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S-1587 - 11/26/2019 - AGREEMENT - OrdinancesBOT AGENDA Page 1 BOARD OF TRUSTEES MEETING SAMUEL E. DEAN BOARD ROOM BUTLER GOVERNMENT CENTER 1200 OAK BROOK ROAD OAK BROOK, ILLINOIS 630-368-5000 AGENDA ITEM Regular Board of Trustees Meeting of November 26, 2019 SUBJECT: Long-Term Lease Agreement - Oak Brook Park District Kensington Parking Lot FROM: Riccardo F. Ginex, Village Manager BUDGET SOURCE/BUDGET IMPACT: N/A RECOMMENDED MOTION: Motion to Approve Ordinance 2019-AG-OBPD-S-1587, An Ordinance Approving and Authorizing the Execution of a Long-Term Lease Agreement for the Property Commonly Referred to as the Kensington Road Surface Parking Lot Oak Brook, Illinois 60523 Background/History: As you are aware, the Park District secured the McDonald's Soccer Fields via a referendum earlier this year. They have begun work on a master plan to improve the soccer fields. Part of that plan will be to improve the parking lot presently located on the fields. Director Laure Kosey approached the Village regarding the possibility of leasing the Kensington Surface Parking Lot that dead-ends at Rt. 83. (See the attached Exhibit). The Village has never maintained or plowed that portion of the street as McDonald's used it to store snow that they plowed. The Village does not have any specific future plans for any improvements at that location, either. As part of the potential leasing of this Village owned property, the Village has published notice of its intent to enter into a lease agreement for the Kensington Surface Parking Lot. This lease will be for a period in excess of twenty years and for a term not to exceed ninety-nine years. The lease will require a $1.00 annual payment from the Park District. Recommendation: The Village Board approves the ordinance and lease agreement. ITEM 10.B.2 Notice to Enter into a Long-Term Lease NOTICE IS HEREBY GIVEN that the President and Board of Trustees of the Village of Oak Brook, Cook and DuPage Counties, Illinois, on November 26, 2019 at a regularly scheduled Village Board meeting to be held at 7:00 pm at the Village Hall, 1200 Oak Brook Rd, Oak Brook, IL 60523, intends to adopt an ordinance authorizing a long-term lease agreement (more than 20 but not to exceed 99 years) under which the Village may lease out property that it owns or controls, and here is commonly referred to as the Kensington Road Surface Parking Lot in the Village of Oak Brook, Cook and DuPage Counties, Illinois. Under such lease, the property shall be used for lawful park district purposes, including but not limited to use as a parking lot for the benefit of the Oak Brook Park District. THE VILLAGE OF OAK BROOK COOK AND DUPAGE COUNTIES, ILLINOIS ORDINANCE 2019-AG-OBPD-S-1587 AN ORDINANCE APPROVING AND AUTHORIZING THE EXECUTION OF A LONG-TERM LEASE AGREEMENT FOR THE PROPERTY COMMONLY REFERRED TO AS THE KENSINGTON ROAD SURFACE PARKING LOT, OAK BROOK, ILLINOIS 60523 GOPAL G. LALMALANI, Village President CHARLOTTE K. PRUSS, Village Clerk JOHN BARR PHILIP CUEVAS MICHAEL MANZO MOIN SAIYED EDWARD TIESENGA ASIF YUSUF Village Board Published in pamphlet form by authority of the President and the Board of Trustees of the Village of Oak Brook on this the 26th day of November, 2019 ORDINANCE NO. 2019-AG-OBPD-S-1587 AN ORDINANCE APPROVING AND AUTHORIZING THE EXECUTION OF A LONG-TERM LEASE AGREEMENT FOR THE PROPERTY COMMONLY REFERRED TO AS THE KENSINGTON ROAD SURFACE PARKING LOT, OAK BROOK, ILLINOIS 60523 WHEREAS, the Village of Oak Brook (hereinafter referred to as the “Village”) is an Illinois Municipal Corporation organized under and pursuant to the laws of the State of Illinois; WHEREAS, Section 2-3-8 of the Illinois Municipal Code provides the Village the authority to contract and be contracted with; WHEREAS, the Village presently owns title to real property within the Village boundaries and is interested in entering an agreement to lease said property; WHEREAS, the Village owns title to real property commonly referred to as the Kensington Road Surface Parking Lot, and referred to in the Lease Agreement, a copy of which is attached hereto and made part hereof as Exhibit A, and is desirous of leasing said real property; WHEREAS, pursuant to 65 ILCS 5/11-76-2 the Village may approve pursuant to ordinance the lease of any municipal owned real estate; WHEREAS, pursuant to 65 ILCS 5/11-76-2 the corporate authorities may authorize the lease of real estate for a term in excess of twenty