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R-1149 - 01/24/2012 - AGREEMENT - Resolutions Supporting DocumentsPrEM 10.13.0 AGENDA ITEM Regular Board of Trustees Meeting of January 24, 2012 SUBJECT: HUB Group Development Agreement FROM: David Niemeyer, Village Managere BUDGET SOURCE/BUDGET IMPACT: N/A RECOMMENDATION: Motion to approve Resolution 2012- AG -EXI -R -1149 a resolution approving and authorizing the execution of an Economic Incentive Agreement between the Village of Oak Brook and the HUB Group, Inc. Background/History: As you know, the Village and the Chamber have been working with the HUB Group for a number of months in their search for a new headquarters building. The HUB Group is a leading company in intermodal transportation and shipping and is currently located in Downers Grove. They are looking at bringing at least 350 employees to its new building. President Lalmalani, Trustee Zannis, Oak Brook businesses representatives and staff initially met with the HUB Group several months ago, and the discussions have continued with the HUB Group for several months. They have been looking at properties in multiple cities and states but it appears that their top choice is Oak Brook. The HUB Group is in negotiations with the property owner to demolish the Reed Office building at 2000 Clearwater Drive and construct a new 120,000 square foot office building on the site; A few months ago, the Board approved a resolution offering them two incentives: • A 50% reduction in permit fees which would normally be around $100,000 so the value of the incentive is approximately $50,000. • Reimbursement of up to 50% of the public infrastructure costs up to a maximum of $300,000 (or a maximum $150,000 infrastructure reimbursement). Last saved by DEFAULT 1:\Agenda Items\AG -Hub Develop Agmt (4) 1- 24- 12.doc As part of this agreement, the HUB Group agrees to occupy their headquarters building for at least 5 years and reimburse the village for legal expenses in preparing this agreement. In addition to approval of the development agreement, the Village will also need to rezone the property from ORA -1 to 0-4. This is scheduled to go to the Plan Commission and ZBA shortly and to the Village Board in March. The CEO of the HUB Group will be in attendance on Tuesday to discuss their plans and answer any questions that the Board has about their plans. Recommendation: Motion to approve Resolution R -1149 approving and authorizing , an economic incentive agreement with the HUB Group. Last saved by DEFAULT J:\Agenda Items\AG -Hub Develop Agmt (4) 1- 24- 12.doc Vitlage of Oak Brook 1200 Oak Brook Road Oak Brook, IL 60523 -2255 Website v ww.oak- brook.org Administration 630.368.5000 FAX 630.368.5045 Community Development 630.368.5101 FAX 630.368.5128 Engineering Department 630.368.5130 FAX 630.368.5128 Fire Department 630.368.5200 FAX 630.368.5251 Police Department 630.368.8700 FAX 630.368.8739 Public Works Department 630.368.5270 FAX 630.368.5295 Oak Brook Public Library 600 Oak Brook Road Oak Brook, IL 60523 -2200 630.368.7700 FAX 630368.7704 Oak Bro_ ok Snorts CCore Bath & Tennis Club 700 Oak Brook Road Oak Brook, IL 60523 -4600 630.368.6420 FAX 630.368.6439 Golf Club 2606 York Road Oak Brook, IL 605234602 630.368 . 6400 FAX 630.368.6419 February 3, 2012 Mr. Andrew P. Scott Dykema Gossett PLLC 10 South Wacker Drive, Suite 2300 Chicago, Illinois 60606 Hub Group, Inc. Agreement with Village of Oak Brook Re: Dear Attorney Scott: Enclosed please find an originally- signed signature page regarding the above - mentioned Agreement for your records. I have retained the other original for the Village's files. Sincerely, Rosemary A. Kane Legal Department DyI(EMA February 1, 2012 VIA U.S. MAIL Ms. Rose Kane Legal Secretary Village of Oak Brook 1200 Oak Brook Road Oak Brook, IL 60523 Dykema Gossett PLLC 10 South Wacker Drive Suite 2300 Chicago, Illinois 60606 W W W.DYKEMA.COM Tel: (312) 876 -1700 Fax: (312) 627-2302 Andrew P. Scott Direct Dial: (312) 627 -8325 Email: APSCOTT @DYKEMA.COM Re: Hub Group, Inc. Agreement with Village of Oak Brook Dear Ms. Kane: Enclosed are two original signature pages from Hub Group, Inc. for the Economic Incentive Agreement between the Village of Oak Brook and Hub Group, Inc. Please call me if you have any questions. Very truly youq, PLLC APS:dgj Enclosures CHICAGO\3489417.1 ID\APS - 104357/0008 California I Illinois I Michigan I North Carolina I Texas I Washington, D.C. RESOLUTION 2012-AG-EX1 -R-1 149 A RESOLUTION APPROVING AND AUTHORIZING