HomeMy WebLinkAboutRESOLUTION - 51-15 - 12/15/2015 - MCMACHINERYRESOLUTION NO. 51-15
A RESOLUTION AUTHORIZING THE MAYOR AND VILLAGE CLERK TO SIGN A
RECAPTURE AGREEMENT BY AND AMONG THE VILLAGE OF ELK GROVE
VILLAGE, AN ILLINOIS MUNICIPAL CORPORATION, MC MACHINERY
SYSTEMS, INC., A DELAWARE CORPORATION QUALIFIED TO DO BUSINESS IN
ILLINOIS, AND BK ELK GROVE LLC, AN ILLINOIS LIMITED LIABILITY
COMPANY, FOR THE CONSTRUCTION OF CERTAIN IMPROVEMENTS
NOW, THEREFORE, BE IT RESOLVED by the Mayor and Board of Trustees of the
Village of Elk Grove Village, Counties of Cook and DuPage, State of Illinois as follows:
Section 1: That the Mayor be and is hereby authorized to sign the attached document
marked:
RECAPTURE AGREEMENT BY AND AMONG
THE VILLAGE OF ELK GROVE VILLAGE, AN ILLINOIS MUNICIPAL
CORPORATION, MC MACHINERY SYSTEMS, INC., A DELAWARE
CORPORATION QUALIFIED TO DO BUSINESS IN ILLINOIS, AND BK ELK
GROVE LLC, AN ILLINOIS LIMITED LIABILITY COMPANY, FOR THE
CONSTRUCTION OF CERTAIN IMPROVEMENTS
a copy of which is attached hereto and made a part hereof as if fully set forth and the Village
Clerk is authorized to attest said document upon the signature of the Mayor.
Section 2: That this Resolution shall be in full force and effect from and after its passage
and approval according to law.
VOTE: AYES: 6 NAYS: 0 ABSENT: 0
PASSED this 15"' day of December 2015.
APPROVED this 15`h day of December 2015.
APPROVED:
Mayor Craig B. Johnson
Village of Elk Grove Village
ATTEST:
Judith M. Keegan, Village Clerk
Racapturc4�mcmcmM(:i lachmcn
Dated as of:
Parties:
and
Subject Property:
Benefitting Property:
FOR RECORDER'S USES
RECAPTURE AGREEMENT
(MC Machinery Systems, Inc.)
December l5 , 2015 (the "Agreement Date")
THE VILLAGE OF ELK GROVE VILLAGE, an Illinois municipal
corporation
MC MACHINERY SYSTEMS, INC., a Delaware corporation qualified to
do business in Illinois, and BK ELK GROVE LLC, an Illinois limited
liability company
See Exhibit A to Recapture Agreement
See Exhibit B to Recapture Agreement
Prepared By and Return To:
KEITH W. GROEBE, ESQ.
203 N. LaSalle Street, Suite 2500
Chicago, IL 60601
(312)245-7500
Attorney for the Owner/Developer
RECAPTURE AGREEMENT BY AND AMONG
THE VILLAGE OF ELK GROVE VILLAGE, AN ILLINOIS MUNICIPAL
CORPORATION, MC MACHINERY SYSTEMS, INC., A DELAWARE
CORPORATION QUALIFIED TO DO BUSINESS IN ILLINOIS, AND BK ELK GROVE
LLC, AN ILLINOIS LIMITED LIABILITY COMPANY, FOR THE CONSTRUCTION
OF CERTAIN IMPROVEMENTS
This Recapture Agreement is entered into as of the Agreement Date, by and among the
Village of Elk Grove Village, an Illinois municipal corporation (the "Village"), MC Machinery
Systems, Inc., a Delaware corporation qualified to do business in Illinois (the
"Owner/Developer") and BK Elk Grove LLC, an Illinois limited liability company (the
"Benefitting Landowner"):
WITNESSETH
WHEREAS, Illinois Compiled Statutes, 65 ILCS 5/9-5-1, authorizes the use of recapture
agreements for the reimbursement of costs of improvements to real estate which benefit more
than one property; and
WHEREAS, the Owner/Developer is constructing a building on certain property legally
described in Exhibit A attached hereto and incorporated herein (the "Subject Property"); and
WHEREAS, in connection with the aforesaid construction, the Owner/Developer is
required to design (which for purposes of this Recapture Agreement means and includes all
required and appropriate architectural and engineering services), install and construct at the sole
cost and expense of the Owner/Developer certain improvements as a condition of either
acceptance of a final plat of resubdivision, the granting of a special use permit or the issuance of
a building permit relative to such construction; and
WHEREAS, the improvements which the Owner/Developer is required to design, install
and construct, as aforesaid, are a left turn lane in Northwest Point Boulevard and an extension of
the Northwest Point bituminous walking path, all in the Park at Northwest Point in Elk Grove
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Village, Illinois and as described in detail in Group Exhibit C (collectively, the "Subject
Improvements"); and
WHEREAS, the Village has required the Owner/Developer to design, construct and
install the Subject Improvements so that the Subject Improvements would be available to, and
would benefit, certain other property as legally described in Exhibit B attached hereto (the
`Benefitting Property"); and
WHEREAS, the Owner/Developer has agreed to pay the total cost of the Subject
Improvements, provided that the owner of the Benefitting Property reimburse the
Owner/Developer in accordance with the terms of this Agreement; and
WHEREAS, the Village has determined that the estimated costs of the Subject
Improvements are reasonable, and such costs are fairly and reasonably apportioned between the
Owner/Developer and the owner of the Benefitting Property, all as specified herein and in
Group Exhibit C attached hereto; and
WHEREAS, the owner of the Benefitting Property should be obligated to make
reimbursement payment to the Owner/Developer (the "Recapture Payment") for the Subject
Improvements on the basis, and in the aggregate amount, of the Recapture Percentage (as herein
defined) of the actual (not estimated) costs incurred by the Owner/Developer for the design,
construction and installation of the Subject Improvements;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto hereby agree as follows:
1. The foregoing recitals are substantive and by this reference are incorporated in
the body and text of this Recapture Agreement and made a part hereof.
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2. As soon as practicable after the recordation in the office of the Cook County
Recorder of this. Recapture Agreement against the Benefitting Property by the Owner/Developer
at the cost of the Owner/Developer, to which recordation the Benefitting Landowner hereby
consents, the Owner/Developer shall provide to the Village a summary of the actual costs (the
"Cost Summary") incurred by the Owner/Developer for the design, construction and installation
of the Subject Improvements, with such supporting documentation as may be reasonably
requested by the Village. The Owner/Developer shall also cause a memorandum of the Cost
Summary to be recorded in the office of the Cook County Recorder against the Benefitting
Property as a supplement to, and referencing, this Recapture Agreement, to which recordation
the Benefitting Landowner hereby consents. The Owner/Developer shall deliver to the Village
copies of all documents that relate to this Recapture Agreement which are recorded in the Office
of the Cook County Recorder.
3. As a precondition to the issuance by the Village of any permit or other
authorization, consent or approval for any development of, or construction of any improvement
on, the Benefitting Property, the Village shall take all reasonable steps to collect from the Owner
of the Benefitting Property the Recapture Payment. The Village shall promptly remit to the
Owner/Developer the full amount of the Recapture Payment when collected. The
Owner/Developer shall be responsible for all costs associated with litigation against the Village
commenced by the Benefitting Landowner with respect to the Recapture Payment; provided,
however, that the Village promptly gives the Owner/Developer notice of the commencement of
such litigation. The Owner/Developer may give notice to the Village of the waiver of the
Recapture Payment, in which instance of the Village shall cease any effort to collect the
Recapture Payment. The Owner/Developer may satisfy and fulfill its responsibility for the
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aforedescribed costs by assuming the defense of the Village in such litigation by legal counsel
selected by the Owner/Developer, and at the sole expense of the Owner/Developer.
4. The obligation of the Village to remit the Recapture Payment which is collected
pursuant to this Recapture Agreement constitutes a limited obligation of the Village, payable
solely from the amounts received by the Village from the owner of the Benefitting Property.
Said obligation does not now and shall never constitute a general indebtedness of the Village
within the meaning of any State of Illinois constitutional or statutory provision, or give rise to
any pecuniary liability of the Village. Nothing contained herein, however, shall be deemed to
exonerate or exculpate the Village from liability in the event of willful or intentional failure to
perform the duties assumed by it hereunder as to collection of the Recapture Payment.
5. The terms, conditions, covenants, and obligations imposed upon the Benefitting
Property and Benefitting Landowner under this Recapture Agreement shall be continuing
covenants running with, and constituting encumbrances against, the Benefitting Property so as to
bind the Benefitting Landowner and all successor owners of the Benefitting Property, and shall
be enforceable at the suit of the parties hereto and their respective successors and assigns, by a
proper proceeding, either in equity or at law, but with no right of reverter, it being understood
and agreed that the provisions of this Agreement are for the benefit of the parties hereto and their
respective successors and assigns only and not for the benefit of any third parties.
6. The Village shall approve this Recapture Agreement by ordinance, and this
Recapture Agreement shall become effective upon the last to occur of the execution of this
Recapture Agreement by all of the parties hereto, recording of this Recapture Agreement against
the Benefitting Property in the Office of the Cook County Recorder and recording of said
ordinance in the Office of the Cook County Recorder all as provided by law.