years upon notice of intent to adopt such an ordinance; WHEREAS, the Village has published notice of its intent to enter into a lease agreement for the real estate referenced herein for period in excess of twenty years; and WHEREAS, in the opinion of the corporate authorities of the Oak Brook, it is in the best interests of the Village to lease the real estate referred to herein, for a term not to exceed ninety- nine years, pursuant to the terms and conditions of the lease agreement which is attached hereto and made a part hereof as Exhibit A. NOW, THEREFORE, BE IT ORDAINED, in open meeting assembled, by the Village President and Board of Trustees of the Village of Oak Brook, Cook and DuPage Counties, Illinois as follows: Section 1 – Recitals The Corporate Authorities hereby find that all of the recitals hereinbefore stated as contained in the preamble to the Ordinance are full, true and correct and do hereby, by reference, incorporate and make them part of this Ordinance as legislative findings. ORDINANCE NO. 2019-AG-OBPD-S-1587 Lease Agreement Kensington Parking Lot Page 2 of 5 Section 2 – Approval of Lease Agreement The Corporate Authorities of the Village of Oak Brook hereby approve the Long-Term Lease for period greater than 20 years but less than 99 years for the real estate commonly referred to as the Kensington Road Surface Parking Lot. The Village hereby approves the Lease Agreement for a twenty-year period with a twenty-year option, substantially in the form attached hereto and made a part hereof as Exhibit A. Section 3 – Authorization The Village President is hereby authorized to execute, and the Village Clerk is hereby authorized to attest to the Lease Agreement, substantially in the form of such Lease Agreement which is attached hereto as Exhibit A, with such changes therein as shall be approved by the Village Attorney and the officials of the Village executing the same, their execution thereof to constitute exclusive evidence of their approval to any and all changes or revisions therein from and after the execution and delivery of such Lease Agreement. Section 4 - Other Actions Authorized The officers, employees and/or agents of the Village shall take all actions necessary or reasonably required to carry out and give effect to the intent of this Ordinance and otherwise to consummate the transactions contemplated herein, and shall take all actions necessary in conformity therewith including, without limitation, the execution and delivery of all documents required to be delivered in connection with the transaction contemplated herein. Section 5 - Acts of Village Officials That all past, present and future acts and doings of the officials of the Village that are in conformity with the purpose and intent of this Ordinance are hereby, in all respects, ratified, approved, authorized and confirmed. Section 6 – Effective Date This ordinance shall be in full force and effect from and after its passage, approval and publication as provided by law. Section 7 – Publication This ordinance shall be published in book or pamphlet form as provided by the Illinois Municipal Code. Section 8 – Conflict Clause That all ordinances, parts of ordinances or board actions in conflict with the terms of this ordinance shall be repealed to the extent of said conflict. Section 9 – Saving Clause ORDINANCE NO. 2019-AG-OBPD-S-1587 Lease Agreement Kensington Parking Lot Page 3 of 5 Any part or parts of this ordinance declared by a court of law to be invalid or unconstitutional shall not affect the validity of the remaining provisions of this ordinance or the Oak Brook Municipal Code. Section 10 – Recording This ordinance shall be entered into the minutes and upon the journals of the Board of Trustees of the Village of Oak Brook. ORDINANCE NO. 2019-AG-OBPD-S-1587 Lease Agreement Kensington Parking Lot Page 4 of 5 APPROVED THIS 26th day of November, 2019. ___________________________________ Gopal G. Lalmalani Village President PASSED THIS 26th day of November, 2019. Ayes: ________________________________________________________________ Nays: ________________________________________________________________ Absent: ________________________________________________________________ ATTEST: ___________________________________ Charlotte K. Pruss Village Clerk ORDINANCE NO. 2019-AG-OBPD-S-1587 Lease Agreement Kensington Parking Lot Page 5 of 5 Exhibit A Lease Agreement INTERGOVERNMENTAL LEASE OF SURFACE PARKING LOT VILLAGE OF OAK BROOK – OAK BROOK