O-21-04� IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII
Image# 061631120132 Type: ORD
Recorded: 12/10/2021 at 12:06:22 PM
Receipt#: 2021-00103020
Page 1 of 132
Fees: $50.00
Lake County IL Recorder
Mary Ellen Vanderventer Recorder
VILLAGE OF DEEIZFIELD File7852893
STATE OF ILLINOIS )
COUNTIES OF LAKE AND COOK ) SS
VILLAGE OF DEERFIELD )
The undersigned hereby certifies that he is the duly appointed Deputy Village Clerk of the Village of Deerfield, Lake
and Cook Counties, Illinois, and that the attached is a true and accurate copy of
Ordinance No. 2021-04, An Ordinance Approving a Special Use Permit for a Planned Residential
Development in the R-5 Residential District, a Final Development Plan, and Certain Exceptions
Within the Planned Unit Development
as appears in the records and files of the office of the Village Clerk
Dated this 8`h day of December, 2021_
S.E' L
.i
DAVI E. ZGERALD
Deputy Village Clerk
Submitted by: Village of Deerfield
850 Waukegan Road
Deerfield, IL 60015
Mail to: Village of Deerfield
850 Waukegan Road
Deerfield, IL 60015
850 WAUKEGAN ROAD DEERFIELD, ILLINOIS 60015 TELEPHONE 847.945.5000 FAX 847.945.0214
VILLAGE OF DEERFIELD
ORDINANCE NO. 2021- 0-21-4
AN ORDINANCE APPROVING A SPECIAL USE PERMIT FOR A PLANNED
RESIDENTIAL DEVELOPMENT IN THE R-5 RESIDENTIAL DISTRICT, A FINAL
DEVELOPMENT PLAN, AND CERTAIN EXCEPTIONS
WITHIN THE PLANNED UNIT DEVELOPMENT
(10 Deerfield Road — Zion Lutheran Church)
WHEREAS, Zion Lutheran Evangelical Church ("Owner's is the record owner of
that certain parcel of real property commonly known as 10 Deerfield Road, Deerfield, Cook
County, Illinois ("Property') and legally described in Exhibit A attached to and, by this
reference, made a part of this Ordinance; and
WHEREAS, the northern portion of the Property is currently unimproved;
WHEREAS, the southern portion of the Property is improved with: a one-story brick
building occupied and operated by the Owner as a church and school ("Church'); a one and
one -half -story brick and frame residence used as a parsonage ("Parsonage'); a service
road running north and south along the western property line ("Service Road'; and an
accessory parking lot; and
WHEREAS, Brinshore Development LLC, an Illinois Limited Liability Corporation
(`Brinshore'� and Housing Opportunity Development Corporation, an Illinois not-for-
profit corporation ("HDOC'� (Brinshore and HDOC are, collectively, the "Applicant', is
under contract with Owner to enter into a 99 -year lease agreement for the Property, to
demolish the Parsonage, and construct on the Property two multi -family apartment
buildings collectively containing 25 units, and various stormwater, landscape, and other
site improvements ("Proposed Development'; and
WHEREAS, on January 19, 2021, the Village Board adopted Ordinance No.
0-21-3, rezoning the Property from the R-1 Single -Family Residence District to the R-5
General Residence District ("R-5 District'); and
WHEREAS, in furtherance of the construction of the Proposed Development, the
Applicant filed an application with the Village seeking: (i) approval of a special use permit
for a planned residential development on the Property ("Special Use Permit'); (ii)
approval of the Final Development Plan for the Proposed Development; (iii) a zoning
exception from Section 12.02-H.3 of the Zoning Ordinance; and (iv) zoning exceptions from
Section 9.02-A.6 of the Zoning Ordinance (collectively, the "Requested Relief); and
WHEREAS, pursuant to Section 4.05-C.8 of the "Deerfield Zoning Ordinance 1978,"
as amended ("Zoning Ordinance'), planned residential developments may not be
established in the R-5 District except upon the issuance of a special use permit by the
Village Board; and
{00117370.3}
WHEREAS, on August 20, 2018, the Village Board granted approval of a
Preliminary Development Plan for the Proposed Development for the Development Site;
and
WHEREAS, on October 8, 2020, the Plan Commission considered the Applicant's
Final Development Plan at its meeting and adopted findings recommending approval of the
Requested Relief and finding that the Final Development Plan was in substantial
conformance with the Preliminary Development Plan; and
WHEREAS, the Applicant has agreed to execute and record a development
agreement prepared by the Village Attorney, governing the use and development of the
Property and incorporating the conditions set forth in this Ordinance, the text of which is in
substantially the form attached to and, by this reference, made a part of this Ordinance as
Exhibit B ("Development Agreement"); and
WHEREAS, the Village Board has determined that the Proposed Development, and
the zoning exceptions within the Proposed Development, comply with the required
standards for special use permits and planned residential developments as set forth in
Articles 12 and 13 of the Zoning Ordinance, and that the Final Development Plan for the
Proposed Development is in substantial conformance with the Preliminary Development
Plan; and
WHEREAS, consistent with the Plan Commission recommendation, the Village
Board has determined that it will serve and be in the best interests of the Village and its
residents to approve the Proposed Development for the Property, and to grant certain
zoning exceptions, all in accordance with, and subject to, the conditions, restrictions, and
provisions of this Ordinance;
NOW, THEREFORE, BE IT ORDAINED 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 Ordinance as the findings of the Village Board.
SECTION TWO: APPROVAL OF THE SPECIAL USE PERMIT. Subject to,
and contingent upon, the conditions, restrictions, and provisions set forth in Section Five of
this Ordinance, a special use permit to allow the establishment of a planned residential
development on the Property shall be, and is hereby, granted to the Applicant pursuant to
Article 13 and Section 4.05-C of the Zoning Code and the home rule powers of the Village.
SECTION THREE: APPROVAL OF FINAL DEVELOPMENT PLAN. Subject
to, and contingent upon, the conditions, restrictions, and provisions set forth in Section Five
of this Ordinance, the Village Board hereby approves the Final Development Plan for the
Approved Planned Development, to include the following documents (collectively, the
"Final Development Plan Documents':
1. The Site Plan, consisting of one sheet, prepared by Eckenhoff Saunders
Architects consisting of one sheet labeled AS 1.0, with a latest revision date of
October 28, 2020, a copy of which is attached to this Ordinance as Exhibit C;
{00117370.3}
2. The Zion Woods Multi -Family Housing Engineering Plans prepared by V3
Companies, consisting of 14 sheets, with sheets having a latest revision date
of January 12, 2021, a copy of which is attached to this Ordinance as Exhibit
D;
3. The Zion Church Landscape Plans prepared by Daniel Weibach & Partners,
Ltd., consisting of two sheets labeled L-1.1 and L-1.2 with sheets having the
latest revision date of December 18, 2020, a copy of which is attached to this
Ordinance as Exhibit E;
4. The Tree Preservation Plan prepared by Daniel Weinbach & Partners, Ltd.,
consisting of two sheets labeled L0.01 and L0.01A, with a latest revision date
of December 18, 2020, a copy of which is attached to this Ordinance as
Exhibit F;
5. The Exterior Elevation Plans prepared by Eckenhoff Saunders Architects,
consisting of two sheets labeled A3.0 and A3.1, with a latest revision date of
September 30, 2020, a copy of which is attached to this Ordinance as Exhibit
G;
6. The Floor Plans prepared by Eckenhoff Saunders Architects, consisting of five
sheets labeled A1.0 through A1.4, with a latest revision date of September 30,
2020, a copy of which is attached to this Ordinance as Exhibit H;
The Site Photometrics prepared by RTM Engineering Consultants, consisting
of one sheet, with a latest revision date of September 30, 2020, a copy of
which is attached to this Ordinance as Exhibit I; and
8. The Exterior Signage Plan prepared by Eckenhoff Saunders Architects,
consisting of one sheet labeled AS 1.2, with a latest revision date of
September 30, 2020, a copy of which is attached to this Ordinance as Exhibit
J.
SECTION FOUR: APPROVAL OF ZONING EXCEPTIONS WITHIN A
PLANNED RESIDENTIAL DEVELOPMENT. Subject to, and contingent upon, the
conditions, restrictions, and provisions set forth in Section Five of this Ordinance, the
Applicant's requests for the following exceptions in conjunction with the Special Use Permit
are hereby granted for, and with respect to, the Proposed Development on the Property, in
accordance with and pursuant to Section 12.01-13.1 of the Zoning Ordinance and the home
rule powers of the Village:
Perimeter Setback. An Exception from Section 12.02-H3.5 of the Zoning
Ordinance to permit the Church and the Service Road to be located
approximately 13 and 25.5 feet, respectively, from the western property line
of the Property.
Identification Entry Sian. An exception from Section 9.02-A.6.a of the Zoning
Ordinance to permit a second identification entry sign on the Property, at the
entrance of the Property from Deerfield Road.
{00117370.3} 3
3. Sisn Area. Exceptions from Section 9.02-A.6.c of the Zoning Ordinance to
permit a monument sign to be installed on the Property with two sign faces,
and a gross surface area of 54 square feet.
SECTION FIVE: CONDITIONS. Notwithstanding any use or development
right that may be applicable or available pursuant to the provisions of the Village Code or
the Zoning Ordinance, or any other rights the Applicant may have, the approvals granted
in Sections Two, Three, and Four of this Ordinance are hereby expressly subject to and
contingent upon the redevelopment, use, and maintenance of the Property in compliance
with each and all of the following conditions:
A. Development Agreement.
Execution and Recordation. Within 30 days after the adoption of this
Ordinance, the Applicant must execute the Development Agreement.
2. Compliance. The development, use, operation, and maintenance of the
Property must at all times comply with all terms, conditions,
restrictions, and provisions of the Development Agreement.
B. Standard Conditions.
Compliance with Regulations. The redevelopment, use, operation, and
maintenance of the Property must comply with all applicable Village
codes and ordinances, as the same have been or may be amended from
time to time, except to the extent specifically provided otherwise in
this Ordinance or the Development Agreement.
Compliance with Final Development Plan. The redevelopment, use,
operation, and maintenance of the Property must comply with the
Final Development Plan, as approved by this Ordinance, except: (a)
for minor changes and site work approved by the Village Principal
Planner and the Village Director of Public Works and Engineering (for
matters within their respective permitting authorities) in accordance
with all applicable Village standards; and (b) for changes approved in
accordance with Section 12.09 of the Zoning Code.
SECTION SIX: RECORDATION, BINDING EFFECT. A copy of this
Ordinance shall be recorded in the Office of the Lake County Recorder of Deeds against the
Property. This Ordinance and the privileges, obligations, and provisions contained herein
run with the Property and inure to the benefit of, and are binding upon, the Applicant and
its personal representatives, successors, and permitted assigns.
SECTION SEVEN: FAILURE TO COMPLY WITH CONDITIONS. Upon the
failure or refusal of the Applicant to comply with any or all of the conditions, restrictions, or
provisions of this Ordinance, in addition to all other remedies available to the Village, the
approvals granted in Sections Two, Three, and Four of this Ordinance ("Approvals' may,
at the sole discretion of the Village Board, by ordinance duly adopted, be revoked and
become null and void; provided, however, that the Village Board may not so revoke the
{00117370.3} 4
Approvals unless it first provides the Applicant with two months advance written notice of
the reasons for revocation and an opportunity to be heard at a regular meeting of the
Village Board. In the event of such revocation, the Village Manager and Village Attorney
are hereby authorized and directed to bring such zoning enforcement action as may be
appropriate under the circumstances. Notwithstanding the foregoing or anything else
contained in this Ordinance, neither the Applicant's failure to comply with this Ordinance,
nor anything else contained herein, shall affect or restrict Applicant's rights to use the
Property as otherwise permitted by the Zoning Ordinance.
SECTION EIGHT: AMENDMENTS. Any amendment to any provision of this
Ordinance may be granted only pursuant to the procedures, and subject to the standards
and limitations, provided in the Zoning Ordinance for the granting of special use permits
and planned unit developments.
SECTION NINE: EFFECTIVE DATE.
A. This Ordinance will be effective only upon the occurrence of all of the
following events:
1. Passage by the Village Board by a majority vote in the manner
required by law;
2. Publication in pamphlet form in the manner required by law;
3. Recordation of this Ordinance, together with such exhibits as the
Village Clerk deems appropriate for recordation, with the office of the
Lake County Recorder;
4. Passage and approval of a resolution by a majority of the members of
the Village Board, in the manner provided by law, authorizing the
execution of the Development Agreement; and
5. Execution by the Applicant and Owner of the Development
Agreement, and delivery to the Village of the executed Development
Agreement, within 30 days after the passage of this Ordinance.
B. In the event that the Applicant does not deliver fully executed copies of the
Development Agreement within 30 days after the date of final passage of this
Ordinance by the Village Board, as required by Section 9.A.5 of this
Ordinance, the Mayor and Board of Trustees will have the right, in their sole
discretion, to declare this Ordinance null and void and of no force or effect.
[SIGNATURE PAGE FOLLOWS]
{00117370.3} 5
AYES: Benton, Jester, Oppenheim, Seiden, Struthers
NAYS: None
ABSTAIN: None
ABSENT: Shapiro
PASSED: January 19, 2021
APPROVED: January 20, 2021
ORDINANCE NO. 0-21-4
Harriet Rose thal, Mayor
ATTE :
6A . 74f
Kent S Stree , illa e Clerk
{00117370.3} 6
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
THAT PART OF THE EAST HALF OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER
OF SECTION 28, TOWNSHIP 43 NORTH, RANGE 12 EAST OF THE THIRD PRINCIPAL MERIDIAN,
LYING NORTH OF THE NORTH LINE OF THE PUBLIC HIGHWAY KNOWN AS HIGHLAND PARK,
DEERFIELD ROAD, AS DEDICATED BY DOCUMENT 217791 AND LYING WEST OF THE WEST LINE
OF THE DRAINAGE CANAL, AS CONDEMNED BY PROCEEDINGS FOR THE COUNTY COURT CASE
5303, IN LAKE COUNTY, ILLINOIS.
