HomeMy WebLinkAboutOrdinances - ORD-07-1395 - 10/15/2007 - AUTHORIZE EXEC REDEV AGMT HISTORIC MCHENRY LLC CUNORDINANCE NO.ORD-07-1395
AN ORDINANCE AUTHORIZING THE EXECUTION OF A REDEVELOPMENT
AGREEMENT WITH HISTORIC MCHENRY LLC, AN ILLINOIS LIMITED LIABILITY
COMPANY (COLLECTIVELY THE "DEVELOPER") AND THE CITY OF MCHENRY,
AN ILLINOIS LOCAL GOVERNMENT (THE "CITY"), FOR THE PROPERTY
LOCATED AT 1111 N GREEN STREET IN THE CITY OF MCHENRY, MCHENRY
COUNTY, ILLINOIS
WHEREAS, Historic McHenry LLC, an Illinois Limited Liability Company is the (the
"DEVLOPER") of the real estate located at 1111 N Green Street, in the City of McHenry,
McHenry County, Illinois; and
WHERAS, pursuant to the Tax Increment Allocation Redevelopment Act of the State
of Illinois, 65 ILCS 5/11-74.4-1, et seq., as from time to time amended (the "TIF ACT"), the
Mayor and City Council (collectively, the "CORPORATE AUTHORITIES") are empowered
to undertake the redevelopment of a designated area within its municipal limits in which
existing conditions permit such area to be classified as a "conversation area" as defined in
Section 11.74.4-3(b) of the TIF ACT; and,
WHEREAS, pursuant to its powers and in accordance with the requirements of the
TIF ACT, the CORPORATE AUTHORITIES designated the Redevelopment Project Area
as "redevelopment project area" (as that term is defined under the TIF ACT) and adopted
tax increment allocation financing for the purposed of implementing the Redevelopment
Plan for the Redevelopment Project Area; and,
WHEREAS, the DEVELOPER proposed to acquire and develop a mixed -use
condominium project consisting of at least twenty-four (24) condominium dwelling units and
retail/restaurant uses, to be marketed as the Historic McHenry (the "DEVELOPMENT') on
certain property within the Redevelopment Project Area; and,
WHEREAS, the construction of the DEVELOPMENT is consistent with the
Redevelopment Plan and is located within the Redevelopment Project Area; and,
WHEREAS, the Corporate Authorities of the City of McHenry have found that entry
into said Redevelopment Agreement is in the best interest of the City.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF
THE CITY OF MCHENRY, MCHENRY COUNTY, ILLINOIS AS FOLLOWS:
SECTION 1: The Redevelopment Agreement, bearing the date of October 15, 2007,
between the City of McHenry, an Illinois Local Government in the State of Illinois and
Historic McHenry LLC, DEVELOPER, be and the same is hereby approved. A complete
and accurate copy of said Redevelopment Agreement, labeled "HISTORIC MCHENRY
REDEVELOPMENT AGREEMENT", is attached to this ordinance and incorporated herein
by reference.
SECTION 2: The Mayor and City Clerk are hereby authorized to affix their
signatures as Mayor and City Clerk to said REDEVELOPMENT AGREEMENT for the uses
and purposes therein set forth.
SECTION 3: All Ordinance or parts thereof in conflict with the terms and provisions
hereof are hereby repealed to the extent of such conflict.
SECTION 4: This Ordinance shall be published in pamphlet form by and under the
authority of the corporate authorities of the City of McHenry, McHenry County, Illinois.
SECTION 5: This Ordinance shall be in full force and effect from and after its
passage, approval, and publication in pamphlet form as provided by law.
PASSED THIS 15`h DAY OF October, 2007
AYES: Santi, Schaefer, Murgatroyd, Wimmer, Peterson, Condon
NAYS: Glab
ABSTAINED: None
ABSENT: None
NOT VOTING: None
APPROVED THIS 151h DAY OF October, 2007
ATTEST:
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HISTORIC MCHENRY REDEVELOPMENT AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into this 151h day of October,2007,
between the City of McHenry, an Illinois Local Government (the "City") and Historic McHenry,
LLC, an Illinois limited liability company (collectively the "Developer").
