Loading...
HomeMy WebLinkAboutRESOLUTION - 62-86 - 8/12/1986 - LOC ACCEPTED/STAPE'S SUB RESOLUTION NO. 62-86 A RESOLUTION ACCEPTING A LETTER OF CREDIT AGREEMENT IN THE AMOUNT OF $1 ,623,407.50 FROM THE DEVELOPER (TERRESTRIS DEVEL- OPMENT CORPORATION) FOR PROPERTY COMMONLY KNOWN AS STAPE' S SUBDIVISION PHASE 11 , 111 AND IV (WINDEMERE) NOW, THEREFORE, BE IT RESOLVED by the President and Board of Trustees of the Village of Elk Grove Village, Counties of Cook and DuPage, State of Illinois: Section 1: That the Village President and Board of Trustees hereby authorize the adoption of the attached documents marked: "LETTER OF AGREEMENT" a copy of which is attached hereto and made a part hereof as if fully set forth. Section 2: That this Resolution shall be in full force and effect from and after its passage and approval according to law. PASSED this 12th day of August 1986. APPROVED this 12th day of August 1986. Charles J. Zettek Village President ATTEST: Patricia S. Smith Village Clerk LETTER OF CREDIT AGPEEPIENT THIS AGREEMENT is made and entered into as of this 22nd day -f july� 1986 h- ancl bpi-ween Elk Grovp Village, an Illinois municipal corporation ( the "Villace" ) , and Terrestris Develooment Company ( "Develooer" ) , an Illinois corporation. WITNESSETH: WHEREAS , a contiguous , self-contained portion of a subdivi- sion commonly known as Stape ' s Subdivision ( "Phases II , III and IV" ) is located within the Village and is legally described on A Exhibit A hereto. WHEREAS, Developer has acquired an option to purchase from the current Owner the lots in Phases II , III and IV; and WHEREAS, the Village requires that the DeveloT)er complete the installation and construction of certain public imurovements in Phases II , III and IV ( the "Public Imorovements" ) in accordance with those certain plans and specifications , dated October 29 , 1982, and -prepared by Fletcher Engineering Co. , 450 Lee Street, Des Plaines , Illinois ( the "Plans" ) ; and WHE7EAS , the Developer has agreed to complete the Public ImDrovements in accordance with the Plans ; and WHEREAS , the Village has agreed to accept a letter of credit in the form of Exhib 4 t B attached hereto in the amount of B . $1 , 623 , 407 . 50 as security for the completion of the Public IMT)rove- ments ( the "Letter of Credit" ) . NOWr THEREFORE, in consideration of these premises and the mutual promises contained herein, the Village and the Developer agree as follows : 1 . Incoruoration Bv Reference . The aforesaid Recitals and all Exh C ibits to t1lis Agreement are incorporated herein as if fully set forth. 2 . Acceotance Bv Villaae . The Village agrees to approve and accept the Public Improvements , in accordance with the terms and conditions set out in this Agreement, if and when the Public Improvements are completed in accordance with the Plans. The execution of this Agreement shall constitute approval by the Village of the Plans and acknowledgment that such approval conforms to all substantive and procedural requirements of the Village Code. 3 . Letter of Credit. The Developer agrees to deliver to the Village the Letter of Credit and to maintain such Letter of Credit, as reduced in accordance with Secti-on-.6-of this Agreement , in good standing naminc the Village as the Beneficiary so long as the Public Improvements remain incomplete. The Developer further agrees that the expiration date of the Letter of Credit shall always be at least ninety ( 90 ) days beyond the required "Comoletion Date" (hereafter defined ) for the Public Improvements . The Developer also agrees to notify the Village at least ninety ( 90 ) days prior to the expiration date that the Letter of Credit will expire or to. present , an extension or renewal of same to the Village. 4 . Default ; Disoosition of Proceeds. ( a) The Village may present the Letter of Credit for payment only upon a default hereunder by Developer. The Developer shall be in default hereunder if both of the following conditions -2- exist: ( i ) The Public Improvements are not completed by the Compietion Date and approved by the Village Engineer; and ( ii ) The Letter of Credit or any replacement or extension thereof will expire within ninety ( 90 ) days. ( b) The Village agrees that if it draws the Letter of Credit in whole or in part , it will only use the proceeds thereof for the reasonable costs of completing the Public Improvements in accordance with the Plans and such other costs , including reason- able attorneys ' fees , as the Village may incur as a result of Developer' s default under this Agreement. 