HomeMy WebLinkAboutRESOLUTION - 33-18 - 6/28/2018 - Maintenance Escrow Agreement - Brixmor HoldingsRESOLUTION NO.33-18
A RESOLUTION AUTHORIZING THE MAYOR AND VILLAGE CLERK TO
EXECUTE A REPAIR AND MAINTENANCE ESCROW AGREEMENT BETWEEN
THE VILLAGE OF ELK GROVE VILLAGE AND BRIXMOR HOLDINGS 1 SPE LLC
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 documents
marked:
REPAIR AND MAINTENANCE ESCROW AGREEMENT
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 documents 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 28' day of June 2018.
APPROVED this 28' day of June 2018.
APPROVED:
Mayor Craig B. Johnson
Village of Elk Grove Village
ATTEST:
Loretta M. Murphy, Village Clerk
REPAIR AND MAINTENANCE ESCROW AGREEMENT
This Repair and Maintenance Escrow Agreement ("Escrow Agreement"), dated the JNay of
'14tia 2018 ("Effective Date") is by and among BRIXMOR HOLDINGS 1 SPE, LLC, a Delaware
limited liability company ("Brixmor"), the VILLAGE OF ELK GROVE VILLAGE, an Illinois
municipal corporation (the "Village"), and CHICAGO TITLE AND TRUST COMPANY ("Escrow
Agent").
WHEREAS, Brixmor has agreed to make certain repairs to Elk Grove Town Center, Elk Grove
Village, Illinois (the "Property"), as described on Exhibit A attached hereto (the "Work").
NOW, THEREFORE, in consideration of Ten and No/100 Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Brixmor, the Village
and Escrow Agent hereby agree as follows:
1. Security for Work. Within five (5) days of the Effective Date hereof ("Deposit Date"),
Brixmor shall post security for the Work in the amount of One Hundred Thousand and No/100 DOLLARS
($100,000.00) ("Security" or "Escrowed Funds") to be held in an escrow with Escrow Agent.
2. Completion Date. Brixmor hereby agrees to complete repairs listed on Exhibit A within
six (6) months of the Deposit Date ("Completion Date"). All Work will be completed in accordance with
all applicable Village Ordinances and any plans approved by the Village in issuing permits to complete the
Work ("Village Requirements").
3. Completion of Work. Upon completion of the Work, which work shall be performed in
accordance with the Village Requirements, Brixmor shall give written notice to the Village (the
"Completion Notice") stating that the Work has been completed. Within seven (7) days of receipt of the
Completion Notice, the Village shall inspect the Work to confirm it has been completed in accordance with
the Village Requirements. The Village shall within three (3) days thereafter either direct the Escrow Agent
to release the Security to Brixmor, or state in writing to Brixmor with specificity how the Work is
unacceptable ("Notice").
4. Completion Deadline. In the event the Work is not fully completed by the Completion
Date, the Village shall have the right (but not the obligation) to enter upon the Property to complete any
uncompleted portion(s) of the Work ("Self Help"), and to draw upon the Escrowed Funds, from time to
time, any amounts reasonably necessary to pay for the portion(s) of the Work so completed by the Village
(as evidenced by copies of invoices detailing the costs and expenses for which payment is sought) or direct
the Escrow Agent to reimburse the Village for such amounts reasonably incurred and paid by the Village
(as evidenced by detailed payment receipts).
5. Security Balance. Upon completion of the Work and receipt of the Village's approval of
the Work as provided herein, the Escrow Agent shall release the balance of the Security to Brixmor.
6. Reciprocal Easement Agreement. Brixmor and the Village hereby acknowledge and agree
that the certain Reciprocal Easement Agreement dated March 13, 1997, by and between the Village,
Brixmor (as successor -in -interest to Elk Grove Town Center, L.L.C.), and The Board of Library Trustees
of the Village of Elk Grove Village, Cook County, Illinois ("Library") and expressly Section 6 thereof,
are in full force and effect.
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7. Escrow. Escrow Agent agrees to hold the Escrowed Funds in escrow and disburse the
Escrowed Funds in accordance with the terms of this Escrow Agreement, including, but not limited to the
following:
(a) Escrow Agent shall deposit the Escrowed Funds into an F.D.I.C. insured account
at an institution as Brixmor shall approve provided Escrow Agent receives a fully completed and
executed W-9.
