OFFICE OF THE MAYOR
CITY OF CHICAGO
RAHM EMANUEL
MAYOR
January 23,2019
TO THE HONORABLE, THE CITY COUNCIL OF THE CITY OF CHICAGO
Ladies and Gentlemen:
At the request of the Commissioner of Planning and Development, I transmit herewith ordinances authorizing the sale of city-owned property.
Your favorable consideration of these ordinances will be appreciated.
Mayor
Very truly yours,
ORDINANCE
WHEREAS, the City of Chicago ("City") is a home rule unit of government by virtue of the provisions of the Constitution of the State of Illinois of 1970, and, as such, may exercise any power and perform any function pertaining to its government and affairs; and
WHEREAS, pursuant to an ordinance adopted by the City Council of the City (the "City Council") on February 5, 1998, and published at pages 60917 through 61070 in the Journal of the Proceedings of the City Council of such date: (i) a certain redevelopment plan and project ("Plan") for the Roosevelt/Cicero Redevelopment Project Area ("Area"), was approved pursuant to the Illinois Tax Increment Allocation Redevelopment Act, as amended (65 ILCS 5/11-74.4-1 et seq.) (the "Act"): (ii) the Area was designated as a redevelopment project area pursuant to the Act; and (iii) tax increment financing was adopted pursuant to the Act as a means of financing certain Area redevelopment project costs (as defined in the Act) incurred pursuant to the Plan; and
WHEREAS, the City is the owner of the vacant land commonly known as 825 South Kilpatrick, Chicago, Illinois, which is legally described on Exhibit A attached hereto (the "Property"); and
WHEREAS, The Will Group, Incorporated, an Illinois corporation ("WGI"), or a subsidiary or affiliate of WGI comprised of the same principal parties (the "Developer"), has proposed to purchase the Property from the City for the sum of $332,250 (the "Purchase Price"), such amount being $107,750 less than the Property's appraised fair market value of $440,000; and
WHEREAS, the Developer intends to construct a 60,000 square foot manufacturing facility (the "Project") on the Property, in accordance with the terms and conditions of a Redevelopment Agreement in substantially the form attached hereto as Exhibit B (the "Redevelopment Agreement"); and
WHEREAS, the Property is located in the Area and the Project is consistent with the Plan;
and
WHEREAS, the Property is contaminated from past industrial uses and fly dumping; and
WHEREAS, the Developer has agreed to complete all environmental remediation work necessary to obtain a final comprehensive "No Further Remediation" letter from the Illinois Environmental Protection Agency approving the use of the Property for the construction, development and operation of the Project; and
WHEREAS, the costs of remediating the Property will increase the Developer's costs of construction, and the City has agreed to reimburse certain specified costs attributable to such necessary remediation work ("Approved Environmental Costs") in an amount up to the Purchase Price; and
WHEREAS, in connection with the City's foregoing reimbursement obligation, the City shall, pursuant to written escrow agreement ("Escrow Agreement"), establish an escrow account to be held by a third party title insurance company or other institutional escrowee for purposes of funding the Approved Environmental Costs in accordance with the Redevelopment Agreement (the "Escrow Account"); and
WHEREAS, the Purchase Price proceeds or other legally available City funds shall be deposited into the Escrow Account on the closing date for the payment of Approved Environmental
Costs; and
WHEREAS, by Resolution No. 18-CDC-36 adopted on December 11, 2018, the City's Community Development Commission authorized the Department of Planning and Development ("DPD") to advertise its intent to convey the Property to the Developer and request alternative proposals for the sale and redevelopment of the Property; and
WHEREAS, public notices advertising the proposed sale of the Property and requesting alternative proposals appeared in the Chicago Sun-Times, a newspaper of general circulation, on December 14, December 21, and December 28, 2018; and
WHEREAS, no alternative proposals were received by the deadline set forth in the aforesaid public notices; and
WHEREAS, by Resolution No. 18-74-21, adopted by the Plan Commission of the City (the "Plan Commission") on November 15, 2018, the Plan Commission recommended the sale of the Property to the Developer; now therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CHICAGO:
SECTION 1. The foregoing recitals are hereby adopted as the findings of the City Council.
SECTION 2. The Developer is hereby designated as the developer for the Project pursuant to Section 5/11 -74.6-15 of the Act.
SECTION 3. The sale of the Property to the Developer for the Purchase Price is hereby approved. This approval is expressly conditioned upon the City entering into the Redevelopment Agreement with the Developer. The Commissioner of the Department (the "Commissioner") or a designee of the Commissioner is each hereby authorized, with the approval of the City's Corporation Counsel, to negotiate, execute and deliver the Redevelopment Agreement, the Escrow Agreement, and such other supporting documents as may be necessary or appropriate to carry out and comply with the provisions of the Redevelopment Agreement, with such changes, deletions and insertions as shall be approved by the persons executing the Redevelopment Agreement, the Escrow Agreement and such other supporting documents.
SECTION 4. The Commissioner or a designee of the Commissioner is each hereby authorized to establish the Escrow Account and to cause the proceeds of the Purchase Price or other legally available City funds to be deposited into such Escrow Account as described in the above recitals, the Redevelopment Agreement and the Escrow Agreement. After such deposit, such proceeds or funds shall be appropriated and disbursed from the Escrow Account from time to time to pay the Developer's Incremental Costs, subject to the terms and conditions of the Redevelopment Agreement and the Escrow Agreement.
SECTION 5. The Mayor or his proxy is authorized to execute, and the City Clerk or the Deputy City Clerk is authorized to attest, one or more quitclaim deeds conveying the Property to the Developer, or to a land trust of which the Developer is the sole beneficiary, or to an entity of which the Developer is the sole controlling party or which is comprised of the same principal parties, subject to those covenants, conditions and restrictions set forth in the Redevelopment Agreement. (
SECTION 6. If any provision of this ordinance shall be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such provision shall not affect any of the other provisions of this ordinance.
SECTION 7. All ordinances, resolutions, motions or orders in conflict with this ordinance are hereby repealed to the extent of such conflict.
SECTION 8. This ordinance shall take effect immediately upon its passage and approval.
Attachments: Exhibit A -Exhibit B -
Legal Description of Property Redevelopment Agreement
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY (Subject to Final Title Commitment and Survey)
LOTS 97 TO 118, BOTH INCLUSIVE, IN MANDELL'S SUBDIVISION OF BLOCKS 5 TO 8 IN PURLINGTON'S AND SCRANTON'S SUBDIVISION OF THE WEST 1/2 OF THE SOUTHWEST 1/4 OF SECTION 15, TOWNSHIP 39 NORTH, RANGE 13 EAST OF THE THIRD PRINCIPAL MERIDIAN, LYING NORTH OF BARRY POINT ROAD, IN COOK COUNTY, ILLINOIS; AND ALSO THE NORTH 1/2 OF THE VACATED EAST AND WEST ALLEY LYING SOUTH OF AND ADJOINING LOTS 96 TO 118, BOTH INCLUSIVE AFORESAID, IN COOK COUNTY, ILLINOIS.
LOTS 165 TO 186, BOTH INCLUSIVE, IN MANDELL'S SUBDIVISION OF BLOCKS 5 TO 8 IN PURLINGTON'S AND SCRANTON'S SUBDIVISION OF THE WEST 1/2 OF THE SOUTHWEST 1/4 OF SECTION 15, TOWNSHIP 39 NORTH, RANGE 13 EAST OF THE THIRD PRINCIPAL MERIDIAN, LYING NORTH OF BARRY POINT ROAD, IN COOK COUNTY, ILLINOIS; AND ALSO THE SOUTH 1/2 OF THE VACATED EAST AND WEST ALLEY LYING NORTH OF AND ADJOINING LOTS 165 TO 186, BOTH INCLUSIVE IN MANDELL'S SUBDIVISION AFORESAID, IN COOK COUNTY, ILLINOIS.
j
PIN: 16-15-311-023-0000 16-15-311-024-0000
Commonly known as: 825 S. Kilpatrick, Chicago, Illinois 60644
EXHIBIT B
REDEVELOPMENT AGREEMENT [Attached]
This Document Prepared by and After Recording Return To:
Marcus Martinez City of Chicago Department of Law Real Estate Division 121 North LaSalle Street Room 600
Chicago, Illinois 60602 (312) 742-8412
AGREEMENT FOR THE SALE AND REDEVELOPMENT OF LAND
(The Above Space For Recorder's Use Only)
This AGREEMENT FOR THE SALE AND REDEVELOPMENT OF LAND, as it may be
amended from time to time ("Agreement"), is made on or as of the day of , 2019
(the "Effective Date"), by and between the CITY OF CHICAGO, an Illinois municipal corporation and home rule unit of government (the "City"), acting by and through its Department of Planning and Development (together with any successor department thereto, "DPD"), having its principal offices at City Hall, 121 North LaSalle Street, Chicago, Illinois 60602, and THE WILL GROUP, INCORPORATED, an Illinois corporation, or an Affiliate (as defined below) organized under and / or recognized by the Secretary of State of Illinois and comprised entirely of the same principal members ("Developer"), the office of which is located at 5261 West Harrison Street, Chicago, Illinois 60644.
RECITALS
WHEREAS, the City is the owner of approximately 146,884 square feet of vacant land located at 825 South Kilpatrick Avenue, Chicago, Illinois 60644, as legally described on Exhibit A attached hereto (the "Property"): and
WHEREAS, Developer desires to purchase the Property from the City in order to construct an approximately 60,000 square foot manufacturing facility (the "Facility") on the Property (the "Project): and
WHEREAS, Developer has entered into a construction contract with (the
"General Contractor") to construct the Project (the "General Contract"): and
WHEREAS, pursuant to an ordinance adopted by the City Council of the City (the "City Council") on February 5, 1998, and published at pages 60917 through 61070, in the Journal of the Proceedings of the City Council (the "Journal") of such date: (i) a certain redevelopment plan
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and project (the "Redevelopment Plan") for the Roosevelt/Cicero Redevelopment Project Area, (the "Redevelopment Area"), was approved pursuant to the Illinois Tax Increment Allocation Redevelopment Act, as amended (65 ILCS 5/11-74.4-1 et seq.) (the "Act"): (ii) the Redevelopment Area was designated as a redevelopment project area pursuant to the Act; and (iii) tax increment financing was adopted pursuant to the Act as a means of financing certain Area redevelopment project costs (as defined in the Act) incurred pursuant to the Redevelopment Plan; and
WHEREAS, the Property is located in the Redevelopment Area, and the Project is consistent with the Redevelopment Plan for the Redevelopment Area; and
WHEREAS, the City has agreed to sell the Property to Developer for $332,250 in consideration of Developer's obligations to construct the Project in accordance with the terms and conditions of this Agreement and to comply with certain requirements contained herein; and
WHEREAS, the Project is expected to cost approximately $5,061, 822 to design and construct; and
WHEREAS, as security for Developer's completion of construction as provided herein, Developer has agreed to execute a reconveyance deed in the form attached hereto as Exhibit E ("Reconveyance Deed") for the Property on the Property Closing Date (as defined below); and
WHEREAS, the City Council, pursuant to an ordinance adopted on , 2019, and
published at pages through in the Journal of such date, authorized the sale of the
Property to Developer, subject to the execution,.delivery and recording of this Agreement, and in consideration of Developer's fulfillment of its obligations under this Agreement, including the obligations (i) to undertake and complete the Project and (ii) to operate the Facility on the Property, each as further described in Exhibit B attached hereto.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1. INCORPORATION OF RECITALS.
The foregoing recitals constitute an integral part of this Agreement and are incorporated herein by this reference with the same force and effect as if set forth herein as agreements of the parties.
SECTION 2. DEFINITIONS AND RULES OF CONSTRUCTION.
2.1 Defined Terms. For purposes of this Agreement, in addition to the terms defined in the foregoing Recitals, the following terms shall have the meanings set forth below:
"2FM" means the City's Department of Fleet and Facility Management.
"Act" has the meaning defined in the Recitals.
"Actual Residents of the City" means persons domiciled within the City, as set forth in|1010|
more detail in Section 24.2(c) hereof.
"Affiliate(s)" when used to indicate a relationship with a specified person or entity, means a person or entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such specified person or entity, and a person or entity shall be deemed to be controlled by another person or entity, if controlled in any manner whatsoever that results in control in fact by that other person or entity (or that other person or entity and any person or entities with whom that other person or entity is acting jointly or in concert), whether directly or indirectly and whether through share ownership, a trust, a contract or otherwise.
"Agent" means any agents, employees, contractors, subcontractors, or other persons acting under the control or at the request of Developer or Developer's contractors or Affiliates.
"Agreement" means this Agreement as may be amended in accordance with the terms
hereof.
"Approved Environmental Costs" is defined in Section 23.3(f).
"Architect" means
"Assignment" has the meaning defined in Section 16.
"Budget" means the budget for construction of the Project, which is attached hereto as Exhibit G. as such budget may be modified from time to time with the prior written approval of the City.
"Bundle" has the meaning defined in Section 30.7(a).
"Business Day" means any day other than Saturday, Sunday or a legal holiday in the
City.
"Certificate of Completion" means the certificate of completion issued pursuant to Section 14.1.
"Change Order" means any material amendment or modification to the Scope Drawings, Plans and Specifications, or Budget, as described in Section 9, Section 11.1 and Section 11.2.
"City" has the meaning defined in the Preamble to the Recitals.
"City Contract" has the meaning defined in Section 25.1(1).
"City Council" means the City Council of the City of Chicago as defined in the Recitals. "City Hiring Plan" has the meaning defined in Section 33.1.
"Claims" means liens (including, without limitation, lien removal and bonding costs), liabilities, obligations, damages, losses, demands, penalties, assessments, payments, fines,|1010|
claims, actions, suits, judgments, settlements, costs, expenses and disbursements (including, without limitation, reasonable, actually-incurred legal fees and expenses and costs of investigation) of any kind and nature whatsoever.
"Commissioner" or "Commissioner of DPD" means that individual holding the office and exercising the responsibilities of the Commissioner or Acting Commissioner of the City's Department of Planning and Development and any successor City Department, and any authorized designee.
"Compliance Period" means a period of ten (10) years following issuance of the Certificate of Completion, excluding any period of time that an Event of Default exists under this Agreement.
"Construction Program" has the meaning defined in Section 24.3(a).
"Contractors" has the meaning defined in Section 30.1.
"Contribution" has the meaning defined in Section 30.7(c).
"Corporation Counsel" means the City's Department of Law.
"County" means the county of Cook, Illinois.
"Deed" has the meaning defined in Section 6.1.
"Default Title Exceptions" has the meaning defined in Section 20.4.
"Developer" has the meaning defined in the Preamble to the Recitals hereof.
"Developer Parties" means Developer, Developer's Affiliates, and the respective officers, directors, employees, agents, successors and assigns of Developer and its Affiliates.
"Domestic partners" has the meaning defined in Section 30.7(d).
"DPD" has the meaning defined in the Preamble to the Recitals hereof.
"EDS" means the City's Economic Disclosure Statement and Affidavit, on the City's then-current form, whether submitted on paper or via the City's on-line submission process.
"Effective Date" means the date upon which this Agreement has been both (a) fully executed, and (b) delivered to Developer.
"Employer(s)" has the meaning defined in Section 24.1.
"Environmental Documents" means all reports, surveys, field data, correspondence and analytical results prepared by or for Developer (or otherwise obtained by Developer) regarding the condition of the Property or any portion thereof, including, without limitation, the SRP Documents.
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"Environmental Laws" means any and all Laws relating to the regulation and protection of human health, safety, the environment and natural resources now or hereafter in effect, as amended or supplemented from time to time, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq., the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. § 5101 et seg,, the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seg., the Clean Air Act, 42 U.S.C. § 7401 et seg., the Toxic Substances Control Act, 15 U.S.C. §2601 et seq., the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136 et seg., the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq., any and all regulations promulgated under such Laws, and all analogous state and local counterparts or equivalents of such Laws, including, without limitation, the Illinois Environmental Protection Act, 415 ILCS 5/1 et seq., and the common law, including, without limitation, trespass and nuisance.
"Escrow Agreement" means the joint order escrow agreement attached hereto as Exhibit
C.
"Escrow Deposit" has the meaning defined in Section 3.
"Equity" means funds of Developer (other than funds derived from Lender Financing) irrevocably available for the Project, and unencumbered by any other obligation.
"Event of Default" means any event or occurrence as defined in Section 20.2.
"Final NFR Letter" means a final comprehensive l/C "No Further Remediation" letter issued by the IEPA approving the use of the Property for the construction, development and operation of the Project in accordance with the site plan approved by the City and the terms and conditions of the SRP Documents, as amended or supplemented from time to time. The Final NFR Letter shall state that the Property meets TACO remediation objectives for commercial/industrial ("l/C") properties and the construction worker exposure route as set forth in 35 III. Adm. Code Part 742, as amended or supplemented from time to time, but may be reasonably conditioned upon use and maintenance of engineered barriers and other institutional or engineering controls acceptable to the IEPA.
"Final Project Cost" has the meaning defined in Section 14.1.
"Financial Statements" shall mean complete audited financial statements for the finances of the Project, which shall include a detailed accounting of all Operating Expenses as well as an accounting of any and all disbursements to entities related to Developer, prepared by a certified public accountant in accordance with generally accepted accounting principles and practices consistently applied throughout the appropriate periods.
"Closing Date" has the meaning defined in Section 5.
"General Contract" has the meaning defined in the Recitals.
"General Contractor" has the meaning defined in the Recitals.
"Governmental Approvals" has the meaning defined in Section 8.|1010|
"Hazardous Substances" means any toxic substance, hazardous substance, hazardous material, hazardous chemical or hazardous, toxic or dangerous waste defined or qualifying as such in (or for the purposes of) any Environmental Laws, or any pollutant, toxic vapor, or contaminant, and shall include, but not be limited to, petroleum (including crude oil or any fraction thereof), any radioactive material or by-product material, polychlorinated biphenyls and asbestos in any form or condition.
"Human Rights Ordinance" has the meaning set forth in Section 24.1(a).
"Identified Parties" has the meaning defined in Section 30.1.
"l/C" means commercial or industrial.
"IEPA" means the Illinois Environmental Protection Agency.
"IGO Hiring Oversight" has the meaning defined in Section 33.4.
"Indemnitee" and "Indemnitees" have the respective meanings defined in Section 22.
