R-21-31XVA 0
VILLAGE OF DEERFIELD
STATE OF ILLINOIS )
)
COUNTIES OF LAKE AND COOK ) SS
VILLAGE OF DEERFIELD )
IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII IIII
Image# 062326760082 Type: RES
Recorded: 06/09/2022 at 11:28:07 AM
Receipt#: 2022-00045388
Pape i of 82
Fees: $50.00
Lake County IL Recorder
Mary Ellen Vanderventer Recorder
File7910233
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
Resolution R-21-31
Dated this May 4, 2022
A Resolution Approving a Development Agreement
(833 Deerfield Road — Shops at Deerfield Square
Residences)
L-d � L. -
DANIEL VAN DUSEN
Deputy Village Clerk
Prepared by and after recording return to:
Daniel Van Dusen
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
RESOLUTION NO. R-21-31
A RESOLUTION APPROVING A DEVELOPMENT AGREEMENT
(833 Deerfield Road — Shops at Deerfield Square Residences)
WHEREAS, Kirby Limited Partnership ("Owner') is the record owner of that
certain parcel of real property commonly known as 833 Deerfield Road, Deerfield, Illinois
("Property's; and
WHEREAS, on Sept. 20 2021, the Village Board adopted Ordinance No. 0-21-37
granting for the Property approval of. (i) amendments to the Special Use ("PUD
Amendment's and Final Development Plan for the Deerfield Square PUD ("Amended
Final Development Plan'); (ii) an exception for the height of the Proposed Development
("Height Exception'; (iii) an exception to permit the construction of the Proposed
Development within a corner side yard ("Corner Side Yard Exception'); (iii) an exception
to the minimum loading berth size requirements ("Loading Berth Size Exception'; (iv)
an exception to allow for the construction of five compact parking spaces ("Parking Space
Exception'; (v) an exception to the Sign Criteria for the Property to allow the installation
of a wall sign ("Proposed Sign') with a sign height greater than 24 inches ("Sign
Criteria Exception'); and (vi) a special use to allow for a resident amenity area to be
located on the first floor of the Proposed Development ("Amenity Area Special Use's (the
PUD Amendment, Amended Final Development Plan, Height Exception, Corner Side Yard
Exception, Loading Berth Size Exception, Parking Space Exception, Sign Exception, and
Amenity Area Special Use are, collectively, the "Final Approvals'; and
WHEREAS, the Final Approvals require that the Village and Owner enter into a
development agreement governing the use and development of the Property
("Development Agreement"); and
WHEREAS, the Village Board has determined that entering into the Development
Agreement with the Applicant will serve and be in the best interest of the Village;
NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE BOARD OF
DEERFIELD, LAKE AND COOK COUNTIES, ILLINOIS, as follows:
SECTION ONE: RECITALS. The foregoing recitals are incorporated into, and
made a part of, this Resolution as findings of the Village Board.
SECTION TWO: APPROVAL OF DEVELOPMENT AGREEMENT. The
Development Agreement by and between the Village and the Applicant is hereby approved
in substantially the form attached to this Resolution as Exhibit A, and in a final form to be
approved by the Village Manager and the Village Attorney. In the event that the Owner
transfers the Property to an affiliated entity prior to executing the Development
Agreement, the Village Attorney is authorized and directed to amend the Development
Agreement as may be necessary to allow for its execution by the Owner's affiliate.
(00121794.41
SECTION THREE: EXECUTION OF DEVELOPMENT AGREEMENT. The
Village Mayor and the Village Clerk are hereby authorized and directed to execute and
attest, on behalf of the Village, the Development Agreement upon receipt by the Village
Clerk of at least one original copy of the Development Agreement executed by the Owner or
Owner's affiliate; provided, however, that if the executed copy of the Development
Agreement is not received by the Village Clerk within 120 days after the effective date of
this Resolution, or within such greater period of time as the Village Board may approve by
resolution, then this authority to execute and attest will, at the option of the Village Board,
be null and void.
SECTION FOUR: EFFECTIVE DATE. This Resolution will be in full force and
effect upon its passage and approval by a majority of the members of the Village Board.
AYES: Benton, Jacoby, Jester, Metts-Childers, Oppenheim, Seiden
NAYS: None
ABSTAIN: None
ABSENT: None
PASSED: September 20, 2021
APPROVED: September 21, 2021
RESOLUTION NO. R-21-31
Danief C. Shapiro, Mayor
ATTEST:
Kent S. Strb et, Village Clerk
{00121794.4}
EXHIBIT A
DEVELOPMENT AGREEMENT
100121794.41
Execution Version
THIS DOCUMENT
PREPARED BY AND AFTER
RECORDING RETURN TO:
Benjamin Schuster
Elrod Friedman LLP
325 N. LaSalle Street
Suite 450
Chicago, IL 60654
Above Space For Recorder's Use Only
DEVELOPMENT AGREEMENT
BETWEEN
THE VILLAGE OF DEERFIELD AND 833 APARTMENTS, LLC
(833 DEERFIELD ROAD — SHOPS AT DEERFIELD SQUARE RESIDENCES)
DATED AS OF , 2022
{00118976.8)
Execution Version
DEVELOPMENT AGREEMENT
BETWEEN
THE VILLAGE OF DEERFIELD AND 833 APARTMENTS, LLC
(833 DEERFIELD ROAD — SHOPS AT DEERFIELD SQUARE RESIDENCES)
DATED AS OF Alai 4 , 2022
THIS DEVELOPMENT AGREEMENT ("Agreement") is made as of the J""' day of
rhav , 2022, by and between the VILLAGE OF DEERFIELD, an Illinois home rule
municipal corporation ("Village') and 833 APARTMENTS, LLC, an Illinois limited company
("Owner's.
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 0.89 acre property located at the address
commonly and collectively known as 833 Deerfield Road.
C. The Property is owned by the Owner.
D. The Property is located in the C-1 Village Center District of the Village.
E. The Property is located entirely within the Deerfield Square Commercial Planned
Unit Development ("Deerfield Square PUD").
F. On August 3, 1998, the Village Board adopted Ordinance No. 0-98-34 approving
a final development plan ("Final Development Plan") for the development and maintenance of
the Deerfield Square PUD, which Final Development Plan has been amended from time to time.
G. The Property is currently improved with an approximately 13,109 square foot
building and parking lot (collectively, "Existing Structures").
H. The Owner desires to demolish the Existing Structures and develop a five -story,
40 unit residential apartment building with a first floor a resident amenity area on the Property
( "Development's.
I. In connection with the Development, an affiliate of Owner filed applications with
the Village seeking relief from the Zoning Ordinance including: (i) approval of an amendment to a
special use and an Amended Final Development Plan for the Deerfield Square PUD; (ii) approval
of an exception for the height of the Development; (iii) approval an exception to permit
construction in a corner side yard; (iii) approval of an exception to the minimum loading berth size
requirement; (iv) approval of an exception to allow for five compact car parking spaces; (v)
approval of a sign exception to the sign criteria for the Property to allow a sign height greater than
24 inches; (vi) approval of a text amendment to the Zoning Ordinance to permit resident amenities
(00 1189 76.8}
Execution Version
areas for residential uses on the first floor of a multi -family development in the C-1 Village Center
District; (vii) approval of a special use to allow for a resident amenity area to be located on the
first floor of the Development; and (viii) approval of a text amendment related to identification
signs in the C-1 Village Center District (collectively, "Requested Relief').
J. A public hearing was held by the Village Plan Commission on September 24, 2020,
to consider preliminary approval of the Amended Final Development Plan for the Development
on the Property and recommended that the Board approve such relief.
K. On October 19, 2020, the Corporate Authorities provided preliminary approval of
the Amended Final Development Plan for the Development ("Preliminary Amended
Development Plan'j.
L. A public meeting was held by the Plan Commission on January 14, 2021, to
consider whether the Amended Final Development Plan for the Development was in substantial
conformance with the Preliminary PUD Development Plan.
M. On January 14, 2021, the Plan Commission certified to the Corporate Authorities
that the Final Amended Development Plan was in substantial conformance with the Preliminary
Amended Development Plan.
