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R-18-19VILLAGE OF DEERFIELD RESOLUTION NO. R-18-19 A RESOLUTION APPROVING AN ESTOPPEL AGREEMENT (Deerfield Senior Living) WHEREAS, the JFMC Facilities Corporation (`T'acilities Corporation') and Deerfield Senior Residences Property Owner, LLC (`Deerf[eld Senior LiviW ) (Facilities Corporation and Deerfield Senior Living are, collectively, the `AppAcantal are or will be the record owners of that certain parcel of real property located at the address commonly known as 1627 Lake Cook Road in the Village ("Property); and WHEREAS, on December 4, 2017, the Village Board adopted Ordinance No. 0-17.31, granting Facilities Corporation and Banner Development, LLC (an affiliate of Deerfield Senior Living), among other things, approval of a Final Development Plan for the development of a six -story, 240 -unit independent living facility on the property (`Development') and an amendment to the special use permit for the Weinberg Planned Unit Development ( `Planned DevelopmentAppzomF); and WHEREAS, on November 19 2018, the Village Board adopted Ordinance No. 0-1836 amending the Planned Development Approval (`Amended Planned Development Approval'), which Amended Planned Development Approval is conditioned upon the Applicants entering into a development agreement for the Property ( `DevelopmentAgreemene); and WHEREAS, Deerfield Senior Living is seeking a loan from Wells Fargo Bank, National Association ('Ve&Fargol to finance the Development; and WHEREAS, as precondition for issuing Deerfield Senior Living a loan, Wells Fargo has requested that the Village enter into an estoppel agreement ("Estoppel AgreemenO acknowledging to Wells Fargo, among other things, that Deerfield Senior Living is not in default under the Amended Planned Development Approval or the Development Agreement; and WHEREAS, the Village Board has determined that entering into the Estoppel Agreement will serve and be in the best interest of the Village; NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE BOARD OF DEERFIELD, LAKE AND COOK COUNTIES, ILLINOIS, as follows SECTION ONE: RECITALS. The foregoing recitals are incorporated into, and made a part of, this Resolution as findings of the Village Board. SECTION TWO: APPROVAL OF ESTOPPEL AGREEMENT. The Estoppel Agreement by and between the Village and Wells Fargo is hereby approved in substantially the form attached to this Resolution as Exhibit A, and in a final form to be approved by the Village Manager and the Village Attorney. SECTION THREE: EXECUTION OF ESTOPPEL AGREEMENT. The Mayor and the Village Clerk are hereby authorized and directed to execute and attest, on behalf of the Village, the Estoppel Agreement. SECTION FOUR: EFFECTIVE DATE. This Resolution will be in full force and effect only upon the occurrence of all of the following events: (i) Its passage and approval by a majority of the members of the Village Board; GO The execution of the Development Agreement by the Applicants; and (iii) The effective date of the Amended Planned Development Approval. AYES: Benton, Jester, Oppenheim, Seiden, Shapiro, Struthers NAYS: None ABSENT: None PASSED: November 19, 2018 APPROVED: November 20, 2018 RESOLUTION N0. R-18-19 Harriet Rosen hal, Mayor ATTES:.t Kent S. tree`t—,Vdl1agf Clerk #29495561_v2 ESTOPPEL AGREEMENT ESTOPPEL AND AGREEMENT REGARDING DEVELOPMENT DOCUMENTS THIS ESTOPPEL AND AGREEMENT REGARDING DEVELOPMENT DOCUMENTS (this "Estoppel") is provided by the VILLAGE OF DEERFIELD, an Illinois municipal corporation (the "Village"), in favor of WELLS FARGO BANK, NATIONAL ASSOCIATION ("Lender"), with respect to (i) the Development Agreement / CJE Senior Life Deerfield, dated as of [ ], 2018 (the "Development Agreement"), by and between the Village and DEERFIELD SENIOR RESIDENCES PROPERTY OWNER, LLC, a Delaware limited liability company ("Developer"), (ii) the Construction Permit Fee Agreement, dated as of [ 1, 2018 (the "Permit Fee Agreement"), by and between the Village and Developer, and (iii) the Impact Fee Agreement, dated as of [ , 2018 (the "Impact Fee Agreement"; together with the Development Agreement and the Permit Fee Agreement, individually or collectively as the context may suggest or require, the "Development Documents"), by and between the Village and Developer, which Development Documents relate in part to the real property more particularly described on Exhibit A attached hereto (the "Property"). Pursuant to that certain Construction Loan Agreement to be entered into by and between Developer, as borrower, and Lender (as the same may be amended, restated, amended and restated, replaced, supplemented or otherwise modified from time to time, the "Loan Agreement"), Lender intends to make a loan to Developer in the principal amount of up to $[55,535,000] (the "Loan") to facilitate Developer's construction of an independent living facility (the "Project") located on the Property and approved by the Village. The Loan will be evidenced by that certain Promissory Note Secured by Mortgage executed by Developer in favor of Lender in the original principal amount of the Loan (as the same may be amended, restated, amended and restated, replaced, supplemented or otherwise modified from time to time, the "Note"), which Note is secured by that certain Construction Mortgage, Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing from Developer, as mortgagor, in favor of Lender, as mortgagee (as the same may be amended, restated, amended and restated, replaced, supplemented or otherwise modified from time to time the "Mortgage"), which Mortgage is to be recorded in the real property records of Cook County, Illinois. This Estoppel is being provided to Lender in connection with the Loan, and the Village hereby acknowledges that Lender has the right to, and intends to, rely on the terms hereof in agreeing to make the Loan to Developer. NOW THEREFORE, the Village hereby represents, warrants, covenants, agrees and certifies to Lender as follows: Agreement Effective. The Development Documents are in full force and effect without amendment, modification, supplement, or extension except as otherwise referenced in the preamble hereto and are fully binding upon the Village, and the Village has no claims arising out of or in any way relating to the Development Documents against Developer. 2. Existing Defaults. There is no existing default by Developer under any of the Development Documents, nor has any event occurred which, with the passage of time or the giving of notice or both, would constitute such a default. Fees. The Village acknowledges that Developer has paid all costs, payments, fees and other charges required under the Development Documents or otherwise due and payable as of the date hereof. 4. Notice of Default; Right to Cure. The Village acknowledges and agrees that it will not exercise any of its rights under the Development Documents related to a default until it (i) provides the required notice and cure period to Developer pursuant to the Development Documents and (ii) concurrently provides a copy of such notice to Lender at the address provided below. The notice of default served on Developer will not be effective until the village has sent a copy of the notice to Lender. Lender shall have the right, but not the obligation, to perform any obligation, agreement or covenant of Developer under the Development Documents and any of the foregoing done by Lender shall be effective as though the same were performed by Developer. 5. Notice of Mortgage. By execution of this Estoppel, the Village hereby acknowledges the existence of the Loan and the Mortgage, which Mortgage will be a lien on the Property. 6. Consent to Collateral Assignment. As a condition to Lender's agreement to make the Loan to Developer, Lender has required that Developer assign its rights under the Development Documents to Lender as additional collateral for the Loan. The Village hereby consents to the collateral assignment of the Development Documents by Developer to Lender as additional collateral for the Loan and hereby agrees that if Lender, its designee or nominee or any third party (a "Successor Owner") should become the successor owner of the Property through foreclosure of the Mortgage, or a deed in lieu thereof, then provided Successor Owner assumes the obligations of Developer, (i) Successor Owner shall have all of the rights and obligations of the Developer under the Development Documents; provided, however, that (x) a Successor Owner shall have no obligation to issue replacement letters of credit or other performance guarantees and (y) if Lender or an affiliate of Lender is such Successor Owner, then Lender or such affiliate of Lender shall have no obligation to construct any improvements, including, without limitation, the guaranteed improvements under the Village