5 . Comoletion Date. The Developer shall complete the Public Improvements in accordance with the Plans on or before April 2-1 , 1937 or such later date as the Village Engineer or other duly authorized Village official may approve in writing ( the "Comoleticn Date" ) . 6 . Reduction of Letter of Credit . The Village acrees to accept either a reduction in the amount of the Letter of C;�edit or accept a substituted letter of credit in a lesseL amount upon the following conditions : a ) The Developer makes application to the Village Engineer for a reduction of the Letter of Credit based upon completion or partial completion of the Public Improvements and the Village Engineer determines that the completed Public Improvements have been installed or constructed in accordance with the Plans . b) The Letter of Credit which is reduced or substituted is in an amount equal to the one hundred and ten -3- ( 110% ) percent of the estimated cost of completing the Public Improvements not then completed plus ten ( 10% ) percenr of the completed Public Improvements . 7 . Developer' s Remedies. The Developer agrees that if the Village presents the Letter of Credit for payment to the issuer thereof in accordance with Section 3 above , then the Devel- oper will not seek to enjoin the issuer from paying upon the Letter of Credit to the Village; provided , however, that the Developer reserves all other rights and remedies at law or equity, including, without limitation, the right to seek a restraining order or .injunction against the disposition of the proceeds of the Letter of Credit received by the Village from such an issuer based upon a dispute regarding the Village ' s right to draw such funds under the terms of this Agreement or any applicable provision of law. The parties agree that, in the event such a restraininq order or. injunction is issued , the proceeds of the Letter of Credit shall be deposited with the court that issues the restraining. order or injunction or in a joint order escrow requiring the signature of a representative of each of Developer and Village or an order of such court to authorize disposition of the deposits into such escrow. 8 . Limitations . The Letter of Credit and anv proceeds thereof received by the Village are for the sole purpose of securing the completion of the Public Improvements. This Agree- ment is solely for the benefit of the Village and the Developer. No other person or entity is a Beneficiary of this Agreement , the Letter of Credit or such proceeds. If the Public Improvements are not completed on or before the Completion Date , or if said Public Improvements have not been installed or constructed in accordance with the Plans , as reasonably determined by the Village -4- Engineer, then the Village , and solely the Village , as set forth above is hereby granted the authority to draw upon the Letter of Credit by either a full draft or partial draft for the purpose of completing fully said Public Improvements in accordance with the provisions herein and. above set forth. 9 . Develocer' s Oblications. The Letter of Credit or proceeds thereof shall be utilized to secure the installation of all the Public Improvements as specified on the Plans. However, the acceptance of this Letter of Credit or such proceeds shall not coerate as a limitation upon the obligation of the Develooer to properly and completely install all the Public Improvements in accordance with the Plans. 