THE EXECUTION OF AN ECONOMIC INCENTIVE AGREEMENT BY AND BETWEEN THE VILLAGE OF OAK BROOK AND HUB GROUP, INC. WHEREAS, the Village and Hub Group, Inc. ( "HUB ") desire to execute an agreement for the provision of certain economic incentives to HUB relating to the development of the property at 2000 Clearwater Drive in the Village as HUB's new corporate headquarters ( "Agreement "); and WHEREAS, the President and Board of Trustees have determined that it is in the best interests of the Village to enter into the Agreement in a final form approved by the Village Manager and the Village Attorney; NOW THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS as follows: Section 1: Recitals. The foregoing recitals are hereby incorporated into, and made a part of, this Resolution as the findings of the President and Board of Trustees of the Village of Oak Brook. Section 2: Approval of the Agreement. The President and Board of Trustees hereby approve the Agreement by and between the Village and HUB in a form acceptable to the Village Manager and the Village Attorney. Section 3: Authorization and Execution of the Agreement. The Village President and Village Clerk shall be, and hereby are, authorized to execute the final Agreement on behalf of the Village after review and approval of the final form of the Agreement by the Village Manager and the Village Attorney. Section 4: Effective Date. This Resolution shall be in full force and effect upon passage and approval in the manner provided by law. APPROVED THIS 24`h day of January, 2012 Ayes: Gopal G. Lalmalani Village President PASSED THIS 24`h day of January, 2012 ATTEST: Charlotte K. Pruss Village Clerk 1120112 DRAFT ECONOMIC INCENTIVE AGREEMENT BY AND BETWEEN THE VILLAGE OF OAK BROOK AND HUB GROUP, INC. THIS AGREEMENT ( "Agreement') is made as of the day of _, 2012, and is by and between the VILLAGE OF OAK BROOK, an Illinois municipal corporation ( "Village'l, and HUB GROUP, INC. a Delaware corporation ( "Developer'). IN CONSIDERATION OF the recitals and the mutual covenants and agreements set forth in this Agreement, the parties hereto agree as follows: SECTION 1. RECITALS. A. The Developer is, as of the Effective Date of this Agreement, as defined in Section 7 below, the legal title owner of that certain tract of land commonly known as 2000 Clearwater Drive, Oak Brook, Illinois, and legally described in Exhibit A attached to this Agreement ( "Property'). S. The Developer desires to demolish an existing building and to construct and develop a new commercial building on the Property to be used as its new corporate headquarters ( "Building") along with all related and necessary on -site and off -site improvements to be made in connection with the development of the Property ( "Improvements ") (collectively, the "Development'). C. Pursuant to Resolution 2011 - ECODV -R -1123, the corporate authorities of the Village have determined that it is desirable to promote economic development within the Village by providing certain incentives to the Developer for the completion of the Development as provided in Section 3 of this Agreement and as authorized by 65 ILCS 5/8- 1 -2.5. D. The Village and the Developer now seek to enter into this Agreement pursuant to the authority granted by, among others, the following: (i) Division 13 of Article 11 of the Illinois Municipal Code (65 ILCS 5/11 -13 -1 et seq.); (ii) Section 8 -1 -2.5 of Division 1 of Article 8 of the Illinois Municipal Code (65 ILCS 5/8- 1 -2.5); and (iii) the Village's police powers. SECTION 2. DEVELOPMENT OF THE PROPERTY. The Developer acknowledges and agrees that the Development of the Property, and construction and installation of all Improvements, shall be completed pursuant to the Village Code and to all other applicable federal, state, and Village laws, statutes, codes, ordinances, resolutions, rules and regulations (collectively, the "Requirements of Law"). SECTION 3. ECONOMIC INCENTIVES. A. Village Economic Incentives to Developer. Pursuant to Section 8 -1 -2.5 of the Illinois Municipal Code, 65 ILCS 5/8- 1 -2.5, and subject to the conditions in Subsection 3.6 of this Agreement, the Corporate Authorities have authorized the following incentives to the Developer for the completion of the Development ( "Economic Incentives "): i. Building Permit Fees. The Village shall provide the Developer a 50 percent reduction in the otherwise applicable building permit fees required for the initial demolition, construction and build -out of the Building on