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13-183 Resolution No. 13-183 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH Z INVESTMENTS, LLC FOR DEMOLITION ASSISTANCE REGARDING THE PROPERTY LOCATED AT 212 DUNDEE AVENUE 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 Agreement with Z Investments, LLC on behalf of the City of Elgin for demolition assistance regarding the property located at 212 Dundee Avenue, a copy of which is attached hereto and made a part hereof by reference. s/ David J. Kaptain David J. Kaptain, Mayor Presented: November 6, 2013 Adopted: November 6, 2013 Omnibus Vote: Yeas: 9 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk AGREEMENT THIS AGREEMENT made and entered into this 6 day of November , 2013, by and between the CITY OF ELGIN, an Illinois municipal corporation (hereinafter referred to as the "City"); and Z Investments, LLC, an Illinois limited liability company (hereinafter referred to as"Owner"). WHEREAS, the City Council of the City of Elgin has adopted Ordinance Nos. S6-99, SI-02, S2-02, 53-02 and S4-02 proposing, approving and creating 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 twenty-three(23) years thereafter; and WHEREAS, the Owner is the owner of that certain property commonly known as 212 Dundee Avenue, Elgin, Illinois, (hereinafter referred to as the "Subject Property"); and WHEREAS, the Subject Property is located within the ECA TIF District; and WHEREAS, the Subject Property is currently improved with a commercial building and associated surface parking lot and such improvements are vacant, obsolete, deteriorated and in a condition below minimum code standards; and WHEREAS, the Owner has acquired the Subject Property and desires to demolish the improvements thereon and thereafter hold the Subject Property for redevelopment; and WHEREAS, the City Council of the City of Elgin has determined that the Owner's proposal to demolish the improvements on the Subject Property and to thereafter hold the property for further redevelopment will further the goals and objectives of the Elgin Central Area Tax Increment Financing Redevelopment Plan and Project; and WHEREAS, Owner's proposal to demolish the existing improvements on the Subject Property and to thereafter redevelop the Subject Property will likely result in eventual increases in the City's tax revenues; and WHEREAS, it is unlikely that the redevelopment of the Subject Property will occur in absence of limited development assistance from the City; and WHEREAS, in order to provide for the demolition of the existing sub-standard improvements on the Subject Property and the eventual redevelopment of the Subject Property which will further the goals and the objectives of the Elgin Central Area Tax Increment Financing Redevelopment Plan and Project and which will result in likely increases in the City's tax base, the City has agreed to provide certain financial assistance for the demolition of the sub- standard improvements on the Subject Property as hereinafter described; and WHEREAS, costs for the demolition of buildings and site improvements are an eligible and reimbursable redevelopment project cost pursuant to Section 5/11-74.4-3(q) of the Tax Increment Allocation Redevelopment Act; and WHEREAS, the City of Elgin is a home rule unit authorized to exercise any power and perform any function pertaining to its government and affairs; and WHEREAS, this Agreement resulting in furthering and achieving the goals and objectives of the Elgin Central Area Tax Increment Financing Redevelopment Plan and Project and resulting in future increases in the City's tax base are matters within the government and affairs of the City; and NOW, THEREFORE, for and in consideration of the mutual undertakings as set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: - 2 - I. Recitals. The foregoing recitals are incorporated into this Agreement in their entirety. 2. Demolition of Improvements on Subject Property. Owner agrees to and shall provide for the demolition of the improvements on the Subject Property including the demolition and removal of all buildings, parking lot improvements and all other structures and appurtenances thereto on or before March 31, 2014. The demolition of the improvements on the Subject Property shall also include the Owner providing for the soil stabilization of the Subject Property with grass seed following the demolition and removal of all improvements as required by applicable city ordinances. 3. Monetary Assistance from City. In consideration of the Owner providing for the demolition of all of the improvements on the Subject Property as set forth in this Agreement, the City agrees to pay to the Owner the cost of the demolition of such improvements in the amount not-to-exceed Twenty-Seven Thousand Nine Hundred Forty Dollars ($27,940.00). The City shall pay such monies to the Owner in two (2) installments. The first installment in the amount of Thirteen Thousand Nine Hundred Seventy Dollars ($13,970.00) shall be paid by the City to the Owner within thirty (30) days of the Owner having commenced with the demolition of the improvements on the Subject Property. The second installment in the amount of the balance of the funds to be paid by the City to the Owner pursuant to this Agreement shall be paid within thirty (30) days of the Owner having completed the demolition of the improvements on the Subject Property including the subsequent soil stabilization of the Subject Property with grass seed and having submitted to the City documentation evidencing the cost of the demolition of the improvements on the Subject Property. - 3 - 4. City Use of the Subject Property. In partial consideration of the monetary assistance from the City to the Owner as provided in this Agreement, the Owner agrees to allow the City limited and temporary use of the Subject Property for staging activities in connection with the City's annual Fox Trot events and the Fourth of July Parades. The City's use of the Subject Property for such staging activities shall be subject to the following additional terms and conditions: A. The City's use of the Subject Property shall be limited to the temporary use of the Subject Property for staging persons and equipment in connection with the City's annual Fox Trot events and the Fourth of July Parades. B. The City shall provide the Owner not less than thirty (30) days' written notice that it intends to utilize the Subject Property for staging activities in conjunction with a Fox Trot event or Fourth of July parade. Such written notice shall advise of the nature and extent of such staging activities, the date of the Fox Trot event or Fourth of July parade, and the hours on such date the Subject Property is to be utilized by the City for the staging activities. C. Following the use by the City of the Subject Property for any such staging activities,the City shall promptly repair and restore the Subject Property to the same condition as existed immediately prior to the exercise of such rights as is reasonable practicable and shall leave the Subject Property free from any debris. D. The City shall not alter the Subject Property in any way in connection with the City's temporary use of the Subject Property for staging events. E. The City for itself, its employees, agents and invitees hereby agrees to indemnify, defend and hold the Owner and Owner's managers and officials harmless from claims for personal injuries or property damage arising as a result of the City's use of the Subject Property - 4 - for temporary staging activities as described in this Section 4. The City further agrees to indemnify and hold harmless the Owner and Owner's managers and officials from any liens placed against the Subject Property arising from said use of the Subject Property by the City. F. The City's right to use the Subject Property for staging events as provided in this section shall terminate the earlier of the Owner's notice to the City of the Owner's intent to redevelop or lease the Subject Property or ten (10) years from the date of this Agreement. 