Recitals
WHEREAS, in the Redevelopment Project Area (as defined below), and otherwise, the City
has identified a severe need for the location and development of adequate and available multi -family
housing, as well as commercial development within its downtown in order to provide a mix of
community activities including business, entertainment, recreation and civic gatherings to residents
thereby retaining current residents and attracting new residents to the City; and
WHEREAS, pursuant to the Tax Increment Allocation Redevelopment Act of the State of
Illinois, 65 ILCS 5/11-74.4-1, et seq., as from time to time amended (the "77FAct'), the Mayor and
City Council (collectively, the "Corporate Authorities") are empowered to undertake the
redevelopment of a designated area within its municipal limits in which existing conditions permit
such area to be classified as a "conservation area" as defined in Section 11.74.4-3(b) of the TIF Act;
and
WHEREAS, pursuant to its powers and in accordance with the requirements of the TIF Act,
the Corporate Authorities approved a redevelopment plan and project for the Downtown McHenry
Tax Increment Redevelopment Project Area (the "Redevelopment Project Area") as set forth in the
document entitled Downtown McHenry Tax Increment Redevelopment Project and Plan" (the
"Redevelopment Plan"), dated January 25, 2002, which sets forth a plan for the redevelopment and
revitalization of the Redevelopment Project Area; and
WHEREAS, pursuant to its powers and in accordance with the requirements of the TIF Act,
the Corporate Authorities designated the Redevelopment Project Area as "redevelopment project
area" (as that term is defined under the TIF Act) and adopted tax increment allocation financing for
the purpose of implementing the Redevelopment Plan for the Redevelopment Project Area; and
WHEREAS, the Corporate Authorities have determined that the presence of certain blighting
factors described in the TIF Plan are detrimental to the public and impair development and growth in
the Redevelopment Project Area, with the result that it is necessary to incur extraordinary costs in
order to develop the Redevelopment Project Area. The presence of blighting factors in the
Redevelopment Project Area will continue to impair growth and development but for the use of tax
increment allocation financing to undertake certain obligations as hereinafter provided to pay
Redevelopment Project Costs (as defined in Section 5) of this Agreement) which necessarily must be
incurred to implement the aforesaid program of redevelopment; and
WHEREAS, the Developer proposed to acquire and develop a residential housing project
consisting of not less than twenty-four (24) condominiums and retail uses, to be marketed as the
Historic McHenry Condominiums on certain property within the Redevelopment Project Area and
legally described on Exhibit A attached to and made a part of this Agreement (the "Subject
Property"); and
WHEREAS, the Developer's proposal calls for the Developer to do the following in
connection with the development: (i) assemble the Subject Property; (ii) undertake and pay for the
costs of all studies, surveys, plans and specifications, professional fees and permits; (iii) provide all
landscaping for the Development; (iv) construct any public works or improvements necessary for the
provision of utilities and City services to the Development; and (v) construct, market and sell no less
than twenty-four (24) condominiums and retail uses on the Subject Property; and
WHEREAS, the development of the Subject Property, as described herein, is consistent with
the Redevelopment Plan and is located within the Redevelopment Project Area; and
WHEREAS, due to the adoption of the TIF Act the City is authorized under the TIF Act to
incur Redevelopment Project Costs and to make and enter into all contracts necessary or incidental to
the implementation of its redevelopment plan and project; and
WHEREAS, in order to induce the Developer to assemble the Subject Property and
undertake the development and marketing of the Development, the Corporate Authorities have
determined that it is in the best interest of the City and the health, safety, morals and welfare of the
residents of the City for the City to reimburse the Developer for certain eligible Redevelopment
Project Costs incurred by the Developer, as described herein; and
WHEREAS, the Corporate Authorities have determined that the provision by the City to the
Developer of the benefits described in the immediately preceding recital and the development by the
Developer of the Subject Property pursuant to this Agreement are in the best interests of the City and
the health, safety, morals and welfare of its residents and taxpayers and will be in furtherance of the
Redevelopment Plan and thereby help provide for economic development and housing opportunities
for the inhabitants of the City, enhance the tax base of the City and other taxing districts and add to
the welfare and prosperity of the City and its inhabitants.
NOW, THEREFORE, the parties, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, agree as follows:
Section 1. Incorporation of Recitals.
The Parties agree that all of the recitals contained in the Preambles to this Agreement are true
and correct and are hereby incorporated into this Agreement as though they were fully set forth in this
Section 1.
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Section 2. Acquisition of Subject Property; Development Plan, Conveyance to City for
Riverwalk
(a) Within ninety (90) days of this Agreement being executed, the Developer shall acquire
fee simple title to the Subject Property.
(b) Within ninety (90) days of the date of this Agreement, the Developer shall submit to
the City for its review and approval a site plan, landscape plan, building elevations and specifications
included on Exhibits B-1 and B-2 attached to and made a part of this Agreement (collectively, the
"Site Plan") along with a public hearing application to appear before the Planning and zoning
Commission. All required submissions shall comply with all applicable federal, state, county,
municipal or administrative laws ordinances, rules, regulations, codes and orders (collectively, the
"Legal Requirements") relating in any way to the Development.
