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2022-10-17 - Ordinance 2022-106 - AUTHORIZING A DEVELOPMENT IMPROVEMENT AGREEMENT WITH PRESTIGE BG LLC SERIES RE FOR 301 N MILWAUKEE AVENUE ORDINANCE NO. 2022-106 AN ORDINANCE AUTHORIZING A DEVELOPMENT IMPROVEMENT AGREEMENT WITH PRESTIGE BG LLC SERIES RE FOR 301 N MILWAUKEE AVENUE WHEREAS, the Village of Buffalo Grove is a home rule unit pursuant to the Illinois Constitution of 1970; and WHEREAS, the Village seeks to enter into a Development Improvement Agreement (DIA) with Prestige BG LLC Series RE ("Developer") for site improvements associated with the commercial development at 301 N. Milwaukee Road, NOW THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF BUFFALO GROVE, COOK AND LAKE COUNTIES, ILLINOIS, as follows: SECTION 1. The foregoing recitals are hereby adopted and incorporated and made a part of this Ordinance as if fully set forth herein. SECTION 2. The Development Improvement Agreement is approved subject to review and approval by the Village Attorney. SECTION 3. If any section, paragraph, clause, or provision of this Ordinance shall be held invalid, the invalidity thereof shall not affect any other provision of this Ordinance. SECTION 4. This Ordinance shall be in full force and effect from and after its passage and approval and shall not be codified. AYES: 6—Stein,Ottenheimer,Weidenfeld,Johnson, Smith, Pike NAYES: 0—None ABSENT: 0—None PASSED: October 17, 2022 APPROVED: October 17, 2022 APPROVED: Beverly Sussm , illage President ATTEST: Janet r $.h-ahian,Village Clerk . SPOTLESS AUTO SPA Development Name DEVELOPMENT IMPROVEMENT AGREEMENT THIS AGREEMENT("Agreement"), made and entered into as of this day of , 2022 by and between the VILLAGE OF BUFFALO GROVE, an Illinois Municipal Corporation, and having its office at Village Hall, 50 Raupp Boulevard, Buffalo Grove, Illinois (hereinafter called "Village"), and Prestige BG LLC Series RE, (hereinafter called "Developer"). WITNESSETH: WHEREAS, Developer desires to improve the real property described in Exhibit "A" attached hereto and made a part hereof (the "Property"), and in compliance with the Village's Development Ordinance, Developer has submitted to the Village certain (i) plans prepared by Terra Consulting Group, LTD who are registered professional engineers (the "Site Plan"), which Plans were approved by the Village pursuant to Ordinance No. and (ii) additional plans and specifications prepared by dated and described in more detail in Exhibit "C" attached hereto and made a part hereof(the"Site Improvement Plans"and together with the Site Plan,the"Plans");and, WHEREAS, the Village is willing to approve said Plans, provided that this Agreement is executed to insure the completion of certain site improvements, as a condition precedent to the issuance of building permits for any buildings to be constructed on the Property. NOW,THEREFORE, it is mutually agreed as follows: 1. Developer shall furnish, or cause to be furnished, at their own cost and expense, all the necessary material, labor, and equipment to complete the improvements listed on Exhibit "B" attached hereto, and all other site improvements not specifically set forth, which are required by applicable ordinances or agreements (collectively, the "Improvements"), all in a good and workmanlike manner and in accordance with all pertinent ordinances and regulations of the Village and in accordance with the Plans (including any subsequent revisions requested by the Developer and approved in writing by the Village pursuant to the Village's Development Ordinance). All utility lines and services to be installed in the street shall be installed prior to paving. 1 2. Attached hereto as Exhibit "D" is a complete cost estimate for the construction of the improvement described in Exhibit "B" hereto. No later than three (3) business days following the execution of this Agreement and prior to the issuance of Village Permits, the Developer shall deposit a Letter of Credit acceptable to and in a form and substance approved by the Village in the original amount of Five Hundred Sixty-One Thousand Four Hundred Eighty-Five and 00/100 Dollars ($561,485.00), as further described in Paragraph 9 herein (the"Letter of Credit"). 3.All work shall be subject to inspection by and the approval of the Village Engineer. It is agreed that the contractors who are engaged to construct the Improvements are to be approved by the Village Engineer and that such approval will not be unreasonably withheld. 4. The Developer has paid or will pay the Village a Review and Inspection Fee, as required by Ordinance. It is understood that said fee is based on the amount of the contracts or cost estimate for those items in Exhibit"B". 