N. On September 20, 2021, the Corporate Authorities adopted the Planned Unit
Development Ordinance approving the Development and the Development Approvals, effective
upon the execution of this Agreement.
O. 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.
P. 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.
"Amended Final Develp_oment Plan": The Final Development Plan, as amended by the
Elevations, Final Engineering Plan, Floor Plans, Landscape Plan, Materiality, Photometric Plan,
Signage Plan, Site Access Plan, Site Plan, Site Lines Diagram, as approved in Section 3 of the
Planned Unit Development Ordinance, as may be amended pursuant to Section 16.N of this
Agreement.
"Building Code": Chapter 6 of the Village Code and all international and model codes
adopted therein.
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"Corporate Authorities": The Mayor and Board of Trustees of the Village.
"Demolition Plan": That certain "Demolition Plan" prepared by Solomon Cordwell
Buenz, consisting of one sheet, with a latest revision date of September 3, 2021, a copy of which
is attached to this Agreement as Exhibit B-92.
"Development Approvals": Collectively, the Planned Unit Development Ordinance, and
Rezoning Ordinance.
"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 "Elevations" prepared by Solomon Cordwell Buenz,
consisting of three sheets, with a latest revision date of December 23, 2020, a copy of which is
attached to this Agreement as Exhibit B-9.
"Events of Default": Defined in Section 13.A of this Agreement with respect to the Owner
and in Section 13.13 of this Agreement with respect to the Village.
"Final Engineering Plan": Those certain "Final Engineering Plan" prepared by Solomon
Cordwell Buenz and Eriksson Engineering, consisting of three sheets that have a latest revision
date of September 3, 2021, and two sheets that have a latest revision date of December 23, 2020,
a copy of which is attached to this Agreement as Exhibit B-2.
"Floor Plans": That certain "Ground Floor Plan," prepared by Solomon Cordwell Buenz,
consisting of one sheet, with a latest revision date of September 3, 2021, and "Level 2 Floor Plan,"
and "Level 3-5, Typ. Floor Plan," with a latest revision date of December 23, 2020 a copy of
which is attached to this Agreement as Exhibit B-3.
"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 landscaping to be installed pursuant to the Final Development Plan, but specifically
excluding the residential apartment building to be constructed on the Property.
"Landscape Plan": That certain "Landscape Plan," and "Plant Imagery," prepared by
Solomon Cordwell Buenz and Daniel Weinbach & Partners, consisting of two sheets, with a latest
revision date of September 3, 2021, a copy of which is attached to this Agreement as Exhibit B-
4.
"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.
"Materiality": That certain "Materiality" prepared by Solomon Cordwell Buenz consisting
of three sheets, with a latest revision date of December 23, 2020, a copy of which is attached to
this Agreement as Exhibit B-5.
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"Parties": The Village and Owner, collectively.
"Person": Any corporation, partnership, individual, joint venture, limited liability company,
trust, estate, association, business, enterprise, proprietorship, governmental body or any bureau,
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": That certain "Site Lighting Photometric Plan" with a latest revision
date of December 23, 2020 and "Parking Garage Photometric Lighting Plan," with a latest revision
date of September 3, 2021 prepared by Solomon Cordwell Buenz consisting of two sheets, a copy
of which is attached to this Agreement as Exhibit B-6.
"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. 0-21-37, adopted by the
Corporate Authorities, as may be amended, approving for the Property: (i) an amendment to a
special use for a planned unit development; (ii) an amendment to 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 0.89 acre property
located at the address commonly and collectively known as 833 Deerfield Road in Deerfield,
Illinois and legally described in Exhibit A attached to this Agreement.
"Requirements of Law": All applicable federal, state and Village laws, statutes, codes,
ordinances, resolutions, rules, and regulations.
"Siignacre Plan": That certain "Building Signage Plan" prepared by Solomon Cordwell
Buenz consisting of one sheet, with a latest revision date of December 23, 2020, a copy of which
is attached to this Agreement as Exhibit B-7.
"Site Access Plan": Those certain "Overall Ground Floor/Site Access Plan" prepared by
Solomon Cordwell Buenz, consisting of one sheet, with a latest revision date of September 3,
2021, a copy of which is attached to this Agreement as Exhibit B-8.
"Site Plan": That certain "Site Plan & Data Table" prepared by Solomon Cordwell Buenz
consisting of one sheet, with a latest revision date of September 3, 2021, a copy of which is
attached to this Agreement as Exhibit B-9.
"Site Lines Diagram": That certain "Site Lines Diagram" prepared by Solomon Cordwell
Buenz consisting of one sheet, with a latest revision date of December 23, 2020, a copy of which
is attached to this Agreement as Exhibit B-90.
"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
amende(T
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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 residential building to be constructed as part of the Development.
"Subdivision Code": The Subdivision Code of the Village of Deerfield, as amended.
"Transferee Assumption A reement": Defined in Section 11.13.4 of this Agreement.
"Tree Preservation Ordinance": Article 4 of Chapter 21 of the Village Code.
"Uncontrollable Circumstance": Any of the following events and circumstances that
materially change the costs or ability of the Owner 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;
C. 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 the Owner, 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 the
Owner (except as caused by events that are Uncontrollable Circumstances as to such contractor).
"Utility Plan": That certain "Civil — Site/Utility Plan" prepared by Solomon Cordwell Buenz
consisting of one sheet, with a latest revision date of September 3, 2021, a copy of which is
attached to this Agreement as Exhibit B-11.
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 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. Headincs. 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 Day . 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. Demolition of the Existing Structures. In the event that Owner commences any
demolition activities on the Property, Owner must demolish the Existing Structures on the Property
in strict compliance with the Demolition Plan and the Requirements of Law.
B. Development. In the event that Owner commences any demolition activities on
the Property, the Development must consist of the following required elements, all of which were
promised by the Owner and served as an enticement to the Village to enter into this Agreement:
Apartment Building: The Owner will construct a multi -family residential
apartment building on the Property with the following characteristics:
a. Dwellin Units: 40 dwelling units in a five -story building,
comprised of:
20 one -bedroom units with an average size of
approximately 848 square feet; and
20 two -bedroom units with an average size of
approximately 1,344 square feet.
2. Parking: 86 off-street parking spaces consisting of 27 covered parking
spaces and 59 outdoor parking spaces.
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Execution Version
C. General Use and Development Restrictions. The development, construction,
use, operation and maintenance of the Development on the Property, must, except for minor
alterations due to final engineering and site work approved by the Village Engineer or the Director
of Community Development, as appropriate, comply, be maintained, and be in accordance, with
the following:
1. this Agreement;
2. the Development Approvals;
3. the Amended 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
9 of this Section 3.C, the interpretative provisions of Section 2.B.4 will prevail.
SECTION 4. IMPROVEMENTS.
A. Description of Improvements. In the event that Owner commences any
demolition activities on the Property, the Owner 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 Amended Final Development Plan, including, without limitation, the following:
1. Sanitary sewer mains and service lines;
2. Water mains and service lines; and
3. The landscaping, as depicted in the Final Landscape Plan.
B. Design and Construction of the Imj2rovements.
1. General Standards. All Improvements must be designed and constructed
pursuant to and in accordance with the Amended 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, as may be modified if
there are Uncontrollable Circumstances, 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
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2. Construction Schedule. Prior to commencing any construction of any part
of the Development that will affect existing utilities or roadways, the Owner must meet with the
Village Engineer, or their designee, to develop a mutually -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, the
Owner 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, which approval may not be unreasonably delayed.
3. Contract Terms; Prosecution of the Work_. The Owner 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 Amended Final Development Plan, and the
Requirements of Law, until the work is properly completed, and providing that the Owner may
take over and prosecute the work if the contractor fails to do so in a timely and proper manner.
4. Engineering Services. The Owner 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. The
Owner 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. The Owner 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, the Owner 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. To the extent there are any existing electric poles and
wires on the Property or on rights -of -way immediately adjacent to the Property that exclusively
serve the Property, the Owner must, at its sole cost and expense, cause to be buried such electric
poles and wires. The Owner shall not install or permit to be installed any electric poles and above-
ground wires on the Property or on rights -of -way immediately adjacent to the Property that
exclusively serve the Property. The Owner 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. The Owner must, at its sole cost and expense, and in accordance
with and pursuant to the Amended Final Development Plan, upgrade: (a) all public
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utility connections servicing the portions of the Property; and (b) the connection of
all utilities to facilities located on the Property.
