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R-982 - 06/26/2007 - AGREEMENT - Resolutions ExhibitsEXHIBIT 1 DEVELOPMENT AGREEMENT (Clearwater Development Project) DEVELOPMENT AGREEMENT (Clearwater Development Project) THIS DEVELOPMENT AGREEMENT (this "Agreement ") is made and entered into as of the Effective Date (as hereinafter defined), by and between the VILLAGE OF OAK BROOK, an Illinois municipal corporation (the "VILLAGE "), and YORK ROAD EW LLC, a Delaware limited liability company ( "OWNER "). PREAMBLES A. OWNER is the owner and holder of record title to a certain tract or tracts of real estate legally described on Exhibit A attached hereto and made a part hereof, comprised approximately of 15.64 acres of property located at the northwest corner of York Road and 22"d Street in the VILLAGE, which property is zoned 0-4 (the "Subject Property "). B. OWNER intends to develop the Subject Property pursuant to a special use for a mixed use development, which was granted pursuant to the passage of Ordinances 2007- ZO -SU- S -1183 (the "Special Use Ordinance ") and 2007- ZO -TA -G -827 (the "Text Amendment Ordinance ", by the VILLAGE Board of Trustees (the "Board ") on January 23, 2007 (the "Development ") C. In conjunction with approval of the special use to allow for the construction of the Development, the VILLAGE wishes to provide for the performance of certain other undertakings by the OWNER pursuant to the VILLAGE'S authority under Division 13 of the Illinois Municipal Code (65 ILCS 5/11 -13 -1, et seq.) and the intergovernmental cooperation provisions of the Illinois Constitution (Article VII, Section 10). D. OWNER desires that the Subject Property be developed in the VILLAGE on the terms and conditions hereinafter set forth. 1 E. OWNER has heretofore submitted to the VILLAGE, and the VILLAGE has approved for the Development, certain documents identified in Exhibit B attached hereto and made a part hereof, which documents shall collectively be referred to in this Agreement as the "Approved Development Concept Plan ". F. The Subject Property is to be developed pursuant to the terms and conditions of this Agreement, the Special Use Ordinance, the Text Amendment and, except as provided in Sections 7.1 and 7.2, in substantial compliance with the Approved Development Concept Plan, substantial compliance being defined in Section 7.1 hereof. NOW, THEREFORE, in consideration of the foregoing preambles and in consideration of the mutual covenants, agreements and conditions hereinafter contained, and the benefits anticipated to inure to the OWNER and the VILLAGE, such parties do hereby agree as follows: I. PREAMBLES /EXECUTION OF AGREEMENT 1.1 PREAMBLES. The foregoing preambles are material to this Agreement and are incorporated herein by reference. 1.2 EXECUTION OF AGREEMENT. OWNER shall deliver to the VILLAGE three (3) executed copies of this Agreement within ten (10) business days after it is approved by the Board. The VILLAGE shall execute this Agreement within ten (10) business days after being presented with this Agreement executed by OWNER. 2. APPROVED DEVELOPMENT CONCEPT PLAN AND APPROVAL OF FINAL DEVELOPMENT PLANS 2.1 DEVELOPMENT OF THE PROPERTY. The development of the Property shall be done in substantial compliance with this Development Agreement, the Special Use Ordinance and the Text Amendment Ordinance approved by the VILLAGE and, except as provided in 2 Sections 7.1 and 7.2 of this Agreement, in substantial compliance with the Approved Development Concept Plan, substantial compliance being defined in Section 7.1 hereof. The Approved Development Concept Plan includes all the documents identified in Exhibit B, which is attached hereto and made a part hereof. 2.2 The VILLAGE and the OWNER agree that the demolition of structures, mass grading, excavation, fill work, construction of access ways, soil stock piling, removal of material and other general site work shall be permitted prior to approval of any plat of subdivision and without posting the security required in Section 10 of this Agreement; provided that any bonds or other form of security required by the VILLAGE Code for permits for such work and for public improvements or any other work on public property shall be posted by the OWNER. 2.3 FINAL DEVELOPMENT PLANS REQUIRED. In conjunction with applications for approval of any construction plans or building permits, and prior to any approval thereof, certain final development plans (collectively the "Final Plans ") shall be submitted to the VILLAGE, including but not limited to a final site plan (the "Final Site Plan "), a final engineering plan ( "Final Engineering Plan "), a final landscape plan ( "Final Landscape Plan "), and final elevation plans ( "Final Elevation Plans "), all of which shall be examined for substantial compliance with this Development Agreement, the Special Use Ordinance, the Text Amendment Ordinance, any other applicable codes and ordinances of the VILLAGE and except as provided in Section 7.1 of this Agreement, with the Approved Development Concept Plan, substantial compliance being defined in Section 7.1 hereof. 2.4 SCHEDULE OF DEVELOPMENT. The OWNER shall submit a schedule for development in accordance with the requirements of the VILLAGE Code. 3 3. BUILDING PERMITS. OWNER shall submit to VILLAGE Final Plans for those improvements for which permits are required. The VILLAGE shall issue building permits within thirty (30) business days after receipt of a complete application therefor, or issue a letter of denial within said period informing OWNER specifically as to what corrections are necessary as a condition to the issuance of a building permit and specifying the section of any applicable code relied upon by the VILLAGE in its request for correction. Upon resubmission of corrected plans, the VILLAGE shall have fifteen (15) business days to review such plans. 4. OFF -SITE PUBLIC IMPROVEMENTS. 