ADDRESS: 10 DEERFIELD ROAD, DEERFIELD, ILLINOIS
PINs: 16-28-400-036-0000 and 16-28-039-0000
{00117370.3} Exhibit A-1
468002085_v4
EXHIBIT B
DEVELOPMENT AGREEMENT
{00117370.31
THIS DOCUMENT
PREPARED BY AND AFTER
RECORDING RETURN TO:
Benjamin Schuster
Elrod Friedman LLP
325 N. LaSalle Street
Suite 450
Chicago, IL 60654
DEVELOPMENT AGREEMENT
BETWEEN
THE VILLAGE OF DEERFIELD,
BRINSHORE DEVELOPMENT LLC, AND
HOUSING OPPORTUNITY DEVELOPMENT CORPORATION
(10 DEERFIELD ROAD — ZION WOODS MULTI -FAMILY HOUSING)
DATED AS OF , 2021
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1/12/2021 Version
DEVELOPMENT AGREEMENT
BETWEEN
THE VILLAGE OF DEERFIELD,
BRINSHORE DEVELOPMENT LLC, AND
HOUSING OPPORTUNITY DEVELOPMENT CORPORATION
(10 DEERFIELD ROAD — ZION WOODS MULTI -FAMILY HOUSING)
DATED AS OF .2021
THIS DEVELOPMENT AGREEMENT ("Agreement") is made as of the day of
, 2021, by and between the VILLAGE OF DEERFIELD, an Illinois home rule
municipal corporation ("Village"), BRINSHORE DEVELOPMENT, LLC, an Illinois limited liability
company ("Brinshore"), and HOUSING OPPORTUNITY DEVELOPMENT CORPORATION, an
Illinois not-for-profit corporation ("HODC'� (HODC and Brinshore are, collectively, the
"Developer'.
IN CONSIDERATION OF the recitals and the mutual covenants and agreements set forth
in this Agreement, and pursuant to the Village's home rule powers, the parties hereto agree as
follows:
SECTION 1. RECITALS.
A. The Village is an Illinois home rule municipal corporation subject to the provisions
of Section 6 of Article VII of the Illinois Constitution.
B. The Property is an approximately 8.51 acre property located at the address
commonly and collectively known as 10 Deerfield Road.
C. The Property was located in the R-1 Single Family Zoning District.
D. The Property is owned by Zion Lutheran Evangelical Church, an Illinois not-for-
profit corporation ("Owner") which operates a church on the Property and has consented to the
execution and recordation of this Agreement.
E. The Owner and the Developer intend to enter into a 99 -year ground lease for the
portions of the Property to be redeveloped as described in this Agreement.
F. The Property is currently improved with a one-story brick building occupied and
operated by the Owner with a church and school ("Church"), as well as a one and one half story
brick and frame residence used as a parsonage ("Parsonage").
G. Developer desires to demolish the Parsonage and develop two multi -family
apartment buildings on the Property ( "Development").
H. In connection with the Development of the Property, Developer filed applications
with the Village seeking relief from the Zoning Ordinance including (i) rezoning of the Property
from the R-1 Single Family Residential District to the R-5 General Residence District; (ii) approval
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of a Residential Planned Unit Development with Necessary Exemptions and (iii) an amendment
to the Comprehensive Plan Future Land Use Map (collectively, "Requested Relief').
I. A public hearing was held by the Village Plan Commission on June 28, 2018 to
consider approval of the Preliminary Planned Unit Development Plan for Proposed Development
on the Property and recommended that the Board approve such relief.
J. On August 20, 2018, the Corporate Authorities approved the Preliminary Planned
Unit Development Plan for the Development.
K. A public meeting was held by the Plan Commission on October 8, 2020, to consider
whether the Final Planned Unit Development Plan was in substantial conformance with the
Preliminary Planned Unit Development Plan. On October 8, 2020, the Plan Commission certified
to the Corporate Authorities that the Final Planned Unit Development Plan was in substantial
conformance with the Preliminary Planned Unit Development Plan.
L. On , 2021, the Corporate Authorities adopted the Planned Unit
Development Ordinance approving the Development and the Development Approvals, effective
upon the execution of this Agreement.
M. The Corporate Authorities, after due and careful consideration, have concluded
that the development and use of the Property pursuant to and in accordance with this Agreement
would further enable the Village to control the development of the area and would serve the best
interests of the Village.
N. The Village desires that the Property be developed and used only in compliance
with this Agreement and the Development Approvals.
SECTION 2. DEFINITIONS; RULES OF CONSTRUCTION.
A. Definitions. Whenever used in this Agreement, the following terms have the
following meanings unless a different meaning is required by the context. All capitalized words
and phrases throughout this Agreement have the meanings set forth in the preamble above and
in this Section and the other provisions of this Agreement. If a word or phrase is not specifically
defined in this Agreement, it has the meaning ascribed to it in the Village Code, Zoning Ordinance,
or Subdivision Code.
"Apartment Buildings": The two multi -family apartment buildings proposed to be
constructed on the Property as part of the Development.
"Building Code": Chapter 6 of the Village Code and all international and model codes
adopted therein.
"Comprehensive Plan Ordinance": Ordinance No. -21, adopted by the Corporate
Authorities, as may be amended, amending the Village of Deerfield Comprehensive Plan's Future
Land Use Map to re -designate the Property's land use from institutional to multi -family residential.
"Corporate Authorities": The Mayor and Board of Trustees of the Village.
"Development Approvals": Collectively, the Planned Unit Development Ordinance,
Comprehensive Plan Ordinance, and Rezoning Ordinance.
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"Development Code": The Development Code of the Village of Deerfield, as amended.
"Effective Date": The date set forth in the first paragraph of page one of this Agreement.
"Elevations": Those certain "Exterior Elevations" prepared by Eckenhoff Saunders
Architects, consisting of two sheets labeled A3.0 and A3.1, with a latest revision date of
September 30, 2020, a copy of which is attached to this Agreement as Exhibit B-5.
"Events of Default": Defined in Section 13.A of this Agreement with respect to Developer
and in Section 13.B of this Agreement with respect to the Village.
"Evidence of Lease Date": The date on which the Village Clerk receives evidence, in the
form of an executed, effective, and recorded Memorandum of Lease or other proof satisfactory to
the Village Attorney, that the Owner has entered into a binding ground lease for a term of at least
99 years with the Developer for the purpose of constructing and operating the Development on
the Property.
"Final Development Plan Collectively, those plans and specifications for the
Development as approved and defined in Section 3 of the Planned Unit Development Ordinance,
as may be amended pursuant to Section 16.M of this Agreement.
"Final En_gineering Plan": Those certain "Zion Woods Multi -Family Housing Engineering
Plans" prepared by the V3 Companies, consisting of 14 sheets, with sheets that have a latest
revision date of January 12, 2021, a copy of which is attached to this Agreement as Exhibit B-2.
"Final Landscape Plan": Those certain "Zion Church Landscape Plans" prepared by
Daniel Weibach & Partners, Ltd., consisting of two sheets labeled L1.01 and L1.02, with a latest
revision date of December 18, 2020, a copy of which is attached to this Agreement as Exhibit B-
3.
"Floor Plans": Those certain "Floor Plans" prepared by Eckenhoff Saunders Architects,
consisting of five sheets labeled A1.0 through A1.4, with a latest revision date of September 30,
2020, a copy of which is attached to this Agreement as Exhibit B-6.
"Impact Fee Ordinance": Village Ordinance No. 0-93-48.
"Improvements": The on-site and off-site improvements to be made in connection with
the development of the Property, as provided in Section 4 of this Agreement, including, without
limitation, the Public Improvements and the landscaping to be installed pursuant to the Final
Development Plan, but specifically excluding the Apartment Buildings to be constructed on the
Property.
"Letter of Credit": The specific form of performance security required by Section 9.A of
this Agreement, and a form of which is included as Exhibit C to this Agreement.
"Maintenance Guarantee": Defined in Section 9.0 of this Agreement.
"Parties": The Village, Brinshore, and HODC, collectively.
"Person": Any corporation, partnership, individual, joint venture, limited liability company,
trust, estate, association, business, enterprise, proprietorship, governmental body or any bureau,
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department or agency thereof, or other legal entity of any kind, either public or private, and any
legal successor, agent, representative, authorized assign, or fiduciary acting on behalf of any of
the above.
"Photometric Plan": Those certain "Site Photometrics" prepared by RTM Engineering
Consultants, consisting of one sheet, with a latest revision date of September 30, 2020, a copy of
which is attached to this Agreement as Exhibit B-7.
"Plan Commission": The Plan Commission of the Village, established by Division 6 of
Article 11 of Chapter 2 of the Village Code.
"Planned Unit Development Ordinance": Ordinance No. -21, adopted by the
Corporate Authorities, as may be amended, approving for the Property: (i) a special use for a
planned residential development; (ii) the Final Development Plan for the Property; and (iii) certain
zoning exceptions within the approved planned development.
"Property": That certain tract of land, consisting of approximately 8.51 acres, located at
the address commonly and collectively known as 10 Deerfield Road, in Deerfield, Illinois and
legally described in Exhibit A attached to this Agreement.
"Public Improvements": Those Improvements that will be dedicated to, and accepted
by, the Village.
"Requirements of Law": All applicable federal, state and Village laws, statutes, codes,
ordinances, resolutions, rules, and regulations.
"Rezoning Ordinance": Ordinance No. -21, adopted by the Corporate Authorities
rezoning the Property from the R-1 Single Family Residential District to the R-5 General
Residence District.
"Signage Plan": That certain "Exterior Signage" plan prepared by Eckenhoff Saunders
Architects, consisting of one sheet labeled AS1.2 , with a latest revision date of September 30,
2020, a copy of which is attached as Exhibit B-8.
"Site Plan": That certain "Site Plan" prepared by Eckenhoff Saunders Architects
consisting of one sheet labeled AS1.0, with a latest revision date of October 28, 2020, a copy of
which is attached to this Agreement as Exhibit B-1.
"Site Restoration": Site restoration and modification activities to establish a park -like
setting suitable for passive outdoor recreational activities, including without limitation, demolition
of partially constructed improvements and structures, regrading, erosion control, and installation
of sod or seeding.
"Standards Manual": The "Deerfield Standards and Specifications Manual," as
amended.
"Stormwater Improvements": The following specific Improvements, as depicted on the
Final Engineering Plan: stormwater detention and compensatory storage basins, and private
storm sewers, related equipment, appurtenances, structures, swales, and storm drainage areas
installed and maintained on the Property to ensure adequate storm water drainage and
management and to collect and direct storm water into the North Branch of the Chicago River .
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"Structure": Anything constructed or erected which requires location on the ground or is
attached to something having location on the ground. The term "structure" shall include buildings,
but shall not include fences. Structure will in all cases be deemed to include, without limitation,
the Apartment Buildings to be constructed on the Property.
"Subdivision Code": The Subdivision Code of the Village of Deerfield, as amended.
"Transferee Assumption A_preement": Defined in Section 11.13.4 of this Agreement.
"Tree Preservation Ordinance": Article 4 of Chapter 21 of the Village Code.
"Tree Preservation Plan": That certain "Tree Preservation Plan" prepared by Daniel
Weinbach & Partners, Ltd., consisting of two sheets labeled 1-0.01 and L0.01A, with a latest
revision date of December 18, 2020 a copy of which is attached to this Agreement as Exhibit B-
4.
"Uncontrollable Circumstance": Any of the following events and circumstances that
materially change the costs or ability of Developer to carry out its obligations under this
Agreement:
a. insurrection, riot, civil disturbance, sabotage, act of public enemy, explosion,
nuclear incident, or war;
b. epidemic or pandemic, hurricane, tornado, landslide, earthquake, lightning, fire,
windstorm, other extraordinary weather conditions preventing performance of work, or other
similar Act of God;
governmental condemnation or taking other than by the Village; or
d. strikes, lockouts, or labor disputes, other than those caused by the unlawful acts
of Developer, its partners, or affiliated entities; or
Uncontrollable Circumstance does not include : (i) delays caused by weather conditions,
unless the weather conditions are unusually severe or abnormal considering the time of year and
the particular location involved; or (ii) economic hardship, impracticability of performance,
commercial, economic, or market conditions, or a failure of performance by a contractor of
Developer (except as caused by events that are Uncontrollable Circumstances as to such
contractor).
level.
"Vertical Construction": The construction of any portion of a Structure above grade
"Village Code": Municipal Code of the Village of Deerfield, Illinois (1976), as amended.
"Workforce and Accessible Housing Covenant": That certain covenant required to be
executed by the Developer and Owner, and recorded against the Property pursuant to Section 6
of this Agreement to ensure the continued use of the Property for the purposes described in this
Agreement.
"Zoning Ordinance": The Deerfield Zoning Ordinance (1978), as amended.
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B. Rules of Construction.
1. Grammatical Usage and Construction. In construing this Agreement, plural
terms are to be substituted for singular and singular for plural, in any place in which the context
so requires.
2. Headings. The headings, titles, and captions in this Agreement have been
inserted only for convenience and in no way define, limit, extend, or describe the scope or intent
of this Agreement.
3. Calendar Days. Unless otherwise provided in this Agreement, any
reference in this Agreement to "day" or "days" means calendar days and not business days. If the
date for giving of any notice required to be given, or the performance of any obligation, under this
Agreement falls on a Saturday, Sunday, or federal holiday, then the notice or obligation may be
given or performed on the next business day after that Saturday, Sunday, or federal holiday.
4. Compliance and Conflict with Other Requirements. Unless otherwise
provided in this Agreement either specifically or in context, in the event of a conflict between or
among this Agreement and any plan, document, or Requirement of Law referenced in this
Agreement, the plan, document, or Requirement of Law that provides the greatest control and
protection for the Village, as determined by the Village Manager, will control. All of the provisions
set forth in this Agreement, and all referenced plans, documents, and Requirements of Law are
to be interpreted so that the duties and requirements imposed by any one of them are cumulative
among all of them, unless otherwise provided in this Agreement either specifically or in context.
SECTION 3. DEVELOPMENT, USE, OPERATION AND MAINTENANCE OF THE
PROPERTY.