"Land Write-Down" has the meaning defined in Section 3.
"Laws" means all applicable federal,,state, county, municipal or other laws (including common law), statutes, codes, ordinances, rules, regulations, executive orders or other requirements, now or hereafter in effect, as amended or supplemented from time to time, and any applicable judicial or administrative interpretation thereof, including any applicable judicial or administrative orders, consent decrees or judgments.
"Lender(s)" means any provider of Lender Financing approved pursuant to Section 9 hereof, which shall be limited to funds necessary to finance the costs of the Project.
"Lender Financing" means funds borrowed by Developer from Lenders, available to pay for the costs of the Project (or any portion thereof).
"Losses" means any and all debts, liens, claims, causes of action, demands, complaints, legal or administrative proceedings, losses, damages, obligations, liabilities, judgments, amounts paid in settlement, arbitration or mediation awards, interest, fines, penalties, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, reasonable attorney's fees and expenses, consultants' fees and expenses and court costs).
"LUST(s)" means leaking underground storage tank(s).
"MBE(s)" means a business identified in the Directory of Certified Minority Business Enterprises published by the City's Department of Procurement Services, or otherwise certified by the City's Department of Procurement Services as a minority-owned business enterprise, related to the Procurement Program or the Construction Program, as applicable.
"MBE/WBE Program" has the meaning defined in Section 24.3(a).
"Municipal Code" means the Municipal Code of the City of Chicago as presently in effect|1010|
and as hereafter amended from time to time.
"Other Contract" has the meaning defined in Section 30. "Owners" has the meaning defined in Section 30.
"Party" means either the City or Developer, and "Parties" means the City and Developer, collectively.
"Performance Deposit" has the meaning defined in Section 4.
"Permitted Liens" means those liens and encumbrances against the Property set forth on Exhibit H hereto.
"Phase I ESA" is defined in Section 23.2.
"Phase II ESA" is defined in Section 23.3(a).
"Plans and Specifications" means the final construction plans and specifications prepared by the Architect, as submitted to the City as the basis for obtaining Governmental Approvals for the Project, as such plans and specifications may be amended, revised and/or supplemented from time to time with the prior written approval of the City in accordance with Section 11.2 (Change Orders) hereof.
"Political fundraising committee" has the meaning defined in Section 30.
"Procurement Program" has the meaning defined in Section 24.3(a).
"Project" has the meaning defined in the Recitals.
"Property" has the meaning defined in the Recitals.
"Property Closing Date" has the meaning defined in Section 5.2.
"Proof of Financing" means proof reasonably acceptable to the City that Developer has Equity and/or Lender Financing, in amounts sufficient to complete the Project and to otherwise satisfy its obligations under this Agreement. The Proof of Financing shall include binding commitment letters from Developer's Lenders, and evidence of Developer's ability to make an equity contribution in the amount of any gap in financing.
"Property" has the meaning defined in the Recitals.
"Purchase Price" has the meaning defined in Section 3.
"RAP Approval Letter" is defined in Section 23.3(c).
"REC(s)" means Recognized Environmental Condition(s) as defined in the Phase I Environmental Site Assessment ASTM E-1527-13.
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"Reconveyance Deed(s)" has the meaning defined in the Recitals.
"Redevelopment Area" has the meaning defined in the Recitals. "Redevelopment Plan" has the meaning defined in the Recitals. "Released Claims" has the meaning defined in Section 23.4.
"Remediation Work" means all investigation, sampling, monitoring, testing, reporting, removal (including but not limited to excavation and transportation), response, disposal, storage, remediation, treatment and other activities necessary to obtain a Final NFR Letter for the Property in accordance with the terms and conditions of the lEPA-approved RAP for the Property, the SRP Documents, all requirements of the IEPA and all applicable Laws, including, without limitation, all applicable Environmental Laws.
"Scope Drawings" means the preliminary construction documents containing a site plan and preliminary drawings and specifications for the Project, as such site plan and preliminary drawings and specifications which may be materially amended, revised and/or supplemented from time to time with the prior written approval of the City in accordance with Section 11.2 (Change Orders) hereof.
"SRP" means the lEPA's Site Remediation Program as set forth in Title XVII of the Illinois Environmental Protection Act, 415 ILCS 5/58 et seg., and the regulations promulgated thereunder.
"SRP Documents" means all documents submitted to the IEPA under the SRP, as amended or supplemented from time to time, including, without limitation, the Comprehensive Site Investigation and Remediation Objectives Report, the Remedial Action Plan, and the Remedial Action Completion Report and any and all correspondence, data and other information prepared by either party pursuant to Section 23.3.
"Sub-owners" has the meaning defined in Section 30.1.
"Survey" shall mean a Class A plat of survey in the most recently revised form of ALTA/ACSM urban survey of the Property dated within 45 days prior to the Property Closing Date, acceptable in form and content to the City and the Title Company, prepared by a surveyor registered in the State of Illinois, certified to the City and the Title Company, and indicating whether the Property is in a flood hazard area as identified by the United States Federal Emergency Management Agency (and updates thereof to reflect improvements to the Property in connection with the construction of the Project as required by the City or Lender(s) providing Lender Financing).
"TACO" means the Tiered Approach to Corrective Action Objectives codified at 35 III. Adm. Code Part 742 et seg.
"Title Company" means Chicago Title and Trust Company.
"Title Commitment" has the meaning defined in Section 7.1.
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"Title Policy" means a title insurance policy issued by the Title Company in the most recently revised ALTA or equivalent form, showing Developer as the named insured with respect to the Property, noting the recording of this Agreement and a subordination agreement with respect to any Lender Financing, for the Project (as described in Section 10.2(m) below) as encumbrances against the Property.
"UST(s)" means underground storage tank(s).
"Waste Sections" has the meaning defined in Section 31.
2.2 Rules of Construction. For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires, the following rules of construction apply in construing the provisions of this Agreement:
The terms defined in this Section 2 and elsewhere in this Agreement include the plural as well as the singular.
All accounting terms not otherwise defined herein shall have the meanings assigned to them, and all computations herein provided for shall be made, in accordance with generally accepted accounting principles.
All references herein to "generally accepted accounting principles" refer to such principles in effect on the date of the determination, certification, computation or other action to be taken hereunder using or involving such terms.
All references in this instrument to designated "Articles," "Sections" and other subdivisions are to be the designated Articles, Sections and other subdivisions of this instrument as originally executed.
The words "herein," "hereof and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any Section or other subdivision.
The Section and subsection headings herein are for convenience only and shall not affect the construction hereof.
SECTION 3. PURCHASE PRICE.
The City hereby agrees to sell, and Developer hereby agrees to purchase, upon and subject to the terms and conditions of this Agreement, the Property, for the sum of $332,250 ("Purchase Price"), which amount Developer shall deposit into a joint escrow account (the "Escrow Deposit") in accordance with Section 23.3(f). Except as specifically provided herein to the contrary, Developer shall pay all escrow fees and other title insurance fees and closing costs. Developer acknowledges and agrees that the Purchase Price is at least $107,750 less than the $440,000 fair market value of the Property ("Land Write-Down"). The purpose of the Land Write-Down is to facilitate the construction of the Project. Developer acknowledges and agrees that the City has only agreed to provide the Land Write-Down because Developer has agreed to execute this Agreement and comply with its terms and conditions.
SECTION 4. PERFORMANCE DEPOSIT.|10 10|
Prior to introduction to the City Council, Developer shall deposit with the City an amount equal to 5% of the appraised fair market value of the Property ($22,000) as security for the performance of Developer's obligations under this Agreement (the "Performance Deposit"), which amount the City will retain until the City issues a Certificate of Completion (as described in Section 14). The City will pay no interest to Developer on the Performance Deposit. Upon Developer's receipt of the Certificate of Completion, Developer shall submit a written request for a return of the Performance Deposit, and the City shall return the Performance Deposit within ninety (90) days of receiving such request. Upon a breach of this Agreement by the City, City shall refund the Performance Deposit to Developer if the Certificate of Completion is not issued through no fault of the Developer.
SECTION 5. CLOSING.
[Intentionally omitted]
Property Closing. The closing of the transfer of the Property from the City to Developer (the "Property Closing", which occurs on the "Property Closing Date") shall take place at the downtown offices of the Fidelity National Title Company, or such other reputable title company as may be selected by Developer (the "Title Company"). In no event shall the Property Closing occur: (1) until and unless the conditions precedent set forth in Section 10.2 are all satisfied, unless DPD, in its sole discretion, waives one or more of such conditions; and (2) any later than six (6) months after approval and publication of this Agreement by the City Council (the "Outside Closing Date"), unless DPD, in its sole discretion, extends the Outside Closing Date. At the Property Closing, the City shall deliver to Developer: (a) the Deed (as defined below); (b) all necessary state, county and municipal real estate transfer declarations; and (c) possession of the Property.
SECTION 6. CONVEYANCE OF TITLE.
6.1 Form of City Deed. The City shall convey the Property to Developer by quitclaim
deed ("Deed"), subject to the terms of this Agreement and, without limiting the quitclaim nature
of the Deed, the following:
the Redevelopment Plan for the Redevelopment Area;
the standard exceptions in an ALTA title insurance policy;
general real estate taxes and any special assessments or other taxes;
all easements, encroachments, covenants and restrictions of record and not shown of record;
such other title defects as may exist; and
any and all exceptions caused by the acts of Developer or its Agents.
6.2 Recording. At the Property Closing, Developer shall pay to record the Deed, this
Agreement, and any other documents incident to the conveyance of the Property to Developer.
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This Agreement shall be recorded simultaneously with any mortgage made in connection with Lender Financing. Upon recording, Developer shall immediately transmit to the City an executed original of this Agreement showing the date and recording number.
6.3 Reconveyance Deed. At the Property Closing Date, Developer shall execute and deliver a Reconveyance Deed (the "Reconveyance Deed") to the Escrowee of the joint escrow account described in Section 23.3(f) herein created pursuant to the joint order escrow agreement, substantially in the form attached hereto as Exhibit C (the "Escrow Agreement"). The Escrowee shall retain the Reconveyance Deed subject to the terms and conditions herein. Developer acknowledges and agrees that the City shall have the right to record the Reconveyance Deed and revest title to the Property and all improvements thereon in the City in accordance with Section 20 hereof.
SECTION 7. TITLE AND SURVEY.
Title Commitment and Insurance. Not less than seven (7) Business Days before the Property Closing Date, Developer shall obtain a commitment for an owner's policy of title insurance for the Property, issued by the Title Company (the "Title Commitment"). Developer shall be solely responsible for and shall pay all costs associated with updating the Title Commitment (including all search, continuation and later-date fees), and obtaining the Title Policy and any endorsements.
Correction of Title. The City shall have no obligation to cure title defects; provided, however, if there are exceptions for general real estate taxes due or unpaid prior to the Property Closing Date with respect to the Property or liens for such unpaid property taxes, the City shall ask the County to void the unpaid taxes as provided "in Section 21-100 of the Property Tax Code, 35 ILCS 200/21-100, or file an application for a Certificate of Error with the Cook County Assessor, or tax injunction suit or petition to vacate a tax sale in the Circuit Court of Cook County. If, after taking the foregoing actions and diligently pursuing the same, the Property remains subject to any tax liens, or if the Property is encumbered with any other exceptions that would adversely affect the use and insurability of the Property for the development of the Project, Developer shall have the option to terminate this Agreement. If Developer does not elect to terminate this Agreement as aforesaid, then Developer shall be deemed to have accepted title subject to all exceptions.
Survey. Developer has obtained and provided a Survey of the Property at Developer's sole cost and expense and has delivered a copy to the City no less than seven (7) Business Days before the Property Closing.
SECTION 8. BUILDING PERMITS AND OTHER GOVERNMENTAL APPROVALS.
Developer shall apply for and obtain all necessary permits, if any, and other approvals necessary for the Project ("Governmental Approvals") prior to the Property Closing Date, unless DPD, in its sole discretion, agrees to waive or modify such requirement, and shall pursue such Governmental Approvals in good faith and with all due diligence.
SECTION 9. PROJECT BUDGET AND PROOF OF FINANCING.
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Developer has furnished to DPD, and DPD has approved, the Budget showing total costs for construction for the Project in the amount of $5,061,822. Developer hereby certifies to the City that the Budget is true, correct and complete in all material respects. Not less than seven (7) Business Days prior to the Property Closing, Developer shall submit to DPD for approval the Proof of Financing. Developer shall promptly deliver to DPD certified copies of any Change Orders with respect to the Budget for approval pursuant to Section 11.2 hereof.
SECTION 10. CONDITIONS PRECEDENT TO CLOSING.
[Intentionally omitted]
Property Closing. The obligations of the City under this Agreement to convey the Property to Developer are contingent upon the delivery or satisfaction of each of the following items (unless waived by DPD in its sole discretion) at least seven (7) days prior to the Property Closing Date, unless another time period is specified below:
Budget. Developer has submitted to DPD, and DPD has approved, the Budget in accordance with the provisions of Section 9 hereof.
Financing. Developer has furnished Proof of Financing for the Project. Developer has delivered to DPD copies of any construction escrow agreements entered into by Developer with respect to any Lender Financing for the Project. Any such construction escrow agreement must provide that the City will receive copies of all construction draw request materials submitted by Developer after the date of this Agreement. Any financing liens against the Property in existence at the RDA Closing Date and the Property Closing Date have been subordinated to certain encumbrances of the City stated in this Agreement pursuant to a Subordination Agreement, in a form acceptable to the City, executed on or prior to the Property Closing Date, which is to be recorded, at the expense of Developer, in the Office of the Recorder of Deeds of Cook County.
Financial Statements. Developer has provided Financial Statements to DPD for its last two fiscal years, if available, and its most recently available unaudited interim Financial Statements.
Scope Drawings and Plans and Specifications. Developer has submitted to DPD, and DPD has approved, the Scope Drawings and Plans and Specifications for the Project in accordance with the provisions of Section 11.1 hereof.
Governmental Approvals. Developer has secured all necessary Governmental Approvals for the Project and has submitted evidence thereof to DPD.
Title. On the Property Closing Date, Developer has furnished the City with a copy of the Title. Policy for the Property, certified by the Title Company, showing Developer as the named insured. The Title Policy for the Property is dated as of the Property Closing Date and contains only those title exceptions
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listed as Permitted Liens on Exhibit H hereto and evidences the recording of this Agreement. The Title Policy also contains such endorsements as shall be required by Corporation Counsel, including, but not limited to, an owner's comprehensive endorsement and satisfactory endorsements regarding zoning (3.1 with parking), contiguity, location, access and survey.
Survey. Developer has furnished the City with a copy of the Survey.
Insurance. Developer has submitted to the City, and the City has approved, evidence of insurance reasonably acceptable to the City for the Property. The City shall be named as. an additional insured on all liability insurance policies and as a loss payee (subject to the prior rights of any first mortgagee) on all property insurance policies from the Property Closing Date through the date the City issues the Certificate of Completion Date through the date the City issues the Certificate of Completion.
i. Legal Opinion. Developer has submitted to the Corporation Counsel, and the
Corporation Counsel has approved, an opinion of counsel substantially in the
form of Exhibit I, with such changes as may be required by on acceptable to
Corporation Counsel, of due authorization, execution and enforceability
(subject to bankruptcy and creditor's rights) of this Agreement and all other
documentation signed by Developer provided for herein.
j. Due Diligence. Developer has submitted to the Corporation Counsel the following due diligence searches in its name, showing no unacceptable liens, litigation, judgments or filings, as reasonably determined by the Corporation Counsel, against either of them, the Property or any fixtures now or hereafter affixed thereto, except for the Permitted Liens:
Secretary of State Secretary of State Cook County Recorder Cook County Recorder Cook County Recorder Cook County Recorder Cook County Recorder U.S. District Court Clerk of Circuit Court, Cook County U. S. Bankruptcy Court
UCC search Federal tax search UCC search Fixtures search Federal tax search State tax search
Memoranda of judgments search Pending suits and judgments Pending suits and judgments
Bankruptcy Search
In addition, Developer has provided to the Corporation Counsel a written description of all pending or threatened litigation or administrative proceedings involving Developer or any person holding an ownership interest in Developer, specifying, in each case, the amount of each claim, an estimate of probable liability, the amount of any reserves taken in connection therewith and whether (and to what extent) such potential liability is covered by insurance.
k. Organization and Authority Documents. Developer shall have delivered to the City certified articles of organization, including all amendments thereto, of
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Developer, as furnished and certified by the Secretary of State of the State of Illinois; a Certificate of Good Standing dated no more than thirty (30) days prior to the Property Closing Date, issued by the Office of the Secretary of State of the State of Illinois State and all other states in which Developer is qualified to do business, and the operating agreement, resolutions authorizing Developer to execute and deliver this Agreement and any other documents required to complete the transactions contemplated by this Agreement and to perform its obligations under this Agreement, and such other organizational documents as the City may reasonably request.
I. Economic Disclosure Statement. Developer has provided to the Corporation Counsel an Economic Disclosure Statement (or more than one if required by the ownership structure), in the' City's then current form, dated as of the Property Closing Date.
m. Subordination Agreement. Developer has provided to the Corporation Counsel a subordination agreement in a form reasonably acceptable to the City, to be executed and recorded on or prior to the Property Closing Date, subordinating any liens against the Property related to any Lender Financing to certain encumbrances of the City set forth herein.
n. MBE/WBE and City Residency Hiring Compliance Plan. Developer and Developer's General Contractor and all major subcontractors have met with staff from DPD regarding compliance with the MBE/WBE, city residency hiring and other requirements set forth in Section 24, and DPD has approved Developer's compliance plan in accordance with Section 24.4.
o. Reconveyance Deed. On the Property Closing Date, Developer shall deliver a Reconveyance Deed for the Property to the City for possible recording in accordance with Section 20 below, if applicable.
p. Environmental. Developer has provided a Phase I ESA for the Property conducted in conformance with ASTM E- 1527-13 and performed or updated within 180 days prior to the Property Closing. A reliance letter naming the City as an authorized user must be provided by the environmental professional conducting the Phase I ESA.
q. On or prior to the Property Closing, Developer has executed and funded the Escrow Agreement attached hereto as Exhibit C.
r. Representations and Warranties. On the Property Closing Date, each of the representations and warranties of Developer in Section 25 and elsewhere in this Agreement shall be true and correct.
s. Other Obligations. On the Property Closing Date, Developer shall have performed all of the other obligations required to be performed by Developer under this Agreement as and when required under this Agreement.