4.1 The OWNER shall, at its sole expense, construct certain off -site public improvements (i.e. improvements constructed off the Subject Property on public rights -of -way or easements) in accordance with the Final Plans that are approved by the VILLAGE as provided in Section 3 of this Agreement (the "Off -Site Public Improvements "). Such Off -Site Public Improvements shall include watermain connections, if any; stormwater connections, if any; street improvements; traffic signals and landscaping, all as depicted on the Approved Development Concept Plan and the Final Plans, as approved, and shall specifically include the following: A. New sidewalk on Clearwater Drive, on the north and west sides of the Subject Property. B. Road widening and new striping on Clearwater Drive adjacent to and west of York Road. C. Road widening on southbound York Road between Clearwater and 22"d Street, to increase the length of the right turn lane at 22 "d Street. D. Re- striping at the entrance to 2001 York Road from York Road. E. Re- striping on Clearwater Drive at 22nd Street, to accommodate left and right southbound turn lanes. F. Clearwater Drive abuts the Subject Property on the west and north and provides access to the Subject Property. The parties recognize that approximately fifty percent (50 %) of the life of the pavement on Clearwater Drive has been used. In recognition thereof, the OWNER agrees to engage a third party consultant to complete a pre- condition survey of Clearwater Drive and will deliver such survey to the VILLAGE prior to the OWNER'S commencement of any work on the Subject Property. The OWNER shall again engage a third party consultant to complete a post - construction survey of the condition of Clearwater Drive after Substantial Completion of the Development. The OWNER agree to pay one hundred percent (100 %) of the cost for any repair, reconstruction or resurfacing of any portion of Clearwater Drive damaged during the construction of the Development, as determined by such pre - condition and post - construction surveys, up to fifty percent (50 %) of the cost of a new road if needed based on the post- construction survey, and the VILLAGE shall pay the remainder of the cost. The OWNER shall pay the VILLAGE for its share of such costs within thirty (30) days after the VILLAGE'S final acceptance of the road work performed. G. Full Traffic signalization, including Opticom as reasonably required by the VILLAGE'S Police and Fire Departments, at the intersection of York Road and Clearwater Drive and all appurtenant work, including coordination of the new traffic signal to existing traffic signals north (York Road and I -88 Exit Ramp) and 5 south (York Road and 22"d Street) of the York Road and Clearwater Drive traffic signals, as reasonably required by the Village Engineer. H. The OWNER shall have no obligation to relocate the existing sidewalk on 22 "d Street. 4.2 FUTURE OFF -SITE PUBLIC IMPROVEMENTS. A. The parties recognize that the VILLAGE may construct additional public improvements, including but not limited to, water main and bike path improvements. The parties agree that the OWNER'S responsibility for the costs thereof shall be limited to its pro rata share apportioned between the VILLAGE and all parties benefited by such improvements. B. The parties recognize that a southbound on -ramp to I -294 near the I -88/I -294 connector located north of 22 "d Street and east of York Road in the VILLAGE may be constructed in the future (the "On- Ramp "). If the On -Ramp is to be constructed, the OWNER shall cooperate with the VILLAGE relative to its efforts. Should the On -Ramp involve utilizing a portion of property owned by the OWNER on the east side of York Road, north of 22 "d Street (the "East Side Property "), the OWNER shall cooperate with the VILLAGE and ISTHA for a period of ten (10) years from the Effective Date of this Agreement, as long as the addition of the On -Ramp does not negatively impact the value or otherwise damage the East Side Property, harm the OWNER'S ability to fully develop the East Side Property, or take away amenities, such as parking that the OWNER (including other future owners of portions of the East Side Property) is required to provide to tenants on the East Side Property. If the construction of such an On -Ramp on the East Side Property is determined to be feasible during the ten (10) -year period, the OWNER agrees to grant an easement therefor to the VILLAGE or its designee or to ISTHA at such time as the VILLAGE or ISHTA are prepared to commence construction, subject to receipt of approval therefor from OWNER'S mortgagor (including other future owners of portions of the East Side Property mortgagor's). The VILLAGE agrees that the required yards and floor area ratio for the East Side Property will be based on the area and boundaries of the property as of the Effective Date of this Agreement, notwithstanding the OWNER'S grant of an easement over a portion of the East Side Property to the VILLAGE or ISTHA. If the VILLAGE or ISTHA do not construct the On -Ramp, or construction is not in process within ten (10) years after the Effective Date of this Agreement, the easement interest granted shall be reconveyed to the OWNER or its successors. 4.3 OWNER agrees to give the VILLAGE Engineer not less than forty -eight (48) hours notice prior to the commencement of construction of any Off -Site Public Improvements. 4.4 At all times prior to acceptance of any Off -Site Public Improvements by the VILLAGE, OWNER agrees to clean and pick up construction dirt and debris from the construction of such Improvements. Such cleaning shall be done as required by the VILLAGE Code. 4.5 Except for the On -Ramp, for which ownership shall be transferred to the appropriate jurisdiction on terms and conditions satisfactory to such jurisdiction, all completed Off -Site Public Improvements shall be owned by the VILLAGE, and the ownership thereof shall be transferred to the VILLAGE by Bill of Sale after approval by the VILLAGE Engineer. 5. ON -SITE IMPROVEMENTS. 5.1 In connection with its construction of the Development, OWNER shall, at its sole expense, construct all on -site improvements (i.e. improvements constructed on the Subject Property) ( "On -Site Improvements "), in substantial compliance with the Approved Development Concept Plan, except as provided for in Sections 7.1 and 7.2 of this Agreement, substantial 7 compliance being defined in Section 7.1 hereof, and in compliance with the Final Plans. A. Certain On -Site Improvements shall be considered public improvements required by the VILLAGE (the "On -Site Public Improvements "), including watermains, if any. B. Other On -Site Improvements shall be considered private improvements, including stormwater facilities, parking and landscaping (the "On -Site Private Improvements ") 5.2 OWNER agrees to give the VILLAGE Engineer not less than forty -eight (48) hours notice prior to the commencement of construction of any On -Site Public and Private Improvements. 5.3 Completed On -Site Public Improvements shall be owned and maintained by the VILLAGE, and the ownership thereof shall be transferred to the VILLAGE by Bill of Sale after approval by the VILLAGE Engineer. 5.4 Completed On -Site Private Improvements shall be maintained by the OWNER until the creation of an entity responsible to provide for such maintenance; provided that the OWNER shall prepare and record a reciprocal easement over areas of the Development to be used in common, which easement will permit cross - access and use and provide for maintenance responsibilities for such common areas. 6. UTILITIES. OWNER shall, at its expense, cause utility companies to locate underground all newly installed utility lines within the Subject Property within an easement located within or outside the Subject Property including electricity, gas, telephone and cable TV. Specifically, but without limitation, OWNER shall use good faith efforts to cause such utilities to be installed, where appropriate and where possible, in a manner that minimizes the destruction of existing trees on the Subject Property. Utility company installation shall be included in the punch -list items identified pursuant to Section 12 hereof, and it shall be the responsibility of OWNER to cause the utility companies to correct any deficiencies therein with respect to which OWNER receives notice from the VILLAGE pursuant to Section 12 hereof. 7. ADDITIONAL REQUIREMENTS. 7.1 ARCHITECTURAL STANDARDS. The buildings constructed on the Subject Property shall substantially comply with this Agreement, the Special Use Ordinance, the Text Amendment Ordinance and, except as provided in this section and in Section 7.2 of this Agreement, shall substantially comply with the Approved Development Concept Plan as determined by VILLAGE'S Director of Community Development, who may also approve minor deviations from such Plan. The buildings shall be in substantial compliance with the Approved Development Concept Plan if i) the buildings are consistent with or related to the design and materials as outlined therein or ii) the buildings use materials identified therein or similar and related materials such as architectural stone. OWNER has the right but not the obligation to construct all or any portion of the Approved Development Concept Plan as OWNER, in its sole discretion, deems appropriate. However, if OWNER seeks to increase the square footage devoted to any portion of the Approved Development Concept Plan, including office, retail, restaurant, condominiums, health club, or hotel uses, by greater than ten (10) percent, OWNER shall be required to resubmit the modified Approved Development Concept Plan to the Village Board, and Zoning Board of Appeals and Plan Commission as required, for review and approval. OWNER shall provide periodic design updates to the Approved Development Concept Plan (prior to submission of drawings for permit) and submit such updates to the VILLAGE'S Director of Community Development for review and approval. The VILLAGE'S Director of Community Development shall have ten (10) days to review and provide comments concerning 9 each submission. If no comments are provided by the VILLAGE'S Director of Community Development in such time, such submission will be deemed approved by the VILLAGE. 7.2. RESIDENTIAL CONDOMINIUM BUILDING. OWNER shall have the right to reduce the height of the residential condominium building outlined in the Approved Development Concept Plan, as long as it meets the Architectural Standards in Section 7.1. 7.3 CONDOMINIUM PARKING REQUIREMENTS. The VILLAGE and the OWNER agree that parking requirements for the residential condominium to be constructed shall be governed by the standards in Section 13 -12 -3 of the Oak Brook Zoning Ordinance for Office/Hotel Uses. 7.4 SUBDIVISION REQUIREMENTS. Since the OWNER will construct all public improvements required for the Development during the development and construction process, the VILLAGE agrees that any subdivision of any portion of the Subject Property will require no additional public improvements, and that no additional fees will be required except for any fees to process the application for plat approval. 7.5 FIRE DEPARTMENT REQUIREMENTS. Except as provided in Section 9. 1, in designing the Development, the OWNER shall comply with the recommendations of the VILLAGE Fire Department and Fire Prevention Bureau as stated in the memorandum last revised on June 20, 2006, which is attached hereto and made a part hereof as Exhibit C. 8. WATER AVAILABILITY. The VILLAGE shall cooperate with OWNER, who shall submit permit applications to the Illinois Environmental Protection Agency (the "IEPA ") for watermain extensions within the Development, if any, upon the applications and supporting engineering plans being properly prepared by OWNER. 9. DONATIONS; GENERAL VILLAGE FEES. 10 9. 1 If a condominium building is constructed on the Subject Property, the OWNER agrees to provide appropriate space for the VILLAGE to install and operate a public safety radio amplification system (the "Radio System "), and provide space to the VILLAGE for repeater equipment in the penthouse utility area of such condominium building at no cost to the Village for the use of the space. In addition, the OWNER shall provide suitable antenna access through the roof of such condominium building, if constructed, and two (2) twenty (20) -amp electrical circuits powered by the emergency power system for the building. 9.2 CONSULTANTS' FEES. Upon receipt of a statement from the VILLAGE, the OWNER shall reimburse the VILLAGE for the professional consulting fees incurred by the VILLAGE for storm water consultants for the review of the Final Plans, all drafts thereof, and other documents and information related thereto, from the time of application for the Development until the last of the building permits is issued. In addition, if any third party files an action challenging or seeking to invalidate or enjoin this Agreement or any portion thereof, or any action taken or provided for herein, OWNER and the VILLAGE shall cooperate with each other in defending the validity of this AGREEMENT and each Party shall be responsible for any attorney's fees, costs, and expenses that it incurs in connection with such litigation. 9.3 BUILDING PERMIT FEES. A. Based on a review of the Development and input provided by VILLAGE staff to the date of this Agreement, the fees for plan review, building permits and inspections for the Development have been calculated to be approximately $400,000.00. This includes: (i) payment for the core and shell building permits for the hotel, health club, condominium building and planned retail uses; (ii) sign permits for the hotel, condominium and monument signs; (111) interior build -out permits for the hotel and individual condominium units; (iv) building permits 11 for the stand -alone retail building fronting 22nd Street and the building in the park; and (v) all site work. It does not include any other fees for interior build -outs of the health club or retail spaces, construction of two future restaurant buildings, any sign permits other than those identified in subparagraph (ii) of this paragraph (A), and water system and connection charges, which will be paid by the OWNER in accordance with the fee schedule established in the VILLAGE Code. B. The calculation stated in paragraph A of this section is approximate; therefore, although it is intended to assist the OWNER in its financial planning, it is not intended to be a final statement of total fees for the permits included in the calculation, as plans for the Development are preliminary. The OWNER shall be required to pay all building, water system, and other permit fees for the Development as provided in the VILLAGE Code. 9.4 NO OTHER FEES OR DONATIONS. Except as otherwise provided herein, OWNER shall not be required by the VILLAGE to pay any fees or to donate any land or money or make any other contributions to the VILLAGE. 10. SECURITY, AGREEMENT, INSPECTION, AND ACCEPTANCE. 10.1 OWNER agrees to provide to the VILLAGE an irrevocable letter of credit or other adequate security as the village engineer may approve (the "Security ") and in a form acceptable to the Village Attorney. Although no subdivision has currently been applied for or approved, the Security shall be as set forth in Section 14 -4 -4 and Chapter 9 of Title 9 of the VILLAGE Code, in an amount equal to 110% of the estimated cost, as approved by the VILLAGE Engineer, for construction of all Off -Site Public Improvements, all On -Site Public Improvements, and certain On -Site Private Improvements, which shall include but not be limited to stormwater facilities and grading and erosion control measures (the "Secured Improvements "), as depicted on the Final Plans. 12 10.2 MAINTENANCE SECURITY FOR SECURED IMPROVEMENTS. After satisfactory completion of all Secured Improvements, the VILLAGE Engineer shall submit a statement to the Board indicating the satisfactory completion of the OWNER'S obligations and recommending acceptance of such Improvements by the VILLAGE. Upon receipt of this statement and acceptance by the Board, such Improvements shall be considered complete and the Security shall be reduced to fifteen percent (15 %) of its original amount and remain in force for one (1) year as maintenance security (the "Maintenance Security ") to ensure that the OWNER repairs and corrects any failures or faulty construction of such Improvements. The VILLAGE shall have the right to make demand upon the Maintenance Security in order to correct defects in materials or workmanship in such Improvements that are discovered within one (1) year of the date of acceptance of the Secured Improvements for which the Maintenance Security has been posted, provided that notice of such defects is given to OWNER with a reasonable opportunity to cure. The VILLAGE shall release the Security after the one (1) year period, within ten (10) business days of OWNER'S written request. 11. INSPECTION AND APPROVAL. Within fifteen (15) business days after receipt of a written notice from OWNER that one or more of the Off -Site or On -Site Public and Private Improvements have been completed and all applicable testing has been done, the VILLAGE Engineer shall cause such Improvements to be inspected and either approved or disapproved. If such Improvements are not approved, the reason therefor shall, within said fifteen (15) -day period, be set forth in a written notice to OWNER. Upon OWNER's correction of the items set forth in said notice, the VILLAGE, at OWNER's written request, shall cause such Improvements to be reinspected within ten (10) business days of receipt of OWNER's written notice requesting said reinspection, and either approved or disapproved. 13 12. FINAL PUNCH LIST. Upon receipt by the VILLAGE Engineer of a written request, the VILLAGE shall reinspect the Off -Site and On -Site Public Improvements and prepare a final punch list of items to be completed or corrected. Upon satisfactory completion of all punch list items, Off -Site and On -Site Public Improvements shall be accepted by the Board, as provided in Paragraph 10.2 of this Agreement. 13. RECORD DRAWINGS. Upon completion of all Off -Site and On -Site Public and Private Improvements, OWNER shall correct the original plans or copies to show all actual as- built improvements, shall create electronic files in an electronic format as specified by the VILLAGE depicting the corrected improvement drawings, and shall provide corrected plans and electronic files to the VILLAGE. The drawings must include the words "RECORD DRAWINGS" and must be signed and sealed by a State of Illinois licensed Professional Engineer (the "Record Drawings "). The Record Drawings shall not be considered acceptable until they have been approved by the VILLAGE Engineer. 14. TRANSFER OF OFF -SITE AND ON -SITE PUBLIC IMPROVEMENTS. Except for the On -Ramp, for which ownership shall be transferred to the appropriate jurisdiction on terms and conditions satisfactory to such jurisdiction, all Off -Site and On -Site Public Improvements and any and all warranties received by owner shall be transferred by OWNER, without cost, by Bill of Sale to, and accepted for ownership, maintenance and operation by the VILLAGE, after inspection, satisfactory completion of all final punch list items, and acceptance of such Improvements. After the expiration of the one (1) -year Maintenance Security period, the VILLAGE shall be solely responsible for the maintenance and repair of such Off -Site and On -Site Public Improvements and the Maintenance Security shall be released to 14 OWNER after maintenance work, if any, is completed by OWNER, within ten (10) business days of written request by OWNER. 15. RECORDED COVENANTS. Prior to VILLAGE approval and issuance of any building permits for the Development, the OWNER shall submit a Declaration of Stormwater Facility Easements, Covenants, Conditions, and Restrictions (the " Stormwater Covenant ") in a form to be provided by the VILLAGE'S Engineering Department, as required by the VILLAGE Code, and such Stormwater Covenant shall be recorded against the Subject Property. Subject to the approval of the OWNER'S mortgagor, the OWNER shall execute and the VILLAGE shall record such Stormwater Covenant, and submit a recorded copy thereof to the OWNER, and the VILLAGE will approve and issue building permits for the Development if all other requirements for such a permit are satisfied. 16. OCCUPANCY CERTIFICATES. The VILLAGE shall issue temporary or final occupancy certificates to OWNER in accordance with Section 10 -3 -1G of the VILLAGE Code. OWNER's inability, due to adverse weather conditions, to install driveways, service walks, sidewalks, landscaping, permanent erosion control and final grading, shall not delay the issuance of a temporary certificate of occupancy; provided that the OWNER delivers security to the VILLAGE (that is similar in nature and form to the Security) to assure the completion of said unfinished items within twelve (12) months after the first temporary occupancy permit is issued. Once unfinished items have been completed and approved by the VILLAGE, the VILLAGE shall issue final occupancy certificates and release the above - described security. 17. APPLICABLE ORDINANCES, CODES, RULES AND REGULATIONS. Except as otherwise provided herein, OWNER shall be subject to and comply with all of the provisions of the VILLAGE Code, and all other applicable VILLAGE ordinances, codes, rules 15 and regulations in effect, as such ordinances, codes, rules and regulations have been amended from time to time by the VILLAGE. To the extent applicable, OWNER shall comply with the requirements of all other governmental agencies. If, from time to time during the term of this Agreement, the provisions of any existing VILLAGE ordinances, codes, rules or regulations are amended or modified so as to impose requirements upon the construction of the Development that are more stringent than those existing as of the Effective Date of this Agreement, such amendment or modification shall not be effective as applied to the Development. Except as otherwise provided herein, the Special Use Ordinance, the Text Amendment Ordinance and any plans approved by the VILLAGE shall remain valid and in effect throughout the construction of the Development. 18. TERM. This Agreement shall be binding upon and inure to the benefit of the OWNER, the VILLAGE and their respective successors and assigns (other than purchasers of individual dwelling units constructed on the Subject Property) for a term commencing after the OWNER has executed this Agreement and on the date the VILLAGE Board approves it, and ending on December 31, 2012; provided that the indemnification provisions of this Agreement and any cause of action to enforce this Agreement shall survive the term hereof. The parties agree that during the term of this Agreement, they will, together with ISTHA, cooperate in obtaining a feasibility study for the On -Ramp, and the OWNER agrees to pay Five Thousand Dollars ($5,000.00) to the VILLAGE toward the costs of such a study. 19. EFFECTIVE DATE. The "Effective Date" of this Agreement shall be the date of its approval by the VILLAGE. 16 20. GENERAL PROVISIONS. 20.1 TIME OF ESSENCE /COOPERATION OF PARTIES. Time is of the essence of this Agreement and of each and every provision hereof. The OWNER and the VILLAGE shall cooperate with one another on an ongoing basis and make every reasonable effort to further the implementation of the provisions of this Agreement and their intentions as reflected by the provisions of this Agreement. Specifically, but without limitation, in connection with OWNER's performance of its obligations under this Agreement, the VILLAGE agrees to execute such applications and documents as may be necessary to obtain approvals and authorizations from other governmental or administrative agencies and to cooperate otherwise to the extent necessary to assure OWNER's performance of those obligations. 