A. Development. The Development must consist of the following required elements,
all of which were promised by Developer and served as an enticement to the Village to enter into
this Agreement:
Apartment Buildings: The Developer will construct two multi -family
apartment buildings on the Property with the following characteristics:
a. Dwelling Units: 25 dwelling units across two, 2 -story buildings
containing 12 and 13 units respectively;
Mix of one and two story units;
13- one -bedroom units (620 sf), 7- two-bedroom units, and
5- three bedroom units (1,120 sf); and
iii. The unit sizes will range from 620 s.f. for a one -bedroom
apartment to 1,120 s.f. for a 3 -bedroom apartment.
Parking: 116 at -grade parking spaces that will serve both the Apartment
Buildings and the Church.
B. General Use and Development Restrictions. The development, construction,
use, operation and maintenance of the Development on the Property, must, except for minor
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alterations due to final engineering and site work approved by the Village Engineer or the Director
of Community Development, as appropriate, comply, and be in accordance, with the following:
this Agreement;
2. the Development Approvals;
3. the Final Development Plan and all individual plans and documents
of which it is comprised;
4. the Zoning Ordinance;
5. the Building Code;
6. the Subdivision Code;
7. the Development Code;
8. Standards Manual; and
9. the Requirements of Law.
Unless otherwise provided in this Agreement either specifically or in context, in the event
of a conflict between or among any of the plans or documents listed as or within items 1 through
8 of this Section 3.B, the interpretative provisions of Section 2.B.4 will prevail.
SECTION 4. IMPROVEMENTS.
A. Description of Improvements. Developer must, at its sole cost and expense,
construct and install all of the Improvements depicted on the Final Engineering Plan and the other
components of the Final Development Plan, including, without limitation, the following:
Stormwater Improvements;
Sanitary sewer mains and service lines;
Water mains and service lines; and
4. The landscaping, as depicted in the Final Landscape Plan.
B. Design and Construction of the Improvements.
1. General Standards. All Improvements must be designed and constructed
pursuant to and in accordance with the Final Development Plan and the Development Approvals,
and will be subject to the reasonable written satisfaction of the Village Engineer in accordance
with the Village Code, and the Subdivision Code, and the Standards Manual. All work performed
on the Improvements must be conducted in a good and workmanlike manner, with due dispatch,
and in compliance with the Improvement Construction Schedule, any phasing plan provided
pursuant to this Agreement, as well as all permits issued by the Village for construction of the
Improvements. All materials used for construction of the Improvements must be new and of first
rate quality.
2. Construction Schedule. Prior to commencing any construction of any Public
Improvement, or of any part of the Development that will affect existing utilities or roadways,
Developer must meet with the Village Engineer, or their or her designee, to develop a mutually -
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agreeable schedule for all such construction ("Improvement Construction Schedule"). The
meeting must take place not less than two weeks prior to the commencement of any such
construction. After the meeting, Developer must prepare and submit minutes of the meeting to
the Village Engineer. No construction may occur prior to the approval by the Village Engineer of
the meeting minutes and the Improvement Construction Schedule.
3. Contract Terms; Prosecution of the Work. Developer must include in every
contract for work on the Improvements terms requiring the contractor to prosecute the work
diligently and continuously, in full compliance with, and as required by or pursuant to, this
Agreement, the Development Approvals, the Final Development Plan, and the Requirements of
Law, until the work is properly completed, and providing that Developer may take over and
prosecute the work if the contractor fails to do so in a timely and proper manner.
4. Engineering Services. Developer must provide, at its sole cost and
expense, all engineering services for the design and construction of the Improvements, by a
professional engineer responsible for overseeing the construction of the Improvements.
Developer must promptly provide the Village with the name of a local owner's representative and
a telephone number or numbers at which the owner's representative can be reached at all times.
5. Village Inspections and Approvals. All work on the Improvements is subject
to inspection and approval by Village representatives at all times. Developer shall provide
immediate access to the Property for the purpose of conducting these inspections during regular
operating hours and within 12 hours outside of regular operating hours upon notice by the Village.
6. Other Approvals. Where the construction and installation of any
Improvement requires the consent, permission, or approval of any third -party public agency or
private party, Developer must promptly file all applications, enter into all agreements, post all
security, pay all fees and costs, and otherwise take all steps that may be required to obtain the
consent, permission, or approval.
C. Utilities.
1. Burial of Utilities. Developer must, at its sole cost and expense, cause to
be buried all existing and future electric poles and wires on the Property and on rights-of-way
immediately adjacent to the Property that exclusively serve the Property in a manner and in
locations approved in advance by the Village Engineer. Developer must coordinate and cooperate
with all utility companies and owners of neighboring properties as may be necessary to ensure
that the burial of utilities required pursuant to this Section 4.C.2 does not unreasonably disrupt
utility service to neighboring properties.
2. Connection of Utilities.
a. Developer must, at its sole cost and expense, and in accordance
with and pursuant to the Final Development Plan, upgrade: (a) all public utility
connections servicing the portions of the Property other than the Church; and (b)
the connection of all utilities to facilities located on the Property other than the
Church.
b. No utilities located on the Property may be connected to the sewer
and water utilities belonging to the Village except in accordance with the applicable
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provisions of the Village Code and upon payment of the connection fees required
pursuant to the Village Code.
D. Completion of the Improvements.
1. Stormwater Improvements. Upon the completion of the Stormwater
Improvements, Developer shall provide the Village a survey or other evidence satisfactory to the
Village evidencing that the design volume of the Stormwater Improvements complies with the
Final Development Plan and all Requirements of Law.
2. Completion of Improvements. The Village has the right, but not the
obligation, to refuse to issue a final certificate of occupancy for any building or structure located
on the Property until the Improvements are completed by Developer and approved by the Village.
The foregoing does not preclude the Village's issuance of conditional certificates of occupancy
pursuant to the applicable provisions of the Village Code. The issuance of any building permit or
certificate of occupancy by the Village at any time prior to completion of all of the Improvements
by Developer and approval of the Improvements by the Village will not constitute a waiver of the
Village's right to withhold any building permit or certificate of occupancy and will not confer on
Developer any right or entitlement to any other building permit or certificate of occupancy.
E. Dedication and Maintenance of the Improvements.
1. Final Inspection and Approval of the Improvements. Developer must notify
the Village when it believes that any or all of the Improvements have been fully and properly
completed and must request final inspection and approval of the Improvement or Improvements
by the Village. The notice and request must be given far enough in advance, and in no event with
less than one week's advance notice, to allow the Village time to inspect the Improvements and
to prepare a punch list of items requiring repair or correction and to allow Developer time to make
all required repairs and corrections prior to the scheduled completion date (as may be established
pursuant to this Agreement or in the permits issued by the Village for construction of the
Improvements). Developer must promptly make all necessary repairs and corrections as specified
on the punch list. The Village is not required to approve any portion of the Improvements until: (a)
all of the Improvements as may be required pursuant to Section 4.A of this Agreement, including
all punch list items, have been fully and properly completed; and (b) the Village Engineer has
determined that the specific Improvement has been constructed to completion, in accordance with
the Final Development Plan and Requirements of Law.
2. Dedication and Acceptance of Public Improvements. Neither the execution
of this Agreement, nor the approval of the Development Approvals, constitutes acceptance by the
Village of any Improvements that are depicted as "dedicated" on the on the Final Development
Plan, if any. The acceptance of ownership of, and responsibility for, a specific approved
Improvement as a Public Improvement may be made only by the Corporate Authorities, and only
in compliance with the requirements of the Subdivision Code and Development Code.
3. Transfer of Ownership of the Public Improvements and Easements to the
Village. Upon the approval of, and prior to acceptance of, the Public Improvements to be accepted
by the Village pursuant to Section 4.E of this Agreement, Developer must execute, or cause to be
executed, all documents as the Village may request to transfer ownership of, or to provide
easements in, the Public Improvements to, and to evidence ownership of the Public
Improvements by, the Village, free and clear of all liens, claims, encumbrances, and restrictions,
unless otherwise approved by the Village in writing. Developer must, at the same time: (a) grant,
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or cause to be granted, to the Village all insured easements or other property rights as the Village
may require to install, operate, maintain, service, repair, and replace the Public Improvements
that have not previously been granted to the Village, free and clear of all liens, claims,
encumbrances, and restrictions, unless otherwise approved by the Village in writing; and (b)
provide a written estimate of the monetary value of each Public Improvement to be accepted by
the Village.
4. Maintenance of Public Improvements. For a period of at least two years
following acceptance by the Village of the Public Improvements, Developer must, at its sole cost
and expense, maintain the Public Improvements without any modification, except as specifically
approved in writing by the Village Engineer, in a first rate condition at all times. Developer hereby
guarantees, on its behalf and on behalf of its successors, the prompt and satisfactory correction
of all defects and deficiencies in any of the Public Improvements that occur or become evident
within two years after acceptance of the Public Improvement by the Village pursuant to this
Agreement. In the event the Village Engineer determines, in the Village Engineer's reasonable
discretion, that Developer is not adequately maintaining, or has not adequately maintained, any
Public Improvement, Developer must, after 10 days' prior written notice from the Village (subject
to Uncontrollable Circumstances), correct it or cause it to be corrected. If Developer fails to correct
the defect, commence the correction of the defect, or diligently pursue correction of the defect to
completion, the Village, after 10 days' prior written notice to Developer, may, but will not be
obligated to, enter upon any or all of the Property for the purpose of performing maintenance work
on and to such Public Improvement. In the event that the Village causes to be performed any
work pursuant to this Section 4.E.4, Developer must, upon demand by the Village, pay the costs
of the work to the Village. If Developer fails to pay the costs, the Village will have the right to draw
from the Maintenance Guarantee required pursuant to Section 9.13 of this Agreement, based on
costs actually incurred or on the Village's reasonable estimates of costs to be incurred, an amount
of money sufficient to defray the entire cost of the work, including legal fees and administrative
expenses. In the event any Public Improvement is repaired or replaced pursuant to this Section
4.E.4, the Village's right to draw upon the Maintenance Guarantee pursuant to Section 9.13 of this
Agreement will be extended, as to the repair or replacement, for two full years from the date of
the repair or replacement.
SECTION 5. DEMOLITION AND CONSTRUCTION OF DEVELOPMENT.
A. General Construction and Contracting Requirements.
1. Compliance with Plans and Approvals. The development of the
Property must be designed and constructed pursuant to and in accordance with
the Final Development Plan and the Development Approvals. All work must be
conducted in a good and workmanlike manner and with due dispatch. All materials
used for construction on the Property will be in accordance with the specifications
for the work to be performed.
2. Contracts for Work on Property. The Developer must include in
every contract for work on the Property terms requiring the contractor and its
subcontractors to prosecute the work diligently, and in full compliance with, and as
required by or pursuant to, this Agreement, the Development Approvals, and the
Requirements of Law, until the work is properly completed, and terms providing
that the Developer may take over and prosecute the work if the contractor fails to
do so in a timely and proper manner.
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3. Village Inspections and Approvals. All work on the Property shall
be subject to inspection and approval by Village representatives at all times,
subject to safety rules on the Development Site.
B. Demolition of Existing Structures. Developer may commence demolition of the
Parsonage only after obtaining all necessary demolition permits from the Village and presenting
the Village with a plan to mitigate dust, smoke, and other particulates resulting from the demolition.
The Developer will conduct all demolition work on the Property in full compliance with the Village's
permitted construction work hours regulations. The Developer will remove and dispose of all
debris resulting from the demolition of existing structures on the Property in compliance with the
Requirements of Law.
C. Limits on Vertical Construction. In addition to any other applicable provision of
this Agreement and the Requirements of Law, the Developer may not commence any Vertical
Construction unless the Village Director of Community Development has (1) received proof of all
required FEMA approvals required to construct Structures, and (2) determined that the
construction of the following Improvements are complete as required by this Agreement and
Requirements of Law:
the Stormwater Improvements; and
a functional water system that can deliver water to all proposed fire
hydrants in the manner required by the Village.
D. Diligent Pursuit of Construction.
1. Once commencement of construction is authorized pursuant to this
Agreement, the Developer must pursue, or cause to be pursued, all required development,
demolition, construction, and installation of structures, buildings, and Improvements on the
Property in a diligent and expeditious manner, and in strict compliance with the Village Code and
the Requirements of Law. The Developer will conduct all construction work on the Property in full
compliance with the Village's permitted construction work hours regulations.
2. The Developer must complete and make ready the Improvements for
inspection, approval and, where appropriate, acceptance by the Village pursuant to the
construction schedule approved by the Village Director of Community Development as part of the
Final Engineering Plan. The Developer may be allowed extensions of time beyond the completion
dates set forth in such construction schedule only for unavoidable delay caused by Uncontrollable
Circumstances or as may be approved by the Village Manager.
E. Construction Traffic.
1. Construction and Traffic Management Plan. Developer must prepare and
submit, for review and approval by the Village Director of Community Development, a
Construction and Traffic Management Plan ("CTM Plan") for the development of the Property.
The CTM Plan will govern (i) the location, storage, and traffic routes for construction equipment
and construction vehicles, and (ii) the location of alternative off-street parking during the
construction. The Village has no obligation to issue a building permit for any structure or
Improvement, and no construction may be commenced with respect to the structure or
Improvement, unless and until the Village Director of Community Development has approved, in
writing, the CTM Plan. The Village agrees to cause the CTM Plan to be promptly and expeditiously
reviewed by the Village Director of Community Development; provided, however, that nothing in
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this Agreement is to be deemed or interpreted to require approval of the CTM Plan. The CTM
Plan must include, without limitation, the following:
a. The schedule and traffic routes for construction traffic accessing the
Property;
b. The designation of machinery and construction material storage
areas on the Property;
C. Provisions for the screening of construction areas within the
Property;
d. The hours of operation and schedule for construction on the
Property;
e. The location of areas on the Property for the parking of construction
vehicles and vehicles operated by construction employees;
The location of alternative off-street parking to replace any parking
temporarily lost due to construction; and
g. The location of temporary and durable off-street parking on the
Property for construction employees, which off-street parking must
comply with the standards set forth in the Village Code.
2. Designated Routes of Access. The Village reserves the right to designate
certain prescribed routes of access to the Property for construction traffic to provide for the
protection of pedestrians and to minimize disruption of traffic and damage to paved street
surfaces, to the extent practicable; provided, however, that the designated routes must not: (a)
be unreasonably or unduly circuitous; nor (b) unreasonably or unduly hinder or obstruct direct and
efficient access to the Property for construction traffic.
3. Maintenance of Routes of Access. At all times during the construction of
the structures and Improvements, Developer must: (a) keep all routes used for construction traffic
free and clear of mud, dirt, debris, obstructions, and hazards; and (b) repair any damage caused
by construction traffic.
F. Parking, Storm Water Management, and Erosion Control During
Construction. During construction of any of the structures or Improvements on the Property,
Developer must:
1. Install temporary and durable surface off-street parking on the Property for
the parking of construction employee vehicles, as necessary, which off-street parking must
comply with the applicable standards set forth in the Village Code, Standards Manual, and
Development Code;
2. Install and implement such measures as necessary to temporarily divert or
control any heavy accumulation of storm water away from or through the Property in a manner
approved in advance by the Village Engineer, which method of diversion must include early
installation of storm drains to collect water and convey it to a safe discharge point; and
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3. Install erosion control devices as necessary to prevent silt, dirt and other
materials from leaving the site and traveling onto other properties.
All installations made pursuant to this Section 5.G must be maintained by Developer until
construction of the Development is complete.
G. Issuance of Permits and Certificates.
1. General Right to Withhold Permits and Certificates. In addition to every
other remedy permitted by law for the enforcement of this Agreement, the Village has the absolute
right to withhold the issuance of any building permit or certificate of occupancy for the Property at
any time when Developer has failed or refused to meet fully any of its material obligations under,
or is in material violation of, or is not in full compliance with, the terms of this Agreement, the
Project Approvals, or the Requirements of Law.
2. Pre -Conditions to Issuance of Building Permit. The Village will have the
right, but not the obligation, to refuse to issue a building permit for any Structure other than any
Structures that are required for the construction of the storm sewer systems and sanitary sewer
mains to be constructed on the Property prior to the installation by Developer, and approval by
the Village Engineer, of all storm sewer systems, sanitary sewer mains, and site grading
Improvements on the Property.
3. Completion of Public Roads, Private Driveways, and Parking Areas. No
conditional certificate of occupancy or final certificate of occupancy associated with any new
Structure to be located on the Property will be issued until the final grading, application of final
surface course, and where applicable striping of parking space for the roads, driveways, and
parking areas serving the uses within such Structure has been completed.
H. Completion of Construction; Site Restoration.
1. Removal of Partially Constructed Structures and Improvements. Subject to
Uncontrollable Circumstances, if Developer fails to diligently pursue all demolition and
construction as required in, or permitted by, Sections 3, 4, and 5 of this Agreement to completion
within the time period prescribed in the building permit or permits issued by the Village for such
demolition and construction, as the case may be, and if a perfected application to renew the
building permit or permits is not filed within 30 days after the expiration of the permit or permits,
Developer must, within 60 days after notice from the Village: (a) remove any partially constructed
or partially completed Structures or Improvements from the Property; and (b) perform Site
Restoration on that portion of the Property in which Developer has failed to complete all such
demolition and construction, all in accordance with plans approved by the Village.
2. Removal and Restoration by Village. In the event Developer fails or refuses
to remove any partially completed buildings, structures, and Improvements, or to perform Site
Restoration, as required pursuant to Section 5.1-1.1 of this Agreement, the Village will have, and
is hereby granted the right, at its option, to: (a) demolish and/or remove any of the partially
completed Structures and Improvements from any and all portions of the Property; (b) perform
Site Restoration; and/or (c) cause the Structures or Improvements to be completed in accordance
with the plans submitted. Developer must fully reimburse the Village for all costs and expenses,
including legal and administrative costs, incurred by the Village for such work. If Developer does
not so fully reimburse the Village, the Village will have the right to draw from the Performance
Security and the Maintenance Guarantee, as described in and provided pursuant to Section 9 of
this Agreement, an amount of money sufficient to defray the entire cost of the work, including
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legal fees and administrative expenses. If Developer does not so fully reimburse the Village, and
the Performance Security and Maintenance Guarantee have no funds remaining in them or are
otherwise unavailable to finance such work, then the Village will have the right to place a lien on
the Property for all such costs and expenses in the manner provided by law. The rights and
remedies provided in this Section 5.H.2 are in addition to, and not in limitation of, any other rights
and remedies otherwise available to the Village in this Agreement, at law, and/or in equity.
I. As -Built Plans. After completion of construction of any new Structure, Owner
must submit to the Village's Principal Planner final "as -built" plans: (1) related to drainage,
grading, storm sewer, sanitary sewer and water mains, and associated structures; and (2) for
other final construction documents as required and approved by the Director of Public Works and
Engineering and the Village Principal Planner. The as -built plans must indicate, without limitation,
the amount, in square feet, of impervious surface area on the Property.
J. Damage to Public Property. Developer must maintain the Property and all
streets, sidewalks, and other public property in and adjacent to the Property in a good and clean
condition at all times during the development of the Property and construction of the Development.
Further, Developer must: (1) promptly clean all mud, dirt, or debris deposited on any street,
sidewalk, or other public property in or adjacent to the Property by Developer or any agent of or
contractor hired by, or on behalf of, Developer; and (2) repair any damage that may be caused
by the activities of Developer or any agent of or contractor hired by, or on behalf of, Developer.
K. Landscaping and Tree Preservation.
1. Landscaping. Prior to the issuance by the Village of a final certificate of
occupancy for any Structure on the Property, Developer must install all landscaping on the
Property, as depicted on the Final Development Plan, which landscaping must be installed and
maintained and in accordance with the following:
a. Unless otherwise approved in advance by the Village Engineer, no
plant material to be installed on the Property may be purchased or relocated from a location that
is not within a 150 -mile radius of the Village.
b. Developer must, prior to construction, erect fencing satisfactory to
the Village Engineer to protect those existing trees located on the Property: (i) designated in the
Final Development Plan; and (ii) designated for protection by the Village Engineer .
C. No grade alteration or construction may take place within
designated tree preservation areas, consistent with the tree fencing plan that must be submitted
with Developer's applications for building permits for the Proposed Development.
d. All trees, shrubs, plantings, and ornamentals must be healthy, and
of the size, height, and species described in the Final Engineering Plans.
e. The Village Engineer will have the right to reasonably reject or
require replacement of any landscaping that is not in accordance with this Agreement.
f. Developer must, and does hereby, guarantee the proper health and
survival of all landscaping (new and transplanted) for a period of two years after the date of the
installation of such landscaping.
g. The final grade of the site must contain a minimum of four to six
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inches of topsoil, except as may be approved by the Village Engineer.
h. Upon installation, the trees required to be installed and planted
pursuant to this Agreement must have the minimum height and diameter as represented on the
Final Engineering Plans, and must comply with the tree replacement requirements set forth in the
Village Code.
i. Developer must replace any plantings that are not healthy and
growing at any time within the first two year from the date of installation.
2. Tree Preservation. Developer must comply with all applicable tree
preservation regulations set forth in Tree Preservation Ordinance of the Village Code and conduct
all tree removal, protection, and replacement in accordance with the Tree Preservation Plan.
L. Lighting. All exterior lighting on the Property must comply at all times with the
lighting requirements set forth in the Building Code and be installed in accordance with the
Photometric Plan.
M. Construction and Demolition Debris Management. All debris, spoils, materials,
and waste generated by demolition, grading, construction, installation and paving on the Property
must be properly disposed in accordance with the Requirements of law all applicable state,
county, and local laws, statutes, ordinances, and regulations concerning recycling of construction
and demolition debris and recycling, removal, hauling, and disposal of special and hazardous
waste, as may be applicable depending on site conditions.
SECTION 6. VOLUNTARY WORKFORCE AND ACCESSIBLE HOUSING COVENANT.
Developer, with Owner's consent, has voluntarily offered to the Village that it will execute
and record against the Property a Workforce and Accessible Housing Covenant in substantially
the form attached as Exhibit E. The Village hereby accepts Developer's offer, and acknowledges
that it has considered and relied on Developer's offer in adopting the Development Approvals.
Accordingly, Developer hereby agrees to execute the Workforce and Accessible Housing
Covenant and record it against the Property in the Office of the Lake County Recorder of Deeds
at the same time this Agreement is recorded, and in no event later than 30 days after the Evidence
of Lease Date.
SECTION 7. LAND DEDICATIONS; CONTRIBUTIONS.
Developer hereby agrees to fully comply with, and cause to be paid, the fees in lieu of land
contributions calculated pursuant to the Impact Fee Ordinance for the following governmental
entities (collectively, "Impact Fees"):
The Deerfield Park District ($132,893.25);
Deerfield Public Schools District 109 ($12,993.75);
Township High School District No. 113 ($7,761.25);
4. Deerfield -Bannockburn Fire Protection District ($265.79); and
The Village ($36,235.56).
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The Impact Fees are based on a per unit basis and must be paid in full prior to the issuance of
any building permit for any Vertical Construction on the Property. Developer acknowledges that
the payment of development impact fees imposed by the Impact Fee Ordinance are reasonable
and that Developer hereby holds harmless and releases the Village, the Deerfield Park District,
Deerfield Public Schools District 109, Township High School District 113, and Deerfield
Bannockburn Fire Protection District (collectively, the "Districts") from any claim or other action
Developer may have against the Village and the Districts as a result of the Impact Fee Ordinance
and the impact fees exacted thereunder for distribution to any District by the Village. Developer
acknowledges and agrees that, if Developer is entitled to any credit toward the Impact Fees as a
result of development impact fees previously paid by third -parties with respect to other proposed
developments of the Property, and if such credit exceeds the Impact Fees otherwise due pursuant
to this Section 7: (a) the Village will have no liability or responsibility whatsoever to pay to
Developer the difference between the credit and the Impact Fees otherwise due; and (b)
Developer must pursue any claim for any such payment with the affected Districts.
SECTION 8. PAYMENT OF VILLAGE FEES AND COSTS.
A. Negotiation and Review Fees. In addition to all other costs, payments, fees,
charges, contributions, or dedications required by this Agreement or by the Requirements of Law,
Developer must pay to the Village, contemporaneous with the execution of this Agreement by the
Village, all third -party legal, engineering, and other consulting or administrative fees, costs, and
expenses incurred or accrued in connection with: (1) the development of the Property, including,
without limitation, the review and processing of plans therefor, and inspection and review of the
Improvements once constructed; (2) the negotiation, preparation, consideration, and review of
this Agreement and all exhibits and associated documents. Developer acknowledges and agrees
that it will continue to be liable for and to pay, promptly after presentation of a written demand or
demands for payment, such third -party fees, costs, and expenses incurred in connection with any
applications, documents, proposals, or requests for interpretations or amendments of this
Agreement, whether formal or informal, of whatever kind, submitted by Developer during the term
of this Agreement in connection with the use and development of the Property. Further, Developer
acknowledges and agrees that it is liable for and will pay after demand all fees, costs, and
expenses incurred by the Village for publications and recordings required in connection with the
above matters.
B. Other Village Fees. In addition to all other costs, payments, fees, charges,
contributions, or dedications required by this Agreement, Developer must pay to the Village all
application, inspection, and permit fees, all water and sewer general and special connection fees,
tap -on fees, charges, and contributions, and all other fees, charges, and contributions pursuant
to the Requirements of Law.
SECTION 9. PERFORMANCE SECURITY.
A. General Requirements. As security to the Village for the performance by
Developer of its obligations to construct and complete the Improvements pursuant to and in
accordance with this Agreement, they hereby irrevocably elect, on behalf of themselves and their
successors, and agree to provide the Village performance and payment security for the
Improvements ("Guarantee's in the form of one or more letters of credit ( "Letter of Credit's in
the amount set forth in Article IV of the Development Code, and in accordance with the terms
set forth in the Development Code. The Letter of Credit shall be in form and substance
substantially conforming in all material respects with Exhibit C to this Agreement and
satisfactory to the Village Attorney. The Letter of Credit must be provided to the Village prior to
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the issuance of any permits for the Development, and must be maintained at all times until all
Improvements have been approved and, as appropriate, accepted.
B. Use of Guarantee Funds. If the Developer fails or refuses to complete the
Improvements that it is required to complete in accordance with this Agreement, or fails or
refuses to correct any defect or deficiency in the Improvements, as required by this Agreement,
and such failure or refusal is a Developer Event of Default, then the Village in its reasonable
discretion may draw on and retain all or any of the funds remaining in the Guarantee which
secure such completion or correction and are necessary to remedy such failure or refusal. The
Village thereafter shall have the right, subject to an additional 30 days' notice and opportunity
for cure, to cause such Improvements to be completed or corrected, and subject to the terms of
the immediately preceding sentence, to reimburse itself from the proceeds of the Letter of Credit
for all of its costs and expenses, including legal fees and administrative expenses, resulting from
or incurred as a result of the Developer's failure or refusal. If the funds remaining in the Letter of
Credit are insufficient to repay fully the Village for all costs and expenses, then the Developer
shall upon demand of the Village therefor deposit with the Village any additional funds as the
Village determines are necessary, within 30 days of a request therefor, to fully repay such costs
and expenses.
C. Maintenance Guarantee. Immediately after any approval and, where appropriate,
acceptance, by the Village of the Public Improvements pursuant to this Agreement, the Developer
shall each post a new guarantee in the amount of ten percent of the actual total cost of the
Improvements on the Property provided as (i) all cash or (ii) a combination of cash and a letter of
credit (with at least 10% cash), as security for the Developer's maintenance of such Public
Improvements (each, a "Maintenance Guarantee"). The Maintenance Guarantee shall be held
by the Village in escrow until the date that is two years after the approval of the Improvement and
where appropriate, acceptance by the Village of the Improvement, secured by the Maintenance
Guarantee pursuant to this Agreement. If the Village is required to draw on either Maintenance
Guarantee by reason of the Developer's failure to fulfill its maintenance obligations under this
Section 9.C, then the Developer, as the case may be, must within 10 days thereafter cause their
respective Maintenance Guarantee to be increased to its full original amount.
SECTION 10. LIABILITY AND INDEMNITY OF VILLAGE.
A. Village Review. Developer acknowledges and agrees that the Village is not, and
will not be, in any way liable for any damages or injuries that may be sustained as the result of
the Village's review and approval of any plans for the Development or the Improvements, or the
issuance of any approvals, permits, certificates, or acceptances, for the development or use of
the Development or the Improvements, and that the Village's review and approval of any such
plans and the Improvements and issuance of any such approvals, permits, certificates, or
acceptances does not, and will not, in any way, be deemed to insure Developer or any of its
successors, assigns, tenants and licensees, or any third party, against damage or injury of any
kind at any time.
B. Village Procedure. Developer acknowledges and agrees that all notices,
meetings, and hearings have been properly given and held by the Village with respect to the
approval of this Agreement and of the Development Approvals, and Developer agrees not to
challenge such approvals on the grounds of any procedural infirmity or of any denial of any
procedural right.
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C. Indemnity. Developer, only as to its own acts or omissions, agrees to, and does
hereby, hold harmless, indemnify, and, at the election of the Village defend with counsel of the
Village's choice, the Village and all Village elected or appointed officials, officers, employees,
agents, representatives, engineers, and attorneys, from any and all claims that may be asserted
at any time against any of those parties in connection with: (i) the Village's review and approval
of any plans for the Development or the Improvements; (ii) the issuance of any approval, permit,
certificate, or acceptance for the Development or the Improvements; and (iii) the development,
construction, maintenance, or use of any portion of the Development or the Improvements
("Indemnified Claims"); provided, however, that this indemnity does not, and will not, apply to
willful misconduct or gross negligence on the part of the Village.
D. Defense Expense. Developer, only as to its own acts or omissions, must, and
does hereby agree to, pay all expenses, including legal fees and administrative expenses,
incurred by the Village in defending itself with regard to any and all of the Indemnified Claims.
SECTION 11. NATURE, SURVIVAL AND TRANSFER OF OBLIGATIONS.
A. Binding Effect. All obligations assumed by Developer under this Agreement are
and will be binding upon Developer personally, upon any and all of its heirs, successors, and
assigns, and upon any and all of the respective successor legal or beneficial owners of all or any
portion of the Property.
B. Successors and Transferees. To assure that all grantees, successors, assigns,
and transferees of Developer and all successor owners of all or any portion of the Property have
notice of this Agreement and the obligations created by it, Developer must, from and after the
Evidence of Lease Date:
1. Deposit with the Village Clerk, concurrent with the Village's approval of this
Agreement, any consents or other documents necessary to authorize the Village to record this
Agreement in the office of the Lake County Recorder of Deeds;
2. Notify the Village in writing at least 30 days prior to any date on which
Developer transfers (as that term is defined in Section 11.0 of this Agreement) a legal or beneficial
interest in any portion of the Property to a third party with the exception of leases to residential or
tenants of the Apartment Buildings;
3. Incorporate this Agreement by reference into any and all real estate sales
contracts for transfers, as that term is defined in Section 11.0 of this Agreement, entered into for
the sale of all or any portion of the Property; and
4. Except as provided in Section 11.0 of this Agreement, require, prior to the
transfer of all or any portion of the Property, or any legal or equitable interest therein, to any third
party, the transferee of said portion or interest in the Property to execute an enforceable written
agreement, in substantially the form of Exhibit D to this Agreement, agreeing to be bound by the
provisions of this Agreement ( "Transferee Assumption Agreement") and to provide the Village,
upon request, with such reasonable assurance of the financial ability of the transferee to meet
those obligations as the Village may require. The Village agrees that upon a successor becoming
bound to the obligation created in the manner provided in this Agreement and providing the
financial assurances required pursuant to this Agreement, the liability of Developer will be
released to the extent of the transferee's assumption of the liability. The failure of Developer to
provide the Village with a copy of a Transferee Assumption Agreement fully executed by the
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transferee and, if requested by the Village, with the transferee's proposed assurances of financial
capability before completing any transfer, will result in Developer remaining fully liable for all of its
obligations under this Agreement but will not relieve the transferee of its liability for all such
obligations as a successor to Developer.
C. Transfer Defined. For purposes of this Agreement, the term "transfer" includes,
without limitation, any assignment, sale, transfer to a receiver or to a trustee in bankruptcy,
transfer in trust, or other disposition of the Property, or any beneficial interest in the Property, in
whole or in part, by voluntary or involuntary sale, foreclosure, merger, sale and leaseback,
consolidation, or otherwise; provided, however, that a lease of a dwelling unit within the Apartment
Buildings does not constitute a "transfer" hereunder.
D. Mortgagees of Property. This Agreement is and will be binding on all mortgagees
of the Property or other secured parties automatically upon such mortgagee assuming title to the
Property, in whole or in part, by a foreclosure or a deed in lieu of foreclosure without the necessity
of entering into a Transferee Assumption Agreement. Until such time, however, a mortgagee or
other secured party will have no personal liability hereunder.
SECTION 12. TERM.
A. The provisions of this Agreement run with and bind the Property and inure to the
benefit of, be enforceable by, and obligate the Village, Developer, and any of their respective,
grantees, successors, assigns, and transferees, including all successor legal or beneficial owners
of all or any portion of the Property from the date this Agreement is recorded and until the
Improvements are approved by the Village and the Improvements, as required by this Agreement
and the Subdivision Code, are accepted by the Village. Following such approval and acceptance,
the Village agrees, upon written request of the Developer, to execute appropriate and recordable
evidence of the termination of this Agreement. Notwithstanding anything to the contrary in this
Section 12, the Developer's indemnity and defense obligations as set forth in Section 9 of this
Agreement shall survive the termination of this Agreement.
B. In the event that the Evidence of Lease Date does not occur within six months after
the Effective Date of this Agreement, the Village will have the right, in its sole and absolute
discretion, to terminate this Agreement and all obligations of the Village under this Agreement by
delivery of notice to Developer. The Village will take all legislative actions necessary to rescind,
repeal, or otherwise terminate the Development Approvals prior to terminating this Agreement
pursuant to this Section 12.B. The Developer Agrees that, notwithstanding the status of the
Development Approvals, the Developer's right to construct, maintain, and operate the
Development on the Property will terminate upon the termination of this Agreement pursuant to
this Section 12.B.
SECTION 13. EVENTS OF DEFAULT.
A. Developer Events of Default. The following are Developer Events of Default
under this Agreement:
1. If any representation made by Developer in this Agreement, or in any
certificate, notice, demand or request made by Developer in writing and delivered to the Village
pursuant to or in connection with this Agreement, proves to be untrue or incorrect in any material
respect as of the date made; provided that, so long as such untrue or incorrect representation (i)
was not intentionally or fraudulently made, and (ii) Developer makes such representation true and
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correct within 15 days after receiving notice from the Village, then such default shall be deemed
cured.
2. Default by Developer for a period of 15 days after written notice thereof in
the performance or breach of any covenant contained in this Agreement concerning the existence,
structure or financial condition of Developer; provided, however, that such default or breach will
not constitute an Event of Default if such default cannot be cured within said 15 days and
Developer, within said 15 days, initiates and diligently pursues appropriate measures to remedy
the default and in any event cures such default within 60 days after such notice.
3. Default by Developer for a period of 15 days after written notice thereof
from the Village in the performance or breach of any covenant, warranty or obligation contained
in this Agreement; provided, however, that such default will not constitute an Event of Default if
such default cannot be cured within said 15 days and Developer, within said 15 days, initiates
and diligently pursues appropriate measures to remedy the default and in any event cures such
default within 60 days after such notice.
4. The entry of a decree or order for relief by a court having jurisdiction in the
premises in respect of Developer in an involuntary case under the federal bankruptcy laws, as
now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or
other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrate
(or similar official) of Developer for any substantial part of its property, or ordering the winding -up
or liquidation of its affairs and the continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days.
5. The commencement by Developer of a voluntary case under the federal
bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state
bankruptcy, insolvency or other similar law, or the consent by Developer to the appointment of or
taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar
official) of Developer or of any substantial part of the Property, or the making by any such entity
of any assignment for the benefit of creditors or the failure of Developer generally to pay such
entity's debts as such debts become due or the taking of action by Developer in furtherance of
any of the foregoing, or a petition is filed in bankruptcy by others.
6. Failure to have funds to meet Developer's obligations.
7. Sale, assignment, or transfer of the Property except in accordance with the
Transferee Assumption provisions in Section 11 of this Agreement.
8. Change in the organizational status of Developer except in accordance with
the Transferee Assumption provisions in Section 11 of this Agreement.
9. Developer abandons the development of the Property. Abandonment will
be deemed to have occurred when work stops on the development of the Property for more than
30 days for any reason other than Uncontrollable Circumstances, unless otherwise permitted by
this Agreement. The failure of Developer to secure any approvals required for the development
or construction of the Property will not be a valid defense to abandonment.
10. Developer fails to comply with the Requirements of Law in relation to the
construction and maintenance of the Improvements and Structures contemplated by this
Agreement.
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B. Events of Default by the Village. The following are Village Events of Default
under this Agreement:
1. If any material representation made by the Village in this Agreement, or in
any certificate, notice, demand or request made by the Village in writing and delivered to
Developer pursuant to or in connection with any of said documents, proves to be untrue or
incorrect in any material respect as of the date made.
2. Subject to Uncontrollable Circumstances, default by the Village for a period
of 30 days after written notice thereof from Developer in the performance or breach of any
covenant contained in this Agreement; provided, however, that such default will not constitute an
Event of Default if such default cannot be cured within said 30 days and the Village, within said
30 days, initiates and diligently pursues appropriate measures to remedy the default and in any
event cures such default within 90 days after such notice.
SECTION 14. REMEDIES FOR DEFAULT AND ENFORCEMENT.
A. Remedies for Default. In the case of an Event of Default under this Agreement:
1. Except as otherwise provided in this Agreement and subject to the
provisions hereinafter set forth, the non -defaulting Party may institute such proceedings in law or
in equity, by suit, action, mandamus, or any other proceeding, as may be necessary or desirable
in its opinion to cure or remedy such default or breach, including, but not limited to, proceedings
to compel specific performance of the defaulting Party's obligations under this Agreement.
2. Pursuant to Section 5.1 of this Agreement, the Village may, without
prejudice to any other rights and remedies available to the Village, require: (a) the demolition and
removal of any partially constructed or partially completed buildings, structures, or Improvements
from the Property; and (b) the performance of Site Restoration. Concurrent with the Village's
exercise of its rights under Section 5.1, the Corporate Authorities will have the right, but not the
obligation, to terminate the entitlements set forth in the Development Approvals and this
Agreement, without protest or objection by Developer.
3. In case the Village has proceeded to enforce its rights under this
Agreement and such proceedings have been discontinued or abandoned for any reason, then,
and in every such case, Developer and the Village will be restored respectively to their several
positions and rights hereunder, and all rights, remedies and powers of Developer and the Village
will continue as though no such proceedings had been taken.
B. Limitation. Notwithstanding anything to the contrary contained in this Agreement,
including the provisions of this Section 14, Developer agrees that it will not seek, and does not
have the right to seek, to recover a judgment for monetary damages against the Village or any
elected or appointed officials, officers, employees, agents, representatives, engineers, or
attorneys of the Village, on account of the negotiation, execution or breach of any of the terms
and conditions of this Agreement.
C. Repeal of Development Approvals. In addition to every other remedy permitted
by law for the enforcement of the terms of this Agreement, the Village will have the absolute right
to repeal the Development Approvals if a Developer Event of Default occurs under this
Agreement.
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D. Prevailing Party. In the event of a judicial proceeding brought by one Party
against the other Party, the prevailing Party in the judicial proceeding will be entitled to
reimbursement from the unsuccessful Party of all costs and expenses, including reasonable
attorneys' fees, incurred in connection with the judicial proceeding.
SECTION 15. WARRANTIES AND REPRESENTATIONS.
A. By the Village. The Village represents, warrants and agrees as the basis for the
undertakings on its part contained in this Agreement that:
1. The Village is a home rule municipal corporation duly organized and
validly existing under the law of the State of Illinois and has all requisite corporate power and
authority to enter into this Agreement;
2. The execution, delivery and the performance of this Agreement and the
consummation by the Village of the transactions provided for herein and the compliance with the
provisions of this Agreement: (i) have been duly authorized by all necessary corporate action on
the part of the Village; (ii) require no other consents, approvals or authorizations on the part of the
Village in connection with the Village's execution and delivery of this Agreement; and (iii) do not, by
lapse of time, giving of notice or otherwise, result in any breach of any term, condition or
provision of any indenture, agreement or other instrument to which the Village is subject; and
3. To the best of the Village's knowledge, there are no proceedings pending
or threatened against or affecting the Village or the Property in any court or before any
governmental authority that involves the possibility of materially or adversely affecting the ability of the
Village to perform its obligations under this Agreement.
B. By Brinshore. Brinshore, and the person executing this Agreement on behalf
of Brinshore, represent, warrant, and covenant, as of the Effective Date of this Agreement, that:
1. Brinshore is an Illinois limited liability company duly organized, validly
existing, and qualified to do business in Illinois;
2. Brinshore has the right, power, and authority to enter into, execute,
deliver and perform this Agreement, and Brinshore is in compliance with all Requirements of
Law, the failure to comply with which could affect the ability of Brinshore to perform its obligations
under this Agreement;
3. The execution, delivery and performance by Brinshore of this Agreement
has been duly authorized by all necessary corporate action, and does not and will not violate its
organizational documents, as amended and supplemented, any of the applicable Requirements of
Law, or constitute a breach of or default under, or require any consent under, any agreement,
instrument, or document to which Brinshore is now a party or by which Brinshore is now or may
become bound including any mortgages, secured loans, or instruments granting another party a
superior interest the Property or the Development and that any parties with such interests shall have
executed a "Consent and Subordination" agreement in substantially the form attached to this
Agreement;
4. The applications, plans, materials, and other submissions Brinshore has
provided to the Village accurately and truthfully represent Brinshore's capabilities, resource, and
intentions for the construction of the Development on the Property as of the Effective Date. The
Brinshore agrees and acknowledges that these submissions have served to induce the Village
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to enter into this Agreement and that any material misrepresentation contained in Brinshore's
submissions shall constitute an uncurable Event of Default pursuant to Section 13 of this
Agreement.