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If any of the conditions in this Section 10 have not been satisfied to DPD's reasonable satisfaction within the time periods provided for herein, DPD may, at its option, upon thirty (30) days' prior written notice to Developer, terminate this Agreement at any time after the expiration of the applicable time period, in which event this Agreement shall be null and void and, except as otherwise specifically provided, neither party shall have any further right, duty or obligation hereunder; provided, however, that if within said thirty (30) day notice period Developer satisfies said condition(s), or if said conditions may not be satisfied within thirty (30) days, Developer has commenced actions to satisfy such conditions subject to DPD's reasonable satisfaction then the termination notice shall be deemed to have been withdrawn. Any forbearance by DPD in exercising its right to terminate this Agreement upon a default hereunder shall not be construed as a waiver of such right.
SECTION 11. CONSTRUCTION REQUIREMENTS.
Scope Drawings and Plans and Specifications. Developer has delivered the Scope Drawings and Plans and Specifications for the Project to DPD and DPD has approved the same. After such initial approval, subsequent proposed material changes to the Scope Drawings or Plans and Specifications for the Project shall be submitted to DPD as a Change Order pursuant to Section 11.2 hereof. The Scope Drawings and Plans and Specifications for the Project shall at all times conform to the Redevelopment Plan and all applicable Laws. Developer shall submit all necessary documents to the City's Department of Buildings, Department of Transportation and such other City departments or governmental authorities as may be necessary to acquire building permits and other required approvals for the Project. Developer shall construct the Project in accordance with the approved Scope Drawings and Plans and Specifications.
Change Orders. All Change Orders (and documentation substantiating the need and identifying the source of funding therefor) relating to a material change to the Project must be submitted by Developer to DPD for DPD's prior written approval. As used in the preceding sentence, a "material change to the Project" means (a) an increase or reduction in the gross or net square footage of the Project by more than 10%; (b) a change in the definition of the Project; (c) a delay in the completion of the Project by more than 120 days or (d) Change Orders that, in the aggregate, increase or decrease the Budget by more than 13%. Developer shall not authorize or permit the performance of any work relating to any Change Order or the furnishing of materials in connection therewith prior to the receipt by Developer of DPD's written approval (to the extent required in this Section 11). The Construction Contract, and each contract between the General Contractor and any subcontractor, shall contain a provision to this effect.
Performance and Payment Bonds. Prior to the commencement of construction of any portion of the Project involving work in the public way or work that constitutes a "public work" under applicable state law and is required to be bonded under such state law, Developer shall require that the General Contractor be bonded for its performance and payment by sureties having an AA rating or better using a bond in a form acceptable to the City. The City shall be named as obligee or co-obligee on any such bonds.
Employment Opportunity; Progress Reports. Developer covenants and agrees to abide by, and contractually obligate and cause the General Contractor and each subcontractor to abide by the terms set forth in Section 24.2 (City Resident Construction Worker Employment Requirement) and Section 24.3 (MBE/WBE Commitment) of this Agreement. Developer shall
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deliver to the City written progress reports detailing compliance with such requirements. Such reports shall be delivered to the City when the Project is 50% and 100% completed (based on the amount of expenditures incurred in relation to the Budget). If any such reports indicate a shortfall in compliance, Developer shall also deliver a plan to DPD which shall outline, to DPD's satisfaction, the manner in which Developer shall correct any shortfall.
[intentionally omitted]
Relocation of Utilities, Curb Cuts and Driveways. Developer shall be solely responsible for and shall pay all costs associated with: (a) the relocation, installation or construction of public or private utilities, curb cuts and driveways; (b) the repair or reconstruction of any curbs, vaults, sidewalks or parkways required in connection with or damaged as a result of Developer's construction of the Project; (c) the removal of existing pipes, utility equipment or building foundations; and (d) the termination of existing water or other utility services. The City shall have the right to approve any streetscaping provided by Developer as part of the Project, including, without limitation, any paving of sidewalks, landscaping and lighting.
City's Right to Inspect Property. For the period commencing on the Property Closing Date and continuing through the expiration of the Compliance Period, any authorized representative of the City shall have access to all portions of the Project and the Property at all reasonable times for the purpose of determining whether Developer is constructing the Project in accordance with the terms of this Agreement and all applicable Laws.
Barricades and Signs. Developer shall, at its sole cost and expense, erect and maintain such signs as the City may reasonably require during the Project, identifying the site as a City redevelopment project. The City reserves the right to include the name, photograph, artistic rendering of the Project and other pertinent information regarding Developer, the Property and the Project in the City's promotional literature and communications. Prior to the commencement of any construction activity requiring barricades, Developer shall install barricades of a type and appearance satisfactory to the City and constructed in compliance with all applicable Laws. DPD shall have the right to approve the maintenance, appearance, color scheme, painting, nature, type, content and design of all barricades. Developer shall erect all signs and barricades so as not to interfere with or affect any bus stop or train station in the vicinity of the Property.
Books and Records. Developer shall keep and maintain separate, complete, accurate and detailed books and records necessary to reflect and fully disclose the Final Project Cost for the Project and the disposition of all funds from whatever source allocated thereto, and to monitor the Project. All such books, records and other documents, including but not limited to Developer's loan statements, if any, General Contractor's and any subcontractor's sworn statements, general contracts, subcontracts, purchase orders, waivers of lien, paid receipts and invoices, shall be available at Developer's offices for inspection, copying, audit and examination by an authorized representative of the City, at Developer's expense. Developer shall incorporate this right to inspect, copy, audit and examine all books and records into all contracts entered into by Developer with respect to the Project.
11.10 Survival. The provisions of this Section 11 shall survive the Property Closing.
SECTION 12. LIMITED APPLICABILITY.
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Any approval given by DPD pursuant to this Agreement is for the purpose of this Agreement only and does not constitute the approval required by the City's Department of Buildings or any other City department, nor does such approval constitute an approval of the quality, structural soundness or safety of any improvements located or to be located on the Property, or the compliance of said improvements with any Laws, private covenants, restrictions of record, or any agreement affecting the Property or any part thereof.
SECTION 13. COMMENCEMENT AND COMPLETION OF PROJECT.
Developer shall commence construction of the Project no later than six (6) months after the Property Closing Date, and shall complete the Project (as evidenced by the issuance of the Certificate of Completion) no later than eighteen (18) months after Property Closing Date;, provided, however, DPD, in its sole discretion, may extend the construction commencement and completion dates by up to six (6) months each. The estimated construction schedule for the Project is attached hereto as Exhibit J. Developer shall construct the Project in accordance with this Agreement, the Redevelopment Plan, the Scope Drawings, the Plans and Specifications, the Budget, and all applicable Laws and covenants and restrictions of record.
SECTION 14. CERTIFICATE OF COMPLETION OF CONSTRUCTION.
Upon satisfaction of the requirements set forth in this Section 14 for the Project, and upon Developer's written request, which shall include a final budget detailing the total actual cost of the construction of the Project (the "Final Project Cost"), DPD shall issue to Developer a certificate of completion for the Project ("Certificate of Completion") in recordable form certifying that Developer has fulfilled its obligation to complete the Project in accordance with the terms of this Agreement.
A Certificate of Completion will not be issued until the following requirements have been satisfied:
The Project has been fully constructed in accordance with this Agreement.
[intentionally omitted]
Developer has obtained and recorded with the Office of the Recorder of Deeds of Cook County the Final NFR Letter for the Property.
The City's Monitoring and Compliance Unit has verified in writing that Developer is in full compliance with all City requirements set forth in Section 24.2 (City Resident Construction Worker Employment Requirement) and Section 24.3 (MBE/WBE Commitment) with respect to the Project.
There exists neither an Event of Default nor a condition or event which, with the giving of notice or passage of time or both, would constitute an Event of Default.
Within forty-five (45) days after receipt of a written request by Developer for a Certificate of Completion, the City shall provide Developer with either the Certificate of
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Completion or a written statement indicating in adequate detail how Developer has failed to complete the Project in conformity with this Agreement, or is otherwise in default, and what measures or acts will be necessary, in the sole opinion of the City, for Developer to take or perform in order to obtain the Certificate of Completion. If the City requires additional measures or acts to assure compliance, Developer shall resubmit a written request for the Certificate of Completion upon compliance with the City's response. The Certificate of Completion shall be in recordable form, and shall, upon recording, constitute a conclusive determination of satisfaction and termination of the covenants in this Agreement and the Deed with respect to Developer's obligations to construct the Project. The Certificate of Completion shall not, however, constitute evidence that Developer has complied with any Laws relating to the construction of the Project, and shall not serve as any "guaranty" as to the quality of the construction. Nor shall the Certificate of Completion release Developer from its obligation to comply with the other terms, covenants and conditions of this Agreement, except to the extent otherwise provided by this Agreement.
SECTION 15. RESTRICTIONS ON USE.
Developer, for itself and its successors and assigns, covenants and agrees as follows:
Project Completion. Developer shall construct and complete the Project in accordance with this Agreement, the Plans and Specifications and all Laws and covenants and restrictions of record.
Compliance with the Redevelopment Plan. Developer shall use the Property and cause the Property to be used in compliance with the Redevelopment Plan.
Use under the Agreement. Developer shall use the Property and shall cause the Property to be used for the Project as described in the recitals hereof. Any other use must be approved in advance in writing by DPD in its sole discretion.
[intentionally omitted]
Final NFR. Developer shall comply with all land use restrictions, institutional controls and other terms and conditions contained in the Final NFR Letter(s) for the Property.
Non-Discrimination. Developer shall not discriminate on the basis of race, color, sex, gender identity, age, religion, disability, national origin, ancestry, sexual orientation, marital status, parental status, military discharge status, or source of income in the sale, lease, rental, use or occupancy of the Property or the Project or any part thereof.
Developer, for itself and its successors and assigns, acknowledges and agrees that the development and use restrictions set forth in this Section 15 constitute material, bargained-for consideration for the City and are intended to further the public policies set forth in the Redevelopment Plan.
SECTION 16. PROHIBITION AGAINST SALE OR TRANSFER OF PROPERTY.
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A. In addition to the terms defined in Section 2 above, for purposes of this Section 16, the following terms shall have the meanings set forth below:
"2.5% ROI Amount" means the dollar amount which equals 1.025 multiplied by "Equity Investment."
"Additional Capital Expenditure(s)" means any costs or expenses, excluding Project Expenditures, with respect to the Project that are properly categorized as capital in nature under Generally Accepted Accounting Principles, provided such costs or expenses are approved by DPD.
[intentionally omitted]
[intentionally omitted]
"Average Annual ROI" means the sum of the ROI's for each twelve (12) month period, commencing on the date the City issues the Certificate of Completion and ending ten (10) years following such date, divided by ten (10).
"Debt Service" means annual interest and principal payments on Lender Financing.
"Depreciation" means those certain depreciation amounts for the Project as set forth in the audited annual Financial Statements.
"Distributable Cash Flow" means Net Operating Income less (i) Project Expenditures, Additional Capital Expenditures, Lender required reserves and Debt Service, plus (ii) Amortization and Depreciation.
(i) [intentionally omitted]
(j) "Equity Investment" means all Equity paid for or into the Project for (i) Project Expenditures, and (ii) Additional Capital Expenditures, exclusive of debt and reduced by any payments made to Developer or any of its Affiliates that constitute a return of such Equity.
(k) "FMV of the Property" means the fair market value of the Property, valued without improvements, as of date of Developer's sale of the Property, as determined by an appraiser selected by the City and paid for by Developer, less the Purchase Price.
(I) "Income Taxes" means those certain State and Federal income tax amounts for the Project as set forth in the audited annual Financial Statements.
(m) [intentionally omitted]
(n) "Net Operating Income" means, with respect to any applicable period, Project Revenues minus Operating Expenses of the Project.
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(o) "Net Profit" means Net Sale Proceeds minus FMV of the Property, which will be paid on a pari passu basis with a return of Equity Investment to Developer minus 2.5% ROI Amount.
(p) "Net Sale Proceeds" means the gross sales price at which Developer sells the Property to a third-party less closing costs and commissions less the outstanding principal dollar amount of Lender Financing and accrued, but unpaid, interest as of the date of such sale.
(q) "Operating Expenses" means those certain operating expenses set forth in the audited annual Financial Statements including Debt Service and any Lender required reserves, but excluding Income Taxes, payments to Affiliates (provided that such payments are not greater than the market rate for such goods or services, as determined by DPD), Depreciation and Amortization.
(r) "Project Expenditures" means actually incurred costs of acquisition of the Property and construction of the Project, as set forth in executed owner's sworn statements, but excluding payments to Affiliates, Depreciation and Amortization.
(s) "Project Revenues" means those certain revenues for the Project as set forth in the audited annual Financial Statements.
(t) "ROI" means Distributable Cash Flow divided by Equity Investment.
B. Restriction on Transfer Prior to Issuance of Certificate of Completion. Prior to the City's issuance of the Certificate of Completion, as provided herein, Developer may not, without the prior written consent of DPD, which consent shall be in DPD's sole and absolute discretion: (a) directly or indirectly sell, transfer, convey, lease or otherwise dispose of all or substantially all of its assets or all or any portion of the Property (including but not limited to any fixtures or equipment now or hereafter attached thereto) or any interest therein or Developer's controlling interests therein, (including, without limitation, a transfer by assignment of any of the beneficial interest under a land trust); (b) directly or indirectly assign this Agreement (an "Assignment") or (c) merge, consolidate or liquidate its business. Developer acknowledges and agrees that DPD may withhold its consent under (a), (b) or (c) above if, among other reasons, the proposed purchaser, transferee or assignee (or such entity's principal officers, members or directors) is in violation of any Laws, or if Developer fails to submit sufficient evidence of the financial responsibility, business background and reputation of the proposed purchaser, transferee or assignee. In the event of a proposed sale, transfer, conveyance, lease or other disposition of all or any portion of the Property prior to the issuance of the Certificate of Completion, Developer shall provide the City copies of any and all sales contracts, legal descriptions, descriptions of intended use, certifications from the proposed purchaser, transferee or assignee, as applicable, regarding this Agreement and such other information as the City may reasonably request. The proposed purchaser, transferee or assignee, must be qualified to do business with the City (including but not limited to anti-scofflaw requirement). In the event of a sale or transfer pursuant to this Section 16.B Developer shall promptly pay a dollar amount equal to the Net Sale Proceeds to the City. Notwithstanding the foregoing, a transfer prior to an issuance of a Certificate of Completion to a subsidiary or a direct Affiliate of Developer shall not be considered a restriction on transfer as set forth herein.
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C. Transfer of Property During the Compliance Period. If Developer sells the Property
during the Compliance Period (except for sales, transfers, conveyances, leases or other
dispositions to an Affiliate. Developer shall pay to the City as follows:
if the Net Sale Proceeds are greater than or equal to the dollar amount of Equity Investment plus FMV of the Property, then Developer shall pay to the City a dollar amount equal to fifty percent (50%) of the Net Profit.
if the Net Sales Proceeds are greater than One Dollar ($1.00), but less than the dollar amount of the Equity Investment plus FMV of the Property, then Developer shall pay to the City on a pari passu basis a pro rata dollar amount of the product of (A) multiplied by (B), where:
equals the Net Sale Proceeds minus the FMV of the Property minus 2.5% ROI Amount; and
equals the FMV of the Property divided by (C), where (C) equals the sum of the FMV of the Property plus the dollar amount of Equity Investment.
if the Net Sales Proceeds are negative (i.e., the Property is sold for a loss), then Developer does not owe any money to the City pursuant to this Section 16.C.
D. Transfer of Property After the Compliance Period. Upon expiration of the Compliance
Period, no restriction on Transfers and Assignments will apply.
F. Transfer of Interests in Developer. If Developer is a business entity, no principal party of Developer (e.g., a general partner, member, manager or shareholder) may sell, transfer or assign any of its interest in the entity prior to the City's issuance of the Certificate of Completion to anyone other than a subsidiary of the Developer, a direct Affiliate, or family member, without the prior written consent of DPD, which consent shall be in DPD's sole and absolute discretion. Developer must disclose the identity of all members to the City at the time such members obtain an interest in Developer.
SECTION 17. MORTGAGES AND OTHER LIENS.
Limitation upon Encumbrance of Property. Prior to the issuance of the Certificate of Completion, the Developer may not, without the prior written consent of DPD, which consent shall be in DPD's sole discretion, engage in any financing or other transaction which would create an encumbrance or lien on the Property, except for the Lender Financing, if any, approved pursuant to Section 9, which shall be limited to funds necessary to construct the Project.
Mortgagees Not Obligated to Construct. Notwithstanding any other provision of this Agreement or of the Deed, the holder of any mortgage authorized by this Agreement (or any affiliate of such holder) shall not itself be obligated to construct or complete the Project, or to guarantee such construction or completion, but shall be bound by the other covenants running with the land specified in Section 19 and, at the Property Closing, shall execute a subordination agreement in accordance with Section 10.2(m). If any such mortgagee or its affiliate succeeds to Developer's interest in the Property (or any portion thereof) prior to the issuance of the Certificate of Completion, whether by foreclosure, deed-in-lieu of foreclosure or otherwise, and
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thereafter transfers its interest in the Property (or any portion thereof) to another party, such transferee shall be obligated to complete the Project (or such portion of the Project located on the land so transferred), and shall also be bound by the other covenants running with the land specified in Section 19.
SECTION 18. [intentionally omitted]
SECTION 19. COVENANTS RUNNING WITH THE LAND.
The Parties agree, and the Deed shall so expressly provide, that the covenants, agreements, releases and other terms and provisions contained in Section 13 (Commencement and Completion of Project), Section 15 (Restrictions on Use), Section 16 (Prohibition Against Sale or Transfer of Property), Section 17 (Limitation Upon Encumbrance of Property), and Section 23.5 (Release for Environmental Conditions), touch and concern and shall be appurtenant to and shall run with the Property. Such covenants, agreements, releases and other terms and provisions shall be binding on Developer and its successors and assigns (subject to the limitation set forth in Section 17 above as to any permitted mortgagee) to the fullest extent permitted by law and equity for the benefit and in favor of the City, and shall be enforceable by the City. Such covenants, agreements, releases and other terms and provisions shall terminate as follows: Section 13 upon the issuance of the Certificate of Completion; Sections 16.B. and 17 upon the issuance of the Certificate of Completion; Section 15.1 upon issuance of the Certificate of Completion; Section 15.2 upon the expiration of the Redevelopment Plan; Sections 15.3 and 16.2 upon the expiration of the Compliance Period; Section 15.5 in accordance with the terms of the Final NFR Letter; and Sections 15.6. 22 and 23.5 with no limitation as to time.