20.2 CONFLICT WITH ORDINANCES. If any pertinent existing resolutions or ordinances, or interpretations thereof, of the VILLAGE are inconsistent or in conflict with any provision hereof, then the provisions of this Agreement and the ordinances passed with respect to the Development shall constitute lawful and binding amendments to, and shall supersede the terms of said inconsistent ordinances or resolutions, or interpretations thereof, as they may relate to the Development. 20.3 ASSIGNABILITY. The OWNER shall not assign its rights or delegate its duties hereunder, and such rights shall not inure to subsequent owners of the Subject Property, unless the VILLAGE provides its prior written express consent of the proposed assignee of such rights, which consent shall not be withheld unreasonably. The parties agree that it shall be unreasonable for the VILLAGE to withhold its consent if the proposed assignee is an experienced, reputable, qualified and significant developer of the type of mixed use development contemplated in this Agreement. If the OWNER desires the VILLAGE approve an assignment it shall make such 17 request to the VILLAGE in writing, which request shall identify the proposed assignee, and the OWNER shall provide the VILLAGE with all information reasonably requested by the VILLAGE with respect to the proposed assignee's qualifications. The VILLAGE will provide its response within twenty (20) business days of its receipt of the request. 20.4 NOTICES. All notices or other writings which either party to this Agreement is required to, or may wish to, serve upon the other in connection with this Agreement shall be in writing and shall be delivered personally or sent by U.S. Mail, postage prepaid, or confirmed facsimile to the following street or facsimile addresses: (a) If to VILLAGE: Village of Oak Brook Attn: Village Manager 1200 Oak Brook Road Oak Brook, IL 60523 Facsimile: 630 - 368 -5045 With a copy to: Village Attorney Village of Oak Brook 1200 Oak Brook Road Oak Brook, IL 60523 Facsimile: 630 - 368 -5045 (b) If to OWNER: John O'Donnell The John Buck Company One North Wacker Drive Suite 2400 Chicago, IL 60606 -2809 Facsimile: 312- 993 -0857 With a copy to: John H. Brechin Law Offices of John H. Brechin 619 South Addison Road Addison, IL 60101 Facsimile: 630-834-4966 or to such other street or facsimile addresses as either party may from time to time designate by written notice to the other. All notices shall be deemed effective as of the date of receipt, in the case of personal delivery; two (2) days after deposit in the U.S. mails, in the case of notice set by mail; and as of the date of transmission, if delivered by fax (provided the transmitting machine provides a record confirmation of the day and time of transmission). 20.5 AMENDMENT. This Agreement, and any exhibits attached hereto, may be amended only in writing and only by the mutual consent of the parties, as provided by law. 20.6 ENTIRE AGREEMENT; INTEGRATION OF EXHIBITS. Except as otherwise expressly provided herein, this Agreement constitutes the entire agreement and understanding of the OWNER and the VILLAGE relative to the subject matter hereof, superseding all prior agreements, understandings and negotiations (all of which are expressly merged herein). All exhibits to this Agreement are incorporated herein by this reference 20.7 SEVERABILITY. In the event any term or provision of this Agreement is held to be unenforceable by a court of competent jurisdiction, the remainder shall continue in full force and effect, to the extent the remainder can be given effect without the invalid provision. 20.8 REMEDIES. The OWNER and the VILLAGE may, either in law or equity, by suit, action, mandamus, or other proceedings, enforce or compel performance of this Agreement. No action taken pursuant to the provisions of this Section or pursuant to the provisions of any other Section of this Agreement shall be deemed to constitute an election of remedies, and all 19 remedies set forth in this Agreement shall be cumulative and non - exclusive or otherwise available at law or in equity. 20.9 BREACH OF AGREEMENT. In the event of a material breach of this Agreement, the party alleged to be in breach shall have forty -five (45) days notice of said breach to correct the same prior to the non - breaching party seeking any remedy provided for herein (provided, however, that said forty -five (45) -day period shall be extended if the defaulting party has initiated the cure of said default and is diligently proceeding to cure the same). 20.10 DEFAULT; CURE. If either party fails to perform any of its obligations hereunder and the other party gives notice of such default to the defaulting party, and such defaulting party fails to cure such default within forty -five (45) days of such default notice (or any extension of said forty -five (45) day -day period if the defaulting party has initiated the cure of said default and is diligently proceeding to cure the same), then in addition to any and all other remedies that may be available, either in law or equity, the non - defaulting party shall have the right (but not the obligation) to take such action as in its reasonable discretion and judgment shall be necessary to cure such default. In such event, the defaulting party hereby agrees to pay and reimburse the non - defaulting party for all reasonable costs and expenses incurred by it in connection with action taken to cure such default. 20.11 NO PUNITIVE DAMAGES. Notwithstanding the foregoing, under no circumstances shall either of the OWNER or the VILLAGE be liable to the other for any punitive damages as a result of a default by any Party under this Agreement. 20.12 NO WAIVER. The failure of either the OWNER or the VILLAGE to insist upon the strict and prompt performance of the terms, covenants, agreements, and conditions herein contained, shall not be construed as a waiver or relinquishment of such party's right thereafter to 20 enforce any such term, covenant, agreement, or condition, but the same shall continue in full force and effect. 