5. There are no actions or proceedings by or before any court,
governmental commission, board, bureau or any other administrative agency pending, threatened,
or affecting Brinshore which would impair its ability to perform under this Agreement;
6. Brinshore will apply for and will maintain all government permits,
certificates, and consents (including, without limitation, appropriate environmental approvals)
necessary to conduct its business and to construct and complete its obligations as required by this
Agreement; and
7. Brinshore has sufficient financial and economic resources to implement
and complete its obligations under this Agreement;
8. Brinshore has no knowledge of any liabilities, contingent or otherwise, of
Brinshore which might have a material adverse effect upon its ability to perform its obligations
under this Agreement.
C. By HODC. HODC, and the person executing this Agreement on behalf of
HODC, represent, warrant, and covenant, as of the Effective Date of this Agreement, that:
1. HODC is an Illinois not-for-profit corporation duly organized, validly
existing, and qualified to do business in Illinois;
2. HODC has the right, power, and authority to enter into, execute, deliver
and perform this Agreement, and HODC is in compliance with all Requirements of Law, the
failure to comply with which could affect the ability of HODC to perform its obligations under this
Agreement;
3. The execution, delivery and performance by HODC of this Agreement
has been duly authorized by all necessary corporate action, and does not and will not violate its
organizational documents, as amended and supplemented, any of the applicable Requirements of
Law, or constitute a breach of or default under, or require any consent under, any agreement,
instrument, or document to which HODC is now a party or by which HODC is now or may become
bound including any mortgages, secured loans, or instruments granting another parry a superior
interest the Property or the Development and that any parties with such interests shall have executed
a "Consent and Subordination" agreement in substantially the form attached to this Agreement;
4. The applications, plans, materials, and other submissions HODC has
provided to the Village accurately and truthfully represent HODC's capabilities, resource, and
intentions for the construction of the Development on the Property as of the Effective Date. The
HODC agrees and acknowledges that these submissions have served to induce the Village to
enter into this Agreement and that any material misrepresentation contained in HODC's
submissions shall constitute an uncurable Event of Default pursuant to Section 13 of this
Agreement.
5. There are no actions or proceedings by or before any court,
governmental commission, board, bureau or any other administrative agency pending, threatened,
or affecting HODC which would impair its ability to perform under this Agreement;
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6. HODC will apply for and will maintain all government permits, certificates,
and consents (including, without limitation, appropriate environmental approvals) necessary to
conduct its business and to construct and complete its obligations as required by this Agreement;
and
7. HODC has sufficient financial and economic resources to implement and
complete its obligations under this Agreement;
8. HODC has no knowledge of any liabilities, contingent or otherwise, of
HODC which might have a material adverse effect upon its ability to perform its obligations under
this Agreement.
SECTION 16. GENERAL PROVISIONS.
A. Notices. All notices required or permitted to be given under this Agreement must
be given by the Parties by: (i) personal delivery; (ii) deposit in the United States mail, enclosed in
a sealed envelope with first class postage thereon; or (iii) deposit with a nationally recognized
overnight delivery service, addressed as stated in this Section 16.A. The address of any Party
may be changed by written notice to the other Parties. Any mailed notice will be deemed to have
been given and received within three days after the same has been mailed and any notice given
by overnight courier will be deemed to have been given and received within 24 hours after deposit.
Notices and communications to the Parties must be addressed to, and delivered at, the following
addresses:
If to the Village: Village of Deerfield
850 Waukegan Road
Deerfield, IL 60015
Attention: Village Manager
with a copy to: Elrod Friedman LLP
325 North LaSalle Street
Suite 450
Chicago, IL 60654
Attention: Steven M. Elrod
If to Developer: Richard Koenig
HODC
P.O. Box #480
Techny, IL 60082
With a copy to: David Brint
Brinshore Development LLC
666 Dundee Road
Suite 1102
Northbrook,IL 60062
And Steven Friedland
Applegate & Thorne Thomsen
425 S. Financial Place, Suite 1900
Chicago, IL 60605
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B. Time of the Essence. Time is of the essence in the performance of all terms and
provisions of this Agreement.
C. Rights Cumulative. Unless expressly provided to the contrary in this Agreement,
each and every one of the rights, remedies, and benefits provided by this Agreement are
cumulative and are not exclusive of any other such rights, remedies, and benefits allowed by law.
D. Non -Waiver. The Village is not, and will not be, under any obligation to exercise
any of the rights granted to it in this Agreement. The failure of the Village to exercise at any time
any such right will not be deemed or construed to be a waiver thereof, nor will such failure void or
affect the Village's right to enforce such right or any other right.
E. Consents. Whenever the consent or approval of any Party to this Agreement is
required, the consent or approval must be in writing and may not be unreasonably withheld,
delayed or conditioned, and, in all matters contained herein, all parties will have an implied
obligation of reasonableness, except as may be expressly set forth otherwise.
F. Governing Law; Venue. This Agreement is to be governed by, and enforced in
accordance with the internal laws, but not the conflicts of laws rules, of the State of Illinois. The
parties irrevocably agree and hereby consent and submit to the exclusive jurisdiction of the Circuit
Court of Lake County, Illinois with regard to the any actions or proceedings arising from, relating
to, or in connection with this Agreement. The parties hereto hereby waive their respective right
to transfer or change the venue of any litigation file in the Circuit Court of Lake County, Illinois.
G. Severability. If any term, covenant, condition, or provision of this Agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions of this Agreement and the validity, enforceability, and application to any person, firm,
corporation, or property will not be impaired thereby, but the remaining provisions are to be
interpreted, applied, and enforced so as to achieve, as near as may be, the purpose and intent of
this Agreement to the greatest extent permitted by applicable law.
H. Joint and Several Liability. Brinshore and HODC acknowledge and agree that,
except as expressly provided to the contrary, all obligations, responsibilities, and liabilities of
Developer under this Agreement are joint and several obligations and responsibilities of both
Brinshore and HODC, for which Brinshore and HODC may be held jointly and severally liable.
I. Entire Agreement. This Agreement constitutes the entire agreement between the
parties, superseding any and all prior agreements and negotiations between the parties, whether
written or oral, relating to the subject matter of this Agreement.
J. Interpretation. This Agreement is to be construed without regard to the identity of
the party who drafted the various provisions of this Agreement. Each provision of this Agreement
is to be construed as though all parties to this Agreement participated equally in the drafting of
this Agreement. Any rule or construction that a document is to be construed against the drafting
party is not applicable to this Agreement.
K. Headings. The table of contents, heading, titles, and captions in this Agreement
have been inserted only for convenience and in no way define, limit, extend, or describe the scope
or intent of this Agreement.
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L. Exhibits/Conflicts. Exhibits A through E attached to this Agreement are, by this
reference, incorporated in and made a part of this Agreement. In the event of a conflict between
an exhibit to this Agreement and the text of this Agreement, the latter will control.
M. Amendments and Modifications.
1. No amendment or modification to this Agreement will be effective unless
and until it is reduced to writing and approved and executed by all parties to this Agreement in
accordance with all applicable statutory procedures.
2. Amendments or modifications to the Development Approvals can be
considered and acted on by the Village without the same being deemed an amendment or
modification to this Agreement provided that all applicable procedural requirements of the Zoning
Ordinance, Subdivision Code, Development Code, and the provisions of this Agreement are
satisfied.
N. Changes in Laws. Unless otherwise explicitly provided in this Agreement, any
reference to any Requirements of Law will be deemed to include any modifications of, or
amendments to the Requirements of Law as may, from time to time, hereinafter occur.
O. No Third Party Beneficiaries. No claim as a third party beneficiary under this
Agreement by any person, firm, or corporation may be made, or be valid, against the Village or
Developer.
P. Recording. The Village will record this Agreement against the Property, at the sole
cost and expense of Developer, with the Office of the Lake County Recorder of Deeds promptly
following the full execution of this Agreement by the Parties.
Q. Counterparts. This Agreement may be executed in counterparts, each of which
will constitute an original document and together will constitute the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK — SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties have hereunto set their hands on the date first above
written.
ATTEST:
Village Clerk
ATTEST:
By:
Its:
ATTEST:
By:
Its:
VILLAGE OF DEERFIELD, an Illinois home
rule municipal corporation
Bv:
Harriet Rosenthal
Its: Mayor
BRINSHORE DEVELOPMENT, LLC, an
Illinois limited liability company
IN
Its:
HOUSING OPPORTUNITY DEVELOPMENT
CORPORATION, an Illinois not-for-profit
corporation
go
Its:
{00116966.8} 27
ACKNOWLEDGMENTS
STATE OF ILLINOIS
1/12/2021 Version
) SS.
COUNTY OF LAKE )
This instrument was acknowledged before me on 20, by
the Mayor of the VILLAGE OF DEERFIELD, an Illinois municipal corporation, and by
, the Village Clerk of said municipal corporation.
Given under my hand and official seal this day of , 20_
My Commission expires
SEAL
STATE OF )
) SS.
COUNTY OF )
the
Notary Public
This instrument was acknowledged before me on , 20_, by
of BRINSHORE DEVELOPMENT, LLC, an Illinois limited liability company.
Given under my hand and official seal this day of , 20
Notary Public
My Commission expires:
SEAL
STATE OF )
) SS.
COUNTY OF )
This instrument was acknowledged before me on , 20_, by
the of HOUSING OPPORTUNITY DEVELOPMENT CORPORATION, an Illinois
not-for-profit corporation.
Given under my hand and official seal this day of , 20
Notary Public
My Commission expires:
SEAL
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OWNER'S CONSENT
Owner hereby agrees that: (i) as of the Effective Date of the above and foregoing
Agreement, Owner is the record title owner of the Property; (ii) the leasehold estate of Developer
shall be subjected in its entirety to this Agreement and all of the covenants, conditions and
restrictions set forth in this Agreement; and (iii) in the event of expiration or termination of
Developer's leasehold interest in the Property after the Effective Date, Owner will not enter into
any future lease, development agreement, or any other agreement for development of the
Property in accordance with the provisions of this Agreement without requiring such lessee or
developer to assume in full all obligations of Developer under this Agreement, by written
instrument in form and substance satisfactory to the Village. Owner, by the signature of its duly
authorized representative below, hereby consents to and permits the recordation of this
Agreement and the Workforce and Accessible Housing Covenant against the Property in the
Office of the Lake County Recorder of Deeds.
ATTEST: ZION LUTHERAN EVANGELICAL CHURCH,
an Illinois not-for-profit corporation
M
Its:
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LENDER'S CONSENT AND SUBORDINATION
(and its successors and assigns, "Mortgagee"), is the holder of a certain
note made by and secured by the following documents, each from
and recorded with the County Recorder of Deeds as indicated
(collectively, the "Mortgage"):
[DESCRIBE ALL APPLICABLE MORTGAGE AGREEMENTS, NOTES, AND
OTHER RELATED DOCUMENTS, EACH BY DATE OF EXECUTION, DATE OF
RECORDATION, AND RECORDED DOCUMENT NUMBER]
Mortgagee hereby consents to the execution and recording of the above and foregoing
Development Agreement (the "Agreement'), and hereby subjects and subordinates the
Mortgage to the provisions of the Agreement.
IN WITNESS WHEREOF, Mortgagee has caused this Consent and Subordination to be
signed by its duly authorized officer on its behalf on this day of
20 .
MORTGAGEE:
By:
Its:
STATE OF ILLINOIS )
) SS.
COUNTY OF )
I, , a notary public in and for the County in the State
aforesaid, DO HEREBY CERTIFY that , the of
who is personally known to me to be the person whose name is subscribed
to the foregoing instrument as such , appeared before me this day
in person and acknowledged that he signed and delivered the said instrument as his/her own free
and voluntary act and as the free and voluntary act of said corporation and for the
uses and purposes therein set forth.
GIVEN under my hand and notarial seal this day of , 20_
Notary Public
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INDEX OF EXHIBITS
Exhibit A Legal Description of Property
Exhibit B Final Development Plan
B-1
Site Plan
B-2
Final Engineering Plan
B-3
Final Landscape Plan
B-4
Tree Preservation Plan
B-5
Elevations
B-6
Floor Plans
B-7
Photometric Plan
B-8
Signage Plan
Exhibit C Form Letter of Credit
Exhibit D Transferee Assumption Agreement
Exhibit E Workforce and Accessible Housing Covenant
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EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
THAT PART OF THE EAST HALF OF THE SOUTHEAST QUARTER OF THE SOUTHEAST
QUARTER OF SECTION 28, TOWNSHIP 43 NORTH, RANGE 12 EAST OF THE THIRD
PRINCIPAL MERIDIAN, LYING NORTH OF THE NORTH LINE OF THE PUBLIC HIGHWAY
KNOWN AS HIGHLAND PARK, DEERFIELD ROAD, AS DEDICATED BY DOCUMENT 217791
AND LYING WEST OF THE WEST LINE OF THE DRAINAGE CANAL, AS CONDEMNED BY
PROCEEDINGS FOR THE COUNTY COURT CASE 5303, IN LAKE COUNTY, ILLINOIS.