(b) Escrow Agent may not commingle the Escrowed Funds with other funds held in
its "trustees account."
(c) In the event that Escrow Agent is uncertain for any reason whatsoever as to its
duties or responsibilities hereunder, or a dispute shall arise as to the disposition of the Escrowed Funds (or
any portions thereof) or any other funds held hereunder in escrow, Escrow Agent shall have the right, at its
option, to either hold the same until Escrow Agent receives joint written direction from Brixmor and the
Village or deposit the same with a court of competent jurisdiction in Illinois pending decision of such court,
and Escrow Agent shall be entitled to rely upon the decision of such court.
(d) Escrow Agent shall have no liability whatsoever arising out of or in connection
with its activity as escrow agent provided it does not act with gross negligence or in willful disregard of the
terms of this Escrow Agreement and Brixmor and the Village jointly and severally agree to indemnify and
hold harmless Escrow Agent from all loss, cost, claim, damage, liability and expenses (including reasonable
attorneys' fees) which may be incurred by reason of its acting as escrow agent unless caused by Escrow
Agent's gross negligence or willful disregard of the terms of this Escrow Agreement. Provided Escrow
Agent shall have complied with Section 7(a) above, Escrow Agent shall have no liability in the event of
failure, insolvency, or inability of the depositary to pay said funds upon demand for withdrawal.
(e) Escrow Agent shall be entitled to rely upon any judgment, certification, demand
or other writing delivered to it hereunder without being required to determine the authenticity or the
correctness of any fact stated therein, the propriety or validity thereof, or the jurisdiction of a court issuing
any such judgment. Escrow Agent may act in reliance upon (x) any instrument or signature believed to be
genuine and duly authorized, and (y) advice of counsel in reference to any matter or matters connected
therewith.
(f) This Escrow Agreement shall be governed by and constructed in accordance with
the laws of the State of Illinois.
(g) This Escrow Agreement shall be binding upon and inure to the benefit of Brixmor,
the Village, Escrow Agent and their respective successors, assigns and legal representatives.
(h) This Escrow Agreement sets forth the entire understanding of the parties with
respect to the specific subject matter hereof and shall not be modified or amended without the express
written consent of the parties hereto.
(i) All notices or other communications hereunder shall be (i) in writing and shall be
deemed to be given on the earlier to occur of (a) actual receipt; (b) the next business day after deposit of
both the original and copy as provided below in a regularly maintained receptacle for United States Express
Mail or nationally recognized overnight courier service (with next business day delivery specified); or (c)
the third business day after deposit of both the original and copy as provided below in a regularly maintained
receptacle for the United States mail, by registered or certified mail, return receipt requested, postage
prepaid, addressed as provided hereinafter, and (ii) addressed:
1498406.v4
If to Brixmor: c/o Brixmor Property Group Inc.
450 Lexington Avenue, 13" Floor
New York, New York 10017
Attention: General Counsel
Email: Steven.Siegel@brixmor.com
with a copy to: Barack Ferrazzano Kirschbaum & Nagelberg LLP
200 West Madison Street, Suite 3900
Chicago, Illinois 60606
Attention: Chuck Picton, Esq
Email: Chuck.Picton@bfkn.com
If to the Village: Village of Elk Grove
901 Wellington Avenue_
Elk Grove Village, IL 60007
Attention: Village Manager
Email:
with a copy to:
Attention:
Email:
If to Escrow Agent: Chicago Title and Trust Company
Attention:
Email:
Notices may also be given by electronic mail, with the original notice being mailed by overnight
courier service or United States Express Mail, in which event, the notice shall be deemed delivered on the
date of electronic mail, provided that if the recipient of such notice given by electronic mail acknowledges
receipt of such notice in writing (including by electronic mail), the original notice need not be delivered
and such notice shall be deemed delivered on the date of the electronic mail. The attorneys for the parties
may give notices or communications on behalf of their respective clients.
0) Escrow Agent hereunder may resign at any time on giving thirty (30) days prior written
notice to that effect to Brixmor and the Village. In such event, a successor Escrow Agent shall be selected
by Brixmor and approved by the Village, such approval not to be unreasonably withheld or delayed. Escrow
Agent shall then deliver to the successor Escrow Agent the Escrowed Funds and any interest earned thereon,
if any, to be held by the successor Escrow Agent pursuant to the terms of this Escrow Agreement. If no
successor Escrow Agent is designated and qualified within five (5) business days after Escrow Agent's
1498406.v4
resignation is effective, Escrow Agent may apply to a qualified court for the appointment of a successor
Escrow Agent. The expenses thereof shall be equally borne by Brixmor and the Village.
(k) Escrow Agent shall be entitled to select any and all counsel who may be retained to defend
or prosecute any action on behalf of Escrow Agent under or arising out of this Escrow Agreement.
8. Counterparts. This Escrow Agreement may be executed in any number of counterparts, all
of which taken together shall constitute one and the same original, and the execution of separate
counterparts by the Village, Brixmor and Escrow Agent shall bind the Village, Brixmor and Escrow Agent
as if they had each executed the same counterpart. This Escrow Agreement may be executed by a facsimile
transmission or by email via pdf (or its equivalent) format, in each case, with the same force and effect as
originals.
9. Time of the Essence. Time shall be of the essence of the obligations of the parties under
this Escrow Agreement. The term "days" as used herein shall mean calendar days, with the exception of
"business days", which term shall mean each day except for any Saturday, Sunday or legal holiday under
the laws of the State where the Property is located or the United States of America.
10. Prevailing Party. In any action or proceeding between the Village and Brixmor, including,
the prevailing party may recover from the other party all of its costs and expenses in connection therewith,
including reasonable attorneys' fees and costs.
11. Modification. Brixmor and the Village shall have the right to modify paragraphs 1-6 of
this Agreement without the consent of Escrow Agent, but Escrow Agent shall receive notice and a copy of
any such modification.
[Signature Page(s) to Follow]
IN WITNESS WHEREOF, this Escrow Agreement has been duly executed as of the date above written.
1498406. v4
BRIXMOR:
BRIXMOR HOLDINGS l SPE, LLC, a Delaware
limited liability company
By: _
Name:
Title:
VILLAGE:
VILLAGE OF ELK GROVE VILLAGE,
an Illinois municipal corporation
By: e, 15, J '4
Name: %S 63 jo-kn5ol?
Title: Ghnc
ESCROW AGENT:
CHICAGO TITLE AND TRUST COMPANY
By:
Name:
Title:
1498406.v4
EXHIBIT A
WORK
[Please See Attached]
1498406.v4
Repair and Maintenance Agreement
Exhibit A
Repair and/or replace the gate and brick at dumpster enclosures (NORTH & SOUTH) located
adjacent to the water play feature.
Remove and replace the tree/bush adjacent to dumpster enclosure at north end of the property.
Repair and/or replace the brick pavers at courtyard between Buffalo Wild Wings & Good Tequilas
that have a wavy/uneven surface.
Repair and/or replace the concrete sidewalk with broken edges located perpendicular to the patio
in front of Good Tequilas.
Repair and/or replace the deteriorated detectable warning at rear southwest corner of the Village
Dental tenant space.
Repair and/or replace the broken areas of concrete sidewalk in front of old Caputo's space.
Repair and/or replace the concrete sidewalk with broken edges located parallel with & in front of
Village Dental tenant space.
Repair and/or replace the uneven sidewalk edge at curb in front of Athletico & Hair Encounter.
Repair the chipping/flaking paint under the canopy between Good Tequilas & Village Dental.
Repair and/or replace the light post base in front of the 960 tenant space.
Repair/replace all broken light fixtures within the dock area at the rear of the former Caputo's
tenant space.
Replace downspout T-connection at rear of former Caputo's tenant space.
Provide a weatherproof cover at the GFCI receptacle within the center island of the parking lot.
Repair/restore the damaged soffits and discoloration at front of old Caputo's space.
Replace/re-install any damaged of missing exterior cladding on the mezzanine mechanical
equipment enclosure area.
Repair the peeling paint on the stop sign between Walgreens and the Village Hall.
Upgrade the planter box and plantings in lieu of repairing the fountain: within sixty (60) days of
the Effective Date, submit a design and landscape plan for the upgraded planter box and complete
repair of the planter box and installation of plantings per the agreed upon plan on or before
October 1, 2018.
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