20.13 GOVERNING LAW. This Agreement shall be construed in accordance with the laws of the State of Illinois, and venue shall be appropriate only in the 18th Judicial Circuit, DuPage County, Illinois. 20.14 EXECUTION IN COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute but one and the same agreement. 20.15 RECORDING. The VILLAGE shall cause a Memorandum of this Agreement to be recorded against the Subject Property in substantially the same form attached hereto as Exhibit D. Such Memorandum shall be terminated at the end of the Term. IN WITNESS WHEREOF the parties have executed this Agreement. VILLAGE OF OAK BROOK, an Illinois YORK ROAD EW LLC, a Delaware Municipal corporation limited liability company Date: By: President ATTEST: By: Village Clerk 21 Date: By: Its ATTEST: By: Its STATE OF ILLINOIS ) COUNTY OF DUPAGE ) I, , a Notary Public in and for said County and State, do hereby certify that , Village President of the Village of Oak Brook, and Village Clerk of the Village of Oak Brook, personally known to me to be the same persons whose names are subscribed to the foregoing instrument as such President and Clerk, respectively, appeared before me this day in person and acknowledged that they signed, sealed, and delivered the foregoing instrument as their free and voluntary acts, as the free and . voluntary act of said municipal corporation, and pursuant to their authority as officers of the Village of Oak Brook, for the uses and purposes therein set forth. GIVEN under my hand and Notarial Seal this day of 52007. Notary Public STATE OF ILLINOIS ) COUNTY OF ) a Notary Public in and for said County and State, do hereby certify that of York Road EW LLC, and of York Road EW LLC, personally known to me to be the same persons whose names are subscribed to the foregoing instrument as such and , respectively, appeared before me this day in person and acknowledged that they signed, sealed, and delivered the foregoing instrument as their free and voluntary acts, as the free and voluntary act of said corporation, and pursuant to their authority as officers of the York Road EW LLC, for the uses and purposes therein set forth. GIVEN under my hand and Notarial Seal this day of , 2007. Notary Public 22 EXHIBIT A LEGAL DESCRIPTION OF SUBJECT PROPERTY 2100 YORK ROAD PIN Number: 06 -24- 308 -001 LOT 1 IN BABSON BROS. CO. ASSESSMENT PLAT, BEING A SUBDIVISION OF PART OF THE SOUTHWEST QUARTER OF SECTION 24, TOWNSHIP 39 NORTH, RANGE 11 EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT RECORDED NOVEMBER 6, 1963, AS DOCUMENT R63 -40696 IN DUPAGE COUNTY, ILLINOIS. 2122 YORK ROAD PIN Number: 06 -24- 308 -002 LOT 3 OF BUTLER COMPANY — M -1, INC. ASSESSMENT PLAT NO. 3, RECORDED JULY 8, 1964 AS DOCUMENT R64- 24070, BEING A PART OF THE SOUTHWEST 1/4 OF SECTION 24, TOWNSHIP 39 NORTH, RANGE 11 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN DUPAGE COUNTY, ILLINOIS, BEING MORE FULLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF THE SOUTHWEST 1/4 OF SAID SECTION 24; THENCE SOUTH 89 DEGREES 36 MINUTES 25 SECONDS WEST, ALONG THE SOUTH LINE OF THE SOUTHWEST 1/40F SAID SECTION 24, SAID LINE ALSO BEING THE CENTER LINE OF 22ND STREET, A DISTANCE OF 1119.0 FEET; THENCE NORTH 00 DEGREES 23 MINUTES 35 SECONDS WEST A DISTANCE OF 83.72 FEET TO A POINT ON THE NORTH RIGHT OF WAY LINE OF 22ND STREET FOR A POINT OF BEGINNING, SAID POINT ALSO BEING ON THE EASTERLY RIGHT OF WAY LINE OF A DEDICATED ROAD (DOCUMENT R62- 7996); THENCE CONTINUING NORTH 00 DEGREES 23 MINUTES 35 SECONDS WEST ALONG SAID EASTERLY RIGHT OF WAY LINE OF A DEDICATED ROAD A DISTANCE OF 98.37 FEET TO A POINT OF CURVATURE; THENCE NORTHEASTERLY ALONG SAID EASTERLY LINE OF A DEDICATED ROAD BEING A CURVE CONVEX NORTHWESTERLY AND HAVING A RADIUS OF 238.66 FEET, A DISTANCE OF 229.10 FEET TO A POINT OF TANGENCY; THENCE NORTH 54 DEGREES 36 MINUTES 25 SECONDS EAST ALONG SAID EASTERLY RIGHT OF WAY LINE OF A DEDICATED ROAD, A DISTANCE OF 112.50 FEET TO THE SOUTHWEST CORNER OF BABSON BROS. CO. ASSESSMENT PLAT 23 (DOCUMENT R63- 40696); THENCE NORTH 89 DEGREES 37 MINUTES 56 SECONDS EAST ALONG THE SOUTHERLY LINE OF SAID BABSON BROS. CO. ASSESSMENT PLAT A DISTANCE OF 851.12 FEET TO A POINT ON THE WEST RIGHT OF WAY LINE OF YORK ROAD; THENCE SOUTH 00 DEGREES 15 MINUTES 24 SECONDS EAST ALONG SAID WEST RIGHT OF WAY LINE OF YORK ROAD A DISTANCE OF 301.70 FEET; THENCE SOUTH 44 DEGREES 36 MINUTES 25 SECONDS WEST A DISTANCE OF 91.99 FEET TO A POINT ON SAID NORTH RIGHT OF WAY LINE OF 22ND STREET; THENCE SOUTH 89 DEGREES 36 MINUTES 25 SECONDS WEST ALONG SAID NORTH RIGHT OF WAY LINE OF 22ND STREET A DISTANCE OF 630.65 FEET TO A POINT; THENCE NORTH 88 DEGREES 57 MINUTES 39 SECONDS WEST ALONG SAID NORTH RIGHT OF WAY LINE OF 22ND STREET A DISTANCE OF 348.75 FEET TO THE POINT OF BEGINNING, IN DUPAGE COUNTY, ILLINOIS. 24 EXHIBIT B DOCUMENTS COMPRISING APPROVED DEVELOPMENT CONCEPT PLAN -D 6 C' UM Ma P, P,rq wo ...... " , "'. " I - , % Use Plan (two (2) pages) Last rev'd 5-15-07 Goettsch Partners 224 S. Michigan Avenue Bolingbrook, IL 60515 Retail Concept Elevation and Signage Zones Last rev'd 5-16-07 Same Hotel Elevation Last rev'd 5-16-07 Same Condominium Concept Elevation Last rev'd 5-16-07 Same Monument Signage Last rev'd 5-16-07 Same Wayfindmg [Signage] Ground Hotel Signage Last rev'd 5-16-07 Same Hotel Entry Signage (Porte Cochere) North Elevation Hotel Signage South Elevation Hotel Signage Preliminary Grading Plan Last rev'd 5-16-07 Bollinger, Lach and Associates 1010 Jorie Blvd Oak Brook, Illinois 60523 Tree Survey Last rev'd 2-16-07 Walsh Landscape Construction 1050 Lily Cache Road Bolingbrook, IL 60440 Concept Landscape Plan (page L-1) Last rev'd 5/16-07 Same Pond and Retaining Wall Detail Last rev'd 6/18/07 Same Typical Sidewalk Detail Last rev'd 5-16-07 Goettsch Partners Park Detail 224 S Michigan Avenue, Floor 17 Island Detail Chicago, Illinois 60604 Pedestrian Access Plan Last rev'd 5-16-07 Same Vehicular Access Plan Last rev'd 5-16-07 Same Outdoor Dining Last rev'd 5-16-07 Same Parking Plan (two (2) pages) Last rev'd 5-16-07 Same Site Section Last