S-1540 - 06/12/2018 - AGREEMENT - Ordinances Supporting DocumentsBOT 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
June 12, 2018
SUBJECT: Resolving Pending Litigation Concerning 2055 Clearwater Drive
FROM: Greg Jones, Village Attorney
BUDGET SOURCE/BUDGET IMPACT: See Below
RECOMMENDED MOTION: Motion to Approve Ordinance 2018 - 1540, An
Ordinance Approving and Authorizing the Execution of a Settlement Agreement
Between Senior Lifestyle Development Company, LLC, York Road Associates, LLC,
and the Village of Oak Brook.
Background/History:
On February 16, 2018, Senior Lifestyle Development Company, LLC (“SLDC”) and York
Road Associates, LLC (“York”) filed suit against the Village of Oak Brook in the Circuit
Court of the Eighteenth Judicial Circuit, DuPage County, Illinois. The lawsuit relates to the
Village’s denial of certain zoning applications SLDC and York filed concerning the
property located at 2055 Clearwater Drive. The lawsuit is currently pending.
The Village, SLDC, and York have negotiated to resolve all outstanding disputes
concerning the lawsuit. The terms of the parties’ agreement are contained in the settlement
agreement and Release that is before the Village Board for consideration. Approving the
settlement agreement will allow the parties to dismiss the lawsuit and secure additional
benefits for the Village, as set forth in the agreement.
Recommendation:
Pass the ordinance approving and authorizing the execution of a settlement agreement
between Senior Lifestyle Development Company, LLC, York Road Associates, LLC, and
the Village of Oak Brook.
ITEM 6.D.9
ORDINANCE 2018-1540
AN ORDINANCE APPROVING AND AUTHORIZING THE EXECUTION OF A SETTLEMENT
AGREEMENT AND RELEASE BETWEEN THE VILLAGE OF OAK BROOK, YORK ROAD
ASSOCIATES, LLC, AND SENIOR LIFESTYLE DEVELOPMENT COMPANY, LLC
WHEREAS, the Village of Oak Brook , Illinois, (“Village”) is an Illinois municipal corporation
organized and operating pursuant to the Illinois Municipal Code (65 ILCS 5/1-1-1, et seq.) and the State
of Illinois Constitution; and
WHEREAS, the Village is currently engaged in litigation with York Road Associates, LLC (“York”)
and Senior Lifestyle Development Company, LLC (“SLDC”), concerning a property located on Clearwater
Drive in the Village (the “Lawsuit”); and
WHEREAS, the Village, York, and SLDC wish to settle and dispose of the Lawsuit in accordance
with the terms set forth in the Settlement Agreement and Release attached to this Ordinance as Exhibit A
(the “Agreement”).
NOW THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF
THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS as follows:
Section 1: The foregoing recitals are incorporated as though fully set forth in this Section 1.
Section 2: The Village President and Board of Trustees hereby approve the Agreement
attached hereto as Exhibit A.
Section 3: The Village President and the Village Clerk are authorized to execute the
Agreement, and the Village Manager is authorized to take all steps necessary to enforce the Agreement’s
terms.
Section 4: This Ordinance shall be in full force and effect upon passage and approval in the
manner provided by law.
[SIGNATURE PAGE FOLLOWS]
Ordinance 2018-1540
Approving and Authorizing the Execution of a Settlement
Agreement and Release with York Road Associates, LLC,
and Senior Lifestyle Development Company, LLC
Page 2 of 3
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APPROVED THIS _______ day of June, 2018
____________________________
Gopal G. Lalmalani
Village President
PASSED THIS __________ day of June, 2018
Ayes: ___________________________________________________________
Nays: ___________________________________________________________
Absent: __________________________________________________________
ATTEST:
_____________________________________
Charlotte K. Pruss
Village Clerk
Ordinance 2018-1540
Approving and Authorizing the Execution of a Settlement
Agreement and Release with York Road Associates, LLC,
and Senior Lifestyle Development Company, LLC
Page 3 of 3
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EXHIBIT A
SETTLEMENT AGREEMENT AND RELEASE
[Attached]
4835-1804-0935, v. 1
Execution Copy
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement (“Agreement”) is made and entered into this 12th day
of June, 2018 by and between York Road Associates, LLC (“York”) and Senior Lifestyle
Development Company, LLC (“SLDC”) (SLDC and York are collectively “Developer”),
on the one hand, and the Village of Oak Brook (“Village”), on the other hand. The
Developer and Village are collectively referred to as the “Parties,” and individually
referred to as a “Party.”