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
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. If any work or repair is made to the stormwater
improvements on the Property, upon the completion of the work or repair, the Owner 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 Amended 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 portion of the Development
until the Improvements are completed by the Owner 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 the Owner
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 the Owner 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. The Owner 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 the Owner 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). The Owner 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 Amended 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 Amended Final
Development Plan, if any. The acceptance of ownership of, and responsibility for, a specific
approved Improvement as a public improvements may be made only by the Corporate Authorities,
and only in compliance with the requirements of the Subdivision Code and Development Code.
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SECTION 5. DEMOLITION AND CONSTRUCTION OF DEVELOPMENT.
A. Maintenance of Property Prior to Demolition. The Owner shall, at all times prior
to demolition of the Existing Structures on the Property, (i) maintain the Property and Existing
Structures in accordance with all Requirements of Law, (ii) keep the buildings on the Property
secure, and (iii) maintain the heat and conditions of the Property in a manner that prevents the
pipes from freezing and from any damage being done to the utility lines and infrastructure that are
on or serve the Property.
B. Single Phase of Development. Demolition of the Existing Structures,
construction of the Improvements, and development of the Property must take place in one
continuous phase.
C. 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 Amended Final Development Plan and the Development Approvals, unless
otherwise modified pursuant to Section 16.N of this Agreement. 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 Owner 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 Owner may take over and prosecute the work if the contractor fails to do
so in a timely and proper manner.
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.
D. Demolition of Existing Structures. The Owner may commence demolition of the
Existing Structures 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 Owner will conduct all demolition work on the Property in full compliance with
the Village's permitted construction work hours regulations. The Owner will remove and dispose
of all debris resulting from the demolition of existing structures on the Property in compliance with
the Requirements of Law.
E. Limits on Vertical Construction. In addition to any other applicable provision of
this Agreement and the Requirements of Law, the Owner may not commence any Vertical
Construction unless the Village Engineer has determined that: (i) there has been no damage to
the stormwater improvements located on or serving the Property, and if there is, that the
stormwater improvements have been repaired; and (ii) a functional water system is undamaged
and remains that can deliver water to all proposed fire hydrants on the Property in the manner
required by the Village.
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F. Diluent Pursuit of Construction.
1. Once demolition activities on the Property commence pursuant to this
Agreement, the Owner 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 Owner will conduct all construction work on the Property in full
compliance with the Village's permitted construction work hours regulations.
2. The Owner 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 Owner 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.
G. Construction Traffic.
1. Construction and Traffic Management Plan. The Owner 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
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.
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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, the Owner 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.
H. Parking, Storm Water Management, and Erosion Control During
Construction. During construction of any of the structures or Improvements on the Property, the
Owner 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
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.H must be maintained by the Owner until
construction of the Development is complete.
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 the Owner 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
Development 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 the Owner, 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
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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.
J. Completion of Construction; Site Restoration.
1. Removal of Partially Constructed Structures and Improvements. Subject to
Uncontrollable Circumstances, if the Owner 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,
the Owner 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 the Owner 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 the Owner fails or refuses
to remove any partially completed buildings, structures, and Improvements, or to perform Site
Restoration, as required pursuant to Section 5.J.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. The Owner must fully reimburse the Village for all costs and expenses,
including legal and administrative costs, incurred by the Village for such work. If the Owner 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
legal fees and administrative expenses. If the Owner 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.J.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.
K. As -Built Plans. After completion of construction of any new Structure, the 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, if any; and
(2) for other final construction documents as reasonably 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.
L. Damage to Public Property. The Owner 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, the Owner 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 the Owner or any agent of or
contractor hired by, or on behalf of, the Owner; and (2) repair any damage that may be caused
by the activities of the Owner or any agent of or contractor hired by, or on behalf of, the Owner.
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M. 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, the Owner must install all landscaping on the
Property, as depicted on the Amended 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. The Owner must, prior to construction, erect fencing satisfactory to
the Village Engineer to protect those existing trees located on the Property: (i) designated in the
Amended 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 the Owner'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 Landscape Plan.
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. The Owner 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
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
Landscape Plan, and must comply with the tree replacement requirements set forth in the Village
Code.
i. The Owner 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. The Owner 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.
N. 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.
O. Construction and Demolition Debris Mana ement. 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
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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.
The Owner 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 the Owner's offer, and acknowledges that it has considered
and relied on the Owner's offer in adopting the Development Approvals. Accordingly, the Owner
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.
SECTION 7. LAND DEDICATIONS: CONTRIBUTIONS.
In the event that Owner commences any demolition activities on Property, Owner 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 ($187,635.00);
2. Deerfield Public Schools District 109 ($12,250.00);
3. Township High School District No. 113 ($7,525.00);
4. Deerfield -Bannockburn Fire Protection District ($375.27); and
5. The Village and Library ($51,161.81).
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. The Owner acknowledges that
the payment of development impact fees imposed by the Impact Fee Ordinance are reasonable
and that the Owner hereby holds harmless and releases the Village, the Deerfield Public Library,
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 the Owner 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. The Owner acknowledges and agrees that, if the Owner 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 the Owner the difference between the credit and the Impact
Fees otherwise due; and (b) the Owner 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,
the Owner 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
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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. The Owner 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 and itemized invoices (provided that such invoices would not cause the
waiver of the attorney -client privilege), 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 the
Owner during the term of this Agreement in connection with the use and development of the
Property. Further, the Owner 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, the Owner 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.
C. Waiver of Village Fees. Notwithstanding anything to the contrary in Sections 7
and 8.13 of this Agreement, the Village shall waive the collection of the first $150,000 of fees that
may be charged to Owner pursuant to Sections 7.5 and 8.13 of this Agreement.
SECTION 9. PERFORMANCE SECURITY.
A. General Requirements. As security to the Village for the performance by the
Owner 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
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 Owner 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 determined by the Village Manager, and such failure or refusal is an Owner 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 Owner'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 Owner shall upon demand of the Village therefor deposit with
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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.
SECTION 10. LIABILITY AND INDEMNITY OF VILLAGE.
A. Village Review. The Owner 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 the Owner 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. To the best of its knowledge, the Owner 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 the Owner
agrees not to challenge such approvals on the grounds of any procedural infirmity or of any denial
of any procedural right.
C. Indemnity. The Owner, 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. The Owner, 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.
E. Commercial Tenants. The Village hereby acknowledges and agrees that all
tenants and their successors and assigns, of the shopping center commonly known as The Shops
at Deerfield Square, have non-exclusive rights to utilize the surface parking spaces at the Property
and nothing in this Agreement shall serve to modify, diminish, or alter those rights and such rights
shall in no way be considered an Event of Default under this Agreement.
SECTION 11. NATURE. SURVIVAL AND TRANSFER OF OBLIGATIONS.
A. Bindincl Effect. All obligations assumed by the Owner under this Agreement are
and will be binding upon the Owner 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.
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B. Successors and Transferees. To assure that all grantees, successors, assigns,
and transferees of the Owner and all successor owners of all or any portion of the Property have
notice of this Agreement and the obligations created by it, the Owner must:
1. Deposit with the Village Clerk, concurrent with the execution 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 the
Owner 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
tenants within the Development;
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's 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 the Owner will be
released to the extent of the transferee's assumption of the liability. The failure of the Owner to
provide the Village with a copy of a Transferee Assumption Agreement fully executed by the
transferee and, if requested by the Village, with the transferee's proposed assurances of financial
capability before completing any transfer, will result in the Owner 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 the Owner.
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. Mortciagees 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.
This Agreement is not terminable at -will by either Party. The provisions of this Agreement
run with and bind the Property and inure to the benefit of, be enforceable by, and obligate the
Village, the Owner, and any of their respective, grantees, successors, assigns, and transferees,
{00118976.81 18
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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 later of: (i) the Improvements are approved by the
Village and the Improvements, as required by this Agreement and the Subdivision Code, are
accepted by the Village; and (ii) the Structures are completed in accordance with the Amended
Final Development Plan and all Requirements of Law, and the Village has issued certificates of
occupancy for such Structures. Upon the end of the term as set forth in this Section, the Village
agrees, upon written request of the Owner, to execute appropriate and recordable evidence of
the termination of this Agreement. Notwithstanding anything to the contrary in this Section 12, the
Owner's indemnity and defense obligations as set forth in Section 10 of this Agreement and
Owner's obligations in Sections 5.M.1.f and 5.M.1.i shall survive the termination of this
Agreement.
SECTION 13. EVENTS OF DEFAULT.
A. Owner Events of Default. The following are Owner Events of Default under this
Agreement:
1. If any representation made by the Owner in this Agreement, or in any
certificate, notice, demand or request made by the Owner 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) the Owner makes such representation true and
correct within 15 days after receiving notice from the Village, then such default shall be deemed
cured.
2. Default by the Owner 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 the Owner; 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 the
Owner, 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 the Owner 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 the Owner, 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 the Owner 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 the Owner 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 the Owner 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 the Owner to the appointment of or
taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or similar
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official) of the Owner 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 the Owner generally to pay such
entity's debts as such debts become due or the taking of action by the Owner in furtherance of
any of the foregoing, or a petition is filed in bankruptcy by others.
6. Failure to have funds to meet the Owner'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 the Owner except in accordance
with the Transferee Assumption provisions in Section 11 of this Agreement.
9. The Owner 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 the Owner to secure any approvals required for the development
or construction of the Property will not be a valid defense to abandonment.
10. The Owner fails to comply with the Requirements of Law in relation to the
construction and maintenance of the Improvements and Structures contemplated by this
Agreement.
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 the
Owner 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 the Owner 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.J 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
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from the Property; and (b) the performance of Site Restoration. Concurrent with the Village's
exercise of its rights under Section 5 J, 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 the Owner.
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, the Owner and the Village will be restored respectively to their several
positions and rights hereunder, and all rights, remedies and powers of the Owner 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, the Owner 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 an Owner Event of Default occurs under this Agreement.
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 Owner. The Owner, and the person executing this Agreement on behalf of
the Owner, represent, warrant, and covenant, as of the Effective Date of this Agreement, that:
{00118976.8) 21
Execution Version
1. The Owner is an Illinois limited company duly organized, validly existing,
and qualified to do business in Illinois;
2. The Owner has the right, power, and authority to enter into, execute,
deliver and perform this Agreement, and the Owner is in compliance with all Requirements of
Law, the failure to comply with which could affect the ability of the Owner to perform its
obligations under this Agreement;
3. The execution, delivery and performance by the Owner 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 the Owner is now a party or by which the Owner 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 the Owner has
provided to the Village accurately and truthfully represent the Owner's capabilities, resource,
and intentions for the construction of the Development on the Property as of the Effective Date.
The Owner agrees and acknowledges that these submissions have served to induce the Village
to enter into this Agreement and that any material misrepresentation contained in the Owner'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 the Owner which would impair its ability to perform under this Agreement;
6. The Owner 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. The Owner has sufficient financial and economic resources to implement
and complete its obligations under this Agreement;
8. The Owner has no knowledge of any liabilities, contingent or otherwise, of
the Owner which might have a material adverse effect upon its ability to perform its obligations
under this Agreement.
SECTION 16. GENERAL PROVISIONS.
A. Notices. Any notice required to be given under this Agreement will be in writing
and will be delivered (i) personally, (ii) by a reputable overnight courier, (iii) by certified mail,
return receipt requested, and deposited in the U.S. Mail, postage prepaid, and (iv) by E-mail.
E-mail notices will be deemed valid and received by the addressee when delivered by e-mail
and (a) opened by the recipient on a business day at the address set forth below, and (b)
followed by delivery of actual notice in the manner described in either (i), (ii) or (iii) above
within three business days thereafter at the appropriate address set forth below. Unless
otherwise expressly provided in this Agreement, notices will be deemed received upon the
(00118976.8) 22
Execution Version
earlier of (a) actual receipt; (b) one business day after deposit with an overnight courier as
evidenced by a receipt of deposit; or (c) three business days following deposit in the U.S.
mail, as evidenced by a return receipt. By notice complying with the requirements of this
Section, each party will have the right to change the address or the addressee, or both, for all
future notices to the other party, but no notice of a change of addressee or address will be
effective until actually received.
Notices to the Village will be addressed to, and delivered at, the following address:
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
Notices to Owner will be addressed to, and delivered at, the following address:
833 Apartments, LLC
740 Waukegan Road, Suite 330
Deerfield, IL 60015
Attention: David Malk
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. No waiver of any provision of this Agreement will be deemed to or
constitute a waiver of any other provision of this Agreement (whether or not similar) nor will any
waiver be deemed to or constitute a continuing waiver unless otherwise expressly provided in this
Agreement.
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 submitto 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 filed 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 Village will have
the right, in its sole and absolute discretion, to determine if (i) the remainder of the provisions of
{00118976.81 23
Execution Version
this Agreement will remain in full force and effect and will in no way be affected, impaired, or
invalidated, or (ii) the entire agreement shall be invalid, void, and unenforceable.
H. Survival. The provisions of Sections 8 and 10 will survive the termination or
expiration of the Agreement.
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 will be construed without regard to the identity of
the Party which drafted the various provisions of this Agreement. Every provision of this
Agreement will 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 will not be applicable to this Agreement.
K. Calendar Days: Calculation of Time Periods. Unless otherwise specific in this
Agreement, any reference to days in this Agreement will be construed to be calendar days. Unless
otherwise specified, in computing any period of time described in this Agreement, the day of the
act or event on which the designated period of time begins to run is not to be included and the
last day of the period so computed is to be included, unless the last day is a Saturday, Sunday or
legal holiday under the laws of the State in which the Property is located, in which event the period
shall run until the end of the next day which is neither a Saturday, Sunday or legal holiday. The
final day of any period will be deemed to end at 5 p.m., local time.
L. 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.
M. 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 text of this Agreement will control.
N. 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.
O. 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.
P. No Third Party Beneficiaries. The provisions of this Agreement are and will be
for the benefit of the Owner and Village only and are not for the benefit of any third party, and
{00118976.8) 24
Execution Version
accordingly, no third party shall have the right to enforce the provisions of this Agreement. The
Village will not be liable to any person or other third party for any agreements made by Owner,
purportedly on behalf of the Village, without the knowledge and approval of the Village Board.
Q. Recording. The Village will record this Agreement against the Property, at the sole
cost and expense of the Owner, with the Office of the Lake County Recorder of Deeds promptly
following the full execution of this Agreement by the Parties. In the event that (i) the Owner does
not commence demolition activities on the Property or the Planned Unit Development Ordinance
is repealed or expires and (ii) the Owner has satisfied all outstanding obligations under this
Agreement, the Village will record a release from this Agreement.
R. Counterparts. This Agreement may be executed in counterparts, each of which
will constitute an original document and together will constitute the same instrument.
{00118976.8} 25
Execution Version
IN WITNESS WHEREOF, the Parties have hereunto set their hands on the date first above
written.
ATTEST: VILLAGE OF DEERFIELD, an Illinois home
rule municipal corporation
By: 4 _
V age Jerk Daniel`. Shapiro
Its: Mayor
ATTEST 833 APART , LLC
By:_ By:
Its: Its:
{00118976.81 26
Execution Version
ACKNOWLEDGMENTS
STATE OF ILLINOIS )
) SS.
COUNTY OF LAKE )
This instrument was acknowledged before me on a , 2022, by
Dayiiel C. SY,agiro, the Mayor of the VILLAGE OF DEERFIELD, an Illinois municipal corporation, and by
Ker+ S. S+rec+ , the Village Clerk of said municipal corporation.
Given under my hand and official seal this 444' day of 12022
Notary Public
OFFICIAL SEAL
My Commission expires: I 107. U2.5 DANIEL VAN DUSEN
�� NOTARY PUBLIC, STATE OF ILLINOIS
SEAL MY COMMISSION EXPIRES:11/02I2026
STATE OF1-//U0/S )
SS.