(c) Development of the Subject Property shall conform to the Site Plan and consist of a
mixed use residential condominium and commercial building and related improvements.
(d) Any and all building plans submitted as a result of the development of the Subject
Property shall be stamped by a currently registered licensed architect and/or structural engineer in the
State of Illinois. Any and all amendments and/or variations to said building plans shall be stamped by
a currently registered licensed architect and/or structural engineer in the State of Illinois.
(e) On or before issuance of any building permits on the Subject Property, the Developer
shall convey to the City free and clear of all liens and encumbrances, a parcel of real estate to be used
as a part of a Riverwalk project, located directly along Boone Creek extending east -west along the
entire width of the Subject Property along Boone Creek and as depicted and described on the Site
Plan per attached Exhibit B-1 as "dedicated Riverwalk Pathway."
(f) On or before issuance of any building and/or demolition permits on the Subject
Property, the Developer shall permit members of the City's Landmark Commission to access the
Subject Property, and the inside of the buildings and/or structures on the Subject Property, to remove
and take possession, on behalf of the City, of any materials and/or items as they may request for the
purposes of historic preservation. The Landmark Commission shall act promptly in accessing the
building and the Subject Property and shall not cause unreasonable delays for the Developer in
proceeding with the redevelopment of the Subject Property.
Section 3. Construction of Improvements.
(a) Within one hundred twenty (120) days following approval of all construction plans and
specifications required for approval pursuant to the Legal Requirements, the Developer shall
commence development of the Subject Property in accordance with the Legal Requirements and Site
Plan. Prior to the construction of any public improvements, however, the Developer shall file with
the City Clerk a clean irrevocable and unconditional letter of credit, in the sum equal to one hundred
twenty-five percent (125%) of the value of the public improvements to be constructed, as determined
3
and approved by the City Engineer. The development shall be constructed solely at the Developer's
expense subject to reimbursement for such expenses pursuant to this Agreement. All improvements
shall be constructed in a good and workmanlike manner in accordance with the standards set forth in
the Subdivision Control and Development Ordinance other Legal Requirements.
(b) The Developer shall be responsible for costs associated with digging up the existing
sanitary sewer main and removing the pipe which currently traverses the Subject Property, in
accordance with City ordinances. The developer shall also be responsible for any sanitary sewer
service connections from a sewer main to the newly constructed condominium building on the Subject
Property. Any and all costs involved with sewer main rerouting and/or new main installation shall be
borne by the City.
(c) The Developer shall, at its expense, construct all required improvements associated
with the design and reconfiguration of the westbound right-hand turn lane from Green Street to
Waukegan Road. All work shall work shall be done in cooperation and coordination with McHenry
School District #15 officials. Prior to construction, the plans and specifications for any and all
improvements described herein shall be reviewed and approved by the City Engineer.
(d) To prevent the stormwater runoff generated from the proposed development from
impacting Boone Lagoon, the Developer agrees to use best management practices, at the direction of
the City Engineer, where feasible, to minimize the development's potential impacts of stormwater
runoff. The Developer shall obtain a Watershed Development Permit prior to any construction.
(e) Construction of the development per the approved Site Plan shall commence on or
before March 2009, and the Developer covenants and agrees that completion of construction in
accordance with the Site Plan and Legal Requirements shall have occurred on or before January 1,
2010.
(f) The Developer shall perpetually reserve not less than seventy-five (75) nor more than
eighty-five (85) parking spaces within the parking structure constructed on the Subject Property for
use, at no charge, by the general public. The parking spaces so reserved and their location within the
parking structure shall be mutually agreed upon by the Developer and the City prior to the issuance of
any building permit on the Subject Property and shall include the required number of handicapped
spaces, in accordance with the current applicable Illinois Accessibility Code. Prior to the sale of any
part of the Subject Property, the Developer shall file with the McHenry County Recorder of Deeds, a
set of covenants and restrictions including the allocation and reservation of the public parking spaces
required hereunder. Prior to recording, the City shall approve of all such covenants and restrictions.
(g) Any and all boat piers constructed by Developer on Boone Lagoon shall be available
to the general public and be constructed parallel to the Subject property water front and be in the
nature of a temporary docking (not overnight) use. The piers shall be constructed to the same
specifications and design as those piers previously constructed east of the Subject Property along the
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Riverwalk Place Subdivision development. Developer shall obtain all applicable permits prior to
construction of the piers.
Section 4. Waiver and Deferral of Fees Due to City; Reimbursement for Redevelopment
Project Costs
(a) Subject to Developer's strict compliance with its obligations under this Agreement, the
City hereby agrees to waive any and all building permit and capital development fees, excluding any
and all impact fees incurred as a result of the development of the Subject Property, required for the
project up to and not exceeding $250,000 pursuant to the Legal Requirements.
(b) Subject to Developer's strict compliance with its obligations under this Agreement, the
City agrees to reimburse the Developer for a portion of the cost of the public improvements limited to
and not exceeding those shown on attached Exhibit C.
Section 5. Procedures for and Application of Reimbursement to the Developer.
(a) The Developer shall advance all funds and all costs necessary to: (i) assemble the
Subject Property and develop the Development; and, (ii) undertake other matters eligible for
reimbursement pursuant to this Agreement in connection with the foregoing.
(b) To establish a right of reimbursement for a specific Redevelopment Project Costs
under this Agreement, the Developer shall submit to the City a written statement in the form attached
to this Agreement as Exhibit D (a "Request for Reimbursement") setting forth the amount of
reimbursement requested and the specific Redevelopment Project Costs for which reimbursement is
sought. Each Request for Reimbursement shall be accompanied by such bills, contracts, invoices, lien
waivers or other evidence as the City shall reasonably require to evidence the right of the Developer
to reimbursement under this Agreement. The City shall have thirty (30) days after receipt of any
Request for Reimbursement from the Developer to approve or disapprove of such Request and, if
disapproved, to provide the Developer in writing and in detail an explanation as to why it is not
prepared to pay such reimbursement. The only reasons for disapproval of any expenditure for which
reimbursement is sought shall be that such expenditure is not an eligible Redevelopment Project Cost,
that it is not contained on Exhibit C, or that it was not incurred and completed by the Developer in
accordance with all applicable Subdivision Control and Development Ordinance requirements and the
provisions of this Agreement, including without limitation all plans and specifications for the
improvements submitted to and pre -approved by the City. The parties acknowledge that the
determination of Redevelopment Project Costs and qualification for reimbursement under this
Agreement are subject to the TIF Act, all amendments to the TIF Act both before and after the date
of this Agreement, and administrative rules and judicial interpretations rendered during the term of
this Agreement. The City has no obligation to the Developer to attempt to modify said rules or
decisions but will cooperate with the Developer in obtaining approval of Redevelopment Project
Costs.
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(c) Subject to Developer's strict compliance with its obligations under this Agreement, the
City shall pay the Developer per the amount requested on the Request for Reimbursement within
thirty (30) days of approval.
Section 6. Parking Garage Maintenance.
The parties hereto acknowledge that the City is not the title holder to any of the Subject
Property and all maintenance of the Subject Property, improvements constructed thereon, including
the public parking garage shall be the obligation of the Developer.
Section 7. Term.
Unless earlier terminated pursuant to Section 21, the term of this Agreement shall commence
on the date of execution and end December 31, 2012 (the "Termination Date").
Section & Verification of Tax Increment
The Developer shall use its best efforts to cooperate with the City in obtaining copies of all
real estate tax bills payable in 2008, and paid in each subsequent year during the term of this
Agreement, for the development.
Section 9 No Liability of City to Others for Developer's Expenses
The City shall have no obligations to pay costs of the Development or to make any payments
to any person other than the Developer, nor shall the City be obligated to pay any contractor,
subcontractor, mechanic, or material man providing services or materials to the Developer for the
development of the subject property.
Section 10. Time; Force Majeure.
Time is of the essence of this Agreement, provided, however, a party shall not be deemed in
material breach of this Agreement with respect to any obligations of this Agreement on such party's
part to be performed if such party fails to timely perform the same and such failure is due in whole or
in part to any strike, lock -out, civil disorder, riots, insurrections, war, floods, earthquakes, fires, acts
of God, epidemics, quarantine restrictions, acts caused directly or indirectly by the other party or
similar causes beyond the reasonable control of such party ("Force Majeure"). If one of the
foregoing events shall occur or either party shall claim that such an event shall have occurred, the
party to whom such claim is made shall investigate same and consult with the party making such claim
regarding the same and the party to whom such claim is made shall grant any extension for the
performance of the unsatisfied obligation equal to the period of the delay, which period shall
commence to run from the time of the commencement of the Force Majeure; provided that the failure
of performance was reasonably caused by such Force Majeure.
r"
Section 11. Assignment
This Agreement may not be assigned by the Developer without the prior written consent of
the City, which consent shall not be unreasonably withheld other than an assignment to an entity
having the same shareholders or members as Developer.
Section 12. Developer Indemnification.
The Developer shall indemnify and hold harmless the City, its agents, officers and employees
against all injuries, deaths, losses, damages, claims, suits, liabilities, judgments, costs and expenses
(including any liabilities, judgments, costs and expenses and reasonable attorney's fees) which may
arise directly or indirectly from the failure of the Developer or any contractor, subcontractor or agent
or employee thereof to timely pay any contractor, subcontractor, laborer or material man; from any
default or breach of the terms of this Agreement by the Developer; or from any negligence or reckless
or willful misconduct of the Developer or any contractor, subcontractor or agent or employee thereof.
The Developer shall, at its own cost and expense, appear, defend and pay all charges of attorneys,
costs and other expenses arising there from or incurred in connection therewith. If any judgment shall
be rendered against the City, its agents, officers, officials or employees in any such action, the
Developer shall, at its own expense, satisfy and discharge the same. This paragraph shall not apply,
and the Developer shall have no obligation whatsoever, with respect to any acts of negligence or
reckless or willful misconduct on the part of the City or any of its officers, agents, employees or
contractors.
Section 13. No Recourse.
No recourse under or upon any obligation, covenant or provision of this Agreement, or for
any claim based thereon or otherwise in respect thereof shall be had against the City, its officers,
agents and employees, in any amount or in excess of any specific sum agreed by the City to be paid to
the Developer or anyone of them, hereunder, subject to the terms and conditions herein; and no
liability, right or claim at law or in equity shall attach to or shall be incurred by the City, its officers,
agents, and employees in excess of such amounts; and all and any such rights or claims against the
City, its officers, agents and employees are hereby expressly waived and released as a condition of
and as consideration for the execution of this Agreement by the City.
Section 14. Retained Personnel.
Following execution of this Agreement, Developer shall, at all times, comply with the City's
retained personnel ordinance.
Section 15. Covenants and Maintenance.
Developer agrees to provide for implementation, enforcement, and maintenance of all
landscaping, parking garage upkeep and maintenance and any or all other common elements created
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as a result of the development of the Subject Property by creating one or more "homeowners'
association" or appropriate organizations. The provisions of each homeowners' association corporate
charter and bylaws and any covenants used in its enforcement shall be submitted to the City prior to
any occupancy permits being issued by the Subject Property. It is acknowledged and agreed that the
City shall have the right, but not the obligation, to enforce all provisions of the homeowners'
association charters, bylaws, and covenants, as they relate to aspects of the development which may
adversely impact homeowners in the development, and that all such documents shall so provide. The
covenant requiring allocation of public parking spaces referenced in Section 3 (f), above, shall not be
amended or deleted from the covenants and restrictions recorded against the Subject Property,
without the written consent of the City Council. This provision shall be deemed to survive the
expiration of this Agreement.
Section 16. Waiver.
Any party to this Agreement may elect to waive any remedy it may enjoy hereunder, provided
that no such waiver shall be deemed to exist unless the party waiving such right or remedy does so in
writing. No such waiver shall obligate such party to waive any right or remedy hereunder, or shall be
deemed to constitute a waiver of other rights and remedies provided said party pursuant to this
Agreement.
Section 17. Severability.
If any section, subsection, term or provision of this Agreement or the application thereof to
any party or circumstance shall, to any extent, be invalid or unenforceable, the remainder of said
section, subsection, term or provision of this Agreement or the application of same to parties or
circumstances other than those to which it is held invalid or unenforceable, shall not be affected
thereby. Provided, however, where the deletion of such provision or provisions would result in such
a material change so as to cause completion of the transactions contemplated herein to be
unreasonable the applicable court of law shall construe the remaining terms so as to fulfill the intent of
the parties. In the event such intent cannot be materially fulfilled, the agreement shall be deemed void
and the court shall enter an order equitable to all parties.
Section I & Notices.
All notices, demands, requests, consents, approvals or other instruments required or permitted
by this Agreement shall be in writing and shall be executed by the party or an officer, agent or
attorney of the party, and shall be deemed to have been effective as of the date of actual delivery, if
delivered personally, or as of the third (3ra) day from and including the date of posting, if mailed by
registered or certified mail, return receipt requested, with postage prepaid, addressed as follows:
To the Developer: Historic McHenry, LLC
Members:
Brian G. Cunat
E:?
John C. Cunat
Christopher G. Zock
5400 W. Elm Street
Suite 110
McHenry, 11, 60050
To the City: City Administrator
City of McHenry
333 South Green Street
McHenry, Illinois 60050-5494
Section 19. Time of the Essence.
Time is of the essence with respect to all provisions of this Agreement that specify a time for
performance; provided, however, that the foregoing shall not be construed to limit or deprive a party
of the benefits of any grace or use period allowed in this Agreement.
Section 20. Successors in Interest.
This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement
and their respective successors and assigns.
Section 21. No Joint Venture, Agency or Partnership Created, No Recourse.
Neither anything in this Agreement nor any acts of the parties to this Agreement shall be
construed by the parties or any third person to create the relationship of a partnership, agency, or
joint venture between or among such parties.
Section 22. Remedies - Liability.
(a) If, in the City's judgment, the Developer is in material default of this Agreement, the
City shall provide the Developer with a written statement indicating in adequate detail any failure on
the Developer's part to fulfill its obligations under this Agreement. Except as required to protect
against further damages, the City may not exercise any remedies against the Developer in connection
with such failure until twenty (20) days after giving such notice. If such default cannot be cured
within such twenty (20) day period, such twenty (20) day period shall be extended for such time as is
reasonably necessary for the curing of the same, so long as the Developer diligently proceeds with
such cure; if such default is cured within such extended period, the default shall not be deemed to
constitute a breach of this Agreement. A default not cured as provided above shall constitute a
breach of this Agreement. Any failure or delay by the City in asserting any of its rights or remedies as
to any default or alleged default or breach shall not operate as a waiver of any such default or breach
of any rights or remedies it may have as a result of such default or breach.
(b) If the Developer materially fails to fulfill its obligations under this Agreement after
notice is given by the City and any cure periods described in paragraph (a) above have expired, or if
the Developer is in default under any agreement for the assembly of land for the Development, or if all
or a portion of any such Agreement is terminated, the City may elect to terminate this Agreement or
exercise any right or remedy it may have at law or in equity, including the right to specifically enforce
the terms and conditions of this Agreement. If any voluntary or involuntary petition or similar
pleading under any section or sections of any bankruptcy or insolvency act shall be filed by or against
the Developer, or any voluntary or involuntary proceeding in any court or tribunal shall be instituted
to declare the Developer insolvent or unable to pay the Developer's debts, or the Developer makes as
assignment for the benefit of its creditors, or a trustee or receiver is appointed for the Developer or
for the major part of the Developer's property, the City may elect, to the extent such election is
permitted by law and is not unenforceable under applicable federal bankruptcy laws, but is not
required, with or without notice of such election and with or without entry or other action by the
City, to forthwith terminate this Agreement. To effect the City's termination of this Agreement under
this Section 19(b), the City's sole obligation shall be to record, in the office of the McHenry County
Recorder, a Certificate of Default, executed by the Mayor of the City or such other person as shall be
designated by the City Council, stating that this Agreement is terminated pursuant to the provisions of
this Section 19(b), in which event this Agreement by virtue of the recording of such certificate, shall
ipso facto automatically become null and void and of no further force and effect.
(c) If, in the Developer's judgment, the City is in material default of this Agreement, the
Developer shall provide the City with a written statement indicating in adequate detail any failure on
the City's part to fulfill its obligations under this Agreement. The Developer may not exercise any
remedies against the City in connection with such failure until thirty (30) days after giving such notice.
If such default cannot be cured within such thirty (30) day period, such thirty (30) day period shall be
extended for such time as is reasonably necessary for the curing of the same, so long as the City
diligently proceeds with such cure; if such default is cured within such extended period, the default
shall not be deemed to constitute a breach of this Agreement. A default not cured as provided above
shall constitute a breach of this Agreement. Any failure or delay by the Developer in asserting any of
its rights or remedies as to any default or any alleged default or breach shall not operate as a waiver of
any such default or breach of any rights or remedies it may have as a result of such default or breach.
(d) In addition to any other rights or remedies, a party may institute legal action against
the other party to cure, correct or remedy any default, or to obtain any other remedy consistent with
the purpose of this Agreement, either at law or in equity, including, but not limited to the equitable
remedy of an action for specific performance; provided, however, no recourse under or upon any
obligation contained herein or for any claim based thereon shall be had against the City, its officers,
agents, attorneys, representatives or employees in any amount or in excess of any specific sum agreed
to be paid by the City hereunder, and no liability, right or claim at law or in equity shall be attached to
or incurred by the City, its officers, agents, attorneys, representatives or employees in any amount in
excess of any specific sums agreed by the City to be paid hereunder and any such claim is hereby
expressly waived and released as a condition of and as consideration for the execution of this
Agreement by the City. Notwithstanding the foregoing, in the event either party shall institute legal
action against the other party because of a breach of any agreement or obligation contained in this
10
Agreement, the prevailing party shall be entitled to recover all costs and expenses, including
reasonable attorneys' fees, incurred in connection with such action.