10 . General Provisions . ( a ) This Agreement contains the entire agreement and understanding of the parties regarding the matters addressed herein, and there are no other prior ar ccntemocranecus written or oral agreements , undertakings , promises, warranties or covenants not contained . hefein. (b) This Agreement may be amended only by a written memorandum subseuuently executed by all of the parties hereto. ( c ) No waiver of any provision or condition of this Agreement by any party shall be valid unless in writing signed by the party waiving such provision or condition . No such waiver shall be taken as a waiver of anv other or similar provision or of any past or future event , act , or default . (d) Time is of the essence of this Agreement. In the computation of any period of time provided for in this Agreement or by law, the day of the act or event from which said period of time runs shall be excluded , and the last dav of such neriod shall be included, unless it is a Saturday, Sunday or leqal holiday, in which case the period shall be deemed to run until the end of the next day which is riot a Saturday, Sundav or leqal holiday. (e) In the event that any provision of this Agreement shall be unenforceable in whole or in part , such provision shall be limited to the extent necessary to render the same valid , or shall be excised from this Agreement, as circumstances require , and this Agreement shall be construed as if said provision had not been included herein. ( f) Headings of paragraphs are for convenience of refer- ence only, and shall not be construed as a part of this Agreement . ( g) This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, and their respective heirs , executors , personal representatives , successors and assions . (h ) Anv and all notices permitted or required to be given hereunder shall be in writing and shall be effective either upon perso-nal delivery to the party or three ( 3 ) business days after. sent by U.S . registered or certified mail to the resoective parties at the following addresses: If to village : Elk Grove Village 901 Wellington Avenue Elk Grove Village , Illinois 60007 Attn: Thomas Rettenbacher With copy to: Samuelson, Knickerbocker & Associates 575 Lee Street Des Plaines , Illinois Attn: George B. Knickerbocker, Esq. -6- If to Developer: Tefrestris Development Company 900 Commerce Drive Suite. 2�5 Oak Brock , Illinois Attn: Dennis Cortesi , Pres . With copy to: Portes , Sharp, Herbst & Kravets , Ltd . 333 W. Wacker Drive Suite 500 Chicago, Illinois 60606 Attn: David M . Lesser, Esq. ( i ) This Agreement shall be governed in all resoects bv the laws of the State of Illinois. ( j ) This Agreement may be executed in any number of identical counterparts , any or all of which may contain the signature of less than all of the parties , and all of which shall be construed together as but a single instrument. IN INITNESSTH WHEREOF, the Village and the Developer have executed this Agreement this Lf dav cf -M-a�- 1986 . VILLAGE : ELK GROVE VILLAGE By: Its : DEVELOPER: TERRESTRISIDEVELOPMENT CORP. (Z' By: -7- Harris Trust and 111 West Monroe Street Telephone(312)461-2121 Savmgs Bank PO. Box 755 Chicago, Illinois 60690 EXHIBIT "B" HARRIS BANK J RECEIVED E. (1� Letter of Credit Number: SPL 28304 Amount: $1,623,407.50 Date of Issue: July 22, 1986 Expiration Date: July 21, 1987 Beneficiary: Applicant: Elk Grove Village Terrestris Development Company 901 Wellington c/o First Savings Corporation Elk Grove, Illinois 60007 P.O. Box 4444 Chicago, Illinois 60680 Dear Sirs- We hereby establish in your favor our Irrevocable Letter of Credit No. SPL 28304, which is available for negotiation of your drafts at sight, drawn on us, and bearing the clause "drawn under Harris Trust and Savings Bank of Chicago Credit No. SPL 28304." This letter of credit is issued on application of Terrestris Development Company (TDC) in accordance with a certain Letter of Credit Agreement between you and TDC regarding the property commonly known as Phases II, III, and IV of Windemere Subdivision, Elk Grove Village, Illinois. We hereby engage with you that drafts drawn and negotiated in conformity with the terms of this Letter of Credit will be duly honored on presentation and that drafts accepted within the terms of this Letter of Credit will be duly honored on or before the expiration date of this credit. The &munt of each draft must be endorsed on the reverse of this Letter of Credit by the negotiating bank. Except as otherwise expressly stated this documentary letter of credit is subject to the "Uniform Customs and Practice for Documentary Credits" (1983 Revision) International Chamber of Commerce Publication No. 400. Harris Trust and Savings Bank By:, L Wholly owned subsidiary of Harris Bankcorp, Inc.