COUNTY OF LAA41 E ) �/
IM�/1 This instrument was acknowledged before me on PRIL. 49. 2022, byCH qJ?L, S Mh 4ke
i41V lick' of 833 APARTMENTS, LLC, an Illinois limited liability company. /`1 Given under my hand and official seal this �g day of %L, 2022.
v
My Commission expires: Notary Public b — y-a
SEAL
OFFICIAL SEAL
KATHLEEN A TIERNEY
NOTARY PUBLIC - STATE OF ILLINOIS
MY COMMISSION EXPIRES:10/04/24
{00118976.8}
Execution Version
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 .. 2022.
Notary Public
{00118976.8)
Execution Version
INDEX OF EXHIBITS
Exhibit A Legal Description of Property
Exhibit B Amended Final Development Plan
B-1 Elevations
B-2 Final Engineering Plan
B-3 Floor Plans
B-4 Landscape Plan
B-5 Materiality
B-6 Photometric Plan
B-7 Signage Plan
B-8 Site Access Plan
B-9 Site Plan
B-10 Site Line Diagrams
B-11 Utility Plan
B-12 Demolition Plan
Exhibit C Form Letter of Credit
Exhibit D Transferee Assumption Agreement
Exhibit E Workforce and Accessible Housing Covenant
{00118976.81
#55795085_v5
Execution Version
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
LOTS 7 AND 7A IN DEERLAND RESUBDIVISION, BEING A RESUBDIVISION OF PART OF
THE NORTHEAST % OF SECTION 32, AND THE NORTHWEST % OF SECTION 33,
TOWNSHIP 43 NORTH, RANGE 12, EAST OF THE THIRD PRINCIPAL MERIDIAN,
RECORDED AS DOCUMENT NO. 7848939 ON NOVEMBER 30, 2021, IN LAKE COUNTY,
ILLINOIS.
ADDRESS: 833 DEERFIELD ROAD, DEERFIELD, ILLINOIS 60015
PINS: PART OF 16-32-207-002-0000
{00118976.81 Exhibit A-1
455795085 v5
Execution Version
EXHIBIT B
DEVELOPMENT PLAN
{00118976.8) Exhibit B
Exhibit B-1
ELEVATION i SOUTH
144'-S"
azozo solo Knox co zowsu eusr+z
GLASS AND ARCHITECTURAL
METAL ENCLOSURE
ARCHITECTURAL BRICK
PERFORATED
ARCHITECTURAL METAL
PANEL
METAL SECTIONAL
GARAGE DOOR
EXTERIOR LIGHTING
PLATE OUT, EUREKA
LIGHTING
DEERFIELD SQUARE APARTMENTS 1 12-23-2020
Exhibit B-1
ELEVATION I NORTH
61
161'-6'
SIGNAGE TO REMAIN
NORTH ELEVATION
ARCHITECTURAL
LOSURE
URAL BRICK
D
URAL METAL
D
TO MATCH
cal ... so,oro......— ou— - DEERFIELD SQUARE APARTMENTS 12-23-2020
ExhibhB-1
cLsv^nmw | sAor w vvEor
SITE I CIVIL — GRADING, PAVING & SESC CLAN
Exhibit B-2 � r •' �
".
GEO IMENTATIONIC ONTR L.-
INTENDED SEQUENCE OF
M
SEDIMENT AND
EROSION CONTROL
EASU RES
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i
PROP. 5-STORY 'f
RESIDENTIAL BUILDING
....,..� FFE 679.80
U \
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t I I 4s
o
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PAVING &SURSURFACE
SEDIMOITSR o.N CON
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LEGEND
GRADING
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0 M. soLONon ..Io LL llE — DEERFIELD SQUARE APARTMENTS 1 9-3-2021 1 12
SITE I CIVIL - SITE WORK
ACCESSIBLE PARKING
STALL PAVEMENT MARKING
Exhibit B-2
WALK ADJACENT TO BUILDING
DETAILS
I RESERWED
PARMNG
ACCESSIBLE PARKING SIGN
13-V.12 CURB & GUTTER
T
L
CONCRETE PAVEMENT DETAILS
-
DOG RUN UNDERDRAINAGE
DEERFIELD SQUARE APARTMENTS 1 9-3-2021 1 13
SITE I CIVIL - SITE WORK DETAILS
Exhibit B-2
1 es
:-�STOF
*lL
----------
.... . .... .... . ......... ................
... .. ............. .....
--J
-,j, A
DEERFIELD SQUARE APARTMENTS 1 9-3-2021 1 16
Exhibit B-2
SITE i CIVIL - SITE WORK DETAILS
®zoz—...... 111 -1- - C DEERFIELD SQUARE APARTMENTS 1 12-23-2020
Exhibit B-2
SITE i CIVIL - SITE WORK DETAILS
�
C
INLET PROTECTORS — SEDIMENT BAG
Ivsrr`
C4 TCH RAS1N - 4' Old.
OOG RUN AREA ACCESS COYER DETAIL
STA NDA D SEWER AND WATER TRENCH SECTION
®zozo soL.... eosowcu eaeNz � DEERFIELD SQUARE APARTMENTS 1 12-23-2020
PLAN I GHUU
Exhibit B-3
0 ®-0 ...I.... CORDWELL EUENZ - DEERFIELD SQUARE APARTMENTS 1 9-3-2021 1 4
Exhibit B-3
PLAN i LEVEL 2 FLOOR PLAN
2B-201 1B-203 1B-2D5 2B-207
1319 SF - 799 SF = MSF 13515F
f to
7-01
2B-202 1B-204 1B-206 1B-208 2B-210
------ --- ----
130.tSF - 8129E 8389E 918 SF 13U 3F
1& •so3o c ..--- _ DEERFIELD SQUARE APARTMENTS 1 12-23-2020
Exhibit B-3
PLAN i LEVEL 3-5, TYP. FLOOR PLAN
2B-X01 1B-X03 1B-XO.5 2B-X07 2B-X09
180.98E '�9F T669F 1361 BF 18685E-
J
G -
ZS7 rq.
y f
2B-X02 1B-X04 g 1B_-X_0.6_ , 1B.X__0.8_ 2B-X10
18088E 9125E 8805E 8159F 136)SF
--^ —.2. so .......... LL-- — DEERFIELD SQUARE APARTMENTS 1 12-23-2020
SITE I LANDSCAPE PLAN
PLANT LIST
SYM I BOTANICAL NAME COMMON NAME SIZE QTY
TREES
AF ACER X F.'AUTUMN BLAZE' AUTUMN BLAZE MAPLE 4" CAL. 2
UN ULMUS'NEW HORIZON' NEW HORIZON ELM 3" CAL. 3
DR
DIERVILLA R.'KODIAK RED'
I KODIAK RED HONEYSUCKLE
1 24" X 24"
21
HA
HYDRANGEA A.'INCREDIBALL'
I INCREDIBALL HYDRANGEA
24X24"
6
HT
HYDRANGEA S.'TUFF STUFF'
TUFF STUFF HYDRANGEA
18" X"
18'
9
RA
RHUS A.'GRO-LOW
GRO-LOW SUMAC
18"X18'
22
RG
RISES ALPINUM'GREEN MOUNDI
GREEN MOUND CURRANT
18" X 18"
42
TM
TAXUS M.'TAUNTON'
TAUNTON DENSE YEW
24"X24"
4
TO
THUJAOCCIDENTALIS'NIGRA'
I DARK GREEN ARBORVITAE
5'HT.
23
HEMEROCALLIS'HAP. RETURNS'
HAPPY RETURNS DAYLILY
1 GAL.
HOSTA'LIBERTY'
LIBERTYHOSTA
1 GAL.
FIRHEMEROCALLS'ROS.
RETURNS'
ROSY RETURNS DAYLILY
1 GAL.
IP
NEPETAF.'JUNIOR WALKER'
JUNIOR WALKER CATMINT
1 GAL.
K20
PARTHENOCISSUS TRICUSPID.
BOSTON IVY
1 GAL.
PANICUM V.'SHENANDOAH'
SHENANDOAH SWITCHGRA
1 GAL.
r-
4 PLANTERS AT ENTRANCE TO
HAVE ANNUAL FLOWERS.
5
5 TO
VARIETIES TO BE DETERMINED
GAPS
-
AT TIME OF INSTALLATION.
10 PV
9 HT
51 HI
m®
SALT TOLERANT SOD
1AF
89 FRSTO
12 HL
EXISTING TREE
REMAIN J
I+ jj
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A I 10HH
4 RA
15 PV 24 HH
5 RA
E EXISTING SHRUBS TO REMAIN--� 4
0 5 ID 15 30 60 1r1rII���������y�yy11 `{ 1 . f
Exhibit B-4
— LIMB UP BRANCHES
OF OFF SITE TREES
EXISTING
DOG RUN ARTIFICIAL
TURF
ARBORVITAE
ALT. CONCRETE
HEDGETO /-23 PV
REMAIN 18 TO
-
�
I
PAVERS
�I
7
BENCH .
1 `TlY
EXIST
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TREES IN
GRAT r
REMAIN
I .
{ I
EXISTING
VINES
}
WALL TO
REMA
W
2 BENCHES
13 RA EXISTING
1 UN TREE LILACS
61yNF y IITO REMAIN
1 49mv
— EXISTING EXISTING PARKWAY MULCH CAR 21 DI
LANDSCAPE PLAN ���111l.LIGHTS TREES TO REMAIN, TYP. OVERHANG 2UN
®2020 SO LOMON CORDWELL RUENZ r1rt{� OO"iel WdnLach6Poemen W.
ur�i
20 PT I
2 BIKE RACKS
4 PLANTER`S `
r s ;
' L 42 RG SALT TOLERANT SOD
COBBLESTONE IN PARKWAY
ON SLOPES ROBERT YORK RD.
DEERFIELD SQUARE APARTMENTS 1 9-3-2021 1 8
SITE I PLANT IMAGERY
GREEN MOUND CURPANT
i '
NEW HORIZON ELM
GRO-LOW SUMAC*
ARBORVITAE HEDGE INCREDIBALL HYDRANGEA* KODIAKREll DIERVILW TAUNTON YEW
TUFF STUFF HYDRANGEA SHENANDOAH SWITCHGRASS* HAPPY RETURNS DAYLILY JUNIOR WALKER CATMINT
ROSY RETURNS DAYLILY LIBERTY HOSTA ARTIFICIAL TURF DOG RUN
= Native
EVA BENCH WITH IPA SLATS, 6- LENGTH ZEN FIBERGLASS PLANTER FREESIA BIKE RACK
yip
®202050 LOMON CORDWELL BUEN2 U"Al o,d, aei w,mtAaeom�e�ib. DEERFIELD SQUARE APARTMENTS 1 9-3-2021 9
4
Exhibit B-5
MATERIALITY
ARCHITECTURAL METAL GLASS
--...—ELLouervz ® DEERFIELD SQUARE APARTMENTS 1 12-23-2020
Exhibit B-5
MATERIALITY i ARCHITECTURAL BRICK
I.
I
�zq
fit,:;
ARCHITECTURAL BRICK
TO MATCH EXISTING RETAIL BUILDING
REFER TO SAMPLES
MODULAR SIZE
(3-5/8" x 2-1/4" x 7-5/8")
—20 SOLOMON COR.—L sLE- 1= DEERFIELD SQUARE APARTMENTS 1 12-23-2020
Exhibit B-5
MATERIALITY i GLASS & ARCHITECTURAL METAL
t
GLASS
GUARDIAN
SN - 68
ARCHITECTURAL METAL
BENJAMIN MOORE
BM - HC-166 KENDALL CHARCOAL
0 -s solouon co crows« -1- — DEERFIELD SQUARE APARTMENTS 1 12-23-2020
Exhibit B-6
DATA i SITE LIGHTING PHOTOMETRIC PLAN
❑o o❑ �o jI
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0.1 -0-3
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DEERFIELD SQUARE APARTMENTS 1 12-23-2020
DATA PARKING GARAGE PHOTOMETRIC LIGHTING PLAN ExhibitB-6
0 0 t<
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1 WP 5242 0.900 101 L-16L-1200-NW-G7-3-UNV-
1-1
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Calcula0on Summa
Label
Units
A
Max
Min
A Min
Max/Min
Ground
Fc
1.46
8.5
0.0
I N.A.
I N.A.
vamnuarape Floor
Fc
5.33
1 13.0
1.5
1 4.22
1 8.67
Pro Line
Fc
0.09
0.7
0.0
N.A.
N.A.
D Run
Fc
4.16
8.5
1.7
1 2.45
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I
9 ®2020..LDMON COFDWELL BUENZ DEERFIELD SQUARE APARTMENTS 1 9-3-2021 1 30
Exhibit B-7
DATA i BUILDING SIGNAGE
SIGN SPECIFICATIONS
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gM�nY IED
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The Residences at
_833 Deerfield Square
arzgrua .a m eeauon � b rsl
The Residences at
Deerfield Square ___i g_ lit
e zozo so ID non C-D-1 auExz — 01"061.0m DEERFIELD SQUARE APARTMENTS 1 12-23-2020
PLAN I OVERALL GROUND FLOOR / SITE ACCESS PLAN
Exhibit B-8
PARKING COUNT
UNDER PROPOSED
GROUND FLOOR PLAN
DEERFIELD RD.
FisEMExr
FlRE
ONNECTION �
NEW PARKING STALLS
UNDER BUILDING
NEW SURFACE PARKING
STALLS TO MATCH
EXISTING SURFACE
PARKING DIMENSIONS
EXISTING SURFACE
PARKING STALLS TO
REMAIN
v
0 '-.D SOL. M.N CORDWELL EUENZ — DEERFIELD SQUARE APARTMENTS 1 9-3-2021 1 3
PLAN I SITE PLAN & DATA TABLE
Exhibit B-9
LEGAL DESCRIPTION:
PARCEL 1:
LOTS 1 AND 21NTHE SHOPSAT DEERFIELD SQUARE, BEING A RESURDIVISION OF
PART OF THE NORTHEAST 1/4 OF SECTION 32 ANDTHE NORTHWEST 114 OF SECTION
33, TOWNSHIP 43 NORTH, RANGE 12 EAST OFTHE THIRD PRINCIPAL MERIDIAN.
ACCORDINGTOTHE PLATTHEREOF RECORDED AUGUST 15. 2001 AS DOCUMENT
NUMBER 4746622. LAKE COUNTY. ILLINOIS
PARCEL 2'
EASEMENT FOR VEHICULAR INGRESS/EGRESS AND ACCESS FROM AND TO
OSTERMAN AVENUE FOR THE BENEFIT OF LOT 1 IN PARCEL 1 AS DEPICTED OVER
THAT PART OF LOT 3I NTHE SHOPS OF DEERFIELD SQUARE. A RESUBDIVISION OF
EnsENENr"A
PART OF THE NORTHEAST 1/4 OF SECTION 32 AND THE NORTHWEST 1/4 OF SECTION •'.
uNe Y'
33, TOWNSHIP 43 NORTH, RANGE 12 EAST OFTHETHIRD PRINCIPAL MERIDIAN.
artoaepp �•
ACCORDINGTOTHE PLATTHEREOF RECORDED AUGUST 15. 2001 AS DOCUMENT
NUMBER 474G622. IN LAKE COUNTY, ILLINOIS. AS GRANTED BY INSTRUMENT
RECORDED APR IL 3. 2001 AS DOCUMENT 4667858.