SECTION 20. PERFORMANCE AND BREACH.
Time of the Essence. Time is of the essence in Developer's performance of its obligations under this Agreement.
Event of Default. The occurrence of any one or more of the following events or occurrences shall constitute an "Event of Default" under this Agreement:
the failure of Developer to perform, keep or observe any of the covenants, conditions, promises, agreements or obligations of Developer under this Agreement or any related agreement;
the failure of Developer to perform, keep or observe any of the covenants, conditions, promises, agreements or obligations of Developer under any other agreement with any person or entity if such failure may have a material adverse effect on Developer's business, property, assets, operations or condition, financial or otherwise;
the making or furnishing by Developer of any warranty, representation, statement, certification, schedule or report to the City (whether in this Agreement, an Economic Disclosure Statement, or another document) which is untrue or misleading in any material respect;
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except as otherwise permitted hereunder, the creation (whether voluntary or involuntary) of, or any attempt to create, any lien or other encumbrance upon the Property, or the making or any attempt to make any levy, seizure or attachment thereof;
the commencement of any proceedings in bankruptcy by or against Developer or for the liquidation or reorganization of Developer, or alleging that Developer is insolvent or unable to pay its debts as they mature, or for the readjustment or arrangement of Developer's debts, whether under the United States Bankruptcy Code or under any other state or federal law, now or hereafter existing, for the relief of debtors, or the commencement of any analogous statutory or non-statutory proceedings involving Developer; provided, however, that if such commencement of proceedings is involuntary, such action shall not constitute an Event of Default unless such proceedings are not dismissed within sixty (60) days after the commencement of such proceedings;
the appointment of a receiver or trustee for Developer, for any substantial part of Developer's assets or the institution of any proceedings for the dissolution, or the full or partial liquidation, or the merger or consolidation, of Developer; provided, however, that if such appointment or commencement of proceedings is involuntary, such action shall not constitute an Event of Default unless such appointment is not revoked or such proceedings are not dismissed within sixty (60) days after the commencement thereof;
the entry of any judgment or order against Developer which is related to the Property and remains unsatisfied or undischarged and in effect for sixty (60) days after such entry without a stay of enforcement or execution;
the occurrence of an event of default under the Lender Financing, which default is not cured within any applicable cure period;
(i) the dissolution of Developer;
(j) the occurrence of a material and adverse change in Developer's financial condition or operations; ,
(k) the institution in any court of a criminal proceeding (other than a misdemeanor) against Developer or any natural person who owns a material interest in Developer, which is not dismissed within thirty (30) days, or the indictment of Developer or any natural person who owns a material interest in Developer, for any crime (other than a misdemeanor);
(I) except as set forth in Section 16 hereof, the sale or transfer of the ownership interests of Developer without the prior written consent of DPD prior to the issuance of the Certificate of Completion; or
(m) non-compliance with the use covenants as set forth in Section 15 hereof.
For purposes of Section 20.2(k) hereof, a person with a material interest in Developer shall be one owning in excess often (10%) of either Developer's membership interests.
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Cure. If Developer defaults in the performance of its obligations under this Agreement, Developer shall have thirty (30) days after written notice of default from the City to cure the default, or such longer period as shall be reasonably necessary to cure such default provided Developer promptly commences such cure and thereafter diligently pursues such cure to completion (so long as continuation of the default does not create material risk to the Project or to persons using the Project). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, there shall be no notice requirement or cure period with respect to Events of Default described in Section 13 (Commencement and Completion of Project), Section 16 (Prohibition Against Transfer of Property) and Section 17 (Mortgages and Other Liens).
After Closing. If an Event of Default occurs after the Property Closing, and the default is not cured in the time period provided for in Section 20.3 above, the City may terminate this Agreement and pursue and secure any available remedy in any court of competent jurisdiction by any action or proceeding at law or in equity, including, but not limited to, damages, injunctive relief, the specific performance of the agreements contained herein, and the right to revest title to the Property in the City pursuant to the Reconveyance Deed; provided, however, the City's right to revest title in the City pursuant to the Reconveyance Deed shall terminate upon the issuance of the Certificate of Completion, and provided further that the recording of the Reconveyance Deed shall not defeat, render invalid, or limit in any way, the lien of any mortgage authorized by this Agreement. If the Reconveyance Deed is recorded by the City, Developer shall be responsible for all real estate taxes and assessments which accrued during the period the Property was owned by Developer, and shall cause the release of all liens or encumbrances placed on the Property during the period of time the Property was owned by Developer other than liens securing Lender Financing. Developer will cooperate with the City to ensure that if the City records the Reconveyance Deed, such recording is effective for purposes of transferring title to the Property to the City, subject only to those title exceptions that were on title as of the date and time that the City conveyed the Property to Developer and any subsequent liens or exceptions expressly authorized by this Agreement or approved by DPD in accordance with the terms of this Agreement (collectively, "Default Title Exceptions").
Resale of the Property. Upon the reconveyance of title to the Property to the City as provided in Section 20.4, the City may, but is not required to complete the Project or convey the Property, subject to any Default Title Exceptions, to a qualified and financially responsible party reasonably acceptable to the first mortgagee (if any), who shall assume the obligation of completing the Project or such other improvements as shall be satisfactory to DPD, and otherwise comply with the covenants that run with the land as specified in Section 19.
Disposition of Resale Proceeds. If the City sells the Property as provided for in Section 20.5, the net proceeds from the sale, after payment of all amounts owed under any mortgage liens authorized by this Agreement in order of lien priority, shall be utilized to reimburse the City for:
costs and expenses incurred by the City (including, without limitation, salaries of personnel) in connection with the recapture, management and resale of the Property (less any income derived by the City from the Property in connection with such management); and
all unpaid taxes, assessments, and water and sewer charges assessed against the Property; and
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any payments made (including, without limitation, reasonable attorneys' fees and court costs) to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults or acts of Developer; and
any expenditures made or obligations incurred with respect to construction or maintenance of the Project; and
' (e) any other amounts owed to the City by Developer.
Developer shall be entitled to receive any remaining proceeds up to the amount of Developer's Equity investment in the Property.
SECTION 21. CONFLICT OF INTEREST; CITY'S REPRESENTATIVES NOT INDIVIDUALLY LIABLE.
Developer represents and warrants that no agent, official or employee of the City shall have any personal interest, direct or indirect, in Developer, this Agreement, the Property or the Project, nor shall any such agent, official or employee participate in any decision relating to this Agreement which affects his or her personal interests or the interests of any corporation, partnership, association or other entity in which he or she is directly or indirectly interested. No agent, official or employee of the City shall be personally liable to Developer or any successor in interest in the event of any default or breach by the City or for any amount which may become due to Developer or successor or with respect to any commitment or obligation of the City under the terms of this Agreement.
SECTION 22. INDEMNIFICATION.
Developer agrees to indemnify, pay, defend and hold the City, and its elected and appointed officials, employees and agents (individually, an "Indemnitee," and collectively the "Indemnitees") harmless from and against any and all Losses in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not such Indemnitees shall be designated a party thereto, that may be imposed on, suffered, incurred by or asserted against the Indemnitees in any manner relating or arising out of: (a) the failure of Developer to comply with any of the terms, covenants and conditions contained within this Agreement; (b) the failure of Developer or any Agent of Developer to pay contractors, subcontractors or material suppliers in connection with the construction and management of the Project; (c) the existence of any material misrepresentation or omission in this Agreement or any other document related to this Agreement that is the result of information supplied or omitted by Developer or any Agent or Affiliate of Developer; (d) Developer's failure to cure any misrepresentation in this Agreement or any other document relating hereto; and (e) any activity undertaken by Developer or any Agent or Affiliate of Developer on the Property prior to or after the Property Closing. This indemnification shall survive the Property Closing and any termination of this Agreement (regardless of the reason for such termination).
SECTION 23. ENVIRONMENTAL MATTERS.
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"AS IS" SALE. DEVELOPER ACKNOWLEDGES THAT IT HAS HAD ADEQUATE OPPORTUNITY TO INSPECT AND EVALUATE THE STRUCTURAL, PHYSICAL AND ENVIRONMENTAL CONDITION AND RISKS OF THE PROPERTY AND ACCEPTS THE RISK THAT ANY INSPECTION MAY NOT DISCLOSE ALL MATERIAL MATTERS AFFECTING THE PROPERTY (AND ANY IMPROVEMENTS THEREON). DEVELOPER AGREES TO ACCEPT THE PROPERTY IN ITS "AS IS," "WHERE IS" AND "WITH ALL FAULTS" CONDITION AT CLOSING WITHOUT ANY COVENANT, REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND, AS TO THE STRUCTURAL, PHYSICAL OR ENVIRONMENTAL CONDITION OF THE PROPERTY OR THE SUITABILITY OF THE PROPERTY FOR ANY PURPOSE WHATSOEVER. DEVELOPER ACKNOWLEDGES THAT IT IS RELYING SOLELY UPON ITS OWN INSPECTION AND OTHER DUE DILIGENCE ACTIVITIES AND NOT UPON ANY INFORMATION (INCLUDING, WITHOUT LIMITATION, ENVIRONMENTAL STUDIES OR REPORTS OF ANY KIND) PROVIDED BY OR ON BEHALF OF THE CITY OR ITS AGENTS OR EMPLOYEES WITH RESPECT THERETO. DEVELOPER AGREES THAT IT IS DEVELOPER'S SOLE RESPONSIBILITY AND OBLIGATION TO PERFORM ANY REMEDIATION WORK (AS DEFINED BELOW) AND TAKE SUCH OTHER ACTION AS IS NECESSARY TO PUT THE PROPERTY IN A CONDITION WHICH IS SUITABLE FOR ITS INTENDED USE.
Right of Entry. Developer hereby represents and warrants to the City that it has performed a Phase I environmental site assessment ("Phase I ESA") of the Property in accordance with the requirements of the ASTM E 1527-13 standard, and other environmental studies sufficient to conclude that the Project may be completed and operated in accordance with all Environmental Laws and this Agreement. Developer agrees to deliver to the City copies of all Environmental Documents. The obligation of Developer to purchase the Property is conditioned upon Developer being satisfied with the condition of the Property for the construction, development and operation of the Project. The City shall grant Developer the right, at Developer's sole cost and expense, and in the City's customary form and subject to City's receipt from Developer of required documentation (e.g., evidence of insurance and an Economic Disclosure Statement and Affidavit that is current as of the date of the right of entry), to enter the Property to perform the Phase I and any other surveys, environmental assessments, soil tests and other due diligence it deems necessary or desirable to satisfy itself as to the condition of the Property; provided, however, that the City shall have the right to review and approve the scope of work for any environmental testing. If Developer determines that it is not satisfied, in its sole and absolute discretion, with the condition of the Property, it may terminate this Agreement by written notice to the City any time prior to the Property Closing Date, in which event the Escrow Deposit and Performance Deposit shall be returned to Developer and whereupon this Agreement shall be null and void and, except as otherwise specifically provided, neither Party shall have any further right, duty or obligation hereunder. If Developer elects not to terminate this Agreement pursuant to this Section 23.2, Developer shall be deemed satisfied with the condition of the Property.
Environmental Remediation.
a) City has provided Developer with a Phase I ESA dated January 11, 2017. The Phase I ESA for the Property of such date identified RECs and the City had a Phase II ESA performed to ascertain the presence of any environmental impacts that may be associated with such RECs. The Phase II ESA identified contamination above the l/C remediation objectives as determined by Title 35 of the IAC Part 742. The City also caused to be performed and provided
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to Developer a Comprehensive Site Investigation and Remediation Objectives Report and the Remedial Action Plan dated July 21, 2017.
Prior to the Property Closing, Developer will provide to the City a Phase I ESA for the Property conducted in conformance with ASTM E- 1527-13 and performed or updated within 180 days prior to the Property Closing. A reliance letter naming the City as an authorized user must be provided by the environmental professional conducting the Phase I ESA. 2FM shall have the right to review and reasonably approve the Phase I ESA and the reliance letter. Any USTs identified must be removed and closed in accordance with applicable regulations including Title 41 of IAC Part 175 and any identified leaking USTs must be properly addressed in accordance with 35 IAC Part 734.
Prior to the Property Closing, Developer shall enroll the Property in the lEPA's SRP and obtain a RAP Approval Letter for the Property. Developer acknowledges and agrees that the Property Closing will not occur and that it may not commence construction on the Property until the IEPA issues a Comprehensive Remedial Action Plan Approval Letter ("RAP Approval Letter") for the Property.
[intentionally omitted]
Upon receipt of the RAP Approval Letter for the Property, Developer covenants and agrees to complete all Remediation Work necessary to obtain a Final Comprehensive l/C No Further Remediation Letter ("Final NFR Letter") for the Property using all reasonable means. The City shall have the right to review in advance and approve all documents submitted to the IEPA under the SRP, as amended or supplemented from time to time, including, without limitation, the SRP Documents and any changes thereto, and Developer's estimate of the cost to perform the Remediation Work. Developer shall bear sole responsibility for all costs of the Remediation Work necessary to obtain the Final NFR Letter, and the costs of any other investigative and cleanup costs associated with the Property. Developer shall promptly transmit to the City copies of all Environmental Documents prepared or received with respect to the Remediation Work, including, without limitation, any written communications delivered to or received from the IEPA or other regulatory agencies.
On the Property Closing Date, Developer and the Title Company (or such other Escrowee as shall be acceptable to DPD, in its sole discretion) shall have executed a joint order escrow agreement, substantially in the form attached hereto as Exhibit C (the "Escrow Agreement"). Developer shall deposit $332,250 into the escrow account. Developer acknowledges that the Escrow Deposit shall be used solely to reimburse Developer for the line items shown on Exhibit 4 to the Escrow Agreement (the "Approved Environmental Costs"). Developer acknowledges that (i) the City will not pay for any removal (including, excavation, transportation and disposal), storage, remediation or treatment costs associated with any material from the Property, including any material meeting regulatory criteria of Hazardous Waste, and (ii) Developer is solely responsible for all removal (including, excavation, transportation and disposal), storage, remediation or treatment costs associated with material meeting regulatory criteria of Hazardous Waste, even if those costs exceed $332,250. Any funds remaining in the environmental escrow account following the Escrowee's payment from the escrow account of the Approved Environmental Costs shall be paid to the City. Developer shall pay all escrow fees.
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Developer acknowledges and agrees that occupancy of the Property may not occur until a Remedial Action Completion Report has been approved by 2FM and submitted to the IEPA. Developer acknowledges and agrees that the City will not issue a Certificate of Completion until the IEPA has issued, the City has approved (such approval not to be unreasonably withheld), and Developer has recorded with the Cook County Recorder of Deeds, a Final NFR Letter for the Property. Developer must obtain the Final NFR Letter within six (6) months of the submission of the Remedial Action Completion Report to the IEPA. In addition to the other remedies available to the City under Section 20.4, Developer acknowledges and agrees on behalf of itself, its successors and assigns, that if Developer fails to obtain the Final NFR Letter within six (6) months of the submission of the Remedial Action Completion Report to the IEPA, then the City shall have the right to record a notice of default of this Agreement against the Property with the Office of the Recorder of Deeds of Cook County.
Developer must abide by the terms and conditions of the Final NFR letter.
Release and Indemnification. Developer, on behalf of itself and the other Developer Parties, or anyone claiming by, through, or under the Developer Parties, hereby releases, relinquishes and forever discharges the City from and against any and all Losses which Developer or any of the Developer Parties ever had, now have, or hereafter may have, whether grounded in tort or contract or otherwise, in any and all courts or other forums, of whatever kind or nature, whether known or unknown, foreseen or unforeseen, now existing or occurring after the Property Closing Date, based upon, arising out of or in any way connected with, directly or indirectly (a) any environmental contamination, pollution or hazards associated with the Property or any improvements, facilities or operations located or formerly located thereon, including, without limitation, any release, emission, discharge, generation, transportation, treatment, storage or disposal of Hazardous Substances, or threatened release, emission or discharge of Hazardous Substances; (b) the structural, physical or environmental condition of the Property, including, without limitation, the presence or suspected presence of Hazardous Substances in, on, under or about the Property or the migration of Hazardous Substances from or to other property, unless the Hazardous Substances migrate from property owned by the City to the Property; (c) any violation of, compliance with, enforcement of or liability under any Environmental Laws, including, without limitation, any Losses arising under CERCLA; and (d) any investigation, cleanup, monitoring, remedial, removal or restoration work required by any federal, state or local governmental agency or political subdivision or other third party in connection or associated with the Property or any improvements, facilities or operations located or formerly located thereon (collectively, "Released Claims"). Furthermore, Developer shall defend (through an attorney reasonably acceptable to the City), indemnify, and hold the City harmless from and against any and all Losses which may be made or asserted by any third parties (including, without limitation, any of the Developer Parties) arising out of or in any way connected with, directly or indirectly, any of the Released Claims.
Release Runs with the Land. The covenant of release in Section 23.4 shall run with the Property, and shall be binding upon all successors and assigns of Developer with respect to the Property, including, without limitation, each and every person, firm, corporation, limited liability company, trust or other entity owning, leasing, occupying, using or possessing any portion of the Property under or through Developer following the date of the Deed. Developer acknowledges and agrees that the foregoing covenant of release constitutes a material inducement to the City to enter into this Agreement, and that, but for such release, the City would not have agreed to convey the Property to Developer for the Purchase Price. It is
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expressly agreed and understood by and between Developer and the City that, should any future obligation of Developer, or any of the Developer Parties, arise or be alleged to arise in connection with any environmental, soil or other condition of the Property, neither Developer, nor any of the Developer Parties, will assert that those obligations must be satisfied in whole or in part by the City because Section 23.4 contains a full, complete and final release of all such claims.
23.6 Survival. This Section 23 shall survive the Property Closing or any termination of this Agreement (regardless of the reason for such termination).
SECTION 24. DEVELOPER'S EMPLOYMENT OBLIGATIONS.