PARK DISTRICT This Intergovernmental Agreement (“Agreement”) dated this ___day of ____, 2019 (the “Effective Date”) is entered into by and between VILLAGE OF OAK BROOK, an Illinois municipality, 1200 Oak Brook Road, Oak Brook, Illinois 60523 (“Village”), and OAK BROOK PARK DISTRICT, an Illinois unit of local government, 1450 Forest Gate Road, Oak Brook Illinois 60523 (“Park District”). Village and Park District are sometimes referred to herein as “the Parties” or individually as a “Party”. RECITALS A. Village is record owner of fee simple title to real property commonly referred to as the Kensington Road Surface Parking Lot adjacent to the western terminus of Kensington Road, containing approximately 80 spaces (the “Parking Lot”). B. Park District recently acquired 34 acres of vacant land, which it intends to use for recreational purposes, adjacent to and south of the Parking Lot. C. Village and Park District are units of local government as that term is defined in Article VII, Section 1, of the Illinois Constitution of 1970, public agencies as that term is defined in Section 2 of the Intergovernmental Cooperation Act, 5 ILCS 220/2, and municipalities as that term is defined in Section 1 of the Local Government Property Transfer Act, 50 ILCS 605/1.and as set forth in the Illinois Municipal Code, 65 ILCS 5/11-76-2; D. Article VII, Section 10 of the Illinois Constitution of 1970 provides that units of local government may contract or otherwise associate among themselves to obtain or share services and to exercise, combine or transfer any power or function in any manner not prohibited by law or by ordinance and may use their credit, revenues and other resources to pay costs related to intergovernmental activities. E. The Illinois Intergovernmental Cooperation Act, 5 ILCS 220/1 et seq. further provides that any power or powers, privileges, functions, or authority exercised or which may be exercised by a public agency of this State may be exercised, combined, transferred, and enjoyed jointly with any other public agency of this State. F. Section 8-16 of the Illinois Park District Code, 70 ILCS 1205/8-16, authorizes the Park District to lease real estate for a period not to exceed 99 years, when so authorized by the governing board of the Park District. G. Section 3.1 of the Local Government Property Transfer Act, 50 ILCS 605/3.1, authorizes the Village to lease real estate for any term not to exceed 50 years to another municipality, when so authorized by the legislative body of the Village 2 4818-3002-4618, v. 4 H. Village and Park District have determined that Park District’s lease of the Parking Lot will mutually benefit both Parties, and will enhance recreational programs and opportunities for the benefit of the community. NOW, THEREFORE, for and in consideration of the mutual promises herein set forth below and other good and valuable consideration, the Parties hereby agree as follows: 1. Incorporation of Recitals The Parties agree that the recitals are hereby fully incorporated into this Agreement as if set forth in their entirety in this Section 1, and all covenants, terms, conditions, and provisions of this Agreement shall be construed, interpreted, and enforced in accordance therewith. 2. Grant of Lease For and in consideration of the rents herein required and of the covenants and agreements herein contained on the part of Park District to be kept, observed and performed, the Village, by these presents, agrees to lease the Parking Lot as depicted and described in Exhibit A, attached to and incorporated into this Agreement by reference (“Parking Lot”) to Park District, together with reasonable access to the Parking Lot, upon and subject to the terms and conditions set forth herein (the “Lease”). 3. Term Unless terminated earlier as hereinafter provided, the initial term of this Agreement shall commence on January 1, 2020 (the “Commencement Date”), and shall expire twenty (20) years from the Commencement Date (the “Term”). Park District shall have the right to renew the Agreement for one additional twenty (20)-year term. 4. Rent Park District agrees to pay to Village on the anniversary of the Commencement Date of each year of the Term, the sum of One Dollar ($1.00) as and for rent (“Rent”). For purposes of this Agreement, “Lease Year” shall mean the 365-day period commencing on the Commencement Date or the anniversary thereof. 