5. Compliance with Laws. Notwithstanding any other provisions of this Agreement it is expressly agreed and understood by Owner and the City that in connection with the performance of this Agreement and, including without limitation, Owner's demolition activities on the Subject Property, that Owner shall comply with all applicable federal, state, city and other requirements of law. Owner 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 the work necessary to provide for the demolition activities on the Subject Property as described in this Agreement. 6. Default. The City and Owner 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 the default shall not be cured within the thirty (30) days 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. Notwithstanding the foregoing, if the nature of the default is such that it cannot reasonably be completely cured within thirty (30) days,then so long as the party in default commences such cure within said 30 days and thereafter - 5 - diligently pursues the completion of such cure in good faith, then such the party not in default shall not seek to enforce any remedies against said party in default. 7. Remedies. If either party fails or refuses to carry out any of the material covenants or obligations hereunder, the other party shall, except as otherwise provided in this section, be entitled to pursue any and all available remedies as specified herein or otherwise available at law, equity or otherwise. Notwithstanding the foregoing or anything else to the contrary in this Agreement, with the sole exceptions of an action to recover the monetary assistance the City has agreed to pay pursuant to the preceding Section 3 hereof, or an action by the Owner with respect to the City's agreement to indemnify and hold the Owner harmless from claims in connection with the City's temporary use of the Subject Property pursuant to the preceding Section 4 hereof, no action shall be commenced by the Owner against the City for monetary damages. Owner hereby further agrees to and does hereby waive any and all claims or rights 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 pursuant to law, including, but not limited to, the Local Government Prompt Payment Act (50 ILCS 50111, 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. Venue for the resolution of any disputes or the enforcement of any rights pursuant to this Agreement shall be in the Circuit Court of Kane County, Illinois. The provisions of this section shall survive any termination, completion and/or expiration of this Agreement. 8. Time. Time is of the essence of this Agreement. - 6 - 9. Notices. All notices shall be required to be in writing and shall be served on the parties at the addresses following their signatures. The mailing of a notice by registered or certified mail, return receipt requested, or personal delivery by courier service shall be sufficient service. 10. Interpretation. This Agreement shall be construed, and the rights and obligations of the City and the Owner hereunder shall be determined in accordance with the laws of the State of Illinois without reference to its conflict of laws rules. 11. Relationship of the Parties. This Agreement shall not be deemed or construed to create an employment,joint venture, partnership or other agency relationship between the parties hereto. 12. Failure to Enforce Provisions. 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. 13. Amendments. 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. 14. Entire Agreement. This Agreement contains the entire agreement and understandings of the parties hereto with respect to the subject matter as set forth herein, all prior agreements and understandings having been merged herein and extinguished hereby. 15. Joint and Collective Work Product. 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, in the terms and provisions contained herein. - 7 - 16. Assignment. 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 without the express written consent of each of the parties hereto, which consent may be withheld at the sole discretion of either of the parties hereto. 17. No Conflicting Interests. In compliance with 50 ILCS 105/3.1, Owner shall provide the City with a written statement subscribed by an owner, authorized trustee, corporate official, or managing agent, under oath, disclosing the identity of every person having an interest, real or personal, in the development group and every shareholder entitled to receive more than seven and one/half(7%z%) percent of the total distributable income of any corporation which will have an interest, real or personal, in such property upon the acquisition of any interest by the Owner in the Subject Property. 18. Indemnification. To the fullest extent permitted by law, Owner agrees to and shall indemnify, defend and hold harmless, the City, its officials, officers, employees, attorneys, agents, boards and commissions from and against any and all claims, suits, judgments, costs, attorney's fees, damages or other relief, including but not limited to workers' compensation claims, in any way resulting from or arising out of or alleged to be resulting from or arising out of negligent-actions or omissions of the Owner in connection herewith, including negligence or omissions of employees, agents, contractors or subcontractors of the Owner arising out of the demolition activities on the Subject Property. In the event of any action against the City, its officials, officers, employees, agents, attorneys, boards or 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 termination, completion and/or expiration of this Agreement. - 8 - IN WITNESS WHEREOF, the parties hereto have entered into and executed this Agreement on the date and year first written above. CITY OF ELGIN, a municipal OWNER: corporatio ` By By Ma fts ca /I(iti+1Qr� Attest, 21,4F.0 0 ity nerk City of Elgin Z Investments, LLC c/o City Manager 215 N. Spring Street 150 Dexter Court Elgin, IL 60120 Elgin, IL 60120-5555 Attention: David Ziegler With a Copy of Any Notice to: William A. Cogley Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 FALegal Dept\Agreement\Z Investments-212 Dundee demolition-10-30-13.doex - 9 -