24.1 Employment Opportunity. Developer agrees, and shall contractually obligate its various contractors, subcontractors and any Affiliate of Developer operating on the Property (collectively, the "Employers" and individually, an "Employer") to agree, that with respect to the provision of services in connection with the construction of the Project:
Neither Developer nor any Employer shall discriminate against any employee or applicant for employment based upon race, religion, color, sex, gender identity, national origin or ancestry, age, handicap or disability, sexual orientation, military discharge status, marital status, parental status or source of income as defined in the City of Chicago Human Rights Ordinance, Section 2-160-010 et seq. of the Municipal Code, as amended from time to time (the "Human Rights Ordinance"). Developer and each Employer shall take affirmative action to ensure that applicants are hired and employed without discrimination based upon the foregoing grounds, and are treated in a non-discriminatory manner with regard to all job-related matters, including, without limitation: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Developer and each Employer agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the City setting forth the provisions of this nondiscrimination clause. In addition, Developer and each Employer, in all solicitations or advertisements for employees, shall state that all qualified applicants shall receive consideration for employment without discrimination based upon the foregoing grounds.
To the greatest extent feasible, Developer and each Employer shall (i) present opportunities for training and employment of low and moderate income residents of the City, and (ii) provide that contracts for work in connection with the construction of the Project be awarded to business concerns which are located in or owned in substantial part by persons residing in the City.
Developer and each Employer shall comply with all federal, state and local equal employment and affirmative action statutes, rules and regulations, including, without limitation, the Human Rights Ordinance and the Illinois Human Rights Act, 775 ILCS 5/1-101 et seg. (1993), both as amended from time to time, and any regulations promulgated thereunder.
Developer, in order to demonstrate compliance with the terms of this Section 24.1, shall cooperate with and promptly and accurately respond to inquiries by
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the City, which has the responsibility to observe and report compliance with equal employment opportunity regulations of federal, state and municipal agencies.
Developer and each Employer shall include the foregoing provisions of subparagraphs (a) through (d) in every contract entered into in connection with the construction of the Project, and shall require inclusion of these provisions in every subcontract entered into by any subcontractors, and every agreement with any affiliate operating on the Property, so that each such provision shall be binding upon each contractor, subcontractor or affiliate, as the case may be.
Failure to comply with the employment obligations described in this Section 24.1 shall be a basis for the City to pursue remedies under the provisions of Section 20.
24.2 City Resident Employment Requirement.
Developer agrees, and shall contractually obligate each Employer to agree, that during the construction of the Project, Developer and each Employer shall comply with the minimum percentage of total worker hours performed by actual residents of the City of Chicago as specified in Section 2-92-330 of the Municipal Code (at least fifty percent); provided, however, that in addition to complying with this percentage, Developer and each Employer shall be required to make good faith efforts to utilize qualified residents of the City in both unskilled and skilled labor positions.
Developer and the Employers may request a reduction or waiver of this minimum percentage level of Chicagoans as provided for in Section 2-92-330 of the Municipal Code in accordance with standards and procedures developed by the chief procurement officer of the City of Chicago.
"Actual residents of the City of Chicago" shall mean persons domiciled within the City of Chicago. The domicile is an individual's one and only true, fixed and permanent home and principal establishment.
Developer and the Employers shall provide for the maintenance of adequate employee residency records to ensure that actual Chicago residents are employed on the construction of the Project. Developer and the Employers shall maintain copies of personal documents supportive of every Chicago employee's actual record of residence.
Developer and the Employers shall submit weekly certified payroll reports (U.S. Department of Labor Form WH-347 or equivalent) to DPD in triplicate, which shall identify clearly the actual residence of every employee on each submitted certified payroll. The first time that an employee's name appears on a payroll, the date that Developer or Employer hired the employee should be written in after the employee's name.
Developer and the Employers shall provide full access to their employment records to the chief procurement officer, DPD, the Superintendent of the Chicago Police Department, the inspector general, or any duly authorized representative
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thereof. Developer and the Employers shall maintain all relevant personnel data and records for a period of at least three (3) years after the issuance of the Certificate of Completion.
At the direction of DPD, Developer and the Employers shall provide affidavits and other supporting documentation to verify or clarify an employee's actual address when doubt or lack of clarity has arisen.
Good faith efforts on the part of Developer and the Employers to provide work for actual Chicago residents (but not sufficient for the granting of a waiver request as provided for in the standards and procedures developed by the chief procurement officer) shall not suffice to replace the actual, verified achievement of the requirements of this Section 24.2 concerning the worker hours performed by actual residents of the City of Chicago.
(i) If the City determines that Developer or an Employer failed to ensure the
fulfillment of the requirements of this Section 24.2 concerning the worker hours
. performed by actual residents of the City of Chicago or failed to report in the manner as indicated above, the City will thereby be damaged in the failure to provide the benefit of demonstrable employment to Chicagoans to the degree stipulated in this Section 24.2. If such non-compliance is not remedied in accordance with the breach and cure provisions of Section 20.3, the parties agree that 1/20 of 1 percent (.05%) of the aggregate hard construction costs set forth in the Budget shall be surrendered by Developer to the City in payment for each percentage of shortfall toward the stipulated residency requirement. Failure to report the residency of employees entirely and correctly shall result in the surrender of the entire liquidated damages as if no actual residents of the City of Chicago were employed in either of the categories. The willful falsification of statements and the certification of payroll data may subject Developer and/or the other Employers or employees to prosecution.
(j) Nothing herein provided shall be construed to be a limitation upon the "Notice of Requirements for Affirmative Action to Ensure Equal Employment Opportunity, Executive Order 11246" and "Standard Federal Equal Employment Opportunity, Executive Order 11246," or other affirmative action required for equal opportunity under the provisions of this Agreement.
(k) Developer shall cause or require the provisions of this Section 24.2 to be included in all construction contracts and subcontracts related to the construction of the Project.
24.3 Developer's MBE/WBE Commitment. Developer agrees for itself and its successors and assigns, and, if necessary to meet the requirements set forth herein, shall contractually obligate the General Contractor to agree, that during the construction of the Project:
(a) Consistent with the findings which support, as applicable, (i) the Minority-Owned and Women-Owned Business Enterprise Procurement Program, Section 2-92-420 et seq., Municipal Code (the "Procurement Program"), and (ii) the Minority- and Women-Owned Business Enterprise Construction Program, Section 2-92-650 et seq.,
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Municipal Code (the "Construction Program," and collectively with the Procurement Program, the "MBE/WBE Program"), and in reliance upon the provisions of the MBE/WBE Program to the extent contained in, and as qualified by, the provisions of this Section 24.3, during the course of construction of the Project, at least 26% of the aggregate hard construction costs shall be expended for contract participation by minority-owned businesses and at least 6% of the aggregate hard construction costs shall be expended for contract participation by women-owned businesses.
For purposes of this Section 24.3 only:
Developer (and any party to whom a contract is let by Developer in connection with the Project) shall be deemed a "contractor" and this Agreement (and any contract let by Developer in connection with the Project) shall be deemed a "contract" or a "construction contract" as such terms are defined in Sections 2-92-420 and 2-92-670 of the Municipal Code, as applicable.
The term "minority-owned business" or "MBE" shall mean a business identified in the Directory of Certified Minority Business Enterprises published by the City's Department of Procurement Services, or otherwise certified by the City's Department of Procurement Services as a minority-owned business enterprise, related to the Procurement Program or the Construction Program, as applicable.
The term "women-owned business" or "WBE" shall mean a business identified in the Directory of Certified Women Business Enterprises published by the City's Department of Procurement Services, or otherwise certified by the City's Department of Procurement Services as a women-owned business enterprise, related to the Procurement Program or the Construction Program, as applicable.
Consistent with Sections 2-92-440 and 2-92-720 of the Municipal Code, Developer's MBE/WBE commitment may be achieved in part by Developer's status as an MBE or WBE (but only to the extent of any actual work performed on the Project by Developer) or by a joint venture with one or more MBEs or WBEs (but only to the extent of the lesser of (i) the MBE or WBE participation in such joint venture, or (ii) the amount of any actual work performed on the Project by the MBE or WBE); by Developer utilizing a MBE or a WBE as the General Contractor (but only to the extent of any actual work performed on the Project by the General Contractor); by subcontracting or causing the General Contractor to subcontract a portion of the construction of the Project to one or more MBEs or WBEs; by the purchase of materials or services used in the construction of the Project from one or more MBEs or WBEs; or by any combination of the foregoing. Those entities which constitute both a MBE and a WBE shall not be credited more than once with regard to Developer's MBE/WBE commitment as described in this Section 24.3. In accordance with Section 2-92-730, Municipal Code, Developer shall not substitute any MBE or WBE General Contractor or subcontractor without the prior written approval of DPD.
Developer shall deliver quarterly reports to the City's monitoring staff during the construction of the Project describing its efforts to achieve compliance with
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this MBE/WBE commitment. Such reports shall include, inter alia, the name and business address of each MBE and WBE solicited by Developer or the General Contractor to work on the Project, and the responses received from such solicitation, the name and business address of each MBE or WBE actually involved in the construction of the Project, a description of the work performed or products or services supplied, the date and amount of such work, product or service, and such other information as may assist the City's monitoring staff in determining Developer's compliance with this MBE/WBE commitment. Developer shall maintain records of all relevant data with respect to the utilization of MBEs and WBEs in connection with the construction of the Project for at least five (5) years after completion of the Project, and the City's monitoring staff shall have access to all such records maintained by Developer, on prior notice of at least five (5) business days, to allow the City to review Developer's compliance with its commitment to MBE/WBE participation and the status of any MBE or WBE performing any portion of the construction of the Project.
Upon the disqualification of any MBE or WBE general contractor or subcontractor, if the disqualified party misrepresented such status, Developer shall be obligated to discharge or cause to be discharged the disqualified general contractor or subcontractor, and, if possible, identify and engage a qualified MBE or WBE as a replacement. For purposes of this subsection (e), the disqualification procedures are further described in Sections 2-92-540 and 2-92-730 of the Municipal Code, as applicable.
Any reduction or waiver of Developer's MBE/WBE commitment as described in this Section 24.3 shall be undertaken in accordance with Sections 2-92-450 and 2-92-730, Municipal Code, as applicable.
24.4 Pre-Construction Conference and Post-Closing Compliance Requirements. Not less than fourteen (14) days prior to the Property Closing Date, Developer and Developer's General Contractor and all major subcontractors shall meet with DPD monitoring staff regarding compliance with all Section 24 requirements. During this pre-construction meeting, Developer shall present its plan to achieve its obligations under this Section 24, the sufficiency of which the City's monitoring staff shall approve as a precondition to the Property Closing. During the construction of the Project, Developer shall submit all documentation required by this Section 24 to the City's monitoring staff, including, without limitation, the following: (a) subcontractor's activity report; (b) contractor's certification concerning labor standards and prevailing wage requirements; (c) contractor letter of understanding; (d) monthly utilization report; (e) authorization for payroll agent; (f) certified payroll; (g) evidence that MBE/WBE contractor associations have been informed of the Project via written notice and hearings; and (h) evidence of compliance with job creation/job retention requirements. Failure to submit such documentation on a timely basis, or a determination by the City's monitoring staff, upon analysis of the documentation, that Developer is not complying with its obligations under this Section 24, shall, upon the delivery of written notice to Developer, be deemed an Event of Default. Upon the occurrence of any such Event of Default, in addition to any other remedies provided in this Agreement, the City may: (x) issue a written demand to Developer to halt construction of the Project, (y) withhold any further payment of any City funds to Developer or the General Contractor, or (z) seek any other remedies against Developer available at law or in equity.
SECTION 25. REPRESENTATIONS AND WARRANTIES.
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25.1 Representations and Warranties of Developer. To induce the City to execute this Agreement and perform its obligations hereunder, Developer represents, warrants and covenants, as of the Effective Date and as of the RDA Closing Date and the Property Closing Date, that the following shall be true, accurate and complete in all respects:
Developer is an Illinois limited liability company or corporation duly organized, validly existing, and in good standing under the laws of the State of Illinois, with full power and authority to acquire, own and redevelop the Property, and the person signing this Agreement on behalf of Developer has the authority to do so.
All certifications and statements contained in the Economic Disclosure Statements submitted to the City by Developer (and any legal entity holding an interest in Developer) are true, accurate and complete.
Developer has the right, power and authority to enter into, execute, deliver and perform this Agreement. Developer's's execution, delivery and performance of this Agreement, and all instruments and agreements contemplated hereby, have been duly authorized by all necessary action, and do not and will not violate Developer's articles of organization or operating agreement (as amended and supplemented), or any applicable Laws, nor will such execution, delivery and performance, upon the giving of notice or lapse of time or both, result in a breach or violation of, or constitute a default under, or require any consent under, any other agreement, instrument or document to which Developer, or any party affiliated with Developer, is a party or by which Developer or the Property is now or may become bound.
No action, litigation, investigation or proceeding of any kind is pending or threatened against Developer, or any party affiliated with Developer, by or before any court, governmental commission, board, bureau or any other administrative agency, and Developer knows of no facts which could give rise to any such action, litigation, investigation or proceeding, which could: (i) affect the ability of Developer to perform its obligations hereunder; or (ii) materially affect the operation or financial condition of Developer.
Developer is now and for the term of the Agreement shall remain solvent and able to pay its debts as they mature.
Developer has and shall maintain all Governmental Approvals necessary to conduct its business and to construct, complete and operate the Project.
Developer is not in default with respect to any indenture, loan agreement, mortgage, note or any other agreement or instrument related to the borrowing of money to which Developer is a party or by which Developer is bound.
The Financial Statements are, and when hereafter required to be submitted will be, complete, correct in all material respects and accurately present the assets, liabilities, results of operations and financial condition of Developer, and there has been no material adverse change in the assets, liabilities, results of operations or
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financial condition of Developer since the date of Developer's most recent Financial Statements.
(i) The Project will not violate: (i) any applicable Laws, including, without limitation, any zoning and building codes and Environmental Laws; or (ii) any building permit, restriction of record or other agreement affecting the Property.
(j) Prior to the expiration of the Compliance Period, Developer shall not do any of the following without the prior written consent of DPD, which shall be in DPD's sole discretion: (1) be a party to any merger, liquidation or consolidation; (2) enter into any transaction outside the ordinary course of Developer's business; (3) assume, guarantee, endorse, or otherwise become liable in connection with the obligations of any other person or entity; or (4) enter into any transaction that would cause a material and detrimental change to Developer's financial condition.
(k) Prior to the issuance of the Certificate of Completion, Developer shall not do any of the following without the prior written consent of DPD, which shall be in DPD's sole discretion: (1) allow the existence of any liens against the Property (or improvements thereon) other than the Permitted Liens; or (2) incur any indebtedness, secured or to be secured by the Property (or improvements thereon) or any fixtures now or hereafter attached thereto, except Lender Financing disclosed in the Budget.
(I) Developer has not made or caused to be made, directly or indirectly, any payment, gratuity or offer of employment in connection with this Agreement or any contract paid from the City treasury or pursuant to City ordinance, for services to any City agency ("City Contract") as an inducement for the City to enter into the Agreement or any City Contract with Developer in violation of Chapter 2-156-120 of the Municipal Code.
(m) Neither Developer nor any Affiliate of Developer is listed on any of the following lists maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the Bureau of Industry and Security of the U.S. Department of Commerce or their successors, or on any other list of persons or entities with which the City may not do business under any applicable law, rule, regulation, order or judgment: the Specially Designated Nationals List, the Denied Persons List, the Unverified List, the Entity List and the Debarred List.
Representations and Warranties of the City. To induce Developer to execute this Agreement and perform its obligations hereunder, the City hereby represents and warrants to Developer that the City has authority under its home rule powers to execute and deliver this Agreement and perform the terms and obligations contained herein.
Survival of Representations and Warranties. Each of the parties agrees that all warranties, representations, covenants and agreements contained in this Section 25 and elsewhere in this Agreement are true, accurate and complete as of the Effective Date and shall survive the Effective Date and shall be in effect until the expiration of the Compliance Period.
SECTION 26. [intentionally omitted]
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SECTION 27. NOTICES.
Any notice, demand or communication required or permitted to be given hereunder shall be given in writing at the addresses set forth below by any of the following means: (a) personal service; (b) facsimile; (c) overnight courier; or (d) registered or certified first class mail, postage prepaid, return receipt requested:
If to the City: City of Chicago
Department of Planning & Development 121 North LaSalle Street, Room 1000 Chicago, Illinois 60602
i Attn: Commissioner
With a copy to: City of Chicago
Department of Law
121 North LaSalle Street, Room 600
Chicago, Illinois 60602
Attn: Real Estate and Land Use Division
If to Developer: The Will Group
5261 West Harrison Chicago, Illinois 60644 Attn: Steve Davis
With a copy to: Jessica Davis
5261 West Harrison Street Chicago, Illinois 60644
Any notice, demand or communication given pursuant to either clause (a) or (b) hereof shall be deemed received upon such personal service or upon confirmed transmission by facsimile, respectively, provided that such facsimile transmission is confirmed as having occurred prior to 5:00 p.m. on a business day. If such transmission occurred after 5:00 p.m. on a business day or on a non-business day, it shall be deemed to have been given on the next business day. Any notice, demand or communication given pursuant to clause (c) shall be deemed received on the business day immediately following deposit with the overnight courier. Any notice, demand or communication sent pursuant to clause (d) shall be deemed received three (3) business days after mailing. The parties, by notice given hereunder, may designate any further or different addresses to which subsequent notices, demands or communications shall be given. The refusal to accept delivery by any party or the inability to deliver any communication because of a changed address of which no notice has been given in accordance with this Section 27 shall constitute delivery.
SECTION 28. BUSINESS RELATIONSHIPS.
Developer acknowledges (a) receipt of a copy of Section 2-156-030 (b) of the Municipal Code, (b) that it has read such provision and understands that pursuant to such Section 2-156-030 (b) it is illegal for any elected official of the City, or any person acting at the direction of such official, to contact, either orally or in writing, any other City official or employee with respect to any matter involving any person with whom the elected City official or employee has a
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"Business Relationship" (as described in Section 2-156-080 of the Municipal Code), or to participate in any discussion in any City Council committee hearing or in any City Council meeting or to vote on any matter involving the person with whom an elected official has a Business Relationship, and (c) notwithstanding anything to the contrary contained in this Agreement, that a violation of Section 2-156-030 (b) by an elected official, or any person acting at the direction of such official, with respect to any transaction contemplated by this Agreement shall be grounds for termination of this Agreement and the transactions contemplated hereby. Developer hereby represents and warrants that no violation of Section 2-156-030 (b) has occurred with respect to this Agreement or the transactions contemplated hereby.