Development Code, unless Lender or such affiliate expressly assumes the obligations of Developer under the Development Agreement; provided, the foregoing shall not preclude the Village's right to sue Developer for monetary damages or make a draw against the letter(s) of credit posted by Developer (but any amount drawn under such letter(s) of credit, after payment of the Village's reasonable costs and expenses arising out of any Developer default, including reasonable legal fees, shall be made available to any Successor Owner completing such guaranteed improvements), (ii) the time periods for performance of Developer's obligations under the Development Documents shall be extended for a period of time reasonable under the circumstances to permit Successor Owner to perform Developer's obligations under the Development Documents, and (iii) Successor Owner will not be subject to any claims, offsets, defenses, or penalties arising as a result of Developer's performance, or failure to perform, under the Development Documents prior to the date that Successor Owner succeeds to the interests of Developer under the Development Documents. 7. Entire Agreement. The Development Documents constitute all of the agreements executed between Developer and the Village with respect to the Property. Notices. Lender's address for purposes of notices under the terms of this Agreement is as follows: Wells Fargo Bank, National Association 1750 H Street NW, Suite 650 Washington, DC 20006 Tel: 202.303.3012 Attention: Erin Peart pearte@wellsfargo.com And to: Wells Fargo Bank, National Association 2030 Main Street, Suite 800 Irvine, California 92614 Tel: 949.251.4368 Attention: Sally Sison sally. a. sison@wellsfargo. corn 9. Amendment. The Village agrees not to amend the Development Documents without Lender's prior written consent, such consent not to be unreasonably withheld. 10. Authority. The person(s) executing this Agreement on behalf of Village are authorized to execute and deliver this Agreement on behalf thereof. 11. Successors and Assigns. Except as otherwise expressly provided under the terms and conditions herein, the terms of this Agreement shall bind and inure to the benefit of the successors and assigns of the parties hereto. 12. Headings. All articles, sections or other headings appearing in this Agreement are for convenience of reference only and shall be disregarded in construing this Agreement. 13. Counterparts. To facilitate execution, this document may be executed in as many counterparts as may be convenient or required (which may be effectively delivered by facsimile, in portable document format (.pdf) or other similar electronic means). It shall not be necessary that the signature of, or on behalf of, each party, or that the signature of all persons required to bind any party, appear on each counterpart. All counterparts shall collectively constitute a single document. It shall not be necessary in making proof of this document to produce or account for more than a single counterpart containing the respective signatures of, or on behalf of, each of the parties hereto. Any signature page to any counterpart may be detached from such counterpart without impairing the legal effect of the signatures thereon and thereafter attached to another counterpart identical thereto except having attached to it additional signature pages. Any party delivering an executed counterpart of this Agreement by facsimile or other electronic method of transmission shall also deliver an original executed counterpart, but the failure to do so shall not affect the validity, enforceability, or binding effect of this Agreement. 14. Conflict. In the event of any conflict between the terms and provisions of the Development Documents and the terms of this Agreement, the terms and provisions of this Agreement shall control. [Signatures Follow on Next Page] IN WITNESS WHEREOF, this Estoppel has been executed as of this _ day of , 2018. "VILLAGE" VILLAGE OF DEERFIELD, an Illinois municipal corporation By: Name: Harriet Rosenthal Title: Mayor ATTEST: By: k4.1 Name: "-'Ke4 Street Title: Village Clerk EXHIBIT A Description of Property LOT 2 IN THE FINAL PLAT OF PPF AMLI LAKE COOK ROAD SUBDIVISION BEING A SUBDIVSION OF A PART OF THE NORTHWEST QUARTER OF SECTION 5 AND PART OF THE NORTHEAST QUARTER OF SECTION 6, TOWNSHIP 42 NORTH RANGE 12, EAST OF THIRD PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS.