This Agreement shall bind, and the benefits shall inure to, the respective parties to it, their legal representatives, successors in office or interest and assigns . 14 . Captions . The captions used in this Agreement are inserted only as a matter of and for reference and in no way define, limit or describe the scope or the intent of convenience the Agreement . 15. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois . 16 . Notice of Default. Each party shall notify, in writing, all other parties of a violation of this Agreement . If such violation is not corrected under such reasonable time frame, the notifying party may declare a default under this Agreement and may proceed to exercise its rights or remedies against the violator as may be available at law or in equity. Notwithstanding the foregoing or anything else to the contrary in this Agreement, with the sole exception of the monies for the City Contribution provided for in Section 3 hereof, it is agreed that no action shall be commenced against the City of Elgin for monetary damages . Notwithstanding the foregoing or anything else to the contrary in this Agreement, with the sole exception of the monies for the HOME funding the County has agreed to provide as provided in Section 9 hereof, it is agreed that no action shall be commenced against the County for monetary damages . The provisions of this Section 16 shall survive any expiration, completion and/or termination of this Agreement and shall survive the Closing of SVP' s acquisition of the Subject Property. 17 . Notices. Any notice, demand, request or other communication that any party may desire or may be required to give to any other party under this Agreement shall be given in writing, at the addresses set forth below, by any of the 5 following means : (a) personal service; (b) overnight courier; or (c) registered or certified United States mail , postage prepaid, return receipt requested. The County: Cook County Department of Planning and Development 69 West Washington, Suite 2900 Chicago, Illinois 60602 Attn: Grants Manager The City of Elgin: City of Elgin 150 Dexter Court Elgin, IL 60160 Attn: City Manager SVP: Squire Village Preservation, II , LLC 325 N. Wells Street Eighth Floor Chicago, IL 60654 Attn: President Such addresses may be changed by notice to the other party given in the same manner as herein provided. Any notice, demand, request or other communication sent pursuant to subsection (a) shall be served and effective upon such personal service . Any notice, demand, request or other communication sent pursuant to subsection (b) shall be served and effective one (1) business day after deposit with the overnight courier. Any notice, demand, request or other communication sent pursuant to subsection (c) shall be served and effective three (3) business days after proper deposit with the United States Postal Service . 18 . Counterparts . This Agreement may be executed in counterparts, and each counterpart shall , for all purposes for which an original of this Agreement must be produced or exhibited, be the Agreement, but all such counterparts shall constitute one and the same instrument . 19 . Relationship of Parties . This Agreement is not intended and shall not be deemed or construed to evidence or create an employment, joint venture, partnership or other agency relationship between the parties hereto. 6 20 . Compliance with Laws. Notwithstanding any other provision of this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement , any work contemplated under this Agreement, and SVP' s subsequent ownership, use, maintenance, and/or rental of the Subject Property, that SVP 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, legal status of employees, building codes, property maintenance codes and the city' s rental licensing ordinance. SVP shall also at its expense secure all permits and licenses, pay all charges and fees and give all notices necessary and incident to the due and lawful prosecution of any work contemplated under this Agreement, and/or the products and/or services to be provided for in this Agreement . The City of Elgin shall have the right to audit any records in the possession of control of SVP to determine SVP' s compliance with the provisions of this Section. In the event the City of Elgin proceeds with such an audit, SVP shall make available to the City of Elgin SVP' s relevant records at no cost to the City of Elgin. 21. Legality. The parties hereto on behalf of themselves and their respective successors, assigns and grantees of the Subject Property, hereby acknowledge the propriety, necessity and legality of all of the terms and provisions of this Agreement, and do further hereby agree and do 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 . The provisions of this Section shall survive any expiration, completion and/or termination of this Agreement, and shall survive the Closing of SVP' s acquisition of the Subject Property. 22 . Binding Effect. This Agreement shall inure to the benefit of, and be binding on the parties hereto and their respective successors, assigns and the grantees of the Subject Property. The City of Elgin may record a memorandum of this agreement placing of record the terms, provisions and obligations of this Agreement . The provisions of this section shall survive the Closing of SVP' s acquisition of the Subject Property. 23 . Additional Improvements to the Subject Property by SVP. Following SVP' s acquisition of the Subject Property SVP agrees to and shall provide for the additional improvements to the Subject Property as described in this section (the "Additional 7 Improvements" ) . Such Additional Improvements shall be in addition to the Energy Efficiency Measures described in Section 4 hereof . SVP shall make Additional Improvements to the Subject Property of not less than $1, 600 , 000 . Such Additional Improvements shall consist of not less than $650, 000 of improvements to building exteriors and exterior areas including, but not limited to, siding replacement, roof and gutter work and sidewalk and curb repairs . Additionally, all windows at the Subject Property that have not already previously been replaced (approximately 50%) shall be replaced under such Additional Improvements program. In addition, all patio doors shall be replaced. Such Additional Improvements shall also consist of not less than $950 , 000 of improvements to the interior of the units on the Subject Property. Such interior work shall include, but not be limited to, painting and carpet replacement, ceramic tile replacement, new cabinets and countertops and the replacement of existing furnaces, hot water heaters and appliances with new more energy efficient units . The Additional Improvements described in this Section 24 shall be undertaken by SVP following SVP' s acquisition of the Subject Property. The exterior work components of such Additional Improvements shall be completed no later than three (3) years following SVP' s acquisition of the Subject Property. The interior work components of such Additional Improvements shall be completed no later than five (5) years following SVP' s acquisition of the Subject Property. SVP shall perform all the work associated with the Additional Improvements in conformance with all applicable legal requirements . SVP shall submit to the City written reports not less than annually reporting on the Additional Improvements to the Subject Property completed in the preceding year detailing all of the Additional Improvements completed, the costs thereof and the contract documents relating thereto. The provisions of this Section shall survive the Closing of SVP' s acquisition of the Subject Property. [SIGNATURES ARE ON THE FOLLOWING PAGE] 8 IN WITNESS WHEREOF, the parties have caused this Intercreditor and Intergovernmental Agreement to be executed and attested by their duly authorized officers on the day and year above first written. THE COUNT OF COOK ATTES J , - .OS David Orr, County Clerk Ma 'rice S. Jo• - , D ,rector Department of Plann'ng an• Develo•-: - SEAL: App oved as to form: l Cook County Staff Attorney 9 • • , CITY OF ELGIN, ILLINOIS BY: Name : Ed Schock Title : Mayor ATTEST: JAl-yp�fi Name : Diane Robert n 'URB: •-:� Title : City Clerk IC) 47A Yoh `l/u,$.;_ I TO FORM: W Na e : William A. •ley Title : CorporatiCounsel F:\Legal Dept\Agreement\Squire Village Preservation 11 LLC-clean 12-3-08.doc 10 SQUIRE VILLAGE PRESERVATION II, LLC By Squire Village Preservation, NFP, an Illinois not for profit corporation, Its Member By: am ipolito Roldan Title:President 11 EXHIBIT A LEGAL DESCRIPTION OF THE SUBJECT PROPERTY THAT PART OF SECTIONS 17 AND 18, TOWNSHIP 41 NORTH, RANGE 9, EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE EAST LINE OF SAID SECTION 18, BEING ALSO THE WEST LINE OF SAID SECTION 17, WITH THE CENTER LINE OF ELGIN ROAD (STATE ROUTE 19); THENCE NORTH 71 DEGREES, 51 MINUTES, 50 SECONDS WEST ALONG SAID CENTER LINE 785.1 FEET FOR THE PLACE OF BEGINNING; THENCE CONTINUING WESTERLY ALONG SAID CENTER LINE 584.35 FEET TO THE EAST LINE OF BURRITT TRACT; THENCE NORTH 14 DEGREES, 44 MINUTES, 03 SECONDS EAST ALONG SAID EAST LINE 1222.30 FEET TO THE SOUTH LINE OF LANDS CONVEYED TO MARY E. STEWART BY DEED DATED DECEMBER 7, 1878 AND RECORDED DECEMBER 20, 1878 AS DOCUMENT NUMBER 205328; THENCE NORTH 88 DEGREES, 13 MINUTES, 33 SECONDS EAST ALONG SAID SOUTH LINE 1423.4 FEET TO THE WESTERLY LINE EXTENDED NORTH OF LANDS CONVEYED BY ESTHER MARCH BY DEED DATED SEPTEMBER 24, 1962 AND RECORDED OCTOBER 17, 1962 AS DOCUMENT NUMBER 18620023; THENCE SOUTH 3 DEGREES, 57 MINUTES WEST ALONG SAID WESTERLY LINE EXTENDED 1413.7 FEET; THENCE NORTH 73 DEGREES, 14 MINUTES, 30 SECONDS WEST 1031.95 FEET; THENCE SOUTH 17 DEGREES, 20 MINUTES, 30 SECONDS WEST 296.79 FEET TO THE CENTER LINE OF ELGIN ROAD AND THE PLACE OF BEGINNING, BEING SITUATED IN HANOVER TOWNSHIP, COOK COUNTY, ILLINOIS, EXCEPTING THEREFROM THAT PART OF THE LAND DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE WEST LINE OF SAID SECTION 17, BEING ALSO THE EAST LINE OF SAID SECTION 18, WITH THE CENTER LINE OF ELGIN ROAD, (STATE ROUTE 19); THENCE NORTH 71 DEGREES, 51 MINUTES, 50 SECONDS WEST ALONG SAID CENTER LINE 1165.1 FEET FOR POINT"A" AND THE PLACE OF BEGINNING; THENCE SOUTH 71 DEGREES, 51 MINUTES, 50 SECONDS EAST ALONG SAID CENTER LINE 380.0 FEET; THENCE NORTH 17 DEGREES, 20 MINUTES, 30 SECONDS EAST 296.79 FEET; THENCE SOUTH 73 DEGREES, 14 MINUTES, 30 SECONDS EAST 1031.95 FEET; THENCE NORTH 3 DEGREES, 57 MINUTES EAST 980.0 FEET; THENCE NORTHWESTERLY 983.0 FEET TO A POINT 1295.0 FEET NORTHEASTERLY FROM POINT"A" (AND THE PLACE OF BEGINNING); THENCE SOUTHWESTERLY 1295.0 FEET TO THE CENTER LINE OF ELGIN ROAD (STATE ROUTE 19) AT POINT "A" AND THE PLACE OF BEGINNING. ALSO EXCEPTING THAT PART OF THE LAND DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF THE SOUTHEAST QUARTER OF SAID SECTION 18; THENCE NORTHERLY, 23.940 METERS (78.54 FEET) ON AN ASSUMED BEARING OF NORTH 0 DEGREES, 14 MINUTES, 19 SECONDS EAST ALONG THE EAST LINE OF SAID SOUTHEAST QUARTER SECTION TO THE CENTER LINE OF PAVEMENT OF ILLINOIS ROUTE 19; THENCE NORTH 73 DEGREES, 55 MINUTES, 13 SECONDS WEST, 296.842 METERS (973.89 FEET) ALONG SAID CENTER LINE; THENCE WESTERLY 58.592 METERS (192.23 FEET) ALONG A TANGENTIAL CURVE CONCAVE TO THE NORTH, RADIUS 3,492.761 METERS (11,459.19 FEET), CENTRAL ANGLE 0 DEGREES, 57 MINUTES, 40 SECONDS FOR THE POINT OF BEGINNING; THENCE CONTINUING WESTERLY ALONG SAID CURVE AND CENTER LINE 62.286 METERS (204.35 FEET) CENTRAL ANGLE 1 DEGREE, 1 MINUTE, 18 SECONDS; THENCE NORTH 13 DEGREES, 54 MINUTES, 45 SECONDS EAST 15.963 METERS (52.37 FEET)TO A POINT ON A 3,477.521 METER (11,409.19 FOOT) RADIUS CURVE THAT IS 30.480 METERS (100.0 FEET) NORTH OF, AS MEASURED RADIALLY FROM, THE SOUTH RIGHT OF WAY LINE OF ILLINOIS ROUTE 19 (CHICAGO-ELGIN ROAD)AS SHOWN ON THE PLAT OF DEDICATION RECORDED AS DOCUMENT NUMBER 11348023, THE CENTER OF CIRCLE OF SAID CURVE BEARS NORTH 17 DEGREES, 59 MINUTES, 57 SECONDS EAST FROM SAID POINT; THENCE EASTERLY ALONG SAID CURVE, CONCENTRIC WITH SAID SOUTH RIGHT OF WAY LINE, 65.563 METERS (215 .10 FEET), CENTRAL ANGLE 1 DEGREE, 4 MINUTES, 49 SECONDS; THENCE SOUTH 25 DEGREES, 35 12 MINUTES, 7 SECONDS WEST 16.196 METERS (53.14 FEET)TO THE POINT OF BEGINNING. PINs: 06-17-300-024-0000; 06-17-300-025-0000; 06-18-400-058-0000; 06-18-400-060-0000; 06-18-400- 064-0000 13 '(1ofEl. C d - ,y Memorandum ig �,. City of Elgin r �U4'4 rf u 10'�� Date: February 11, 2009 To: Diane Robertson, City Clerk From: William A. Cogley, Corporation Counsel Subject: Intergovernmental and Intercreditor Agreement between the City of Elgin, County of Cook and Squire Village Preservation, II, LLC Attached for the City Clerk's file is an original fully executed copy of the Intergovernmental and Intercreditor Agreement between the City of Elgin, County of Cook and Squire Village Preservation, II, LLC dated December 3, 2008. The agreement relates to the so-called Squire Village townhouse development at 1146 Yew Court, Elgin, Illinois. Wilill WAC mg Attachment cc: Jerry Deering (w/attachment)