(e) The rights and remedies of the parties are cumulative and the exercise by a party of
one or more of such rights or remedies shall not preclude the exercise by it, at the same time or
different times, of any other rights or remedies for the same default or for any other default by the
other party.
Section 23. Amendment.
This Agreement, and any exhibits attached to this Agreement, may be amended only in a
writing signed by all the parties with the adoption of any ordinance or resolution of the City
approving said amendment, as provided by law, and by execution of said amendment by the parties or
their successors in interest. Except as otherwise expressly provided herein, this Agreement
supersedes all prior agreements, negotiations and discussions relative to the subject matter hereof.
Section 24. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed
an original but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their duly authorized officers on the above date at McHenry, Illinois.
Attest:
City n
0
Attest:
City of Mc my
By:—
Mayor
Historic
an
LM
11
Exhibit A
Legal Description
That pan of Lacs 24 and 25 in the County Ckr**s Plat ofpert or the South Half of Section 26 rownship 45 Aswan, Range 8 East
ofala 7'hird A&Wdon aeco ding rothe Plat b ea a recorded Alay B, 1902 as bbcumentNo. 14084 In Book ofPfats,
Page A described is fofibm- Cormnenckw at the intersection of the confer fine of Oaeen &Wort *?M the Southwiesteefy fine,
exdendad 5oudm&&fiw,*. of said Lot 24, beft a puk7f one (1) drain► Mach of the Soufb Ovar6er caffmr ofsaid Serlro n 26,• tlww&
North 70 degrees 00 minutes 00 semnds West (basis of beanMs, assumed North) akxng said Soultmestarly fine and said
Souhaa "aloe of the Soudtwi #Wfy fine ofsaid Lot 24, Rota dsesnae of 55.92 fast to the plow of bepkmmV, filers
cmfttarfng North 70 degrees 00 mfbutsa 00 samrmt West afang said Souduvesterly Ih►e, for a dMance of I MOS feet • U)anm
NOrd► 17 degrees 13 mirxrfes 00 sewn& East for a dasta w of294.00 feet thwroa NbO 55 degrees 26 nwx es 51 secm*
West, a distance of 203.70 feet to a paint on the Northwestedy tine ofsafd Lot 24, 9wrwe North 36 degrees 09 minutes 10
secbrtds East aAm p said AbtYwesk* tins of LW 24, fora dlsfs m of4Z918 fast to the most Nof terly comerofsa d Lot 24;
thence Swffi 59 degrees ,05 m mnw 43 swm& East aft fhe Ndttreaste*tine aft Ofs 24 and Z5, fora dearp a Of294.65
fea tfiarwa $mM Z1 degrees 53 near 14 ascwx* West fare dafa w Or 119:01 fat dww& Soul► 00 d gnws 04 n*mrss
59 seacvnds eOg bra dfstarm of 153 77 kv4 tltenoe Sauthw+esterry ahng a Wort rangentiaJ curve to ihs right having a radius of
30.00 feet as said cure is convexed to the Sm dr ww far en am defense of 18.71 A w (sold curve having a dwed heattng of
South 60 degrees 04 mfrwfes 01 seconds Wit and a dwrd distance of 18.41 feet) to the place ofbeginning, Aff confafning
1.0227oaes, nwre or Am in dw City of Afdienry, Afogawy County, Anols
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HISTORIC MCHENRY
North Green Strad
McHenry, Nlnols
ESTIMATED PROJECT COSTS
DEVELOPMENT ASSUMPTIONS
Development Period 24 maths
Total New Carlo Units 28
Total New Square Feet Recall 15,000
TOTAL
REVENUE
Caxlorrtnlums (28 Units)
$
12,600,000 00
Comnwdal (15,000 sq fl)
8
Is
3,340,000.00
15,940,000 00
TOTAL REVENUE
PROJECT COSTS
TOTAL
E
LAND
Land AcgWst6on
9
800,000 00
Closing Costs
$
20,000.00
SUBTOTALLAND
$
820,00000
SITE IMPROVEMENTS
ExcavatlonfStomavater Improvemerts
$
300,000.00
Parking LoUPrlvate
S
954,00000
Pubic Parking
$
1,050.000 00
Landscaping
$
100,000.00
Pubic Pier
S
250,000.00
Exterior Light Fixtures & Fence
$
25,000 00
Contingewy
$
50,000 00
Demolition
$
150,000.00
SUBTOTAL SITE IMPROVEMENTS
$
2,879,000 00
NEW CONSTRUCTION COSTS
Condo
$
7,980,000 00
Retail
$
1,995.00000
Contingency
$
400,000 00
CM & Supervision
S
500,000 00
SUBTOTAL NEW CONSTRUCTION
S
10,875,00000
SOFT COSTS
Real Estate Taxes
$
28,000.00
City Pemdr—apked Development Fees
S
250,000.00
Survey and Engir,-dng
$
30.000 00
Architect
$
208,000 00
Legal
$
23,000.00
Legal - Lease
S
15,000 00
TI Allowance
S
280,000.00
Rent Abatement
$
160,000 00
Professional Fees (Consultants)
$
50,000.00
Saks & Marketing
S
50,000 00
Broker Fees
$
550,000 00
Closing Costs
8
125,000 00
General Conditions
$
300,000 00
Interest
$
790,000.00
Loan Costs
S
80,000 00
SUBTOTAL SOFT COSTS
$
2,939,000.00
TOTAL DEVELOPMENT COST
8
17,513,000.00
PRETAX PROFIT (LOSS)
S
(1,573,000 00)
-12 00%
SUMMARY
TOTAL REVENUE
$
15,940,00000
TOTAL DEVELOPMENT COST
$
(18,129,000 00)
REIMBURSEMENT FROM MUNICIPAL
Extraordinary
S
-
TIF Eligible
$
1,750,000 00
Supportable by Municipality
$
250,000.00
PRE TAX PROFIT
$
(189,000 00)
6 40%
EXHIBIT :t C
REVISED 8-8-07
11 /27/2007 2:45 PM
Exhibit D
Form of Request for Reimbursement
REQUEST FOR REMMURSEMENT
City Administrator
City of McHenry
333 South Green Street
McHenry, Illinois 60050-5494
Re: Redevelopment Agreement, dated , 200_ (the "Agreement"), by and between the
City of McHenry, an Mois municipal corporation and Historic McHenry, LL.C, an Illinois
limited liability company (collectively the "Developer")
Dear Sir:
You are requested to disburse funds from the Special Tax Allocation Fund pursuant to Section 4(b) or Section 4(c)
of the Redevelopment Agreement described above in the amount(s), to the person(s) and for the purpose(s) set forth in this
Request for Reimbursement. The terms used in this Request for Reimbursement shall have the meanings given to those
terms in the Redevelopment Agreement.
1. Request for Reimbursement No.:
2. Payment due to:
3. Amount to be Disbursed:
4. The amount requested to be disbursed pursuant to this Request for Reimbursement will be used to
reimburse the Developers for those Redevelopment Project Costs of the Subdivision detailed in Schedule
1 attached to this Request for Reimbursement.
5. The undersigned certifies that:
(i) the amounts included in 3 above were made or incurred in connection with the construction of
the Subdivision and were made or incurred in accordance with the construction contracts, plans
and specifications heretofore in effect;
(ii) the amounts paid or to be paid, as set forth in this Request for Reimbursement, represents apart
of the funds due and payable for Redevelopment Project Costs;
(iii) the expenditures for which amounts are requisitioned represent proper Redevelopment Project
Costs identified in the Redevelopment Project Costs Exhibit C to the Agreement, have not been
included in any previous Request for Reimbursement, have been properly recorded on the
Developers' books and are set forth on the attached Schedule 1, with paid invoices attached for
all sums for which reimbursement is requested;
(iv) the moneys requisitioned are not greater than those necessary to meet obligations due and
payable or to reimburse the Developers for its funds actually advanced for Redevelopment
Project Costs;
(v) the amount of Redevelopment Project Costs to be reimbursed in accordance with this Request
for Reimbursement, together with all amounts reimbursed to the Developers pursuant to the
Agreement (excluding there from interest on Notes) is not in excess of $
(vi) the Developers are not in default under the Redevelopment Agreement and nothing has occurred
to the knowledge of the Developers that would prevent the performance of its obligations under
the Redevelopment Agreement.
2
Date:
Attached to this Request for Reimbursement is Schedule 1, together with copies of invoices or bills of
sale and Mechanic's Lien Waivers covering all items for which reimbursement is being requested, and a
copy of the Redevelopment Project Cost Schedule on which it has been noted all Redevelopment Project
Costs heretofore reimbursed to the Developers.
Historic McHenr. LLC
By:
Member
APPROVED BY:
City of McHenry, an Illinois Municipal Corporation
Date: By:
Mayor