SECTION 29. PATRIOT ACT CERTIFICATION.
Developer represents and warrants that neither Developer nor any Affiliate (as hereafter defined) thereof is listed on any of the following lists maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the Bureau of Industry and Security of the U.S. Department of Commerce or their successors, or on any other list of persons or entities with which the City may not do business under any applicable Laws: the Specially Designated Nationals List, the Denied Persons List, the Unverified List, the Entity List and the Debarred List.
SECTION 30. PROHIBITION ON CERTAIN CONTRIBUTIONS PURSUANT TO MAYORAL EXECUTIVE ORDER NO. 2011-4.
Developer agrees that Developer, any person or entity who directly or indirectly has an ownership or beneficial interest in Developer of more than 7.5 percent ("Owners"), spouses and domestic partners of such Owners, Developer's contractors (i.e., any person or entity in direct contractual privity with Developer regarding the subject matter of this Agreement) ("Contractors"), any person or entity who directly or indirectly has an ownership or beneficial interest in any Contractor of more than 7.5 percent ("Sub-owners") and spouses and domestic partners of such Sub-owners (Developer and all the other preceding classes of persons and entities are together the "Identified Parties"), shall not make a contribution of any amount to the Mayor of the City of Chicago or to his political fundraising committee (a) after execution of this Agreement by Developer, (b) while this Agreement or any Other Contract (as hereinafter defined) is executory, (c) during the term of this Agreement or any Other Contract, or (d) during any period while an extension of this Agreement or any Other Contract is being sought or negotiated. This provision shall not apply to contributions made prior to May 16, 2011, the effective date of Executive Order 2011 -4.
Developer represents and warrants that from the later of (a) May 16, 2011, or (b) the date the City approached Developer, or the date Developer approached the City, as applicable, regarding the formulation of this Agreement, no Identified Parties have made a contribution of any amount to the Mayor or to his political fundraising committee.
Developer agrees that it shall not: (a) coerce, compel or intimidate its employees to make a contribution of any amount to the Mayor or to the Mayor's political fundraising committee; (b) reimburse its employees for a contribution of any amount made to the Mayor or to the Mayor's political fundraising committee; or (c) bundle or solicit others to bundle contributions to the Mayor or to his political fundraising committee.
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Developer agrees that the Identified Parties must not engage in any conduct whatsoever designed to intentionally violate this provision or Mayoral Executive Order No. 2011-4 or to entice, direct or solicit others to intentionally violate this provision or Mayoral Executive Order No. 05-1.
Notwithstanding anything to the contrary contained herein, Developer agrees that a violation of, non-compliance with, misrepresentation with respect to, or breach of any covenant or warranty under this Section 30 or violation of Mayoral Executive Order No. 2011-4 constitutes a breach and default under this Agreement, and under any Other Contract for which no opportunity to cure will be granted, unless the City, in its sole discretion, elects to grant such an opportunity to cure. Such breach and default entitles the City to all remedies (including, without limitation, termination for default) under this Agreement, and under any Other Contract, at law and in equity. This provision amends any Other Contract and supersedes any inconsistent provision contained therein.
If Developer intentionally violates this provision or Mayoral Executive Order No. 2011-4 prior to the Property Closing, the City may elect to decline to close the transaction contemplated by this Agreement.
For purposes of this provision:
"Bundle" means to collect contributions from more than one source, which contributions are then delivered by one person to the Mayor or to his political fundraising committee.
"Other Contract" means any other agreement with the City to which Developer is a party that is (i) formed under the authority of Chapter 2-92 of the Municipal Code; (ii) entered into for the purchase or lease of real or personal property; or (iii) for materials, supplies, equipment or services which are approved or authorized by the City Council.
"Contribution" means a "political contribution" as defined in Chapter 2-156 of the Municipal Code, as amended.
Individuals are "domestic partners" if they satisfy the following criteria:
they are each other's sole domestic partner, responsible for each other's common welfare; and
neither party is married; and
the partners are not related by blood closer than would bar marriage in the State of Illinois; and
each partner is at least 18 years of age, and the partners are the same sex, and the partners reside at the same residence; and
two of the following four conditions exist for the partners:
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The partners have been residing together for at least 12 months.
The partners have common or joint ownership of a residence.
The partners have at least two of the following arrangements:
joint ownership of a motor vehicle;
joint credit account;
a joint checking account;
a lease for a residence identifying both domestic partners
as tenants.
Each partner identifies the other partner as a primary beneficiary in a will.
(e) "Political fundraising committee" means a "political fundraising committee" as defined in Chapter 2-156 of the Municipal Code, as amended.
SECTION 31. INSPECTOR GENERAL
It is the duty of every officer, employee, department, agency, contractor, subcontractor, developer and licensee of the City, and every applicant for certification of eligibility for a City contract or program, to cooperate with the City's Inspector General in any investigation or hearing undertaken pursuant to Chapter 2-55 of the Municipal Code. Developer understands and will abide by all provisions of Chapter 2-55 of the Municipal Code.
SECTION 32. WASTE ORDINANCE PROVISIONS.
In accordance with Section 11-4-1600(e) of the Municipal Code, Developer warrants and represents that it, and to the best of its knowledge, its contractors and subcontractors, have not violated and are not in violation of any provisions of Section 7-28 or Section 11-4 of the Municipal Code (the "Waste Sections"). During the period while this Agreement is executory, any violation of the Waste Sections by Developer, its General Contractor or any subcontractor, whether or not relating to the performance of this Agreement, constitutes a breach of and an event of default under this Agreement, for which the opportunity to cure, if curable, will be granted only at the sole designation of DPD. Such breach and default entitles the City to all remedies under the Agreement, at law or in equity. This section does not limit the duty of Developer, the General Contractor and any subcontractors to comply with all applicable Laws, in effect now or later, and whether or not they appear in this Agreement. Non-compliance with these terms and conditions may be used by the City as grounds for the termination of this Agreement, and may further affect Developer's eligibility for future contract awards.
SECTION 33. CITY HIRING PLAN.
33.1 The City is subject to the June 16, 2014 "City of Chicago Hiring Plan" (the "City Hiring Plan") entered in Shakman v. Democratic Organization of Cook County, Case No 69 C 2145 (United States District Court for the Northern District of Illinois). Among other things,
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the City Hiring Plan prohibits the City from hiring persons as governmental employees in non-exempt positions on the basis of political reasons or factors.
Developer is aware that City policy prohibits City employees from directing any individual to apply for a position with Developer, either as an employee or as a subcontractor, and from directing Developer to hire an individual as an employee or as a subcontractor. Accordingly, Developer must follow its own hiring and contracting procedures, without being influenced by City employees. Any and all personnel provided by Developer under this Agreement are employees or subcontractors of Developer, not employees of the City of Chicago. This Agreement is not intended to and does not constitute, create, give rise to, or otherwise recognize an employer-employee relationship of any kind between the City and any personnel provided by Developer.
Developer will not condition, base, or knowingly prejudice or affect any term or aspect to the employment of any personnel provided under this Agreement, or offer employment to any individual to provide services under this Agreement, based upon or because of any political reason or factor, including, without limitation, any individual's political affiliation, membership in a political organization or party, political support or activity, political financial contributions, promises of such political support, activity or financial contributions, or such individual's political sponsorship or recommendation. For purposes of this Agreement, a political organization or party is an identifiable group or entity that has as its primary purpose the support of or opposition to candidates for elected public office. Individual political activities are the activities of individual persons in support of or in opposition to political organizations or parties or candidates for elected public office.
In the event of any communication to Developer by a City employee or City official in violation of Section 33.2 above, or advocating a violation of Section 33.3 above, Developer will, as soon as is reasonably practicable, report such communication to the Hiring Oversight Section of the City's Office of the Inspector General ("IGO Hiring Oversight"), and also to the head of the relevant City Department utilizing services provided under this Agreement. Developer will also cooperate with any inquiries by IGO Hiring Oversight related to this Agreement.
SECTION 34. FAILURE TO MAINTAIN ELIGIBILITY TO DO BUSINESS WITH THE CITY.
Failure by Developer or any controlling person (as defined in Section 1-23-010 of the Municipal Code) thereof to maintain eligibility to do business with the City of Chicago as required by Section 1-23-030 of the Municipal Code shall be grounds for termination of the Agreement and the transactions contemplated thereby. Developer shall at all times comply with Section 2-154-020 of the Municipal Code.
SECTION 35. MISCELLANEOUS.
The following general provisions govern this Agreement:
35.1 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute a single, integrated instrument.
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Cumulative Remedies. The remedies of any party hereunder are cumulative and the exercise of any one or more of such remedies shall not be construed as a waiver of any other remedy herein conferred upon such party or hereafter existing at law or in equity, unless specifically so provided herein.
Date for Performance. If the final date of any time period set forth herein falls on a Saturday, Sunday or legal holiday under the laws of Illinois or the United States of America, then such time period shall be automatically extended to the next business day.
Disclaimer. Nothing contained in this Agreement nor any act of the City shall be deemed or construed by any of the parties, or by any third person, to create or imply any relationship of third-party beneficiary, principal or agent, limited or general partnership or joint venture, or to create or imply any association or relationship involving the City.
Entire Agreement; Modification. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior agreements, negotiations and discussions. This Agreement may not be modified or amended in any manner without the prior written consent of the parties hereto. No term of this Agreement may be waived or discharged orally or by any course of dealing, but only by an instrument in writing signed by the party benefited by such term.
Exhibits. All exhibits referred to herein and attached hereto shall be deemed part of this Agreement.
Force Majeure. Neither the City nor Developer nor any successor in interest to either of them shall be considered in breach of or in default of its obligations under this Agreement in the event of a delay due to unforeseeable events or conditions beyond the reasonable control of the party affected which in fact interferes with the ability of such party to discharge its obligations hereunder, including, without limitation, fires, floods, strikes, shortages of material and unusually severe weather or delays of subcontractors due to such causes. The time for the performance of the obligations shall be extended only for the period of the delay and only if the party relying on this section requests an extension in writing within twenty (20) days after the beginning of any such delay.
Form of Documents. All documents required by this Agreement to be submitted, delivered or furnished^to the City shall be in form and content satisfactory to the City.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois.
Headings. The headings of the various sections and subsections of this Agreement-have been inserted for convenience of reference only and shall not in any manner be construed as modifying, amending or affecting in any way the express terms and provisions hereof.
Limitation of Liability. No member, official or employee of the City shall be personally liable to Developer or any successor in interest in the event of any default or breach by the City or for any amount which may become due to Developer from the City or any successor in interest or on any obligation under the terms of this Agreement.
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No Merger. The terms of this Agreement shall not be merged with the Deed, and the delivery of the Deed shall not be deemed to affect or impair the terms of this Agreement.
No Waiver. No waiver by the City with respect to any specific default by the Developer shall be deemed to be a waiver of the rights of the City with respect to any other defaults of Developer, nor shall any forbearance by the City to seek a remedy for any breach or default be deemed a waiver of its rights and remedies with respect to such breach or default, nor shall the City be deemed to have waived any of its rights and remedies unless such waiver is in writing.
Severability. If any term of this Agreement or any application thereof is held invalid or unenforceable, the remainder of this Agreement shall be construed as if such invalid part were never included herein and this Agreement shall be and remain valid and enforceable to the fullest extent permitted by law.
Successors and Assigns. Except as otherwise provided in this Agreement, the terms and conditions of this Agreement shall apply to and bind the successors and assigns of the parties.
Venue and Consent to Jurisdiction. If there is a lawsuit under this Agreement, each Party agrees to submit to the jurisdiction of the courts of Cook County, the State of Illinois and the United States District Court for the Northern District of Illinois.
(Signature Page Follows)
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on or as of the date first above written.
CITY OF CHICAGO,
an Illinois municipal corporation
By:
David L. Reifman, Commissioner Department of Planning and Development
THE WILL GROUP, INCORPORATED, an Illinois corporation
By:
Name: Steve Davis Title: Chairman
THIS INSTRUMENT PREPARED BY, AND AFTER RECORDING, PLEASE RETURN TO:
Marcus Martinez, Assistant Corporation Counsel
City of Chicago, Dept. of Law, Real Estate & Land Use Div.
121 North LaSalle Street, Suite 600
Chicago, Illinois 60602
(312) 744-8412
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STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, the undersigned, a Notary Public in and for said County, in the State aforesaid, do hereby certify that David L. Reifman, the Commissioner of the Department of Planning and Development ("DPD") of the City of Chicago, an Illinois municipal corporation ("City"), and personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and, being first duly sworn by me, acknowledged that, as said Commissioner, he signed and delivered the foregoing instrument pursuant to authority given by the City as his free and voluntary act and as the free and voluntary act and deed of the City, for the uses and purposes therein set forth.
GIVEN under my notarial seal this day of , 2019.
NOTARY PUBLIC
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STATE OF ILLINOIS COUNTY OF COOK
)
) SS. )
I, ; , a Notary Public in and for said County, in the
State aforesaid, do hereby certify that , the of The Will Group,
Incorporated, an Illinois corporation ("Developer"), personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and, being first duly sworn by me, acknowledged that he signed and delivered the foregoing instrument pursuant to authority given by said Developer, as his free and voluntary act and as the free and voluntary act and deed of said Developer, for the uses and purposes therein set forth.
GIVEN under my notarial seal this day of , 2019.
NOTARY PUBLIC
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Exhibit A: Legal Description of Property
Exhibit B: Narrative Description of Project
Exhibit C: Form of Escrow
Exhibit D: [intentionally omitted]
Exhibit E: Form of Reconveyance Deed
Exhibit F: [intentionally omitted]
Exhibit G: Budget
Exhibit H: Permitted Liens
Exhibit I: Form of Legal Opinion
Exhibit J: Construction Schedule
AGREEMENT EXHIBIT A LEGAL DESCRIPTION OF PROPERTY
LOTS 97 TO 118, IN BOTH INCLUSIVE, IN MANDELL'S SUBDIVISION OF BLOCKS 5 TO 8 IN PURINGTON'S AND SCRANTON'S SUBDIVISION OF THE WEST 1/2 OF THE SOUTHWEST 1/4 OF SECTION 15, TOWNSHIP 39 NORTH, RANGE 13 EAST OF THE THIRD PRINCIPAL MERIDIAN, LYING NORTH OF BARRY POINT ROAD, IN COOK COUNTY, ILLINOIS. PARCEL 2: THE NORTH 1/2 OF THE VACATED EAST AND WEST ALLEY LYING SOUTH OF AND ADJOINING LOTS 96 TO 118, BOTH INCLUSIVE AFORESAID, IN COOK COUNTY, ILLINOIS.
LOTS 165 TO 186, BOTH INCLUSIVE, IN MANDELL'S SUBDIVISION OF BLOCKS 5 TO 8 IN PURINGTON'S AND SCRANTON'S SUBDIVISION OF THE WEST 1/2 OF THE SOUTHWEST 1/4 OF SECTION 15, TOWNSHIP 39 NORTH, RANGE 13 EAST OF THE THIRD PRINCIPAL MERIDIAN, LYING NORTH OF BARRY POINT ROAD, IN COOK COUNTY, ILLINOIS. PARCEL 2: THE SOUTH 1/2 OF THE VACATED EAST AND WEST ALLEY LYING NORTH OF AND ADJOINING LOTS 165 TO 186, BOTH INCLUSIVE IN MANDELL'S SUBDIVISION AFORESAID, IN COOK COUNTY, ILLINOIS.
PIN: 16-15-311-023-0000, 16-15-311-024-0000
Commonly known as: 825 S. Kilpatrick, Chicago, Illinois 60644
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AGREEMENT EXHIBIT B NARRATIVE DESCRIPTION OF PROJECT
A. Construction of the Manufacturing Facility:
Developer shall complete construction of the manufacturing facility, which will include the following:
TO COME
B: Operation of Manufacturing Facility:
For a period of no less than 10 years following the issuance by the City of a Certificate of Completion, the property shall be used solely for a manufacturing facility. It is anticipated that the operation of the Manufacturing Facility will create fourteen (14) full-time jobs and retention of 34 full-time jobs for a total of 48 permanent jobs. The 14 new jobs are expected to be created by the second anniversary of the issuance of the Certificate of Completion. Developer will advertise all planned hiring outreach efforts within the 24th Ward but will accept applications originating from other geographical locations.
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AGREEMENT EXHIBIT C FORM OF ESCROW AGREEMENT
JOINT ORDER ESCROW AGREEMENT TO COME
AGREEMENT EXHIBIT D [intentionally omitted]
50
AGREEMENT EXHIBIT E FORM OF RECONVEYANCE DEED (ATTACHED)
51
RECONVEYANCE/ SPECIAL WARRANTY DEED
(The Above Space For Recorder's Use Only)
THE GRANTOR, THE WILL GROUP, INCORPORATED, an Illinois corporation, whose offices are located at 5261 West Harrison, Chicago, Illinois 60644 for and in consideration of the sum of ONE AND NO/100 DOLLAR ($1.00), the receipt of which is hereby acknowledged, conveys and warrants to the City of Chicago (the "City"), a municipal corporation and home rule unit of local government in the County of Cook and State of Illinois, having its principal office at 121 North LaSalle Street, Chicago, Illinois 60602, the real estate situated in the County of Cook, in the State of Illinois, and described in Exhibit 1 attached hereto (the "Property").
Grantor acknowledges that it has executed and delivered this deed simultaneously with, and as a condition established pursuant to the terms and conditions of that certain quitclaim deed
dated from City to Grantor, and is a remedial right granted under such
quitclaim deed.
TO HAVE AND TO HOLD the premises aforesaid with all and singular, the rights, privileges, appurtenances and immunities thereto belonging or in any wise appertaining unto the said City and unto the City's successor and assigns forever, the said Grantor hereby covenanting that the premises are free and clear from any encumbrance done or suffered by Grantor; and that Grantor will warrant and defend the title to said premises unto the said City and unto City's successors and assigns forever, against the lawful claims and demands of all persons claiming by, under or through Grantor.
And the Grantor, for itself, and its successors, does covenant, promise and agree, to and with the Grantee, its successors and assigns, that it has not done or suffered to be done, anything whereby the said premises hereby granted are, or may be, in any manner encumbered or charged, except as herein recited; and that the said premises, against all persons lawfully claiming, or to claim the same, by, through or under it, it WILL WARRANT AND DEFEND.