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7. The "Recapture Percentage" shall be derived from a fraction, the numerator of
which shall be the aggregate floor area of the building or buildings to be constructed on the
Benefitting Property pursuant to the permit or other authorization, consent or approval described
in Paragraph 3 (the "Benefiting Floor Area"), and the denominator of which shall be the
Benefiting Floor Area phis 175,200 square feet (being the floor area of the building being
constructed on the Subject Property).
8. The failure or omission of the Village to require payment of the Recapture
Payment by the owner of the Benefitting Property to the Village in accordance with this
Recapture Agreement shall not relieve the Benefitting Property of the obligation to pay the
Recapture Payment, and the Owner/Developer shall have all available legal and equitable rights
and remedies including equitable relief and the right to enforce such obligation directly against
the owner of the Benefitting Property in any court of competent jurisdiction. In any such
proceeding the prevailing party shall also be entitled to recover reasonable attorneys' fees and
costs from the non -prevailing party to the extent not prohibited by law. In the event of any
dispute hereunder which results in the initiation of a lawsuit, the prevailing party in such lawsuit
shall be entitled to reimbursement for all reasonable costs and expenses, including without
limitation, a reasonable sum for attorneys' fees.
9. This Recapture Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, and all of such counterparts together shall constitute
one Recapture Agreement. To facilitate execution of this Recapture Agreement, the parties may
execute and exchange counterparts of the signature pages hereof. This Recapture Agreement
shall be governed by the laws of the State of Illinois. Any action brought to enforce this
Recapture Agreement shall be brought only in a court of competent jurisdiction located in Cook
M
County, Illinois. If any tern or provision of this Recapture Agreement or the application thereof
shall, to any extent be held to be invalid or unenforceable, the remainder of this Recapture
Agreement shall not be affected thereby and shall be enforceable to the fullest extent permitted
by law. Each of the parties hereto represents and warrants to the others that each is authorized to
enter into this Recapture Agreement and perform as set forth herein. This Recapture Agreement
incorporates, integrates and makes as a part of it all Exhibits attached hereto and referenced
herein. This Recapture Agreement may .be modified, amended or supplemented only by a
writing signed by the parties hereto. No action or failure to act by any party hereto shall
constitute a waiver of any right, remedy or recourse, nor shall any such action or failure to act
constitute an approval of or acquiescence in any default hereunder, except as may be specifically
agreed in writing. No waiver by any party hereto of any default shall operate as a waiver of any
other default or of the same default on a future occasion. All rights, remedies and recourses of
the parties hereto shall be considered to be cumulative and not exclusive, except where explicitly
indicated to the contrary. Any failure of a party hereto to enforce at any time any provision
hereof shall not be construed as a waiver of the right to thereafter enforce such provision and
each and every other provision hereof. Any acceptance of past due performance or curing of
default by any party hereto shall not prejudice any right, remedy or recourse hereunder, at law or
equity, except where explicitly indicated to the contrary, of such party hereto. The Benefiting
Landowner hereby covenants not to sue the Village in connection with the collection by the
Village of the Recapture Payment or any other performance hereunder by the Village.
10. All.notices, demands or communications herein required or which a party hereto
desires to give to the other parties hereto shall be in writing and shall be sent by certified or
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registered, return receipt requested, postage prepaid, mail, personal delivery, or recognized,
commercial courier which maintains evidence of delivery as follows:
BK Elk Grove LLC:
BK Elk Grove LLC
6250 North River Road
Suite 11-100
Rosemont, Illinois 60018
Attn: Manager
or if title to the Benefitting Property is no longer vested in BK Elk Grove, then to the address to
which property tax bills for the Benefitting Property are being sent.
MC Machinery Systems, Inc.
MC Machinery Systems, Inc.
85 Northwest Point Boulevard
Elk Grove Village, Illinois 60007
Attn: President
or if title to the Subject Property is no longer vested in the Owner/Developer, then to the address
to which property tax bills for the Subject Property are being sent.
Village of Elk Grove Village
The Village of Elk Grove Village
901 Wellington Avenue
Elk Grove Village, Illinois 60007
Attn: Village Manager
or at any other address directed by a party hereto, sent Monday through Friday, exclusive of legal
holidays, between the hours of 8:00 a.m. and 5:00 p.m., which notice shall be effective upon the
date of receipt.
11. The collection by the Village of the Recapture Payment contemplated
hereinabove shall be in addition to and over and above any and all other building permit fees,
water tap -on fees, sewer connection fees, and/or all other fees required to be paid by the
Ordinances of the Village, other local regulation, and/or the statutes of the State of Illinois.
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12. This Agreement shall be superior to all mortgages, trust deeds or other liens or
security interests that may hereafter be placed upon the Benefitting Property or any portion
thereof and to and any and all advances to be made thereunder and all renewals, replacements
and extensions thereof.
[Remainder of this page is intentionally left blank]
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IN WITNESS WHEREOF, the parties to this Recapture Agreement by their signatures
acknowledge that they have read and understand this Recapture Agreement and intend to be
bound by its terms.
VILLAGE OF ELK GROVE VILLAGE,
an Illinois municipal corporation
By:
Name:
Title:
Attest:
Name:
Title:
MC MACHINERY SYSTEMS,
INC.
By:
Name:
Title:
BK ELK GROVE LLC
By:
Name:
Title:
N:WS47\5401 \10170 - Dne Diligence\Association\Recapture Agreement v5 docs
E
STATE OF ILLINOIS )
) ss.
COUNTY OF COOK )
I, the undersigned, a Notary Public, in and for the County and State aforesaid, DO HEREBY
CERTIFY, that and I , personally
known to me to be the Mayor and Village Clerk of the Village of Elk Grove Village, an Illinois
municipal corporation, and personally known to me to be the same person whose name is
subscribed to the foregoing instrument, appeared before me this day in person and severally
acknowledged that as such Mayor and Village Clerk, they signed and delivered said instrument
pursuant to the authority given by the corporation, as their free and voluntary act, and as the free
and voluntary act and deed of said corporation, for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this day of 2015.
Notary Public
STATE OF ILLINOIS )
) ss.
COUNTY OF COOK )
I, the undersigned, a Notary Public, in and for the County and State aforesaid, DO HEREBY
CERTIFY, that David R. Kahnweiler and William M. Fausone, personally known to me to be the
Managers of BK Point LLC, an Illinois limited liability company, the sole manager of BK Elk
Grove LLC, an Illinois limited liability company, and personally known to me to be the same
person whose name is subscribed to the foregoing instrument, appeared before me this day in
person and severally acknowledged that as such Managers they signed and delivered said
instrument pursuant to the authority given by the limited liability company, as their free and
voluntary act, and as the free and voluntary act and deed of said limited liability company, for
the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this day of
Notary Public
STATE OF ILLINOIS )
) ss.
COUNTY OF COOK )
2015.
I, the undersigned, a Notary Public, in and for the County and State aforesaid, DO HEREBY
CERTIFY, that , personally known to me to be the of
MC Machinery Systems, Inc., a Delaware corporation, and personally known to me to be the
same person whose name is subscribed to the foregoing instrument, appeared before me this day
in person and severally acknowledged that as such he signed and delivered
said instrument pursuant to the authority given by the corporation, as his free and voluntary act,
and as the free and voluntary act and deed of said corporation, for the uses and purposes therein
set forth.
GIVEN under my hand and notarial seal this day of 2015.
Notary Public
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Exhibit A
Legal Description of Subject Property
LOT I IN THE FINAL PLAT OF RESUBDIVISION OF METROPOLITAN -VICTORIA
SUBDIVISION, BEING A RESUBDIVISION OF PART OF LOT 1 IN THE PARK AT NORTHWEST
POINT, BEING A SUBDIVISION OF PARTS OF SECTIONS 15, 16, 21 AND 22, ALL IN
TOWNSHIP 41 NORTH, RANGE 11, EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING
TO THE PLAT OF RESUBDIVISION RECORDED AS DOCUMENT NUMBER 153,153,10i -v,
IN COOK COUNTY. ILLINOIS.
PIN: Part of 08-22-100-019 and 08-22-100-020
ADDRESS: 85 Northwest Point Blvd., Elk Grove Village, Illinois
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Exhibit B
Legal Description of Benefitting Property
LOT 2 IN THE FINAL PLAT OF RESUBDIVISION OF METROPOLITAN -VICTORIA
SUBDIVISION, BEING A RESUBDIVISION OF PART OF LOT I IN THE PARK AT NORTHWEST
POINT, BEING A SUBDIVISION OF PARTS OF SECTIONS 15, 16, 21 AND 22, ALL IN
TOWNSHIP 41 NORTH, RANGE 11, EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING
TO THE PLAT OF RESUBDIVISION RECORDED AS DOCUMENT NUMBER /_T3 Y5Ya f
IN COOK COUNTY. ILLINOIS.
PIN: Part of 08-22-100-019 and 08-22-100-020
14
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Detailed Cost Estimates with Subtotals for Each and Total for Both
ENGINEER'S OPBNION-OF PROBABCE,CONSTRUC_TTON.CO_ST
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