ADDRESS: 10 DEERFIELD ROAD, DEERFIELD, ILLINOIS
PINs: 16-28-400-036-0000 and 16-28-039-0000
{00116966.8} Exhibit A-1
#55795085_v5
1/12/2021 Version
EXHIBIT B
DEVELOPMENT PLAN
B-1 Site Plan That certain "Site Plan" prepared by Eckenhoff Saunders
Architects consisting of one sheet labeled AS1.0, with a latest
revision date of October 28, 2020
B-2 Final Engineering Plan Those certain "Zion Woods Multi -Family Housing Engineering
Plans" prepared by V3 Companies, consisting of 14 sheets,
which sheets have a latest revision date of January 12, 2021
B-3 Final Landscape Plan Those certain "Zion Church Landscape Plans" prepared by
Daniel Weibach & Partners, Ltd., consisting of two sheets
labeled L1.01 and L1.02 with a latest revision date of
December 18, 2020
B-4 Tree Preservation Plan That certain `Tree Preservation Plan" prepared by Daniel
Weinbach & Partners, Ltd., consisting of two sheets labeled
L0.01 and L0.01A, with a latest revision date of December 18,
2020
B-5 Elevations Those certain "Exterior Elevations" prepared by Eckenhoff
Saunders Architects, consisting of two sheets labeled A3.0
and A3.1, with a latest revision date of September 30, 2020
B-6 Floor Plans Those certain "Floor Plans" prepared by Eckenhoff Saunders
Architects, consisting of five sheets labeled A1.0 through A1.4,
with a latest revision date of September 30, 2020
B-7 Photometric Plan Those certain "Site Photometrics" prepared by RTM
Engineering Consultants, consisting of one sheet, with a latest
revision date of September 30, 2020
B-8 Signage Plan That certain "Exterior Signage" plan prepared by Eckenhoff
Saunders Architects, consisting of one sheet labeled AS1.2 ,
with a latest revision date of September 30, 2020
{00116966.8} Exhibit B
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EXHIBIT C
FORM LETTER OF CREDIT
IRREVOCABLE LETTER OF CREDIT NO. AMOUNT:
EXPIRATION DATE:
[Name of Bank]
[Address]
TO: Village of Deerfield
850 Waukegan Road
Deerfield, IL 60015
Attention: Village Manager
DATE OF ISSUE:
1/12/2021 Version
WE HEREBY AUTHORIZE YOU TO DRAW AT SIGHT on this Irrevocable Standby Letter of
Credit No. UP TO AN AGGREGATE AMOUNT OF
United States Dollars ($ ) for account
of [DEVELOPER] (the "Customer')
Drafts under this Letter of Credit shall bear upon their face the words:
"Drawn under
Credit No.
Dated:
Drafts may be for all or any portion of the amount of this Letter of Credit, and shall be in the form
attached hereto as Exhibit "A" and shall be accompanied by one of the following documents
executed by the Village Manager or an individual designated as acting Village Manager:
(a) A written statement on the form attached hereto as Exhibit "B" stating that, conditioned
upon proper notice to the Village Manager, Letter of Credit No. will expire
within 35 days or less and that the Customer has failed to deliver to the Village Manager
evidence of a renewal of Letter of Credit No. ; or
(b) A written statement on the form attached hereto as Exhibit "C" stating that all or any part
of the improvements required to be constructed pursuant to the Development Agreement
dated , 20 by and between the Village and [Developer] (the
"Agreement") have not been constructed in accordance with the Agreement; or
(c) A written statement on the form attached hereto as Exhibit "D" stating that all or any part
of the costs, payments, permit fees or other fees required to be paid to the Village
pursuant to the Agreement have not been paid in accordance with the Agreement; or
{00116966.8} Exhibit C
1112/2021 Version
(d) A written statement on the form attached hereto as Exhibit "E" stating that all or any portion
of the maintenance, repair, or restoration required to be performed pursuant to the
Agreement has not been performed in accordance with the Agreement; or
(e) A written statement on the form attached hereto as Exhibit "F" stating that all or any portion
of the Customer's undertakings pursuant to the Agreement have not been performed in
accordance with the Agreement.
WE HEREBY AGREE with the beneficiary that:
Drafts drawn under and in compliance with this Letter of Credit shall be duly honored
immediately upon presentation to us if presented on or before the above -stated Expiration
Date or presented at our office together with the original of this Letter of Credit on or before
that date. Further, one or more drafts may be presented at our office on or before the
Expiration Date.
2. If, within three banking days after any draft drawn under this Letter of Credit is presented
to us in conformance with the terms of this Letter of Credit, we fail to honor same, we
agree to pay all attorneys' fees, court costs and other expenses incurred by the Village in
enforcing the terms hereof.
3. This Letter of Credit shall expire on , 20 , as stated
hereinabove; provided, however, that we shall send notice to the Village Manager by
certified mail, return receipt requested, or hand -delivered courier at least 35 days prior to
said Expiration Date, that this Letter of Credit is about to expire.
4. In no event shall this Letter of Credit or the obligations contained herein expire except
upon the prior written notice required herein, it being expressly agreed that the above
expiration date shall be extended as shall be required to comply with the prior written
notice required herein.
5. No consent, acknowledgment, or approval of any kind from the Customer shall be
necessary or required prior to honoring any draft presented in conformance with the terms
of this Letter of Credit.
6. The aggregate amount of this Letter of Credit may be reduced only upon receipt by us of
a document executed by the Village Manager stating that such aggregate amount shall be
reduced in an amount permitted by the Village's subdivision regulations because of the
satisfactory completion of all or part of the improvements required to be constructed
pursuant to the Agreement dated 20 by and between the
Village and
7. This Letter of Credit is irrevocable.
This Letter of Credit shall be governed by and construed in accordance with the Uniform Customs
and Practices for ISP 98 of the International Chamber of Commerce (the "Uniform Customs").
In the event of a conflict between this Letter of Credit and the Uniform Customs, this Letter of
Credit shall control. This Letter of Credit shall be deemed to be a contract made under the laws
of the State of Illinois, including, without limitation, Article 5 of the Uniform Commercial Code as
in effect in the State of Illinois, and shall, as to matters not governed by the Uniform Customs, be
{00116966.8} Exhibit C
111212021 Version
governed by and construed in accordance with the laws of the State of Illinois, without regard to
principles of conflicts of law.
AS USED HEREIN, THE TERM "BANKING DAY" MEANS ANY DAY OTHER THAN A
SATURDAY, SUNDAY, OR A DAY ON WHICH BANKS IN THE STATE OF ILLINOIS ARE
AUTHORIZED OR REQUIRED TO BE CLOSED, AND A DAY ON WHICH PAYMENTS CAN BE
EFFECTED ON THE FEDWIRE SYSTEM.
[Signature of Bank Officer]
[Officer's Title]
[Signature of Bank Officer]
[Officer's Title]
{00116966.8} Exhibit C
1/12/2021 Version
EXHIBIT "A" TO FORM OF IRREVOCABLE STANDBY LETTER OF CREDIT
FORM OF DRAFT
[To Be Supplied By Issuing Bank]
{00116966.8} Exhibit C
1/12/2021 Version
EXHIBIT "B" TO FORM OF IRREVOCABLE STANDBY LETTER OF CREDIT
To:
Attn:
Re: Letter of Credit No.
Ladies and Gentlemen:
This is to advise you that
?n
days or less and that
of a renewal of Letter of Credit No.
Letter of Credit No. dated
in the amount of $ will expire within 35
has failed to deliver to the Village Manager evidence
Very truly yours,
Village Manager, Village
{00116966.8} Exhibit C
1/12/2021 Version
EXHIBIT "C" TO FORM OF IRREVOCABLE STANDBY LETTER OF CREDIT
To:
Attn:
Re: Letter of Credit No.
Ladies and Gentlemen:
This is to advise you that all or any part of the improvements required to be constructed pursuant
to the Development Agreement dated , 20 by and between the
Village and [DEVELOPER], have not been constructed in accordance with said Agreement.
Very truly yours,
Village Manager
{00116966.8} Exhibit C
1112/2021 Version
EXHIBIT "D" TO FORM OF IRREVOCABLE STANDBY LETTER OF CREDIT
To:
Attn:
Re: Letter of Credit No.
Ladies and Gentlemen:
This is to advise you that all or any part of the costs, payments, permit fees or other fees required
to be paid pursuant to the Agreement dated , 20 by and between the
Village and [DEVELOPER], have not been paid in accordance with said Agreement.
Very truly yours,
Village Manager
{00116966.8} Exhibit C
1/12/2021 Version
EXHIBIT "E" TO FORM OF IRREVOCABLE STANDBY LETTER OF CREDIT
To:
Attn :
Re: Letter of Credit No.
Ladies and Gentlemen:
This is to advise you that all or any part of the maintenance, repair or restoration required to be
performed pursuant to the Development Agreement dated , 20 by
and between the Village and [DEVELOPER], have not been performed in accordance with said
Agreement.
Very truly yours,
Village Manager
{00116966.8} Exhibit C
1/1212021 Version
EXHIBIT "F" TO FORM OF IRREVOCABLE STANDBY LETTER OF CREDIT
To:
Attn :
Re: Letter of Credit No.
Ladies and Gentlemen:
This is to advise you that all or any part of the undertakings of the Customer (as that term is
defined in the above -referenced Letter of Credit) pursuant to the Development Agreement dated
, 20 by and between the Village and [DEVELOPER], have not been
performed in accordance with said Agreement.
Very truly yours,
Village Manager
{00116966.8} Exhibit C
EXHIBIT D
TRANSFEREE ASSUMPTION AGREEMENT
THIS AGREEMENT is made as of this day of , 20 , between the
VILLAGE OF DEERFIELD, an Illinois home rule municipal corporation ("Village"), BRINSHORE
DEVELOPMENT, LLC, an Illinois limited liability company ("Brinshore"), and HOUSING
OPPORTUNITY DEVELOPMENT CORPORATION, an Illinois not-for-profit corporation ("HODC"
and Brinshore are, collectively, the "Developer"). ("Developer"), and
("Transferee").
WITNESETH:
WHEREAS, pursuant to that certain real estate sale contract dated
20_, the Transferee agreed to purchase from Developer certain real property situated in Lake
County, Illinois and legally described in Exhibit 1 attached to and, by this reference, made a part
of this Agreement ("Property"); and
WHEREAS, following the conveyance of the Property by Developer, the
Transferee will be the legal owner of the Property; and
WHEREAS, as a condition to the conveyance of the Property by Developer, the
Village and Developer require that the Transferee agree to comply with all the terms,
requirements, and obligations set forth in that certain Development Agreement, dated as of
20 , and recorded in the office of the Lake County Recorder on
20_, as Document No. by and between the Village and
Developer ( "Development Agreement');
NOW, THEREFORE, in consideration of the agreement of Developer to convey
the Property to the Transferee, and of the Village to accept the transfer of obligations as provided
herein and to grant the releases granted herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, it is hereby agreed by, between,
and among the Village, Developer, and the Transferee as follows:
1. Recitals. The foregoing recitals are by this reference incorporated herein
and made a part hereof as substantive provisions of this Agreement.
2. Assumption of Obligations. The Transferee, on its behalf and on behalf
of its successors, assigns, heirs, executors, and administrators, hereby agrees, at its sole cost
and expense, to comply with all of the terms, requirements, and obligations of the Development
Agreement, including all exhibits and attachments thereto, regardless of whether such terms,
requirements, and obligations are to be performed and provided by, or are imposed upon,
Developer of the Property.
3. Payment of Village Fees and Costs. In addition to any other costs,
payments, fees, charges, contributions, or dedications required by this Agreement, the
Development Agreement or by applicable Village codes, ordinances, resolutions, rules, or
regulations, the Transferee must pay to the Village, immediately upon presentation of a written
demand or demands therefor, all legal, engineering, and other consulting or administrative fees,
costs, and expenses incurred in connection with the negotiation, preparation, consideration, and
review of this Agreement.
{00116966.8}
4. Acknowledgment and Release of Developer. The Village hereby
acknowledges its agreement to the Transferee's assumption of the obligation to comply with the
terms, requirements, and obligations of the Development Agreement, including all exhibits and
attachments thereto, and the Village hereby releases Developer from any personal liability for
failure to comply with the terms, requirements, and obligations of the Development Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first written above.
ATTEST:
Village Clerk
VILLAGE OF DEERFIELD,
an Illinois home rule municipal corporation
Its: Village Manager
ATTEST: DEVELOPER,
a [TYPE OF BUSINESS ENTITY]
By: By:
Its: Its:
ATTEST:
[TRANSFEREE]
Its:
{001.16966.8} 2
STATE OF ILLINOIS
SS
COUNTY OF LAKE
ACKNOWLEDGMENTS
This instrument was acknowledged before me on , 20_, by
. the Villaae Manaaer of the VILLAGE OF DEERFIELD, an Illinois home
rule municipal corporation, and by
corporation.
SEAL
{00116966.8}
, the Village Clerk of said municipal
Signature of Notary
STATE OF ILLINOIS
SS
COUNTY OF LAKE
This instrument was
the
the
SEAL
STATE OF ILLINOIS )
COUNTY OF LAKE )
This
SEAL
Mol
acknowledged before me on 1 20 by
of DEVELOPER, a [TYPE OF BUSINESS ENTITY], and by
of said [limited liability company].
Signature of Notary
instrument was acknowledged before m
the of [TRANSFEREE],
of [TRANSFEREE].
{00116966.8} 4
e on 201_, by
and by , the
Signature of Notary
EXHIBIT E
THIS DOCUMENT
PREPARED BY AND
AFTER RECORDING
RETURN TO:
WORKFORCE AND ACCESSIBLE HOUSING
VOLUNTARY RESTRICTIVE COVENANT
(10 Deerfield Road - Zion Woods)
DATED AS OF , 2021
{00116966.8} 5
WORKFORCE AND ACCESSIBLE HOUSING
VOLUNTARY RESTRICTIVE COVENANT
(10 Deerfield Road — Zion Woods)
THIS WORKFORCE AND ACCESSIBLE HOUSING VOLUNTARY
RESTRICTIVE COVENANT ("Restrictive Covenant") is made as of the day of
, 2021 ("Effective Date', by BRINSHORE DEVELOPMENT, LLC, an Illinois
limited liability company ("Brinshore"), and HOUSING OPPORTUNITY
DEVELOPMENT CORPORATION, an Illinois not-for-profit corporation ("HODC'�
(HODC and Brinshore are, collectively, the "Declarant') concerning the property described
in Exhibit A, located in the Village of Deerfield commonly known as 10 Deerfield Road
("Property's.
NOW, THEREFORE, Declarant declares that the Property and all portions thereof
are and shall be held, transferred, sold, conveyed, used, and occupied subject to the covenants
set forth in this Restrictive Covenant, which covenants are for the purpose of protecting the
value and desirability of the Property and other properties in the Village of Deerfield
("Village').
SECTION 1. Background.
A. The Property is owned by Zion Lutheran Evangelical Church, an Illinois not-
for-profit corporation ("Owner") which operates a church on the Property and has consented
to the execution and recordation of this Restrictive Covenant.
B. The Property is currently improved with a one-story brick building occupied
and operated by Owner with a church and school ("Church"), as well as a residence used as
a parsonage ("Parsonage").
C. Owner and Declarant have entered into a 99 -year ground lease for the Property
and for the Declarant to demolish the Parsonage and develop two multi -family apartment
buildings ("Apartment Buildings' consisting of a total 25 rental units ("Apartment
Units').
D. On 2021, the Village Board of Trustees approved Ordinance
No. which rezoned the Property from the R-1 Single Family Residential District to the
R-5 General Residence District.
E. On 2021, the Village Board of Trustees approved Ordinance
No. ("Ordinance'), which approved for the Property: (i) a special use for a planned
residential development; (ii) a final development plan; and (iii) certain zoning exceptions
within the approved planned residential development.
F. As required by the Ordinance, Declarant entered into that certain Development
Agreement by and between the Village and Declarant dated , 2021
("Development Agreement's in furtherance of the redevelopment of the Property and the
construction of the Apartment Buildings.
{00116966.8}
G. Declarant voluntarily offered to the Village that it would maintain the
affordability of 13 one -bedroom Apartment Units in the Apartment Buildings, with an average
size of approximately 700 square feet ("Affordable One -Bedroom Units'), seven two-
bedroom Apartment Units in the Apartment Buildings, with an average size of approximately
900 square feet ("Affordable Two Bedroom Units', and four three-bedroom Apartment
Units in the Apartment Buildings, with an average size of approximately 1,100 square feet
("Affordable Three Bedroom Units' (collectively, the Affordable One -Bedroom Units,
Affordable Two -Bedroom Units, and Affordable Three -Bedroom Units are the "Affordable
Residential Units'.
H. Declarant offered to the Village that it would execute and record this Restrictive
Covenant to codify its agreement regarding the Affordable Residential Units.
I. Declarant volunteered to restrict the otherwise applicable use regulations for
the Property in the manner and to the extent expressly set forth in this Restrictive Covenant,
and specifically to maintain and ensure the affordability of the Affordable Residential Units
for the term of this Restrictive Covenant.
SECTION 2. Restrictions.
Notwithstanding any use or development right that may be applicable or available
pursuant to the provisions of the R-5 General Residential District of the "The Deerfield Zoning
Ordinance 1978," as the same has been, and may be, from time to time, amended, the use and
development of the Property shall be subject to the following restrictions:
A. Maximum Density. At no time shall the Property be developed with more
than 25 Apartment Units, which Apartment Units shall be contained
within not more than two, 2 -story Apartment Buildings.
B. Income Limits.
For the period commencing with the initial occupancy of the
Affordable Residential Units and ending 30 years thereafter (the
"Initial Affordability Period"):
a. 13 of the Affordable Residential Units ("Very Low Income
Units') shall be available only to households whose annual
incomes do not exceed 50 percent of the Chicago -Joliet -
Naperville, IL HUD Metro FMR Area Median Income, as
established and defined in the annual schedule published by
the U.S. Department of Housing and Urban Development,
and adjusted for household size ("Very Low Income
Requirements').
b. 11 of the Affordable Residential Units ("Low Income
Units' shall be available only to households whose annual
incomes do not exceed 60 percent of the Chicago -Joliet -
Naperville, IL HUD Metro FMR Area Median Income, as
established and defined in the annual schedule published by
{00116966.8} 2
the U.S. Department of Housing and Urban Development,
and adjusted for household size ("Low Income
Requirements'.
For the period commencing with the expiration of the Initial
Affordability Period and ending 99 years after the initial occupancy
of the Affordable Residential Units (the "Extended Affordability
Period"), all of the Affordable Residential Units shall be available
only to households whose annual incomes do not exceed 80 percent
of the Chicago -Joliet -Naperville, IL HUD Metro FMR Area Median
Income, as established and defined in the annual schedule
published by the U.S. Department of Housing and Urban
Development, and adjusted for household size ("Moderate Income
Requirements' (the Very Low Income Requirements, the Low
Income Requirements and the Moderate Income Requirements are,
collectively, the "Income Requirements'.
3. The incomes of potential households of the Affordable Residential
Units will be verified as meeting the Income Requirements at the
initial application phase. The incomes of households of the
Affordable Residential Units will be verified as meeting the Income
Requirements every third year after the initial application.
B. Rental Rates.
The initial monthly rental rates for the Low Income Units ("Very
Low Income Initial Rental Rates' shall be: (i) $ for
Affordable One -Bedroom Units; (ii) $ for Affordable
Two -Bedroom Units; and (iii) $ for Affordable Three -Bedroom
Units (or such lower amounts as Declarant, in the exercise of its
discretion, may elect to charge). Declarant may increase the Low
Income Initial Rental Rates annually, but increases may not exceed
annual increases in the U.S. Bureau of Labor Statistics Consumer
Price Index Chicago -Naperville -Elgin, IL -IN -WI, All Urban
Consumers (CPI -U): All Terms, 1982-1984=100. The Low Income
Initial Rental Rates, as so increased, are hereinafter referred to as
an "Very Low Income Rental Rate".
2. The initial monthly rental rates for the Moderate Income Units
("Low Income Initial Rental Rates' shall be: (i) $ for
Affordable One -Bedroom Units; (ii) $ for Affordable
Two -Bedroom Units; and (iii) $ for Affordable Three -Bedroom
Units (or such lower amounts as Declarant, in the exercise of its
discretion, may elect to charge). Declarant may increase the
Moderate Income Initial Rental Rates annually, but increases may
not exceed annual increases in the U.S. Bureau of Labor Statistics
Consumer Price Index Chicago -Naperville -Elgin, IL -IN -WI, All
Urban Consumers (CPI -U): All Terms, 1982-1984=100. The
Moderate Income Initial Rental Rates, as so increased, are
{00116966.8} 3
hereinafter referred to as an "Low Income Affordable
Residential Unit Rental Rate".
C. Availability. If any single Affordable Residential Unit remains vacant
and unrented for after being actively marketed for three months or more,
Declarant may rent such Affordable Residential Unit at full market rent
for a period not to exceed one year; provided, however, once such Affordable
Unit again becomes available for occupancy, then the requirements of
Section 2.A and 2.13 of this Restrictive Covenant shall again apply to the
marketing and occupancy agreements entered into for such Affordable
Unit.
D. Management. Declarant shall professionally manage, or hire a
professional management company ("Management Company's to
professionally manage the Apartment Buildings, the duties of which must
include the maintenance and operation of the Affordable Residential Units
in accordance with the Development Agreement and this Restrictive
Covenant.
E. Records. Declarant shall create and maintain, or require the
Management Company to create and maintain, records of income
qualification for every Household renting an Affordable Residential Unit.
D. Annual Certification with the Village. The Village may, upon 30 days'
notice to Declarant, require Declarant, on a form provided by the Village,
to certify on an annual basis that the Affordable Residential Units comply
with the terms of this Restrictive Covenant.
SECTION 3. Other Qualifications for Rental.
This Restrictive Covenant shall not require Declarant or the Management Company to
rent an Affordable Residential Unit to an individual or Household who applies to rent such
unit and satisfies the Income Requirements but does not meet or satisfy Declarant's other
criteria for apartment rental, as set forth in Declarant's selection plan. By way of example,
Declarant may deny such individual or Household the right to rent such Affordable Housing
Unit if they: (i) fail to submit or insufficiently complete an application for rental; (ii) submit
false information in connection with the application for rental; (iii) have a poor or
unsatisfactory credit history; (iv) are unable to establish that they have the financial ability to
pay the required monthly rent; (v) have an inappropriate household size; or (vi) are unable to
establish that they and all members of their Household do not have criminal records, are not
current drug users and are not registered sex offenders.
SECTION 4. Recordation.
This Restrictive Covenant shall be recorded in the Office of the Lake County Recorder
of Deeds. Owner, by the signature of its duly -authorized representative below, hereby consents
to and permits such recordation.
{00 116 966.81 4
SECTION 5. Enforcement.
A. Village Enforcement. Declarant recognizes and agrees that the Village has a
valid interest in ensuring that the restrictions, covenants, and agreements in this Restrictive
Covenant are properly performed and, therefore, grants the Village the right to enforce these
restrictions, covenants, and agreements by any proceeding at law or in equity against any
person or persons violating or attempting to violate any restriction, covenant, or agreement
contained in this Restrictive Covenant, either to restrain violation, to compel affirmative
action, or to recover damages, and against the land to enforce any lien created by the
restrictions, covenants, or agreements. Specifically, but without limitation of the foregoing, in
the event of a violation of this Restrictive Covenant, the Village shall have the right to bring
an action to enjoin the use of the Property for multi -family residential uses.
B. Rezoning of the Property. In the event that this Restrictive Covenant is
violated, Declarant recognizes and agrees that, as part of its remedies, the Village may rezone
the Property from the R-5 General Residence District to the R-1 Single Family Residential
District, and Declarant will not challenge or object to such rezoning.
C. No Private Right of Action. This Restrictive Covenant shall not create a
private right of action in any individual, Household, organization, corporation or other legal
entity, or other governmental body or agency to enforce the provisions of this Restrictive
Covenant or seek legal or equitable remedies against Declarant or the Management Company
based on an alleged violation of this Restrictive Covenant by Declarant or the Management
Company or Declarant's or the Management Company's refusal to rent an Affordable
Residential Unit to any individual or Household notwithstanding the fact that such individual
or Household qualifies to rent such unit under the Income Requirements.
SECTION 6. Exercise of Village Rights; Waiver.
The Village is not required to exercise the rights granted in this Restrictive Covenant,
except as it shall determine to be in its best interest. Failure by the Village to exercise any
right herein granted shall not be construed as a waiver of that right or any other right.
Nothing in this Restrictive Covenant shall be deemed or construed to constitute a dedication
of any property to the Village.
SECTION 7. Notices.
All notices required or permitted to be served by this Restrictive Covenant shall be
served in writing and shall be deemed to be served when delivered personally or three business
days following deposit, by certified or registered mail, return receipt requested, in the United
States mail, postage prepaid. Notices to Declarant shall be sent to the following address or to
such other address or person as Declarant may from time to time provide the Village by notice:
Notices to the Village shall be sent to the following address, or to such other address or person
as the Village may from time to time provide Declarant by notice:
{00116966.8} 5
Village to Village of Deerfield
850 Waukegan Road
Deerfield, Illinois 60015
Attention: Village Manager)
SECTION 8. Nullification and Amendment.
Except as may be otherwise provided by law, this Restrictive Covenant may be
annulled only upon the express, prior written approval of the Village, by resolution duly
adopted by the Village Board of Trustees. This Restrictive Covenant may be amended only
upon the express, prior written approval of the Village, by resolution duly adopted by the
Village Board of Trustees, and by execution of such amendment by Declarant with consent
of Owner.
SECTION 9. Term.
The term of this Restrictive Covenant shall commence on the Effective Date and
terminate at the end of the Extended Affordability Period ("Term's.
SECTION 10. Covenants Running with the Land.
The restrictions imposed by this Restrictive Covenant shall be restrictions running
with the land during the Term and shall be binding upon and inure to the benefit of Declarant
and any and all of its successors, assigns, agents, licensees, lessees, invitees, and
representatives, including, without limitation, all subsequent owners of that portion of the
Property upon which the Apartment Buildings have been constructed and all persons
claiming under them to the extent provided in this Restrictive Covenant. All leases for
Affordable Residential Units, and all contracts and deeds of conveyance relating to the
portion of the Property upon which the Apartment Buildings have been constructed, shall be
subject to the provisions of this Restrictive Covenant to the extent provided in this Restrictive
Covenant.
IN WITNESS WHEREOF, Declarant has caused this Restrictive Covenant to be
executed by a duly -authorized representative on the date first above written.
[SIGNATURE PAGE FOLLOWS]
{00116966.8} 6
BRINSHORE DEVELOPMENT, LLC,
an Illinois limited liability company
By:
Its:
I: C�1iL� ��!_L� ' ' �1►�1 IIiA� Y 11'1
DEVELOPMENT CORPORATION,
an Illinois not-for-profit corporation
By:
Its:
{00116966.8}
ACKNOWLEDGMENTS
STATE OF
) SS.
COUNTY OF )
This instrument was acknowledged before me on 20_, by
the of BRINSHORE DEVELOPMENT, LLC, an Illinois limited liability company.
Given under my hand and official seal this day of , 20
Notary Public
My Commission expires:
SEAL
STATE OF )
) SS.
COUNTY OF )
This instrument was acknowledged before me on , 20 , by
the of HOUSING OPPORTUNITY DEVELOPMENT CORPORATION, an Illinois not-
for-profit corporation.
Given under my hand and official seal this day of , 20_
Notary Public
My Commission expires:
SEAL
{00116966.8}
OWNER'S CONSENT
Owner hereby agrees that: (i) as of the Effective Date of the above and foregoing
Restrictive Covenant, Owner is the record title owner of the Property; (ii) the leasehold estate of
the Declarant shall be subjected in its entirety to this Restrictive Covenant. Owner, by the
signature of its duly authorized representatives below, join in the execution of this Restrictive
Covenant for the limited purposes of consenting to, and permitting the recordation of this
Restrictive Covenant against the Declarant's leasehold interest in the Property in the Office of the
Lake County Recorder of Deeds.
ATTEST:
Its:
ZION LUTHERAN EVANGELICAL
CHURCH, an Illinois not-for-profit
corporation
Its:
{00116966.8} Exhibit E
455795085_ v5
DRAFT
EXHIBIT A TO RESTRICTIVE COVENANT
PROPERTY LEGAL DESCRIPTION
THAT PART OF THE EAST HALF OF THE SOUTHEAST QUARTER OF THE
SOUTHEAST QUARTER OF SECTION 28, TOWNSHIP 43 NORTH, RANGE 12 EAST OF
THE THIRD PRINCIPAL MERIDIAN, LYING NORTH OF THE NORTH LINE OF THE
PUBLIC HIGHWAY KNOWN AS HIGHLAND PARK, DEERFIELD ROAD, AS
DEDICATED BY DOCUMENT 217791 AND LYING WEST OF THE WEST LINE OF THE
DRAINAGE CANAL, AS CONDEMNED BY PROCEEDINGS FOR THE COUNTY COURT
CASE 5303, IN LAKE COUNTY, ILLINOIS.
ADDRESS: 10 DEERFIELD ROAD, DEERFIELD, ILLINOIS
PINS: 16-28-400-036-0000 and 16-28-039-0000
{00116966.8} Exhibit E
EXHIBIT C
SITE PLAN
{00117370.3}
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