5. Prior to the time the Developer or any of its contractors begin any of the work provided for herein, the Developer, and/or its contractors shall furnish the Village with evidence of insurance covering their employees in such amounts and coverage as is acceptable to the Village. Nothing herein shall waive any immunities the Village May assert in response to or defense of any such claim. In addition, by its execution of this Agreement, the Developer agrees to protect, indemnify, save and hold harmless, and defend the Village and its employees, officials, and agents, against any and all claims, costs, causes, actions, and expenses, including but not limited to reasonable attorney's fees incurred by reason of a lawsuit or claim for damages or compensation arising in favor of any person, corporation or other entity, including the employees or officers or independent contractors or sub- contractors of the Developer or the Village, on account of personal injuries or death, or damages to property occurring,growing out of, incident to, or resulting directly or indirectly,from the performance of the work of the Developer, independent contractors or sub-contractors or their officers, agents, or employees. The Developer shall have no liability or damages for the costs incident thereto to the extent caused by the sole negligence or intentional misconduct of the Village, its independent contractors or sub- contractors or their officers,agents,or employees. 2 6. Subject to Force Majeure (as defined herein), Developer shall cause the Improvements to be completed within twenty-four (24) months following the date of this Agreement (except any Improvements for which specified time limits are noted on the Plans,which shall be completed within the specified time limits shown on the Plans). "Force Majeure" as used herein shall mean a delay in Developer's performance hereunder caused by a strike or labor problem, energy shortage, governmental pre-emption or prescription, national emergency, or any other cause of any kind beyond the reasonable control of Developer. If work is not completed within the time prescribed herein,the Village shall have the right to call upon the Letter of Credit, in accordance with its terms, for the purpose of completing the Improvements. Upon completion of the Improvements herein provided for, as evidenced by the certificate or certificates of the Village President and Board of Trustees, the Village shall be deemed to have accepted said Improvements, and thereupon, the Letter of Credit shall automatically be reduced to serve as security for the obligations of the Developer as set forth in Paragraph 7 hereof. The Developer shall cause its consulting engineers to correct drawings to show work as actually constructed and said engineers shall turn over high quality Mylar reproducible copies thereof to the Village to become the Village's property prior to acceptance of the Improvements by the President and Board of Trustees. 7. The Developer, for a period of one year beyond formal acceptance by the Village of any Improvement, described in Exhibit "B" hereof, shall be responsible for maintenance, repairs and corrections to such Improvements which may be required due to failures or on account of faulty construction or due to the Developer's negligence and/or its contractors' negligence.The obligation of the Developer hereunder shall be secured by the Letter of Credit as further described in Paragraph 9 hereof. 8. It is agreed that no occupancy permit shall be granted by any official for the construction of any structure until all required utility facilities set forth in the Plans (to include, but not by way of limitation, sanitary sewer,water and storm sewer systems) have been installed and made ready to service the Property; and that all parking lots or access drives(to include curbs)set forth in the Plans that provide access to the Property have been completely constructed, except for the designed surface course. It is understood and agreed that building permits may be granted for buildings on specific lots to which utility facilities have been installed and made ready for service and to which parking lots or access drives have 3 been constructed as described above, notwithstanding the fact that all improvements within the Development may not be completed. 