LOTAREA: .89ACRES (39,012 SF)
-
'•, 1 G
BUILDING SITE COVERAGE: 14,345 SF (SIMILAR TO EXISTING
ETAIL)
DEVELOPMENT
1 ��
OPEN SPACE: 1,230 SF (SIMILAR TO EXISTING RI
DEVELOPMENT
AIL)
1 Il
ELLLDjNLOx$UMMARY,•
5 STORIES (58' HIGHTO MAIN ROOF)
1 BR 20 UNITS 848 NSF AVG,
1
2BR 20 UNTS 1.344 NSF AVG
TOTAL 40 UNITS
TOTAL PARKING: 86 SPACES (SEE GROUND FLOOR
k J
J
FOR TYPICAL STALL DIMENSIONS)
PARKING RATIO: 2.15 PER UNIT (INT+EXT)
ZONING REQUIRED PARKING: 70 SPACES
AVERAGE UNIT SIZE: 1,096 NSF
'
NET RESIDENTIAL AREA: 43,840 SF
'
GROSS RESIDENTIAL AREA: 48,984 SF
TOTAL GROSS AREA: 52,540 SF
CHARLES R. MALK, PRESIDENT OF KIRBY KORP, GENERAL PARTNER
T.F-SURIFAIE'lARKING
TALLOMATCHXISTISURACEARKIDIMENSIONS
EXISTING SURFACE
PARKING STALLS TO
REMAIN
0 ®2020 6010 M ON CO gDWELL 51JEN2 � DEERFIELD SQUARE APARTMENTS 1 9-3-2021 1 2
Exhibit B-1 0
SECTION I SIGHT LINES / SCREENING DIAGRAM
-I'- N .. .......... ......... ......
20W-ACUNI.
EAST WEST SECTION - SIGHTLINE
MAIa=-UP AIR UNIT
469-0' -AC UNIT-
NORTH SOUTH SECTION - SIGHTLINE
DEERFIELD SQUARE APARTMENTS 1 12-23-2020
SITE I CIVIL - SITE GEOMETRY & UTILITY PLAN
I i �
Exhibit B-11
•F
---------------
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STRUCTURE NOTES
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GENERAL NGTES
EMTY NT
....... w....,. o-....... ....... .., uw v..,�„e. a' 20• 40'
DEERFIELD SQUARE APARTMENTS 19-3-2021 1 11
SITE I CIVIL SITE DEMOLITION PLAN
Exhbit B-12 _-- -WF
�'
`,4
17
DEMOLITION NDTES
GE NERAL NDTES
�
.2U. S.L ......R I IU DEERFIELD SQUARE APARTMENTS 1 9-3-2021 1 10
Execution Version
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:
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 [OWNER] (the "Custome►").
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 [Owner] (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
(00118976.81 Exhibit C
Execution 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
{00118976.81 Exhibit C
Execution 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]
[Signature of Bank Officer]
[Officer's Title] [Officer's Title]
{00118976.8) Exhibit C
Execution Version
EXHIBIT "A" TO FORM OF IRREVOCABLE STANDBY LETTER OF CREDIT
FORM OF DRAFT
[To Be Supplied By Issuing Bank]
(00118976.8) Exhibit C
Execution 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 Letter of Credit No. dated
, 20 in the amount of $ will expire within 35
days or less and that has failed to deliver to the Village Manager evidence
of a renewal of Letter of Credit No.
Very truly yours,
Village Manager, Village
{00118976.8) Exhibit C
Execution 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 [OWNER], have not been constructed in accordance with said Agreement.
Very truly yours,
Village Manager
{00118976.81 Exhibit C
Execution 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 [OWNER], have not been paid in accordance with said Agreement.
Very truly yours,
Village Manager
{00118976.8) Exhibit C
Execution Version
IBIT "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,
performed pursuant to the Development Agreement dated
and between the Village and [OWNER], have not been K
Agreement.
repair or restoration required to be
, 20 by
E�rformed in accordance with said
Very truly yours,
Village Manager
{00118976.81 Exhibit C
Execution 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 [OWNER], have not been
performed in accordance with said Agreement.
Very truly yours,
Village Manager
J00118976.8) 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');
, [TYPE OF ENTITY] ("Ownee'); and [TYPE
OF ENTITY] ("Transferee').
WITNESETH:
WHEREAS, pursuant to that certain real estate sale contract dated ,
20_, the Transferee agreed to purchase from Owner 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 Owner, the Transferee
will be the legal owner of the Property; and
WHEREAS, as a condition to the conveyance of the Property by Owner, the Village
and Owner 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 Owner ("Development
Agreement');
NOW, THEREFORE, in consideration of the agreement of Owner 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, Owner, 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, Owner
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.
{00118976. 8)
4. Acknowledgment and Release of Owner. 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 Owner 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
0
Its: Village Manager
ATTEST: [OWNER],
a [TYPE OF BUSINESS ENTITY]
By: By:
Its: Its:
ATTEST:
[TRANSFEREE]
By: By:
Its: Its:
{00118976.81 2
STATE OF ILLINOIS
SS
COUNTY OF LAKE
This
ACKNOWLEDGMENTS
instrument was acknowledged before me on , 20_, by
the Village Manager of the VILLAGE OF DEERFIELD, an Illinois home
rule municipal corporation, and by
corporation.
SEAL
the
Village Clerk of said municipal
Signature of Notary
{00118976.8}
STATE OF ILLINOIS )
SS
COUNTY OF LAKE }
This instrument was
the
the
SEAL
STATE OF ILLINOIS )
COUNTY OF LAKE )
This
SEAL
SS
acknowledged before me on 20_, by
of OWNER, 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].
e on , 201_, by
and by , the
Signature of Notary
{00118976.8) 4
EXHIBIT E
THIS DOCUMENT
PREPARED BY AND
AFTER RECORDING
RETURN TO:
WORKFORCE AND ACCESSIBLE HOUSING
VOLUNTARY RESTRICTIVE COVENANT
(833 Deerfield Road - Shops at Deerfield Square Residents)
DATED AS OF I' laY 1 , 2022
{00118976.8)
WORKFORCE AND ACCESSIBLE HOUSING
VOLUNTARY RESTRICTIVE COVENANT
(833 Deerfield Road — Shops at Deerfield Square Residents)
THIS WORKFORCE AND ACCESSIBLE HOUSING VOLUNTARY
RESTRICTIVE COVENANT ("Restrictive Covenant") is made as of the 4* day of
2022 ("Effective Date'), by 833 APARTMENTS, LLC, an Illinois limited liability
company ("Owner') concerning the property described in Exhibit A, and located in the
Village of Deerfield at the address commonly known as 833 Deerfield Road ("Property').
NOW, THEREFORE, Owner 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 Owner.
B. The Property is an approximately 0.89 acre property.
C. The Property currently improved with an approximately 13,109 square foot
building and parking lot (collectively, "Existing Structures").
D. The Owner desires to demolish the Existing Structures and develop a five -
story, apartment building ("Apartment Building') on the Property consisting of 40 rental
units ("Apartment Units') and a resident amenity area of the first floor of the Apartment
Building.
E. On September 20, 2021, the Village Board of Trustees approved Ordinance No.
0-21-37 ("Ordinance'), which approved for the Property: (i) an amendment to a special use
for a planned unit development; (ii) an amendment to a final development plan for a planned
unit development; and (iii) a special use to allow for a resident amenity area to be located on
the first floor of the Apartment Building.
F. As required by the Ordinance, Owner entered into that certain Development
Agreement by and between the Village and Owner dated 2022
("Development Agreement') in furtherance of the redevelopment of the Property and the
construction of the Apartment Building.
G. Owner voluntarily offered to the Village that it would maintain the affordability
of two one -bedroom Apartment Units in the Apartment Building ("Affordable Residential
Units').
H. Owner offered to the Village that it would execute and record this Restrictive
Covenant to codify its agreement regarding the Affordable Residential Units.
I. Owner 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
{00118976.81 1
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. Income Limits. The Affordable Residential Units shall be available first,
as such availability is defined in Section 2.0 of this Restrictive Covenant,
to tenants whose annual incomes do not exceed 120 percent of the Chicago -
Joliet -Naperville, IL HUD Metro FMR Area Median Income ("Qualified
Tenants'), as established and defined in the annual schedule published by
the U.S. Department of Housing and Urban Development ("HUD') or any
successor thereof under Section 8 of the United States Housing Act of 1937,
as amended, and adjusted for household size ("Income Requirements").
For purposes of calculating income limits pursuant to this Section 2.A, that
a presumed household size of two members shall be used. In the event the
Chicago area is redefined so as to eliminate Lake County, Illinois, then the
parties shall utilize the median gross income published by HUD for the
newly created metropolitan area defined by HUD that does include Lake
County, Illinois. The incomes of potential Qualified Tenants of the
Affordable Residential Units will be verified as meeting the Income
Requirements at the time Owner leases or subleases ("Qualified
Income's the Affordable Residential Units.