RECITALS
WHEREAS, York is the fee simple owner of the property commonly known as
2055 Clearwater Drive, Oak Brook, Illinois, as legally described on Exhibit 1 attached
hereto (the “Property”), and SLDC is the Property’s contract purchaser; and
WHEREAS, the Parties are parties to a certain action titled York Road
Associates, LLC and Senior Lifestyle Development Company, LLC v. Village of Oak
Brook, Case No. 18 CH 000224, now pending in the Circuit Court of the Eighteenth
Judicial Circuit, DuPage County, Illinois (“Lawsuit”); and
WHEREAS, the Lawsuit challenges the Village’s denial of the Developer’s
request for a special use and zoning variances (“Zoning Relief”) to construct a 200-unit
age restricted development (“Development”) on the Property as arbitrary and
unreasonable; and
WHEREAS, the Village denied the Zoning Relief after providing all notice
required by Village ordinance and Illinois law and conducting all public hearings and
meetings required by the same; and
WHEREAS, after filing the Lawsuit, the Developer submitted applications to the
Village seeking approval of the entitlements set forth in Section 2(f) of this Agreement,
the Village provided all notice required by Village ordinance and Illinois law concerning
the applications, and the Village conducted all public hearings and meetings required by
the same; and
WHEREAS, the Developer presented information on the record during the
Village’s public hearings and meetings that, based on Developer’s then current analysis,
Developer projected that the Development would likely generate approximately 7.9
ambulance trips per month; and
WHEREAS, the Parties have resolved their differences and hereby mutually
agree, and by the execution of this Agreement, acknowledge such mutual assent, to settle
all disputes between them amicably, including but not limited to, any matters related to
the Lawsuit and the Zoning Relief, and any and all claims which have been or could have
been asserted in the Lawsuit, in order to avoid the expense, inconvenience and delay of
continued litigation and to achieve an expeditious resolution of the matter; and
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WHEREAS, it is the express intention of the Parties to settle, release, and
compromise all claims against one another arising out of or related to the Lawsuit and the
events and circumstances connected therewith in an amicable fashion and without any of
the Parties hereto admitting fault, liability, or other wrongdoing; and
WHEREAS, the Village recognizes that this Agreement does not constitute any
admission of fault, responsibility, or liability for its actions related to the Lawsuit, Zoning
Relief, Development, or the Property; and
WHEREAS, Developer recognizes that this Agreement does not constitute any
admission of any procedural or substantive errors of fact or law by the Village or any of
its agents related to the Lawsuit, Zoning Relief, Development, or the Property;
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
obligations contained herein, the adequacy and sufficiency of which are hereby
acknowledged, and in full settlement of all disputes between the Parties, IT IS HEREBY
AGREED AS FOLLOWS:
1. Incorporation: The foregoing recitals are adopted and incorporated as though
fully set forth herein.
2. Developer’s Settlement Obligations.
a. Developer agrees and consents to the entry of the Consent Decree
accompanying this Agreement dismissing the Lawsuit with prejudice pursuant to this
Agreement’s terms, and agrees to cooperate with the Village concerning entry of the
same. Developer agrees to promptly dismiss the Lawsuit with prejudice upon entry of the
Consent Decree, and Developer agrees to promptly present the Consent Decree to the
Court upon this Agreement’s mutual execution.
b. Developer, its past, present, and future officers, directors, managers,
employees, agents, trustees, attorneys, successors in interest, stockholders, owners,
representatives, subsidiaries, parent companies, affiliates, insurers, partners and assigns,
including, without limitation, any Operator Entity, as that term is defined in Section 2(c)
(collectively the “Developer Parties”), hereby release and forever discharge the Village,
its past, present, and future elected and appointed officials, officers, directors, employees,
agents, attorneys, representatives, volunteers and assigns (collectively the “Village
Parties”), from any and all past or present claims, demands, obligations, suits at law,
third-party actions, counterclaims, damages, losses, expenses, or compensation of any
nature, whether based in tort, statute, constitution, contract, indemnity, or contribution,
known or unknown, that now exist or which may hereafter accrue on account of or in any
way growing out of or related to the Lawsuit or the Zoning Relief, including, without
limitation, any substantive or procedural due process claims relating to the same.
c. For purposes of this Agreement, the “Operator Entity” is the fee simple owner
of the Property (currently York) and the fee simple owner’s grantees, successors in
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interest, assigns, heirs, lessees, and executors. Upon the Village’s issuance of a
certificate of occupancy for the Development, and on each June 1 in the succeeding years
thereafter for nineteen (19) years (“Payment Period”), the Operator Entity agrees to
make the annual payments to the Village as set forth on Exhibit 2 to this Agreement
(each, an “Annual Payment,” and the total of all such Annual Payments is the “Total
Amount”), such amounts constituting the potential annual sales tax revenue foregone by
the Village during the Payment Period as a result of the Development and the anticipated
emergency service burden imposed on the Village by the Development. The Parties
agree that any payment or fee imposed by this Agreement bears a rational relationship to
the Development, is specifically and uniquely attributable to the Development, and is
roughly proportional to the impacts that the Development is anticipated to generate.
Section 2(h) shall apply if the number of ambulance trips made by the Village exceeds
the thresholds as set forth in that Section. Excluding the Annual Payment due upon the
Village’s issuance of a certificate of occupancy for the Development, each Annual
Payment shall be due on or before each June 1 during the Payment Period, without
demand, notice, or request by the Village. If, at any time during the Payment Period, the
Village levies a municipal real property tax against the Property, the amount of the
municipal real property tax collected and received by the Village during a calendar year
shall be credited against the Operator Entity’s Annual Payment for the following calendar
year. The Operator Entity shall have the right (but not the obligation) to prepay all or any
part of the remaining Total Amount due under this Section 2(c) at any time during the
Payment Period without premium or penalty (with any partial prepayment applied to
amounts then next coming due).
d. The Operator Entity agrees to contract to make available a private ambulance
service for all non-emergency medical transportation to and from the Property, and
the Development’s residents may choose to use such service or a private ambulance
service of their own selection. The Operator Entity’s obligation under this Section
2(d) shall commence upon the Village’s issuance of a certificate of occupancy for the
Development. For the purposes of this Section, terms shall be defined as provided in
the Emergency Medical Services (EMS) Systems Act at 210 ILCS 50/1, et seq.
“Emergency” means a medical condition of recent onset and severity that would lead
a prudent layperson, possessing an average knowledge of medicine and health, to
believe that urgent or unscheduled medical care is required. (210 ILCS 50/3.5, as
amended). “Non-Emergency Medical Services” means medical care or monitoring
rendered to patients whose conditions do not meet the definition of an emergency,
before or during transportation of such patients to or from health care facilities visited
for the purposes of obtaining medical or health care services which are not emergency
in nature, using a vehicle regulated by the Emergency Medical Services Systems Act.
(210 ILCS 50/3.5, as amended).
e. The Operator Entity’s obligations under the foregoing Sections 2(c) and
2(d) are conditioned upon the issuance of a certificate of occupancy for the
Development.
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f. All of Developer’s obligations under this Agreement are conditioned upon the
Village’s approval of the following applications submitted by the Developer, collectively
known as “Developer’s Application”:
1) Special use amendment to Ordinance S-1183 to allow development of a
200 unit senior housing development on the Property;
2) Variance to Village Zoning Code (“Code”) Section 13-12-7G.2 to reduce
the number of required vehicle loading berths from four (4) to one (1);
3) Variance to Code Section 13-3-17B.2 to allow construction of a fence
measuring eight (8’) feet in height;
4) Variance to Code Section 13-12-4C.3 to eliminate required interior
parking lot landscape islands and to allow consolidation of required
landscaping;
5) Variance to Code Section 13-10E-3C.2 to allow vehicle loading and an
electrical generator to encroach into the required thirty (30’) foot setback;
6) Variance to Code Section 13-12-7A.1 to allow a masonry screening
structure measuring no more than twelve (12’) feet in height; and
7) Variance to Code Section 13-14-6F to allow Developer to file a variance
application before January 9, 2019.
All of the Parties’ duties, rights, and obligations under this Agreement shall be null and
void if the Developer’s Application is not approved by the Village.
g. Developer and Operating Entity agree to comply with all Village ordinances,
codes, rules, and regulations, as amended, and as may be expressly modified by the
approval of Developer’s Application, concerning the Development, the Property, and the
Developer’s use and development of the same, excluding any Village ordinance, code,
rule, or regulation declared unlawful by a court of competent jurisdiction.
h. If the Village makes twelve (12) or more ambulance trips per month for
any consecutive three (3) month period related to residents of the Development only, the
Operator Entity agrees to pay the Village an emergency medical service fee equal to the
number of ambulance trips that exceed 8 per month (“Excess Calls”) multiplied by the
fee set forth in Title 3, Chapter 2 of the Village Code of the Village of Oak Brook, as
amended, but only if and to the extent that the Village does not receive full payment for
such Excess Calls in the normal course of the Village’s collection efforts (“Emergency
Service Support Fee”). The Operator Entity shall pay the Emergency Service Support
Fee for each three (3) month period during which the number of monthly ambulance calls
received by the Village equals or exceeds twelve (12). The Emergency Service Support
Fee shall be in addition to all other fees authorized or associated with the Village’s
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provision of ambulance services to the Property and all other payments and fees
contemplated by this Agreement. The Emergency Service Support Fee shall be due
within thirty (30) days of the Operator Entity’s receipt of the Village’s written request,
which shall include a copy of all emergency service records relied upon by the Village to
determine that the Emergency Service Support Fee is due.
3. Village’s Settlement Obligations.
a. Village agrees and consents to the entry of the Consent Decree accompanying
this Agreement dismissing the Lawsuit with prejudice pursuant to this Agreement’s
terms, and agrees to cooperate with the Developer concerning entry of the same.
b. Village hereby releases and forever discharges the Developer Parties from any
and all past or present claims, demands, obligations, suits at law, third-party actions,
counterclaims, damages, losses, expenses, or compensation of any nature, whether based
in tort, statute, constitution, contract, indemnity, or contribution, known or unknown, that
now exist or which may hereafter accrue on account of or in any way growing out of or
related to the Lawsuit or the Zoning Relief.
c. Village agrees to conduct all necessary meetings and hearings required by state
or local law to consider the Developer’s Application and to approve Developer’s
Application.
d. The Village and Village Parties will not unreasonably obstruct, unreasonably
withhold, or unreasonably delay the issuance of any permit or certificate required to
construct or occupy the Development, subject to compliance by Developer, Developer
Parties, and Operating Entity with all applicable Village ordinances, codes, rules, and
regulations. The Village agrees to defend itself in any challenge to the Village’s approval
of the Developer’s Application brought by a third party.
4. Terms and Conditions.
a. The Parties understand and acknowledge that liability is expressly denied by
each Party. Accordingly, the Parties understand and acknowledge that this Agreement is a
compromise of doubtful and disputed claims, and that any consideration offered pursuant
to this Agreement shall not be construed as an admission of liability by any of the Parties.
The Parties enter into this Agreement solely to avoid the burdens and uncertainties of
litigation.
b. The Parties agree that should any of the Village Parties or any of the
Developer Parties fail to abide by the terms of this Agreement, nothing in this Agreement
shall prevent either Party from seeking to enforce the terms of this Agreement, including
seeking injunctive relief as necessary to ensure the Parties’ compliance with this
Agreement’s terms.
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c. The Parties understand and acknowledge that this Agreement was achieved
through arms length bargaining by the Parties through their respective counsel over
matters that are disputed both factually and legally. The Parties have been advised by
their attorneys and wholly rely upon their own judgment, belief, and knowledge as to the
nature and extent of any potential damages or claims, and no representations or
statements regarding such damages or claims have been made by the Parties so as to
influence one another to any extent in entering into this Agreement, other than as set forth
herein. The Parties acknowledge and recite that they enter into this Agreement
knowingly and voluntarily, and that there is valid and sufficient consideration for this
Agreement.
d. This Agreement shall be a fully binding and complete settlement between the
Parties.
e. The Parties expressly waive and assume the risk of any and all claims for
damages pertaining to this Agreement which exist as of this date, but of which the Parties
do not know or suspect to exist, whether through ignorance, oversight, error, negligence,
or otherwise, and which, if known, would materially affect the Parties’ decision to enter
into this Agreement. The Parties assume the risk that the facts or law may be other than
what they believe.
5. Fees: The Parties agree to be responsible for their own attorneys’ fees and costs
relating to the investigation, prosecution, defense, and settlement of the Lawsuit and
further agree that no claim will be brought by any of the Parties to recover the same. If
any action, arbitration, or other proceeding is commenced to enforce any of the terms of
this Agreement, the performance thereof, or of any other judgment or decree embodying
any of its provisions, the prevailing party shall be awarded reasonable attorneys' fees,
costs, and expenses in addition to any other relief granted.
6. No Transfer and Warranty of Capacity to Execute Agreement: The Parties
represent and warrant that no other person or entity has, or has had, any interest in the
claims, demands, obligations, or causes or action referred to in this Agreement, except as
otherwise set forth herein; that the Parties have the sole right, exclusive authority, and
legal capacity to execute this Agreement and grant the releases, discharges and
agreements contained herein, give and receive the sum specified in the Agreement, and
bind the Parties, persons, positions and entities specified herein; and that the Parties have
not sold, assigned, transferred, conveyed or otherwise disposed of any of the claims,
demands, obligations or causes of action referred to in this Agreement.
7. Governing Law: This Agreement shall be construed and interpreted in
accordance with the laws of the State of Illinois, and the venue for all disputes arising out
of, under or related to the terms of this Agreement shall be the Circuit Court of the
Eighteenth Judicial Circuit, DuPage County, Illinois.
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8. Additional Documents: The Parties agree to cooperate fully and execute any and
all documents, and to take all additional actions, which may be necessary or appropriate
to give full force and effect to the terms of this Agreement.
9. Entire Agreement and Successors in Interest:
a. This Agreement contains the entire agreement between the Parties with regard
to the matters set forth in it and shall be binding upon and inure to the benefit of the
executors, administrators, bankruptcy trustees, representatives, heirs, successors in
interest, subsidiaries, parent companies, affiliates, and assigns of each, including each
Operator Entity.
b. The Parties agree that the Consent Decree accompanying and referring to this
Agreement shall be recorded against the Property, and that the provisions of the Consent
Decree and this Agreement shall be covenants running with the land. Any sale,
conveyance, or transfer of title to all or a portion of the Property shall be subject to the
Consent Decree and this Agreement.
c. Nothing herein, express or implied, is intended to or shall confer upon any
person, entity, company, or organization that is not a Party or an Operator Entity, any
legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of
this Agreement. This Agreement may only be amended by a written agreement signed by
the Parties.
d. Upon any conveyance of the fee simple interest in the Property, the grantor
shall be released and relieved of all obligations and liabilities thereafter accruing under
this Agreement and the grantee shall automatically accept and assume such obligations
and liabilities.
e. Upon an Operator Entity’s reasonable written request, the Village will deliver
to the Operator Entity a letter stating the amount of the Annual Payment then remaining
unpaid and the status of all previous payments of the Annual Payment (i.e., when they
were paid, and in what amount).
10. Effectiveness: This Agreement shall become effective immediately following
execution by the Parties, subject to the provisions of Sections 2(e) and 2(f).
11. Form of Execution: This Agreement may be executed in counterparts and the
executed counterparts exchanged among the Parties by facsimile or email transaction.
12. Headings: Headings of particular paragraphs are inserted only for convenience
and are in no way to be construed as a part of this Agreement or as a limitation of the
scope of the paragraphs to which they refer.
13. Confidentiality: Except as expressly set forth below, Developer Parties and the
Village agree that the terms of this Agreement shall be strictly confidential. Developer
Parties and the Village agree that each shall not disclose the terms, amounts, contents,
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and nature of any information, whatsoever, concerning this Agreement to anyone other
than immediate family members, employees, attorneys, professional tax advisors, lenders
or potential lenders, real estate brokers and advisors, prospective purchasers of any
interest in the Property or Development, or as otherwise required by law. Developer
Parties and the Village each represent that no unauthorized disclosures concerning this
Agreement were made prior to the signing of this Agreement. If any of the Developer
Parties or the Village advise any authorized person referenced above about this
Agreement, each agrees to advise that person of the confidentiality agreement and to
advise that person not to disclose the terms, conditions, or substance of it to anyone. If
any of the Developer Parties or the Village are asked about the negotiations or this
Agreement, each agrees to limit the response to the following statement, only: “The
matter has been settled.”
[Intentionally Left Blank]
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IN WITNESS WHEREOF, the Parties have executed this Settlement Agreement and
Release on the dates indicated next to their respective signatures:
YORK ROAD ASSOCIATES LLC, an
Illinois limited liability company
By: LO York LLC, a Delaware limited
liability company, Its Manager
By: Non -Member Manager Inc., a
Texas corporation, its Manager
By:
John Grissim
Vice President
SENIOR LIFESTYLE DEVELOPMENT
COMPANY, LLC, an Illinois limited
liability company
By:
Name:
Its:
Date:
VILLAGE OF OAK BROOK
By:
Date:
Exhibit 1-1
EXHIBIT 1
THE PROPERTY
Lot 6 of the Resubdivision of Clearwater, pursuant to the Final Plat of Resubdivision
recorded September 22, 2016 with the DuPage County Recorder as Document No.
R2016-102540, being a resubdivision in part of the Southwest Quarter of Section 24,
Township 39 North, Range 11 East of the Third Principal Meridian, in DuPage County,
Illinois
P.I.N.: 06-24-308-019
Commonly Known As: 2055 Clearwater Drive, Oak Brook, Illinois
Exhibit 2-1
EXHIBIT 2
PAYMENT SCHEDULE
Payment Deadline Annual Payment Amount
Upon issuance of certificate of occupancy for the
Development
$22,689.40
June 1 in the year following the year of issuance of
certificate of occupancy for Development (“First Annual
Deadline”)
$23,370.08
June 1, 1 year after the First Annual Deadline $24,071.18
June 1, 2 years after First Annual Deadline $24,793.32
June 1, 3 years after First Annual Deadline $25,537.12
June 1, 4 years after First Annual Deadline $26,303.23
June 1, 5 years after First Annual Deadline $27,092.33
June 1, 6 years after First Annual Deadline $27,905.10
June 1, 7 years after First Annual Deadline $28,742.25
June 1, 8 years after First Annual Deadline $29,604.52
June 1, 9 years after First Annual Deadline $30,492.66
June 1, 10 years after First Annual Deadline $31,407.44
June 1, 11 years after First Annual Deadline $32,349.66
June 1, 12 years after First Annual Deadline $33,320.15
June 1, 13 years after First Annual Deadline $34,319.75
June 1, 14 years after First Annual Deadline $35,349.35
June 1, 15 years after First Annual Deadline $36,409.83
June 1, 16 years after First Annual Deadline $37,502.12
June 1, 17 years after First Annual Deadline $38,627.18
June 1, 18 years after First Annual Deadline $39,786.00
Total Amount: $609,672.67