5. Park District Permitted Use Unless otherwise agreed by the Parties, Park District will occupy and use the Parking Lot solely for lawful park district purposes, including public park and recreational programming, events and activities, and related administrative purposes. 6. Maintenance and Repairs a. Park District shall keep and maintain the Parking Lot in reasonable condition during the Term and any Renewal Term, subject only to ordinary wear and tear. Park District shall be solely responsible for all repair and maintenance that the Park District determines is required. The Park District shall not be responsible to perform or pay for any alterations, 3 4818-3002-4618, v. 4 improvements or maintenance requested by the Village, unless otherwise agreed by the Parties. b. Village shall have a right of periodic access to the Parking Lot (upon reasonable advance notice to Park District, except in the event of emergency), for the purpose of inspecting Parking Lot and performing Village Maintenance. c. Except as otherwise agreed by the Parties, Park District will make no alterations or additions to the Parking Lot without first obtaining Village’s written consent. Park District shall restore the Parking Lot to the same condition as existed upon the Commencement Date, less ordinary wear and tear, and any authorized alterations or additions, upon termination of this Agreement. In the event Park District fails to restore the Parking Lot within ninety (90) days after the termination of this Agreement, Village shall have the right to make all such repairs, provided that Park District shall reimburse Village in full for all of Village’s reasonable costs therefor. Village will invoice Park District for all such costs and Park District shall remit payment to Village subject to the terms of the Illinois Local Government Prompt Payment Act, whereupon Park District’s site restoration duties shall terminate. 7. Taxes As of the Effective Date, the Parking Lot is exempt from real estate and other taxes by virtue of Village’s status as a unit of local government. The Parties agree to use reasonable efforts to cooperate to maintain such exemption. In the event the Parking Lot is determined to be subject to taxes as the result of this Agreement, either Party may terminate this Agreement upon five (5) days prior written notice to the other Party. In the event the Parking Lot is determined to be subject to taxes as a result of the activities conducted by Park District thereon, Park District shall assume all applicable tax liability. 8. Insurance Both Village and Park District are members of self-insurance risk pools, and each Party acknowledges that the coverage provided by the other Party’s self-insurance risk pool is acceptable with respect to the obligations of the other hereunder. In the event that one Party ceases to be a member of its current self-insurance risk pool (“non-pool Party”), the other Party may continue to provide insurance coverage through its risk pool, and such coverage shall be acceptable to the non- pool Party. Neither party waives subrogation under the terms of this Agreement. If either Party ceases to be a member of its current self-insurance risk pool, the Parties will renegotiate a replacement provision for reasonably acceptable insurance through private carriers or other self- insurance risk pools. 9. Indemnification 4 4818-3002-4618, v. 4 To the fullest extent permitted by law, each Party shall indemnify, defend and hold harmless the other Party, its board of trustees or commissioners as applicable, individual board members, its elected and appointed officers, officials, employees, administrators, volunteers and agents (collectively, the “Indemnitees”), from and against any and all claims, damages, losses and expenses, including but not limited to legal fees (attorneys’ and paralegals’ fees and court costs), incurred by any of the Indemnitees for injuries to persons or for damage, destruction or theft of property arising out of or resulting from any activity, act or omission of the indemnifying Party, or of any employee, agent, affiliate, vendor, co-sponsor, invitee, contractor, or volunteer of the indemnifying Party (the indemnifying Party and each and every such other person being hereinafter individually and collectively referred to as the “Indemnitor”), but only to the extent caused in whole or in part by any wrongful or negligent act or omission of the Indemnitor. Similarly, each Party shall indemnify, defend and hold harmless the Indemnitees from and against any and all claims, damages, losses and expenses, including but not limited to legal fees (attorneys’ and paralegals’ fees and court costs), incurred by any of the Indemnitees by reason of the Indemnitor's breach of any of its obligations under this Agreement. 10. Supervision Neither Party shall have any responsibility whatsoever for supervising the other Party’s activities, or supervising the other Party’s employees, agents, volunteers, invitees, or affiliates. Each Party acknowledges and assumes complete responsibility for its employees, agents or volunteers used to supervise any activities hereunder. 11. Termination a. This Agreement may be terminated immediately by either Party in the event of the other Party’s material breach of any of its obligations under this Agreement, provided that the breaching Party has failed to cure any such breach within thirty (30) days after receiving written notice of same from the non-breaching Party. If the nature of the breach is such that it cannot be cured within said thirty (30) day period, the breaching Party shall be deemed to have cured same if, within said thirty (30) day period, the breaching Party commences and diligently pursues such cure and thereafter completes same within such time as is reasonable under the circumstances. b. Notwithstanding the foregoing, in the event of a material breach by either Party involving health or safety or the failure to maintain membership in its current self-insurance risk pool (and subsequent failure to obtain substitute insurance as provided herein), the non- breaching Party may, at its option and in its sole discretion, following thirty (30) days prior written notice, during which time the breaching party may cure such breach, declare this Agreement terminated. Upon such termination, Park District shall not be entitled to return of any prepaid rents, all of which shall be deemed liquidated damages with respect to potential loss of Rents due to inability to secure a suitable replacement tenant. c. Notwithstanding any provision of this Agreement to the contrary, either Party may terminate this Agreement at any time, and for any reason within the terminating Party’s 5 4818-3002-4618, v. 4 sole discretion, by providing written notice to the other Party at least twelve (12) months prior to the effective date of termination (“Termination for Convenience”). 12. No Waiver of Tort Immunity Defenses Nothing contained in this Agreement is intended to constitute nor shall constitute a waiver of the rights, privileges, defenses, and immunities provided or available to either Party under the Illinois Local Governmental and Governmental Employees Tort Immunity Act with respect to claims by third parties. 13. Notice Notices shall be deemed properly given hereunder if in writing and either hand delivered or sent by United States certified mail, return receipt requested, postage prepaid, or by fax or email transmission with the sending Party retaining confirmation of receipt, to the Parties at their respective addresses provided below, or as either Party may otherwise direct in writing to the other Party from time to time: If to Village: Village Manager Village of Oak Brook 1200 Oak Brook Road Oak Brook, Illinois 60523 Email: Fax: If to Park District: Executive Director Oak Brook Park District 1450 Forest Gate Road Oak Brook, Illinois 60523 Email: Fax: Notices sent by certified mail shall be deemed delivered the second business day following deposit in the mail, notices hand delivered shall be deemed given on the date of delivery, and notices sent by fax or email transmission shall be deemed given on the date of transmission if between 9:00 AM and 5:00 PM on a business day, or, if later, the next business day. 14. Compliance with Laws The Parties shall comply with all applicable federal, state, county, and local statutes, ordinances, rules, regulations, and codes. 15. Relationship of the Parties 6 4818-3002-4618, v. 4 Nothing in this Agreement shall be deemed to create any joint venture or partnership between the Parties. Neither Village nor Park District shall have the power to bind or obligate the other except as to the extent expressly set forth in this Agreement. 16. No Third Party Beneficiaries Notwithstanding any provision herein to the contrary, this Agreement is entered into solely for the benefit of the contracting Parties, and nothing in this Agreement is intended, either expressly or impliedly, to provide any right or benefit of any kind whatsoever to any person or entity who is not a Party to this Agreement or to acknowledge, establish or impose any legal duty to any third party. No claim as a third party beneficiary under this Agreement by any person, firm, or corporation shall be made or be valid against Village and Park District or either of them. 17. No Implied Waiver No waiver of any rights which either Party has in the event of any default or breach by the other Party under this Agreement shall be implied from the non-breaching Party’s failure to take any action on any such breach or default and no express waiver shall affect any breach or default other than the breach or default specified in the express waiver and then only for the time and to the extent therein stated. 18. No Assignment Park District shall not assign this Lease or any interest hereunder without prior written consent by Village, which consent may not be unreasonably withheld, conditioned or delayed. 19. Remedies Cumulative No remedy made available by any of the provisions of this Agreement is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity. 20. Entire Agreement; Modifications This Agreement constitutes the entire agreement of the Parties with respect to the matters contained herein, and this Agreement supersedes any and all prior agreements and understandings, whether written or oral, formal or informal. Any modifications to this Agreement must be in writing, signed by both Parties, and dated on or subsequent to the date hereof. 21. Authority The individual officers of Village and Park District who have executed this Agreement represent and warrant that they have the full power and lawful authority to execute this Agreement and perform and fulfill the obligations and responsibilities contemplated hereunder on behalf of and in the name of their respective governing boards. 22. Successor It is the intention of each Party hereto that this Agreement and each and every provision shall be binding on its successors. 7 4818-3002-4618, v. 4 23. Multiple Counterparts This Agreement may be executed in multiple counterparts, each of which shall, for all purposes, constitute a duplicate original. 24. Governing Law This Agreement shall be governed and construed in accordance with the laws of the State of Illinois. Any suit or action arising under this Agreement shall be commenced in the Eighteenth Judicial Circuit, DuPage County, Illinois. 25. Heading The various headings used in this Agreement as headings for sections or otherwise are for convenience only and shall not be used in interpreting the text of the section in which they appear. IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by a duly authorized officer thereof as of the Effective Date. VILLAGE OF OAK BROOK OAK BROOK PARK DISTRICT By:_______________________________ By:_____________________________ ATTEST: ATTEST: ________________________________ ________________________________ 8 4818-3002-4618, v. 4 VILLAGE ACKNOWLEDGMENT STATE OF ILLINOIS ) ) SS COUNTY OF DUPAGE ) I, the undersigned, a Notary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY THAT _______________________________and ___________ _______, personally known to me to be the ______________, and _____________ of the Village of Oak Brook, Illinois, appeared before me this day in person, and acknowledged that they signed, sealed and delivered the said instrument as their free and voluntary act, for the uses and purposes therein set forth. Given under my hand and official seal, this day of , 20___. ________________________________________ Notary Public My Commission expires:__________________________ PARK DISTRICT ACKNOWLEDGMENT STATE OF ILLINOIS ) ) SS COUNTY OF DUPAGE ) I, the undersigned, a Notary Public in and for said County, in the State aforesaid, DO HEREBY CERTIFY THAT _________ and _______ , personally known to me to be the ______________, and _____________ of the Oak Brook Park District, Oak Brook, Illinois, appeared before me this day in person, and acknowledged that they signed, sealed and delivered the said instrument as their free and voluntary act, for the uses and purposes therein set forth. Given under my hand and official seal, this day of , 20___. ________________________________________ Notary Public My Commission expires:__________________________ 9 4818-3002-4618, v. 4 EXHIBIT A Pg. A-1: Depiction of Parking Lot Area Designated in the Agreement toInclude 70 Future Parking Spaces Village of Oak BrookSoccer Field Parking Lot ±0 125 250 375 50062.5 Feet Date: 11/15/2019