B. Lease. Owner shall enter into a written lease with each Qualified Tenant
of an Affordable Residential Unit, which shall be for a period of one year
and which provides that the Qualified Tenant shall not be evicted for any
reason other than a breach of a provision of the lease after the Qualified
Tenant was provided a reasonable opportunity to cure the breach. Owner
shall include, in leases for all Affordable Residential Units, provisions that:
(1) the Qualified Tenant is subject to annual income -qualification
recertification annually, pursuant to Section 2.1) of this Restrictive
Covenant; and (2) the tenancy of the Qualified Tenant will be immediately
terminated should one or more of the Qualified Tenant's household
members misrepresent any material fact regarding the Qualified Tenant's
income qualification, or refuse or fail to cooperate in the recertification
process.
C. Rental Rates. The monthly rental rates for the Affordable Residential
Units, which rents shall include utility expenses (defined as water, gas, and
electricity expenses only), shall not exceed 30 percent of monthly household
income of a household making the Income Requirement, calculated at the
time the Qualified Tenant enters into a lease and any lease extensions.
{00118976.8) 2
D. Annual Income Re -certification of Tenants. Owner must determine
whether a tenant of an Affordable Residential Unit meets the income
requirements set forth in Section 2.A of this Restrictive Covenant, both at
the time of the initial leasing of an Affordable Residential Unit to such
tenant, and annually throughout the term of any such initial or renewal
lease. Income re -certification shall be based upon the then- current
household income of such tenant. In the event the household income of an
existing tenant exceeds the maximum income limitations set forth in
Section 2.A of this Restrictive Covenant, such tenant may remain in
occupancy of the Affordable Residential Unit. Under such circumstances,
however, Owner shall make another one -bedroom Apartment Unit
available to Qualified Tenants not later than the later to occur of: (i) the
date a one -bedroom Apartment Unit becomes available for rent; and (ii) the
date Owner determines that such tenant has exceeded the maximum
income limitations set forth in Section 2.A of this Restrictive Covenant. In
such an event, Owner shall keep such one -bedroom Apartment Unit
available for rent to a Qualified Tenant until the earlier of. (i) the date
which is 90 days following the date Owner makes the one -bedroom
Apartment Unit available to Qualified Tenants and begins to actively
market the one -bedroom Apartment Unit using customary and usual
marketing practices, and (ii) the date a Qualified Tenant enters into a
lease for such available Apartment Unit. If, at the end of such 90-day
period, a Qualified Tenant has not leased the available Apartment Unit,
Owner shall have the right to rent such Apartment Rent to a tenant paying
a market -rate rent provided Owner once again makes an Affordable
Residential Unit available for rent to a Qualified Tenant when a one -
bedroom Apartment Unit becomes available for rent, at which point in time
the same procedures and conditions as are set forth in the preceding
sentence shall apply.
E. Availability. If any single Affordable Residential Unit remains vacant
and unrented for more than 90 days provided that Owner actively markets
the Affordable Residential Unit using customary and usual marketing
practices for at least 90 days, Owner may rent such Affordable Residential
Unit at full market rent to any qualified tenant ("Market Rate
Residential Unit'. Under such circumstances, however, Owner shall
make another one -bedroom Apartment Unit available to Qualified Tenants
when a one -bedroom Apartment Unit becomes available for rent. In such
an event, Owner shall keep such one -bedroom Apartment Unit available
for rent to a Qualified Tenant until the earlier of: (1) the date which is 90
days following the date Owner makes the one -bedroom Apartment Unit
available to Qualified Tenants and begins to actively market the one -
bedroom Apartment Unit using customary and usual marketing practices,
and (ii) the date a Qualified Tenant enters into a lease for such available
Apartment Unit. If, at the end of such 90-day period, a Qualified Tenant
has not leased the available Apartment Unit, Owner shall have the right
to rent such Apartment Rent to a tenant paying a market -rate rent
provided Owner once again makes an Affordable Residential Unit available
for rent to a Qualified Tenant when a one -bedroom Apartment Unit
{00118976.8} 3
becomes available for rent, at which point in time the same procedures and
conditions as are set forth in the preceding sentence shall apply.
F. Tenant -Occupied Units. Each Qualified Tenant shall at all times occupy
the Affordable Residential Unit as the Qualified Tenant's principal
residence for at least eight months of each year of the lease, and for any
incidental activities related to such residential use, provided such other use
is in compliance with zoning and all other requirements of law. The
Affordable Residential Unit may not be occupied for any period of time by
any person other than the Qualified Tenant and members of the Qualified
Tenant's Family (as defined in the "The Deerfield Zoning Ordinance 1978,"
as amended), without the express written consent of the Village Manager,
which consent need not be given if, in the Village Manager's sole judgment,
the occupancy would not further the purposes of this Declaration.
G. Management. Owner shall hire a professional management company
("Management Company's to manage the Apartment Building, 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.
H. Records. Owner shall require the Management Company to create and
maintain records of income qualification for every household renting an
Affordable Residential Unit.
Annual Certification with the Village. The Village may, upon 30 days'
notice to Owner, require Owner, 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 Owner 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 Owner's other criteria for
apartment rental, as set forth in Owner's selection plan. By way of example, Owner may deny
such individual or household the right to rent such Affordable Housing Unit if they: (1) 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. The Village agrees to execute a release of this Restrictive
{00118976.8) 4
Covenant in recordable form, at Owner's request and recording expense, upon the expiration
of the term of this Restrictive Covenant or at any earlier time if for any reason this Restrictive
Covenant becomes null and void and of no further force or effect.
SECTION 5. Enforcement.
A. Village Enforcement. Owner 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. 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 Owner or the Management Company
based on an alleged violation of this Restrictive Covenant by Owner or the Management
Company or Owner'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 Owner shall be sent to the following address or to such
other address or person as Owner may from time to time provide the Village by notice:
833 Apartments, LLC
740 Waukegan Road, Suite 330
Deerfield, Illinois 60015
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 Owner by notice:
100118976.8) 5
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 Owner.
SECTION 9. Term.
The term of this Restrictive Covenant shall commence on the Effective Date and shall
be enforceable for a term of 25 years from the date that this Restrictive Covenant is recorded,
after which time this Restrictive Covenant shall no longer be effective.
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 Owner
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 Building has been constructed, shall be
subject to the provisions of this Restrictive Covenant to the extent provided in this Restrictive
Covenant.
IN WITNESS WHEREOF, Owner has caused this Restrictive Covenant to be
executed by a duly -authorized representative on the date first above written.
ATTEST: 833 A.
By: _ By:
Its: Its:
(00118976.81 6
ACKNOWLEDGMENTS
STATE OF— e-/-/A)O/S )
) SS.
COUNTY OF L99Ke )
This instrument was acknowledged before me on AJORIZ, ; C , 2022, bAAc-S NAWthe
An3i9 CGE/Z of 833 APARTMENTS, LLC, an Illinois liability company.
Given under my hand and official seal this P9 � y of AW14 , 2022.
AOt
Notary Public
My Commission expires: 16 — q _�Q 7
SEAL
=PUBLIC
AL
RNEY
OF ILLINOIS
RES:10104124
{00118976.81
EXHIBIT A TO RESTRICTIVE COVENANT
PROPERTY LEGAL DESCRIPTION
LOTS 7 AND 7A IN DEERLAND RESUBDIVISION, BEING A RESUBDIVISION OF PART OF
THE NORTHEAST % OF SECTION 32, AND THE NORTHWEST % OF SECTION 33,
TOWNSHIP 43 NORTH, RANGE 12, EAST OF THE THIRD PRINCIPAL MERIDIAN,
RECORDED AS DOCUMENT NO. 7848939 ON NOVEMBER 30, 2021, IN LAKE COUNTY,
ILLINOIS.
ADDRESS: 833 DEERFIELD ROAD, DEERFIELD, ILLINOIS 60015
PINS: PART OF 16-32-207-002-0000
(00118976.81 Exhibit E
#55795085_v5