rev'd 5-16-07 Same 25 EXHIBIT C FIRE DEPARTMENT RECOMMENDATIONS 26 EXHIBIT D MEMORANDUM OF AGREEMENT 27 Space above for Recorder Use Only MEMORANDUM OF AGREEMENT (Clearwater Development Project) Northwest Corner of York Road and 22nd Street Oak Brook, IL 60523 PIN's: 06 -24- 308 -001 06 -24- 308 -002 Prepared by and mail to: Barbara J. Gosselar Kubiesa, Spiroff, Gosselar & Acker, P.C. 533 West North Avenue - Suite 204 Elmhurst, Illinois 60126 W State of Illinois ) ) SS County of DuPage ) MEMORANDUM OF AGREEMENT WHEREAS, the Village of Oak Brook, an Illinois municipal corporation, and York Road EW L.L.C., a Delaware Limited Liability Company, have entered into a document entitled "Development Agreement (Clearwater Development Project) ", dated 2007, concerning the property which is legally described on Exhibit "A" hereto (the Subject Property "); and WHEREAS, the parties to the Development Agreement intend to give notice of certain conditions and restrictions running with the land with respect to the Subject Property, and which are binding upon successors and assigns pursuant to the Development Agreement; and NOW, THEREFORE, it is hereby agreed by and between the parties as follows: 1. Recitals. The aforesaid recitals are hereby incorporated herein by reference. 2. Terms of Development Agreement. The terms of that Development Agreement aforesaid, as are on file with the Village of Oak Brook, are hereby incorporated herein by reference. 3. Recording. This Memorandum of Agreement shall be recorded in the office of the DuPage County Recorder of Deeds in order to give notice to and bind successors and assigns to terms, conditions and restrictions of the Development Agreement that may affect their interest in the Subject Property. IN WITNESS WHEREOF, the parties hereto have set their hands and seals this day of 52007. VILLAGE OF OAKBROOK, an Illinois YORK ROAD EW LLC, a Delaware Municipal corporation limited liability company By: President ATTEST: By: Village Clerk 29 By: Its ATTEST: By: Its STATE OF ILLINOIS ) SS. COUNTY OF DUPAGE ) I, , a Notary Public in and for said County and State, do hereby certify that , Village President of the Village of Oak Brook, and Village Clerk of the Village of Oak Brook, personally known to me to be the same persons whose names are subscribed to the foregoing instrument as such President and Clerk, respectively, appeared before me this day in person and acknowledged that they signed, sealed, and delivered the foregoing instrument as their free and voluntary acts, as the free and voluntary act of said municipal corporation,- and pursuant to their authority as officers of the Village of Oak Brook, for the uses and purposes therein set forth. GIVEN under my hand and Notarial Seal this day of 52007. Notary Public STATE OF ILLINOIS ) SS. COUNTY OF ) I, , a Notary Public in and for said County and State, do hereby certify that of York Road EW LLC, and of York Road EW LLC, personally known to me to be the same persons whose names are subscribed to the foregoing instrument as such and , respectively, appeared before me this day in person and acknowledged that they signed, sealed, and delivered the foregoing instrument as their free and voluntary acts, as the free and voluntary act of said corporation, and pursuant to their authority as officers of the York Road EW LLC, for the uses and purposes therein set forth. GIVEN under my hand and Notarial Seal this day of , 2007. Notary Public 30 EXHIBIT A LEGAL DESCRIPTION OF SUBJECT PROPERTY 2100 YORK ROAD PIN Number: 06 -24- 308 -001 r LOT 1 IN BABSON BROS. CO. ASSESSMENT PLAT, BEING A SUBDIVISION OF PART OF THE SOUTHWEST QUARTER OF SECTION 24, TOWNSHIP 39 NORTH, RANGE 11 EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT RECORDED NOVEMBER 6, 1963, AS DOCUMENT R63 -40696 IN DUPAGE COUNTY, ILLINOIS. 2122 YORK ROAD PIN Number: 06 -24- 308 -002 LOT 3 OF BUTLER COMPANY — M -11 INC. ASSESSMENT PLAT NO. 3, RECORDED JULY 8, 1964 AS DOCUMENT R64- 24070, BEING A PART OF THE SOUTHWEST 1/40F SECTION 24, TOWNSHIP 39 NORTH, RANGE 11 EAST OF THE THIRD PRINCIPAL MERIDIAN, IN DUPAGE COUNTY, ILLINOIS, BEING MORE FULLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF THE SOUTHWEST 1/4 OF SAID SECTION 24; THENCE SOUTH 89 DEGREES 36 MINUTES 25 SECONDS WEST, ALONG THE SOUTH LINE OF THE SOUTHWEST 1/40F SAID SECTION 24, SAID LINE ALSO BEING THE CENTER LINE OF 22ND STREET, A DISTANCE OF 1119.0 FEET; THENCE NORTH 00 DEGREES 23 MINUTES 35 SECONDS WEST A DISTANCE OF 83.72 FEET TO A POINT ON THE NORTH RIGHT OF WAY LINE OF 22ND STREET FOR A POINT OF BEGINNING, SAID POINT ALSO BEING ON THE EASTERLY RIGHT OF WAY LINE OF A DEDICATED ROAD (DOCUMENT R62- 7996); THENCE CONTINUING NORTH 00 DEGREES 23 MINUTES 35 SECONDS WEST ALONG SAID EASTERLY RIGHT OF WAY LINE OF A DEDICATED ROAD A DISTANCE OF 98.37 FEET TO A POINT OF CURVATURE; THENCE NORTHEASTERLY ALONG SAID EASTERLY LINE OF A DEDICATED ROAD BEING A CURVE CONVEX NORTHWESTERLY AND HAVING A RADIUS OF 238.66 FEET, A DISTANCE OF 229.10 FEET TO A POINT OF TANGENCY; THENCE NORTH 54 DEGREES 36 MINUTES 25 SECONDS EAST ALONG SAID EASTERLY RIGHT OF WAY LINE OF A DEDICATED ROAD, A DISTANCE OF 112.50 31 FEET TO THE SOUTHWEST CORNER OF BABSON BROS. CO. ASSESSMENT PLAT (DOCUMENT R63- 40696); THENCE NORTH 89 DEGREES 37 MINUTES 56 SECONDS EAST ALONG THE SOUTHERLY LINE OF SAID BABSON BROS. CO. ASSESSMENT PLAT A DISTANCE OF 851.12 FEET TO A POINT ON THE WEST RIGHT OF WAY LINE OF YORK ROAD; THENCE SOUTH 00 DEGREES 15 MINUTES 24 SECONDS EAST ALONG SAID WEST RIGHT OF WAY LINE OF YORK ROAD A DISTANCE OF 301.70 FEET; THENCE SOUTH 44 DEGREES 36 MINUTES 25 SECONDS WEST A DISTANCE OF 91.99 FEET TO A POINT ON SAID NORTH RIGHT OF WAY LINE OF 22ND STREET; THENCE SOUTH 89 DEGREES 36 MINUTES 25 SECONDS WEST ALONG SAID NORTH RIGHT OF WAY LINE OF 22ND STREET A DISTANCE OF 630.65 FEET TO A POINT; THENCE NORTH 88 DEGREES 57 MINUTES 39 SECONDS WEST ALONG SAID NORTH RIGHT OF WAY LINE OF 22ND STREET A DISTANCE OF 348.75 FEET TO THE POINT OF BEGINNING, IN DUPAGE COUNTY, ILLINOIS. 32