Dated as of this day of , 2019.
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The Will Group, Incorporated an Illinois corporation
By:_
Steve Davis Its:
THIS TRANSFER IS EXEMPT UNDER THE PROVISIONS OF THE REAL ESTATE TRANSFER TAX ACT, 35 ILCS 200/31-45(b) AND -45(e); AND SECTION 3-33-060B AND -060E OF THE MUNICIPAL CODE OF CHICAGO.
This instrument prepared by, and after recording, mail deed to:
Marcus Martinez, Assistant Corporation Counsel City of Chicago Law Department
Real Estate and Land Use Division 121 North LaSalle Street, Room 600 Chicago, Illinois 60602
53
STATE OF ILLINOIS)
) ss.
COUNTY OF COOK)
I, the undersigned, a Notary Public in and for said County, in the State aforesaid, do hereby
certify that Steve Davis, personally known to me to be the of The Will Group,
Incorporated, an Illinois corporation, and personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and, being first duly sworn by me, acknowledged that he signed and delivered the foregoing instrument pursuant to authority given by said company, as his free and voluntary act and as the free and voluntary act and deed of said company, for the uses and purposes therein set forth.
Given under my hand and notarial seal this day of , 2019.
Notary Public
(sub) Exhibit 1 to Reconveyance/Special Warranty Deed Legal Description
LOTS 97 TO 118, IN BOTH INCLUSIVE, IN MANDELL'S SUBDIVISION OF BLOCKS 5 TO 8 IN PURINGTON'S AND SCRANTON'S SUBDIVISION OF THE WEST 1/2 OF THE SOUTHWEST 1/4 OF SECTION 15, TOWNSHIP 39 NORTH, RANGE 13 EAST OF THE THIRD PRINCIPAL MERIDIAN, LYING NORTH OF BARRY POINT ROAD, IN COOK COUNTY, ILLINOIS. PARCEL 2: THE NORTH 1/2 OF THE VACATED EAST AND WEST ALLEY LYING SOUTH OF AND ADJOINING LOTS 96 TO 118, BOTH INCLUSIVE AFORESAID, IN COOK COUNTY, ILLINOIS.
LOTS 165 TO 186, BOTH INCLUSIVE, IN MANDELL'S SUBDIVISION OF BLOCKS 5 TO 8 IN PURINGTON'S AND SCRANTON'S SUBDIVISION OF THE WEST 1/2 OF THE SOUTHWEST 1/4 OF SECTION 15, TOWNSHIP 39 NORTH, RANGE 13 EAST OF THE THIRD PRINCIPAL MERIDIAN, LYING NORTH OF BARRY POINT ROAD, IN COOK COUNTY, ILLINOIS. PARCEL 2: THE SOUTH 1/2 OF THE VACATED EAST AND WEST ALLEY LYING NORTH OF AND ADJOINING LOTS 165 TO 186, BOTH INCLUSIVE IN MANDELL'S SUBDIVISION AFORESAID, IN COOK COUNTY, ILLINOIS.
PIN(s): 16-15-311-023-0000 16-15-311-024-0000
Commonly known as: 825 S. Kilpatrick, Chicago, Illinois 60644
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STATEMENT BY GRANTOR AND GRANTEE
The grantor or his agent affirms that, to the best of his knowledge, the name of the grantee shown on the deed or assignment of beneficial interest in a land trust is either a natural person, an Illinois corporation or foreign corporation authorized to do business or acquire and hold title to real estate in Illinois, a partnership authorized to do business or acquire and hold title to real estate in Illinois, or other entity recognized as a person and authorized to do business or acquire title to real estate under the laws of the State of Illinois.
Grantor: The Will Group, Incorporated an Illinois corporation
Dated , 2019 Signature:
Name:
Its:
Subscribed and sworn to before me
this day of , 2019
Notary Public
The grantee or his agent affirms that the name of the grantee shown on the deed or assignment of beneficial interest in a land trust is either a natural person, an Illinois corporation or foreign corporation authorized to do business or acquire and hold title to real estate in Illinois, a partnership authorized to do business or acquire and hold title to real estate in Illinois, or other entity recognized as a person authorized to do business or acquire and hold title to real estate under the laws of the State of Illinois.
City of Chicago,
by one of its attorneys
Dated , 2019
Signature
Marcus Martinez
Assistant Corporation Counsel
Subscribed and sworn to before me
56
this day of
Notary Public
Note: Any person who knowingly submits a false statement concerning the identity of a grantee shall be guilty of a Class C misdemeanor for the first offense and of a Class A misdemeanor for subsequent offenses.
(Attach to deed or AB1 to be recorded in Cook County, Illinois if exempt under provisions of Section 4 of the Illinois Real Estate Transfer Tax Act)
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AGREEMENT EXHIBIT F [intentionally omitted]
58
AGREEMENT EXHIBIT G BUDGET (ATTACHED)
59
AGREEMENT EXHIBIT H PERMITTED LIENS
1. The lien of general real estate taxes and special assessments not yet due and payable.
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AGREEMENT EXHIBIT I FORM OF LEGAL OPINION (ATTACHED) ,
61
LEGAL OPINION
, 20_
City of Chicago
Department of Planning and Development 121 North LaSalle Street, Room 1000 Chicago, Illinois 60602
Re: Organization Name
Organization Address Line 1 Organization Address Line 2
Ladies and Gentlemen:
I have acted as legal counsel for , a [organization structure]
(the "Developer"), in connection with the development of the real property located at
, Chicago, Illinois 606 , as legally described on Exhibit 1
attached hereto (the "Property"), pursuant to the terms of that certain Agreement for the Sale and Redevelopment of Land and Joinder of Certain Property to this "Agreement dated as of
, by and between the City of Chicago (the "City") and the Developer (the
"Redevelopment Agreement"). I am rendering this opinion at the request of the Developer and acknowledge that the City intends to rely upon this opinion letter.
As a basis for the opinions set forth herein, I have examined:
an executed copy of the Redevelopment Agreement;
the articles of [incorporation/organization], including all amendments thereto, of the
Developer, and the articles of organization of the Developer, as furnished and certified by the Secretary of State of the State of Illinois;
the by-laws of , as certified by the Secretary of the Developer as
of , 20_; ,
the Certificate of Good Standing dated , 20 , issued by the Office
of the Secretary of State of the State of Illinois, as to the good standing of the Developer;
resolutions authorizing the Developer to enter into the Redevelopment Agreement
and to consummate the transactions contemplated thereby; and
the commitment for an owner's policy of title insurance, Order No. , dated
, 20 , (the "Title Commitment"), issued by
Title Company, regarding the Property.
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In my capacity as legal counsel, I have also examined such other documents or instruments as I have deemed relevant for the purposes of rendering the opinions hereinafter set forth.
Based upon the foregoing, it is my opinion that:
The Developer is a [organizational structure], duly organized, validly existing and in good standing under the laws of the State of Illinois, has made all filings required by the laws of the State of Illinois regarding its formation and continuing existence, and has all requisite authority to carry on its business as described in the by-laws of the Developer and to execute and deliver, and to consummate the transactions contemplated by, the Redevelopment Agreement.
Under the by-laws, the President and Secretary of the Developer each has requisite power and authority to execute and deliver the Redevelopment Agreement on behalf of the Developer and all other documents required to be executed by the Developer in connection with the Redevelopment Agreement and to perform its obligations thereunder.
The Redevelopment Agreement has been executed and delivered on behalf of
the Developer by the and constitutes a legal, valid and binding
obligation of the Developer, enforceable against the Developer in accordance with its terms, except to the extent that enforcement of any such terms may be limited by: (a) applicable bankruptcy, reorganization, debt arrangement, insolvency or other similar laws generally affecting creditors' rights; or (b) judicial and public policy limitations upon the enforcement of certain remedies including those which a court of equity may in its discretion decline to enforce. 1
There is no action, suit or proceeding at law or in equity pending nor to our knowledge threatened against or affecting the Developer or the Property before any court or before any governmental or administrative agency which if adversely determined could materially and adversely affect the Developer's ability to perform under the Redevelopment Agreement or its business or properties or financial or other conditions.
The execution and delivery of the Redevelopment Agreement and the consummation of the transactions contemplated thereby will not conflict with, constitute an event or default under or result in a violation or breach of:
the provisions of the Developer's articles of [incorporation/organization], by-laws, or any resolutions in effect;
the provisions of any agreement or other instrument to which the Developer is a party or by which the Developer or its properties or assets are bound; or
63
(c) any judgment, order, writ, injunction, decree or rule of any court, or any determination or award of any arbitrator, or any law, statute, ordinance, rule or regulation binding on the Developer.
Very truly yours,
By: Its:
Attachment: (sub) Exhibit 1 (legal description, PIN and address)
64
(sub) Exhibit 1 to Legal Opinion LEGAL DESCRIPTION OF PROPERTY (TO COME)
AGREEMENT EXHIBIT J CONSTRUCTION SCHEDULE (ATTACHED)
66
CITY OF CHICAGO ECONOMIC DISCLOSURE STATEMENT AND AFFIDAVIT
SECTION I - GENERAL INFORMATION
A. Legal name of the Disclosing Party submitting this EDS. Include d/b/a/ if applicable: The Will Group, Incorporated, an Illinois corporation
Check ONE of the following three boxes:
Indicate whether the Disclosing Party submitting this EDS is:
fXJ the Applicant
OR
[ ] a legal entity currently holding, or anticipated to hold within six months after City action on
the contract, transaction or other undertaking to which this EDS pertains (referred to below as the
"Matter"), a direct or indirect interest in excess of 7.5% in the Applicant. State the Applicant's legal
name: -
OR
[ ] a legal entity with a direct or indirect right of control of the Applicant (see Section 11(B)(1)) State the legal name of the entity in which the Disclosing Party holds a right of control:
B. Business address of the Disclosing Party: 5261 W. Harrison Street
Chicago, IL
Telephone: 312-972-3814 Fax: Email: jadavis@thewillgroup.com
Name of contact person: Jessica Ashley Garmon
Federal Employer Identification No. (if you have one):
Brief description of the Matter to which this EDS pertains. (Include project number and location of property, if applicable):
purchase of City-owned land located at 825 S. Kilpatrick Avenue
Which City agency or department is requesting this EDS? DPD
If the Matter is a contract being handled by the City's Department of Procurement Services, please complete the following:
Specification # and Contract # J
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SECTION II - DISCLOSURE OF OWNERSHIP INTERESTS
A. NATURE OF THE DISCLOSING PARTY
1. Indicate the nature of the Disclosing Party:
[ ] Person [ ] Limited liability company
[ ] Publicly registered business corporation [ ] Limited liability partnership
|x ] Privately held business corporation [ ] Joint venture
[ ] Sole proprietorship [ ] Not-for-profit corporation
[ ] General partnership (Is the not-for-profit corporation also a 501 (c)(3))?
[ ] Limited partnership 1 [ ] Yes [ ] No
[ ] Trust [ ] Other (please specify)
For legal entities, the state (or foreign country) of incorporation or organization, if applicable: Illinois
For legal entities not organized in the State of Illinois: Has the organization registered to do business in the State of Illinois as a foreign entity?
[ ] Yes [ ] No [ ] Organized in Illinois
B. IF THE DISCLOSING PARTY IS A LEGAL ENTITY:
1. List below the full names and titles, if applicable, of: (i) all executive officers and all directors of the entity; (ii) for not-for-profit corporations, all members, if any, which are legal entities (if there are no such members, write "no members which are legal entities"); (iii) for trusts, estates or other similar entities, the trustee, executor, administrator, or similarly situated party; (iv) for general or limited partnerships, limited liability companies, limited liability partnerships or joint ventures, each general partner, managing member, manager or any other person or legal entity that directly or indirectly controls the day-to-day management of the Applicant.
NOTE: Each legal entity listed below must submit an EDS on its own behalf.
Name Title
Stephen L. Davis - President & Chairman
Jessica Ashley Gannon - COO & General Counsel Joshua Davis - Vice President
2. Please provide the following information concerning each person or legal entity having a direct or indirect, current or prospective (i.e. within 6 months after City action) beneficial interest (including ownership) in excess of 7.5% of the Applicant. Examples of such an interest include shares in a corporation, partnership interest in a partnership or joint venture, interest of a member or manager in a
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limited liability company, or interest of a beneficiary of a trust, estate or other similar entity. If none, state "None."
NOTE: Each legal entity listed below may be required to submit an EDS on its own behalf.
Name Business Address Percentage.Intent in the Applicant
Stephen L. Davis - - - 5261 W. Harrison Street Chicago, IL 60644 j
SECTION III - INCOME OR COMPENSATION TO, OR OWNERSHIP BY, CITY ELECTED OFFICIALS
Has the Disclosing Party provided any income or compensation to any City elected official during the
12-month period preceding the date of this EDS? [ ] Yes [x] No
Does the Disclosing Party reasonably expect to provide any income or compensation to any City
elected official during the 12-month period following the date of this EDS? [ ] Yes [x] No
If "yes" to either of the above, please identify below the name(s) of such City elected official(s) and describe such income or compensation:
Does any City elected official or, to the best of the Disclosing Party's knowledge after reasonable inquiry, any City elected official's spouse or domestic partner, have a financial interest (as defined in Chapter 2-156 of the Municipal Code of Chicago ("MCC")) in the Disclosing Party? [ ]Yes ' [x]No
If "yes," please identify below the name(s) of such City elected official(s) and/or spouse(s)/domestic partner(s) and describe the financial interest(s). i
SECTION IV -- DISCLOSURE OF SUBCONTRACTORS AND OTHER RETAINED PARTIES
The Disclosing Party must disclose the name and business address of each subcontractor, attorney, lobbyist (as defined in MCC Chapter 2-156), accountant, consultant and any other person or entity whom the Disclosing Party has retained or expects to retain in connection with the Matter, as well as the nature of the relationship, and the total amount of the fees paid or estimated to be paid. The Disclosing Party is not required to disclose employees who are paid solely through the Disclosing Party's regular payroll. If the Disclosing Party is uncertain whether a disclosure is required under this Section, the Disclosing Party must either ask the City whether disclosure is required or make the disclosure.
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Name (indicate whether Business Relationship to Disclosing Party Fees (indicate whether
retained or anticipated Address (subcontractor, attorney, paid or estimated.) NOTE:
to be retained) lobbyist, etc.) "hourly rate" or "t.b.d." is
not an acceptable response.
Carol Nissen - PG, PE, Tetra Tech - Subcontractor - Environmental - Phase 1 - $5,000,00 - retained and estimated
Chad McRoberts - Catalyst Development and GC - Joint Venture- Construction - retained and paid $5,000 retainer
(Add sheets if necessary)
[ ] Check here if the Disclosing Party has not retained, nor expects to retain, any such persons or entities. SECTION V ~ CERTIFICATIONS
COURT-ORDERED CHILD SUPPORT COMPLIANCE
Under MCC Section 2-92-415, substantial owners of business entities that contract with the City must remain in compliance with their child support obligations throughout the contract's term.
Has any person who directly or indirectly owns 10% or more of the Disclosing Party been declared in arrearage on any child support obligations by any Illinois court of competent jurisdiction?
[ ] Yes [x] No [ ] No person directly or indirectly owns 10% or more of the Disclosing Party.
If "Yes," has the person entered into a court-approved agreement for payment of all support owed and is the person in compliance with that agreement?
[ ] Yes [ ] No
FURTHER CERTIFICATIONS
[This paragraph 1 applies only if the Matter is a contract being handled by the City's Department of Procurement Services.] In the 5-year period preceding the date of this EDS, neither the Disclosing Party nor any Affiliated Entity [see definition in (5) below] has engaged, in connection with the performance of any public contract, the services of an integrity monitor, independent private sector inspector general, or integrity compliance consultant (i.e., an individual or entity with legal, auditing, investigative, or other similar skills, designated by a public agency to help the agency monitor the activity of specified agency vendors as well as help the vendors reform their business practices so they can be considered for agency contracts in the future, or continue with a contract in progress).
The Disclosing Party and its Affiliated Entities are not delinquent in the payment of any fine, fee, tax or other source of indebtedness owed to the City of Chicago, including, but not limited to, water and sewer charges, license fees, parking tickets, property taxes and sales taxes, nor is the Disclosing Party delinquent in the payment of any tax administered by the Illinois Department of Revenue.
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The Disclosing Party and, if the Disclosing Party is a legal entity, all of those persons or entities identified in Section 11(B)(1) of this EDS:
are not presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from any transactions by any federal, state or local unit of government;
have not, during the 5 years before the date of this EDS, been convicted of a criminal offense, adjudged guilty, or had a civil judgment rendered against them in connection with: obtaining, attempting to obtain, or performing a public (federal, state or local) transaction or contract under a public transaction; a violation of federal or state antitrust statutes; fraud; embezzlement; theft; forgery; bribery; falsification or destruction of records; making false statements; or receiving stolen property;
are not presently indicted for, or criminally or civilly charged by, a governmental entity (federal, state or local) with committing any of the offenses set forth in subparagraph (b) above;
have not, during the 5 years before the date of this EDS, had one or more public transactions (federal, state or local) terminated for cause or default;, and
have not, during the 5 years before the date of this EDS, been convicted, adjudged guilty, or found liable in a civil proceeding, or in any criminal or civil action, including actions concerning environmental violations, instituted by the City or by the federal government, any state, or any other unit of local government.
The Disclosing Party understands and shall comply with the applicable requirements of MCC Chapters 2-56 (Inspector General) and 2-156 (Governmental Ethics).
Certifications (5), (6) and (7) concern:
the Disclosing Party;
any "Contractor" (meaning any contractor or subcontractor used by the Disclosing Party in connection with the Matter, including but not limited to all persons or legal entities disclosed under Section IV, "Disclosure of Subcontractors and Other Retained Parties");
any "Affiliated Entity" (meaning a person or entity that, directly or indirectly: controls the Disclosing Party, is controlled by the Disclosing Party, or is, with the Disclosing Party, under common control of another person or entity). Indicia of control include, without limitation: interlocking management or ownership; identity of interests among family members, shared facilities and equipment; common use of employees; or organization of a business entity following the ineligibility of a business entity to do business with federal or state or local government, including the City, using substantially the same management, ownership, or principals as the ineligible entity. With respect to Contractors, the term Affiliated Entity means a person or entity that directly or indirectly controls the Contractor, is controlled by it, or, with the Contractor, is under common control of another person or entity;
any responsible official of the Disclosing Party, any Contractor or any Affiliated Entity or any other official, agent or employee of the Disclosing Party, any Contractor or any Affiliated Entity, acting pursuant to the direction or authorization of a responsible official of the Disclosing Party, any Contractor or any Affiliated Entity (collectively "Agents").