the Property, including but limited to 1 1120112 DRAFT those fees set forth in Sections 104-1 et seq., 8- 5 -2A -F, 9 -5 -5 and 9 -7 -8 of the Oak Brook Village Code ( "tillage Code "). ii. Village Contribution. The Village shall provide the Developer a contribution in an amount equal to 50 percent of the actual costs incurred by the Developer for the design and construction of the public Improvements, which shall be defined as Improvements that are dedicated to and accepted by the Village ( "Total Costs "); provided, however, that such contribution shall not exceed $150,000. Following completion of the public Improvements, the Developer shall provide the Village with detailed cost and invoice information establishing to the Village's satisfaction the Total Costs incurred by the Developer for the construction of the public Improvements for the Property. Upon the determination by the Village that the Developer has incurred costs for the design and construction of the public Improvements for the Property, the Village shall promptly reimburse the Developer for 50 percent of such costs up to the total maximum contribution amount of $150,000. B. Occupancy Requirement. The incentives provided by the Village pursuant to Subsection 3.A of this Agreement are contingent upon, and subject to, the Developer continuously occupying the Building for its corporate headquarters for a period of not less than five years beginning with the date on which the Village issues a certificate of occupancy to the Developer for the Building ( "Occupancy Requirement'). In the event the Developer does not satisfy the Occupancy Requirement, the Developer shall be required to refund to the Village the entire amount of the Economic Incentives provided by the Village to the Developer pursuant to this Agreement. SECTION 4. VILLAGE COSTS AND FEES. The Developer shall pay all legal, engineering, and other consulting or administrative fees, costs, and expenses incurred or accrued in connection with the Development and the preparation of this Agreement, provided that the amount of legal fees incurred or accrued that the Developer shall be responsible to pay pursuant to this Section 4 shall not exceed $5,000. SECTION 5. LIABILITY AND INDEMNITY OF VILLAGE. A. Villaae Procedures. The Developer acknowledges and agrees that all notices, meetings, and hearings have been properly given and held by the Village with respect to the approval- of this Agreement and agrees not to challenge such approval on the grounds of any procedural infirmity or of any denial of any procedural right. B. Indemnity. The Developer agrees to, and does hereby, hold harmless and indemnify the Village, its Corporate Authorities, and all Village elected or appointed officials, officers, employees, agents, representatives, engineers, and attorneys, from any and all claims that may be asserted at any time against any of such parties in connection with (i) the Village's review and approval of any plans for the Property or the Improvements; (ii) the issuance of any approval, permit, certificate or acceptance for the Property or the Improvements; and (iii) the development, construction, maintenance or use of any portion of the Property or the Improvements. C. Expense. The Developer shall, and does hereby agree to, pay all expenses, including legal fees and administrative expenses, incurred by the Village in defending itself with regard to any and all of the claims for which they are responsible as referenced in Subsection 5.6 of this Agreement. 1120112 DRAFT SECTION 6. NATURE, SURVIVAL AND TRANSFER OF OBLIGATIONS. All obligations assumed by the Developer under this Agreement shall be binding upon the Developer, upon any and all of the Developer's heirs, successors and assigns, and upon any and all of the respective successor legal or beneficial owners of all or any portion of the Property. SECTION 7. TERM. This Agreement shall be effective as of the date that the Developer obtains title to the Property ( "Effective Date ") and shall terminate on the date that the Developer completes the Occupancy Requirement, provided, however, that if the Developer fails to satisfy the Occupancy Requirement, this Agreement shall terminate on the date that the Developer refunds to the Village the entire amount of the Economic Incentives paid by the Village to the Developer as required pursuant to Section 3.13 of this Agreement. The provisions of this Agreement shall run with and bind the Property, and shall inure to the benefit of, and be enforceable by, the Developer and the Village, and any of their respective legal representatives, heirs, grantees, successors, and assigns. Upon termination of this Agreement, the parties shall execute appropriate and recordable evidence of the termination of this Agreement ( "Certificate of Completion"); provided that the Developer's indemnity and defense obligations as set forth in Section 5 of this Agreement shall survive any termination of this Agreement. The Developer shall be entitled to record the Certificate of Completion at its expense. SECTION 8. ENFORCEMENT. The parties to this Agreement may, in law or in equity, by suit, action, mandamus or any other proceeding, including without limitation, specific performance, enforce or compel the performance of this Agreement: provided, however, that the Developer agrees that it will not seek, and does not have the right to seek, to recover a judgment for monetary damages against the Village or any elected or appointed officials, officers, employees, agents, representatives, engineers, or attorneys thereof, on account of the negotiation, execution, or breach of any of the terms and conditions of this Agreement. In addition to every other remedy permitted by law for the enforcement of the terms of this Agreement, the Village shall be entitled to withhold the issuance of building permits or certificates of occupancy for any and all buildings and structures within the Property at any time when the Developer has failed or refused to meet fully any of its obligations under this Agreement. In the event of a judicial proceeding brought by one party to this Agreement against another party to this Agreement, the prevailing party in such judicial proceeding shall be entitled to reimbursement from the unsuccessful party of all costs and expenses, including reasonable attorneys' fees, incurred in connection with such judicial proceeding. SECTION 9. GENERAL PROVISIONS. A. Notice. Any notice or communication required or permitted to be given under this Agreement shall be in writing and shall be delivered: (i) personally, (ii) by a reputable overnight courier, (iii) by certified mail, return receipt requested, and deposited in the U.S. Mail, postage prepaid, or (iv) by facsimile. Notices and communications to Village shall be addressed to, and delivered at, the following address: Village of Oak Brook 1200 Oak Brook Road Oak Brook, Ilinois 60523 Attention: Village Manager With a copy to: 1120112 DRAFT Holland & Knight LLP 131 South Dearborn Street 30th Floor Chicago, Illinois 60603 Attention: Peter M. Friedman Notices and communications to the Developer shall be addressed to, and delivered at, the following addresses: Hub Group, Inc. 2000 Clearwater Drive Oak Brook, Illinois 60523 Attention: General Counsel With a copy to: Dykema Gossett PLLC 10 South Wacker Drive Suite 2300 Chicago, Illinois 60606 Attention: Andrew P. Scott B. Time of the Essence. Time is of the essence in the performance of all terms and provisions of this Agreement. C. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior agreements and negotiations between the parties, whether written or oral, relating to the subject matter of this Agreement. D. Exhibit. Exhibit A attached to this Agreement is, by this reference, incorporated in and made a part of this Agreement. In the event of a conflict between an exhibit and the text of this Agreement, the text of this Agreement shall control. E. Amendments and Modifications. No amendment or modification to this Agreement shall be effective unless and until it is reduced to writing and approved and executed by all parties to this Agreement in accordance with all applicable statutory procedures. F. Governing Law. This Agreement shall be governed by, and enforced in accordance with, the internal laws, but not the conflicts of laws rules, of the State of Illinois. G. Changes in Laws. Unless otherwise explicitly provided in this Agreement, any reference to any Requirements of Law shall be deemed to include any modifications of, or amendments to such Requirements of Law as may, from time to time, hereinafter occur. H. Non - Waiver. The Village shall be under no obligation to exercise any of the rights granted to it in this Agreement. The failure of the Village to exercise at any time any right granted to the Village shall not be deemed or construed to be a waiver of that right, nor shall the failure void or affect the Village's right to enforce that right or any other right. Authority to Execute. The Village hereby warrants and represents to the 13 1120112 DRAFT Developer that the persons executing this Agreement on its behalf have been properly authorized to do so by its Corporate Authorities. The Developer hereby warrants and represents to the Village (i) that the Developer is the owner of fee simple title to the Property, and that the various portions of the Property are contiguous to each other and have no gaps; (ii) except as otherwise noted in Section 9.M of this Agreement, that no other person or entity has any legal, beneficial, contractual, or security interest in the Property; (iii) that the Developer has the full and complete right, power, and authority to enter into this Agreement and to agree to the terms, provisions, and conditions set forth in and to bind the Property as set forth in this Agreement; (iv) that all legal actions needed to authorize the execution, delivery, and performance of this Agreement have been taken; and (v) that neither the execution of this Agreement nor the performance of the obligations assumed by the Developer will (a) result in a breach or default under any agreement to which the Developer is a party or to which it or the Property are bound or (b) violate any statute, law, restriction, court order, or agreement to which the Developer or the Property are subject. J. Non - Severability. If any provision, covenant, agreement, or portion of this Agreement or its application to any person, entity, or property be held invalid by a court of competent jurisdiction, the remaining provisions of this Agreement and the validity, enforceability, and application to any person, entity, or property shall be null and void and of no further force and effect, it being the intent of the parties that all of the provisions of this Agreement be treated as an individual whole. K. Calendar Days and Time. Any reference herein to "day" or "days" shall mean calendar and not business days. If the date for giving of any notice required to be given hereunder or the performance of any obligation hereunder falls on a Saturday, Sunday, or Federal holiday, then said notice or obligation may be given or performed on the next business day after such Saturday, Sunday or Federal holiday. L. No Third Party Beneficiaries. No claim as a third party beneficiary under this Agreement by any person, firm, or corporation shall be made, or be valid, against the Village or the Developer. M. Temporary Right of Possession. The Village acknowledges that the seller of the Property shall have the right to occupy the Property through and until April 30, 2012 unless seller holds over in violation of its rights of possession. IN WITNESS WHEREOF, the parties hereto have affixed their signatures the date and year first above written. (signatures follow on subsequent page) 5 ATTEST: Village Clerk ATTEST: VILLAGE OF OAK BROOK Village President HUB GROUP, INC. M ACKNOWLEDGMENTS 1120112 DRAFT STATE OF ILLINOIS ) ) SS. COUNTY OF DUPAGE ) This instrument was acknowledged before me on 20_, by , the Village President of the VILLAGE OF OAK BROOK, an Illinois municipal corporation, and by the Village Clerk of said municipal corporation. Signature of Notary My Commission expires: STATE OF ILLINOIS ) SS. COUNTY OF DUPAGE ) This instrument was acknowledged before me on , President of HUB GROUP, INC., and _ My Commission expires: Signature of Notary G'. SEAL , 20_, by Secretary of said __ SEAL ATTEST: yCF� E OF OAK BROOK a111114 d.404 �� By: Village Clerk Village President ATTEST: HUB GROUP, INC. ACKNOWLEDGMENTS STATE OF ILLINOIS ) ) SS. COUNTY OF DUPAGE ) This instrument was acknowledged before me on 1AN(AA24 3D 201a, by C7oPRL LALPAtANI, the Village President of the VILLAGE OF OAK BROOK, an Illinois municipal corporation, and by CHARLDTTi K, the Village Clerk of said municipal corporation. My Commission expires: MAR -Ctr 1,S oUlq STATE OF ILLINOIS ) ) SS. COUNTY OF DUPAGE ) ature of r No OFFICIAL SEAL EAL L ROSEMARY A. KANE tary Public - State o1 Illinois ommission Expires Mar 15, 2014 This instrument was acknowledged before me on , 20_, by President of HUB GROUP, INC., and Secretary of said _.- My Commission expires: Signature of Notary G41 SEAL 1/20/12 DRAFT EXHIBIT A LEGAL DESCRIPTION OF PROPERTY Lot 1 in Official Airline Guides Resubdivision being a resubdivision in the southwest quarter of Section 24, Township 39 North, Range 11 East of the Third Principal Meridian, in Du Page County, Illinois Address: 2000 Clearwater Drive, Oak Brook, Illinois. PIN: 06 -24- 307 -022