9.A. The obligations of the Developer hereunder as to the deposit of security for the completion of the Improvements and the one-year maintenance of said Improvements after acceptance by the Village (Paragraph 7)shall be satisfied upon delivery to the Village of a Letter of Credit in favor of the Village in a form acceptable to the Village, in the amount set forth in Paragraph 2 above.The Letter of Credit shall be made subject to this Agreement. The Developer hereby waives its option pursuant to 30 ILCS 550/3 and 65 ILCS 5/11-39-3 to utilize any type of security other than a Letter of Credit. B. In addition to the terms, conditions, and covenants of the Letter of Credit, the Village hereby agrees to draw funds or to call said performance guarantee under such security solely for the purpose of payment for labor and materials supplied or to be supplied, by engineers, contractors, or subcontractors, to, or for the benefit of the Developer or the Village, as the case may be, under the provisions of this Agreement and the said Improvements for which payment is being made shall have been completed,or will be completed, in substantial accordance with the Plans. C. The Village further hereby agrees that to the extent that the Developer causes the commitments of this Agreement to be completed, the outstanding liability of the issuer of the Letter of Credit shall during the course of construction of the Improvements, approximate the cost of completing all Improvements and paying unpaid contract balances for the completion of the Improvements referred to in this Agreement. Until all required tests have been submitted and approved by the Village for each of the construction elements including, but not limited to, earthwork, street pavements, parking area pavements, sanitary sewers and water mains (as applicable), a minimum of that portion of the surety for each element shall be subject to complete retention. All Improvements are subject to a minimum fifteen (15%) percent retention until final acceptance by the Village. D. In order to guarantee and warranty the obligations of Paragraph 7 herein, an amount equal to fifteen (15%) percent of the total amount of the Letter of Credit, or an amount equal to fifteen (15%) percent of the cost estimate of the individual Improvement(s) shall be retained in the Letter of 4 Credit for a period of one-year beyond formal acceptance by the Village of the Improvement(s). E. As a portion of the security amount specified in Paragraph 2, the Developer shall maintain a cash deposit with the Village Clerk in the amount of Five Thousand Six Hundred Sixty-Five Dollars ($5,665.00). If roads are not maintained with a smooth and firm surface reasonably adequate for access of emergency vehicles such as fire trucks and ambulances, or if any condition develops which is deemed a danger to public health or safety by the Village of Buffalo Grove due to the actions of the Developer or his failure to act; and after written notice of this condition, the Developer fails to immediately remedy the condition; then the Village may take action to remedy the situation and charge any expenses which results from the action to remedy the situation to the cash deposit. Upon notification that the cash deposit has been drawn upon, the Developer shall immediately deposit sufficient funds to maintain the deposit in the amount of Five Thousand Six Hundred Sixty-Five Dollars ($5,665.00). If the Developer has not made the additional deposit required to maintain the total cash deposit within three (3) days from the date he received notice that such additional deposit was required, it is agreed that the Village may issue a Stop Work Order or also may revoke all permits which the Developer had been granted. This cash deposit shall continue to be maintained until the maintenance guarantee period has lapsed. The deposit may be drawn upon by the Village if the conditions of this Agreement are not met by the Developer within five (5) days after receipt of a written notice of noncompliance with the conditions of this Agreement, except in cases of danger to public health and safety as determined by the Village, in which case,the deposit may be drawn upon immediately following notice to the Developer and his failure to immediately remedy the situation. After termination of the one-year maintenance period and upon receipt by the Village Clerk of a written request for release of the deposit,the Village will either notify the Developer that the Improvements are not in a proper condition for final release of the deposit, or shall release the deposit within fifteen (15)days. F. In addition to the terms, covenants, and conditions of the Letter of Credit, the Developer hereby agrees that no reduction shall occur in the outstanding liability of the issuer there under, except on the written approval of the Village; however, in all events, the Village shall permit such Letter of Credit to expire, either by its terms, or by return of such Letter of Credit to the Developer, upon 5 the expiration of one-(1)year from the acceptance of the Improvements referred to herein by the Village. To the extent that the provisions of Paragraph 9 herein, and of the Letter of Credit, permit the Village to draw funds under such Letter of Credit,the Village hereby agrees to reduce the outstanding liability of the issuer of the Letter of Credit to the extent that funds are disbursed. 10. Any Letter of Credit shall provide that the issuer thereof shall not cancel or otherwise terminate said security without a written notice being given to the Village between thirty-(30) days and forty-five(45)days in advance of termination or cancellation. 11. No occupancy permit shall be issued until all exterior lighting specified on Exhibit "C" is installed and operational. 12. The Developer acknowledges that he is responsible for the proper control of weeds, grass, refuse, and junk on all property which he owns within the Village in accordance with Chapter 8.32 of the Buffalo Grove Municipal Code. It is further agreed that the Developer shall continue to be responsible for the proper maintenance of any parcels of property for which the Developer transfers ownership to the Village until such time as the development's Improvements are accepted by the Village in writing in accordance with the provisions of this Agreement. If the Developer fails to perform his maintenance responsibilities established in either this paragraph or Chapter 8.32,the Village may provide a written notice to the Developer of the improper maintenance condition. If proper maintenance is not completed within ten (10) days after the Developer is provided this notice, the Village may perform the maintenance and deduct the costs of the maintenance from the cash deposit described in Paragraph 9E. 13.The Developer agrees that no Improvements constructed in conjunction with this project are sized or located in such a way as to warrant any recapture payment to the Developer pursuant to any applicable previous agreements. 14. This Agreement shall automatically terminate and be of no further force and effect with respect to Developer or the Property upon the expiration of the one year maintenance period, and upon such termination the parties hereto shall have no further obligations to the other, except for the Village's obligation to return the Letter of Credit and cash deposit to Developer or otherwise notify the issuer of 6 the Letter of Credit of the expiration of the Letter of Credit. The period commencing on the date set forth in the preamble to this Agreement and expiring on the expiration of the one-year maintenance period is referred to herein as the"Term". 15. This Agreement and the obligations contained herein are in addition to, and not in limitation of, all other agreements between the Parties hereto including, without limitation, the Preliminary Plan or Annexation Approval Ordinance No. dated ,and the obligations contained therein. 16. Neither party shall cause this Agreement (or any memorandum hereof) to be recorded against the Property. 17. Neither party shall assign this Agreement or any of its terms without the prior, express and written consent of the other party. Furthermore, no assignment of the Developer's obligations shall be effective unless and until the Village approves the language of any proposed assignment and substitute security in the amounts required by this Agreement. IN WITNESS WHEREOF, the Village has caused this Agreement to be executed, as has the Developer, all as of the date first above written. VILLAGE OF BUFFALO GROVE,an Illinois Municipal Corporation By Village President DEVELOPER: Prestige BG LLC Series RE 1305 Busch Parkway,Suite 102 Buffalo Grove,IL 60089 By: Name: Title: 7 SPOTLESS AUTO SPA (Development Name) DEVELOPMENT IMPROVEMENT AGREEMENT EXHIBIT A LEGAL DESCRIPTION LOTS 1, 2, 3, 4, AND 5 (EXCEPT THE SOUTHERLY 15 FEET OF LOT 5) IN BLOCK 2 IN UNIT NUMBER 2 IN COLUMBIAN GARDENS, BEING A SUBDIVISION IN SECTION 35, TOWNSHIP 43 NORTH, RANGE 11, EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT THEREOF RECORDED JULY 11, 1926 AS DOCUMENT 282352, IN BOOK "P" OF PLATS, PAGE 92, IN LAKE COUNTY, ILLINOIS. KNOWN AS: 301 N. MILWAUKEE AVENUE, BUFFALO GROVE, ILLINOIS PERMANENT INDEX NUMBER: 15-35-301-001, 15-35-301-002, 15-35-301-003, 15-35-301-004, & 15-35-301-005 AREA= 38,744.96 SQ. FT. OR 0.89 ACRES 8 SPOTLESS AUTO SPA (Development Name) DEVELOPMENT IMPROVEMENT AGREEMENT EXHIBIT B All improvements set forth and depicted in the Plans, both public and private, including (to the extent applicable) earthwork, grading, roads or streets, parking lots, areas and/or parking facilities, sidewalks, sanitary and storm sewers, water main, drainage and storm water detention facilities, site grading, street lighting, landscaping,survey monuments and benchmarks. 9 SPOTLESS AUTO SPA (Development Name) DEVELOPMENT IMPROVEMENT AGREEMENT EXHIBIT C Final Engineering and Landscaping Plans prepared by: Terra Consulting Group, LTD. Entitled: Final Engineering for Car Wash Facility at 301 N. Milwaukee Ave. Consisting of:22 sheet(s), last revised 9/29/2022 Final Engineering Landscaping Plans prepared by: NERI Architects Entitled: New Automated Carwash Facility Consisting of: sheet(s), last revised (see following pages) 10 SPOTLESS AUTO SPA (Development Name) DEVELOPMENT IMPROVEMENT AGREEMENT EXHIBIT D Engineers Opinion of Probable Costs (see following pages) 11