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Neither the Disclosing Party, nor any Contractor, nor any Affiliated Entity of either the Disclosing Party or any Contractor, nor any Agents have, during the 5 years before the date of this EDS, or, with respect to a Contractor, an Affiliated Entity, or an Affiliated Entity of a Contractor during the 5 years before the date of such Contractor's or Affiliated Entity's contract or engagement in connection with the Matter:
bribed or attempted to bribe, or been convicted or adjudged guilty of bribery or attempting to bribe, a public officer or employee of the City, the State of Illinois, or any agency of the federal government or of any state or local government in the United States of America, in that officer's or employee's official capacity;
agreed or colluded with other bidders or prospective bidders, or been a party to any such agreement, or been convicted or adjudged guilty of agreement or collusion among bidders or prospective bidders, in restraint of freedom of competition by agreement to bid a fixed price or otherwise; or
made an admission of such conduct described in subparagraph (a) or (b) above that is a matter of record, but have not been prosecuted for such conduct; or
violated the provisions referenced in MCC Subsection 2-92-320(a)(4)(Contracts Requiring a Base Wage); (a)(5)(Debarment Regulations); or (a)(6)(Minimum Wage Ordinance).
Neither the Disclosing Party, nor any Affiliated Entity or Contractor, or any of their employees, officials, agents or partners, is barred from contracting with any unit of state or local government as a result of engaging in or being convicted of (1) bid-rigging in violation of 720 ILCS 5/33E-3; (2) bid-rotating in violation of 720 ILCS 5/33E-4; or (3) any similar offense of any state or of the United States of America that contains the same elements as the offense of bid-rigging or bid-rotating.
Neither the Disclosing Party nor any Affiliated Entity is listed on a Sanctions List maintained by the United States Department of Commerce, State, or Treasury, or any successor federal agency.
[FOR APPLICANT ONLY] (i) Neither the Applicant nor any "controlling person" [see MCC Chapter 1-23, Article I for applicability and defined terms] of the Applicant is currently indicted or charged with, or has admitted guilt of, or has ever been convicted of, or placed under supervision for, any criminal offense involving actual, attempted, or conspiracy to commit bribery, theft, fraud, forgery, perjury, dishonesty or deceit against an officer or employee of the City or any "sister agency"; and (ii) the Applicant understands and acknowledges that compliance with Article I is a continuing requirement for doing business with the City. NOTE: If MCC Chapter 1-23, Article I applies to the Applicant, that Article's permanent compliance timeframe supersedes 5-year compliance timeframes in this Section V.
[FOR APPLICANT ONLY] The Applicant and its Affiliated Entities will not use, nor permit their subcontractors to use, any facility listed as having an active exclusion by the U.S. EPA on the federal System for Award Management ("SAM").
[FOR APPLICANT ONLY] The Applicant will obtain from any contractors/subcontractors hired or to be hired in connection with the Matter certifications equal in form and substance to those in Certifications (2) and (9) above and will not, without the prior written consent of the City, use any such
Ver.2018-1 Page 6 of 15
contractor/subcontractor that does not provide such certifications or that the Applicant has reason to believe has not provided or cannot provide truthful certifications.
11. If the Disclosing Party is unable to certify to any of the above statements in this Part B (Further Certifications), the Disclosing Party must explain below: None
If the letters "NA," the word "None," or no response appears on the lines above, it will be conclusively presumed that the Disclosing Party certified to the above statements.
12. To the best of the Disclosing Party's knowledge after reasonable inquiry, the following is a complete list of all current employees of the Disclosing Party who were, at any time during the 12-month period preceding the date of this EDS, an employee, or elected or appointed official, of the City of Chicago (if none, indicate with "N/A" or "none"). None
13. To the best of the Disclosing Party's knowledge after reasonable inquiry, the following is a complete list of all gifts that the Disclosing Party has given or caused to be given, at any time during the 12-month period preceding the execution date of this EDS, to an employee, or elected or appointed official, of the City of Chicago. For purposes of this statement, a "gift" does not include: (i) anything made generally available to City employees or to the general public, or (ii) food or drink provided in the course of official City business and having a retail value of less than $25 per recipient, or (iii) a political contribution otherwise duly reported as required by law (if none, indicate with "N/A" or "none"). As to any gift listed below, please also list the name of the City recipient.
None
C. CERTIFICATION OF STATUS AS FINANCIAL INSTITUTION
The Disclosing Party certifies that the Disclosing Party (check one)
[ ] is [x] is not
a "financial institution" as defined in MCC Section 2-32-455(b).
If the Disclosing Party IS a financial institution, then the Disclosing Party pledges:
"We are not and will not become a predatory lender as defined in MCC Chapter 2-32. We further pledge that none of our affiliates is, and none of them will become, a predatory lender as defined in MCC Chapter 2-32. We understand that becoming a predatory lender or becoming an affiliate of a predatory lender may result in the loss of the privilege of doing business with the City."
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If the Disclosing Party is unable to make this pledge because it or any of its affiliates (as defined in MCC Section 2-32-455(b)) is a predatory lender within the meaning of MCC Chapter 2-32, explain here (attach additional pages if necessary):
If the letters "NA," the word "None," or no response appears on the lines above, it will be conclusively presumed that the Disclosing Party certified to the above statements.
D. CERTIFICATION REGARDING FINANCIAL INTEREST IN CITY BUSINESS
Any words or terms defined in MCC Chapter 2-156 have the same meanings if used in this Part D.
In accordance with MCC Section 2-156-110: To the best of the Disclosing Party's knowledge after reasonable inquiry, does any official or employee of the City have a financial interest in his or her own name or in the name of any other person or entity in the Matter?
[ ] Yes [x] No
NOTE: If you checked "Yes" to Item D(l), proceed to Items D(2) and D(3). If you checked "No" to Item D(l), skip Items D(2) and D(3) and proceed to Part E.
Unless sold pursuant to a process of competitive bidding, or otherwise permitted, no City elected official or employee shall have a financial interest in his or her own name or in the name of any other person or entity in the purchase of any property that (i) belongs to the City, or (ii) is sold for taxes or assessments, or (iii) is sold by virtue of legal process at the suit of the City (collectively, "City Property Sale"). Compensation for property taken pursuant to the City's eminent domain power does not constitute a financial interest within the meaning of this Part D.
Does the Matter involve a City Property Sale?
[ ] Yes [x] No
If you checked "Yes" to Item D(l), provide the names and business addresses of the City officials or employees having such financial interest and identify the nature of the financial interest:
Name Business Address Nature of Financial Interest
4. The Disclosing Party further certifies that no prohibited financial interest in the Matter will be acquired by any City official or employee.
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E. CERTIFICATION REGARDING SLAVERY ERA BUSINESS
Please check either (1) or (2) below. If the Disclosing Party checks (2), the Disclosing Party must disclose below or in an attachment to this EDS all information required by (2). Failure to comply with these disclosure requirements may make any contract entered into with the City in connection with the Matter voidable by the City.
1. The Disclosing Party verifies that the Disclosing Party has searched any and all records of
the Disclosing Party and any and all predecessor entities regarding records of investments or profits from slavery or slaveholder insurance policies during the slavery era (including insurance policies issued to slaveholders that provided coverage for damage to or injury or death of their slaves), and the Disclosing Party has found no such records.
2. The Disclosing Party verifies that, as a result of conducting the search in step (1) above, the
Disclosing Party has found records of investments or profits from slavery or slaveholder insurance policies. The Disclosing Party verifies that the following constitutes full disclosure of all such records, including the names of any and all slaves or slaveholders described in those records:
SECTION VI - CERTIFICATIONS FOR FEDERALLY FUNDED MATTERS
NOTE: If the Matter is federally funded, complete this Section VI. If the Matter is not federally funded, proceed to Section VII. For purposes of this Section VI, tax credits allocated by the City and proceeds of debt obligations of the City are not federal funding.
A. CERTIFICATION REGARDING LOBBYING
1. List below the names of all persons or entities registered under the federal Lobbying Disclosure Act of 1995, as amended, who have made lobbying contacts on behalf of the Disclosing Party with respect to the Matter: (Add sheets if necessary): None
(If no explanation appears or begins on the lines above, or if the letters "NA" or if the word "None" appear, it will be conclusively presumed that the Disclosing Party means that NO persons or entities registered under the Lobbying Disclosure Act of 1995, as amended, have made lobbying contacts on behalf of the Disclosing Party with respect to the Matter.)
2. The Disclosing Party has not spent and will not expend any federally appropriated funds to pay
any person or entity listed in paragraph A(l) above for his or her lobbying activities or to pay any
person or entity to influence or attempt to influence an officer or employee of any agency, as defined
by applicable federal law, a member of Congress, an officer or employee of Congress, or an employee
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of a member of Congress, in connection with the award of any federally funded contract, making any federally funded grant or loan, entering into any cooperative agreement, or to extend, continue, renew, amend, or modify any federally funded contract, grant, loan, or cooperative agreement.
The Disclosing Party will submit an updated certification at the end of each calendar quarter in which there occurs any event that materially affects the accuracy of the statements and information set forth in paragraphs A(l) and A(2) above.
The Disclosing Party certifies that either: (i) it is not an organization described in section 501(c)(4) of the Internal Revenue Code of 1986; or (ii) it is an organization described in section 501(c)(4) of the Internal Revenue Code of 1986 but has not engaged and will not engage in "Lobbying Activities," as that term is defined in the Lobbying Disclosure Act of 1995, as amended.
If the Disclosing Party is the Applicant, the Disclosing Party must obtain certifications equal in form and substance to paragraphs A(l) through A(4) above from all subcontractors before it awards any subcontract and the Disclosing Party must maintain all such subcontractors' certifications for the duration of the Matter and must make such certifications promptly available to the City upon request.
B. CERTIFICATION REGARDING EQUAL EMPLOYMENT OPPORTUNITY
If the Matter is federally funded, federal regulations require the Applicant and all proposed subcontractors to submit the following information with their bids or in writing at the outset of negotiations.
Is the Disclosing Party the Applicant?
[ ] Yes [ ] No
If "Yes," answer the three questions below:
Have you developed and do you have on file affirmative action programs pursuant to applicable federal regulations? (See 41 CFR Part 60-2.)
[ ] Yes [ ] No
Have you filed with the Joint Reporting Committee, the Director of the Office of Federal Contract Compliance Programs, or the Equal Employment Opportunity Commission all reports due under the applicable filing requirements?
[ ] Yes [ ] No [ ] Reports not required
Have you participated in any previous contracts or subcontracts subject to the equal opportunity clause?
[ ] Yes [ ] No
If you checked "No" to question (1) or (2) above, please provide an explanation:
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SECTION VII - FURTHER ACKNOWLEDGMENTS AND CERTIFICATION
The Disclosing Party understands and agrees that:
The certifications, disclosures, and acknowledgments contained in this EDS will become part of any contract or other agreement between the Applicant and the City in connection with the Matter, whether procurement, City assistance, or other City action, and are material inducements to the City's execution of any contract or taking other action with respect to the Matter. The Disclosing Party understands that it must comply with all statutes, ordinances, and regulations on which this EDS is based.
The City's Governmental Ethics Ordinance, MCC Chapter 2-156, imposes certain duties and obligations on persons or entities seeking City contracts, work, business, or transactions. The full text of this ordinance and a training program is available on line at www?cityofchicago.org/Eth ics, and may also be obtained from the City's Board of Ethics, 740 N. Sedgwick St., Suite 500, Chicago, IL 60610, (312) 744-9660. The Disclosing Party must comply fully with this ordinance.
If the City determines that any information provided in this EDS is false, incomplete or inaccurate, any contract or other agreement in connection with which it is submitted may be rescinded or be void or voidable, and the City may pursue any remedies under the contract or agreement (if not rescinded or void), at law, or in equity, including terminating the Disclosing Party's participation in the Matter and/or declining to allow the Disclosing Party to participate in other City transactions. Remedies at law for a false statement of material fact may include incarceration and an award to the City of treble damages.
It is the City's policy to make this document available to the public on its Internet site and/or upon request. Some or all of the information provided in, and appended to, this EDS may be made publicly available on the Internet, in response to a Freedom of Information Act request, or otherwise. By completing and signing this EDS, the Disclosing Party waives and releases any possible rights or claims which it may have against the City in connection with the public release of information contained in this EDS and also authorizes the City to verify the accuracy of any information submitted in this EDS.
The information provided in this EDS must be kept current. In the event of changes, the Disclosing Party must supplement this EDS up to the time the City takes action on the Matter. If the Matter is a contract being handled by the City's Department of Procurement Services, the Disclosing Party must update this EDS as the contract requires. NOTE: With respect to Matters subject to MCC Chapter 1-23, Article I (imposing PERMANENT INELIGIBILITY for certain specified offenses), the information provided herein regarding eligibility must be kept current for a longer period, as required by MCC Chapter 1-23 and Section 2-154-020.
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CERTIFICATION
Under penalty of perjury, the person signing below: (1) warrants that he/she is authorized to execute this EDS, and all applicable Appendices, on behalf of the Disclosing Party, and (2) warrants that all certifications and statements contained in this EDS, and all applicable Appendices, are true, accurate and complete as of the date furnished to the City.
Ihr Will C?WMj?s /fit.
By:
(Print or jype-wuMHroaLname of Disclosing Party)
(Print or type name of person signing)
Chairman * prsf/aCttz*-
(Print or type title of person signing)
Signed and sworn to before me on (date)
Notary Public
Commission expires:
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CITY OF CHICAGO ECONOMIC DISCLOSURE STATEMENT AND AFFIDAVIT
APPENDIX A
i
FAMILIAL RELATIONSHIPS WITH ELECTED CITY OFFICIALS AND DEPARTMENT HEADS
This Appendix is to be completed only by (a) the Applicant, and (b) any legal entity which has a direct ownership interest in the Applicant exceeding 7.5%. It is not to be completed by any legal entity which has only an indirect ownership interest in the Applicant.
Under MCC Section 2-154-015, the Disclosing Party must disclose whether such Disclosing Party or any "Applicable Party" or any Spouse or Domestic Partner thereof currently has a "familial relationship" with any elected city official or department head. A "familial relationship" exists if, as of the date this EDS is signed, the Disclosing Party or any "Applicable Party" or any Spouse or Domestic Partner thereof is related to the mayor, any alderman, the city clerk, the city treasurer or any city department head as spouse or domestic partner or as any of the following, whether by blood or adoption: parent, child, brother or sister, aunt or uncle, niece or nephew, grandparent, grandchild, father-in-law, mother-in-law, son-in-law, daughter-in-law, stepfather or stepmother, stepson or stepdaughter, stepbrother or stepsister or half-brother or half-sister.
"Applicable Party" means (1) all executive officers of the Disclosing Party listed in Section II.B.l.a., if the Disclosing Party is a corporation; all partners of the Disclosing Party, if the Disclosing Party is a general partnership; all general partners and limited partners of the Disclosing Party, if the Disclosing Party is a limited partnership; all managers, managing members and members of the Disclosing Party, if the Disclosing Party is a limited liability company; (2) all principal officers of the Disclosing Party; and (3) any person having more than a 7.5% ownership interest in the Disclosing Party. "Principal officers" means the president, chief operating officer, executive director, chief financial officer, treasurer or secretary of a legal entity or any person exercising similar authority.
Does the Disclosing Party or any "Applicable Party" or any Spouse or Domestic Partner thereof currently have a "familial relationship" with an elected city official or department head?
[ ] Yes f< ] No
If yes, please identify below (1) the name and title of such person, (2) the name of the legal entity to which such person is connected; (3) the name and title of the elected city official or department head to whom such person has a familial relationship, and (4) the precise nature of such familial relationship.
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CITY OF CHICAGO ECONOMIC DISCLOSURE STATEMENT AND AFFIDAVIT
APPENDIX B
BUILDING CODE SCOFFLAW/PROBLEM LANDLORD CERTIFICATION
This Appendix is to be completed only by (a) the Applicant, and (b) any legal entity which has a direct ownership interest in the Applicant exceeding 7.5% (an "Owner"). It is not to be completed by any legal entity which has only an indirect ownership interest in the Applicant.
Pursuant to MCC Section 2-154-010, is the Applicant or any Owner identified as a building code scofflaw or problem landlord pursuant to MCC Section 2-92-416?
[ ]Yes [x]No
If the Applicant is a legal entity publicly traded on any exchange, is any officer or director of the Applicant identified as a building code scofflaw or problem landlord pursuant to MCC Section 2-92-416?
[ ] Yes [ ] No [x] The Applicant is not publicly traded on any exchange.
If yes to (1) or (2) above, please identify below the name of each person or legal entity identified as a building code scofflaw or problem landlord and the address of each building or buildings to which the pertinent code violations apply.
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CITY OF CHICAGO ECONOMIC DISCLOSURE STATEMENT AND AFFIDAVIT
APPENDIX C
PROHIBITION ON WAGE & SALARY HISTORY SCREENING - CERTIFICATION
This Appendix is to be completed only by an Applicant that is completing this EDS as a "contractor" as defined in MCC Section 2-92-385. That section, which should be consulted (www.amlegal.com ), generally covers a party to any agreement pursuant to which they: (i) receive City of Chicago funds in consideration for services, work or goods provided (including for legal or other professional services), or (ii) pay the City money for a license, grant or concession allowing them to conduct a business on City premises.
On behalf of an Applicant that is a contractor pursuant to MCC Section 2-92-385,1 hereby certify that the Applicant is in compliance with MCC Section 2-92-385(b)(l) and (2), which prohibit: (i) screening job applicants based on their wage or salary history, or (ii) seeking job applicants' wage or salary history from current or former employers. I also certify that the Applicant has adopted a policy that includes those prohibitions.
[X] Yes [ ]No
[ ] N/A -1 am not an Applicant that is a "contractor" as defined in MCC Section 2-92-385. This certification shall serve as the affidavit required by MCC Section 2-92-385(c)(l). If you checked "no" to the above, please explain.
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