Loading...
HomeMy WebLinkAboutRESOLUTION - 38-18 - 7/17/2018 - Revised Brixmor Holdings Escrow agreementRESOLUTION NO.38-18 A RESOLUTION AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE A REVISED REPAIR AND MAINTENANCE ESCROW AGREEMENT BETWEEN THE VILLAGE OF ELK GROVE VILLAGE AND BRIXMOR HOLDINGS 1 SPE, LLC WHEREAS, on June 28, 2018, the Village adopted Resolution No. 33-18, approving a Repair and Maintenance Agreement with Chicago Title Insurance Company as the designated Escrow Agent; and WHEREAS, it was later determined that a change was necessary in the designated Escrow Agent and that Near North National Title, LLC should be designated as the replacement Escrow Agent and the Repair and Maintenance Escrow Agreement be amended accordingly: 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: 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:4 NAYS:0 ABSENT:2 PASSED this 17th day of July 2018. APPROVED this 171h day of July 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 arllay of 4( , 2018 ("Effective Date") is by and among BRIXMOR HOLDINGS I SPE, LLC, a Delaware limited liability company ("Brixmor"), the VILLAGE OF ELK GROVE VILLAGE, an Illinois municipal corporation (the "Village"), and NEAR NORTH NATIONAL TITLE, LLC ("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/]00 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. 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: 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 with a copy to: Village Attorney 901 Wellington Avenue Elk Grove Village, IL 60007 If to Escrow Agent: Near North National Title, LLC 222 N. LaSalle Street Chicago, IL 60601 Attention: John Lamberts 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 Resignation is effective. Escrow Agent may apply to a qualified court for the appointment of a successor Escrow Agent. The expenses 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. BRIXMOR: BRIXMOR HOLDINGS 1 SPE, LLC, a Delaware limited liability company By: _ Name: Title: VILLAGE: VILLAGE OF ELK GROVE VILLAGE, an Illinois municipal corporation By: Name: Title: ESCROW AGENT: NEAR NOTH NATIONAL TITLE, LLC By: Name: Title: 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.